Institute for International Integration Studies IIIS Discussion Paper

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 [email protected]

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

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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 Economic Community' (1965) 48 Rivista di Diritto Internazionale 3-28

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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 legislative options vis-à-vis their own courts.

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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 selfdetermination,4 that Ireland is a sovereign state,5 for popular sovereignty as the

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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 ‘Ireland is a sovereign, independent, democratic state.’ Art 5 IC.

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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:

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‘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 with the law for the time being in force relating to the Referendum.’

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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:

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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 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 [1989] ILRM 53.

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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 15

[1983] IR 82. [1983] IR 82, 87.

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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

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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 Transformation of Europe' 2403.

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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

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M Forde, Constitutional Law (Second edn, First Law, Dublin 2004) 235. 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 Andenæs (ed) FIDE XX Congress: Vol 2 Reports and Conclusions (British Institute of International and Comparative Law, London 2002) 369-386 368. 19

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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 [1999] 1 IR 249.

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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.

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[1999] 1 IR 249, 268. 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 are contrary to Irish statute law - see Casey, Constitutional Law in Ireland 193-194. 25

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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 Taoiseach28 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 27

The classic reference is Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal Spa [1978] ECR 629. 28 [1987] IR 713, [1987] ILRM 400.

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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 1972 was 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 30

[1987] IR 713, 757. [1989] IR 753, [1990] ILRM 350.

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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

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[1989] IR 753, 770.

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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 Résistances (L.G.D.J., Paris 1997) 263-300 299.

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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 [1995] 1 IR 418, 437.

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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 [2006] 2 IR 1.

17

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 39

[2006] 2 IR 1, 8. Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 57.

18

‘space’. … The fundamental difference in perspective between Community law and national law is obscured in a number of Member States, including Ireland, by what Rawlings has called, in the United Kingdom context, ‘the principle of the mirror image’ … 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 of the 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. … The problem with this attempted solution is that the mirror may be flawed.40 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.41 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. Do Irish courts recognise an Irish law obligation to apply Community law in place of Irish legislation expressly contrary to Community law? 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

40

Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 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 41 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.

19

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 circumstances, the hypothetical situation of Irish laws expressly designed to derogate from European treaty obligations by amending the European Communities Act. As 20

such, an answer to this question relies on the interpretation of the Community law jurisprudence of Irish courts and on the legal scholarship on the relationship of Community law and Irish law. 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. James Casey describes the difficulties which directly effective European Community law would have created for the Irish Constitution if such a provision had not been inserted into the Irish Constitution: Thus a regulation promulgated in Brussels immediately becomes part of Irish domestic law, and may be relied upon in any relevant proceedings before an Irish court. This would have been quite incompatible with Article 15’s vesting of the sole and exclusive power of making laws for the State in the Oireachtas, and its trenchant declaration that no other legislative authority has such power. But Article 29.4.3˚ was effective to remove any difficulty on that score. … Constitutional barriers having been removed by Article 29.4.3˚, the Oireachtas passed the European Communities Act 1972. The key provision is …: ‘From the 1st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institution of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.’ This is plainly effective to incorporate into Irish domestic law not only the Treaties but all existing and future regulations, directives, etc., as well as judgments of the Court of Justice.42 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

42

Casey, Constitutional Law in Ireland 205-206.

21

European Communities and the supremacy and direct effect of European Community law in the absence of such an immunity clause.43 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 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. That is the sense of James Casey’s description above, where ‘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’.

43

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 . For other discussions of the constitutionality of Ireland’s membership of the EEC prior to Ireland’s accession, see J Temple Lang, 'A Constitutional Aspect of Economic Integration: Ireland and the European Common Market' (1963) 12 (2) International and Comparative Law Quarterly 552-581; 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); J Temple Lang, 'The Republic of Ireland and the EEC - The Constitutional Position: II' in ME Bathurstand others (eds) Legal Problems of an Enlarged European Community (Stevens, London 1972) 17-23 ; J Lynch, 'The Republic of Ireland and the EEC - The Constitutional Position: I' in ME Bathurstand others (eds) Legal Problems of an Enlarged European Community (Stevens, London 1972) 13-16 .

