Implementing community legislation into national law: the demands of a new legal order

AuthorJonathan Tomkin
PositionB.A. (Hons) T.C.D., Solicitor, Legal Secretary, European Court of Justice
It is well established that the European Community constitutes a
“new legal order” in international law.1One of the primary
characteristics of this new legal order is the development of a body
of law that, within defined fields of community competence, takes
precedence over member states’ domestic law.2Membership of the
European Community therefore entails the creation by member
states of a new legal infrastructure in domestic law which can
accommodate the influx of vast amounts of EC legislation. This
article will examine the means by which Ireland implements EC
legislation, with a view to assessing whether such means are
consistent with EC and Irish Constitutional law.
The first section of this article will explorethe natureand scope
of Ireland’s obligation to implement EC legislation under EC and
Irish law. The legislative mechanism by which Ireland implements
community legislation into national law will then be described in the
second section of this article. The third section will assess whether,
in light of recent Irish case law, the mechanism in place at the time
of writing adequately complies with Ireland’s obligations under
domestic and community law. Finally, proposals will be submitted
for a moredemocratic and constitutionally consistent means of
implementing EC directives into Irish law.
The obligation of member states to comply with EC law is set
out in Article 10 (formerly Article 5) and Article 249 (formerly
Article 189) of the EC Treaty. Article 10 provides that “Member
130 [4:2Judicial Studies Institute Journal
*B.A. (Hons) T.C.D., Solicitor, Legal Secretary, European Court of Justice. This article
considers the law as it stood on 25 April 2003. I am very grateful to Bríd Moriarty, BL
Coordinator and lecturer in EC Law and Human Rights law at the Law Society of Ireland for
her encouragement and insightful guidance throughout the writing of this paper.
1Case 26/62, Van Gend en Loos [1963] E.C.R. 1.
2Case 6/64, Costa v. ENEL [1964] E.C.R. 585; [1964] C.M.L.R. 425.
States shall take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out of this
Treaty or resulting from action taken by the Institutions of the
Community. They shall facilitate the achievement of the
Community’s tasks.
Article 249 defines the different forms of community legislation
and describes the legal obligation they entail. In particular Article
249 defines Regulations as “binding in their entirety” and “directly
applicable” on all member states. Directives, however, are defined as
legislation that is binding as the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national
authorities the choice of formand methods.” Member states are thus
given discretion to consider the most appropriate means of
implementing directives into domestic law provided that the
objectives of the directives are attained and provided that the
directive is implemented into domestic law within the required
timescale. In the words of LordHoffman “Community law is
indifferent to the internal arrangements of power within a member
state”.3Nevertheless member states’ discretion is not absolute. The
Courtof Justice of the European Communities (the “Courtof
Justice”) has held that although community law does not requireany
particular form of implementation, it is crucial that the form
adopted does not have the effect of impeding the effectiveness of
community Law.4In the case of Commission v. France5the Court of
Justice held that directives must be implemented with
“unquestionable binding force and with the specificity, precision and
clarity”6that is necessary to satisfy the requirement of legal certainty,
so that whereadirective confers rights on individuals, the persons
concerned must be enabled to ascertain the full extent of the rights
set out in the relevant directive.
In an article entitled “Direct Effect, Supremacy and the Nature
of the Legal Order”, Professor Bruno de Witte points out that when
Ireland joined the EEC in 1973, the cases of Van Gend en Loos and
Costa v. Enel had already been decided, and the doctrine of
2004] 131Implementing Community Legislation Into National
Law: The Demands Of A New Legal Order
3Lord Hoffman in R. v. Secretary of State for Health [2001] 1 W.L.R. 127 at 138 (H.L.), cited
by Fennelly J. in Maher v. Minister for Agriculture [2001] 2 I.R. 139 at 250 (H.C. & S.C.).
4Case C-285/93, Dominikanerinnen-Kloster Altenhohenau v. Hauptzollamt Rosenheim
[1995] E.C.R. I-4069.
5Case C-197/96, Commission v.France [1997] E.C.R. I -1489. See also Case C-361/88,
Commission v.Germany [1991] E.C.R. I-2567.
6Case C-197/96, Commission v. France [1997] E.C.R. I -1489 at para. 15.

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