Can Ireland Legislate Contrary to European Community Law? William Phelan1 [email protected] Department of Political Science 2-3 College Green Trinity College Dublin 2 Ireland

1

William Phelan teaches international relations and the law and politics of the European Union at Trinity College Dublin.

Summary: 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.

10,449 words including footnotes and abstract. Ireland Legislate ELR Revised 11 May 2008

2

1.

Introduction Can Ireland legislate contrary to European Community law?2 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? This paper will develop its answer to this question through a discussion of the relationship of Irish law with treaty obligations in general and European Community law in particular, 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. Whether Ireland can legislate contrary to European Community law is an important question for Irish lawyers and scholars of Irish law, as well as for the broader community of scholars interested in understanding the relationship of national and EC law in the EU Member States. The Irish case is particularly interesting to this wider group because it might appear that Ireland is a state whose constitutional position looks highly favourable to the ‘constitutional’ supremacy claims of European Community 2

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 and the editors of European Law Review for comments and to Elizabeth Gleeson for advice on sources. An earlier version of this paper was presented at an Irish Jurisprudence Society workshop and I am grateful for comments from participants. The responsibility for the contents remains, of course, my own.

3

law, given that the application of European Community law in Ireland is protected by a broadly drawn provision of the Irish Constitution enacted in 1972 as Ireland was joining the then European Communities. However, the application of European Community law in the Ireland is far more contingent than it might at first appear. Ireland therefore serves as an example of the potentially contingent nature of the application of European Community law even in Member States which appear to possess a solid national legal basis for the supremacy and direct effect of European Community law. 2.

The Irish Legal Order and European Community Law We begin with a brief outline of the Irish legal order and of the constitutional

provisions and statutes enacted when Ireland became a member of the European Communities. 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 selfdetermination,3 that Ireland is a sovereign state, 4 for popular sovereignty as the

3 4

See Art 1 of the Irish Constitution (IC). Art 5 IC.

4

fundamental basis of government,5 that the Oireachtas has exclusive power of making laws for the State,6 and for the invalidity of laws enacted contrary to the Constitution.7 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.8 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: 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

5

Art 6.1 IC. Art 15.2.1 IC. 7 Art 15.4 IC. 8 See especially Article 46.2 IC. 6

5

measures adopted by the Communities or the institutions thereof, from having the force of law in the State.9 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.10 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.11 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,12 the question arose whether it would be possible to appeal to the Supreme Court, which under Article 34 of the Irish 9

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 197393, this was Art 29.4.3; 1993-9, Art 29.4.6; 1999-2002, Art 29.4.7 and currently (as of April 2008) 29.4.10. See G Hogan and G Whyte, J M Kelly: The Irish Constitution (LexisNexis, Dublin 2003) 514 footnote 101. 10 [1978] JISEL 109. Similarly, Keane J’s statement ‘Where such a conflict exists, national law must yield primacy to community law’ inMurphy v Bord Telecom Éireann [1989] ILRM 53. 11 S Henchy, 'The Irish Constitution and the E.E.C.' (1977) (1) Dublin University Law Journal 20-25 23. 12 [1983] IR 82.

6

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.13 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 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. In the ordinary course of events at the moment, therefore, 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 to alter that ordinary course of events and thus avoid the application of part of EC law (what J.H.H. Weiler describes as ‘selective exit’ from EU obligations14 ) in the national legal order. This paper addresses the overall question by answering three subsidiary 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

13

[1983] IR 82, 87. JHH Weiler, 'Alternatives to withdrawal from an International Organization: The case of the European Economic Community' (1985) 20 (2-3 ) Israel Law Review 2 8 2 -298; JHH Weiler, 'The Transformation of Europe' (1991) 100 Yale Law Journal 2403-2483 2403. 14

7

law? 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 some general comments on the relationship of European and national law in the national legal orders of the EU Member States. a) Do Irish courts recognise a Irish law obligation to apply treaty obligations in place of contrary Irish law? 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: such obligations are only effective in domestic law as a result of domestic legislation.15 As well-known cases such as In re Ó Laighléis16 and Doyle v Commissioner of An Garda Síochána17 demonstrate, Irish courts do not apply international treaty obligations in domestic law in the absence of domestic legislation incorporating treaty obligations. Domestic legislation incorporating treaty provisions can also be challenged for unconstitutionality before Irish courts.18 As well as providing for Ireland’s dualist relationship approach to treaty obligations, Ireland’s Constitution also recognises the influence of generally recognised principles of international law. Article 29.3 provides that ‘Ireland accepts the generally

15

For example, M Forde, Constitutional Law (Second edn, First Law, Dublin 2004) 235; DR Phelan and A Whelan, 'National constitutional law and European integration: FIDE Report' (1997) 6 Irish Journal of European Law 2 4 -64 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. 16 [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. 17 [1999] 1 IR 249. 18 Phelan and Whelan, 'National constitutional law and European integration: FIDE Report' 26.

