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GAZETTE
JANUARY/FEBRUARY 1985
the conditions laid down in those Treaties".
The combined effect of the constitutional amendment
and of s.2 of the European Communities Act 1972 was
considered by Mr. Justice Henchy as follows:
"The adoption, as binding on this State and as part
of the domestic law,
of allfuture
acts adopted by the
institutions of the EEC is a form
of carte blanche
the
implications of which cannot be measured in
advance, for the possible range of those acts is
limited only by the Treaties. A new type of
legislation has been introduced into our legal
system, emanating neither from the people nor from
the national parliament, possibly unrelated to or
even at variance with national interests or constitu-
tional limitations as they existed before the passing
of the Third Amendment, and which may be
interpreted or reviewed conclusively only by the
EEC Court in Luxembourg. In the face of this wave
of new law — the numerous agricultural regulations
alone justify the expression — national sovereignty
is submerged. In the realm into which this new law
reaches, the constitutional restraints on legislative
capacity have no operation. The result is a corpus of
law, growing in volume and scope, emanating
geographically and ideologically from outside the
Irish perspective, transcending national considera-
tions and inspired solely by the vision of an ever
closer union, free trade and general economic
progress within the complex of European States,
forming the EEC. Ireland is participating in what is
potentially the greatest voluntary acceptance of
external law since the reception of Roman Law in-
various parts of Europe in the Middle Ages.
Against the fact that the Constitution may not be
called on to invalidate Community law must be
weighed the fact that Community law carries with it
a new set of rights, duties and liabilities operating
with a force and effect as if they were entrenched in a
Constitution. Because Community law is part of
domestic law, it is the duty of the courts set up under
the Constitution to implement it; but it is the
exclusive function of the European Court to
interpret and determine conclusively the validity of
the Treaties and of acts put forward as Community
law; and where a conflict is found to exist between
national law and Community law, it is an absolute
imperative that the Community law shall prevail.
The Oireachtas must now frame its laws not alone
so as not to exceed the limitations imposed by the
Constitution but also so as not to transgress
Community law. Likewise, our non-statutory law
survives only if it passes the same two tests.
Therefore, it is as if the people of Ireland had
adopted Community law as a second but
transcendent Constitution, with the difference that
Community law is not to be found in any single
document — it is a living, growing organism, and
the right to generate it and give it conclusive judicial
interpretation is reserved to the institutions of the
Community and its Court."
7
It is difficult to avoid the uncomfortable conclusion,
then, that a legal practitioner who failed to advert to
certain relevant provisions of Community law when
offering advice to a client could be exposed to the risk of
an action for professional negligence. The Law Schools
and professional bodies have by now recognised the need
for adequate instruction in European Community law,
but a question mark still hangs over the general
competence of practitioners in both branches of the legal
profession to identify and advise on issues of Community
law.
•
(to be continued)
Footnotes
1. Fifty-fifth Report of the Joint Committee on the Secondary Legisla-
tion of the European Communities (Functions and Work of Joint
Committee) Prl. 6169, at page 9.
2. [19631 ECR, p. 12.
3. [1982] ECR, p. 70-71.
4. [1964] ECR, p. 593-4.
5. [1978] ECR, p. 645-6.
6. 1,041,890 votes were cast in favour of the amendment, 211,891
against. For analysis of the effects of this amendment see Bryan
McMahon, 1 Eur. Law Rev. 86; John Temple Lang [ 1972] 9 CMLR
167; Mr. Justice Henchy 1977 D.U.L.J. 20; John M. Kelly, The Irish
Constitution, 2nd Ed. 187-9.
7. "The Irish Constitution and the EEC", 1977 D.U.L.J, at p. 23.
* This article is a revised and updated version of a lecture
given by the author at an SYS Seminar in the Ardee Hotel,
Water ford in March 1982, and is being published here with
the kind permission of the Society of Young Solicitors. The
article will appear in six parts.
IRISHNATIONWIDE
BUILDINGSOCIETY
LAW AGENT
Applications are invited from well organised
competent Solicitors with a minimum of 10 years
post-qualifying experience.
Applicants must be fully conversant with, and
have specialised knowledge of. all aspects of
Conveyancina Practice and Procedure. Ability to
manage a busy office and to control staff
essential.
Experience in other areas of Legal Practice,
particularly Litigation, would be an advantage.
The salary and conditions will reflect the high
calibre of the person sought and the importance
of the post. Present staff have been notified.
Applications in strictest confidence with
curriculum vitae to:
The Secretary.
Irish Nationwide Building Society.
1 Lower O'Connell Street, Dublin 1.
8