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Dáil Éireann díospóireacht -
Thursday, 24 Jun 1999

Vol. 507 No. 1

Treaty of Amsterdam: Motion.

I move:

That Dáil Éireann approves 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 measures:

– a proposal for a Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (COM (1999) 219 final), and

– a proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children (COM (1999) 220 final),

copies of which proposed measures were laid before Dáil Éireann on 15th June, 1999.

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 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 on 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 on 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, other member states may go ahead with the decision in Council without their participation.

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 arrangements with the United Kingdom.

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 extrajudicial documents, measures aimed at promoting the compatibility of the rules applicable in 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 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.

The consequence of the presentation of these two measures by the European Commission to Council, which took place formally on 26 May 1999, is that if the State wishes to opt into discussions on these instruments from the beginning, we have 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 both Ireland and the United Kingdom have not yet indicated their intention to opt into discussions on these instruments, both texts, which are the subject of the motion before the House, 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 they enter into force for all EU states on a date earlier than would otherwise be the case if national ratification procedures were 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 to improve and speed up the arrangements for the transmission and service of judicial and extrajudicial 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 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 1965. 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 regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and 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 on 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 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 should or should 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 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 Deputies will be aware, on the basis of a series of Bills which have come before the House over the past decade or so, that the State is already a party to 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 converged 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 Convention. The position now is that if any legislation is required, it will only be in respect of the directive 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 these 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 likely to be taken in future in the context of the new Amsterdam Treaty arrangements for civil judicial co-operation 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 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 to opt into the discussions at an early stage. This 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 the motion to the House.

Last week the House passed a Council of Europe resolution ratifying Ireland's participation in GRECO, the group of states against corruption. Members made the valid point that often there is inadequate advance notice and that we are generally expected to rubber stamp agreements, arrangements or protocols negotiated over our heads. We are in exactly the same situation today.

Last Wednesday we were circulated with a one and a half page briefing note telling us that at the Justice and Home Affairs Council meeting on 27 and 28 May the Commission "are to present two new proposals for legal instruments under Article 65 of the Treaty of Amsterdam". Sketchy as the explanatory memorandum is, it seems clear that the note had been lying in some drawer of a desk in the Department of Justice, Equality and Law Reform since before the Justice and Home Affairs Council meeting, yet the spokespersons who were to deal with it on behalf of Opposition parties only received it through their Whips' meetings a fortnight after the Minister and his colleagues had dealt with the matter at European level. That is wrong.

Notwithstanding the deadline of the end of August for Ireland's opting into the new arrangement, why were we not notified in advance instead of being told after the event and then being expected to give our imprimatur after a mere one hour debate today. It is not only the right of Parliament to know and debate in advance new arrangements into which Ireland is opting that is being repeatedly flouted, it is the obvious need for a thorough knowledge of what the new arrangements involve, what can be expected from them and to what exactly we are expected to give our imprimatur after a mere one hour's debate.

Every new directive, regulation or protocol brings with it legal and administrative obligations. Instead of skimming over the surface we should be debating in detail and thoroughly analysing these obligations so that we will be fully conversant with what is involved.

In this instance we are endorsing two new arrangements for the service of judicial and extrajudicial documents in civil and commercial matters and the jurisdiction, recognition and enforcement of judgments in matrimonial, divorce, legal separation and annulment matters and matters of parental responsibility. It is obvious that there are implications for a substantial number of people including litigants, applicants and their legal representatives. However, instead of a proper memorandum setting out in clear detail what exactly is involved, all we have been given is an inadequate and stale explanatory note which was issued in advance of the Council of Ministers meeting and the Minister of State's brief oral presentation.

I would like the Minister of State to indicate in his reply how the new arrangements improve existing arrangements for the service of documents abroad in civil and commercial pro ceedings. The Convention on the Service Abroad of Judicial and Extrajudicial Documents was adopted at the 10th session of the Hague Convention on Private and International Law in 1964. Each state had to nominate a central authority to arrange for the service of documents coming from other contracting states. That authority must serve or arrange to have served documents sent to it by the authority or judicial officer competent under the law of the state in which the documents originated. The central authority may require the document to be translated into the official language or one of the official languages of the state addressed.

