Article 29.6 of the Irish Constitution as amended by the Lisbon Treaty states that: 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 …, or prevents laws enacted, acts done or measures adopted by: the said European Union … institutions thereof, the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or bodies competent under the treaties referred to in this section, from having the force of law in the State.
The ‘doctrine of supremacy’, developed by the EU Court (ECJ) in the seminal case of Costa v ENEL established EU laws as having primacy over domestic law of the Member-States thereby rendering as non-applicable national law that was deemed to infringe EU Law. Although the ECJ has clarified that this extends to domestic constitutional law, this claim of authority has not been welcomed in its entirety in all of the Member-States.
This issue is encapsulated in the so called ‘kompetenz-kompetenz’ debate, prompted by the German Constitutional court. According to the Member-States, they retain the ultimate authority to designate which law takes precedence and most importantly, to decide the limits of EU competence. This gives rise to a fundamental dichotomy between the position claimed by Union law, and that of the Member-States.
Long recognised as perhaps the most prolifically integrationist of the EU institutions, the Court of Justice (CJEU) has been pushing the legal boundaries of EU law since its inception. The Court used the supranational (federal) aspects of the founding treaties to establish EU legal order as a new one with direct legal effects within the Member States. In Van Gend en Loos, the Court held that EU law was capable of being directly applied in the Member States. Individuals therefore could rely on EU law to sanction their actions as upholding the law, even if those actions were contrary to domestic law.
This position was subsequently expanded by the Court in its decision relating to Supremacy in Costa v ENEL. The Court, in a seriously federalising decision unequivocally found that EU law had a higher legal status that than of national law. The central rationale of the Court was that in order for EU law to be given the same uniform application across the Member State, it would be incongruous to place the power of interpretation with the Courts of the Member States. They would most likely reach different conclusions, thus negating any attempt at one single EU law having the same effect in the Member States. In its subsequent Simmenthal judgment, the Court reiterated in strong terms that Supremacy was to be guaranteed against national constitutional law.
The Irish Constitution has been conceived as guaranteeing certain implied or natural rights. This has led to the development within Constitution of rights guaranteed to citizens that are not outlined in the arrangement of the Constitution itself. Their existence is ‘inferred’ because of the nature of the Constitution itself, creating a gap in the relationship between Irish Constitutional law and the law of the EU.
There is therefore a divergence between those that argue that in accepting the Third Amendment to the Constitution and inserting Article 29 to the Constitution that Ireland had unambiguously accepted the legal obligations of membership up to and including supremacy of EU law, and those who suggest that similar problems such as those suggested by the German Solange I decision are capable of surfacing within the Irish jurisdiction.
The question as to whether a potential conflict exists between the Irish Constitution and EU law would therefore appear to rest on which conception of the Irish Constitution is accepted. Former Chief Justice of the Supreme Court, O’Higgins, summed it up nicely: ‘fears will be raised as to the possible conflict between a philosophy of legal positivism [an approach that would favour the position of the ECJ] and the concept of natural rights founded on natural law.’
However, it can be said that EU law gets its authority from the fact that the Irish Constitution gives it this authority so it is up to the Irish Courts to decide the scope of the parameters within which the EU governs. So Irish law does not categorically accept supremacy of EU law to the extent to which it has been outlined by the ECJ. But EU law certainly has precedence over ordinary law and that, assisted by a Europhile judiciary, in many situations the effect of Article 29 of the Constitution will effectively override a Constitutional provision that is contrary to an EU law rule.
While there is an unresolved conflict between the two positions it is clear that the Irish Courts are not averse to adapting a position that is more in correspondence with that of the ECJ and in doing so reflects the aspirations of an Irish elite, happy to surrender sovereignty to a federalising EU Court.
- Preface to M. Reid, The Impact of European Community Law on Irish Constitutional Law, (Dublin: Irish Centre for European Law, 1991)