In Law as in Life?

On New Year’s Day in 2002, my late uncle, visiting us in Kerry at the time, walked to the local shop and came back with a pristine €5 note for everyone in the house. Spend it, keep it, do whatever you like with it; but this, he said, is history.

Ireland adopting the euro as its currency marked one of the most significant divergent choices in the history of British and Irish membership of the European Union.

The dense and complicated ties between the two states were otherwise reflected in so many ways across their EU membership profiles, from their coterminous application paths to shared exemptions from certain legal obligations. However, this contribution suggests that Ireland and the UK diverged in a critical respect as regards their approach to membership of the EU: not with respect to Article 2 of the Treaty on European Union – which underlines the shared values on which the Union is founded (respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities)– but in terms of how ensuring respect for these values compels the Member States and the Union to work together; to find solutions cooperatively when there might be disagreement or differing perspectives on certain questions.

To consider this point in more detail, we can return in the first instance to the exemptions that Ireland and the UK had negotiated with the Union, which were recognised in Protocols added to the EU Treaties. In particular, Protocols No 20 and No 21 concerned the decisions, first, to remain outside of the Schengen acquis and its framework of border control and, second, not to participate as a matter of course in the Union’s Area of Freedom, Security and Justice (AFSJ). At the same time, Article 2 of Protocol No 20 recognised the longstanding Common Travel Area between Ireland and the UK. Additionally, and representing a common pragmatism, the Schengen and AFSJ exemptions were designed as opt-outs that included the opportunity to opt-in for specific measures, also detailing applicable processes for that purpose.

Mostly, the provisions of these Protocols refer to ‘the United Kingdom and Ireland’ and ‘the United Kingdom or Ireland’ (note: the UK always comes first). Looking at them more closely, however, we find signals of something distinctive with respect to Ireland, especially in Protocol No 21 on the AFSJ.

Article 8 of that Protocol provides that ‘Ireland may notify the Council in writing that it no longer wishes to be covered by the terms of the Protocol. In that case, the normal treaty provisions will apply to Ireland’. There was no corresponding statement with respect to the UK.

Similarly, Article 9 establishes that, ‘[w]ith regard to Ireland, this Protocol shall not apply to Article 75 of the Treaty on the Functioning of the European Union’. Article 75 TFEU sets out EU competence ‘as regards preventing and combating terrorism and related activities’. More specifically, it enables the European Parliament and the Council, acting under the EU’s ordinary legislative procedure, to ‘define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities’.

Ireland also attached a separate Declaration as regards the opportunity to opt-in to AFSJ proposals and initiatives. It first affirmed its ‘commitment’ to the Union ‘as an area of freedom, security and justice’ and then continued:

• Accordingly, Ireland declares its firm intention to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union to the maximum extent it deems possible.
• Ireland will, in particular, participate to the maximum possible extent in measures in the field of police cooperation.
• Furthermore, Ireland recalls that in accordance with Article 8 of the Protocol it may notify the Council in writing that it no longer wishes to be covered by the terms of the Protocol. Ireland intends to review the operation of these arrangements within three years of the entry into force of the Treaty of Lisbon.

To date, Ireland does remain ‘covered’ by the terms of Protocol No 21. But Articles 8 and 9 of the Protocol as well as the Declaration that Ireland unilaterally attached to the EU Treaties suggest something more than a strike for some degree of positional independence.

Through their framing around values and their concurrent alertness to diversity and appreciation of collective response, these statements also capture something vital about the legal essence of EU membership. The 27 EU Member States are so profoundly different in so many, many ways: constitutionally, culturally, economically, geographically, linguistically, socially, politically. From a legal perspective, however, three qualities of EU membership can be highlighted.

First, notwithstanding their differences, Article 4(2) of the Treaty on European Union compels the EU to ‘respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.

In reality, of course, some Member States are necessarily more equal – more powerful – than others. However, the principle of the equality of the EU Member States is indispensable. It creates the conditions of mutual respect and aspiration from which not just membership but ownership of the European Union, as an infrastructure for closer cooperation and integration among the peoples of Europe, can further progress.

Second, adding substance to the EU membership starting point of equality before the Treaties, the Member States have agreed that, as expressed in Article 2 of the Treaty on European Union, ‘[t]he Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. Importantly, that statement is not one of ideals or rhetoric only.

In its recent case law, in the context of EU budget conditionality and respect for the rule of law, the Court of Justice first confirmed that respect for the values in Article 2 TEU is a ‘prerequisite for the accession to the European Union of any European State applying to become a member of the European Union’.

