Committee Reports > List of Committees > Joint > 1977 > Committee on the Secondary Legislation of the European Communities > Report No. 57 - Statutory Instruments [4] made under the European Communities Act 1972; Penalty Provisions

REPORT

1. Penalty Provisions

The European Communities Act, 1972 provides that ministerial regulations made thereunder may not create indictable offences. It follows, therefore, that penalties provided for in such regulations should not exceed what would be regarded as reasonable for an offence triable summarily. In its thirtieth report (Prl. 5419) of 28th April, 1976 the Joint Committee suggested that a maximum fine of £500 might be excessive for such an offence.

In its forty-ninth report (Prl. 5940) of 9th December, 1976, the Joint Committee drew attention to two instruments providing for maximum fines of £500 and undertook to report further in the matter. Since then it has learned that the Attorney General sees no objection to such fines from a legal point of view.

It is noted that the Consumer Information Bill, 1976, which is at present before the Dáil, provides for maximum penalties on summary conviction of a fine of £500 or 6 months imprisonment or of both the fine and the imprisonment. If this provision is acceptable to the Houses, the Joint Committee does not propose in future to raise objections, as a matter of principle, to such penalties in ministerial regulations. If in a particular case it considers a penalty to be wholly unreasonable having regard to the offence, it will draw the attention of the Houses to it.

A fine of £500 is the largest which the Joint Committee has seen imposed in regulations made under the European Communities Act, 1972 and consequently it must be assumed that it is reserved for the offences considered to be the most serious of those that can be created by such regulations.

The Joint Committee doubts if a contravention of the European Communities (Statistical Surveys) Regulations, 1976 comes within that category. That instrument provides for a maximum fine of £500 or for up to 6 months imprisonment or for both the fine or imprisonment where industrial or agricultural employers fail to supply certain information regarding workers, earnings or to reply truthfully and in time to questionnaires or where the information supplied is used for other than statistical purposes.

While such penalties might be warranted for using information obtained in the survey for taxation or other non-statistical purposes or communicating such information to third parties, the Joint Committee does not accept that a fine of up to £500 is warranted for failure to supply information or to reply truthfully, fully and in time to questionnaires particularly when one has regard to penalty provisions in other regulations made under the European Communities Act, 1972. For example, £50 is the maximum fine permitted under the European Communities (Road Traffic) (Compulsory Insurance) Regulations, 1975 [S.I. No. 178 of 1975] for using in this country a motor car normally based in another Member State without establishing that it is covered by insurance. Again, contravention of the European Communities (Fresh Poultry Meat) Regulations, 1976 [S.I. No. 317 of 1976] and the European Communities (Marketing of Fish) Regulations, 1977 [S.I. No. 114 of 1977], both of which relate to standards set to protect consumers of foodstuffs, attract maximum fines of £200.

The Joint Committee finds it difficult to accept that such offences should be considered socially less reprehensible than failure to supply information or to ensure that information supplied is accurate and made available in good time.

2. Instruments Examined

Since it issued its forty-ninth report dealing with statutory instruments the Joint Committee has examined a further five instruments made under the European Communities Act, 1972. One of these is dealt with in a separate report and the remainder in this report.

3. European Communities (Non-Life Insurance) (Amendment) Regulations, 1976 [S.I. No. 276 of 1976]

This instrument amends S.I. No. 115 of 1976 with which the Joint Committee dealt in its forty-ninth report. The purpose of the amendment is to give effect to a change in the basis of calculating the Community unit of account arising from Council Directive 76/580/EEC which changed the basis of valuation of the unit of account used for insurance purposes. The Joint Committee has no objection to the amendment.

4. European Communities (Road Transport) (Amendment) Regulations, 1977 [S.I. No. 34 of 1977]

Statutory Instrument No. 57 of 1974 made in 1974, (supplementing an earlier regulation) provides that the holder of a Community authorisation does not require a merchandise licence or vehicle plate under the Road Transport Acts and is subject to penalties for breaches of Council Regulation No. 2829/72. The latter has now been replaced by Council Regulation No. 3164/76 and the instrument under review simply makes the necessary consequential amendment of S.I. No. 57 of 1974. The Joint Committee has no comment to make on it.

5. European Communities (Minimum Stocks of Petroleum Oils) Regulations, 1977 [S.I. No. 78 of 1977]

This instrument concerns a subject which the Joint Committee dealt with in its fourth and fortieth reports namely the maintenance of minimum stocks of petroleum products.

Council Directives 68/414/EEC and 72/425/EEC imposed an obligation, subject to certain exceptions, on Member States to maintain at all times specified minimum stocks of petroleum products. These Directives were partly implemented in this country by earlier regulations. The regulations under review have the effect of implementing fully the EEC Directives. The Joint Committee is pleased to note this development.

6. The European Communities (Recognition of Medical Qualifications) Regulations, 1976 [S.I. No. 288 of 1976]

The thirty-fifth report of the Joint Committee adopted on 30th June, 1976 (Prl. 5591) dealt with the Directives facilitating the exercise of the right of establishment and freedom to provide services. Supporting a recommendation of a Committee appointed by the Minister for Health in July, 1975 the Joint Committee in its report also recommended that two Directives concerning doctors should be implemented by statute amending the Medical Practitioners Acts and not by regulations made under the European Communities Act, 1972. These Directives have, in fact, been implemented by the above mentioned regulations. The Department of Health has stated, however, that preparation of proposals for legislation is at an advanced stage and that the regulations are intended merely to implement the Directives pending the enactment of such legislation.

In its twelfth and forty-ninth reports the Joint Committee expressed its objections to power being assumed in regulations to charge fees without specifying the amount of the fees, thus leaving it to the charging authority to vary the fees at its discretion. The Joint Committee has indicated that it regards such provisions as justifying recommending annulment of the instrument.

Regulation 14 of the instrument now under review enables the Medical Registration Council to “charge such fees as it shall determine from time to time, with the approval of the Minister for Health” for issuing specialist certificates to Irish specialist doctors going to other Member States. According to the Department such fees are necessary because the Council has no other funds to meet its expenses but the level of the fees cannot be determined until the extent of the movement of doctors in the Community becomes known. The Joint Committee cannot accept this explanation. Some fee will be charged of the first applicants for the service and this should have been specified in the regulations. If, subsequently, it were found inadequate, a fresh instrument could be made increasing the fee. The Joint Committee’s essential objection to a provision such as regulation 14 is that it permits fees to be varied without being subject to any parliamentary scrutiny.

The Joint Committee has seriously considered recommending that the instrument be annulled because of regulation 14. It has decided not to do so only because the regulations are temporary and in due course the question of the fees will come before the Houses on the Bill which is in course of preparation.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

4th May, 1977.