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.

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