Article 29.4.3 and the Meaning of Necessity
![handle is hein.journals/irishslr2 and id is 62 raw text is: ARTICLE 29.4.3 AND THE MEANING OF 'NECESSITY'
By Anthony Whelan1
PART I: INTRODUCTION
Article 29.4.3 of the Constitution (the Third Amendment) permits the
State to become a member of the European Communities, and goes on
to state that [n]o provision of this Constitution invalidates laws
enacted, acts done or measures adopted by the State necessitated by the
obligations of membership of the Communities. It is a serious step
effectively to suspend the application of the Constitution and its various
guarantees to what has become the vast and sprawling substance of
Community law.2 It is a step which the courts have been reluctant to
take in other countries, whose constitutions do not contain so express
a derogation,3 and one which it is suggested the Irish courts should
approach with caution. In particular, the courts should take care to
adopt a definition of'necessity' which, on the one hand, does not stymie
needlessly the reception into Irish law of Community measures, but
which, on the other, does not restrictneedlessly the scope of application
of the Constitution. So far, the courts have been diligent in seeking just
such a balance, but their efforts have not always been consistent or
convincing. I propose in this article to examine the way in which EC
directives are implemented in Irish law, and to address a difficult and
perennial question: given that Member States are given a choice of
form and methods in implementing directives, but are nonetheless
obliged to implement them in some appropriate fashion, do Irish
implementing measures benefit from the immunity conferred on
measures necessitated by the obligations of membership of the
Communities?
What laws, acts or measures are necessitated by membership of the
Communities? Quite a strict test is suggested by the decision of the
Supreme Court in Crotty v an Taoiseach.4 Article 33(1) of the Single
European Act provided that it would only come into force once all
Member States had ratified itin accordance with their own constitutional](ViewImageLocal?handle=hein.journals/irishslr2&div=9&collection=journals&method=preview&ext=.png&size=3)
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Article 29.4.3 and the Meaning of Necessity
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