The influence of the general principles of community law on rules of procedure and rules of substance in IReland

• Author: David L. Scannell
• Position: LL.B., LL.M. (Cantab.), Gonville and Caius College, Cambridge
• Pages: 64-125

THE INFLUENCE OF THE GENERAL

PRINCIPLES OF COMMUNITY LAW ON

RULES OF PROCEDURE AND RULES OF

SUBSTANCE IN IRELAND

DAVID L. SCANNELL*

I. THE RECEPTION OF EUROPEAN COMMUNITY LAW INTO THE IRISH

LEGAL ORDER

Ireland has received European Community law into

its national legal order by means of the Third Amendment to

the Constitution, as supplemented by additional amendments

to cater for further Treaty amendments on the European side.1

These Amendments expressly and formally authorise

accession to the relevant Treaties. Article 29.4 of the

Constitution of Ireland provides, in relevant part, as follows:

64 Judicial Studies Institute Journal [1:1

1 The Tenth Amendment cleared the way for accession to the Single

European Act, the Eleventh for accession to the Treaty on European

Union and the Eighteenth for accession to the Treaty of Amsterdam.

* LL.B., LL.M. (Cantab.), Gonville and Caius College, Cambridge. Former

Senior Judicial Researcher, Supreme Court. This report was compiled in

preparation for a conference of Supreme Court personnel organised by

the Cour de Cassation (Paris) within the context of the French Presidency

of the European Union (July – December, 2000). It was written

principally in the expectation that it would be read by non-Common

Lawyers, which goes some way to explaining the absence of detailed

exegesis. It has been altered to reflect recent case law, notably the

Supreme Court’s decision in Maher. To the extent that views are

expressed, they are entirely personal to the author and, of course, the

usual caveat applies.

Noel Travers’ report on Community Directives in Ireland, submitted on

behalf of the Irish Society of European Law, to the XVIII F.I.D.E.

Congress, Stockholm, June, 1998, which latterly became a masterful

article in (1998) I.J.E.L. 165, was used to provide a framework for

portions of sections IV (in particular, section IV.C) and VII (in particular,

section VII.B for the purposes of the Pesca Valentia case), infra. Further

specific references are made to Travers’ article, passim.

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). The

State may ratify the Single European Act

(signed on behalf of the Member States of the

Communities at Luxembourg on the 17th day

of February, 1986, and at the Hague on the

28th day of February, 1986).

4° The State may ratify the Treaty on

European Union signed at Maastricht on the

7th day of February, 1992, and may become a

member of that Union.

5° The State may ratify the Treaty of

Amsterdam amending the Treaty on European

Union, the Treaties establishing the European

Communities and certain related Acts signed

at Amsterdam on the 2nd day of October,

1997.

Article 29.4.7° then goes on to confer a broad

immunity from Constitutional challenge upon all such “laws

enacted, acts done or measures adopted” by the State as are

“necessitated by” the obligations of membership of the

Communities.

These provisions have the effect of opening a

constitutional window through which the light of Community

rules may shine, unrefracted by the smudges of national legal

interventions. That window is of finite dimensions, however,

so that it is generally felt necessary to effect further

constitutional amendments in Ireland co-extensive with

2001] Influence of Community Law 65

further accretions to Union competence, as reflected in the

Treaties.

It should be emphasised that “accretions to Union

competence”, as used above, might suggest that when a new

Union treaty emerges from the intergovernmental conference

framework one merely has to examine it with a view to

ascertaining whether additional fields, formerly matters of

residual Member State competence, have been transferred to

the Union. In reality, this is an oversimplification. The

doctrine of attributed competences, or “compétences

attribuées”,2 not only explains the transfer to the Union

zweckverband of competences in specific fields, but also the

conditions under which those competences are so transferred.

The shift from unanimity to qualified majority voting, for

example, alters the conditions under which competence is

transferred from the regions to the centre and arguably

amounts to an “accretion to Union competence”. On this

view, one is urged to concur with the government’s choice to

call for a referendum on the Nice Treaty, signed on 26

February 2001. While on the face it appears to do no more

than fulfill a promise made at Helsinki (to states wishing to

accede) that the Union would make the necessary

institutional reforms by the end of 2000 in order to welcome

new members by the end of 2002, it arguably does a great

deal more than this. Ireland’s vote in Council has been

emasculated to a greater degree than the large Member

States,3 for example, thereby weakening the State’s grip on

areas of competence which were transferred under different

conditions - triggering, according to this view, the “accretion

of Union competence” effect.

66 Judicial Studies Institute Journal [1:1

3 Under Article 203 EC, from the 1 January 2003, Ireland’s vote in

Council will increase from three votes to seven votes. Were the votes of

the “Big Four” (Germany, France, Italy and the United Kingdom) to

increase commensurately, one would expect these Member States to have

23 votes from that date. In fact, they will have 29 votes.

2 Which now finds Treaty expression in Article 5 EC.