Right Between Domestic Courts and the Luxembourg and Strasbourg Courts

Dr. Maria Cahill, Lecturer in Law, University College Cork

Prof. Giuseppe Franco Ferrari, Professor of Comparative Public Law, Bocconi University, Milan

Constitutional rights in the domestic and the multi-level perspective

Summary: 1.Citizens’ and Human rights in the Irish context; 2. Unenumerated Rights; 3. A Summary of Domestic Constitutional Rights; 4.Ireland and the Strasbourg Court; 5. Ireland and the European Union Court.

1. Several rights that elsewhere belong to persons or human beings or that are declared inviolable in order to be attributed to every person subject to the jurisdiction of the State where they physically are –such as in Italy- or to be considered fundamental –like in art. 10 of the Spanish Constitution- in the Irish context belong to citizens (art.40). On the contrary, some rights elsewhere no longer qualified as human or simply reduced in their core and submitted to stricter limitations than before, like property, are declared human rights. This choice could depend on the epoch of adoption of the present Constitution, which precedes the post- World War II constitutional phase and its renewed sensibility towards international law and the internationalization of rights, as well as on the need to emphasize the legal condition of citizens after the recent achievement of independence from the United Kingdom through the experience of the Irish Free State. This last hypothesis is apparently confirmed by the uses of basic terms like State, nation and people in parts of the constitutional text not directly concerning rights.

“State”, like in art.4, 5 and 6, apparently defines the legal person, cumulating most of the powers formerly belonging to the King or the Crown, though not all of them. The Irish Supreme Court has actually repeatedly denied that the royal prerogatives had been carried over in the Irish Free State in 1922 and by art.47 in 1937: that should mean they have been repealed as a category, though some of them revived under different names and on different foundations. For instance, the immunity of the State from suit has disappeared, while the control of immigration and the power of definition of the dimension of the demos belong to the people according to the general provision of Art.49.1 and the treasury trove as of common law can stem from the sovereignty of the State according to Art.5, and art.11 of the 1922 Constitution.

“Nation” is often used as a synonymous of “people”. In art. 1 the nation affirms its inalienable right to choose its form of government; in art. 3, amended as art. 2 in 1998 after the Belfast agreement, the original territorial claim has been superseded and substituted for by the will of the nation to unite all the people who share the territory of the island through peaceful means and the consent of a majority of the people, democratically expressed in both jurisdictions; finally in art.2 the definition of the Irish nation as the unity of all persons born in the islands and seas of Ireland presupposes the preference for the ius soli entitlement as the ordinary way of access to citizenship, following the former text of the Irish Nationality and Citizenship Act 1956. If the nation, never mind whether conceived as a group of persons kept together by objective facts only or by subjective ties as well, like common culture and willingness to live together in a republican context, is a sum of citizens, then it is hard to draw a clear line between the nation of art.1 and people of art.6, having the right to designate the rulers of the State. This interpretation is supported by the constitutional revision of 2004, which, lest foreigners could be tempted to move to Ireland in order to get the citizenship for their sons, amended art.9(2) in order to prevent, at least for the future, persons born in Ireland but having no parents being or entitled to be Irish citizens from getting the citizenship. Shortly after, the Irish Nationality and Citizenship Act 2004 introduced the possibility for the baby born in Ireland to a parent not being Irish citizen but having lived in Ireland three of the last four years to get the citizenship. The emphasis on citizenship as the founding condition of the nation equates the nation with the people. The choice of the Irish language as official national language in art.8 supports this interpretation. The special care historically dedicated to citizenship as a precondition of nation and people justifies the concentration on the citizen of the most part of civil rights and of all political rights.

