Systems by Grace Given [Page

Ireland’s Inadequate Access to Justice: The Discrepancy between Common and Civil Law Systems

By Grace Given, SS Law and German

At the Access to Justice Conference 2021, former Chief Justice Frank Clarke made a variety of worrying observations about Ireland’s position near the bottom of the international league table with regard to the investment in the justice system. In fact, in comparison with civil law jurisdictions, Ireland is notably lagging behind when it comes to the allocation of taxpayers’ money in this regard.

The costs associated with bringing a case to trial in civil law systems are generally fixed and charged in accordance with legislation. In Germany for example, lawyers’ fees are charged either in accordance with the Rechtsanwaltsvergütungsgesetz (Lawyers’ Remuneration Act), or based on fee agreements which must have regard to provisions set out in the Bundesrechtsanwaltsordnung (Federal Lawyers Code). In non-criminal cases, lawyers are not remunerated for the time which they spend on a case, but are paid a fee in accordance with statute, which is evaluated based on the value of the claim. Because low income litigants tend to have lower value claims, many often benefit from this sliding scale fee system. The Rechtsanwaltsvergütungsgesetz does not prevent a party from signing a fee agreement that could lead to higher fees; it does, however, restrict the fees to be reimbursed by the losing party. In addition, fee ranges with statutory maximum and minimum amounts apply in a number of special fields such as matters of social law. In contrast to this, Ireland has been described by ‘The Lawyer,’ a specialist legal publication, as “the least transparent jurisdiction in Europe’’ when it comes to collecting data regarding legal fees. Legal costs in Ireland are generally discretionary in nature and are often prohibitively expensive as a result.

The former Chief Justice put forward another line of reasoning for Ireland’s precarious position:

“It is fair to say that there is a significant shift, in a common law system, towards work being done by parties and their lawyers (if they have them) as opposed to being done by the court and its researchers. This significant difference has the effect of transferring cost from the taxpayer to the parties to litigation. It is at least part of the explanation as to why the Irish taxpayer spends significantly less on our justice system compared with most continental countries while the Irish litigant spends more.”

It is also worth noting that, in a tradition derived from Roman law (iura novit curia: da mihi factum, dabo tibi ius), litigants in Germany need not discuss points of law, but must only present the facts of the case to the court. This means that German lawyers spend significantly less time on researching points of law than their Irish counterparts.

During the 2008 Financial Crisis, the high cost of legal services in Ireland was repeatedly criticised. In response to this, barristers and solicitors in the Criminal Courts had their fees slashed, and bodies like the State Claims Agency sought better value for money by inviting tenders for legal services. Under the Financial Emergency Measures in Public Interests legislation, pay-cuts ranged from 28.5 percent to 69 per cent. This month, over 100 Irish criminal solicitors and barristers have signed a petition addressed to Paolo Gentiloni, the European Commissioner for the Economy, in an attempt to reverse these cuts which were referred to as ‘emergency measures’ at the time. By way of comparison, fee charges by lawyers for private work in the civil courts have been on the rise. Ireland remains an expensive place to litigate, with the price of legal services going up rather than down, according to the National Competitiveness Council.

This, of course, calls into question the threat to the constitutionally-guaranteed right to equality before the law and access to the courts. The disparity in investment, coupled with the soaring cost of legal representation, manifests itself in an incentive for parties to settle disputes before these costs become insurmountable. This can only be described as a verifiable barrier to justice and an example of blatant inequality.

In situations where one party to a dispute is significantly financially disadvantaged, they may choose to settle for a sum that is not reflective of the quantum of damages to which they might otherwise be entitled.

Unfortunately, and as is often the case, this disproportionately affects minorities and marginalised groups and contributes to systemic inequality in the justice system.

The Legal Aid Board is struggling to deal with the ever-increasing strain on its resources. The pandemic has led to a massive increase in the number of people relying on free legal aid. Community Law and Mediation recently noted that demand for their services increased by 33 percent at the peak of the pandemic. To further compound this issue, many potential litigants in Ireland are caught in a “poverty trap,” a term used by the former Chief Justice to describe the predicament of people who cannot fund litigation but do not qualify for any civil legal aid schemes. Germany once again provides an interesting approach to such cases. Legal aid in Germany can be granted as a loan in accordance with Section 120 of the Zivilprozessordnung (Code of Civil Procedure). Repayments are calculated based on the litigant’s income and assets and can be waived in the case of low-income litigants in accordance with Section 115 of the Zivilprozessordnung. The courts begin by calculating the gross monthly income of the litigant. They then deduct certain amounts from this sum depending on the litigant’s personal circumstances - for example, dependants, expenditure on rent, taxes, etc. The remainder thereafter is the income to be used for the granting of legal aid - with or without the obligation to pay in installments.

