European Judicial Network in Civil and Commercial Matters: Motion.

Wednesday, 1 October 2008

Seanad Éireann Debate
Vol. 191 No. 2

First Page Previous Page Page of 12 Next Page Last Page

Senator Donie Cassidy: Information on Donie Cassidy Zoom on Donie Cassidy I move:

That Seanad Éireann approves, in accordance with Article 29.4.6° of Bunreacht na hÉireann, the exercise by the State of the option, provided by Article 3 of the fourth protocol set out in the Treaty of Amsterdam, to notify the President of the Council of the European Union that it wishes to take part in the adoption and application of the following proposed measure:

proposal for a decision of the European Parliament and of the Council amending Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters,

a copy of which proposed measure was laid before Seanad Éireann on 28 July 2008.

Minister of State at the Department of the Environment, Heritage and Local Government (Deputy Michael Finneran): Information on Michael Finneran Zoom on Michael Finneran On behalf of the Minister for Justice, Equality and Law Reform, I thank the House for making time available to discuss the motion relating to the exercise by the State of our option to take part in the adoption and application of the proposal for a decision of the European Parliament and of the Council amending Council Decision 2001/470/EC establishing a European judicial network in civil and commercial matters. The Minister is conscious of the fact that the deadlines are very tight and, for that reason, the co-operation of the House on today’s discussion is much appreciated. Senators will be aware that, as this is a measure to which the fourth protocol of the Amsterdam treaty applies, we have a three-month period within which to notify the President of the Council of our intention to opt into any discussions from the beginning. That period expires this week.

Members of the House will be familiar with motions of the type under consideration, given that numerous similar motions have come to the House for approval. This reflects the fact that there is a lot of activity in the area of civil law co-operation within the EU forum. On previous occasions, Senators have made very useful observations on the proposals brought before them and, while our time today is limited, I look forward to the comments of those who contribute to the debate on the motion.

[79]The proposed decision was presented as part of a general programme of measures in the field of judicial co-operation in civil matters where those matters have cross-border implications and are seen as necessary for the proper functioning of the Internal Market. It amends a 2001 decision, which we have already opted into, which established a European judicial network geared primarily towards establishing an information system among member states with regard to judicial co-operation in the civil sphere. The amending proposal follows on from a Commission study published in 2006 which suggested that the role of the network needed to be enhanced given the number of Community instruments in the civil justice area which have come into effect since 2001 and which will come into effect in the near future. The proposed amendments are intended to facilitate the network in dealing with an increasing volume of requests for information and co-operation.

Before dealing with the specific elements of the amending proposal, I will speak briefly about the network as it operates at present. Some information about funding will also be given. The network consists of contact points designated by member states, central bodies and authorities who have specific functions under various Community and international instruments to which the member states are parties, and any other judicial or administrative authority with responsibility for judicial co-operation in civil and commercial matters and whose membership is considered useful by the member state to which it belongs. In Ireland, the Courts Service has been designated as the contact point for the purposes of the 2001 decision.

Among the network’s activities is ensuring the effective and practical application of existing Community instruments and the establishment of an information system for the public on civil law co-operation within the EU. The latter activity has resulted in the creation of a website which has been on-line since March 2003. The network meets regularly and the meetings are organised, chaired and serviced by the European Commission. They provide an opportunity for the sharing of experience with regard to the operation of Community instruments in the area of civil law. They have also led to the publication of a number of practice guides intended to assist in the application of these instruments, covering areas such as the taking of evidence and the European enforcement order regulation. Funding is provided by the Civil Justice funding programme, a specific objective of which is to facilitate the operation of the network. Ireland notified its intention to participate in the adoption and application of that programme in 2005, and it was adopted in 2007. It is envisaged that funding of the order of €3 million will be available for the running of the network, including its website, in 2009 and in each year for the duration of the programme, which runs until December 2013.

One of the more significant elements of the amending decision is the proposal to open up the network to the legal professions directly concerned with civil judicial co-operation and directly involved in the administration of justice. It is envisaged that their participation will bring added value to legal practice in the European Union and enable the network to achieve its objectives more effectively. For the purposes of this proposal, “the legal professions concerned” means only those which participate directly in the concrete application of Community and international instruments concerning civil justice in the course of judicial or extra-judicial proceedings. In Ireland, this essentially means barristers and solicitors. In other countries, professions such as notaries and bailiffs are also involved. The proposal does not provide for direct access to the network for individual members of the legal professions. Under its terms, only the professional associations representing the different legal professions in each member state at national level would be invited to become members.

