No.237/ December 2007
Can Ireland Legislate Contrary to European Community Law?
William Phelan
Department of Political Science, TCD
IIIS Discussion Paper No. 237
Can Ireland Legislate Contrary to European Community Law?
William Phelan
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Can Ireland Legislate Contrary to European
Community Law?
William Phelan
Department of Political Science, Trinity College Dublin
wtphelan@https://www.doczj.com/doc/4b12123859.html,
Abstract
This paper considers whether Ireland can unilaterally legislate contrary to European Community law, and achieve the application of that legislation in Irish courts not withstanding the European Community law doctrines of supremacy and direct effect. It argues that the scholarship on the relationship between Irish law and European Community law, together with decisions of Irish courts, indicate that Ireland could legislate contrary to European Community law by amending the European Communities Act. More broadly, for member states of the European Union which – like Ireland – derive the application of European law in the national legal order from national legislation, it is not so much the 'constitutional' claims of European Community law that prevent the member states from legislating contrary to European Community law but rather the fact that the member states persistently refrain from legislating to limit the effect of Community law in the national jurisdictions which gives European Community law its 'constitutional' character.
Can Ireland legislate contrary to European Community law?
Can Ireland legislate contrary to European Community law?1 More precisely, can Irish political institutions pass statutory or constitutional legislation explicitly contrary to European Community law and have that legislation applied in Irish courts? European Community law’s doctrines of supremacy and direct effect claim that national courts must apply directly effective European Community obligations regardless of any provision of domestic law. Are there nevertheless circumstances where Irish courts would permit Irish political institutions to legislate contrary to European Community law and achieve the enforcement of that legislation in Irish courts, notwithstanding Community law doctrines or decisions of the European Court of Justice? Despite the rejection of the Treaty Establishing a Constitution for Europe in referenda by the electorates in France and the Netherlands, it seems likely that European governments will agree a further, and perhaps similar, European treaty in the near future. Now would therefore seem to be an appropriate moment for a consideration of the jurisprudence and scholarship on this important question of the relationship of European Community law and Irish law.
Understanding the limits of European Community law in the national legal orders is also an important step towards understanding of European Community law as a ‘constitution’.2 Many scholars of the law and politics of European integration emphasise that the feature which most importantly distinguishes European Community law from other international legal systems is that the EU member states cannot legislate
1 I would like to particularly thank Gerard Hogan and Diarmuid Rossa Phelan for very helpful discussions of the topic of this paper. Thanks also to Des Ryan for helpful comments and to Elizabeth Gleeson for advice on sources. The responsibility for the contents is, of course, my own.
2 E Stein, 'Toward Supremacy of Treaty - Constitution by Judicial Fiat in the European
contrary to their European treaty commitments.3 If this claim does not hold, then new ways of explaining the effectiveness of European Community law as a ‘constitution’ will need to be investigated.
The possibility of national courts applying national legislation contrary to European Community law is only one of several possible limitations on the effectiveness of European Community law in the national legal orders of the member states. Other possible limitations include the non-application of European Community law in the national legal order where European Community law obligations conflict with national constitutional law fundamental rights; the non-application of European Community law where its law obligations exceed the scope of the competences delegated to the European institutions by the European treaties; and the non-application of European Community law in the national legal order following a unilateral national decision to relinquish membership of the European Union. The specific question that this paper addresses is whether Ireland can legislate contrary to European Community law in part, while remaining a member of the European Union and continuing to enforce other European obligations in national courts.
Of course, the application of national legislation contrary to Community law might lead to a dispute between Ireland and the European institutions, or Ireland and the other member states, just as the decision of a national court not to apply directly effective Community law on the grounds that a Community law obligation was contrary to fundamental rights protected by the national legal order might also lead to a dispute. A full consideration of the various ways in which such disputes be might be resolved would merit a separate discussion. This paper addresses only the question of
3 See, for example, JHH Weiler, 'The Transformation of Europe' (1991) 100 Yale Law Journal 2403-2483 especially 2413-2415; A Stone Sweet, The Judicial Construction of Europe (Oxford University Press, Oxford, New York 2004) especially 25 on the EU member states' lack of unilateral
whether the Irish courts would permit Irish political institutions to legislate contrary to European Community law and receive the enforcement of that legislation in Irish courts, notwithstanding the European Community law doctrines of supremacy and direct effect or decisions of the European Court of Justice.