• If this calculation results in a negative amount or a remainder of less than €20 per month, all legal aid costs will be waived. • If the remaining income is greater than €20 but less than €600, the amount will be halved. This value is then the monthly installment to be paid. For example, a litigant with an income of €150 after these deductions must repay a total of €75 per month. • If the remaining income exceeds €600, the repayment rate will be set at €300 plus the part of the income that exceeds €600. For example, a litigant with an income of €650 after these deductions must repay €350 per month.

A maximum of 48 monthly installments must be paid. Legal aid is available in proceedings relating to civil disputes, in non-contentious proceedings and in proceedings before an Arbeitsgericht (labour court), Verwaltungsgericht (administrative court), Sozialgericht (social court) and Finanzgericht (fiscal court). That system works as a verifiable ‘catch-all,’ providing free legal aid to those who cannot afford to contribute at all, while also ensuring those caught in the “poverty trap” can access justice. Ireland’s policy makers and legislators should examine whether a similar system could work in this jurisdiction.

A broader solution put forward by former Chief Justice Clarke and former President of the High Court Peter Kelly, is the introduction of fee caps or fixed fee arrangements. In February of this year, Justice Minister Helen McEntee endorsed this approach and announced that she intended to introduce fee caps to provide certainty to those availing of legal services. Minister McEntee said that recommendations of Kelly’s report entitled ‘Review of the Administration of Civil Justice’ on reform of the civil courts would be examined in an attempt to

draw up scales and rates. She continued;

“Not knowing how much legal proceedings could ultimately cost currently acts as a barrier to accessing justice and is damaging to our economy and competitiveness.”

Whether or not such limits will be implemented remains to be seen, but it might be worth looking to our European civil law counterparts for solutions to this problem. Irish policy makers and legislators would do well to study the manner in which Germany and other civil law jurisdictions monitor and control the cost of legal representation, even if the implementation of such controls would require extensive fee regulation. In any case, what is clear is that the current situation with regard to the cost of legal representation in this jurisdiction is untenable, prevents a barrier to justice, and is in dire need of reform.

Polar Opposite Opinions: The Polish Challenge to the EU’s Legal Order

By Ted Halligan, SS Law and Political Science

The primacy of European Union Law is one of the cornerstones of the institution, streamlining the processes of the European Member States in a way that allows it to function more efficiently than it had before 1964. Initially set out in the landmark case Costa v ENEL, it was decided that EU law takes precedence over all national law, including constitutions. However, this has come under severe strain from a judgement of the Polish Constitutional Tribunal rejecting the primacy of EU law. This article aims to explore primacy in the European Union from its foundations to how the concept has often brought the EU into conflict with National Constitutional Courts; it will also look at how the Polish judgment differs from previous occasions where the concept of primacy has caused controversy.

The facts of the foundational case setting out primacy, Costa v ENEL, are as follows; Mr Costa was an Italian man who owned shares in the electricity company Edison Volta. This company was nationalised by the Italian government, forming ENEL. Mr Costa argued that this violated his rights under the Italian Constitution and the Treaty of Rome. The case was first referred the Italian Constitutional Court and subsequently to the European Court of Justice. The Italian court ruled that, as the nationalisation was authorised under a law passed after the Treaty of Rome, there was no violation of Mr Costa’s rights. Under standard rules of statutory interpretation, a law passed more recently is deemed to have precedence over an older statute where there is a conflict. The Court of Justice differed in its interpretation, holding in its judgement that “the treaty instituting the [EU] has created its own order which was integrated with the national order of the member states.” Continuing, the Court stated that through creating the European Community, the Member States had restricted their sovereign rights to create a new body of law, and that due to the nature of the international aspect of the agreement it would not be fair on Member States to have to accept unilateral decisions made by others. The court then concluded with the following;

“It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.”

The concept of primacy is one of the fundamental aspects of EU law, although it must be said that it is not stated explicitly in any of the Treaties. As so often, the Court here is reading between the lines to make the treaty system function effectively. Without this assumption, the pursuit of EU policies would become unworkable as there would not be uniform application of law across the Union. Whether or not the EU had the power to do this is still a matter of great controversy even today, nearly 60 years later, with many Eurosceptics claiming this was a power grab by the Court.

There was a serious attempt to bring primacy explicitly into the treaty system by establishing a Constitution for Europe. However, it must be noted that this Treaty failed to be ratified as it was rejected by referendum by voters in France and the Netherlands. It was agreed after this to abandon the attempt to create a European Constitution; instead, leaders opted to create the Lisbon Treaty. Although both Treaties were inherently similar, one notable difference between the European Constitution and the Lisbon Treaty was the exclusion of the concept of primacy in the Lisbon Treaty. This means that primacy, although vital to the functioning of the Union, remains based only on Court judgements.

In Ireland, EU law is immunised from Constitutional challenge through Article 29.4.6°. This Article does two things; it provides that the Constitution cannot be used to invalidate any acts of the Irish Government that are necessitated by our membership of the European Union, and that the Constitution cannot be used as a proviso to prevent laws, acts, or measures of European Institutions from having the full force of law in the state. This effectively means that the primacy of EU law is explicitly recognised in the Irish Constitution. This is not the case in every Member State, meaning that primacy has caused the Court of Justice and various national constitutional courts to butt heads. A few examples of this are laid out below.