Will the Minister of State indicate if this is a requirement in the new arrangements before the House? Can the official authority require that the document to be served be translated, for example, into Irish, our first language? The Hague Convention is also quite specific in prescribing the method of service of documents. Will the Minister of State indicate what method of service is prescribed in the new arrangements under the Amsterdam Treaty? To an extent, he spelt these out in his contribution. For example, are the existing arrangements for the service of documents connected with the various domestic courts in this jurisdiction acceptable under the new arrangement?

Under the Hague Convention the person effecting service must provide an affidavit of service verified by notarial certificate. In addition, the Master of the High Court must complete a certificate confirming that the service proved by the affidavit is such as required by Irish law. The Master must then send this to the Department of Foreign Affairs which will transmit it to the requisite court or tribunal.

What protection will the new arrangements provide to protect defendants who may not have received notice of proceedings against them? Under the existing law in this jurisdiction this protection is afforded by the fact that proceedings cannot be legally instituted unless a document is served on the defendant in accordance with the relevant rules of court. If the defendant fails to appear in response to a summons or other originating document, judgment by default may be given against him on proof that the requisite service of the summons has taken place. Is it possible under the new arrangements to obtain a judgment in such circumstances? What will be the precise situation under the new arrangements if a defendant fails to appear? What is the maximum time allowed to enable a defendant to appeal against such judgments?

I welcome the synchronisation and strengthening of mutual arrangements in judicial and legal matters in the civil, commercial, matrimonial and parental spheres. The more harmonisation we have in these areas the better and it is in the interest of the consumer that there be a maximum degree of cohesion, consolidation and interaction between member states. It would, however, have been of considerable assistance if the Law Reform Commission had been requested to carry out a report on the implications arising from the new Council directive and the regulations.

In 1987 the Law Reform Commission completed a valuable report on the Hague Convention on the service abroad of judicial and extrajudicial documents in civil and commercial matters. The commission considered the operation of Irish law at that time and the rules governing the service of judicial and extrajudicial documents for the various domestic courts. It also made a number of extremely important recommendations on how procedures could be improved. The commission looked at the Irish rules in the context of expectations under the Hague Convention and it made 12 recommendations, the first of which was that Ireland should become party to the convention on the service of documents. It went on to set down the kind of structure and framework that Ireland should put in place in order to adapt to the new situation.

Will the Minister of State indicate the reason that no such study was commissioned on this occasion? Will he also indicate the respects in which the new Amsterdam Treaty arrangements differ from or improve on those of the Hague Convention? The Hague Convention has application to contracting countries outside the sphere of the EU, such as the United States. By virtue of the fact that the new arrangements were made under the Amsterdam Treaty, does that mean that the procedures under the Hague Convention which govern the exchange of judicial and extrajudicial documents will be set aside and that our relationship with the US, which has worked well under the convention, will be ruptured or terminated because the new arrangements cater for members contracting within the EU? Will the Hague Convention which has served this country so well since the 1960s be completely obliterated? Will our relationships with the United States and other countries which are contracted to the Hague Convention continue to obtain?

Like Deputy Higgins, I wish to complain about the late arrival of this matter before the House. I only received the background note pertaining to this matter this morning. However, I do not suggest that the Minister of State's staff are at fault. The note to which I refer is undated and it is unusual that a document of this kind would not display an origination date. From the language used in the note, it is clear that it was written at some point in May which means that it has been in existence for a month or more.

I accept that the issues with which we are dealing are not monumental in their impact on Irish society. Nevertheless, issues which will arise as a result of this new procedure will have a serious impact on how the Garda Síochána, for example, does its business. We are dealing with issues that the Government of which I was a member felt it could not fully enter into because of the existence of the free travel area between Britain and Ireland and because Britain was not part of the Schengen Pillar. We need to tighten up on how we deal with these issues. In that regard, will the Minister of State indicate whether this matter has been referred in advance to the European Affairs committee? That committee has an obligation to examine and to give the House an opinion on European Union instruments. Because of the way European Union material is produced, the committee tends to deal with them after the fact rather than before they become directives or regulations. There is no reference in the Minister of State's speech to that effect and that is a serious gap in regard to how these matters should be dealt with.