This paper will develop its answer to this question through a wider discussion of the relationship of Irish law with both public international law and European Community law, based on a review of court decisions and legal scholarship. Basic legal arrangements and jurisprudence are discussed to allow those less familiar with the Irish legal order to more easily follow the argument.
The fundamental basis of the Irish legal order is the Irish Constitution, Bunreacht na héireann, enacted by the Irish people on 1 July 1937. The Irish Constitution creates a parliamentary system of government. The Irish Parliament, the Oireachtas, is comprised of the President of Ireland, and two legislative chambers. The House of Representatives, Dáil éireann comprises the directly elected lower house, to which the Irish government is ‘responsible’. The Senate, Seanad éireann comprises the upper house, with modest powers of legislative delay, whose members are either indirectly elected by members of the Dáil and local authorities, or appointed by the Taoiseach, the Irish prime minister.
The Irish Constitution provides, inter alia, for Ireland’s inalienable right to self-determination,4 that Ireland is a sovereign state,5 for popular sovereignty as the
4 See Art 1 of the Irish Constitution (IC): ‘The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.’
5
fundamental basis of government,6 that the Oireachtas has exclusive power of making laws for the State,7 and for the invalidity of laws enacted contrary to the Constitution.8 Amendments to the Irish Constitution are initiated by the Dáil, enacted by the Oireachtas, and submitted for the decision of the Irish people in a referendum.9 When Ireland joined the European Communities, it passed statutory legislation and amended the Irish Constitution in order to give effect to the European treaties in the Irish legal order. This was accomplished by an Act of the Oireachtas, the European Communities Act 1972, and the Third Amendment to the Irish Constitution (enacted 8 June, 1972).
Section 2(1) of the European Communities Act states:
From 1 January 1973, the treaties governing the European Communities
and the existing and future acts adopted by the institutions of those
Communities and by the bodies competent under the said treaties shall be
binding on the State and shall be part of the domestic law thereof under
the conditions laid down in those treaties.
The wording of Section 2(1) of the European Communities Act reflects Art 29.6 of the Irish Constitution: ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.’.
The Third Amendment inserted what was then Article 29.4.3 (the predecessor of what is now Article 29.4.10) of the Irish Constitution stating:
6 ‘All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good’. Art 6.1 IC.
7 ‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative body has power to make laws for the State’. Art 15.2.1 IC.
8 ‘Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid’. Art 15.4 IC.
9 See especially Article 46.2 IC: ‘Every proposal for an amendment of this Constitution shall be initiated in Dáil éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance
The State may become a member of the European Coal and Steel
Community …, the European Economic Community…, and the European
Atomic Energy Community…
No provision of this Constitution invalidates law enacted, acts done or
measures adopted by the State necessitated by the obligations of
membership of the Communities, or prevents laws enacted or acts done or
measures adopted by the Communities or the institutions thereof, from
having the force of law in the State.10
Since Ireland joined the European Union, Irish courts have regularly applied European Community law obligations in place of contrary Irish law and the obligation to disapply national law to give effect to Community obligations is clearly accepted. Costello J stated the position in Pigs and Bacon Commission v McCarren: The effect of [Section 2 of the European Communities Act 1972] is that
Community law takes legal effect in the Irish legal system in the manner
in which Community law itself provides. Thus, if according to
Community law a provision of the Treaty is directly enforceable so that
rights are conferred on individuals which national courts must enforce, an
Irish court must give effect to such a rule. And if, according to
Community law, the provisions of Community law take precedence over a
provision of national law in conflict with it an Irish court must give effect
to this rule. That Community law enjoys precedence over a conflicting
national law has been made clear in a number of decisions of the
European Court and most recently in Case 106/77, Amministrazione delle
Finanze dello Stato v Simmenthal.11
Similarly, in Murphy v Bord Telecom éireann,12 the European Court of Justice found, on the basis of a preliminary reference under Article 177 (now 234) of the Treaty, that Irish law did not provide for equal pay for equal work for men and women. Disapplying Irish law in line with the ECJ’s opinion, Keane J stated:
10 With further amendments to the Irish Constitution to accommodate various subsequent European treaties, the numbering and text of the original 29.4.3 has changed accordingly. Between 1973-93, this was Art 29.4.3; 1993-9, Art 29.4.6; 1999-2002, Art 29.4.7 and currently (as of June 2007) 29.4.10. See G Hogan and G Whyte, J M Kelly: The Irish Constitution (LexisNexis, Dublin 2003) 514 footnote 101.
