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REPORTA. INTRODUCTIONInstruments Examined1. Since its establishment the Joint Committee has examined the fifty-three statutory instruments which are listed in Appendix I to this report. Forty-one of these were made under section 3 of the European Communities Act, 1972. The remainder were made under other statutes but were necessitated by the obligations of membership of the European Communities. The Joint Committee has specific comment to make on seventeen of the instruments examined. Copies of correspondence with the responsible Government Departments in relation to the latter instruments are set out in Appendices II to VIII to this report. B. EUROPEAN COMMUNITIES (TERMINATION OF FEES ON EXPORTED BUTTER) REGULATIONS, 1977 [S.I. No. 281 of 1977].Citation of Authority2. These Regulations which were made under section 3 of the European Communities Act, 1972 abolished certain fees payable on exports of non-creamery butter with effect from 30th August, 1977. According to the instrument, this was done to comply with Article 13 of the EEC Treaty and Article 36 of the Act of Accession. These Articles refer not to charges on exports but to charges on imports and apparently the Treaty provisions that should have been cited are Article 16 of the EEC Treaty and Article 37 of the Act of Accession. According to the Department of Agriculture (see Appendix II) the Attorney General’s Office has advised that this error does not affect the validity of the Regulations. Treaty Provisions3. Article 16 of the EEC Treaty provided for the abolition as between the original six Member States of all customs duties and charges having equivalent effect by the end of the first stage of the transitional period. Article 37 of the Act of Accession provided for the abolition of such duties and charges between the original Community and the new Member States and between the new Member States themselves “by 1st January, 1974 at the latest”. It would seem, therefore, that the fees dealt with by the Regulations should not have been charged after that date. Apparently they amounted only to about £500 a year. Exports to Third Countries4. The fees in question were originally imposed by the Dairy Produce (Amendment) Act, 1941 and applied to exports to all countries. The Regulations under review purport in exercise of the Minister’s power under the European Communities Act, 1972 to amend an Act of the Oireachtas and abolish fees payable on exports to countries outside the Community as well as on exports to Member States. This action may well have been sensible in view of the small amount involved but in the opinion of the Joint Committee, the abolition of fees on exports to third countries does not arise from the Treaty obligations already referred to. If the Committee is correct, Regulations made under the European Communities Act, 1972 cannot have the effect of abolishing fees on exports to countries outside the EEC and an Act amending the Act of 1941 is required if these fees are not to be collected in future. The Joint Committee trusts that this matter will be examined by the Department. C. EUROPEAN COMMUNITIES (MERCHANDISE ROAD TRANSPORT) REGULATIONS, 1977 [S.I. No. 386 of 1977].EUROPEAN COMMUNITIES (ROAD PASSENGER TRANSPORT) REGULATIONS, 1977 [S.I. No. 388 of 1977]. Scope of Instruments5. Both instruments were made by the Minister for Tourism and Transport under section 3 of the European Communities Act, 1972. S.I. No. 386 of 1977 implements Council Directive No. 74/561/EEC which obliges Member States to impose requirements of good repute, financial standing and professional competence on persons seeking admission to the occupation of road haulage operator in national or international transport. S.I. No. 388 of 1977 implements Directive No. 74/562/EEC which contains similar provisions in relation to the occupation of road passenger transport (bus) operators. Exempted Categories6. Article 2.2 of Directive 74/561/EEC allows Member States, after consultations with the Commission, to exempt from some or all of the provisions of the Directive persons or undertakings “engaged exclusively in national transport operations having only a minor impact on the transport market because of the nature of the goods carried or the short distance involved”. The Minister has availed himself of this provision in S.I. No. 386 of 1977 to exempt from the requirement to hold a national road freight certificate persons engaged in the carriage of cattle, sheep or pigs. His Department has stated (see Appendix III) that this type of carriage was exempted from national licensing control by the Road Transport Act, 1971 and is being exempted from the new EEC rules for similar reasons. It understands that the Commission may recommend that cattle haulage should not be exempt. 