Committee Reports > List of Committees > Joint > 1975 > Committee on the Secondary Legislation of the European Communities > Report No. 22 - Statutory instruments [9] made under the European Communities Act 1972

REPORT

1. Introduction

Since it issued its Report of 2nd July, 1975 the Joint Committee has examined nine other instruments which were made under Section 3 of the European Communities Act, 1972. The Joint Committee wishes to submit the following observations on these nine instruments.

A. EUROPEAN COMMUNITIES (SURVEILLANCE OF SISAL BINDER TWINE IMPORTS) REGULATIONS, 1975 [S.I. No. 111 of 1975].

EUROPEAN COMMUNITIES (SURVEILLANCE OF CERTAIN FOOTWEAR IMPORTS) REGULATIONS, 1975 [S.I. No. 115 of 1975].

EUROPEAN COMMUNITIES (SURVEILLANCE OF CERTAIN CLOTHING AND FOOTWEAR IMPORTS) REGULATIONS, 1975 [S.I. No. 116 of 1975].

2. Scope of Instruments

These three instruments which deal with surveillance of imports of certain goods originating in third countries, provide that these goods may be imported only on production of an import authorisation issued by the Department of Industry and Commerce. Although the three instruments are concerned with the surveillance of imports they are not founded on the same secondary legislation of the EEC.

S.I. Nos. 111 and 115 of 1975 are based on Regulation 1439/74/EEC of 4th June, 1974. This Regulation is made under Article 113 of the EEC Treaty which deals with operation of the common commercial policy. It sets out the common rules applicable to imports of third country products which are included in a common liberalisation list. The basic rule applicable to such products is that they may not be subject to quantitative restrictions but the Regulation provides for the operation of a system of surveillance in relation to them when developments in the market in respect of any of these products “threaten to cause injury to Community producers of like or directly competing products and the interests of the Community so require”.

S.I. No. 116 of 1975 depends on Commission Decision 71/202/EEC of 12th May, 1971, as amended by Commission Decision 73/55/EEC of 9th March, 1973. These Decisions are based on Article 115 of the EEC Treaty which is concerned with the situation arising when measures taken by one Member State in accordance with the Treaty cause difficulties in another Member State. S.I. No. 116 of 1975 deals therefore only with products of third countries which have not been liberalised and which are imported here having first been put into free circulation in another Member State.

3. Citation of Community Authority

In the case of S.I. No. 116 of 1975 there is included in a preamble thereto a specific reference to the Community Decisions on which its validity depends. In the case of the other two instruments there is no reference whatsoever either in the text or in the explanatory memoranda appended thereto to Regulation 1439/74/EEC. In the Joint Committee’s view it is a serious defect in drafting to omit from a statutory instrument made under the European Communities Act, 1972 any reference to the secondary legislation of the European Communities on which the exercise of the power of making regulations under the Act ultimately depends. The Joint Committee trusts that care will be exercised in future to avoid omissions of this kind.

B. EUROPEAN COMMUNITIES (WEIGHTS AND MEASURES OF LENGTH) REGULATIONS, 1975 [S.I. No. 200 of 1975].

4. Provisions

These Regulations give effect to Council Directives Nos. 73/362/EEC and 74/148/EEC on the approximation of the laws of Member States relating to material measures of length and to certain weights. They permit the placing on the market or entry into service of material measures of length bearing the EEC pattern approval symbol and initial verification mark and of certain weights bearing the EEC initial verification mark.

5. Comparison with Statutory Instrument No. 67 of 1973

An earlier instrument, Statutory Instrument No. 67 of 1973, which dealt with certain medium accuracy weights, liquid meters and gas volume meters, not only provided for the lawful use in the trade of these instruments bearing the appropriate EEC verification mark or pattern approval symbol but contained measures for the affixing of those marks and symbols by inspectors. The Department of Industry and Commerce were asked to comment on the apparent absence of any similar machinery for the instruments covered by S.I. No. 200 of 1975. Copies of the letter to the Department and its reply are set out in Appendix I to this report.