22

As Diarmuid Rossa Phelan writes in Revolt or Revolution: ‘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.’44 By ‘it is not enabling’ D.R. Phelan means that the Third Amendment does not by itself enable Community law in Ireland in the sense of directly introducing Community law into the Irish legal order. The Third Amendment does, however, as the passage of Kearns cited above states, ‘enable’ the European Communities Act by preventing that Act from being held contrary to the Irish Constitution. D.R. Phelan and Whelan write, similarly, in the 1996 FIDE Report on Irish Constitutional law and European integration: 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, 1972.45 This view is also supported by Barrington J’s judgment in Crotty in the High Court, where it is the European Communities Act which provides the competence 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 44

Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community

45

Phelan and Whelan, 'National constitutional law and European integration: FIDE Report' 28.

338-339.

23

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.46 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 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. 46

[1987] IR 713, 757, 758.

24

In the recent High Court case of YNR v MN,47 a case related to divorce, the court did discuss the reasoning behind the application of a Community regulation in Ireland, mentioning 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 related to divorce, Art 41.3.2, 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 evidence that Art 29.4.10 provides an Irish law obligation of pacta sunt servanda for directly effective Community law Many Irish legal scholars agree that Ireland could legislate contrary to European Community law obligations by amending the European Communities Act. 47

[2005] 4 IR 552.

25

Diarmuid Rossa Phelan states: 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.48 Such a statute could equally remove the effect of any Community law obligation. Hogan and Whelan, commenting on D.R. Phelan’s Revolt or Revolution, 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 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

48

Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community 333-334, also 352.

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exclude implicit amendment by an inconsistent later statute of the 1972 Act or of Community law introduced into domestic law by its terms.49 (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.) In a particularly relevant article written at the time of Ireland’s accession to the Communities, 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.50 Temple Lang then considered the question 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? … The question may be academic … because a deliberate breach of the Treaty would be a repudiation of Ireland’s commitments in the EEC. … Since Irish law does not bind the 49

Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 13-14, 15. 50 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 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 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 55-66; Temple Lang, 'Application of the Law of the European Communities in the Republic of Ireland'

27

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 …51 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, ‘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.’52 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. Temple Lang’s proposals reveal the difficulty, even for an observer 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. 51

Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 171-172. 52 Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 173.

28

Temple Lang’s second proposal, a reference to the ‘importance’ of the referendum, 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 amendment 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 Irish 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 require that European law would prevail over subsequent legislation ‘inconsistent with the Act enacting the Treaty’, but it did not do so, as Temple Lang’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 revised to protect only measures ‘necessitated by the obligations of membership’.53 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. In Crotty, 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 referendum – was required for Ireland to ratify the Single European Act and 53

Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 169-170.

29

subsequent European treaties.54 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.55 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, or Canada, for that matter) could revoke powers delegated to an international organisation in order to reassert them within their own territory.56

54

For a discussion and references, see Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 25-49. 55 ‘The origin of this difficulty is in the unnecessarily restrictive wording in the unnecessarily restrictive wording of the original constitutional amendment to authorize Ireland’s original accession to the European Union (then the European Community), and from the subsequent interpretation of this by the Supreme Court in the Crotty case. There is a strong argument for revising this provision of the Constitution. The Irish people, of course, should be required to be consulted, in referendum, before Ireland would agree to a binding Treaty commitment to a new area of activity, or to a qualitative change in the nature of activity within the European Union. Referenda should not, however, be required, to approve E.U. Treaties which just incrementally develop clear commitments already given. The Government and the Oireachtas must be given a greater freedom than they now have to ratify E.U. Treaties that do no more than incrementally develop existing commitments.’ Houses of the Oireachtas Joint Committee on European Affairs, The Future of the European Union (2002): section 2.17-2.18. Available at http://europa.eu/constitution/futurum/documents/press/pr010202_en.pdf. 56 One might add here that there is also reason to doubt Temple Lang’s view of the UK law perspective on parliamentary legislation which infringed on the independence of former British territories. To take one example, in a contemporaneous article, considering the possible application of a similar argument in relation to the UK’s membership of the EEC, Trindade stated ‘… there is no evidence whatsoever that an Act of the United Kingdom Parliament will be declared invalid by the British courts if the statute is enacted contrary to section 4 of the Statute of Westminster 1931 or the various Independence Acts. We can be fairly certain that the courts in the former dominions or in the independent countries of the Commonwealth would not give such a statute any effect in their respective territories, but that is not the same thing as saying that the courts in the United Kingdom would declare such an Act of Parliament as invalid or of no effect. On the contrary, it seems that the courts in the

