159 / 406
GAZETTE
APRIL 1985
substantial question of law involving a possible reference
to the Court of Justice for a preliminary ruling. In those
circumstances, he did not consider it appropriate to refer
the question to the European Court for decision, because
he concluded that it would be wrong to keep the plaintiffs
out of their money while the defendant's claim was being
litigated. Moreover, he noted that the earlier case,
Agra
Trading Limited
-v-
The Minister for Agriculture
had been
appealed to the Supreme Court, and in the circumstances
he gave the plaintiffs leave to enter final judgment for the
sums claimed by them on condition that they provide
security upon the same terms and conditions as had
applied under the Commission regulation, so that the
defendant could if necessary pursue his claim in separate
proceedings.
Protection of Human Rights under Community Law
There is now extensive jurisprudence of the Court of
Justice to the effect that Community Law must respect
the fundamental rights of citizens of the Member States,
and that EEC legislation could be annulled or declared
invalid if it infringes those rights. A good illustration of
the development of the Court of Justice's jurisprudence in
the area of human rights is provided by
Hauer
-v-
Land
Rheinland-Pfalz.
14
Frau Hauer was the owner of a plot of
land on which she wanted to grow vines, and she had
applied under the relevant German law for authorisation
for new planting. She was refused initially, but while her
appeal was being processed in Germany, an EEC
Regulation was introduced, prohibiting new planting in
any such areas from 1 December 1976 to 30 November
1978. Subsequently Frau Hauer was informed that
although she could now qualify under the German
provisions, the prohibition under the Council Regulation
would prevent her planting new vines before a certain
date.
Frau Hauer commenced proceedings in the German
court claiming that the EEC Regulation contravened her
fundamental rights, including her right to property and
her right to pursue a trade or professional activity under
the law of the Federal Republic of Germany. The German
court decided to refer certain questions to the Court of
Justice on the interpretation of the relevant Council
Regulation. The Court of Justice first made it clear that
the question of a possible infringement of fundamental
rights by a measure adopted by the Community Institu-
tions can only be judged in the light of Community law
itself — and not by reference to the constitution of a
particular Member State. Then the Court referred to its
earlier case law in which it had affirmed:
15
. . that fundamental rights form an integral part
of the general principles of the law, the observance
of which it ensures; that in safeguarding those rights
the Court is bound to draw inspiration from
constitutional traditions common to the Member
States, so that measures which are incompatible
with the fundamental rights recognised by the
constitutions of those States are unacceptable in the
Community — and that, similarly, international
treaties for the protection of human rights on which
Member States have collaborated or of which they
are signatories, can supply guidelines which should
be followed within the framework of Community
law. That conception was later recognised by the
joint declaration of the European Parliament, the
Council and the Commission on 5 April 1977,
which after recalling the case law of the Court,
refers on the one hand to the rights guaranteed by
the constitutions of the Member States and on the
other hand to the European Convention for the
Protection of Human Rights and Fundamental
Freedoms of 4 November 1950 (Official Journal
C103, 1977, p. 1)"
The Court then went on to consider the right to
property claimed by Frau Hauer, and in that connection
referred to Article 1 of the first Protocol to the European
Convention for the Protection of Human Rights. It noted
that the right contained there is not an absolute one, and
concluded on this point:
16
"Thus the Protocol accepts in principle the legality
of restrictions upon the use of property, whilst at the
same time limiting those restrictions to the extent to
which they are deemed 'necessary' by a state for the
protection of the 'general interest'. However, that
provision does not enable a sufficiently precise
answer to be given to the question submitted by the
Verwaltungsgericht.
Therefore, in order to be able to answer that
question, it is necessary to consider also the
indications provided by the constitutional rules and
practices of the nine Member States. One of the first
points to emerge in this regard is that those rules
and practices permit the legislature to control the
use of private property in accordance with the
general interest . . ."
The Court of Justice then referred to relevant Articles
of the German, Italian and Irish Constitutions (Article
43.2.1. and Article 43.2.2.) to illustrate the qualifications
contained therein. It concluded that the Council
Regulation prohibiting new vine planting for a certain
period was a reasonable economic measure and not in
conflict with the right of property or the right to pursue a
trade or professional activity as these rights would be
recognised and protected under European Community
Law.
Another helpful perspective in which to view the
penetration of Community law is to consider what
remedies and defences may be available in Irish courts
where a party seeks to rely on a Community provision.
These will be considered in Part V.
•
Footnotes
1. [1981] IR 451.
2. Case 177/78 [1979] ECR 2161 at 2194.
3. [1981] IR 464n [1981] 3 CMLR 408.
4.(1979) JISEL 48.
5.(1979) JISEL 66.
6. Joined Cases 36 & 71/80 [1981] ECR 735.
7.(1982-1983) JISEL 83.
8. Supreme Court Judgment, 29 March 1985, unreported.
9.
Ibid,
at p.3.
10. Case 80/76 [1977] ECR 435.
11. Judgment of 19 May 1983 (1982-83) JISEL 108.
12.(1982-83) JISEL 124.
13.(1982-83) JISEL 124.
See also
Irish Grain Board Ltd.
-v-
Min. for Agriculture.
D'Arcy J.
[1981] ILRM 10 and
Continental Irish Meal Ltd.
-v-
Min for
Agriculture.
[1983] ILRM 503.
14. Case 44/79 [1979] ECR 3727.
15.
Ibid,
at para 15, p.3744-5.
16.
Ibid,
at paras 19 & 20, p.3746.
147