I thank the Senator for moving the motion. The motion relates to the exercise by the State of an option, which we must have, to take part in the adoption and application of the proposals for a Council regulation creating a European enforcement order for uncontested claims and a Council regulation concerning juris diction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. These measures were presented by the European Commission on 13 May and 15 May last respectively.
Senators will recall that these are measures to which the fourth protocol of the Amsterdam Treaty applies. Under that protocol we have a three month period within which to notify the President of the Council of our intention to opt into discussions from the beginning. Those periods will expire on 14 and 16 August respectively and it is, therefore, essential if we are to opt into the negotiation process leading to those regulations coming into effect that we should signify our consent and obtain the approval of both Houses before the summer recess.
I apologise to Senators who feel they have not received adequate notice of the motion or who would have preferred a longer debate, but the sequence of events which led to this time limit coming into effect was beyond my control. I consider it highly desirable that the Houses of the Oireachtas should have an enhanced role in scrutinising measures such as those before us. I am, therefore, more than willing to facilitate the Houses in looking again at these measures when the negotiations on them have advanced. The modalities for such scrutiny can be worked out later when the Houses of the Oireachtas have organised and established a committee system to give life to the process of parliamentary scrutiny. I want to put on record the Government's firm commitment to giving the Houses a full part in the vital process of democratic accountability in EU matters. When exercising options under the EU treaties, especially options which have a potential constitutional dimension such as this afternoon's business, it is vital that the Houses of the Oireachtas should be fully involved and fully aware of the implications of the proposals.
As part of a new, inclusive approach to EU affairs, the Government is committed to strengthening parliamentary scrutiny both by debates in each House and by ongoing interaction and information at sessions of Oireachtas committees on EU affairs. We will not push far-reaching measures through the adoption and scrutiny process "on the nod". To do so risks fuelling a sense of alienation and hostility based on a public perception of a democratic deficit in Ireland's approach to EU affairs.
Today's debate marks a clear statement by my Department and the Government that we are determined that these matters should be approached in the future on the basis of positive partnership between the Executive and legislative organs of Government established under our Constitution. The particular measures which we are discussing have to be seen against the background of the development at EU level of measures geared towards the enhancement of judicial co-operation in civil matters. The overrid ing aim of this development is that of making access to justice easier for the individual litigant.
In that context, a programme of measures to implement the principle of mutual recognition of decisions in civil and commercial matters was adopted in November 2000 by the Justice and Home Affairs Council. It aims ultimately at the abolition of the current system where, in order for a judgment given in one EU country to be enforced in another, a declaration of enforceability must be first sought from the courts of the country where enforcement is to take place. In very broad terms, what this means is that a judgment obtained in Ireland ultimately could be enforced in Madrid in much the same way as a judgment obtained in Dublin can now be enforced in Donegal. It should be noted that a number of measures which link in with the programme have already been brought to the attention of the Oireachtas and have already been adopted.
The first is the proposed Council regulation for a European Enforcement Order, EEO, for uncontested claims. One of the proposed regulations which we are considering today creates an EEO for uncontested claims. The EEO is intended to facilitate the rapid recovery of outstanding debt which is essential for the proper and effective functioning of the Internal Market.
The proposal focuses on the elimination of intermediate measures which at present are a prerequisite for enforcement in one member state of a judgment that has been obtained in another. The proposal addresses the incongruity of delaying, for administrative reasons only, enforcement of a judgment concerning a claim that has not been disputed. Claims, for the purposes of the proposal as presented, are limited to pecuniary claims for specific amounts, irrespective of the amount at issue. In Irish legal terms that would be called liquidated damages. The term " uncontested claim" is also defined in the proposal.
Before a judgment on such a claim can be enforced it is proposed that it must be the case that either no appeal is possible against the judgment or that the debtor has not made use of the possibility of lodging such an appeal within the time limits for doing so. The text proposes that an enforceable judgment on an uncontested claim must be certified as an EEO at the request of the creditor. For this to happen the claim must meet certain requirements such as no appeal being possible and the documents must have been served on the debtor in such as way as to guarantee a fair trial.
It is proposed that the EEO certificate will contain a transparent and standardised summary of all the facts that characterise and individualise the content of the judgment and which are indispensable for enforcement. The certificate will also contain comprehensive information to the effect that the requirements for eligibility for certification as an EEO have been met.
It is envisaged that an appeal against the grant of a certificate itself will be excluded under this proposal. The reasoning behind this is that if the debtor wants to prevent a EEO certificate from coming into existence, he or she has to contest the claim and thus remove it from the scope of application of this proposal. If the claim remains uncontested, upon application by the creditor, it is up to the court of origin to examine the judgment to ascertain if it fulfils the requirements for certification. In this context, the court will be aware that there will be no possibility to appeal against the resulting decisions.
