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Minister for Jobs, Enterprise and Innovation (Deputy Richard Bruton)

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Richard Bruton

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Snippet Contents:

As I stated in my reply to the Deputy’s question of 4 December 2012, one of the responses to the public consultation on the implementation of Articles 19 and 22 raised an issue that required my Department to seek legal advice from the Office of the Attorney General. My Department has received that advice. The matter at issue was whether early application of the Directive’s provisions was permissible having regard to the wording of the Directive’s transposition provision and the constitutional and legislative provisions governing the implementation of European Union legislation in Ireland. Article 28 (Transposition) of the Consumer Rights Directive requires Member States to adopt the laws or regulations necessary to comply with the Directive by 13 December 2013, and to apply those laws or regulations from 13 June 2014.
The legal advice available to me states largely that early application and enforcement of the directive by way of secondary legislation could be successfully challenged under domestic constitutional law. It noted among other things that Article 29.4.10 of the Constitution provides blanket constitutional immunity for all measures ‘necessitated’ by our membership of the European Union. In view of the wording of the transposition provision at Article 28 of the Directive, however, it was open to question whether the application of the Directive’s provisions prior to the date specified in the Directive could be said to be ‘necessitated’ by the obligations of European Union membership. While there was no obstacle to early adoption of the Directive’s provisions by means of statutory instrument, the application and enforcement of those provisions before June 2014 by secondary legislation could be successfully challenged in the courts.
Accordingly I have reluctantly decided not to proceed with the early implementation of these Articles. It would not be in the interest of consumer protection to have court proceedings arising from the enforcement of these Articles fail on a matter relating to the timing of that enforcement rather than on the substance of the case. Articles 19 and 22 will accordingly be given effect in Regulations to be enacted by December 2013 and to be applied from June 2014. These Regulations will also give effect to the other provisions of the Directive. My Department has drawn the European Commission’s attention to the difficulties caused by the particular form of wording used for the transposition provision at Article 28 of the Directive with a view to ensuring that a similar difficulty will not arise with future European Union consumer protection legislation.