30

Temple Lang concedes 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 allows 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 after Ireland has joined the Community, is the ‘traditional one’,57 and, if correct, could result in conflicts between Irish law and directly effective Community law. 58 Based on the most detailed scholarship on the relationship of Irish and European Community law, there is therefore considerable scholarly 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 international 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. United Kingdom would be bound to say that the statute was a valid Act of the United Kingdom Parliament.’ FA Trindade, 'Parliamentary Sovereignty and the Primacy of European Community Law' (1972) 35 Modern Law Review 375ff 388. Certainly recent judgments do not indicate that English courts accepts such a view in relation to Community law (See, for example, Thoburn v Sunderland City Council [2003] QB 151). It is perhaps fair to state that Temple Lang’s argument is based more on the claim that these principles ‘are logical as legal principles in any country’ than any direct derivation from English law 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 58. In his 1966 book, Temple Lang concedes that both the Dáil’s unilateral repeal, in 1921, of the Act of Union passed by the Irish Parliament in 1800, despite the fact that the British and Irish Parliaments had separately enacted the Act of Union, and the legislation, in the 1930s, of the Irish Free State Parliament contrary to the AngloIrish treaty, also separately enacted by both parties, pose difficulties for the view he is advancing 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, 60 (footnote 93). 57 ‘If the traditional view that the Irish legislature has power under Irish law to enact legislation even in breach of Ireland’s treaty obligations is correct, conflicts between Irish law and directly applicable rules of Community law could arise.’ Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 174. Also: ‘The view that the Irish Parliament cannot constitutionally enact legislation inconsistent with a binding treaty has no direct authority to support it.’ 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. 58 Temple Lang, 'Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty' 173.

31

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 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…59 With the greatest respect for these distinguished scholars, and with recognition of 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 in Crotty 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, 59

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

32

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.60 61

60

Only a few other authors explicitly discuss whether Ireland could legislate contrary to European Community law and none with thoroughness comparable to DR Phelan, Hogan and Whelan, or Temple Lang. Dennis Morris, in the course of arguing that the United Kingdom Parliament cannot legislate contrary to Community law, states briefly that Irish judges would not accept that the Oireachtas can legislate contrary to Community law, because the Oireachtas, not being sovereign, is subject to the Irish Constitution and the Irish relationship with the European Communities is constitutionally sanctioned - see D Morris, 'The Road to Brussels - Two Routes Compared' (1988) 9 Statute Law Review 33-61 54. It is certainly the case that the Oireachtas, not being sovereign, could be made subject to an Irish constitutional obligation preventing it from legislating contrary to Community law, but it is submitted here that the Third Amendment to the Irish Constitution did not contain that obligation. JeanPierre Puissochet, considering whether European Community law in Ireland could be suspended or repealed by Irish legislation, argues that the Irish judge would be in a good position to assure the supremacy of European law. However, Puissochet’s argument is based largely on the view that Art 29.3 of the Irish Constitution may contain the obligation pacta sunt servanda, which is not correct – see 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. Brian Walsh, writing soon after the time of Ireland’s joining the European Communities, gave a conference talk in Luxembourg indicating his view that Irish judges would not permit the Irish legislature to legislate contrary to European Community law: “If this national law expressly stipulated that it must prevail over Community law, it is true that the judges would find themselves in a difficult situation. It would be possible for them to declare that article 2 of the 1972 law had the effect of preventing the legislator from promulgating such a law, as long as article two itself was not expressly abrogated, an abrogation which could result, in effect, of a declaration by the legislator that Ireland was leaving the Community. If judges decided that article 2 of the 1972 law prevents the national legislator from promulgating such a law, one could say that the judicial decision was incorrect in that it created an illegitimate obstacle to legitimate legislative power. On the other side, one could say that the constitutional amendment specified that no article of the Constitution could prevent the direct application of the treaties. It is evidently impossible to speculate on the result of such a scenario. My opinion is that the decision would maintain the fundamental law, which is to say the treaties and our law of 1972 in consequence of the application of this law” – see 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 [Walsh writes in French – translation by the author]. While Walsh is correct that the Third Amendment does specify that no article of the Constitution could prevent the direct application of the treaties, the Amendment does not itself require the application of Community law in Ireland, as the discussions of Temple Lang and others emphasise. There must also be considerable doubt that Irish law requires that the Irish courts take upon themselves the role of expelling Ireland from the European Community in the event of a decision by the Oireachtas to selectively remove the application of part of European Community law in Ireland by an express amendment to Art 2 of the 1972 Act. 61 Many other scholars of the relationship of Community and Irish law do not explicitly consider the question of whether the Oireachtas can legislate contrary to Community law. Their understandings of the reasons for the application of Community law may nevertheless, depending on meaning they attribute to the Third Amendment to the Irish Constitution, support, or fail to support, that possibility. It is fair to summarise that there is considerable, but not unanimous, support for the view that directly effective European Community law enters the Irish legal order not on account of the Third Amendment, but via the European Communities Act, 1972, subject to Article 29.6 of the Irish Constitution. Casey’s discussion of Article 29.4.3 does not support the view that it gives constitutional force to Community law in Ireland, see Casey, Constitutional Law in Ireland 208-214. Forde’s discussion of European Community law does not consider the interaction of 29.4.3 and the European Communities Act in detail. Forde writes ‘In 1972 the Constitution was amended, incorporating what is 29.4.3, authorizing the State to become part of these Communities and giving legal precedence to measures adopted by them or

