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GAZETTE

SEPTEMBER 1993

Necessity and Chaos:

How Constitutionally to Implement an

EC Directive into Irish Law

Noel Travers

by Noel Travers*

Introduction

The recent judgment of Johnson J. in

Meagher v Minister for Agriculture &

Food, Ireland and the AG

has

highlighted a potentially enormous

problem in the relationship between

Irish and EC law.

1

It concerns the

appropriate mechanism for

implementing EC directives into Irish

law. For a number of years some

prominent academic commentators

have maintained that it is

unconstitutional to transpose such

directives into Irish law through

statutory instruments.

2

It appears that

the essence of their argument has now

been endorsed by the

Meagher

ruling

but this may not withstand the

Government's current appeal to the

Supreme Court. Should the appeal fail

hundreds of confirmation bills, at the

least, may be required and the legal

status of all the acts done under the

invalidated statutory instruments up

until the date of the Supreme Court's

judgment will have to be resolved.

The founding EC Treaties differ from

the traditional international law

prototype because they confer

extensive law-making powers on the

Community institutions within their

relevant sphere of competence. When

Mr Lynch's Government was consider-

ing the constitutional changes necess-

ary to facilitate Ireland's accession to

the European Communities, it was

clear that a constitutional licence

merely to incorporate the relevant

treaties into domestic law would not

suffice to overcome the dictate of Art.

15.2.1 of the Constitution, that the sole

and exclusive power of making laws

for the State is vested in the

Oireachtas. Therefore the Third

Amendment of the Constitution Act,

1972, having authorised the State to

join the three constituent European

Communities, also provided that,

'... No provision of this

Constitution invalidates laws

enacted, acts done or measures

adopted by the State necessitated

by the obligations of membership

of the Communities, or prevents

laws enacted, acts done or

measures adopted by the

Communities, or institutions

thereof, from having the force of

law in the State...'.

1

This first part of this sentence was

designed principally to ensure that

domestic legislation designed to

transpose non-directly applicable EC

laws into Irish law would be

withdrawn from judicial control by

Irish courts, on grounds that it violates

the Constitution, once those courts are

satisfied of the requisite necessity.

4

The High Court Judgment

The

Meagher

case concerned two

statutory instruments adopted pursuant

to s.3 of the European Communities

Act, 1972: the European Communities

(Control of Oestrogenic, Andogenic,

Gestagenic and Thorstatic Substances)

Regulations, 1988 and the European

Communities (Control of Veterinary

Medicinal Products and their

Residues) Regulations, 1990.

s

It was

argued essentially that the Regulations

were

ultra vires

and void because

pursuant to s.3 of the 1972 Act which

gives the relevant minister the power

to adopt orders which can repeal or

amend other laws, exclusive of the

1972 Act itself, they purported to

amend,

inter alia,

the Petty Sessions

(Ireland) Act, 1851.

6

Under s.4 of the

aforesaid Act, as amended by the

European Communities (Amendment)

Act, 1973, such orders have 'statutory

effect' unless the Joint Committee on

the Secondary Legislation of the

European Communities recommends

their annulment to the Houses of the

Oireachtas and a resolution to that

effect is passed by both of them within

one year of the making of the relevant

order.

7

The original text of s.4 had

provided that such orders would have

statutory effect only for a six-month

period, unless, during that period, they

were confirmed by an Act of the

Oireachtas. Whereas, it was contended

that the previous text was

constitutionally sound, it was argued

on behalf of Mr Meagher that the new

s.4 constituted an impermissible

delegation of legislative power which

was not shielded by Art. 29.4.3 of the

Constitution, (inserted by the Third

Amendment of the Constitution Act,

1972) from constitutional challenge.

8

Community directives are binding as

to the result to be achieved but allow

Member States a choice as to how best

to give effect to them in national law.

Thus, whilst the principles contained

in the directive must be transposed

into national law, Ireland retains a

discretion as to the appropriate law-

making mechanism for achieving this

result. It has therefore been argued that

the distinction between the legal

compulsion to transpose a directive

into Irish law in a timely fashion and

the Irish authorities' discretion

concerning methodology, precludes

the latter from relying on Art. 29.4.3

to justify departing from Art. 15.2 of

the Constitution.

9

Whilst Johnson J.

does not refer specifically to this

reasoning in his judgment, it clearly

underlies his rejection of counsel for

258