I welcome the Minister of State, Deputy Fitzgerald. I wish her well in her term of office as Minister with responsibility for children. We will now deal with a motion regarding a regulation of the European Parliament and the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
EU Regulation on Judgments in Civil and Commercial Matters: Motion
I move:
That Seanad Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:
Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast),
a copy of which was laid before Seanad Éireann on 10 January, 2011.
I thank the Leas-Chathaoirleach for his congratulations, which I appreciate.
This motion amends an existing proposal that sets out jurisdiction rules that apply in international cases involving mainly EU citizens. On behalf of the Minister for Justice and Law Reform, I thank Senators for agreeing to deal with this matter at short notice and within a very tight timeframe. Their co-operation in this matter is very much appreciated and it is to be hoped it will ensure Ireland can play a full part in the negotiations, which have just begun, on this very important instrument.
The Commission has sole right of initiative on legislative proposals in the civil justice area and the timing of the presentation of such proposals is within its hands. This proposal was presented just before Christmas. Its legal basis is to be found in Title V of Part Three of the Treaty on the Functioning of the European Union. In consequence, the terms of the protocol which we share with the United Kingdom, whereby we have three months to exercise our option to take part in the adoption and application of relevant measures, apply. We have been informed that the three month period will expire on 4 April, hence the reason for bringing the matter to the Seanad and the Dáil. Accordingly, if we are to exercise our option within the required timeframe, it is necessary to obtain the prior approval of both Houses of the Oireachtas before that date. Given the intervention of the general election, it was not possible to deal with the matter until now.
Senators will be familiar with the procedure for protocol measures since a large volume of proposals which attract the provisions of the protocol have come before the House in recent years. In the civil area alone more than 20 such proposals have been considered by the House and this is testimony to the volume of activity in this area. It should perhaps be noted that this proposal is the first civil law measure to be presented since the Treaty on the Functioning of the European Union entered into force. However, given that the Commission has very ambitious plans in this area, it is likely to be the first of many such measures in the coming years.
The essence of the proposal is captured by its somewhat unwieldy title which points to the fact that it is concerned with court jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It is important to note that the proposal is only concerned with international cases which, at its simplest, would be reflected in the fact that the plaintiff and defendant are located in different member states. It is also important to note that the purpose of the proposal is merely to introduce certain amendments into its parent regulation, commonly referred to as Brussels I.
The amendments arise from a process of consultation which was launched by the Commission in April 2009. Arising from that consultation, it became clear that there was scope for improving the operation of the Brussels I regulation which has been in force since March 2002. That proposal was presented in September 1999 and at the time Ireland exercised its right to opt in to its adoption and application. Our timely participation in the parent instrument underlines the vital importance of our participation in its successor. This is especially the case as we have no particular difficulties with the proposal made and it would be unfortunate if our failure to opt in were to be misconstrued as in some sense being a manifestation of hostility to its content. Failure to opt in would also run contrary to the commitment we have given to take part in relevant measures in the justice area to the maximum extent possible.
The original Brussels I regulation is the primary instrument governing the recognition and enforcement of civil and commercial judgments within the European Union. It provides a degree of certainty on which court in which member state will take jurisdiction in an international case. That is important. It also provides a mechanism enabling judgments given in one EU member state to be recognised and enforced in each of the other member states. In essence, what that means is that such judgments, when they go through an enforceability process, can be enforced in a member state as if they were judgments which had originally been given in the member state.
There is considerable history attaching to the proposal which is the subject of this debate in that, before the Brussels I regulation was adopted, these matters were governed by a convention which dated from 1968 and was ratified by Ireland in 1988. Participation in the new instrument is part of the progression towards making access to justice easier and more efficient for all citizens which, in this context, includes consumers, economic operators and individual litigants in a wide variety of contexts.
