Pringle v Government of Ireland and Others

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr. Justice Hardiman,O'Donnell J.,Mr. Justice William M. McKechnie,Mr. Justice Clarke
• Judgment Date: 19 October 2012
• Neutral Citation: [2012] IESC 47
• Court: Supreme Court
• Docket Number: [S.C. No. 339 of 2012]
• Date: 19 October 2012

Pringle v Government of Ireland & Ors

Between/

Thomas Pringle

Plaintiff/Appellant

and

The Government of Ireland, Ireland and the Attorney General

Defendants/Respondents

[2012] IESC 47

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

McKechnie J.

Clarke J.

Appeal No. 339/2012

THE SUPREME COURT

CONSTITUTIONAL LAW

Sovereignty

Constitution - International relations - Executive power - Government - State sovereignty - Treaty Establishing the European Stability Mechanism - Treaty binding upon State -- Policy - Whether referendum required to permit State to ratify treaty - Whether sovereignty fettered by treaty - Whether executive powers impermissibly alienated under treaty - Role of courts in foreign policy decisions - Injunction - Interlocutory relief - Breach of Constitution - Breach of law of European Union - Attempt to restrain implementation of measure claimed to be invalid under European Union law - Reference under preliminary reference procedure - Test to be applied - Balance of justice - Whether entitlement to injunction preventing ratification of treaty - Atlanta Fruchthandelgesellshcaft mbH v Bundesamt fur Ernahrung and Forstwirtschaft (Case C-465/93) [1995] ECR I-3761; Amministrazione delle Finanze dello Stato v Simmenthal (Case 106/77) [1978] ECR 629; [1978] 3 CMLR 263; Boland v An Taoiseach [1974] IR 338; Crotty v An Taoiseach [1987] IR 713; Campus Oil v Minister for Industry (No 2) [1983] IR 88; TD v Minister for Education [2001] 4 IR 259; Ellis v O'Dea [1989] IR 530; Horgan v Ireland [2003] 2 IR 468; Laurentiu v Minister for Justice [1999] 4 IR 26; McGimpsey v Ireland [1988] IR 567; Okunade v Minister for Justice [2012] IESC 49 [2012] 3 IR 152; R v Secretary of State for Transport, ex parte Factortame (Case C-213/89) [1990] ECR I-2433; Ryan v Attorney General [1965] IR 294; Sinnott v Minister for Education [2001] 2 IR 545; Siples (Case 226/99) [2001] ECR I-277; The State (Gilliland) v Governor of Mountjoy Prison [1987] IR 201; Wireless Dealer's Association v Minister for Industry (Unrep, SC, 7/3/1956) and Zuckerfabrik Suderdithmarschen and Zuckerfabrik Soest (Joined Cases C-143/88 and C-92/89) [1991] ECR I-415 considered - Constitution of Ireland 1937, Arts 5, 6, 28.2, 29.4.1 - Appeal on sovereignty and injunction issues dismissed; questions referred to ECJ (339/2012 - SC - 19/10/2012) [2012] IESC 47

Pringle v Ireland

Facts: The facts were as set out in the earlier hearing of the Supreme Court in July 2012 ([2012] 7 JIC 3101). In that hearing, the Supreme Court had referred a number of questions to the CJEU, but had decided to rule on two points with judgments on those points to follow. This was the judgment on the two outstanding points.

Held by Denham CJ, that the first issue was whether the European Stability Mechanism Treaty ("ESM Treaty") involved an unconstitutional transfer of sovereignty, considering the earlier case of Crotty v An Taoiseach [1987] IR 713 ("Crotty"). In Crotty, it was held that any attempt by a government to commit to alienate the conduct of the State's foreign policy, whether in part or in whole, would be unconstitutional. Any such commitment could only be made by the people in a referendum, as the powers of the government were for the common good of the Irish people. Denham CJ therefore stated that the ESM Treaty itself would have to be considered in order to determine how to apply the principles set out in Crotty.

In the instant case, Denham CJ was satisfied the nature of the ESM Treaty did not require the decision to transfer powers to be approved by the people. The functions of the ESM did not impact upon the sovereignty of the State in economic or monetary terms, and any decisions which the State could be outvoted on did not determine actual policy but rather the implementation of policy. Denham CJ therefore held that the decision to join the other member states under the terms of the ESM Treaty was a lawful policy of the Government in exercise of the powers available to them under the Constitution. Crotty v An Taoiseach [1987] IR 713 applied.