6. Joint Committee’s Views

Council Directive 71/316/EEC of 26th July, 1971, as amended, deals with the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control. It contains the provisions governing the granting of EEC pattern approval and the affixing of approval symbols and verification marks.

The Department’s letter explaining differences between S.I. No. 67 of 1973 and S.I. No. 200 of 1975 would appear to suggest that Council Directive 71/316/EEC, as amended, applies only to instruments covered by S.I. No. 67 of 1973. The Joint Committee’s reading of the Directive suggests that it is of general application, and it is not satisfied about the efficacy of S.I. No. 200 of 1975. It has considered recommending the annulment of the instrument. As, however, the period for annulment will not expire until August next it has decided to defer a decision in order to give the Department an opportunity of re-examining the matter. It will report further on the instrument in due course.

7. Drafting

The Joint Committee in comparing S.I. No. 200 of 1975 with S.I. No. 67 of 1973 observed that in the latter instrument the relevant provisions of the parent Directive are reproduced in schedules to the instrument while the former legislates largely by reference to the titles of the relevant Community instruments. Asked to comment on this the Department of Industry and Commerce stated that “the drafting approach to regulations implementing these and other directives has in the intervening two years altered in such a way as to include only the essential minimum”.

In the Joint Committee’s experience of examining statutory instruments “the drafting approach” indicated by the Department is not apparent in many instruments. If it were, the Joint Committee would be compelled to protest since it would be completely at variance with its own approach as indicated in earlier reports. In the Joint Committee’s view the aim should be, in the case of regulations made under the European Communities Act, 1972 to make the instrument comprehensible in itself and to avoid as far as possible legislation solely by reference to Community instruments.

C. EUROPEAN COMMUNITIES (STATISTICAL SURVEYS) REGULATIONS, 1975 [S.I. No. 160 of 1975].

8. Provisions

This instrument arises from Community Regulations providing for statistical surveys on the following subjects:—

(a) labour costs in wholesale and retail distribution, banking and insurance;

(b) earnings in wholesale and retail distribution, banking and insurance;

(c) earnings of agricultural workers; and

(d) sample surveys of manpower.

Generally speaking the Community Regulations oblige persons concerned to supply truthful information and prohibit the use of the information collected for other than statistical purposes, especially fiscal or taxation purposes, or the disclosure of that information to third parties. Statutory Instrument No. 160 of 1975, provides that any breach of these requirements may be punishable on summary conviction by a fine not exceeding £500 or 6 months imprisonment or by both such fine and such imprisonment.

9. Size of Penalty

The Joint Committee in considering whether the penalty provided could be regarded as excessive had due regard to a letter received from the Director of the Central Statistics Office (which is reproduced in Appendix II). The Joint Committee has grave doubts that a £500 fine is an appropriate penalty for a summary conviction or that such penalty is warranted by the nature of the offences involved.

D. EUROPEAN COMMUNITIES (MEASURING INSTRUMENTS) (AMENDMENT) REGULATIONS, 1975 [S.I. No. 199 of 1975].

10. Provisions

These Regulations purport to give effect to Commission Directive 74/331/EEC of 12/6/1974 which itself amends an earlier Council Directive on the approximation of the laws of Member States regarding gas volume meters.

One item calls for comment. The Annex to the Commission Directive contains six items each of which amends items set out in the Annex to the earlier Council Directive. It has been observed however that the Regulations now under review provide for only 5 of these and that the omitted item (No. 6) seems to have been already provided for in the European Communities (Measuring Instruments) Regulations, 1973 [S.I. No. 67 of 1973] made in March, 1973. Since the latter Regulations pre-date the Commission Directive by about eight months, the observations of the Department of Industry and Commerce were invited. Copies of the correspondence appear in Appendix III.

