Joint Committee on the Secondary Legislation of the European Communities debate -
Wednesday, 2 Jul 1975

Implementation and Direct Applicability of Directives.

Chairman

The next report deals with a matter of very considerable importance, the implementation and direct applicability of directives. We examined and discussed this matter very thoroughly in sub-committee and the report before the Committee contains our final draft. Some of our members have strong views on this draft report which I have now an opportunity of putting to you. We shall go through the report.

In the introduction we set out what task the report sets itself. It states as follows :

. . . the Joint Committee proposes to deal with a subject which has a bearing on the control exercisable by the Oireachtas over the implementation in this country of acts of the institutions of the Communities or, as they are sometimes described, the secondary legislation of the Communities . . .

I understand that in this report we are discussing something which gets to the very foundations of our Committee and its activities.

Paragraph 2 sets out the constitutional and legislative provisions. It refers to the Third Amendment of the Constitution Act, 1972, which enabled us to become a member of the Communities and the legislation which followed and the present position.

In Paragraph 3 we outline the situation regarding the direct applicability. In Paragraph 4 we discuss the situation in regard to parliamentary control.

In Paragraph 5 we set out the situation in regard to regulations and Directives; the provisions of Article 189 of the Treaty and the manner in which the Community legislation becomes operative in this country. I could, perhaps, summarise the nub of this report by saying that Community legislation—and in legislation I include actual Articles of the Treaty itself—may be directly applicable in this country or they may require a further domestic instrument to give effect to them. It is clear from the manner in which the case law has developed that an Article of the Treaty can be directly applicable, a Directive can be directly applicable in whole or in part and Regulations are directly applicable. The question the Committee faced was whether or not in the case of something which was not clearly directly applicable, or in which there is no domestic legislation already covering the matter, a domestic instrument whether Regulations or a Statute is called for. In general, I think the Committee is in favour of domestic Regulations being made where this is possible. In other words, we lean in favour of making domestic Regulations in any cases where there are doubts but we do accept—reluctantly accept—that it is not possible for us to stipulate that there should be domestic Regulations in every conceivable case.

I think the matter is highlighted for us, as a Committee, by one particular Directive, and that is the Directive on the Disadvantaged Areas Scheme. That is a scheme which authorises Member States to bring in certain schemes for the promotion of the welfare of certain disadvantaged areas. It really only permits Member States to take certain measures, and it is the view of the Department of Agriculture and Fisheries that they intend to give effect to that Directive by administrative action in the Department. This is a case where the Committee feels that there should be domestic Regulations, almost certainly Irish ministerial Regulations establishing any such schemes. This particular Directive and the view of the Department of Agriculture and Fisheries that it can be dealt with by administrative action have caused the Committee to look at this whole question of applicability of secondary legislation.

Our final recommendations are summed up on page 6, paragraph 8. I quote from that paragraph:

On the question of implementing Directives generally, the Joint Committee recommends that these should be given effect to by statute or statutory instrument except when adequate legislative provisions already exist or when it is considered that the provisions of the Directives are directly applicable. In any case of doubt on the latter point the Joint Committee would expect the decision to be in favour of enacting domestic legislation.

Flowing from that view of ours we have decided that all Government Departments, to enable us to carry out our functions, should notify us within a month of the publication of a Directive, whether in the view of that Department it is intended that the Directive be implemented by statute or by statutory instrument or that it is already covered by existing legislation or that the Department considers that it is directly applicable.

As I have said, this report has been very thoroughly discussed and debated amongst our Members at sub-committee level and this report which is now before you, contains our final views on the subject. I would like to hear any comments from any Members of the Committee.

Senator Robinson

I favour very strongly the adoption of this report. As you have said yourself, Chairman, it is one of the most important reports that we have considered in this Committee because it relates to the question of democratic control now that we have joined the European Community. One of the functions of this Joint Committee is to examine the different frameworks in which legislative decisions are taken now that we are a Member State of the European Community; and to ensure that, in so far as possible, the Oireachtas and the Joint Committee in discharging its responsibilities continue to play the fullest legislative role which is in conformity with our obligations within the EEC Treaty.

This is essentially what this report is about. As you have said, Mr. Chairman, the effect of membership of the European Community is that certain Treaty provisions, Regulations made by the Council or Commission and now—as interpreted by the case law of the European Court—parts of certain Directives as well as Decisions are directly applicable. They create rights for Irish citizens; they are upheld by the Irish courts and they require no domestic implementation. However, what we are concerned about here is the position regarding Directives which are not held to be directly applicable and where existing Irish law does not already reflect the position which the Directive is trying to achieve in all the Member States. Here, in order to reinforce the principle of democracy in Ireland and to allow this Joint Committee to discharge its responsibility, it is necessary that the Government in general and all Departments of Government accept that the implementation of the obligations of Directives should not be done solely by administrative action by a Department—such as the Department of Agriculture and Fisheries propose to do with the Disadvantaged Areas Scheme. It is necessary that either—if the matter is sufficiently important in the view of the Government—it be done by primary legislation, by an Act of the Oireachtas, or, alternatively, that it be done by an Irish ministerial Regulation, that is by statutory instrument. If that method of implementation is chosen and a statutory instrument is introduced, then the Joint Committee has the specific function under the European Communities (Amendment) Act, 1973, of examining that statutory instrument. It affords us the opportunity to assess the way in which the Directive is being implemented here, and we can, if necessary, recommend annulment.

