On behalf of the Minister for Justice, Equality and Law Reform, I thank the committee for making the necessary time available so that these proposals can be debated and discussed in the context of the Oireachtas scrutiny which is mandated by Article 29.4.6° of Bunreacht na hÉireann. By now, committee members will be very familiar with this procedure, as similar motions have come before the committee for approval on numerous occasions in the past. On previous occasions Deputies and Senators have made very useful observations on the proposals which have been brought before them. I look forward to hearing the comments of those who contribute to the debate today.
There are two proposals before us on this occasion. Those proposals are very similar in their aim, which is to devise a procedure which will enable member states to enter into bilateral agreements with third countries where those agreements cover certain sectors within the civil justice area. At present, because only the European Community, rather than the member states, is competent to act in the area covered by the proposals, member states are precluded from entering into such agreements. The two proposals are presented separately as differing voting regimes will apply. One proposal deals with specific areas of family law and will be adopted by unanimity in the Council, in consultation with the European Parliament. The other proposal deals with applicable law issues in relation to both contractual and non-contractual obligations and will be adopted by qualified majority voting in co-decision with the European Parliament.
I referred earlier to the existence of exclusive Community competence in the areas covered by the proposals. At present, where there is such competence in relation to a particular subject matter, the freedom of individual member states to enter into bilateral agreements covering that subject matter is severely curtailed. This is giving rise to difficulties for those member states which, for reasons of history and politics, have an extensive network of such agreements.
From an Irish perspective, the mechanism offered by the proposals is unlikely to be availed of in the near future as our preference hitherto has been to operate within a multilateral framework. However, if we were to engage in such agreements at a future date, it would be necessary for us to opt into one or both of the proposals now on the table. Consequently, I am of the view that it is desirable that Ireland opts into the adoption and implementation of the proposals at this stage, in order to maximise our ability to influence the shape of the outcome of negotiations.
The proposals themselves, as I have already explained, are identical in substance. The objective of the proposals is to establish a procedure which allows an assessment to be made as to whether there is or is not a sufficient Community interest in the conclusion of proposed bilateral agreements with third countries in certain matters concerning judicial co-operation in civil and commercial matters. This is relevant only in matters which fall under the exclusive competence of the Community. In the absence of Community interest, member states may be authorised to conclude these agreements with third countries. I should add that, in this context, the term "Community interest" has a rather technical meaning. It does not mean a disinclination on the part of the Community to have an agreement with the third country in question. Rather, it relates to whether or not the conclusion of the agreement would impact, in an inappropriate manner, on the existing body of Community law.
In general terms, it is proposed that the member state which wishes to enter into a bilateral agreement would notify the Commission of its intention to undertake negotiations on a new agreement. Notification would also be relevant where there is a wish to amend an existing agreement. If the Community has already concluded an agreement on the same subject matter with the third country concerned or if such an agreement is anticipated, the member state is not allowed to negotiate or conclude the agreement with that third country.
Where these constraints do not exist, the Commission may grant authorisation, provided that two conditions are met. The first condition is that the member state concerned has demonstrated that it has a specific interest in concluding an agreement with the third country. The second is that the Commission determines that the proposed agreement is of limited impact on the uniform and consistent application of Community rules and on the proper functioning of the system established by those rules.
Before finalising the agreement, the member state concerned must notify the Commission of the outcome of the negotiations. The Commission will assess, in particular, whether and to what extent the proposed agreement is likely to affect the body of Community law in force. If the Commission's evaluation is positive, it will give its authorisation. Otherwise, the member state concerned will not be authorised to proceed with the agreement.
The proposals also contain transitional provisions which are to be applied in cases where, at the time of the entry into force of the regulations, the member state concerned has already started negotiations with the third country or has already concluded them, but has not yet given its consent to be bound by the agreement.
Because the authorisation to member states derogates from the rule that the Community is exclusively competent to conclude international agreements on these matters, the European Commission has taken the view that the procedure must be regarded as an exceptional measure and must be limited in scope and in time. For that reason the proposals also provide for the inclusion in the bilateral agreements of what is known as a sunset clause to limit the validity in time of the agreements concluded by the member states until the point when the Community concludes an agreement on the same subject matters with the third country concerned. Furthermore, it is proposed that application of the regulations be limited to 31 December 2014.
It is the Government's view that it is important that Ireland responds positively to the making of these proposals by exercising our right to opt into all of the negotiations from an early stage. On behalf of the Minister, I hope the committee will support this approach. I need hardly add that any points raised by members of the committee on the current draft proposals will be noted and will be taken into account during the negotiation process. I look forward to members' comments and questions.