The same approach is distinguishable in art.40.1, that, opening the title dedicated to fundamental rights with the principle of equality, states that “all citizens shall, as human persons, be held equal before the law”, without prejudice for individual differences of capacity and social function. The Irish Supreme Court, like all European constitutional and supreme courts, has be-elaborated the classical categories of equality, like the distinction between formal and non-formal equality, the standards of scrutiny in presence of direct or indirect discriminations based on various parameters such as gender, religion, race, age. But the peculiar formulation of the equality principle in the Irish context has raised the doubt that criticism of a statutory provision in the application of the constitutional clause of art.40.1 could be stirred only when some characteristics of the human personality are at stake, though it remains unclear which should be the essential attributes of human personality.

Justice Kenny has been very active in developing this interpretation of the clause: for instance, in excluding its application to trading activities and conditions of employment as essential attributes of personality, as well as to the ability to work, the fiscal capacity and the attitude to receive social benefits. Yet, this approach makes very hard to distinguish between the parameter or basis of the discrimination and the context where the discrimination takes place, which is of high importance in evaluating the reasonableness of the discrimination from the factual viewpoint of its effects. Following this method, the Supreme Court has been disposed to recognize the violation of the essential attributes of human personality in the treatment of parcels of land respecting the application of the property tax: the distinction between relevant and insignificant characteristics of human personality ends up either in an analysis about the more or less serious impairment of human dignity or in a search of the more or less deferential standard of review towards the legislative classification at stake. In other words, the citizen versus human person alternative in the equality case law seems to be nothing else than the Irish way to the interpretation of the equality principle: the onus of justification, the narrow or wide character of the suspect classification, the ends/means verification, the compelling versus merely legitimate purpose, the tiers of scrutiny, all of them are techniques converging or included in the equality analysis under the “citizens as human persons” label.

2. Several constitutional systems in the last 50 years or so have elaborated theories implying the introduction in the respective constitutional context of unenumerated rights.

The U.S. Supreme Court since the time of Chief Justice Warren has used alternatively the penumbra doctrine and the IX Amendment in order to recognize rights not codified in the constitutional catalogue. Only Justice Harlan, in Poe v. Ullman, has suggested the use of natural law as a storeroom of ideas and values from which to extract claims worth being recognized and eventually declared fundamental; Justice Hugo Black strongly opposed such an approach; value-oriented theories followed by some scholars, like Bruce Ackerman, Michael Perry and Lawrence Tribe, incline to the recognition of new rights through moral and political philosophy.

In other contexts, either it is the constitution itself to contemplate rights of nature similar to the listed rights, like the Constitution of Portugal at art.17, or the courts have elaborated new claims stemming from constitutional principles or international treaties, like in Norway, or from rights already recognized or being indispensable elements of the democratic order, like in Switzerland.

The Irish system is foremost in the techniques of recognition of unenumerated rights construing them on ius natural doctrines. The constitutional instrument to open such a way has been art. 40.3, binding the State “by its laws to defend and vindicate the personal rights of the citizen” and specifying, in the following proposition, that protection and vindication shall concern “in particular …the life, person, good name, and property rights”. The words “in particular” have been construed as to imply the existence of some non explicitly enumerated rights besides and beyond the text of the written Constitution and the catalogue of rights listed in it.

This method somehow resembles the approach of the Belgian Cour d’arbitrage, whose interpretation of the word “notamment” in art.23, opening the list of rights in the Charter, also implies the recognition of fundamentality to claims not formally included in it.

It is well-known that the Irish case law started to incorporate the unenumerated rights doctrine in 1965, in the opinion by Justice Kenny in Ryan v Attorney General. The interpreter can now wonder whether the protection from the fluoridation of public water as a measure to reduce dental caries could not be included in the defense of the person imposed by art.40.3.1 and really needed such an ambitious foundation in an extra-constitutional bodily integrity right, above all because Justice Kenny and the majority of the Court were going to conclude that such a right had not been illegitimately restricted. Yet, that has been the initial move of a long chain of precedents, elaborating the sources of the personal rights of the citizen. Since then Irish scholars have dedicated the best of their intellectual efforts to rationalizing the case law and classifying the various figures of non-enumerated rights, their methods of identification and their compatibility with the constitutional text, in a never-ending search of equilibrium in constitutional interpretation and judicial review between natural law and positive constitutional mandates. Curiously, while the originalist position in American scholarship opposes the introduction of new rights and favours a strict interpretation of the Bill of rights, in Ireland to the contrary those who support the recognition/creation of new non-textual rights look for a foundation of them in Christian values or in the natural law as a theological concept, assuming that they are formally recognized in the Constitution, for instance in the Preamble and in art.6, and should therefore provide a sort of higher law guidance to judges and scholars.