7. It is clear to the Joint Committee from the official reports of the debates that the 1971 legislation commanded widespread acceptance in both Houses and that Members were satisfied that there were good reasons for exempting the haulage of cattle, sheep and pigs from national licensing control. The Joint Committee is satisfied that there are equally valid reasons for exempting such haulage from EEC requirements and it trusts that the Commission will accept the position. Preliminary Requirement8. Article 2.2 of Directive 74/561/EEC and Article 1.3 of Directive 74/562/EEC allow Member States, after consultation with the Commission, to exempt certain categories of transport from the requirements of the Directives. Both of the statutory instruments made by the Minister provide for such exemptions but in neither is there any indication that the consultation with the Commission took place. When a provision in a statutory instrument depends for its validity on some preliminary procedural requirement it should, in the Committee’s view, be apparent from the text of the instrument that the requirement has been observed. It trusts that this point will be borne in mind in drafting future instruments. 9. The Department’s letter to the Joint Committee raises the question whether consultation with the Commission has been completed when the latter has not issued a recommendation. It would appear to the Committee that as long as the Commission has been informed of the Minister’s intentions and given a reasonable opportunity of expressing its views, the provisions of the Directives have been met. The fact that the Commission has not issued “recommendations” or agreed with the Minister’s proposal would not appear to affect the position. Fees10. There is provision in S.I. No. 386 of 1977 requiring the payment to the Minister of “such fees (if any) as may be fixed by the Minister with the consent of the Minister for Finance” in respect of (a) road freight certificates, (b) certificates of competence, (c) examinations and (d) courses of instruction and training. S.I. No. 388 of 1977 contains an analogous provision. According to the Department, the Minister has given responsibility to the Chartered Institute of Transport for running courses and holding examinations and, apparently, fees in respect of these matters will be charged not by the Minister but by the Institute and will go towards the financing of their scheme. No fees have as yet been charged for certificates. 11. The Joint Committee accepts that the charging of fees may constitute an “incidental, supplementary and consequential” provision falling within section 3(2) of the European Communities Act, 1972 and it agrees that it is not unreasonable to include a provision for fees in the Regulations under review. However, like its predecessor, it does not accept that Ministers are entitled in regulations made under the Act to delegate to themselves or others the power to fix and vary fees administratively. Such action removes fees completely from the control which the Houses of the Oireachtas is seeking to exercise through the Joint Committee over regulations made under the European Communities Act, 1972. 12. It would appear from the Department’s letter and accompanying memorandum that as regards road freight and road passenger certificates and certificates of competency, no fees are being charged at present but that there is a possibility of fees being imposed at a later date. In regard to examinations and courses of instruction, it seems that the charges will be a matter for the Chartered Institute of Transport. It is not clear if the Minister intends to exercise any control over the Institute’s charges but, whether he does or not, the present Regulations are inappropriate. In the Joint Committee’s opinion the provision in regard to fees in both instruments should be amended to reflect the actual position. If, later on, it is decided to impose, control or vary fees, appropriate amending Regulations should be made specifying the amount of such fees. In that way the fees will be subject to the scrutiny of the Joint Committee which could recommend annulment if it considered the fees excessive. D. EUROPEAN COMMUNITIES (MEASURING CONTAINER BOTTLES) REGULATIONS, 1977 [S.I. No. 237 of 1977].Fees13. These Regulations implement Council Directive No. 75/107/EEC which seeks to secure free movement throughout the Community of bottles manufactured to a specified degree of accuracy and marked with certain indications. The instrument provides for various checks provided for in the Directive to be carried out by an Inspector of Weights and Measures and for the charging for the services of the Inspector of “such fees as the Minister, with the consent