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Wednesday, May 26, 2010

Presumption of Compatiablity with European Lawa

European directives and regulations, and associated legislation, will be interpreted by the courts in accordance with Community law.

In Dowling v IrelandMurphy J accepted this principle of interpretation, although he did not apply it in that case. Dowling v Ireland concerned the application of Council Regulation 857/84 in regard to the payment of milk quotas. The plaintiff claimed that, on their literal interpretation, the regulations discriminated against farmers such as himself who had temporarily ceased and then resumed milk production. It was therefore argued that the regulations should be interpreted in accordance with the principle of equal treatment enshrined in EC law. Murphy J held, however, that the terms of the regulations were so clear that for the court to alter them so as to ensure equal treatment for the plaintiff would amount to amendment of the regulations, something which the court was not competent to do. He made an analogy with the presumption of constitutionality in the interpretation of Irish legislation as set out in East Donegal Co-operative Livestock Mart v Attorney General , to the effect that a provision could only be given a constitutional as opposed to an unconstitutional interpretation if both were open to the court on the wording, and that any straining of the terms of a statute so as to effectively substitute one provision for another would be to usurp the function of the legislature.

{Source: Irish Law Reform Commission]

The case was subsequently appealed to the Supreme Court which referred the question of the application of Article 3 a (1) to the European Court of Justice. The Court arrived at a similar conclusion to Murphy J in the High Court, and identified restrictions on the construction of legislative provisions in accordance with the principles of the Treaty of Rome .The court was not, it held, competent to construe a provision in accordance with the principle of equality, where that involved an interpretation of the provision which was contrary to its clear purpose as expressed in its terms. Where the aim and purpose of the provision was clearly contrary to the principle of equality, the only option open to the court was to declare the provision invalid. Thus whilst treaty principles could be used to fill in gaps in EU legislation, they could not alter its express purpose. The Court stated:

"There is no doubt that Community legislation is to be interpreted, so far as possible, in such a way that it is in conformity with general principles of Community law, including in particular the principle of equal treatment (which in the sphere of agriculture is also laid down by Article 40(3) EEC) and the principle of the protection of legitimate expectations. Thus, in interpreting Community legislation, the Court must presume that the legislator did not intend to flout such overriding principles of Community law. There are however limits as to how much interpretation can achieve. Beyond those limits, the Court has no choice but to declare the legislation invalid for breach of Community law; for the Court does not have any general power to amend or supplement legislation which would otherwise be invalid."

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