Committee Reports > List of Committees > Joint > 1975 > Committee on the Secondary Legislation of the European Communities > Report No. 12 - Statutory Instruments [4] made under the European Communities Act 1972

REPORT

1. Introduction

Since it issued its report of 4th June, 1975 the Joint Committee has examined another four instruments which were made under Section 3 of the European Communities Act, 1972. The Joint Committee wishes to submit the following observations on these four instruments.

A. EUROPEAN COMMUNITIES (SEEDS) REGULATIONS, 1974 (S.I. No. 200 of 1974).

2. Scope of Instrument

The certification and marketing in the EEC of the seeds specified in Regulation 2 of this instrument are governed by the EEC Directives listed in the schedule to the European Communities (National Catalogue of Agricultural Plant Varieties) Regulations, 1972 (S.I. No. 339 of 1972) as amended by Regulation 4 of the European Communities (Seeds) (Amendment) Regulations, 1973 and Regulation 13 of the instrument now under consideration. The purpose of this instrument is to apply provisions of the Directives.

The instrument prohibits the marketing of certain specified seeds unless they have been certified, sealed, marked and labelled in accordance with the requirements of the Directives. It establishes the Minister for Agriculture and Fisheries as the official authority for the certification and includes provisions relating to field inspection and sampling. It prescribes standards of sale for certain seeds and authorises the charging of fees.

3. Fees

In its report of 4th June referred to above the Joint Committee indicated that it proposed to pay particular attention to provisions relating to fees in statutory instruments made under Section 3 of the European Communities Act, 1972. The view of the Joint Committee is that the imposition of charges on the public cannot invariably be treated as an “incidental, supplementary and consequential” matter within Section 3(2) of the Act of 1972.

Regulation 12(1) of the instrument now under consideration provides as follows:—

“There shall be charged such fees in respect of services performed by the Minister or an officer of the Minister in connection with matters to which these Regulations relate as the Minister, with the consent of the Minister for Finance, determines”.

The Joint Committee regards this provision as an unreasonable use of the legislative power delegated to the Minister. It is not satisfied that the amount of charges on the public originating in subordinate legislation under the Act of 1972 should be variable at the discretion of Ministers. If fees are to be imposed in such instruments the amounts should be specified so that the Houses acting on the recommendation of this Committee can annul the instruments if dissatisfied with the charges.

The Joint Committee regards a provision such as Regulation 12(1) as sufficient grounds for recommending the annulment of the instrument. It has decided not to make such a recommendation in this case because from enquiries made it is satisfied that unreasonable fees are not in fact being charged. The present fee for the certification of grass seed varies from 5p to 25p per cwt. In the case of cereal seed the fee for sealing and labelling is 7p per 50 kilo, for sampling £1 per sample and for field inspection 50p per hectare, or, on appeal, £1 per hectare. However as the law now stands these fees can be increased at any time without the Houses of the Oireachtas having any control over such a decision. Accordingly the Joint Committee recommends that the Regulations be amended at the earliest convenient opportunity by the deletion of Regulation 12(1) and its replacement by a provision setting out the actual amounts of the fees payable.

The Joint Committee has also found the provision relating to fees unsatisfactory in one other less important respect. Fees may be charged for “services performed … in connection with matters to which these Regulations relate”. As “services performed” are not limited to services performed on behalf of persons wishing to market seeds this provision seems wide enough to cover enforcement services performed by authorised officers on behalf of the Minister. The Joint Committee is informed that the intention is to charge fees for services relating to the certification, field inspection and sampling. It considers that the Regulations should have made this intention clear.

4. Definition of Seeds

The European Communities (National Catalogue of Agricultural Plant Varieties) Regulations, 1972 is the instrument which determines what is a “scheduled directive” for the purpose of the Regulations now being considered but the Joint Committee notes that the definitions of “seed” do not correspond in the two instruments. “Cereal Seeds”, “fodder plan seeds” and “seeds of oil and fibre plants” appear as “seed grain”, “forage crop seeds” and “seeds of oleaginous and fibrous plants” in the 1972 Regulations.

The Department of Agriculture and Fisheries has confirmed that the references are to the same seeds and has stated that the different terminology is attributable to variations in translation. The 1974 instrument uses the same words as the English versions of the EEC Directives and the Joint Committee suggests that when opportunity offers the 1972 Regulations should be suitably amended.

5. Derogations

Regulation 4(1) (b) requires basic seeds to comply inter alia “with conditions prescribed pursuant to the directive by the Minister for such seeds”. As the word “prescribed” from its use generally in Acts of the Oireachtas is usually understood to mean “provided for in a statutory instrument” the Joint Committee queried the meaning of the provision. It learned that its purpose is to enable the Minister to authorise derogations from the relevant Directive as he is entitled to do. Such authorisations will be granted administratively probably on the application of the trade and will not be the subject of a further statutory instrument.