If the Department tries to by-pass that process by implementing the Directive purely by administrative action, then there is no parliamentary control whatsoever. As the European Community develops, these schemes are going to increase. The opportunities for this kind of activity if regional and social imbalances within the Community are to be eradicated are going to be more and more frequent. We must insist, as a Joint Committee discharging our statutory responsibilities and as a democratic voice, that the Government accept the obligation to implement Directives either by an Act of the Oireachtas which will go through a full debate in both Houses or by statutory instrument which will come, in the first instance, before this Joint Committee and where we can bring it to the attention of both Houses. Therefore, I think this is an extremely important report in safeguarding the general principles which we have outlined, and I support it wholeheartedly. I also think that we have pointed in the draft report to a very good example of what could happen, and I hope the Department of Agriculture and Fisheries will listen to the terms of this report and will change their minds and decide to implement the Disadvantaged Areas and Hill Farming Scheme, by statutory instrument as they did in the case of the Retirement of Farmers Scheme.

Chairman

Does anybody else wish to speak on this?

Deputy Esmonde

As is already known, I think, I am in a minority on this matter. I do not go along with the recommendation contained in this report which says that all Directives should be implemented by national legislation except where existing laws already provide the necessary authority. In this report we are dealing purely with an instrument of the EEC which is known as a Directive but we do not go into the matters of the legal implications of either Regulations or Decisions.

I have looked into the case law that is being referred to in the report and into other case law and opinions of other lawyers and writers on this matter. It appears to me that the question of whether a Directive is directly applicable or not is, to put it bluntly in layman's language, a matter of some confusion, and great difficulties are arising at the moment in relation to interpretation on that particular heading alone.

I feel that, if we are going to lay down an opinion that any Directive that is not directly applicable must be implemented by a statutory rule or order of our Parliament, we are imposing a difficulty on the Executive, which is the Government, and we are imposing a difficulty on Parliament, because matters of interpretation could easily arise as to whether the Directive was directly applicable or not.

I cannot accept the very strong statement that all Directives should be implemented by national legislation. I have made the point at this Committee time and again that Directives are chosen under the Articles of the Treaty of Rome as a method of possibly implementing the Articles or enlarging them, whatever way you like to look at it. But, working from the Articles, there is a specific provision in many cases for the use of a Directive. The draftsmen of the Treaty of Rome must have done that deliberately. As we know, there are considerable differences in the manner in which the various Acts of the EEC work.

This really started, I think, as a discussion under Article 189 of the Treaty of Rome which provides for various methods whereby the Council and Commission of the EEC can carry out their tasks. Of course, it must be borne in mind that Article 189 does not, of itself, give power to issue a Directive; the power to issue a Directive must be found elsewhere in the Treaty. It must also be borne in mind that the description of an Act or instrument, whether it be called a Directive or not, does not necessarily decide the question of whether it is a Directive because it has now been well decided by the European Court that the nature of the Document in question goes rather through the substance than through the form of it.

Chairman

I am afraid we will have to suspend business as there is a vote in the Dáil.

Business suspended and resumed after Dáil Division.

Chairman

I think we can proceed now. Perhaps Deputy Esmonde would like to continue.

Deputy Esmonde

I was making the point that the European Court decided that they should look at the substance of the document now rather than the form, and this has given rise to case law and difficulties in certain instances. Some people might argue that what I am saying is not strictly relevant, but I think it is. I said that one must make distinctions between Regulations and Directives. This has been provided for in the Treaty of Rome in certain cases where they were Directives rather than Regulations.

As I see it, a Regulation is the prima facie means of achieving a uniformity of rules throughout the Community. This type of instrument has been resorted to on far more occasions than any other. It probably runs to thousands as against individual Directives. Once a Regulation has been enacted it becomes the law in all Member States, not the law in the Member States but the law of the Community in all Member States as soon as it is enacted and it becomes directly applicable. On the other hand, Directives by definition are not a direct instrument for achieving precise legislative uniformity in the Community and Member nations. I think it is correct to say that a Directive has been used primarily where uniformity is unnecessary or where national political interests prevent the adoption of a Community rule or else where the aim is possibly to lay down a standard rather than procedure.

As I understand it, legislation by Directive is always something of an exceptional procedure, possibly because of the relatively limited efficiency of the instrument in the laying down of rules for the Community. We must bear in mind that Directives bind only the Member States to which they are addressed. They do not concern private enterprise or individuals by way of direct application. I suppose it can be said that they bind the States to bring about a specified result, but it is clearly stated in Article 189 that the choice of form and method of carrying out Directives is left to the national authority. By that fact it is left to the decision of the Member States as to whether the provisions will be legislative or administrative.

