Britain is in breach of

Belfast Agreement with the

unknown British Bill of Rights Ireland did not amend

Articles Two and Three of the Constitution

CEASEFIRE:THEIMPACTOFREPUBLICAN
POLITICALCULTURE
ONTHECEASEFIREPROCESSINNORTHERN
IRELAND
MontgomerySapone
OnAugust31,1994,theProvisionalIRA(PIRA)declareda
cessationofmilitaryoperations.Forthepastthirtyyears,the
conflictinNorthernIrelandhasbeenragingalmostwithout
pause.1Britishsecurityforceshaveattemptedtocontrolthe
violencebyestablishingroadblocks,conductinghouse
searches,alteringthejudicialsystemtoallowconvictionon
informanttestimony,institutinginternmentwithouttrialfor
paramilitarysuspects,garrisoningoverthirtythousandBritish
soldiersinNorthernIreland,institutingbroadcastingbansof
SinnFin,andconductingintensiveinterrogationofsuspects.
DespitethebestattemptsoftheBritishgovernmentoverthepast
fewdecadestothwartPIRA,theconflictpersisted.Tosustaina
lowintensitywarundertheseconditionsrequiresmorethan
gunsandammunition;itrequiresthesupportofapolitical
community,extensiveorganizationofeconomicresources,and
culturalvaluesthatgivemeaningtotheconflict.
ThedurationoftheconflictinNorthernIrelandcannotbe
understoodwithoutreferencetoIrishRepublicancultureand
history.Similarly,theceasefireitselfmustbeviewedinlightof
thehistoryandcultureofIrishRepublicanism.PIRA'srefusal,
forexample,todecommissionweaponsortodeclarea
"permanent"ceasefireasapreconditiontoenteringinto

negotiationsisgenerallyseenbyobserversasapurelyutilitarian
strategicdecision.Afterall,handingovergunswithno
guaranteethatwhatisnegotiatedwillactuallybegivencreates
unnecessaryvulnerability.Butbehindtherefusalto
decommissionweaponsisnotjustautilitarianpoliticalstrategy,
butasetofculturalvalues.
Thispaperbeginswithadiscussionoftheculturalforcesthat
sustainedtheconflict.Inadditiontotheconsiderableimpactof
culturalforces,Britishsecuritypolicycontributedtothe
longevityoftheconflict.Similarly,theantitheticalpolitical
positionsofthemajorplayersintheconflict(British,
Republican,LoyalistandIrishRepublic)preventedanyeasy
settlement.2Thispaperdescribeshowthelowintensity,military
sustainablityandculturalentrenchmentoftheconflictresulted
inastalematebetweenPIRAandtheBritishArmy.Notingthat
theambivalenceofamilitarystalematehasconsequencesfora
ceasefireprocess,thispaperreviewsthepoliticalandmilitary
eventsduringtheceasefireandthenarguesthatthemajor
stumblingblocksduringtheceasefireprocesswerenotsimply
logistical,butdeeplyconnectedtothecultureofIrish
Republicanism.
SustainingPerpetualLowIntensityConflict
TheconflictinNorthernIrelandisoneofthelongestrunning
lowintensityconflictsofthetwentiethcentury.Thecontinuity
oftheviolencehasconfoundedacademiccommentatorsand
militaryanalystsalike.Inthethousandsofbooksthathavebeen
publishedconcerningtheconflictinNorthernIreland,
explanationsrangingfromreligioushatredtomaterialgainhave
beenadvancedtoaccountforthelongevityoftheconflictand
theintractabilityofthepartiesinnegotiatingasettlement.3But
thekeytothecontinuityoftheconflictisneithereconomicnor
sectarian,butcultural.Ephemeralculturalvalueshaveallowed
theRepublicancommunitytocontinuefightingforBritish
withdrawalandthereunificationofIrelandagainstoneofthe
mostsophisticatedmilitaryorganizationsintheworldforthirty

years.4
ThecorepoliticalbeliefofRepublicansinNorthernIreland,
includingSinnFinandtheProvisionalIRA,isthatthe1921
partitionofIrelandandcontinuedBritishruleinNorthern
Irelandareillegitimate.5RepublicansviewtheBritish
governmentasthesourceoftheconflictinNorthernIreland.
AccordingtoGerryAdams(1995:61),PresidentofSinnFin,
"violenceinIrelandhasitsrootsintheconquestofIrelandby
Britain."Republicansdonotseetheirownviolenceasthecause
ofcontinuedBritishmilitarypresenceinNorthernIreland,but
asareactiontoit.Theybelievetheyareengagedinarmed
oppositionagainstBritishcolonialism.Therefore,anysettlement
thatdoesnotguaranteethewithdrawaloftheBritishfrom
Irelandisdefactoinadequate.
ThesocialenvironmentinwhichRepublicansinNorthern
IrelandliveonlyreinforcestheirperceptionoftheBritishasthe
enemyandtheirarmedstruggleasnecessaryandjust.The
poverty,discrimination,socialisolationandunemployment
whichCatholicsinNorthernIrelandexperiencedasaminority
inaProtestantmajoritystatereinforcedtheirperceptionof
themselvesasvictimsofarepressivecolonialregime.Inthe
RepublicancommunitiesofNorthernIreland,mostfamilies
haverelativesorfriendswhohavebeenkilledbysecurityforces
orimprisonedforparamilitaryactivity.Theimpressionof
RepublicansthattheBritishweredeterminedtodestroytheIrish
cultureanddenythemselfdeterminationwasconfirmedbythe
constant,hostilepresenceofBritisharmoredvehiclesand
patrollingsoldiers.ForRepublicans,theseconditionsamounted
toastateofsocialandpsychologicalsiege.
ForRepublicans,armedstruggleagainstBritishmilitary
occupationisunquestionablynecessary,effectiveandlegitimate
(Irvin1999).ThepoliticalhistoryofIrelandprovidesadequate
evidenceoftheeffectivenessofarmedstruggleasameansof
creatingpoliticalchange.WithoutthehistoriceffortsoftheIRA
andtheirforebearersagainsttheBritishcolonizationofIreland,
theRepublicofIrelandwouldnotexisttoday.Itisanimpossible

tasktoconvinceRepublicansthatchangeispossiblethroughthe
democraticprocessalonetheirhistoryinstructsotherwise.
Andthishistoryisalivingfactthatis,forRepublicans,
constantlypresent.Indeed,thehistoricaldeedsofgrandfathers
andgreatgrandfatherswhofoughtagainstBritishoccupation
duringthe1916UprisingandtheAngloIrishwaroften
recountedwithpride.
Anotherindicationoftheunchallengedlegitimacyofarmed
strugglewithintheRepublicancommunityisthattheIRAhas
neversufferedfromapaucityofvolunteers.Whileitmayseem
incomprehensiblethatProvisionalIRAvolunteerschoseto
engageinmilitaryactivitieslikelytoresultindeathor
imprisonment,tothemthechoiceappearsnotonlynecessarybut
desirable.Statusinthiscommunityiscorrelatedwithmilitary
competence.BearingarmsinthepursuitofIrishautonomyis
consideredtobetheultimateexpressionofRepublicanism.
Likemostcultureswhereviolenceisafactofdailylife,
RepublicansinNorthernIrelandhavesuccessfullyadaptedto
themisfortunebytransformingthetragedyofviolentdeathinto
communalbenefit.ThespectacularfuneralsofslainIRA
volunteers,thetreatmentofthe1981hungerstrikersasmartyrs,
andthemuralsglorifyingtheRepublicandeadalltestifytothe
capacityofRepublicanstoderiveculturalvaluefrompolitically
motivateddeaths.Violentdeathisseennotjustasanecessityof
thearmedstruggleagainsttheBritish,butasasacrificewhich
onlyservestomaketheculturestronger.AlthoughRepublican
culturecouldbenegativelydescribedas"necrophilic,"the
sanctificationofviolentdeathisahighlyadaptivecultural
practicewithinamilitarizedenvironment.6
Inadditiontoculturalfactorsthatperpetuatedtheconflict,
Britishpoliticalandmilitarypolicyhave,perhapsinadvertently,
contributedtoitslongevity.TheBritishArmyenteredNorthern
Irelandin1969inordertoconductpeacekeepingoperations.
AlthoughtheBritishArmywasinitiallydeployedtoputastop
toLoyalistriotinginwhichtheRoyalUlsterConstabulary
(RUC)werecolluding,theviolencequicklyescalated.Underthe

commandofLieutenantGeneralTuzo,theArmyconducteda
numberoflargescalemilitaryoperations,suchasthe
internmentofsuspects,theretakingofurbanterritory
(OperationMotorman),anduseofunnecessaryextremeforce
(e.g.,"BloodySunday"in1972).7ThesituationinNorthern
Irelandcertainlylookedlikewar;IRAprisonerswereeven
accordedadefactoPOWstatusbytheBritishgovernment.
BecausethismilitaryapproachtodealingwiththeIRA
unintentionallylegitimatedPIRAasabelligerent,security
policywasreevaluatedinthe1980's.Alternativemethodsof
containingtheviolenceweresought.NewBritishsecurity
policyemphasizednormalization,Ulsterizationand
criminalizationinordertolimittheoveralllevelofviolence
(BewandPatterson1985).Duringthisperiod,attemptswere
madetocontaintheconflictgeographicallywithinNorthern
Irelandthroughexclusionorders,roadblocks,andextradition.
Theconflictwas"normalized"bycreatingacordonsanitaire
aroundBelfastCityCenter,byinstitutingpoliceprimacy,and
undertakingbysophisticatedpublicrelationscampaigns.
ConvictedPIRAmembers,aswellasLoyalistparamilitaries,
weretreatedascriminals("terrorists")ratherthanaspolitical
prisoners.PIRA'sattemptsduringthelate1970'stoescalatethe
warbyattacking"bigtargets"(helicopters,NATObases,
Mountbatten'syacht)andthe1981hungerstrike,whichsought
toregainprisonerofwarstatusforparamilitaryprisoners,were
responsestothecriminalizationprogram(Feldman1991).
AlthoughBritishsecuritypolicypreventedescalationofthe
violence,itironicallyalsopreventedanypurelymilitary
solution.Britishcommandersoftenassertedthat,iflawand
publicpolicyallowedthemtodoso,theycoulddefeatPIRA
militarily.However,legalrestrictionsontheuseofforce(e.g.,
rulesofengagement,emergencylegislation,andinternational
instruments)preventedtheBritishArmyfromtakingaggressive
militaryactionsthatwouldhaveroutedtheIRA.Thestatusof
thearmedconflictasanemergencyactionwithtroop
deploymentauthorizedundertheNorthernIreland(Emergency

ProvisionsAct)asmilitaryaidtothecivilpowerratherthana
warpowersact,imposedadoctrineofminimumforce.Soldiers
issuedwithayellowcardcontainingtherulesofengagement
wereallowedtofireonlyinlifethreateningcircumstances
(Dewar1985:5859).Furthermore,astheostensibleupholders
oflawandorder,theycouldnotbeseentoactoutsideofthe
law.TheBritishArmyessentiallytieditsownhandswiththe
securitypolicyitadopted.AsPillar(1983:28)pointsout,
[t]hiscombinationofrestraintstheinabilitytoavoidentering
awarandtheinabilitytomakefulluseofmilitarycapabilities
onceinitmeansthatwarswhichformerlywouldeithernever
havebeenfoughtinthefirstplace,orfoughttoaswiftand
decisiveconclusion,arenowfoughtinarestrainedandcarefully
controlledway.Thisencouragesdeadlockandcompromiseand
reducesthelikelihoodofcapitulation.
PIRAeffectivelyexploitedtheBritishArmy'shesitancytouse
forceandconcernwithlegalitytoengageinaprotracted
campaignofparamilitaryviolence.Thus,althoughviolencewas
noteradicated,losseswerekeptatan"acceptable"level(inthe
wordsofNorthernIrelandSecretaryofStateMerlynRees)and
thewardraggedonandon.8
InadditiontotheculturalvaluesofRepublicanismandBritish
securitypolicy,thedivergentinterestsofthemajorplayersin
theNorthernIrelandconflictalsopreventedanyeasyresolution
ofthepoliticalandmilitaryissuesunderlyingtheviolence.Each
groupwasfundamentallyopposedtotheinterestsandviews
propoundedbytheothergroups,andgenerallyunwillingto
acceptcompromiseofanysort.Inbrief,theUnionistsdespised
theRepublicansonpoliticalandsocialgroundsandviewedany
involvementoftheRepublicofIrelandinnorthernIrishpolitics
withsuspicion;theRepublicansrejectedtheBritishpresencein
IrelandandsawtheUnionistsassectarianandpolitically
misguided;theBritishmistrustedtheinvolvementofthe
RepublicofIrelandbutneededthevoteoftheUlsterUnionists;

andtheRepublicofIrelandwantedtodistanceitselffromthe
problemsoftheprovincealtogetherandyetretaineda
sentimentalfeelingtowardsthehistoryoftheIRA(Whyte
1990).Theseviewsderivefromcomplexhistoricalandpolitical
factsandareworthyoffurtherexplanation.
SuccessiveBritishgovernmentshaveproposedvarious
unworkablesolutionstothepoliticalproblemsofNorthern
Ireland.From1921untilthemid1970'sNorthernIrelandwas
ruledthroughUnionistcontrolledStormontParliament.
MajorityhomerulereducedNorthernIrelandtothestatusofa
dependentcolony,allowedUnionistdominationofthesecurity
apparatus,effectivelyremovedCatholicsfrompoliticallife,and
ledtothecatastrophicdeploymentofBritishtroopsin1969.As
aresultofStormontandtheeventsof1969,theBritish
governmentoutlinednewprinciplesinthe1973Northern
IrelandConstitutionalProposals(GreatBritain1973).This
papermadeitclearthatUnionistsshouldbepreventedfrom
exercisingtotaldomination,andthatanypoliticalarrangements
requiretheinvolvementoftheIrishRepubliciftheyareto
satisfynorthernNationalists.Thispowersharingassembly
combinedwithanallIrelandcouncilhasremainedthemodel
forBritishpoliticalinitiativesincethattime.
TheUnionistsgenerallydislikethepowersharingarrangement
preferredbytheBritishandviewNorthernIrelandasanintegral
partoftheUnitedKingdom.Althoughtheyformamajorityin
NorthernIreland,theywouldbeaminorityiftheislandwere
unified.9Unionists,notsurprisingly,rejectanypolitical
arrangementthatwouldentailbeinggovernedbytheRepublic
ofIrelandandtherebylosingtheireconomicandpoliticalstatus.
SinceUnionistshavetraditionallyoccupiedpositionsofpolitical
powerandhavecontrolledthedomesticeconomy,theyhave
muchtolooseifthedistributionofpowerwerealtered.The
securityindustryinNorthernIreland,includingthepolice,the
nowdefunctUlsterDefenseRegiment,andtheprisons,
historicallyhavebeenstaffedbyUnionistsandwouldshrink
radicallyiftheconflictceased.

PowersharingwithNationalistsandincreasedinvolvementof
theIrishRepublicareseenbyUnionistsasconcessionsby
BritaintotheNationalists.Historically,concessionsbythe
BritishgovernmenttowardstheRepublicancommunityhave
resultedinabacklashbyUnionistsagainsttheBritish
Government.10Unionists,ithasbeensaid,havebeenwillingto
killBritishsoldiersinordertodefendtheirrighttoremain
British(Dewar1985:99).Priortotheirowndeclaredceasefire,
LoyalistswerealsowillingtotakeontheRepublicofIreland.
"Loyalistsarenotgoingtoallowtheircountrytobetakenaway
fromthem,"saidRaySmallwoods,thechiefpoliticalstrategist
ofloyalistparamilitaries."We'veseenwhattheIRAhasgotten
bybombingandkilling.OurwarisnotjustwiththeIRA.It's
withDublin.Andwe'repreparedtofighttothedeath"(Cullen
1994:1).Loyalistparamilitarieshavebeenquitewillingtocarry
outtheirthreats:inthelastthreeyearsmorepeoplewerekilled
byLoyalistthanNationalistparamilitaries.
ThoughUnionistobjectionstoBritishwithdrawalandpower
sharingmayseemclearenough,thesameobjectionsbytheIrish
Governmentareabithardertounderstand.Since1937,theIrish
governmenthasclaimedconstitutionaljurisdictionover
NorthernIreland.Article2oftheIrishConstitution,declares
that"thenationalterritoryconsistsofthewholeislandof
Ireland,it'sislandsandtheterritorialseas."In1990,thisclaim
wasreaffirmedbytheIrishSupremeCourtinMcGimpseyv.
Irelandwhichclaimedthatthe"reintegrationofthenational
territory"wasa"constitutionalimperative."Formanyyearsthe
Britishgovernmentdidnotobjecttotheseclaimsofsovereignty
althoughtheyconflictedwiththeGovernmentofIrelandAct
1920.Article75oftheGovernmentofIrelandAct(1920)
providesthat:
NotwithstandingtheestablishmentoftheParliamentof
NorthernIreland...thesupremeauthorityoftheParliamentofthe
UnitedKingdomshallremainunaffectedandundiminishedover
allpersons,mattersandthingsinNorthernIrelandandevery

partthereof.
AttheheartoftheIrishConstitutionlayanaspirationalclaimto
thepoliticalcontrolofthewholeofIreland.Onewouldimagine,
thisbeingthecase,thattheIrishGovernmentwouldbe
delightedwithBritishwillingnesstoallowthemtoassumea
largerroleintheinternalaffairsofNorthernIrelandthrough
diplomaticagreements.TheAngloIrishAgreement1985gave
theIrishRepublictherighttoputforwardviewsandproposals
onmattersrelatingtotheadministrationofNorthernIreland
(includingsecurity)inreturnforimprovedsecurityco
ordinationontheirsideoftheborder(InstituteforEuropean
DefenceandStrategicStudies1994:19).Yet,unificationisnot
apopularsolutionwiththeIrishGovernment.TheBritish
withdrawalfromNorthernIrelandwouldcreateinnumerable
problemsforDublin.NotonlywouldtheRepublicberequired
toabsorbtheUnionists(andcopewithanyviolencewhich
mightbedirectedattheIrishgovernment),theywouldalso
assumetheconsiderablefinancialburdenofunderwritingthe
depressedeconomyofNorthernIreland.
NorareNorthernRepublicansparticularlykeenonbeing
absorbedbytheIrishgovernment.FromtheperspectiveofSinn
Fin,theIrishgovernmenthasabandonedtheprincipleofIrish
selfdeterminationandhasbasicallyratifiedtheBritishclaimto
NorthernIreland.TheAngloIrishAgreement,EuropeanUnion
membership,andtheratificationoftheSingleEuropeActare
seenasanerosionofIrishsovereigntyandcontrolofresources
andamovementtowardsa"NATOviewofinternational
affairs(InstituteforEuropeanDefenceandStrategicStudies
1994:83).RepublicansviewthecurrentincarnationofIreland
asbeinglittlemorethanadependentofGreatBritain,sinceover
fiftypercentofitsforeigntradeiswiththeUK.Nationalists
andRepublicansbelievethatresolutiontothepoliticalproblems
mustincludethedemocraticparticipationofalloftheIrish
peopleandthatthenegotiationsdependonthepolitical
authorityandlegitimacywieldedbytheIrishgovernment.

WhileNationalistsandRepublicanshavesoughtagreaterrole
forDublinintheceasefireprocess,theyarenotseekingasimple
endtopartitionresultinginreunification.Rather,theirlongterm
goalistoestablishademocraticsocialistrepublicbasedonthe
1916Proclamation,whichwouldincludedecentralized
economicandpoliticalstructuresinapluralist,bilingual,non
sexist,andnonalignedIreland(InstituteforEuropeanDefence
andStrategicStudies1994:150).
AtotalreconstructionoftheIrishstateisprobablynotwhatthe
Irishgovernmenthasinmindasapossiblepoliticalfuture.
EspeciallynotatthehandsofSinnFin.IntheRepublicof
Ireland,SinnFinandtheProvisionalIRAaretreatedas
terroristsorcriminalsandgenerallyarenotviewedaslegitimate
politicalentities.SinnFin,forexample,hasbeencensored
fromspeakingontelevisionorradiounderSection31ofthe
BroadcastingAct(notrenewedin1994).Yet,SinnFinandthe
ProvisionalIRAareresponsiblefortheveryexistenceofthe
IrishRepublic,havingsuccessfullyfoughtawaragainstthe
Britishin1916forindependence.Itisnotsurprisingthat,
historically,thegovernmentoftheRepublicofIrelandandthe
FiannaFailpartyinparticularhavebeensympathetictothe
northernRepublicancause.TheRepublicofIrelandhas
sometimesrefusedtoextraditeRepublicansconvictedof
paramilitaryoffensesandhasturnedablindeyetotheuseofthe
borderasa"fallback"forparamilitariesduringoperations.
PerhapsthemostshockingexampleofcovertsupportoftheIRA
bythegovernmentoftheRepublicofIrelandwasthearrestof
CharlesHaughey,ministerfortheGaelteachtunderJack
Lynch'sFiannaFailparty.Haugheyandfourothermembersof
theFiannaFailgovernmentwerearrestedforconspiracyto
importarmsthatweretobesenttotheIRA."Whetherthe
CabineteitherkneworimplicitlyapprovedofHaughey's
activitiesremainstothisdayalessthansatisfactorilyanswered
question(O'Malley1990:22fn.).
BreakingtheStalemate

Thegeographicalcontainmentoftheconflict,thepreventionof
escalationthroughlegalstructuresandtheunwillingnessto
incurinternationalapprobationallservedtoturntheconflictin
NorthernIrelandintoastalemate.Astalemateisacondition
ofconflictwhereneitherbelligerentpartycanachieveadecisive
militaryvictoryandwhichcanbealmostindefinitelysustained
bybothparties(GoodmanandBogart1992:1).Instalemated
wars,neitherbelligerentpartyisabletoachieveadecisive
victory,noraretheyabletoexhausttheiropponenttoastateof
financialormilitarycollapse.Thishasconsequencesforthe
ceasefirenegotiationprocess.Negotiatingaceasefireaftera
stalematetendstobemuchmorelaboriousandintricatesince
thewinnermaybeunclearandthebelligerentsmay
overestimatetheirownbargainingpower(Smith1995:5).
Counterinsurgencyoperationsorlowintensityconflictsthat
endinstalemate,suchasthatinNorthernIreland,appeareven
lessamenabletonegotiatedsettlement(GoodmanandBogart
1992:1).Intheseconflictstheveryidentityofthebelligerents
andthelegalstatusoftheconflictareoftenunclear.InNorthern
Ireland,forexample,thebelligerentsmightincludetheBritish
Army,PIRA,UlsterDefenceAssociation(UDA),IrishPeoples
LiberationOrganization(IPLO),RedHandCommandos,Ulster
VolunteerForce(UVF),IrishNationalLiberationArmy
(INLA),oranynumberofotherarmedgroups.PIRAdeclareda
cessationofallmilitaryoperations,butdidnotspecifyagainst
whom.TheLoyalistparamilitariesmadeasimilarlyambivalent
statement.Moreover,thelegalstatusoftheconflictinNorthern
Irelandisindeterminate.Thereisdisagreementonwhetherthe
conflictoughttobecalledaninternaldisturbance,asthe
Britishgovernmentwouldhaveitorwhetheritoughttobe
calledawar,astheRepublicanmovementwouldclaim.11
Limitedconflictbetweenequallymatchedopponents,suchas
thatinNorthernIreland,isalmostindefinitelysustainable.12
Althoughmorethanthreethousandpeoplehavebeenkilled
sincethelatestperiodofconflictbeganthirtyyearsago,the
conflictwasnotexcessivelycostlyinhumanterms.Similarly,

thefinancialcoststoBritainofprolongedlowlevelviolence
werenegligibleasaportionofthetotaleconomy.Neitherthe
BritishArmynorPIRAwereshortonweapons,ammunitionor
manpower.Bothwouldhavebeenabletocontinuethewar
almostindefinitely.
Inlightofthemilitarysustainablityandculturalentrenchment
oftheconflict,thequestionarises:whydidn'ttheconflict
continueindefinitely?13Foravarietyofreasons,aceasefire
becamesimultaneouslydesirabletoboththeBritishandthe
Republicanmovement,despitethepolitical,culturaland
militaryentrenchmentoftheconflictinNorthernIreland.
Britishwillingnesstoenterintonegotiationswiththe
ProvisionalIRAresultedpartiallyfromtheendoftheColdWar,
whichchangedthestrategicmapofEurope.DuringtheCold
War,theRepublicofIrelandwasnotamemberofNATOand
disallowedanyNATObasesoroperations.NorthernIreland,
beingaBritishpossession,wasNATOfriendlysoil.Once
NATOdefenseoftheNorthAtlanticbecameunnecessary,
NorthernIrelanddeclinedinstrategicimportance.Theconflict
inNorthernIreland,despitetheexcellenttrainingbenefitsit
providedforBritishArmyregimentsandtheconvenient
"provingground"itprovidedforBritishdefense,hadbecome
enormouslyexpensive.Deploymentofnineteenthousandtroops
hascostover1billionperannum,compensationtovictimsof
violencebytheNorthernIrelandOfficecost3050millionper
annum,andtheExchequergranttoNorthernIrelandcostover
3billion(InstituteforEuropeanDefenceandStrategicStudies
1994:14).Furthermore,theconcernsofinsurancecompanies
regardingthecostsofbombsinLondonin1992and1993
influencedthewillingnessofvariousministerstosupport
negotiationswithPIRA(InstituteforEuropeanDefenceand
StrategicStudies1994:14).
TheProvisionalIRAswillingnesstoenterintonegotiationsalso
resultedfromaconfluenceoffactors.SinceGerryAdamsand
theothermembersofthenorthernleadershipcontingent(Tom
Hartley,DannyMorrison,MitchelMcLaughlin)haverisento

powerintheRepublicanmovement,Republicanideologyhas
shiftedfromtheprimacyofthearmedstruggletoanincreased
focusonpoliticalprocess.AccordingtoGerryAdams,"armed
struggleitselfisatacticandonecannotshootorbomban
independentIrelandintoexistence....Thetacticofarmed
struggleisofprimaryimportancebecauseitprovidesavital
cuttingedge.Withoutit,theissueofIrelandwouldnotevenbe
anissue.""Atthesametime,"Adamscontinues,"thereisa
realizationinRepublicancirclesthatarmedstruggleonitsown
isinadequateandthatnonarmedformsofpoliticalstruggleare
atleastasimportant(1995:63).Thispoliticalrefocushasled
toacertaintypeofconstitutionalization."Inthepast,the
republicanmovementwasaseparatistmovementwithradical
tendencies.Initscurrentembodiment,theradicaltendencyis
forthefirsttimeincontrol..."(Adams1995:163).Additionally,
rumorsthattheUSwouldincreaseitsaidpackagetoNorthern
Irelandfrom$19.6millionto$120200millioninorderto
restoretheinfrastructureandboostemploymentmayhave
encouragedtheRepublicanceasefire(Adams1995:51).
Inadditiontothepoliticalandeconomicreasonsforthe
ceasefire,recognitionofamilitarystalematealsoledtothe
ceasefire.Britishpolicysincethelate1970'shasassumedthat
PIRAcannotbedefeatedmilitarily(InstituteforEuropean
DefenceandStrategicStudies1994:12).Likewise,PIRAis
awarethattheywillneverbeabletoamassenoughmilitary
forcetocompelBritaintowithdraw.Belligerentrecognitionthat
thewarisstalematedandislikelytoremainso(orthatoneparty
hasdecisivelymorepowerthantheother)is,accordingto
Smith,thefirstpreconditionforaceasefire.Belligerentsmust
alsobelieve,astheBritishdid,thatthispowerbalanceis
unlikelytoshifteitherintheirfavorthroughmilitaryaction,or
againstthemthroughaceasefire(Smith1995:8).
InNorthernIreland,theacknowledgmentofamilitarystalemate
madepoliticalresolutionpossible.Becauseamilitaryvictory
wasimpossible,thesolutiontotheproblemhadtobeapolitical
one.TheceasefireinNorthernIrelanddidnotresultfromdefeat

ormilitarynecessity.14Rather,theceasefireprocesswasdriven
byanacknowledgmentthatthewarwasunwinnable.
TalkingitOut
ThecurrentceasefireandtalksaboutthefutureofNorthern
Irelandaretheresultofalongprocessofpoliticalreevaluation
bySinnFin.Since1987,SinnFinhasbeendevelopinga
strategyforpeace,beginningwithadiscussionpapercalledA
ScenarioforPeace(SinnFin1991).In1990,SinnFinre
establishedcontactwiththeBritishgovernmentthroughsecret
diplomaticchannelswhichhadbeenusedextensivelyduringthe
priorceasefiresand1981hungerstrike.In1992,SinnFin
circulatedTowardsaLastingPeaceinIreland,adiscussion
paperthatexplicatedtheirviewofwhatwasneededinorderfor
peacefulresolution(SinnFin1994a).15
Attemptstodevelopajointnationaliststrategyledtotalks
betweenAdamsandJohnHumetheleaderoftheSocialand
DemocraticLabourParty,thelargestconstitutionalnationalist
partyinNorthernIreland.InApril1993,HumeandAdams
issuedajointstatement,declaringtherightof"theIrishpeople
asawhole...tonationalselfdetermination(HumeandAdams
1993).TheHumeAdamsinitiative,whichwaseventually
endorsedbytheIrishgovernment,wasthesnowballthat
launchedthepeaceavalanche.
TheongoingsecrettalksbetweenBritishgovernmentandSinn
FinweremadepublicinNovember1993.Followingaseriesof
rumorsandleaks,SirPatrickMayhewmadeanannouncement
inParliament.MayhewclaimedthatPIRAhadinitiatedthe
dialoguewiththismessageallegedlysentbyMartinMcGuiness,
SinnFinsVicePresident:
Theconflictisoverbutweneedyouradviceonhowtobringit
toaclose.Wewishtohaveanunannouncedceasefireinorder
toholddialogueleadingtopeace.Wecannotannouncesucha
moveasitwillleadtoconfusionforthevolunteersbecause
presswillmisinterpretitasasurrender.Wecannotmeet

SecretaryofState'spublicrenunciationofviolence,butitwould
begivenprivatelyaslongasweweresurethatwewerenot
beingtricked(GreatBritain1993).
ThisannouncementcausedpublicuproarintheRepublican
community,ParliamentandtheBritishpress.Becausethe
Britishgovernmenthadphrasedtheannouncementinsucha
waythatitappearedthatSinnFinwastheinitiatingparty,Sinn
FinnearlybackedoutofanynegotiationswiththeBritish.
AccordingtoAdams,theadmissionbyMayhew"breach[ed]the
confidentialitywhichwehadatalltimesrespectedand...
misrepresent[ed]thecontentofourexchanges.Thebadfaith
anddoubledealinginvolvedclearlypresenteduswithserious
difficultiesinassessingthesincerityoftheBritish
government..."(Adams1995:205).Asthemessagemakesclear,
PIRAwasunwillingtobeseenbyitsmembershipastheparty
whohadaskedforpeace.16
In1993theJointDeclarationonNorthernIreland(The
DowningStreetDeclaration)wassignedbyBritishandIrish
governments.TheDeclarationarticulatedprinciplesof
negotiationandframedthebroadissuescrucialforanegotiated
settlement.TheDeclarationofferedconcessionstoboth
UnionistsandNationalists(McKittrick1994:321):
TheBritishgovernmentagreesthatitisforthepeopleofIreland
alone,byagreementbetweenthetwopartsrespectively,to
exercisetheirrightofselfdeterminationonthebasisofconsent,
freelyandconcurrentlygiven,northandsouth,tobringabouta
UnitedIreland,ifthatistheirwish(GreatBritainandRepublic
ofIreland1993).
ThisstatementpleasedUnionistsbyincludingtheconceptof
consent.ForUnionistsconsent(oftenreferredtoasthe
Unionistveto)meantthatpoliticalorconstitutionalstatusof
NorthernIrelandwillnotbealteredwithouttheiragreement.
RepublicanshadamixedresponsetotheDeclaration.The

inclusionoftheconceptofselfdetermination,whichiscentralto
theideologyofRepublicanism,reassuredsomeRepublicans.
Furthermore,theJointDeclarationattemptedtobringSinnFin,
historicallymarginalizedinpreferencetothemoremoderate
SDLP,intotheconstitutionaltalks.Unfortunately,the
DeclarationalsospecifiedthatSinnFinwouldbewelcomedat
thenegotiatingtableonlyafterrenouncingviolence.According
toMartinMcGuiness,thedeclarationwasworthless(Smith
1995:206).
PerhapsthemostimportantaspectoftheDeclarationfor
RepublicanswastheBritishgovernmentsdeclarationthatithad
no"selfishstrategicoreconomicinterestinNorthernIreland."
ThisstatementmarkedafundamentalshiftinBritishpolicy
towardNorthernIreland.Britainwasapparentlybackingdown
fromitspromisetotheUnioniststokeepUlsterBritish.The
abdicationofBritainfromanypoliticalresponsibilityfor
NorthernIrelandpromptedconservativecriticsofthe
Declarationtoarguethat,"Crucially,theDeclarationputsthe
futureofUlsterinanexclusivelyIrishandnotBritish
context(InstituteforEuropeanDefenceandStrategicStudies
1994:12).
AftertheProvisionalIRAArmyCouncilvotednottorejectthe
documentoutright(Coogan1994:496),SinnFinaskedthe
BritishgovernmentforclarificationoftheJointDeclaration.In
responsetoawrittenquestionposedbySinnFin,theBritish
representativestated:"[We]acceptthevalidityofallelectoral
mandates,includingthatofSinnFin..."(Dunnigan1995:46).
Furthermore,theBritishstatedthatanyagreementwillbebased
on"fullrespectfortherightsandidentitiesofbothtraditionsin
Ireland"(Dunnigan1995:46).Ineffect,theDeclarationopened
theconstitutionalstatusofNorthernIreland(includingthe
GovernmentofIrelandAct)todiscussion,confirmedthatno
partyhadvetopoweroverpolicyintheNorth,andrecognized
SinnFin'smandate(Dunnigan1995:46).
PoliticalrecognitionbytheU.S.,whichhadlonghadaspecial
relationshipwithBritain,alsoindicatedtoRepublicansthat

Britishintentionsweregood.AsPillar(1983:79)pointsout,
[a]ctionbyanonbelligerentpartyprovidesanevenbetter
opportunity[tobeginnegotiations].Asuitableproposalbya
thirdpartyeliminatestheneedforeitherbelligerenttomove
firstinofferingnegotiations.AlthoughpreviousU.S.
administrationshaddeniedGerryAdamsadmissiontothe
UnitedStates,inJanuary1994,PresidentBillClinton
effectivelyopeneddiplomaticrelationswithSinnFinby
grantingGerryAdamsavisatoentertheU.S.
PIRAcontinuedtomountattacksinthemonthsleadingupto
theirdeclarationofaceasefire.17IncontinuingtoattackBritish
targets,theProvisionalIRAwassendingasignalthatitwasnot
capitulatingoutofweakness.Inordertoavoidthestigmaof
weaknessattachedtopeaceoffers,belligerentsmayattemptto
demonstratestrengthanddeterminationbyescalatingviolence
directlypriortooratthebeginningofapeaceconference.The
purposeis"todemonstratethrougharmedactionthatone's
diplomaticinitiativesdonotindicateaweakeningofthewill
(Pillar1983:187).
TheProvisionalIRAfinallydeclaredaceasefireonAugust31,
1994inabrief,fourparagraphstatement.Itbegan:
Recognizingthepotentialofthecurrentsituationandinorderto
enhancethedemocraticpeaceprocessandunderlineour
definitivecommitmenttoitssuccess,theleadershipofglaigh
nahireann[YouthofIrelandinIrish]havedecidedthatasof
midnightWednesday,August31,therewillbeacomplete
cessationofmilitaryoperations.Allourunitshavebeen
instructedaccordingly(ProvisionalIrishRepublicanArmy
1994).
AftercommendingthesacrificesofRepublicanvolunteers,the
statementaffirmedthat"[w]ebelievethatanopportunityto
createajustandlastingsettlementhasbeencreated."Afterthe
declarationoftheceasefire,GerryAdamsdeclaredthat"[t]he
onusisontheBritishgovernment,theonusison(Prime