The current provision (as of June 2007) 29.4.10 states:
‘No provision of this Constitution invalidates law enacted, acts done or measures adopted by the obligations of membership of the European Union or of the Communities, or prevents law enacted, acts done or measures adopted b the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State’.
11 [1978] JISEL 109.
12
The interpretation of those sections [of the Irish law in question], in
accordance with the canons of construction normally applied in Irish
courts, has in the present case yielded a result which is in conflict with
Article 119 of the Treaty as interpreted by the Court of Justice of the EC.
Where such a conflict exists, national law must yield primacy to
community law…
Seamus Henchy, a judge of the Supreme Court of Ireland, writing in a 1977 article on the Irish Constitution and the E.E.C., stated baldly:
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 there a conflict is found between national law and Community law,
it is an absolute imperative that the Community law shall prevail.13
Irish judges have held European Community law obligations to qualify or limit provisions of the Irish Constitution if necessary to ensure the supremacy of Community law. In Campus Oil Ltd v Minister for Industry & Energy,14 the question arose whether it would be possible to appeal to the Supreme Court, which under Article 34 of the Irish Constitution has appellate jurisdiction from all decisions of the High Court and other courts, against a decision of the High Court to seek a preliminary reference from the European Court of Justice, using the preliminary reference procedure. The Supreme Court held that seeking a preliminary reference was not a ‘decision’ within the meaning of Article 34, but Walsh J added that:
However, even if the reference of questions to the Court of Justice were a
decision within the meaning of Article 34 of the Constitution, I would
hold that, by virtue of the provision of Article 29.4.3o of the Constitution,
the right to appeal to this Court from such a decision must yield to the
primacy of Article 177 of the Treaty. That Article, as a part of Irish law,
qualifies Article 34 of the Constitution in the matter in question.15
Irish courts have considered the compatibility of Irish law with European Community law obligations in a wide range of issue-areas. The consensus of scholarly
13 S Henchy, 'The Irish Constitution and the E.E.C.' (1977) (1) Dublin University Law Journal 20-25 23.
14 [1983] IR 82.
15
opinion is that the Irish courts willingly acknowledge the supremacy and direct effect of European law, and are willing to disapply substantive provisions of national law to give effect to EU obligations in Ireland.16
In the ordinary course of events, as shown by Pigs and Bacon Commission, national laws which are contrary to Community law obligations will not be applied by Irish judges. The concern of this paper, however, is with the availability in Irish law of mechanisms for elected Irish politicians to legislate contrary to directly effective European Community law and thus avoid the application of part of EC law (what J.H.H. Weiler would term ‘selective exit’ from EU obligations17) in the national legal order.
