Shay Brennan Probes Legal Risks of Trade Ban in Bill

Thank you, Cahirloch, and thank you to our witnesses for kindly joining us. My apologies, I have been in and out, so I didn't get to hear you read your statements into the record, but I did read them all beforehand. Now, one thing that strikes me, and, you know, as a non-legal person, it seems to me, and correct me if I'm wrong, that Professor Butler is saying that the bill is at risk of legal action if we include even trade in it, and then you're saying that we're at risk of legal action if we don't include services, and then, of course, Professors Koutrakis and Tredimis are saying we're at no real risk of legal action for including trade and services. You can understand how I'm trying to deal with several different opinions here, and I'm not trying to open a debate by any means, but what I will do, because Professor Butler is possibly the most contrarian to what I've been hearing to date, maybe, Professor Butler, I might focus my questioning on yourself, if that's okay. I have three questions for you. The first one, actually, just before I go into the questions, because I've been in and out, if any of my colleagues have asked a question that I've missed, I don't want to waste your time, so just indicate that, and I can pick up the answer from the video recording later on. But do you think it's enforceable, this bill is enforceable, given your comments on the free circulation of goods in the European Union? Thank you, Deputy, for the question. That question has not been dealt with by your colleagues on the committee. As far as, I mean, the general scheme of the bill, to be quite frank, as we all know and as we've all read, is extremely short, so we don't know exactly what the ins and outs of it would be. I mean, one thing that the committee could consider in its report that it's going to provide to government in the context of drafting the fuller bill that will be introduced later in the year is that if it wants to achieve the objective of prohibiting the goods entering into the state, it will have to consider how it does so with respect to direct imports and indirect imports. And indirect imports are ones that I mentioned already, are ones that have been lawfully imported into the EU, into another EU member state first market there, and then benefit from free circulation into Ireland. As I understand the bill, it's only going to be directed at direct imports, not indirect imports. So if the state wants to achieve a blanket ban unilaterally, it will have to consider that further. Okay, that sounds like an important point, and perhaps one the committee should include in our recommendations. A second question, and I missed some of Professor Tredamus' comments on this, but the Confederation Paysan, so you seem to rely on that prior case law in your interpretation, and that seems to be at odds with what Professor Tredamus was saying as I was leaving. Again, without opening a debate, could you maybe elaborate further on why you think that's important? Sure. I should add that the Paysan case is extremely technical, but some factual elements that Professor Tredamus pointed out I should add here. I mean, here it was a case of France implicitly not acting, and we don't know the reasons for why France did not prohibit the import of the goods. I mean, there it was about alleged incorrect labelling of goods, but the state did not act in that regard either. For one, it did not believe the French Agricultural Union, whether their claims were valid, or we can also implicitly assume here that the French state took it upon itself. They say, okay, well, it's an external trade matter, EU exclusive competence, France does not have the competence to legislate there. That is perhaps the reasoning why I pull in, why you cannot totally exclude the relevance of that case. Also because in that judgment, and I'm doing this from memory now, I think it's paragraph 53 of that judgment, also talks about the relevance of Article 24 of the import regulation, which the court said in that case could not be invoked. Okay. I appreciate that. Finally, Professor Butler, maybe you could tell us about the, I find this very interesting, the discriminatory aspect of not extending the bill to other occupied territories. I suppose this is more of an issue of international economic law than one of pure EU law, but normally there's an urd omnes obligation here in the sense that if you're going to discriminate on the grounds of public policy exceptions as regards to one-third state, you might have to apply to all occupied territories. I understand that is much more complex to do in practice, but there could be a rising obligations or EU law there that I've not considered fully in the opinion here today, so I won't comment further. But just to say that choosing one occupied territory or one specific international situation and ignoring others could potentially raise problems, but I suppose that's not the main focus of what we're discussing here today. We're mainly discussing the lawfulness about the specific issue of goods and this third state. Okay, and I appreciate you don't want to go too much into it. When you say it could raise a problem, that's something ancillary that it's not the main point to worry about here. I mean, Deputy, the reason why this bill was raised in the last all on Shannon and why the government is now considering this here and the reason why there's extensive prelegative scrutiny on this bill with the sheer number of submissions that the Kearlach raised, I mean, these issues are absolutely not straightforward. There's many different angles and approaches that which all of us could come with about how to encompass this bill. And I suppose the purpose of today and the purpose of the report is to feed as many of these different perspectives into the eventual bill. And of course, the initiated bill by the Minister that's launched will not be the end product per se. There are plenty of opportunities in both houses to bring forward amendments that I'm sure will be brought to the attention of the committee from different perspectives in this regard. OK, and finally, I don't expect an answer to this one now, but if we do get another round of questioning, I would like to ask all of the witnesses, because you made a very good point about needing to include the indirect importation. If any... Just to clarify, definitely, I only said if that's the... It's not my... If that's the intention, of course. If that's the intention of the Minister and the government. Yes, of course, of course. I'm probably going to ask if another opportunity arises, what other particular clauses or items perhaps that, you know, we should make sure, if we want to think that way, that we get them included. And like I said, if I get another round, I'll come back to that. But not for that. Five seconds, if I make it here. Look, I mean, the obvious way to that would be to invite the revenue commissioners in to provide input on what they do about handling goods that are indirectly imported to the state and what potential checks might be applied to them. That's how they do it in practice. Okay, thank you. The next...