A decade of EU law in the courts of Scotland and Ireland: national legal systems compared

Abstract

This paper presents the findings of a comparative statistical study examining the application and trends in the deployment and utilisation of European Union (EU) law before the Scottish and Irish courts over a 10-year period from 2009–2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? The research presented is of particular relevance in light of Brexit. It allows prescient reflection on the significant disruption and impact the United Kingdom's exit from the EU is likely to have on areas of domestic law which are highly integrated with EU law. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making in the Scottish and Irish legal systems in general.

Introduction

‘Community law has a habit of emerging in unlikely corners’.¹

‘Since Ireland joined the European Economic Community in 1973 the reach of European Union law into the legal systems of all of the member states has grown to a very significant extent’.²

This study provides an analysis of judgments in civil law cases of the Scottish courts and the Irish³ Superior Courts in which EU law has arisen during the period of 2009 through to the end of 2018.⁴ It offers a comparative quantitative analysis of the case law with a view to drawing conclusions about the role of EU law within domestic senior courts, in Scotland and Ireland.⁵ This study follows earlier work by one of the co-authors examining the impact of EU law on Scots law and decision-making by the judiciary in the Scottish legal system over the period of 40 years to 2015.⁶ Comparison is being drawn between the two jurisdictions in order to examine the extent to which EU law has become embedded in them, what differences there are between them, and how this experience is likely to change for both in different ways in light of Brexit.⁷

The paper first briefly sets the context by locating the research in wider empirical studies on EU law and, more specifically, on EU law in Scotland and Ireland. It then outlines the context of the study before turning to how EU law was incorporated into domestic law in the two jurisdictions and the relevant key EU doctrines. The methodology used is explained and the results are outlined and analysed before concluding.

1. Empirical research and EU law studies

Lawyers have a tendency, as noted by Burns and Hutchinson, to view law as a closed system with doctrinal research the primary methodology to explore law as a social system.⁸ The American legal realist movement was perhaps the first to recognise the importance of studying law ‘in action’ as opposed to the law ‘on books’ through empirical work, with Miles and Sunstein recently coining the phrase ‘The New Legal Realism’.⁹ This paper is a quantitative study of case law, building on the law and politics literature that emerged in the late 1990s. Stone Sweet and Brunell demonstrated how transnational exchange, triadic dispute resolution, and the production of legal norms operated to progressively reduce the ability of national governments to control policy outcomes within the then ‘European Community’ (EC).¹⁰ Stone Sweet and Sandholtz's theory of EC legal integration¹¹ was tested by Stone Sweet and Caporaso, who demonstrated the compatibility of the theory with the data.¹² Conant's work illustrated that the majority of national court decisions involving EU law did not involve references to the case law of the Court of Justice of the European Union (CJEU), with French, British and German judges more likely to cite provisions of EU law such as treaties, directives or regulations rather than the jurisprudence of the CJEU.¹³ Alter demonstrated how the supranational legal order contributed to judicial competition between lower courts and higher courts within Member States in the context of their relationship with the CJEU.¹⁴ Chalmers’ examination of claims based on EU law before courts in the UK showed litigants’ success where EU law extended state powers, whereas they were less successful when EU law restricted the state's control, for example in issues relating to immigration and criminal law.¹⁵

Within the context of Scotland and Ireland, there has been comparatively little quantitative research on EU law in their courts, with notable exceptions. Rodger's work on EU law before the Scottish courts¹⁶ showed an increase in the impact of EU law in the civil justice system in Scotland, in both private and public law aspects, in the first 40 years of UK membership. His statistical analysis suggests this was due to three related factors: first, an increased quantity and subject-matter coverage of EU law; second, a greater awareness of EU law and EU law rights by parties and their legal advisers; and third, an increased focus in recent years on the principle of effective judicial protection.¹⁷

In Ireland, Fahey's seminal work examined the practices and procedures of EU law before the Irish courts on the preliminary reference procedure over a 30-year period from Ireland's accession to the EU in 1973, with this research updated by her in 2013.¹⁸ Within the first three decades of Ireland's EU membership 44 preliminary references to the CJEU were recorded, a low figure even taking into account its population and the number of courts within the state.¹⁹ However, this narrative changed in later years with an observable increase in the number of references originating from the Supreme Court between 2003 and 2013, and reversal of the previous trend of the Irish High Court making the greatest number of references.²⁰ Fahey's observations mirror that of Alter, who argued that in the early days of the EU, Member States’ lower courts were more likely to make references to the CJEU than higher courts, with higher courts over time becoming more open to making references to the CJEU as they sought to re-assert their position within national legal orders,²¹ a trend discernible in Fahey's data. Maher, in her examination of EU law before the Irish courts, noted that between March 2013 and June 2017 there had been 24 references to the CJEU from all courts and tribunals in Ireland, covering a wide range of issues such as: repeat arrests in light of the charter of fundamental rights; discrimination of same-sex partners and pension entitlements; European Arrest Warrants; and applications of subsidiary protection.²² This is broadly similar to the data collected by Krommendijk, who noted that there were 15 references from Irish lower courts (defined as all courts and tribunals below the Supreme Court) between 2013 and 2016, representing 65% of references from Ireland.²³ This data on Irish referral rates is in line with wider European trends²⁴ and demonstrates the degree to which EU law has become an ordinary part of the Irish legal system.²⁵

