Professor Graham Butler:

I appreciate the committee's invitation to appear before it today. It is an invitation that I did not solicit but was happy to accept. I take no political interest in or position on the underlying substantive issues here beyond those that are strictly legal. My contribution today will be one solely focused on matters of EU law. My analysis is based my work as a professor of law, as an academic specialising in EU constitutional law, EU internal market law and EU external relations law. In coming to my remarks today, I have considered EU primary law, EU secondary law, the case law of the Court of Justice of the European Union and the general scheme of the Bill proposed by the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Simon Harris.

To make best use of today’s sitting, I have prepared an opinion for the committee, which I circulated to the committee's secretariat yesterday and that I hope has been forwarded to members. It is on that opinion that the following short remarks are based.

In good academic tradition, I take a perhaps slightly different view from previous speakers, and perhaps many committee members' position as well as the intentions of the Government with the proposed Bill. I come to that with the hope of providing some robust arguments that might provide a different perspective.

As the committee is aware from the other witnesses and the other hearings it has held thus far as part of this pre-legislative scrutiny, the core issue is the common commercial policy, CCP, that is, its external trade.

There is no doubt this is an area of exclusive competence of the European Union. Therefore member states are prohibited from unilaterally regulating trade with third states, unless expressly authorised to do so. As Professor Tridimas pointed out at the start, it is provided for in the general rule in Article 1(2) of the Basic Import Regulation of 2015 that quantitative restrictions should not be placed on the import or export of such goods. The proposed Bill seeks to ban imports from a specific third state, which would amount to a quantitative restriction and would therefore contravene this general rule of EU law.

That said, there is nothing like a rule in EU law without some potential exceptions. There is a narrow potential exception in Article 24(2) of that regulation, giving the possibility to member states to enact national measures on grounds of public policy among others, which we will call the potential exception to the general rule. As pointed out by previous speakers, this exception must be interpreted strictly and applied proportionately.

The case law on public policy exceptions mainly comes on the basis of intra-EU trade restrictions, but the court has generally set and maintained a high bar for member states to be able to invoke that exception. For the purposes at hand, we will say that the public policy exception is to be understood on an intra-EU basis and an extra-EU basis in a somewhat similar fashion. Without going through all the case law, which I have done in the opinion, the most up-to-date and contemporary position of the European Court of Justice so far is in the Confédération paysanne case, Case C-399/22, and the judgment of the court therein.

The proposed Bill refers to obligations the State has under public international law, including not least the 2024 advisory opinion of the ICJ. As the previous speaker mentioned, other judgments of the ICJ are due to come. However, it should be added that the European Court of Justice has consistently held that for EU member states, obligations under EU law have primacy over conflicting obligations of EU member states under public international law. By enacting and commencing the proposed Bill, the State could be erroneously placing its obligations under public international law ahead of those it has under EU law. After all, EU law has primacy over conflicting obligations.

Moreover, if the Bill were enacted and commenced, its enforceability could be undermined by the principle of free circulation of goods within the EU because, based on the general scheme, the Bill is only directed at goods that are directly imported into the State from the specific third country. Goods from third states lawfully imported into an EU member state other than Ireland, marketed there and placed into free circulation thereafter within the EU cannot be prohibited on their import into Ireland by Irish authorities, in this case the Revenue Commissioners. Given the EU’s exclusive competence over external trade and the functioning of the EU customs union of which Ireland is part, there is an obvious enforceability problem here that the proposed Bill does not consider - the indirect imports of the goods it seeks to prohibit.

As a previous speaker pointed out, Article 2(1) states that when the treaties confer exclusive competence, member states may only do so if so empowered by the Union. It is my understanding that the State has not sought, and has not received, express authorisation from the EU to adopt the proposed Bill. That is separate from any notification requirements the State may have to inform the Commission. Mere notification to the Commission does not amount to authorisation in itself.

Of course, there are litigation risks as mentioned by the previous speaker in the context of the State not acting by having a more all-encompassing Bill to include services as well as trade. If the State were to enact the proposed Bill on the basis of the general scheme, obvious litigation risks arise for the State. First and foremost, infringement proceedings could be brought against the State by the Commission or other member states under Articles 258 and 259 of the TFEU. As I mention in the opinion, we have prior examples of the State being brought to court in the context of infringement proceedings for trying to regulate the import of goods from third states into the state. More likely is the possibility for litigation to arise before Irish courts in the context of Customs preventing certain goods being imported into the State or other possible challenges to the lawfulness of the Act. It should be pointed out that on the basis of the case arising before the Irish courts, it is highly likely, and should be anticipated, that a reference for a preliminary ruling to the European Court of Justice could be made as regards the measures Ireland could take in this regard given that an Irish court is unable to make an authoritative interpretation in this regard.

As I note further in my opinion, the proposed Bill is prima facieincompatible with EU law. The case law as analysed provides no comfort for the view that the potential public policy exception is as wide as to provide for what the State is trying to do here. Therefore, it is most uncertain that the Bill in question would be lawful.

The substantive issue here is the State trying to pursue a specific policy objective. That does not justify the use of the public policy exception within EU law. In fact here is the level in which measures should be taken. The State is trying to go it alone here, undermining the common commercial policy. If the State wants to achieve a public policy objective by prohibiting the import of goods and or services, that competence must be exercised where the State has allocated that competence which is at the level of the EU.

I thank the Cathaoirleach and committee members for the invitation, and I look forward to the discussion ahead.