8

recognised principles of international law as its rule of conduct in its relations with other States’ andhas been used to apply generally recognised principles of international law and customary international law in Irish courts.19 However, Art 29.3 does not incorporate an obligation to comply with treaty obligations - pacta sunt servanda – into Irish law.20 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. b) 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 provisions21 . Irish judges, however, have repeatedly disagreed with the ECJ’s claims about the basis of supremacy 19

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. 20 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 are contrary to Irish statute law - see Casey, Constitutional Law in Ireland 193-194. 21 The classic reference is Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal Spa [1978] ECR 629.

9

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 Taoiseach22 in 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 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 t h e C o mmunity 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.23 Barrington J’s judgment inCrotty 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 1972 was necessary.’ The views of the European Court of Justice on supremacy and direct effect notwithstanding, 22 23

[1987] IR 713, [1987] ILRM 400. [1987] IR 713, 757.

10

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 Grogan24 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. Walsh J’s statement (Hederman J concurring) inGrogan explicitly states that the Irish Supreme Court has the sole authority to determine the resolution of possible conflicts between different provisions of the Irish Constitution, including the relationship of the Third Amendment to other aspects of the Irish Constitution, and that the ECJ’s response to a preliminary reference underthen Art 177 (now 234) 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 24

[1989] IR 753, [1990] ILRM 350.

11

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 which are clearly designed to set at nought the constitutional guarantees for the protection within the State of a fundamental human right.25 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 te st for immunity under the Third Amendment to the Constitution] it would seem to me to be one exclusively for the 25

[1989] IR 753, 769. Similarly, McCarthy J’s statement at [1989] IR 753, 770. Cf.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, BadenBaden 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 inGrogan [1990] ILRM 350 would nowadays be followed - see Hogan and Whyte, J M Kelly: The Irish Constitution 535. It should be noted however that Grogan (No 5) merely straightforwardly applies Community law in the Irish legal order without rejecting Walsh J’s earlier statement. See also N Fennelly and AM Collins, 'Irlande' in J Rideau (ed) Les États membres de l’Union européenne: Adaptations- Mutations - Résistances (L.G.D.J., Paris 1997) 263-300 299.

12

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.26 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,27 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.’28 From the perspective of European Community law, directly effective European Community law requires no ‘conduit pipe’ to become part of domestic law. From the perspective of the Irish courts,

26

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. 27 [1995] 1 IR 418. 28 [1995] 1 IR 418, 437.

13

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 Community law’sown conception, of course, ‘the manner in which Community law itself provides’ rejects any derivation from Section 2 of the European Communities Act 1972.29 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 D.R. Phelan writes in his study of the relationship of Community law and Irish law: 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.30 Hogan and Whelan also emphasise the exclusively national legal basis of Community law in Irish law:

29

See also the derivation of the application of European Community law in Ireland from Section 2 of the European Communities Act ‘as enabled by’ the Third Amendment to the Irish Constitution in Hugh Kearns and Irish Bartering Services Limited v European Commission [2006] 2 IR 1, 8. 30 DR Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community (Round Hall Sweet & Maxwell, Dublin 1997) 57.

14

Later adherents [to the EEC] such as Ireland … acknowledge expressly or by implication … many of the incide nts 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 ‘space’.… While Community law is operative in the United Kingdom legal order, as in that of Ireland, only by virtue of relevant incorporating provisions of the European Communities Acts (section 2(1) in the Irish case, as supplemented by the terms of Article 29.4.3-5 o f t h e Constitution), it is sought by that act of incorporation to grant to Community law the effect in the national legal order which it itself requires. Thus the daily interaction of national and Community law, operating on fundamentally different premises, should be conflict-free.31 In short, Irish courts do not recognise a direct Community law obligation to apply Community law and disapply contrary national law. Like the legal orders of many other EU Member States, Irish courts derive the application of European Community law in the national legal order from national law.32 If the Oireachtas, or the Oireachtas and the Irish people together, decided to explicitly amend the Irish law provisions which give application to the obligations of the European treaties in the Irish legal order, Irish courts would require an Irish law argument for the continued effectiveness of Community law in the Irish legal order. A direct Community law argument alone would not suffice. c) Do Irish courts recognise an Irish law obligation to apply Community law in place of Irish legislation expressly contrary to Community law?