One of the best descriptions of the diachronic evolution of the unenumerated rights doctrine suggests that since Ryan at least four different paths have been followed to protect rights not explicitly enumerated, like the rights to bodily integrity, to travel, to privacy and to marital privacy. It has been assumed: i. that they stem from the Christian and democratic nature of the State; ii. that they are inherent in the human personality; iii. that they are protected by natural law; iv. that their protection is implicit in some constitutional provisions.

During the almost fifty years after Ryan some or even all of these arguments have been used together in support of the same conclusion.

The Christian and democratic nature of the State appears in Justice Kenny’s opinion in Ryan, integrated with citations of the Encyclical Letter “Peace on Earth” and other Catholic social teachings, and is expanded in 1979 with reference to the right to travel and in 1987 and 1999 to the right to privacy. The human personality argument is first used by Justice Henchy in 1974, in McGee v Attorney General in order to give constitutional protection to marital privacy and later, in 1984, in the dissenting opinion in Norris, where however textual arguments are applied as well, like the secret ballot guarantee of art.16 or the preamble formula, which contains common good, the observance of Prudence, Justice and Charity, and the dignity and freedom of the individual.

The same propositions of the Preamble are used to demonstrate the rooting of Christian values in the constitutional text. The natural law argument came to the fore in McGee v Attorney General in the words of Justice Walsh and has been developed in later years, like in 1980 by Chief Justice O’Higgins: the idea that there are individual and family rights not created by law, born and guaranteed out of the control of the State as superior or antecedent to positive law and simply recognized by the Constitution is completed through the suggestion that the Constitution itself provides guidelines to the discretion of judges in identifying the principles of natural law to be followed. Finally, the theory that some rights are implicit in other constitutional provisions and can be protected through art.40.3.1 has brought about the right to access to courts via art.34.1, which provides that justice is to be administered in courts established by law, and the right to marry via art.41, concerning the status of family.

The scholarly discussion about natural law and the Constitution is kept lively by some exacerbation of the opposite positions. The authors, like Desmond Clarke and Gerald Hogan who criticize the recurrent use of natural law or of its proxies to carve out new rights also complain about the expansion of the judicial review, apparently unprincipled. Those who sustain the judicial reliance on natural law sometimes exaggerate in the disapproval of positivism, like Richard Humphreys. The reasoning becomes circular and paradoxical when some judges and scholars try to create a link between natural law and the Constitution by assuming that the Constitution derives its authority and validity from natural law, which keeps on being superior to positive law, though the discovery of its content is committed to the agents of positive law themselves, in the words of Oran Doyle. If such an approach has room, it is possible, for instance, to pave the way for a declaration and vindication of socio-economic rights through the clause of art.40.3.1 which apparently only concerns rights not included in the directive principles of social policy, regulated by art.45: to avoid this Chief Justice Keane has called for a careful self-restraint. It is even possible – and this has happened at least a couple of times – to invoke natural law to strike down not only ordinary legislation, but also to question the legitimacy of a constitutional amendment, on the assumption that the Constitution recognizes natural law as a source of its own validity situated outside its sphere.