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enacted in order to comply with the obligations of membership’ Forde, Constitutional Law 252 and indicates that the European Communities Act was passed ‘in order to give full effect in Irish law to the EC Treaties and measures adopted by the EC institutions’, citing Barrington J in Crotty Forde, Constitutional Law 258, a view compatible with the immunity view of 29.4.3. However, later Forde writes ‘Provided that they are “necessitated by obligations of membership”, Article 29.4.10 of the Constitution grants the EC regime precedence over Irish law and even over the Constitution itself’. On the immunity view of 29.4.3, it is rather the European Communities Act which makes EC law part of the domestic law of Ireland, and 29.4.3 grants EC law, as introduced by the European Communities Act, ‘precedence over Irish law and even over the Constitution itself’ (though some might also claim that the immunity was not total in relation to all aspects of the Irish Constitution). Carolan, in a discussion of the ‘View of Ireland on Supremacy’, agrees that Irish law requires an Irish law basis for Community law’s effectiveness in Ireland (‘Thus, from the Irish perspective, European Union law is supreme because Irish domestic law, and in particular Irish constitutional law, has been amended to provide for the supremacy of European Union law.’ B Carolan, EU law for Irish Students (Gill & Macmillan, Dublin 2004) 99), but locates that Irish law basis in what is now 29.4.10 of the Irish Constitution. Carolan’s short discussion contains no consideration of the more limited ‘immunity clause’ view of 29.4.10 or indeed any mention whatsoever of the European Communities Act. McMahon and Murphy do not consider directly the case of legislating to amend the European Communities Act but their approach is compatible with the view that it is the European Communities Act, and not the Third Amendment, which introduces Community law into the Irish legal order: ‘The effect of this article [Art 29.6 of the Irish Constitution, specifying Ireland’s dualist approach to international law] is, briefly, as follows: international treaties are not part of domestic Irish law until they are received, or ‘brought home’, by an Act of the Oireachtas. A separate reception process is necessary before treaties create national, as opposed to international, obligations. Thus Ireland, like England, subscribed to the ‘dualist’ view in relation to this matter. It could be argued that the Third Amendment to the Constitution, mentioned above, might have overridden this requirement in relation to Community matters, but it was felt that a statute clearly complying with the requirements of Article 29.6 would be a more desirable method of dealing with the problem in order to dispel any doubts on the matter. … Provisions of the Treaties establishing the European Communities and acts of the Community institutions which are considered to be directly applicable by the European Court have full legal effect in Ireland by virtue of the European Communities Act, 1972, and require no specific legislative response to achieve this effect.’ BME McMahon and F Murphy, European Community Law in Ireland (Butterworth (Ireland), Dublin 1989) 272, 276; Similarly, BME McMahon, 'EEC Membership and the Irish Legal System' (1984) 3 Irish Studies 57-78 60-61, 68; Similarly, F Murphy, 'The European Community and the Irish Legal System' in D Coombes (ed) Ireland and the European Communities: Ten Years of Membership (Gill & Macmillan, Dublin 1983) 29-42 30 "[Secondly,] the Community Treaties and the Accession Treaty had to be approved by the Oireachtas in accordance with article 29 paragraph 6 of the Constitution ..." . Henchy’s understanding is that the European Communities Act makes Community law effective in Ireland, while the Third Amendment prevents the European Communities Act from being held unconstitutional: ‘As far as Ireland is concerned, the Oireachtas has enacted by s. 2 of the European Communities Act, 1972, that not alone the Treaties governing the European Communities but also the existing and future acts adopted by the institutions of those Communities, shall be binding on the State and shall be part of the domestic law under the conditions laid down in the Treaties. Unless that provision is held not to have been necessitated by Ireland’s membership of the E.E.C, the Third Amendment would preclude it from being held repugnant to the Constitution.’ Henchy, 'The Irish Constitution and the E.E.C.' 22-23. Robinson’s view is that it is the European Communities Act, in line with Art 29.6 of the Irish Constitution, rather than the Third Amendment or the direct obligations of Community law, which allows Irish judges to apply Community law: ‘Section 2 [of the European Communities Act 1972] provides that these treaties, and the existing and future acts adopted by the institutions of the Communities, “shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties”. This section was necessary in order to render Community Law part of the domestic law of the State. The Third Amendment of the Constitution Act 1972 had amended the 1937 Constitution to enable this to be done, but it was still necessary for the Irish Parliament, the Oireachtas, to pass legislation in this way because of the provisions of Article 29 of the Constitution. Article 29, section 6, provides: “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.” It is doubtful, therefore, whether Irish courts would have been willing to recognise and enforce Community law in the Irish courts without such implementation by the Oireachtas, despite the fact that certain provisions of the Treaties and Regulations under Article 189 would be regarded as self-executing.’ MT Robinson, 'The Irish European Communities Act 1972' (1973) X Common Market Law Review 352-354 352 [Italics in original]. Fennelly and Collins