2. Scotland and Ireland: context compared

This paper provides an updated account of these two jurisdictions at a critical juncture, with Brexit changing the role of EU law in Scottish courts²⁶ and the Irish legal system set to become the largest common law jurisdiction within the EU.²⁷ This comparative account, through equivalent statistical analyses of EU case law in both jurisdictions over the last ten years, sheds light on the extent to which EU law has been embedded and normalised within the legal culture of both jurisdictions, how lawyers used EU law in their litigation strategies, and provides insights as to how domestic courts interact with both EU law and the CJEU. Additionally, it highlights differences between the two legal orders.²⁸

While Scotland is a part of the UK, its courts have similar competence to deal with any private or public law-related disputes (subject to the appropriate rules on jurisdiction)²⁹ as the Irish courts. Scotland and Ireland share broadly similar demographics. Each has its own distinct legal system, and their populations are similar (Ireland has a population of 4.761 m as of 2016 and Scotland a population of 5.438 m as of mid-2018).³⁰ Scotland currently has over 11,000 qualified solicitors and circa 460 Advocates at the Bar;³¹ Ireland has 10,466 solicitors with practicing certificates with far more practicing barristers: currently 2,300, reflecting greater activity in the courts.³² Scottish court statistics demonstrate that in the most recent year for which there is data (2017–18), the Scottish civil courts disposed of 69,099 cases, an annual figure which has steadily reduced from a high in 2008–09 of 115,363 cases.³³ In Ireland, there were 178,046 civil cases resolved in 2018 by all Irish courts, of this figure 31,742 cases were resolved by the Irish Superior Courts which form the focus of this study.³⁴ Like Scotland the 2018 figure represents a decrease on the 36,255 civil cases resolved by the Superior Courts in 2013.³⁵ These figures, taken in conjunction with the data gathered for this study, indicate that only a fraction of case law raised EU law.

3. Incorporation of EU Law into the domestic legal orders

The UK and Ireland both joined the then European Economic Community (EEC, now the EU) on 1 January 1973.³⁶ A referendum was held in Ireland, which permitted the amendment of the Irish Constitution and allowed the state to join the EEC. As a dualist state the Oireachtas (the Irish Parliament) legislated for the incorporation of EEC law into the domestic system through the European Communities Act 1972.³⁷ In the UK, the process similarly required an Act of Parliament, the European Communities Act 1972.³⁸ At the time of membership, the CJEU had already set down two major doctrines that distinguish EU law from international law. First, EU law has primacy over national law (the primacy doctrine) where there is a conflict between EU and national law,³⁹ and second, where EU law is directly effective, it produces rights and obligations for individuals that national courts are required to enforce (the doctrine of direct effect).⁴⁰ These doctrines, coupled with the preliminary reference procedure (whereby questions of interpretation or validity of EU law can be sent by a national court to the CJEU for consideration) provide a means through which national courts may seek the CJEU's authoritative ruling on EU law.⁴¹ In addition, the EU Treaty requires Member States to provide remedies that will ensure effective legal protection for EU law.⁴² These obligations, underpinned by the principle of equivalence,⁴³ are applied subject to the procedural autonomy of national courts. In the wake of the CJEU judgment in Francovich,⁴⁴ the CJEU held that damages could be awarded by national courts for breach of EU law. The effect of these doctrines, as this study would suggest, is that while the overall volume of EU law before national courts may be small, it is of growing significance in higher courts and in particular fields of law.⁴⁵ EU law's expanding scope has an impact on personal and business relationships, which in turn has affected higher national courts, in particular in the exercise of their judicial roles.⁴⁶

Domestic courts within the EU are not exclusively courts of their Member State. They form an integral component of the EU's decentralised judicial infrastructure with national courts the ordinary courts of the Union.⁴⁷ This view has most recently been articulated by the European Commission, which remarked that national judges ‘are also “EU judges” … ensuring the application of EU law’⁴⁸ although it has recently and controversially been challenged by the German Constitutional Court.⁴⁹ This interweaving of national legal systems with that of the EU is apparent when we examine the impact of EU legislation on national legal systems.⁵⁰ The data presented here, analysing the frequency of EU law-based arguments before the domestic courts of Scotland and Ireland and the number of appeals identified by this research, indicates that EU law has been embedded as a normal and ordinary part of these jurisdictions’ legal traditions. Furthermore, the rise in the number of appeals to the higher courts of Scotland and Ireland over the last five years of the study points to an increasing importance placed by these courts on EU law-based legal arguments.

