Committee Reports > List of Committees > Joint > 1988 > Committee on the Secondary Legislation of the European Communities (5th Committee) > Report No. 02 - Statutory Instruments [19]

FIFTH JOINT COMMITTEE on the SECONDARY LEGISLATION of the EUROPEAN COMMUNITIES

REPORT NO. 2

19 STATUTORY INSTRUMENT

(20 January, 1988.)

A. INTRODUCTION

1.The joint Committee has completed the consideration of 18 statutory instruments which was initiated by its predecessor and its observations on these instruments are set out in this report. A list of these instruments is contained in Appendix 1 to this Report. Correspondence with the Departments concerned in relation to the instruments is reproduced in Appendices 2 to 7 inclusive.

2.A detailed examination of these statutory instruments was undertaken for the Joint Committee by its Sub-Committee on Statutory Instruments and legal affairs under the chairmanship of Senator Mary Robinson. The Joint Committee is indebted to Senator Robinson and her colleagues.

B. PARTICULAR STATUTORY INSTRUMENTS

European Communities (Exemption from Value-Added Tax on the Permanent Importation of Certain Goods) Regulations, 1985. [S.I. No. 183 of 1985]

3.These Regulations were made by the Minister for Finance on 28 June, 1985 under Section 3 of the European Communities Act, 1972 and are expressed to have come into operation with effect from 1 July, 1984. The Regulations were made to implement Council Directive 83/181/EEC which deals with exemption from value-added tax on the final importation of certain goods and was adopted on 28 March 1983. Member States were required to implement the Directive with effect from 1 July 1984.

4.The European Communities Act, 1972 does not give Ministers express powers to make regulations with retrospective effect and, as will be seen from Appendix 2 to this Report, the Joint Committee raised with the Department of Finance the issue of retrospection in the present case. It will be noted that the Department is still awaiting a reply from the Attorney General’s Office on this point.

5.In common with its predecessors the present Joint Committee considers it objectionable that Ministers should make regulations under the 1972 Act with retrospective effect when there is no specific authority to do so. In the Joint Committee’s view the Houses of the Oireachtas should have the opportunity of considering in every case whether they are prepared to delegate power to legislate retrospectively. If it considered that such a power is essential in order to fulfil Community obligations an amendment of the 1972 Act should be proposed in order that the Houses have the opportunity of fully considering the matter. In the present case it seems to the Joint Committee that there was ample opportunity to make regulations between 28th March, 1983 and 30th June, 1984 so as to avoid the need for retrospection.

6.When regulations are made with retrospective effect they may not, in view of Article 15.5 of the Constitution create criminal offences retrospectively. The penal clause in the present Regulations, namely Regulation 31, creates an offence from 28 June 1985, the date of the making of the Regulations. As will be seen from Appendix 2 persons who acted contrary to the Regulations in period 1 July 1984 to 28 June 1985 (and none has been detected) would apparently have committed an offence under the Customs Consolidation Act, 1876, as amended.

European Communities (Aliens) (Amendment) Regulations, 1985 [S.I. No. 39 of 1985]

7.These Regulations make certain amendments to 1977 regulations in relation to re-admission to the State and rights of residence. The Joint Committee raised with the Department of Justice the necessity for the Regulations. According to the Department (see Appendix 3 to this Report) the Regulations were made to meet objections by the European Commission that certain provisions of the 1977 Regulations conflicted with the requirements of Community law. Having considered the Department’s reply the Joint Committee is satisfied that the amending Regulations were properly made.

European Communities (Aliens) (Amendment) (No. 2) Regulations, 1985 [S.I. No. 441 of 1985]

8.These Regulations were made to accord certain rights to nationals of Portugal and Spain and “any member of the family of a national” of those states following on their joining the EEC. The Joint Committee questioned the Department of Justice (see Appendix 3) as to why rights were being conferred on “any member of the family” when in the case of Greece, 1981 Regulations conferred corresponding rights on “any dependant” of a Greek national. It will be noted that the Department accepts that “any dependant” is the appropriate category and has indicated that the earliest opportunity will be taken to amend S.I. No. 441 of 1985.

In the Joint Committee’s view this amendment is necessary and should be made without delay since the obligation is to accord rights to “dependants” as comprehensively defined by the basic Regulations of 1977.

European Communities (Removal of Restrictions on Immature Spirits) Regulations, 1985 [S.I. No. 368 of 1985]

9.These Regulations amend the Immature Spirits (Restriction) Act, 1947 in order to remove compulsory warehousing requirements for vodka and rum. According to the Department of Finance (see Appendix 4) the need for the Regulations arose because the Commission claimed that the 1947 Act in this respect was in breach of Community law, a view which was accepted by the Attorney General.