As I see it, Directives are used where there would be considerable difficulty if the matter was implemented by a Regulation, because the Regulation, becoming immediately applicable and binding, might necessitate a nation having to unscramble a tremendous amount of its law. I think this is important. It is important to remember that we are one of the two Common Law States in the Community—England and ourselves—and that our system of law and our approach to law and legal rules are different to what it is in the Continental system. This must, of itself, give rise to certain difficulties when it comes to legislating for all the nations in the Community. We should bear in mind also—this has not, I think, been adverted to in the discussion so far—that a lot of our law is not contained in Statutes or domestic regulations. We have a tremendous amount of case law, and we have what is called the Common Law and Equity. I can quite see that there is always a certain amount of jealousy between Parliament and the Executive where Parliament tries to control the Executive as much as possible.

It seems to be implied in this report that if a statutory rule or order was not passed following on a Directive or if there was not native legislation, then Parliament would not have control over the Executive. I do not go along with that view. I feel that we have the weapon of motion of censure and we have the Parliamentary Question in the Dáil. All these methods and others are given to us under the Standing Orders of the Oireachtas to deal with any situation where we might feel that the Government of the day were not implementing or dealing properly with a Directive.

Senator Robinson has instanced the Disdvantaged Areas Scheme as being a typical case. I do not know why there is so much emphasis—I would bluntly call it a good deal of political ballyhoo—in regard to the Disadvantged Areas Scheme. I wonder does anyone know how recently the Disadvantaged Areas Scheme was enacted. I wonder how many people appreciate that when the Disadvantaged Areas Scheme was being considered by this Committee, unless I misread our report which we furnished in June of this year, there was not one mention of implementing the Disadvantaged Areas Scheme by statutory regulations or statutory instrument.

Senator Robinson

Because it was to be considered by a different sub-committee.

Deputy Esmonde

I would have thought that when we prepared a report, which is a report advising the Houses of the Oireachtas, that we would have referred to it if we felt that strongly about it. However, it was not done. It may be a criticism of ourselves for having overlooked it. I think it is unfortunate——

Chairman

Excuse me, Deputy. I think in fairness to the Committee's procedures, we took a very definite decision to leave that question of whether or not the Disadvantaged Areas Scheme should be implemented by means of a statutory instrument or not over for another day and, indeed, for this report.

Deputy Esmonde

Have we decided the report?

Chairman

We decided to confine our report on the disadvantaged areas to the scheme itself.

Deputy Esmonde

Anybody who has looked at the Disadvantaged Areas Scheme will see that it is chock full of administrative difficulties and ad hoc and day-to-day decisions will have to be made in its implementation. It might be easy enough to say where the area is but there will be sub-areas that will have to be decided from time to time. I can see considerable difficulties in trying to write all that into a statutory instrument.

One must look at the wisdom of the draftsmen and of the Commission and of the Council, when they are enacting a Directive. They make some of them directly applicable. They make some of the Articles and some of the Directives very specific and they have to be applied immediately and quite obviously that calls for legislative action. There are others that they leave quite clearly to the discretion of the Member States and the Government. One can only surmise if one reads the Directives of the EEC that there is a very good reason for leaving it that way.

I do not want it going forth from this meeting that I am advocating a weakening of the control of parliament in relation to any Government of the day in regard to Directives. As a politician not of many years' standing and as a lawyer, I see considerable technical difficulties arising on our advising the Houses that all Directives must be put in the form of a statutory instrument.

Chairman

That is not quite our proposal. Our proposal is that in any case where a Directive is not directly applicable per se and where existing legislation does not cover the situation, in those cases the Committee feels there should be an Irish domestic instrument—whether a Statute or a Regulation.

Deputy Esmonde

This is where I take issue with the views of the Committee. When it is not directly applicable the draftsmen of the Directive have good reason not to make it directly applicable because they can see that there might be difficulty in implementation having regard to the national problems that prevail in each Member country.

Chairman

Surely the very wording of the Treaties indicates that where a Directive is not directly applicable, it is left to the Member State to implement it in such a way as it deems fit. In other words, the entire concept is that there will be domestic legislation to implement a Directive which is not directly applicable. The view of the Committee is quite simple: in any such case, where there is no legislation covering the situation, either existing domestic legislation or Community legislation directly applicable, then the Committee wish that there should in all such cases be a domestic instrument to which this Committee can have access.

Deputy Esmonde

Has this Committee not, in the first instance, got access to discussing the matter when it was in draft and before the directive comes in?

Chairman

It has.

Deputy Esmonde

Is that not a greater function than any other?

Chairman

Deputy Esmonde's view has been fairly well expressed and is understandable as an objection to the report. He probably would like that contrary view noted. I, therefore, propose to note that what is the principal recommendation in this report of the Joint Committee is not agreed to by Deputy Esmonde, and he would like his objections noted. Is that the position?

Deputy Esmonde

Yes.

Chairman

Otherwise, may I take it that the report is agreed?

Deputy Collins

Yes.

Paragraphs 1 to 8 inclusive, agreed to.

Draft report agreed to, Deputy Esmonde dissenting.

Ordered : To report accordingly.