The Gazette 1985

APRIL 1985

GAZETTE

payable on her business as a credit negotiator by relying on an EEC directive which Germany had failed to implement in time. In the Ratti Case 6 the terms of a directive were relied on by the defendant in criminal proceedings in Italy, and the Court of Justice ruled in effect that Italy could not impose penalties under Italian law which conflicted with a directive which it had failed to implement. Now, the High Court in Dublin has been seized with two cases arising on applications for orders of certiorari, which involve consideration of whether the applicants — who are married women who were in receipt of unemployment benefit — can rely upon Council Directive 79/7 in claiming entitlement to the standard rate of unemployment benefit and to be paid for the full period for such benefit, notwithstanding the contrary provisions of the Social Welfare (Consolidation) Act 1981 and the fact that Ireland has not implemented the Directive, as it was obliged to do on or before 22 December 1984. 7 (b) Right of EEC Nationals to reside, work, establish themselves and remain in Ireland: Articles 48 to 66 of the EEC Treaty provide for free movement of workers, right of establishment and freedom to provide services for EEC nationals. Under the Accession arrangements there was provision that up to the end of December 1977 EEC nationals (other than persons born in Britain or Northern Ireland) required a work permit from the Department of Labour in order to take up employment in Ireland. However, from 1 December 1978 they could not be discriminated against on the basis of nationality in applying for jobs in Ireland. The relevant Irish measure is the European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977), which replaced the European Communities (Aliens) Regula- tions 1972. Also the power of the Minister for Justice or immigration officials to exclude such EEC nationals, or deport them from the State, has been severely curtailed by the provisions of Council Directive 64/221, Article 3 of which provides, inter alia, "Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures." In Van Duyn -v- Home Office 8 that Article of the Directive was construed as giving rise to rights in individuals which national courts must protect. The recent exclusion order made against the convicted Nazi war criminal, Mr. Pieter Menten, was made under s.5 of the Aliens Act 1935, and not under the European Communities (Aliens) Regulations 1977. The powers of the Minister under the 1935 Act are extremely wide, but they could not be operated in such a way as to deprive an EEC national of rights of free movement under Community law. It is not at all clear from newspaper reports that Mr. Menten would be able, or indeed willing, to bring himself within one of the relevant categories by showing that he wished to establish himself, or provide or receive a service or to take up employment in Ireland; but even if he were to so do, he could still be refused leave to land if the Minister was satisfied that his personal conduct was such as to be contrary to public policy or to endanger public security. Under the Aliens Regulations 1977

Menten would then be entitled either to appeal to the Authority established under the Regulations (His Honour Judge O'Malley of the Circuit Court, who has a purely advisory role), or to challenge the decision in Court. In order to facilitate EEC nationals with professional qualifications in exercising their right of establishment in another country, it was necessary to have Council Directives providing for the mutual recognition of degrees and diplomas. This has now been achieved in relation to most of the professions, for example: Doctors Directives 75/362 & 75/363, Irish Measure Medical Practitioners Act 1978. Lawyers (Services) Directive 77/249, Irish Measure European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979, S.I. No. 58 of 1979. Nurses Directives 77/452 and 77/453 Irish measure European Communities (Nurses) Regulations 1980. S.I. No. 237 of 1980. Dentists Directives 78/686, 78/687 and 78/688, Irish Measure European Communities (Dentists) Regulations 1980. S.I. No. 90 of 1980. S.I. No. 90of 1980. Veterinary Surgeons Directives 78/1026, 78/1027 and 78/1028. Irish Measure European Communities (Nurses) of Qualifications in Veterinary Medicine) Regula- tions 1982 S.I. No. 323 of 1982. Veterinary Surgeons Directives 78/1026, 78/1027 & 78/1028. Irish Measure European Communities (Recognition of Qualifications in Veterinary Medicine) Regula- tions 1982. S.I. No. 323 of 1982. There has already been considerable case law on the right of establishment and on interpretation of these directives, arising out of questions referred by national courts to the Court of Justice. For example, the Doctor's Directive was interpreted in the Broekmeulen Case 9 on a reference to the Court from the Dutch General Practi- tioners' Registration Committee (which was deemed to come within Article 177), to the effect that Dr. Broekmeulen who had a Belgian diploma could not practise as a GP in the Netherlands, even though a Dutch GP would have required further training in addition to a diploma before doing so. In the Auer Case 10 an Austrian who became a naturalised Frenchman, and who had obtained his professional qualifications in Italy as a veterinary surgeon, was able to rely on the relevant directive to practise in France, notwithstanding that this was prohibited by French law, because France could not plead its own failure to implement the Directive. A very similar issue arose in the Rienks Case 11 where a Dutch national who had qualified as a vet in the Netherlands sought to practise in Italy, but had his application for enrolement on the Register of Veterinary Surgeons refused and was subsequently prosecuted under Italian law. The Court ruled that a Member State cannot enforce a penal measure in respect of the improper practise of the profession of veterinary surgeon against a qualified national of another Member State on the grounds that he is not enrolled on the Register, where such enrolment is refused in breach of Community law.

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