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

• Author: Jonathan Tomkin
• Position: B.A. (Hons) T.C.D., Solicitor, Legal Secretary, European Court of Justice
• Pages: 130-153

IMPLEMENTING COMMUNITY LEGISLATION

INTO NATIONAL LAW: THE DEMANDS OF A NEW

LEGAL ORDER

JONATHAN TOMKIN*

I. INTRODUCTION

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.

II. IRELAND’S OBLIGATION TO IMPLEMENT EC 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.