123 / 432
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
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
particular method, such as that
prescribed in s.3, could not be
regarded as constitutionally
'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
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
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
99