Minister)JohnMajortoseizethismoment(Kiernan1994:1).
FortheProvisionalIRA,thisceasefirewasconditionaland
wouldbehonoredonlyaslongasprogresswasbeingmade
towardstherighttoselfdeterminationassertedintheJoint
Declaration.
WhilemoderateLoyalistswereoptimisticabouttheceasefire,
hardlinerssawtheceasefireasathreattotheirexistence.As
Pillar(1983:162)pointsout:"Solutionswhichleaveopenthe
possibilitythattheenemywilleventuallytakepowerarenot
highlyvaluedbecausetheyposearisknotonlytoone'spolitical
goalsbuteventoone'slife."TheUlsterFreedomFighterscalled
theceasefirea"recipeforcivilwar"(Kiernan1994:1).Belfast
graffitiafterthePIRAceasefiresummeduptheLoyalist
position:"Bettertodieonyourfeetthanliveonyourkneesina
unitedIreland.
OnOctober13,1994,sixweeksafterPIRAdeclaredacease
fire,theUlsterVolunteerForceandUlsterFreedomFighters,
alsodeclaredaceasefire.18Loyalistparamilitariesdeclareda
ceasefireonlyafterassurancesweregivenaboutNorthern
Ireland'sconstitutionalpositionaspartoftheUnitedKingdom.
TheLoyaliststatement,readbyGustySpence,theformerleader
oftheUVFconvictedofmurderingaCatholicmanin1968,
said:"Thepermanenceofourceasefirewillbecompletely
dependentuponthecontinuedcessationofallnationalist
republicanviolence.Thesoleresponsibilityforareturntowar
lieswiththem"(UPINewswire1994).19
Followingtheceasefire,Britishofficialsheldpreliminarytalks
withSinnFininDecemberof1994.Inearly1995,theBritish
andIrishgovernmentspublishedtheFrameworkDocument,
outliningrecommendationsforapoliticalsettlementofthe
conflictinNorthernIreland(GreatBritainandRepublicof
Ireland1995).TheFrameworkDocumentsatisfiedneither
Republicans(asitcontainedprovisionsfortheUnionistconsent)
norUnionists(asitaccordedtoomuchpowertoDublin).The
FrameworkDocumentwasquicklyshelved.
Disarmamentwasthebiggestbarrierinthepeaceprocess

followingtheceasefires.TheBritishgovernmentandthe
Unionistsdemandedthatallpartytalksmustbeprecededbya
permanentceasefireanddecommissioningofweapons.The
ProvisionalIRArefusedtorenounceviolenceorto
decommissiontheirweapons.Anindependentdisarmament
commissionchairedbyformerU.S.SenatorGeorgeMitchell
wasestablishedbytheRepublicofIreland,whichisaccordeda
consultativeroleinthegovernanceofNorthernIrelandunder
the1985AngloIrishAgreement.TheMitchellcommission
recommendedinareportreleasedonJanuary24,1996thatthe
BritishgovernmentdropitsdemandthattheProvisionalIRA
disarmbeforeSinnFinbeallowedtotakepartinthepeace
talks.ThereportdidsuggestthatSinnFinshouldberequiredto
declaretheceasefirepermanentandtoagreetodisarmament
simultaneouslywithtalks(Editors1996a:A5).
TheBritishPrimeMinisterrejectedthecommissionsproposal,
insistinginsteadonelectionstoconfirmthestrengthofthe
politicalparties'respectivemandates.Allpartytalkswouldtake
placeafterspecialelectionstochoosedelegatestotheallparty
talks.Essentially,theBritishdemandedthecreationofan
internalpoliticalassemblyinNorthernIrelandastheprecursor
topoliticalnegotiations(Editors1996b:A5).Boththe
RepublicancommunityinNorthernIrelandandtheIrish
governmentsawthecreationofaninternalpoliticalassemblyas
kowtowingtothepoliticaldemandsoftheUlsterUnionists.An
internalpoliticalassemblyalsonegatedwhatRepublicanssaw
astheallIrelandaspectoftheconflict.TheBritishPrime
Ministerwasalsocriticizedforprioritizingthecomingelection
andretainingthevotingpoweroftheUlsterUnionistPartyin
theBritishparliament.
FollowingtheBritishgovernment'sdemandforapolitical
assemblyandtherejectionoftheMitchellCommissions
proposal,onFebruary9,1996PIRAissuedastatement
declaringthataresumptionofthe"armedstruggle"wastaking
place,citingitsfrustrationwiththelackofmovementon
politicaltalks.Accordingtothestatement:"Thecessation

presentedanhistoricchallengeforeveryoneandtheIRA
commendstheleadershipsofnationalistIrelandathomeand
abroad.Theyrosetothechallenge.TheBritishPrimeMinister
didnot"(ProvisionalIrishRepublicanArmy1996:paragraph4).
Laterthatday,theProvisionalIRAdetonateda1,500pound
fertilizerbombatCanaryWharfineastLondon,killingtwo
peopleandinjuringhundreds.
Despitetheendoftheceasefire,theBritishgovernmentcarried
onwithitspreCanaryWharfPlan.ElectionstookplaceonMay
30,1996andseatedaonehundredtenmemberforum,to
"advise"teamsengagedinpromisedmultipartynegotiations.20
Followingtheelection,multipartytalksbeganonJune10.Sinn
Finwasbarredfromthetalksonthegroundsthatthe
ProvisionalIRAhadnotresumeditsceasefire.FollowingSinn
Fin'sexclusion,theProvisionalIRAexplodedavanbombin
downtownManchesteronJune15th.
DespiteSinnFinsexclusionfromthetalks,negotiationsfora
politicalsettlementcontinued.On1May1997theLabourParty
wereelectedtopowerinBritishGeneralElection.TonyBlair,
thenleaderoftheLabourPartybecamePrimeMinisterwhile
Marjorie(Mo)MowlamwasappointedasSecretaryofStateof
NorthernIreland.ThenewLabourGovernmentmadeanumber
ofoverturestoSinnFin,expressingadesiretoincludethemin
talksiftheProvisionalIRAwouldrenewtheceasefire.
AccordingtoastatementoftheProvisionalIRA,"having
assessedthecurrentpoliticalsituation,theleadershipofthe
Oglaighnahireannareannouncingacompletecessationof
militaryoperationsfrom12middayonSunday20July,1997
(ProvisionalIrishRepublicanArmy1997:paragraph4).After
eschewingallparamilitaryactivityforsixweeks,SinnFin
signedtheMitchellPrinciples(agreeingtoademocratic,non
violentpoliticalresolution)andwasadmittedintothetalks.
InJanuaryof1998,UlsterDemocraticParty(UDP)was
expelledfromthetalksonthegroundsthattheparamilitary
groupwithwhichitisassociated,theUlsterFreedomFighters
(UFF)(a.k.a.theUlsterDefenceAssociation),hadbeen

involvedintherecentmurdersofatleastthreeCatholics.The
BritishandIrishgovernmentsindicatedthattheUDPcouldre
enterthetalksprocessiftheUFFmaintaineditsrenewed
ceasefire.OnFebruary20,1998SinnFinwasexpelledfromthe
multipartytalksonthegroundsthatPIRAhadbeeninvolvedin
therecentdeathsoftwomen.ShortlyaftertheUlster
DemocraticParty(UDP)rejoinedthemultipartytalks
followingtheitssuspension,SinnFin(SF)rejoinedthemulti
partytalksinmidMarch1998.
TheGoodFridayAgreementwasreachedonApril10,1998
(GreatBritain1998).UnderthetermsoftheAgreement,anew
NorthernIrelandAssemblywouldbeelectedbyproportional
representation,withexecutiveandlegislativepowersand
safeguardstoensureitsoperationonthebasisofcross
communitysupport.21Intermsofsecuritymatters,the
Agreementessentiallycreatesaquidproquo:iftheRepublicans
(andotherparties)willdeclareacompleteandunequivocal
ceasefire,stopallprocurementofweapons,dismantle
paramilitarystructuresactivelydirectingandpromoting
violence,cooperatefullywiththeIndependentCommissionon
decommissioning,andabjurefromusingotherorganizationsas
proxiesforviolence,theBritishgovernmentwilldeescalate
security,withdrawtroops,releaseparamilitaryprisoners,and
amendthelegalsystem.TheGoodFridayAgreementsetsa
twoyeartargetforfulldecommissioningofparamilitaryarms
andexplosives.Itprovidestwopossiblemethodsof
decommissioning:theprovisionofinformationtothe
Commission,leadingtothecollectionanddestructionofarms;
andthedestructionofarmsbythosewhoareinpossessionof
them.
WhiletheBritishGovernmenthastakenanumberofstepsthat
indicatetheirintentiontofollowthroughwiththeletterofthe
GoodFridayAgreement,Republicanshavetakenonlyvery
smallstepstowardsdecommissioning.TheBritishhavede
escalatedsecuritybyendingroutinemilitarypatrollinginmany
partsofNorthernIreland,byreducingtheoveralltrooplevelto

itslowestatanytimesincetheProvisionalIRAsfirstceasefire
inAugust1994,andbydemolishingtheBritishArmysFort
WhiterockbaseinBelfastinthenearfuture.TheBritish
governmenthasalsoinstitutedprisonerreleaseunderthe
NorthernIrelandSentencesActthatcameintoforceattheend
ofJuly1998.ThisActprovidesfortheearlyreleaseofoverfour
hundredprisonersinNorthernIrelandoverthenexttwoyearsin
accordancewiththeGoodFridayAgreement.22Thesoleaction
oftheRepublicanmovementthusfarhasbeentheappointment
on2September1998ofMartinMcGuinnessasSinnFins
representativetotheInternationalCommissionon
Decommissioning.
StumblingBlocksintheCeasefireProcess
Fromthiscursoryreviewoftheeventsduringtheceasefire
process,theunwillingnessoftheProvisionalIRAto
decommissiontheirweaponsinlightoftheBritishquidproquo
deescalationofsecuritymeasuresandwithdrawalofBritish
troopsfromNorthernIrelandseemslikepurefolly.Haventthe
BritishclearlyshownthattheyareeagertoevacuateNorthern
Ireland?Similarly,SinnFinsoverwhelmingmistrustofBritish
intentions,despitegoodfaithassurancesofferedbytheBritish
andtheU.S.governmentsappearsincomprehensible.Surely,the
Britishareplayingfair?ItisalsohardtounderstandSinnFins
inabilitytonegotiateonbehalfoftheProvisionalIRA.Howcan
SinnFinandtheProvisionalIRAnegotiateatrucewhenthey
cantcontroltheirownmembers?Theriseofhardline
paramilitarysplintergroupsliketheRealIRAisalsoperplexing.
DoestheexistenceofsuchgroupsbelietheRepublicansclaim
thattheydesirepeace?Theanswertothelastquestiongoes
straighttotheheartofissuescentraltoRepublicanpolitical
identity.
RepublicansuspicionsofperfidiousAlbion
TheunwillingnessoftheRepublicanmovementtoextendany
trusttotheBritishgovernmentcanbeexplainedbysketching

brieflythehistoryofIRAceasefires.Thepresentceasefireisthe
most recent in a long series. In addition to the threeday
Christmastrucesdeclaredannuallysince1990,bilateralcease
fires occurred in 1972 and 19745. During the 1981
hungerstrike,PIRAdeclaredaceasefiresothatthedeathsof
thehungerstrikerswouldnotbeovershadowedbyothermilitary
actions.Mostrecently,PIRAhadcalledabriefhalttohostilities
inApril1993.
FromaRepublicanperspective,theBritishwereresponsiblefor
breakingtheseceasefires.Forexample,the1972ceasefirewas
brokenwhentheBritishArmyandUDAattackedciviliansin
West Belfast (MacStiofain 1975: 260). Loyalist violence
directed against the Nationalist community drew PIRA into
armed engagement. According to one PIRA Army Council
member,"Ifourunitshadbeenorderedtostandaside,...theIRA
wouldhavelostthedefenseinitiativeandallcredibilitywiththe
people(MacStiofain1975:289).
The settlement negotiations following these ceasefires all
involved the same basic Republican demands: public
recognitionoftherightoftheIrishpeopletodecidethefutureof
Ireland,adeclarationofintentiontowithdraw Britishtroops,
andthegrantofageneralamnestyforpoliticalprisoners(Finn
1991:80).Notsurprisingly,theBritishwereunwillingtogrant
theIRAsdemandsin1972or19745(Wichert1991:171).In
the1970s,theBritishArmyhadnointentionofwithdrawing,
believing that the war could be won on the ground. The
expectation of eventual victory almost certainly inhibited the
Britishdesireforceasefire(Smith1995:21).
A major factor underlying Republican resistance to the
declaration of a permanent ceasefire was their perception of
Britain as perfidious and doubledealing. PIRAs experiences
withthesepriorceasefiresledthemtosuspectthattheBritish
wouldusethecurrentceasefireasanopportunitytoregroup
anddevelopnewstrategies.AccordingtoAdams(1995:103),
theBritishgovernmenthasalsousedbilateraltruceswiththe

IRAtogaintheupperhand,tocauseconfusioninrepublican
ranksandtointroducenewstrategies.Ithasneverengagedina
trucewiththeseriousintentionofconsideringorconcedingthe
republicandemands.Inparticular,thelengthybilateraltruceof
19745 was used to push ahead with the 'Ulsterisation/
'normalisation'/'criminalisation'policy.
TheProvisionalIRA,likemanybelligerentsconsidering
ceasefires,wereconcernedthataceasefirewouldputthemina
worsepositionandtheBritishinabetterpositioniffighting
resumed(Smith1995:16).
Itisnotunusualforbelligerentstotakeadvantageofceasefires
toregroupandrearm.Ininternationallaw,thisisgenerally
viewedasalegitimatepractice.23AccordingtoOppenheim
(1952:551),"belligerentsduringanarmisticemay,outsidethe
linewheretheforcesfaceeachother,doeverythingand
anythingtheylikeregardingdefenceandpreparationof
offence..."Aceasefire,inthissense,allowsforacontinuationof
warbyothermeans(Seabury1970:102).Sincewarsarelegally
endedonlybyformalpeacetreaties,thiscontinuationofwarby
othermeansis,inasense,legitimate(Smith1995:17).
Ceasefires"maysimplyfixtheconditionsunderwhichthe
fightingwillberesumed,atalaterdate,andwithanew
intensity"(Bailey1982:3).
HavingexperiencedtheBritishcontinuationofthewarunder
theguiseofpriorceasefires,theRepublicanmovementwas
waryofBritishintentionsinthe1990snomatterhoweloquent
theassurances.MartinMcGuinness,whonegotiatedthe1972
truceandwasinstrumentalinthemostrecentceasefire,
resolvedafterthe1972breachthat"from[then]ontherecould
benoquestionofanendtotheviolenceuntiltheinkonthe
treatyofwithdrawalwasdry"(BishopandMallie1987:230).
Permanence
AlthoughtheProvisionalIRAdeclareda"completecessationof
military operations," they did not affirm that it would be

permanent.TheDowningStreetDeclaration,whichspelledout
termsforpeacetalks,allowedSinnFintojointhenegotiations
threemonthsafterPIRAcalleda"permanent"endtoviolence.
Followingtheannouncementoftheceasefire,Majorrequested
anassurancethatitwas,indeed,permanent.NeitherAdamsnor
deputy Sinn Fin leader Martin McGuinness were willing to
describetheceasefireas"permanent.""Ithinkyouhavetotake
thestatementatfacevalue,"accordingtoMcGuinness(Kiernan
1994:1).
A number of cultural and historical factors underlie PIRA's
unwillingnesstodeclarea"permanent"ceasefire.First,from
the perspective of Sinn Fin, asking PIRA to declare a
permanent ceasefire before the withdrawal of British troops
wouldplaceallthemilitaryobligationsonPIRA.24Declaringa
permanentceasefirewouldgivetheBritishexactlywhatthey
had long wished for (a declawed and powerless Provisional
IRA), while the British themselves remained fully armed.
FollowingtheLoyalistceasefire,GerryAdamspointedoutthat
"[t]heBritishgovernmentisnowtheonlyagencywitharmed
forces under its control which has not ceased its military
activity" (U.P.I. newswire 1994). By declaring a permanent
ceasefire,theRepublicanmovementwouldreceivenothingbut
furtherassurances.
The second factor militating against declaring a permanent
ceasefire concerns the basic political philosophy of the
Republican movement. The Republican philosophy of armed
struggle is based on the notion that only force will compel
Britain to leave Ireland. There is the implication that since
Britainhasnotwithdrawnitstroops,"bygivingupforce...blood
has been shed in vain" (Dunnigan and Martel 1987: 41).
Dunnigan and Martel (1987: 41) refer to this problem as
"entrapment:" belligerents locked into a confrontation believe
that they have invested too much labor in establishing an
internationalsupportnetwork,theacquiringandhidingofarms
shipments,organizingtherequiredmilitarytrainingandpolitical
education of its members. PIRAs ceasefire announcement

(Provisional Irish Republican Army 1994) attempted to deal

withtheproblemofentrapmentbycommendingthevolunteers
whohaddiedinthecauseofIrishfreedom:"Werememberall
those who have died for Irish freedom and we reiterate our
commitmenttoourrepublicanobjectives."
OnOctober22,PrimeMinisterJohnMajorannouncedthathe
wouldacceptthecurrentceasefireandthattheceasefirenow
beingobservedbybothsidesis"intendedtobepermanent."As
Pillar(1983:91)pointsout,"Thefundamentaldiplomaticactin
an international negotiation is a change in one's offer a
change in what a negotiator says he will accept as an
agreement."ApparentlyinresponsetopressurefromReynolds
and American leaders, Major accepted the terms of the
ceasefire.AccordingtoMajor:"Iamnowpreparedtomakea
working assumption that the ceasefire is intended to be
permanent....IfwecancontinuereasonablytoassumethatSinn
Fin is establishing a commitment to exclusively peaceful
methods, if the IRA continues to show that it has ended
terrorism,thenweshallbereadytoconveneexploratorytalks
before this year is out" (Tuohy 1994b: A1). Major said the
Provisional IRA's adherence to the ceasefire was "more
compellingthantheirwords(Tuohy1994b:A1).
TheMilitaryStructureoftheProvisionalIrishRepublicanArmy
Sinn Fins inability to negotiate or speak on behalf of the
ProvisionalIRAremainsamajorpuzzleofthepeaceprocessin
Northern Ireland. Yet the inability of Sinn Fin to exercise
controlovertheArmyCouncilisaresultofthebasicstructure
oftheorganization.WhilemanypresentleadersofSinnFinare
formermembersoftheArmyCouncil(thegoverningbodyof
the Provisional IRA) Sinn Fin does not control the Army
Council.ThearmiliteandtheballotboxstrategyofPIRA,
whichaccordsequalprimacytoelectoralpoliticsandmilitary
action, must satisfy the Army Council or risk splitting the
movement. For example, Sinn Fin requested clarification by
the British government of the Downing Street Declaration

before they would bring the proposal to the Army Council

(Wichert1991:121).WithouttheArmyCouncilsfullsupport
fortheceasefire,SinnFincouldnotimplementit.According
toAdams(1995:221):"ItwasuptotheIRAtoholdtheirown
consultations and come to their own decision. I would have
respectedwhateverdecisiontheytook."
The Army Councils inability to exercise total control over
militantfactionswithintheProvisionalIRAalsoresultsfrom
theorganizationalstructure.TheProvisionalIRAisorganized
intoactiveserviceunits(ASUs).Organizationally,ASUsarea
cellstructureratherthanatraditionalmilitaryhierarchy.While
thisstructureprotectsPIRAfrominfiltrationandpreventsany
onepersonfromknowingtoomuch,italsolimitsthecontrol
thattheArmyCouncilactuallyhasoverthemembers.25
Thisorganizationalstructurehasimplicationsfortheceasefire
negotiationprocesssince"atapurelogisticallevel,abelligerent
mayactuallybeunabletoceasefirebecauseitcannotcontrol
themilitaryforceswhichpurporttofightforit"(Smith1995:
123). In the case of the Provisional IRA, a number of
infringementssincetheceasefirepointtotheunauthorizeduse
of violence by volunteers who are dissatisfied with the
negotiationstrategy.Duringanarmedrobberyofapostofficein
NewryonNovember11,1994,apostalworkernamedFrank
Kerr was killed (Melaugh 1994). After denying that it has
authorized any use of weapons since the ceasefire, PIRA
acknowledgedtendayslaterthatitsmemberswereresponsible,
although the robbery had not been "sanctioned" by PIRA
leaders.
RepublicanFactionalism
Perhaps one of the most serious stumbling blocks to the
ceasefire is the resistance to political settlement within the
Republican movement itself. In many paramilitary
organizations, hardline military factions are likely to be
skepticalaboutthepoliticalprocess,andtoviewnegotiationas
capitulation.AttheLetterkennyConference,forexample,eight

hundredpartydelegatesofSinnFindismissedtheDowning
StreetDeclarationasinadequateandtiltedtoomuchinfavorof
theUlsterUnionists.Evenatthattime,militaryfactionswithin
PIRA saw the ceasefire declaration as a betrayal of the
Republicanmovement.RuairiO'Bradaigh,IRAchiefduringthe
1960s,toldtheBelfastTelegraphthattheleadershiphasbeen
"constitutionalized,"meaningthatpoliticalprocesshasreplaced
armedstruggletoanunacceptabledegree.Butinthenatureof
thelongstruggle,hesaid,anothergroupwouldriseuptotakeits
place(Tuohy1994b:A1).
Anothergroupdid,infact,riseuptotaketheplaceofPIRA.On
15August,1998theRealIRA(RIRA)cametotheattentionof
the general public when it detonated a car bomb in Omagh,
NorthernIrelandkillingtwentyeightciviliansandinjuringmore
than twohundred people. The RIRA is a fundamentalist
Republicangroupthatobjectedtothe1997PIRAceasefireand
tothepeaceprocess.DespitethepopularRepublicansupportof
theoftheGoodFridayAgreement,RIRApreferredtocontinue
thearmedstruggle.RIRAsplitfollowingaconventionofsenior
PIRAfiguresatGweedore,CountyDonegal,inOctober1997.
At this meeting, PIRA's Quarter Master General who was in
chargeofweapons,ammunitionandexplosives,resignedfrom
thePIRAExecutive.26
WhileSinnFinandtheProvisionalIRAretainedtheloyaltyof
the majority of Republicans, not all were satisfied with the
northernleadershipandtheirplanforpeace.Anumberofsenior
PIRA figures, including some members of the General
HeadquartersStaff,whichcomesimmediatelybelowtheArmy
CouncilinthePIRAchainofcommand,abandonedPIRAin
favor of this splinter group. RIRA absorbed elements of the
PIRA'sSouthernCommandandrecruitedsomeofPIRA'stop
bombmakers giving them the capability to make homemade
explosives, to prepare bombs and to assemble a range of
mortars.InadditiontocertainmembersoftheDublinBrigade,
anentirePIRAunitinTipperaryissaidtohavegoneoverto
RIRAwithitsarms.27

DecommissioningofWeapons
Thesinglemajorstumblingblockintheceasefirenegotiations
hasbeentheissueofdecommissioningoftheProvisionalIRAs
arsenal.TheBritishgovernmenthasconsistentlyinsistedonthe
decommissioningoftheweaponsbeforeallpartypeacetalks.
MichaelAncram,SecretaryofStateforNorthernIreland,stated
that"peacewithoutfundamentalsolutionsisnotapermanent
peace. So we ask those with arms, 'If you are committed to
peace permanently, why do you need a vast arsenal?'"
(Montalbano1995:A1).Loyalistshavealsoconsistentlyrefused
to negotiate with PIRA without prior weapons
decommissioning.AccordingtoMichaelEmpey,amemberof
theUlsterUnionists:"LayingdownarmsisatestthattheIRAis
trulycommittedtopeace.Aslongastheycanturnonterror,we
arenotplayingonalevelfield"(Montalbano1995:A1).
Despite demands from all sides, the Provisional IRA has
consistently refused to decommission its weapons. For the
Provisional IRA, decommissioning amounted to a form of
militarysurrenderthatitwasunpreparedtoundertake(Editors
1996c: A14). According to Gerry Adams, "The British
governmentisnotsimplyinterestedinagesture.Itis,inreality,
demandingthestartofasurrenderprocessasapreconditionto
allpartytalks(BewandGillespie1996:105).
PIRAsunwillingnesstodecommissionweaponsisrelatednot
onlytothearmedstruggleagainsttheBritishArmy,buttothe
defensive role which weapons have played in nationalist
communities. According to Gerry Adams (1995: 50), "the
circumstanceswhichshapedtherecentsupportfortheIRAare,
above all, the experience of the barricade days from 1969
1972."DuringtheLoyalistsriotinginBelfastinAugustof1969,
theIRA(whichhadbeendefunct)rearmedandreorganizedin
order to defend the community from attack (deBaroid 1990).
The current expectation that PIRA will abandon its weapons
runscountertothefundamentalworldviewofRepublicans
that their communities are besieged by hostile British and

Loyalistforcesandthattheonlydefensetheycanexpectiswhat
theythemselvesprovide.
Following the approval of the Good Friday Agreement, the
ProvisionalIRAissuedastatementrefusingtogiveupanyofits
weapons. Let us make it clear that there will be no
decommissioning by the IRA. This issue, as with any other
matteraffectingtheIRA,itsfunctionsandobjectives,isamatter
onlyfortheIRA,tobedecideduponandpronounceduponby
us (Provisional IRA 1998). The statement described the
NorthernIrelandpeacedealassignificant,butsaiditfellshort
of "presenting a solid basis for a lasting settlement." "The
leadershipofglaighnahireannhaveconsideredcarefullythe
GoodFridaydocument,"thestatementbegins."Itremainsour
position that a durable peace settlement demands the end of
BritishruleinIrelandandtheexerciseoftherightofthepeople
of Ireland to national selfdetermination" (Provisional IRA
1998).
Articles2and3
Anotherstumblingblocktoanenduringpeacesettlementwas
thedualclaimoftheRepublicandIrelandandGreatBritainto
theterritoryofNorthernIreland.ThemodificationoftheIrish
Constitutionbecamethecauseofadeadlockindraftingofa
frameworkdocumentfortalks.Whilethisissuedoesnotinvolve
theProvisionalIRAdirectly,itisboundupwiththepolitical
history of Ireland and with concepts of cultural and national
sovereignty.TheIrishConstitutionandtheBritishGovernment
ofIrelandActbothlayclaimtotheterritorialsovereigntyof
Northern Ireland. Article 2of the Irish Constitution, declares
that "the national territory consists of the whole island of
Ireland,itsislandsandtheterritorialseas."Thephrase"national
territory"implicitlymakesaclaimthattheterritoryofNorthern
IrelandbelongstotheRepublicofIreland.Article3statesthat
"pending the reintegration of the national territory" the laws
enactedbyParliamentshallpertaintoNorthernIreland.Article
3effectivelyclaimstherighttoexerciselegaljurisdictionover

thewholeisland.In McGimpseyv.Ireland,theIrishSupreme
Courtdeclinedtoabandon[]theclaimtothereintegrationof
nationalterritory,"essentiallyreaffirmingIrishterritorialclaims
toNorthernIreland.28
Negotiatingthesecontradictoryclaimstosovereigntyhasbeen
rather thorny. Earlier in the talks process, the British
governmentproposedthatiftheIrishGovernmentwouldamend
the territorial claims in Article 2 and Article 3, the British
government was willing to modify the terms of the 1920
Government of Ireland Act (and the subsequent 1973
Amendment). Nobody was happy with this arrangement.
AlthoughtheoriginalwordingofArticles2and3wasperceived
asathreatbyUnionistswhodonotconsiderthemselvestobe
partoftheIrishnation,themodificationoftheGovernmentof
Ireland Act (1920) was even worse. Because the wording
excludesUnionists,itistotallycounterproductivetothevery
objective that the articles purportedly sought to advance
(Fitzgerald1994).AlterationofArticles2and3wasseenasa
compromisebyIrishnationalists.Byrenouncingtheclaimover
the territory of Northern Ireland, the partition of Ireland was
legitimated.ForSinnFin,therevocationofArticles2and3
would "have the effect of leaving Britain's assertion of, and
claimto,sovereigntyoversixIrishcountiesuncontested,while
withdrawing Ireland's rightful claim to sovereignty (Adams
1995:206).
The Good Friday Agreement seems to have provided some
solution.UndertheAgreement,theIrishConstitutionwillbe
amended, abandoning the Republic's territorial claim on
NorthernIrelandandofferingformalrecognitionthatNorthern
IrelandislegitimatelypartoftheUnitedKingdom.Thiswill
pleasetheBritishgovernmentandassuretheUnioniststhatthey
will not become Irish without their consent. The British
Governmentagreedtorepealthe1920GovernmentofIreland
Act, thereby disavowing their sovereignty claim, and to
introduce legislation to create a united Ireland should that
become the wish of a majority in Northern Ireland. This

arrangement will please Nationalists by removing Britains

claimuponIrishsoilandmollifytheUnionistsbyguaranteeing
Northern Ireland's place in the United Kingdom unless a
majority want to change that status. Additionally, this
arrangement will probably meet with international approval;
AdrianGuelke(1988)arguesthatislandsareperceivedbythe
internationalcommunityasintegralpoliticalunits.
RepublicanConstitutionalIssues
TheappealofagrouplikeRIRAmay,fromtheoutside,seem
incomprehensible. They engaged without apology in the
slaughterofciviliansandseemeddeterminedtodestroyallthe
gainsmadeduringtheceasefireprocess.Yet,RIRAdidappeal
tomanyRepublicans.ToRepublicans,theappealoftheReal
IRAwasnotbasedonagruesomeappreciationoftheatrocities
committedbygunghobloodcrazedProvogunmen.Rather,the
RealIRAtouchedanerveintheRepublicanbodypolitic.The
RealIRAclaimedthatthey,infact,weretherealIRA.They
claimed that their historical mandate and political legitimacy
werederivedfromthe1919Dail.Intheirview,byparticipating
inthepoliticalprocessandbygivingupthearmedstruggle,the
Provisional IRA had betrayed the fundamental values of the
Republicanmovement.
Historically, disputes over political legitimacy and who
representstheauthenticspiritofRepublicanismhavecaused
significantsplitsintheRepublicanmovement.Allofthesesplits
resultedinconsiderablebloodshedandwere(forRepublicans)
presumably worthfighting for.Perhaps themost wellknown
splitinthemovementisthatwhichresultedintheIrishCivil
War,19211923.Similarly,disagreementsoverparticipationin
thepoliticalprocessledtothe1970divisionoftheorganization
into the Official and Provisional IRA. The Provisional IRA
rejectedanypoliticalrecognitionofeitherStormont,Dublin,or
Westminsterparliamentsandtherebybecametheinheritorofthe
armedstruggletradition(Wichert1991:121).Althoughitnever
cametopass,animpendingfeudbetweentheProvisionalIRA

andRIRAdidnotseemunlikelyfollowingtheRIRAbombin
Omagh.29
Disputesconcerningthelegitimacyofpoliticalmandatelieat
theheartofthesecretcultureofRepublicanism.Theappealof
theRealIRA,therefusaltogiveupweaponsbeforetheinkon
the treaty was dry, the factionalism and militarism of the
Republicanmovement,andtherelationshipbetweenSinnFin
andPIRAareallinformedbythestrangehistoryofRepublican
constitutionalism.
At the beginning of the 1916 uprising against the British
occupationof Ireland, theleadersofthe rebellion authoreda
Proclamation of the Irish Republic. This was essentially an
aspirational, constitutional charter document, as the actual
RepublicofIrelandonlycameintobeingfollowingtheAnglo
IrishWar.AspartoftheProclamationoftheIrishRepublic,a
parliamentoftheIrishRepublic,knownastheDailEireann,was
established.TheIrishRepublicanBrotherhood,asecretmilitary
organization,wasrenamedbytheDailtotheIRA.Theytook
oaths to "support and defend the Irish Republic and the
Government of the Irish Republic, which is Dail Eireann,
againstallenemies,foreignanddomestic."Theythenentered
into a war of independence against the British Government.
While the IRA won freedom for the southern twentysix
countiesofIreland,thevictorywasincomplete.
In December 1921, the Dail Eireann signed a treaty with
Englandwhichgavethemthestatusasanationstatewithinthe
dominion ofthe BritishEmpireandwhichendedthe Anglo
IrishWar.NorthernIrelandwasthenpartitionedfromtherestof
theislandandbecameaBritishprotectorate.SinnFinsplitinto
twofactionsintheDail:thosefavoringtheTreaty,andthose
opposed.In1922,whentheDailacceptedtheTreaty,theIRA
withdrewitsallegianceandfellbackonitsownconventionfor
authority (Cronin 1980: 132). The AntiTreaty faction called
themselvesRepublicans,believingthattheAngloIrishWarhad
beenfoughtinordertofoundanindependentrepublic,outside
ofanypoliticalinfluenceofEngland.TheIrishFreeStatecame

intoexistencein1922,andtheRepublicanantiTreatyforces
beganaguerrillawaragainstit,knownastheIrishCivilWar.30
TheantiTreatyforcesorRepublicansrefusedtoparticipatein
any way in the political process and vowed to continue the
armedstruggleagainsttheBritishoccupationofIreland.
These historical facts have informed Republican political
thinking for over seventy years, and still influence the daily
functioning of the organization. As the direct organizational
descendant of the antiTreaty Republicans, PIRA claims a
historical mandate as the legitimate government of the Irish
Republic.31 Nootherpoliticalorganizationholdsthisauthority
it is the prerogative of the Army Council itself. Every
RepublicanowesallegiancetotheArmyCouncil,ofwhichSinn
Fin is merely the proxy. The training manual of the
Provisionals,TheGreenBook,statesthat"Theleadershipofthe
IRA is the lawful government of the Irish Republic" (Clarke
1987:2).32Essentially,PIRAviewsitselfasthelegalsuccessor
oftheSecondDail,andthereforeasthelegitimategovernment
oftheIrishRepublic(Cronin1980:208).33SinnFin,therefore,
hasnopowerofitsown,butcanonlyactunderthepoliticalwill
oftheProvisionalIRA.34
Historically, theProvisionalIRA andSinnFin haverefused
anypoliticalparticipationinBritishinstitutions,astheyseethe
British government in Northern Ireland as illegitimate. As a
forceofoccupation,theBritishgovernmentlacksanypolitical
mandate. Participation, therefore, of Republicans would
legitimize an unacceptable political situation. But this view
seems to be changing slowly. On 10 May 1998 Sinn Fin
decided,atasecondArdFheisinDublin,tosupporttheBelfast
Agreement.SinnFinsdecisionwasmadepossible,inpart,by
achangeintheIRAsconstitutionallowingSinnFintotakeup
seatsinthenewNorthernIrelandAssembly.Mostspeakersat
theArdFheisemphasizedthatSinnFinsacceptanceofthe
BelfastAgreementwasnomorethanatactical"extensionofthe
armedstruggle.TheProvisionalIRAwouldretainitsarmsand
(asGerryKellyputit)thedecisiontoparticipateinaNorthern

Ireland Assembly was taken in the knowledge that "in six

monthswecanrevisitit"(BritishInformationService1998).
ThesestatementsgofarinexplainingRepublicanwillingnessto
engageinpoliticalprocessifthatparticipationcanbecouched
astacticalorprovisionalthenitdoesnotconferunearned
legitimacyontheBritishpoliticalmachine.
Conclusion
Thispaperhasattemptedtoshowhowtheculturalvaluesthat
helpedsustainthewaralsohadadirectimpactontheceasefire
process.PIRA'srefusaltodecommissionweaponsortodeclare
a"permanent"ceasefireasapreconditiontoenteringinto
negotiationsreflectsnotonlyautilitarianstrategicdecisionbut
alsoreflectsasetofculturalvalues.Inaculturethatreveres
militarycompetenceandseestheAngloIrishwarashistorical
proofoftheefficacyofarms,thedecommissioningofweapons
threatenstonegatethefoundationuponwhichIrishRepublican
cultureisbased.Inlightofthesevaluesandattitudes,whatis
theprospectforpermanentpeace?
PIRAappearswillingtobargainduringnegotiations,toaccepta
stagedwithdrawalofBritishtroopsandtoaccepttheprinciple
ofdemocraticconsenttopoliticalchange.Yetthisflexibility
onlyextendssofar.Becausetheyarenotsimplyanorganization
butthemilitaryexpressionofacomplexculture,PIRAwillnot
backdownoncertainissues.Intheinterestsofselfprotection
andculturalmilitarism,PIRAwillprobablyresist
decommissioningofweaponsunlesstheBritishgovernment
withdrawstroops.Theirunwillingnesstodeclareapermanent
ceasefireindicatesthattheceasefireisatacticinmuchthesame
waythatarmedstrugglewasatactic.Iftheyfailtogetwhatthey
seekthroughnegotiations,theymaybeginthemilitary
campaignagain.Ontheotherhand,aftertheexperienceof
peaceforsuchanextendedperiod,theirsupportbaseinthe
Republicancommunitymayshrink.Peace,likewar,may
becomeanentrenchedcondition.

Notes
1
Ceasefiresrepresentanindeterminatestatebetweenpeaceand
war.Thedifficultyindefiningthestagesoftransitionbetween
peaceandwarisreflectedindisagreementswithininternational
lawregardingthedefinitionof"ceasefire."Thetermwasused
neitherintheHagueConvention(1907),norinanymajorworks
oninternationallawofarmedconflict,suchGreenspan(1959)
orSchwarzenberger(1968).OnlywiththecreationoftheUnited
Nationswastheterm"ceasefire"distinguishedfrom"truce"of
"armistice (Mohn 1950). Truce can be distinguished from
ceasefireinthatatruceinvolvesstabilizationorstrengtheningof
aceasefire.Armisticecanalsobedistinguishedfromceasefire
sinceitmayonlybelocalincharacter.Forthepurposeofthis
paper, Smith's (1995: 266) definition has been adopted: A
ceasefire is an implemented agreement between belligerents
(eitherexplicitorimplicit),involvingallorthegreaterpartof
theirmilitaryforcesto,ataminimum,abjuretheuseofviolent
force with regard to each other, for a period of time (not
necessarilyspecified)regardlessoftheintentionfordoingso,
andregardlessoftheeventualoutcomeofsuchagreement."
2
Generally, Republicans tend to be Catholic and are
sometimesmistakenlyreferredtoassuch.Loyalists,though
the name denotes a political view that is not dependent on
religious affiliation, are often called Protestants. Unionists
seektomaintainpoliticalunitywithGreatBritain.
3
Thematerialgaintheory,forexampleGordon(1987),seems
particularly unlikely considering the poverty of Northern
Ireland.TheBritishgovernmentderivednoobviouseconomic
benefitfromitstieswithNorthernIreland,althoughitislikely
therewerecertainmilitary,strategicandpoliticalbenefits.The
soldierswhopatrolledWestBelfastlearnedinvaluabletactical
lessons;operationsduringtheFalklandsWarbenefitedfromthe
training ground of Northern Ireland. In light of the political
neutrality of the Republic of Ireland, Northern Ireland also
providedaninvaluablestrategicpositionforNATOairandsea
operationsintheNorthAtlanticduringtheColdWar(Institute

forEuropeanDefenceandStrategicStudies1994).Similarly,
theRepublicancommunityderivednomaterialbenefitsfromthe
warthatwouldencourageitscontinuation.AccordingtoGerry
Adams(1995:65):"IfthelifeofanIRAvolunteerwasacareer,
onemightbeabletotalkaboutpeoplewhowantedtokeepthe
wargoingratherthanlosetheirlivelihoods,butthereisnoteven
thatmercenaryelement.
4
Commentators such as Byrne and Carter (1996) and Byrne
(1995) have argued that we need to take note of the role of
ethnic identity in the competing attachment of two opposing
ethniccommunitiestothesameterritory.Thepointofthispaper
issomewhatdifferent:thatculturescontaininternalmechanisms
orsocialvaluesthatmay,undertherightcircumstances,serveto
sustainorproduceconflict.
5
RepublicanismisjustonesubtypeofnationalisminNorthern
Ireland.TheSocialDemocraticLaborParty(SDLP),thelargest
nationalist group in Northern Ireland, has views that are
dissimilar to those of Republicans. While Republicans see
British occupation as the bar to unification, leftist social
democratspinpointtheproblematicrelationshipofunionistsand
nationalistsasabartoreunification.Guelke(1988)makesthe
point that the international community views the partitioned
territoryofNorthernIrelandasillegitimate.
6
Necrophilicinthiscontextcanbetakentomeanastrong,
abidingfascinationwithdeathandwiththepoliticalmartyrdom
of Republican figures like Padraig Pearse and Bobby Sands.
CommentatorshavenoticedthatbloodlettingintheRepublican
traditionhasaredeptivequality(Feehan1986).Forbackground
onthehungerstrikeseeBeresford(1987).
7
On the history of British military operations in Northern
Ireland,seeDewar(1985).
8
The delicate process of preventing escalation and avoiding
international disapproval forced the war underground. By the
late 1980's the conflict centered on undercover operations,
informantsandamutual,informalshoottokillcodeofcombat
betweenPIRAandBritishArmySpecialForces(Urban1992).

 Loyalists fear that if Ireland is united, the nine hundred

thousand Protestants in the north would become a minority
amongthethreemillionCatholicsintheRepublicofIreland.
10
Forexample,wheninMay1974theBritishlabourgovernment
proposedaCouncilofIreland,the(Protestant)UlsterWorkers
CouncilbeganastrikethatshutdownallactivityinUlster.Asa
resultofthestrike,theNorthernIrelandParliamentatStormont
collapsed and London assumed governance of the province
(O'Malley1990:228).TheHomeRulebillsof1893,1912and
1913werealsoviolentlyresistedbyUlsterProtestants.
11
Warsaretypicallydefinedbyauthorsinthefieldasthosewith
morethanonethousandcombatdeathsperyear(Pillar1983;
SmallandSinger1982:12).NorthernIrelandandothersuch
lowintensityconflictsthusfalloutsideoftheparametersofthe
studies.
12
TheceasefireinNorthernIrelandchallengesafundamental
assumptionofconflictresolutiontheory:thatwarsendbecause
theycannotbesustained.Thisideaemergesoutofthemilitary
historyofprenineteenthcenturyEurope,whenmostwarsended
with a decisive military victory or when victory became
militarilyorfinanciallyinconceivable.Statisticaldatasuggests
thatmodernwars,withtheexceptionoftheGulfWarandthe
FalklandsWar,havenotendedinadecisivemilitaryvictory.
Rather,theytendtoresultinastalematewithanambivalent
relationship between the belligerents (Pillar 1983: 1621;
DunniganandMartel1987:207262).DunniganandMartel's
data indicate that in 85.7% of wars between 19751983
stalematewasconsideredtobethedecisivefactorinendingthe
war.
13
TheconflictinNorthernIrelandchallengesotherassumptions
inceasefiretheorywhicharebeyondthescopeofthispaper.
Warsareassumedtobetemporaryaberrationsinthepolitical
lifeofnationsthatmustandwilleventuallycometoahaltwhen
the belligerents have the political will to do so. In Northern
Ireland,thebasicassumptionthatwarsaretemporaryneedsto
becarefullyconsidered.
9

Quantitative studies have attempted to determine the

relationshipbetweencasualties,forceratiosandthedurationof
warsinordertopredictwhenwarsend(SmallandSinger1982).
Thedatadonotassociateanythresholdlevelofcombatdeaths
with cessation of war, and there may in fact be a negative
correlationbetweenlengthofwarsandbattledeathspercapita
permonth(Wittman1979).Inotherwords,thefewerthedeaths,
thelongerthewar.
15
Keysectionsofthedocumentincludedtherecognitionbythe
British of an Irish right to selfdetermination, the end of
partition and transfer of sovereignty to an allIreland
government who would be democratically selected by the
people, the use of British authority to influence Unionist
opinion, and consultation between London and Dublin to set
policyobjectivesofendingpartition(Adams1995:209).
16
PIRAdeniedeversendingthismessage.Thismay,infact,be
truesincethemessagesweretransmittedorally,ratherthanin
written form (Sinn Fin 1994b; MLR Smith 1995: 201).
According to Pillar (1983: 67), the pervasive notion that an
initialoffertonegotiateis'suingforpeace'leadsgovernmentsto
resist making such offers for fear of being considered the
defeatedparty."
17
Suchattacksincludedabombexplosionatanarmycheckpoint
inKeadyonMay15,1994thatkilledaBritishsoldier.OnMay
21inArmagh,theProvisionalIRAabducted,interrogatedand
executed Reggie McCollum, a private from the Royal Irish
Regiment.McCollumwasthethirdmemberofhisfamilykilled
byRepublicans.Theseattacksmayhavebeenintendedtoshow
thepreceasefirestrengthofPIRA,butotherattackswerelong
intendedandhadveryspecifictargets.OnJuly11,1994,Ray
Smallwoods, a notorious former paramilitary from the Ulster
Democratic Party, was assassinated in Lisburn and two
members of the Ulster Freedom Fighters, Joe Bratty and
RaymondElderkilledonJuly31inBelfast.Additionally,after
many attempts, PIRA finally did shoot down a British Lynx
helicopteronMarch19inCrossmaglenwithamortarshell.
14

The statement issued by the Combined Loyalist Military

Commandsaid:Inthebeliefthatthedemocraticallyexpressed
wishesofthegreaternumberofpeopleinNorthernIrelandwill
be respected and upheld, the Combined Loyalist Military
Command will universally cease all operational hostilities as
from12midnight,ThursdayOct.13,1994(CombinedLoyalist
MilitaryCommand1994).
19
AccordingtoMartinMcGuinness,"Againstthebackdropofno
IRAattacksagainstBritishforces,youhaveasituationwhere
they are free to deal with these people within the Loyalist
communitywhowouldembarkonrampages...butthat'snotto
sayyouwon'thaveoutbreaksofviolence.(Kiernan1994:1).In
starkcontrasttothetraditionalRepublicanviewoftheBritish
ArmyascollaboratingwithUnionists,McGuinness'statement
indicatesthatRepublicansnowexpectedBritishsecurityforces
toprotecttheRepublicancommunityfromLoyalistviolence.
20
SinnFeingatheredmorethanfifteenpercentofthevote,a
recordhigh.TheoutlawedUlsterVolunteerForceandtheUlster
DefenceAssociationpolledsixpercentofthevote.Thiselection
indicatedthattwentyonepercentofthevoteinNorthernIreland
supportedpoliticalpartiesadvocatingviolence.
21
The Agreement also included a provision for cooperative
councilbetweenNorthernIrelandandtheRepublictoconsult,
cooperateandactwithintheislandofIreland.
22
AsofNovember,1998overtwohundredandtwentyprisoners,
abouthalfofthoseeligible,havebeenfreed.Prisonersfromthe
following organizations are ineligible for early release: The
Continuity Irish Republican Army (CIRA), The Real Irish
RepublicanArmy,TheIrishNationalLiberationArmy(INLA)
andtheLoyalistVolunteerForce(LVF).Despitethefactthat
PIRAisnotcooperatingwiththedecommissioningbodyand
punishmentattackshavecontinued,PIRAprisonershavebeen
released.
23
Anotherschoolofthoughtviewsceasefireasastatusquoin
whichbelligerentsarenotallowedtotakeadvantageofthecalm
for military gain. During the conflict in Palestine, the UN
18

SecurityCouncilresolvedonAugust19,1948that"nopartyis
entitledtogainmilitaryorpoliticaladvantagethroughviolation
ofthetruce"(Smith1995:18).
24
Pillar (1983: 111) notes that ceasefires are generally
unsuccessful if "each side proposed placing all the military
obligationsontheenemywhileassumingnoneitself."
25
Finally,neitherSinnFeinnorPIRAhavemuchinfluencewith
other hardline paramilitary groups, such as the INLA or the
IPLO.Theseorganizationsoperateindependently,andthusfar
havebeencooperatingwiththeceasefire.TheINLAdeclareda
"tacticalratherthanpermanent"ceasefireonMay5,1995.
26
TheExecutiveelectsthesevenpersonArmyCouncil,whichis
themaindecisionmakingbodyofPIRA.
27
InadditiontoreceivingcovertsupportfromPIRAmembers
dissatisfiedwiththepeaceprocess,RIRAhasworkedwiththe
twootherRepublicangroupsopposedtothepeaceprocess:the
ContinuityIRA(CIRA)andtheIrishNationalLiberationArmy
(INLA),whichcalledaceasefireaftertheOmaghmassacre.For
anexcellentsummary,seeBoyne(1998).
28
InMcGimpseyv.Ireland,constitutionalquestionswereraised
regardingtheAngloIrishAgreement.Article1(a)affirms"that
anychangeinthestatusofNorthernIrelandwouldonlycome
aboutwiththeconsentofamajorityofthepeopleofNorthern
Ireland." The plaintiffs argued that because the AngloIrish
Agreementeffectivelyrecognizedthelegitimacyofthepresent
constitutional arrangements in Northern Ireland, it violated
Articles2and3oftheConstitutionwhichexertaclaimover
NorthernIrelandaspartofthe"nationalterritory."Furthermore,
the"consentclause"oftheAgreementwaschallenged,insofar
asitwasarguedthatIrelandhadenteredintoaTreatywhereby
itcommitteditselftoobtainingtheconsentofonesectionofthe
Irish nation, while disregarding the interests of the majority
(e.g.,thepopulationoftheIrishRepublic).TheIrishSupreme
CourtheldthattheAngloIrishAgreementwasnotinconsistent
withArticle2and3oftheConstitution,butmerely"constitutes
a recognition of the defacto situation in Northern Ireland ...

withoutabandoningtheclaimtothereintegrationofnational
territory."
29
TheOmaghatrocity,whichseemedtobedesignedtofrustrate
the peaceful aims of PIRA and Sinn Fein, could have easily
provokedafeudbetweenPIRAandtheRealIRA.Inthepast,
this type of unauthorized military action often resulted in
bloodshed.AnothersensitiveissuewasthetheftofPIRAarms
andwarmaterialbytheRealIRA.Misappropriationofweapons
isconsideredtobeacapitaloffensebyPIRA.Thefactthatthere
wasnotafeudindicatesthatthenorthernleadershipofSinn
Fein and the Army Council successfully restrained the more
militantfactionsinPIRA.
30
MichaelCollinswasafigurecentraltotheIrishCivilWar.At
theendoftheAngloIrishWar,Collinstookapragmaticpro
Treatyview,believingthattheTreatywastheonlyconcession
thattheBritishcouldofferin1921.Nevertheless,Collinswas
determined to protect the Republicans in the north from
ProtestantantiNationalists.Despitethefactthathehadbecome
aministerinthenewlyformedgovernmentoftheRepublicof
Ireland,CollinscarriedoutmilitaryoperationsagainstBritish
forcesalongtheborder.Atthistime,aseriesofpogromswere
beingcarriedoutintheNorth,andthesewerewidelyconsidered
tobetheworkofFieldMarshalSirHenryWilson,exChiefof
theImperialGeneralStaffandcurrentmilitaryadvisorofthe
Unionist government in Belfast. Wilson, a vehement anti
Nationalist, was killed in London on the order of Michael
CollinsbytheIRB.Wilson's"killingwasthepretextthatfinally
tumbled the two Sinn Fein factions into Civil War" (Cronin
1980:151).Collinswasassassinatedin1922.
31
ItshouldbenotedthattheIrishRepublic,whichisanation
waitingtobeborn,isnottheRepublicofIreland,whichisa
nationbornfollowingtheAngloIrishwar.
32
ThisisalmostidenticaltoclausetwentyoftheConstitutionof
theIrishRepublicanBrotherhood:TheSupremeCouncilofthe
IrishRepublicanBrotherhoodisherebydeclaredinfact,aswell
asbyright,thesoleGovernmentoftheIrishRepublic."

