A Fond Embrace?

As with any relationship, significant anniversaries offer us an opportunity to take stock. Looking backwards allows us not only to appreciate how far we have come, but also, perhaps, to reflect on the direction in which we might be heading.

To date, upwards of 2,200 judgments of the Irish courts have considered EU or Community law in some form (this contribution uses the term “EU law” as a catch-all for both). It is easy to lose oneself in the sheer volume of case-law being handed down in increasingly complex and technical fields where EU law plays an important role. Added to that, the nature of the EU has, as we know, changed in rather fundamental respects over the past fifty years, spanning five Treaty amendments and expanding the acquis to now major fields that were nowhere foreseen in the original Treaty of Rome – think of environmental law, asylum and immigration law, data protection law, extradition law. Ireland’s own role in contributing to the development of EU law has also changed, not least because, post-Brexit, we are now the only fully common law jurisdiction within the EU.

Against this context, this short contribution reflects on the reception of EU law in the Irish courts since 1973. While it is impossible to do justice to the richness and variety of judicial approaches discernable over five decades of jurisprudence, it argues that three major themes can be identified in Irish courts’ approach to EU law to date. The first is openness: a willingness of courts, but also of legal practitioners, to engage with and invoke EU law, from almost the outset after accession. The second theme is confidence: Irish courts’ confidence in interpreting and applying EU law – and assessing when not to apply it – is increasingly striking, in particular over the past decade. The final theme is limits: looking back, one can discern certain potential constitutional limits on EU law, although these have never materialized in practice.

Openness

The openness of Irish courts to EU law, from early on, may in part be explained by the nature of the Irish Constitution. That provides, inter alia, that the sole and exclusive power of making laws for the State is vested in the Irish Parliament and that no other legislative authority has power to make laws for the State (present Article 15.2.1°). It also provides for a typically dualist approach to the reception of international law, namely, that no international agreement shall be part of the domestic law of the State save as may be determined by the Parliament (present Article 29.6). The Constitution was amended in 1972, following a referendum, to enable membership of the EEC, Euratom and the ECSC, in the following terms:

“No provision of the Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions therefore, from having the force of law in the State.” (emphasis added)

This amendment was followed by the enactment of the European Communities Act 1972 which provided, inter alia, that Community law “shall be part of the domestic law of the State” (section 2).

This clear and straightforward language sought to avoid any reluctance that might otherwise have been anticipated in applying Community law in Irish courts, given the otherwise dualist approach to international law foreseen by the Constitution. Added to this, Irish courts had, at the time of accession to the Communities, already developed a robust line of jurisprudence making clear that judicial review extended to assessing the compatibility of legislation with the Constitution. As a result, the concept of upholding rights conferred by a higher law in the face of inconsistent legislation was not, as such, novel.

All of this meant that Irish judges were, from the outset, rather comfortable with the potential implications of Community law as a matter of principle (in contrast to their brethren across the Irish Sea for instance, where, in the absence of a written constitution, matters were rather different). Writing in the early years after accession, for instance, one of Ireland’s most renowned Supreme Court judges, Brian Walsh, observed that most Irish judges had already accepted that, when applying Community law, they had “in effect ceased to be a national judge” and had become a Community judge. Indeed, it is striking how readily the doctrine of supremacy of Community law was recognised by Irish courts, with Finlay CJ confirming in the Supreme Court that the “decisions of the ECJ on the interpretation of the Treaty and on questions covering its implementation take precedence, in case of conflict, over the domestic law and the decisions of national courts of Member States” (Crotty v An Taoiseach).

Similarly, the Irish courts had no hesitation in granting an interlocutory injunction suspending the application of domestic legislation pending the outcome of a preliminary reference on its compatibility with Community law (Pesca Valentia). Again, one can compare the difficulties encountered in the House of Lords, which had wrestled with the fact that the English courts had no power to make interim injunctions restraining the enforcement of a statute, a problem ultimately resolved by the preliminary reference in the Factortame litigation. Further, the Irish Supreme Court has long recognised the “untrammeled discretion” of Irish judges to make a preliminary reference to the CJEU (Campus Oil (No. 2)). Nor did Irish judges have any difficulty as a matter of principle with the concept of Member State liability in damages for breach of Community law, with the Irish courts, quite remarkably, accepting this principle as a logical consequence of the State’s Treaty obligations some four months before the CJEU’s seminal ruling in the Francovich case.

While this openness to the fundamental precepts of Community law may seem obvious in retrospect, it is worth pausing to reflect on those constitutional conflicts that have never occurred before the Irish courts. The Irish courts have had, for instance, no Simmenthal or Frontini moment, concerning the question whether it is for national courts, or the CJEU, to decide whether or not supremacy is engaged; nor have they had a Solange moment, reserving to themselves the ultimate right to review national measures implementing EU law for compliance with national fundamental rights; neither have they had a Weiss moment, applying the doctrine of ultra vires to CJEU jurisprudence. This relative ease of reception is arguably due to the manner in which Community law was given constitutional recognition in Ireland from the very outset. There was simply no need for an Irish judge to consider whether or not to recognise any self-standing principle of supremacy of Community law, because Article 29.4.6 of the Irish Constitution required recognition as a matter of Irish constitutional law.