The impact of Brexit upon the Scottish and Irish legal systems as a result of this embedding of EU law within their legal systems is not yet fully understood,⁵¹ however the analysis of the subject-matter raised in relation to the case law of each jurisdiction may shine a light on the potential effects. Brexit generates considerable uncertainty and the data discussed here will allow comparison again in a decade as to the extent to which reference to EU law has diminished in the Scottish courts and how reliance on EU law in the Irish courts has changed. For now the post-Brexit position is that in general the body of EU law applicable in the UK up to Brexit is carried over.⁵² There are notable exceptions to this, including the primacy of EU law and the EU Charter on Fundamental Rights,⁵³ and legislation is already being readied to replace EU policies.⁵⁴ UK ministers have controversially been granted powers to amend domestic legislation, including retained EU law, to address any deficiencies arising from Brexit.⁵⁵ There is also considerable uncertainty as to the division of competences between the Scottish and the UK parliaments.⁵⁶ Case law of the CJEU from after the Brexit transition period is not binding on UK courts but they can have regard to it. Under the 2018 Act, case law of the CJEU from before Brexit can be binding as to the meaning or effect of any retained EU law or principles, though not on the Supreme Court nor the Scottish High Court of Justiciary when sitting as a court of appeal.⁵⁷

The UK Government has decided, following a consultation process, to introduce Regulations under s 6 of the 2018 Act to also allow lower courts to depart from previous EU case law.⁵⁸ This means the scope of precedent of EU law is uncertain.

4. Methodology

The study generated four distinct datasets of cases from all Scottish courts and from Irish Superior courts: Scottish civil cases where EU law arose and Scottish preliminary references in civil and criminal cases; Irish civil cases where EU law arose and Irish preliminary references in civil and criminal cases.

The methodology for this study follows as closely as possible that used by Rodger in his earlier work on the Scottish courts. Hence, for Scotland, data gathered by Rodger in his 2017 work was utilised, revised and updated. The comparative aim of the study meant that the Irish study is as closely aligned as possible with the categorisations created for the first Scottish study. However, absolute alignment of the analytical methodology in each jurisdiction was not possible and differences are set out where they arise.⁵⁹ The focus in this research is on EU law in the civil courts and the impact of EU law on the administration of civil justice, rights and obligations. Accordingly, cases involving the application of EU law in criminal courts, criminal law contexts,⁶⁰ and all case law involving European Arrest Warrants are excluded.⁶¹ As the study only relates to EU law, cases which related only to the European Convention of Human Rights (ECHR) were excluded, as it forms a separate legal system to the EU's.⁶² Where EU law was mentioned but was completely irrelevant, the case was excluded for both jurisdictions.⁶³

(a) Scotland

All published judgments by the Scottish civil courts between 2009 and 2018 including the Supreme Court in Scottish appeals were coded according to whether they emanated from the Sheriff Court (Sheriff or Sheriff Principal on appeal), Sheriff Appeal Court,⁶⁴ Court of Session Outer House,⁶⁵ Court of Session Inner House⁶⁶ or the Supreme Court (in Scottish cases).⁶⁷ For the Scottish dataset the initial search was undertaken using Westlaw.⁶⁸ Each case was then briefly reviewed to ascertain whether, on the face of it, it referred to EU law. This general check was complemented by searching the Scottish cases published on Westlaw against a variety of generic EU law search terms,⁶⁹ and the results were also cross-checked against the Scottish Courts website.⁷⁰

(b) Ireland

Only the civil jurisdiction of the Superior Courts in Ireland are part of the study.⁷¹ This is because the decisions of the Irish lower courts (Circuit and District Courts) are not normally published or reported.⁷² There are comprehensive reports publicly accessible for the Superior Courts. Judgments for the Irish dataset were coded according to their emanation from the High Court, Court of Appeal,⁷³ or the Supreme Court. The Irish High Court is a court of first instance with full and original jurisdiction and power to determine all matters of law. The Court of Appeal has appellate jurisdiction in respect of all decisions of the High Court, and other courts as prescribed by law. The Supreme Court is the apex court within the Irish state, its decisions are final. For the Irish dataset the initial search was carried out using Bailli.org and,⁷⁴ as in the Scottish case, each judgment was briefly reviewed to ascertain whether it presented an issue of EU law and if it did not, then it was excluded. Results were cross-checked against Justis.com.⁷⁵

(c) Shared methodology

The research extends to all civil law cases in the above courts of which EU law formed part or was relied on by either party or in the judgment, even where EU law was not a factor in the determination of the particular issue between the parties in dispute, for instance where the case was decided on a procedural issue. Each dataset generated was reviewed, coded, and analysed quantitatively using SPSS.⁷⁶ To identify more subtle trends, frequency analysis was carried out on the EU case law sample⁷⁷and crosstabulations were made between variables:⁷⁸ (1) courts; (2) years; (3) subject-matter; (4) private law relations; (5) judicial review; (6) claims/defences in EU Law cases; (7) relevance; (8) type of EU legal instruments; and (9) preliminary references.

(1) Courts and (2) EU cases per year

In addition to recording the court in which a case was heard, the study also recorded the year of each case in order to allow us to map out the change in EU law cases before the domestic courts of both jurisdictions over the ten-year period.