BelievingthemselvesthelegitimategovernmentofIreland,the
Provisionals claim a mandate to declare war against Great
Britain.
34
Althoughitmayseemthatthetailiswaggingthedog,the
ProvisionalIRA'sphysicalforcetraditionnotonlyestablished
the Republic of Ireland, but has assured the continuity and
preservationofthemovementforatleastacentury(oreight
centuries, depending on when one begins counting). The
ideology of Republicanism is also remarkably consistent:
SeamasTwomey,formercommanderoftheBelfastBrigadeof
PIRAinthe1970'sandGerryAdam'spredecessorasChiefof
Staff, summed up the basic ideology of Republicanism very
simply:"Ourfirstprimeandmainobjectiveistheunificationof
ourcountry.ThismeansgettingtheBritishoutoftheoccupied
partofthecountry.AfterthatthewholesysteminNorthand
Southwouldhavetobechanged(Cronin1980:214).
33

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EndangertheTruce.NewYorkTimes,11January,p.A14.
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Finn,JohnE.1991.ConstitutionsinCrisis:PoliticalViolence
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PeaceandConflictStudies,Volume7,Number1,May2000

Britain in breach of Belfast

Agreement duties, says FF
ECHR to be replaced with some ambiguous unknown
British Bill of Rights - OCallaghan
Wed, Oct 19, 2016, 07:31 Updated: Wed, Oct 19, 2016, 08:37

Marie O'Halloran

Jim OCallaghan has sharply criticised Britains preparation for Brexit as

abysmal. Photograph: Nick Bradshaw/The Irish Times

Nobody in Government has warned the British

authorities that they are in breach of their
international obligations in relation to the Belfast
Agreement, the Dil has heard.
Fianna Fil justice spokesman Jim OCallaghan said
Ireland did not amend Articles Two and Three of the
Constitution to allow some ambiguous unknown
British Bill of Rights replace the European Convention
on Human Rights Act as it operates in Northern
Ireland.
He sharply criticised Britains preparation for Brexit as
abysmal and warned that the British population was
being guided through an enormous crisis by
inexperienced politicians whose compasses are set not
by the interests of the British people but by feelings of
emotion and English nationalism.
He also said Ireland was grossly unprepared for
Britains departure and he criticised the budget which
was completely inadequate in seeking to deal with the
threat posed to this country by Brexit.
Speaking during a late night debate on Budget 2017,
Mr OCallaghan warned of the constitutional as well as

economic consequences of Brexit for Ireland.

Highlighting the vote in Northern Ireland to remain,
he said the Government needed to carefully nourish
the recognition by unionists for the first time that their
interests are best served, not by being part of the UK,
but by being part of a federal European system.
The Dublin Bay South TD said the decision by the
British government to have a referendum on leaving
the EU will probably go down as one of the worst
policy decisions of a British government since the
Munich Agreement in 1938.
Mr OCallaghan, a barrister and Fianna Fils legal
adviser, pointed to the vote by the vast majority of
people in 1998 to amend Articles Two and Three of the
Constitution, linked to territorial claims to the North,
to give effect to the Belfast Agreement.
:
:
:

Brexit: Farmers are a resilient bunch. We have to get

on with it
Tourism looks to cross-Border bodies for post-Brexit
growth
Applications for Irish citizenship continue to surge
post-Brexit

He said it was sometimes forgotten that there were two

agreements involved.
One was a multiparty agreement between the parties in
Northern Ireland and the second, an international
agreement between the UK and the Republic of
Ireland.
British law
That agreement was registered as an international
treaty in the United Nations.
We agreed to amend Articles Two and Three of the
Constitution. In return the British state agreed to
change its legal system so that the European
Convention on Human Rights would be incorporated
into British law, he said.

They did that by introducing the European Convention

on Human Rights Act into domestic British law.
We are now told that the British government intends
to repeal the European Convention on Human Rights
Act as it operates in Northern Ireland.
Instead we are told it is going to be replaced by some
ambiguous unknown British Bill of Rights.
He pointed out that that was not what Ireland agreed
to when it amended its Constitution.
That was not what this State agreed to when we
entered into an international treaty with the UK and
registered in the UN.
He added that unfortunately no one in the Irish
Government was emphasising to the British
government that they were in breach of their
international obligations.
Mr OCallaghan also criticised the Government for
failing to be joined as a notice party in a court case in
Belfast on the referendum so that the State could have
given Irelands view on what was required based on the
Belfast Agreement.
Criticising the States lack of preparedness for Brexit,
Mr OCallaghan said the first thing the Government
needed was to have a plan for the purpose of
influencing the European Commission negotiators in
talks with Britain.
We need the European Commission negotiators to
recognise Irelands unique position because of the
Border.
He also said Ireland needed to identify what it required
the EU negotiators to speak of on Irelands behalf when
they came to negotiate with Britain.
We need to make decisions on this island to ensure we
are protected against the ramifications of Britains
exit.

Tusk's EU Council invite.. over dinner: "The Prime

Minister of the United Kingdom will present the
current state of affairs in the country".
http://www.irishtimes.com/news/politics/britain-inbreach-of-belfast-agreement-duties-says-ff1.2835176

ICO's blog on its

international work
Colleagues from across the organisation share their
experiences and involvement in the ICO's ongoing
contributions to the upholding of information rights
across the globe.

Friday 21 October| Hannah McCausland

So the international conference in Marrakesh has

drawn to a close and we have had a really productive
time, which will contribute to the ICOs work planning
for the next year and beyond. The ICO's resolution on
International Enforcement Cooperation was adopted
and we are really pleased to have received support for
it from the wide base of authorities here.
Overall, the ICO has made a substantial and positive
contribution to the conference. We have actively
engaged in discussions on surveillance, artificial
intelligence and robotics. We were also involved in
another conference resolution regarding a new
framework for inclusion of Data Protection in the
Education Curriculum. Side events at the conference
also allowed us to engage with our colleagues from
data protection authorities across the Commonwealth
and to discuss with others the forthcoming Global
Privacy Enforcement Network Sweep cooperation
initiative for 2017. This annual event is the only time
in the year when so many data protection and privacy
authorities are in one place and it has given us the

chance to share our knowledge and learn from others.

What we have learned will be useful to bring back and
discuss with our colleagues in Wilmslow and will
hopefully enhance both our international and domestic
policy work in the coming year.

NORTHERN IRELAND (STORMONT

AGREEMENT AND IMPLEMENTATION
PLAN) BILL
EXPLANATORY NOTES
http://www.publications.parliament.uk/pa/bills/lbill/20
15-2016/0105/EN/16105en.pdf

A Bill of Rights for Northern Ireland

http://www.nihrc.org/uploads/publications/bill-ofrights-for-northern-ireland-advice-to-secretary-state2008.pdf
A FRESH START THE STORMONT AGREEMENT AND
IMPLEMENTATION PLAN 17 November 2015
https://www.gov.uk/government/uploads/system/uplo
ads/attachment_data/file/479116/A_Fresh_Start__The_Stormont_Agreement_and_Implementation_Pla
n_-_Final_Version_20_Nov_2015_for_PDF.pdf

The Stormont
House Agreement
https://www.gov.uk/government/uploads/system/uplo
ads/attachment_data/file/390672/Stormont_House_A
greement.pdf
CSOStatistical Yearbook of Ireland 2016
How many same sex marriages and how many civil partnerships were
there in 2015?

http://www.cso.ie/en/media/csoie/newsevents/docum
ents/pressreleases/prStatisticalyearbook2016.pdf
New user friendly interactive tool provides access to valuable local
residential property information at a glance

http://www.cso.ie/en/media/csoie/newsevents/docum
ents/pressreleases/RPPItool.pdf

Quarterly National Accounts and Balance of Payments for Quarter 2,

2016

http://www.cso.ie/en/media/csoie/newsevents/docum
ents/pressreleases/prqnabopq216.pdf

Press Release Life in

1916 Ireland : Stories
from statistics
Date Published: Wed, 02 Mar 2016
Life in 1916 Ireland: Stories from statistics was

published today by the CSO to mark the centenary of

1916 by illustrating what life was like for people living
100 years ago.
The population of Ireland increased by 46% in the 100
years between 1911 and 2011, from 3.1 million to 4.6
million people. Today in Ireland there are fewer young
people and more middle aged people compared with
Ireland in 1911. There is much more variety today in
names for baby boys and girls compared with over
100 years ago. Irish names for babies such as Aoife or
Oisn, which were rare in 1911, are now very popular.
(Tables 1.1, 1.2, 1.6 and 1.7)
Dublin was a city of extremes in housing in 1911,
when 22% of dwellings were large homes (with 10 or
more rooms) and 36% were one room tenements.
Nearly half of workers were in Agriculture,
in comparison to just 5% today. One in ten workers in
1911 worked as a domestic servant compared to only
a few thousand people in 2011. (Tables 2.1, 2.2, 2.3
and 2.4)
The rate of illiteracy in Ireland was 8.3% in 1911 and
varied widely across the country, with the lowest rate
in Dublin and the highest rates in Donegal, Galway,
Mayo and Waterford. Close to 10% of the population
was Protestant in Ireland in 1911 but by 2011 this had
dropped to 3.6%. Less than a fifth of the population
could speak Irish in 1911 and this had increased to
two-fifths by 2011. (Tables 2.5, 2.7 and 2.8)
Average daily attendance at National schools in 1916
was 70.7% compared to 94.1% in 2013. Nearly 7,000
second level students took the Junior Intermediate
Examination in 1916 and 58% of the candidates were
male. In 2015 there were just under 60,000 candidates
for the Junior Certificate exam and about 50% of the
candidates were male. Over 7,900 children lived in
Industrial schools in 1916 and 708 in Reformatory
schools. Of the 822 children admitted to Industrial
schools in 1916, 146 were less than six years old while
146 were aged between six and eight years of age.

(Tables 2.13, 2.17, 2.21 and 2.24)

Just 2.4% of births in 1916 were outside marriage but
by 2012 over a third were outside marriage, with rates
of over 40% in Dublin City, Waterford, Louth and
Wexford. The infant mortality rate was 81.3 in Ireland
in 1916, i.e., for every 1,000 babies born during 1916,
81 died before they reached twelve months of age.
The highest rate was in Dublin city at 153.5 and the
lowest rate was in Roscommon at 34.6. By 2014 the
infant mortality rate in Ireland was very low at 3.7 per
1,000 births. (Tables 3.2, 3.4)
The vast majority (92%) of marriages in 1916 were
Catholic ceremonies but by 2014 this had dropped to
just under 60%. About one in eight deaths in 1916 was
due to bronchitis and pneumonia which killed 6,708
people, with another one in eight deaths caused by
tuberculosis (TB) which killed 6,471 people. Most
deaths in 2014 occurred in older age groups but
deaths in 1916 were spread more evenly across all
age groups one in five deaths in 1916 occurred to a
child under 15 years of age. Life expectancy has risen
strongly since 1911 for all age groups, with the
greatest increases for younger age groups. A baby boy
born in 2011 can expect to live for nearly 25 more
years than a baby born in 1911, while a baby girl born
in 2011 can expect to have an extra 28.6 years of life
compared to a girl born in 1911. (Tables 3.6, 3.8 and
3.12)
In 1916 the overall fiscal situation in Ireland was very
favourable for the British Government. Nearly
24 million was raised in Ireland but just over half of
this, 12.6 million, was spent in Ireland, giving a
surplus of over 11 million towards the war effort in
Britain. The basket of goods used for the Consumer
Price index in 1922 shows that just over 57% of
average household expenditure was on food and nonalcoholic drink 1911, compared to just 11.4% in 2011.
The number of farms fell by over 60% between 1915
and 2010 while average farm size in Ireland more than

doubled, increasing from 14 to 33 hectares over

the same time period. (Tables 4.9, 4.10, 4.11, 4.15)
There were nearly 10,000 cars in Ireland in 1915, with
cars registered in every county in Ireland while by
2014 there were 1.9 million private cars. Cork had a
fleet of 35 electric trams in 1901 while the trams in
Dublin had a fleet of 330 by 1911 and operated on
lines which ran for 60 miles (96 km). By 2013 the Luas
Red and Green lines in Dublin were 37km in length.
(Tables 4.23 and 4.26)
Editors note: Life in 1916 Ireland: Stories from
Statistics is available on the CSO web site (www.cso.ie)
and a selection of the material from the electronic
publication is available in a book, (contact Information
section in the CSO at Information@cso.ie or (021) 453
5000 or (01) 498 5000).

Patents Granted Under European Patent Convention Designating

Ireland
https://www.patentsoffice.ie/en/Publications/Downloa
d-a-Journal/Journal-2318.pdf
Patents Journal Government of Ireland, 2016

Applications for Patents From 02/09/2016 to 09/09/2016

https://www.patentsoffice.ie/en/Publications/Downloa
d-a-Journal/Journal-2317.pdf

Eighty Fifth Annual Report of the Controller of Patents,

Designs and Trade Marks 2012

https://www.patentsoffice.ie/en/Publications/AnnualReports/Annual-Report-2012-pdf.pdf
The Patents Office is the statutory office
responsible for the granting and registration of
intellectual property rights in Ireland, specifically
patent, trade mark and industrial design rights.
Innovation and creativity are important elements in
gaining a competitive edge in the marketplace and
for many business enterprises intellectual property
is one of their most important assets. Through the
provision of these rights, the Office aims to assist
people and businesses realise the full economic
potential of their intellectual property.
I have the honour to submit my Annual Report to
the Oireachtas for the year ended 31 December
2012, in accordance with the provisions of Section
103 of the Patents Act, 1992.
My Report is in respect of the execution of my
statutory functions under the Patents Act, 1992,
the Patent (Amendment) Act 2006, the Trade Marks
Act, 1996; the Industrial Designs Act, 2001, the
various Statutory Rules and Regulations made
under these Acts; and the European Communities
(Supplementary Protection Certificate) Regulations.
Decisions under these Acts, Rules and Regulations
rest with me in my statutory capacity, subject to
certain rights of appeal to the High Court. I also
have certain statutory functions under the
Copyright and Related Rights Act, 2000 which are
mainly con- cerned with dealing with registration of
copyright licensing bodies, references and
applications relating to licensing schemes operated
by those bodies and the resolution of disputes
regarding royalty amounts arising for the most part

in the area of public performance of sound

recordings.
In addition to administering the relevant legislation
concerned with the processing of applications for
patents, trade marks and industrial designs and
maintaining the electronic registers and databases
of these rights, the Patents Office performs a
number of operational functions including:
Providing assistance and information on industrial
and intellectual property to clients.
Administering proceedings before the Controller in
relation to IP rights and conducting hearings on
oppositions to trademark registrations.
Maintaining the registers of patent and trade mark
attorneys authorised to operate in the State
Acting as a receiving office for the World
Intellectual Property Organization (WIPO), the
European Patents Office and the Office for
Harmonisation in the Internal Market (OHIM).
Contributing to policy and legislative developments
on IP rights.
Implementing and giving effect to international
agreements on IP rights
My Annual Report for 2012 provides information on
how the Office has discharged these functions
under the six objec- tives established in its
Statement of Strategy 2011 to 2013 and is
supported by a range of business statistics. It is important to state that the Office has, in the context
of the on-going economic downturn and budgetary
reductions, contin- ued to do more with less and

is committed to deliver its services as efficiently

and effectively as possible in the future.
I would like to extend my sincere thanks to the
staff of the Office for their professionalism and
hard work during 2012 and their commitment to
maintaining an efficient and effective operational
capacity for administering IP in Ireland.
Anne Coleman Dunne Controller
25 June 2013
Trade Marks Act, 1996 - 2008 to 2016
https://www.patentsoffice.ie/en/Publications/WrittenGrounds/Trade-Marks-Act-1996%20-%2020082016/2016/Trade-Mark-Written-Grounds-No-248182JUMPMAN.pdf

Minister Flanagan addresses Seanad ireann on Brexit

- Minister outlines Government approach; addresses the recent
comments of the UK PM; outlines plans for an all-island Civic Dialogue;
and sets out his Departments Trade promotion activity
The Minister for Foreign Affairs and Trade, Charlie Flanagan TD, addressed
the Seanad today (Wednesday) on Brexit, outlining the Governments
approach to defending and protecting Irelands strategic interests.
The Minister dismissed calls a Brexit Minister, outlining the Governments
approach. He stated:
I might take this opportunity to address calls by some in the Opposition for a
Minister for Brexit. My own view, informed by my deep engagement in EU
matters, is that it would be a mistake to appoint a Brexit Minister. Why? Well
in the first instance, Ireland and the EU are so integrated - and our
relationship with the UK is such - that each and every Department is impacted
and we need each and every department to engage with Brexit and
mitigating its effects.
Add to that the fact that at political level, it is the European Council, of which
the Taoiseach is a member, who will set the political direction of the
negotiations. In turn the Taoiseach chairs the Cabinet Committee on Brexit
which oversees the government response, coordinating the work right across
government.
As Minister for Foreign Affairs and Trade, I will be working closely with the
Taoiseach and with all of my ministerial colleagues. My Department has a
unique role coordinating our response to Brexit. As you know, my Department
is works closely right across government at all times in all policy areas with an

international or North-South dimension.

And, of course, the 80 strong mission network under my Department of
Foreign Affairs and Trade has a crucial role to play both within the EU in
respect of our EU strategy and outside the EU in terms of our wider trade and
other bilateral interests. In this respect the missions in key capitals including
but not limited to Brussels and London will be important players.
The Minister described some of the work underway at EU level and Michel
Barniers forthcoming visit to Dublin.
I wish to update you also on some of the activity taking place at EU level
where the Institutions are also taking practical steps to deal with the
challenges ahead. The EU Council Secretariat has established a Brexit Task
Force led by Didier Seeuws, a former Chief of Staff to the previous European
Council President, Herman Van Rompuy. The European Commission has
appointed Michel Barnier, a former French Minister and former EU
Commissioner, as its chief Brexit negotiator. And former Belgian Prime
Minister Guy Verhofstadt has been named as the lead Brexit negotiator for
the European Parliament. I expect Mr. Barnier to be in Dublin in the near
future and I look forward to engaging with him.
Noting the radical Cabinet changes in the UK, Minister Flanagan stated:
In the UK, we have a new Prime Minister who the Taoiseach has met
formally and who I have met informally, and a radical Cabinet shake-up with
a number of new ministries. Ive already had discussions with Foreign
Secretary Johnson and David Davis, Secretary of State for Exiting the EU
as well as Secretary of State for Northern Ireland, James Brokenshire.
We share a common desire to protect the invisible border, the Common
Travel Area and the strong bilateral trade relationship and we are now faced
with the challenging task of ensuring those goals can be achieved in the
context of the future relationship between the UK and the European Union.
Later in his speech, he addressed recent comments by the UK Prime Minister,
Theresa May:
So, where exactly are we now? Recent days have brought greater clarity on
the timelines we will be working to. It is positive that there is no longer any
uncertainty about the date by which Article 50 will be invoked the end of
March 2017 - thereby setting the negotiating process in train. This was in line
with our expectations and our extensive contacts with UK and other EU
partners.
The united EU position remains that there can be no negotiations before the
notification under Article 50 is made. We adhere to that approach, but it does
not mean that we cannot have exploratory discussions on the important
bilateral issues which will need to be sorted out.
This would mean that the UK could depart the Union in spring 2019.
However, it remains to be seen how, and within what timeframe, the linked
negotiations on the future relationship between the EU and the UK will be
taken forward. From Irelands perspective, we would like this relationship to
be strong and positive. I believe that is a goal to which we all, in the European
Union and in the UK, should be committed.
However, the Prime Ministers comments indicate that the UK will not seek a
so-called soft Brexit under which it would seek a relationship with the EU
similar to that of Norway or Switzerland. This would not be compatible with
controls on the free movement of people, which appears to be a cornerstone

of her position and runs contrary to the EUs insistence on the indivisibility of
the four freedoms which underlie the Single Market.
I appreciate the factors underpinning the Prime Ministers approach, though
clearly it is not what we would have ideally wished to see and will pose
challenges all round. That said, the rather general concept of hard Brexit
allows for a range of possible outcomes on key issues and these will have to
be teased out in detail, first by the UK itself and then in the negotiating
process. We will work actively to ensure the best possible outcome for Ireland
and the EU as a whole, and in particular to ensure, as I said earlier, that our
very particular concerns are safeguarded to the greatest possible extent.
Minister Flanagan outlined plans for an all-island Civic Dialogue, agreed by
Cabinet yesterday (Tuesday):
Having spoken of our economy and of Northern Ireland, I am acutely
conscious that there is a need for the widest possible conversation on the
implications of the referendum result for Ireland, North and South and for
North/South relations. There are many organisations and individuals across
the island of Ireland who must be given a real opportunity to make their voice
heard. This is in everyones interest.
I am pleased that yesterday the Government approved a proposal that the
Taoiseach and convene an all-island Civic Dialogue on Brexit. This event will
provide an opportunity to hear the voices of the people affected by the vote,
both directly and through their representative groups. It will also provide an
opportunity to map the challenges presented by Brexit and how they might
impact on different elements of society and the economy on an all-island
basis. The main output will be a report and recommendations which will be
used to help inform the Government's position on issues related to the UKs
exit negotiations.
Preparations for an all-day Conference in Dublin on 2 November are now
underway and invitations will soon be extended to a broad range of civic
society groups, trade unions, business groups and non-governmental
organisations as well as representatives of the main political parties on the
island.
Minister Flanagan outlined his approach as Trade Minister:
Coming into office I inherited the Export Trade Council which draws together
all senior government ministers with an economic focus, the heads of the
State agencies involved in promoting trade, tourism, investment and
education abroad with the support of the Embassy network, and members
drawn from the private sector.
The ETC is a valuable forum. In the run up to the referendum it facilitated
useful discussions between Government, our State Agencies and the private
sector. That dialogue continues. We are also looking, in conjunction with IDA
Ireland and Science Foundation Ireland among others, at potential
opportunities for Ireland arising from Brexit.
We are all acutely conscious of the importance of the UK market to Irish
exporters. I intend to intensify our focus on other markets, near and far. I
believe we have the capacity for much greater market penetration in other EU
member states and I am focussed on that. But we are also looking beyond
Europes borders. For example, the next ETC meeting will focus on AsiaPacific. Im just back from the UN General Assembly where I had a series of
bilateral meetings with countries from the Americas, Asia and the Antipodes. I

gave the strong message that Ireland will remain at the heart of Europe; we
will continue to be an English speaking gateway to a market of 500 million
people; we will continue to offer a business friendly environment and a
talented and adaptable workforce. I undertook a similar set of meetings at the
Asia-Europe Summit in Mongolia in July. I take every opportunity to promote
Ireland as a country to invest in and to trade with and I intend to carry out a
series of trade engagements within the EU, in the Gulf, and further afield in
Asia in the weeks ahead.
In January this year, I launched an Economic Diplomacy Strategy that seeks
to build on the consolidation of the Departments trade role in recent years by
establishing a network of locally hired Commercial Attachs to extend the
range and impact of our Embassies activities in support of trade. In the
coming months Commercial Attachs will be appointed in Mexico, Brasilia,
Buenos Aires, Bucharest, and Jakarta these are locations where economic
opportunities exist to be explored and where either there is no State agency
presence on the ground, or a relatively light one.
Ends
Full text of Speech - Check Against Delivery
Cathaoirleach,
I am delighted to be back in the Upper House today to engage with Senators
on what is, undoubtedly, the highest priority and biggest challenge on my
desk as Minister addressing the implications of Brexit.
Cabinet has been discussing Brexit on an almost weekly basis since plans for
a referendum were first announced. Yesterday, the Taoiseach and I presented
a Memorandum to colleagues and a series of actions were agreed - we
released a detailed statement following the meeting which I hope you have all
had a chance to read.
I wish to thank Senators for their ongoing engagement in the national debate
now underway and I look forward to hearing your contributions today. First, I
will provide an update on activity in government.
You are all well aware of the Governments priorities on Brexit in relation to
the economy, Northern Ireland, the Common Travel Area, and the EU itself.
There has been a huge amount of activity underway in Government some
of it very public, for example the Taoiseachs meetings with Chancellor
Merkel, President Hollande, Prime Minister May and President Tusk..and
my own bilateral meetings with EU colleagues, some of whom visited Dublin,
including Minister Gentiloni, Davis, Brokenshire and Koenders. But, behind
the scenes, I have, in fact, had talks with all of my EU colleagues. In these
discussions I have set out clearly the unique circumstances on the island of
Ireland. Most of them are familiar with the success of the Irish Peace Process
and all of them agree the gains of peace must be protected.
In this context, I have also, of course, engaged with all of Northern Irelands
political leaders.
In Departments, Missions and Agencies at home and abroad, our officials and
diplomats are extremely busy analysing, planning, engaging with
counterparts and stakeholders - supporting the work of the Taoiseach and
Ministers.
There has been considerable restructuring, particularly in the Departments of
An Taoiseach and Foreign Affairs and Trade. My own Departments EU policy

function is being significantly strengthened and it will work alongside our

Ireland, UK and Americas Division. The Department of the Taoiseach
continues its cross-government work and in particular supports the Taoiseach
in his work on all dimensions of Brexit.
I might take this opportunity to address calls by some in the Opposition for a
Minister for Brexit. My own view, informed by my deep engagement in EU
matters, is that it would be a mistake to appoint a Brexit Minister. Why? Well
in the first instance, Ireland and the EU are so integrated - and our
relationship with the UK is such - that each and every Department is impacted
and we need each and every department to engage with Brexit and
mitigating its effects.
Add to that the fact that at political level, it is the European Council, of which
the Taoiseach is a member, who will set the political direction of the
negotiations. In turn the Taoiseach chairs the Cabinet Committee on Brexit
which oversees the government response, coordinating the work right across
government.
As Minister for Foreign Affairs and Trade, I will be working closely with the
Taoiseach and with all of my ministerial colleagues. My Department has a
unique role coordinating our response to Brexit.
As you know, my Department is works closely right across government at all
times in all policy areas with an international or North-South dimension.
And, of course, the 80 strong mission network under my Department of
Foreign Affairs and Trade has a crucial role to play both within the EU in
respect of our EU strategy and outside the EU in terms of our wider trade and
other bilateral interests. In this respect the missions in key capitals including
but not limited to Brussels and London will be important players.
I wish to update you also on some of the activity taking place at EU level
where the Institutions are also taking practical steps to deal with the
challenges ahead. The EU Council Secretariat has established a Brexit Task
Force led by Didier Seeuws, a former Chief of Staff to the previous European
Council President, Herman Van Rompuy. The European Commission has
appointed Michel Barnier, a former French Minister and former EU
Commissioner, as its chief Brexit negotiator. And former Belgian Prime
Minister Guy Verhofstadt has been named as the lead Brexit negotiator for
the European Parliament.
I expect Mr. Barnier to be in Dublin in the near future and I look forward to
engaging with him.
In the UK, we have a new Prime Minister who the Taoiseach has met
formally and who I have met informally, and a radical Cabinet shake-up with
a number of new ministries. Ive already had discussions with Foreign
Secretary Johnson and David Davis, Secretary of State for Exiting the EU
as well as Secretary of State for Northern Ireland, James Brokenshire.
We share a common desire to protect the invisible border, the Common
Travel Area and the strong bilateral trade relationship and we are now faced
with the challenging task of ensuring those goals can be achieved in the
context of the future relationship between the UK and the European Union.
I would like to now outline in more detail our approach to our key priorities,
namely: the economy and trade, Northern Ireland, the Common Travel Area,
and the EU itself.
In the run up to the referendum, the Government engaged in extensive

contingency planning, and we continue to update and develop our analyses

as circumstances change and evolve. The economy is naturally an area of
core concern, and the market volatility weve seen since the referendum in
particular in the currency markets was unwelcome if, regrettably, not
unexpected.
Let me summarise the key elements of the Government and state institutions
response to the economic aspect of Brexit.
First, I will address matters with my Trade Minister hat on. Coming into office I
inherited the Export Trade Council which draws together all senior
government ministers with an economic focus, the heads of the State
agencies involved in promoting trade, tourism, investment and education
abroad with the support of the Embassy network, and members drawn from
the private sector.
The ETC is a valuable forum. In the run up to the referendum it facilitated
useful discussions between Government, our State Agencies and the private
sector. That dialogue continues. We are also looking, in conjunction with IDA
Ireland and Science Foundation Ireland among others, at potential
opportunities for Ireland arising from Brexit.
We are all acutely conscious of the importance of the UK market to Irish
exporters. I intend to intensify our focus on other markets, near and far. I
believe we have the capacity for much greater market penetration in other EU
member states and I am focussed on that. But we are also looking beyond
Europes borders.
For example, the next ETC meeting will focus on Asia-Pacific. Im just back
from the UN General Assembly where I had a series of bilateral meetings with
countries from the Americas, Asia and the Antipodes.
I gave the strong message that Ireland will remain at the heart of Europe; we
will continue to be an English speaking gateway to a market of 500 million
people; we will continue to offer a business friendly environment and a
talented and adaptable workforce.
I undertook a similar set of meetings at the Asia-Europe Summit in Mongolia
in July. I take every opportunity to promote Ireland as a country to invest in
and to trade with and I intend to carry out a series of trade engagements
within the EU, in the Gulf, and further afield in Asia in the weeks ahead.
In January this year, I launched an Economic Diplomacy Strategy that seeks
to build on the consolidation of the Departments trade role in recent years by
establishing a network of locally hired Commercial Attachs to extend the
range and impact of our Embassies activities in support of trade. In the
coming months Commercial Attachs will be appointed in Mexico, Brasilia,
Buenos Aires, Bucharest, and Jakarta these are locations where economic
opportunities exist to be explored and where either there is no State agency
presence on the ground, or a relatively light one.
I will continue to work assiduously to promote Irelands trade interests. In
reference to next weeks Budget - clearly, Brexit looms large and my
colleagues, Minister Noonan and Minister Donohoe, will be ensuring that the
Budget is Brexit proofed.
Moving on to Northern Ireland: Obviously, a key concern - for us all, and, in
particular, for me as Minister for Foreign Affairs and Trade - is the potential
impact of a UK exit for Northern Ireland and for the Peace Process. Overall,
we will be working for special arrangements which take account of Northern

Irelands unique circumstances.

Our priorities in this area are to ensure that the Good Friday Agreement and
the overall balance of the settlement is not in any way disturbed by the UKs
exit from the European Union and of course to maintain the open, and
effectively invisible border.
The wider economic impacts for the all-island economy are of course also a
concern as is the potential consequences for EU support under the PEACE
and INTERREG programmes.
Last week I discussed the implications of Brexit for the Agreement and the
Peace Process with the Members of the Joint Committee on the
Implementation of the Good Friday Agreement. There was I believe a shared
sense that there are no guaranteed solutions to any of the issues arising for
Northern Ireland. The Government and the British Government have
reaffirmed that Good Friday Agreement is the indispensable foundation for all
engagement on Northern Ireland.
This provides much needed reassurance for people and the political system
in the North but I am under no illusions about the hard work needed to deliver
it. As the Taoiseach and I have made clear, as a co-guarantor of the
Agreement, the Government is determined that its institutions, values and
principles be fully protected, throughout and at the end of the UKs negotiation
of its new relationship with the EU.
As an institution of the Agreement, the North South Ministerial Council has a
very important role in preparing for and seeking to mitigate cross-border
implications of a UK exit. Protecting EU funding, sustaining the economy and
trade and maintaining the Common Travel Area are priority areas where the
NSMC Plenary agreed in July that we need to work together.
It was also agreed that a full audit would be undertaken in all sectors of cooperation to identify the possible impacts, risks, opportunities and
contingencies arising in the phases preceding and following the UKs
withdrawal from the EU. This work commenced immediately and is
progressing across all of the North South cooperation sectors.
The next NSMC Plenary meeting on 18 November will provide an important
opportunity to build on the discussions between Ministers within the NSMC
sectors and to explore further the agreed key priorities for both the
Government and the Northern Ireland Executive in dealing with the UKs exit
from the European Union.
Having spoken of our economy and of Northern Ireland, I am acutely
conscious that there is a need for the widest possible conversation on the
implications of the referendum result for Ireland, North and South and for
North/South relations. There are many organisations and individuals across
the island of Ireland who must be given a real opportunity to make their voice
heard. This is in everyones interest.
I am pleased that yesterday the Government approved a proposal that the
Taoiseach and convene an all-island Civic Dialogue on Brexit. This event will
provide an opportunity to hear the voices of the people affected by the vote,
both directly and through their representative groups.
It will also provide an opportunity to map the challenges presented by Brexit
and how they might impact on different elements of society and the economy
on an all-island basis. The main output will be a report and recommendations
which will be used to help inform the Government's position on issues related

to the UKs exit negotiations.

Preparations for an all-day Conference in Dublin on 2 November are now
underway and invitations will soon be extended to a broad range of civic
society groups, trade unions, business groups and non-governmental
organisations as well as representatives of the main political parties on the
island.
Let me now turn to the developments which have been taking place in
Europe. There has been a lot of discussion and rightly so at EU level
about the lessons that our can be drawn from the referendum result. In that
regard, I think it is particularly welcome that the Taoiseach and the other 26
leaders began an earnest process of reflection in Bratislava in midSeptember.
We are all aware that these developments come at a time when we in Europe
are struggling with many critical issues, in terms of jobs, prosperity, migration
and security both internal and external. But I am confident that the EU and
Ireland will rise to this challenge.
I should emphasise one very important point here: although much has been
changed by the result of the UK referendum, one thing has stayed constant,
and that is that Ireland remains absolutely committed to EU membership.
Public support here for Europe and for EU membership remains consistently
high.
So, where exactly are we now? Recent days have brought greater clarity on
the timelines we will be working to. It is positive that there is no longer any
uncertainty about the date by which Article 50 will be invoked the end of
March 2017 - thereby setting the negotiating process in train. This was in line
with our expectations and our extensive contacts with UK and other EU
partners.
The united EU position remains that there can be no negotiations before the
notification under Article 50 is made. We adhere to that approach, but it does
not mean that we cannot have exploratory discussions on the important
bilateral issues which will need to be sorted out.
This would mean that the UK could depart the Union in spring 2019. However,
it remains to be seen how, and within what timeframe, the linked negotiations
on the future relationship between the EU and the UK will be taken forward.
From Irelands perspective, we would like this relationship to be strong and
positive. I believe that is a goal to which we all, in the European Union and in
the UK, should be committed.
However, the Prime Ministers comments indicate that the UK will not seek a
so-called soft Brexit under which it would seek a relationship with the EU
similar to that of Norway or Switzerland. This would not be compatible with
controls on the free movement of people, which appears to be a cornerstone
of her position and runs contrary to the EUs insistence on the indivisibility of
the four freedoms which underlie the Single Market.
I appreciate the factors underpinning the Prime Ministers approach, though
clearly it is not what we would have ideally wished to see and will pose
challenges all round. That said, the rather general concept of hard Brexit
allows for a range of possible outcomes on key issues and these will have to
be teased out in detail, first by the UK itself and then in the negotiating
process. We will work actively to ensure the best possible outcome for Ireland
and the EU as a whole, and in particular to ensure, as I said earlier, that our

very particular concerns are safeguarded to the greatest possible extent.

