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SELECT COMMITTEE ON FINANCE AND THE PUBLIC SERVICE debate -
Thursday, 14 Dec 2000

Vol. 3 No. 12

Customs and Excise (Mutual Assistance) Bill, 2000: Committee Stage.

Sections 1 to 9, inclusive, agreed to.
SECTION 10.

I move amendment No. 1:

In page 9, before line 1, to insert the following subsection:

"(1) The Minister for Foreign Affairs shall, as soon as may be after the commencement of this section, make a declaration pursuant to Article 2 of the 1996 Protocol specifying that paragraph (2)(b) of that Article shall apply in the State, and a declaration pursuant to Article 26(4) of the Customs Co-operation Convention specifying that paragraph (5)(b) of that Article shall apply in the State, and the subsequent provisions of this section shall have effect accordingly.”.

On the 1996 Protocol to the CIS Convention on Article 26 of the Customs Co-operation Convention under which the Court of Justice of the European Community may give jurisdiction to give preliminary rulings on the interpretation of both conventions, these provisions allow member states to accept such jurisdiction by making a declaration which may specify that such jurisdiction will be in accordance with either Paragraph 2(a) or 2(b) of the protocol and with either Article 26(5)(a) or 26(5)(b) of the convention. For either reference, I will refer to just paragraphs (a) and (b) in respect of both instruments.

It is important to highlight the difference between paragraphs (a) and (b). Paragraph (a) provides that only those courts or tribunals of the member states concerned against whose decisions there is no judicial remedy under national law may request the Court of Justice of the European Community to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of the conventions, if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment. Paragraph (b) provides that any court or tribunal of the member states concerned may request the Court of Justice of the European Community on a question raised in a case pending before it and concerning the interpretation of the conventions, if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment.

The difference, therefore, is that where a state opts for paragraph (a) only those of its courts or tribunals against whose decisions there is no judicial remedy under national law may request such rulings. Where it opts for paragraph (b), any of its courts or tribunals may make such a request. Ireland made a declaration in 1996 and 1998 when agreeing to this protocol on the convention, respectively, that paragraph (a) of each, and not paragraph (b), would apply. The wording in section 10 of the Bill reflects this.

For practical purposes this means that only the Supreme Court may seek a preliminary ruling. Under paragraph (a) in both cases, in view of the serious difficulties which could arise under our legal system if criminal trials had to be suspended for lengthy periods while rulings were obtained from the Court of Justice of the European Community, the difficulties would be particularly serious in cases of jury trials. In other words, we want to ensure in so far as we can that there will be as little disruption as possible to the progress which has commenced. I am sure all members will agree this is a desirable objective. It is important that I point out clearly that citizens’ rights are not infringed by adoption of paragraph (a) rather than paragraph (b). The option of taking a case through the national courts is available at all times.

For these reasons, Ireland exercised a similar option regarding the other conventions involving criminal matters, for example, the convention on the protection of the European Community's interest and the Europol Convention. However, this Bill contains one important difference to the earlier conventions in that section 10 provides that the decision to adopt paragraph (a) in both instruments may be reversed simply by Government order. Such a step could be contemplated in the event of a fundamental difficulty arising. This is a more progressive approach than that adopted heretofore whereby amending legislation would have been necessary to achieve the same effect.

For the reasons I have outlined, I am not in a position to accept the amendment. I trust Deputy McDowell understands my position.

I understand that thinking. However, if we provide that only the Supreme Court can seek such clarification it is extremely unlikely to happen. It will not happen frequently.

I cannot predict what the courts may or may not do. One hopes the capacity to deal with these lies within our own jurisdiction. Only in very rare and exceptional cases would the Supreme Court feel it necessary to refer the matter to the European Court of Justice, but that may happen.

I presume any clarification sought of the interpretation of the convention would be binding throughout the member states that subscribe to it. We are bound by the general jurisprudence which develops around the convention.

Absolutely. There is no question about that.

Amendment, by leave, withdrawn.
Section agreed to.
Sections 11 and 12 agreed to.
First to Tenth Schedules, inclusive, agreed to.
Title agreed to.

That concludes the consideration of the Bill.

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