The Gazette 1985

GAZETTE

APRIL 1985

substantial question of law involving a possible reference to the Court of Justice for a preliminary ruling. In those circumstances, he did not consider it appropriate to refer the question to the European Court for decision, because he concluded that it would be wrong to keep the plaintiffs out of their money while the defendant's claim was being litigated. Moreover, he noted that the earlier case, Agra Trading Limited -v- The Minister for Agriculture had been appealed to the Supreme Court, and in the circumstances he gave the plaintiffs leave to enter final judgment for the sums claimed by them on condition that they provide security upon the same terms and conditions as had applied under the Commission regulation, so that the defendant could if necessary pursue his claim in separate proceedings. Protection of Human Rights under Community Law There is now extensive jurisprudence of the Court of Justice to the effect that Community Law must respect the fundamental rights of citizens of the Member States, and that EEC legislation could be annulled or declared invalid if it infringes those rights. A good illustration of the development of the Court of Justice's jurisprudence in the area of human rights is provided by Hauer -v- Land Rheinland-Pfalz. 14 Frau Hauer was the owner of a plot of land on which she wanted to grow vines, and she had applied under the relevant German law for authorisation for new planting. She was refused initially, but while her appeal was being processed in Germany, an EEC Regulation was introduced, prohibiting new planting in any such areas from 1 December 1976 to 30 November 1978. Subsequently Frau Hauer was informed that although she could now qualify under the German provisions, the prohibition under the Council Regulation would prevent her planting new vines before a certain date. Frau Hauer commenced proceedings in the German court claiming that the EEC Regulation contravened her fundamental rights, including her right to property and her right to pursue a trade or professional activity under the law of the Federal Republic of Germany. The German court decided to refer certain questions to the Court of Justice on the interpretation of the relevant Council Regulation. The Court of Justice first made it clear that the question of a possible infringement of fundamental rights by a measure adopted by the Community Institu- tions can only be judged in the light of Community law itself — and not by reference to the constitution of a particular Member State. Then the Court referred to its earlier case law in which it had affirmed: 15 . . that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognised by the constitutions of those States are unacceptable in the Community — and that, similarly, international treaties for the protection of human rights on which Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law. That conception was later recognised by the joint declaration of the European Parliament, the

Council and the Commission on 5 April 1977, which after recalling the case law of the Court, refers on the one hand to the rights guaranteed by the constitutions of the Member States and on the other hand to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (Official Journal C103, 1977, p. 1)" The Court then went on to consider the right to property claimed by Frau Hauer, and in that connection referred to Article 1 of the first Protocol to the European Convention for the Protection of Human Rights. It noted that the right contained there is not an absolute one, and concluded on this point: 16 "Thus the Protocol accepts in principle the legality of restrictions upon the use of property, whilst at the same time limiting those restrictions to the extent to which they are deemed 'necessary' by a state for the protection of the 'general interest'. However, that provision does not enable a sufficiently precise answer to be given to the question submitted by the Verwaltungsgericht. Therefore, in order to be able to answer that question, it is necessary to consider also the indications provided by the constitutional rules and practices of the nine Member States. One of the first points to emerge in this regard is that those rules and practices permit the legislature to control the use of private property in accordance with the general interest . . ." The Court of Justice then referred to relevant Articles of the German, Italian and Irish Constitutions (Article 43.2.1. and Article 43.2.2.) to illustrate the qualifications contained therein. It concluded that the Council Regulation prohibiting new vine planting for a certain period was a reasonable economic measure and not in conflict with the right of property or the right to pursue a trade or professional activity as these rights would be recognised and protected under European Community Law. Another helpful perspective in which to view the penetration of Community law is to consider what remedies and defences may be available in Irish courts where a party seeks to rely on a Community provision. These will be considered in Part V. • Footnotes 1. [1981] IR 451. 4.(1979) JISEL 48. 5.(1979) JISEL 66. 6. Joined Cases 36 & 71/80 [1981] ECR 735. 7.(1982-1983) JISEL 83. 8. Supreme Court Judgment, 29 March 1985, unreported. 9. Ibid, at p.3. 10. Case 80/76 [1977] ECR 435. 11. Judgment of 19 May 1983 (1982-83) JISEL 108. See also Irish Grain Board Ltd. -v- Min. for Agriculture. D'Arcy J. [1981] ILRM 10 and Continental Irish Meal Ltd. -v- Min for Agriculture. [1983] ILRM 503. 14. Case 44/79 [1979] ECR 3727. 15. Ibid, at para 15, p.3744-5. 16. Ibid, at paras 19 & 20, p.3746. 2. Case 177/78 [1979] ECR 2161 at 2194. 3. [1981] IR 464n [1981] 3 CMLR 408. 12.(1982-83) JISEL 124. 13.(1982-83) JISEL 124.

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