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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 adopt the view that the Third Amendment provides for constitutional immunity only, and that the European Communities Act is necessary for the application of Community law in Ireland in line with the dualist conception of the Irish Constitution. ‘Taking account of its dualist understanding of international treaties, Ireland equally legislated, under the forms of the European Communities Acts, laws seeking to give full effect to article 29.4.3 of the Constitution’ Fennelly and Collins, 'Irlande' 268, ‘This amendment [The Third Amendment to the Constitution] is the indispensable condition for the validity and acceptance of Community law in Ireland. Some points are worthy of note. The most radical aspect of this constitutional provision is that, under the single reservation that suitable legislation of application is adopted, it deprives the Constitution itself of all efficacy in relation with European Community law. [Here a footnote refers to a later discussion of limitations in this regard, including the Grogan litigation]. This latter result depends essentially on the observation of the criteria of ‘necessity’, widely discussed in court decisions. The amendment has been described as equivalent to a “astonishingly wide immunity clause” and as indicating that “Community law has been received on its own very demanding terms in Irish law” [cf. Hogan and Whelan, Ireland and the European Union: Constitutional and Statutory Texts and Commentary 7]. All the same, it does not itself confer on the treaties or the rules derived from it “the force of law in the State”. A strict attachment to the dualist concept in relation to international treaties resulted in the adoption of a number of European Communities Acts by the Oireachtas between 1972 and 1995.’ Fennelly and Collins, 'Irlande' 269. [Fennelly and Collins write in French – translation by the author]. It is difficult to draw clear conclusions from Fergus Ryan’s brief discussion of the supremacy of Community law. On the one hand, Ryan states that the rule in Art 29.6 of the Constitution does not apply to the laws and institutions of the European Union, FW Ryan, Constitutional Law (Round Hall Sweet & Maxwell, Dublin 2002) 37. (This claim would appear to be contrary to Barrington J’s judgment in Crotty, not to mention the text of the European Communities Act itself, although it is certainly true that the laws of the European Union do not require incorporation one-by-one by specific acts of the Oireachtas in the normal dualist manner). On the other hand, Ryan states that the direct effect of European law is ‘permitted’ by the Third Amendment to the Irish Constitution, but ‘further facilitated’ by the European Communities Act 1972, which latter ‘automatically makes Community law part of Irish law’ Ryan, Constitutional Law 40. The latter understanding would be compatible with the right of the Oireachtas to legislate contrary to Community law by amending the European Communities Act. Byrne and McCutcheon’s discussion of the implementation of European Community law in Ireland does not contain a full discussion of the division of labour between the Third Amendment and the European Communities Act, but clearly leans toward a claim that Third Amendment directly introduces Community law into the Irish legal order. They write both that the Third Amendment ‘permits’ the laws established by the European institutions to have priority over Irish law and that the Third Amendment ‘makes’ Community law part of the domestic law of Ireland, see R Byrne and JP McCutcheon, The Irish Legal System (Butterworth (Ireland), Dublin 2001) 642. As for the European Communities Act, Byrne and McCutcheon claim that ‘In some respects, it might be said that s 2 of the 1972 Act merely repeats in another form what is already explicitly contained in Article 29.4.7˚ of the Constitution. Nonetheless, it does provide an explicit statement that the Treaties and the acts of the Community institutions are part of the domestic law of the State.’ and that ‘The combination of Article 29.4.7˚ of the Constitution and the European Communities Act 1972 has given effect in general terms to the Treaties of the European Community and Union. [with the consequence that no domestic implementing measures are required for Community Regulations]’ Byrne and McCutcheon, The Irish Legal System 643, 665. David Gwynn Morgan writes ‘EEC law is part of Irish law. This result was brought about by the European Communities Act, 1972 and Art 29.4.3 which was an amendment added to the Constitution in 1972 … In most cases, domestic Irish courts have jurisdiction over actions involving EEC law. However, without more, there would be a danger that the domestic court systems of each of the member states would give varying interpretations of EEC law. To meet this difficulty the EEC Treaty (which is part of Irish law, by virtue of the 1972 amendment) includes an article (Art 177) which provides as follows: …’ DG Morgan, Constitutional Law of Ireland (Second Edition edn, Round Hall Press, Blackrock, Co. Dublin 1990) 195196.