6. Effect on Earlier Legislation

The pre-EEC legislation relating to seeds is found in six Acts of the Oireachtas and several statutory instruments made under the authority of those Acts. The legislation implementing the EEC Directives to date is contained in seven statutory instruments made under the European Communities Act, 1972. It is not possible to say to what extent these latter instruments and the Directives affect the earlier legislation but the Joint Committee understands that the matter is being examined by the Department of Agriculture and Fisheries.

The Joint Committee hopes that it will be possible at an early stage to enact a consolidating instrument which will incorporate all the current law relating to seeds and will repeal the pre-EEC law which is no longer applicable.

EUROPEAN COMMUNITIES (FEEDING STUFFS) (ADDITIVES) REGULATIONS, 1974 (S.I. No. 302 of 1974).

7. Scope of Instrument

The purpose of this instrument is to incorporate in Irish law the provisions of the EEC Directives regarding the use of additives in animal feeding stuffs. Additives are defined in the main Directive 70/524/EEC as substances which, when incorporated in feeding stuffs, are likely to affect their characteristics or livestock production. Additives are used in feeding stuffs for their nutritional effect and their use is controlled in the interests of animal and poultry productivity and of the health of consumers. The EEC Directives are directed towards the harmonisation of national laws effecting such control so as to promote the Common Agricultural Policy.

8. Directive 70/524/EEC

The Directive divides additives into two categories viz. (a) those permitted for feeding-stuffs in all Member States (Annex I) and (b) those which Member States can authorise for use in animal feeding stuffs within their own territory up to the end of December, 1975 (Annex II). In addition it permits Member States to authorise, by way of derogation, the use of other substances for specified or unlimited periods.

Several amendments to the Annexes have been made by way of Commission Directives to take account of the development of scientific and tecnical knowledge, e.g. new substances and new usages for substances already authorised have been incorporated in the Annexes. Furthermore, the authorisation of certain substances previously permitted at Community level (Annex I) has been left to the discretion of Member States, by the removal of such substances to Annex II.

9. Pre-EEC Law

On 22 December, 1972 the Minister for Agriculture and Fisheries made the Animal and Poultry Compound Feeding Stuffs (Control of Antitiotics) Regulations, 1972 under Section 6 of the Fertilisers, Feeding Stuffs and Mineral Mixtures Act, 1955. This instrument prohibited in the manufacture for sale of any compound feeding stuffs of certain substances the use of which as additives is permitted to a limited extent by the EEC Directives. The Treaty of Accession provides that the 1972 Regulations may continue in force until the end of 1977 and the Regulations now under consideration specifically allow for this.

Apart from the 1972 Regulations referred to above the only other pre-EEC Irish instrument on this subject was the Animal and Poultry Feeding Stuffs and Mineral Mixtures (Control of Arsenic) Regulations, 1972 [S.I. No. 124 of 1972] which was also made under the 1955 Act. This instrument prohibits the use of arsenic and arsenic compounds in the manufacture for sale of feeding stuffs, compound feeding stuffs and mineral mixtures. It is still in force. Arsenic is not covered by the EEC Directives now under consideration: a separate Directive applies. Although Directive 70/524/EEC prohibits Member States from imposing restrictions on the use of additives which are not provided for in the Directive it is understood that the Commission is not objecting to our Arsenic Regulations. It is understood that the use of inorganic arsenicals in feeding stuffs is at present being examined by the Commission.

10. Persons Concerned

Regulation 3 of the instrument now under consideration summarises the main requirements of Directive 70/524/EEC and obliges “every person concerned” to comply with them. Contravention of any one requirement is punishable by a fine of £200 or six months imprisonment or both.

The pre-EEC Irish regulations governed the use of additives only in the manufacture of feeding stuffs for sale. The 1974 Regulations faithfully following the Directives apply to “every person concerned”. Obviously this includes farmers and the Joint Committee considers that it is the responsibility of the Department of Agriculture and Fisheries to ensure that this fact is adequately brought to public attention.

11. Directive 75/296/ EEC

This Directive amending Directive 70/524/EEC came into force recently. It contains the-following provisions:

(a) Provision is made for continuing indefinitely the Annex II category.

It has been intended to phase out this category by the end of 1975 but experience has shown that it is of value as a phasing-in and phasing-out device. New materials or uses proposed since the original Directive was issued were first included in Annex II and it was possible to eliminate a number of additives from Annex I only because they could be given a phasing-out period in Annex II: this went some way to meet trade objections.

(b) Animals are defined as “Animals belonging to species normally nourished and kept or consumed by man”.

Some Member States had assumed that the original Directive applied to the feedingstuffs of all animals. However, one of the new Member States took formal issue with this; it wishes to apply the Directive only to livestock reared for gain. It asked that pets such as dogs, cats, canaries and ornamental fish be excluded.

The definition now adopted includes “pets” but it is stated in the preamble that “it will be necessary to examine later whether a special Directive should be adopted for feedingstuffs for these animals”.

