The Gazette 1985

JANUARY/FEBRUARY 1985

GAZETTE

and professional bodies have by now recognised the need for adequate instruction in European Community law, but a question mark still hangs over the general competence of practitioners in both branches of the legal profession to identify and advise on issues of Community law. •

the conditions laid down in those Treaties". The combined effect of the constitutional amendment and of s.2 of the European Communities Act 1972 was considered by Mr. Justice Henchy as follows: "The adoption, as binding on this State and as part of the domestic law, of allfuture acts adopted by the institutions of the EEC is a form of carte blanche the implications of which cannot be measured in advance, for the possible range of those acts is limited only by the Treaties. A new type of legislation has been introduced into our legal system, emanating neither from the people nor from the national parliament, possibly unrelated to or even at variance with national interests or constitu- tional limitations as they existed before the passing of the Third Amendment, and which may be interpreted or reviewed conclusively only by the EEC Court in Luxembourg. In the face of this wave of new law — the numerous agricultural regulations alone justify the expression — national sovereignty is submerged. In the realm into which this new law reaches, the constitutional restraints on legislative capacity have no operation. The result is a corpus of law, growing in volume and scope, emanating geographically and ideologically from outside the Irish perspective, transcending national considera- tions and inspired solely by the vision of an ever closer union, free trade and general economic progress within the complex of European States, forming the EEC. Ireland is participating in what is potentially the greatest voluntary acceptance of external law since the reception of Roman Law in- various parts of Europe in the Middle Ages. Against the fact that the Constitution may not be called on to invalidate Community law must be weighed the fact that Community law carries with it a new set of rights, duties and liabilities operating with a force and effect as if they were entrenched in a Constitution. Because Community law is part of domestic law, it is the duty of the courts set up under the Constitution to implement it; but it is the exclusive function of the European Court to interpret and determine conclusively the validity of the Treaties and of acts put forward as Community law; and where a conflict is found to exist between national law and Community law, it is an absolute imperative that the Community law shall prevail. The Oireachtas must now frame its laws not alone so as not to exceed the limitations imposed by the Constitution but also so as not to transgress Community law. Likewise, our non-statutory law survives only if it passes the same two tests. Therefore, it is as if the people of Ireland had adopted Community law as a second but transcendent Constitution, with the difference that Community law is not to be found in any single document — it is a living, growing organism, and the right to generate it and give it conclusive judicial interpretation is reserved to the institutions of the Community and its Court." 7 It is difficult to avoid the uncomfortable conclusion, then, that a legal practitioner who failed to advert to certain relevant provisions of Community law when offering advice to a client could be exposed to the risk of an action for professional negligence. The Law Schools

(to be continued)

Footnotes 1. Fifty-fifth Report of the Joint Committee on the Secondary Legisla- tion of the European Communities (Functions and Work of Joint Committee) Prl. 6169, at page 9. 2. [19631 ECR, p. 12.

3. [1982] ECR, p. 70-71. 4. [1964] ECR, p. 593-4. 5. [1978] ECR, p. 645-6.

6. 1,041,890 votes were cast in favour of the amendment, 211,891 against. For analysis of the effects of this amendment see Bryan McMahon, 1 Eur. Law Rev. 86; John Temple Lang [ 1972] 9 CMLR 167; Mr. Justice Henchy 1977 D.U.L.J. 20; John M. Kelly, The Irish Constitution, 2nd Ed. 187-9. 7. "The Irish Constitution and the EEC", 1977 D.U.L.J, at p. 23.

* This article is a revised and updated version of a lecture given by the author at an SYS Seminar in the Ardee Hotel, Water ford in March 1982, and is being published here with the kind permission of the Society of Young Solicitors. The article will appear in six parts.

IRISHNATIONWIDE BUILDINGSOCIETY LAW AGENT Applications are invited from well organised competent Solicitors with a minimum of 10 years post-qualifying experience. Applicants must be fully conversant with, and have specialised knowledge of. all aspects of Conveyancina Practice and Procedure. Ability to manage a busy office and to control staff essential. Experience in other areas of Legal Practice, particularly Litigation, would be an advantage. The salary and conditions will reflect the high calibre of the person sought and the importance of the post. Present staff have been notified. Applications in strictest confidence with curriculum vitae to: The Secretary. Irish Nationwide Building Society. 1 Lower O'Connell Street, Dublin 1.

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