The Gazette 1994

GAZETTE

JULY 1994

Meagher v Minister for Agriculture and

Food, Ireland and the Attorney General:

High Court (Johnson J) 1 April 1993;

Supreme Court (Finlay CJ, O'Flaherty,

Egan, Blayney and Denham JJ) 18 No-

vember 1993

European Communities - Whether statute

could be amended by ministerial regula-

tion introduced for the purpose of imple-

menting directives - Constitutionality of

European Communities Act 1972, s. 3 -

Supremacy of community law over na-

tional law - European Communities (Con-

trol ofOestrogenic, Androgenic, Cestagenic

and Thyrostatic Substances) Regulations

1988 (SI No. 218 of 1988) - European

Communities (Control of Veterinary Me-

dicinal Products and their Residues) Regu-

lations 1990 (SI No. 171 of 1990) - EEC

Treaty, Articles 5, 189

Facts

S. 2 of the European Communities

Act 1972 provides that from 1 January

1973 the Treaties of the European Com-

munities and the acts adopted by the

institutions of those communities shall be

binding on the State and constitute part of

its domestic law. S. 3(1) empowers a

minister of state to make regulations so as

to give full effect to s. 2, and s. 3(2)

provides that these regulations may con-

tain such incidental, supplementary and

consequential provisions as appear nec-

essary for the purposes of the regulations

(including provisions repealing, amend-

ing or applying, with or without modifi-

cation, other law exclusive of the 1972

Act). In order to implement various EEC

directives pertaining to the use of hor-

mones in livestock, the Minister for Agri-

culture and Food made the European

Communities (Control of Oestrogenic,

Androgenic, Gestagenic and Thyrostatic

Substances) Regulations 1988 and the

European Communities (Control of Vet-

erinary Medicinal Products and their

Residues) Regulations 1990 pursuant to

s. 3(2) of the 1972 Act. Both the 1988 and

the 1990 Regulations provided that not-

withstanding s. 10(4) of the Petty Sessions

(Ireland) Act 1851, proceedings in re-

spect of an offence under the regulations

could be instituted at any time within two

years of the commission of that offence.

In March 1991 a search warrant was

issued by the District Court under the

1988 regulations which empowered the

officers of the minister and the gardai to

enter the applicant's farm. A search was

carried out on 27 March 1991 and on 24

August 1992 the applicant was served

with 20 District Court summonses per-

taining to offences under the 1988 and

1990 Regulations. The applicant brought

judicial review proceedings in which he

sought a declaration that the 1988 and

1990 Regulations were

ultra vires

and

void, a declaration that the provisions of

s. 3(1) and (2) of the 1972 Act were

contrary to the Constitution and void, an

order of

certiorari

quashing the search

warrant granted by the District Court and

an order of prohibition precluding the

first named respondent from prosecuting

the applicant in respect of the offences

under the regulations which were al-

leged in the summonses.

In the High Court Johnson J held that

that portion of s. 3(2) of the 1972 Act

which entitled a minister to make a regu-

lation repealing, amending or applying,

with or without modification, other law

exclusive of the 1972 Act was unconsti-

tutional. The respondents appealed.

Held

by the Supreme Court (Finlay CJ,

O'Flaherty, Egan, Blayney and Denham

JJ) in allowing the appeal: (1) By provid-

ing that community law is binding on the

State and part of its domestic law subject

to the conditions laid down in the trea-

ties, which included the primacy of com-

munity law over domestic law, s. 2 of the

1972 Act secured compliance with the

major or fundamental obligation neces-

sitated by membership of the commu-

nity. The only purpose which could be

served by the making of regulations un-

der s. 3 was to enable s. 2 to have full

effect. (2) Given the number of commu-

nity laws, acts done or measures adopted

which would have to be either facilitated

in theirdirect application to the law of the

State or implemented by appropriate ac-

tion into the law of the State, the obliga-

tion of membership would necessitate

theattainmentoftheseobjectivesinsome

instances by the making of ministerial

regulations rather than the enactment of

legislation by the Oireachtas. Accord-

ingly the power to make regulations con-

tained in s. 3(2) was necessitated by the

obi igations of membership by the State of

the European Communities and the Euro-

pean Union and was thus, by virtue of

Article 29.4.3°, 4° and 5°, immune from

constitutional challenge. (3) It was un-

necessary to decide whether there were

situations in which laws, measures or

acts of the European Communities or

European Union should be applied or

implemented by means of legislation en-

acted by the Oireachtas instead of a

ministerial regulation. In any event the

Oireachtas is regarded as having intended

that the making of regulations by a min-

ister should be conducted in accordance

with the principles of constitutional jus-

tice. Thus it was to be implied that in

exercising the power of making regula-

tions under s. 3(2) the minister would not

contravene any provisions of the Consti-

tution. Hence any challenge to the valid-

ity of a ministerial regulation on the ground

that there was no necessity for the obi iga-

tion to be complied with by regulation

instead of legislation would have to pro-

ceed on the basis that the regulation was

ultra vires

as an unconstitutional exercise

by the minister of a power which had

been constitutionally conferred on him

by s. 3. (4) In making the regulations the

minister had been entitled to empower

the District Court to grant search war-

rants. The EEC directive required that

provision should be made for the taking

of samples at the farm from which ani-

mals suspected of containing prohibited

substances had originated. It could not

be implemented without creating a power

to make compulsory searches of farms

where animals are kept. (5) The imple-

mentation of the directives also required

the creation of offences which should be

prosecuted effectively. The unavoidable

delays involved in analysing samples and

the possibility that investigations might

have to be conducted in more than one

member state meant that the six-month

period provided for in s. 10(4) of the Petty

Sessions (Ireland) Act 1851 was too short.

Thus the minister had been entitled to

include a right to institute a prosecution

in respect of an offence under the regula-

tions within a period of two years. It was

not a prerequisite to the making of such

an extension that the directive should

itself specify a particular period. (6) The

regulations could not be impugned on

the ground that s. 10 of the 1851 Act had

to be amended by another statute. The

directives required the creation of effec-

tive sanctions. It was well-established

that community law took precedence

over national law. Directives were bind-

ing on the State as to the result to be

achieved and if compliance necessitated

adopting a measure which impliedly

amended an existing statute that measure

would prevail over the statute because it

was in substance a measure of commu-

nity law. The measure creating the two-

year period derived its force from the

directive and constituted domestic law

only as a matter of form.

Reported at [1994] 1 ILRM 1