The original Brussels I regulation is widely viewed as being a seminal instrument in the area of judicial co-operation in civil matters. The new proposal is essentially an add-on to the existing proposal and, as I indicated, preliminary examination does not suggest it gives rise to particular difficulties in so far as Ireland is concerned. The intention underlying it is to simplify further the recognition and enforcement regime for judgments in the civil and commercial area. This has the potential to be of particular benefit to the business community as studies suggest the complexities attendant upon cross-border litigation are a significant disincentive to doing business in another jurisdiction.
It is the case that, under the protocol, we may accept a proposal any time after it has been adopted. However, it is our considered view that early opt-in to the discussions will maximise our ability to influence the shape of the final outcome. It will give us voting rights and enable us to participate in alliances with like-minded member states in the event that this becomes necessary in order to defend a particular policy stance. It will also confirm our commitment to continued participation in a regime which has been operating successfully in this jurisdiction for more than 20 years.
I will deal briefly with the key elements of the new proposal. The first and most important element involves the abolition of a procedure known as exequatur. What this involves is a procedure whereby a declaration of enforceability is required before a judgment given in one member state can be enforced in another. In Ireland, a declaration of this kind is obtained by way of application to the Master of the High Court. Commission figures suggest that within the European Union the overall cost of exequatur proceedings amounts to more than €47 million per year. Its analysis also suggests the time for obtaining a declaration of enforceability can vary considerably from member state to member state. The costs and time involved in obtaining such a declaration are perceived to be inimical to the proper functioning of the Internal Market and present a real barrier to doing business within the Union.
It is recognised that the abolition of exequatur carries with it certain risks and, for that reason, a number of remedies to protect the rights of the defendant are envisaged. These include the right to contest a judgment in the member state of origin if the defendant has not been properly informed about the original proceedings in that state. Also included is the right to contest any other procedural defects that may have arisen before the court of origin and which may have infringed the right to a fair trial.
Another element of the proposal relates to the operation of the Brussels I regulation within the international legal order. Clearly, this is a matter of some delicacy since it involves relationships with third countries. What is proposed is that the jurisdiction rules of the regulation should be adjusted in order that jurisdiction in regard to defendants from outside the European Union would no longer be governed by national law but by specific rules set out in the regulation. In addition, the courts of a member state would have a certain discretion to stay proceedings in a case where a non-EU court was already dealing with the same case.
The proposal also attempts to improve the effectiveness of choice of court agreements in order that the court chosen by the parties to resolve the dispute will always have priority to decide on its jurisdiction, even where one of the parties seises another court first in time in an effort to avoid compliance with the original agreement. The provision has been designed to ensure it will not interfere with the future ratification of a Hague Convention which also deals with choice of court agreements. In this way, it is envisaged that the widest possible respect will be given to international choice of court agreements which are often an important tool in the formulation of international commercial contracts.
The proposal also contains provisions designed to improve the interface between the regulation and arbitration by providing that a court seised with a dispute involving an arbitration agreement would have to stay proceedings if an arbitral tribunal or a court at the seat of the arbitration was already seised of proceedings to determine, as its main object or as an incidental question, the existence, validity or effects of that arbitration agreement. This is intended to enhance the effectiveness of arbitration agreements in Europe and eliminate the incentive for abusive litigation tactics.
There are other minor elements designed to facilitate co-ordination between courts and the circulation of provisional and protective measures. However, the four elements I have outlined represent the key amendments that are being proposed in regard to the new regulation.
The technical negotiations on this proposal commenced in early February and the first reading has yet to conclude. It is too early at this stage to say when the negotiations will reach finality. By and large, member states seem to be of the view that the Commission has done a good job in presenting a well balanced text which is likely to be of general benefit. Inevitably, however, the negotiation process is likely to reveal diverging views on some aspects of the proposal. This underlines the need for us to be in a position to make common cause with those member states whose perspective most accords with our own.
It should be emphasised, lest there be any doubt on this point, that opting in to the proposal at this time does not mean we necessarily agree with every aspect of it. The opt-in process merely ensures we can be active participants in the negotiation process, and this carries with it the right to make proposals to alter the text should that seem to be desirable.
