EU Law in Ireland Post-Brexit

• Author: Anthony M Collins
• Position: Chamber President, General Court of the European Union
• Pages: 9-30

EU LAW IN IRELAND POST-BREXIT

ANTHONY M COLLINS

Introduction

In legal, political, and economic circles Brexit must rank as one of, if not

the, great unknowns of the second decade of the 21st Century. As of yet

we do not know if Brexit will happen, when it may occur, and what form

it may take. As a result Brexit has brought forth a veritable avalanche of

writing, most of which is, understandably, of a highly speculative

character. Is it wise for any lawyer, let alone a member of the judiciary, to

address a legal subject, even in a wholly personal capacity, in respect of

which as yet there exists no agreed text? There is no obvious reason why

the views of an unelected public official on such a topic, albeit from a

branch of the public services that is independent of the legislative and

executive arms of government, are of any more worth than those any of

you here this evening may have. Indeed it is likely that many of you here

present could shed more light, or at least provide more entertainment, on

this subject than I could.

The march of events has persuaded me to reflect, and to share some

thoughts, upon the topic of Brexit. The European Council Guidelines of

15 December last, to which are attached the Joint Report from the

negotiators of the European Union and the United Kingdom Government

on progress during phase 1 of negotiations under Article 50 TEU on the

United Kingdom’s orderly withdrawal from the European Union

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allow

one to discern the outlines of the basis of a possible withdrawal agreement

between the EU and the UK. What is particularly striking is that the very

real legal constraints on the parties’ freedom of action, notably that of the

United Kingdom, have become increasingly obvious. Between those

matters upon which it has been possible to reach some agreement, and the

legal limitations on the parties’ freedom of action, it has begun to become

possible to assemble a picture as to the possible state of EU Law in Ireland

post-Brexit.

 Chamber President, General Court of the European Union. This article is an edited version

of the 7th Brian Lenihan Memorial Address delivered at the Trinity College Dublin Law

Student Colloquium on 3

February 2018.

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8 December 2017, approved by the European Council Guidelines of 15 December 2017,

hereafter ‘Joint Report’.

10 Trinity College Law Review [Vol 21]

Of one thing, however, I believe you can be certain. Had Brian

Lenihan, in whose memory we are gathered here this evening, been

standing on this podium, he would have undoubtedly delivered a lucid,

wide-ranging dissertation on this very same subject that would far surpass,

in both delivery and quality, what you are about to hear. If Brexit can be

described as a crisis, then I believe Brian Lenihan would have been among

the first to have identified whatever opportunity may be extracted from it.

Brexit raises almost all of the subjects to which Brian Lenihan was

passionately attached throughout his lifetime: history, politics, law,

international relations. His intellectual interest in the type of issues raised

by Brexit would, together with the gifts of analysis, clarity, and charm with

which he had been bestowed, have enabled him to seize the challenge

posed by Brexit in order to further the interests of Ireland and of its People.

I am therefore very honoured to have been asked by the organisers

of the Trinity College Law Student Colloquium to deliver the 7th Annual

Brian Lenihan Memorial Address. I am particularly grateful for this

opportunity to express in public my appreciation for Brian Lenihan as a

colleague, public representative, minister of government, and onetime

companion.

I should emphasise that anything I say this evening is offered in a

purely personal capacity and in no way binds either the General Court of

the EU or myself when I act in a judicial capacity. For the purposes of this

paper, it is assumed that Brexit will happen. I do not speculate as to

whether it will come in a hard, soft, chewy, or car-crash variety. Nor do I

examine any possible transitional period as may be agreed between the EU

and the UK. The paper attempts to examine the application of EU law in

Ireland post-Brexit, and not the impact of Brexit upon the UK, nor the

latter’s future relationship with the EU.

The framework within which EU law may apply in Ireland post-

Brexit is, I submit, conditioned by the following three elements: the

rationale for Ireland’s EU Membership, the Good Friday Agreement, and

Article 50 of the Treaty on European Union.

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I. Rationale for Ireland’s EU Membership

Post-Brexit EU law will continue to apply in Ireland in the same way as it

as it currently does, namely subject to Article 29.4.3° to Article 29.4.10° of

the Constitution of Ireland, which provide that:

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Hereafter ‘TEU’.