The Gazette 1985

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GAZETTE APRIL 1985
payable on her business as a credit negotiator by relying
on an EEC directive which Germany had failed to
implement in time. In the Ratti Case6 the terms of a
directive were relied on by the defendant in criminal
proceedings in Italy, and the Court of Justice ruled in
effect that Italy could not impose penalties under Italian
law which conflicted with a directive which it had failed to
implement.
Now, the High Court in Dublin has been seized with
two cases arising on applications for orders of certiorari,
which involve consideration of whether the applicants —
who are married women who were in receipt of
unemployment benefit — can rely upon Council Directive
79/7 in claiming entitlement to the standard rate of
unemployment benefit and to be paid for the full period
for such benefit, notwithstanding the contrary provisions
of the Social Welfare (Consolidation) Act 1981 and the
fact that Ireland has not implemented the Directive, as it
was obliged to do on or before 22 December 1984.7
(b) Right of EEC Nationals to reside, work, establish
themselves and remain in Ireland:
Articles 48 to 66 of the EEC Treaty provide for free
movement of workers, right of establishment and
freedom to provide services for EEC nationals. Under the
Accession arrangements there was provision that up to
the end of December 1977 EEC nationals (other than
persons born in Britain or Northern Ireland) required a
work permit from the Department of Labour in order to
take up employment in Ireland. However, from 1
December 1978 they could not be discriminated against
on the basis of nationality in applying for jobs in Ireland.
The relevant Irish measure is the European Communities
(Aliens) Regulations 1977 (S.I. No. 393 of 1977), which
replaced the European Communities (Aliens) Regula-
tions 1972. Also the power of the Minister for Justice or
immigration officials to exclude such EEC nationals, or
deport them from the State, has been severely curtailed by
the provisions of Council Directive 64/221, Article 3 of
which provides, inter alia,
"Measures taken on grounds of public policy or of
public security shall be based exclusively on the
personal conduct of the individual concerned.
Previous criminal convictions shall not in
themselves constitute grounds for the taking of such
measures."
In Van Duyn -v- Home Office8 that Article of the
Directive was construed as giving rise to rights in
individuals which national courts must protect.
The recent exclusion order made against the convicted
Nazi war criminal, Mr. Pieter Menten, was made under
s.5 of the Aliens Act 1935, and not under the European
Communities (Aliens) Regulations 1977. The powers of
the Minister under the 1935 Act are extremely wide, but
they could not be operated in such a way as to deprive an
EEC national of rights of free movement under
Community law. It is not at all clear from newspaper
reports that Mr. Menten would be able, or indeed willing,
to bring himself within one of the relevant categories by
showing that he wished to establish himself, or provide or
receive a service or to take up employment in Ireland; but
even if he were to so do, he could still be refused leave to
land if the Minister was satisfied that his personal conduct
was such as to be contrary to public policy or to endanger
public security. Under the Aliens Regulations 1977
Menten would then be entitled either to appeal to the
Authority established under the Regulations (His
Honour Judge O'Malley of the Circuit Court, who has a
purely advisory role), or to challenge the decision in
Court.
In order to facilitate EEC nationals with professional
qualifications in exercising their right of establishment in
another country, it was necessary to have Council
Directives providing for the mutual recognition of
degrees and diplomas. This has now been achieved in
relation to most of the professions, for example:
Doctors Directives 75/362 & 75/363,
Irish Measure Medical Practitioners Act 1978.
Lawyers (Services) Directive 77/249,
Irish Measure European Communities (Freedom to
Provide Services) (Lawyers) Regulations 1979, S.I.
No. 58 of 1979.
Nurses Directives 77/452 and 77/453
Irish measure European Communities (Nurses)
Regulations 1980. S.I. No. 237 of 1980.
Dentists Directives 78/686, 78/687 and 78/688,
Irish Measure European Communities (Dentists)
Regulations 1980. S.I. No. 90 of 1980. S.I. No. 90of
1980.
Veterinary Surgeons Directives 78/1026, 78/1027
and 78/1028.
Irish Measure European Communities (Nurses)
of Qualifications in Veterinary Medicine) Regula-
tions 1982 S.I. No. 323 of 1982.
Veterinary Surgeons Directives 78/1026, 78/1027 &
78/1028.
Irish Measure European Communities (Recognition
of Qualifications in Veterinary Medicine) Regula-
tions 1982. S.I. No. 323 of 1982.
There has already been considerable case law on the
right of establishment and on interpretation of these
directives, arising out of questions referred by national
courts to the Court of Justice. For example, the Doctor's
Directive was interpreted in the Broekmeulen Case 9 on a
reference to the Court from the Dutch General Practi-
tioners' Registration Committee (which was deemed to
come within Article 177), to the effect that Dr.
Broekmeulen who had a Belgian diploma could not
practise as a GP in the Netherlands, even though a Dutch
GP would have required further training in addition to a
diploma before doing so. In the Auer Case10 an Austrian
who became a naturalised Frenchman, and who had
obtained his professional qualifications in Italy as a
veterinary surgeon, was able to rely on the relevant
directive to practise in France, notwithstanding that this
was prohibited by French law, because France could not
plead its own failure to implement the Directive. A very
similar issue arose in the Rienks Case11 where a Dutch
national who had qualified as a vet in the Netherlands
sought to practise in Italy, but had his application for
enrolement on the Register of Veterinary Surgeons refused
and was subsequently prosecuted under Italian law. The
Court ruled that a Member State cannot enforce a penal
measure in respect of the improper practise of the
profession of veterinary surgeon against a qualified
national of another Member State on the grounds that he
is not enrolled on the Register, where such enrolment is
refused in breach of Community law.
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