Before a judgment becomes enforceable, that is, while an appeal is still possible, it is proposed that the judgment may be enforced provisionally. Such an enforcement certificate is reversed if the judgment is overruled on appeal. The system of granting provisional enforceability strikes a delicate balance between the interests of the creditor in swift enforcement and the interest of the debtor in avoiding potentially irreparable damage if the loss incurred due to provisional enforcement cannot be recovered.
It is considered to be a major advantage of the process which is being proposed that certification of a judgment as an EEO is done by the court of origin familiar with the case at issue and the procedural rules that have applied and that no judicial or other authorities of the member state of enforcement need to be involved.
In relation to the proposed Council regulation on judgments in matrimonial matters and in matters of parental responsibility, this proposed regulation is in fact a consolidated text which combines three other proposals which have already been the subject of motions before both Houses. Thus, there is nothing of substance in the scope of the current proposal which was not in those into which we have already opted.
The first such proposal, commonly referred to as the Brussels II regulation, came into force on 1 March 2001 and sets out rules on jurisdiction, recognition and enforcement of judgments on divorce, separation and annulment as well as judgments on parental responsibility for the children of both spouses given on the occasion of such matrimonial proceedings. In July 2000, France presented a proposed regulation aimed at dispensing with the need to go through any specific procedure in the state where enforcement is to take place in the case of a decision on parental responsibility that concerns rights of access to children.
The scope of this initiative was confined to decisions covered by Brussels II. The narrow scope of this proposal led to criticism on the part of many member states, including Ireland. Subsequently, the Justice and Home Affairs Council decided that work on this initiative should be pursued in parallel with the extension of the scope of Brussels II so as to guarantee equality of treatment for all children. This led, in September 2001, to the presentation by the Commission of a further Council regulation dealing with jurisdiction and the recognition and enforcement of judgments on matters of parental responsibility.
This proposed regulation has two elements. First, it takes over, unchanged, the provisions on matrimonial matters from the Brussels II regulation and Brussels II is, in consequence, proposed to be repealed. Second, it integrates into a complete system of rules on parental responsibility the provisions on parental responsibility of Brussels II, the Commission proposal on parental responsibility and the French initiative on rights of access. The Commission's justification for this approach is that having a single instrument in this area will facilitate the application of the law by judges and practitioners and will serve to promote the simplification and coherence of community legislation.
The main provisions which concern parental responsibility are as follows. The regulation is to apply to all civil proceedings relating to parental responsibility taken by the courts and administrative proceedings authorised under national law. The definition of "parental responsibility" is broad and relates to the person and property of the child. In particular, the term includes rights of custody and access. A child shall have the right to maintain contact with both parents, unless this is contrary to his or her interests, and shall have the right to be heard on matters relating to parental responsibility in accordance with his or her age and maturity.
As is the norm in international measures of this kind, jurisdiction is based in the first place on the child's habitual residence, but this is qualified in certain cases. The aim is to attribute jurisdiction in all cases in a way that serves the best interests of the child. In the case of child abduction, jurisdiction will change from the court of the original habitual residence only where all holders of parental responsibility have accepted the new situation or where the child has resided in the new location for at least a year and is settled in his or her new environment. Where this does not happen, the court in the new state must order the child's return. However, in urgent cases, the courts of the state where the child is present will be able to take temporary provisional measures to protect the child, but the final decision on the child's future is taken by the court of the child's habitual residence.
Grounds for non-recognition and non-enforcement of judgments are set out, including where this would be manifestly contrary to public policy in the member state in which recognition or enforcement is sought, taking into account the best interests of the child. Judgments granting a right of access to a child shall be recognised and enforced in another member state without any special procedure being required.
Central authorities are to be established by member states to exchange information, co-operate with each other and to arrange any necessary legal proceedings. Among their functions will be the promotion of agreement between holders of parental responsibility through mediation and other means. It can be expected, the House should note, that a good deal of negotiation will be required on the draft regulation before it is acceptable in full to member states. I will take account of any points that may be made by Senators on any aspect of the proposal. As I have said before, I welcome a full debate before any committees are established by the Houses of the Oireachtas to deal with EU matters in order that Members can be briefed on developments arising from the negotiations and express their views on any issue that arises.
It has been the view of successive Governments that it is important that we opt into measures such as these in order that through the process of negotiation we can attempt to ensure through our input at an early stage any concerns we have are dealt with adequately. I emphasise that these measures can only be adopted on the basis of unanimity, meaning that if our concerns are not met, we can decline to adopt the measure. I hope Senators will support the proposal that Ireland opts into the discussions on these instruments. I look forward to hearing the comments of Members on both proposals and commend the motion to the House.