Madam, - I read with some surprise the article on the recently-signed Constitutional Treaty by Dana Rosemary Scallon (Nov 1st), in which she mentions the article of that treaty concerning the primacy of EU law and goes on to raise a series of concerns about "the loss of primacy of our Constitution". What Ms Scallon omitted to mention was that this particular rule of Community law is now over 40 years old.
The doctrine of the primacy of Community law was expressly enunciated by the European Court of Justice as long ago as July 1964 in the case of Costa v. ENEI. It was later applied to a national constitution (the German Bundesverfassung) in the Internationale Handelsgesellschaft judgment handed down by the same court in 1970.
The primacy of Community law over national constitutions and laws had thus been asserted by the Court of Justice to form an important element of Community law long before the Irish people gave their approval to joining the then European Communities in 1973. This primacy has been a vital element in ensuring the uniform application of European standards throughout the territory of the member-states. It has been part of the law for decades and there seems no reason why it should cause any particular concern now, merely because the Constitutional Treaty puts the point in writing.
Ms Scallon also omitted any mention of the relevant provisions of domestic Irish law. Under section 2 of our own European Communities Act, 1972, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those communities were provided to be binding on the State and to be "part of the domestic law thereof under the conditions laid down in those treaties".
This provision has been interpreted by the Irish courts as involving acceptance by Ireland of the doctrine of the primacy of Community law since the judgement of Costello J in the 1978 case of Pigs and Bacon Commission v. McCarren.
Finally, no mention was made of the fact that our own Constitution provides - and has done so since Ireland joined the Communities in 1973 and then in appropriately amended form since the European Union came into existence in 1993 - that none of the Constitution's provisions is to prevent laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof from having the force of law in this State.
The relevant provision is now Article 29.4.10 of the Constitution - where it was put as the result of a constitutional referendum.
The loss of primacy of the Constitution might have been news 40 years ago when the doctrine was first proclaimed or even 31 years ago when Ireland joined the European Communities, but it certainly is not now. There is no reason that I can see to raise objections to the Constitutional Treaty on the basis of its assertion of the doctrine of primacy. - Yours, etc.,
Dr. GAVIN BARRETT, Lecturer in Law of the European Union, Faculty of Law, University College Dublin.