01 June 2023
An Honest Broker?
A characteristic of the functioning of the EU is that the Presidency of the Council of Ministers rotates between Member States every six months according to a previously agreed order. The EU Presidency is responsible for driving forward the Council’s work on EU legislation. In the second half of 2024, Hungary will take over the Presidency, followed by Poland in the first half of 2025. Given their rule of law record, it is highly questionable whether they will act in the Council’s general interest. In order to avoid damage, there are three avenues available to the Council and the Member States. Continue reading >>
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23 May 2023
A New European Enforcer?
As a key piece of the European Commission’s digital agenda, the Digital Services Act (DSA) is drawing a lot of attention from civil society, industry, and regulators. One particularly interesting development in that regard is the Commission’s current transformation from being the institution leading the DSA’s negotiations to the one enforcing it. This article explores the challenges faced by the Commission in this transformation. Continue reading >>
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12 May 2023
Trading Rights for Responsibility
The newly published compromise text of the Asylum Procedures Regulation (APR) suggests to render border procedures mandatory in some cases, while also permitting first-entry states to derogate from them once their “adequate capacity” is reached. This adaptable approach to the use of border procedures seeks to resolve a long-standing disagreement between central EU countries and first-entry states. While the former consider the obligatory use of border procedures necessary to prevent onwards or ‘secondary’ movement of asylum-seekers, southern EU states argue that their mandatory use would place a further strain on their resources and overburden their capacities for processing asylum claims. This blogpost first explains the problems with border procedures, reviews their role in increasing responsibility of first-entry states, and explains why the new compromise Draft is unlikely to resolve the disagreement between first-entry states and other Members States. Continue reading >>
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26 April 2023
Flexible Responsibility or the End of Asylum Law as We Know It?
On March 21 2023, the Council released a revised draft proposal for an Asylum and Migration Management Regulation (AMMR). It reintroduces the concept of ‘flexible responsibility’ — or ‘adaptable responsibility’ — into the EU’s migration management. Already included in the controversial Instrumentalisation Regulation of 14 December 2021, flexible responsibility is the idea that Member States should be allowed to derogate from normally applicable asylum standards when faced with sudden migratory pressures. While the Instrumentalisation Regulation was rejected in December 2022, this post will detail how the new AMMR draft threatens to reintroduce the idea of flexible/adaptable derogations — including, potentially, those originally foreseen in the Instrumentalisation Regulation — into the EU’s asylum framework and why we should reject it. Continue reading >>
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04 April 2023
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. Continue reading >>
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27 March 2023
The Quality of Sovereignty
It can generally be agreed that the purpose of sovereignty is to enable a government to protect the best interests of its citizens. To what extent did UK membership of the EU preclude this? In the context of the EU, the discussion on sovereignty tends to focus on quantity – the greater the scope of action of the EU and its institutions, the lower the sovereignty of the member states. From this perspective, sovereignty is a zero-sum affair – less means less. However, sovereignty can also be assessed from a qualitative perspective, with a focus on its quality, or character, rather than its scope. Continue reading >>
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23 March 2023
Political Advertising and Disinformation
Over a year ago, the European Commission presented its Proposal for a Regulation on the transparency and targeting of political advertising (COM(2021) 731 final). Recently, the Council presented its General Approach, followed by the position of the European Parliament (EP). While stakeholders are waiting for the trilogue negotiations to shape the final text of the legislation, critical voices are raising concerns. Concerns are that under the future regulation online platforms might have to de-amplify such independent content Continue reading >>23 March 2023
An Interactive Relationship
In reflections on fifty years of membership, the employment of women is often identified as a tangible example of how membership changed Ireland. Concretely, in the years immediately following accession, the state was required to enact legislation on equal pay and equal treatment for women and men in employment. This narrative tends to place emphasis on EU law as a cause of law reform in Ireland. 50 years on, both Irish and EU equality law have expanded significantly. Continue reading >>
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22 March 2023
Constitutional Identity, Ireland and the EU
Costello v. Government of Ireland and others is one of the most significant recent Irish Supreme Court rulings concerning EU law. The case involved a member of parliament seeking to restrain the Irish government from ratifying the 2014 EU-Canada Comprehensive Economic and Trade Agreement (CETA) on grounds of alleged unconstitutionality. Costello’s most long-lasting impact is likely to be its introduction of the concept of constitutional identity into Irish constitutional jurisprudence. Continue reading >>
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20 March 2023
50 Years On
In 1973 and on the third attempt, Ireland and the United Kingdom (UK) with Denmark acceded to the European Communities, while Norway opted not to join following a referendum. For Ireland and the UK, the half-century since has brought about remarkable social, economic, demographic, political, and legal changes in both states leading to the UK leaving the EU in 2020 and Ireland remaining a Member State. Given the shared anniversary and divergent responses to EU membership in the context of strong (if complex) ties between the two states and a shared common law tradition, a reflection on the 50th anniversary of their accession to what is now the European Union (EU) is timely. Continue reading >>
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