(3) Subject-matter

This refers to the substantive legal issue(s) at the heart of the dispute which involve EU law.⁷⁹

The categories used were those identified in the earlier Scottish study. The coding of cases was done by undertaking a preliminary reading of the cases to determine the category to which they belonged. At times this proved problematic, as disputes do not fall into neat legal categories; potential overlap occurred particularly between the categories of delict/tort law and discrimination/equality law, or with employment law.⁸⁰ Some categories were merged, eg data protection and intellectual property law, where there was come interconnectedness and little case law; planning law and environmental law where there was interconnectedness. In addition, it should be noted that ‘delict’ (Scotland) and ‘tort’ (Ireland) are treated as equivalent categories.

In total there were 20 categories recorded: Agriculture & Fisheries Law, Citizenship, Competition Law, Consumer Law, Contract & Commercial Law, Discrimination and Equality Law, Employment Law, Family Law, Free Movement Law, Human Rights Law, Immigration, Asylum & Refugee Law, IP Law, Planning & Environmental Law, Private International – Civil & Commercial Law, Private International – Family & Children Law, Public Procurement Law, Public, Administrative and Procedural Law, Revenue/Tax Law, State Aid and Tort or Delict.

(4) Private law relationships

The project sought to assess the extent to which EU law was raised and applied in disputes between private parties, drawing on the work of Leczykiewicz and Weatherill where they explored the extent to which EU law affected private autonomy.⁸¹ This is to underscore how EU law extends beyond the state.

(5) Judicial review

Judicial review is the process by which a court reviews a decision, act or failure to act by a public body or other official decision maker. It is only available where other effective remedies have been exhausted and where there is a recognised ground of challenge.⁸² Judicial review proceedings in Scotland in the Court of Session have been the subject of considerable debate,⁸³ and the increasing significance of judicial review generally before the Scottish courts has been stressed.⁸⁴ In Ireland, judicial review is enshrined in the Constitution⁸⁵ but despite this longstanding mandate, the superior courts have treated the power cautiously⁸⁶ apart from a 20-year period of judicial activism from the 1960s when the courts engaged with and articulated the scope of constitutional rights.⁸⁷ Hence the courts have what Cahill and O'Conaill call an ‘instinct towards restraint’ in relation to judicial review underpinned by the presumption of constitutionality.⁸⁸

(6) Claim or defence

We coded cases on the basis of whether EU law was raised by the claimant or defence (appellant or respondent in Ireland)⁸⁹ to explore the hypothesis that EU law was primarily used as a sword by claimants. EU membership requires EU laws to be applied as part of the domestic legal order of Member States.⁹⁰ Where EU law creates rights for individuals (and not every provision of EU law falls into this category) these rights take effect not only as part of the domestic system, but take primacy over domestic law where conflict arises.⁹¹ The consequence being that if you can show, in certain situations, that EU law applies to your case you have ‘the winning point’.⁹² This is of particular importance to commercial disputes, for example.⁹³ However, the ability of litigants to have their EU law rights vindicated is contingent on a number of factors: their own organisational capacities, access to courts generally, and significantly national courts’ interpretation of EU law (subject of course to CJEU jurisprudence) is likely to determine the possibility of enforcing European law through litigation.⁹⁴ Therefore national judges may also be acting as swords and shields, shielding national legislation from the CJEU or alternatively acting as a sword and fostering EU integration.⁹⁵

(7) Relevance

We coded the cases as ‘determinative/dispositive’; ‘relevant/considered’ and ‘irrelevant’ to allow us to try and consider the extent to which the EU law determination was significant in the coded judgments. The classification of cases under these various categories is both difficult, problematic and a matter of judgement. The ‘determinative/dispositive’ category is intended to denote case law where the EU rule or provision was a key factor in the outcome of the judgment and was central to the resolution of the dispute, and this inevitably encompassed the majority of the judgments. The second category of ‘relevant/considered’ indicates case law where the outcome of the judgment did not depend on an EU law provision, although it formed an important aspect of the context or background in the case.⁹⁶ The third category of ‘irrelevant’ connotes cases where EU law was raised but was deemed to be irrelevant or the case did not fall at all within the scope of the provision.⁹⁷

(8) Legal instruments

There are a range of EU instruments that were raised in proceedings in both jurisdictions: Treaty; Regulation; Directive; Decision; Charter of Fundamental Rights; General principles of EU law⁹⁸; soft law⁹⁹; a combination; and Other. The legal instrument at issue in each case was coded based on a determination of the central EU legal provision at issue in the cases, and where there was more than one EU legal instrument which could be considered as the primary EU law instrument at issue, the cases were coded as a ‘combination’.

(9) Preliminary references

Due to the importance of the preliminary reference procedure for the dialogue between national courts and the CJEU, a separate dataset on all preliminary rulings referred to the CJEU from the Scottish and Irish courts was also generated. Using the data available on the CJEU's own website and by specifically searching for references from both Ireland and Scotland, including the urgent preliminary reference procedure, references made by the Scottish and Irish courts were identified. Two datasets were created for this analysis, one for each jurisdiction, each of which was separate from the datasets created to examine EU law before the respective domestic courts of Scotland and Ireland. The datasets include preliminary references made by the domestic courts and tribunals of each jurisdiction, regardless of whether or not a ruling was given by the CJEU or whether the reference was later withdrawn. Because this dataset was small, it was possible to include both civil and criminal cases.