The element of the draft decision concerning effective access to justice for the public reflects the emphasis placed by the Hague programme on improving such access. In a number of Community instruments adopted to date there is provision for measures to be taken to inform the public of their content, and the network is seen as a key player in ensuring such provision. [80] For example, provisions of this kind are included in the regulations establishing a European order for payment procedure and a European small claims procedure, both of which are due to enter into force within a matter of months. The draft decision contains a new article which specifies that the contact points are to inform the public directly about relevant Community and international instruments. The Commission’s role in the network’s public information system has also been addressed in more concrete terms. The Commission will have responsibility for translating into the official languages of the Community information on the relevant aspects of Community law and procedures, including Community case law, as well as translation of the system’s general pages.

A further element of the proposal is designed to provide additional clarity concerning the role of the contact points. Obviously, this is most relevant where a member state designates more than one contact point. Provision is also made for closer co-operation between the judiciary and the contact point in member states where that state has chosen to appoint a person other than a judge as contact point. The proposal also addresses the relationship between the contact points and the central authorities who have responsibilities under EU and international instruments, and aims to promote the development of exchanges of views and regular contact between these two categories of network member in the member states. It also deals with the expeditious processing of requests for judicial co-operation within the network. A further new element is the idea that the contact points will present a two-yearly report on their activities. In the expeditious processing of requests, the network has already demonstrated that it has the capacity to be more effective in this regard than other, more traditional, co-operation structures.

Other elements of the proposal include the arrangements for the Commission to keep a secure electronic register of exchanges of judicial co-operation between contact points, and to supply the network, on a regular basis, with statistics on requests for judicial co-operation. It is also proposed that the network will be given an additional task so that in the future it can play a key role in informing the courts and authorities, which are responsible for a case, about the content of foreign law, where the law of another member state is applicable to the case in question.

A number of technical amendments to the 2001 decision are proposed, one of which will increase the number of representatives which member states are allowed to send to contact point meetings. This means that where specific issues are to be discussed at meetings, member states will be able to include more experts in their delegations and thus ensure a more informed discussion takes place. It is also proposed that provision be made for the establishment of exchanges and co-operation between the network and other networks that facilitate co-operation between judicial systems or access to justice. Examples of such networks include the Hague Conference on International Private Law, which the Community joined in April 2007, the European Consumer Centres Network, and a Latin American international judicial co-operation network in which Spain and Portugal already participate.

Discussion on the draft decision has only just begun and during the negotiation process changes may be made to reflect the individual concerns and needs of the participating member states. In this context, because of the terms of its Protocol to the Treaty of Amsterdam, Denmark is not participating in the adoption and application of this decision. However, the draft decision will continue to facilitate the representation of Denmark at meetings of the network. The decision also provides that representatives of accession countries and candidate countries may be invited to attend network meetings as observers, as may representatives of countries that are parties to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

[81]The UK has already given notice of its intention to participate in the adoption and application of this decision. It is the Government’s view that it is important that Ireland responds positively to the tabling of this proposal by exercising the right which we have to opt into discussions at an early date. On behalf of the Minister, I very much hope the House will support the proposal that Ireland opts into the discussions on this decision and I thank Senators for making time available to facilitate our participation in the negotiations on this instrument. Obviously, given our participation in the underlying 2001 decision, it makes sense for us to opt into this amending proposal.

Senator Eugene Regan: Information on Eugene Regan Zoom on Eugene Regan I know the Oireachtas wishes to scrutinise EU legislation more seriously. However, this is the most innocent legislation I have ever seen. Ireland has opted into this system of the European judicial network in civil and commercial matters based on the decision of 28 May 2001. I find it rather absurd that we are required to go through this process of opting into a decision which, as the Minister of State pointed out, makes some technical amendments in that decision. That process is rather heavy and reflects the absurd situation in which we find ourselves by having the opt-in opt-out process the Government has chosen to adopt.

I have no difficulty with the proposed decision to make some technical amendments to the original Council decision of 2001 on the European judicial network. The recognition and enforcement of judgments in civil and commercial matters is fundamental to doing business within the European Union. This network facilitates that process, and informs the judiciary and legal professions in different member states of the relevant regulations, laws and judicial decisions and judgments in different member states. There is nothing contentious in this proposal. It allows the Commission to take on the role of translating certain legal instruments and such matters. I have no difficulty with the proposal. However, I believe there are other decisions in this area that warrant debate and we tend to adopt many decisions without debate. This is one that could have been adopted without debate. While we support the decision, I find it curious that having opted into a measure in the area of judicial co-operation in civil matters we are required to go through that laborious process each time when mere technical amendments are made.

