The Gazette 1973

JUDGE O'DALAIGH EXPLAINS ROLE OF EUROPEAN COURT According to a distinguished authority, the Court of the European Community in which Cearbhall O Dalaigh took his place earlier this week as the Irish represen- tative, "possesses more varied jurisdiction than any other court ever established". machinery is not available as far as I am aware on a Community basis, and certainly not available against Governments. So what happens?

Well, if a Government continually fails to comply with its obligations under the Treaty of Rome, then it be- comes a grave political question as to whether such a member State can be retained in membership. It is like any member of a club who is repeatedly in breach of the rules. Can an individual take an action against one of the Community's institutions, like the Commission or the Council? I would think in principle, yes. It seems to me that basically anyone who is hurt by an exercise in Com- munity powers, which are in excess of powers granted by the Treaty, must have a remedy in this court. What is the relationship between this court and our national courts—it isn't a final court of appeal in any sense, is it? No, it seems to me that what might simply be called in Irish law terms, the "case stated" procedure, will prob- ably be one of the areas in which Irish courts will be chiefly in relationship with this court, and that is the obligation which rests on an Irish court, if it is a court of final appeal—not necessarily the Supreme Court, but any court which is the final court in the particular matter which is then before it. For instance, the Circuit Court hearing a District Court appeal, or the High Court on Circuit hearing a Circuit appeal—if a question arises as to the interpretation of the Treaty of Rome, and the matter is not in the category of something that is clear beyond dispute, then it is the duty of the presid- ing judge or judges to suspend the hearing of the case while they ask the European Court in Luxembourg what the correct interpretation of the particular clause of the Treaty is. And this court does not concern itself with the particular facts of the case or decision; it is merely concerned to ensure that the Treaty is uniformly inter- preted and uniformly applied throughout the length and breadth of the Community. What, briefly, is the body of law that you are going to administer? I have the task of endeavouring to familiarise myself with the jurisprudence of the court which has accumu- lated in its fifteen years of existence. These are the cases which have been heard and decided ? Yes, by brother judges—the old guard, as they were referred to on my first day in court—very distinguished jurists, professors of law and men of great learning, have been working over this text now for fifteen years and there has been quite a body of case-law, or wisdom, of jurisprudential approach, established. Of course this may be modified in time, by the views of the new mem- bers of the court—I don't know. But primarily the new members will have to familiarise themselves with it. Is there any danger of conflict between our Com- mon Law tradition and continental legal tradi- tions? When you say our Common Law, a great Irish judge Continued on page 73 71

At one end of the scale it is an international court settling disputes between member States. It is also a conseil d'etat, or administrative court dealing with what in Ireland would be called problems of administrative law, offering individuals an opportunity of challenging actions by Community officials on grounds of illegality and also of administrative correctness. It also deals with contracts of employment in the Community institutions and actions brought by private individuals for accidents caused by Community chauffeurs. Thus it not only judges disputes between member States and Community institutions, but it also makes it possible for farmers, businessmen and other people affected by Community decisions, to ensure that their rights are properly observed. In a recent case—one listened to by Judge O Dalaigh, as a spectator when he visited the court a few months ago, an Italian widow claimed compensation from her Government under a Community milch cow slaughter scheme, half of which was payable by national authorities. Her lawyers main- tained that it was the Italian Government's duty to make funds available and the point was submitted to the European Communities Court, which ruled in her favour. This is the example referred to by Mr. Justice O Dalaigh in reply to the first question in the interview that follows. He spoke to Fergus Pyle in Luxembourg a few days ago about the way the European Court works. What will the Court of Justice of the European Communities mean to the ordinary Irish citizen? I suppose—though my experience is still too limited to afford you any really satisfactory answer—it is possible that we might have problems such as the Italian Government seems to have had in not having monies voted by Parliament. Our Constitution does indicate that Parliament has a control over national funds, monies are not to be paid out unless voted by Parlia- ment, and Parliament cannot vote monies except on a resolution put down by Government. So this is a very real problem, this problem of States ensuring when they undertake obligations that the structures of national Government are adjusted to ensure that there isn't delay that might amount to a denial of relief—denial of payment or compensation. In other words, you see that the Treaty and other obligations are duly implemented? And that we and other States whose machinery may delay to the point of denying compliance—that the national structures of Government, of legislation and the provision of funds are adjusted in such a way as to see that obligations are complied with. What powers do you have to enforce the judgment against a defaulting Government? I think this eventually becomes a political question. In a national State you can send in the sheriff, you can call in the guards, you can seize the man's property. This