Finally, Cathaoirleach, may I say that that the enormity of Brexit combined
with the question marks over how the UK will approach negotiations and
where the landing zone will ultimately be, has given rise to a great deal of
comment and speculation. For our part, we are knuckling down and doing all
that we can do to ensure that Ireland defends and protects its strategic
interests in the time ahead. Having given an overview of where the
Government currently stands, I now look forward to hearing the perspective
and analysis of the members of this House this afternoon.
Ends
Press Office
05/10/2016

Minister Flanagan holds bilateral talks

in Dublin with SoSNI James
Brokenshire
13/9/16
Ireland, Minister Charles Flanagan, Press Releases, Ireland, Northern
Ireland, 2016,
Minister Flanagan holds bilateral talks in Dublin with Secretary of State
for Northern Ireland, James Brokenshire
British and Irish Governments sign international Agreement
establishing the Independent Reporting Commission to tackle
paramilitarism in N.I.
Brexit; Legacy Issues; the British Government proposals in
respect of Human Rights legislation; & the Oireachtas motions re the
Dublin & Monaghan bombings were among issues discussed
The Minister of Foreign Affairs and Trade, Charlie Flanagan TD and the
Secretary of State for Northern Ireland, James Brokenshire MP, today
(Tuesday) signed an international Treaty in Dublin to provide for the
establishment of the Independent Reporting Commission to tackle the
vestiges of paramilitarism in Northern Ireland.
Following the signing, the Minister and the Secretary of State held bilateral
talks. Among the issues discussed were the challenges posed by a UK exit
from the EU, the full implementation of the Stormont House and Fresh Start
Agreements, and the pressing need to reach agreement on the institutions
dealing with the legacy of the past. The British Government proposals in
relation to Human Rights legislation in the UK and the All-Party Oireachtas
motions regarding the Dublin and Monaghan bombings were also discussed.
The Independent Reporting Commission (IRC) is provided for under the Fresh
Start Agreement which was concluded last November following a series of
talks at which Minister Flanagan represented the Irish Government.
Following the meeting, Minister Flanagan said, with regard to Brexit:
I had an open and productive discussion today with Secretary of State on the
consequences of the UK electorates decision to exit from the European
Union, as it impacts on Northern Ireland and the island of Ireland.
I set out the Governments concerns regarding Brexit, and our views on
where further work and engagement will be needed, in particular regarding

the shared concerns on Northern Ireland. This includes the maintenance of

the open border, and ensuring that the huge benefits of the peace process
are not disturbed by a UK exit.
I agreed with the Secretary of State that the Good Friday Agreement is and
will remain the foundation for cooperation between the Irish and British
Governments on Northern Ireland and that this will have to be clearly upheld
throughout the process, and in the final arrangements between the United
Kingdom and the European Union.
On legacy issues, the Minister said:
Achieving an agreement to move ahead with the comprehensive framework
for dealing with the past, as provided for in Stormont House Agreement, is a
long-standing priority for the Government. I am glad that Secretary of State
Brokenshire shares this view and our determination to press forward
decisively in the period ahead.
There remain a number of outstanding issues and I will therefore be
continuing to engage with the Secretary of State and with the Executive and
other parties in Northern Ireland, to see how we can reach an overall
agreement as soon as possible. I know from my engagement with victims
and survivors that there is an urgent need to achieve progress, and victims
and survivors and societal healing is at the core of my approach to these
issues.
On the IRC Treaty, Minister Flanagan said:
I was pleased to sign today, on behalf of the Government, the agreement to
establish the Independent Reporting Commission. This is an important step in
implementing the Fresh Start Agreement provisions to free vulnerable
communities from the vestiges of paramilitarism and to tackle organised
crime.
Eighteen years after the Good Friday Agreement, we are in a place where
paramilitary murders are infrequent. However, under the radar some
communities in Northern Ireland remain subject to daily intimidation, bullying
and control by thugs and criminals. This is not acceptable in any society.
The Treaty provides a supervisory framework for the work to be taken
forward by the Northern Ireland Executive. Political and community
leadership and the involvement of a range of public sector bodies across
Northern Ireland will be required if people are to feel empowered to resist
intimidation in their localities.
The IRC has a vital role to play in reporting impartially and authoritatively on
this work. In so doing the IRC will help the peace builders in communities to
replace fear and intimidation with hope and opportunity for people all across
Northern Ireland.
On the British Governments proposals regarding human rights legislation,
Minister Flanagan said:
Both governments are committed to the Good Friday Agreement. I would be
concerned about any proposals that may undermine any aspect of that or
subsequent Agreements. I made this clear to the Secretary of State and I
intend to remain in close contact with the British Government on this issue. I
was encouraged by the Secretary of States assurance that the UK will not be
withdrawing from the European Convention on Human Rights.
Notes for Editors:
Independent Reporting Commission

=
=
=

Establishment of the Independent Reporting Commission is a key element of

the Fresh Start Agreement, agreed in Belfast in November 2015.
The Irish Governments Programme for Government commits to the full
implementation of the Fresh Start Agreement.
The purpose of the IRC is to promote progress towards ending paramilitary
activity connected with Northern Ireland, in the interests of long-term peace
and stability and stable and inclusive devolved government in Northern
Ireland
The IRC treaty between the Irish and British Governments provides for the
establishment of the Commission as an international body. The IRC will then
need to be established in the domestic law of each jurisdiction, as
appropriate.
The IRC will be a four-member international body established by the UK and
Irish Governments. The UK Government and the Irish Government will
nominate one member each and the Northern Ireland Executive will nominate
two members.
The IRC will report annually on progress towards ending continuing
paramilitary activity connected with Northern Ireland. IRC reports will inform
future NI Executive Programme for Government commitments through to
2021.

A FRESH START & STORMONT HOUSE AGREEMENTS: SIX-MONTHLY UPDATE

A FRESH START & STORMONT HOUSE

AGREEMENTS:
SIX MONTHLY UPDATE 14 JANUARY 2016
https://www.dfa.ie/media/dfa/alldfawebsitemedia/newspress/p
ublications/A-Fresh-Start-and-Stormont-House-Agreements--Progress-Report-January-2016.pdf

Minister in Derry today to meet with

business leaders from both sides of the
border and hear their concerns about Brexit
Ministers address to Chamber of
Commerce - reaffirms the Governments
commitment to the North West and securing
Irelands interests in the Brexit negotations.
The Minister for Foreign Affairs and Trade, Charles
Flanagan TD, visited Derry this afternoon (Friday) to

address the Londonderry Chamber of Commerce

Presidents Dinner. The Minister also visited the
company AE Global to hear their perspective on
current issues.
Minister Flanagan said:
I was very glad to have the opportunity to visit AE
Global headquarters in Derry today, which is a
significant local employer in the North West and a
dynamic, export-focused enterprise. With the
prospect of Brexit, it is more important than ever
that the Government hears first-hand the concerns
and views of companies, especially those in the
border region.
I wish to thank CEO Liam Gallagher and his team for
their welcome today and I wish AE Global every
continued success.
Minister Flanagan delivered an address at the
Londonderry Chamber of Commerce Presidents
Dinner. The Minister spoke on the Governments
approach to securing Irelands interests in the
negotiations on the UK exit from the EU, and the
Governments continuing commitment to continuing
investment in the North West.
Addressing the Chamber of Commerce in Derry, the
Minister said:
The Government is very clear about our obligations
as they relate to Northern Ireland in the context of
Brexit. I view my role as a co-guarantor of the Good
Friday Agreement as a solemn duty and - together

with the Taoiseach - will be working to ensure that all

aspects of that international agreement are fully
respected in the new arrangements between the EU
and the UK. Ireland has a seat at the EU table which
we will use in the best interests of the whole island.
The Minister also said:
North South cooperation is delivering real benefits
here in the North West. It is in the interest of all our
people that the Irish Government and the Northern
Ireland Executive work together closely on economic
growth, job creation, health or any other areas where
cooperation delivers clear benefits for our citizens.

DIRECTIVE 2011/98/EU OF THE EUROPEAN PARLIAMENT AND OF THE

COUNCIL
of 13 December 2011
on a single application procedure for a single permit for third-country
nationals to reside and work in the territory of a Member State and on a
common set of rights for third-country workers legally residing in a
Member State

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=OJ:L:2011:343:0001:0009:EN:PDF

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on conditions of entry and residence of third-country nationals in the framework of an
intra-corporate transfer
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=COM:2010:0378:FIN:EN:PDF

European Parliament and of the Council of 20 December 2006

on the establishment, operation and use of the second
generation Schengen Information System
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:32006R1987&from=EN

The Supreme Court and Europe

Relationship with the European Court of Human Rights
Before the Human Rights Act was passed by Parliament in 1998 it was not possible
for an individual in the UK to challenge a decision of a public authority on the grounds
that it violated his or her rights under the European Convention of Human Rights
(ECHR), within the courts of the UK. Individuals instead had to take their case
directly to the European Court of Human Rights in Strasbourg (ECtHR).
Once the Act came into force on 2 October 2000, individuals could claim a remedy
for breaches of their Convention rights in the UK courts. An individual who thinks that
his or her Convention rights have not been respected by a decision of a UK court
may still bring a claim before the ECtHR, but they must first try their appeal in the UK
courts.
It is the duty of all such courts, including the UK Supreme Court, to interpret all
existing legislation so that it is compatible with the ECHR; so far as it is possible to do
so. If the court decides it is not possible to interpret legislation so that it is compatible
with the Convention it will issue a 'declaration of incompatibility'.
Although a declaration of incompatibility does not place any legal obligation on the
government to amend or repeal legislation, it sends a clear message to legislators
that they should change the law to make it compatible with the human rights set out
in the Convention. In giving effect to rights contained in the ECHR the Court must
take account of any decision of the ECtHR in Strasbourg. No national court should
"without strong reason dilute or weaken the effect of the Strasbourg case law" (Lord
Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26).
However, in rare circumstances, the Supreme Court has effectively sent issues back
to Strasbourg for reconsideration. For example, in 2009 the Court declined to follow a
decision of the ECtHR in R v Horncastle. This case raised the question whether
there could be a fair trial when a defendant was prosecuted based on evidence given
by witnesses who subsequently did not attend the trial in person and therefore were
not available to be cross-examined by the defendant.
Lord Philips said that although the requirement to "take into account" the Strasbourg
jurisprudence would "normally result" in the domestic court applying principles that
are clearly established by the ECtHR. "There will, however, be rare occasions where
the domestic court has concerns as to whether a decision of the Strasbourg court
sufficiently appreciates or accommodates particular aspects of our domestic process.
In such circumstances, it is open to the domestic court to decline to follow the
Strasbourg decision, giving reasons for adopting this course".
In December 2011, the ECtHR gave judgment in Al-Khawaja, a case that raised the
same issue as in Horncastle. Commentators noted how the Strasbourg court had
evidently taken into consideration the UK Supreme Court's judgment in the latter
case, demonstrating the concept of 'dialogue' between the two courts.
This concept was also demonstrated in the two courts' determinations of a string of
cases relating to the proportionality test to be applied when local authorities and
other social landlords seek to repossess a property that constitutes a person's home
for the purposes of article 8 of the ECHR (see Manchester City Council v Pinnock

[2010] UKSC 45; Mayor and Burgesses of the London Borough of Hounslow v
Powell [2011] UKSC 8; Kay v UK [2010] ECHR 1322).

References to the Court of Justice of the European Union

=
=

Like other final courts, the UKSC is, in the areas of European law in which the United
Kingdom has accepted the jurisdiction of the Court of Justice of the European Union
(CJEU), under the duty imposed by Article 267 of the Treaty on the Functioning of the
European Union to ask the CJEU to give preliminary rulings concerning:
the interpretation of the Treaties; and
the validity and interpretation of acts of the institutions, bodies, offices or
agencies of the Union;
where such a question is raised in proceedings before it and it considers that a
decision on the question is necessary to enable it to give judgment.
Where an application for permission to appeal raises such a question, the UKSC
does not, when considering whether in the light of that question to grant permission
or to make a reference to the CJEU, apply a test of whether the question is of
general public importance.
The Supreme Court of the United Kingdom is a member of the Network of the
Presidents of the Supreme Judicial Courts of the European Union.

Newsletter n31/2016
The Filtering of Appeals to Supreme Court

President Susan Denham

It was with great pleasure that I welcomed the Members and
Observers of the Network to Dublin for a conference of the Network
on 26th and 27th November, 2015. The conference dealt with the
important topics of The Relationship between the National Courts and
the European Court of Human Rights and The Filtering of Appeals to
the Supreme Courts. Chevalier Jean de Codt, First President of
the Cour de Cassation of Belgium, presented an Introductory Report on
the first theme. Mr. Rimvydas Norkus, President of the Supreme Court
of Lithuania, presented a report on the second topic, which he
prepared on the basis of responses from the Members of the Network

to a questionnaire which had been circulated to Members on the

filtering of appeals to the Supreme Courts. The presentation of both
reports was followed by a tour de table, during which each President
discussed the position in their State in respect of each topic.
The attendance at the conference of a majority of Members and
Observers, and the roundtable format of the meeting, resulted in a
very high level of engagement and a useful and constructive discussion
of the issues. This was greatly facilitated by the high quality of the
reports presented at the conference.
We intend to build on our fruitful discussions in Dublin by organising a
meeting between the Network and the ECtHR in June 2016, and plans
for such a meeting are currently in progress.
On 27th January I attended a meeting on behalf of the Network with
Mrs. Vra Jourov, EU Commissioner for Justice, Consumers and
Gender Equality at the European Commission Headquarters in Brussels,
where we discussed issues of importance in the Justice area. The
Network looks forward to continued dialogue with the EU Commission.
The Network is indebted to Mrs. Pauliine Koskelo, former President of
the Supreme Court of Finland, for her dedication for so many years to
the development of our Network. We congratulate her on her
appointment as Judge of the European Court of Human Rights and
wish her every success in her role.
We are also grateful to Mr. Giorgio Santacroce, former First President
of the Supreme Court of Cassation of Italy, for his immense
contribution to the Network. In particular, we thank him for
organising the last Colloquium of our Network in Rome in June 2014,
which was a great success.
The Network is very pleased to welcome our new Members of the
Network, Mr. Tim Esko, President of the Supreme Court of Finland, and
Mr. Giovanni Canzio, First President of the Supreme Court of Cassation
of Italy. We also welcome our new Observer of the Network, Mrs Toril
Marie ie, Chief Justice of the Supreme Court of Norway.
First President Jean de Codt and President Rimvydas Norkus have
agreed to join the Board of the Network, and we look forward to their
valued input in the organisation and management of Network matters.

The Filtering of Appeals to Supreme Court

In his Introductory Report, after defining the nature of the appeal and
explaining the reasons for filtering appeals, President Rimvydas Norkus
describes filtering mechanisms and identifies models from the replies
to a questionnaire prepared beforehand and circulated to the
Members of the Network. Some excerpts from his report are
reproduced below.
The first model can be called the leave-to-appeal system. The United
Kingdom, Ireland, Norway, Denmark, Sweden are principle examples of
this kind of filtration. The cases to be heard and adjudicated before
the Supreme Court are pre-selected (selection at the door) on the
basis of quite abstract criteria, emphasizing public purposes of the
Supreme Court, for example, the decision involves a matter of general
importance or in the interests of justice it is necessary that there be
an appeal to the Supreme Court. These criteria give much discretion
into the hands of those who decide on whether to select a case. This
power is usually vested in the Supreme Court itself, sometimes also to
the lower courts of appeals. In Denmark cases are selected by Appeals
Permission Board, consisting of a Supreme Court Judge, a High Court
Judge, a District Court Judge, a lawyer and a Professor of Law. It is
also worth mentioning that there is no separate Constitutional Court
in these countries. Under the leave to appeal mechanism usually
there is no requirement of mandatory representation before the
Supreme Court; the latter can deal both with the questions of law and
fact; the selection criteria often are alike for criminal and civil cases;
likely unlawfulness of the appealed decision as a general rule does not
play a major role in a selection process.
The second model is characterized by the feature that there is no
judicial filtration stricto sensu. France, Belgium, Netherlands, Greece,
Italy are primary examples of it. These jurisdictions have their own
methods how to manage workload of the Supreme Court. It is

performed by two basic means. The first is private, extra-judicial. The

cassation appeal to the Supreme Court in some categories of cases can
be brought only by a special lawyer assigned to the Supreme Court or
who fulfils certain requirements of experience. Therefore, it is in
principle incumbent on practising lawyers to advice their clients on
the chances of success and thus to filter wholly unfounded appeals to
the Supreme Court. This seems to reflect an idea that Justice is a
matter of many people who are or can be interactively involved in
proceedings. Everybody has to share the duty to contribute to
appropriateness of its functioning. Cooperation between the parties
and courts and a joint responsibility is needed.
All means of managing workload of the Supreme Court employed
under no judicial filtration system can differ depending on a
category of a case (civil, criminal, tax, etc.). Under this model
efficiency of the system and probably the Supreme Courts work
altogether very much depends on particular features and synergic
effect of combining aforementioned methods and their application in
practice. For example, number of lawyers who can bring a case before
the Supreme Court is very important. Private players indeed have
some power to dictate the workload of the Supreme Court. The
legislation can even grant them a right to ask for an oral hearing of a
case that is supposed to be dealt with in a summary (simplified)
manner. On the other hand, judges can also be creative and invent
additional methods of reducing workload, for example, by very
formally applying certain statutory requirements and limitations. In
order to limit workload statutory rules may be implemented to such
an extent that, for example, questions which are deemed issues of
law in other jurisdictions may be regarded as questions of fact and
thus not falling within the jurisdiction of the Supreme Court in these
ones. In general, number of cases that the Supreme Court has to
decide quite significantly depends on the size of population of a
country at hand and can reach thousands or tens of thousands of new
cases per year to be decided by few hundred or more judges.
The third model can be described as mixed one, having some features
of both models indicated above, and sometimes shifting more to the
leave to appeal or no judicial filtration system. It is difficult to
indicate primary example of this model, but Lithuania can be
attributed to it. There may be different variations of the mixed
system. For example, sworn advocates are required, no special case
selection / admissibility panel is created, the procedure of selecting a
case is adversarial and the other parties may submit their written
responses, leave to appeal is granted by an appellate court, the law
may state certain amount in controversy above which appeal to
Supreme Court is always granted, more impetus is given on an
importance of a case for uniform interpretation of a law, etc. Still the
most common feature of this model is that there are certain grounds,

some of them often relating to a general importance of a case (such as

uniformity of jurisprudence, development of law), laid by a legislator,
which appeal to Supreme Court have to comply with in order to be
admitted or selected for a full examination and adjudication. If an
appeal does not satisfy these grounds, it is held not admissible or is
dismissed at the very beginning of an appeal procedure or later, after
more thorough examination of it, usually without providing an
extensive reasoning, just giving brief motivation.
In countries where case selection criteria combine both general
importance of a case and likely unlawfulness of an appealed judgment
we can face a different issue of reasoning the decision refusing to
admit an appeal. If a court does not precisely indicate the reasons for
not selecting / accepting case, an appellant may be left wondering in
uncertainty why her/his appeal has not been admitted she/he has
not succeeded raising an important question of law, an appealed
judgment is simply correct, or both. Of course, after all, we can ask,
if one cannot trust the Supreme Courts judgment in deciding what to
decide, how can she/he trust its judgment in deciding what it has
decided to decide? But isnt it that we, judges of Supreme Courts,
have to build this trust?
European Court of Human Rights and The Filtering of Appeals to the
Supreme Courts
http://www.networkpresidents.eu

The Jurisdiction of the Supreme Court of the United

Kingdom in Scottish Appeals: Human rights, the
Scotland Act 2012 and the Courts Reform (Scotland)
Act 2014
https://www.supremecourt.uk/docs/jurisdiction-of-the-supremecourt-in-scottish-appeals-human-rights-the-scotland-act-2012-andthe-courts-reform-scotland-act-2014.pdf

A guide to bringing a case to The Supreme

Court

https://www.supremecourt.uk/docs/a-guide-to-bringing-acase-to-the-supreme-court.pdf

Role of The Supreme Court

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The Supreme Court, as well as being the final court of appeal, plays an important
role in the development of United Kingdom law.
As an appeal court, The Supreme Court cannot consider a case unless a relevant
order has been made in a lower court.
The Supreme Court:
is the final court of appeal for all United Kingdom civil cases, and criminal
cases from England, Wales and Northern Ireland
hears appeals on arguable points of law of general public importance
concentrates on cases of the greatest public and constitutional importance
maintains and develops the role of the highest court in the United Kingdom as
a leader in the common law world
The Supreme Court hears appeals from the following courts in each jurisdiction:
England and Wales

The Court of Appeal, Civil Division

The Court of Appeal, Criminal Division
(in some limited cases) the High Court
Scotland

The Court of Session

Click here to download a factual guide to The Jurisdiction of the Supreme Court in
Scottish Appeals: Human rights and the Scotland Act 2012 (PDF).
Northern Ireland

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The Court of Appeal in Northern Ireland

(in some limited cases) the High Court
Please click here to download a full guide to appealing to The Supreme Court (PDF)
or our Guide to proceedings for those without a legal representative.

Address and e-mail address of the court:

The Supreme Court of Ireland
Four Courts
Inns Quay
Dublin 7
Ireland
supremecourt@courts.ie
Link to further information on the own website in English version:
http://www.supremecourt.ie/ (English)

Link to the national database of their case law:

http://www.supremecourt.ie/Judgments.nsf/frmSCJudgmentsByYear?
OpenForm&l=en
http://www.courts.ie/Judgments.nsf/FrmJudgmentsByCourtAll?
OpenForm&Start...
Position of the Supreme Court in the national court system:
See Diagram:
http://www.courts.ie/Courts.ie/library3.nsf/
(WebFiles)/0B793FD2FDA553AA80257D86005C63F9/$FILE/Structure
%20of%20the%20courts%20October%202014.pdf
The Supreme Court of Ireland, established pursuant to Article 34 of
the Constitution of Ireland, is the court of final appeal. Virtually the
sole first instance jurisdiction of the Court is the function, under
Article 26 of the Constitution, of deciding on the constitutionality of a
Bill which has been referred to the Court for that purpose by the
President of Ireland, prior to the Bill being signed. Should the Court
decide that the Bill, or any of its provisions, is incompatible with the
Constitution it may not be signed or promulgated as law by the
President.
Composition
The Supreme Court is composed of the Chief Justice of Ireland, who is
President of the Court, and nine ordinary Judges. In addition the
President of the Court of Appeal and the President of the High Court
are ex officio members of the Supreme Court. The Court usually sits
with a composition of three or five Judges and, exceptionally, seven
Judges. When hearing cases concerning the constitutional validity of
an Act of the Oireachtas (Parliament) the Constitution requires that
the Court consists of a minimum of five Judges. This constitutional
requirement also applies when the Court is requested to give an
opinion on the constitutional validity of a Bill adopted by the
Oireachtas when referred to it by the President of Ireland under
Article 26 of the Constitution. A minimum of five Judges is also
required should the Court have to determine, pursuant to Article 12 of
the Constitution, whether the President has become permanently
incapacitated. Generally speaking, a court of three Judges sits in
appeals concerning interlocutory or procedural matters or issues which
can be decided within the parameters of established case law. In
addition to those cases in which it is required by the Constitution, a
court composed of five Judges, or exceptionally seven Judges, will sit
for appeals involving questions of law of particular importance or
complexity. Where an insufficient number of Judges of the Supreme
Court are available the Chief Justice may request any ordinary Judge

of the Court of Appeal to sit as a member of the Supreme Court for

the hearing of a particular appeal.
Jurisdiction
The Supreme Court is the court of final appeal in all constitutional law
and civil law matters. It also has role in determining certain criminal
law matters. The Court is the final appellate court from decisions of
the Court of Appeal, and certain decisions of the High Court. It has
limited original jurisdiction in the matters referred to below.
The Courts established by Article 34 of the Constitution, the Supreme
Court, the Court of Appeal and the High Court, constitute the judicial
organ of Government. Article 6 of the Constitution provides that all
powers of Government - legislative, executive and judicial - derive
from the people and goes on to state that These powers of
Government are exercisable only by or on the authority of the organs
of State established by this Constitution.
The Government is the organ of State exercising the executive power
of government, the two houses of parliament comprising the
Oireachtas (of which the President is the titular head, in addition to
his constitutional status as Head of State) exercise the legislative
power of government, and the courts established by Article 34 of the
Constitution exercise the judicial power of government. The judicial
power of government of those courts includes the power to review the
compatibility of statutes with the Constitution and to judicially review
subordinate legislation, decisions or actions of the Government or
State bodies with a view to determining their legality and
compatibility with the Constitution, and principles deriving from the
Constitution such as due process.
1. Appellate jurisdiction
The Supreme Court exercises an appellate jurisdiction from all
decisions of the Court of Appeal subject to such exceptions as may be
prescribed by law. The Supreme Court must be satisfied that the
decision of the Court of Appeal involves a matter of general public
importance, or in the interests of justice it is necessary that there be
an appeal to the Supreme Court. The Supreme Court also has
appellate jurisdiction from a decision of the High Court, if the
Supreme Court is satisfied that there are exceptional circumstances
warranting a direct appeal to it, and that the decision involves a
matter of general public importance and/or the interests of justice.
Article 34.4 of the Constitution expressly provides that no law may be
enacted excepting from the appellate jurisdiction of the Supreme
Court cases which involve questions as to the validity of any law
having regard to the provisions of the Constitution.
Appeals from criminal trials conducted in the High Court (and Circuit
Court and Special Criminal Court) may be brought to the Court of

Appeal (CA). That Court consists of ten judges including the President
of the Court. The Court sits with a composition of three judges. There
is no general right of appeal from the CA to the Supreme Court.
However, there is by statute a limited right of appeal where a decision
of the CA is certified as involving a point of law of exceptional public
importance and that it is desirable in the public interest that an
appeal should be taken to the Supreme Court.
In addition, section 34 of the Criminal Procedure Act 1967, as
amended by section 21 of the Criminal Justice Act 2006, provides that
where, on a question of law, a verdict in favour of an accused person
is found by direction of the trial judge, the Attorney General or the
Director of Public Prosecutions may, without prejudice to the verdict
in favour of the accused, refer the question of law to the Supreme
Court for determination.
2. Original Jurisdiction
The Supreme Court also has limited original jurisdiction under Articles
26 and 12.3.1 of the Constitution. Article 26 provides for a reference
to the Supreme Court by the President of Ireland, after consultation
with the Council of State, of Bills of the type prescribed in that Article
for a decision as to whether any such Bill or specified provision(s)
thereof is repugnant to the Constitution. Article 12.3.1 of the
Constitution provides that only the Supreme Court, consisting of not
less that five judges, can establish whether the President of Ireland
has become permanently incapacitated.
3. Constitutional jurisdiction
Under Article 34.4.4 of the Constitution the Supreme Court functions
as a constitutional court as it is the final arbiter in interpreting the
Constitution of Ireland. This is a role of particular importance in
Ireland, since the Constitution expressly permits the courts to review
any law, whether passed before or after enactment of the
Constitution, in order to ascertain whether it is in conformity with the
Constitution. While such cases must be brought in the first instance in
the High Court, there is an appeal from every such decision to the
Court of Appeal and ultimately to the Supreme Court. Subordinate
legislation and administrative decisions may also be subject to such
constitutional scrutiny.
4. Pronouncement of Decisions
Occasionally, a decision of the Supreme Court is given directly
following the hearing of an appeal in an ex tempore judgment. More
often, the Court reserves its judgment and delivers it at a later date.
The Supreme Court is a collegiate court, always consisting of a
number of Judges. The decision of the Supreme Court is that of the
majority. Each Judge in a case may deliver a separate judgment

whether concurring or dissenting.

5. Administration of Justice in Public
The Constitution provides that justice shall be administered in public
in all courts in Ireland, including the Supreme Court, save in such
special and limited cases as may be prescribed by law. Supreme Court
sittings in the vast majority of cases are therefore open to the public,
with exceptions including those cases concerning family law and
particular sexual offences.
Link to diagram of Courts system

Trinity College, Cambridge*

Given the vote to Leave the EU on 23 June 2016, you might
wonder (if youre British) why you should be studying EU law
at all. Understandable, yes, but wrong. In fact now is the time
when you need to know most about all aspects of EU law so
you can understand how the current system works, how it
relates to other systems like the European Economic Area
(EEA) and the World Trade Organisation (WTO), and how the
UK can move forward in its attempts to square the circle of
restricting free movement while at the same time retaining
unrestricted access to the single market.
Now is the time for a new generation to get to grips with the
enormous political and legal difficulties involved in leaving the
European Union. EU law courses will inevitably adapt to
reflect these challenges. And even if the UK ends up with a
hard Brexit, with no provision for a future arrangement to be
put in place, the EU will still be the UKs largest trading
partner, UK goods and services will still be sold into the EU
and will have to comply with EU rules. The government has
also announced plans (discussed here) to keep EU law in
force in the UK (in the form of UK law) after Brexit, and repeal
it only gradually. You will need to know what those rules are,
how they are made and how they can be challenged. There is
plenty of work for EU lawyers ahead.
Youll love studying EU Law if you like politics, if you are a
visionary, if you are a pragmatist. EU law has something in it
for everyone and even if you are none of those things, you

must study it this because its a compulsory subject for a

qualifying degree. But bear in mind EU law is unlike anything
you'll have studied before: whatever 'types' of law you've liked
before, EU law doesn't 'fit' into any single category (e.g. public
v. black-letter). Here are some words of advice.
1. Give yourself a political health-check before starting out: it's
helpful to recognise any preconceptions you have about the
EU politically before starting to study the law. Every student
comes at the law from a certain angle, so it's good to think
about where you sit in terms of the politics before you start to
engage in the debates around the law/what it should be/what
the UKs (or perhaps Scotland's) future relationship with the
EU should be.
2. Be prepared to change what you think: law and politics are
inextricably linked, so studying EU law has the potential to
change your views about the EU as a political institution.
Some students start as Eurosceptics only to undergo a
conversion to Europhilia.
3. Most courses start with an introduction to the EU
institutions. Some students dont find that the most exciting
part of the course, at least not at the beginning, but hang on in
there. Think of it as learning the building blocks of the system.
These institutions are crucial to the functioning of the EU
system. Its the Commission which comes up with the
legislative proposals, its the European Council where much of
the real power now lies for big decisions, and the European
Parliament now has the joint final say on most legislation with
the Council of Ministers (comprised of ministers of the 28
Member States, all accountable to their own national
parliaments). And what the Court does, will occupy much of
your time. And it is these institutions which will have the final
say on any deal the UK does with the EU on Brexit and on a
future relationship.
4. If you can, visit the institutions - it will bring some of this to
life. If not, look at their websites, the live streaming of
parliamentary debates. Dont think of the institutions as dull

buildings but as comprised of people operating in an

international environment trying to find ways of addressing
some of the most intractable problem of our times: the
Eurozone crisis, the refugee crisis, climate change, mass
unemployment and Brexit.
5.
The institutions become much more interesting when
you start thinking about whether they should be doing what
they are doing and how they are doing it. The European
Parliament has a lot of power yet in the last European
Parliament elections in 2014 only 43% of the overall EU
population bothered to vote (60% in the UK, 13% in Slovakia).
Why is that? Many people talk of the democratic deficit in the
EU. But is the EU worse than many of the Member States?
Should the EU be assessed by the standards applied to a
sovereign state? Can the EU even be considered a state? If
not, should it be aiming to become one?
6.
The Foundation Treaties (EEC, ECSC [now
abolished], Euratom) have been amended on a number of
occasions by further Treaties. Try to develop a sense of which
Treaty introduced which major change. This will provide you
with some sort of historical perspective and help you
understand the context in which decisions were made. The
Treaties are often referred to by the place in which they were
signed. By far the most important changes were introduced by
the Maastricht Treaty in 1992. Most notably, that Treaty
introduced the (flawed) provisions on Economic and Monetary
Union and the notion of Citizenship of the Union. With
hindsight, was this a Treaty too far at least for the UK? Should
the UK have had a referendum at this stage? Also important is
the Lisbon Treaty which divided up the existing provisions of
the Treaty into two Treaties of equal value: the more
constitutional provisions (eg guiding principles, allocation of
powers) were put in the Treaty on European Union (TEU), the
other, more operational, principles were put in the inelegantly
named Treaty on the Functioning of the European Union
(TFEU) (eg the rules on free movement of goods, persons,
services and capital, how to access the Court of Justice).

7.
The bugbear of all students (and anyone involved in
EU law) is that with the Treaty amendments came new
numbers. Originally, the change was indicated by calling the
new provision A, B etc. So the new legal basis giving the EU
power to regulate the Single Market was Article 100A, inserted
after Article 100 giving powers to the EU to adopt measures to
establish the Common Market. This seemed logical and
straightforward. However, this approach was not considered
sufficiently transparent and so the EU decided to renumber
every provision of the Treaty not once, but twice, first in 1997
by the Amsterdam Treaty and again in 2009 by the Lisbon
Treaty. So what is now Article 34 TFEU on the free movement
of goods was originally Article 30 EEC and then Article 28 EC
(the term EEC was replaced by EC at Maastricht and then by
the term EU at Lisbon). Extremely unhelpful, especially when
reading older cases. There are destination tables in the front
of your statute books and the leading textbooks. The modern
practice is generally to use the Lisbon number even in
discussing older cases (ie use Article 34 TFEU rather than
Article 30 EEC or Article 28 EC).
8.
Much of your time will be spent looking at the Court
of Justice, which until recently comprised three courts: the
Civil Service Tribunal (dealing with appeals from cases
brought by the staff of the EU [F cases], now defunct), the
General Court (formerly the Court of First Instance[T cases]),
which hears a lot of competition cases and so called direct
actions on the validity of EU law, and the Court of Justice of
the EU which hears all other cases (C cases). The citation of
cases has recently changed. The changes are usefully
summarised here. The Court of Justice sits in Chambers of
three or five judges, or as the Grand Chamber or, very
occasionally, as the Full Court. As a rule of thumb, the more
important cases are decided by the Grand Chamber or the
Full Court.
9.
Judgments of the Court of Justice look different to
those of the common law courts. There is a single judgment
and no dissents or concurring opinions. Generally, cases are
shorter. There is a helpful summary of what the Court has

decided at the end of the judgment (the dispositif). If the case

is a preliminary reference (ie questions from the national court
as to the meaning or validity of EU law), look in the early part
of the judgment for the key facts, often set out by the Court
just after it has set out the relevant provisions of EU law and
national law. The Court will then try to answer the national
courts questions. Sometimes the final outcome of the case is
not clear. This is as it should be: under the division of powers
between the national courts and the Court of Justice, the
Court of Justice interprets EU law, the national courts apply
that interpretation to the facts. Sometimes, in important or
difficult cases, the Court of Justice does what it should not and
tells the national court whether the national law is, for
example, justified and proportionate. Cases are then often
settled prior to a final hearing in the national courts.
[if !supportLineBreakNewLine]
[endif]
10.Try to read the Advocate Generals (AG) advisory Opinion
too, especially if you want to really understand what is going
on. Essentially, the AGs Opinion is more like a common law
judgment (but without being binding); it is essentially one
Judges view as to what the answer to the case should be.
The Court is not obliged to follow what the AG says but does
so in, it is thought, about 70% of cases. Some AGs Opinions
are considered classics (eg AG Jacobs Opinion in Case C50/00P UPA v. Council [2002] ECR I-6677).
11. The Court of Justice is often considered an activist Court,
giving surprising rulings which push back the frontiers of the
law. For some people the activist label is intended as a
criticism. But bear in mind that the Court is often working
against an incomplete canvas. The Treaty doesnt lay down
every rule and it is up to the Court to shape the system
against an understanding of the broader aims of the EU, for
example the creation of a functioning single market. Ask
yourself how you would have decided the case if you had
been in the Courts shoes. Remember, too, that the Courts
working language is French but that cases can be pleaded in
anyone of the 24 official languages of the EU and the Court
has to interpret legislation in any of the 24 languages.

Consider, too, whether decisions of the Court of Justice have

had any role in the rising Euroscepticism in the UK.
12. One of the most difficult questions for the Court is how to
operationalise the relation between the centre (the EU) and
the Member States (MS). In other words, a number of the
Courts decisions affect what MS can do and what the EU can
do. So every time the EU finds a national rule breaches, say,
Article 34 TFEU on the free movement of goods, it makes
inroads into the States freedom to regulate in that area and it
gives the EU the power to (re)regulate those matters. These
are highly sensitive political matters. Think of the headlines:
Court of Justice tells UK/Scotland to stop minimum alcohol
pricing. The Courts decisions have a direct impact on
decisions taken by democratically elected governments.
13.
One of the main focuses on an undergraduate
course in recent years has been the role of the EU Charter of
Fundamental Rights. Adopted in 2000 and with legal force
since 2009, the Charter has had a significant effect, not
perhaps as much as it supporters may have liked, but
important nonetheless. The Charter has been used to declare
provisions of EU law invalid, and significantly steer the
interpretation of EU law (for better and worse). It has,
however, major limitations, not just the misnamed UK opt-out.
The Charter plays an important role in ensuring that the EU
institutions respect the rule of law.
14.
The Charter borrows a number of rights from the
European Convention on Human Rights (ECHR) but
remember that the two documents belong to two different
systems: the ECHR is a product of the Council of Europe, it is
adjudicated on by the Court of Human Rights (sitting in
Strasbourg) and applies to 47 States (including the 28
Member States of the EU, but also other states such as
Russia). The Charter applies to the EU institutions and to the
Member States, but the latter only when they are
implementing EU law. It is applied and interpreted by the Court
of Justice (sitting in Luxembourg). A recent attempt for the EU
itself to accede to the ECHR has been rejected by the Court of

Justice.
15.
One of the other major issues that you will consider
is the role and function of EU citizenship. Everyone holding
the nationality of a Member State is also a citizen of the EU.
What does that mean in practice? Does it have merely
rhetorical value or does it, in fact, give substantive rights,
particularly for those on the margins of society? What
implications does EU citizenship have on the right to secure a
job or claim benefits in another MS? Is this an area into which
the EU should have stepped? Has this fanned the flames of
Euroscepticism? Or is this in fact the logical consequence of
ever closer union among the people of the EU?
17. Reading articles and opinion-based pieces is key to
enjoyment of EU law, because there is so much to debate and
the parameters of that debate are always evolving. There are,
of course, a number of dedicated academic journals (e.g.
Common Market Law Review, Cambridge Yearbook of
European Legal Studies, European Law Review, European
Law Journal, Yearbook of European Law). In addition, there
are many sources of information about EU law online. All the
institutions have websites and active twitter feeds. There are
also a number of EU law blogs (e.g. this blog [EU law
analysis], EUtopia, European law blog). The Financial Times
and the Economist are the best source of news and comment
on EU matters. Twitter is now an excellent source of
information on the latest twists and turns in the political debate
about when to trigger Article 50 and what might come next.
18.
Remember, too, that there is also a lot of
misinformation out there too, and not just about bendy
bananas. Take, for example, the front page headline in the
Daily Express Teach Boys to Dust says EU: Barmy Brussels
latest call for gender equality. (This was a journalists
interpretation of a non-binding European Parliament
resolution). The UK Rep of the European Commission does
attempt to address these euromyths but it pays you to read all
reports with a healthy scepticism.

19.
When it comes to exams, please remember that the
Advocate General is not the Attorney General, Francovich is
not Francovitch, direct effect is different to direct concern, and
the Court of Justice sits in Luxembourg, not Strasbourg. Once
you have mastered these basics you will be well on your way.
20.
Most importantly, remember just how exciting and
dynamic EU law is. It is a subject constantly in flux. The
destination of the EU project is by no means fixed. The UKs
future relationship with the EU is particularly uncertain: Brexit
means Brexit is not particularly illuminating. There is much
uncertainty and much that is unknown. As one former student
put it: At times this seems a bit overwhelming, but reframing it
as an opportunity for debate makes it a really rewarding
subject.
TUESDAY, 18 OCTOBER 2016

National Courts and EU Trade Policy Powers: the

EU/Canada trade deal and the German
Constitutional Court

Douwe Korff, Emeritus Professor of International Law,

London Metropolitan University; Associate, Oxford Martin
School, University of Oxford

One of the big issues on the EUs agenda at present is

whether to sign and provisionally apply the Canada/EU free
trade agreement, known as CETA. The division of power
between the EU and its Member States determines whether
Member States can veto some or all of this deal, potentially
complicating this process frustrating supporters of the deal,
but emboldening its critics.
Moreover, the dispute over CETA has broader implications,
most notably for the controversial EU/US trade deal under
negotiation (TTIP) and any trade deal between the EU and
UK after Brexit. While the EUs Court of Justice will soon rule
on the division of powers between the EU and its Member
States as regards the EU/Singapore free trade agreement (for
the background to that case, see here; for the CJEU hearing,
see here), the immediate question is signing and provisionally
applying CETA.
For the moment, the parliament in the Belgian region of
Wallonia has held up the EU/Canada deal, but my focus here
is the legal angle. While we await the CJEUs ruling on the
similar EU/Singapore deal, national courts have got involved
in this issue. Last week, the German Constitutional Court
refused to issue an interim order prohibiting the German
Government from signing the CETA Agreement (BVerfGE of
13 October 2016; English summary here). The judgment sets
a precedent for the legal issues that might arise with TTIP and
Brexit, and so is worth further examination.
The decision
The decision was not about the issue of whether CETA (as
initialled by Canada and the EU) was compatible with the
German Constitution, but about whether the German
Constitutional Court (the Court) should issue an interim order
or injunction (einstweilige Anordnung) prohibiting the German
Government (the Government) from even signing the
Agreement. The Court emphasised that it was the Courts
standing practice to only issue such an injunction in relation to

a proposed treaty if it was obvious that the treaty would

irreversibly violate the Constitution (or constitutionallyprotected rights of individuals) and if it was imperative that this
be stopped immediately. On the other hand, possible but asyet-not-materialised or reversible risks to such rights should
be balanced against the importance of the matters to be
covered by the treaty; and the Government in principle had a
very wide margin of discretion in such matters. (Paras. 34
36)
The Court refused to issue the injunction for the following
reasons in particular (my selection):
- The signing of CETA by Canada, the EU and the Member
States would only result in the provisional application of the
Agreement; it would only come into full force upon ratification
by the parties and crucially, the German Government (like
any other Member State Government) could, until and unless
the Agreement was ratified by all parties, terminate the
application of the Agreement at any time, by means of a
simple declaration to that effect to the other parties. The
signing of CETA by the Government therefore did not
irreparably risk any violation of constitutional rights. (Para. 38;
cf. the last bullet-point under the last indent, below)
- The Court clearly has serious doubts as to whether the EU
has competence in relation to investor protection in various
areas, in particular also as concerns workers health and
safety regulations. (Para. 54 57)
- The Court clearly also has serious doubts as to whether the
EU can lawfully transfer sovereign rights [Hoheitsrechte] in
relation to judicial and quasi-judicial dispute resolution
systems [Gerichts- und Ausschusssystem] to other
systems (i.e., to the proposed investor-state dispute
settlement (ISDS) court mechanism). (Para. 58) It was not
completely inconceivable that the proposed (revised) ISDS
mechanism could be held to violate the principle of democratic
legitimacy (das Demokratieprinzip). (idem; see also para. 65)

- However, according to the Court, the above risks can be

prevented in practice by various means (which, the Court
implies, the German Government therefore must employ), i.e.:
According to the Court, some of the risks can be prevented
by means of the declarations already issued by the European
Council, which (the Court tentatively accepts) ensure that with
the signing of the Agreement only parts of that agreement will
enter into (even provisional) force. The Court held that in
many respects reservations (Vorbehalte) are already in place
as concerns the application of certain parts of the Agreement.
(Para. 69: see there for a list of these areas).
The Court assumes (read: effectively demands) that the
German Government will ensure, by these same means, that
certain parts of CETA in particular will not be included in the
provisional application [of CETA, upon signature by the
parties]. In these not-to-be-applied matters, the Court
expressly includes the rules on investment protection,
including the [investment dispute resolution] court system.
(Para. 70)
The Court suggests that, at least while CETA would be only
provisionally in force, Germany can demand that any
decisions by the investment dispute resolution court will have
to have the unanimous agreement of the EU Council i.e.,
that Germany is given a right of veto over any such decisions.
(Para. 71)
If those measures were to not suffice, Germany can as a
last resort use its right to terminate the Agreement (see the
first indent, above). However, the Court feels that the
interpretation of the Agreement to the effect that a State Party
has this right (to terminate it in respect of that state while it is
still only provisionally in force) is not binding, even though
the Government has made a convincing case for it.
The Court therefore demands of the Government that it (the
Government) must clarify this interpretation of the Agreement

in an international-legally appropriate way and inform its

Treaty Partners of this [interpretation]. (Para. 73)
Comments
It would seem to me that the signing of CETA subject to the
conditions imposed by the German Constitutional Court, would
address many of the issues raised by activists:
- The contentious investment dispute resolution court would
not become operational;
- If it ever were to become operational, Germany (and if other
Member States were to adopt the same approach, those other
Member States too) would have a veto over any decisions of
that (quasi-) court that would impinge on rights and interests
protected by its (their) constitution(s); and
If in spite of these safeguards, those constitutionallyprotected rights and interests were to still be unduly affected
by the dispute resolution system (or any other aspect of the
Agreement), Germany (and any such other Member State)
could still exit the Agreement (even if that meant it would
altogether have to end functioning).
Perhaps current opponents of CETA could live with it
operating forever on such a provisional and conditional
basis?