Ireland has taken a very positive approach to participation in the various civil law instruments that have been presented. These instruments range over matters as diverse as the service of documents in judicial proceedings, the taking of evidence in such proceedings, small claims procedures, mediation, legal aid and maintenance. It is a mark of our commitment to the EU project that we tend to be very positively disposed towards participation in such projects from the outset. Certainly, we are very positively disposed towards participation in this particular project which has the capacity to enhance legal certainty for individual litigants across the EU. I commend the motion to the House.
I welcome the legislation, which deals with the functioning of the European Union protocol and issues relating to fair trial procedures and court issues. It is on that point that I wish to focus. I have attempted to address some issues pertaining to my membership of this House with procedures such as these.
I cannot allow the Senator to speak in that fashion; he must speak to the motion.
I am speaking to it.
The Cathaoirleach has already stated in the House he is not willing to allow the Senator to make a personal statement.
I am not making a personal statement.
That is what the Senator intends to do and I cannot allow it. The Cathaoirleach has already ruled on the matter. The Senator must stick to the motion.
I have the right to speak freely, as I wish to, on the motion before the House. As a public representative, I have had many dealings with issues of this nature. I have carried out my duty to the best of my ability. Many decisions with which I have been associated in the past 25 years have concerned issues associated with the European Union and my constituency. I have no doubt that I have made mistakes but, hand on heart, I thought what I was doing was always right for the country. It would be dishonest of me at this point not to indicate that I did not seek re-election to Dáil Éireann, nor could I seek election to Seanad Éireann, mainly due — this relates to court proceedings — to allegations, processes and proceedings.
Senator Callely——
I regret that I will be leaving this House with many people believing I do so under a cloud.
Is the Senator going to respect the Chair?
Yes, of course.
I cannot allow the Senator to make a personal statement in the House. The Cathaoirleach has already——
I am not making a personal statement.
I ask the Senator to resume his seat. The Cathaoirleach has already ruled in regard to the Senator making a statement to the House. If he is to continue as he is doing, I will have no option but to suspend the sitting.
I am in possession and I am entitled to make my contribution.
To the motion before the House.
I owe it to the people of Ireland, my constituents and supporters to clear up issues surrounding the adverse publicity generated by certain sections of the gutter press in support of commercial activity——
I will suspend the sitting.
Sitting suspended at 11.55 a.m. and resumed at 12.10 p.m.
We will resume the debate on the motion. I call on Senator O'Toole.
Can I just check whether my is time up?
I asked Senator Callely to resume his seat prior to the suspension of the sitting and he did not do so. I now call on Senator O'Toole. I am ruling on this issue.
Sorry, a Leas-Chathaoirligh——
I am ruling on it. I call on Senator O'Toole. I asked Senator Callely to resume his seat prior to my suspending the sitting in disruption.
On a point of order, I understand I am entitled to speak.
On a point of order, it is outrageous that the business of the House is being disrupted yet again by Senator Callely and his posturing.
I have ruled on this case——
All of us are here to do the business of the House.
——and I am calling on Senator O'Toole. I ask Senator Callely to resume his seat.
Sorry, a Leas-Chathaoirligh——
Senator Callely, I am asking you to resume your seat. I am calling on Senator O'Toole.
Sit down, Senator Callely.
I was in possession. I had nearly completed my——
I asked the Senator to resume his seat prior to when the sitting had to be suspended. I am now calling on Senator O'Toole.
I am simply asking for a point of clarification. I will not delay the House.
I have clarified the issue for the Senator. I am calling on Senator O'Toole.
I was in the middle of contributing. I do not know at what time the sitting was suspended——
Senator Callely, I want to point out to you that——
——and I am simply asking whether my time——
——on numerous occasions I asked you to refer to the motion before the House and you did not do that. I had no choice but to suspend the sitting. Before I did so, I asked you to resume your seat and you did not do so. I now call on Senator O'Toole.
I am sorry——
I ask the Senator to resume his seat. If he does not do so, I will suspend the sitting again.
I do not wish to disrupt the House.
You are disrupting the House, Senator Callely.