31

G Hogan and A Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary (Sweet & Maxwell, London 1995) 8-9, 11-12. cf R Rawlings, 'Legal Politics: The United Kingdom and Ratification of the Treaty on European Union: Part 1' (1994) Public Law 254-278. 32 TC Hartley, The Foundations of European Community law: and introduction to the constitutional and administrative law of the European Community (Fifth edn, Oxford University Press, Oxford, New York 2003) 244, 243-268; P Craig and G De Búrca, EU Law: Text, Cases and Materials (Oxford University Press, Oxford, New York 2003) 315; K Alter, 'Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration' in AM Slaughter, A Stone Sweet and J Weiler (eds) The European Courts and National Courts Doctrine and Jurisprudence: Legal Change in its Social Context (Hart Publishing, Oxford 1998) 227-252 231.

15

If the Irish courts derive the effectiveness of European Community law from Irish law, and there is no Irish law obligation to apply treaty obligations in the absence of Irish legislation giving execution to such treaty obligations, is there an Irish law reason to apply Community law if Ireland legislated to remove or restrict the Irish law basis for the effectiveness of European Community law obligations? Irish courts apply Community law obligations in Ireland on the basis of the European Communities Act in conjunction with Article 29.4.10 of the Irish Constitution (the provision originally introduced by the Third Amendment to the Irish Constitution, subsequently altered by later amendments to the Constitution consequent on the ratification of later European treaties). As a result, there are two possible scenarios whereby Ireland might attempt to legislate expressly contrary to Community obligations. First, the Oireachtas might expressly legislate contrary to Community law obligations by explicitly amending the European Communities Act; second, the Oireachtas, in conjunction with a referendum of the Irish people, might adopt a constitutional amendment explicitly contrary to Community law obligations. In the first scenario, the Irish courts, whose current jurisprudence relates to the application of Community law in Ireland on the basis of the European Communities Act together with Art 29.4.10 of the Irish Constitution would have to consider whether its jurisprudence would provide for the application of Community law in Ireland through Art 29.4.10 alone, which is to say, without the support of the European Communities Act. Ireland has never enacted a law attempting to expressly legislate contrary to European treaty commitments by amending the European Communities Act, so there are no authoritative Irish court decisions directly relating to this scenario. Nor are there national court decisions which mention, as part of their reasoning in relation to other

16

circumstances, the hypothetical situation of Irish laws expressly designed to derogate from European treaty obligations by amending the European Communities Act. As such, an answer to this question relies on the interpretation of the Community law jurisprudence of Irish courts and on the leading legal scholarship on the relationship of Community law and Irish law. To answer this question, it is particularly important to be precise about the constitutional meaning of Art 29.4.10 of the Irish Constitution. Article 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 by 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. It is possible to create a relatively extensive list of provisions of the Irish Constitution which might have been incompatible with Ireland’s membership of the European Communities and the supremacy and direct effect of European Community law in the absence of such an immunity clause.33 The relevant question is whether Article 29.4.10 of the Irish Constitution is permissive, allowing the otherwise unconstitutional delegation of competences to be exercised by the European institutions, or whether it contains an Irish law requirement of pacta sunt servanda in relation to the obligations of the European treaties. The text of the amendment itself, with its negative instruction, together with much scholarly opinion, supports the view that the Third Amendment only – if the word ‘only’ can be suitably applied to such a sweeping provision– prevents the

33

Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 329-332. Discussion at the time suggests that the approach taken by Irish authorities was to envisage that European law would become effective in the Irish legal order through a statute, with a constitutional amendment required to prevent such a statute being held unconstitutional by Irish courts – see J Temple Lang, 'Application of the Law of the European Communities in the Republic of Ireland' Die Erweiterung der europäischen Gemeinschaften (Kölner Schriften zum Europarecht, Heymanns, Köln 1972) 47-64 .

