Committee Reports > List of Committees > Joint > 1975 > Committee on the Secondary Legislation of the European Communities > Report No. 11 - Directives, Implementation and Direct Applicability)

REPORT

1. Introduction

In this report the Joint Committee proposes to deal with a subject which has a bearing on the control exercisable by the Oireachtas over the implementation in this country of acts of the institutions of the Communities or, as they are sometimes described, the secondary legislation of the Communities. It also impinges on the right of the individual to enforce in Irish courts rights which accrue to him by virtue of such legislation.

2. Constitutional and Legislative Provisions

The amendment of Article 29 of the Constitution effected by the Third Amendment of the Constitution Act, 1972 enabled the State to become a member of the European Communities. By virtue of this amendment no provision of the Constitution “invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities or institutions thereof from having the force of law in the State”. The European Communities Act, 1972 made the Treaties governing the Communities and the existing and future acts adopted by the institutions of the Communities binding on the State, and part of the domestic law under the conditions laid down in the Treaties. It is therefore to the Treaties that recourse must be had to see the effect in domestic law of EC secondary legislation. As interpreted by the European Court of Justice some provisions of the Treaties and some of the secondary legislation are directly applicable in the sense described in the next paragraph.

3. Direct Applicability

If an act of a Community institution is directly applicable by virtue of a Treaty provision it takes immediate effect in domestic law and becomes a source of legal rights which the private citizen can enforce in Irish Courts without the interposition of domestic legislation. If it is not directly applicable the private citizen can enforce only those rights conferred by the domestic legislation implementing it though of course the Community instrument may afford a basis for proceedings against the Irish Government by the Commission or other Member States in the European Court of Justice.

4. Parliamentary Control

If a Community instrument is directly applicable it is outside the control of the Oireachtas but the Houses have endeavoured to retain some influence over its provisions by requiring this Committee to examine proposals for such instruments while they are still in draft form. If it is not directly applicable it may still be binding on the State by virtue of a Treaty provision but cannot be enforced in the Irish Courts until legislation enacted by the Oireachtas so provides.

If a Community instrument requires supporting domestic legislation this is most likely to take the form of a statutory instrument made under Section 3 of the European Communities Act, 1972 or some other statute. This Committee has the obligation of examining and reporting on these instruments to the Houses which may, if they so decide, annul an instrument though if the instrument is made under the authority of the European Communities Act, 1972 they can do so only if this Committee so recommends.

Whether the Houses can exercise any control over the implementation of an act of a Community institution depends, therefore, on whether an act is directly applicable or not. The efficacy of its control, where it exists, depends on the efficiency of the methods adopted to maintain that control.

5. Regulations and Directives

Most secondary legislation of the Community institutions takes the form of either EEC Regulations or Directives, the effect of which are set out in Article 189 of the EEC Treaty. It may be said that Regulations and Directives issued under the EAEC Treaty have a similar effect and that Decisions and Recommendations under the ECSC Treaty correspond respectively to EEC Regulations (and Decisions) and Directives.

Article 189 provides that a “Regulation shall have general application” and “shall be binding in its entirety and directly applicable in all Member States”. It should be noted, however, that although a Regulation is clearly directly applicable it will often require domestic legislation to make it fully effective. For example, Commission Regulation 1769/72/EEC, as amended, laid down certain requirements regarding the documents to accompany consignments of wine but it required a domestic statutory instrument, S.I. No. 195 of 1974, to provide for penalties for breaches of those requirements.

According to Article 189 a “Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. At first sight it might appear, therefore, that a Directive would always require to be implemented by a statute or subordinate legislation. The European Court of Justice has, however, recently held in Van Duyn v. Home Office that a provision in a Directive imposing obligations on Member States can, in some circumstances, be capable of producing direct effects on the legal relation between the Member States and individuals and of creating he right for the latter to invoke these obligations in the National Courts.

The pertinent facts and relevant portions of the judgment in Van Duyn v. Home Office are set out in the Appendix to this report together with some particulars of four earlier cases in which this decision was fore-shadowed.