What I want to do is——
I have ruled on the issue.
I am listening to people trying to jump in. Are they afraid of what I am going to say?
Senator Callely——
Are people afraid of the truth? What is wrong with putting the truth on the record of the House? Is Senator O'Toole afraid of what I am going say about it?
Senator Callely, I will have no choice but to suspend the sitting again if you do not resume your seat.
Has the political assassination not worked?
Senator Callely, I will have no choice but to——
What is so malicious about putting the truth on——
Senator Callely, I have ruled on the issue and ask you to resume your seat. I have called Senator O'Toole.
I understand I have been allocated time.
The Senator has spoken here and caused the House——
That has been recorded and my time is up. Is that the case?
I will ask the Senator to leave the House.
The Leas-Chathaoirleach has indicated that I have spoken.
I have indicated that the Senator should leave the House.
Is the Leas-Chathaoirleach stating my speech has been recorded and that my time is up?
Senator Callely, while I do not like doing this, I have indicated that you should leave the House.
I am not too sure under what rule or authority you are doing so, a Leas-Chathaoirligh, or whether it is the Cathaoirleach who has to do this.
The Senator has brought the House into disrepute. I have called on Senator O'Toole to speak. As Senator Callely will not resume his seat, he has brought the House into disrepute.
It seems that obstacles are being put in the way of my making a contribution to this House.
There are no obstacles in the way, good, bad or indifferent. I allowed the Senator on numerous occasions——
Are you for real, a Leas-Chathaoirligh?
——to debate the motion before the House but he would not do so. I had no choice but to suspend the sitting. I will give him a second chance to resume his seat and allow Senator O'Toole to make his contribution.
At what part of my contribution did the recording cease?
I will not go into the detail of that. The Cathaoirleach outlined to the Senator in the House earlier today that he was making a personal statement that had nothing to do with the motion before the House. I have called on Senator O'Toole and I am giving the Senator a last chance——
This is a bit of a farce, a Leas-Chathaoirligh.
——to resume his seat and allow Senator O'Toole to make his contribution. Will he obey my ruling in the House?
I do not wish to disagree with you.
I will have no choice but to suspend the sitting again.
On a point of order, I do not want the sitting to be suspended. This should be dealt with under the rules of the House.
Hear, hear.
We have other things to do and it should be dealt with.
I have no choice in this matter. Senator Callely will not resume his seat and allow Senator O'Toole to make his contribution. I have indicated that Senator O'Toole should make his contribution. Senator Callely has brought the House into disrepute.
I do not wish to proceed in this fashion. I have always respected the House. I wish to ensure that every Member, regardless of who he or she is, has an opportunity and is afforded the opportunity to speak. I will resume my seat on the understanding that what I have read is on the record of the House and that any additional speaking time I am due will be afforded to me at a later stage.
I am not giving any undertakings to anybody in the House. I have asked Senator O'Toole to make his contribution.
On the basis of what I have said, I will resume my seat.
I welcome the Minister, Deputy Fitzgerald, to the House and congratulate her on her elevation. It is well deserved.
Hear, hear.
The House will applaud her appointment and elevation. She did trojan work as Leader of the Opposition in the House for the past four or five years. I wish her well. We have the utmost confidence in her.
This is the type of change in Europe we need to welcome. It is a tidying up and reduction of bureaucracy. It is a recognition by various countries of each other's court systems. It undermines the attempt by people to play off against each other the court systems of various countries. It is very much to be welcomed. What are to be welcomed even more are the fail-safes, conditions and protections included in terms of ensuring the right to contest procedural defects can be dealt with and making particular arrangements for people outside the EU.
I very much welcome this legislation and ask the Minister to take any opportunities that arise to speak about it as it is about how being part of Europe makes life easier. When people speak about the straight banana, this is the other side of the argument. I support the motion and wish the Minister well.