of the Minister for Finance, determines”. For the reasons already set out in paragraph 11 of this report the Committee asked the Department of Industry, Commerce and Energy why the fees could not have been specified in the instrument. The Department’s reply is reproduced in Appendix IV. 14. The Joint Committee notes from the Department’s reply that it is the intention to introduce a new Weights and Measures Bill which will include a provision relating to those fees. Under that provision it will be necessary for the Minister to make Regulations “to provide for the level and manner of levying and disposal of these fees”. This provision will certainly meet the objections of the Joint Committee. Moreover, it has not yet been decided whether any fees at all will be charged under the Regulations. In the circumstances, the Joint Committee is not recommending that any action be taken in regard to the Regulations. E. SEA FISHERIES (CONSERVATION AND RATIONAL EXPLOITATION) ORDERS (Nos. 5, 6 and 8), 1977, [S.I. Nos. 259, 260 and 402 of 1977].Purpose of Instruments15. The above-mentioned orders which were made under section 35 of the Fisheries (Amendment) Act, 1962 are now spent but an important point arises on them in connection with the implementation of Community secondary legislation. According to the Department of Fisheries (see Appendix V) the purpose of the Orders (Nos. 5 and 6) was to implement Council Regulation No. 1672/77. The latter Regulation, which came into force on 27th July, 1977, provided inter alia that “direct fishing for herring shall be prohibited” until (a) 31st August, 1977 off the West and South West coasts of Ireland and (b) until 31st December, 1977 off the East Coast. The latter ban was extended to 31st January, 1978 by Council Regulation No. 2899/77 which came into force on 1st January, 1978. Order (No. 5) provided (Article 3) that from 4th to 31st August, 1977 “fishing for herring in the specified area (i.e. off the West and South West coasts) is hereby prohibited”. Order (No. 6) contained a similar provision in respect of the East coast for the period from 4th August to 31st December, 1977 and Order (No. 8) purported to extend that ban to 31st January, 1978. Direct Applicability of Community Regulations16. According to Article 189 of the EEC Treaty a Community Regulation “shall have general application” and “shall be binding in its entirety and directly applicable in all Member States”. Article 191 provides that “Regulations shall be published in the Official Journal of the Community” and “shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following their publication”. In case 34/73 [1973] ECR 990, the Court of Justice of the Communities pronounced that “the direct application of a Regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law”. In case 34/73 [1973] ECR 981 dealing with the effect of reproducing provisions of a Community Regulation in Italian national legislation, the Court ruled “that no procedure is permissible whereby the Community nature of a legal rule is concealed from those subject to it”. Compatibility of Ministerial Orders with Council Regulations17. Council Regulation No. 1672/77 provided that it would enter into force on the day following its publication in the Official Journal. It was published in the Journal on 26th July, 1977 and so it would appear that the ban on herring fishing which it imposed came into operation on 27th July, 1977. The Ministerial Orders (Nos. 5 and 6), however, imposed a similar ban effective from 4th August, 1977. Views of the Joint Committee18. The Joint Committee has no difficulty in accepting the Department’s contention (see Appendix V) that “while all EEC Council Regulations are directly applicable in each Member State, it is necessary in certain cases to supplement these in national legislation in the interest of their effective enforcement”. Moreover, it agrees that the ban on herring fishing would probably have been ineffective without the re-inforcement of the various supporting provisions of the Ministerial Orders. However, the Joint Committee does not find in the Department’s memorandum any convincing reason why it was necessary to repeat in the Ministerial Orders the direct ban which had already been imposed and extended by Council Regulations and to make the ban operative from a date later than that prescribed by Council Regulation No. 1672/77. The Orders in question are now spent but the Joint Committee wishes to draw attention to the matter because it believes that the incorporation of provisions of Community Regulations in national legislation can be a source of confusion. F. EUROPEAN COMMUNITIES (COLD-WATER METERS) REGULATIONS, 1977 [S.I. No. 320 of 1977].Citation of Authority19. These Regulations made by the Minister for