The Gazette 1993

GAZETTE

SEPTEMBER 1993

Necessity and Chaos: How Constitutionally to Implement an EC Directive into Irish Law

relevant sphere of competence. When Mr Lynch's Government was consider- ing the constitutional changes necess- ary to facilitate Ireland's accession to the European Communities, it was clear that a constitutional licence merely to incorporate the relevant treaties into domestic law would not suffice to overcome the dictate of Art. 15.2.1 of the Constitution, that the sole and exclusive power of making laws for the State is vested in the Oireachtas. Therefore the Third Amendment of the Constitution Act, 1972, having authorised the State to join the three constituent European Communities, also provided that, '... No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities, or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State...'. 1 This first part of this sentence was designed principally to ensure that domestic legislation designed to transpose non-directly applicable EC laws into Irish law would be withdrawn from judicial control by Irish courts, on grounds that it violates the Constitution, once those courts are satisfied of the requisite necessity. 4 The Meagher case concerned two statutory instruments adopted pursuant to s.3 of the European Communities Act, 1972: the European Communities (Control of Oestrogenic, Andogenic, Gestagenic and Thorstatic Substances) Regulations, 1988 and the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990. s It was argued essentially that the Regulations were ultra vires and void because pursuant to s.3 of the 1972 Act which The High Court Judgment

gives the relevant minister the power to adopt orders which can repeal or amend other laws, exclusive of the 1972 Act itself, they purported to amend, inter alia, the Petty Sessions (Ireland) Act, 1851. 6 Under s.4 of the aforesaid Act, as amended by the European Communities (Amendment) Act, 1973, such orders have 'statutory effect' unless the Joint Committee on the Secondary Legislation of the European Communities recommends their annulment to the Houses of the Oireachtas and a resolution to that effect is passed by both of them within one year of the making of the relevant order. 7 The original text of s.4 had provided that such orders would have statutory effect only for a six-month period, unless, during that period, they were confirmed by an Act of the Oireachtas. Whereas, it was contended that the previous text was constitutionally sound, it was argued on behalf of Mr Meagher that the new s.4 constituted an impermissible delegation of legislative power which was not shielded by Art. 29.4.3 of the Constitution, (inserted by the Third Amendment of the Constitution Act, 1972) from constitutional challenge. 8 Community directives are binding as to the result to be achieved but allow Member States a choice as to how best to give effect to them in national law. Thus, whilst the principles contained in the directive must be transposed into national law, Ireland retains a discretion as to the appropriate law- making mechanism for achieving this result. It has therefore been argued that the distinction between the legal compulsion to transpose a directive into Irish law in a timely fashion and the Irish authorities' discretion concerning methodology, precludes the latter from relying on Art. 29.4.3 to justify departing from Art. 15.2 of the Constitution. 9 Whilst Johnson J. does not refer specifically to this reasoning in his judgment, it clearly underlies his rejection of counsel for

Noel Travers

by Noel Travers*

Introduction The recent judgment of Johnson J. in Meagher v Minister for Agriculture & Food, Ireland and the AG has highlighted a potentially enormous problem in the relationship between Irish and EC law. 1 It concerns the appropriate mechanism for implementing EC directives into Irish law. For a number of years some prominent academic commentators have maintained that it is unconstitutional to transpose such directives into Irish law through statutory instruments. 2 It appears that the essence of their argument has now been endorsed by the Meagher ruling but this may not withstand the Government's current appeal to the Supreme Court. Should the appeal fail hundreds of confirmation bills, at the least, may be required and the legal status of all the acts done under the invalidated statutory instruments up until the date of the Supreme Court's judgment will have to be resolved. The founding EC Treaties differ from the traditional international law prototype because they confer extensive law-making powers on the Community institutions within their

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