Thomas Pringle v The Government of Ireland, Ireland and the Attorney General,  IESC 47 (2012)
THE SUPREME COURT[Appeal No: 339/2012] Denham C.J.Murray J.Hardiman J.Fennelly J.O'Donnell J.McKechnie J.Clarke J. Between/Thomas PringlePlaintiff/AppellantandThe Government of Ireland, Ireland and the Attorney GeneralDefendants/Respondents Judgment of Mr. Justice Clarke delivered the 19th of October, 2012. 1. Introduction1.1 On the 11th July, 2011 those of the Member States of the European Union who are also members of the euro area agreed the Treaty Establishing the European Stability Mechanism (respectively the "ESM Treaty", or simply the "Treaty", and "the ESM"). The ratification procedure for the ESM Treaty in the subscribing Member States is under way. Ireland had not, when these proceedings came before this court, ratified the Treaty. It is in that context that these proceedings were brought by the plaintiff/appellant ("Deputy Pringle") who is an Independent Member of Dáil Éireann.1.2 Deputy Pringle alleged that the ratification by the Irish government of the ESM Treaty would be in breach of the Constitution. Deputy Pringle also alleged that the ESM Treaty was inconsistent with aspects of the treaties of the European Union and in particular certain provisions of the Treaty on the Functioning of the European Union ("TFEU") so that, it was said, Ireland's ratification of the ESM Treaty and membership of the ESM would entail obligations which were incompatible with the EU treaties.1.3 In addition Deputy Pringle asserted that, in the absence of the Government being prepared to give an undertaking to the court that it would not ratify the ESM Treaty pending the outcome of these proceedings, an injunction should be granted restraining the Government from such ratification.1.4 It should also be noted that the European Council has adopted European Council Decision 2011/199/EU on the 25th March, 2011 ("the Council Decision"). The precise interaction between the Council Decision and the ESM Treaty will need to be considered later in this judgment. However, on a number of bases, Deputy Pringle asserts that the Council Decision is inconsistent with the EU treaties and is therefore invalid.1.5 These proceedings moved with considerable urgency. A plenary summons was issued in the High Court on the 13th April, 2012 with a statement of claim being delivered on the 25th April. Detailed particulars were exchanged with a defence being filed on behalf of the defendants/respondents ("the State") on the 1st June and a reply being filed on behalf of Deputy Pringle on the 11th June. The matter was listed for an expedited hearing before Laffoy J. and was heard between the 19th and the 29th June.1.6 On the 9th July Laffoy J. gave a brief outline ruling as a result of which, subject to one matter, Deputy Pringle's claim was dismissed in its entirety. At para. 4 of the order made on that day, Laffoy J. indicated that one part of Deputy Pringle's claim should be referred to the Court of Justice of the European Union. On the 17th July a detailed written judgment was delivered by Laffoy J. setting out her full reasons. Deputy Pringle appealed against the judgment and order of Laffoy J. to this court.1.7 This judgment deals with some, but not all, aspects of the issues which were raised by Deputy Pringle's appeal. In order to set out why this judgment is directed to only some of the issues raised it is necessary to say something about the procedural history of this appeal before this court. I therefore, turn, to the procedural history.2. Procedural History2.1 As noted earlier Laffoy J. gave an oral ruling on the 9th July setting out, in summary form, her conclusions. On the same day counsel for Deputy Pringle and counsel for the State applied to this court for an expedited hearing. It will be necessary to return briefly to the issues said to give rise to urgency. However, this court concluded that it would endeavour to provide such an expedited hearing in respect of at least some of the issues which arose on the appeal and fixed the week of the 23rd July for that hearing. The court arranged for the appeal to be listed for case management on the previous Friday being the 20th July. At that case management hearing a number of practical issues were canvassed.2.2 By that time the parties had filed detailed written submissions. From those submissions it appeared to the court that, at least in broad and general terms, it was possible to group the issues which seemed likely to arise on the appeal as a whole in the following manner:-(a) Issues which arose from the arguments which suggested that, as a matter of Irish constitutional law, the adoption and proposed ratification by Ireland of the ESM Treaty would amount to an impermissible delegation of the sovereignty of the State and an excessive exercise by the government of its executive powers in conducting the external relations of the State ("the sovereignty claim");(b) Issues which derived from the claim that the legislation enacted by the Oireachtas to implement the