EU Law in the Irish Legal Order

EU law is an entire subject in its own right. What an Irish legal system paper asks is narrower and more manageable: where does EU law sit in the Irish hierarchy of norms, and what happens in an Irish courtroom when EU law and Irish law collide? Answering that requires the constitutional licence for membership, the four or five doctrines the Court of Justice has built on top of the Treaties, and — a detail that separates good answers from average ones — the correct remedy vocabulary.

The constitutional licence: Article 29.4.6°

Ireland joined the Communities in 1973, following a constitutional amendment, and the European Communities Act 1972 is the domestic Act giving effect to EU law here. The load-bearing provision, though, is constitutional. Article 29.4.6° provides that no provision of the Constitution invalidates laws, acts or measures necessitated by the obligations of EU membership. That is a grant of constitutional immunity: a membership-necessitated measure cannot be struck down for inconsistency with some other constitutional provision.

The reason each significant treaty step has needed a referendum traces back to Crotty v An Taoiseach Binding (IE) [1987] IESC 4; [1987] IR 713. The historical sequence is worth having straight: there were originally three Communities (ECSC, Euratom and the EEC); the EEC Treaty — the Treaty of Rome — aimed at a common market; the Maastricht Treaty created the European Union in 1992; and since the Lisbon Treaty the Treaty of Rome has been renamed the Treaty on the Functioning of the European Union.

The sources, and why the instrument matters first

EU law has an internal hierarchy of its own. The Treaties (TEU and TFEU) are its constitutional documents; below them sit the secondary instruments; and the case law of the Court of Justice interprets all of it. Every secondary instrument needs a legal basis in a Treaty article, because the Union may legislate only in areas the Member States have conferred on it — so secondary EU law cannot breach the Treaties, just as Irish secondary legislation cannot breach the Constitution.

• Regulations — binding and directly applicable in every Member State from their stated date; no transposition is needed or permitted.
• Directives — binding as to the result to be achieved, leaving the method to each Member State, which must transpose by a deadline. In Ireland directives are frequently transposed by statutory instrument: Meagher v Minister for Agriculture Binding (IE).
• Decisions — binding in their entirety on those to whom they are addressed.
• Recommendations and opinions — no binding legal force.

Classifying the instrument is the first analytical move in any EU-law problem, because a regulation is self-executing while a directive raises the whole question of transposition, deadlines and who the defendant is. Watch the vocabulary trap too: an EU regulation is directly applicable law at the top of the hierarchy, while an Irish regulation is domestic secondary legislation near the bottom. They are opposites, not cousins.

Supremacy

Supremacy — or primacy — means EU law prevails over any conflicting provision of national law. It was established in Costa v ENEL Binding (EU), Case 6/64, and pushed to its logical conclusion in Internationale Handelsgesellschaft, Case 11/70, where the Court held that EU law prevails even over national constitutional law. The earlier Stork v High Authority, Case 1/58, had already established that national law, including domestic constitutional rights guarantees, cannot be invoked to defeat Community law; and Stauder v City of Ulm, Case 29/69, supplied the answer to the obvious objection, holding that fundamental rights are protected within the EU legal order itself.

Domestically, supremacy plus Article 29.4.6° is what places EU law at the summit. The practical consequence in an Irish court is that a national provision conflicting with a directly effective EU provision must be disapplied.

Direct effect and indirect effect

Direct effect means that a provision of EU law which is sufficiently clear and unconditional can be relied on by an individual in a national court. The foundation is Van Gend en Loos Binding (EU), Case 26/62, where the Court held that the Treaties created a new legal order whose subjects include individuals, not merely an agreement between states.

Regulations are directly applicable of their own force. Directives are more complicated. An untransposed directive may still be relied on against the State once its transposition deadline has passed — vertical direct effect — but its effect between private parties is far more limited. This is why the identity of the defendant is a live issue in every directive problem, and why an answer should flag it explicitly rather than assuming a directive works like a regulation.

Indirect effect fills the gap. It is the duty on a national court to interpret national law, so far as possible, in conformity with EU law — particularly with directives. Even where a directive cannot be enforced directly, the domestic court must read the Irish text consistently with it so far as the language allows. The Irish illustration of these principles in operation is Tate v Minister for Social Welfare Persuasive (HC), where the State's failure to implement an equal-treatment directive on time gave rise to enforceable claims.

State liability and the Article 267 reference

Francovich v Italian Republic Binding (EU), Joined Cases C-6/90 and C-9/90, completes the enforcement picture: where a Member State breaches EU law — classically by failing to implement a directive — it may be liable in damages to those who suffer loss as a result. Supremacy and direct effect give EU rights their teeth; State liability is the fallback remedy when the State has defaulted and direct effect is awkward, for example because the defendant is a private party.

Uniformity across the Member States is maintained by the preliminary reference under Article 267 TFEU. A national court may refer a question of interpretation of EU law to the Court of Justice; a court of last resort generally must refer, unless the question has already been settled or the answer is obvious (acte clair). The Court of Justice answers the question of interpretation; the national court then applies that answer to the facts. Identifying whether the referring court is one of last resort is what drives the may-versus-must distinction.

Pringle v Government of Ireland Binding (IE) shows the pieces interacting: the Irish courts and the Court of Justice upheld the ESM arrangements, ratification being a permissible exercise of executive power, with the Court of Justice holding that the ESM Treaty conferred no new competence on the Union.

Related notes: the doctrine of precedent · statutory interpretation · the courts of Ireland · Crotty v An Taoiseach · all free Irish Legal System notes.