17

operation of European Community law in Ireland from being challenged as being contrary to the provisions of the Irish Constitution. The Third Amendment does not itself introduce European Community law into the Irish legal order or require its application. As Casey describes the situation, ‘constitutional barriers having been removed’ by the Third Amendment, the European Communities Act ‘is effective to incorporate [treaty provisions, secondary legislation of the European institutions and judgments of the European Court of Justice] into Irish domestic law’34 . Similarly, D.R. Phelan writes: ‘Overall, the provision [the Third Amendment] constitutes a bar to constitutional challenges to European Community law rules and Irish implementing measures. It is not enabling. It does not make European Community law rules part of domestic law.’35 D.R. Phelan and Whelan summarise the Irish constitutional position as follows: These constitutional provisions are phrased either in permissive terms … or in negative terms… Thus, while they might enable the State to apply Community law without obstacle, they do not oblige it to do so. Within the dualist paradigm of the Constitution of Ireland, a further act of domestic incorporation was necessary in Irish law to give the force of law to Community law. This Act benefits from the constitutional immunity contained in Article 29.4.5º of the Constitution. This was the European Communities Act, 1972.36 This view is also supported by Barrington J’s judgment inCrotty in the High Court. Whereas we earlier looked to Crotty to demonstrate the Irish law basis for the application of European Community law in Ireland, we now look again to examine the division of labour between the European Communities Act and the Third Amendment. Crotty shows that it is the European Communities Act which provides the competence

34

Casey, Constitutional Law in Ireland 205-206. Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 338-339. The Third Amendment does, however, ‘enable’ theEuropean Communities Act by preventing that Act from being held contrary to the Irish Constitution. See Hugh Kearns and Irish Bartering Services Limited v European Commission [2006] 2 IR 1, 8. 36 Phelan and Whelan, 'National constitutional law and European integration: FIDE Report' 28. 35

18

for the domestic courts of Ireland to apply European Community law, while the Third Amendment provides only ‘immunity from constitutional challenge’: These acts [the Third Amendment] 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 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. … It is these matters alone which are given immunity from constitutional challenge by the second sentence of the Third Amendment. But such of these matters as are acts of the institutions of the Communities derive their status in domestic law from the European Communities Act, 1972. If the second sentence of the Third Amendment is the canopy over their heads, the Act of 1972 is the perch on which they stand.37 Note particularly that Crotty states that Community law enters the Irish legal order subject to Article 29.6 of the Irish Constitution, by which Irish legislation is needed for the application of treaty obligations in Ireland. According to Crotty, it is the European Communities Act and not the Third Amendment to the Irish Constitution which gives the Irish courts their competence to apply European Community law. The meaning given to the Third Amendment by the Irish court in Crotty is vital for the contemporary application of Community law in Ireland. Without it, the 37

[1987] IR 713, 757, 758.

19

application of Community law in Ireland would be unconstitutional. The Irish courts have not, however, included pacta sunt servanda in relation to the European treaties in their understanding of Third Amendment. The latter concept is separate from the significant role the court has acknowledged to the Third Amendment and is not necessarily implied by the court’s jurisprudence. In the recent High Court case of YNR v MN,38 the court, in discussing the reasoning behind the application of a Community regulation in Ireland, did mention the Third Amendment (now Art 29.4.10), without referring to the European Communities Act. In YNR v MN, however, the argument was advanced by a party to the case that another provision of the Irish Constitution, Art 41.3.2 (related to divorce), would restrict the application of the provision of the Constitution originally introduced by the Third Amendment. In response to this argument, the court said that Art 29.4.10 provided ‘constitutional protection’ to Community regulations and that there was no hierarchy of constitutional rights in play in the case which would render that constitutional protection inoperative. The court did not state that directly effective regulations were applicable in Ireland through the effect of Art 29.4.10 in the absence of the European Communities Act. It addressed only that part of the reasoning for the application of Community law in Ireland implicated by the argument presented to the court, which related to an aspect of the content of Art 29.4.10 – the bar Art 29.4.10 provides against judicial review of Community acts for compatibility with other provisions of the Irish Constitution – which is both widely accepted and entirely consistent with the view that Ireland can legislate contrary to Community law by amending the European Communities Act. The argument that Art 29.4.10 provides protection for Community law from other provisions of the Irish Constitution is not

38

[2005] 4 IR 552.