This paper addresses the question by answering three questions on the relationship of Community and national law in Ireland: Do Irish courts recognise an Irish law obligation to apply treaty obligations in place of contrary Irish law (‘Pacta sunt servanda’)? Do Irish courts recognise a direct Community law obligation to apply Community law and disapply contrary Irish law? And, do Irish courts recognise an Irish law obligation to apply Community law in place of Irish legislation expressly contrary to Community law? The paper then concludes with brief comments on the relationship
16 The following references are typical, as are the frequent references to a possible exception in the Grogan case (considered below). F Murphy, 'Community Law in Irish Courts 1973-1981' (1982) 7 European Law Review 331-345 342: ‘The first general conclusion that may be drawn from these cases is that the Community legal order – with its attendant doctrine of supremacy – has been accepted almost without question in the Irish legal order.’. Hogan and Whyte, J M Kelly: The Irish Constitution 533: ‘Save for one isolated and inconclusive instance dealing with abortion [Walsh J in Society for the Protection of Unborn Children (Ire) Ltd v Grogan [1989] IR 713] the Irish courts have unhesitatingly acknowledged the supremacy of Community law.’. DR Phelan and A Whelan, 'National constitutional law and European integration: FIDE Report' (1997) 6 Irish Journal of European Law 24-64 44: ‘Despite the remarks of McCarthy and Walsh JJ in Grogan, the Irish courts are normally content to take the European Communities Act and Article 29.4.5o of the Constitution at [sic] according primacy in domestic law to Community law as interpreted by the Court of Justice. There is a large volume of cases to this effect. The courts sometimes take an over-deferential attitude to the Government when it implements Community law, at unnecessary cost to Irish constitutional norms…’.
17 JHH Weiler, 'Alternatives to withdrawal from an International Organization: The case of the European Economic Community' (1985) 20 (2-3) Israel Law Review 282-298; Weiler, 'The
of European and national law in the national legal orders of the member states in general, and on the significance of any subsequent European treaty which would – unlike the existing European treaties, but like the proposed Treaty Establishing a Constitution for Europe – make explicit provision for the supremacy and direct effect of European Community law.
Do Irish courts recognise a Irish law obligation to apply treaty obligations in place of contrary Irish law (‘Pacta Sunt Servanda’)?
Article 29.6 of the Irish Constitution states: ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.’ As a result of Art 29.6, the Irish legal order adopts a dualist approach to international treaty obligations: international law is only effective in domestic law as a result of domestic legislation.
Michael Forde summarises as follows:
‘Dualism,’ which is the political-legal tradition in Britain and in Ireland,
may be described as a doctrine of legal insularity. … Dualism
distinguishes sharply between international law and municipal law, and
holds that international legal standards become part of national law only
when they are incorporated by legislation into the state’s legal system.
The fact that a state becomes bound by a particular treaty has no
significance for its own laws; for the treaty’s standards to become part of
state law requires that legislation be enacted that contains the treaty
provisions.18
Irish courts therefore do not apply international treaty obligations in domestic law in the absence of domestic legislation incorporating treaty obligations.19 Domestic
18 M Forde, Constitutional Law (Second edn, First Law, Dublin 2004) 235.
19 See for example Phelan and Whelan, 'National constitutional law and European integration: FIDE Report' 26; CR Symmons, 'Irlande Ireland' in PM Eisemann (ed) L'Intégration du droit international et communautaire dans l’ordre juridique nationale: étude de la practique en Europe (Kluwer Law International, The Hague 1996) 317-363 330; G Hogan, 'EU Law and National Constitutions Questionnaire for FIDE 2002: The Irish Constitution and the European Union' in MT Anden?s (ed) FIDE XX Congress: Vol 2 Reports and Conclusions (British Institute of International and
legislation incorporating treaty provisions can be challenged for unconstitutionality before Irish courts.20
Two decisions of the Supreme Court of Ireland demonstrate the dualist approach of the Irish legal order.
In In re ó Laighléis,21 Irish internment legislation was challenged as contrary to the European Convention on Human Rights which Ireland had ratified in 1953. The Supreme Court found:
The insuperable obstacle to importing the provisions of the Convention
for the Protection of Human Rights and Fundamental Freedoms into the
domestic law of Ireland – if they be at variance with that law – is that the
‘the sole and exclusive power of making laws for the State is hereby
invested in the Oireachtas; no other legislative authority has power to
make laws for the state’. Moreover, Article 19, the Article dealing with
international relations, provides at s 6 that ‘no international agreement
shall be part of the domestic law of the State save as may be determined
by the Oireachtas’. The Oireachtas has not determined that the
Convention of Human Rights and Fundamental Freedoms is to be part of
the domestic law of the State, and accordingly this Court cannot give
effect to the Constitution if it be contrary to domestic law or purports to
grant rights or impose obligations additional to those of domestic law.