X
X

method of citing the case-law of the Court of Justice of the

European Union on the basis of the ECLI (European Case-Law
Identifier)
I. The context of the method of citing the case-law
As part of an initiative taken by the Council, a European Case-Law
Identifier (ECLI) has recently been created. [1] That identifier is
intended to provide an unambiguous reference both to national and
European case-law and to define a minimum set of uniform
metadata for the case-law. It thus facilitates the consultation and
citation of case-law in the European Union.
The ECLI is composed of the following four mandatory sections, in
addition to the prefix ECLI':
The code corresponding to the Member State of the court or tribunal
concerned or to the European Union where it is an EU Court;
The abbreviation corresponding to the court which gave the

X
X

X
X

decision;
The year of the decision;
An order number of a maximum of 25 alphanumeric characters, in a
format decided by each Member State or supranational court or
tribunal concerned. The order number may not contain any
punctuation sign other than full stops (.') or colons (:'), the latter
separating the sections of an ECLI.
Following the recommendation of the Council that the Court of
Justice of the European Union adopt the European Case-Law
Identifier system, the Court has assigned an ECLI to all decisions
delivered by the European Union Courts since 1954 and to the
Opinions and Views of the Advocates General.
For example, the ECLI of the judgment of the Court of Justice of 12
July 2005 in Case C-403/03 Schempp is the following:
EU:C:2005:446'. [2]
It is broken down as follows:
EU' indicates that it is a decision delivered by an EU Court or
Tribunal (for decisions of national courts, the code corresponding to
the relevant Member State appears in the place of EU');
C' indicates that this decision was delivered by the Court of Justice.
Decisions delivered by the General Court are indicated by the letter
'T' and those of the Civil Service Tribunal by F';
2005' indicates that the decision was delivered during 2005;
446' indicates that it is the 446th ECLI attributed in respect of that
year.
II. The method of citing the case-law
The method of citing the case-law adopted by the Court of Justice of
the European Union combines the ECLI with the usual name of the
decision and the case number in the register. It was gradually
introduced by each EU Court/Tribunal in the first half of 2014.
Thus, this method of citation:
improves the accessibility of legal decisions in that the references to
the case-law contain, each time they appear, the information
necessary unambiguously to identify the decision to which reference
is made;
provides greater linguistic neutrality since the format of the citation
is largely identical in all languages and thus contains fewer
elements to be translated; and
facilitates the automatic insertion of hyperlinks on the ECLI of the
decision cited and on the relevant paragraph of that decision.
Please note that each Court will apply the method of citation used
by that particular Court, in the decisions adopted by it, for
references both to its own case-law and to that of the other two EU
Courts/Tribunal.
The European Case Law Identifier (ECLI) has been developed to

facilitate the correct and unequivocal citation of judgments from

European and national courts. A set of uniform metadata will help
to improve search facilities for case law.

Before ECLI, it was difficult and time-consuming to find relevant case law.
Take, for example, a case where a ruling of the Supreme Court of Member
State A was known to be of interest for a specific legal debate. The case was
registered in various national and cross-border case law databases, but in
each database the ruling had a different identifier. All these identifiers if
known at all had to be cited to enable readers of the citation to find the case
in the database of their preference. Different citation rules and styles
complicated the search. Moreover, users had to go to all the databases to find
out whether this Supreme Court case was available summarised, translated
or annotated. With the ECLI system one search via one search interface using
just one identifier will suffice to find all occurrences of the ruling in all
participating national and cross-border databases.
Easy access to judicial decisions of other Member States is of growing
importance in reinforcing the role of the national judge in applying and
upholding EU law. Searching for, and citation of judgments from other
Member States is seriously hampered by differences in national case law
identification systems, citation rules and technical fields describing the
characteristics of a judgment.
To overcome these differences and to facilitate easy access to - and citation
of - national, foreign and European case law, the Council of the European
Union invited Member States and EU institutions to introduce the European
Case Law Identifier (ECLI) and a minimum set of uniform metadata for case
law.

Main characteristics of ECLI

=
=
=
=
=

ECLI is a uniform identifier that has the same recognizable format for all
Member States and EU courts. It is composed of five, mandatory, elements:
ECLI: to identify the identifier as being a European Case Law Identifier;
the country code;
the code of the court that rendered the judgment;
the year the judgment was rendered;
an ordinal number, up to 25 alphanumeric characters, in a format that is
decided upon by each Member State. Dots are allowed, but not other
punctuation marks.
The elements are separated by a colon. A (non-existent) example of an ECLI
could be:
ECLI:NL:HR:2009:384425, which could be decision 384425 of the Supreme
Court (HR) of the Netherlands (NL) from the year 2009.

Metadata
To make it easier to understand and find case law, each document containing
a judicial decision should have a set of metadata as described in this
paragraph. These metadata should be described according to the standards
set by the Dublin Core Metadata Initiative.
The Council Conclusions on ECLI give a description of the metadata that
can be used.

ECLI coordinator
Every Member State using ECLI must appoint a governmental or judicial
organisation as the national ECLI coordinator. The National ECLI coordinator
is responsible for establishing the list of codes for the participating courts, the
publication of the way the ordinal number is made up, and all other

information that is relevant for the functioning of the ECLI system. The ECLI
co-ordinator for the EU is the Court of Justice of the European Union.
Each Member State decides whether, and to what extent - it will use the ECLI
system, e.g. if it will apply it retroactively to historical records or the number of
courts participating, for example only at supreme court level, all courts, etc.

European and international dimension

By clicking on the EU and international flags available at the right hand
side, you will find information on implementation of ECLI by the Court of
Justice of the European Union and the European Patent Office.
In accordance with the Council conclusions the European Commission has
developed a multi-lingual ECLI search engine which allows users to find
judicial decisions from the databases of those case law publishers who have
implemented the ECLI standard and provided us with access to their data.
An ECLI resolver is also available at https://e-justice.europa.eu/ecli/ - any
ECLI typed after this path will display the relevant ECLI metadata (if
available). For example https://e-justice.europa.eu/ecli/ECLI:NL:HR:2016:764
would directly display the metadata of decision ECLI:NL:HR:2016:764.

Member State pages

On the Member State pages, available by clicking on the flags of the

Member States at the right hand side, you can find information on:
whether the Member State has already introduced ECLI and metadata;
if not: whether it is planning to do so;
if yes: information on court codes, formatting rules, metadata and so on;
the national ECLI coordinator.
This page is maintained by the European Commission. The information on this
page does not necessarily reflect the official position of the European
Commission. The Commission accepts no responsibility or liability whatsoever
with regard to any information or data contained or referred to in this
document. Please refer to the legal notice with regard to copyright rules for
European pages.

Last update: 04/05/2016

National ECLI coordinator

The national ECLI coordinator is the Department the Department of Justice
and Equality.

Country code
The country code for Ireland is: [IE]

Generation of national ECLI

It is currently not possible to build an ECLI based on existing publicly available
information. The exact form of the ECLI is still under consideration and has
not been finalised.
The national language version of this page is maintained by the respective
Member State. The translations have been done by the European Commission
service. Possible changes introduced in the original by the competent national
authority may not be yet reflected in the translations. The European
Commission accepts no responsibility or liability whatsoever with regard to
any information or data contained or referred to in this document. Please refer
to the legal notice to see copyright rules for the Member State responsible for
this page.

Last update: 18/03/2015

EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
COUNCIL Council conclusions inviting the introduction of the
European Case Law Identifier (ECLI) and a minimum set of uniform
metadata for case law
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:52011XG0429(01)&from=EN
For the Court of Justice, 3 the various elements of the method of
citing the case-law are now as follows (no distinction being made
within the same text between the first reference to a decision and
subsequent references to it):

The Supreme Courts primary role is as a constitutional court and final

court of appeal.
The Courts established by Article 34 of the Constitution, i.e. the
Supreme Court, the Court of Appeal and the High Court, constitute the
judicial organ of government. Article 6 of the Constitution provides
that all powers of Government - legislative, executive and judicial derive from the people and goes on to state that These powers of
Government are exercisable only by or on the authority of the organs
of State established by this Constitution.
The Government is the organ of State exercising the executive power
of government, the two houses of parliament comprising the
Oireachtas (of which the President is the titular head, in addition to
his constitutional status as head of State) exercise the legislative
power of government, and the courts established by Article 34 of the
Constitution exercise the judicial power of government. The judicial
power of government of the High Court, Court of Appeal and Supreme
Court includes the power to review the compatibility of statutes with
the Constitution and to judicially review subordinate legislation,
decisions or actions of the Government or State bodies with a view to
determining their legality and compatibility with the Constitution, and
principles deriving from the Constitution such as due process. The
Court also reviews, on appeal from the High Court and Court of
Appeal, the decisions of other courts: the District Court, the Circuit
Court and the Special Criminal Court.
The procedural rules of the Supreme Court are outlined in the
Superior Court Rules 1986. The Supreme Court has elaborated on
fundamental principles in its case law when interpreting the
Constitution and laws of Ireland. Some examples include the personal
unenumerated rights of the person and the rights associated with a
trial in due course of law. Proceedings in the Supreme Court are
conducted in the official languages of the State which are English and
Irish.
Appellate jurisdiction
The Supreme Court exercises an appellate jurisdiction from certain
decisions of the High Court and Court of Appeal as is prescribed by

law. There is no automatic right of appeal to the Supreme Court from

decisions of the High Court and Court of Appeal. Article 34.4 of the
Constitution expressly provides that no law may be enacted excepting
from the appellate jurisdiction of the Supreme Court cases which
involve questions as to the validity of any law having regard to the
provisions of the Constitution.
Appeals from criminal trials conducted in the Circuit Court, the
Special Criminal Court and the High Court may be brought to the Court
of Appeal (CA). There is no general right of appeal from the CA to the
Supreme Court. However, there is by statute a limited right of appeal
where a decision of the CA is certified as involving a point of law of
exceptional public importance and that it is desirable in the public
interest that an appeal should be taken to the Supreme Court.
Rules of the Superior Court
The procedural rules by which the Supreme Court operates may be
found in the Rules of the Superior Courts which are available here at
http://www.courts.ie/rules.nsf/lookuppagelink/Superior%20Court
%20Rules%2...
Jurisprudence of the Supreme Court
The constitutional and legal principles by which the Supreme Court
operates and upholds may be found in the written judgments of the
Court. These judgments exist since the Supreme Courts
establishment by the Constitution of Ireland in 1937, and the former
Supreme Court of Ireland which existed between 1924 and 1937.
Since the 1960s the Supreme Court has developed the doctrine of
unenumerated rights or personal rights which are not mentioned in
the text of the Constitution but which are deserving of protection by
virtue of Article 40.3.1 of the Constitution which provides that:
The State guarantees in its laws to respect, and, as far as
practicable, by its laws to defend and vindicate the personal rights of
the citizen.
The Supreme Court may refer questions of EU law for clarification to
the Court of Justice of the European Union.
The number of justices and panels:
The Supreme Court is composed of the Chief Justice of Ireland, who is
President of the Court, and nine ordinary Judges. In addition the
President of the Court of Appeal and the President of the High Court
are ex officio a members of the Supreme Court.
The Court usually sits with a composition of three or five Judges and,
exceptionally, seven Judges. When hearing cases concerning the
constitutional validity of an Act of the Oireachtas (parliament) the

Constitution requires that the Court consists of a minimum of five

Judges. This constitutional requirement also applies when the Court is
requested to give an opinion on the constitutional validity of a Bill
adopted by the Oireachtas (parliament) when referred to it by the
President of Ireland under Article 26 of the Constitution. A minimum of
five Judges is also required should the Court have to determine,
pursuant to Article 12 of the Constitution, whether the President has
become permanently incapacitated.
Generally speaking, a court of three Judges sits in appeals concerning
interlocutory or procedural matters or issues which can be decided
within the parameters of established case law. In addition to those
cases in which it is required by the Constitution, a court composed of
five Judges, or exceptionally seven Judges, will sit for appeals
involving questions of law of particular importance or complexity.
Where an insufficient number of Judges of the Supreme Court are
available the Chief Justice may request any ordinary Judge of the
Court of Appeal to sit as a member of the Supreme Court for the
hearing of a particular appeal.

T
T
T
T
T
T

How the justices are appointed:

Eligibility criteria for appointment to the Supreme Court
Under section 5 of the Courts (Supplemental Provisions) Act 1961 the
following persons are qualified for appointment to the Supreme Court:
The President of the Court of Appeal;
An ordinary judge of the Court of Appeal;
The President of the High Court;
An ordinary judge of the High Court;
A judge of the Circuit Court who has served in that Court for no less
than two years;
A person who, at any time during the two-year period immediately
before the appointment, has served as:
a judge or Advocate General of the European Court of Justice;
a judge of the European Court of Human Rights;
a judge of the International Court of Justice;
a judge of the International Criminal Court; or
a judge of an international tribunal within the meaning of section 2 of
the International War Crimes Tribunals Act, 1998.
Such person must have been a practising barrister or solicitor before
such appointment.
A barrister or solicitor of not less than twelve years standing who has
practised for a continuous period of not less than two years before
such appointment. (This is the statutory minimum requirement: in
practice, persons appointed to judicial office are invariably lawyers of
high standing with many more years of experience than this minimum
requirement.)
Appointment Procedure

Under the applicable constitutional provisions it is the function of the

Government to decide who should be appointed to the Supreme Court.
The Government advises the President of Ireland of its nomination of a
candidate for appointment and the President formally makes the
appointment.
A person who is not already a judge, and who wishes to be considered
for appointment to the Supreme Court, may apply to the Judicial
Appointments Advisory Board (JAAB) requesting that he or she be
recommended as suitable for such appointment.
The JAAB is an independent Board chaired by the Chief Justice. The
four Presidents of each level of jurisdiction (District Court, Circuit
Court, High Court and Court of Appeal) are also members of the Board.
While a majority of the members are judges, there are two
representatives from the legal profession and two non-lawyers. The
role of the Board is purely advisory. The JAAB considers all the
applications before it in relation to that appointment and draws up a
list of persons whom it considers suitably qualified for appointment.
This list is forwarded to the Government. Generally speaking, the
Government is confined to appointing persons (other than judges) who
have been approved by the Board.
The Oireachtas (parliament) has reserved a power to the Government
to appoint a person who has not applied to, and has not been
considered by the JAAB. If it does so it must publish in Iris Oifigiil
(the Official Gazette) a notice stating that it has made such an
appointment outside the JAAB procedure.
Security of Tenure
According to Article 35.2 of the Constitution All judges shall be
independent in the exercise of their judicial functions and subject
only to this Constitution and the law. Every person appointed a judge
must take the oath set out in Article 34.5.1 of the Constitution as
follows:
In the presence of Almighty God, I do solemnly and sincerely promise
and declare that I will duly and faithfully and to the best of my
knowledge and power execute the office of Chief Justice (or as the
case may be) without fear or favour, affection or ill-will towards any
man, and that I will uphold the Constitution and the laws. May God
direct and sustain me.
Under Article 35.4.1 of the Constitution no judge of the Supreme
Court or the High Court may be removed from office except for stated
misbehaviour or incapacity, and then only upon resolutions passed by
Dil ireann and by Seanad ireann calling for his removal.
Until October 2011, Article 35.5 holds that The remuneration of a
judge shall not be reduced during his continuance in office.
However, following a constitutional referendum sponsored by the
Executive, the people voted to insert a new Article 35.5 of the
Constitution which allows reductions in the remuneration of Judges.

1 The remuneration of judges shall not be reduced during their

continuance in office save in accordance with this section.
2 The remuneration of judges is subject to the imposition of taxes,
levies or other charges that are imposed by law on persons generally
or persons belonging to a particular class.
3 Where, before or after the enactment of this section, reductions
have been or are made by law to the remuneration of persons
belonging to classes of persons whose remuneration is paid out of
public money and such law states that those reductions are in the
public interest, provision may also be made by law to make
proportionate reductions to the remuneration of judges.
Tenure
Under the Courts and Court Officers Act 1995 the retirement age of
ordinary judges of the Supreme Court was reduced from 72 years to 70
years. Judges appointed prior to the coming into operation of that Act
may continue in office until aged 72.
The Courts (No. 2) Act 1997 limited the term of office of a person
appointed to the post of Chief Justice after the coming into operation
of the Act to a period of seven years, which may be shorter where a
Chief Justices term terminates earlier by virtue of his having reached
the statutory retirement age. A former Chief Justice may continue as a
member of the Court until he or she reaches the statutory retirement
age.

Ireland
A report drawn up by the Garda Sochna in the months
following Kennedys exposure as a spy has never been
published. Kennedy spent a significant amount of time in
Ireland, participating in workshops and demonstrations,
including those against the EU summit in May 2004. [21] In
January 2011 the Irish Examiner reported claims that, for the
summit, Kennedy brought a van from Britain containing crash
helmets and offered to purchase broom handles to be used in
combating garda. An activist who played host to Kennedy said
that he was always very supportive of direct action protest.
Its disturbing that he would seem to have been acting as a
agent provocateur attempting to get people into trouble. [22]
The proposed European Investigation Order: Assault on human
rights and national sovereignty

http://www.statewatch.org/analyses/no-96-europeaninvestigation-order.pdf

British police spy at

Shell to Sea in Mayo
MEP wants Justice
Minister to get answers
from counterpart

Police spy Mark Kennedy (centre), at the Ballinaboy terminal

in County Mayo, was involved in the Shell to Sea protests
about the Corrib gas pipeline (Photograph: Indymedia)

14 October 2016

JOHN HEDGES

AN PHOBLACHT EDITOR

GARDA CHIEFS and Scotland Yard commanders allowed

British undercover policeman Mark Kennedy to spy on
environmental groups in Ireland, including the Shell to
Sea campaign in Mayo. Dublin Sinn Fin MEP Lynn
Boylan wants Justice Minister Frances Fitzgerald to get
some long-overdue and straight answers from her

British counterpart when she meets Home Secretary

Amber Rudd this month.

London Metropolitan Police officer Mark Kennedy (pictured)

spent seven years, from 2003 to 2010, infiltrating
environmental campaign groups engaged in direct protest
action against nuclear power stations and other
environmentally dangerous projects. Some of those who were
charged and brought to trial as a result of these activities gave
evidence that the police spy was an agent provocateur,
facilitating, organising and instigating unlawful actions, not
simply monitoring them.
Mark Kennedy worked for the secret National Public Order
Intelligence Unit. It has been confirmed that Kennedy carried
out his activities in Belfast, Mayo and possibly Clare.
The Irish Times reported that the undercover police officer
offered advice to those involved on how to organise protests
during a workshop in north Mayo in March 2006.
He has admitted his role (and apologised for his actions) and
he has been the subject of a TV expos, Confessions of an
Undercover Cop.

Activist and US citizen Sarah Hampton said she met Mark

Kennedy in Ireland in 2005. Unaware that he was a police spy,
she developed an intimate relationship with him. (The
Metropolitan Police acknowledges that Kennedy and other
police officers engaged in infiltrating environmental groups
struck up long-term relationships with women activists as part

of their cover story but maintain this was against protocol.)

Belfast solicitors KRW Law, acting for Sarah Hampton, have
written to the Department of Justice, asking it to confirm
whether the Garda has ever investigated the actions of British
police officer Mark Kennedy in Ireland.
It is unclear what statutory powers were used to permit Mr
Kennedy to operate [in Ireland], which official granted Mr
Kennedy power to operate in the jurisdiction, and on what
basis any such power was granted, KRW Law said.
It would be a question of the utmost public concern if an
undercover officer were effectively permitted to operate
without justification, authorisation or oversight in Ireland.
The Department of Justice replied:
To the extent that and for so long as the person in question
was present in this jurisdiction, he would, naturally have been
subject to Irish law. Any person who has any evidence of any
criminal activity should make that information available to An
Garda Sochna in order that it can be investigated.

X
X
X

Sinn Fin MEP Lynn Boylan (pictured above) wants Justice

Minister Frances Fitzgerald to ask Amber Rudd:
Who authorised Mark Kennedys trip to Ireland?
Who sanctioned the list of Irish campaign groups that were to
be targeted?
Were any convictions in Ireland secured on evidence or actions
carried out by undercover British police officers?
The Dublin MEP and environmental campaigner said:
Justice Minister Fitzgerald will have the perfect opportunity to
seek the answers and clarifications that the victims of British

Metropolitan Police undercover policing in Ireland deserve.

Days later, the Examiner again reported on Kennedys activities.

Despite repeatedly telling the paper that they had no
information on the case, it was reported that Garda bosses will
admit in a report to Justice Minister Brendan Smith that they
knew about [Kennedys] presence [in Ireland]. The Examiner
revealed that senior Garda intelligence officers - attached to the
Crime and Security Branch - had known all along about Mr
Kennedy after being informed by the British Metropolitan
police. Crime and Security did not inform local senior garda in
the areas where Kennedy was active for fear of blowing his
cover. [23] In April 2011, a Sinn Fein representative in the
Dil, the Irish parliament, complained that we have still to
receive a report on what exactly he was doing in this country, on
whose behalf he was working and whether the Garda were
aware that he was here. It appears that this report reached only
a very limited number of officials.
http://www.anphoblacht.com/contents/26426
EDPS Opinion on Personal Information Management Systems Towards more
user empowerment in managing and processing personal data
http://www.statewatch.org/news/2016/oct/eu-edps-opinion-9-16.pdf

The operator of a website may have a legitimate interest in storing certain

personal data relating to visitors to that website in order to protect itself
against cyberattacks

http://curia.europa.eu/jcms/upload/docs/application/pdf/201610/cp160112en.pdf
EU mechanism on democracy, the rule of law and fundamental rights
http://www.statewatch.org/news/2016/oct/ep-rule-of-law-brief.pdf

Dr Christos Tsinopoulos, Senior

Lecturer, Durham UniversityWritten

evidence (ETG0008)
F

In your experience, which we understand

relates to the car industry, how sensitive are
value chains in Europe to price changes, i.e.
how many sourcing decisions are likely to
change in the UK with respect to components
sourced from the EU, and in the EU with
respect to components sourced from the UK,
if prices were to rise by 1%, 5% or 10%
because of trade barriers between the EU
and the UK?
Thank you for the opportunity for responding to
this important question. To answer it I had to
conduct some qualitative analysis by asking
colleagues and contacts in academia and the
automotive sector more generally. Clearly, a
complete answer using the three quantitative
scenarios you outline above would require the
collection so some empirical data. Such an
approach would require the inclusion of several
assumptions, e.g. on the sensitivity of the pricing
on thousands of components. Based on the
discussions I have had with representatives of
OEMs, tier one suppliers (suppliers of OEMs), and
my own understanding of the supply chain
decisions, I offer the following thoughts.
Trade barriers and more specifically, tariffs, are
often seen as a key issue in the decision making
process of location of a part of the supply chain.
Such barriers increase costs, and complicate
decision making.
High margin models and brands are more likely to
be able to sustain an increase in the costs.

However, this is less likely to be the case with the

models and brands where margins are lower. The
degree to which this will be affected will also
depend on the type of product that is being
produced. In the UK we have examples of both
higher and lower margin products.
Therefore, the answer to the above will depend on
the type of product that is being sourced and the
position in the supply chain. For lower margin
models and brands, e.g. small relatively cheap
cars, where cost is more important, an increase of
1% would probably lead to a marginal increase of
cost. My view is that this would fall within the
contingency plan of most companies, e.g. in
relation to exchange rate fluctuations. An increase
of 5% would probably lead to a significant
investment considerations. For higher margin
products, e.g. luxury cars where innovation is more
important, a 5% increase would probably lead to
higher costs but the impact on brand an innovation
would probably not lead to significant changes, at
least in the short term. In both cases an increase
of 10% would probably be prohibitive.
Consolidated version of the Treaty on the Functioning of
the European Union - PART FIVE: EXTERNAL ACTION BY
THE UNION - TITLE II: COMMON COMMERCIAL POLICY Article 207 (ex Article 133 TEC)
Article 207
Article 133 TEC)
1. The common commercial policy shall be based on uniform
principles, particularly with regard to changes in tariff rates, the
conclusion of tariff and trade agreements relating to trade in goods
and services, and the commercial aspects of intellectual property,
foreign direct investment, the achievement of uniformity in
measures of liberalisation, export policy and measures to protect
trade such as those to be taken in the event of dumping or
subsidies. The common commercial policy shall be conducted in the
context of the principles and objectives of the Union's external

action.
2. The European Parliament and the Council, acting by means of
regulations in accordance with the ordinary legislative procedure,
shall adopt the measures defining the framework for implementing
the common commercial policy.
3. Where agreements with one or more third countries or
international organisations need to be negotiated and concluded,
Article 218 shall apply, subject to the special provisions of this
Article.
The Commission shall make recommendations to the Council, which
shall authorise it to open the necessary negotiations. The Council
and the Commission shall be responsible for ensuring that the
agreements negotiated are compatible with internal Union policies
and rules.
The Commission shall conduct these negotiations in consultation
with a special committee appointed by the Council to assist the
Commission in this task and within the framework of such directives
as the Council may issue to it. The Commission shall report regularly
to the special committee and to the European Parliament on the
progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to
in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of
trade in services and the commercial aspects of intellectual
property, as well as foreign direct investment, the Council shall act
unanimously where such agreements include provisions for which
unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and
conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where
these agreements risk prejudicing the Union's cultural and linguistic
diversity;
(b) in the field of trade in social, education and health services,
where these agreements risk seriously disturbing the national
organisation of such services and prejudicing the responsibility of
Member States to deliver them.
5. The negotiation and conclusion of international agreements in the
field of transport shall be subject to Title VI of Part Three and to
Article 218.
6. The exercise of the competences conferred by this Article in the
field of the common commercial policy shall not affect the
delimitation of competences between the Union and the Member
States, and shall not lead to harmonisation of legislative or
regulatory provisions of the Member States in so far as the Treaties
exclude such harmonisation.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:12008E207:en:HTML
JUDGMENT OF THE COURT (Grand Chamber)

22 October 2013 *(1)

(Action for annulment Council Decision 2011/853/EU European
Convention on the legal protection of services based on, or
consisting of, conditional access Directive 98/84/EC Legal basis
Article 207 TFEU Common commercial policy Article 114 TFEU
Internal market)
In Case C-137/12,
ACTION for annulment under Article 263 TFEU, brought on 12 March
2012,
European Commission, represented by E. Cujo and by I. Rogalski,
R. Vidal Puig and D. Stefanov, acting as Agents, with an
address for service in Luxembourg,
applicant,
supported by:
European Parliament, represented by D. Warin and J. Rodrigues,
acting as Agents,
intervener,
v
Council of the European Union, represented by H. Legal and J.P. Hix and by R. Liudvinaviciute-Cordeiro, acting as Agents,
defendant,
supported by:
French Republic, represented by G. de Bergues and D. Colas and
by N. Rouam, acting as Agents,
Kingdom of the Netherlands, represented by C. Wissels,
M. Bulterman and M. de Ree, acting as Agents,
Republic of Poland, represented by M. Szpunar and B. Majczyna,
acting as Agents,
Kingdom of Sweden, represented by A. Falk and C. Stege, acting
as Agents,
United Kingdom of Great Britain and Northern Ireland,
represented by A. Robinson, acting as Agent, assisted by
G. Facenna, Barrister,
interveners,
THE COURT (Grand Chamber),
composed of V. Skouris, President, K. Lenaerts (Rapporteur),
Vice-President, A. Tizzano, L. Bay Larsen, T. von Danwitz,
E. Juhsz, A. Borg Barthet, C.G. Fernlund and J.L. da Cruz
Vilaa, Presidents of Chambers, A. Rosas, G. Arestis,
A. Arabadjiev, C. Toader, E. Jarainas and C. Vajda, Judges,
Advocate General: J. Kokott,
Registrar: V. Tourrs, Administrator,
having regard to the written procedure and further to the hearing
on 30 April 2013,
after hearing the Opinion of the Advocate General at the sitting on
27 June 2013,
gives the following

Judgment
By its application, the European Commission seeks the
annulment of Council Decision 2011/853/EU of 29 November
2011 on the signing, on behalf of the Union, of the European
Convention on the legal protection of services based on, or
consisting of, conditional access (OJ 2011 L 336, p. 1; the
contested decision).
Legal context
Directive 98/84/EC
2
On 20 November 1998, the European Parliament and the
Council of the European Union adopted Directive 98/84/EC on
the legal protection of services based on, or consisting of,
conditional access (OJ 1998 L 320, p. 54).
3
Article 1 of Directive 98/84, entitled Scope, states that the
objective of that directive is to approximate provisions in the
Member States concerning measures against illicit devices
which give unauthorised access to protected services.
4
Article 2 of the directive, entitled Definitions, provides:
For the purposes of this Directive:
(a)
protected service shall mean any of the following services,
where provided against remuneration and on the basis of
conditional access:

television broadcasting, as defined in Article 1(a) of [Council]

Directive 89/552/EEC [of 3 October 1989 on the coordination
of certain provisions laid down by Law, Regulation or
Administrative Action in Member States concerning the
pursuit of television broadcasting activities (OJ 1989 L 298,
p. 23)],

radio broadcasting, meaning any transmission by wire or

over the air, including by satellite, of radio programmes
intended for reception by the public,

information society services within the meaning of

Article 1(2) of Directive 98/34/EC of the European Parliament
and of the Council of 22 June 1998 laying down a procedure
for the provision of information in the field of technical
standards and regulations and of rules on information society
services [(OJ 1998 L 204, p. 37)]
or the provision of conditional access to the above services
considered as a service in its own right;
(b)
conditional access shall mean any technical measure and/or
arrangement whereby access to the protected service in an
intelligible form is made conditional upon prior individual
authorisation;
(c)
conditional access device shall mean any equipment or
software designed or adapted to give access to a protected
service in an intelligible form;

(e)

illicit device shall mean any equipment or software designed

or adapted to give access to a protected service in an
intelligible form without the authorisation of the service
provider;

Under Article 3(1) of Directive 98/84, entitled Internal

market principles:
Each Member State shall take the measures necessary to prohibit
on its territory the activities listed in Article 4, and to provide
for the sanctions and remedies laid down in Article 5.
6
Article 4 of Directive 98/84, relating to infringing activities,
provides:
Member States shall prohibit on their territory all of the following
activities:
(a)
the manufacture, import, distribution, sale, rental or
possession for commercial purposes of illicit devices;
(b)
the installation, maintenance or replacement for commercial
purposes of an illicit device;
(c)
the use of commercial communications to promote illicit
devices.
7
Under Article 5 of that directive, entitled Sanctions and
remedies:
1.
The sanctions shall be effective, dissuasive and proportionate
to the potential impact of the infringing activity.
2.
Member States shall take the necessary measures to ensure
that providers of protected services whose interests are
affected by an infringing activity as specified in Article 4,
carried out on their territory, have access to appropriate
remedies, including bringing an action for damages and
obtaining an injunction or other preventive measure, and
where appropriate, applying for disposal outside commercial
channels of illicit devices.
The European Convention on the legal protection of services based
on, or consisting of, conditional access
8
In 1999, the Council of Europe began work on the drafting of
a convention concerning the legal protection of services based
on, or consisting of, conditional access. On 16 July 1999, the
Council of the European Union authorised the Commission to
participate, on behalf of the European Community, in the
negotiations relating to that convention. The negotiation
directives adopted by the Council on the same day stated that
the Commission would be negotiating to ensure that that
convention was compatible with Directive 98/84, especially
with regard to sanctions.
9
The European Convention on the legal protection of services
based on, or consisting of, conditional access (OJ 2011 L 336,
p. 2; the Convention) was adopted by the Council of Europe

10
10.

11.

on 24 January 2001 and entered into force on 1 July 2003.

Paragraphs 10, 11 and 13 of the Explanatory Report on the
Convention give the following information:
Among non-European Union countries, the legislative
approach to the problem of illicit reception of encrypted
services is varied: in certain countries specific legislation to
counter this problem is in place, in others there are
incomplete regulations that only protect certain services
(namely broadcasting services) or only penalise certain
activities, and finally, in some countries there is no legal
protection against the piracy of conditional access services.
In view of the above, and with the aim of ensuring a similar
minimum level of protection of conditional access services
across Europe, it was decided that a Council of Europe
binding legal instrument on this matter would be desirable. In
addition, a [c]onvention at the wider European level on the
legal protection of services based on, or consisting of,
conditional access would be a valuable complement to
[Directive 98/84].

Preamble
13.
The preamble succinctly sets out the main reasons which led
the member States of the Council of Europe to elaborate a
[c]onvention on this matter It underlines that providers of
radio, television and information society services based on
conditional access against remuneration are threatened by
the existence of a parallel industry that manufactures,
markets and distributes devices which enable unauthorised
access to their services, and therefore highlights the need to
pursue a common policy in Europe aimed at the protection of
these services. It also stresses the value of criminal and
administrative sanctions against unlawful activities, in
particular to prevent future offences.
11
In Section I of the Convention, which sets out the general
provisions, Article 1, entitled Object and purpose, provides:
This Convention is concerned with broadcasting and information
society services offered against payment and based on, or
which consist of, conditional access. The purpose of this
Convention is to make illegal on the territory of the Parties a
number of activities which give unauthorised access to
protected services, and to approximate the legislation of
Parties in this area.
12
In the same section of the Convention, Article 2, entitled
Definitions, provides:
For the purposes of this Convention:
(a)
protected service means any of the following services,
when provided against remuneration and on the basis of

conditional access:
television programme services, as defined in Article 2 of the
amended European Convention on Transfrontier Television,

radio broadcasting services, meaning radio programmes

intended for reception by the public, transmitted by wire or
over the air, including by satellite,

information society services, understood as those offered by

electronic means, at a distance and at the individual request
of a recipient of services,
or the provision of conditional access to the above services,
considered as a service in its own right;
(b)
conditional access means any technical measure and/or
arrangement permitting access in an intelligible form, and
subject to prior individual authorisation, to one of the services
mentioned in point (a) of this Article;
(c)
conditional access device means any equipment, software
and/or arrangement designed or adapted to give access in an
intelligible form to one of the services mentioned in point (a)
of this Article;
(d)
illicit device means any equipment, software and/or
arrangement designed or adapted to give access in an
intelligible form to one of the services mentioned in point (a)
of this Article, without the authorisation of the service
provider.
13
In Section II of the Convention, which is entitled Illicit
activities, Article 4, entitled Offences, provides:
It shall be unlawful to carry out one of the following activities on
the territory of a Party:
(a)
the manufacture or production of illicit devices for
commercial purposes;
(b)
the importation of illicit devices for commercial purposes;
(c)
the distribution of illicit devices for commercial purposes;
(d)
the sale or rental of illicit devices for commercial purposes;
(e)
the possession of illicit devices for commercial purposes;
(f)
the installation, maintenance or replacement of illicit devices
for commercial purposes;
(g)
the commercial promotion, marketing or advertising of illicit
devices.
Each Party may, at any time, in a declaration addressed to the
Secretary-General of the Council of Europe, declare that it will
also make unlawful other activities than those referred to in
the first paragraph of this Article.
14
Articles 5 to 7 of the Convention are set out in Section III
thereof, which is entitled Sanctions and remedies.
15
Under Article 5 of the Convention, entitled Sanctions for
unlawful activities:
The Parties shall adopt measures to make the unlawful activities

established in Article 4 above punishable by criminal,

administrative or other sanctions. Such measures shall be
effective, dissuasive and proportionate to the potential impact
of the unlawful activity.
16
Article 6 of the Convention, which is entitled Confiscation
measures, is worded as follows:
The Parties shall adopt such appropriate measures as may be
necessary to enable [them] to seize and confiscate illicit
devices or the promotional, marketing or advertising material
used in the commission of an offence, as well as the forfeiture
of any profits or financial gains resulting from the unlawful
activity.
17
Article 7 of the Convention, entitled Civil proceedings,
states:
The Parties shall adopt the necessary measures to ensure that
providers of protected services whose interests are affected
by an unlawful activity established in Article 4 above have
access to appropriate remedies, including bringing an action
for damages and obtaining an injunction or other preventive
measure, and where appropriate, applying for the elimination
of illicit devices from commercial channels.
18
Article 8 of the Convention, entitled International
cooperation, provides:
The Parties undertake to render each other mutual assistance in
order to implement this Convention. The Parties shall afford
each other, in accordance with the provisions of relevant
international instruments on international cooperation in
criminal or administrative matters and with their domestic
law, the widest measure of cooperation in investigations and
judicial proceedings relating to criminal or administrative
offences established in accordance with this Convention.
19
Paragraph 4 of Article 11 of the Convention, entitled
Relationship with other conventions or agreements,
provides:
In their mutual relations, Parties which are members of the
European Community shall apply Community rules and shall
not therefore apply the rules arising from this Convention
except in so far as there is no Community rule governing the
particular subject concerned.
20
Seven Member States of the European Union the Republic
of Bulgaria, the French Republic, the Republic of Croatia, the
Republic of Cyprus, the Kingdom of the Netherlands, Romania
and the Republic of Finland are party to the Convention.
Background to the dispute
The second report on Directive 98/84
21
On 30 September 2008, the Commission adopted its second
report on the implementation of Directive 98/84 (COM(2008)

22

593 final; the second report on Directive 98/84).

The second report on Directive 98/84 states the following
information:

2.4.
The international dimension
Various rounds of enlargement of the European Union have changed
the geographical landscape in terms of piracy, which formerly
flourished in certain Eastern European countries. These
countries are now EU Member States and transposition of
[Directive 98/84] governs the fight against piracy.
In addition, accession candidates , those involved in accession
negotiations and potential candidates are all bringing
their legislation into line with the Community acquis.
Apart from enlargement of the European Union, Decision of the EEA
Joint Committee No 17/2001 of 28 February 2001
incorporated [Directive 98/84] into the EEA agreement
Beyond this, the Commission has little scope for action. However,
the [Convention] establishes protection similar to that of
[Directive 98/84] and is due to be ratified by the 47 countries
that are members of the Council of Europe as well as Belarus
and the Vatican.
At present, it has been signed by 11 countries and ratified by
eight. Ratification of the Convention is open to the European
Community. EC ratification may help give new impetus to
ratification by other countries and thus extend the protection
of relevant service providers outside the EU.

4.2.4. Ratification of the [Convention]

[The Convention] has considerable potential to extend the
protection of conditional access services internationally,
beyond the territory of the European Union. The European
Communitys ratification of the Convention would enable new
impetus to be given to international action among the 47
members of the Council of Europe.
The Commission will therefore shortly propose to the Council that it
ratify the Convention on behalf of the European Community.
The proposal for a Council decision
23
On 15 December 2010, the Commission submitted a proposal
to the Council for a decision to be adopted on the basis of
Article 207(4) TFEU, together with Article 218(5) TFEU,
concerning the signing of the European Convention on the
legal protection of services based on, or consisting of,
conditional access (COM(2010) 753 final; the proposal for a
decision).
24
According to the explanatory memorandum to that proposal
for a decision:

9.

14.

16.

Extensive, effective protection for services based on, or

consisting of, conditional access appeared to be particularly
necessary. In fact, many European states which are not
members of the European Union may provide havens for the
development or distribution of devices for hacking into
conditional access services if their legal system does not
provide for sanctions against this very specific hacking
activity. It was therefore necessary to extend the provisions
of [Directive 98/84] and to create a common and effective
framework at European level for the protection of these
services.
The wording of the two texts differs slightly in places. For
instance, the Convention not only defines as a criminal
offence the manufacture of illicit devices but also their
production. It also gives a clearer definition of the sanctions
established for activities defined as unlawful, since it
describes them as penal, administrative or other. However, as
in [Directive 98/84], the sanctions must be proportionate,
dissuasive and effective. In short, the different wording of the
Convention by no means differs in terms of content or
scope from [Directive 98/84].
In its second [report on Directive 98/84], the Commission
indicated that the signing of the Convention by the European
Union should encourage broader ratification by the Member
States of the Council of Europe and thus make it possible to
extend legal protection for services based on conditional
access beyond the borders of the [Union].

The contested decision

25
In addition to Article 218(5) TFEU, the legal basis cited for
the contested decision is Article 114 TFEU, not Article 207(4)
TFEU, as proposed by the Commission.
26
According to recitals 3 and 5 to that decision:
(3)
The Convention establishes a regulatory framework which is
almost identical to that set out in [Directive 98/84].