Senator Denis O’Donovan: Information on Dennis O'Donovan Zoom on Dennis O'Donovan Like Senator Regan, I have no problem in welcoming this proposal. It is good to see a network that is common to all of Europe. Historically in civil, commercial and contract laws we come from a common law background whereas the law in most of Europe is based on the Napoleonic code. I have one question on contact points. Has it been established which contact points will be used here? Is there a central contact point? Will the Courts Service, the Bar Council of Ireland, the Law Society of Ireland and possibly even the Judiciary have individual contact points or will there be a central contact point covering all of them?

I welcome the Minister of State to the House. As far as I am concerned we are pushing an open door on this matter. I concur with my colleague. More often than not these types of issues are brought before us without debate. Some issues that come before both Houses have greater merit for debate than this one, which seems an innocuous proposal. However, one of the reasons the Lisbon treaty referendum was rejected is that there is a general perception on the streets that we are dictated to by Europe and more often than not we do not know what is coming down the track or what is agreed or not agreed. While many directives and proposals come before both Houses that are passed through on the nod and agreed without debate, greater scrutiny of those could take place in the future.

Once my question about contact points is clarified, I will fully support the proposal.

[82]Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik It is nice to witness such a mood of consensus. We are all agreed that this is a measure to be welcomed. Senator Regan and others have asked why this EU measure is up for debate in the House when other measures that are more deserving of debate have been passed through, as Senator O’Donovan has said, more or less on the nod. We should consider how the decision is made as to what EU measures are debated in the House and what measures are simply passed without debate. Having said that, this is clearly an uncontroversial measure, a main aim of which is to facilitate public access to information about court procedures. It is especially important for anyone facing cross-border litigation or anything to do with a transnational dimension.

The website set up under the scheme already is very informative. It provides information, for example, on how to bring a case to court in the 27 member states. There is a general benefit not just for litigants or potential litigants and for practitioners but also for academics in terms of facilitating greater research and increasing our knowledge pool about the legal systems of other member states. We have been somewhat isolated in Ireland as a common law country and it is good for us to have access and information on the systems and procedures that operate in civil code countries.

Ten years ago I participated in a European traditional network research project on rape law across the then 15 member states and looked at different procedures in rape trials. We learned a great deal about how to improve our rape trial processes in Ireland from the victim’s point of view. We learned a great deal from looking at systems about which we knew very little before membership of the EU. I think this sort of judicial network is very beneficial.

However, there are some measures, particularly in the criminal law side, where we would have to be concerned about enhancing EU co-operation to ensure there would not be any encroachment on the due process rights that we have well-established in our criminal system. In some instances, especially in terms of policing co-operation, we would have data protection concerns about the sharing of data across borders but clearly none of those issues arises here. I welcome the motion.

Senator Alex White: Information on Alex White Zoom on Alex White Like my colleagues I have no difficulty with the substance of the proposal but I am reflecting on what Senator Regan said. Whereas I share his frustration in respect of this matter being tabled while such a range of other matters are not, I would come to a different conclusion. As we reflect on some of the issues that are still live in respect of what was contained in the proposed Lisbon treaty which was rejected by the Irish people, the extent to which parliaments, including this one, should be involved in a much closer way in scrutinising EU legislation is a matter on which there was not enough debate in the course of that referendum debate.

We cannot afford to take the view, and Senator Regan did not suggest this, that we would prefer that the Government would err on the side of not bringing matters before the Oireachtas. I would prefer if the Government were to err on the side of bringing matters before the Oireachtas. It is then a matter for this House and the other to decide on the extent of priority it wishes to give to discussion and so on. I would prefer if we were to enhance the level of debate on all these measures, even those that are not especially controversial. We can decide ourselves when the measures come to the House whether they are controversial, but they should be brought before the House. That is the spirit in which we will have to look at in the future in the European institutions, if we have a future, and in the context of the importance of enhancing the role of national parliaments. In that context, I welcome the content of the motion and also the fact that it has been brought before the House in order that we can consider it, however briefly.

[83]In regard to content, as others have said, the motion is not controversial. Anything it contains appears to be positive. It expands and deepens the network and makes more information available about it, including the range of bodies which would be a party to it, such as the legal profession and so on. That makes sense.