In respect of the second issue, which concerned the application for an interlocutory injunction, Denham CJ stated that the test to be applied was that set out in the case of Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88. The balance of convenience in this case, particularly with a view to the consequences of the policy determined by the Government, lay heavily in favour of refusing the injunction. The matter was to be dealt with by the CJEU, and the measures the appellant sought to challenge would remain in place until that hearing. Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88, applied.

Hardiman J dissented from the majority opinion. The other Justices concurred with Denham CJ's opinion, with Clarke J and O'Donnell J also handing down separate opinions.

CROTTY v AN TAOISEACH & ORS 1987 IR 713 1987 ILRM 400

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 45

ZUCKERFABRIK SUDERDITHMARSCHEN AG v HAUPTZOLLAMT ITZEHOE; ZUCKERFABRIK SOEST GMBH v HAUPTZOLLAMT PADERBORN 1991 ECR I-415 1993 3 CMLR 1

ATLANTA FRUCHTHANDELSGESELLSCHAFT MBH & ORS v BUNDESAMT FUR ERNAHRUNG UND FORSTWIRTSCHAFT 1996 AER (EC) 31 1995 ECR I-3761 1996 1 CMLR 575

TREATY ON EUROPEAN UNION ART 48

TREATY ON EUROPEAN UNION ART 48(1)

TREATY ON EUROPEAN UNION ART 48(2)

TREATY ON EUROPEAN UNION ART 48(3)

TREATY ON EUROPEAN UNION ART 48(4)

TREATY ON EUROPEAN UNION ART 48(5)

TREATY ON EUROPEAN UNION ART 48(6)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 136

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 3 TITLE VIII CHAP 4

EEC DECISION 2011/199 ART 1

EEC DECISION 2011/199 ART 2

EEC DECISION 2011/199 ART 2 PARA 2

EUROPEAN COMMUNITIES (AMDT) ACT 2012 S1

EUROPEAN COMMUNITIES ACT 1972 S1

EUROPEAN COMMUNITIES (AMDT) ACT 2012 S2(3)

CONSTITUTION ART 46

CONSTITUTION ART 29.4

TREATY ON EUROPEAN UNION ART 2

CONSTITUTION ART 29.4.6

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 263

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 1(1)

EUROPEAN STABILITY MECHANISM ACT 2012 S5

EUROPEAN STABILITY MECHANISM ACT 2012 S3

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 47(1)

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 15.2.1

CONSTITUTION ART 15.4

CONSTITUTION ART 17

CONSTITUTION ART 28.2

CONSTITUTION ART 28.4

EUROPEAN STABILITY MECHANISM ACT 2012 S2

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 8(2)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 10(1)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 25(1)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 25(2)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ANNEX II

EEC DECISION 2011/199 RECITAL 2

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 3 TITLE VIII

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 122

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 123

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 125

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 126

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 2(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 2(2)

TREATY ON EUROPEAN UNION ART 4(3)

TREATY ON STABILITY COORDINATION & GOVERNANCE IN THE ECONOMIC & MONETARY UNION ART 14(2)

THIRTIETH AMENDMENT OF THE CONSTITUTION (TREATY ON STABILITY COORDINATION & GOVERNANCE IN THE ECONOMIC & MONETARY UNION) ACT 2012 S1

CONSTITUTION ART 29

CONSTITUTION ART 29.4.9

TREATY ON STABILITY COORDINATION & GOVERNANCE IN THE ECONOMIC & MONETARY UNION ART 10

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM RECITAL 5

CONSTITUTION ART 43

SINGLE EUROPEAN ACT TITLE III

TREATY ON STABILITY COORDINATION & GOVERNANCE IN THE ECONOMIC & MONETARY UNION ART 1

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 4(4)

VIENNA CONVENTION ON THE LAW OF TREATIES 23.5.1969 ART 56

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 12

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 3

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 4(8)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 8

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 37

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 273

CONSTITUTION ART 29.4.4

TREATY ON EUROPEAN UNION TITLE V

CONSTITUTION ART 29.4.1

CONSTITUTION ART 29.4.2

CONSTITUTION ART 29.5.1

CONSTITUTION ART 29.5.2

SINGLE EUROPEAN ACT ART 33

SINGLE EUROPEAN ACT TITLE II

EUROPEAN COMMUNITIES (AMDT) ACT 1986 S3(3)

CONSTITUTION ART 29.4.3

CONSTITUTION ART 1

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 4

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 5

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 5(6)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 5(7)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 6

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 7

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 10

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 12(1)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 18(2)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 21

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 41

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 8(1)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 41(1)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 42(2)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 5(6)(C)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 9

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 5(6)(D)

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 16

TREATY ESTABLISHING THE EUROPEAN STABILITY MECHANISM ART 17

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