Industry, Commerce and Energy on 12th October, 1977 implement Directive 75/33/EEC on the approximation of laws of Member States relating to cold-water meters. In its citation of statutory authority, there is reference to section 2 of the European Communities Act, 1972 whereas, in fact, it is section 3 of the Act that is the relevant section. The Joint Committee assumes that the Department has consulted the Attorney General and that he has advised that the error does not affect the validity of the instrument. G. CONTROL OF IMPORTS (QUOTA No. 51) (MISCELLANEOUS TEXTILES) (AMENDMENT) ORDER, 1977 [S.I. No. 107 of 1977].CONTROL OF IMPORTS (QUOTA No. 52) (MISCELLANEOUS TEXTILE PIECE GOODS) (AMENDMENT) ORDER, 1977 [S.I. No. 108 of 1977] EUROPEAN COMMUNITIES (MISCELLANEOUS TEXTILES) REGULATIONS, 1977 [S.I. No. 196 of 1977]. EUROPEAN COMMUNITIES (MISCELLANEOUS TEXTILE PIECE GOODS) REGULATIONS, 1977 [S.I. No. 197 of 1977]. Citation of Relevant EEC Secondary Legislation20. The purpose of these instruments is to effect various amendments to and modifications of the Control of Imports (Quota No. 51) (Miscellaneous Textiles) Order, 1964 and the Control of Imports (Quota No.52) (Miscellaneous Textile Piece Goods) Order, 1964 in order to bring them into line with EEC requirements. None of the instruments contains any reference to the Community secondary legislation which gave rise to them and accordingly, the Joint Committee had to ask for explanatory memoranda on what Community obligations were involved. The replies received are reproduced in Appendix VI to this report. 21. It appears from the replies received from the Department of Industry, Commerce and Energy that S.I. Nos. 107 and 108 arise from Council Regulation 109/70 and Council Decisions 75/210 and 74/214 and that S.I. Nos. 196 and 197 of 1977 arise from Council Regulations 109/70 and 1439/74. In the case of S.I. Nos. 196 and 197 of 1977 which were made by the Minister under the European Communities Act, 1972 the Department admits that the omission of a reference to the EEC secondary legislation was accidental and “an inadvertent departure from the usual practice”. In the case of S.I. Nos. 107 and 108 of 1977 which were made by the Government under the Control of Imports Act, 1934 the Department argues that “reference to European Community legislation would not have been appropriate”. However, in deference to the views expressed by the previous Joint Committee, the Department is “considering, in future cases in which it may be appropriate to do so, the publication of a reference to relevant EEC provisions either in an explanatory note with the Statutory Instrument in question or in the appropriate Report to the Houses of the Oireachtas on Developments in the European Communities.” 22. In statutory instruments of this kind, the Joint Committee agrees with its predecessor that the relevance of any Community secondary legislation should be apparent from a perusal of the instrument. It is not sufficient to include this information in the Government’s six-monthly reports. The Committee is not by any means convinced that it is “inappropriate” to include a reference to Community legislation in the text of an instrument made under a statute other than the European Communities Act, 1972. In the Committee’s view such reference could be embodied either in an appropriate preamble or, suitably worded, in the ordinary citation of authority. The Committee would like this aspect to be re-examined by the Department. However, if no reference is to appear in the text, the Committee sees no reason why full information on the point should not be given in the explanatory memorandum. Indeed the Committee, like its predecessor, believes that the memorandum should not merely refer to the relevant Community legislation but should summarise briefly its relevant provisions. H. EUROPEAN COMMUNITIES (CUT FLOWERS, FLOWERING BULBS AND ORNAMENTAL FOLIAGE) REGULATIONS, 1977 [S.I. No. 129 of 1977].Purpose of Instrument23. This instrument was made by the Minister for Agriculture under section 3 of the European Communities Act, 1972 and seeks to enforce the rules laid down in Council Regulations regarding quality standards for flowering bulbs, corms, tubers, fresh cut flowers and fresh ornamental foliage. It purports to provide penalties for breaches of those rules and to ensure their observance by enabling authorised officers to enter premises, inspect records and take samples. Where samples do not comply with the standards, the Minister may require destruction of the produce. The reply of the Department of Agriculture to a number of queries raised by the Joint Committee is set out in Appendix VII to this report. The Committee wishes to comment on two points in the Department’s reply. Offences24. Regulation 4 of