The Gazette 1994

GAZETTE

JULY 1994

1990 Regulations. The applicant brought judicial review proceedings in which he sought a declaration that the 1988 and 1990 Regulations were ultra vires and void, a declaration that the provisions of s. 3(1) and (2) of the 1972 Act were contrary to the Constitution and void, an order of certiorari quashing the search warrant granted by the District Court and an order of prohibition precluding the first named respondent from prosecuting the applicant in respect of the offences under the regulations which were al- leged in the summonses. In the High Court Johnson J held that that portion of s. 3(2) of the 1972 Act which entitled a minister to make a regu- lation repealing, amending or applying, with or without modification, other law exclusive of the 1972 Act was unconsti- tutional. The respondents appealed. Held by the Supreme Court (Finlay CJ, O'Flaherty, Egan, Blayney and Denham JJ) in allowing the appeal: (1) By provid- ing that community law is binding on the State and part of its domestic law subject to the conditions laid down in the trea- ties, which included the primacy of com- munity law over domestic law, s. 2 of the 1972 Act secured compliance with the major or fundamental obligation neces- sitated by membership of the commu- nity. The only purpose which could be served by the making of regulations un- der s. 3 was to enable s. 2 to have full effect. (2) Given the number of commu- nity laws, acts done or measures adopted which would have to be either facilitated in theirdirect application to the law of the State or implemented by appropriate ac- tion into the law of the State, the obliga- tion of membership would necessitate theattainmentoftheseobjectivesinsome instances by the making of ministerial regulations rather than the enactment of legislation by the Oireachtas. Accord- ingly the power to make regulations con- tained in s. 3(2) was necessitated by the obi igations of membership by the State of the European Communities and the Euro- pean Union and was thus, by virtue of Article 29.4.3°, 4° and 5°, immune from constitutional challenge. (3) It was un- necessary to decide whether there were situations in which laws, measures or acts of the European Communities or European Union should be applied or implemented by means of legislation en- acted by the Oireachtas instead of a ministerial regulation. In any event the Oireachtas is regarded as having intended that the making of regulations by a min-

ister should be conducted in accordance with the principles of constitutional jus- tice. Thus it was to be implied that in exercising the power of making regula- tions under s. 3(2) the minister would not contravene any provisions of the Consti- tution. Hence any challenge to the valid- ity of a ministerial regulation on the ground that there was no necessity for the obi iga- tion to be complied with by regulation instead of legislation would have to pro- ceed on the basis that the regulation was ultra vires as an unconstitutional exercise by the minister of a power which had been constitutionally conferred on him by s. 3. (4) In making the regulations the minister had been entitled to empower the District Court to grant search war- rants. The EEC directive required that provision should be made for the taking of samples at the farm from which ani- mals suspected of containing prohibited substances had originated. It could not be implemented without creating a power to make compulsory searches of farms where animals are kept. (5) The imple- mentation of the directives also required the creation of offences which should be prosecuted effectively. The unavoidable delays involved in analysing samples and the possibility that investigations might have to be conducted in more than one member state meant that the six-month period provided for in s. 10(4) of the Petty Sessions (Ireland) Act 1851 was too short. Thus the minister had been entitled to include a right to institute a prosecution in respect of an offence under the regula- tions within a period of two years. It was not a prerequisite to the making of such an extension that the directive should itself specify a particular period. (6) The regulations could not be impugned on the ground that s. 10 of the 1851 Act had to be amended by another statute. The directives required the creation of effec- tive sanctions. It was well-established that community law took precedence over national law. Directives were bind- ing on the State as to the result to be achieved and if compliance necessitated adopting a measure which impliedly amended an existing statute that measure would prevail over the statute because it was in substance a measure of commu- nity law. The measure creating the two- year period derived its force from the directive and constituted domestic law only as a matter of form. Reported at [1994] 1 ILRM 1

Meagher v Minister for Agriculture and Food, Ireland and the Attorney General: High Court (Johnson J) 1 April 1993; Supreme Court (Finlay CJ, O'Flaherty, Egan, Blayney and Denham JJ) 18 No- vember 1993 European Communities - Whether statute could be amended by ministerial regula- tion introduced for the purpose of imple- menting directives - Constitutionality of European Communities Act 1972, s. 3 - Supremacy of community law over na- tional law - European Communities (Con- trol ofOestrogenic, Androgenic, Cestagenic and Thyrostatic Substances) Regulations 1988 (SI No. 218 of 1988) - European Communities (Control of Veterinary Me- dicinal Products and their Residues) Regu- lations 1990 (SI No. 171 of 1990) - EEC Treaty, Articles 5, 189 Facts S. 2 of the European Communities Act 1972 provides that from 1 January 1973 the Treaties of the European Com- munities and the acts adopted by the institutions of those communities shall be binding on the State and constitute part of its domestic law. S. 3(1) empowers a minister of state to make regulations so as to give full effect to s. 2, and s. 3(2) provides that these regulations may con- tain such incidental, supplementary and consequential provisions as appear nec- essary for the purposes of the regulations (including provisions repealing, amend- ing or applying, with or without modifi- cation, other law exclusive of the 1972 Act). In order to implement various EEC directives pertaining to the use of hor- mones in livestock, the Minister for Agri- culture and Food made the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations 1988 and the European Communities (Control of Vet- erinary Medicinal Products and their Residues) Regulations 1990 pursuant to s. 3(2) of the 1972 Act. Both the 1988 and the 1990 Regulations provided that not- withstanding s. 10(4) of the Petty Sessions (Ireland) Act 1851, proceedings in re- spect of an offence under the regulations could be instituted at any time within two years of the commission of that offence. In March 1991 a search warrant was issued by the District Court under the 1988 regulations which empowered the officers of the minister and the gardai to enter the applicant's farm. A search was carried out on 27 March 1991 and on 24 August 1992 the applicant was served with 20 District Court summonses per- taining to offences under the 1988 and

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