11. Joint Committee’s Comments

The Joint Committee can readily accept that the point involved here may have little or no practical significance. Nevertheless, it would appear that S.I. No. 67 of 1973 contains an invalid provision and it believes that it would be better to rectify the matter as soon as an opportunity presents itself.

E. EUROPEAN COMMUNITIES (AN BORD GRÁIN) REGULATIONS, 1975 [S.I. No. 203 of 1975].

12. Provisions

This instrument provides for the dissolution of An Bord Gráin which had been established by statute. The factors which occasioned the dissolution are set out in a memorandum from the Department of Agriculture and Fisheries which is reproduced in Appendix IV.

The Joint Committee is satisfied that the dissolution of An Bord Gráin was necessitated by membership of the European Economic Community and could accordingly be dealt with by statutory instrument under the European Communities Act, 1972.

The Joint Committee notes that amendments to statutes effected by regulations made under the European Communities Act, 1972 are noted in the annual bound volume of statutes. It assumes that these annotations will be repeated in the next issue of a general index to the statutes.

F. EUROPEAN COMMUNITIES (DETERGENTS) (NO. 2) REGULATIONS, 1975 [S.I. No. 107 of 1975].

13. Scope of Regulations

These Regulations give effect to Council Directive 73/404/EEC, as corrected, which is concerned with the approximation of laws relating to detergents. It repeals earlier Regulations [S.I. No. 102 of 1975] which sought to implement the Directive but which created an indictable offence and so was ultra vires section 3 (3) of the parent statute.

14. Offences created by Regulation

Paragraph 4 of the Regulations provides that “a person shall not place on the market or use a detergent where the average level of biodegradability of the surfactants contained therein is less than 90% for each of the following categories, namely, anionic, cationic, non-ionic and ampholytic, and shall not contravene the second paragraph of Article 2 of the Council Directive”. Contravention of this paragraph is punishable on summary conviction by a fine not exceeding £200 together with, in the case of a continuing offence, a further fine of £50.

Paragraph 5 creates a second offence by providing that “a person shall not place on the market or use in the State a detergent where it is established in accordance with Article 5 of the Council Directive that the detergent does not comply with the requirements laid down in Article 2 of that Directive”. Contravention of this requirement is punishable by the same penalties as is a contravention of paragraph 4.

As it was not clear how a person could contravene paragraph 5 without also contravening paragraph 4, the need for paragraph 5 at all was raised in correspondence with the Department of Industry and Commerce. Copies of the correspondence appear in Appendix V to this report.

Article 4 of the Directive provides that compliance with the specified requirements “shall be established by the methods of testing provided for in other Council Directives”. If a Member State finds by such testing that a detergent does not meet requirements it is obliged by Article 5 to “prohibit the placing on the market and use of the detergent in its territory”. It is then obliged also by Article 5 to notify the Commission and the Member State “from which the product comes”. If the latter does not accept the finding the Commission is empowered to have an independent test carried out and “make any necessary recommendations”. It might be thought that any such recommendations could afford evidence that a contravention of paragraph 4 had taken place but apparently the Department is not prepared to concede this as “it involves the interpretation of the Directive” which “would be a matter for the EEC Commission in the first instance and ultimately for the European Court of Justice”.

The Joint Committee is concerned that the obligations of the public under the Regulations should be clear. It is not satisfied that any doubts about the interpretation of a Directive should be merely carried over to the Irish statutory instrument especially when the creation of a criminal offence is involved. It would, therefore, ask the Department to have these Regulations re-examined. In the light of the Department’s re-examination the Joint Committee will consider in due course whether it should recommend to the Houses that the Regulations be annulled because of the provisions of paragraph 5.

15. Absence of Penalty

Paragraph 6 of the Regulations provides that a person may not put a detergent on sale or transport it in bulk without complying with the provisions of the Directive regarding the information to appear on packages and documents accompanying detergents. The Regulations, however, provide no penalty for breach of this requirement.