ESM Treaty in Ireland (the European Stability Mechanism Act 2012 ("the 2012 Act")) involved a constitutionally impermissible transfer of power from the Oireachtas (and in particular the Dáil) to the Minister for Finance ("the power transfer claim");(c) Issues arising from the claim that Member States, contracting in accordance with the provisions of the ESM Treaty, would undertake obligations which would be in contravention of provisions of the Treaty on European Union ("TEU") and the TFEU concerning economic and monetary policy and would directly allow encroachment on what were said to be exclusive competences of the Union in the matter of the euro and related policies ("the ESM Treaty claim");(d) Issues arising from the argument that the Council Decision is invalid as (a) it was not lawfully adopted because of the use of the simplified revision procedures provided for by Art. 48(6) of the TEU (it being said that the Council Decision involves an alteration of the competences of the Union contrary to the third paragraph of that article) and also (b) because it is said that the Council Decision is inconsistent with provisions of the Treaties concerning economic and monetary union and general principles of the law of the European Union in particular the principle of legal certainty ("the Council Decision claim"); and(e) Issues concerning whether it is appropriate to grant an injunction to restrain the State from ratifying the ESM Treaty pending a final resolution of these proceedings ("the injunction claim").2.3 It is, perhaps, appropriate to note one possible refinement of that analysis. Counsel on behalf of Deputy Pringle argued that there was a potential connection between at least some of the arguments raised under what might loosely be called the "EU element" of the appeal (that is the ESM Treaty claim and the Council Decision claim) and the argument raised concerning the alleged inconsistency of ratification with the Constitution. In brief it was argued by counsel that the fact that the people of Ireland adopted the EU treaties, and in particular the Maastricht Treaty which provided for the measures necessary to establish the euro, meant that a material alteration to that regime which was in breach of those treaties was, it was said, also in breach of the Irish Constitution. It is obvious that this issue only arises in the event of the alleged incompatibility of the ESM Treaty with the EU treaties being established. It should be noted that counsel for the State argued that such questions were matters of EU law only and had no bearing on the Irish constitutional position.2.4 The court was concerned to ensure that any issues in respect of which real urgency arose were afforded as early a hearing as could be facilitated. In that context counsel on both sides were invited to indicate the basis of any urgency asserted. On behalf of Deputy Pringle it was said that urgency only arose in the event that there was no undertaking given on behalf of the State or injunction imposed by the court which would have the effect of preventing the State from ratifying the ESM Treaty pending a resolution of these proceedings. The argument of counsel for the State was, in a sense, the mirror image. It was said that the matter was not urgent, strictly speaking, because the State was not constrained from ratifying the Treaty. However, it was acknowledged that the Government would be reluctant to ratify the Treaty while a challenge based on purely Irish constitutional grounds was before this court. On the other hand counsel indicated that it was the view of the Government that it would be contrary to the national interest for the Treaty to come into effect without, as counsel put it, Ireland having a seat at the table.2.5 In that context it is appropriate to mention the practicalities which surround the ratification of the ESM Treaty. In order for the Treaty to come into effect it is necessary that it be ratified by countries representing at least 90% of the capital sums to which the ESM Treaty would require subscribing states to commit. It is clear that the allocation to Germany represents a sum of 27.1464% of that capital so that the 90% barrier cannot be reached without the support of Germany (in passing it should be noted that France, Italy and Spain also have allocations in excess of 10% so that overall ratification is not possible without the individual ratification of each of those countries as well). In any event German ratification had been delayed pending a decision of the German Constitutional Court. When the matter was first mentioned before this court, counsel for the State indicated that it was possible that at least a preliminary ruling of the German Constitutional Court which might, on one view, clear the way for German ratification, could be given prior to the end of July. However, by the time of the case management hearing to which reference has been made, it had become clear that the relevant preliminary ruling was not to be...
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