A first notable example of this happening can be found in the conflict between the Danish Supreme Court and the Court of Justice in Ajos v Estate of Rasmussen. This case focuses on a dispute about pensions and severance packages. Under Danish law, when an employee is made redundant, a lump sum must be paid; however, this does not apply if a redundant employee will receive a state pension upon the termination of the employment relationship. The Court of Justice found this was unlawful age discrimination contrary to EU law. It also held that national law must be interpreted to conform with EU law, in this case referring to the Equality Framework Directive. The Danish Supreme Court responded to this in the case Ajos v The Estate Left by A. It held that the EU court could not reinterpret Danish law and national legislation could not be disapplied based on a general principle of EU law. However, according to Sim Haket writing in the Review of European Administrative Law, this should not be viewed as a direct challenge to primacy as the burden is placed on national courts to interpret national law in light of EU law. There is no real way of determining in the abstract if a national court has gone far enough in interpreting national law in the light of EU law. Therefore, on a technicality, this sidesteps the question of whether this is a challenge to primacy.

A more serious example of primacy being challenged comes from the German Constitutional Court. Regarding the Constitutional Complaints 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15 and 2 BvR 980/16 the Court found that the Court of Justice had acted outside of its powers in Weiss and Others, meaning the decision did not apply in Germany. The Weiss case arose as an action against German institutions concerning the European Central Bank (ECB) programme to purchase assets - the Public Sector Purchase Programme. The German Court raised doubts over the compatibility of the ECB decisions with the Treaty on European Union’s prohibition on monetary and finance powers, and the principle of conferred powers. It found that the judgement of the Court of Justice lacked the proper reasoning to justify the programme. This being said, the Constitutional Court’s objections are based on what it sees as legal and procedural flaws from the Court of Justice; it did not directly challenge and attempt to invalidate the ECB programme. This is still a violation of the primacy of EU law. It is essential to note that the decision did not challenge the principle of primacy itself as the German court was not analysing the compatibility of the primacy of EU law with the German Constitution.

This then brings us to recent developments in Poland. Poland is currently under the Leadership of the Prawo i Sprawiedliwość (PiS, Law and Justice Party) and their junior coalition partners; this is a Eurosceptic, rightwing, populist Government. One of its significant policies in recent years has been judicial reform. These reforms have given politicians the power to fine and fire judges whose decisions they consider harmful. This defies traditional liberal democratic ideas of judicial independence, namely the idea that judges should, to the greatest extent possible, be left free of political influence and be able to act independently. These reforms were criticised heavily by the EU and human rights groups. Another part of the PiS judicial reforms allowed for the appointment of judges to the Polish Constitutional Tribunal directly by the Polish legislature, the Sjem. Again, this significantly weakened the judicial independence of the Polish judicial system by making judges politically influenceable. The Polish Government looked to challenge various aspects of the European Treaties to see if they were compatible with the Polish Constitution, primacy being among the legal concepts challenged. The Polish Constitutional Tribunal reached a decision in Ocena zgodności z Konstytucją RP wybranych przepisów Traktatu o Unii Europejskiej, holding that Polish Law sits above EU law. This is a direct violation of a fundamental aspect of EU law.

This is a much more severe breach of EU law than either the Danish or German decisions. Both of those decisions, although showing that those national courts may in certain circumstances be willing to dispense with primacy, do not violate the concept as severely as Poland has. In the Danish case, it is arguable that primacy was not violated on a technicality, and in the German case primacy was violated on a narrow ground - the concept itself was not adjudicated on nor annulled. This is not the case in Poland, where primacy was comprehensively rejected. Particularly after the German decision, it was argued by many commentators that it may give the EU’s more authoritarian states, including Hungary and Poland, carte blanche to challenge EU law more directly. It appears that these fears were well-founded.

As a consequence of the Tribunal’s decision, the Commission is now withholding EU funding from Poland and fining the Polish government €1 million a day until Poland agrees to reverse their decision on primacy. As the EU does not possess any further disciplinary power above financial punishment, it is currently unclear how this rule of law crisis will be resolved.

One of the major takeaways from this crisis is that it was a mistake of the Member States not to include a clause in the Treaties forcing states to acknowledge the primacy of EU law.

If all Member States approached EU Law just as Ireland has in the Irish Constitution, the crisis we are currently facing would not have occurred. It is essential to recognise, however, that there would be major political difficulties in doing this. I would seriously doubt that many Irish people know, or would be happy with, the idea that EU law sits above the Irish Constitution; I feel many would see this as a huge violation of national sovereignty. One of the main reasons for the primacy clause being excluded from the Lisbon Treaty was to avoid facing that political question; however, all that has happened through primacy’s exclusion from the treaties is that a hypothetical political crisis has been replaced with an actual rule of law crisis. The EU finds itself in a serious bind, of which there is no immediately apparent exit.