Cases- EU law

Question 1

• Single European Act Title III could not be ratified without a referendum
• any amendment shall enter into force ‘after being ratified by all the Member States in accordance with their respective constitutional requirements’, domestic legislation giving effect to such amendments could not be said to be ‘necessitated’ by the obligations of membership
• Title II - not giving up more judicial power than already happened
• Title III-invalid as it interfered with Gov power to conduct foreign affairs
• The court held that executive actions impacting sovereignty (e.g., ratifying EU treaties) require democratic approval via referendum.

Answer 1

Crotty v An Taoiseach

Question 2

• ratification of the European Stability Mechanism (ESM) Treaty was such a momentous decision on the part of the Government that, following Crotty, it required approval by a referendum
• involved a potential liability of up to €11 billion- securing the stability of the Eurozone
• the fund could be distributed by qualified majority - Ireland could potentially not be included
• regarded as the very exercise of sovereignty and not a restriction upon its exercise- did not include abdication of executive power but rather its exercise

Answer 2

Pringle v Government of Ireland

Question 3

• Section 3 of the European Communities Act 1972 enables a Minister to make regulations to implement Community law.
• HC: it was not necessitated - Minister breached Art 15.2
• SC: Section 3 is clearly a Henry VIII clause as it allows a Minister of State to amend primary legislation by regulation but it is neccesiated under Article 29.4 to be made by a minister

Answer 3

Meagher v Minister for Agriculture 1994

Question 4

• SC found that even though there was some choice open to the Minister, the principles and policies were to be found in European Law and consequently the making of the regulation was not an impermissible use of the Oireachtas legislative power.
• the Court clarified that the issue as to what was the constitutionally appropriate method of transposition – Act of the Oireachtas or statutory instrument – was entirely a matter of domestic law

Answer 4

Maher v Minister for Agriculture 2001

Question 5

• SC: majority held that Gov and Dáil could not ratify CETA under current law, if changes made to Arbitration Act 2010, it could be ratified without breaching law
• issue: special tribunal which could administer justice- not necessary for EU membership- Ratification of CETA would violate the State’s judicial (or juridical) sovereignty, by giving to a body outside the State functions that substantially replaced the Irish courts’
• A majority of the judges rejected the arguments that
  
  • the role of the CETA Joint Committee would violate Article 5 of the Constitution (3-4)
  • ratification of CETA would violate the legislative sovereignty of the State (2-5)
  • the only way in which CETA could be ratified in a constitutional manner would be by amending the Constitution to allow this

Answer 5

Costello v Ireland

Question 6

• the European (Common Fisheries Policy) (Point System) Regulations 2014 (SI 3 of 2014), were declared invalid - breached right to constitutional justice
• there were not invalid under Art 15.2 despite O´Sullivan arguing that the Minister overstepped

Answer 6

O’Sullivan v Sea Fisheries Protection Authority

Question 7

• The Oireachtas may validly empower a Minister to create an indictable offence when he or she is making regulations to give effect to EU law
• test is “objective necessity” to do so under EU law
• endorsed dicta in Delaney as well as restate principles established in NECI and Conway (no Art 5- no Hogan on Gearty)

Answer 7

Gearty v DPP