20

evidence that Art 29.4.10 provides an Irish law obligation of pacta sunt servanda for directly effective Community law We now turn to the scholarly debate on the question of whether Ireland could legislate contrary to European Community law obligations by amending the European Communities Act39 . D.R. Phelan answers the question as follows: The legislation [the European Communities Act] has the same problems vis-à-vis subsequent legislation as the European Community [sic] Act in the United Kingdom. If a subsequent statute enacted by the democratically elected Oireachtas specifically derogated from a European Community rule, could this 1972 Act be invoked against it? There is no existing doctrine to say that it could. There is nothing in Irish law to weaken the effectiveness of a statute saying ‘European Community law shall not be part of the domestic law of this state.’ Or ‘European community law shall not be part of the domestic law of this state so far as it conflicts with fundamental rights protected by the constitution’. European Community law has a similar status in the Irish hierarchy of norms as a statute, the status being conferred by a statute which benefits from a jurisdictional immunity of debated extent. European Community law does not have a status superior to constitutional law, rather the interaction of the 1972 Act and Article 29.4 generally preserves its application.40 Such a statute could equally remove the effect of any Community law obligation. Hogan and Whelan, responding to D.R. Phelan, also allow for the possibility of Irish legislation explicitly contrary to Community law: Phelan makes three remarks about section 2 of the European Communities Act, 1972 … First, this Act cannot prevent its later repeal by another Act of the Oireachtas; this, of course, is true (save in the extreme case that the legislative power of the Oireachtas under Article 15 of the Constitution is seen as being among the provisions of the 39

In addition to the scholarly work discussed here, brief discussions of this question are also found in J-P Puissochet, L'élargissement des Communautés européennes; présentation et commentaire du traité et des actes relatifs à l'adhésion du Royaume-Uni, du Danemark et de l'Irlande. (Éditions techniques et économiques, Paris 1974) 129, also 127, B Walsh, 'Perspectives du Droit Communautaire en Irelande' La jurisprudence européenne après vingt ans d’expérience communautaire(Kölner Schriften zum Europarecht, Heymanns, Köln 1976) 27-33 31, D Morris, 'The Road to Brussels - Two Routes Compared' (1988) 9 Statute Law Review 33-61 54. 40 Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 333-334, also 352.

21

Constitution disabled from preventing Community law having the force of law in the State), but it is in practical terms not very important. It is implicit in the continued autonomous subsistence of a legal order which accommodates itself to the existence and claims of another (rather than accepting those claims in their own terms) that the possibility persists of abandoning that accommodation; until that occurs, however, the accommodation, if well conceived in the terms of the accommodating legal order, should proceed smoothly. … One assumes here, as has been done in the United Kingdom, that the Community law requirement of primacy – which is introduced into Irish law by section 2 of the 1972 Act – will be found, in domestic terms, to exclude implicit amendment by an inconsistent later statute of the 1972 Act or of Community law introduced into domestic law by its terms.41 (The claim that the possibility of legislating contrary to Community law is ‘in practical terms not very important’ depends of course on the composition of the Oireachtas.) This question was also raised at length in a particularly relevant article from the time of Ireland’s accession to the Communities,where John Temple Lang addressed the constitutional meaning of the Third Amendment to the Irish Constitution. He started from the position that the amendment to the Constitution itself only provided for constitutional immunity, and did not confer any other ‘special status’ on Community law: Under Article 29.6 of the Irish Constitution, the reception of Community law into Irish law can be effected only by an Act of the Irish legislature. The proposed amendment to the Constitution validates any Community measure which would be otherwise inconsistent with the Constitution, but it does not confer any special status in any other respect on either Community measures or national measures adopted to implement Community obligations.42

41

Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 13-14, 15. 42 J Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' (1972) 9 Common Market Law Review 167-178 171. For Temple Lang’s consideration of this issue several years prior to Ireland’s accession to the EEC membership, naturally without reference to the text of the amendment to the Irish Constitution as actually adopted, see J Temple Lang, The Common Market and Common Law: Legal Aspects of Foreign Investment and Economic Integration in the European Community, with Ireland as a Prototype (University of Chicago, Chicago and London 1966) 55-66; Temple Lang, 'Application of the Law of the European Communities in the Republic of Ireland'