the Regulations reads: “A person who displays or offers for or puts on sale, sells, supplies or otherwise markets, or exports or imports, or holds or transports any produce or product in contravention of Article 3 of Regulation 234/68 or Article 2 of Regulation 315/68 (as amended by Article 1 of Council Regulation (EEC) No. 338/77 of 14th February, 1977) or Article 2 of Regulation 316/68 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200”. The Department contends that this provision does not suggest “that each of the acts mentioned in Regulation 4 is capable of being a contravention of all the Council Regulations referred to; rather Regulation 4 leaves it to the reader to consult the Council Regulations therein mentioned in order to ascertain the precise prohibitions under each of them for which penalties are imposed by Regulation 4”. The Joint Committee does not accept that the reader should be put to trouble when it could have been avoided. In its view, the prohibitions imposed by Council Regulations 234/68 and 315/68 (as amended) respectively could readily have been set out separately in the domestic instrument. Businesses Affected25. Regulation 6 (6) of the statutory instrument “applies to the following businesses, namely: (a) the business of selling, supplying or otherwise marketing any produce mentioned in Article 1 of Regulation 315/68, and (b) the business of selling by wholesale or of importing, exporting, any produce mentioned in Article 1 of Regulation 316/68”. According to the Department, the reference to “selling” or “supplying” in Regulation 6 (6) (a) must be interpreted as including any enterprise involved in exporting to third countries. Yet it was apparently necessary to include specific reference to “importing” and “exporting” in Regulation 6 (6) (b). In the Joint Committee’s view, Regulation 6 (6) (a) should clearly contain a reference to the business of exporting to third countries. I. EUROPEAN COMMUNITIES (NON-LIFE INSURANCE ACCOUNTS) REGULATIONS, 1977 [S.I. No. 401 of 1977].Purpose of Instrument26. These Regulations require non-life insurance undertakings in Ireland to submit returns to the Minister for Industry, Commerce and Energy in the forms set out in the schedule to the Regulations. The scheduled returns replace those specified in the Insurance Acts, 1909 to 1971. The change in the form of returns is necessary to enable the Minister to exercise his supervisory functions under the European Communities (Non-Life Insurance) Regulations, 1976. The latter instrument was made to implement Council Directive 73/239/EEC which deals with the right of establishment of non-life insurance undertakings. Information required from Undertakings27. The Irish Insurance Association has represented to the Joint Committee “that the provisions of the Statutory Instrument are discriminatory in that fundamental distinctions are made, both in respect of the information to be furnished by insurers and the publication of information supplied, between insurance companies and syndicates of Lloyds”. The Association’s case is based on the contentions that (a) the returns required of insurance companies will be considerably more expensive to compile than those required of the Lloyds Syndicates, (b) the publication of the returns will ensure that Lloyds will have access to substantially more information about their insurance company competitors than the latter will have about the Syndicates and (c) whereas under the Regulations the returns submitted by the insurance companies will be open to inspection by all in the Companies Registration Office, the returns submitted by Lloyds Syndicates will be available only in the Oireachtas Library to which the insurance companies do not have access. 28. The Joint Committee’s investigation of this matter reveals that hitherto returns were not furnished by the individual Syndicates of Lloyds so that the Regulations are seen as an improvement on that position. The Committee is informed that the nature of the world-wide accounting system at present in use does not enable individual Syndicates to supply in respect of Ireland information on commission and claims outstanding in regard to insurance other than motor insurance. However, it is assured that the question of obtaining more complete information is still being pursued. 