It is hard for a foreign observer to reach final conclusions on a debate that passionately divides the legal culture of a country. Apparently the inheritance of a deeply rooted Catholic culture has had overwhelming weight in favouring interpretative solutions that privilege some forms of natural law in a context where citizens’ rights have been positivized and constitutionalized. The most evident consequence is that through art. 40.3.1 several rights formally defined in Constitution as citizens’ rights have a chance of becoming or being qualified and protected as human rights. On one hand, natural law can and sometimes does work as a transformer, giving a right defined as citizen’s a status, that would elsewhere be qualified fundamental, which comes very close to that of a right belonging to the person as such. On the other hand, however, the same constitutional clause is able to generate an inflation of rights rooted in the natural law and to widen the discretion of the judiciary, notwithstanding possible guidelines included in Constitution as to the use of the values assumed to be implied in the natural law itself.

3. A quick overview of the Irish approach to rights allows to emphasize some of the peculiarities of this constitutional system.

Personal rights, in the language of the title of art. 40, include property, besides life, person and good name, listed in art. 40.3.2, and dwelling (40.4.5), freedom of expression (40.4.6), right to assemble peacefully and without arms, and right to form associations and unions, subject to public order and morality. The inclusion of property in this group instead of the principles of social policy aimed at improving the welfare of the whole people, of art.45, depends on a matter of generation: all the charters of the period immediately following World War II include property in the socio-economic rights, limited on account of compelling public interests; Ireland in 1937 was still inclined either to Lockean or to Catholic concepts.

The right to life has generated no controversies with regard to the death penalty, both due to the suspension of capital execution in 1954 and the amendments to art. 15.5 and 28.3, introducing the prohibition of death penalty even in time of war. It has helped, however, in construing the right to die a natural death. And, above all, it has been pivotal in what can be called the ”sale of contraceptives saga”, the story of the right to life of the unborn. The introduction in 1983 of art.40.3.3 in the text of the Constitution starts the whole saga, with the introduction of a formal constitutional right of the unborn, to be balanced with the right to life of the mother. Then the Supreme Court in 1988 grants an injunction restraining from assisting pregnant women to travel abroad to obtain abortions, making travel arrangements or informing them about locations and methods. This decision was found to be in violation of art.10 of the ECHR by the Strasbourg Court in 1992.That same year the Supreme Court annulled an injunction restraining a 14-year-old girl pregnant due to an alleged rape from travelling abroad. After the X case the people, twice requested, in 1992 and 2002, to give its opinion concerning the issue of abortion, twice rejected a constitutional amendment, while, again in 1992, another amendment succeeded in introducing provisions concerning information and the right to travel, bringing art.40.3.3 to the present text. Finally in 2006 the High Court excludes the application of art.40.3.3 to embryos created in vitro.

The right to a good name has been construed around a cluster of procedural safeguards in case of investigation.

The protection and vindication of the person has generated a right to bodily integrity as unspecified right, the construction of which is apparently in negative terms considered to be the exclusion or limitation of physical intrusions on one’s body, having courts declined to attach it positive meaning of a socio-economic claim carrying resource implications. At the same time, the protection and vindication of the person should be root of the right to earn a livelihood, though not a particular livelihood, construed by the Supreme Court in a case concerning a picketing of industrial premises: in this case, though it is still conceived in merely negative terms, the claim takes over some colour of labour law.

The Irish courts relied on the same root to build up the right to privacy, defined by Justice Henchy as “a complex of rights, varying in nature, purpose and range, each necessarily a facet of the citizen’s core of individuality within the constitutional order”. The outlines of this right have been drawn more precisely in the 80s and 90s, coming to include the protection against telephone bugging, the refusal to receive medical treatment, the exclusion of medical practitioner’s data from being publicized, the claim to be free from being watched by journalists. Many of the cases after 1974 obviously concern the marital sphere of autonomy, possibly giving rise to a distinct right to marital privacy.

Finally, the rights of access to courts and to litigate have been also construed on the same premises, i.e. around the idea of personal liberty, a sort of leafy tree whose penumbra is able to disclose several claims not otherwise attributable to specific constitutional provisions.

