In our contribution to Article 47 of the EU Charter and Effective Judicial Protection – Volume 2: The national courts’ perspective, Gráinne Gilmore, Clíodhna Murphy and I examine the impact of Article 47 of the Charter in the Irish legal system. As Ireland celebrates 50 years of EU membership, the place of EU law in the Irish legal system is now firmly established. As Kingston has recently observed, “the Irish courts’ approach to EU law has been characterised by openness, constructive engagement and, in recent years, a notable confidence in raising novel and difficult issues going to the core of the EU legal order”. Broadly speaking, this is reflected in the Irish courts’ approach to Article 47 of the Charter. If, over twenty years after its proclamation and almost fifteen years after it gained full legal force, the experience of the Charter has been “somewhat underwhelming” (Hogan, 2020), in the case of Article 47, we see evidence of its emerging impact in the Irish legal system.
In terms of quantity, according to our research, Article 47 has been referenced in more than 160 judgments of the Irish courts to date. Because written decisions are relatively rare in the lower courts, these references have taken place almost entirely at the level of the Irish superior courts. Almost all of them post-date the coming into force of the Lisbon Treaty, with a consistent level of engagement with the provision over the past decade. While this is a lower number of references than in larger Member States such as Germany and France, it is significantly higher than in other Member States featured in this series, such as Sweden and Croatia. All in all, bearing in mind Ireland’s relatively small size, it may be said that, at least in quantitative terms, Article 47 has had a discernible impact in the Irish legal system.
In terms of quality, the level of engagement with Article 47 varies widely across the case-law. In many instances, the judgments make little more than a passing reference to Article 47. As in other jurisdictions, this may be explained by the fact that Article 47 is frequently cited alongside domestic constitutional rights guarantees, the European Convention on Human Rights or specialised instruments such as the Aarhus Convention. However, in other cases, there is detailed and considered engagement with the provision and the case-law of the CJEU, with a willingness to refer to novel and complex issues to the Court of Justice.
In order to shed light on the role of Article 47 in the Irish legal order, we examine four areas of practice where its impact is particularly evident.
As in Belgium, France, and Hungary, Article 47 has made its presence felt in Ireland in the field of administrative law, perhaps most notably in the field of asylum and immigration law. In this field, the provision has been cited in more than 65 judgments. Even if it has rarely taken centre stage, it has nonetheless played a significant role in certain types of case, such as those involving the operation of the Dublin system or concerning the legal process for determining international protection applications. More broadly, Article 47 has also made an important if indirect contribution to the emergence of a more intensive form of judicial review of decisions in this field.
In another important specialised field of administrative law, planning and environmental law, Article 47 has also been frequently invoked, albeit often alongside specialised provisions of EU environmental legislation such as the EIA Directive or the Aarhus Convention. As a result of its invocation alongside such specialised provisions, Article 47 has often played a subordinate role in the case-law in this field. Nevertheless, in some cases such as the recent case of Friends of the Irish Environment CLG v Legal Aid Board – concerning whether an environmental NGO, as a legal person, was entitled to apply for civil legal aid under Irish law – there has been detailed consideration of Article 47. This is a signal that Article 47 may develop as a means to stress test limitations on access to justice in individual cases. Indeed, at a time when the process of challenging the decisions of public bodies by way of judicial review is coming under pressure, particularly in the field of planning and environmental law, Article 47 may yet prove a very important backstop for effective judicial protection within the Irish legal system.
The impact of Article 47 is not, however, confined to the field of administrative law. It is also evident in fields of law where the influence of EU rules, including the Charter, has become an increasing feature of the legal landscape over the past twenty years.
For example, if the field of criminal law has traditionally been insulated from EU law, the last two decades have seen a significant evolution in the EU’s role in criminal matters, perhaps most notably with the emergence of the European Arrest Warrant. Article 47 has been referenced in over 30 judgments in this field in Ireland. While many of these references are routine, some of the cases have been of considerable importance for both the Irish and EU legal orders, most notably the Celmer/L.M. case concerning surrender to Poland against the backdrop of reforms which undermine the principle of judicial independence. Article 47 has also been invoked in other contexts both as a ground for opposing surrender and as a consideration supporting surrender.
Perhaps the most notable influence of Article 47 in recent years has been in the field of data protection. First, in data protection as in other fields governed by EU law, the right to an effective remedy under Article 47 has helped to define the procedural framework under which national measures, whether in the form of legislation or decisions of the national supervisory authority, can be challenged before the courts, including on issues of standing, the scope of appeals, and the decisions capable of judicial review. Second, and more substantively, Article 47 has had a significant impact in the ongoing legal saga about international data transfers, in which the Irish courts have played a central role through the references in Schrems I and Schrems II.
Indeed, if the domestic case-law may not add significantly to the understanding of Article 47 across the Union, through their dialogue with the CJEU, the Irish courts have arguably played an important role in the development of Article 47 of the Charter in the EU legal order. While there have been references from Ireland in a range of fields of EU law, the most notable examples of this dialogue are found in the Celmer/L.M. case and Schrems I and Schrems II cases already mentioned.
As is well known, in its judgment in L.M., the CJEU underlined the importance of judicial independence under Article 47 of the Charter. According to the Court, “the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial”. Just as the independence of national courts and tribunals was “essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU”, the CJEU emphasized that it was also essential to the operation of the EAW mechanism. That being so, where there was a real risk of a breach of the fundamental right to an independent tribunal and, therefore, of the essence of the fundamental right to a fair trial, as guaranteed under Article 47 of the Charter, the CJEU confirmed that an executing judicial authority could refrain, by way of exception, from giving effect to an EAW. However, the strict conditions laid down by the CJEU in that judgment have led to a series of further references, most notably from the Dutch courts but, also in the case of WO and JL, the Irish Supreme Court. This provides a very interesting example of active dialogue between national courts and the CJEU. And, while there has clearly been some unease with the approach of the CJEU, the Irish Supreme Court has nonetheless faithfully applied the CJEU jurisprudence.
Similarly, in the Schrems cases, the references from the Irish courts have led to important statements of principle on the importance of Article 47 within the EU legal order. In Schrems I, the CJEU expressed the view that “legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter”. The Court reaffirmed that the “very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law”. This set the stage for Schrems II, where the CJEU concluded that the EU-US Privacy Shield decision was invalid, placing particular emphasis on the fact that US law did not provide effective judicial protection of the kind required by Article 47 of the Charter. These issues are likely to remain live in the context of the recently agreed EU-U.S. Data Privacy Framework, which replaces the Privacy Shield.
In conclusion, while the full potential of Article 47 may not yet have been fully realised at the domestic level in Ireland, that provision has nonetheless had an important influence in the Irish legal system in two ways. First, even if the level of engagement varies, Article 47 has become increasingly embedded in domestic case-law in fields governed by EU law, such as asylum and immigration, environmental and planning law, and data protection. Second, by engaging in an active dialogue with the CJEU in novel and complex cases raising issues of effective judicial protection, the Irish courts have contributed to the development of Article 47 within the EU legal order more generally.
Posted by Dr David Fennelly (Trinity College Dublin).
Suggested citation: D Fennelly, “Article 47 ECHFR before the Irish Courts”, REALaw.blog available at https://wp.me/pcQ0x2-Ht.
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