The Gazette 1985

GAZETTE

JANUARY/FEBRUARY 1985

European Community law do not just arise in the Court in Luxembourg, but are being raised with increasing frequency in the courts of the Member States, including the criminal courts. What happens, then, when there is a conflict between a provision of Community law and Irish legislation covering the same subject? Supremacy of Community Law The supremacy of Community law over the domestic law of Member States was also established at an early stage in the jurisprudence of the Court of Justice. In Costa -v- ENEL (Case 6/64) [1964] ECR 585, the Court referred to the new legal order of the Community and concluded as follows: "The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity... The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty set out in Article 5(2) and giving rise to the discrimination prohibited by Article 7". 4 The full implications of this supremacy principle were brought home when an Italian court referred certain questions which required the Court of Justice to rule on the duty which befell a national court faced with a conflict between a provision of Community law and a subsequent provision of domestic law on which one of the parties sought to rely in the domestic court — Simmenthal(No. 2) (Case 106/77) [1978] ECR 629. The operative part of the ruling is as follows: " A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await a prior setting aside of such provision by legislative or other constitutional means". 5 The position is, therefore, according to Community law — as authoritatively interpreted by the Court of Justice — that a new legal order has been created with very substantial penetration into the legal systems and laws of the Member States. As a consequence, rights can be asserted and defences based on provisions of Community law in either civil or criminal proceedings before the Irish courts. Any Irish court before which such a matter was raised — whether it be the District, Circuit, High or Supreme Court or any criminal court — would be obliged either to apply the Community law or, if in doubt, to refer such doubt by way of question to the Court of Justice in Luxembourg for interpretation. Even if the Irish court found itself in a position where there was a conflict between Community law and a subsequently enacted Act of the Oireachtas or statutory instrument, the

unconditional that it will be construed by the Court of Justice as conferring a legal right on a natural or legal person. Therefore, establishing direct effects is a matter of interpretation by the Court of Justice. A further issue may then arise as to whether the individual concerned can assert that right as against anyone, including another natural or legal person ("horizontal direct effects"), or only against a public body which had an obligation to respect that right ("vertical direct effects"). The Court of Justice has distinguished between construing whether a particular Treaty article gives rise to direct effects (when it has frequently used interchangeably the terms "directly applicable" and "direct effects", to the confusion of law students and the irritation of some academics!), and construing whether a provision of a Directive which required to be implemented may give rise to direct effects. If the Treaty article satisfies the tests for direct effects, it will be construed as giving rise to horizontal as well as vertical direct effects. In the case of the Directive, on the other hand the court has respected the distinction made in the definition of regulations and of directives in Article 189, and has concluded (Becker Case (Case 8/81) (1982) [1982] ECR 53): "It follows from well-established case-law of the Court and, most recently, from the judgment of 5 April 1979 in Case 148/78 Pubblico Ministero -v- /tam [1979] ECR 1629, that whilst under Article 189 regulations are directly app l i c ab le and, consequently, by their nature capable of producing direct effects, that does not mean that other categories of measures covered by that article can never produce similar effects. It would be incompatible with the binding effect which Article 189 ascribes to directives to exclude in principle the possibility of the obligations imposed by them being relied on by persons concerned. Particularly in cases in which the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law. Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. This, wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State." 1 The consequence of a Community provision being either directly applicable and/or giving rise to direct effects is that it must be applied and given such effect by the courts of each Member State. Therefore, issues of

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