The Department has stated (See Appendix V) that paragraph 6 is intended to give effect to Article 7 of the Directive but in the absence of a sanction it is difficult to see how the paragraph can have any legal effect except possibly in civil proceedings. The Joint Committee is pleased to note that the matter is being examined in the light of its comments on a similar provision in an earlier instrument.

G. EUROPEAN COMMUNITIES (ROAD TRAFFIC) (COMPULSORY INSURANCE) REGULATIONS, 1975 [S.I. No. 178 of 1975].

16. Provisions

Directive No. 72/166/EEC of 24th April, 1972 obliges Member States to refrain from making insurance checks (apart from random checks) in respect of vehicles entering their territories from other Member States. It requires that contracts of motor insurance cover loss or injury caused in other Member States according to the law in force in those States and that third country vehicles entering a Member State have similar cover.

These Regulations implement the Directive. They also provide for the abolition of insurance checks in respect of vehicles based in certain other countries. These latter provisions do not arise from Directive 72/166/EEC but from Decisions of the Commission [74/167/EEC and 75/23/EEC] given after agreements with the countries concerned had been concluded.

The Joint Committee raised in writing with the Department of Local Government specific queries in relation to particular provisions of the Regulations. Copies of the correspondence appear in Appendix VI to this report.

17. Effect

The practical effect of these arrangements as far as Irish motorists travelling abroad are concerned is that since 1st January, 1974 their existing motor insurance policies cover, according to the law in force in other Member States, any loss or injury caused in those States. The policies also provide similar cover in respect of designated territories other than Member States. A Green Card is no longer needed, therefore, when travelling in those countries unless extra insurance cover is required. As a matter of prudence, of course, extra cover may well be desirable as the cover required by the national laws relating to compulsory insurance may not be sufficient to meet all civil liability to which a visiting motorist may be exposed.

As far as visiting motorists to this country from the designated territories, including EEC countries, are concerned their policies will provide the minimum cover required by the law in this country relating to compulsory insurance. To the extent of that liability the Irish Visiting Motorists Bureau will ensure that any claims against such motorists are met.

18. Statutory Authority

The Joint Committee is satisfied that these Regulations arise out of Acts adopted by institutions of the European Communities and so were properly made under section 3 of the European Communities Act, 1972. However it does not accept that the Regulations arise solely out of Directive 72/166/EEC as the explanatory memorandum appended to the Regulations suggests. It seems to the Joint Committee that it is only by virtue of the Commission Decisions, 74/167/EEC and 75/23/EEC, that provisions relating to countries other than Member States could properly have been included in the Regulations but no mention is made of either Decision in either the instrument itself or in the accompanying explanatory memorandum. In all cases of regulations made under section 3 of the European Communities Act, 1972, the Joint Committee expects that secondary legislation of the Communities on which the validity of the Regulations depends be clearly and comprehensively indicated.

19. Methods of Implementing Secondary Legislation

The Joint Committee accepts that Ministerial Regulations made under section 3 of the European Communities Act, 1972 may lawfully amend Acts of the Oireachtas or other statutes in force if such is required by the Community secondary legislation which the Regulations are to implement. However, the fact that the power exists ought not, in the Joint Committee’s opinion, to mean that it is appropriate to use it in every case. Regard should be had to the relative importance of the statute to be amended and to the range of its application to determine whether the amendment should be effected by a statutory instrument or amending statute. In the case of a statute such as the Road Traffic Act, 1961 which is of such importance in the everyday life of citizens the Joint Committee considers that any proposals for its amendment should be initiated by a Bill introduced in the Dáil or Seanad. It recommends that when opportunity offers Regulations S.I. No. 178 of 1975 should be repealed and its terms incorporated in an amending statute.

20. Acknowledgement

The Joint Committee wishes to express its appreciation of the assistance it received from the Irish Visiting Motorists Bureau and the Automobile Association in considering this instrument.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

11th December, 1975.