I thank the joint committee for making the necessary time available to debate these important instruments in the context of the Oireachtas scrutiny mandated by Article 29.4.6° of Bunreacht na hÉireann. Although the committee has dealt with 20 instruments in the civil law area, I wish to recall that under Article 3 of the Fourth Protocol of the Treaty of Amsterdam, we have three months from the date a measure is presented pursuant to Title IV of the treaty establishing the European Community to notify the President of the Council of our wish to take part in the adoption and application of any proposed measure.
The positive and timely exercise of the opt-in option is critical to our ability to influence the shape of future negotiations. It is seldom that everything in a Commission proposal accords fully with our aspirations and ideas but vigorous and effective participation in the negotiating process is the best way to secure the desired outcome. This frequently involves making common cause with other like-minded member states to maximise support for particular policy positions. Contacts of this nature are an essential aspect of the negotiation dynamic. By exercising our opt-in rights we make it clear that we are active and committed players in the EU legislative process.
All of the substantive instruments before the committee are provided for in the Hague programme on strengthening freedom, security and justice in the European Union, which was endorsed by the European Council in 2004. A timetable for the presentation of these instruments was set down in the subsequent action plan which is intended to translate the Hague programme into specific and concrete measures. That timetable has been adhered to. Both the Hague programme and the action plan emphasise the importance that should attach to the broad area of civil law in light of its potential to impact on the daily lives of ordinary citizens. Emphasis is also placed on practical aspects of co-operation which aim to simplify the procedures for obtaining court judgments in other member states and to ensure that such judgments, once obtained, can be recognised and enforced throughout the EU with a minimum of formality and cost.
Members will undoubtedly have noticed that the proposals under discussion are somewhat diverse in nature. In order to assist discussion, I will briefly outline the background to each of them in turn.
The first proposal concerns the accession of the European Community to the Hague Conference on Private International Law. The Hague Conference has been a permanent intergovernmental organisation since 1955, although it first met in 1893. Its key objective is the progressive unification of the rules of private international law. In essence, this is that part of the law which comes into operation when a court is called upon to determine a case that involves a foreign element. Typically, this will arise where the parties to a case are resident in different countries. It will also arise where a case involves property which is located in another country. The conference works towards its objective by facilitating the drafting and negotiation of international conventions and also by monitoring the practical operation of such conventions. To date, some 37 conventions have been adopted and these range across a wide variety of subject matter such as child abduction, the service of documents, financial securities and choice of court agreements. A total of 65 states are members of the conference and this includes all member states of the European Union.
It is not surprising that in recent years there has been an increasing overlap between the work of the conference and that which is ongoing within the EU in a variety of fields. Consequently, the Union, albeit in an observer capacity, has been playing an active role in the conference. There is a general consensus, on the part of both the Union and the Hague Conference members, that the interests of the conference would be best served if its relationship with the Union were to be placed on a more formal footing. This consensus has resulted in changes being proposed to the statute of the conference which will, in the event of those changes being approved, enable the Union to accede to the conference. Hitherto, only individual states have been able to become members of the conference.
This willingness to modify the statute, which has remained unchanged since 1955, is seen as an important acknowledgement of the role which the Union, via its member states, has in respect of the work of the conference. For the changes in the statute to be effective, it is necessary that they be approved by two thirds of the Hague member states. A voting process is under way and it is envisaged that the outcome of this will be known by the end of March. Assuming a favourable outcome to the vote, a formal decision to admit the Union to the conference could well be taken in July.
The accession decision before the committee was presented towards the end of last year in order to ensure that in the event of the statute being amended, the Union's instrument of accession can be deposited as soon as is practicable. That decision requires the assent of the European Parliament and will be adopted within the framework of the Justice and Home Affairs Council. There are no reasons that we should decline to participate in the decision which has been presented. Furthermore, in its role as a member of the Hague Conference, Ireland is, in any event, being called upon to vote in respect of the statute changes being proposed in order to facilitate Union accession. The second item for consideration by the committee concerns a proposal for a regulation on the law applicable to contractual obligations, more commonly referred to as Rome 1. This proposed regulation arises in the context of a general programme of measures in the field of judicial co-operation in civil matters having cross-border implications and which are necessary for the proper functioning of the internal market. Its essential purpose is to modernise certain aspects of the current Rome Convention, which is an intergovernmental agreement, and, in the context of that modernisation, to transform it into a Community instrument.
Like the convention from which it takes its inspiration, the proposed regulation sets out rules that aim to determine which country's substantive law is to be applied by a court to contractual obligations in any situation involving a choice between the laws of different countries. Its presentation is a further step in developing a more coherent body of private international law rules within the Community on civil and commercial matters. That process is already well advanced with the adoption of the Brussels 1 regulation in 2000 which deals with jurisdiction matters and the pending adoption of the proposed Rome 2 regulation, which concerns the law applicable to non-contractual obligations.
As regards the Rome Convention which is the precursor to this proposal, its ratification by Ireland was facilitated by the Contractual Obligations (Applicable Law) Act 1991. That Act also enabled Ireland to ratify a 1984 convention which provided for the accession of Greece to the Rome Convention. Ireland has signed but has not yet ratified the accession conventions of subsequent member states, including those of the ten new member states during our EU Presidency in April 2004. Should the proposed new regulation be adopted, it would of course be directly applicable and would not require primary legislation. From contacts with other Departments and legal sources, my Department is not aware of any particular impacts or difficulties since the 1991 Act came into force.