We are dealing with this issue because of a political debate around the Amsterdam Treaty and the wording it was proposed to put into the Constitution, which would have left it to the Government to decide this issue. I was then Leader of Democratic Left and my party objected to that process. The upshot of that was that the Government of the day agreed to amend the wording it proposed to put to the people to the effect that it now reads that the State may exercise the option or discretion under Articles 1.11, 2.5 and 2.1.5 of the treaty referred to in subsection (5) of this section and the second and fourth protocols set out in the said treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas. That was an important overview by this House of matters being agreed between the Government of the day and the European institutions. I draw attention to this because it is important that this House has that overview of these decisions, given that a major complaint from many people outside this House is that the Dáil and Seanad are no longer relevant when it comes to European decision-making.

While the items with which we are dealing are not monumental in terms of the impact they will have on Irish society, they are important in themselves. They deal with the livelihoods of people who need to have matrimonial difficulties resolved as quickly as possible. The procedure is important because it brings this House back into the centre of decision-making on issues that were not decided by the then Government in the negotiations on the Amsterdam Treaty or by the succeeding Government, which is currently in power. As circumstances arise, decisions will be made on foot of the protocol and it is important this House has an opportunity to express an opinion on those matters as they are being decided. It is, therefore, essential that the issues are brought before us in sufficient time to allow us examine them. The mere fact that we have to deal with this issue because of a political debate about the nature of an amendment which was put to the people is an example of how Opposition parties can impact on the change in policy of a Government. The role of Opposition is essential.

Given the limited time we have been allowed to debate these issues and the short notice we received about them, we do not really have an opportunity to make significant contributions on them. I urge the Minister to bring these issues to Government and to insist, as we do, that adequate time is given to consider them and that the European Affairs committee is given a chance to examine them in advance of them being brought before the House to ensure they are properly considered. The issues have been outlined and explained by the Minister of State. They relate to the recognition and enforcement of judgments in matrimonial matters and the service of documents. They will have an important impact on the daily lives of many people.

This issue gives us an opportunity to raise the question of the common travel area between Ireland and the UK and the implications that has for the exercise of our policy on immigration. I had occasion to raise in the House last week the case of a Japanese women who came to Ireland to celebrate Bloomsday with her friends. She did not require a visa, as Japanese citizens do not require visas to visit Ireland, but she was refused admission by the immigration authorities. I did not get a satisfactory reply from the Minister as to why this women was refused admission, nor did I get a satisfactory reply on the way in which I, as a public representative, and my staff were dealt with by the immigration authorities, who refused to take calls from my staff on a number of occasions. While the Department of Foreign Affairs provided us with additional telephone numbers, there was no response from the numbers provided by the Department for the immigration office in Dublin Airport.

It seems, effectively, that our immigration policy is being decided by the UK because the person concerned had been refused permission to live in the UK, for reasons unknown to me. As I understand it, this is an upstanding Japanese citizen. She is not without means and has a good job in Japan. She was refused permission to visit Ireland to enjoy the Bloomsday festival. We cannot continue to allow our decisions on who should be granted permission to come into this State to be dictated by the UK immigration authorities. That matter needs to be seriously addressed.

We also need to seriously address the manner in which our immigration authorities and the guidelines that govern them operate. There seems to be a gross lack of transparency in that regard. The Japanese woman was not informed of her legal rights. When I arranged for a solicitor to make contact with the immigration authorities, he was told there was nothing he could do as a decision had already been made. We need to address this matter. It impinges, however indirectly, on the procedure we operate here in terms of this House overviewing the manner in which we buy into the agreements made at European level.

I welcome this important procedure, but it should not be treated in a cavalier manner by the Government. We should be given adequate time to address the issues and to get full information on the background to what is being proposed. The issues should have been teased out in advance by the European Affairs committee. That committee should submit a report on these matters to the House. I thank the Minister for bringing forward this motion and I hope he will bear in mind the serious and constructive criticism.

I agree with Deputy De Rossa that it is outrageous that we are rubber-stamping this measure without knowing what it is about. This will have implications in the future. When I was canvassing in the recent European elections an issue which arose at least a hundred times was the way power in Brussels is affecting people's lives in Ireland, particularly in rural areas. Decisions are being taken in Brussels by people who do not understand what is happening on the ground. It is wrong that we are discussing a protocol on which we have not been briefed and which will have major implications for many professional people here.

People accept and appreciate that the EU has been good to Ireland. I take this opportunity to congratulate Deputy De Rossa on his election to the European Parliament. I wish him well and am delighted the people of Dublin chose him. He has great experience, I respect him a great deal and he will do a good job for Dublin and Ireland. I am sure he will express the same view as I have, which is that the EU must be more user friendly to people here. Decisions such as that being taken today cannot be taken without the Government and the people knowing what effect it will have on their lives. That was the big issue which arose during the European elections.

