A primer on Irish law and the EU

There are a number of sources of law in Ireland. They are in order of primacy

1. Bunreacht na hÉireann – The Irish Constitution, which has legal primacy
[EU Treaties specifically incorporated into Bunreacht na hÉireann or by The European Communities Act, 1972 (an Irish Statute)]
2. Irish Statute law (and pre-Independence statutes inherited from membership of the United Kingdom) – codified laws introduced by parliament
3. Common law (judgements in areas not covered by higher law sources that set clear precedents).

Update: This section has been updated – EU directives even if not implemented can have some legal force in relations between citizens / companies and the state.

EU directives can have some legal force in Ireland even if not implemented by the Irish government under Article 29.4.3 of the Constituition and s.2. The European Communities Act, 1972 (source The relationship between European Community law and national law …, Volume 2 By Andrew Oppenheimer, pg 338. From Tate & Robinson vs. Minster Social Welfare & AG – 1995). EU Directives are normally implemented by each member state internally however. That means that laws created by the EU normally become Irish law via a Bill introduced to the Oireachtas and voted on by Senators and TDs so that it can be become an Act on the Irish Statute books. The Oireachtas could repeal Statutes introduced to implement EU directives if they wanted to, but in the absence of other legal changes (and possibly international negogiations) the associated European Directives could still have some legal force in Ireland.

EU Regulations are directly applicable and become law throughout Europe once they are introduced in the same way as national law. These too derive their authority from amendments to the Irish Constituition.

Incidentally because of the aforementioned hierarchy, there is no such thing as a common law husband or wife in Ireland, as marriage is Constitutionally defined and protected.

Adds: Thanks to Denis Cooper and ‘Snail in a bottle’ for their input. If anybody wishes to clarify or contest any points raised, please do leave a comment..
The Twenty-eighth Amendment of the Constitution of Ireland Bill, 2009 introduces a number of new Articles to the Irish Constitution to facilitate the ratification of The Lisbon Treaty.

The proposed Article 24.4.6 states

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—
i. the said European Union or the European Atomic Energy Community, or by institutions thereof,
ii. the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or
iii. bodies competent under the treaties referred to in this section,
from having the force of law in the State.

Which is incredibly similar to the current Article 29.10

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

This article prevents laws introduced as an obligation of our membership of the EU from being challenged constitutionally. But it does not prevent the Oireachtas from repealing such laws, or even prevent the people from repealing that article of the Constitution (which would open up all laws introduced as a result of our EU membership to constitutional challenge). Why would we want to do such a thing? Because if we didn’t the courts would be clogged with Eurosceptics challenging every single statute introduced to support an EU directive at tax payers expense.


For the record the part of the Constitution and The European Communities Act, 1972 which can give legal force to European laws in Ireland are –

[Bunreacht na hÉireann]
The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). The State may ratify the Single European Act (signed on behalf of the Member States of the Communities at Luxembourg on the 17th day of February, 1986, and at the Hague on the 28th day of February, 1986).

[The European Communities Act, 1972]
2.—From the 1st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.

Repeal those and the whole basis for European law in Ireland (and our membership of the EU) is gone.

  • snail in a bottle

    “EU directives have no legal force in Ireland.”

    Nonsense. Do you have a law degree??

    Any first year law student could tell you about the direct effect of directives. Van Gend en loos? Grad? Ratti? Any of these cases ring a bell?

    Please stop peddling misinformation and confusing people since clearly you have not an iota of legal expertise. You might like to know that the unauthorised practise of law (i.e. the dispensation of legal advice by a non-lawyer) is an offence in Ireland.

  • Mack

    Snail in a bottle

    The above post is not legal advice, it’s a blog post for discussion on a matter we all vote on soon. There is tons of misinformation floating around about the impact of Lisbon on Irish law on Slugger and elsewhere. The purpose of the post was to clarify the technical details as to whether or not the Irish polity and legal system retains her primacy.

    Snail in a bottle, you seem to have a legal background, can you explain how Direct Effect works with respect to Ireland?

    My understanding was that direct effect in Ireland meant that if Ireland had not implemented the Directive by the deadline specified and you were adversely affected by this you could seek compensation? That is, that technically the Irish legal system retained it’s primacy. If you are arguing and can prove that the inverse is true, I’ll update the post accordingly..

    By the way, Slugger is hosted in the USA, this discussion is not taking place in Ireland.

  • Mack

    Other relevant questions

    1. If directives do become actual Irish law – how can they be repealed? Does that entail repealing The European Communities Act, 1972 ?

    2. If they become actual Irish law why does direct effect only apply between the state and individuals / companies and not between individuals/ companies and other entities?

