The Gazette 1967/71

she is unlike Britain and like the others in having a written Constitution. We are, therefore, in a unique position among the ten. Indeed it is from the combination of these factors that the more obvious legal implications peculiar to Ireland arise. "We have long been aware of these, and as early as 1962 when the question of expansion of the Communities to include Ireland and other countries was first under consideration, the Govern ment established a committee under the chair manship of the Attorney-General to consider the legal implications of accession to the Communities, including the compatibility of the Constitution with the obligations arising from accession. "In Ireland, unlike some other civil law coun tries, international agreements entered into by the State do not ipso facto prevail over the Constitu tion or other domestic legislation. On the contrary Article 29 (6) of the Constitution says : 'No inter national agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.' "Article 15 (4) says: '1. The Oireachtas shall not enact any law which is in any respect repug nant to this Constitution or any provision thereof. 2. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.' "In deciding, therefore, whether an amendment of the Constitution is required with a vie~.' to membership of the European Communities, it is necessary to consider whether the laws which must be enacted in fulfilment of the obligations of membership would conflict with the Constitution or any of its provisions. "As you are all aware, the European Communi ties have a much more developed structure than is usual among international organisations, reflect ing, of course, the intention of the member States that it should be a correspondingly more devel oped and tightly-knit entity. Thus, they have institutions with functions such as the power of the Council of Ministers and of the Commission to legislate for the Communities, and even to legislate with direct effect in the member States, powers which have been exercised continuously for more than a dozen years. "As the Community treaties are concerned with economic and commercial activities and related social matters, the legislative Acts have also naturally been confined principally to these spheres. Nevertheless, it is necessary to make legal

provision to give direct effect to such legislation in Ireland where the treaties require that this be done. It could possibly be argued that as the Constitution stands any Irish law purporting to give direct effect to such legislation would be in conflict with Article 15 (2) 1°, which says: 'The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas : no other legislative authority has power to make laws for the State ' "Again, the European Court of Justice estab lished by the Community treaties may entertain proceedings commenced not only by a member State or the Commission but also, in certain cir cumstances, by individuals. It is, moreover, the court of final appeal in relation to the interpre tation of the Community treaties or measures of the institutions, even where the questions of inter pretation arise in the first place ni proceedings before the domestic courts of a member State. "It might well be held that Irish legislation granting the necessary power and status to the court would conflict with the Constitution and in particular with Article 34 (1) which ways : 'Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution .. .' and Article 34 (4) 6 ° which says : 'The decision of the Supreme Court shall in all cases be final and conclusive.' "The Treaty of Rome also gives the Communi ties power to conclude treaties in the form of trade and association agreements with other countries which would be binding on the member States. In preparation of legislation in Ireland to confer such power on the Communities account would have to be taken of Article 29 of the Constitution dealing with international relations which says inter alia: '(4) 1°. The executive power of the State in or in connection with its external rela tions shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.' '(5) 2°. The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Bail Eireann.' And also '(6) No international agree ment shall be part of the domestic law of the State save as may be determined by the Oireachtas.' "It is possible that such legislation could be held inconsistent with some at least of these provisions." [to be continued]