As far as private property rights are concerned, their protection and vindication usually relies on art.40.3.2, but also on the more detailed guarantee of art.43. The natural law roots of property according to its formulation have already been pointed out: judicial dicta underline both the centrality of property to the humanity of each individual in a free and democratic society and the importance of economic rights in the social doctrine of the Catholic Church. In more strictly legal terms, Chief Justice O’Higgins in 1982 explained the difference between the two constitutional protections afforded to property. Art.43 is directed to the State and protects property as an institution, together with the right to transfer, bequeath and inherit, against the abolition, though affording its regulation, while art.40.3.2 is aimed at safeguarding the items of an individual as personal rights. The Irish courts have developed a cluster of judicial tests in order to review the admissibility of restrictions of property rights by Oireachtas, which closely resembles the scrutiny applied by the U.S. Supreme Court and the European Court of Luxembourg: they require that the aim of the piece of legislation not be anomalous, that the means be compatible and not overbroad, that the right be impaired as little as possible, that a compensation be provided, that the statute be not retrospective.

Summing up, Irish courts have elaborated something as a proportionality test, according to the European legal language.

In the sphere of social policy, the directive principles of art.45 have been initially interpreted, emphasizing its initial words, as only implying a “general guidance” for the Oireachtas and excluding any power of the courts to enforce positive obligations, though a contrario it could be inferred that the duties prescribed in arts.40 to 44 are real duties. Later on, some decisions have recognized a right to work as a personal right in the meaning of art.40.3, founding also in the right to work and earn a livelihood” mentioned in art.45.2.1°. The same provisions have been used in order to protect private enterprise against state monopolies and to define the limits of the restraint of trade in the traditional construction of the common law

4. The relationship between the ECHR and the Irish State somehow parallels the one between the Convention and the United Kingdom, both from the viewpoint of history and in terms of constitutional solutions. It cannot be a case that the ECHR, entered into force in Ireland in September 1953 after the ratification of its text and of all the Protocols with the exception of the Twelfth, has been incorporated, through a special indirect or “interpretive” form, at the end of 2003, i.e. five years after the U.K. Human Rights Act, 1998, which has incorporated the Convention in a very similar way. The Belfast agreement for the settlement of the Northern Ireland controversy is not unrelated to this choice.

Before 2003 the Irish approach to international law could not do without observing the constitutional principles formulated in 1937, which were very dualistic, due to the period they belonged to. Art.29 actually opened the Irish system to “the generally recognized principles of international law” (s.3), but in in s.6 it prescribed that “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas”. Therefore, the situation before 2003 was such as to make the Convention binding on Ireland, but not in it: in other words, the Government was obliged to accept the decisions of the Strasbourg Court when the State was sued and convicted before it, but administrative acts, judicial decisions and even legislative texts could not be challenged in Irish courts under the allegation that they violated Convention principles, because they were not considered part of Irish law and could only be vindicated at Strasbourg after exhausting the remedies offered in the domestic system.

In the half century between 1953 and 2003 Ireland has been one of the States most observant of the ECHR, being sued as respondent only twelve times and losing nine of such cases and a significant part of them concerned problems relating the familiar sphere and various aspects of sexual behaviour.

The ECHR Act 2003 has finally incorporated the Convention, though in a very prudent manner, trying to apply a filter to the possible production of severe effects on domestic law and on the equilibrium of the system of legal sources as presently structured in Irish constitutional law.

First of all, according to s.2(1), Irish courts are required to interpret national statutes and rules, insofar as possible, in a manner compatible with the Convention: this conformity obligation is present in several European Constitutions since the ‘70s and does not represent a serious alteration to the functioning of the judicial power, though it renders it necessary to get accustomed to a sort of double standard of interpretation.

