The Gazette 1985

GAZETTE

APRIL 1985

How EEC Law Affects Practitioners

Part V

Senator Mary Robinson, S.C.

HE penetration of Community law into the Irish

legal system may be looked at from a number of

different perspectives. Having examined the nature of the

rights under Community law which may vest in an

individual or company, and which can be asserted directly

before the Irish courts, it is appropriate now to consider

the subject from the standpoint of the defences which

Community law may provide to actions brought under

Irish law.

(a)

In Criminal Proceedings:

There have been a number

of Irish examples where defendants in criminal proceed-

ings have relied on Community law as providing a

defence.

Minister for Fisheries

-v-

C.A. Schonenberg &

Others

(Case 88/77) [1978] ECR 473, a prosecution was

brought in the District Court in Cork against a number of

Dutch trawlermen for contravention of two Irish

measures, the Sea Fisheries (Conservation and Rational

Exploitation) Order 1977 and the Sea Fisheries (Conser-

vation and Rational Exploitation) No. 2 Order 1977. The

first Order prohibited sea-fishing boats from fishing in an

area of the sea within Ireland's exclusive fishery limits,

and the second Order exempted sea-fishing boats not

exceeding 33 metres in registered length or having an

engine power of more than 1,100 brake horsepower.

In the District Court in Cork the defendants challenged

the validity of these Irish measures, alleging that they

were in breach of part of the Common Fisheries Policy of

the European Community. The District Justice decided

to refer certain questions to the Court of Justice as to

whether Community law precluded Ireland from passing

the two statutory instruments, and whether a conviction

under those measures would itself be contrary to

Community law. The Court of Justice interpreted the

relevant provisions and in effect answered each of these

questions in the affirmative, so that when the ruling was

applied the prosecutions before the District Court were

dismissed. Whereas under Irish law the District Court

would have no jurisdiction to question the validity of the

statutory instruments, under Community law — which

has supremacy over conflicting national law — the

District Court was bound to disregard the Irish

provisions and strike out the charges.

Another illustration of a successful defence based on

Community law is provided by a Northern Ireland case —

Pigs Marketing Board of N.I.

-v-

Redmond

(Case 83/78)

[1978] ECR 2347. Redmond was prosecuted before the

Resident Magistrate in Armagh by the Pigs Marketing

Board for driving a cattle lorry containing 75 bacon pigs

without a transport authorisation issued in pursuance of

Article 4 of the Movement of Pigs Regulations (Northern

Ireland) 1972. However, when the matter came for

hearing before the Resident Magistrate it was pleaded in

Mr. Redmond's defence that the Northern Ireland

Regulations contravened the common organisation of the

market in pigmeat. Understandably, perhaps, the

Resident Magistrate decided to refer some questions to

the Court of Justice under Article 177. An appeal against

that decision was taken by the Pigs Marketing Board to

the Court of Appeal in Northern Ireland, but the Court of

Appeal would not interfere with the exercise of his

discretion to so refer.

In the event, the Court of Justice gave judgment on 29

November 1978 to the effect that a marketing scheme

which had the characteristics of the scheme described

would be incompatible with the requirements of Articles

30 and 34 of the EEC Treaty and of Reg. No. 2759/75 on

the common organisation of the market in pigmeat.

When the matter came back to the Resident Magistrate

in Armagh, on 26 January 1979, he dismissed the

summons against Mr. Redmond because:

"The ECJ's ruling before me is to the effect that the

legislation under which the Board was established

and by which its activities are supported and

maintained, in so far as that legislation purports

through the Board to control the marketing of

pigmeat, or part of the market in pigmeat, by

compulsory powers vested in it, such as subjecting

the marketing of the goods to a requirement that the

producer shall be registered with the Board, the

prohibition of any sale otherwise than to the Board

or through its agency on the conditions determined

by it and the prohibition of all transport of the

goods in question otherwise than subject to the

authorisation of the Board are to be considered

incompatible with the requirements of Articles 30

and 34 of the EEC Treaty and of Regulation

2759/75 on the common organisation of the market

in pigmeat . . . The net result is that this Court

cannot apply the inconsistent provisions of the

legislation in question, and must accordingly hold

that those sections of the Agricultural Marketing

Act (Northern Ireland) 1964, which purport to

make provisions for the establishing and the

support of Agricultural Marketing Schemes of the

nature and effect held by the ECJ to be

incompatible with the requirements of Articles 30

and 34 of the EEC Treaty and of Regulation

2759/75 on the common organisation of the market

in pigmeat, together with sections 8 and 9 of the

Agriculture (Miscellaneous Provisions) Act 1970

and the Movement of Pigs Regulations 1972 No.

90 — i.e., the legislation under and by virtue of

which this summons has been brought against the

defendant — are of no legal effect."

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