Committee Reports::Report No. 40 - Statutory Instruments [6] made under the European Communities Act 1972::30 June, 1976::Report


1. Introduction

Since it issued its Thirtieth Report on 28th April, 1976 the Joint Committee has examined a further four statutory instruments made under the European Communities Act, 1972 and its observations on these are set out in this report.

This report also deals with two other statutory instruments which were criticised by the Joint Committee in its Twenty-Second Report on 11th December, 1975 and which call for further comment in the light of subsequent observations received from the Department concerned.


2. Contents of Regulations

The Regulations deal with a subject which the Joint Committee dealt with in its Fourth Report namely the maintenance of minimum stocks of petroleum products. The following is a relevant extract from the Fourth Report:—

“Directive 68/414/EEC imposed an obligation, subject to certain exceptions, on Member States to maintain at all times their stocks of petroleum products at a level corresponding to at least 65 days average daily internal consumption in the preceding calendar year. On 4th November, 1974 the Minister for Transport and Power made regulations entitled European Communities (Minimum Stocks of Petroleum Oils) Regulations, 1974 giving effect to the Directive as from 18th November, 1974. As a contingency stock equivalent to 10 days supply is held at all times at Whiddy Island the regulations require oil importers and certain large oil consumers to hold a 55 days stock.

Directive 72/425/EEC increased the 65 days requirement to 90 days with effect from 1st January, 1975. The Joint Committee understands that the question of bringing the aggregate of stocks to be held in this country up to the required level is at present the subject of discussion between the Department of Transport and Power and interested parties”.

The instrument now under consideration seeks to implement Directive 72/425/EEC by requiring importers to hold 60 days requirements instead of 55 days and by extending the category of large oil consumers who are required to hold 55 days requirements. With the contingency stock of one million barrels of crude oil (i.e. approx. 10 days supply) held at Whiddy Island, these provisions would appear to bring national stocks above the 65 days requirements and the Joint Committee is advised that at present about 77 days requirements are held. The Department of Transport and Power has informed the Joint Committee that it does not consider that this country is in breach of its obligations under Directive 72/425/EEC merely because the Regulations do not implement the Directive in full. There are other means available apart from the provisions of the Regulations to secure the objectives of the Directive. The Department has pointed out that the stock figures used in the returns to the EEC do not reflect the complete picture. In regard to the Whiddy Island stocks, the returns include only the amount of one million barrels mentioned above but do not include other stocks held by Gulf Oil at Whiddy. Under the Fuels (Control of Supplies ) Act, 1971, the Minister for Transport and Power may in an emergency assume control of the supply and distribution of fuels, including the imposition of a prohibition of the re-export of fuels. The Department considers, therefore, that the total stocks at Whiddy Island could legitimately be taken into account and has expressed this view formally to the Commission of the European Communities.

The Joint Committee believes that it is in the national interest that steps should be taken to ensure that the national stocks should be built up to and maintained at 90 days supply at all times. It understands that steps to achieve this position are in fact being taken.

3. Citation of Authority

The Joint Committee notes that neither the instrument itself nor the memorandum appended thereto makes any reference to the Community legislation on which it is based. The instrument was made on 4th March, 1976 and so preceded the general recommendations on the subject which the Joint Committee made in its Thirtieth Report on 28th April, 1976. Consequently the Joint Committee does not recommend that any further action be taken on this occasion but it trusts that all future instruments of this kind will indicate clearly the secondary legislation of the Communities which bring them within the scope of the European Communities Act, 1972.

4. Unusual use of Power

As the instrument does not fully implement Directive 72/425/EEC, the Joint Committee has considered whether it has been properly made under the European Communities Act, 1972. Section 3 of the Act provides that “a Minister of State may make regulations for enabling section 2 of this Act to have full effect”. Section 2 of the Act provides that “existing and future acts adopted by the institutions shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties”. The Joint Committee considers that it is doubtful, to say the least, whether these provisions enable a Minister, who wishes partly to implement a Directive, to effect his purpose by regulations made under section 2. The Joint Committee believes that in such doubtful cases the Minister concerned should not make regulations at all but should proceed by way of a Bill introduced in either House.


