Thomas Pringle v The Government of Ireland, Ireland and the Attorney General

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The European Union is renowned for its Member States’ ability to devise flexible workarounds to overcome thorny problems that at first may seem insurmountable. The various crises that enveloped the Member States and the EU itself after 2008 posed existential challenges to the euro currency. Extraordinary measures were adopted in the face of those challenges. One of those measures was the establishment of a new institution to be called the European Stability Mechanism (ESM) by means of a treaty outside the EU legal order. The legality of these measures was questioned in the Irish Courts by Independent TD for Donegal South West, Thomas Pringle. The Supreme Court referred three questions to the Court of Justice of the European Union. The Court of Justice rejected the claim that the ESM workaround was of a character that breached the limits of the EU treaties. In doing so it accepted the ultima ratio approach urged on it by the ESM’s defenders that in the last resort the Court should not act in a way that would risk imperilling the single currency. This article by Mr Pringle’s solicitors examines some procedural and substantive aspects of the case.

Ryanair / Aer Lingus III – A Reflection on Remedies

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The article aims to provide details on the content of the final remedies package offered by Ryanair to the European Commission (the ‘Commission’) in its third attempt to acquire control of Aer Lingus. The commitments offered by Ryanair to remedy the competition concerns of the Commission were not deemed sufficient by the Commission to render the concentration compatible with the internal market, and the concentration was prohibited by the Commission on 27 February 2013.

The commitments offered by Ryanair were a mix of common, ‘tried and trusted’, airline merger remedies that had been accepted by the Commission in previous merger investigations, and a number of entirely novel remedies involving ‘upfront buyer’ airlines to provide competition on routes affected by the proposed merger.

The article examines the commitments offered by Ryanair, and draws comparisons between the treatment by the Commission of the Ryanair/Aer Lingus case and its treatment of other notified airline mergers, in terms of commitments accepted in those other cases. The article sets out the Commission’s reasons for rejecting Ryanair’s commitments, and offers reasons why the Commission did not deem its previous precedents to be directly relevant for the Ryanair/Aer Lingus case.

The Law on Family Reunification in Ireland

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Given the ongoing lack of clarity on the criteria or issues to be considered by immigration officers determining matters on behalf of the Minister for Justice and Equality in relation to migrants’ rights and entitlements, this article proposes that it is essential that matters such as family reunification, which affect human and constitutional rights of migrants and their family members, should be the subject of material law.

It explores the current situation regarding immigration law and the developing policies on family reunification in Ireland and goes on to analyse recent case-law from the European and national courts, with a particular focus on the rights of Irish nationals to family reunification in their country of nationality, Ireland. In conclusion, the article proposes a number of ways in which the situation of families seeking reunification with family members from outside Ireland may be improved and, as part of this section, also touches briefly on the issue of access to legal remedies.

Köbler in the Common Law Courts: Cooper v Attorney General

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The focus of this article is the decision of the Court of Appeal of England and Wales in Cooper v The Attorney General [2010] EWCA Civ 464. Cooper has the distinction of being the first occasion on which a court in a common law jurisdiction has been called upon to apply the principles laid down by the Court of Justice in its seminal decision in Köbler v Austria. In that ruling, the remedy of State liability in damages was extended to judicial breaches of EU law. The Court of Appeal considered the manifest breach threshold of liability with a particular focus on the difficult interaction between the CILFIT ruling and the concept of acte clair on the one hand and the principles underlying the Köbler ruling on the other hand. If the standards applied by the Court of Appeal in rejecting the claim of the appellant are to be regarded as the norm in Köbler actions before the common law courts, a cause of action which is already inherently exceptional in nature will become a true rarity outside of the most obvious breaches of EU law.

Food Information Regulation: Failing to address ongoing concerns about obesity

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Many of the most serious health problems in the world today relate to diet. Obesity has reached pandemic proportions. It is a factor in heart disease, type 2 diabetes and some types of cancer. It is generally understood that diabetics and those with incipient heart disease can ameliorate their conditions by losing weight. Society generally has a clear interest in ensuring that everyone attends to the quality and quantity of their food intake. Food labelling is of critical importance to this. Hence the introduction of new EU food labelling laws, which come into effect on a staggered basis between 2014 and 2016. The introduction of these much-heralded changes has followed a protracted legislative process which started as early as January 2008. Some key amendments to existing laws will be made. Potentially, the most significant of these is that the presentation of nutrition information will be made compulsory on the packaging of almost all food products for the first time. Despite this, it is here argued that the new provisions will do little to address concerns about increasing rates of obesity and related illnesses. The EU Commission has clearly accepted that there is a problem, and that it needs to be dealt with. The Member States are constrained in any response that they may wish to make due to the restricitve nature of TFEU rules on the free movement of goods. This article contends that if free movement rules continue to be rigidly applied in important health matters such as this, then there is an onus on EU legislators to take more meaningful action to deal with diet-related illness.

