The Gazette 1983

GAZETTE

SEPTEMBER 1983

If we assume that Helmut was not a "qualified

person" the generally accepted view would have been

that Helmut did not acquire a valid title to the land. The

logic is simple on the face of it; Helmut must either fit

into one of the approved categories or obtain the con-

sent of the Land Commission. Helmut has not satisfied

either of these conditions. Therefore the land is

incapable of vesting in him. Logically too, therefore,

Helmut would not have succeeded in an action for

specific performance against Benjy because Irish Courts

will not generally force a bad title on a purchaser by

granting a decree for specific performance to the

vendor.

Moreover, it is probable that Benjy would

have been entitled to be discharged from his contract

altogether.

By virtue of the fact that the decision was taken to

refer the State to the European Court of Justice, the

Commission was presumably dissatisfied with the

continuing existence of S.45(2)(a) of the Land Act

despite the fact that in practice a consent might be

obtained on behalf of an EEC national if a determined

approach was taken on his or her behalf. What was the

cause of this dissatisfaction?

Right of Establishment

Art.52 EEC

provides for what is called a "Right of

Establishment" of Nationals of one member-State in the

territory of another Member-State. Although the "right

of Establishment" is not explicitly defined in the Treaty,

it has been defined elsewhere

as 'the right of a natural

person or a company to settle in a Member-State and to

pursue economic activities therein".

Generally speaking, this will involve settlement in a

Member-State for economic purposes which on any

reasonable interpetation must include the management

and operation of lands for the purposes of carrying on an

agricultural or any other business.

The EEC Treaty provided for a "general programme"

for the abolition of existing restrictions on freedom of

establishment in the Community.

This programme

was adopted in 1961 and provided a basis for the

subsequent legislative actions of the Council of the

European Communities in this field. This legislative

scheme, consisting largely of a series of Directives, was

adopted on the basis that the prohibition on discriminat-

ion implicit in Art.52 EEC was ineffective without

implementing legislation by Member-States. It was the

purpose of the Land Act (Additional Categories of

Qualified Persons) Regulation, 1972

to provide that

persons and bodies specified as beneficiaries under

certain directives

of the Council of the EEC should be

"qualified persons" within the meaning of S.45 of Land

Act 1965. Undoubtly the 1972 Regulation would in time

have been followed by others intended to abolish dis-

crimination in regard to freedom of establishment.

However, the decision of the European Court of

Justice in

Reyners

Belgium State

operated so as to

stem the burgeoning tide of Community and Domestic

legislation. In that case, the Court declared that the

prohibition on discrimination implicit in Art.52 EEC

was "directly applicable" as of the end of the transitional

period,

and this despite the wording of the text of

Art.52 which puported to make the aim of freedom of

establishment dependent upon the Council's legislative

programme and ultimately upon implementing

legislation by EEC Member-States. This decision means

that Art.52

itself

can be relied on by a Plaintiff in a

National Court who is alleging restrictions on his right to

freedom of establishment. Even more significantly,

Art. 52, like Arts.48 and 59, will be construed as prohibit-

ing discrimination by private parties as well as by public

parties.

It should be noted that Art.56 EEC which permits

derogation from the right of establishment in certain

specified circumstances only does so in respect of

conditions of entry and residence and not in respect of

the terms and conditions under which occupational

activities are carried on or are intended to be carried on;

this means that a State cannot impose restrictions on

EEC nationals on "public policy" grounds where the

real motive is to restrict solely or substantially on

grounds of nationality the integration of foreign

nationals into the host State's economy.

Art.7

of the EEC Treaty is also relevant since it

states in effect that all arbitrary differentiation between

persons based on factors connecting them with one

Member-State rather than another is incompatible with

one of the central aims of the Treaty, viz. the establish-

ment of a single market between Member-States. Any

such differentiation must therefore be inconsistent with

our Treaty obligations.

The obligations of membership of the European

Communities gave rise to special problems of a constitut-

ional nature. A solution was found through the medium

of the Third Amendment to the Constitution. The

operative part of sub-section 3 of section 4 of Article 29

of the Constitution provides that:

No provision of this Constitution invalidates laws en-

acted, 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.

The better view of Art.52 EEC is that it has, by virtue

of Art.29.4.3 of the Constitution, the force of law in the

State and more importantly that its status is superior to

that of any other provision of the Constitution which

might possible conflict with it or restrict its effect.

fortiori

, Art.52 EEC must take precedence over any Act

of the Oireachtas restricting or puporting to restrict its

effect. It is well settled under Community Law (as well

as under International Law) that a State cannot plead

provisions of its own domestic legislation or

Constitution as a defence to an alleged infringement of

Community Law (in this case Art.52 EEC); and any

provision of our legal system and any legislative,

administrative or judicial practice which might impair

the effectiveness of Community Law must be set aside

by our courts, n

The Land Act, 1965 (as amended) puported to render

the vesting of Land in a person who was not an Irish

Citizen but who was an f i EC national (though not a

"qualifed person") void without the consent of the Land

Commission.

Prima Facie

, this was a discriminatory

interference of an invidious nature with the right of an

EEC national to pursue an economic activity in this

country. In the case of our hypothetical example the

"economic activity" which was interfered with was the

right to enter into a contract for the purchase of land to

carry on an agricultural or any other business or to resell

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