546 / 736
she is unlike Britain and like the others in having
a written Constitution. We are, therefore, in a
unique position among the ten. Indeed it is from
the combination of these factors that the more
obvious legal implications peculiar to Ireland arise.
"We have long been aware of these, and as
early as 1962 when the question of expansion of
the Communities to include Ireland and other
countries was first under consideration, the Govern
ment established a committee under the chair
manship of the Attorney-General to consider the
legal implications of accession to the Communities,
including the compatibility of
the Constitution
with the obligations arising from accession.
"In Ireland, unlike some other civil law coun
tries, international agreements entered into by the
State do not
ipso facto
prevail over the Constitu
tion or other domestic legislation. On the contrary
Article 29 (6) of the Constitution says :
'No inter
national agreement shall be part of the domestic
law of the State save as may be determined by
the Oireachtas.'
"Article 15
(4) says:
'1. The Oireachtas shall
not enact any law which is in any respect repug
nant to this Constitution or any provision thereof.
2. Every law enacted by the Oireachtas which is
in any respect repugnant to this Constitution or
to any provision thereof, shall, but to the extent
only of such repugnancy, be invalid.'
"In deciding, therefore, whether an amendment
of the Constitution
is required with a vie~.' to
membership of the European Communities, it is
necessary
to consider whether
the
laws which
must be enacted in fulfilment of the obligations of
membership would conflict with the Constitution
or any of its provisions.
"As you are all aware, the European Communi
ties have a much more developed structure than
is usual among international organisations, reflect
ing, of course, the intention of the member States
that it should be a correspondingly more devel
oped and
tightly-knit entity. Thus,
they have
institutions with functions such as the power of
the Council of Ministers and of the Commission
to
legislate for the Communities, and even
to
legislate with direct effect in the member States,
powers which have been exercised continuously
for more than a dozen years.
"As the Community treaties are concerned with
economic and commercial activities and related
social matters,
the
legislative Acts have also
naturally been
confined
principally
to
these
spheres. Nevertheless, it is necessary to make legal
provision to give direct effect to such legislation in
Ireland where the treaties require that this be
done. It could possibly be argued that as the
Constitution stands any Irish law purporting to
give direct effect to such legislation would be in
conflict with Article 15 (2) 1°, which says: 'The
sole and exclusive power of making laws for the
State is hereby vested in the Oireachtas :
no other
legislative authority has power to make laws for
the State '
"Again, the European Court of Justice estab
lished by the Community treaties may entertain
proceedings commenced not only by a member
State or the Commission but also, in certain cir
cumstances, by individuals. It is, moreover, the
court of final appeal in relation to the interpre
tation of the Community treaties or measures of
the institutions, even where the questions of inter
pretation arise in the first place ni proceedings
before the domestic courts of a member State.
"It might well be held that Irish legislation
granting the necessary power and status to the
court would conflict with the Constitution and in
particular with Article 34 (1) which ways :
'Justice
shall be administered in courts established by law
by judges appointed in the manner provided by
this Constitution .. .' and Article 34 (4) 6 ° which
says :
'The decision of the Supreme Court shall in
all cases be final and conclusive.'
"The Treaty of Rome also gives the Communi
ties power to conclude treaties in the form of trade
and association agreements with other countries
which would be binding on the member States.
In preparation of legislation in Ireland to confer
such power on the Communities account would
have to be taken of Article 29 of the Constitution
dealing with international relations which says
inter alia:
'(4) 1°. The executive power of the
State in or in connection with its external rela
tions shall in accordance with Article 28 of this
Constitution be exercised by or on the authority
of the Government.' '(5) 2°. The State shall not be
bound by any international agreement involving a
charge upon public funds unless the terms of the
agreement shall have been approved by Bail
Eireann.' And also
'(6) No international agree
ment shall be part of the domestic law of the State
save as may be determined by the Oireachtas.'
"It is possible that such legislation could be
held
inconsistent with some at
least of
these
provisions."
[to be continued]