Reflections on the Commission Communication on Collective Redress

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In June 2013 the European Commission published its collective redress reform package via a Communication to the European Union (EU) Member States, a non-binding Recommendation containing common reform proposals contained in the first two documents are likely to secure the European Commission’s aim of bringing procedural coherence to the EU’s and Member States’ approach to collective redress and to do so as a matter of urgency. It is argued that the reform package is unlikely to secure effective reform in the short term or produce coherence in respect of either the scope or nature of such measures. The article then looks at a number of potential reform options that the European Commission could take when it looks at this issue, and the Member States’ responses to its reform package, in 2017. It considers whether successful reform in 2017 will require further study by the Commission, a specific collective redress directive or regulation, or whether the optimum approach might be to introduce reform via an optional instrument akin to that set out in the Commission’s Proposal for a Common European Sales Law.

National Constitutional Rights and European Law in the Early Decades of European Integration

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Scholarship on the early development of the supremacy of European law has has frequently been dominated by discussion of the possibility that a directly effective European law obligation would not be applied in the national legal order because it violated a national constitutional law fundamental right, as discussed, for example, in the Frontini and Solange decisions of the Italian and German Constitutional Courts. This paper argues that such a possibility should instead be seen as of limited practical relevance. This claim is supported by early scholarship on the application of European law in the national legal orders and by the practice of constitutional review of laws giving execution to treaty obligations in Denmark, Ireland, Italy and Germany, including the German Constitutional Court’s 1955 decision on the Saar Statute. Two conclusions are drawn from this discussion. First, scholarship examining the development of European law supremacy in relation to national constitutional law fundamental rights in particular should be situated within the context of the flexible and politically sensitive approach to adjudication demonstrated by Europe’s national courts in their decisions on potential conflicts between constitutional rights and international legal obligations. Second, scholarship offering a general explanation of the development of the supremacy of European law should not focus on the national constitutional rights question to the exclusion of a thorough examination of national law solutions to European law’s lex posterior problem.

The Duty of Cooperation of National Courts in EU Competition Law

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The EU Treaties have always imposed a duty on national courts and other authorities to cooperate to promote the objectives of the Treaties. The European Court of Justice has progressively based hundreds of judgments on this principle, and on specific rules derived from it. Many of these judgments concern the duty to apply EU competition law, to provide effective protection for rights given by competition law, and not to interfere with its effectiveness. Some of the practical procedural consequences of these rules are explained. Corresponding legal duties of cooperation are imposed on the European Commission by the Treaty, including the duty to assist national courts. The EU Charter of Fundamental Rights may give rise to additional practical consequences.

Crotty After Pringle: The Revival of the Doctrine of Implied Amendment

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The doctrine of implied amendment allows that amendments to the Constitution be adopted outside of the constraints of the formal constitutional amendability procedure. Having endorsed the doctrine during the lifetimeof the 1922 Constitution, the Irish courts after 1937 had unambiguously rejected it, for the ‘scant respect’ it showed for the Constitution as superior law as well as the ‘practical disadvantage’ that it made the Constitution unknowable. Nevertheless, this article argues that the doctrine of implied amendment has been enjoying an unremarked revival in the context of the ratification of the European and international treaties, the beginnings of which can be seen in the Crotty decision, then traced through McGimpsey, and are now magnified by the sweeping Pringle decision. In Crotty, the Supreme Court judges not only measured the Single European Act for compatibility with the Constitution – employing a test of constitutional consistency – but they also endorsed the ‘essential scope and objectives’ test – a test of treaty comparison – which compared the SEA for how different it was from the Treaties of Rome. The basic feature of a test of treaty comparison is, simply, that it examines the treaty in question by reference to another treaty in order to assess whether or not it requires a constitutional amendment. Tests of treaty comparison have since been deployed in both the McGimpsey and Pringle decisions, although the indices of comparison may vary widely between judgments. In Pringle, for example, the majority judges seemed to recognise no less than nine new indices by which the test of treaty comparison can be applied. These range from whether future policy-making power of the State is involved to whether foreign policy as a whole is affected; from whether the treaty is abstract or concrete to whether it has a single purpose or multiple purposes. Consideration of the consistency and congruence of these indicies is for another paper; here, the point is that the test of treaty comparison, in principle, allows that amendments to the Constitution can slip through the net because treaties are being measured for similitude with other treaties without regard to their impact on constitutional provisions. This current application of the doctrine of implied amendment in the context of treaty ratification is, it is suggested, certainly no less troubling than its historical use. The more legally defensible option, which avoids the known dangers of the doctrine of implied amendment, is, as the dissentient in Pringle has done, to assess any treaty by reference to the provisions of the Constitution using the test of constitutional consistency.