22

Temple Lang then considered whether national legislation contrary to directly effective Community legal obligations, subsequent to Ireland’s membership of the Community, would be valid in Irish law, even if a breach of Ireland’s European treaty commitments: It follows that, even as amended, the Irish Constitution will not give an express answer to the question: if the Irish legislature in the future passed an Act inconsistent with the Act enacting the Treaty, which Act would prevail? … Since Irish law does not bind the legislature to enact even a treaty which is binding on Ireland in international law, it would be logical to say that the legislature has power under Irish law to repeal or amend the Act enacting the treaty in question, even where the repeal or amendment is in breach of Ireland’s international law obligations. This is the position in England … 43 Temple Lang proposed three arguments by which Irish legislation explicitly contrary to Community obligations might be contrary to Irish law. First, such legislation would be contrary to Ireland’s treaty obligations and therefore barred by Art 29.3 of the Irish Constitution (‘Ireland accepts the generally recognised principles of international law …’). Second, Temple Lang suggested that: ‘If Ireland’s entry into the Communities was important enough to necessitate a referendum and a special amendment to the Constitution, and if the people approved the amendment, it would follow that the Irish legislature should honour the obligations of the State under those Treaties, once undertaken. This suggests that the legislature might not have power under the Constitution (as amended) to act in breach of the Treaties.’44 Third, by analogy with the transfer of powers from the United Kingdom to the legislatures of former subject territories upon independence, Temple Lang suggested that powers transferred jointly with other States are irrevocably assigned and not delegated. 43

Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 171-172. 44 Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 173.

23

Temple Lang’s proposals reveal the difficulty, even for a scholar highly sympathetic to the European institutions, of finding Irish law reasons why Irish legislation expressly ‘inconsistent with the Act enacting the Treaty’ would not prevail over directly effective Community law obligations in the Irish courts. Irish courts have consistently rejected Temple Lang’s first argument, that Art 29.3 of the Irish Constitution incorporates pacta sunt servanda in the Irish legal order. Temple Lang’s second proposal, a reference to the ‘importanc e’ of the referendum that approved the Third Amendment, may reveal a lack of confidence about what the text of the Third Amendment specifically provides. All provisions of the Irish Constitution are ‘important’. Surely it could not be argued that an amend ment which provided constitutional immunity for the application of European Community law in the Irish legal order – but which did not, as Temple Lang put it, ‘confer any other special status’– was ‘unimportant’. The obligations that derive from rish I constitutional provisions depend on their specific meaning. A basic element in establishing the specific meaning of constitutional and other legal provisions involves distinguishing whether the matter regulated is permitted or, alternatively, required. Ireland could have amended its Constitution to give direct force to European Community law itself or to require that European Community law would prevail over subsequent legislation ‘inconsistent with the Act enacting the Treaty’, but it did not do so, as TempleLang’s discussion of the amendment itself conceded. It is worth noting, in this regard, that the Irish government at the time originally proposed a constitutional amendment which would have protected from constitutional challenge measures which were ‘consequent on’ Ireland’s membership of the European Union. When the proposed amendment was criticised as too broad, the amendment was

24

45 revised to protect only measures ‘necessitated by the obligations of membership’.

Irish courts have maintained a restrictive view concerning the scope of measures ‘necessitated by the obligations of membership’ which benefit from the Third Amendment’s protection from constitutional challenge. InCrotty, the courts found that ratifying the Single European Act was not necessitated by Ireland’s obligations of membership of the EU, with the result that a further constitutional amendment – and thus a further referendum – was required for Ireland to ratify the Single European Act and subsequent European treaties.46 Some, like former Taoiseach John Bruton, have criticised the ‘unnecessarily restrictive wording’ of the Third Amendment and the interpretation given to it by the Irish courts, particularly for the result that subsequent European treaties require the approval of the Irish people in a referendum.47 Despite such criticism, however, it is the text of the Third Amendment itself, and not some general ‘importance’ to be attributed to an amendment relating to Ireland’s membership of the European Union, which guides Irish court decisions. As for Temple Lang’s third argument, a sceptic might find the inability of the United Kingdom to reassert powers granted to other territories now independent, an argument based above all on the impracticality of a unilateral repeal of, for example, the Canada Act 1982 by the UK Parliament, to be a dubious analogy for whether Ireland (or the United Kingdom, for that matter) could revoke powers delegated to an international organisation in order to reassert them within their own territory.48

45

Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 169-170. 46 For a discussion and references, see Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 25-49. 47 Houses of the Oireachtas Joint Committee on European Affairs, The Future of the European Union ( 2 0 0 2 ) : s e c t i o n 2 . 1 7 -2.18. A v a i l a b l e a t http://europa.eu/constitution/futurum/documents/press/pr010202_en.pdf. 48 Recent judgments do not indicate that English courts accept such a view in relation to Community law (See, for example, Thoburn v Sunderland City Council [2003] QB 151). In his 1966 book, Temple Lang concedes that the unilateral legislation, in the 1930s, by the Irish Free State