5. Results and analysis

(a) Courts

There were 288 cases in the main Scottish courts (including the Supreme Court sitting in Scottish cases) from 1 January 2009 to 31 December 2018. There were 678 cases for the Irish Superior Courts in the same decade.¹⁰⁰

Analysis

The much larger number of cases in the Irish system is one of the significant findings of the study. The fact that Ireland is a single, unitary state may be suggested as one rationale for more cases within the Irish courts. However, Scotland has a slightly larger population and the availability of actions and remedies against all emanations of the state (Scottish and UK-wide) before the Scottish courts suggests the nature of Scotland as a devolved region within the UK is less significant as a factor in determining the number of EU law-based cases before the Scottish courts. Given that EU law is a core subject in all Scottish University qualifying LLB degree programs and all Irish University law degrees, it is unlikely that there is a comparative lack of awareness in the Scottish legal profession about the scope of European law.¹⁰¹ Nonetheless, anecdotal evidence from leading practitioners has suggested that it may reflect the culture of legal practice in Scotland and the resistance to, and slow adaptation to, less traditional forms of legal argumentation.¹⁰²

(b) EU cases per year

For Scotland, the downward trend in EU law cases before the Scottish courts observable in the 2014–2015 period remains consistent in the 2016–2018 period. In the Irish data the opposite trend can be observed overall, with yearly increases in the number of EU law cases appearing before the Irish Superior Courts between 2009–2018. This is all the more significant given there were significant decreases in EU law-related cases in some years, eg in 2014 (25.3% decrease on 2013) and 2018 (36.7% decrease on 2017) and the overall downward trend in the number of cases before the Irish Superior Courts between 2013 and 2018 (12.45% decrease).¹⁰³

Analysis

The earlier research on Scottish EU case law had demonstrated a general upward trend over the 40 years, with a slight downturn in 2014 and 2015. This trend was also observable in the period running from 2016 to 2018. It is unlikely that this is any direct result of the Brexit vote and may be more likely a reflection of the lower number of civil cases generally in the Scottish courts,¹⁰⁴ but there is no clear explanation for this result. In the Irish data, however, the opposite trend appears to be occurring, with a significant increase in the number of cases litigated in the Irish courts where EU law was relevant. A possible factor contributing to the increase in EU law-related litigation in the Irish Superior Courts might be the increased levels of funding allocated for the provision of legal aid in Ireland following the economic downturn in 2009.¹⁰⁵ Finally, while this indicates that the caseload of the Irish courts is decreasing, the number of cases in which EU law is raised before the court has increased overall.

(c) Subject-matter

In both instances, the most frequent case law concerns immigration, asylum and refugee law. There were 48 cases in Scotland (16.7% of the total), a significant increase compared to the 7.9% over the earlier 40-year period researched. In Ireland 145 cases (21.4% of the total) were also in that category. This was followed in both jurisdictions by planning and environmental law which in Ireland accounted for 16.5% of cases and in Scotland for 12.1% of cases. 10.1% (29) of cases identified in Scotland related to public procurement laws, however this number was significantly lower in Ireland at 3.4% (23) over the period studied.¹⁰⁶

In Scotland, delict accounted for 12.84% of cases, with private international law standing at 12.5% collectively (civil & commercial law at 8% and family and children law at 4.5%).

In Ireland tort law accounted for 3.4% of cases identified, and private international law stood at a total of 8.4% (4.9% civil & commercial and 3.5% family & children respectively).

Analysis

In both instances EU law was most commonly raised and applied in Immigration, Asylum and Refugee Law indicating a high degree of reliance on EU law, via the Dublin Regulations, for the resolution of international protection applications.¹⁰⁷ The UK will leave the Common European Asylum System after Brexit, marking a key change in this area of the law for Scotland after the transition period.¹⁰⁸ An additional cross-tabulation of the use of the Charter of Fundamental Rights and Freedoms with the subject-matter of EU law before the Irish courts demonstrates that the Charter is most frequently raised in conjunction with human rights based claims, followed closely by public, administrative and procedural law issues. However, overall this pattern accounts for only 9 cases where the Charter alone was relied on, indicating that it has not, in the Irish context, had a significant impact on litigation.¹⁰⁹

The predominance of disputes involving state emanations is demonstrated by the ongoing significance of cases relating to planning and environmental law. Reid has noted that Brexit has raised a major issue of constitutional contention between the UK and Scottish Governments over powers returning from Brussels and how they are to be exercised by the state, particularly in the area of environmental standards and protections.¹¹⁰ Howarth correctly notes that this retention of EU substantive legal rules, including environmental rules, presupposes the existence of corresponding internal governance structures to oversee their implementation within the domestic system.¹¹¹ This may pose challenges for the maintenance of environmental protection standards within Scotland post-Brexit, given the reliance on EU-based environmental rights by litigants and the high number of cases litigated as indicated by the data.¹¹² There are also significant levels of EU case law primarily involving private law disputes in both jurisdictions. Crosstabulation between years and subject matter revealed no significant trends in either jurisdiction other than a decreasing frequency in delict case law in Scotland. Despite the slow shift across the EU from a purely public enforcement competition law enforcement model to a system where private enforcement plays a more significant role,¹¹³ there is as yet little evidence of a surge in competition law-related litigation in this study, in comparison with for example the case law of the English and Welsh courts.¹¹⁴

(d) Private law relationships

Less than half of the Scottish cases (129 or 44.8%) and just over one third of Irish cases (249 or 36.7%), concerned private law relationships. These figures are based on the frequency of EU law cases in certain subjects, notably delict and private international law and employment law.

