Pleading ec law in irish litigation: a case study

• Author: John Gaffney
• Position: Partner, O'Flynn, Exhams & Partners
• Pages: 153-198

PLEADING EC LAW IN IRISH LITIGATION: A CASE

STUDY

JOHN GAFFNEY*

I. INTRODUCTION

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

manner.

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

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A Case Study

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*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

http://www.aushealthreview.com.au/publications/articles/authors.asp.

3Ibid.

4Collins and O’Reilly,Civil Proceedings and the State (2002), p. 289. (“Collins and

O’Reilly”),

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

negligence.

• Secondly and more importantly, one can help people by

154 [5:1Judicial Studies Institute Journal

6http://www.euireland.ie/LegalRights/enforcement.htm.

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.

II. SUBSTANTIVE ISSUES

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

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A Case Study

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8Power, in Heusel (ed.), op. cit.,pp. 64-66.