The Gazette 1983

GAZETTE

SEPTEMBER 1983

legislation by EEC Member-States. This decision means that Art.52 itself can be relied on by a Plaintiff in a National Court who is alleging restrictions on his right to freedom of establishment. Even more significantly, Art. 52, like Arts.48 and 59, will be construed as prohibit- ing discrimination by private parties as well as by public parties. 13 It should be noted that Art.56 EEC which permits derogation from the right of establishment in certain specified circumstances only does so in respect of conditions of entry and residence and not in respect of the terms and conditions under which occupational activities are carried on or are intended to be carried on; this means that a State cannot impose restrictions on EEC nationals on "public policy" grounds where the real motive is to restrict solely or substantially on grounds of nationality the integration of foreign nationals into the host State's economy. 14 Art.7 15 of the EEC Treaty is also relevant since it states in effect that all arbitrary differentiation between persons based on factors connecting them with one Member-State rather than another is incompatible with one of the central aims of the Treaty, viz. the establish- ment of a single market between Member-States. Any such differentiation must therefore be inconsistent with our Treaty obligations. The obligations of membership of the European Communities gave rise to special problems of a constitut- ional nature. A solution was found through the medium of the Third Amendment to the Constitution. The operative part of sub-section 3 of section 4 of Article 29 of the Constitution provides that: No provision of this Constitution invalidates laws en- acted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities or institutions thereof, from having the force of law in the State. 16 The better view of Art.52 EEC is that it has, by virtue of Art.29.4.3 of the Constitution, the force of law in the State and more importantly that its status is superior to that of any other provision of the Constitution which might possible conflict with it or restrict its effect. A fortiori , Art.52 EEC must take precedence over any Act of the Oireachtas restricting or puporting to restrict its effect. It is well settled under Community Law (as well as under International Law) that a State cannot plead provisions of its own domestic legislation or Constitution as a defence to an alleged infringement of Community Law (in this case Art.52 EEC); and any provision of our legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community Law must be set aside by our courts, n The Land Act, 1965 (as amended) puported to render the vesting of Land in a person who was not an Irish Citizen but who was an f i EC national (though not a "qualifed person") void without the consent of the Land Commission. Prima Facie , this was a discriminatory interference of an invidious nature with the right of an EEC national to pursue an economic activity in this country. In the case of our hypothetical example the "economic activity" which was interfered with was the right to enter into a contract for the purchase of land to carry on an agricultural or any other business or to resell 193

If we assume that Helmut was not a "qualified person" the generally accepted view would have been that Helmut did not acquire a valid title to the land. The logic is simple on the face of it; Helmut must either fit into one of the approved categories or obtain the con- sent of the Land Commission. Helmut has not satisfied either of these conditions. Therefore the land is incapable of vesting in him. Logically too, therefore, Helmut would not have succeeded in an action for specific performance against Benjy because Irish Courts will not generally force a bad title on a purchaser by granting a decree for specific performance to the vendor. 5 Moreover, it is probable that Benjy would have been entitled to be discharged from his contract altogether. By virtue of the fact that the decision was taken to refer the State to the European Court of Justice, the Commission was presumably dissatisfied with the continuing existence of S.45(2)(a) of the Land Act despite the fact that in practice a consent might be obtained on behalf of an EEC national if a determined approach was taken on his or her behalf. What was the cause of this dissatisfaction? Right of Establishment Art.52 EEC 6 provides for what is called a "Right of Establishment" of Nationals of one member-State in the territory of another Member-State. Although the "right of Establishment" is not explicitly defined in the Treaty, it has been defined elsewhere 7 as 'the right of a natural person or a company to settle in a Member-State and to pursue economic activities therein". Generally speaking, this will involve settlement in a Member-State for economic purposes which on any reasonable interpetation must include the management and operation of lands for the purposes of carrying on an agricultural or any other business. The EEC Treaty provided for a "general programme" for the abolition of existing restrictions on freedom of establishment in the Community. 8 This programme was adopted in 1961 and provided a basis for the subsequent legislative actions of the Council of the European Communities in this field. This legislative scheme, consisting largely of a series of Directives, was adopted on the basis that the prohibition on discriminat- ion implicit in Art.52 EEC was ineffective without implementing legislation by Member-States. It was the purpose of the Land Act (Additional Categories of Qualified Persons) Regulation, 1972 9 to provide that persons and bodies specified as beneficiaries under certain directives 10 of the Council of the EEC should be "qualified persons" within the meaning of S.45 of Land Act 1965. Undoubtly the 1972 Regulation would in time have been followed by others intended to abolish dis- crimination in regard to freedom of establishment. However, the decision of the European Court of Justice in Reyners v. Belgium State 11 operated so as to stem the burgeoning tide of Community and Domestic legislation. In that case, the Court declared that the prohibition on discrimination implicit in Art.52 EEC was "directly applicable" as of the end of the transitional period, 12 and this despite the wording of the text of Art.52 which puported to make the aim of freedom of establishment dependent upon the Council's legislative programme and ultimately upon implementing