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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".
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
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
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