Primacy of EU law has been a fact of life for decades
Richard Greene of Cóir has stated this is an important departure from the past and could mean a vote for same-sex marriage, abortion and a change in our tax laws. Mr Greene is reducing the Lisbon debate to an absurdity and he is wrong on all counts.
The primacy of EU law was established by the European Court of Justice long before Ireland joined the European Community. In two landmark judgments the principle of primacy of EU law was clearly established by the court and has been accepted by all member states since that time. In the Van Gend and Loos case in 1963, the court held that EU law had direct effect in national legal systems.
In the case of Costa v Enel, 1964, the court held that the law stemming from the Treaty of Rome could not be overridden by national law without the legal basis of the community itself being called into question.
This is what we signed up to when we joined the European Community and is reflected in the amendment to our constitution passed by a referendum in 1972. This provided that “no provision of the constitution invalidates laws enacted … by the State necessitated by the obligations of membership of the Communities or prevents laws enacted … by the Communities … from having the force of law in the State”.
It is absurd to suggest that the primacy of EU law is something new and to call in question that principle after 35 years of EU membership. The declaration in the Lisbon Treaty on primacy, to which Mr Greene refers, merely restates the legal position which has prevailed for about 45 years.
Based on what is clearly a false premise that the primacy of EU law is something new, Mr Greene puts forward three particular arguments to the effect that voting for the Lisbon Treaty, which incorporates the charter of fundamental rights, could mean a vote for same-sex marriage, abortion or changes in our taxation laws. None of these arguments is valid.
The charter of fundamental rights (article 9) states that “the right to marry and the right to found a family shall be guaranteed in accordance with national laws governing the exercise of these rights”.
As the explanation of this article, also part of the Lisbon Treaty, states, “this article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex”. The issue of same-sex marriage is therefore a matter for national law, not European law. Furthermore, any legislation adopted in EU law on any aspect of family law must be adopted by unanimity, therefore giving Ireland a veto.
To suggest, as Mr Greene does, that the European Court of Justice could rule that there is a legal right to abortion is quite simply wrong given the express wording of the Lisbon Treaty. It provides in a protocol that “nothing in the treaty of the EU, or treaty on the functioning of the union, shall affect the application in Ireland on Article 40.3.3 of the constitution of Ireland”.
That is the article in our constitution in which the State acknowledges the right to life of the unborn and guarantees to respect, defend and vindicate that right. The European Court of Justice cannot go against the express wording of the EU treaties and cannot therefore interfere with the provisions of the Irish constitution on abortion.
Mr Greene suggests that the European Court could interpret Article 113 of the treaty in such a manner as to oblige Ireland to change its tax laws on grounds of distortion of competition. The court has already ruled on the issue of taxation and competition. In the case of Cadbury Schweppes, 2004, the advocate general stated that “in the absence of community harmonisation, it must be accepted that there is competition between the tax regimes of the various member states”.
Harmonisation can only take place if Ireland agrees since it, like all other member states, has a veto in the taxation field. This is reaffirmed by the Lisbon Treaty.
Senator Eugene Regan SC
Brighton Ave
Monkstown
Co Dublin
