The Gazette 1983

GAZETTE

SEPTEMBER 1983

templates the imposition of conditions on the right of establishment, and not a situation where the exercise of the right itself can arbitrarily be denied. By confining itself to the interests of persons who are citizens of the Member-States of the European Communities SI 144 fails to remedy what must amount to a breach of our Treaty obligations. Professor J. C. W. Wylie, writing in 1978 was of the opinion that in the light of our Treaty obligations S.45 would, ultimately, have to be wholly repealed. 21 In view of the probable deficiences of the approach taken via S.I. 144 of 1983, it might have been advisable to have considered the opinion of Professor Wylie and to have taken a comprehensive, rather than a piecemeal, approach to the problem. In conclusion, it might be added that at the time of writing the European Commission has not proceeded to strike out its action against the State referred to above. • Footnotes 1. The Authors are Solicitor's Apprentices. 2. Cf. O. J. No. C26/1I: (23rd of December 1982) Case 339/82. For earlier commentaries on S. 45 see:- MacMahon, "The effect on Irish Law of recent developments in EEC law of right of establishment". S.Y.S. Lecture 92 at P. 12 (1975); O'Caoimh. "The individual European Member States obligations: Faithful implementation or realisation of unilateral political goals, with particular reference to Ireland". Journal of the I.S.E.L.. Vol. 5.P.3 at 16. (1981) 3. Needless to say. the consent of the Land Commission may still be required when a foreign national who is not a citizen of a Member State of the European Communities is contemplating the purchase of land in the State. 4. S.I. 332 of 1972. The specified beneficiaries under certain Directives of the EEC are. by virtue of this Instrument, deemed to be "qualified persons" within the meaning of S.45 of the Land Act. For details sec Wylie, Irish Conveyancing Law, para. 8.25 et seq. Note also that the provisions of S.45 do not apply to land in a County Borough, Borough, Urban District or Town. 5. Wylieop. cit. par. 12.36et seq. See also Snell, Principles of Equity, 28th edi- tion.. PP. 598-599. 6. Article 52 states inter alia, that "freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings..." 7. Cf. Brita Sundberg-Weitman. "Discrimination on grounds of Nationality" quoted in Wyatl and Dashwood, The substantive Law of the EEC (1982). 8. Article 54 EEC. 9. See footnote 3 above. 10. Directives 63/261, 63/262, 67/530, 67/531, 67/654. "see footnote four above. For example, by virtue of the 1972 Regulation, Nationals of one member state who have worked as paid agricultural workers in Ireland for an unbroken period of at least two years have the right to acquire fanning lands in the State Directive 63/261. 11. Case 2/74; (1974) 2 C.M.L.R. 305. 12. Ist of January 1973. 13. Wyatt and Dashwood. op. cit. at PP. 188-189. 14. Ibid. P. 192. 15. Article 7 EEC states, inter alia; "Within the scope of application of this Treaty and without prejudice to any special provisions contained therein; any discrimination on grounds of Nationality shall be prohibited". 16. See further J. M. Kelly. The Irish Constitution (1980) PP. 152-154. 17. Second Simmenthal Case (1978) ECR 629. The status of Art.52 EEC was HANDWRITING Mr. T. R. Davis, M.A. (Oxon.), B. Lin., Department of English, University of Birmingham, P.O. Box 363, Birmingham B15 2TT, England, will undertake the examination of handwriting for forensic purposes (anonymous letters, forgeries, etc). For further details contact him at the above address or phone either Birmingham (021)472-1301 ex. 3081, or Dublin 684486.

puportedly consolidated by S.2 of the European Communities Act 1972, but this Act was passed as a declaratory measure, largely to allay the fears of those members of the legal profession who had allowed themselves to be steeped too long in the chilling waters of the Common Law. 18. It could be argued that a vendor who was a national of another"Member- State whose title did not have incorporated in it a certificate stating that Land Commission consent had been obtained, might have been in certain circumstances able to obtain an order for specific performance against a purchaser who was reluctant to complete due to the absence of the Cert- ificate. Irish Courts might have been persuaded to decide-that the vendor's title was, to all intents and purposes, complete and was not suffering from any defect which would render a decree inequitable as against the purchaser. See also, "Right of Establishment before the French Courts" (1977) Ir. Jur. (N.S.) 280-281. (Cooney). which perhaps hints at the possibility of enforcing the Community right of establishment in a Municipal Court. 19. The definition of economic activity which is not contained in the text of Art.52 EEC, is capable of both a wide and a narrow interpetation in the con- text of the right of establishment. We favour a wide interpetation that would include the simple buying and selling of land for purposes other than for the making of a profit. If however, a narrow interpretation of this term were to be used based on an interpretation of Articles 2 and 3 EEC and other artiaies of the Treaty, e.g. Article 58 then the right of establishment ought properly to be restricted to economic activities being activities comprising the carrying out of trade or the provision of services with a view to profit. This might mean that an EEC national who wished to acquire land for the purposes of establishing a charity would not be a "qualified person" within the meaning of S.45 as amended. Since there is no such restriction on Irish Citizens, a narrow interpretation of this kind would, in our view not be consonant with our Treaty obligations. 20. Cf. Wyatt and Dashwood. 195-198. 21. Cf. Wylie. op. cit. Para 8.27.

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