Against this, an examination of the case-law shows that, while Irish judges were generally notably open to Community law when it came before them, such cases were in reality relatively rare. Furthermore, this openness did not initially extend to frequent use of the preliminary reference mechanism. Thus, for the first three decades after accession, Ireland had the lowest rate of referral across Member States. Significantly, however, it was the Irish Supreme Court, rather than lower courts, that initially took the lead in referring matters to Luxembourg, particularly from the 2000s onward, influenced no doubt by the presence of a number of former EU judges on the Supreme Court (Dónal Barrington, Nial Fennelly, Fidelma Macken and John Murray). Again this may be contrasted with certain other Member States, where it has taken longer for apex courts to start making references. Moreover, in the past ten years, the data show that there has been an explosion in the numbers of preliminary references being made by the Irish courts. While 68 cases were referred in total in the first forty years after accession, in the ten years thereafter 84 references were made. Of these 84, 47 (i.e., almost 56%) were referred by the Irish Supreme Court, showing a remarkable level of engagement by Ireland’s court of last resort with the CJEU.

Confidence

Added to this, the years since 2010 have witnessed what may be viewed as a new era of engagement between the Irish courts with EU law. A significant number of cases have gone beyond the application of EU law, to seek actively to develop the substance of vital principles of EU law, via the preliminary reference procedure.

Perhaps the most obvious example of this phenomenon are the data protection and privacy cases referred by the Irish courts, which have given rise to seminal CJEU judgments such as Digital Rights Ireland, on the validity of the Data Retention Directive, Schrems I, on the validity of the Safe Harbour decision, Schrems II, on the validity of the Privacy Shield, and G.D., on data retention and serious crime. The fact that these cases have emanated from the Irish courts is in part a function of the system of jurisdiction of supervisory authorities instituted by the General Data Protection Regulation. Nevertheless, it has undoubtedly given a distinctively common law flavour to the references – enabling, for instance, a detailed adversarial hearing and subsequent judgment considering the content of relevant US privacy law prior to the reference in Schrems II, for instance.

Beyond data protection, Irish references have given rise to seminal CJEU judgments in, for instance, asylum and immigration law (for example, N.S. on the limits of the Dublin Regulation system in cases of systemic deficiencies in fundamental rights protection), European Arrest Warrant law (for example, L.M. on the interaction between the rule of law and the EAW system) and EU constitutional law (for example, Pringle on the validity of the European Stability Mechanism Treaty).

These are cases that have established ground-breaking principles that have implications across the EU, and beyond. Moreover, Irish courts at the highest level have continued to make references, and accept the CJEU’s ruling in response, even when they do not necessarily agree with the outcome. Recent examples might include the Workplace Relations Commission case, concerning the power of an administrative tribunal to set aside a legislative provision, and the recent Orlowski case, concerning the surrender of a suspect to Poland under the EAW system. In the latter case, the Supreme Court accepted and applied the CJEU’s ruling despite, it would seem, being uncomfortable with the idea that an applicant would have to provide specific evidence of lack of independence of the judges that would deal with his case in Poland, where the identity of those judges had not yet been decided.

Limits

The case-law also demonstrates, however, that there have been limits – and perhaps distinctively Irish limits – to the openness of the Irish courts to EU law. Writing in 1973, Brian Walsh predicted that, if there was one subject to which Irish judges would be particularly sensitive in applying Community law, it would be human rights.

And so it turned out to be. To date, the most extraordinary constitutional moment highlighting the limits of EU law before the Irish courts has indeed concerned competing rights, and in particular the interaction between the Treaty provisions on free movement of services and the (now repealed) constitutional provision protecting the right to life of the unborn (then Article 40.3.3). In SPUC v Grogan, the High Court (Carroll J) had refused to grant an interlocutory injunction prohibiting the distribution of information on abortion services in the UK, referring a question to the CJEU on whether a prohibition of such distribution was compatible with a woman’s right to travel to receive services in another Member State under Community law. On appeal of that refusal to the Supreme Court, Walsh J was clear that the CJEU’s answer “will have to be considered in the light of our own constitutional provisions.” In the last analysis, he ruled, only the Supreme Court could finally decide what the effects of the interaction of Article 40.3.3 and what is now Article 29.4.6 were. Constitutional crisis was ultimately averted by the fact that the CJEU did not answer the central question directly, holding that, on the facts of that particular case, the link between free distribution of leaflets providing information on abortion services and the free movement of services guaranteed by Community law was too remote. The Constitution was subsequently amended to specify that Article 40.3.3 did not limit freedom to travel to another State, and the Article was ultimately repealed in 2018 following a referendum.

Since Grogan, however, tensions of this nature have been rare, although the Supreme Court has recalled, considering the implications of the CJEU’s Melloni judgment, that if the CJEU were to require it to disapply long-established constitutional rights, this would require “careful consideration in appropriate case and indeed sensitive and respectful dialogue between national courts and the ECJ” (Balmer).

Conclusion

Over the past half century, the Irish courts’ approach to EU law has been characterised by openness, constructive engagement and, in recent years, a notable confidence in raising novel and difficult issues going to the core of the EU legal order. As with any healthy relationship, the dialogue has at times been reflective. Yet there is little doubt that this openness has enabled Irish courts to play a vital role not only in applying and enforcing EU law but in helping to develop its foundational principles – in EU fundamental rights law, EU constitutional law and beyond – with implications far beyond the Irish borders. Go maire sé – long may it continue.

This contribution is an excerpt from a paper given on the occasion of the Irish Society of European Law’s 20th Brian Walsh Annual Memorial Lecture, Dublin, 8 December 2022. A full version of the paper is forthcoming in the Irish Journal of European Law. Thanks to Sophie Tuffy for excellent research assistance.