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withdrawn from judicial control by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