Secondly, if such interpretation is impossible and no other adequate legal remedy is available, the High Court or the Supreme Court must publish a declaration of incompatibility of the relevant provision, which has no impact on the enduring operation of it, but starts a procedure in each House of the Oireachtas and entitles the damaged party to apply the Attorney General for a restoration of any loss caused by the incompatibility.

Third, all the organs of the State must, according to s. 3(1), perform their functions in a Convention compliant manner, but President, Oireachtas and the courts are excluded; persons suffering damages or losses as a result of violations of subsection (1) can, within one year from the facts, institute proceedings in a circuit court or the High Court in order to be awarded appropriate damages.

Fourth, s.4 prescribes that the decisions of the Strasbourg Court be given judicial notice and Irish courts in interpreting conventional provisions have to give adequate weight to the principles laid down in such judgements.

It is too early in the day to make an evaluation of how the ECHR Act 2003 has been applied. Yet, it is apparent that the Irish solution in the incorporation or, as it is sometimes said, the ‘patriation’ of international human rights norms is a compromise formula. As such, it has been criticized by some authors and NGOs for its weakness and its possible drawbacks. Actually, Ireland being the last of the 46 member States of the Council of Europe to incorporate the Convention, the method chosen is cautious and prudent. Above all, it closely resembles the British approach, which probably the Irish did not want to overtake, though the constitutional context is quite different: the UK still needs to preserve parliamentary supremacy, at least until Diceyan features of the British legal system are not swept away for the sake of a new constitutional order able to make domestic government, devolution, Europe and the ECHR compatible. Ireland has long passed this phase, adopting a written constitution and introducing judicial review of legislation capable of producing a declaration of invalidity with erga omnes effect. In comparison, the declaration of incompatibility is devoid of direct and immediate effects, valid only inter partes and able only to provoke an intervention of Parliament and possibly a pecuniary sanction.

Timid as it may seem, this solution has, however, several advantages.

First of all, it opens the way to a gradual domestication of the ECHR, though the first fifty years of application should have already allowed Irish jurists to envisage all possible systemic changes that would be made necessary as a result of a full, direct incorporation.

Secondly, it mitigates and slows down the impact on the domestic system of legal sources: declarations of invalidity due to reasons of unconstitutionality, declarations of incompatibility with conventional human rights norms and supremacy of European law all need to be accommodated, harmonized and made mutually compatible. Such a result requires time, flexibility, moderation on the part of the judicial power which, all of a sudden, has been entrusted with an “overdose of discretion”. A constitutional amendment, similar to those adopted with regard to art.29.4 or otherwise, might help to achieve such a demanding aim. From this point of view the compromise formula chosen by the Irish legislature could prove to be wiser than other more enthusiastic approaches to incorporation. In fact, as a result of this compromise, the dialogue between domestic law and international human rights obligations can take place in a more relaxed and gradual way; the dualistic separation can be softened rather than repealed completely; the penetration of conventional obligations in the system of legal sources based on domestic constitutional law can be put off to some future date when that system has been adequately prepared to comply with these obligations. Meanwhile, the recognition of a mere subconstitutional status to the ECHR, rather than that of a “higher law of the land”, has prevented a sudden and substantial rationalization of the hierarchy of domestic legal sources.

5. Ireland joined the European Economic Community in 1972 and, perceiving the profound implications of the relationship between the two legal orders, amended the Constitution in order to achieve full compatibility. Art.29.4 was therefore revised initially through the addition of s. 4.3; later, several other amendments authorized Ireland to sign the Treaties of Maastricht, Amsterdam and Nice (arts 29.4.4, 29.4.5, 29.4.7).

