The Meagher Case and the Executive Implementation of European Directives in Ireland

Publication Date01 Jun 1995
AuthorGerard Hogan
DOI10.1177/1023263X9500200205
SubjectArticle
Gerard Hogan.'
The Meagher Case and the Executive Implementation of
European Directives in Ireland
§1. Introduction
The
Irish record with regard to the implementation
of
ED directives is a relatively good
one. This record is, however, achieved at a price, since most directives are imple-
mented by ministerial order under s.3 of the European Communities Act, 1972. In this
note, which describes this executive method
of
implementation, it is hoped to draw
attention to what is an important aspect
of
the democratic deficit, namely, the absence
of
any proper or effective parliamentary scrutiny in Ireland of the vast majority of
national measures giving effect to such directives.
There are three methods by which such directives have been transposed into Irish law.
The
first is by means
of
ordinary
primary
legislation by Act
of
Parliament
('Oireachtas'). I
The
second - and far and away the most commonly invoked method -
is by means of statutory instrument (a form
of
secondary legislation) which is usually
made by a Government Minister under the European Communities Act, 1972. The third
procedure - that
of
implementation by administrative circular - has now fallen into
disuse after the Irish High Court ruled that it was not an appropriate method
of
imple-
menting EC Directives. 2
*
1.
2.
174
Law School. Trinity College. Dublin; Barrister.
The
Oireachtas
is the name
of
the Irish Parliament. It consists of a lower House (Dai!) and an upper
House (Senate). together with the President: see Kelly, The Irish
Constitution
(Butterworths, 1994) at
102-148.
Brownev. An Bord
Pleanala
[1991) 2 Irish Reports 209. The Court applied a series of decisions of
the
Court
of Justice condemning the use of administrative circulars as a means of implementing
directives: see
e.g.
the comments of the Court in
Case
145/82
Commission
v. Italy [1983] ECR 711
to the effect that
'mere
administrative practices, which by their nature may be altered at the whim of
the authorities and lack the appropriate publicity cannot be regarded as a valid fulfilment of the obliga-
tions imposed by Article 189 of the Treaty on
Member
States to whicb the directives are addressed.'
MJ 2 (1995)

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