The need for this motion arises because of the eighteenth amendment to the Constitution which, following its adoption in a referendum, enabled Ireland to ratify the Amsterdam Treaty and also allowed the State to exercise certain options contained in that treaty, including the option in the Fourth Protocol. Under the terms of the constitutional amendment, such exercise is subject to the prior approval of both Houses of the Oireachtas.
The Treaty of Amsterdam, which came into operation on 1 May 1999, has added to the EC Treaty a new Title IV which deals with visas, asylum, immigration and other policies related to the free movement of persons, including judicial co-operation in civil matters.
The Fourth Protocol to the Amsterdam Treaty basically establishes the positions of Ireland and the United Kingdom in relation to the issues arising under Title IV of the treaty. Its effect is to exempt both countries from all the provisions of Title IV, but to permit either or both countries to opt in to particular measures under specified terms and conditions set out in the protocol.
Under Article 3 of that Protocol, the State has three months from the date a proposal or initiative is presented to the Council to notify our wish to take part in the adoption and application of any such proposed measure. We may also accept a measure any time after it has been adopted. For a transitional period of five years, the overwhelming majority of decisions in relation to measures tabled must be on the basis of unanimity but, under the terms of the protocol, if, after a reasonable period of time, the proposed measure cannot be adopted with the United Kingdom or Ireland taking part, then the other member states may go ahead with the decision in Council without their participation.
Under Article 65 of the Amsterdam Treaty, judicial co-operation in civil matters includes measures aimed at improving and simplifying the system for cross-border service of judicial and extra-judicial documents, measures aimed at promoting the compatibility of the rules applicable in the EU member states concerning the conflict of laws and of jurisdiction and initiatives aimed generally at eliminating obstacles to the good functioning of civil proceedings. In consequence, such measures, which until now were dealt with under the Third Pillar of the Maastricht Treaty, which was largely intergovernmental in nature, are now dealt with under the First Pillar. In effect, this means that the process of "communitarising" these matters has begun and one element in this process is that member states and the Community will share the right of initiative in this area for a transitional period of five years.
I would point out that the conference which adopted the Amsterdam Treaty amendments took note of a declaration by Ireland that it intended to exercise its right under Article 3 of the Protocol to take part in the adoption of measures pursuant to Title IV of the EC Treaty to the maximum extent compatible with the maintenance of the common travel area arrange ments with the United Kingdom. The consequence of the presentation of these two measures by the European Commission to the Council, which took place formally on 26 May 1999, is that if the State wishes to opt in to discussions on these instruments from the beginning, it has until the end of August to inform the President of the Council of our intentions. Failure to opt in at this time would not prevent us from participating in relevant meetings of the Council working parties which will discuss these proposals. However, we would not be able to opt in until such time as the negotiations have been concluded and the measures adopted, and our ability to influence the outcome of the discussions would be correspondingly limited.
Apart from some amendments to take account of the fact that Ireland and the United Kingdom have not yet indicated their intention to opt in to discussions on these instruments, both texts, which are the subject of the motion before the House today, essentially involve the transposition of the substance of two conventions already agreed by EU member states under the Third Pillar of the treaty of Maastricht. In transposing the texts into Council legal instruments, the Commission wishes to ensure that they enter into force for all EU states on a date earlier than would otherwise be the case if national ratification procedures are involved.
The convention on the service of documents was signed by the State when it was opened for signature by EU states at the Justice and Home Affairs Council on 26 May 1997. The aim of the proposed directive presented by the Commission, like the earlier convention, is both to improve and speed up the present arrangements for the transmission and service of judicial and extra-judicial documents within the European Union. It is concerned with civil and commercial cases where an action is being taken in one member state against a party in another member state.
The directive provides for the rapid transmission of documents, including the use of modern systems of communication, to minimise delay. As a general principle, the directive is geared towards developing decentralised systems for the service of documents within the EU. It also contains requirements relating to translations of documentation, including a provision allowing a recipient to refuse to accept a document if it is not in a language that he or she understands.
The existing arrangements for service of documents are contained in the 1965 Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil and Commercial Matters. The Hague Convention provides for the establishment in each state of a central authority for receiving documents and sending them to the appropriate persons for service. In Ireland, the central authority is the Master of the High Court. It is envisaged that in so far as EU states are concerned, the EU directive will replace the Hague Convention.
The second EU instrument, namely the regu lation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children, basically mirrors a convention, generally referred to as the "Brussels II" Convention, which was signed by the State when opened for signature at the Justice and Home Affairs Council on 28 May 1998. The proposal for a regulation, and the earlier convention, is concerned with judgments in the area of divorce, legal separation and annulment. It is also concerned with parental responsibility issues arising in the context of such judgments, which are essentially custody and access matters.
At the core of the regulation are rules of direct jurisdiction which will determine which member state's court is competent to rule both on status matters and on related parental responsibility matters. Habitual residence of one or other of the parties will be the primary governing criterion for jurisdiction. Judgments given in accordance with such jurisdiction will be entitled to recognition and, where appropriate, enforcement in all EU member states. In the case of recognition, no special procedure will be required, but it will be open to an interested party to apply to a court for a decision that the judgment be or not be recognised. Recognition can be refused only on very limited grounds, such as public policy and failure to observe due process. However, the test of public policy cannot be used to check whether or not jurisdiction was properly taken by the foreign court. The proposed regulation assumes confidence in the ability of courts to apply the jurisdiction criteria correctly.
Many Senators will already be aware, on the basis of a series of Bills which have already come before the House over the past decade or so, that the State is already a party to the Brussels Convention – that is to say, the "Brussels I" convention – which provides rules of jurisdiction and procedures for the recognition and enforcement of judgments in civil and commercial matters between EU states. That convention has operated well over the years and has contributed significantly to the operation of the law internationally in a complex area. The new "Brussels II" convention, now to be converted into a regulation, will mirror much of the "Brussels I" convention but will be specific as to matrimonial matters.
Legislation would have been required before the State could ratify both the service of documents and the Brussels II conventions. The position now is that if any legislation is required it will be in respect of the directive only as the regulation, when agreed by Council, will have direct effect in national law and will not require any implementing provisions apart from possible amendments to Rules of Court. Ultimately, this will be a matter for the relevant Rules Committees of the Courts to consider.
Now that they have been presented by the Commission, work on both instruments will be taken forward in a Council working party and the outcome of discussions at working party level will be submitted, in due course, for agreement by the Justice and Home Affairs Council.
These proposals are among a number of EU initiatives which are likely to be taken in the future in the context of the new Amsterdam Treaty arrangements for civil judicial co-operation which are aimed at both simplifying access to justice by EU citizens and eliminating obstacles in general to the efficient functioning of civil proceedings with a cross-border element in the EU. The proposed regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters, in particular, will facilitate widespread recognition for matrimonial judgments which are concerned with annulment, separation and divorce and which are given by a court or tribunal in an EU member state. This will introduce an element of legal certainty into this complex area of the law. The proposed directive on the service of legal documents will also be of benefit to cross-border litigants due to the anticipated speeding up of service arrangements, resulting in savings both in time and costs for those involved in litigation with an intra-EU dimension.
The Government is of the view that it is important that Ireland respond positively to the tabling of both these proposals by exercising the right which we have to opt into the discussions at an early stage. This, as I have already indicated, will enable the State to play a full and constructive part in the negotiations in the relevant Council working party which are due to commence in the coming months. I commend this motion to the House.
