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GAZETTE
SEPTEMBER 1983
Section 45 Consents and the
Treaty of Rome
by
J. A. O'FarreU and N. T. Cawley
1
I
n December 1982, the Commission of the European
Communities took the decision to bring Ireland
before the European Court of Justice to seek a
declaration that "by maintaining S.45(2)(a) of the 1965
Land Act in force in respect of Nationals of other
member States, the Republic of Ireland has failed to ful-
fill an obligation incumbent upon it under Treaty," on
the grounds that "no provision of National Law may
impose on a Community National wishing to exercise
the right of establishment conferred by Art.52 the
additional requirement of the consent of the State in
which that establishment is to take place, even where
such requirements, which do not also apply to the
Member States' own Nationals, are imposed only for
reasons of an administrative nature. A mere
administrative practice not to apply the provision in
question would not remove the infringement."
2
On the 30th of May 1983, the Minister for
Agriculture, in exercise of the power conferred on him
by S.45(l)(x) of the Land Act, 1965 approved the Land
Act, 1965 (Additional Category of Qualified Person)
Regulations, 1983. (
S.I.No.144 of 1983.)
Paragraph 2 of this instrument reads as follows:-
"For the purposes of the definition of a "qualified
person" in S.45 of the Land Act 1965(No.2 of 1965),
the following category is hereby declared to be an
additional category, namely, a person who is a citizen
of a Member State of the European Communities and
who-
(a) Is exercising in the State theright of establishment
as a self-employed person under Art. 52 of the EEC
treaty (within the meaning of the European
Communities Act, 1972 (No.27 of 1972), by way of an
economic activity the nature of which is specified in
the relevant certificate given by that person under
subsection (3) of the said S.45 and
(b) Is acquiring an interest in land to which the said
S.45 applies for the purpose of or in connection with
such exercise of that right."
What is the right of establishment to which the
Instrument refers? What is the significance of the Land
Act 1965 and in what way does it affect out Treaty
obligations? Does S.I. 144 adequately discharge those
obligations?
What is the background to the introduction of this
Instrument? Prior to the 1st of June 1983, the need to
obtain the consent of the Land Commission when an
EEC national
3
was contemplating the purchase of land
in the State was an accepted and largely unquestioned
requirement of Irish conveyancing law and practice.
The consequences of failure to obtain this consent were
serious. Consider the following hypothetical example:
Helmut, a citizen of the Federal Republic of
Germany, came to Ireland in 1980 and succeeded in
buying 10 acres of agricultural land in fee simple from
Eamonn, an Irish National. In January 1983 Helmut
decided to sell the land to Benjy, also an Irish National.
Both parties used the Standard Form Contract approved
by the Incorporated Law Society of Ireland. Following
General Condition 8 thereof. Helmut's solicitor sent
copies of the title documents to Benjy's solicitor. At this
stage. Benjy's solicitor queried the absence of a
certificate on the Conveyance from Eamonn to Helmut
stating that the consent of the Land Commission had
been obtained to the vesting of the land in Helmut, as
required by S.45 of the Land Act. However, Helmut's
solicitor, a staunch believer in European integration,
made no apology for failing to obtain the consent and
refused to seek a "retrospective consent" from the Land
Commission when requested to do so. What were the
consequences for his client?
S.45 (2)(a) of the Land Act 1965 provides that no
interest in land shall vest in a person who is not a
"qualified person" unless he obtains the written consent
of the Land Commission.
In summary, a "qualified person" is a person who is
either-
i. An Irish Citizen, or
ii. A natural Person resident in the State for more
than seven years prior to the transaction, or
iii. A person who receives the Certificate of the Min-
ister for Industry and Commerce stating that it has
been shown to the Minister's satisfaction that the
land is being acquired for the purpose of an in-
dustry other than agriculture, or
iv. A local authority, or
v. A body corporate which does not have the words
"Limited" or "Teoranta" appended to its name,
or
vi. A body corporate established by Statute, or
vii. A body corporate established under the direction
or authorisation of a statute, or
viii. A Bank named in the third schedule to the Central
Bank Act, 1942, or
ix. A person who satisfies the Land Commission that
he is acquiring less than five acres of land for
private residential purposes, or
x. Any category declared by the Minister via regulat-
ions to be an additional category.
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