The Gazette 1994

GAZETTE

MARCH 1994

T h e C o n s t i t u t i o n a l i ty o f t h e I m p l e m e n t a t i on o f EC D i r e c t i v es i n t o I r i sh L a w R e v i s i t ed

ministerial regulation would not be an appropriate means of implementing EC directives, the Court felt that s.3 should benefit from the presumption of constitutionality. 8 The legislative intention of the Oireachtas should thus be construed as implying that a minister would not contravene the Constitution by purporting to implement such directives by ministerial order; i.e. were this to occur any such order would be invalid as ultra vires the power constitutionally conferred by s.3. The Vires of the Impugned Statutory Instruments Two separate judgments were delivered by Blayney and Denham JJ. 9 Blayney J, having noted that the ministerial power conferred by s.3 was extremely wide, opined that its exercise would only be valid were it necessary to give effect to Community directives. He approached the issue of necessity from two levels: (i) the implementation of a Community measure will be necessary where the State is obliged to implement it; (ii) the appropriateness of the means thereby employed by the State will depend on what is required of it in order to fulfil its obligation. Once the State must implement a measure (and this presumably must be determined by reference to Community law), the constitutional requirement of 'necessity' is satisfied. However, as Community law allows the Member States, in so far as directives are concerned, the choice of form and method, mere legal necessity does not give individual ministers a carte blanche but, rather, each one will have to be examined to see what national implementing provisions are mandated as '. . . results to be achieved'. It was accepted by counsel for Mr Meagher that the objective of eradicating the administration to animals of artificial fattening agents

by Noel Travers.*

Introduction The potentially enormous difficulties posed by the judgment of the High Court, Johnson J in Meagher v Minister for Agriculture and Food and the AG\ which declared unconstitut- ional the basic mechanism, namely s.3 of the European Communities Act 1972, devised shortly after Ireland's accession to the EC for ensuring timely compliance with the Community obligation to implement EC directives into national law, have already been discussed in this journal. 2 It was therein submitted that the constitutionality of the said legislation should be interpreted in the light of the nature of the directives whose incorporation into Irish law it was designed to facilitate, rather than by the development of a wholly autonomous national concept of what is 'necessitated by [our] obligations of membership'. 1 The recent judgment of the Supreme Court has largely endorsed this approach and thus restored a considerable degree of legal certainty to this vital domestic legal interface with the law of the European Union. 4 The Article 34.4.5 Judgment of the Supreme Court The fundamental argument against the constitutionality of s.3 was that the extent of the legal obligation imposed on the State to transpose EC directives into national law does not comprise a mandatory direction as to the precise mode of their implementation. 1 It follows therefore that the use of any 'necessitated' and that it would thus be subject to the full rigours of the Constitution, including the separation of powers doctrine based principally on Art. 15.2.1 thereof. 6 The State's response was that, in joining the European Communities, Ireland had undertaken to implement fully and efficiently the acts and measures particular method, such as that prescribed in s.3, could not be regarded as constitutionally

Noel Travers adopted by the Communities (and now the European Union). This obligation was essentially twofold: (i) the adoption of the necessary national administrative measures to ensure plenary effect to directly applicable Community laws (principally regulations and decisions) which could undoubtedly be done by s.3 ministerial order; (ii) the adoption of the national measures required to give effect to the terms of sufficiently clear, unconditional and specific directives which, as involving the adoption of essentially administrative measures, could also appropriately be done by s.3 ministerial regulation. The Supreme Court approved the State's approach. It read s.3 in the light of s.2, which incorporates fully the various EC Treaties into Irish law. 7 The ministerial power conferred by s.3 was designed to guarantee the effectiveness of the commitment undertaken voluntarily by the State through s.2. Having regard to the nature and number of most Community laws, the Court was satisfied that the obligation of membership would necessitate in some, if not most instances, the adoption of ministerial regulations rather than primary legislation. In relation to the exceptional cases where

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