    3. Why do we bother implementing Directives at all?

    http://www.irishtimes.com/newspaper/ireland/2009/0220/1224241489122.html

  • Mack

    You are right – EU directives can have legal force in Ireland by virtue of article article 29.4.3 of the Constituition and s.2. The European Communities Act, 1972. I’ll update the post accordingly. The thrust stays the same though – Directives have legal for because of the Irish Constituition and an Irish statute. Which to me implies that Ireland remains sovereign.

    Page 338 in this book –

    The relationship between European Community law and national law …, Volume 2 By Andrew Oppenheimer

    http://books.google.com/books?id=egwQxU-xc58C

  • Denis Cooper

    No, it’s Regulations which are “directly applicable”, automatically becoming the law throughout the whole of the EU.

    Directives are more general instructions, which need to be transposed into national law before they can take effect.

    Both are “legally binding”, but Regulations are immediately binding in both EU and domestic law, while Directives are only legally binding in EU law until they’ve been implemented in national law.

    Roughly speaking.

    http://eur-lex.europa.eu/en/droit_communautaire/droit_communautaire.htm#1.3.3

    “A regulation is directly applicable, which means that it creates law which takes immediate effect in all the Member States in the same way as a national instrument, without any further action on the part of the national authorities.”

    “A directive is binding on the Member States as to the result to be achieved but leaves them the choice of the form and method they adopt to realise the Community objectives within the framework of their internal legal order.”

    There are many more Regulations than Directives, which is one reason why just counting up laws to implement Directives gives a drastic under-estimate of the proportion of our laws which are now determined in Brussels.

    There are all also Decisions, also “legally binding”, and Recommendations and Opinions, which are not.

    Glad to see that you put the Irish Constitution where it belongs, at the top of the hierarchy; the EU Court of Justice wouldn’t agree with that while Ireland is in the EU but that’s just their pretension, which should have been batted down a long time ago.

  • Mack

    Snail in a bottle –

    Despite the tone, thanks for that 😉

    Hopefully getting close to describing the actual state of play now. If there is anything else, especially if it means the opposite thrust is true (that the EU is sovereign and is devolving authority to Ireland) – please don’t hestitate to post it up, and I’ll update the post.

  • Mack

    Cheers Denis!

    Another update to do so..

  • Mack

    Denis –

    On what grounds do EU Regulations become valid Irish law? Is there an article in the Constituition or/ and Irish Statute that gives them that authority?

  • Denis Cooper

    As I understand:

    From the EU end – ie, on the international plane – it’s Article 249 of the Treaty establishing the European Community, on pdf page 153 here:

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0001:0331:EN:pdf

    which runs:

    “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.

    A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

    A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

    A decision shall be binding in its entirety upon those to whom it is addressed.

    Recommendations and opinions shall have no binding force.”

    From the Irish end – ie, on the domestic plane – the Irish Constitution as amended allows the EU Regulations to be directly applicable as laid down in Article 249 TEC.

  • Mack

    Thanks Denis.

    I’m taking this to mean, that if we were to modify the Irish Constituition and any relevant Statutes EU laws would have no particular force in Ireland – regardless of how the EU felt about it? i.e. Ireland is sovereign and is not a region of a larger European state?

  • Dave

    Well, Mack, it seems you were given rather than gave the primer. 😉

    I hate to intrude upon a tragic car crash of a thread full of private grief, but let’s express the derogation of sovereinty and the right to repeal the derogation this way: even though you give your wife’s lover permission to live in your house, sleep in your bed, make love to your wife, determine which schools your children attend, tell you what part of your house you may put your bed in (probably the shed) and tell you what you will have for dinner, et al and etc, you can still claim to be the master of your household in that you can always reclaim your domestic sovereignty from the man that you have derogated it too if, of course, your wife agrees.

    In theory, you are repeal your derogation of national sovereignty (if you could not, you could not claim to be sovereign since the right of repeal is a core requirement of sovereignty). In that sense, you can claim to be sovereign even though you have derogated your sovereignty to the EU.

    The EU, incidently, does not operate your derogated sovereignty in accordance with your national interest (i.e. the ‘common good’ of the Irish people). The ‘national interest’ of Irish people is henceforth ignored and replaced with the ‘national interest of the legally engineered (but actually non-existent) European demos. You do not progress a national interest by this derogation: you declare it void. Here is what the Supreme Court said about surrender of sovereignty to the EU, the common good of the Irish nation, and how the common good of the Irish nation is dismantled and replaced with the common good of the EU. The more sovereignty you derogate, the less power you retain to progress the national interest; and the less you progress the national interest, the weaker your state becomes.