6. Implementation of Directives

It may be considered that if a provision in a Directive is directly applicable it is not only unnecessary but also undesirable that any domestic legislation should be passed purporting to give effect to it. This is the view of the British Select Committee of the House of Lords on the European Communities (Tenth Report, 1974/75).

The Joint Committee’s concern is to see that the power of the Oireachtas, as the sole legislative body in the State, is curtailed only to the minimum extent necessary to meet the Treaty obligations. It would prefer a simple rule that all Directives should be implemented by statute or statutory instrument except where existing Irish legislation already provides the necessary authority. It is not entirely convinced that the direct applicability of some Directive provisions does more than add another dimension to the accepted supremacy of Community law over national legislation in the areas covered by the Treaty. If, however, the Government considers that it would be inadvisable to seek to incorporate a provision in Irish law because it is advised that it is directly applicable by virtue of the Community instrument, the Joint Committee believes that the Houses of the Oireachtas have no grounds for objection. It considers, however, that it is the duty of the Executive to ensure that, where a Community Directive is implemented without the intervention of domestic legislation, its provisions are either directly applicable or are already covered by existing legislation.

7. Schemes based on Directives

In the light of the foregoing considerations the Joint Committee was surprised to learn that the Department of Agriculture and Fisheries did not intend to embody the Disadvantaged Areas Scheme either in a statute or a statutory instrument. This scheme is being adopted in implementation of the Council Directive (O.J. L.128: 19.5.1975) of 28th April, 1975 on mountain and hill farming and farming in less-favoured areas.

The Department is not putting forward an opinion that the Council Directive is directly applicable. Indeed any such opinion would hardly be tenable: the Directive appears to leave wide discretion to Member States and in that respect, in no way resembles the Directive provisions which the European Court of Justice has held to be directly applicable. Thus Article 1 merely provides that “Member States are authorised to introduce the special system of aids”. The Department’s view apparently is that the appropriation of money for the scheme in the Appropriation Act will be sufficient legal authority for the scheme. This view appears to be based on the practice followed in that Department in relation to other similar schemes by no means all of which depend on EEC Directives.

It does not, however, seem to be the position generally that where a scheme based on an EEC Directive involves the appropriation of money for it in the Appropriation Act no other domestic legislation is thought to be necessary. The Farmers’ Retirement Scheme which originated with the Council Directive 72/160/EEC of 17th April, 1972 has been implemented by the European Communities (Retirement of Farmers) Regulations, 1974 [S.I. No. 116 of 1974] which were made by the Minister for Lands on 30th April, 1974 under Section 3 of the European Communities Act, 1972. It is of interest to note that Directive 72/160 EEC is expressed in obligatory terms. Thus Article 1 provides that “Member States shall introduce a series of measures etc.”.

8. Recommendations

The Joint Committee cannot accept that the Appropriation Act does any more than sanction the total national expenditure required for a Community Scheme. In the case of the Disadvantaged Areas Scheme it believes that the prescribing of the detailed provisions of the scheme is a legislative act and, as such, reserved for the Oireachtas alone under the Constitution. If the function is to be exercised by a Minister of State he can do so only by exercising the powers delegated to him and for this purpose wide powers have been conferred on him in Section 3 of the European Communities Act, 1972. Failure to exercise these powers by making appropriate Regulations has the effect of nullifying the power which the Houses have retained of annulling the scheme if this Committee should so recommend. Moreover it seems to the Joint Committee that if the Oireachtas accepts this position, the scheme may well be held to be completely within the discretion of the Minister so that a person aggrieved by his treatment under the scheme may find it impossible to challenge the adverse decision in the national courts.

On the question of implementing Directives generally the Joint Committee recommends that these should be given effect to by statute or statutory instrument except when adequate legislative provisions already exist or when it is considered that the provisions of the Directives are directly applicable. In any case of doubt on the latter point the Joint Committee would expect the decision to be in favour of enacting domestic legislation.

To enable it to discharge its functions the Joint Committee considers that it should be formally notified by the Government Department concerned within a month of the publication of a Directive whether it is (a) to be implemented by statute, (b) to be implemented by statutory instrument, (c) covered by existing legislation or (d) considered to be directly applicable.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

2nd July, 1975.