Pleading ec law in irish litigation: a case study

AuthorJohn Gaffney
PositionPartner, O'Flynn, Exhams & Partners
To the best of the author’s knowledge, the use of case studies
is not as widespread in the area of legal studies, as it is in other
disciplines.1While case notes have featured in legal studies for many
years, it is suggested that a case study, certainly as understood in the
context of other disciplines, is a somewhat different concept. For
example, the author has seen a case study described as “a form of
qualitative, descriptive research about a single or small number of
events or cases.”2Moreover, a case study normally sets the case or
cases in question in a theoretical context, where relevant.3Ihave
endeavoured to approach the subject matter of this paper in this
While it may seem somewhat pedantic, it is nonetheless
important to explain why this paper is concerned with “EC law” or
“Community law,” and not the more widely-referenced “EU law.”
As Collins and O’Reilly succinctly explain: “[b]y virtue of both its
nature and subject matter, [EU] law is of less or practical importance
in this jurisdiction than the more familiar subset of Community
law.”4This is because the Treaty on European Union deals with a
range of matters, including foreign and security policy and police
and judicial co-operation of criminal matters, some of which are
expressly exempted from judicial review, and others of which are not
as amenable to judicial review, as matters governed by EC law.5
2005] Pleading EC Law in Irish Litigation:
A Case Study
*Partner,O’Flynn, Exhams & Partners. This article is a slightly amended version of a paper
presented at a Law Society of Ireland/Irish Centre for European Law Seminar in September
2004 on “European Law Remedies from the District Court to the European Court of Justice
–AStep by Step Guide.” The author wishes to thank Niamh Hyland BL for her invaluable
comments and suggestions on an earlier draft of this paper. Any errors and omissions remain
solely the responsibility of the author.
1For an example of another case study in the area of Irish and EC law, see Costello and Drake,
“Enforcing EC Motor Insurance Directives: Navigating the Maze” (2003) 9 E.P.L. 371et seq
(“Costello and Drake”).
2Guidelines on writing a case study for the Australian Health Review are available at
4Collins and O’Reilly,Civil Proceedings and the State (2002), p. 289. (“Collins and
5Ibid., pp. 289-290.
Moreover, EU law does not share some of the important
characteristics of EC law which are discussed in the next section of
this paper. Consequently, while issues of EU law may arise in Irish
litigation from time to time, it is more likely that a legal practitioner
will plead EC, rather than EU, law in the Irish courts. This paper,
therefore, concentrates on the pleading of EC law in Irish litigation.
It is important to first recall that persons seeking redress in
respect of rights arising from EC law may have recourse to non-
judicial procedures, as well as to litigation. Maslow observes “if the
only tool you have is a hammer, you tend to see every problem as a
nail.” As lawyers, there can be a tendency to think only of litigation
as a means of redress for the infringement of a client’s rights. The
website of the European Commission in Ireland, which contains a
very helpful section on the enforcement of EC Law rights,6in
discussing redress at national level, lists eleven separate means of
non-judicial redress at a national level, including complaints to the
Office of the Information Commissioner,the Competition Authority
and the Data Protection Commission. Interestingly, obtaining redress
through the Irish courts is addressed as a “further alternative” for
enforcement of EC law rights. Accordingly,while this case study
focuses on pleading EC law in Irish litigation, it is important to bear
in mind that there may be other means of redress for breach of EC
law rights before resorting to litigation.
Turning now to the subject matter of this case study, a good
starting point might be to ask why EC law should be pleaded in Irish
litigation. This point has been considered previously by other
practitioners specialising in the areas of Community law.7For
instance, at an Irish conference on EC law eight years ago, one
commentator outlined the reasons why practitioners should be
concerned with EC law. He provided a number of answers to this
question, which remain pertinent today:
The first and most basic reason why all practitioners need to
be concerned about EC law relates to professional
Secondly and more importantly, one can help people by
154 [5:1Judicial Studies Institute Journal
7See e.g., Robinson, “How EEC Law Affects Practitioners” (1985) Law Society Gazette, Parts
I–VI; Power,“European Law and Irish Solicitors” in Heusel (ed.), Community Law in
Practice Including Facets of Consumer Protection Law (1996), p. 63
invoking EC law.
Thirdly, clients demand and deserve assistance in the areas
of EC law.
Fourthly, an understanding of EC law generally and the
practice of European courts particularly is imperative even
to understand some areas of Irish national or municipal law.
Fifthly, the jurisprudence and practice of the European
courts sometimes present an opportunity to circumvent the
rules of national law.
Finally, there is a small matter of fees.8
The same commentator described the area of EC law at that
stage as “still a largely untilled field for Irish lawyers.” It is the
author’s hope that this paper will generally help to further raise
awareness of the usefulness of pleading Community Law, where
appropriate, in the pursuit or defence of civil or criminal proceedings
in any courtin the Irish judicial system.
A. General
This section endeavours to briefly explain the legal basis
upon which EC law may be pleaded in Irish litigation, the measures
of EC law that may be so pleaded and, finally, the matters in respect
of which EC law may be pleaded.
B. Relevant Law
Article 29(4)(10) of the Constitution of Ireland provides:
No provision of this Constitution invalidates laws
enacted, acts done or measures adopted by the State
which are necessitated by the obligations of
membership of the European Union or of the
Communities, or prevents laws enacted, acts done or
measures adopted by the European Union or by the
Communities or by institutions thereof, or by bodies
2005] Pleading EC Law in Irish Litigation:
A Case Study
8Power, in Heusel (ed.), op. cit.,pp. 64-66.

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