Crotty v an Taoiseach and Others

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,WALSH J.,Henchy J.,GRIFFIN J.,HEDERMAN J.
• Judgment Date: 01 January 1990
• Neutral Citation: [1987] IESC 4
• Court: Supreme Court
• Docket Number: [1986 No. 12036P]
• Date: 01 January 1990

CROTTY v. TAOISEACH(CONSTIT. VALIDITY)

CROTTY

v.

AN TAOISEACH & OTHERS

[1987] IESC 4

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

Hederman J.

35/1987

42/1987

THE SUPREME COURT

Synopsis:

CONSTITUTION

International relations

Treaty of Rome - Amendment - Single European Act - Objection by citizen - ~Locus standi~ of plaintiff - Part of SEA due to be made part of domestic law of the State by the Act of 1986 - The SEA had not been ratified by the Government - The Act of 1986 had not been brought into force - Held, nevertheless, that the plaintiff had ~locus standi~ to seek an order declaring the Act of 1986 to be invalid having regard to the provisions of the Constitution - Decision of the High Court (12/2/87) reversed - ~Cahill v. Sutton~ [1980] I.R. 269 applied - Held that the ratification of the SEA by the Government was not necessitated by "the obligations of membership" of the European Communities within the meaning of the second sentence of Article 29, s.4, sub-s. 3, of the Constitution - Held that the first sentence of the said sub-s. 3 was the authority for the State joining the European Communities as they existed in 1973, and authorised the State to concur in amendments of the Treaties which did not alter the essential scope of objectives of the Communities - The plaintiff submitted that the licence conferred by sub-s. 3 did not authorise the following provisions of the SEA, ~viz.~, the proposed change, in certain instances, from the requirement of unanimity to an acceptance of qualified majority voting in relation to decisions of the Council; the proposed establishment of a European court of first instance; and the proposed provisions of articles 18, 20, 21, 23, 24, 25 - Held that it had not been shown, to the satisfaction of the Court, that any one of the provisions of the Act of 1986 are invalid having regard to the provisions of the Constitution - Decision of the Court pronounced in conformity with Article 34.4.5 of the Constitution - Treaty of Rome, articles 2, 3 - Single European Act, article 3(1); Title II; articles 31–34 - European Communities (Amendment) Act, 1986 - Constitution of Ireland, 1937, Article 29 - (35-42/87 - Supreme Court - 9/4/87) - [1987] ILRM 400

|Crotty v. An Taoiseach|

CONSTITUTION

Statute

Validity - Treaty of Rome - Amendment - Authorisation - Statute purporting to incorporate part of Single European Act in domestic law of the State - Statute enacted but not in operation - SEA not ratified by the State - Held that the proposed amendment of the treaty was authorised by the licence conferred by Article 29.4.3 of the Constitution - ~See~ Constitution, international relations, Treaty of Rome - (35-42/87 - Supreme Court - 9/4/87) - [1987] ILRM 400

|Crotty v. An Taoiseach|

EUROPEAN COMMUNITIES

Treaty of Rome

Amendment - Procedure - Single European Act - Proposed ratification by the State - Provisions of SEA to be made part of domestic law of the State by the Act of 1986 - Act of 1986 not brought into force - Constitutional validity of the provisions of the Act of 1986 - Provisions held to be valid - Appeal from decision of the High Court (12/2/87) - ~See~ Constitution, international relations, Treaty of Rome - (35&42/87 - Supreme Court - 9/4/87) - [1987] ILRM 400

|Crotty v. An Taoiseach|

PRACTICE

Parties

~Locus standi~ - Statute - Validity - Challenge - Statute enacted but not in operation - Terms of international agreement - Agreement not ratified - Statute purporting to incorporate part of terms of the agreement in the domestic law of the State - Held that plaintiff citizen entitled to challenge the validity of the provisions of the statute - ~See~ Constitution, international relations, Treaty of Rome - (35&42/87 - Supreme = 9/4/87) - [1987] ILRM 400

|Crotty v. An Taoiseach|

Citations:

SINGLE EUROPEAN ACT 1986 ART 3(1)