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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.62 On that basis, Ireland could legislate contrary to Community law by an explicit constitutional amendment.

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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 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. See Hogan and Whyte, J M Kelly: The Irish Constitution 2096-2097, see also the comparative discussion in R O'Connell, 'Guardians of the Constitution: Unconstitutional Constitutional Norms' (1999) 4 Journal of Civil Liberties 48-75. Whether or not there are limits on amendment of the Irish Constitution derived from natural law rights does not, however, affect the argument advanced here. There is no reason to believe that the application of Community law in Ireland might fall into the limited category of fundamental natural law rights.

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(As we have seen, there is considerable evidence 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.) Even scholars who view the effect of Community law in Ireland as deriving from the Irish Constitution, rather than the European Communities Act, accept that the possibility that an Irish constitutional amendment could disapply Community law in Ireland.63 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

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For example, Carolan, in his brief discussion of European law supremacy in Irish law: ‘Thus, from the Irish perspective, European Union law is supreme because Irish domestic law, and in particular Irish constitutional law, has been amended to provide for the supremacy of European Union law. This arguably contrasts with the perspective of the Court of Justice of the European Communities. The court view seems to be that by reason of accession to the European Union, Ireland irrevocably surrendered a measure of national sovereignty over certain limited areas. The tension between European Union and national views of the supremacy of European Union law could arise if Ireland amended its constitution to provide for the supremacy of national law in one of the areas covered by European Union law. That is, if Ireland took: “a subsequent unilateral act incompatible with the concept of the European Union”. [Carolan quotes Costa] From the viewpoint of the Court of Justice, amending the Irish Constitution would not affect the supremacy of European Union law. It is not clear that Ireland would have the same view of the matter. However, until such time as European Union and Irish law seriously clash over a concrete issue, this tension is unlikely to boil over into a real issue.’ Carolan, EU law for Irish Students 99. Also Forde: ‘Whether this clause [29.4.10] precludes amending the Constitution, in order to establish a somewhat different relationship between the State and the EC/EU, is debatable: it would appear to be subject to Article 46, which permits “[a]ny provision of the” Constitution to be amended in a referendum carried out in the manner stated here.’ Forde, Constitutional Law 262. Fergus Ryan allows that, if Walsh J in Grogan is correct, constitutional amendments subsequent in time to amendments allowing the ratification of European treaties might prevail over European law Ryan, Constitutional Law 39.

