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GAZETTE
JANUARY/FEBRUARY 1985
How
EEC
Law Affects Practitioners*
Part I
by
Senator Mary Robinson, S.C.
I
RELAND has now been a Member State of the
Commun i ty f or mo re than twelve years.
Since the date of Accession, 1st January 1973, the basic
treaties and acts of the Institutions have formed part of
Irish law, and yet the position still seems to be much as
perceived by the first Oireachtas Joint Committee on the
Secondary Legislation of the European Communities,
which noted in its 55th Report in March 1977:
"The Joint Committee doubts if the general public
or even parliamentarians appreciate the extent to
which Community law which governs activities in
the fields of trade, industry, transport, agriculture
and services, is continuously being incorporated
into our legal system either directly or through the
agency of statutory instruments made by
ministers".
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I would go so far as to doubt whether all
legal
practitioners
have a perfect appreciation of the impact of
European Community Law in Ireland! The.purpose of
this paper is to focus on the constitutional and legal
implications which flow from the penetration of
European Community law: by reference to the rights
which can arise, the remedies and defences available and
the different procedures by which these can be pursued. In
other words, it is not my intention to give an academic
lecture on European Community law, but rather to
illustrate its relevance and impact on our legal system and
to assess the extent to which it is part of Irish law
enforceable in our courts.
Nature of European Community Law
The formal sources of Community law include:
- the Treaties establishing the three Communities
(ECSC, EEC and Euratom) and the secondary
legislation made under each by the Council and
Commission.
- related Treaties concluded between the Member
States, including the Accession Treaties;
- Broader international Treaties binding on all
Member States, where the responsibilities for
concluding them have been assumed by the
Community;
- decisions of the Court of Justice of the European
Communities.
Ireland is bound under international law to carry out
the obligations imposed by membership, and the extent of
this obligation is clearly set out in Article 5 of the EEC
Treaty:
"Member States shall take all appropriate
measures, whether general or particular, to ensure
fulfilment of the obligations arising out of this
Treaty or resulting from action taken by the
Institutions of the Community. They shall facilitate
the achievement of the Community's tasks.
They shall abstain from any measure which could
jeopardise the attainment of the objectives of this
Treaty".
However, the real significance for practitioners of the
penetration of European Community law in Ireland
stems from the fact that much of it gives rise to rights
vested in individuals — natural or legal — which the Irish
courts are bound to safeguard and enforce. In an early
decision, the
Van Gend en Loos Case
(Case 26/62 [1963]
ECR 1, the Court of Justice identified the nature of
Community law as follows:
"the conclusion to be drawn from this is that the
Community constitutes a new legal order of
international law for the benefit of which the States
have limited their sovereign rights, albeit within
limited fields, and the subjects of which comprise
not only Member States but also their nationals.
Independently of the legislation of Member States,
Community law therefore not only imposes
obligations on individuals but is also intended to
confer upon them rights which become part of their
legal heritage. These rights arise not only where they
are expressly granted by the Treaty, but also by
reason of obligations which the Treaty imposes in a
clearly defined way upon individuals as well as upon
the Member States and the Institutions of the
Community".
2
The nature and extent of the impact of Community law
on the national legal systems is assessed by reference to
two distinct concepts:
direct applicability
and
direct
effects.
Strictly speaking, "direct applicability" is the
particular attribute of a regulation of either the Council
or Commission (as defined in Article 189 EEC Treaty),
which ensures its access in its entirety to the national legal
order without any need for specific incorporation.
Indeed, the Court of Justice has stated that a Member
State should not reproduce the text of a regulation in
national legislation because to do so would diminish its
impact and deny its capacity for direct penetration into
that law —
Variola Case
(Case 34/73) [1973] ECR 981.
The term "direct effects" refers to a provision, which may
be an Article of the EEC Treaty or even part of a
Directive, which is sufficiently clear, precise and
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