The Irish Journal of European Law is Ireland’s leading journal dedicated to the analysis of European law. ISEL has recently relaunched the journal as an online publication, details of which are available on this page. Previous editions of the journal and individual articles will be made available to download in due course.
The current editorial committee for journal comprises Stephen Brittain, Roisin Costello, Stephen Coutts, Delia Ferri, Anna Hickey, Cliodhna Murphy, Diarmuid Rossa Phelan (editor) and Ruairi Roantree (copy editor).
Volume 21 2018
|Rule of Law - Threats and Challenges||31/12/2018||
This lecture examines some of the threats and challenges to the rule of law in the European Union by way of the elements of that concept identified by Article 47 of the Charter of Fundamental Rights: the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The recent judgments of the EU Court of Justice in LM/Celmer and in Associação Sindical dos Juízes Portugueses enshrine judicial independence as part of the essence of the fundamental right to a fair trial, thereby constituting a sine qua non for the existence of the EU legal order. The external aspect of judicial independence defined by this case-law has consequences for at least three areas: judicial remuneration, the existing institutional arrangements within the Court of Justice of the EU and the disciplinary regime for judges. The various mechanisms in EU Treaties through which the rule of law may be vindicated are examined as to their operability and effectiveness, notably in the context of ensuring that a tribunal be established by law. The author concludes by observing that, notwithstanding the essentially passive role played by courts, actions by ordinary persons seeking to assert their rights before national courts appear to be among the most effective responses to date to the challenges faced by the rule of law in the European Union.
|The Scope and Utility of the Damages Remedy Under Section 3 of the ECHR Act 2003||31/12/2018||
This article examines the scope and utility of section 3 of the ECHR Act 2003 in Irish public law, from the policy considerations underlying incorporation to judicial engagement by the courts. Analysing the statutory construction of the provision, I find that its scope is significantly restricted, particularly in view of superior remedies available pursuant to the Irish Constitution. While the section showed early potential as a supplementary remedy where a gap was found in pre-existing law, subsequent decisions have inclined to curtail the utility of section 3.
|Brexit: Legal and Policy Lessons Learned for the European Union, the Withdrawal Process and European||31/12/2018||
This paper examines some of the lessons learned so far from the Brexit process. It analyses those lessons under three main headings: the European Union itself; the withdrawal process (including Article 50 of the Treaty on the European Union); and European Union law. The lessons learned include the following: a realisation about the fragility of the EU project if such a politically stable and long-standing EU member state as the United Kingdom (which is traditionally one of the most compliant member states in terms of implementing EU law) could decide that it was not worthwhile remaining in the EU; the consequential need for the EU to validate itself even more with all of its citizenry; the complexity of EU law; the difficulties involved in withdrawing from the EU; the pervasive nature of EU law; the mistakes made in the Brexit process; and the continued significance of sovereignty not only as far as the Brexiteers are concerned but also as the Court of Justice of the European Union demonstrated in the Wightman litigation. Mistakes were made by both the UK and the EU in letting the situation come to a point where a majority in the UK voted in favour of Brexit – that was a mistake by both the EU and the UK. Mistakes have also been made by the UK in the Brexit process. The Brexit process clearly demonstrates the centrality of law as the force which unites and underpins the EU project. The Brexit process also shows the close interrelationship between law and politics in the EU so this paper combines issues of both legal and political science in its attempt to discern and discuss some of the lessons of Brexit so far.
|A Departure from West Tankers after Brexit? Anti-suit Injunctions in the UK Directed to Parties in E||31/12/2018||
As international commercial arbitration is increasingly becoming the preferred method of dispute resolution internationally, so too are national courts increasingly issuing anti-suit injunctions. Different jurisdictions have adopted different approaches towards issuing this controversial remedy. Within the European Union (EU), the Court of Justice of the European Union (CJEU hereafter) in West Tankers imposed a restriction on EU national courts from granting anti-suit injunctions in favour arbitration where the foreign proceeding is in another EU national court. However, with Brexit looming, the UK passed European Withdrawal Act 2018 (EUWA) which gives the UK Supreme Court (UKSC) a legal pathway to overturning West Tankers. This article argues that it is highly likely that post-Brexit the UKSC will overturn West Tankers and thus will regain its power to issue anti-suit injunctions towards EU national courts. Further, it exhorts for an adoption of an approach similar to that in the US First and Second Circuit Courts, in cases involving proceedings in EU national courts.
|Margaret Liu and David Mwoni Ndolo||Buy|
|Do EU Regulations combating Money Laundering and the Financing of Terrorism adequately tackle Crypto||31/12/2018||
This paper highlights the growing threat of cryptocurrencies being used for the purposes of money laundering and terrorist financing within the EU. Ireland was chosen as the case study for this piece because of the nation’s strong user adoption rate of the technology. Ireland also has the highest level of investment in blockchain businesses, as a percentage of total venture capital in Europe. Therefore, the maintenance of a secure network is paramount to cementing the nation’s status as an international technology hub, as well as to sustain the level of investment the country has become accustomed to. This paper begins by defining the problems of money laundering and terrorist financing and goes on to explain the technologies at issue in a manner which is accessible to the reader. The process of how both criminal and terrorist actors can use this technology to further their interests is presented in detail, with a discussion on what problems may be encountered should sufficient preventative measures not be implemented. The paper highlights the issues with the current legislative and enforcement frameworks and identifies three core failure. Finally, the effectiveness of the new EU Anti-Money-Laundering Directive is examined and a possible solution to the aforementioned core failures is offered.
|Vertical and horizontal Effect of Directives: recent Irish cases||31/12/2018||
This article looks at recent decisions of the Irish courts, and the Court of Justice on references from Ireland, on vertical and horizontal effect of directives in disparate areas: insurance, technical standards, workplace safety, and public procurement.
|Executing a European Arrest Warrant in the Middle of a Rule of Law Crisis: Case C-216/18 PPU Ministe||31/12/2018||
In LM, the Court of Justice ruled that the executing Member State (in this case Ireland) must refrain from giving effect to an European Arrest Warrant where the issuing Member State (in this case Poland) is facing systemic or generalised deficiencies in the independence of its judiciary and where there are substantial grounds for believing that the individual concerned will consequently risk having his right to fair trial breached upon surrender. The case was not only legally complex, but also politically charged, as it was set within the context of systemic undermining of judiciary in Poland. This contribution focuses on critically assessing the judgment from the perspective of the relationship between the principle of mutual trust and fundamental rights, analysing the developments with regard to the nature of rights capable of rebutting mutual trust and the test required to do so. It also briefly reflects on the potential for the Court’s reasoning in LM, in particular the central positioning of the independence of judiciary in the EU constitutional order, to impact the ongoing legal and political proceedings addressing the Polish rule of law crisis.
|The Giant has woken up: the European Union’s Plans for the Future of Artificial Intelligence (AI)||31/12/2018||
In recent years, the development of Artificial Intelligence (AI) has progressed significantly in several sectors. Despite this development, the legal system has yet to adequately regulate this new technology. Small steps have been made in some European countries, but there is no clear, unifying regulatory approach. To that end, the European Commission in April 2018 produced a short communication outlining its intentions for the future of AI, in particular the legal and ethical concerns which necessitated the Commission’s involvement. This note presents the plans of the European Commission related to the legal aspects of AI and contrasts them with the European Parliament’s Resolution on Civil Law and Robotics.
|Book Review: Rosemary Jay, Guide to the General Data Protection Regulation: A Companion to Data Prot||31/12/2018||
|Diarmuid Rossa Phelan||Free|