(5)
The signing of the Convention would help to extend the
application of provisions similar to those in [Directive 98/84]
beyond the borders of the Union and establish a law on
services based on conditional access which would be
applicable throughout the European continent.
27
Unlike the proposal for a decision, the contested decision
includes a recital 6, which is worded as follows:
By adopting [Directive 98/84], the Union has exercised its internal
competence in the fields covered by the Convention except as

regards Articles 6 and 8 thereof, insofar as Article 8 relates to

the measures under Article 6. The Convention should be
therefore signed both by the Union and its Member States.
28
Article 1 of the contested decision provides:
The signing of the [Convention] is hereby authorised on behalf of
the Union, subject to the conclusion of the Convention.
The text of the Convention is attached to this Decision.
29
Under Article 2 of that decision:
The President of the Council is hereby authorised to designate the
person(s) empowered to sign, on behalf of the Union, the
Convention.
30
Pursuant to Article 3 thereof, the contested decision entered
into force on the day of its adoption.
31
Owing to the differences between its proposal for a decision
and the contested decision, as pointed out in paragraphs 25
and 27 above, the Commission reserved its position by means
of a declaration which was annexed to the minutes of the
Council meeting at which the decision was adopted.
Forms of order sought and procedure before the Court
32
The Commission claims that the Court should annul the
contested decision and order the Council to pay the costs.
33
The Council contends that the Court should dismiss the action
as unfounded and order the Commission to pay the costs.
34
By order of the President of the Court of 6 August 2012, the
French Republic, the Kingdom of the Netherlands, the
Republic of Poland, the Kingdom of Sweden and the United
Kingdom of Great Britain and Northern Ireland were granted
leave to intervene in support of the form of order sought by
the Council, while the Parliament was granted leave to
intervene in support of the form of order sought by the
Commission.
The action
35
The Commission raises two pleas in law in support of its
action: (i) error in law in the choice of legal basis for the
contested decision; and (ii) infringement of the European
Unions exclusive external competence as provided for in
Articles 2(1) TFEU and 3 TFEU.
Arguments of the parties
36
By its first plea, the Commission, supported by the
Parliament, submits that the contested decision comes under
the common commercial policy and should therefore have
been adopted on the basis of Article 207(4) TFEU.
37
First, the Commission argues that the Convention is primarily
intended, from an EU perspective, to ensure adequate
protection of the services concerned on the markets of those
contracting parties which do not belong to the European
Union in order to facilitate and promote the supply of those

38

39

40

41

42

43

44

45

services by EU service providers in those markets under

viable economic conditions.
In that context, the approximation of legislation referred to in
the second sentence of Article 1 of the Convention and the
prohibition of the activities listed in Article 4 thereof are not
aims in themselves, but a means of achieving the objectives
pursued by that convention.
Moreover, the fact that the ultimate goal of certain measures
provided for under the Convention such as the ban on
exporting illicit devices and services relating thereto to the
European Union is to protect the internal market and
service providers established in the European Union does not
sever the link between the Convention and the common
commercial policy.
According to the Commission, Article 11(4) of the Convention
confirms that the primary aim of the contracting parties is not
to improve the functioning of the internal market of the
European Union but to promote and facilitate trade between
those parties.
As regards Articles 6 and 8 of the Convention, the
Commission argues that those provisions are incidental and
cannot therefore be cited as grounds for using Article 114
TFEU as a legal basis for the contested decision.
Secondly, the Commission argues that the Convention is
primarily concerned with the supply of conditional access
services between the European Union and other European
countries. It is intended to complement Directive 98/84 by
extending to those other countries the protection against acts
of piracy introduced by that directive.
Thirdly, the Commission argues that the Convention has a
direct and immediate effect on the capacity of service
providers to supply conditional access services and on the
trade in illicit devices and services relating to those devices. It
is directly aimed at eliminating obstacles to the trade in
protected services by prohibiting all commercial activity which
makes hacking or other forms of electronic piracy possible.
The Convention thus contributes, directly and immediately, to
facilitating and promoting the supply of protected services
between the European Union and other European countries
where there is currently no adequate protection in place.
The Council, supported by the French Republic, the Kingdom
of the Netherlands, the Republic of Poland, the Kingdom of
Sweden and the United Kingdom, contends that the correct
legal basis for the contested decision is Article 114 TFEU.
Those parties argue, first, that the Convention is intended to
approximate the legislation of the contracting parties,
including the legislation of the Member States of the

European Union, so as to combat more effectively unlawful

access to the services involved which is a threat to the
economic viability of the related service providers and, in
consequence, to the diversity of the programmes and services
offered to the public by requiring the adoption of common
definitions for unlawful activities and by introducing a
common system of sanctions and remedies.
46
Like Directive 98/84, which it complements, the primary aim
of the Convention is to eliminate or prevent any obstacles to
trade in the services concerned that arise because of
differences between national laws, in order to protect the
proper functioning of markets and to improve the functioning
of the internal market. More specifically, the Convention is
designed to eliminate the risk of non-member countries being
used as a base for exporting illicit devices, or supplying
services relating to those devices, to the European Union,
which would undermine the functioning of the internal market
and the effectiveness of the protection established in that
market by the directive.
47
In that context, the approximation of the legislation of the
contracting parties and the ban on the activities listed in
Article 4 of the Convention are not simply means or methods
of achieving the Conventions objectives, but are themselves
the objectives pursued by that instrument.
48
The French Republic also remarks that, unlike Directive
98/84, the Convention includes certain provisions Articles 6
and 8 which relate to seizure and confiscation measures
and to international cooperation. For their part, the Republic
of Poland and the Kingdom of Sweden submit that, in any
event, the European Union has no power to conclude, on the
basis of Article 207 TFEU, an international agreement
involving seizure and confiscation measures of a criminal-law
nature.
49
Secondly, the Council, supported by the French Republic and
the United Kingdom, argues that the fact that the Convention
also covers the supply of conditional access services between
the European Union and non-member countries in no way
means that it is intended to apply more to those services than
to those supplied within the European Union.
50
Thirdly, those parties, together with the Kingdom of the
Netherlands and the Kingdom of Sweden, argue that any
effects that the Convention may have on trade in services
between the European Union and the other contracting
parties are only indirect and secondary.
Findings of the Court
51
As a preliminary point, it should be noted that the parties to
the dispute agree that the contested decision is correctly

52

53

54

55

56

57

based on Article 218(5) TFEU. They disagree, however, as to

whether the other legal basis cited was appropriate for the
adoption of that decision.
According to settled case-law, the choice of legal basis for an
EU measure must rest on objective factors that are amenable
to judicial review; these include the aim and content of that
measure (see, to that effect, Case C-411/06 Commission v
Parliament and Council [2009] ECR I-7585, paragraph 45 and
the case-law cited, and Case C-130/10 Parliament v Council
[2012] ECR, paragraph 42 and the case-law cited).
If examination of that measure reveals that it pursues a
twofold purpose or that it has a twofold component and if one
of those is identifiable as the main or predominant purpose or
component, whereas the other is merely incidental, that
measure must be based on a single legal basis, namely that
required by the main or predominant purpose or component
(see, to that effect, Commission v Parliament and Council,
paragraph 46 and the case-law cited, and Case C-490/10
Parliament v Council [2012] ECR, paragraph 45 and the caselaw cited).
In the present case, as the contested decision was adopted in
order to authorise the signing of the Convention on behalf of
the European Union, it must be examined in conjunction with
the Convention.
The Commission, supported by the Parliament, submits in
essence that, in the light of the aim and content of the
Convention, the contested decision comes primarily under the
common commercial policy and only incidentally under the
internal market policy. By contrast, the Council and the
Member States intervening in its support contend that the
Convention in view of both its aim and its content and, by
extension, the contested decision are essentially linked to the
internal market policy and only incidentally linked to the
common commercial policy.
In that regard, it follows from Article 207(1) TFEU and, in
particular, from the second sentence of that provision, in the
words of which the common commercial policy belongs within
the context of the Unions external action that the common
commercial policy relates to trade with non-member
countries, not to trade in the internal market (see Case
C-414/11 Daiichi Sankyo and Sanofi-Aventis Deutschland
[2013] ECR, paragraph 50).
Moreover, it is settled-case law that the mere fact that an act
of the European Union is liable to have implications for
international trade is not enough for it to be concluded that
the act must be classified as falling within the common

58

59

60

61

62

63

commercial policy. On the other hand, an EU act falls within

that policy if it relates specifically to international trade in that
it is essentially intended to promote, facilitate or govern trade
and has direct and immediate effects on trade (see, inter alia,
Daiichi Sankyo and Sanofi-Aventis Deutschland, paragraph 51
and the case-law cited).
It follows that only those acts of the European Union with a
specific link to international trade are capable of falling within
the field of the common commercial policy (see, to that
effect, Daiichi Sankyo and Sanofi-Aventis Deutschland,
paragraph 52).
In the present case, as recital 3 to the contested decision
explains, the Convention signature of which on behalf of the
European Union is authorised by the contested decision
established a regulatory framework which is almost identical
to that provided for in Directive 98/84. Confirmation of this is
to be found, inter alia, in the similarity of the definitions given
in Article 2 of the Convention and Article 2 of Directive 98/84
respectively for protected service, conditional access,
conditional access device and illicit device, and in the fact
that the list of prohibited illicit activities under Article 4 of
the Convention is similar to the list of infringing activities
under Article 4 of the directive.
Paragraph 11 of the Explanatory Report on the Convention
states that the aim of the Convention is to ensure a similar
minimum level of protection of the services concerned across
Europe and thus to provide a valuable complement to
Directive 98/84.
According to paragraphs 10 and 13 of the Explanatory Report
and paragraph 9 of the explanatory memorandum
accompanying the proposal for a decision, it is necessary, by
means of the Convention, to extend beyond the European
Union the legal protection introduced by Directive 98/84,
because many European non-member countries may be bases
for the manufacture, marketing and distribution, by a parallel
industry, of devices which make it possible to gain
unauthorised access to conditional access services, since legal
protection in those countries against such acts of piracy is
either ineffective or non-existent.
In that situation, the signing of the Convention on behalf of
the European Union, which the contested decision is intended
to authorise, is undertaken with a view to encouraging
broader ratification of the Convention by Member States of
the Council of Europe, as stated in points 2.4 and 4.2.4 of the
second report on Directive 98/84 and in paragraph 16 of the
explanatory memorandum to the proposal for a decision.
The signing of the Convention is thus supposed to help

64

65

66

67

68

extend the application of provisions similar to those of

Directive 98/84 beyond the borders of the European Union
and to establish a law on conditional access services which is
applicable throughout the European continent, as stated in
recital 5 to the contested decision.
While Directive 98/84 is intended to ensure adequate legal
protection at EU level for the services concerned in order to
promote trade in those services within the internal market,
the contested decision, by authorising the signing of the
Convention on behalf of the European Union, is intended to
introduce similar protection in European non-member
countries, in order to promote the supply of such services to
those States by EU service providers.
That objective, which can be seen from the recitals to the
contested decision, read in conjunction with the Convention,
to be the primary objective of that decision, therefore has a
specific connection with international trade in those services,
by dint of which it can legitimately be linked to the common
commercial policy (see, by analogy, Daiichi Sankyo and
Sanofi-Aventis Deutschland, paragraphs 58 and 60).
The above analysis is not affected by the argument raised by
the Council and the intervening Member States that the aim,
referred to in the second sentence of Article 1 of the
Convention, of approximating the legislation of the
contracting parties shows that the contested decision is linked
to the internal market policy.
In fact, it follows from Article 11(4) of the Convention that, in
their mutual relations, the Member States of the European
Union are to apply EU rules and are not therefore to apply the
rules established by the Convention except where there is no
EU rule governing the particular subject area concerned.
Article 11(4) of the Convention confirms that, since the
approximation of the legislation of Member States in the field
concerned has already been largely achieved by Directive
98/84, the primary objective of the Convention is not to
improve the functioning of the internal market, but to extend
legal protection of the relevant services beyond the territory
of the European Union and thereby to promote international
trade in those services. The reference made in Article 1 of the
Convention to approximation of the legislation of the
contracting parties appears therefore to be a reference to a
means of achieving the objectives of the Convention, rather
than to one of its actual aims.
As regards the argument by the Council and the intervening
Member States that the Convention is specifically designed to
prohibit the export of illicit devices to the European Union
from European non-member countries in order to ensure the

69

70

71

72

proper functioning of the internal market, it must be

emphasised that that specific aim to which the prohibition,
laid down in point (a) of the first paragraph of Article 4 of
Directive 98/84, on the import of illicit devices for commercial
purposes to the European Union from non-member countries
(including
European
non-member
countries)
already
contributes is not capable of calling in question the
existence of a specific link between the contested decision
and the common commercial policy.
On the contrary, a ban on the export of illicit devices to the
European Union concerns the defence of the European Unions
global interests and falls, by its very nature, within the ambit
of the common commercial policy (see, to that effect, Opinion
1/75 of 11 November 1975 ECR 1335 and 1364; Opinion 1/94
of 15 November 1994 ECR I-5267, paragraphs 55, 63 and 71;
and Case C-94/03 Commission v Council [2006] ECR I-1,
paragraphs 46, 47 and 49).
As regards the argument of the French Republic, the Republic
of Poland and the Kingdom of Sweden that, unlike Directive
98/84, the Convention includes certain provisions Articles 6
and 8 which relate to seizure and confiscation measures
and to international cooperation between the contracting
parties, it should be noted that those provisions are intended
generally to ensure effective legal protection for conditional
access services throughout the territories of those parties.
Accordingly, they help to achieve the primary objective of the
contested decision, read in conjunction with the Convention,
as established in paragraphs 62 to 64 above.
It is true that Articles 6 and 8 of the Convention are also
supposed to improve the conditions for the functioning of the
internal market by clarifying the definition of the sanctions
provided for under Article 5 of Directive 98/84, as mentioned
in paragraph 14 of the explanatory memorandum to the
proposal for a decision. However, as the Advocate General
observed in points 56 and 82 of her Opinion, that objective is
purely incidental to the primary objective of the contested
decision.
As regards the argument of the Republic of Poland and the
Kingdom of Sweden that, as a legal basis, Article 207 TFEU is
incompatible with the supposedly criminal-law nature of the
seizure and confiscation measures provided for under the
Convention, it should be noted that quite apart from the
fact that the Convention provisions dedicated to such
measures do not reflect the Conventions primary objective
and that Articles 5 and 6 of the Convention do not require the
sanctions and measures referred to therein to be exclusively
of a criminal-law nature that argument does not explain

why Article 114 TFEU would be the correct legal basis in the
circumstances.
73
Lastly, contrary to the assertions made by the Council during
the hearing, Protocol (No 21) on the position of the United
Kingdom and Ireland in respect of the area of freedom,
security and justice and Protocol (No 22) on the position of
Denmark, which are annexed to the EU Treaty and the FEU
Treaty, are not capable of having any effect whatsoever on
the question of the correct legal basis for the adoption of the
contested decision.
74
Indeed, it is the legal basis for a measure the
appropriateness or otherwise of which falls to be assessed, by
virtue of the case-law recalled in paragraphs 52 and 53
above, on the basis of objective factors such as main or
predominant purpose of the measure and its content which
determines the protocols to be applied, and not vice versa.
75
In the present case, it can be seen from the above analysis
that the appropriate legal basis is the one relating to the
common commercial policy, which is not covered by Protocols
Nos 21 and 22.
76
It follows from all of the foregoing that the contested decision
primarily pursues an objective that has a specific connection
to the common commercial policy, which means that, for the
purposes of the adoption of that decision, Article 207(4)
TFEU, together with Article 218(5) TFEU, must be cited as the
legal basis and which also means that the signing of the
Convention on behalf of the European Union falls within the
exclusive competence of the European Union, pursuant to
Article 3(1)(e) TFEU. By contrast, the improvement of the
conditions for the functioning of the internal market is an
ancillary objective of that decision that provides no
justification for its adoption on the basis of Article 114 TFEU.
77
Since the first plea in law is well founded, the contested
decision must be annulled, it being unnecessary to examine
the second plea raised by the Commission in support of its
action.
Limitation of the effects of the annulment
78
Under the second paragraph of Article 264 TFEU, the Court
may, if it considers it necessary, state which of the effects of
the act which it has declared void are to be considered as
definitive.
79
In the present case, pursuant to Article 3 thereof, the
contested decision entered into force on 29 November 2011,
the day of its adoption.
80
The annulment of the contested decision without its effects
being maintained would call in question the signing of the
Convention by the European Union, which took place on

21 December 2011, even though the competence of the

European Union to sign that convention has never been called
in question.
81
In the interests of legal certainty, therefore, it is appropriate
for the Court to maintain the effects of that decision until the
adoption, within a reasonable period which must not exceed
six months, of a new decision based on the appropriate legal
bases, namely Article 207(4) TFEU, together with Article
218(5) TFEU.
Costs
82
Under Article 138(1) of the Rules of Procedure, the
unsuccessful party is to be ordered to pay the costs if they
have been applied for in the successful partys pleadings.
Since the Council has been unsuccessful and the Commission
has applied for costs, the Council must be ordered to pay the
costs. Pursuant to Article 140(1) of the Rules of Procedure,
the French Republic, the Kingdom of the Netherlands, the
Republic of Poland, the Kingdom of Sweden and the United
Kingdom must bear their own costs.
On those grounds, the Court (Grand Chamber) hereby:
1.
Annuls Council Decision 2011/853/EU of 29 November
2011 on the signing, on behalf of the Union, of the European
Convention on the legal protection of services based on, or
consisting of, conditional access;
2.
Maintains the effects of Decision 2011/853 until the
entry into force, within a reasonable period which is not to
exceed six months, of a new decision based on the
appropriate legal bases;
3.
Orders the Council of the European Union to pay the
costs;
4.
Orders the French Republic, the Kingdom of the
Netherlands, the Republic of Poland, the Kingdom of Sweden
and the United Kingdom of Great Britain and Northern
Ireland to bear their own costs.
[Signatures]
http://curia.europa.eu/juris/document/document.jsf?
text=414%252F11&docid=143344&pageIndex=0&doclang=EN&mo
de=req&dir=&occ=first&part=1&cid=387569#ctx1

Marrakesh Treaty to Facilitate

Access to Published Works for
Persons Who Are Blind,

Visually Impaired, or
Otherwise Print Disabled
adopted by the Diplomatic
Conference to Conclude a Treaty to
Facilitate Access to Published Works
by Visually Impaired Persons and
Persons with Print Disabilities in
Marrakesh, on June 27, 2013
http://www.wipo.int/edocs/mdocs/diplconf/en/vip_dc/vip_dc_8.pdf

Beijing Treaty on Audiovisual Performances WIPO

http://www.wipo.int/edocs/mdocs/copyright/en/avp_dc/avp_dc_20.
pdf

Applications for a Preliminary

Injunction in the CETA Proceedings
Unsuccessful
13 October 2016
In its judgment pronounced today, the Second Senate of the Federal
Constitutional Court rejected several applications for a preliminary
injunction directed against the approval by the German
representative in the Council of the European Union of the signing,
the concluding and the provisional application of the
Comprehensive Economic and Trade Agreement (CETA), which the
Council of the European Union is expected to decide upon on 18
October 2016. The Federal Government must, however, ensure,
- that a Council decision on provisional application will only apply to
those parts of CETA that lie indisputably within the scope of the
competences of the European Union,
- that until the Federal Constitutional Court renders a decision in the
principal proceedings, sufficient democratic legitimacy with regard
to the decisions of the CETA Joint Committee is ensured, and

- that the interpretation of Art. 30.7 sec. 3 lit. c CETA allows Germany
to unilaterally terminate the provisional application.
If these conditions are complied with, there are no significant
disadvantages for the rights of the applicants, nor for the
participation rights of the German Bundestag, that would make the
issuance of a preliminary injunction necessary in the context of a
weighing of consequences [comparing the consequences of the
issuance of the preliminary injunction with those of non-issuance].
Facts of the Case:
In April 2009, the Council of the European Union authorised the
European Commission to open negotiations with Canada on an
economic and trade agreement. The Agreement was to further
strengthen the common purpose of the mutual successive
liberalisation of practically all areas of trade in goods and services,
and of establishment, as well as to ensure and facilitate the
compliance with international environmental and social agreements.
Upon conclusion of the negotiations, the European Commission
submitted a Proposal to the Council of the European Union in July
2016 to authorise the signing of CETA, to declare it provisionally
applicable until the procedures required for its conclusion are
completed, and to conclude the Agreement.
Applicants nos. I.- IV. essentially claim that a decision by the Council
of the European Union authorising the signing of CETA, its
provisional application, and the conclusion of the Agreement,
violates their rights under Art. 38 sec. 1 in conjunction with Art. 79
sec. 3 and Art. 20 secs. 1 and 2 of the Basic Law (Grundgesetz GG).
In the Organstreit proceedings (dispute between constitutional
organs), the parliamentary group DIE LINKE of the German
Bundestag asserts, in a representative action on behalf of the
German Bundestag, the latters right to legislative discretion under
Art. 23 sec. 1 sentence 2 in conjunction with Art. 59 sec. 2 GG.
Key Considerations of the Senate:
The admissible applications are unfounded.
1. The Federal Constitutional Court may provisionally decide a
matter by way of a preliminary injunction if this is urgently required
to avert severe disadvantage, prevent imminent violence or for
other important reasons in the interest of the common good ( 32

sec. 1 Federal Constitutional Court Act

Bundesverfassungsgerichtsgesetz BVerfGG). In assessing whether
the requirements of 32 sec. 1 BVerfGG are fulfilled, it must
generally apply a strict standard. This standard is even stricter when
the measures involved have implications for international law or for
foreign policy. The prospects of success in the principal proceedings
are not to be taken into account, unless the declaration sought, or
the application made, in the principal proceedings is inadmissible
from the outset or clearly unfounded. In case the outcome of the
principal proceedings cannot be foreseen, the Federal Constitutional
Court must weigh the consequences.
2. Irrespective of the outstanding questions whether the
constitutional complaints and the Organstreit proceedings are
admissible and well-founded, the applications for a preliminary
injunction are without success on the basis of the required weighing
of the consequences.
3. If the preliminary injunction were issued yet the Federal
Governments participation in passing the decision of the Council on
the provisional application of CETA is later found to have been
constitutionally permissible, the probability is high that the general
public would suffer severe disadvantages.
a) In fact, the substantial consequences of even a preliminary, but
certainly of an ultimate, failure of CETA would be more political than
economic. A preliminary injunction preventing the Federal
Governments approval of the provisional application of CETA would
significantly interfere with the generally broad legislative
discretion of the Federal Government in the fields of European,
foreign and foreign economic policy. In a similar manner, this would
also be true with regard to the European Union. The failure of CETA
even if only preliminary would not only impair the external trade
relations between the European Union and Canada, but also have
far-reaching effects on the negotiation and conclusion of future
external trade agreements. Thus, it seems evident that the issuance
of a preliminary injunction would have a negative effect on
European external trade policy and the international status of the
European Union in general. The probability is high that the
disadvantages stemming from the issuance of a preliminary
injunction followed by a lack of success in the principal proceedings
would be irreversible. The anticipated loss in reliability on the part of

the Federal Republic of Germany as the initiating force behind

such a development and on the part of the European Union overall
could have lasting negative effects for the scope of action and
decision-making of all European players in the shaping of global
trade relations.
b) Compared with this, the disadvantages arising from the nonissuance of a preliminary injunction with the subsequent finding
that the Federal Governments participation in the passing of the
decision by the Council was impermissible are less severe. CETA
does indeed contain provisions that could qualify the decision of the
Council on the provisional application as an ultra-vires act in the
principal proceedings. An encroachment on the constitutional
identity protected under Art. 79 sec. 3 GG can also not be ruled out.
aa) However, the Federal Government has stated that by means of
the final version of the Council decision in dispute and by means of
its own corresponding declarations (Art. 30.7 sec. 3 lit. b CETA),
exceptions to the provisional application can be made that at least
result in ensuring that the upcoming Council decision on the
provisional application of CETA should not qualify as an ultra-vires
act. To the extent that these reservations suffice, any concerns
regarding how the provision in question affects constitutional
identity should be dispelled. Moreover, the Federal Government has
made it clear that it will only lend approval in the Council to those
parts of CETA that lie beyond doubt within the competences
attributed to the European Union under primary law. According to
its submission, it will not approve the provisional application for
areas that remain subject to the competence of the Federal Republic
of Germany. This affects, in particular, the provisions on investment
protection, including the dispute settlement system (Chapters 8 and
13 CETA), on portfolio investments (Chapter 8 and 13 CETA), on
international maritime transport (Chapter 14 CETA), on the mutual
recognition of professional qualifications (Chapter 11 CETA) and on
labour protection (Chapter 23 CETA).
bb) Any encroachment on the constitutional identity (Art. 79 sec. 3
GG) brought about by the system of committees competences and
procedures can in the context of the provisional application at any
rate be countered in various ways. An inter-institutional
agreement, for example, might ensure that decisions taken by the
CETA Joint Committee pursuant to Art. 30.2 sec. 2 CETA may only be

passed on the basis of a common position (Art. 218 sec. 9 TFEU)

unani-mously adopted by the Council.
cc) If, contrary to the assumption of the Senate, the Federal
Government should not be able to, or foreseeably will not be able
to, undertake the courses of action it had proposed in order to avoid
a potential ultra-vires act or a violation of the constitutional identity
of the Basic Law (Art. 79 sec. 3 GG), it has, as a final resort, the
possibility of terminating the provisional application of the
Agreement for the Federal Republic of Germany by means of written
notification (Art. 30.7 sec. 3 lit. c CETA). This interpretation of the
norm, however, does not appear to be authoritative. However, the
Federal Government has stated that it is correct. It must therefore
declare, in a manner that has bearing in international law, that this
is its understanding and notify the other parties to the Agreement
accordingly.
http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteil
ungen/EN/2016/bvg16-071.html

Reference: 2 BvR 1368/16, 2 BvR 1444/16, 2 BvR 1823/16, 2 BvR

1482/16, 2 BvE 3/16

Additional Information and Outline

of the Oral Hearing in the CETA
Proceedings
Press Release No. 68/2016 of 29 September 2016
http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/E
N/Verhandlungsgliederungen/ceta_ea_mv.pdf?
__blob=publicationFile&v=2

The German Federal

Constitutional Court
confirms CETA

By: Dr. Max Oehm and Jan Frohlof October 18, 2016 Canada ,
Europe , Germany , International Investment , North America

LinkedIn10 Email0 Xing1

In its last weeks decision[1], the German Federal

Constitutional Court gave green light for the Comprehensive
Economic and Trade Agreement (CETA)[2] between the
European Union (EU) and Canada. CETA is one of the three
free trade agreements hotly debated in politics and industry
(the other two being TTIP[3] and TPP[4]). On 18 October
2016 the Council of the EU plans to adopt a package of
decisions on CETA[5], explicitly decisions which fall under the
exclusive competence of the EU. Once adopted and
consented to by the European Parliament, these parts of
CETA will quickly take effect on a preliminary basis, pending
ratification of the remaining CETA chapters by all EU Member
States.
Notably, the investment (protection) chapter of CETA[6]
including the investor-state dispute resolution provisions of the
agreement will not take preliminary effect. This is because this
chapter of CETA does not fall under the exclusive competence
of the EU but rather remains subject to the competence of the
Member States.

1.
The decision of the German
Federal Constitutional Court
The complaint against CETA was brought by more than
200,000 joint applicants, the largest number of applicants in
the history of the Court. The applicants argued that the
German representative in the Council of the EU should be
prohibited from signing CETA on 18 October 2016, because
signing CETA would violate German constitutional law.[7] The
joint applicants asked the Court for a preliminary injunction

under section 32 subsection 1 of the Federal Constitutional

Court Act.[8] In such cases, the Court weighs the possible
results of its action (i.e. issuing a preliminary injunction)
against the results of its inaction (i.e. refusing to issue a
preliminary injunction). In doing so, the Court applies a strict
approach.
The German Federal Constitutional Court decided to refrain
from issuing a preliminary injunction. The Court reasoned that
if the preliminary injunction were issued yet the Federal
Governments participation in passing the decision of the
Council on the provisional application of CETA is later found to
have been constitutionally permissible, the probability is high
that the general public would suffer severe disadvantages.
The Court identified such severe disadvantages in the risk that
a (preliminary) failure of CETA would have far-reaching effects
on the negotiation and conclusion of future external trade
agreements. Furthermore, the Court voiced its concern that it
seems evident that the issuance of a preliminary injunction
would have a negative effect on European external trade
policy and the international status of the European Union in
general.
The result of the Courts decision is that the German
representative in the Council of the EU (i.e. the German
Federal Minister for Economic Affairs and Energy) is allowed
to sign CETA on behalf of Germany during the meeting on 18
October 2016. Following this Council meeting, many parts of
CETA will take preliminary effect.

2.
Implications for the dispute
resolution provisions of CETA

However, while the German Federal Constitutional Court gave

green light for CETA in general, the Court stressed that the

investor-state dispute resolution provisions still have to wait at

a red light. The complex investor-state dispute resolution
mechanism under CETA, in essence, offers an investor the
following possibility to pursue its claim:
First, an investor can file its claim with a tribunal constituted
under Article 8.27 CETA, which particularly prohibits the
parties from choosing the members of their tribunal. Rather,
Article 8.27 CETA sets out detailed rules for the constitution of
the tribunal, most notably that The CETA Joint Committee
shall, upon the entry into force of this Agreement, appoint
fifteen Members of the Tribunal (i.e. a panel of CETA judges).
Five of the Members of the Tribunal shall be nationals of a
Member State of the European Union, five shall be nationals
of Canada and five shall be nationals of third countries.[9] Out
of this panel of judges, within 90 days of the submission of a
claim pursuant to Article 8.23, the President of the Tribunal
shall appoint the Members of the Tribunal composing the
division of the Tribunal hearing the case on a rotation basis,
ensuring that the composition of the divisions is random and
unpredictable, while giving equal opportunity to all Members of
the Tribunal to serve.[10]
Second, ICSID or UNCITRAL Arbitration Rules will generally
be the procedural rules governing proceedings. In this regard,
Article 8.23 subsection (2) CETA stipulates: A claim may be
submitted under the following rules:
(a) the ICSID Convention and Rules of Procedure for
Arbitration Proceedings;
(b) the ICSID Additional Facility Rules if the conditions for
proceedings pursuant to paragraph (a) do not apply;
(c) the UNCITRAL Arbitration Rules; or
(d) any other rules on agreement of the disputing parties.[11]
Third, the UNCITRAL Transparency Rules[12] will apply to

proceedings under CETA as Article 8.36 sets out. This

particularly includes that hearings shall be open to the public.
[13]
The German Federal Constitutional Court stressed in its
decision that it is able to deny the application for a preliminary
injunction because the provisions on investment protection,
including the dispute settlement system (Chapters 8 and 13
CETA) do not fall under the exclusive competence of the EU.
This means that these areas, in particular the dispute
resolution provisions in chapter 8, remain subject to the
competence of the Federal Republic of Germany. In
consequence, the dispute resolution provisions of CETA will
not take preliminary effect following the Council meeting on
18 October 2016 but rather face a political uphill battle in order
to be ratified in Germany (and all other EU Member States).
Only if ratified in all EU Member States, the dispute resolution
provisions in CETA will take effect. This ratification process is
expected to take up to five years, so the dispute resolution
provisions will most likely only take effect in 2021.

3.

Conclusion

Both the CETA supporters and critics, portray the decision as

a victory in the press. From a dispute resolutions lawyers
point of view, the decision leads in the right direction. The
Court, in general, gave green light for CETA and while CETAs
dispute resolution provisions are still waiting to take effect, it is
hard to image that these provisions could still fail ratification. If
the dispute resolution provisions would fail, most likely, CETA
would fail. And in the words of German Federal Constitutional
Court: The political consequences of a failure of CETA would
be a loss in reliability on the part of the Federal Republic of
Germany () and on the part of the European Union overall

which could have lasting negative effects for the scope of

action and decision-making of all European players in the
shaping of global trade relations. Hopefully, such a scenario
can be avoided.
[1] Decision dated 13 October 2016 2 BvR 1368/16, 2 BvR
1444/16, 2 BvR 1823/16, 2 BvR 1482/16, 2 BvE 3/16;
http://www.bundesverfassungsgericht.de/SharedDocs/Presse
mitteilungen/EN/2016/bvg16-071.html.
[2] The CETA text is available under
http://trade.ec.europa.eu/doclib/docs/2014/september/tradoc_
152806.pdf.
[3] TTIP stands for Transatlantic Trade and Investment
Partnership.
[4] TPP stands for Trans-Pacific Partnership.
[5] Meeting of the Foreign Affairs Concil Trade Issues,
Luxembourg, 18. October 2016,
http://www.consilium.europa.eu/en/meetings/fac/2016/10/back
groundtrade-council-18-october_pdf.
[6] Chapter 8.
[7] In particular, the applicants argued that Articles 38, 79 and
20 of the German Constitution (Basic Law for the Federal
Republic of Germany) would be violated. Article 38 subclause
(1) reads: Members of the German Bundestag shall be
elected in general, direct, free, equal and secret elections.
They shall be representatives of the whole people, not bound
by orders or instructions, and responsible only to their
conscience. Article 79 subclause (3) reads: Amendments to
this Basic Law affecting the division of the Federation into
Lnder, their participation on principle in the legislative
process, or the principles laid down in Articles 1 and 20 shall
be inadmissible. Article 20 subclauses (2) and (3) read: All
state authority is derived from the people. It shall be exercised

by the people through elections and other votes and through

specific legislative, executive and judicial bodies. (3) The
legislature shall be bound by the constitutional order, the
executive and the judiciary by law and justice.
[8] Section 32 subsection (1) of the Federal Constitutional
Court Act reads: In a dispute, the Federal Constitutional Court
may provisionally decide a matter by way of a preliminary
injunction if this is urgently required to avert severe
disadvantage, prevent imminent violence, or for other
important reasons in the interest of the common good.
[9] Article 8.27 subsection (2) CETA.
[10] Article 8.27 subsection (7) CETA.
[11] Article 8.23 subsection (2) CETA.
[12] UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration, available at
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/201
4Transparency.html.
[13] Article 8.36 subsection (5) CETA.

Council Directive 92/100/EEC of 19 November 1992 on

rental right and lending right and on certain rights
related to copyright in the field of intellectual property
OUNCIL DIRECTIVE 92/100/EEC of 19 November 1992 on rental right
and lending right and on certain rights related to copyright in the
field of intellectual property
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 57 (2), 66 and 100a thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee
(3),
Whereas differences exist in the legal protection provided by the
laws and practices of the Member States for copyright works and

subject matter of related rights protection as regards rental and

lending; whereas such differences are sources of barriers to trade
and distortions of competition which impede the achievement and
proper functioning of the internal market;
Whereas such differences in legal protection could well become
greater as Member States adopt new and different legislation or as
national case-law interpreting such legislation develops differently;
Whereas such differences should therefore be eliminated in
accordance with the objective of introducing an area without
internal frontiers as set out in Article 8a of the Treaty so as to
institute, pursuant to Article 3 (f) of the Treaty, a system ensuring
that competition in the common market is not distorted;
Whereas rental and lending of copyright works and the subject
matter of related rights protection is playing an increasingly
important role in particular for authors, performers and producers of
phonograms and films; whereas piracy is becoming an increasing
threat;
Whereas the adequate protection of copyright works and subject
matter of related rights protection by rental and lending rights as
well as the protection of the subject matter of related rights
protection by the fixation right, reproduction right, distribution right,
right to broadcast and communication to the public can accordingly
be considered as being of fundamental importance for the
Community's economic and cultural development;
Whereas copyright and related rights protection must adapt to new
economic developments such as new forms of exploitation;
Whereas the creative and artistic work of authors and performers
necessitates an adequate income as a basis for further creative and
artistic work, and the investments required particularly for the
production of phonograms and films are especially high and risky;
whereas the possibility for securing that income and recouping that
investment can only effectively be guaranteed through adequate
legal protection of the rightholders concerned;
Whereas these creative, artistic and entrepreneurial activities are, to
a large extent, activities of self-employed persons; whereas the
pursuit of such activities must be made easier by providing a
harmonized legal protection within the Community;
Whereas, to the extent that these activities principally constitute
services, their provision must equally be facilitated by the
establishment in the Community of a harmonized legal framework;
Whereas the legislation of the Member States should be
approximated in such a way so as not to conflict with the
international conventions on which many Member States' copyright
and related rights laws are based;
Whereas the Community's legal framework on the rental right and
lending right and on certain rights related to copyright can be
limited to establishing that Member States provide rights with
respect to rental and lending for certain groups of rightholders and
further to establishing the rights of fixation, reproduction,

distribution, broadcasting and communication to the public for

certain groups of rightholders in the field of related rights
protection;
Whereas it is necessary to define the concepts of rental and lending
for the purposes of this Directive;
Whereas it is desirable, with a view to clarity, to exclude from rental
and lending within the meaning of this Directive certain forms of
making available, as for instance making available phonograms or
films (cinematographic or audiovisual works or moving images,
whether or not accompanied by sound) for the purpose of public
performance or broadcasting, making available for the purpose of
exhibition, or making available for on-the-spot reference use;
whereas lending within the meaning of this Directive does not
include making available between establishments which are
accessible to the public;
Whereas, where lending by an establishment accessible to the
public gives rise to a payment the amount of which does not go
beyond what is necessary to cover the operating costs of the
establishment, there is no direct or indirect economic or commercial
advantage within the meaning of this Directive;
Whereas it is necessary to introduce arrangements ensuring that an
unwaivable equitable remuneration is obtained by authors and
performers who must retain the possibility to entrust the
administration of this right to collecting societies representing them;
Whereas the equitable remuneration may be paid on the basis of
one or several payments an any time on or after the conclusion of
the contract;
Whereas the equitable remuneration must take account of the
importance of the contribution of the authors and performers
concerned to the phonogram or film;
Whereas it is also necessary to protect the rights at least of authors
as regards public lending by providing for specific arrangements;
whereas, however, any measures based on Article 5 of this Directive
have to comply with Community law, in particular with Article 7 of
the Treaty;
Whereas the provisions of Chapter II do not prevent Member States
from extending the presumption set out in Article 2 (5) to the
exclusive rights included in that chapter; whereas furthermore the
provisions of Chapter II do not prevent Member States from
providing for a rebuttable presumption of the authorization of
exploitation in respect of the exclusive rights of performers provided
for in those articles, in so far as such presumption is compatible with
the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations
(hereinafter referred to as the Rome Convention);
Whereas Member States may provide for more far-reaching
protection for owners of rights related to copyright than that
required by Article 8 of this Directive;
Whereas the harmonized rental and lending rights and the

harmonized protection in the field of rights related to copyright

should not be exercised in a way which constitutes a disguised
restriction on trade between Member States or in a way which is
contrary to the rule of media exploitation chronology, as recognized
in the Judgment handed down in Socit Cinthque v. FNCF (4),
HAS ADOPTED THIS DIRECTIVE: CHAPTER I RENTAL AND LENDING
RIGHT
Article 1
Object of harmonization 1. In accordance with the provisions of this
Chapter, Member States shall provide, subject to Article 5, a right to
authorize or prohibit the rental and lending of originals and copies of
copyright works, and other subject matter as set out in Article 2 (1).
2. For the purposes of this Directive, 'rental' means making available
for use, for a limited period of time and for direct or indirect
economic or commercial advantage.
3. For the purposes of this Directive, 'lending' means making
available for use, for a limited period of time and not for direct or
indirect economic or commercial advantage, when it is made
through establishments which are accessible to the public.
4. The rights referred to in paragraph 1 shall not be exhausted by
any sale or other act of distribution of originals and copies of
copyright works and other subject matter as set out in Article 2 (1).
Article 2
Rightholders and subject matter of rental and lending right 1. The
exclusive right to authorize or prohibit rental and lending shall
belong:
- to the author in respect of the original and copies of his work,
- to the performer in respect of fixations of his performance,
- to the phonogram producer in respect of his phonograms, and
- to the producer of the first fixation of a film in respect of the
original and copies of his film. For the purposes of this Directive, the
term 'film' shall designate a cinematographic or audiovisual work or
moving images, whether or not accompanied by sound.
2. For the purposes of this Directive the principal director of a
cinematographic or audiovisual work shall be considered as its
author or one of its authors. Member States may provide for others
to be considered as its co-authors.
3. This Directive does not cover rental and lending rights in relation
to buildings and to works of applied art.
4. The rights referred to in paragraph 1 may be transferred,
assigned or subjet to the granting of contractual licences.
5. Without prejudice to paragraph 7, when a contract concerning
film production is concluded, individually or collectively, by
performers with a film producer, the performer covered by this
contract shall be presumed, subject to contractual clauses to the
contrary, to have transferred his rental right, subject to Article 4.
6. Member States may provide for a similar presumption as set out
in paragraph 5 with respect to authors.
7. Member States may provide that the signing of a contract

concluded between a performer and a film producer concerning the

production of a film has the effect of authorizing rental, provided
that such contract provides for an equitable remuneration within the
meaning of Article 4. Member States may also provide that this
paragraph shall apply mutatis mutandis to the rights included in
Chapter II.
Article 3
Rental of computer programs This Directive shall be without
prejudice to Article 4 (c) of Council Directive 91/250/EEC of 14 May
1991 on the legal protection of computer programs (5).
Article 4
Unwaivable right to equitable remuneration 1. Where an author or
performer has transferred or assigned his rental right concerning a
phonogram or an original or copy of a film to a phonogram or film
producer, that author or performer shall retain the right to obtain an
equitable remuneration for the rental.
2. The right to obtain an equitable remuneration for rental cannot be
waived by authors or performers.
3. The administration of this right to obtain an equitable
remuneration may be entrusted to collecting societies representing
authors or performers.
4. Member States may regulate whether and to what extent
administration by collecting societies of the right to obtain an
equitable remuneration may be imposed, as well as the question
from whom this remuneration may be claimed or collected.
Article 5
Derogation from the exclusive public lending right 1. Member States
may derogate from the exclusive right provided for in Article 1 in
respect of public lending, provided that at least authors obtain a
remuneration for such lending. Member States shall be free to
determine this remuneration taking account of their cultural
promotion objectives.
2. When Member States do not apply the exclusive lending right
provided for in Article 1 as regards phonograms, films and computer
programs, they shall introduce, at least for authors, a remuneration.
3. Member States may exempt certain categories of establishments
from the payment of the remuneration referred to in paragraphs 1
and 2.
4. The Commission, in cooperation with the Member States, shall
draw up before 1 July 1997 a report on public lending in the
Community. It shall forward this report to the European Parliament
and to the Council. CHAPTER II RIGHTS RELATED TO COPYRIGHT
Article 6
Fixation right 1. Member States shall provide for performers the
exclusive right to authorize or prohibit the fixation of their
performances.
2. Member States shall provide for broadcasting organizations the
exclusive right to authorize or prohibit the fixation of their
broadcasts, whether these broadcasts are transmitted by wire or

over the air, including by cable or satellite.