However, it then determined that ‘once a candidate State becomes a Member State, it joins a legal structure that is based on the fundamental premise that each Member State shares with all the other Member States, and recognizes that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded’.

Thus, for a continuing EU Member State, ‘compliance…with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State’ and ‘cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession’. Rather, the values expressed in Article 2 TEU ‘define the very identity of the European Union as a common legal order’. In consequence, the EU ‘must be able to defend those values, within the limits of its powers as laid down by the Treaties’.

The ‘common legal order’ of the EU to which the Court referred is distinctive. It is ‘based on the specific and essential characteristics of EU law, which stem from the very nature of EU law and the autonomy it enjoys in relation to the laws of the Member States and to international law’.

That idea bridges to the third legal feature of EU membership highlighted here: that the ‘essential characteristics’ of the EU’s common legal order both constitute and are constituted by, again in the words of the Court, a ‘structured network of principles, rules and mutually interdependent legal relations binding the EU and its Member States reciprocally and binding its Member States to each other’.

The autonomy of the EU legal order applies ‘with respect both to the law of the Member States and to international law’. Its ‘essential characteristics’ relate ‘in particular to the constitutional structure of the EU and the very nature of that law. EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves’. And the resulting legal interdependency – between the Union and its Member States, and between the Member States themselves – is further underpinned by the critical principles of mutual trust and sincere cooperation, which serve both functional and normative purposes in gluing the EU’s constitutional pieces together.

If the three elements identified above provide a legal template for membership of the EU, the key point for this contribution is that Ireland ‘gets’ this: it agrees to it, and sticks with it, and values it – in ways and to a degree that perhaps the UK never fully did.

The fact that the UK sought (and was granted) escape from the commitment in the EU Treaties to ‘the process of creating an ever closer union among the peoples of Europe’ as a pre-referendum commitment in February 2016 speaks volumes by way of example.

It has not been plain sailing for Ireland as an EU Member State. It has sometimes been frustrating. It has occasionally been humiliating. But Ireland’s commitment to its membership of the EU has, above all, been worthwhile and rewarding. Most fundamentally, it has shown a willingness to confront the challenges that it faces in concert with rather than in exception from its fellow Member States and the EU’s institutions.

The tensions that membership can provoke were clearly evident in the Supreme Court’s August 2022 ruling in the Orlowski case. In the context of serious concerns about the independence of the judiciary in Poland, the Irish courts have contributed to shaping the position of the Court of Justice as regards the execution of European arrest warrants through the cooperative mechanism for preliminary references provided for in Article 267 TFEU.

In the LM case, the Court of Justice affirmed that an executing court must ascertain both a systemic and an individual risk as regards the person concerned before refraining from surrendering that person to a requesting State. The Court of Justice rejected the Supreme Court’s continuing concerns about the appropriateness and efficacy of that test by Order in July 2022.

The Supreme Court’s dignified response managed, in turn, to convey its understandable unease yet acceptance of the obligations of EU membership, especially in the statement that ‘[t]he appellants have not been able to establish that in their cases the systemic deficiencies that have been identified in relation  to  the  appointment  of  judges  in  Poland  will  have  an  impact  specific  to  them, notwithstanding that it seems that there may not be an effective remedy to seek the removal of any judge in respect of whom there is a concern. That being so, and despite the concerns of this Court in relation to issues as to the rule of law in Poland, it seems that there is no alternative at this stage but to direct the surrender of the appellants to the issuing state’.

The Irish electorate’s rejection of the Lisbon Treaty ended not in rejection, too, of the process through which the revised Treaty was finally adopted or indeed Ireland’s membership of the EU altogether. It ended in the sort of political dialogue and self-reflection and agreed, legally captured compromise that exemplifies what it means to be interdependent, to cooperate sincerely, and to be open to the idea of being bound by extra-state law. It is hoped that similar processes might also confront the problems around execution of European arrest warrants in situations of non-independent judiciaries.

Overall, the deeper bonds of EU membership that grow from legal commitment were not created through the consistent and enduring support extended to Ireland during the process of negotiating Brexit. They were reflected through it. And they were also strengthened through it. That does not mean that it will always be plain sailing into the future. Ireland faces a number of difficult decisions as a continuing EU Member State, notably on its fiscal policy and its role in military cooperation.

But Ireland has committed, legally as much as in other ways, to its membership of the EU. And it is that decision, that approach, that represents perhaps the most significant point of divergence of all between the continuing and former EU memberships of Ireland and the UK respectively.

* I still have that €5 note.