    Bunreacht na hÉireann establishes an independent, sovereign Irish state. It is (currently) the highest form of law in the land. Article 6, s. 1 declares that the source of authority in Ireland and of the fundamental law of the state is the people of Ireland:

    “All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”

    Their authority, however, does not exist independently of their constitution. In other words, the people are not a higher constitution or a higher court of appeal. This was done mainly to prevent any legal challenge to the disposal of the old constitution of the Irish Free State (which is why judges were required to declare that they would uphold the new constitution before they were allowed to hold office).

    Likewise, the Lisbon Treaty is a constitutional treaty that establishes the new European federal state. Now all treaties that derogate sovereignty are inserted into Bunreacht na hÉireann with a clause that is a declaration of the supremacy of EU law over the areas of Irish sovereignty that are to be derogated.

    All of the existed EU treaties are to be amalgatmated by the Lisbon treaty. What is profoundly significant about the ratification of this treaty and this declaration of the supremacy over Irish law is that another constitution is for the first time declared to have supremacy over the Irish constitution. In other words, another state is declared to have supremacy over the Irish state.

    “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.”

  • Dave

    [b]Continued[/b]

    The constitution that you are formally declaring to be the highest form of law in the land is the constitution of the new federal state. Your right to repeal the derogation of your sovereignty is now at the sole discretion of the third party to whom you have derogated it, and not with you (the Irish people). As I explained to you already:

    “EU law has primacy over national law. If Lisbon is ratified, the proposed EU constitution will become EU law and this constitution will take precedence over the Irish constitution. Who do you think gave primacy to EU law over national law? The ECJ (Costa v. ENEL). No national government ever agreed to it. It does not appear in any of the treaties but it is nonetheless the primary law. In fact, the supremacy of EU law is stated for the first time in an EU treaty in the Lisbon treaty. It is introduced in a special declaration (No.17) as non-binding (referring innocently to ”the well-settled case-law of the EU Court of Justice”), but the declaration actually refers to the already existing legally binding judgments which the Member States expressly acknowledge.

    I don’t know if I really need to explain to you what “No provision of this Constitution” means but if I do then it means exactly what it says on the tin (copyright Ronseal). In other words (if required): if the ECJ decides that any provision of the Irish constitution (any right stipulated therein, such as the right to amend the constitution) then it is declared void.

    You do not have the right to disagree with any such decision of the ECJ. It is final, and it is the applicable law. Now, at a stroke, you have been stripped of your fabled right to repeal that derogation of your sovereignty, haven’t you? Yes, you have; and there is absolutely nothing you can do about it because you have declared that the EU constitution has priority over your own constitution and that your sovereignty resides with the ECJ and not with you (the Irish people).

    For example, when the ECJ struck down a provision of the German constitution, what happened is that the national law was declared void. That simply meant that the German courts must ignore the national law.

    It very much means that Ireland becomes “a sub-state within a super-state” since, post Lisbon, its constitution becomes the ‘local’ law and EU constitution becomes “the highest form of law in the land.” You, as a people, may of course still devise any law that you wish – just so long as you do not devise any law that conflicts with your new supreme constitution.”

    And indeed:

    “The Irish people will retain the sole right to alter their constitution but their constitution will no longer retain its position as “the highest form of law in the land.” That means simply that the EU can render any provision of it void by, for example, introducing a conflicting provision which then takes priority over it. So, in effect, the Irish people can make any amendment they want but the EU can render any amendment they make void. Indeed, it can also void their right to amend their constitution.”

    Supremacy does exactly what it says on the tin: you are not the supreme authority anymore, and the final say in your affairs resides with the supreme authority.

  • Mack

    Dave –

    I think you are missing the point, EU law only has authority in Irish law because it is authority is derogated from Irish law.

    Who do you think gave primacy to EU law over national law? The ECJ (Costa v. ENEL). No national government ever agreed to it.

    But Irish law delegated the authority to EU institutions to do that.

    If you take the correction I made as a case in point (which incidentally should affect only a miniscule amount of law in Ireland). The technical details of how Europe delegates authority to itself is of secondary importance to how Ireland delegates authority to Europe in determining who is the sovereign power. You can read the case on Google books at the link provided (starting around page 330). EU Directives can have some legal force in Ireland because of Irish law (the constituition and a statute).

    The most salient comparison for me is Northern Ireland’s membership of the UK. NI is not sovereign, the assembly can’t repeal the government of Ireland act. But Ireland does remain sovereign. By repealing laws or modifying the constitution we free ourselves of European influence if we wish. If you think that is incorrect and can prove it – I’ll update the thread (and probably change my view of Europe). But as of now, I still haven’t seen anything that says the EU is the sovereign authority and not Ireland.