[S.I. No. 74 of 1976]

5. Retrospective Effect

These Regulations were made by the Minister for Industry and Commerce on 24th March, 1976 and are expressed to come into operation on 1st January, 1976. The Joint Committee raised with the Department the question of the apparent retrospection for which there is no specific authority in the parent statute. The Joint Committee, however, has been satisfied by the Department that the sole purpose of the instrument is to identify in the Irish Customs and Excise Tariff goods imported from state-trading countries which are subject to Community quotas by virtue of Council Decisions.


6. Modification of Existing Legislation

The Regulations implement provisions in a Council Directive concerning the approximation of the laws of Member States relating to units of measurement. They authorise some units of the S.I. system as the units to be used in the metric system in Ireland.

The Regulations contain one provision which reads:—

“The provisions of the Weights and Measures Acts, 1878 to 1961, and any other relevant enactment shall be construed subject to these regulations and, in the event of any inconsistency between these regulations and any such provision, that provision shall, to the extent of the inconsistency, cease to have the force of law”.

The Joint Committee regards it as objectionable in principle to deal with the effect of a Council Directive on national legislation by a provision of this kind. In its view, it becomes impossible to follow the effect of secondary legislation of the Communities if the provisions of existing statutory law that are affected are not specifically mentioned and the extent of the modifications required therein precisely indicated. It may, of course, not always be possible to do this in the time allowed for the implementation of a Directive. If, however, the use of a general provision such as the one cited above is unavoidable it should be regarded as a stop gap arrangement and the Department should undertake to bring the actual text of the national legislation into line with the Community legislation as soon as possible. The Joint Committee trusts that this will be done in relation to the Weights and Measures Acts.


[S.I. No. 104 of 1976]

7. Citation of Authority

This instrument implements a Council Directive designed to prevent the spread of carnation leaf-rollers. These are pests of the small caterpillar variety which affect carnations. The pests have not been found in this country. Carnation imports to this country are very small and are mainly of cuttings from England.

The Joint Committee is pleased to note that its recommendation regarding the citation of the relevant Community secondary legislation has been followed in the case of this instrument.


[S.I. No. 107 of 1975]

8. Offences Created by Regulations

In its Twenty-Second Report of 11th December, 1975 the Joint Committee criticised these regulations because of a lack of clarity in relation to offences created thereby. It indicated that it would consider recommending that the regulations be annulled but that it would defer its decision to give the Department of Industry and Commerce an opportunity of re-examining the matter.

The Joint Committee has been informed that other Member States have also experienced difficulties in implementing Council Directive 73/404/EEC on which the regulations are based. A meeting between representatives of the Member States and the Commission has been arranged and the Department hopes to resolve the issue after the meeting. In the circumstances, the Joint Committee has decided not to recommend annulment.


[S.I. No. 200 of 1975]

9. Application of Directive 71/316/EEC, as amended

These regulations were also dealt with in the Twenty-Second Report of the Joint Committee. In that Report the Joint Committee indicated that it would decide whether or not to recommend annulment of the regulations when the Department of Industry and Commerce had had an opportunity of re-examining the matter.

Essentially the Joint Committee’s point was that Directive 71/316/EEC which deals with the granting of EEC pattern approval and the affixing of EEC approval symbols and identification marks should be specifically applied in domestic law to various individual types of equipment trade in which is governed by other Directives. A copy of a minute received from the Department on the subject is reproduced in the Appendix to this report. From this it will be seen that the whole method of implementing Weights and Measures Directives is being reviewed. In these circumstances the Joint Committee has decided not to recommend that the regulations be annulled.


Chairman of the Joint Committee.

30th June, 1976.