No argument can prevail against the express command of s 6 of Article
29 … before judges whose declared duty is to uphold the Constitution
and the laws.22
In the 1999 case of Doyle v Commissioner of An Garda Síochána23, where the plaintiff attempted to invoke provisions of the European Convention on Human Rights, to which Ireland was a signatory but which Ireland had not made part of domestic law. Barrington J wrote in judgment:
20 ‘The obligations contained in the international convention then have the status in Irish law of the incorporating measure – a status inferior to the Constitution. It is therefore possible for the implementing measure to be challenged for unconstitutionality before the Irish courts. The courts also appear to be willing to review the constitutionality of the State’s accession and adherence to international agreements even if they are not incorporated into Irish law, if they undermine the constitutional order … In both case, the finding of unconstitutionality, and thus of the invalidity of the State’s adherence as a matter of Irish law, could result in an inconsistency between the State’s domestic and international obligations …’ Phelan and Whelan, 'National constitutional law and European integration: FIDE Report' 26.
21 [1960] IR 93. For a more extensive discussion of the Irish case law, see Hogan and Whyte, J M Kelly: The Irish Constitution 548, footnote 220.
22 [1960] IR 93, 124.
23
Ireland is a signatory of the European Convention on Human Rights and
accepts the right of individual petition. But Ireland takes the dualistic
approach to its international obligations and the European Convention
on Human Rights is not part of the domestic law of Ireland. (See In re ó
Laighléis [1960] IR 93). The Convention may overlap with certain
provisions of Irish constitutional law and it may be helpful to an Irish
court to look at the Convention when it is attempting to identify
unspecified rights guaranteed by Article 40.3 of the Constitution.
Alternatively the Convention may, in certain circumstances, influence
Irish law through European Community law. But the Convention is not
part of Irish domestic law and the Irish court has no part in its
enforcement.24
As well as providing for Ireland’s dualist relationship with international law, Ireland’s Constitution also recognises the influence of generally recognised principles of international law. Article 29.3 provides that ‘Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States’.
Article 29.3 has been used to apply generally recognised principles of international law and customary international law in Irish courts.25 However, it does not incorporate the international law obligation pacta sunt servanda in Irish law.26 In conclusion, Irish courts do not recognise a Irish law obligation to apply treaty obligations in place of contrary Irish law. On the contrary, Irish courts recognise that the Oireachtas possesses the right to legislate contrary to Ireland’s treaty obligations in whole or part if the legislature makes its intentions clear.
In the event of an explicit attempt by the Oireachtas to remove the application of a part of Community law in Ireland, Irish courts would not enforce Community law obligations on the basis of a general Irish law principle of pacta sunt servanda.
24 [1999] 1 IR 249, 268.
25 Forde, Constitutional Law 237-241; J Casey, Constitutional Law in Ireland (Third edn, Round Hall Sweet & Maxwell, Dublin 2000) 190-195; Symmons, 'Irlande Ireland' 350-356.
26 Even in relation to the generally recognized principles of international law which are covered by Article 29.3, Irish courts have held that such principles cannot be part of Irish municipal law if they
Do Irish courts recognise a direct Community law obligation to apply European Community law and disapply contrary national law?
The European Court of Justice claims that European Community law itself determines the place of European Community law obligations in the national legal order and that national judges have a European Community law obligation to apply European Community law in place of contrary national law. According to European Community law, this European Community law obligation on national judges is direct and unmediated by national statutes and constitutional provisions27. Irish judges, however, have repeatedly disagreed with the ECJ’s claims about the basis of supremacy and direct effect of European Community law in the Irish legal order. Rather, Irish judges conceive of the supremacy and direct effect of European Community law in the Irish legal order as derivative of the European Communities Act and the provisions of the Irish Constitution which introduce European Community law into the Irish legal order.