The purpose of the Rome Convention was to have uniform choice-of-law rules on contracts, which would govern both the member states' relations inter se and relations with non-Community countries. The main benefit of the convention was that it raised the level of legal certainty in contractual cases involving an international element by making it easier to predict the law which would be applied to a case, thereby reducing the level of forum shopping in such cases.
The basic rule of the proposed regulation is to be found in Article 3 and is in similar terms to that contained in the convention. It is that, subject to certain qualifications, parties are free to select the applicable law to govern a contract. In the absence of an express or implied choice, Article 4 of the proposed regulation provides that the contract shall be governed by the law of the country with which it is most closely connected.
This proposal has been preceded by extensive consultations undertaken by the Commission involving government, business, consumer and other interests. Those consultations suggest there is significant support for the conversion of the Rome Convention into a regulation. The revised provisions modernising some of the rules will provide for improved clarity and precision, thus boosting certainty as to the law without introducing new elements which would substantially change the existing legal situation.
No change in substantive Irish law in the area of contractual obligations will be effected through this draft regulation. We should be clear that it deals only with the choice of applicable law where a contractual dispute has arisen between parties, and both domestic and foreign elements are involved. Furthermore, given that the proposed regulation touches upon a broad range of business, consumer and employment issues, my Department will remain in close contact with the Department of Enterprise, Trade and Employment during the future negotiations on this instrument. The proposed regulation is subject to qualified majority voting. It is also subject to co-decision with the European Parliament.
The third item for consideration is a proposed regulation on family maintenance matters which have a cross-member state dimension. The proposed regulation contains common rules on jurisdiction, applicable law, recognition and enforcement of decisions, and co-operation in matters relating to maintenance obligations. The purpose of the regulation is to eliminate obstacles which prevent the recovery of maintenance across member state borders within the European Union. It does not alter the way in which our courts deal with purely domestic Irish maintenance obligations. The entitlement of the Irish courts to make orders regarding the maintenance rights of dependent spouses and children protected under Irish law would not be affected in any way by the new proposals.
The growing frequency of couples separating, combined with greater mobility of people within the EU, has resulted in more cross-border maintenance claims and disputes. Common minimum standards are proposed to apply to procedures relating to maintenance which will build confidence between the member states and allow for mutual recognition and enforcement of maintenance orders.
The regulation aims to enable an individual seeking maintenance to obtain easily, quickly and generally free of charge, an enforcement order capable of circulation without obstacles in the European Union. It builds on and replaces the common rules for the recovery of maintenance already in place in the Brussels 1 regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to which I referred earlier. The key jurisdiction rule in that regulation is that a case is usually brought in the member state where a person is domiciled. However, there are exceptions to this rule and in matters concerning maintenance obligations, there is a special rule whereby the case can be brought in the member state where the maintenance creditor is domiciled or habitually resident. This protection for the weaker party is continued in the proposed regulation.
In Ireland, we already have in place mechanisms to deal with the enforcement of maintenance obligations which have an international dimension. The 1994 Maintenance Act provided for the establishment of a central authority to process maintenance orders received from abroad and to assist in the enforcement of Irish maintenance orders in other jurisdictions. This Act gives effect to the 1990 Rome and 1956 New York conventions on maintenance recovery. Both of these conventions require the establishment of a central transmitting and receiving agency to process requests for the enforcement of foreign maintenance orders. My Department's central authority for maintenance recovery acts as this central transmitting and receiving agency. However, it does not currently, nor will it, play a role in domestic maintenance cases.
The proposed regulation contains a number of provisions providing for a range of co-operation activities among designated central authorities in all of the member states and I am sure that the experience gained hitherto by the Irish central authority under existing conventions will be very useful in terms of the future activity now being proposed. One final aspect of this proposal to which I should make reference concerns the fact, apparent from the somewhat unwieldy title of the instrument, that it does contain provisions dealing with applicable law. This is an aspect of the proposal to which particular attention will be paid during the negotiation process.
The fourth proposal is a communication from the European Commission which calls on the Council to decide that measures relating to maintenance obligations, which would include the specific proposal just outlined, be adopted by the procedure laid down in Article 251 of the treaty establishing the European Community. Where measures are adopted on foot of that article, the co-decision procedure with the European Parliament applies as does qualified majority voting. This is the procedure which generally applies to measures within the field of judicial co-operation in civil matters. However, by way of exception, measures relating to family law are adopted unanimously by Council in consultation with Parliament.
The Commission's view is that maintenance obligations are hybrid by nature, in that they are a family matter in origin but a pecuniary matter in implementation. For this reason the Commission considers that maintenance debts should be viewed like any other civil claim and its proposal to alter the legal basis for adoption of EU maintenance measures reflects this view. In this jurisdiction, maintenance is very much a family law matter and very often is dealt with in the context of divorce or separation proceedings. Under the Constitution and our family law, it is not possible for a court to grant a decree of divorce unless proper provision is made between the spouses. Maintenance cannot be viewed simply as a debt collecting issue but comes within the area of general family law. This is the position I propose taking at Council and know that other member states share this view.
From the brief outline I have given on the proposals before us, the committee will appreciate the significant amount of activity in the civil law area within the Community. The growth of activity reflects a perception that the needs of civil society warrant increasing attention in order that the day-to-day problems which individuals confront in a cross-border context can be addressed fully. These problems arise in business and personal contexts.
Against the background of the instruments with which we are dealing, I reiterate my view that it is important that Ireland respond positively by exercising our right to opt into all of the negotiations from an early stage to be in a position to influence the eventual outcome. I hope the committee will support this approach. I need hardly add that any points raised by members on the draft proposals will be noted and taken into account during the negotiating process. I look forward to comments and questions from members.