On the question of the particular opt-in, it is striking that the Minister of State in his contribution pointed out that part of the context for dealing with this issue and the Government taking the view that we ought to opt in is that the UK has decided to do so. That appears repeatedly to be the rationale for our approach to judicial matters. I appreciate it is also a common law jurisdiction. We seem to be incapable of extricating ourselves from any decisions the UK might take in this area. It is a pity in the context of where we are in Europe, with our own institutions and our own system of law and how that has evolved and will continue to evolve, that anyone who reads the Minister of State’s speech would almost be tempted to ask why we are adopting the measure. When one reads through the paragraphs one finds that the UK has already given notice of its intention to participate in the adoption of the measure. That is unfortunate.

On the question of these matters coming to the Oireachtas, one issue on which there will have to be considerable improvement is the extent of the information available to Members prior to such debates. I do not make any particular issue about this measure because it is relatively straightforward and can be considered in a short period. When these matters are tabled, supportive information must be extended to Members in this and the other House in advance of the debates to allow them to consider the issues and make an intelligent and meaningful contribution to the debate. If we are to have any hope of participating properly in a yellow card system in the future or discussing the more serious issues that are likely to come to national parliaments in the event of an element of Lisbon being agreed, we need to gear up our level of information and expertise on many of these matters.

Senator Dan Boyle: Information on Dan Boyle Zoom on Dan Boyle It is easy to be jingoistic in terms of a belief in our own policing and judicial system, saying it is better than other judicial systems of policing in that it cannot be improved upon. As an island nation perhaps we are more guilty in this area than others. We are discussing changes in judicial co-operation on civil and commercial matters in the European Union in terms of information and acting on that information. It would be useful, in a wider debate, to discuss where we can and do intermingle with other EU countries, despite the difficulties that exist such as Ireland being a common law jurisdiction and others being statute-based, legal systems which are inquisitorial rather than adversarial. In terms of where Ireland stands, there are ongoing concerns that the more we intermingle and a bigger caucus of European law is formed in this area, the more we lose and the greater the potential threats to civil liberties. I am less convinced of that than I have been in the past.

I was in a German city, Frankfurt (Oder), which is on the border with Poland and a town called Slubice. While Poland has only recently become a member of the EU, both countries are part of the Schengen Agreement, which we are not. The border post that existed on that bridge between the two towns has been dismantled. What I found curious was that police cars were going in both directions from the jurisdictions of different police forces and it seemed utterly normal.

As an island nation we do not have a sense of that and, as yet, we do not have the degree of compatibility that exists with other EU members, especially in the central European landmass. The wider debate we need to have must be informed by matters such as that, especially in the context of the aftermath of the referendum on the Lisbon treaty. Without that sense of informed debate, we will repeatedly fall victim to the type of prejudice and misinformation that has characterised the recent debate in this country.

  [84]12 o’clock

I agree with the previous speaker that we should seek greater debate and more information on this area. What is being put forward today is interesting in that it is about the shared use of information. If we had greater detail to examine we would ask about the safeguards, the subsequent use of the information and the limited form in which it should be used. What is being proposed, especially in respect of the financial matters and payment orders, is less of an opt-out for people who wish to leave a jurisdiction without living up to their financial and commercial responsibilities. People have been guilty of this in the past in this country.

It is also a useful addition to the Hague process in terms of many legal orders that have emanated from the European Union in recent years and which we are adopting slowly by resolutions in both Houses. On those grounds, I welcome what is proposed and I accept there is a need for wider and more informed debate in these areas. I look forward to our total system of policing and our judicial process being better practised as a result of measures such as this.

Minister of State at the Department of the Environment, Heritage and Local Government (Deputy Michael Finneran): Information on Michael Finneran Zoom on Michael Finneran I thank the Members of the House for their supportive comments regarding the motion. As Senator Regan said, to a great extent it is an innocent proposal that is about having a flow of information between member states and about the whole area of judicial co-operation. That is what is involved. As to why the motion is put forward at this time, we had the 2001 decision and technical amendments to that are now being brought forward. That must be taken into consideration as well.

Senator Denis O’Donovan asked about the contact point in this country, and that is the Courts Service. I thank Senator Bacik for her comments. The value of the network’s website is precisely the kind of practical tool that will be available regarding the flow of information in the civil area. As Senator Boyle said, by and large we are talking about civil and commercial cases and people living up to their payment responsibilities across the EU, whether these concern maintenance or other kinds of payment. This is a practical approach to the matter. Discussion is not complete and there may be variation as it goes on. Ireland is party to the decision already and we will now become party to the amended decision. I welcome the support of the House on the matter.

Question put and agreed to.

Last Updated: 21/04/2015 12:16:23 First Page Previous Page Page of 12 Next Page Last Page