The Gazette 1985

JANUARY/FEBRUARY 1985

GAZETTE

How EEC Law Affects Practitioners* Part I

by Senator Mary Robinson, S.C.

I RELAND has now been a Member State of the Commun i ty f or mo re than twelve years. Since the date of Accession, 1st January 1973, the basic treaties and acts of the Institutions have formed part of Irish law, and yet the position still seems to be much as perceived by the first Oireachtas Joint Committee on the Secondary Legislation of the European Communities, which noted in its 55th Report in March 1977: "The Joint Committee doubts if the general public or even parliamentarians appreciate the extent to which Community law which governs activities in the fields of trade, industry, transport, agriculture and services, is continuously being incorporated into our legal system either directly or through the agency of statutory instruments made by ministers". 1 I would go so far as to doubt whether all legal practitioners have a perfect appreciation of the impact of European Community Law in Ireland! The.purpose of this paper is to focus on the constitutional and legal implications which flow from the penetration of European Community law: by reference to the rights which can arise, the remedies and defences available and the different procedures by which these can be pursued. In other words, it is not my intention to give an academic lecture on European Community law, but rather to illustrate its relevance and impact on our legal system and to assess the extent to which it is part of Irish law enforceable in our courts. - the Treaties establishing the three Communities (ECSC, EEC and Euratom) and the secondary legislation made under each by the Council and Commission. - related Treaties concluded between the Member States, including the Accession Treaties; - Broader international Treaties binding on all Member States, where the responsibilities for concluding them have been assumed by the Community; - decisions of the Court of Justice of the European Communities. Ireland is bound under international law to carry out the obligations imposed by membership, and the extent of this obligation is clearly set out in Article 5 of the EEC Treaty: Nature of European Community Law The formal sources of Community law include:

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the Institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty". However, the real significance for practitioners of the penetration of European Community law in Ireland stems from the fact that much of it gives rise to rights vested in individuals — natural or legal — which the Irish courts are bound to safeguard and enforce. In an early decision, the Van Gend en Loos Case (Case 26/62 [1963] ECR 1, the Court of Justice identified the nature of Community law as follows: "the conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and the Institutions of the Community". 2 The nature and extent of the impact of Community law on the national legal systems is assessed by reference to two distinct concepts: direct applicability and direct effects. Strictly speaking, "direct applicability" is the particular attribute of a regulation of either the Council or Commission (as defined in Article 189 EEC Treaty), which ensures its access in its entirety to the national legal order without any need for specific incorporation. Indeed, the Court of Justice has stated that a Member State should not reproduce the text of a regulation in national legislation because to do so would diminish its impact and deny its capacity for direct penetration into that law — Variola Case (Case 34/73) [1973] ECR 981. The term "direct effects" refers to a provision, which may be an Article of the EEC Treaty or even part of a Directive, which is sufficiently clear, precise and 5