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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.64 This final section briefly considers whether the right of Irish political institutions to legislate contrary to European Community law, as has been argued here, would be affected should the Treaty Establishing a Constitution for Europe – or a subsequent treaty similar in substance to the latter – be ratified by all the member states and come into force in Ireland, and makes some related observations about the ‘constitution’ of the European Union. Unlike previous European treaties, the Treaty Establishing a Constitution for Europe contained a provision explicitly providing for the supremacy of European Community law over national law: ‘The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.’65 Despite this provision, if the Treaty Establishing a Constitution for Europe were to come into force, Irish political institutions would retain their current right to legislate 64

Cf. TC Hartley, Constitutional Problems of the European Union (Hart, Oxford, Portland, Or. 1999) 176-177. The position in the United Kingdom is well-known, but analogous circumstances are applicable in other member states. Zahle writes, for example, about the possibility of the national parliament expressly legislating contrary to certain European Community obligations in Denmark, where – like Ireland – a national constitutional amendment permits delegation by statute of unusual authority to the European institutions: “Further, since the accession was effected by statute, it can be changed by subsequent statute law. The subsequent statute may first of all result in a general amendment of the Accession Act whereby the national legal basis for the cooperation with the EU would disappear. Secondly, there may be problems in connection with a specific statute that in particular area makes provisions in conflict with Community law. If the legislature has unequivocally revoked the EU’s powers to regulate the area in question it is undoubtedly possible to legislate in conflict with Community law. But even in a situation where such unequivocal revocation has not been laid down by statute, but where some regulation has been adopted which is acknowledged and intended as a breach of the existing Community law, a Danish authority must give priority to Danish law over Community law.” H Zahle, 'Danish Report' FIDE Berichte für den 17 Kongress Berlin: National Constitutional Law vis-à-vis European Integration (Nomos, Baden-Baden 1996) 60-69 66. 65 Art I-6 Treaty Establishing a Constitution for Europe.

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contrary to European Community law and receive the application of that legislation by the Irish courts. Because the Treaty Establishing a Constitution for Europe would remain a treaty, the effectiveness of its obligations in the Irish legal order would continue to be derivative of the Irish legal provisions, both statutory and constitutional, to provide for its force in the Irish legal order. As such, Irish political institutions would retain the right to unilaterally amend or repeal the Irish legal provisions in question. There is no reason why a provision of the treaty itself would alter the basis of the relationship between the two orders. Article 29.6 of the Irish Constitution does not provide an exception to the dualist relationship between Irish law and treaty obligations for treaties which claim explicit primacy over national law, just as it does not provide any exception for the treaty obligations as determined through a system of preliminary references to an international court. A very similar question has already been considered in relation to an earlier proposal for a European treaty which contained a provision explicitly providing for the supremacy (or primacy) of European Community law. In 1984, the European Parliament voted to support the ‘Draft Treaty establishing the European Union’, commonly associated with Altiero Spinelli.66 The Draft Treaty establishing the European Union contained an explicit statement of the primacy of European Community law similar to that in the Treaty Establishing a Constitution for Europe. In particular, Article 42 of the Draft Treaty stated: The law of the Union shall be directly applicable in the Member States. It shall take precedence over national law. Without prejudice to the powers conferred on the Commission, the implementation of the law shall be the responsibility of the authorities of the Member States. An organic law shall lay down the procedures in accordance with which the

66

European Parliament, Draft Treaty establishing the European Union (European Parliament Directorate-General for Information and Public Relations, Luxembourg 1984).