29. The Joint Committee considers that under Council Directive 73/239/EEC, Lloyds Syndicates must be required to supply all information needed to enable the Minister fully to exercise his supervisory functions. It trusts that the question of obtaining more information from them will be vigorously pursued. In regard to making the returns furnished available to insurance companies, the Committee wishes to point out that documents laid before the Houses of the Oireachtas become, by virtue of the Standing Orders of the Houses, public documents. Accordingly, the Committee considers that copies of the returns should be supplied by the Department to the Irish Insurance Association and to any insurance company which asks for them. J. EUROPEAN COMMUNITIES (ALIENS) REGULATIONS, 1977 [S.I. No. 393 of 1977].Representations Against Decision30. These Regulations made by the Minister for Justice implement a number of Council Directives dealing with right of entry and residence of EEC nationals. Copies of correspondence with the Minister’s Department regarding the instrument are set out in Appendix VIII to this report. The Joint Committee wishes to comment on one point in the Department’s minute of 20 Meitheamh, 1978. 31. The Regulations provide, in accordance with Directive requirements, for the appointment of an authority to consider representations from persons affected against adverse decisions. One category permitted by the Regulations to make representations comprises EEC nationals who have been lawfully in the State and are subsequently refused leave to land. This provision does not arise directly from any specific provision in the Council Directives and the Joint Committee has, therefore, had to consider whether it constitutes an acceptable use of the power conferred on the Minister under section 3 of the European Communities Act, 1972. The Committee considers the provision a reasonable one and broadly in line with the objectives of the Council Directives. Consequently, it has concluded that it is reasonable use of the power conferred on the Minister under section 3 (2) of the Act of 1972. K. IMPOSITION OF DUTIES (No. 233) (RATES OF EXCISE DUTY ON TOBACCO PRODUCTS) ORDER, 1977 [S.I. No. 384 of 1977].TOBACCO PRODUCTS REGULATIONS, 1977 [S.I. No. 389 of 1977]. Background32. Council Directive 72/464/EEC initiated in July, 1973 the process of harmonising excise duties on cigarettes in the Community. It introduced a system under which in each Member State the duty charged would consist partly of a specific component (tax per cigarette) and partly of an ad valorem component (based on retail selling price). Implementation of this system in Ireland and the United Kingdom was deferred to 1st January, 1978. The system was, in fact, introduced in Ireland by the Finance (Excise Duty on Tobacco Products) Act, 1977. 33. The Act of 1977 empowers the Revenue Commissioners to make regulations and this power has been availed of in S.I. No. 389 of 1977 to provide for various matters relating to importation, manufacture, warehousing, licensing and collection of duties. The other statutory instrument was made by the Government and is stated to depend on powers conferred on them by the Act of 1977 and earlier statutes. It specifies the rates at which the duty imposed by the Act of 1977 is to be applied to various tobacco products. Insofar as it arises out of the earlier statutes, it requires confirmation by an Act of the Oireachtas and section 28 of the Finance Bill, 1978 provides for such confirmation. Relevance to Terms of Reference of Joint Committee34. The Eleventh Report of the Government on Developments in the European Communities lists the two statutory instruments among “other (i.e. than regulations under the European Communities Act, 1972) statutory instruments necessitated by the obligations of membership of the European Communities made in the period 1 July, 1977-31 December, 1977”. 35. Apart from its functions in relation to regulations made under the European Communities Act, 1972 the Joint Committee is empowered by its terms of reference to examine and report on “such other instruments made under statute and necessitated by the obligations of membership of those Communities”. Under this heading the Joint Committee has been dealing with those cases in which Community secondary legislation is implemented directly neither by statute nor by regulations under the European Communities Act, 1972 but by statutory instrument made under some other statute. 36. The Joint Committee has concluded that the two instruments in question do not come within its terms of reference. It interprets its functions in relation to subordinate legislation as confined to reviewing the incorporation of Community secondary legislation in domestic law directly by statutory instrument and reporting thereon to the Houses. When Community legislation is implemented by statute the Houses will already have had an opportunity of considering all the implications and any statutory instruments made thereunder would be directed towards implementing the statute rather than original Community legislation. (Signed) EOIN RYAN, Vice-Chairman of the Joint Committee. 28th June, 1978. |
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