25

Temple Lang conceded that his view is ‘superficially incompatible’ with the dualist Article 29.6 of the Irish Constitution, which does not provide an exception to the power of the Oireachtas to determine the application of international agreements in national law in relation to powers transferred jointly with other states; and allowed that the view that the Oireachtas has the power to legislate contrary to international obligations, including the power to legislate contrary to Community law obligations 49 after Ireland has joined the Community, is the ‘traditional one’, and, if correct, could

result in conflicts between Irish law and directly effective Community law.50 Based on the work of leading scholars on the relationship between Irish and European Community law, there is therefore considerable support for the view that Ireland could explicitly legislate contrary to directly effective European Community law obligations by amending the European Communities Act. Such legislation would be contrary to Ireland’s obligations under the European Treaties, but Ireland’s courts would give effect to the Irish legislation and not to Ireland’s obligations under the European treaties. One thorough discussion of the relationship between Irish and European Community does offer an alternative conclusion on Ireland’s ability to legislate contrary to Community law by amending the European Communities Act. Hogan and Whelan, after fair-mindedly considering the possibility that an explicit subsequent Parliament contrary to the obligations of the 1922 Anglo-Irish treaty pose difficulties for this view – see Temple Lang, The Common Market and Common Law: Legal Aspects of Foreign Investment and Economic Integration in the European Community, with Ireland as a Prototype 57, similarly 60 (footnote 93). 49 Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 174. Temple Lang, The Common Market and Common Law: Legal Aspects of Foreign Investment and Economic Integration in the European Community, with Ireland as a Prototype 65. 50 Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 173. Note that Temple Lang’s analysis– and its limitations – are relevant even in the scenario where a ratified European treaty explicitly provided for the supremacy of European law over national law. See J Temple Lang, 'The Draft Treaty establishing the European Union and the Member States: Ireland' in R Bieber, J-P Jacqué and JHH Weiler (eds) An Ever Closer Union: A critical analysis of the Draft Treaty establishing the European Union (Office for Official Publications of the European Communities, Luxembourg 1985) 241-259 248.

26

statute would indeed permit the national legislator to abandon adherence to Community law (see above: ‘this of course is true …’), do briefly consider an alternative understanding: One might add, in any event, that the second clause of Article 29.4.5 may indeed, on another construction give constitutional force to Community law, once incorporated; this task of incorporation being left to ordinary legislation because of the frequency with which it must occur, very often for relatively unremarkable amendments… 51 With the greatest respect for these distinguished scholars, and according suitable recognition for the tentative manner in which this argument is introduced, it is submitted that this construction is difficult to reconcile with the text of either the Third Amendment itself or Section 2 of the European Communities Act. This view would also not seem to be compatible with the discussions of Temple Lang and others of the limited meaning of the Third Amendment, nor with prominent judgments of Irish courts, such as Barrington J’s statement inCrotty that the introduction of European law in the Irish legal order is subject to Art 29.6 of the Constitution or Costello J’s statement in Pigs and Bacon Commission which attributes the effect of European Community law in Ireland directly to Section 2 of the European Communities Act. Hogan and Whelan provide no court decisions in support of the possible construction that what is now Art 29.4.10 gives force to Community law in Ireland rather than merely permitting the European Communities Act to do so. The alternative interpretation, that the European Communities Act gives force to European Community law in the Irish legal order, while the Third Amendment protects the European Communities Act from claims of lack of constitutionality, relies, on the other hand, on a straightforward reading of both the statute and the constitutional amendment.

51

Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 15.

27

In summary then, the application of European Community law in Ireland is derivative of an Irish statute, the European Communities Act, which is not subject to implied amendment or repeal by subsequent Irish statutes, but remains potentially subject to explicit amendment or repeal by subsequent Irish statutes. Irish courts do not apply Irish legislation enacted posterior to European Community law where such laws are contrary to European Community law, unless such Irish legislation were to explicitly amend the scope of the European Communities Act by which European Community law receives application in the Irish legal order. As for the second scenario, if the Oireachtas and the Irish people enacted a constitutional provision explicitly contrary to Community law obligations, the Irish courts, whose current jurisprudence relates to the application of Community law in Ireland on the basis of the European Communities Act together with Art 29.4.10 of the Irish Constitution, would have to consider whether Irish jurisprudence would provide for the application of Community law in Ireland where the Irish constitutional legislator had explicitly attempted to deprive it of effect. The jurisprudence of Irish courts on the relationship of Community and Irish law provides no reason to believe that Irish courts would apply Community law in the place of an expressly contrary Irish constitutional amendment. Irish courts derive the effect of Community law obligations in Ireland from Irish law. All Irish law, including previously enacted Irish constitutional law and statute law, can be changed by constitutional amendment.52 On that basis, Ireland could legislate contrary to

52

It has been argued that there could be possible limitations on amendment of the Irish constitution in relation to Irish constitutional law natural law rights. See Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 358-367 for a discussion of possible limits to the amendment of the Irish Constitution derived from natural law. The more common view, supported by the case of Re Article 26 and the Information (Termination of Pregnancies) Bill 1995 [1995] 1 IR 1, is that the Irish people’s power to amend the Constitution is not restricted by fundamental natural law rights.