10.Although the constitutionality of the process has been questioned by one academic commentator many statutes have been amended over the years by regulations made under the European Communities Act, 1972 in order to implement Community Directives. This has brought about in some instances a situation where the major provisions of Irish law appear only in subordinate legislation which has never been considered by the Houses of the Oireachtas eg regulation of insurance companies. The amendment of the 1947 Act does not, of course, have such an effect but, in the Joint Committee’s view, it is undesirable that amendments of Acts of the Oireachtas should remain indefinitely embodied in subordinate legislation. Opportunity should be taken to include such amendments in primary legislation when it presents itself. The Regulations now under consideration should, perhaps, be replaced by an appropriate provision in the next Finance Act and unless there are compelling reasons to the contrary the Joint Committee recommends that this be done.

European Communities (Co-Responsibility Levy on Cereals) Regulations, 1986 [S.I. No. 297 of 1986]

10.This instrument implements EEC Regulations on the collection of a co-responsibility levy on cereals. It provides inter alia that (a) a levy due to the Minister for Agriculture may be collected as a simple contract debt and (b) a contravention of Article 5 or 6 of Commission Regulation (EEC) No. 2040/86 shall be an offence punishable by a fine or imprisonment or both. The Joint Committee raised with the Department of Agriculture and Food the necessity for (a) in view of the direct applicability of the Commission Regulation and whether the nature of the offences referred to at (b) was made sufficiently clear by the Irish Regulations. The Department has indicated (see Appendix 5) that advice sought from the Attorney General’s Office on these matters has not yet come to hand.

12.On further consideration the Joint Committee is satisfied that its concern about this instrument is not well founded While a levy due to the Minister might be collectable by virtue of the direct applicability of the Commission Regulation it could not have been collectable as a simple contract debt without the provision in the Irish Regulations. As far as the offences provided for in the Regulations are concerned the Joint Committee is satisfied that because of the direct applicability of the Commission Regulation any elucidation of its provisions in the Irish Regulations would not have been in order.

European Communities (Natural Mineral Waters) Regulations, 1986 [S.I. No. 11 of 1986]

13.This instrument implements Council Directive 80/777/EEC which deals with the harmonisation of the national laws of the Member States relating to the exploitation of and marketing of natural mineral waters. The Irish Regulations provide inter alia that a person shall not market or exploit natural mineral water unless it “complies with the provisions of the Council Directive and of these Regulations” and that in advertising or selling the product there must be compliance “with the provisions of Articles 7, 8 and 9 of the Council Directive”. Failure to observe these requirements constitutes offences punishable in the former case by a fine or imprisonment or both and in the latter case by a fine. The Department of Industry and Commerce has indicated (see Appendix 6) that it “is satisfied that the Regulation set out clearly the obligations arising from the Directive” The Joint Committee cannot accept that this is the case since in order to determine one’s obligations under the Regulations recourse must be had to the terms of the Directive the construction of which is ultimately a matter for the European Court of Justice. In the Joint Committee’s opinion it ought not be necessary for Irish citizens to have regard to Community Directives in order to ascertain their obligations under Irish law.

Directives are binding only on the state and it ought to be considered the duty of instrument making authorities to set out what is required in this country to implement a Directive in terms which are readily susceptible of interpretation in accordance with the rules applied by Irish courts.

14.The continuing attempts by instrument-making authorities to incorporate the terms of Directive directly into Irish law raises important issues of principle which impinge on the prerogatives of the Oireachtas and its obligation to implement Community legislation. This matter was under consideration by its predecessor and is being pursued by the present Joint Committee. It expects to be in a position to make a special report to the Houses on the subject at an early date.

European Communities (Scheduled Inter Regional Air Services) Regulations, 1987 [S.I. No. 215 of 1987]

15.These Regulations oblige the Minister for Tourism and Transport to have regard to and comply with Council Directive 83/416/EEC as amended by Council Directive 86/216/EEC in exercise of powers and discretions conferred on him by the Air Navigation Acts, 1936 to 1986. Council Directive 83/416/EEC, as amended, deals with the authorisation of scheduled inter-regional air services. As the Irish Regulations provide another example of the incorporation verbatim of Council Directives into Irish law the Joint Committee sought the observations of the Department of Tourism and Transport. The Department has replied (see Appendix 7) that it has sought the advice of the Attorney General’s Office which has not yet replied.

16.In the Joint Committee’s view this instrument is not open to the same objections as those which seek to impose on individuals whatever obligations arise from a Directive without seeking to specify those obligations in language which is readily susceptible to statutory interpretation in accordance with the rules employed in the Irish legal system. Council Directive 83/416/EEC, as amended, imposes obligations on Ireland as a matter of Community law. What the Irish Regulations do is to impose those obligations on the Minister for Tourism and Transport as a matter of Irish law. The Council Directive, however, appears to envisage air carriers being entitled to certain authorisation as of right provided that certain conditions are fulfilled. What the Irish Regulations leave obscure is whether these rights can be enjoyed under Irish law and what remedies are available to air carriers if the Minister refuses to honour them. Presumably they have available only whatever remedies are available to an unsuccessful applicant under the Air Transport and Navigation Acts.

(20 January, 1988)