  • Dave

    Mack, I don’t think that anyone stated that a mischievous leprechaun inserted the 3rd, 10th, 11th, 18th, and 26th amendments into Bunreacht na hÉireann. Most people, I think, are fully aware that the Irish people (and not said mischievous leprechauns) amend the constitution. They are probably also aware of Article 29 of the Irish constitution. I think the point you are trying to make is that Ireland operates a common law dualist legal system for the incorporation of an international agreement into domestic law – as opposed to a monist system where an international agreement may take supremacy over conflicting domestic law. Treaty actions such as signature, ratification or accession are performed on the authority of the government with referendum consent only being required where sovereignty is derogated. However, international agreements so not have to be incorporated into domestic law to be binding on the State.

    Nor, indeed, has anyone stated that the Irish people cannot amend their constitution to revoke the treaties they have consented that their state should be bound by. They presently – under domestic law – have the right to repeal the various derogations of their sovereignty by that means. They do not have the right under international law to do that, however, since (as was pointed out in the Crotty judgement of the Supreme Court) they have given away their sovereignty to third parties via various treaties that do not contain any redemptive clause. It is assumed that the third party would allow them to reclaim their sovereignty, but that has never been tested. At any rate, the Irish constitution is presently the highest form of law in the land so the Irish people can amend it to revoke the treaties and the Irish courts will enforce that. What can the EU do? Send in the tanks? Hardly.

    The point that you repeatedly miss (despite its irrefutable simplicity) is that the Irish constitution will no longer be the highest form of law in the land if we approve the creation of a federal state with a constitution that we declare has supremacy over the Irish constitution. In that instance, if the EU decides at some future that we cannot reclaim our national sovereignty (for whatever reason it invents), then the Irish courts will be obliged to enforce that ruling. Do you still not grasp the implication of that? It means that you have lost your right to repeal your derogation of sovereignty. Your sovereignty resides with the ECJ which can render your right to amend your constitution void by a decision which has the status of instant Irish law. How will you revoke the treaties then, kid?

    How likely is that to happen? Who knows! Probably not very likely, but it is nonetheless possible. In that instance, you cannot claim that you are sovereign even though you mean sovereign only in the hollowed-out sense that you have the right to repeal the sovereignty that you have given away. As I have already explained to you: the right of repeal is a core requirement of sovereignty. Your sovereignty becomes a purely theoretical concept.

    At any rate, it is not in dispute that Irish constitution becomes subordinate to another constitution, and that the Irish state becomes a subordinate region of another state (well, not by anyone with no need to lie in order to proffer a treasonous Europhiliac agenda).

  • Dave

    Mack, the point is perhaps obscured in the hypothetical example (since government withdraws from or abrogates a treaty), but the points remains that your constitution is becomes subordinate to another constitution, your state becomes subordinate to another state, and that your Supreme Court becomes subordinate to another court. I don’t think it likely that any of these will conspire to deprive you of your right to repeal the national law that derogates your sovereignty but it is theoretically possible. In that instance, even the shambolic and degraded claim of sovereignty (i.e. that you can always reclaim what you have given away) is dubious.

    No less a legal scholar (I’m an engineer/architect not a lawyer) than Lord Norton acknowledges that there is some doubt that even the present British constitutional structures (which don’t contain any explicit declaration of the supremacy of the EU’s constitution) allow for withdrawal from the EU: “Though it still appears to be the case that most jurists accept that if Parliament repealed the European Communities Act 1972, the courts would enforce that, there are some who now challenge this assumption.”

    With a self-amending treaty (that pre-approves all further derogations of Irish sovereignty without requiring referendums) and a biased court that has a binding obligation to promote “ever closer union” (the only logical outworking of which is unity) by systematically undermining the sovereignty of Member States, it is a only a fool or a europhile who would vote Yes. The europhiles, of course, never intend to exit. The fool may wish to do so when he realises his mistake. 😉

  • Mack

    Dave –

    In that instance, if the EU decides at some future that we cannot reclaim our national sovereignty (for whatever reason it invents), then the Irish courts will be obliged to enforce that ruling.

    Exactly. The question is can the EU do that? Can they do it now? If not, can they do it under Lisbon? If the constituition retains it’s primacy and authority is derogated to the EU, is this possible?

    It had crossed my mind that the Article dealing with leaving the EU may make it illegal to hold a referendum that would repeal the derogation of authority to the EU without first meeting the terms of the article. Or even given the above about direct effect could the EU issue a Directive preventing such referenda in Ireland. But I don’t know the answers to those questions (like you I’ve no legal background). But at least we’re debating on the same page now, as far as I can see all this stems at it’s source from Irish law (there are articles in the constituition about international law so I suppose it’s force derives from there too). I accept there is the possibility that in their interpretation they may permanently lock us into some of these arrangements. If that is true (or even a possibility) it’s a killer argument for renogigation (incl. rejection of Lisbon) or making an attempt at withdrawal. But as I haven’t heard that argument articulated, I don’t suppose it is the case. It certainly looks like we could just modify the parts of the constitution that derogate authority..