3. A cable distributor shall not have the right provided for in
paragraph 2 where it merely retransmits by cable the broadcasts of
broadcasting organizations.
Article 7
Reproduction right 1. Member States shall provide the exclusive
right to authorize or prohibit the direct or indirect reproduction:
- for performers, of fixations of their performances,
- for phonogram producers, of their phonograms,
- for producers of the first fixations of films, in respect of the original
and copies of their films, and
- for broadcasting organizations, of fixations of their broadcasts, as
set out in Article 6 (2).
2. The reproduction right referred to in paragraph 1 may be
transferred, assigned or subject to the granting of contractual
licences.
Article 8
Broadcasting and communication to the public 1. Member States
shall provide for performers the exclusive right to authorize or
prohibit the broadcasting by wireless means and the communication
to the public of their performances, except where the performance
is itself already a broadcast performance or is made from a fixation.
2. Member States shall provide a right in order to ensure that a
single equitable remuneration is paid by the user, if a phonogram
published for commercial purposes, or a reproduction of such
phonogram, is used for broadcasting by wireless means or for any
communication to the public, and to ensure that this remuneration
is shared between the relevant performers and phonogram
producers. Member States may, in the absence of agreement
between the performers and phonogram producers, lay down the
conditions as to the sharing of this remuneration between them.
3. Member States shall provide for broadcasting organizations the
exclusive right to authorize or prohibit the rebroadcasting of their
broadcasts by wireless means, as well as the communication to the
public of their broadcasts if such communication is made in places
accessible to the public against payment of an entrance fee.
Article 9
Distribution right 1. Member States shall provide
- for performers, in respect of fixations of their performances,
- for phonogram producers, in respect of their phonograms,
- for producers of the first fixations of films, in respect of the original
and copies of their films,
- for broadcasting organizations, in respect of fixations of their
broadcast as set out in Article 6 (2),
the exclusive right to make available these objects, including copies
thereof, to the public by sale or otherwise, hereafter referred to as
the 'distribution right'.
2. The distribution right shall not be exhausted within the
Community in respect of an object as referred to in paragraph 1,

except where the first sale in the Community of that object is made
by the rightholder or with his consent.
3. The distribution right shall be without prejudice to the specific
provisions of Chapter I, in particular Article 1 (4).
4. The distribution right may be transferred, assigned or subject to
the granting of contractual licences.
Article 10
Limitations to rights 1. Member States may provide for limitations to
the rights referred to in Chapter II in respect of:
(a) private use;
(b) use of short excerpts in connection with the reporting of current
events;
(c) ephemeral fixation by a broadcasting organization by means of
its own facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research.
2. Irrespective of paragraph 1, any Member State may provide for
the same kinds of limitations with regard to the protection of
performers, producers of phonograms, broadcasting organizations
and of producers of the first fixations of films, as it provides for in
connection with the protection of copyright in literary and artistic
works. However, compulsory licences may be provided for only to
the extent to which they are compatible with the Rome Convention.
3. Paragraph 1 (a) shall be without prejudice to any existing or
future legislation on remuneration for reproduction for private use.
CHAPTER III DURATION
Article 11
Duration of authors' rights Without prejudice to further
harmonization, the authors' rights referred to in this Directive shall
not expire before the end of the term provided by the Berne
Convention for the Protection of Literary and Artistic Works.
Article 12
Duration of related rights Without prejudice to further
harmonization, the rights referred to in this Directive of performers,
phonogram producers and broadcasting organizations shall not
expire before the end of the respective terms provided by the Rome
Convention. The rights referred to in this Directive for producers of
the first fixations of films shall not expire before the end of a period
of 20 years computed from the end of the year in which the fixation
was made. CHAPTER IV COMMON PROVISIONS
Article 13
Application in time 1. This Directive shall apply in respect of all
copyright works, performances, phonograms, broadcasts and first
fixations of films referred to in this Directive which are, on 1 July
1994, still protected by the legislation of the Member States in the
field of copyright and related rights or meet the criteria for
protection under the provisions of this Directive on that date.
2. This Directive shall apply without prejudice to any acts of
exploitation performed before 1 July 1994.
3. Member States may provide that the rightholders are deemed to

have given their authorization to the rental or lending of an object

referred to in Article 2 (1) which is proven to have been made
available to third parties for this purpose or to have been acquired
before 1 July 1994. However, in particular where such an object is a
digital recording, Member States may provide that rightholders shall
have a right to obtain an adequate remuneration for the rental or
lending of that object.
4. Member States need not apply the provisions of Article 2 (2) to
cinematographic or audiovisual works created before 1 July 1994.
5. Member States may determine the date as from which the Article
2 (2) shall apply, provided that that date is no later than 1 July 1997.
6. This Directive shall, without prejudice to paragraph 3 and subject
to paragraphs 8 and 9, not affect any contracts concluded before
the date of its adoption.
7. Member States may provide, subject to the provisions of
paragraphs 8 and 9, that when rightholders who acquire new rights
under the national provisions adopted in implementation of this
Directive have, before 1 July 1994, given their consent for
exploitation, they shall be presumed to have transferred the new
exclusive rights.
8. Member States may determine the date as from which the
unwaivable right to an equitable remuneration referred to in Article
4 exists, provided that that date is no later than 1 July 1997.
9. For contracts concluded before 1 July 1994, the unwaivable right
to an equitable remuneration provided for in Article 4 shall apply
only where authors or performers or those representing them have
submitted a request to that effect before 1 January 1997. In the
absence of agreement between rightholders concerning the level of
remuneration, Member States may fix the level of equitable
remuneration.
Article 14
Relation between copyright and related rights Protection of
copyright-related rights under this Directive shall leave intact and
shall in no way affect the protection of copyright.
Article 15
Final provisions 1. Member States shall bring into force the laws,
regulations and administrative provisions necessary to comply with
this Directive not later than 1 July 1994. They shall forthwith inform
the Commission thereof.
When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such
reference at the time of their official publication. The methods of
making such a reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the main
provisions of domestic law which they adopt in the field covered by
this Directive.
Article 16
This Directive is addressed to the Member States. Done at Brussels,
19 November 1992. For the Council

The President
E. LEIGH
(1) OJ No C 53, 28. 2. 1991, p. 35 and OJ No C 128, 20. 5. 1992, p. 8.
(2) OJ No C 67, 16. 3. 1992, p. 92 and Decision of 28 October 1992
(not yet published in the Official Journal). (3) OJ No C 269, 14. 10.
1991, p. 54. (4) Cases 60/84 and 61/84, ECR 1985, p. 2605. (5) OJ
No L 122, 17. 5. 1991, p. 42.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:31992L0100:EN:HTML

United Nations Convention on

Transparency in Treaty-based
Investor-State Arbitration (New
York, 2014) (the "Mauritius
Convention on Transparency")
Date of adoption: 10 December 2014
Entry into force
The Convention opened for signature in Port Louis, Mauritius,
on 17 March 2015, and thereafter at the United Nations
Headquarters in New York. The Convention will enter into force
six months after the deposit of the third instrument of
ratification, acceptance, approval or accession. For up-to-date
information about the parties to the Convention as well as
signatories, see the status page.
Purpose
The Convention is an instrument by which Parties to
investment treaties concluded before 1 April 2014 express
their consent to apply the UNCITRAL Rules on Transparency in
Treaty-based Investor-State Arbitration ("Rules on
Transparency" or "Rules"). The Rules on Transparency,
effective as of 1 April 2014, are a set of procedural rules for
making publicly available information on investor-State
arbitrations arising under investment treaties. In relation to
investment treaties concluded prior to 1 April 2014, the Rules
apply, inter alia, when Parties to the relevant investment
treaty agree to their application. The Convention is an efficient
and flexible mechanism for recording such agreement.
Key provisions

The Convention supplements existing investment treaties with

respect to transparency-related obligations. Article 2, a key
provision of the Convention, determines when and how the
Rules on Transparency shall apply to investor-State arbitration
within the scope of the Convention. In contrast to the Rules on
Transparency, whether the arbitration is initiated under the
UNCITRAL Arbitration Rules or not does not have any impact
on the application of the Convention. The general rule of
application is stipulated in paragraph 1 (bilateral or multilateral
application) and paragraph 2 refers to the application of the
Rules on Transparency when only the respondent State (and
not the State of the investor-claimant) is a party to the
Convention (unilateral offer of application).
A Party to the Convention has the flexibility to formulate
reservations, thereby excluding from the application of the
Convention a specific investment treaty or a specific set of
arbitration rules other than the UNCITRAL Arbitration Rules
(negative-list approach). A Party may also declare that it will
not provide a unilateral offer of application. Lastly, in the event
the Rules on Transparency are revised, a Party may also
declare, within a limited period of time after such revision, that
it will not apply that revised version. By defining specific
timing for the formulation and withdrawal of reservations, the
Convention provides the necessary level of flexibility, while
ensuring that reservations cannot be used to defeat the
purpose of the Convention.
The Convention and any reservation thereto apply
prospectively, that is to arbitral proceedings commenced after
the entry into force of the Convention for the Party concerned.
Together with the Rules on Transparency, the Convention takes
into the account both the public interest in such arbitration and
the interest of the parties to resolve disputes in a fair and
efficient manner. The Convention foresees the SecretaryGeneral of the United Nations as performing the repository
function, through the UNCITRAL secretariat (see the
Transparency Registry).
United Nations Convention on Transparency in
Treaty-based Investor-State Arbitration
https://documents-ddsny.un.org/doc/UNDOC/GEN/N14/686/64/PDF/N1468664.pdf?OpenElement

The CETA text is available under

OMPREHENSIVE ECONOMIC AND TRADE AGREEMENT (CETA) BETWEEN

CANADA, OF THE ONE PART,
AND THE EUROPEAN UNION
[AND ITS MEMBER STATES,
THE KINGDOM OF BELGIUM,
THE REPUBLIC OF BULGARIA,
THE CZECH REPUBLIC,
THE KINGDOM OF DENMARK,
THE FEDERAL REPUBLIC OF GERMANY, THE REPUBLIC OF ESTONIA,
IRELAND,
THE HELLENIC REPUBLIC, THE KINGDOM OF SPAIN, THE FRENCH
REPUBLIC, THE REPUBLIC OF CROATIA, THE ITALIAN REPUBLIC, THE
REPUBLIC OF CYPRUS, THE REPUBLIC OF LATVIA,
1
THE REPUBLIC OF LITHUANIA,
THE GRAND DUCHY OF LUXEMBOURG,
HUNGARY,
THE REPUBLIC OF MALTA,
THE KINGDOM OF THE NETHERLANDS,
THE REPUBLIC OF AUSTRIA,
THE REPUBLIC OF POLAND,
THE PORTUGUESE REPUBLIC,
ROMANIA,
THE REPUBLIC OF SLOVENIA,
THE SLOVAK REPUBLIC,
THE REPUBLIC OF FINLAND,
THE KINGDOM OF SWEDEN,
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND],
OF THE OTHER PART,
hereafter jointly referred to as the Parties,

http://trade.ec.europa.eu/doclib/docs/2014/september/tra
doc_152806.pdf

Germany Enforcement of IP rights by the ... Preliminary

injunction proceedings, ... be borne by the unsuccessful
party, unless

http://www.buildingipvalue.com/07EU/p.189-191%20Germany.pdf

Invalid but Infringed? An Analysis of Germanys Bifurcated Katrin Cremersa

Patent Litigation System
http://webmeets.com/files/papers/EARIE/2014/568/Cremers_et_alInvalid_but_infringed-062014.pdf

Ireland s new competition law ... International Competition

Network s guiding principles for merger notification and r
eview. ... and discriminates against

A competition policy for

the WTO.
WTO may yet embrace competition policy
EC merger law develops failing firm defence
UK Enterprise Act - procedural deficiencies, trap for
company directors
European Court on rule of reason, TV rights, mergers,
searches
Measuring profits from antidumping protection What users
think of CFIs fast track procedure
www.eccompetitionlaw.com/insight
Editorial Board
William Bishop Chairman, Lexecon Ltd, London
Alec Burnside Partner, Linklaters, Brussels
Claus Dieter Ehlermann Senior Counsel, Wilmer Cutler &
Pickering, Brussels
Leo Flynn Legal Service, European Commission
Judge Nicholas Forwood Court of First Instance of the
European Communities
Stephen Kon Partner, SJ Berwin, London
Valentine Korah Professor Emeritus of Competition Law,
University College London
Alex Nourry Partner, Clifford Chance, London
Nigel Parr Partner, Ashurst Morris Crisp, London
Michael J Reynolds Partner, Allen & Overy, Brussels

Dirk Schroeder Partner, Linklaters, Oppenhoff & Rdler,

Cologne
John H Shenefield Partner, Morgan Lewis & Bockius,
Washington
Mario Siragusa Partner, Cleary, Gottlieb, Steen & Hamilton,
Rome and Brussels
Franois Souty Conseil de la Concurrence, Paris, Counsel
for Multilateral Affairs
John Temple Lang Cleary, Gottlieb, Steen & Hamilton,
Brussels and London
Stephen Walzer Assistant General Counsel, British
American Tobacco PLC, London
Mark A A Warner Hughes Hubbard & Reed, LLP, New York
Competition Law Insight November 2002
1
Contents
2 Welcome to Competition Law Insight
3 Trade and competition: Interview with Frdric Jenny
6 Competition policy at the WTO - Philip Marsden
9 CFI judgments: Schneider Electric and Tetra Laval
11 Failing firm defence - Diana Jackson
15 Procedural safeguards under new UK merger regime Nigel Parr
17 Disqualification of company directors under Enterprise
Act - Jane Whittaker and Frances Graupner
20 Irelands new competition law - Helen Kelly
21 EU-US cooperation in merger investigations
22 Judgment on open skies agreement
23 Commissions powers of search - Roquette Frres
24 Apparent inconsistency at court on rule of reason Valentine Korah
26 Commission loses Eurovision contest (again) - Alasdair
Bell and Peter Turner-Kerr
28 Taxation and state aid - Conor Quigley
30 Data protection versus openness of public proceedings
31 US extraterritorial jurisdiction over London auction
houses - the Kruman case, Commission fines them
32 Antidumping protection raises market power - new
CEPR discussion paper
33 Antidumping habits
34 Survey of CFIs fast track procedure
ISSN 1478-5188

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Competition Law Insight
Welcome to Competition Law Insight.Why do we need a
new journal in what must surely be one of the best
documented fields of law and policy?
There has rarely been a time during which so much is
changing in the law and economics of competition policy.

In Europe, proposals to reform the EC Merger Regulation

are promised by the end of the year. The EU Council is
expected to pass the draft regulation that will replace the
system of prior approval for agreements on 26 November.
EU member states
Few are not doing something to change their competition
regimes. Ireland will start working a merger control system
based on the substantial lessening of competition test on
1 January 2003.
Not far behind, the UK Enterprise Act will follow during
2003 with its new merger control regime, which is likely to
be on the statute book by the end of November. This Act
will also introduce criminal prosecution for cartel
behaviour, but this may prove to be a lesser threat for
most companies than the power to disqualify directors for
competition law violations by the company.
Ireland has already moved away from a notification
system for agreements. At present, it is the only EU
country that has criminal penalties for violations of
competition law, but no significant use has yet been made
of this enforcement facility.
Austria has had a new unified Competition Authority since
1 July 2002. The legislation setting up a new
authority in Portugal was finally approved on 31 October.
Spain acquired a new regional competition authority for
Catalonia in September. Others are expected to follow, for
example in the Basque Country.
Eight of the candidate countries have provisionally agreed
on the competition policy chapter of their accession
negotiations, most recently the Czech Republic and
Slovakia, in October 2002. The chapter is still open in
relation to Bulgaria, Hungary, Poland and Romania.
North America
The discussions on intellectual property
and competition policy that have been chaired by the two
US federal competition agencies are expected to yield
conclusions in December or January.
Canada has had a new Competition Act since 21 June
2002. It reforms the Competition Tribunal and facilitates
international cooperation.
Transatlantic
The EU and US competition authorities have negotiated

best practice guidelines for coordinating investigations

where mergers have to be notified on both sides of the
Atlantic.
Although this is not strictly speaking a competition policy
issue, the European Courts ruling on 5 November that
eight EU countries bilateral open skies agreements with
the US are unlawful will be of interest to many readers - as
travellers if not as advisers to airlines.
International
Relations between trade and competition have grown
warmer since the Doha Declaration in November 2001.
Although there is none yet, an agreement no longer looks
as if it is ruled out.
Marked progress was also made during the discussions
among 72 competition authorities about various merger
issues at the International Competition Networks
conference in September.
Keeping abreast
All this is in addition to the unceasing flow of decisions,
judgments, laws and regulations that the worlds
competition authorities, courts, governments and
legislators are constantly issuing.
We will try to bring you the news as quickly and readably
as is possible with a monthly publication schedule. We also
hope to bring you that news with a certain ring of
authority. For this, we are most grateful for the
contribution that has been made by our distinguished
Editorial Board.
The contributors
Most of all, of course, we would like to thank the authors
who have laboured to contribute to this inaugural issue.
Between them they have covered a wide range of hot
issues.
EC merger plans
Commissioner Monti made history by holding a press
conference after the third judgment from the Court of First
Instance in five months to strike down his Directorates
decisions prohibiting mergers in the EU. This tribute to the
accountability of EU government to the European public
deserves warm applause, irrespective of what he said.
However, what he said made a lot of sense too. The new
Director General of Competition, Philip Lowe, will take

responsibility for management supervision of the merger

process for the time being.A deputy DG for mergers will be
appointed eventually. A chief economist will also be
appointed.
The substance of the reform will be presented for
consultation in three parts: review of the Regulation and
procedure; guidelines on the assessment of dominance;
and best practice guidelines. This last will include:
formalisation of peer review in the investigation,
exposing provisional plans on how to deal with a merger to
a new set of eyes within the bureaucracy
systematisation of state-of-play meetings between the
Commission and the parties at various stages during an
investigation
improved access to the Commissions file, notably by
immediately informing the parties when comments or
complaints are received from outside sources
enhancing the Directorates economic capabilities by
appointing a chief economist (recruitment of a number of
economists is already under way)
The use of a devils advocate within the Directorate will
be used to test the Commissions case in complex and
problematic mergers.
This mechanism has already been used for the ocean
cruise and German newsprint decisions earlier this year.
Both of these resulted in the mergers being cleared.
The advocate may have helped the Commission remain
earthbound.
2
Competition Law Insight November 2002
Introduction
Trade and competition
The possibility that the World Trade Organisation will
eventually be home to an agreement on competition
policy has come nearer in the past year. Frdric Jenny,
who chairs the WTO group that has been studying this
topic since 1997, has spoken to Competition Law Insight
about this, as well as about European competition policy.
Philip Marsden of Linklaters has written about the WTO
developments from a practitioners perspective. While
some problems in the negotiation remain, the tangible

plans now under discussion merit close scrutiny.

Interview with Frdric Jenny
Professor Jenny talked to Competition Law Insight on 28
October about trade and competition policy, and how the
two relate to each other
Frdric Jenny is Vice-Chair of the Conseil de la
Concurrence, France, Chair of the OECD Competition
Committee, Chair of the WTO Working Group on the
Interaction between Trade and Competition, and Professor
of Economics at Essec
WTO working group
Why did the WTO set up this group?
As you know, the EU proposed an agreement on
competition in the context of the Doha round.
Each country would have a competition law.
All the competition laws would have a provision prohibiting
hard core cartels.
All national legislation would respect the principles of nondiscrimination, transparency and due process; there would
be a mechanism of voluntary cooperation between
competition authorities to fight transnational cartels;
technical assistance would be provided to countries with
little experience of competition law.
A working group was created in the context of the WTO on
the interaction between trade and competition policy.
The mandate of the working group is not to negotiate an
agreement, but to educate the members of the WTO so
that they can better assess the possible usefulness of
competition law and of a multilateral agreement on
competition.
The group still has some work to do, but
it has been successful in advancing the debate on trade
and competition.
Work programme
How far has it come since 1997?
Now the group has moved from general ideas to a much
more pragmatic phase.We were greatly helped in this by
the Doha Declaration. There will be one or two meetings
next year, since we are not quite finished with the our
work yet.
At Doha, two important developments occurred with
respect to trade and competition.

First, article 23 of the Doha ministerial declaration

recognises the case for a multilateral framework to
enhance the contribution of competition policy to
international trade.
Second, article 25 of the Doha declaration gave the
working group a mandate that was very specific - to
further study four items which would have to be examined
if negotiations were to start at the next ministerial.These
items are:
technical assistance to support the progressive
reinforcement of competition institutions in developing
countries,
provisions on hard core cartels,
modalities for voluntary cooperation,
and
how to apply the WTO principles of
non-discrimination, transparency and due process to
competition.
What was most interesting was that this mandate was
very precise.
Since then, what we have done is to look at the four issues
mentioned in the Doha declaration, starting with technical
assistance and then, in July, hard core cartels and
cooperation.
In September, we looked at how the WTO principles could
be applied to the competition law matter.
The parameters of the discussion are now clear although
there is not necessarily any agreement yet on whether or
not negotiations on a multilateral agreement on
competition should start.
We will see what the ministers decide at the Cancun
meeting next September or October.
Competition policy for developing countries
Has the concept of an agreement on competition now
become more acceptable?
Besides the work mandate given to the working group by
the Doha declaration, it is also important to note that
there has been a growing realisation in developing
countries that transnational hard-core cartels could hurt
their foreign trade activity and their economic
development.
Developing countries may be prevented from gaining

access to some markets by such practices but, even more

important, they may be penalised in their purchasing
capacity when buying on the international market.
There are still countries that have reservations about
establishing a domestic competition law regime - a
necessary step according to the proponents of a
multilateral agreement on competition - because they feel
either that they are too
Competion Law Insight November 2002
3
Interview with Frdric Jenny
small or that they are not yet developed enough, or a
combination of the two.
In the debate, the EU has indicated that what it considers
to be important is that all countries should be covered by
a competition law regime.
This is not quite the same thing as saying that every
country should have a competition law regime itself.
In the working group we have looked at the cost of
competition law enforcement in small or developing
countries.
It was noted that setting up regional competition
authorities could be be a way to decrease the cost of
competition law enforcement for small developing
economies. Thus, regional agreements on competition
may be complementary with a multilateral framework.
There are interesting attempts to deal with the
competition law issues at regional level in both Caricom
for the Caribbean countries and in Comesa in Africa.
Differential treatment
How will the different needs of different economies be
taken into account?
An important question, which needs to be further
considered, is the nature of special and differential
treatment for developing countries in the context of a
multilateral agreement on competition.
Some countries will need time to adjust because they are
not yet familiar with competition law or are not yet quite
ready for it. Some countries will need to combine proactive policies (such as industrial policy) with competition
policy.

It should be noted that the working group has been

concerned only with the control of anti-competitive hardcore cartels undertaken by firms on their own initiative
and not with government sponsored cartels such as OPEC.
Government subsidies have not been examined by the
working group and are outside the scope of our
discussions.
But there are at least two issues that deserve to be further
explored.
Exemption
First, assuming that countries commit themselves to
having an effectively enforced competition law, to what
extent could they have exemptions or exceptions?
For example, to what extent would exemption of small
firms or of certain
industries be considered to be contradictory with the
principle of non- discrimination? What would be required
to make those exemptions compatible with the WTO
principles of national treatment and most favoured nation?
Modalities
Second, what should the modalities of negotiations of a
multilateral agreement on competition be?
We have not talked much about this in the working group,
as it is an issue which will be examined in the preparatory
process of the Cancun ministerial in the General Council of
the WTO.
There may be procedural modalities, such as the optin/opt-out option which was, unsuccessfully, proposed by
the EU in the past.
There may be substantive modalities, such as the fact that
cooperation should remain purely voluntary.
But modalities will have to be defined to increase the level
of comfort of developing countries which are not yet
convinced of the necessity of a multilateral agreement on
competition.
Overall progress
Has the possibility of a competition policy at global level
come closer?
Altogether there has been a significant clarification on
what the negotiations of a multilateral agreement on
competition would imply, and some advance on the issue
of whether it would be appropriate to include the

competition discipline in theWTO.

Some countries that previously either had not expressed
themselves at all or had expressed reservations seem to
be more positively inclined.
I am thinking, for example, of Thailand, which has lately
been very active in the debate. China spoke for the first
time at the last meeting.
Australia and New Zealand seem to be more interested in
this issue than they once were.
Simultaneously, as a result of the work done in connection
with the group, though not necessarily in it, such as the
forums that the WTO and UNCTAD have organised, some
developing countries, which originally did not consider
that the competition issue was so important at the
multilateral level, now
realise that they may be potential victims of international
cartels.
Governance in globalised markets
What would be its purpose?
To the extent that trade liberalisation creates global
markets, what governments try to do in opening markets
should not be countermanded by private practices that
divide world markets, prevent market access and deprive
trading nations of the benefits of trade.
But before there is an agreement on introducing
competition rules in the multilateral system, more work is
needed on the issue of the complex relationship between
competition and economic development.
International Competition Network
Do you see any role for the ICN in relation to the WTOs
work?
The ICN and the WTO have different focuses but they are
quite complementary.
Firstly, the ICN is looking at how to promote the
convergence of domestic laws, in particular as regards
procedural aspects of merger control.
The proponents of a multilateral agreement on
competition in the WTO have a different agenda.They are
trying to promote a cooperative agreement that would
enable competition authorities in different countries to
cooperate with each other to fight transnational hard-core
cartels.

Secondly, the ICN is an association of competition

authorities and not an intergovernmental organisation like
the WTO.
Thirdly - and this is where the work at the ICN can be very
useful in the context of the discussions at the WTO - the
ICN has given some thought to the question of how the
principles of non-discrimination, transparency and due
process should be applied in the area of merger control
and has made recommendations in this area.
The proponents of a multilateral agreement in the WTO
suggest that these same principles should also be applied
to other provisions of domestic competition laws and, in
particular, to provisions against hard core cartels.
European competition law
October has not been a good month for the Commission.
What would you say about the recent Court judgments on
merger decisions?
4
Competition Law Insight November 2002
First, three adverse judgments concentrated into five
months create an illusion that should not obscure the
record
of the past 12 years.
Second, the Court of First Instance is now able and
willing to exercise closer control in the merger field and
many will
see this, even within the Commission, as a positive
development.
Three aspects of the recent CFI decisions must be given
particular attention:
In Airtours, the Commission was told that it could not
selectively interpret the facts, choosing some and ignoring
others.
In Schneider, the CFI emphasised the importance of due
process, in particular the need for the Commission to
clearly inform the parties of the competitive concerns that
the notified merger raises.
In Tetra Laval, the CFI did not
challenge the economic reasoning of the Commission but
it raised the standard of proof for the Commission.
The Commission has been given a clear indication of what

needs to done to secure better economic analysis, better

procedures and greater respect for the rights of the
parties.
International Competition Networks guiding principles for
merger notification and review
These principles were drawn up by the Notification and
Procedures Subgroup of the Mergers Group of the
International Competition Network.
They were adopted by the ICNs conference at Naples on
29 September 2002.
1. Sovereignty. Jurisdictions are sovereign with respect to
the application of their own laws to mergers.
2. Transparency. In order to foster consistency,
predictability, and fairness, the merger review process
should be transparent with respect to the policies,
practices, and procedures involved in the review, the
identity of the decision- maker(s), the substantive
standard of review, and the bases of any adverse
enforcement decisions on the merits.
3. Non-discrimination on the basis of nationality. In the
merger review process, jurisdictions should not
discriminate in the application of competition laws and
regulations on the basis of nationality.
4. Procedural fairness. Prior to a final adverse decision on
the merits, merging parties should be informed of the
competitive concerns that form the basis for the proposed
adverse decision and the factual basis upon which such
concerns are based, and should have an opportunity to
express their views in relation to those concerns.
Reviewing jurisdictions should provide an opportunity for
review of such decisions before a separate adjudicative
body. Third parties that believe they would be harmed by
potential anticompetitive effects of a proposed transaction
should be allowed to express their views in the course of
the merger review process.
5. Efficient, timely, and effective review. The merger
review process should provide enforcement agencies with
information needed to review the competitive effects of
transactions and should not impose unnecessary costs on
transactions. The review of transactions should be
conducted, and any resulting enforcement decision should
be made, within a reasonable and determinable time

frame.
6. Coordination. Jurisdictions reviewing the same
transaction should engage in such coordination as would,
without compromising enforcement of domestic laws,
enhance the efficiency and effectiveness of the review
process and reduce transaction costs.
7. Convergence. Jurisdictions should seek convergence of
merger review processes toward agreed best practices.
8. Protection of confidential information. The merger
review process should provide for the protection of
confidential information.
Charles James, Assistant Attorney General for the Antitrust
Division, United States Department of Justice, introduced
the guiding principles as follows:
I believe that adherence to the proposed Guiding
Principles and Recommended Practices ... will make the
merger review process significantly more efficient and
effective for enforcers, while at the same time reducing
delay and investigative burdens on merging firms in a
wide range of transactions. [...]
I agree with the Subgroup that we
should have in place effective mechanisms for judicial
review. In the US system, the principal check on our
enforcement powers is that we cannot prevent a
transaction from being concluded unless we go to federal
court to obtain an injunction.
Of course, other jurisdictions with different legal systems
and traditions use quite different institutional
arrangements to enforce their antitrust laws.
But, whatever system a jurisdiction uses, I believe that
meaningful and timely judicial review enforces critical
discipline on the process and instills public confidence in
our decisions.
Konrad von Finckenstein, QC, Commissioner of
Competition, Competition Bureau of Canada, said of the
ICNs work:
In establishing the ICN, much care was taken to ensure
that we would not duplicate the work underway in fora
such as the OECD, WTO, or UNCTAD. As you know, we
have a different vision and different membership base
than those organisations, and our focus is all competition,
all the time. ... Our more limited focus, as well as the

more formal institutional structures of the other fora,

means that we have not undertaken any formal coordination in terms of our work programs.
However, we have had useful, informal discussions with
representatives from the OECD, UNCTAD, and the WTO to
ensure that the ICNs work does not substantially duplicate
that of other fora. In my opinion, the goals of all four
organizations are complementary and are not adverse to
each other.
Competition Law Insight November 2002
5
Interview with Frdric Jenny
Competition policy at the
WTO
Not the end, but the end of the beginning
By Philip Marsden, Linklaters*
When members of the World Trade Organisation (WTO)
met in Doha last November, they were focused solely on
avoiding a repeat of the failed launch two years before in
Seattle of a new round of trade negotiations.
To ensure success, they had to do two things. First, any
agreement they reached had to display a great deal more
recognition of the concerns of developing countries. Many
of these nations representatives felt that their
counterparts from the North pre-agreed all the important
WTO obligations and simply dictated them to the rest.
Second, agreement on issues that were clearly
contentious had to be postponed so that members could
focus on what was possible, rather than what might seem
ideal.
Both these approaches strongly influenced the way that
WTO members dealt with demands for a multilateral
framework of competition rules.
Developing concerns
To implement the first approach, negotiators blanketed the
Ministerial Declaration with references to the concerns of
developing countries, and even agreed to call the round
itself the Doha Development Agenda. Since the proposals
for multilateral competition rules had been quite
controversial - and had been opposed by many developing
countries - the second approach was also required: a firm

decision to launch negotiations in this area just had to be

postponed.
Most developing countries accepted that
governments should provide a competition law framework
of some sort so as to ensure that companies did not
replace the public protectionist measures, recently
negotiated down, with new private barriers to foreign
competition.
However, many developing countries believed that the
demands for multilateral competition law standards were
also motivated by a concern to help multinationals,
headquartered in the North, to break into their economies,
without any concern for the effect that this might have on
workers and small industries in their markets.
Thus, some developing countries wanted assurances that
the market access focus inherent in WTO commitments
would be tempered by public interest concerns; others
thought that the best security of all was to refuse to enter
into any negotiations at all.
Doha Declaration of Intent
Negotiators had to find a way to deal with the competition
issue in a positive manner. After all, members had been
discussing the subject at the WTO Working Group on the
Interaction of Trade and Competition Policy for nearly six
years. With many tiring of having to send delegates to
Geneva to attend these meetings, there was a real risk
that those talks would simply roll to a stop unless a
forward-looking mandate was agreed.
In Doha, ministers therefore began by agreeing some very
general text about the importance of a multilateral
competition law framework to international trade and
development. The WTO Working Group
itself would continue its discussions, with a view to
preparing for negotiations, by focusing on two areas:
clarifying core principles, such as non-discrimination,
transparency, and procedural fairness, and
considering an agreement whereby governments would
ban hard-core cartels and co-operate with one another in
law enforcement.
The needs of the developing countries received another
special mention through assurances of technical
assistance and support in capacity building that would

make them more aware of the benefits of closer

enforcement cooperation.
Ministers also provided a time-line of sorts: the actual
negotiation of competition rules would begin after the
next ministerial meeting in Cancun at the end of 2003.
Precisely when this negotiation would start, though, was
left open. It was this particular ambiguity that created the
first fracas between developing and developed countries.
The right of veto
As ever, European representatives were bullish about the
prospect of agreement. Mario Monti recently noted that
the EU expected to open formal negotiations on a
Multilateral [Competition] Agreement immediately after
the meeting in Cancun. He was also confident that the first
formal agreement can see the light of day in 2005.This
show of confidence is a touch undermined, however, by
the reality of what was agreed in Doha.
* Philip Marsden is a solicitor in the European
competition, regulatory and trade law group at Linklaters,
London. His forthcoming book - A Competition Policy for
theWTO - is to be published by Cameron May in spring
2003.
6
Competition Law Insight November 2002
Developing and other countries had insisted that the
actual decision to launch negotiations after Cancun
would require explicit consensus on the precise
modalities of those negotiations. The Chairman of the
Doha Ministerial made it crystal clear that this
requirement gave each member the right to take a
position on modalities that would prevent negotiations
from proceeding ... until that member was prepared to join
in an explicit consensus.
Modalities of negotiations may sound mechanical but
they are not unimportant. They can include not only the
procedures for the negotiations themselves but also the
extent, scope and application of any commitments that
might result.
Modalities determine whether such commitments would
be multilateral and, therefore, be accepted by all
members, or plurilateral, with members signing up as they

saw fit.They can address the role and weight that should
be given to members submissions during the
negotiations, should they choose not to sign up to an
eventual accord.
How all of this will work in practice has to be agreed
before any talks of substance can begin. Until that time,
any one member could prevent the launch of negotiations
on competition matters. Nor in fact is it necessarily the
developing world that will strike the fatal blow.
Canadian representatives, for example, have indicated
that they might object, if only because proceeding with a
plurilateral accord flies in the face of the truly global
competition rules that they believe are necessary.
A pragmatist might think that with the Damoclean sword
of this veto hanging over the negotiating table, members
would not bother talking about anything substantive at
all.This is where the twist in the story lies. As it turns out,
the threat of nothing coming out of all the efforts to date
appears to have galvanised governments into engaging in
the most detailed and practical talks yet.
The wish-list ...
Many of the subjects on the agenda have already been
discussed at length over the past three years at the WTO
Working Group. However, this has only been at a relatively
high level of rhetoric. For example, all participants seem to
agree that
competition laws should not be enforced in a manner that
favours domestic firms and discriminates against their
foreign competitors.
This is even accepted by the EU, despite the fact that its
Merger Task Force had seemed overly keen to embrace
the objections that Airbus had made about the
Boeing/MDD merger, as well as Rolls Royces complaints
about the GE/Honeywell deal.
This past summer, however, WTO members have
discussed in detail the practicalities of how competition
laws and enforcement may have to be adjusted in order to
comply with WTO commitments, and how WTO
commitments themselves may have to be altered to
enable them to embrace competition law issues.
A non-discriminatory competition law
The first proposed commitment is for the text of

competition laws not to be discriminatory. While this would

seem to be a relatively innocuous provision, there are a
number of interesting aspects to it.
First of all, it is not clear why such a commitment is
necessary. Article III of the GATT and Article XVII of the
GATS already require that public measures (including
competition laws) not be discriminatory on their face, and
also - and more importantly - not discriminate in fact.
Some may argue that there are so many ways that
businesses may discriminate against one another that a
specific non-discrimination commitment for competition
law itself is needed. This is doubtful. The ways of business
may be many but, in the end, discrimination is
discrimination. The existing WTO commitments cover
much more than the additional commitment that is
being requested.
What is more interesting is how a commitment not to
discriminate would address measures that may appear to
be discriminatory but are not in fact. For example, as a
recent US submission has noted, a competition authority
may allow a merger of domestic firms if the efficiencies
produced by the deal compensate for any resulting
lessening of competition. However, the same authority
may prohibit the merger of foreign firms operating in
precisely the same market,
because the efficiencies their deal produces are all foreign
to the jurisdiction in question, and thus do not offset the
anti- competitive effect there. Allowing one deal while
blocking the other is not discrimination but a result of a
different economic effect.
Are we to allow members to bring complaints to the WTO
to test the economics of particular cases or enforcement
policies? A better answer is surely a requirement of
transparency: requiring competition authorities to provide
clear reasoning for their decisions, so that all affected
parties can understand the nature of the analysis
employed.
Transparent decisions
Under Article X of the GATT, WTO members are already
required to publish explanations of how their laws are to
be interpreted and applied, as well as reasons for their
judicial decisions or administrative rulings.

Again, it would seem that a specific commitment for

competition law decisions would be superfluous. Any
further requirement specific to competition law would
appear to risk taxing already over-burdened governments
or those with scarce resources, such as developing
countries.
It would also fly in the face of Article Xs additional
commitment that such publication will not require the
disclosure of confidential information that could impede
law enforcement, or otherwise prejudice the legitimate
commercial interests of companies.
Either considerable negotiation will be required to tailor a
transparency obligation to the peculiar aspects of
business/government interaction that comprise
competition policy and which differs drastically between
jurisdictions (a seemingly hopeless task) - or trade
negotiators should leave well alone.
Procedural fairness
The suggestion of a commitment to a procedurally fair
competition law seems reasonable but, among so many
different legal systems, with myriad forms of procedure,
let alone notions of fundamental fairness, the likelihood of
agreement is either small, or one that can only be
minimalist at best.
A bare commitment would not provide
Competition Law Insight November 2002
7
Competition policy at the WTO
the guidance that is sought, and it might well create the
opportunity for strategic challenges of particular decisions,
distracting many authorities from the job at hand. The EU
has said that companies should at least have access to
competition authorities, but the Americans have been
right to ask what this means.
Should all companies have a right to be heard by a
competition authority, a right to a formal meeting and a
right to be answered formally? This all sounds nice, but it
does not come without a price.After all, many highlyadvanced and relatively well-funded competition
authorities receive and deal with many thousands of
complaints a year, and are only able to do so effectively

by addressing many of these with a mere phone call.