Analysis

The data supports the thesis that EU law is significant for the decision making of national courts in areas of private law, which traditionally were governed exclusively by domestic law.

While EU law has made major inroads into private relationships, it is noteworthy that the number of cases in this category for Scotland halved in the decade under review. EU law is of diminishing significance, with a clear reduction in cases. This can partly be explained by the reduction in civil law cases generally in the Scottish courts. In Ireland the case law is more evenly spread throughout the decade. EU law is of significance in both the private and public law spheres. The relative reduction in private relationship cases is in part explained by the growth in recent years of cases concerning migration, asylum and refugee law and environmental law. Thus, it is not necessarily that EU law is less relevant for private law relationships but that there has been a growth of cases against the state in these two fields.

(e) Judicial review

Both jurisdictions have a significant minority of judicial review proceedings with an EU law dimension. In Ireland there were 270 (39.8%) cases, and Scotland 33% (though the total number is lower at 95 cases).

Analysis

Judicial review proceedings in Scotland constituted a much greater percentage of all case law involving EU law in 2009–2018 than in any earlier period.¹¹⁵ Nonetheless, this also reflects a much broader resort to judicial review in Scotland in recent years,¹¹⁶ and indeed the EU component of the overall judicial review caseload of the Court of Session is relatively low given the average of 303 judicial review cases per year in the court over the years 2008–2014.¹¹⁷ The number of disposals in judicial review cases in Scotland stood at 483 in 2016/17, an increase by 129% since 2008/09,¹¹⁸ although it should also be noted that only 357 judicial review actions were initiated in total in the Scottish courts in 2017/18.¹¹⁹

Judicial review is expansive in Ireland given the ‘full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal’ with which the High Court is invested.¹²⁰ This expansive power points towards the comparatively high numbers of judicial review cases within the Irish courts compared to the Scottish courts. More generally, data for the number of judicial review cases incoming and resolved by the Irish superior courts is sparse, with relatively consistent data only available in relation to the Irish High Court. In 2017 there were 961 incoming judicial review proceedings before the High Court,¹²¹ increasing to 1076 in 2018 (an 11.9% increase).¹²² Overall there was a decline of 18.2% in judicial review cases between 2009 and 2018 in the High Court.¹²³

In relation to EU judicial review case law, the data for Scotland and Ireland reflect a broadly similar upward trend. All the citizenship and free movement EU law-related case law and the vast majority (41 of 48 cases in Scotland and 113 of 145 in Ireland) of the immigration and asylum/refugee case law involved judicial review petitions. EU law is significant in reviewing the actions of the state and the relationship between states and their citizens.

(f) Claim or defence

Of the Scottish EU cases, 92.4% (266) involved EU law being raised by the claimant. In Ireland EU law was raised by the appellant in 86.3% (585) of all cases assessed. EU law was raised by the applicant most frequently before the Irish courts in immigration, asylum and refugee law cases: 141 of a total 145 recorded cases. In the ‘Private International Law – Civil / Commercial’ category EU law was raised to a significant degree by the defender/respondent to the case (7 cases in Scotland and 16 in Ireland)

Analysis

This data demonstrates, as D'Sa argued as far back as 1997, that EU law can act as both a sword and a shield for the protection of rights, providing tangible protection to individuals within their domestic legal systems that they would not be afforded if not for the presence of EU law within the field.¹²⁴ Furthermore, that appellants raised EU law in 86.3% of cases identified for Ireland demonstrates the importance of EU law as a sword, that is an action against another party, within the domestic legal system, and this was demonstrated to an even greater extent before the Scottish courts. The degree to which applicants in immigration, asylum and refugee law cases raised EU law indicates its importance as both a source of rights and a defence against the state in the Irish context. Only in the context of the ‘Private International Law – Civil / Commercial’ category was there a significant number of cases involving EU law raised by the defender/respondent in both legal systems.

(g) Relevance

In Scotland EU law was determinative in 69.1% of cases; in Ireland this figure stood at 70.5% of cases (a 1.4% difference). EU law was considered in 26.4% of Scottish cases and 21.2% of Irish cases. EU law was irrelevant to 4.5% of cases raising EU law in Scotland and 8.3% of cases in Ireland.

Analysis

The data demonstrates striking similarities between the Scottish and Irish courts regarding how determinative EU law is, when raised, to the outcome of cases. This suggests that in both jurisdictions EU law is most likely to be raised where it is central to the outcome of the case, or at least is highly relevant. Furthermore, the high percentage of cases from both Scotland and Ireland which identified EU law as determinative to the outcome of a case, may also be indicative of both an increasing awareness and effective deployment of EU law by claimants in the litigation process.