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Commission shall ensure the implementation of the law. National courts shall apply the law of the Union. The Draft Treaty establishing the European Union never came into effect, but its contents were discussed by the scholars of European integration. For our purposes, John Temple Lang’s analysis of the Draft Treaty in the Irish context is particularly relevant. Temple Lang noted that Oireachtas legislation would be necessary to make the Draft Treaty part of Irish law: An amendment to the constitution on the lines of the 1972 amendment would make it possible for Ireland to join the European Union, but would not make Ireland a member. Ratification of the new Treaty could take place only after the amendment to the constitution had been signed by the President and so passed into law. Ratification of any treaty is an act of the Government under Article 28 of the constitution and no treaty (even one expressly mentioned in an amendment to the constitution) becomes part of the domestic law of the Irish State except by an act of the Oireachtas. After the constitution had been amended, therefore, it would be necessary for the new Treaty to be enacted into law by an act similar to the European Communities Act 1972.67 Temple Lang then notes that the position of European Community law in the Irish legal order under the Draft Treaty would depend on the Irish implementing legislation. If that Irish legislation were unchanged, the relationship between Irish law and European Community law would also be unchanged by the Draft Treaty. Ratification by Ireland of the new Treaty setting up the European Union would be possible only after an Act essentially similar to the European Communities Act 1972 had been adopted. (Some drafting improvements could be imagined.) The rules of Irish law concerning the supremacy of Community law, and the effects of rules of Community law which are not directly applicable, would be the same under the new Treaty as in the case of the Community Treaties [here Temple Lang refers to his 1972 article, ‘Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty’, pages 171-176, already discussed above], unless the 67

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.

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constitutional amendment or the implementing legislation were differently drafted. There is no reason to think that they would be.68 The reference by Temple Lang to his 1972 article concedes the traditional view that Ireland would be able to legislate contrary to Community law, even after the coming into force of the Draft Treaty establishing the European Union with its explicit claim of the supremacy of national law, unless the Irish courts accepted one of Temple Lang’s three contrary arguments described above. For the reasons advanced above, these three arguments are unpersuasive. Temple Lang was prescient in expecting that Irish legislation to implement a proposed European treaty containing an explicit provision on the supremacy of European law would be likely to replicate the legislation used to implement prior European treaties. The Irish government’s proposed constitutional legislation – the Twenty-eighth Amendment of the Constitution Bill 2005 – to implement the Treaty Establishing a Constitution for Europe replicates the structure established by the Third Amendment, with immunity from constitutional review provided for laws enacted etc. that are necessitated by obligations of membership of the European Union.69 On that basis, the relationship of European Community law and the Irish legal order would remain unchanged, just as the relationship of European Community law and the Irish legal order was unchanged in this respect by the passage of earlier statute legislation and constitutional amendments, consequent on earlier European treaties, which replicated the language of the European Communities Act 1972 and the Third Amendment to the Irish Constitution. The acts of the European institutions would

68

Temple Lang, 'The Draft Treaty establishing the European Union and the Member States: Ireland' 248 69 Twenty-eighth Amendment of the Constitution Bill [No. 15 of 2005] available at http://www.europeanconstitution.ie/constitution/TextofBill.pdf.

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continue to derive their status in Irish domestic law from the European Communities Act. Although under the current Irish legal provisions which provide for the effect of European law in the Irish legal order, the Oireachtas retains the right to legislate contrary to European Community law, it should be emphasised however that the relationship between European Community law and Irish law could be changed. Such a change could be achieved by enacting new amendments to the Irish Constitution which, unlike the Third Amendment, would provide that Irish legislation giving the force of law to European Community law in Ireland could not be repealed or amended by the Oireachtas. A constitutional amendment of this sort could also be used to remove other limits on the application of European Community law in Ireland, such as the requirement of the current provision that obligations be ‘necessitated’ by (rather than, for example, ‘consequent on’) membership of the European Union in order to benefit from the immunity provided by Art 29.4.10, or, as John Bruton has proposed, to allow the ratification of European treaties without the requirement for a referendum. Such a constitutional amendment could be voted by the Oireachtas and put to the vote of the Irish people at any time, whether in conjunction with a new European treaty or not. Even then, the application of Community law in Ireland would depend on provisions of the Irish Constitution, rather than directly on European Community law. It would not be straightforward to amend the Irish Constitution so as to prevent subsequent amendments to the Irish Constitution withdrawing such application of Community law in the Irish legal order as earlier amendments had granted. 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 42

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 institution – 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 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

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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 the member 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.

12,432 Words.

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Institute for International Integration Studies The Sutherland Centre, Trinity College Dublin, Dublin 2, Ireland