(c) The period during which Member States may, by way of derogation, authorise the use of additives other than those listed in the Annexes has been extended from 5 to 8 years from the issue of the original Directive.

This is to accommodate new Member States.

(d) Amended criteria for the characterisation of additives have been adopted.

This is to take account of advances in scientific and technical knowledge.

(e) Other technical amendments have been made in the original Directive.

The implementation of this Directive will require amendment of the 1974 Irish Regulations. Some of the provisions of the Directive have to come into force by 1st July, 1975 and the rest by 1st July, 1976.

C. EUROPEAN COMMUNITIES (LOW VOLTAGE ELECTRICAL EQUIPMENT) REGULATIONS, 1975 (S.I. No. 62 of 1975)

12. Scope of Regulations

Directive 73/23/EEC seeks to harmonise the laws of Member States on safety standards applicable to certain electrical equipment so as to facilitate intra-Community trade in that equipment. These Regulations apply the Directive in this country as from 1st August, 1975.

The Regulations do not apply to the equipment listed in the Schedule thereto but do cover a wide range of electrical applicances used by domestic, commercial and industrial users.

13. Drafting and Structure of Instrument

In the case of statutory instruments implementing EC secondary legislation it is obviously desirable that the instruments should be comprehensible in themselves without reference to the EC instruments. The Joint Committee has examined instruments which legislate largely by reference to the parent Community legislation. As it undertook in its second report (Prl. 3841) to make a general recommendation on this point it has been paying particular attention to such cases. Various reasons have been given as to why domestic instruments cannot avoid being legislation by reference to EC instruments and the Joint Committee has not as yet had sufficient experience to reach general conclusions.

Although the report will be critical of the instrument in another respect it seems to the Joint Committee that in the matter of translating an EEC Directive in a complete and comprehensive fashion these Regulations have been admirably drafted. It would like to think that they would serve as a guideline for draftsmen generally in dealing with Directives in statutory instruments.

Another and not unrelated point arises in connection with this instrument. It would seem desirable that in statutory instruments under the European Communities Act, 1972 draftsmen should as far as possible use terms in common use in our statutory law even if this means departing from the language of the Community legislation. It has been represented to the Joint Committee that there would be a danger in doing so because failure to express the purport of the Community instrument precisely might render the domestic instrument ultra vires Section 3 (1) of the European Communities Act, 1972. The example of the instrument now under consideration suggests to the Joint Committee that this danger can be exaggerated.

Directive 73/23/EEC obliges Member States “to ensure that electrical equipment may be placed on the market only if” it complies with the terms of the Directive. The phrase, “placed on the market”, is common in Directives of this kind and the Joint Committee has noted that in some statutory instruments implementing Directives the Community phrase is simply repeated. In this instance, however, the draftsman has chosen to use instead wording commonly used in domestic legislation, “import, sell or lease or offer for sale or for lease”. In doing so he may have gone wider than the Directive because its wording connotates commerce and “import” would seem to cover import for use as well as import for sale. However, the Joint Committee considers that the extension, if such it be, is justified having regard to the power of the Minister under Section 3 (2) of the European Communities Act, 1972, to include “such … supplementary … provisions as appear to (him) … to be necessary for the purpose of the regulations”.

14. Sanctions

The basic purpose of the Regulations would appear to be the prohibition of the import, sale, leasing or offering for sale or for lease of certain electrical equipment which does not conform to specified standards. The instrument, however, contains no provision for penalising a person who fails to observe its terms. The Joint Committee can accept that breaches of the provisions are likely to be rare but in the absence of penal sanctions find it difficult to see what purpose the Regulations serve as a legal instrument except perhaps have some bearing on civil proceedings. The Joint Committee recommends that this aspect of the instrument be re-examined.

15. Disputes

Article 8 (2) of the Directive provides that “in the event of a challenge the manufacturer or importer may submit a report” drawn up by an authorised examining body. Article 7 (2) of the Regulations provides that such a report may be submitted as evidence by an importer or manufacturer “in the event of a dispute as to whether electrical equipment does or does not comply with Regulation 4 of these Regulations”. It also provides that “the Minister may if called upon to arbitrate on any such dispute have regard to any such report”.

From enquiries made the Joint Committee understands that this provision is intended to facilitate parties in settling disputes between themselves. If they cannot agree they will be able to submit the matter to a reference body which is to be set up administratively for the purpose of the Directive. In the event of continuing disagreement the Minister can be asked to arbitrate.

If the provision is intended to refer to arbitration proceedings only the Joint Committee would have preferred that fact to have been made clear and the precise steps to be taken by the disputants indicated.

D. EUROPEAN COMMUNITIES (ANCILLARY EQUIPMENT FOR LIQUID METERS) REGULATIONS, 1975 [S.I. No. 32 of 1975]

16. This instrument implements Directive 71/348/EEC on the approximation of the laws of Member States relating to ancillary equipment for meters for liquids other than water. It is virtually a verbatim repetition of the Directive itself and the Committee has no comment to make on it.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

2nd July, 1975.