I support the motion and the Government's attempt to exercise the option prior to 4 April. It is important to enter the necessary negotiations to ensure the instrument is as effective as possible. There are two areas in particular where we need to take care that what is eventually agreed is in our national interest and works in the interest of all members of the European Union. We want to ensure we cannot be backed into situations under civil law whereby the Houses of the Oireachtas are left behind and not involved in discussing the policy aspects of what is eventually agreed. There must be a mechanism to ensure this does not happen.
We also need to ensure when seeking alliances with other countries and exercising this instrument that we do not pick the wrong fights and that we do so for the right reasons. I am led to believe the recent court decision with regard to crucifixes in Italy involved Malta and may also have involved Ireland. I would not have seen that as a wider European issue to be discussed at such a level using an instrument of this type. It should have remained a matter of national competence. This is why we need to be careful and give the Government every confidence in ensuring the negotiations and the improved instrument to be eventually agreed is one that works for Ireland and the European Union.
I commend the motion to the House. This legislation was drawn up originally outside the European Union framework under the Brussels Convention of 1968 under the aegis of the Council of Europe. Subsequently, it was adopted as a regulation following the Amsterdam treaty and it is very important legislation. Many judgments have been made at European and national court level on the matter in the interim period and it has been extremely important, particularly in the commercial sphere where a person trading with another member state can seek to have litigation dealt with in his or her jurisdiction. It has saved much in costs for many companies and it makes it possible to do cross-border business with much greater ease. The various judgments of the European Court of Justice inform the amendments and improvements envisaged.
The Minister outlined four main areas, including the declaration on enforcement, which is surplus to requirements. The issues of dealing with the jurisdiction with regard to third countries as distinct from European member states and that where parties agree by contract that a particular jurisdiction should apply are to be respected. Another matter is clarification on arbitration. I have no hesitation in recommending this resolution. Ireland should play its full part in this area. We secure major benefits from this type of legislation and it is important we are involved in the negotiations at the beginning.
I welcome the Minister to the House. I am delighted with her appointment as she will be an excellent Minister with responsibility for children and it is a well deserved appointment. I am sorry there are not more women in the Cabinet, but Deputies Burton and Fitzgerald will be really excellent in their respective briefs and I am delighted they are Ministers. I am sure the children's rights referendum will be prioritised to a much greater extent under Deputy Fitzgerald's stewardship than it was previously. This is crucial.
I also welcome the motion and the Minister has put the case for an early opt-in very well. It is clear there is a volume of activity in this area and that it is important to ensure greater certainty for litigants across the European Union. Of course, this is not about the harmonisation of legal procedures because as the Minister pointed out, it only applies to international or transnational cases with an international dimension. However, it will reduce the cost and time taken to do business and thus ensure the conduct of business benefits.
I welcome the commitment in the programme for Government to devote a full week each year to debating major EU issues of concern. I suggest the week commencing 9 May, Europe Day, would be appropriate, given the volume of EU directives and decisions coming before us. It is important that we take a step back once a year to consider the different themes and measures coming from the European Union.
Let me briefly remark that Senator Callely behaved outrageously this morning. Lest the silence of any Member be——
That has nothing to do with the motion. I ask the Senator to refer to it.
I do not believe any Member of the House should be allowed to disrupt its proceedings in the way it was done this morning.
I thank all of the Senators who contributed to the debate on the motion. The point has been made that it will have very practical consequences and lead to greater efficiency which will be to the benefit of all citizens. The timely exercise of our right to opt in to discussions at this time will maximise our ability to influence the shape of the outcome of the negotiations and confirm our commitment to continued participation in a framework which works well and in which we have participated for more than 20 years. An early opt-in does not mean we accept all elements of the Commission's proposals, but it strengthens our hand in terms of further policy proposals at a later stage. I appreciate the positive attitudes expressed towards the proposition that this is an instrument in which Ireland should participate from the beginning. As a number of Senators observed, it is important in this regard that the deepening of co-operation in civil matters within the European Union takes place on the basis of proper analysis and scrutiny.
I appreciate that time was made available by the House at short notice to agree to the motion.
Question put and agreed to.
Sitting suspended at 12.25 p.m. and resumed at 12.35 p.m.