Barrington J, in Crotty v An Taoiseach28in the High Court, makes clear that Community law is effective in the Irish legal order only because of Irish legislation in the form of the European Communities Act:
These acts [the Third Amendment and the deposit of the instrument of
ratification] may have been sufficient to make Ireland a member of the
European Community in international law as from 1 January 1973. …
But these acts were not sufficient in themselves to make Ireland an
effective member of the Community. To make Ireland an effective
member as of 1 January 1973 it was necessary to make the Treaty part of
the domestic law of Ireland. To achieve this it was necessary to pass an
Act of the Oireachtas pursuant to the provisions of Article 29.6 making
the Treaty of Rome part of the domestic law of Ireland and giving the
institutions of the Community a status in Irish domestic law. Had the
Oireachtas not passed the European Communities Act 1972 Ireland
27 The classic reference is Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal Spa [1978] ECR 629.
28
might still have been a member of the Community in international law
but it would have been in breach of its obligations in international law
under the Treaty of Rome and under the Treaty of Accession. This
however would not have been a matter in relation to which the domestic
courts of this country would have had any competence because the
Treaty would not have been part of the domestic law. The immunity
from constitutional challenge conferred by the second sentence of the
Third Amendment on laws enacted, acts done, or measures adopted by
the Community or its institutions would therefore have been
meaningless as these laws, acts or measures would not have been part of
the domestic law of this country. To make them part of the domestic law
of this country the European Communities Act 1972 was necessary.29
Barrington J’s judgment in Crotty shows the limited, contingent and derivative basis of European Community law supremacy in Irish law: ‘To make EC law part of the domestic law of Ireland the European Communities Act 1972was necessary.’ The views of the European Court of Justice on supremacy and direct effect notwithstanding, and unlike the relationship between federal and state law in a true federal state, European Community law in Ireland depends on Irish legal provisions which enable its effect in the domestic legal order.
Irish judges have explicitly recognised the possibility of deviations between European Community obligations and the obligations imposed by Irish constitutional law, and stated that in such circumstances their duty would be to the Irish Constitution. This possibility occurred in litigation – culminating in the Society for the Protection of Unborn Children (Ire) Ltd v Grogan30 decision of the Supreme Court of Ireland – over whether an Irish constitutional amendment restricting access to abortion, enacted by the Irish people subsequent to the Third Amendment which provided the immunity from constitutional scrutiny of European Community obligations in Ireland, could restrict the availability of information about abortion facilities outside Ireland which might otherwise have benefited from the freedom to provide services across borders under Community law.
29 [1987] IR 713, 757.
30
McCarthy J stated in Grogan:
The sole authority for the construction of the Constitution lies in the
Irish courts, the final authority being this Court. Article 29.4.3° [the
Third Amendment, preventing constitutional challenges to EC law in the
Irish legal order] may exclude from constitutional invalidation some
provision of the Treaty of Rome the enforcement of which is necessitated
by the obligations of membership of the European Communities; it may
be that in enacting the Eighth Amendment to the Constitution [relating
to abortion] as explained by this Court in the Open Door Counselling
case, the People of Ireland did so in breach of the Treaty to which
Ireland had acceded in 1973.31
McCarthy’s statement acknowledges the possibility of domestic constitutional change qualifying the domestic legislation which receives Community law into national law, and a clear statement that it is the Irish Supreme Court – not the European Court of Justice – that has the sole authority to determine the resolution of possible conflicts between different provisions of the Irish Constitution.
Walsh J’s statement (Hederman J concurring) in Grogan makes the same argument more explicitly, including the fact that the ECJ’s response to a preliminary reference under then Art 177 of the European treaties may not be decisive where such a decision conflicts with the Irish Constitution:
It has been sought to be argued in the present case that the effect of the
amendment of Article 29 of the Constitution [the Third Amendment],
which was necessary to permit our adhesion to the treaties of the
European Communities, is to qualify all rights including fundamental
rights guaranteed by the Constitution. The Eighth Amendment of the
Constitution is subsequent in time, by several years, to the amendment
of Article 29. That fact may give rise to the consideration of the question
of whether or not the Eighth Amendment itself qualifies the amendment
to Article 29. Be that as it may, any answer to the reference received
from the European Court of Justice will have to be considered in the
light of our own constitutional provisions. In the last analysis only this
Court can decide finally what are the effects of the interaction of the
Eighth Amendment of the Constitution and the Third Amendment of the
Constitution…. it cannot be one of the objectives of the European
Communities that a member state should be obliged to permit activities
31
which are clearly designed to set at nought the constitutional guarantees
for the protection within the State of a fundamental human right.32
Note that at issue in Grogan was the possibility that an Irish constitutional amendment subsequent in time to the amendment providing immunity from the Irish constitution for European obligations would have limited the immunity provided by that amendment. As such, Grogan raised the question on an implied restriction of Community law’s basis in Irish law. Grogan did not raise the issue of an express restriction of Community law’s basis in Irish law.
