The Gazette 1985

GAZETTE

APRIL 1985

How EEC Law Affects Practitioners Part V

by Senator Mary Robinson, S.C.

T HE penetration of Community law into the Irish legal system may be looked at from a number of different perspectives. Having examined the nature of the rights under Community law which may vest in an individual or company, and which can be asserted directly before the Irish courts, it is appropriate now to consider the subject from the standpoint of the defences which Community law may provide to actions brought under Irish law. (a) In Criminal Proceedings: There have been a number of Irish examples where defendants in criminal proceed- ings have relied on Community law as providing a defence. 1 In Minister for Fisheries -v- C.A. Schonenberg & Others (Case 88/77) [1978] ECR 473, a prosecution was brought in the District Court in Cork against a number of Dutch trawlermen for contravention of two Irish measures, the Sea Fisheries (Conservation and Rational Exploitation) Order 1977 and the Sea Fisheries (Conser- vation and Rational Exploitation) No. 2 Order 1977. The first Order prohibited sea-fishing boats from fishing in an area of the sea within Ireland's exclusive fishery limits, and the second Order exempted sea-fishing boats not exceeding 33 metres in registered length or having an engine power of more than 1,100 brake horsepower. In the District Court in Cork the defendants challenged the validity of these Irish measures, alleging that they were in breach of part of the Common Fisheries Policy of the European Community. The District Justice decided to refer certain questions to the Court of Justice as to whether Community law precluded Ireland from passing the two statutory instruments, and whether a conviction under those measures would itself be contrary to Community law. The Court of Justice interpreted the relevant provisions and in effect answered each of these questions in the affirmative, so that when the ruling was applied the prosecutions before the District Court were dismissed. Whereas under Irish law the District Court would have no jurisdiction to question the validity of the statutory instruments, under Community law — which has supremacy over conflicting national law — the District Court was bound to disregard the Irish provisions and strike out the charges. Another illustration of a successful defence based on Community law is provided by a Northern Ireland case — Pigs Marketing Board of N.I. -v- Redmond (Case 83/78) [1978] ECR 2347. Redmond was prosecuted before the Resident Magistrate in Armagh by the Pigs Marketing Board for driving a cattle lorry containing 75 bacon pigs without a transport authorisation issued in pursuance of Article 4 of the Movement of Pigs Regulations (Northern Ireland) 1972. However, when the matter came for hearing before the Resident Magistrate it was pleaded in

Mr. Redmond's defence that the Northern Ireland Regulations contravened the common organisation of the market in pigmeat. Understandably, perhaps, the Resident Magistrate decided to refer some questions to the Court of Justice under Article 177. An appeal against that decision was taken by the Pigs Marketing Board to the Court of Appeal in Northern Ireland, but the Court of Appeal would not interfere with the exercise of his discretion to so refer. In the event, the Court of Justice gave judgment on 29 November 1978 to the effect that a marketing scheme which had the characteristics of the scheme described would be incompatible with the requirements of Articles 30 and 34 of the EEC Treaty and of Reg. No. 2759/75 on the common organisation of the market in pigmeat. When the matter came back to the Resident Magistrate in Armagh, on 26 January 1979, he dismissed the summons against Mr. Redmond because: "The ECJ's ruling before me is to the effect that the legislation under which the Board was established and by which its activities are supported and maintained, in so far as that legislation purports through the Board to control the marketing of pigmeat, or part of the market in pigmeat, by compulsory powers vested in it, such as subjecting the marketing of the goods to a requirement that the producer shall be registered with the Board, the prohibition of any sale otherwise than to the Board or through its agency on the conditions determined by it and the prohibition of all transport of the goods in question otherwise than subject to the authorisation of the Board are to be considered incompatible with the requirements of Articles 30 and 34 of the EEC Treaty and of Regulation 2759/75 on the common organisation of the market in pigmeat . . . The net result is that this Court cannot apply the inconsistent provisions of the legislation in question, and must accordingly hold that those sections of the Agricultural Marketing Act (Northern Ireland) 1964, which purport to make provisions for the establishing and the support of Agricultural Marketing Schemes of the nature and effect held by the ECJ to be incompatible with the requirements of Articles 30 and 34 of the EEC Treaty and of Regulation 2759/75 on the common organisation of the market in pigmeat, together with sections 8 and 9 of the Agriculture (Miscellaneous Provisions) Act 1970 and the Movement of Pigs Regulations 1972 No. 90 — i.e., the legislation under and by virtue of which this summons has been brought against the defendant — are of no legal effect." 2 161