(h) Legal instruments

In Scotland, 58.3% of all cases involved directives, and in Ireland 62.2% of cases involved directives, with regulations following at 18.8% in Scotland and 16.9% in Ireland.¹²⁵ The application of a treaty provision was at issue in 36 cases (12.5%) in Scotland and 61 cases (9%) in Ireland,¹²⁶ primarily related to citizenship, public law (admin and procedural) and competition law cases for both jurisdictions.

Analysis

Both the Scottish and Irish case law indicate that the most commonly applied EU instruments are directives. The predominance of directives in the data is perhaps unsurprising given that directives are the most common EU legal instrument, followed by regulations, as the data again demonstrates.¹²⁷ Directives are generalised pieces of legislation which set out policy goals to be attained by the Member States and are binding as to the result to be achieved.¹²⁸ They grant national policy-makers the freedom to select the most appropriate method of attaining these goals within the domestic system.¹²⁹ This decentralised method of legislative implementation with Member States, as Hubner has argued, leaves more room for manoeuvre in implementation and can lead to more complex regulatory questions arising before national courts as to the scope and application of directives, and additionally increases the likelihood of references being made to the CJEU as to the interpretation and validity of such acts.¹³⁰ Therefore, EU legislative instruments such as regulations, as the data appears to indicate, are less likely to be raised in legal proceedings as they leave considerably less room for differences of interpretation given their direct applicability to objectively determined situations.¹³¹

The comparatively low use of EU Treaties in litigation arguably reflects their role as ‘framework treaties’ which establish procedures and governance structures that empower EU Institutions, such as the Parliament, to make secondary EU laws which carry out the substantive task of securing the treaties’ objectives by regulating activities within, and between, Member States via the transposing of these goals into the regulations and directives which contain them.¹³² The ‘Other’ category of rules essentially encompasses conventions, primarily the Brussels Convention where there have been fewer cases arising in the more recent period given that the Convention was superseded by Regulation 44/2001 and its successor Regulation 1215/2012.

(i) Preliminary references to the Court of Justice

There were five references from the relevant Scottish courts to the CJEU and five rulings in the ten-year period¹³³ out of 288 EU cases (1.7%). The Scottish references were on tax (two cases concerning VAT and interpretation of Directive 77/388/EEC);¹³⁴ CAP payments (interpretation of Regulation 795/2004);¹³⁵ minimum pricing of alcohol in the context of free movement of goods;¹³⁶ and a reference on Article 50 TEU in the context of Brexit.¹³⁷ Only the latter two cases were referred from the Supreme Court in appeals from the lower Scottish courts.

There were a total of 64 references from courts (58) and tribunals (6)¹³⁸ in the Irish jurisdiction over the ten-year period of the study. Of these, seven were referred via the urgent preliminary reference procedure.¹³⁹ 21 were made by the Supreme Court, 9 by the Court of Appeal, and 28 by the High Court. Civil law issues accounted for 47 cases referred, with the remaining 11 stemming from criminal law issues.

Analysis

Preliminary reference requests constitute the single most important mechanism connecting national courts with the CJEU, setting in train a dialogue between them and allowing national courts to raise questions of interpretation with the CJEU.¹⁴⁰ The difference in practice between the two jurisdictions¹⁴¹ may partly be as a result of reluctance by the courts to make references,¹⁴² particularly on the basis of the acte clair doctrine¹⁴³ – although this may not be limited to the Scottish courts.¹⁴⁴ Nonetheless, the infrequent resort to sending preliminary references may simply partially reflect the significantly lower level of EU case law generally in the Scottish courts.¹⁴⁵ Despite the dearth of preliminary rulings in the Scottish context, the rulings in the two most recent disputes were of considerable significance; the first in Scotch Whisky Association and Others v Lord Advocate, in relation to substantive EU law on free movement of goods and rules designed to enhance public health, and the latter, Wightman & Others v Secretary of State for Exiting the EU, in the context of a constitutional dispute regarding the Article 50 withdrawal from the EU process.

The number of references from the Irish Supreme Court shows a robust dialogue with the CJEU and the marked openness of the Supreme Court to make references since it first did so in the 1980s.¹⁴⁶ References from Ireland address a wide range of topics. Some had a significant impact upon the EU itself. In particular Pringle v Government of Ireland provided the mechanism through which one of the most important judgments issued by the CJEU on the EU's Economic and Monetary Union was adopted.¹⁴⁷ The CJEU's ruling, which was facilitated by the reference from the Irish Supreme Court, affirmed the legality of the European Council's decision to amend the TFEU and permit the creation of the European Stability Mechanism, a central pillar of the EU's response to the fiscal crises.¹⁴⁸ Schrems v Data Protection Commissioner, which was the result of a preliminary reference from the Irish High Court, had wide reaching ramifications not only for the EU's data protection regimes, but also extra-territorial impacts in how the EU and its Member States share data with third countries, resulting in the EU-US Safe Harbour Agreement being declared invalid by the CJEU.¹⁴⁹ The CJEU's decision in effect prohibits the generalised access of public authorities to electronic communications as ‘compromising’ individuals’ fundamental rights to respect for private life under Article 7 of the Charter.¹⁵⁰