SINGLE EUROPEAN ACT 1986 ART 31

SINGLE EUROPEAN ACT 1986 ART 32

SINGLE EUROPEAN ACT 1986 ART 33

SINGLE EUROPEAN ACT 1986 ART 34

SINGLE EUROPEAN ACT 1986 TITLE II

CAHILL V SUTTON 1980 IR 269

CONSTITUTION ART 29.4.3

CONSTITUTION THIRD AMDT

SINGLE EUROPEAN ACT 1986 ART 26

SINGLE EUROPEAN ACT 1986 ART 27

SINGLE EUROPEAN ACT 1986 ART 11

SINGLE EUROPEAN ACT 1986 ART 12

SINGLE EUROPEAN ACT 1986 ART 4

SINGLE EUROPEAN ACT 1986 ART 5

SINGLE EUROPEAN ACT 1986 ART 21

SINGLE EUROPEAN ACT 1986 ART 20

SINGLE EUROPEAN ACT 1986 ART 24

SINGLE EUROPEAN ACT 1986 ART 25

SINGLE EUROPEAN ACT 1986 ART 18

TREATY OF ROME ART 2

TREATY OF ROME ART 3

EUROPEAN COMMUNITIES ACT 1986

DECISION OF THE COURT

1 pronounced by FINLAY C.J. in accordance with the provisions of Art. 34.4.5 of the Constitution, on the 9th day of April 1987

2 Part of the Plaintiff's appeal in this case is against the dismiss by the High Court of his claim for a declaration that the European Communities Act 1986 is invalid having regard to the provisions of the Constitution. The Court in this decision deals with that issue only.

3 The European Communities Act 1986 ("the Act of 1986") purports to amend the European Communities Act 1972and to bring into the domestic law of the State Article 3(1); Title II; Article 31; Article 32; and in part Articles 33 and 34 of the Single European Act ("the SEA").

4 The Act of 1986 was enacted by the Oireachtas in December 1986 but does not come into effect until the making of a statutory order which has not yet been made. The other provisions of the SEA largely consisting of the provisions on European Co-Operation in the Sphere of Foreign Policy contained in Title III are not affected by the Act of 1986 and do not fall to be dealt with in this decision of the Court.

5 In the High Court the Plaintiff's claim was rejected on the grounds that because the SEA had not yet been ratified by the State and because the Act of 1986 had not yet been brought into effect the Plaintiff failed to establish that he had a locus standi to challenge the validity of the Act of 1986 having regard to the provisions of the Constitution.

6 The Court is satisfied, in accordance with the principles laid down by the Court in Cahill v. Sutton that in the particular circumstances of this case where the impugned legislation, namely the Act of 1986 will if made operative affect every citizen that the Plaintiff has a locus standi to challenge the Act notwithstanding his failure to prove the threat of any special injury or prejudice to him, as distinct from any other citizen, arising from the Act.

7 The net issue therefore here arising is as to whether the provisions of Article 29:4:3 of the Constitution authorise the ratification by the State of the provisions of the SEA intended to amend the Treaties establishing the European Communities. These provisions are the Articles and Title of the SEA referred to in the Act of 1986. Article 29:4:3 reads as follows:

"3° The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State".

8 This provision was enacted as the Third Amendment to the Constitution by virtue of a Referendum held in 1972 and permitted the State to join the European Communities.

9 The Court is satisfied that the first sentence of this provision authorised the State to join three Communities identified as to each by reference to the Treaty which established it.

10 It is clear and was not otherwise contended by the Defendants that the ratification by the State of the SEA (which has not yet taken place) would not constitute an apt "necessitated by the obligations of membership of the Communities". It accordingly follows that the second sentence in Article 29:4:3 of the Constitution is not relevant to the issue as to whether the Act of 1986 is invalid having regard to the provisions of the Constitution.

11 It was contended on behalf of the Plaintiff that any amendment of the Treaties establishing the Communities made after 1st of January 1973 when Ireland joined those Communities would require a further amendment of the Constitution.

12 It was contended on behalf of the Defendants that the authorisation contained in the first sentence of Article 29:4:3 was to join Communities which were established by Treaties as dynamic and developing entities and that it should be interpreted as authorising the State to participate in and agree to amendments of the Treaties which are within the original scope and objectives of the Treaties.

13 It is the opinion of the Court that the first sentence in Article 29:4:3 of the Constitution must be construed as an authorisation given to the State not only to join the Communities as they stood in 1973, but also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objectives of the Communities.

14 To hold that the first sentence of Article 29:4:3 does not authorise any form of amendment to the Treaties after 1973 without a further amendment of the Constitution would be too narrow a construction; to construe it as an open ended authority to agree, without further amendment of the Constitution, to any amendment of the Treaties would be too broad.

15 The issue then arises as to whether the effect of the amendments to the Treaties proposed by the SEA is such as would bring the introduction of them into the domestic law by the Act of 1986 outside the...