There are other examples of Irish judges making clear statements about the limited basis of Community law in Irish law, and the limited role of the ECJ in interpreting national law compatibility with Community law. T.F. O’Higgins, Chief Justice of Ireland 1974-1986 and subsequently Judge of the European Court of Justice, and so, one may assume, not unaware of the claims of Community law, wrote after his retirement from the ECJ:
Should a question arise as to whether a particular measure is so
‘necessitated’ [this is the test for immunity under the Third Amendment
to the Constitution] it would seem to me to be one exclusively for the
32 [1989] IR 753, 769. Walsh had earlier mentioned such a possibility in B Walsh, 'Reflections on the Effects of Membership of the European Communities in Irish Law' in F Capotorti (ed) Du droit international au droit de l’intégration : Liber amicorum Pierre Pescatore (Nomos, Baden-Baden 1987) 805-820 .Hogan and Whyte suggest that the later case of Society for the Protection of Unborn Children (Ireland) Limited v Grogan and Others (No 5) [1998] 4 IR 343 indicates that it is unlikely that Walsh J’s statement in Grogan [1990] ILRM 350 would nowadays be followed - see Hogan and Whyte, J M Kelly: The Irish Constitution 535. It should be noted that Grogan (No 5) merely straightforwardly applies Community law in the Irish legal order. There is no explicit rejection of Walsh J’s earlier statement and it is not clear from the judgment that the questions of whether the Irish courts could reach a decision on the relationship of the Third Amendment and other provisions of the Irish Constitution at variance with an opinion of the European Court of Justice or whether Ireland could be obliged by the European Union to permit activities which ‘are clearly designed to set at nought the constitutional guarantees for the protection within the State of a fundamental human right’ were before the court. In the hypothetical circumstance that European Community law required Irish courts to apply a Community law obligation which removed all restrictions on the provision of abortion services within Ireland or to apply a Community law obligation which restricted freedom of speech or freedom of worship, it is submitted that Grogan (No 5) could not be relied upon to settle the issue in favour of the application of the European Community law obligation. In this respect, see also Fennelly and Collins: ‘The Irish Supreme Court cannot, in the final analysis, renounce its own exclusive power to interpret the Constitution, including 29.4.5, nor the obligation which the Constitution imposes to protect the individual rights guaranteed in it.’ [Fennelly and Collins write in French – translation by the author] N Fennelly and AM Collins, 'Irlande' in J Rideau (ed) Les états membres de l’Union européenne: Adaptations - Mutations -
High Court under the provisions of Article 34.3.2 of the Constitution. I
cannot see on what basis jurisdiction to decide what is, essentially, a
question as to the validity of a law having regard to the Constitution can
be conferred on or exercised by any other court.33
Again, the implication is that the domestic law basis for the operation of Community law in Ireland is Irish law, here Irish constitutional law, as interpreted by the Supreme Court of Ireland, and not by the European Court of Justice.
Clear statements of the limited and contingent relationship between Community law obligations and Irish legal provisions which make European law effective in national law are less common than the pervasive reliance on those national acts of reception in adjudicating European Community law questions in Irish Courts, or on Irish case law, such as Crotty, which in turn relied on those national acts of reception. Every time an Irish judge states that they are applying directly effective Community law because of the European Communities Act and the Third Amendment to the Irish Constitution, they derive the basis of European law from a national legal source which has both the potential for incompatibility with European Community law and can be unilaterally changed by the Oireachtas, or, in the case of an amendment to the Irish Constitution, by the Oireachtas together with the Irish people.