Recently I dealt with a case of a family who were going on holiday. The person who was to take over the father's job had a stroke the night before they left. He could not go and a passport was needed for another child. The child had to be woken at midnight to have her photograph taken. The mother and child then had to appear in the Department of Foreign Affairs on Saturday morning. As regards the official with whom I dealt and the way he treated me on the telephone, I will take that up in a private capacity. Passports should no longer be needed to travel in the EU – we are either in the EU or not. Perhaps Deputy De Rossa will raise this issue in the European Parliament. There has been a great deal of criticism of the UK in the past, yet anyone can travel there without a passport. It is time that European citizens should be allowed move freely within member states without a passport. I hope this will be taken up at European level.

The Government is due to announce the new EU Commissioner this week and I wish whoever that is well. It has taken the Taoiseach some time to make that decision – he must be having difficulty in his ranks or with the Tánaiste. We do not know who the Commissioner will be, it could be the Minister for Health and Children, Deputy Cowen or the former Deputy, Michael McDowell. However, I take this opportunity as a Mayo man to congratulate Pádraig Flynn on the job he did as EU Commissioner. The House will rise next week and we should have a new Commissioner by then. Mr. Flynn was an excellent EU Commissioner and did Mayo people proud. I wish him well in his retirement. I know he has other difficulties but they will be dealt with in another forum. I am sure I will see plenty of him at the next general election as he will have more time to canvass for his daughter, Deputy Cooper-Flynn. He was successful in local elections, by-elections and European elections. I hope he has a happy retirement. He did a good job in public life. We can be critical of public representatives and this is an opportunity to be positive.

I do not agree with rubber-stamping this measure. The Department should be more informative. We should know exactly what decisions are being taken and their implications for the country.

I thank Deputies who contributed to the debate on this motion. It is important we exercise this option provided by the protocol within the three month period which is stipulated so the State can play a full and constructive part in the development and finalisation of the texts of both instruments before they are presented to the Council for approval.

There is some misunderstanding about what exactly we are doing. Deputies Jim Higgins and De Rossa are confused about the way in which these motions have come before the House. They are being most unfair as regards this misunderstanding. The Commission formally presented the texts to the Council on 26 May and only then was it possible to initiate the presentation of the motions to the House. This was done at the first possible opportunity. The proposal before the House relates to exercising the right to opt into the proposals. The House is not being asked to approve the substance of the instruments, which has yet to be agreed by the relevant working party. It is possible that the content of the service directives may change.

Deputy Jim Higgins raised a number of interesting issues including language and the protection of dependants' rights. All I can say at this preliminary stage is that these matters will be teased out in the course of negotiations. The Deputy inquired about the relationship between the Hague Convention and this directive. The Hague Convention will continue to operate in countries which are not members of the EU. In broad terms, the directive does not differ radically from the Hague Convention. Two main points of difference concern greater decentralisation which it is hoped will lead to greater efficiency, and provisions allowing for modern means of communication such as e-mail, fax etc. to be used in the service of the documents.

Deputy De Rossa spoke about the important exercise in democracy which the procedure before the House represents. This is the first time this procedure has been used and there may well be some teething problems. However, as we all become familiar with the procedures I am sure many of those problems will be ironed out. I noted the Deputy's comments on the common travel area, with particular emphasis on immigration. It is true that the Amsterdam Treaty contains a large number of significant provisions in relation to co-operation on justice and home affairs. In the case of Title IV, the new treaty provisions not only deal with the issue before the House today, namely judicial co-operation in civil matters, but also deal with visas, asylum, emigration and other policies relating to the free movement of persons. However, these are complicated areas which do not come within the scope of today's motion. Therefore, I do not intend to get involved in the wider issues.

This is an important motion which was taken at the earliest opportunity. There is much to play for, which will be the subject of negotiations and discussions at the Council. We can be absolutely confident of the ability of our officials to ensure our interests are looked after in that respect. This motion was brought before the House at the earliest opportunity and every effort was made, because of the short timescale, to facilitate Opposition Deputies. As I said, if it had been possible to give a longer period, there would have been no difficulty in so doing.

Question put and agreed to.
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