28

Community law by an explicit constitutional amendment.53 (As we have seen, there is considerable support from court decisions and scholarly opinion that Irish courts would give effect to Irish legislation contrary to Community law which amended the European Communities Act. The recourse to a constitutional amendment, on that view, would not be ineffective, but it would be excessive to the requirement of legislating contrary to Community law.) 3.

Conclusion In conclusion, there is no Irish law obligation to apply treaty obligations in

place of contrary Irish law. Irish courts do not recognise a direct Community law obligation to apply Community law in place of contrary Irish law. There is no Irish constitutional law obligation to apply Community law in the absence of the European Communities Act as enabled by provisions of the Irish Constitution. As a result, Ireland could legislate contrary to Community law. Such legislation could be made either by express legislation to amend the European Communities Act or by an express constitutional amendment. Irish courts would enforce such legislation notwithstanding the European Community law doctrines of supremacy and direct effect or decisions of the European Court of Justice.54 Therefore, although it is often claimed that the vital distinction between European Community law and other international legal systems is that EU Member States cannot legislate contrary to their European treaty commitments because national court acceptance of the supremacy and direct effect of Community law deprives the Member States of unilateral legislative options (whether statutory or constitutional) to

53

See, for example, B Carolan, EU law for Irish Students (Gill & Macmillan, Dublin 2004) 99 Forde, Constitutional Law 262. FW Ryan, Constitutional Law (Round Hall Sweet & Maxwell, Dublin 2002) 39. 54 cf TC Hartley, Constitutional Problems of the European Union (Hart, Oxford, Portland, Or. 1999) 176-177.

29

selectively refuse the enforcement of Community obligations in national courts, the case of Ireland does not support this view.55 Mechanisms for Ireland to unilaterally legislate contrary to European treaty obligations exist, even if they are not used. This discussion of the relationship of Irish law and European Community law prompts some brief wider thoughts concerning the relationship of national law and European Community law in general. The existing literature on Community law’s relationship with national law tends to focus on the limitations – often related to human rights or the control of the scope of competences delegated to the European institutions – which national judges claim apply to the delegation of national competences to EU authorities. But these limitations are just the most visible subset of a much wider problem. To understand national law’s relationship to Community law as the acceptance of Community law supremacy with lingering or latent proviso in relation to fundamental human rights (or control of competences, etc) would be to assume that a static position fully represents a potentially dynamic relationship. National legal orders, as sovereign jurisdictions, claim to control the application of all law, including all forms of law derived from treaties, within their territorial jurisdictions, even where national courts have ‘accepted’ the supremacy and direct effect of Community law. Given that national parliaments have passed national laws which provide full execution to the obligations of the European treaties, under those circumstances the only limits on the effectiveness of Community law which may be potentially litigated in the national jurisdiction may relate to human rights (or control of competences, etc) where national constitutional jurisprudence requires such limits on laws giving execution to treaties (even where, as in Ireland, laws giving full execution

55

See, for example, Weiler, 'The Transformation of Europe' 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 legislative options vis-à-vis their own courts.

30

to the European treaties find a constitutional authorisation for greater delegation of authority than would otherwise be constitutionally permitted). In other words, current national legislation and jurisprudence preserves a status quo which provides that directly effective Community law obligations receive automatic application in the national legal orders. However, the national legal orders’ claim to control the application of all law in their territorial jurisdiction includes the power to unilaterally supplement existing limits on Community law in the national legal order with new and further limits by national statutory or constitutional change. The latent proviso for the application of European obligations in the national legal order does not consist of narrowly-targeted qualifications related to human rights or the control of competences delegated to the European institutions, but rather comprises the broadest possible claim implied by omnipotent law-making power of the sovereign jurisdictions of the Member States. In the jurisdictions of EU Member States, such as Ireland, it is not so much the ‘constitutional’ claims of European Community law that prevent theMember States from legislating contrary to 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.

31