Number Crunching EU Law and the Irish Legal Order

In this short piece, I will outline a few of the extremes of the Irish relationship with Europe that I have personally studied or encountered and its impact in my view. Many years ago, I wrote a dissertation on the relationship between EU law and the Irish legal order, on the unravelling dynamic since accession, focussing upon the preliminary reference data (see here). I felt it was a deserving topic precisely because there was so little interest as to the relationship between EU law and Ireland. Ireland was uniformly always excluded from major US and EU political science studies that have been iconic in shaping views on EU integration, generally on account of its size, its extreme results (ie very few, very limited engagement) and perhaps also – from my own perspective – its limited political salience as a small island generally following the UK with limited resources to litigate – which I felt was a good reason to work on it. I no longer work so much on this area as much but always view recent developments in practice with much interest – mainly because there are many developments that appear to evolve dramatically my findings and make it a rich source of study.

For the first 30 years of membership: Not so many references

In the 30 years of membership of the EU that I wrote about from 1973-2003 (in the early 2000s’), the preliminary reference mechanism provided for in ex Article 234 EC now Article 267 TFEU, I argued had performed a tremendous function in European legal integration despite the dearth of data. Yet the Irish judicial experience of European legal integration had been particularly remarkable and not in line with what one might expect. The total number of preliminary references from the Irish courts at 44 was comparably the lowest in all of the EU back at the time of the study, with the exception of certain states that recently joined the 1995 wave of accessions. My thinking then was to try to capture how the total number of preliminary references could not be seen as the measure of all things, being merely numerical. Agricultural law still notably dominated as the area of law most likely to be the subject matter of preliminary reference disputes and agricultural lobbies and farming-related organisations remained still notably the most litigious group eager to employ or test Community law in the Irish courts. Despite the fact that more and more areas of law are coming under EU law, the number of references overall made by the superior courts remained static, and indeed the rate of referral of references from some courts appeared to be in decline. Moreover, in general EU law appeared to arise only infrequently in Irish courts, and the rate of refusals of preliminary reference applications appeared to be significant. I concluded that the High Court remained the most active referring court generally, although it appeared to have gone into decline in this regard of late.

Having presented and published this work in various fora thereafter, I felt there was a lot of interest in the numerical outcomes and also surprise generally at the extremities that the data showed up. Beyond the data and the caselaw and legal research narrative, I discerned from informal interviews limited interest in EU law related litigation across Irish government departments on account of limited staff with salient high level political, technical and legal knowledge to synthesise an Irish position and to participate in preliminary reference proceedings. The UK was and remained the key focus point for the academic study of litigation generally in EU law then as to common law countries and there was limited capacity to draw attention to Ireland’s problems- arguably Brexit dramatically intervened in these debates. There was then also an extremely skeletal presence for Ireland in Luxembourg with capacity to intervene in EU litigation, up until very recent times. There was perhaps also a relatively high level of disinterest in EU law amongst practitioners in Ireland except for in highly specialist fields until more recent times. Very few members of the Irish judiciary then had sat on the CJEU bench. My conclusions were thus certainly despondent to a high degree- but luckily many issues identified by me rapidly shifted.

A dramatic shift in recent preliminary reference stats

Fast forward several years later and the picture is radically different. While only 44 cases were referred in its first 30 years of membership (1973- 2003), 45 references were made in the six years between 2013-2018, attracting much further attention: see Krommendijk and Fahey. A significant wave of Irish judges appointed to the CJEU and General Court and their return to the bench in Ireland often had a positive effect upon the EUY law expertise of Irish Supreme Court, with up to half of the Irish Supreme Court at one time recently having sat on the Luxembourg Court. (It is indicated by many- informally- post-Brexit that Irish lawyers now feature regularly (sources indicate ‘weekly’) before the CJEU on account of rule changes as to professional representation (although official data on this is hard to obtain and confirm at this juncture.) The last year of published data at the time of writing of 838 CJEU cases in 2021, 569 preliminary references does not feature Ireland in the top 5 of referring courts but Irish Courts are commonly understood now to refer 10-12 cases per year consistently. Environmental law has been a source of litigation, partly linked to Ireland’s very poor track record in implementing EU environmental law- also the subject itself of many infringement proceedings- but is not the subject of the most recent year of litigation, with many private law fields dominating instead, indicating considerable economic and legal diversification of the Irish economy and its legal order.

Direct actions and Ireland

There is another way to see the context of this litigation history differently: Ireland had been an early and successful litigator in somewhat controversial circumstances, in a direct action. Subsequently, Ireland did not litigate much against the Council directly in its several decades of membership, perhaps exposing its voting patterns at the Council and its accord politically with much EU law and policy-making to date. A rare example was Case C-301/06 Ireland v Parliament and Council to annul a directive (data retention) on legal base grounds, litigated by the current Irish Advocate General. Instead, Ireland has a wealth of litigation initiated against the Commission, of at least 200 cases at the time of writing- and a lengthy history of intervening in support of UK-led or UK-related proceedings.

The first Irish direct action against the Council: Glass house tomato law

One direct action case of note to me personally (only as a recent personal discovery I should doubly digress) is the rather curious first litigation of Ireland against the Council in 1974 on accession about glass house tomatoes- which is a bit more revealing than might meet the eye! Ironically, the place of glass house tomatoes resulted in a notable first Irish victory in the proceedings very shortly after its entry to the Communities in the field of agriculture. It even exposed tense engagement with a highly protected economy affected acutely by liberalisation of its markets. Ireland was to be protected by the Act on Conditions of Accession and the operation of a compensation system. Still, Ireland challenged the process for the new Member States related to tomatoes grown under glass. All tomatoes in Ireland were grown under glass given the climate, and were thus significantly protected before entry into the common market by temporary measures prohibiting imports, or making the latter subject to customs duty. Ireland argued that the applicable conversion factor was incorrectly applied in this instance.

Ultimately, the Court declared Regulation 1365/73 to be void, finding that the system of compensatory amounts laid down in Article 65 of the Act on Conditions of Accession was to facilitate adaptation to the Common Agriculture Policy and would otherwise would disregard the spirit and the letter of the Act on Conditions of Accession. One amusing feature of the case is the evidence of the use of the case as a favourable tool for new accession countries.

The case arguments expose well an early example of significant inter-institutional tension as to the process of accession and the place of discretion as to new Member States and hardship criteria. However, the case also suggests a highly misleading stance as to Irish engagement with the EU institutions through EU law and litigation, which ultimately would not be carried out.

The decision is simply notable for Ireland to have a direct action, to litigate it and succeed early on- and not to be followed through further- indicative of the highly curious and variable place of data in the Irish relationship with the EU legal order.