The EU and the Constitution
Ireland’s membership of the European Union has involved a significant transfer of sovereignty to the European Economic Community, laterally the European Communities and now the European Union.Article 29.4.3 provided that the State may be a member of the European Communities.
The European Communities Act 1972, as amended provides that the Treaties of European Unions and Acts adopted by the institutions of the European Union and European Communities and competent bodies under those institutions, are binding on the State and are to be part of domestic law under the conditions therein provided.
European Union law may be given effect directly by the enactment of domestic legislation. Most commonly, it is given effect by statutory instruments made under the European Communities Acts.
European Union Regulations adopted as such by the European Union have the direct force of law. In addition, the European Union Treaties themselves and the Directives are capable of having the direct force of law in accordance with the criteria laid down by the European Court of Justice.
Making Directives Part of Domestic Law
Statutory instruments made under the European Communities Acts have statutory effect. The Supreme Court has upheld the constitutionality of the making of regulations under the Act which have statutory effect. They may contain incidental and consequential provisions which repeal, amend or apply with or without modification, other law.
In addition to the European Communities Act, other schemes of legislation provide for statutory instrument making powers u to give effect to the European Union’s requirements in the relevant sector.
There may not necessarily be powers in other legislation to overrule primary legislation. If the legislation is not interpreted as being intended to give effect to European Union requirements, then it may not have the ability to have any greater effect than ordinary secondary legislation. Accordingly, where on occasion the State has used ordinary delegated legislation to implement EU requirements, it runs the risk that it may be outside the relevant power.
Prior to 2007, the Constitutional provisions in relation to EU membership Article 29, did not provide for indictable offences. Accordingly, there must be express power in the underlying primary legislation so to do. The European Communities Act 2007 provides that domestic implementing regulations may provide indictable offences, subject to maximum penalties of 3 years’ imprisonment or a fine of up to €500,000.
Supremacy of EU Law
Where there is an inconsistency between domestic law, which purports to implement European Union law and the underlying European Union legislation, then domestic should be interpreted in a manner consistent with European Union legislation.
Under the European Union doctrine of supremacy, the European courts require European Union law to take precedence over domestic law in areas of competence of the European Union. The European Union law asserts supremacy over national law. Some domestic courts do not accept this proposition, at least in the same unambiguous, unconditional terms.
Challenges to Implementation
The core provision enabling membership of the European Union provides that no provision of the Constitution invalidates laws, enacted acts done or measures taken, adopted by the State, necessitated by the obligations of membership of the European Union (and European Communities) and competent bodies.
The Supreme Court in a number of challenges has taken a broad view of what is required or necessitated by membership of the European Union. Where there are elements of discretion for the Member States, the exercise of such choices in terms of implementation, have been generally held to be necessary under the terms of the relevant policy, notwithstanding that they were not imperative from the European Union perspective.
In the Crotty case in 1986, the Supreme Court found that the Single European Act was not necessitated by membership of the European Community. In the Crotty case, the Supreme Court found that the Single European Act was not necessitated by the membership of the European Community and was thereby unconstitutional.
The effect of the Crotty case has been that, as each major Treaty was introduced, the State was specifically permitted to ratify it. Accordingly, specific Constitutional amendments were made to ratify the Single European Act. The State was later authorised by amendments to ratify
- Treaty on the European Union 1992 (Maastricht),
- the Treaty Regarding Community Patents, the Treaty on European Union (Amsterdam), 1997;
- the Nice Treaty (2002);
- the Statute of the International Criminal Court (2002);
- the EU Fiscal Agreement;
- the Treaty of Lisbon 2009 (TEU +TFEU)
- Fiscal Treaty 2012).
Treaty on European Union
The (Lisbon) Treaty on European Union contains provisions for ordinary treaty revision with the assent and ratification of all Member States. Most activities under the Union policies and internal actions are subject to one of two simplified revision procedures. They may not confer additional competence on the EU. It must be adopted by the Council unanimously and approved by States under their respective constitutional requirements.
The first procedure was used to establish the European Stability Mechanism. In Pringle v Ireland, it was held that the amending procedure was consistent with the Treaty on European Union because it did not involve any diminution or transfer of sovereignty so a constitutional amendment was not required for its ratification in Ireland.
The other simplified revision procedure applies to changes in unanimity requirements or changes in the unanimity requirement in the Council or qualified majority voting changes. They must be proposed by the Council acting unanimously, but may not be adopted if it is opposed by national parliaments within six months.
Expanded EU Scope without Referendum
Article 29.7.4, was added to give effect to the Lisbon Treaty provide that certain arrangements for enhanced cooperation between EU Staes may be acceded to with the consent of the Oireachtas. The consent of both Houses of the Oireachtas was used to approve of the European provisions in relation to enhanced cooperation in the area of Home Affairs and Security.
Article 29.4.8 provides that the State may agree to the decisions, regulations and other acts under the Treaty of the European Union to act other than by unanimity under those treaties, authorising the adoption of the ordinary legislative procedure and on certain aspects of the functioning of the European Union relating to freedom, justice and security, but the agreement to any such decision shall be subject to prior approval of both Houses of the Oireachtas.
The EU shall not adopt a decision taken by the European Council to establish a common defence policy, where that common defence policy would include the State.
The European Communities (Amendment) Act 2012 amends the European Communities Act 1972, in order to provide that the Protocol, amending the Protocol on transitional provisions annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community; and that the European Council Decision amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro, shall form part of the domestic law of the State.Content of Act
The Act provides for the substitution of the following definition for the definition of the ‘‘treaties governing the European Union’’:
‘‘ ‘treaties governing the European Union’ means—
(a) the Treaty on European Union,
(b) the Treaty on the Functioning of the European Union,
(c) the Lisbon Treaty, and
(d) the treaties governing the European Communities, (other than the provisions to which the first paragraph of Article 275 of the treaty referred to in paragraph (b) applies),
as amended by—
(i) the Protocol, done at Brussels on the 23rd day of June 2010, amending the Protocol on transitional provisions annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community, and 1 2 (ii) the European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro.’’.