It should be noted that this procedure was required following the 1987 decision of the Irish Supreme Court in Crotty v An Taoiseach concerning the Single European Act (SEA). In this important case, which delayed the coming into force of the SEA, the Supreme Court concluded (albeit in a fragmented decision) that the original authorization (contained in the amended art.29.4) to join the EEC included the acceptance of all amendments to the Treaties that did not alter their essential scope and objectives; however Title III of the SEA introduced a European foreign policy and therefore, according to a majority of three out of five members of the Court, significantly enlarged the range of functions of the European Union. As a consequence, in order to avoid a “clear disregard” of the Constitution, the concrete diminution of State sovereignty implied in the treaty required an amendment to the Constitution, including a referendum. It is also well known that a popular vote in 2008 rejected the amendment necessary to ratify the Lisbon Treaty.

Later on, in 1994 the Supreme Court was also confronted with the problem of the kind of domestic legal source necessary or sufficient to fulfill the adaptation of Irish law to European norms: on that occasion, the constitutionality of s. 2 of the European Communities Act 1972 was upheld. This provision prescribes that treaties and other acts adopted by the institutions of the Communities are binding on the State and shall be part of the domestic law, and provides that any minister may make regulations to give full effect to such provision. Any act containing a similar authorization would be clearly unconstitutional without the constitutional support of art.29.4, subsections 3, 4, 5 and 6, which are a protection against possible constitutional challenges. The Court did not establish, however, the appropriateness of implementing Community legislation by way of secondary legislation in that particular case. Therefore it had further occasions to explain when the Government could use statutory instruments or other forms of secondary legislation in order to implement Community law and when it acts ultra vires. Finally the 1972 Act was amended by the European Communities (Amendment) Act 2007 in order to allow Ministers to make statutory instruments on matters related to, if not directly concerning, obligations deriving from Community law, including the creation of offences in such matters. The High Court and the Supreme Court have interpreted the provision of art.29.4.6, which immunizes domestic laws “necessitated” by EU law from constitutional challenges: at first they considered such immunity as sweepingly inclusive of any measure consequent to EEC law; later cases has softened down such a position

In the historical perspective, Ireland joined the then EEC shortly before the economic recession of the years 1973-1977, in a moment when the regulatory charge was growing faster and faster and the territorial size was also growing with the addition of Britain and Denmark. Initially, the Irish judiciary accepted primacy and supremacy of EC law wholeheartedly; Ireland approved the Maastricht Treaty by a vote of almost 69% and Amsterdam by a 61.7%, joined the Eurozone form the beginning, admitted EU citizens as workers in 2004. On the other side, the Irish people rejected Nice on the first round and Lisbon by a 53.4% of the popular vote with a turn-out of 53%, changing mind on the second occasion by a 67% majority; it opted out of the Schengen package and obtained the abortion protocol in Maastricht. Ireland has been probably the best beneficiary of EU funds and of EU fiscal policies, experiencing a long period of brilliant economic growth, but it also required the first and strongest financial assistance in times of economic crisis, at least till now. Ireland has a low record of litigation in the Court of Justice, up to the controversy about the Data Retention Directive 2006/24, a low rate of preliminary references from domestic courts, at least till the nomination to the Supreme Court of Chief Justices Keane and Murray and of Justices Fennelly and Macken, all former members of the Luxembourg Court; nor does it intervene frequently in the Luxembourg pending litigation.

The problems concerning the protection of fundamental rights in the EU system, the interaction with the work of the Strasbourg Court and of the national courts, the different approaches and standards of protection have been frequently studied in recent years, even with reference to the Irish context. The main difficulty that Ireland’s legal system might have to address in the near future may be the issue of the different position that is assigned to the ECHR and to EU law within the context of domestic constitutional law. As underlined above, the ECHR has been incorporated at a sub-constitutional position, while EU law has entered the Irish legal system though several constitutional amendments. The ECHR operates in Ireland in an indirect and filtered way, while EU law has direct effect, thus ensuring its primacy and supremacy.

In conclusion, it will need great care on the part of the Irish courts in handling this complex situation, but it is just as clear that this complexity promotes flexibility and capacity of blending techniques and methods. Comparative analysis is thus very helpful from this point of view.