This conclusion is supported by other Irish court judgments such as Teresa Tate v Minister for Social Welfare Ireland, and the Attorney General,34 in which Carroll J stated: ‘This section [section 2 of the European Communities Act] is the conduit pipe through which community law became part of domestic law.’35
From the perspective of European Community law, directly effective European Community law requires no ‘conduit pipe’ to become part of domestic law. From the
33 TF O'Higgins, 'The Constitution and the Communities - Scope for Stress?' in J O'Reilly (ed) Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (Round Hall Press, Blackrock, Co. Dublin 1992) 227-242 229.
34 [1995] 1 IR 418.
35
perspective of the Irish courts, however, it is Irish law which provides for directly effective Community law obligations to be part of domestic law.
The case cited earlier in this paper, Pigs and Bacon Commission, is also an example: ‘The effect of [Section 2 of the European Communities Act 1972] is that Community law takes legal effect in the Irish legal system in the manner in which Community law itself provides.’
In its own conception, of course, ‘the manner in which Community law itself provides’ rejects any derivation from Section 2 of the European Communities Act 1972.36
A recent case in the High Court, Hugh Kearns and Irish Bartering Services Limited v European Commission,37 shows the Irish judge’s step-by-step reasoning for the application of Community law supremacy in the Irish legal order, first from the European Communities Act ‘enabled by’ the amendments to Art 29 of the Irish Constitution and only then from Community law itself:
The provisions of Chapter 9 of the Copyright and Related Rights Act,
2000, which provides remedies in the domestic jurisdiction of this
Member State for Copyright infringements, cannot in my judgment
limit, exclude or take precedence over the primary law provisions of
Articles 288 part 2 and 235 of the E.C. Treaty. By Section 2 of the
European Communities Act, 1972, as amended by the European
Communities (Amendment) Acts, 1973-2003 as enabled by the several
Acts amending Article 29 of the Constitution, it is provided that:-
The treaties governing the European Communities...shall be binding on
the State and shall be part of the domestic law thereof under the
conditions laid down in those treaties.
Part II of the Schedule of the Third Amendment of the Constitution Act,
1972 provides, inter alia that:-
36 There are differing views as to whether the reliance by national courts on national legislative provisions to receive directly effective EC law into the national legal order is itself contrary to EC law even where such national provisions give full effect to the obligations of EC law. See, for example, G Hogan and A Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary (Sweet & Maxwell, London 1995); DR Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community (Round Hall Sweet & Maxwell, Dublin 1997) 52-57.
37
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 prevent laws enacted, acts done or
measures adopted by the Communities, or institutions thereof from
having the force of law in the State.
In the event of any conflict between E.C. law, particularly directly
effective law, and National Law, even National Constitutional Law, the
effect of Article 10 [formerly 5] and Article 249 [formerly 189] of the
E.C. Treaty is that domestic law must give way to the E.C. Law
provisions. This is clearly established by the European Court of Justice
in a series of well known cases (38)
The most detailed studies of the relationship between Irish law and European Community law concur that the jurisprudence of Irish courts demonstrates that Ireland, while facilitating legal outcomes compatible with Community law, does not recognise a direct Community law obligation to comply with Community law, but rather derives that obligation from Irish legal sources.
As Diarmuid Rossa Phelan writes in his study of the relationship of Community law and Irish law, Revolt or Revolution:
The incompatibility of national courts relying on national law and
jurisdiction for the enforcement of a European Community law right is
one element of the state of constitutional disobedience that exists in
national law and national courts, the other being the limits to the
recognition of European Community law in national law, the difference
between the national law perception of European Community law and
European Community law’s self perception, the possibility of unilateral
denouncement and withdrawal, and the limits on amendment to
incorporate European Community law’s claims.39
Hogan and Whelan, in Ireland and the European Union, also emphasise the exclusively national legal basis of Community law in Irish law:
Later adherents [to the EEC] such as Ireland … acknowledge expressly
or by implication … many of the incidents of the constitutional claims of
the Communities as expressed by the European Court of Justice … They
do not really accept the basis of these claims, however, in so far as these
constitutional provisions and other acts of reception are still considered,
as a matter of national law, to be necessary for Community
constitutional law to have force in the national legal order and legal
38 [2006] 2 IR 1, 8.
39