Both cases suggest that the courts of a small EU Member State may influence the development of EU law in important ways. This runs contrary to the idea that small Member States face challenges inshaping the EU's policies and laws.¹⁵¹ Panke attributes these challenges to two factors: first, the comparatively limited bargaining power of smaller states; and secondly, their constrained fiscal resources compared to larger Member States.¹⁵² These examples demonstrate the impact that small EU Member States, such as Ireland, may have on political and constitutional developments of the EU outside the political sphere through distinctly legal mechanisms. Similarly, the High Court's preliminary reference to the CJEU in the case of Clemer,¹⁵³ concerning deficiencies in the independence of the Polish judiciary, demonstrates that courts from any Member State can act set checks and balances on other Member States’ compliance with Union values and legal norms. A similar observation can be made of Minister for Justice and Equality v OG and PI, included in our preliminary reference dataset, where the Supreme Court not only acted as a check on the German Public Prosecutors structural independence, but exercised considerable influence over another Member State's internal arrangements, in relation to the European Arrest Warrant in this instance, leading to a reshuffling of institutional balance within the state via the use of the preliminary reference procedure.¹⁵⁴

6. Reflections on the application of EU law in the courts of Scotland and Ireland

There are four main conclusions that can be drawn from this comparative study. First, EU law matters. The data demonstrates, through a snapshot of a ten-year period, how routinised and embedded the EU's legal order is within the case law and judicial processes of both Scotland and Ireland's legal systems, indicating a substantive internalisation of EU law, principles and norms as a normative part of their domestic legal orders. Furthermore the analysis of the most commonly occurring subject-matter of case law for both jurisdictions points to their dependence on supranational laws and governance structures in the environmental law context, as well as their mutual benefit from cooperative systems such as the Dublin Regulations for dealing with immigration, asylum and refugee matters. This study is important, as it will allow measurement of the shift in reliance on EU law in the Scottish courts before and post-Brexit.¹⁵⁵ Specifically in the Irish context the question arises as to the impacts the UK's departure will have on Irish courts generally, and more fundamentally for the common law within a Union that will be more dominated by civil law countries.¹⁵⁶ Those ramifications are uncertain but as an English language common law jurisdiction, there may be an increase in transnational commercial disputes before the Irish courts and a greater openness to the civil law.

Secondly, and related to the first point, the Irish courts, despite a slightly smaller population, have far more cases where EU law is raised than the Scottish courts. While the data itself does not reveal why this is the case, it may provide at least a partial explanation for the significantly lower number and proportion of preliminary references to the European Court from the Scottish courts compared with their Irish counterparts. Thirdly, EU matters for private law relations as well as relations between individuals and the state, a trend identified for both jurisdictions. Fourthly, for both jurisdictions in the civil law domain (which these studies are limited to), migration, asylum and refugee law and environment and planning are the two most significant areas where EU law is evident. Both fields are relatively new, and so the law is less settled. Migration necessarily involves people crossing borders and hence the zone of EU influence readily emerges. EU law on the environment has grown with many of the issues pertaining not to cross-border issues but to concerns that are often local and linked to the EU requirement of an environmental impact assessment for development.¹⁵⁷

The Scottish and Irish courts can be relied on to have regard to and implement EU law in civil law cases, in both judicial review proceedings and in cases concerning private relationships.¹⁵⁸ National courts are critical to the integration and application of EU law within domestic legal systems, and we can see for both jurisdictions that purely on a quantitative level, there is activity across the higher courts and across legal issues that pertain to EU law. The studies here go much further than preliminary references, as in fact there are very few references (especially in the Scottish courts) compared to the number of times EU law is raised. This arguably serves to underline the extent to which EU law is now routinised and established within these domestic legal systems and provides a benchmark against which to measure the degree of disruption and/or fracture that Brexit may engender in different ways in both jurisdictions.

Conclusions

This paper has presented and compared data on the consideration and application of EU law by the Irish and Scottish courts between 2009–2018, building on Rodger's study on the first 40 years of EU Law in Scotland, and Fahey's work on preliminary references in Ireland over the same period. Comparison is not straightforward despite the proximity, common language, and shared history. Nonetheless, the exercise highlights some similarities and differences and, perhaps most significantly, sets down a marker against which to measure differences between the two jurisdictions at the end of the first decade following Brexit. Substantive analysis of EU law is common in both jurisdictions, but this sort of data analysis is not. The paper shows the value of understanding how often EU law is raised (in both jurisdictions, EU law is raised in a very small number of cases overall) and in what fields, to give a better understanding of those areas of the law that are most likely to arise in a domestic context. This in turn suggests in Scotland those fields – environment and migration – which will be most affected by Brexit. Finally, the German Constitutional Court handed down its controversial judgment in Weiss ¹⁵⁹ recently, which in part is forcing a reappraisal of the way national courts, and especially constitutional courts, perceive of and carry out their role as EU courts. The question of when, how often and in what fields EU law is raised on a day-to-day level in domestic courts remains important and underpins the larger constitutional questions of competence and the collegiality that must now be grappled with anew.