Another consideration is whether the same right of access
should be accorded to competitors and downstream
customers of merging parties, let alone other third parties
like employees and others affected by the deal, albeit not
in the traditional antitrust sense.
Banning hard-core cartels
The proposal for members at least to agree to ban cartels
is an obvious one to have on the agenda. Cartels can exert
a pernicious effect on world trade, elevating prices in
some jurisdictions while dividing markets.
Unfortunately, governments have not found it easy to
agree on what constitutes a hard-core cartel. Much work
on this has already been done by OECD members, who
have committed to prohibit and co-operate in prohibiting
such arrangements. The US has implicitly made the
pragmatic point that WTO members should at least begin
their negotiations with the OECD definition of a hard-core
cartel. However, even if developing countries agreed to
begin with text pre-agreed at a table of developed
economies, even these terms are not without exceptions
and carve-outs, particularly regarding the extent to which
authorities may help each other, if at all.
To help focus the mind, the US has suggested that WTO
members should at
least be prepared to back up their cartel prohibitions with
the same penalties that they apply to crimes of corruption,
fraud or embezzlement.
Enforcement co-operation
The suggestion that governments multilateralise their
existing bilateral agreements to help each other address
anti-competitive activity is an interesting one. Of course,
as a practical matter, it runs right into the problem that
enforcement capabilities around the world differ
considerably: some members do not even have a
competition law, let alone an authority to enforce it.
Nevertheless, members have made interesting points
about how enforcement co-operation would operate in
practice. The Australians, while supporting more cooperation, have argued that deep co- operation - possible
between competition authorities that have a relationship
of trust built on years of interaction and formal

mechanisms for information exchange - simply cannot be

offered to members whose competition regime is only at a
rudimentary stage.
This reality could well conflict with the fundamental WTO
commitment of most- favoured-nation treatment, which
requires that what you offer to one trading partner, you
offer to all. Which will bend - the existing commitment in
WTO law, or the nature of enforcement co-operation?
If it is to be the latter, then it seems obvious that
businesses will have a right to be concerned that certain
aspects of enforcement cooperation - particularly the
exchange of confidential information - should not be
allowed to occur, or at least not without stringent
assurances regarding the use to which that information
can be put.
Unfinished business ...
The considerations listed above are not suggested simply
to imply that agreement of some sort is impossible. They
merely identify the challenges, and attempt to ensure that
WTO members have a clear grasp of the practical
implications of their decisions, before they agree to any
commitments. After all, any text will be relied upon in
dispute settlement proceedings.
What is odder, perhaps, is that in their WTO discussions
governments have not been elaborating on the existing
competition provisions that have already found their
way into multilateral agreements. To take one example, a
WTO reference paper obliges many governments to
promote competition and prevent anti- competitive
behaviour in the telecoms sector. In particular, members
have committed to ensure that major suppliers
(including those that control essential facilities) provide
their competitors with non-discriminatory access to their
networks.
As the reference paper is mandating pro-competitive
regulation, its terms are far broader than traditional
competition law concepts. A telecoms provider that is
neither dominant nor guilty of monopolising or abusive
behaviour in competition law terms can still find itself
subject to quite extensive regulation through the
operation of the reference paper.
In trade circles, it is widely thought that a current dispute

between the US and Mexico is about to provide muchneeded guidance on how these commitments should be
interpreted. WTO dispute settlement panellists are
undoubtedly able to interpret the legal provisions before
them. The question is whether they will inevitably tend
towards the most market- opening solution, even if this
means imposing obligations on successful companies that
would appear ludicrous from a business or competition
policy point of view and would allow foreign entry only at
the expense of efficient existing business arrangements.
Trade negotiators often like to talk about the do-able
rather than the necessary. It is essential, however, that the
expertise at the WTO Working Group be applied to forging
specific guidance on how existing competition provisions
should be interpreted and applied, before members
negotiate further - and equally vague - commitments.
References
Mario Monti:A Global Competition Policy? Speech, 17
September 2002.
Y Kamel: Closing statement at Doha Ministerial,
14 November 2001.
EU: A Multilateral Framework on Competition
Policy.
US:Transparency and Non-Discrimination. US: Procedural
Fairness.
Australia: Modalities for Voluntary Co-operation. WTO
dispute: Mexico - Measures affecting
Telecommunications Services - Request for the
Establishment of a Panel by the US (Document
WT/DS204/2), 16 November 2000.
8
Competition Law Insight November 2002
Competition policy at the WTO
Court strikes down two European merger prohibitions
Both the mergers that were put back on course by the
judgments of the Court of First Instance in October took
place in France. The French regime for unconditional public
bids can result in actual acquisition of the target long
before a Phase II merger investigation is over.
In both cases, there were two merger decisions, one
forbidding the merger under article 8(3) of the Merger

Regulation, and one ordering the separation of the two

companies under article 8(4). Two judgments followed in
each case, the second one striking down the article 8(4)
decision automatically as a result of the substantive
decision being annulled: ... annulment of the [prohibition]
decision completely deprives the divestiture decision of
any legal base (para 37, second Tetra case).
Schneiders holding in Legrand was due to be transferred
to Wendel Investissements on 5 November unless
Schneider cancelled the transfer. The Courts finding in
relation to the French market would have given the
companies boards pause for thought before re- activating
the deal.
In Tetras case, the Commissions decision requiring
divestment of Sidel was suspended on the companys
application to the Court - a situation that persisted until
judgment. Tetra was left holding nearly all Sidels shares.
This means that the acquisition has taken place.
Schneider Electric/Legrand
This decision was struck down because the Commission
did not honour the parties legal rights. The Court found
that the evidence of post-merger dominance in France
would have been sufficient to justify a prohibitory decision.
However, this could not be upheld because the parties
were not given an opportunity to suggest measures to
correct the findings on which the Commission ultimately
decided to prohibit the merger.
Their response was naturally limited to the objections that
they knew about at the time, and these were not entirely
the same as the grounds for the decision.
Schneider and Legrand received the Commissions
statement of objections on 3 August.The parties
responded first on 16 August.The full hearing took place
on 21
August and further discussion, on 29 August. The
companies gave the Commission their proposals to meet
its objections, as developed in the course of the
discussions, on 14 September.This was the last day on
which they could do so under the Merger Regulation.
On 21 September, the Commission addressed some
specific points to the companies, to which they responded
on 25 September. The response included new proposals

that were treated as being made too late. The Commission

issued its final negative decision on 10 October 2001.
The initial objections focused on each partys market
strength for various different product lines in France. The
merged entities dominant position would be strengthened
by the combination of their overlapping sales of
components for distribution panel boards, and by the
reinforcement of Schneiders influence over wholesalers
that would result from acquiring Legrands dominant
position in plugs and switches.
In its decision, the Commission relied on grounds that
were broader in terms of the products involved. These
were key to the companies ability to suggest remedies.
For example, the decision drew on Legrands powerful
position in circuit-breakers and other devices that had not
been mentioned in the statement of objections.
It also said that Schneiders dominance of the wholesale
market in junction box and terminal components would be
strengthened by acquiring Legrands position in plugs and
switches. Again, this had not been put to the parties in
such a way that they could propose remedies focused on
curing the problem.
The Commissions decision had also extended the
geographical base to the whole of the EEA, but the
numerous defects in this part of the reasoning were not
significant for the outcome since the decision was ruled
valid in relation to France.
Tetra/Sidel - rights of the parties
Protecting the identity of people commenting on a merger
may be necessary if they fear reprisals (see page 30). If
some respondents to a questionnaire sent out by the
Commission to collect market information about a merger
say
that they do fear reprisals, it may be legitimate to treat all
of them as confidential.
A summary of the non-confidential material in the answers
may be prepared for passing on to the merger parties. It is
nevertheless for the Commission to justify a blanket
refusal of access to the answers. On the facts here,
however, Tetras argument that its legal right of access to
the file had been violated by being shown only the
summaries of the answers was rejected by the Court.

Tetra/Sidel - economic analysis

Some rather bold economic argument had been deployed
in this decision, in particular its reliance on anticompetitive conglomerate effects and leveraging from one
market into another.
In both the Airtours and Schneider judgments, the Court
had gone through almost every element of the economic
reasoning and found either that it was not based on
evidence or that it was a manifest error of assessment.
Although a fair amount of this was done here, the Courts
confirmation that the novel arguments were not
intrinsically wrong must have made the judgment slightly
less depressing reading for the Commission.
Conglomerate mergers take place between companies
that are not competing in the same market.The Court
pointed out that the Merger Regulation draws no
distinction between types of merger, and conglomerates
are not automatically incapable of creating or
strengthening a dominant position and so harming
competition.
Nor is it impossible to conceive of a case where a
companys strength on one market might be used to
leverage its position on another, especially where the two
markets are likely to converge in time.The Court even said
that it may be legitimate to draw on the abuse of
dominance case law in the merger context to find
associative links where a company is dominant on two
closely related markets, but it did not elaborate on this.
On the other hand, it is harder to prove the anticompetitive effects resulting from such a merger than
from a combination of competing firms.The law
Competition Law Insight November 2002
9
Schneider and Tetra judgments
may not take account of leveraging activity, such as
predatory pricing or abusive loyalty rebates, that would be
illegal under article 82.
When assessing foreseeable conduct, the companys
temptation to abuse its dominant position is outbalanced
by the fact that to do so would be illegal, punishable and
very likely to be detected. In any event, Tetra had given

commitments that underlined its determination to behave

lawfully.
The Court confirmed that the Commission had proved to
the necessary standard that growth of one of the markets
(PET bottling) was foreseeable, so allowing the company a
possible opportunity to engage in leveraging practices in
future. However, any unforced tying or bundling of
products between the two market was ruled out by Tetras
undertaking not to make joint offers for ten years. Without
this, the merged companys means of leveraging were
limited.
Overall, the Court ruled that the prediction of anticompetitive leveraging was manifestly erroneous. It also
ruled that there was nothing to show that Tetra merged
would have less incentive to innovate than Tetra
unmerged.
The contested decision does not establish to the requisite
legal standard that the ... merger would give rise to
significant
anti-competitive conglomerate effects, the Court
concluded.
Practical outcome
There is an extra reason in this case for the Commission to
feel chastened by the Courts annulment of the
prohibition. Tetra had made extensive offers of
commitments that would have been an integral part of the
merger had it been approved.
These included sale of two business units, not making joint
offers of Tetra and Sidel products, holding Sidel separate
from the Tetra Pak companies, honouring the behavioural
remedies imposed on Tetra Pak under article 82
throughout the merged company, and licensing some of
Sidels machines.
With the prohibitory decision gone, there is no longer any
legal need for these limits on Tetras freedom of action to
be observed.
References
All four judgments are available on:
http://europa.eu.int/jurisp/cgi- bin/form.pl?lang=en
(enter name in search grid)
Schneider/Legrand - Cases T- 310/01 and T-77/02,
Schneider Electric SA v Commission, 22 October 2002.

Tetra/Sidel - Cases T-5/02 and T-80/02, Tetra Laval BV v

Commission, 25 October 2002.
Foreign control of US satellite
On 25 October 2002, the US Federal Communications
Commission approved the transfer of satellite facilities by
Lockheed Martin and Comsat to Intelsat. Intelsat is an
international body owned by its member governments and
operated by their agencies.
The facilities being transferred did not involve common
carrier switched services. On Intelsats assurance that,
although it has no plan at present to use them for that
purpose, it would notify the executive branch if it
developed one, the Justice Department and FBI decided
not to make any representations about the transfer.
In view of this, the FCC concluded that it had no duty to
consider national security issues.
Commissioner Copps, however, lodged a note of dissent,
arguing that any case where potential harm to US
competition might result from foreign government
ownership must be specifically justified.
The FCC should be promoting free trade and the US
consumer by promoting private, not government,
ownership - certainly not foreign government ownership.
Deutsche Post takes over DHL
Deutsche Posts acquisition of DHL International was
cleared by the Commission on 22 October.
The two are already closely associated because Deutsche
Post shares control of DHL with Lufthansa. Deutsche Post
is 69 percent owned by the Federal Republic, directly or
indirectly.The markets on which DP and DHL operate
presented only a few minor overlaps. These were not of
concern.
On 28 October, the Commission approved Deutsche Posts
acquisition of the Dutch door-to-door mail distributor,
Interlanden. It will operate a joint venture with
Interlandens former owner,Wegener NV.
This merger was waved through on the simplified
procedure.
Germanys Ministererlaubnis in use This power enables
the German Economics Minister to overrule a merger
prohibition for public interest reasons.
This year, it has come under close scrutiny in connection

with the E.ON/Ruhrgas merger. E.ON is the second largest

electricity company and Ruhrgas, the leader in gas.
Prohibited by the Bundeskartellamt, Secretary of State
Tacke used the Ministererlaubnis in E.ON/Ruhrgass favour
in July after Minister Mller had to recuse himself on
account of his former employment by Veba, an ancestor of
E.ONs.
Competitors appealed to the courts against the
Ministererlaubnis. The Dsseldorf Court of Appeal issued
an injunction suspending the further implementation of
the merger on grounds of deficient procedures: the
minister should have been present in person at the
ministerial hearing and third parties were not given an
opportunity to comment on undertakings offered by E.ON.
These defects were cured by holding another hearing,
after which the Ministererlaubnis was issued again on 18
September, with tougher conditions attached.
The minister then applied to the court to remove the
suspension. This ruling is still awaited at the time of
writing.
Several EU countries have retained a ministerial power to
overrule a decision of the competition authority.
In Germany, the power can only be deployed where the
merger has been prohibited and after the BKartA has
ruled, so drawing a sharp line between competition policy
and the political decision.
10
Competition Law Insight November 2002
Schneider and Tetra judgments
In Brief
Failing firm defence
The Andersen mergers - a new approach to the failing firm
principle?
By Diana Jackson, Lexecon*
The failing firm defence has a long history in European
merger cases, but has rarely been successful. Traditionally
the conditions applied by the Commission for the
acceptance of such a defence have been stringent.
However, in its recent clearance of the merger between
Andersens French and UK operations and those of Ernst
&Young and Deloitte Touche Tohmatsu respectively, the

Commission has shown a willingness to accept the

principles underlying the failing firm defence in a broader
category of cases.
This broader principle of but for comparisons (which
involves an assessment of what would happen in the
absence of the merger) explains why different conditions
have been applied in different cases, and helps to predict
more accurately in which cases such arguments have a
chance of success.
Failing firm defence: rarely successful
The failing firm defence is understandably popular with
parties to mergers. Successful application of the failing
firm principle allows a transaction to be permitted that
would normally lead to a worsening competitive situation
and would therefore usually be blocked by the authorities.
Even though a merger will create competition problems in
the industry, the argument runs, it can still be cleared
since the failure of the target firm would inevitably have
created a market environment that was at least as
damaging. The authorities will generally treat such
arguments with scepticism. It is easy to assert that the
target firm will be a less effective competitor in the future,
but more difficult to demonstrate this in a convincing
manner.
Competition authorities have traditionally required strong
evidence that the failing firm will cease to have a
competitive impact even in the absence of a merger - with
the result that few mergers have been cleared on this
basis.
The EC approach: Kali+Salz Although the European
Commissions approach to the failing firm defence is not
set out formally, as is that of the US authorities, the
defence has nevertheless been accepted in the
Commissions practice.
The possibility of a successful use of the failing firm
defence under the EC Merger Regulation was first
established in the Kali+Salz case concerning the merger of
two German firms engaged in the supply of potash (a
fertiliser).The merger was not found to create or enhance
a dominant position in Germany, despite creating a
combined share for the parties of 98 percent.
The basis for this finding was that, absent the merger, the

target (MdK) would be forced out of the market and that,

following this exit, its market share would inevitably go to
Kali+Salz as the only alternative supplier. The Commission
established the following conditions under which a
concentration could not be found to cause any postmerger dominant position (and therefore should not be
blocked):
the target would be subject to imminent business failure
or bankruptcy in the absence of any merger, with very low
prospects of successful reorganisation;
the acquiring firm would receive the market share of the
target in any case if the latter were to fail and leave the
market; and
there is no realistic less anti- competitive alternative
(e.g. an alternative buyer).
Although the Commissions decision was struck down by
the ECJ in 1998, the annulment related to other parts of
the decision. Indeed, the Court if anything broadened the
criteria for a successful failing firm defence, arguing that
such a defence could exist wherever the competitive
structure resulting from the concentration would
deteriorate in similar fashion even if the concentration did
not proceed.
In effect, the Court emphasised only the last of the
conditions set out by the Commission in its decision - that,
if no realistic alternative outcome could be more
competitive, then a concentration should be permitted.
The Boeing/MDC death spiral
In many cases such defences have not been successful.
For example, in the case of Boeing/McDonnell Douglas,
Boeing tried to argue that McDonnell Douglas Corporation
(MDC) was a failing firm that had entered a
deathspiral,withnoprospectofcustomers buying MDC
products in the future. The Commission accepted that in
some product segments MDC was no longer a
competitive force and that over time its position would
weaken further.
However, it also found that in the past MDC had asserted
a significant impact on conditions of competition, despite
its small market share, since its presence as a bidder for
the supply of aircraft had a significant impact on price
levels. In a speech to the 1997 Fordham Law Conference,

the Competition Commissioner at the time, Karel van

Miert, argued that whether or not MDC could survive in the
medium term was not the key issue in the case:
* Lexecon Ltd acted as economic advisers to Ernst
&Young on the French and German transactions
Competion Law Insight November 2002
11
Failing firm defence
It was argued that Douglas Aircraft (DAC) was no longer a
real force in the market for new aircraft on a stand- alone
basis. However, integrated into the Boeing group, DAC
represented a significant factor in the market. So we did
not focus our analysis on a distressed company concept
taking into account the pre-merger situation of DAC and
its difficulty to continue competing. We opted for a
dynamic view of what DAC could bring to the commercial
strength of Boeing: access to an important fleet in service,
additional capacity and, not least, enhanced possibility to
offer exclusive deals.The bottom line was for us more a
question of whether a dominant firm like Boeing should be
allowed to enhance its dominance by acquiring a
competitor, than whether Douglas Aircraft could keep its
head out of the water in the medium term.
Although the merger was not blocked by the European
regulator, remedies were required before clearance was
granted.This case illustrates again the broad principle that
the merger outcome should be compared with the realistic
alternatives (thebutformergerscenario),ratherthan
focusing too closely on whether a firm can be said to be
failing in some sense.
There have been several other cases of unsuccessful
attempts to use failing firm arguments under the EC
Merger Regulation (e.g. De Havilland). In general, these
defences, as in Boeing/MDC, fail because the Commission
is not convinced that the situation that would prevail postmerger could not be bettered by the outcome if the
merger were blocked.
Exiting assets in BASF
Kali+Salz was not an entirely unique example of a
successful failing firm defence.The acquisition of
Pantochim and Eurodiol by BASF was cleared by the

Commission in July 2001, despite creating shares in excess

of 45 percent in several solvents markets. The
Commission stated again that the relevant benchmark
with which to compare the merger was not the pre-merger
situation, but the situation that would exist in the future if
the acquisition were not authorised.
As Eurodiol and Pantochim had already been placed under
a pre-bankruptcy
regime, it was beyond doubt that, in the absence of a
buyer, they would become bankrupt. Moreover, the
Commission found that if this occurred their assets would
certainly exit the market. BASF was the only company to
have made an offer to buy the targets, despite efforts by
the Belgian Court Commissioners and the European
Commissions own investigations to find preferable
solutions.
The case marked something of a departure from the
conditions laid out for a failing firm defence in the
Kali+Salz merger. In both cases, the target company was
bound to go out of business within a short space of time in
the absence of an acquisition, and there was no
alternative buyer with less harmful implications for
competition.
However, whereas in Kali+Salz it was found that the
market shares of the target would have gone to the
acquiring firm even in the absence of the merger, this
criterion was not applied in the BASF case. Rather, the
clearance of the merger was justified on the grounds that
the alternative (with Eurodiol and Pantochim simply
exiting the market) would damage consumers more than
the merger, because it would be likely to lead to supply
shortages and price increases driven by the growing
demand and tight capacity constraints in the market that
would result from this exit.
The economic rationale behind the updated conditions set
out in the BASF case is simple: in the absence of the
merger, the inevitable exit of the failing firms capacity
from the market will create an excess of demand over
supply and so cause prices to rise. Although the
incumbent firm may add capacity in the longer run,
consumers will suffer higher prices for a period. Therefore
permitting the merger is the lesser of two evils, as it at

least allows the assets of the failing firm to stay in the

market.
This change is important, as under the old criterion it
might be thought that only monopolists (or near
monopolists) could effectively use the failing firm defence.
This is because a monopolistic firm could gain all the
market share of any exiting firm, whereas an oligopolistic
buyer would only expect to take over part of the market
share of any exiting firm, and therefore the Kali+Salz
condition could not be satisfied in the oligopoly case.
In a speech last year to the American Bar
Association, the European Competition Commissioner,
Mario Monti, explained the Commissions position as
follows:
... one of the criteria necessary for the [failing firm]
defence to apply is that, absent the merger, the assets of
the failing firm would have exited the market. In addition
to that, however, our Merger Regulation requires us to
establish on a case by case basis that the deterioration of
the competitive structure as a consequence of the merger
is at least no worse than it would have been in the
absence of the merger.
While the exit of the failing firms assets from the
market is a condition specific to the failing firm defence,
the requirement that the Commission show that the
situation created by the merger is worse than would have
prevailed in the absence of the merger is a broader
principle, and one which was of key importance in the
recentAndersenmergers.
Andersens main assets would not exit
The Ernst &Young/Andersen France and Deloitte &
Touche/Andersen (UK) combinations could not be cleared
on traditional failing firm grounds. It seemed very
unlikely that, in the event of mergers being blocked, most
of Andersens assets would leave the market.
Like many knowledge-based organisations, Andersens key
asset is its human capital. Andersens staff (particularly
at partner level) are highly trained, with skills specific to
the Big Five accounting market. Remuneration in the nonBig Five accounting firms, or in financial director/chief
financial officer posts, is typically far below that of a Big
Five firm, and the total demand for Big Five services would

not be altered as a result of Andersens disappearance.

Therefore the most likely outcome of this no-merger
implosion scenario is that most of Andersens partners
(and other staff) would be hired by the remaining Big
Four accounting firms.
It would therefore seem that the traditional failing firm
defence does not apply in this case. However, the
Commission implicitly recognised the principles underlying
the failing firm
12
Competition Law Insight November 2002
defence in its ruling that any increase in the likelihood of
collective dominance associated with a reduction in large
accountancy firms from five to four could not be said to be
caused by the merger.
Non-merger scenarios
The failing firm defence is based on the principle that in
situations where significant structural change in the
industry is inevitable (in the failing firm case because a
company will almost certainly exit the market), then the
relevant comparator for the post-merger market structure
is not the pre-merger situation, but rather the market
structure that would arise were the merger to be blocked.
The Andersen ruling reflects a less restrictive
interpretation of that same principle. The pre-merger
market shares were not a good comparison for the merger
outcome, as they could not be expected to prevail postmerger. Instead, Andersens assets (and with them its
market share) would be expected to be distributed among
the rival Big Four firms, either through a rival merger or
through these firms hiring Andersen partners and staff
individually or in groups.
Moreover, the parties combined pre- merger shares could
also not be sustained post-merger, due to an inevitable
loss of clients (particularly in France, where the COCAC
system of dual auditors can create significant conflicts
where clients must be given up in the event of a merger).
It is these alternative merger and non- merger scenarios
that are the relevant comparators for an assessment of
the causation of dominance.The pre-merger situation
cannot be the relevant comparator, as it simply could not

survive, even if all mergers were blocked.

A new theory?
This should not be interpreted as a significant break from
past practice, but rather as a development of an existing
principle. Even in the original Kali+Salz ruling, the
Commission implicitly acknowledged that the principle
underlying the failing firm test is a broad one. In that
decision it stated that a merger cannot be said to create
or strengthen a dominant position if such a dominant
position would arise even if the merger were prohibited:
On the basis of the above, the Commission has therefore
come to the conclusion that after the proposed
concentration the dominant position enjoyed by K+S on
the German potash market will be strengthened. However,
... the proposed concentration is not the cause of this
deterioration of the competitive structure.
It is this principle (echoed by the Courts ruling in the
Kali+Salz case) that has been applied in the Commissions
assessment of collective dominance in the recent
Andersen cases.The Commission has not been limited to
looking at the post-merger market structure in a vacuum,
but rather has carefully compared this merger outcome
with a range of plausible alternative merger/non-merger
scenarios, in order to ascertain whether the merger could
be said to cause any deterioration in market structure. In
both cases the Commission concluded that no such link
could be found:
However, for the purpose of this decision it can be left
open whether or not the proposed transaction leads to a
situation of oligopolistic dominance, as a causal link
between the proposed operation and the possible situation
of collective dominance can be excluded.The reasons for
excluding this causal link are the following:
the reduction from five to four global accounting
networks was inevitable;
no other scenario could be established, which would be
less harmful for competition on the market for audit and
accounting services to large and quoted companies.
From an economic perspective, the first point could be
equally considered as a special case of the second: if the
number of competitors were of crucial importance to the
competitiveness of the market, and a reduction in

numbers were not inevitable in the absence of the merger,

then clearly (all else equal) the merger can be said to be
more harmful than the likely alternative.
However, the fundamental reasoning underlying these
criteria is sound - the authorities must examine the
merger in relation to the situation that would actually
prevail were the merger to be blocked, and not simply in
relation to a pre-merger snapshot of market structure.
Future directions
The application of a broad but for the merger
comparison in the Andersen cases should not be seen as a
weakening of the failing firm principle. Far-fetched
suggestions of possible harm from failing firms (or, even
more so, failing divisions) will still be treated with some
scepticism, and failing firm arguments which have failed in
the past could still be expected to be unsuccessful today.
However, the Andersen France and Andersen UK cases do
demonstrate that the Commission is prepared to apply the
general principles underlying the failing firm defence in a
general context, and not only in cases where the assets of
the failing firm are likely actually to exit themarket.
Questions such as whether the acquiring firm will
inevitably take over the targets market share (Kali+Salz),
whether the targets assets will inevitably leave the
market (BASF), or indeed whether the number of players
in the market will inevitably fall (the Andersen mergers)
can therefore be seen as important but intermediate
criteria.
These factors are crucial inputs in assessing the more
general question: what is the competitive impact of the
merger relative to the likely scenarios should the merger
be blocked in specific cases? What would the world look
like but for the merger?
The underlying question at the heart of both the pure
failing firm cases and this latest ruling is whether the
merger worsens the competitive situation relative to an
appropriate benchmark.
The Commission has, in such cases, consistently
recognised that it is essential to find the most relevant
comparator for the post-merger situation - which,
particularly in cases of corporate distress, will often not be
best reflected by pre- merger market shares.

The real skill is finding the most likely but for world that
would occur in the absence of the proposed merger. This
calculation is far from easy, especially in the dynamic and
rapidly changing sectors that are often the main arena for
restructuring through merger and acquisition activity. The
Commission may find that greater sophistication comes at
the cost of greater complexity in judging future
transactions.

Even after Brexit, hard

borders wont be
returning to Ireland
Charlie Flanagan

rexit has been referred to as the biggest foreign

policy issue facing Britain since accession to the European

economic community in 1973. In many ways, this is true
of Ireland too. As the process unfolds, one of the biggest
challenges for Ireland is how we maintain a strong and
close relationship with our UK friends and neighbours
while remaining at the heart of the European Union. While
we deeply regret the outcome of the UK referendum,
Ireland remains, and will remain, a committed member of

the EU.

Huge rise in Britons applying for Irish

citizenship after Brexit vote
Read more

Since the referendum I have engaged extensively with

both my UK government counterparts and each of my
foreign ministerial colleagues all across the EU. Ive
spoken to the UK foreign secretary, Boris Johnson, and
the secretary of state for Northern Ireland, James
Brokenshire, on several occasions, and I was pleased to
welcome the secretary of state for exiting the EU, David
Davis, to Dublin for discussions. Several other EU foreign
ministers have also visited Dublin and last week, the EU
commissions chief Brexit negotiator, Michel Barnier,
visited Dublin the sixth capital he visited on his tour of
28. And Irelands taoiseach, Enda Kenny, has had
extensive discussions with Theresa May, Angela Merkel,

Franois Hollande, Donald Tusk and many others.

In my discussions with EU colleagues, I have emphasised
the importance of the Irish and Irish-British dimensions to
Brexit for our citizens, our economy and trading links, our
common travel area with the UK and, of course, Northern
Ireland and its invisible border with the rest of the island.
Ive also stressed the need for a strong EU, characterised
by partnership, peace and prosperity. I have been
heartened by the strong support across Europe for the
peace process and the understanding about our special
circumstances on the island.

One of our key concerns about Brexit is any

risk to the effective invisibility of the border
between north and south
Overall, we will be working for special arrangements that
take account of Northern Irelands unique circumstances.
The process ahead is extremely complex and multilayered. We are currently auditing and assessing the
implications of Britains withdrawal from the EU across a
range of sectors through dialogue between the north and
south, between London and Dublin, through bodies such
as the British Irish Council and with our EU partners. This
in no way pre-empts the wider negotiations between the
UK and the EU 27.
Irelands relationship with Britain is unique in every
possible way politically, economically, culturally, legally
and in terms of people-to-people links. One in four people

in Britain can claim Irish heritage, while in the business

world almost 60,000 UK company directors are Irish-born.
The Dublin-London route is the second busiest air route in
Europe. We trade over 1.2bn a week between us, and
Ireland is the UKs fifth largest trading partner. We must do
everything we can to protect these hard-won positive links.
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Northern Ireland is a core priority for Dublin in terms of the
Brexit process. While the peace settlement is by now wellestablished, we can never afford to be complacent. Twice
in the two years after I became foreign minister, I have
spent long periods of time in Belfast participating in
political talks. These ultimately led to the Stormont House
agreement in December 2014 and the Fresh Start
agreement last November. I witnessed at first hand how
the still delicate political stability in Northern Ireland can be
shaken.
The Good Friday agreement provides the framework for
our engagement in Northern Ireland, and we have worked
alongside the UK government and Northern Irelands
political leaders to stabilise the devolved institutions in
Belfast and deliver important initiatives. Last month,
honouring commitments under the Fresh Start agreement,
James Brokenshire and I signed a treaty to establish an
independent reporting commission to help tackle the
legacy of paramilitarism which continues to plague some
vulnerable communities in Northern Ireland. We want to
see that scourge removed from peoples lives.

Brexit presents a substantial challenge to this remarkable

but still incomplete progress. Across the UK as a whole,
52% of voters opted to leave the EU. However, in Northern
Ireland, 56% voted to remain. The people of Northern
Ireland are in a unique position both in the UK and the EU,
entitled to define themselves as British, Irish, or both.
Common British and Irish membership of the EU has been
a fundamental element in the political context which
allowed the peace process to move forward.

Ireland to set up 'rainy day fund' as buffer

against Brexit shock
When the UK leaves the EU, Northern Ireland will be the
only region that shares a land border with another EU
member state. One of our key concerns about Brexit is
any risk to the effective invisibility of the border between
north and south. The Northern Ireland executive and the
Irish and UK governments have been unanimous in their

view that we must maintain the openness of the border

which is enjoyed today.
The common travel area, where citizens of Britain and
Ireland have enjoyed free movement in each others
countries since 1922, is highly valued on all sides. The
reinstatement of any kind of hard border would also have
obvious negative consequences for cross-border trade
and economic activity. Equally serious would be the effect
of resurrecting a potent symbol of division in a society
emerging from conflict where many communities and
groups are working hard to foster greater reconciliation,
shared understanding and partnership.
Future arrangements between the UK and Ireland, and
between the Irish government and the Northern Ireland
executive, will have to be placed in the wider framework
negotiated between the UK and the 27 other EU members
including Ireland. The Irish government will work hard to
make sure all sides are fully conscious of the need to work
together to ensure the transformed Irish-UK relationship
and the enormous achievements of the peace process are
safeguarded for future generations.

Thursday 20 October | Hannah

McCausland

Since 1979, data protection authorities from across

the globe have met at the International Conference of
Data Protection and Privacy Commissioners. The
purpose of the conference is for the authorities to
discuss information rights issues, share knowledge
and gain support and experience from their
counterparts from around the world. This year the
conference was held in Marrakesh and was attended
by a number of ICO representatives including the
Commissioner herself (left), our two interim Deputy
Commissioners Steve Wood (middle) and Simon
Entwisle, our Head of Enforcement Steve Eckersley
(right), and myself, Hannah McCausland Senior
International Policy Officer.
This year the ICO was pleased to have the opportunity
to present our resolution on the next steps towards

improved International Enforcement Cooperation, a

workstream which aims to support effective
enforcement action against organisations that have
broken data protection and privacy laws in several
jurisdictions. The work envisaged by the resolution,
which was supported by a number of our international
counterparts, was a significant step towards assisting
those authorities in countries that do not yet have the
means to share the case related data needed for
effective international enforcement. It will also set in
to motion the creation of practical projects, between
conference members and appropriate enforcement
authorities both in the data protection and in other
domains such as consumer protection or competition
enforcement authorities, which can begin to better
coordinate the efforts towards global enforcement
cooperation.
It was decided at the conference that leaders will be
identified from each global region ie Europe, the
Americas etc. who will promote the participation in the
Enforcement Cooperation Arrangement to other
authorities.
The resolution was adopted by the entire conference
without any abstention, which is a great achievement
for the ICO and the other authorities that supported
it. The next steps of the resolution will be important
to embark upon as soon as possible but we believe we
will be able to deliver on the objectives of the
resolution at next year's international conference in
Hong Kong.
You can read more details of the resolution on the
IDCPPC website.

4 October 2016 | John-Pierre Lamb

The ICO was recently invited to Tbilisi to visit our
counterparts at the Office of the Personal Data

Protection Inspector (OPDPI) of Georgia, with the

support of the Good Governance Fund - a DFID/FCO
capacity-building programme. My colleague Vicki
Heath and I, from the ICOs Good Practice team,
accepted this request.
Data protection law was enacted in Georgia in 2012,
with the OPDPI only coming into existence in July
2013. They are now keen to establish an audit service,
which was the reason we were invited to assist. We
spent three days with our Georgian colleagues sharing
our knowledge, experiences, methodologies and
processes in order to help them create solutions and
develop suitable audit services. We had some useful
and productive discussions and were able to make a
number of recommendations. The OPDPI will now be
considering how best to implement these
recommendations in order to support their strategic
objectives.
Our hosts' hospitality was exceptional and it was a
pleasure to spend time in such a vibrant city. It was
also great to be able to support the work of such a
young data protection authority and there are plans to
explore future cooperation between our respective
offices in other areas.

A CHARTER OF RIGHTS FOR THE ISLAND OF IRELAND: AN

UNKNOWN QUANTITY IN THE GOOD FRIDAY/BELFAST
AGREEMENT
The basic aim of the Good Friday/Belfast Agreement was
to try and achieve a political settlement to the conflict in
Northern Ireland. While the channels for the settlement
were to be primarily institutional, the importance of
safeguarding the rights of both communities in Northern
Ireland by addressing equality and justice issues was
recognised, to varying degrees, by all parties to the
process that led to the drafting of the Agreement. As the

negotiations progressed, the human rights section of the

Agreement grew exponentially, moving from the margins
to the mainstream so that the final Agreement contains a
whole section on human rights protections. Not only have
these particular elements of the Agreement come to
fruition, but they have also received a considerable
amount of public and political interest as well as academic
comment and analysis. Buried within the human rights
Chapter, however, is a concept that has so far received
minimal interest or enthusiasm from any quarter. That is
the reference in paragraph 10 of the Rights, Safeguards
and Equality of Opportunity chapter to the possibility of
establishing an all-island Charter of Rights.
The purpose of this article is three-fold. First, it traces the
genesis of the Charter of Rights concept through to its
inclusion in the Good Friday/Belfast Agreement; second, it
examines the approach thus far taken by the Joint
Committee of the two human rights commissions to the
task entrusted to them in relation to the Charter by the
Agreement; and finally, it explores some of the issues that
need to be considered and the challenges faced by that
Committee in future efforts to assist in the construction of
any such Charter. In so doing, it describes the political and
legal difficulties faced in attempts not only in formulating
agreement on human rights but also in creating a legal
document which may be applicable to two jurisdictions. It
concludes by suggesting ways in which the project may be
progressed.
I. INTRODUCTION
The basic aim of the Good Friday/Belfast Agreement was
to try and achieve a political settlement to the conflict in
Northern Ireland. While the channels for the settlement
were to be primarily institutional, the importance of
safeguarding the rights of both communities in Northern
Ireland by addressing equality and justice issues was
recognised, to varying degrees, by all parties to the
process that led to the drafting of the Agreement. As the
negotiations progressed, the human rights section of the

Agreement grew exponentially, moving from the margins

to the mainstream so that the final Agreement contains a
whole section on human rights protections. This section,
entitled Rights, Safeguards and Equality of Opportunity
included agreement between the parties on the
establishment of a new statutory framework in Northern
Ireland to promote equality of opportunity; incorporation
of the European Convention on Human Rights in the
United Kingdom and in the Republic of Ireland; and the
establishment of two Human Rights Commissions in both
jurisdictions. Not only have these particular elements of
the Agreement come to fruition, but they have also
received a considerable amount of public and political
interest as well as academic comment and analysis.
Buried within the human rights Chapter, however, is a
concept that has so far received minimal interest or
enthusiasm from any quarter. That is the reference in
paragraph 10 of the Rights, Safeguards and Equality of
Opportunity chapter to the possibility of establishing an
all-island Charter of Rights:
It is envisaged that there would be a joint committee of
representatives of the two Human Rights Commissions,
North and South, as a forum for consideration of human
rights issues in the island of Ireland. The joint committee
will consider, among other matters, the possibility of
establishing a charter, open to signature by all democratic
political parties, reflecting and endorsing agreed measures
for the protection of the fundamental rights of everyone
living in the island of Ireland.
The purpose of this article is three-fold. First, it traces the
genesis of the Charter of Rights concept through to its
inclusion in the Good Friday/Belfast Agreement; second, it
examines the approach thus far taken by the Joint
Committee of the two human rights commissions to the
task entrusted to them in relation to the Charter by the
Agreement; and finally, it explores some of the issues that
need to be considered and the challenges faced by that
Committee in future efforts to assist in the construction of
any such Charter. In so doing, it describes the political and
legal difficulties faced not only in attempting to formulate

agreement on human rights but also in creating a legal

document which may be applicable to two jurisdictions. It
concludes by suggesting ways in which the project may be
progressed.
Difficulties in obtaining agreement on human rights within
one jurisdiction have received considerable attention.
Those drafting Bills of Rights or their equivalent often draw
heavily on international and other countries experiences
in doing so. The difficulties are compounded, however,
when the task is to draft a document that applies to two
separate jurisdictions with different legal structures,
frameworks and principles and different political settings.
The experience in drafting the European Charter of
Fundamental Freedoms illustrates the problems in
achieving consensus among different states on the
content of the rights, how to relate the Charter to existing
legal commitments, both domestic and international, as
well as the legal status it should eventually have. Whether
it should be a legally binding document or a political
declaration has been the subject of considerable debate.
[T]he end result is inevitably something of a
compromise. Beyond the fact that the Charter of Rights
for the Island of Ireland is a unique endeavour in terms of
transjurisdictional human rights protection, there are
particular sensitivities as the Charter was born out of a
peace agreement and any provisions would therefore need
to be sensitive to political divides.
II. THE GENESIS OF THE ALL-ISLAND CHARTER OF RIGHTS
The idea of protecting human rights on some form of
trans-jurisdictional, all-island basis was raised in each of
the three agreements that have been negotiated in order
to obtain peace in Northern Ireland, but as will be seen, it
is the talks process of the 1990s informing the content of
the Good Friday/Belfast Agreement that can be regarded
as the direct lineage of the reference to an all-island
Charter in paragraph 10.
At the time the Good Friday/Belfast Agreement was
drafted, the most important priority for the drafters was to

achieve a human rights package which would include

commitments to enact legally entrenched human rights
protections in Northern Ireland and in the Republic. In the
Sunningdale Agreement (1973) it was envisaged that this
need would be met in two ways: firstly, incorporating the
ECHR into the domestic legal systems of both parts of the
island and secondly, legislating or setting up institutions
for any additional human rights protection in either part
or embracing the whole island. In the Anglo-Irish
Agreement (1985) parties were directed to concern
themselves with measures to recognise and
accommodate the rights and identities of the two
traditions in Northern Ireland, to protect human rights and
to prevent discrimination. Although the discussion of
various matters such as electoral arrangements, flags and
emblems and economic and social discrimination was to
be primarily concerned with Northern Ireland, Article 5(b)
of the Agreement stated that the Irish government was
not excluded from applying any human rights measures
arising as a result of this provision in its jurisdiction.
In the Good Friday/Belfast Agreement, both governments
commit themselves to incorporating the ECHR (or in the
case of the Irish government at least to examine further
the issue), and the need for any additional human rights
protections is met by the enactment of a Bill of Rights to
supplement the ECHR in Northern Ireland; the
strengthening of the human rights provisions in the Irish
Constitution, and enhanced equality legislation in both
jurisdictions. The concept of an all-island Charter of Rights
appears in para 10 entitled Joint Committee. This
paragraph envisaged the establishment of a Joint
Committee of representatives of the two Human Rights
Commissions to act as a forum for the consideration of
human rights issues in the island. The Agreement confers
on the Joint Committee the task to consider, among
other matters, the possibility of establishing an all-island
Charter of Rights, open to signature by all democratic
political parties, reflecting and endorsing agreed measures
for the protection of the fundamental rights of everyone
living in the island of Ireland.

At that stage there did not appear to be great discussion

over this provision. As one political party representative
noted:
I was there fairly constantly and the issues that were
controversial stand out and I do not recall the Charter
being controversial. That is not to say that if we do come
to the point of fleshing it out that there wont be
controversy.
The two key documents, the Downing Street Declaration
and the Joint Framework Document, which led to the
Belfast/Good Friday Agreement, however, both refer to the
concept noting, respectively, full respect for the rights
and identities of both traditions in Ireland, and not just to
Northern Ireland and a pledge that the two governments
take complimentary measures to guarantee common
specified civil, political, social and cultural rights would be
enacted in both jurisdictions as part of any agreement
and that both Governments would encourage
democratic representatives from both jurisdictions to
adopt a Charter or Covenant, which might reflect and
endorse agreed measures for the protection of the
fundamental rights of everyone living in Ireland. It could
also pledge a commitment to mutual respect and to the
civil rights and religious liberties of both communities.
This all-island Charter concept had already been the
subject of discussion between senior civil servants in the
British and Irish governments at the initial stages of the
negotiations before representatives of the political parties
in Northern Ireland became participants. It was decided
that rather than providing for the adoption of a Charter,
the final agreement should act as that Charter and that
since governmental responsibility for protecting human
rights was catered for elsewhere, responsibility for
upholding the Charter rights should vest in the political
parties. Thus, the Charter concept initially took shape in
paragraph 1 as an affirmation or endorsement of rights
which were already legally binding in Northern Ireland law
but which had not necessarily been respected or adhered
to by the political parties in the past. One of the political
parties, the SDLP, had been strongly supportive of the

Charter concept throughout the negotiations and raised

concerns that by simply inserting it in the Agreement in
the manner effected by paragraph 1, its application would
be confined to those parties who signed the Agreement.
With this in mind, Sean Farren of the SDLP pressed for the
retention of an all-island Charter open to signature by all
democratic parties in the island. This suggestion initially
met with indifference from the other participants. At a
later stage when provision was made for a Joint
Committee of the two Human Rights Commissions
however, it was felt that the task of drafting such a charter
would be amenable to the remit of such a body. The
drafters ensured that the Joint Committees business
would not be confined solely to this task by inserting the
phrase among other matters. Thus in the final hours the
idea of an all-island Charter, which had initially been put
to bed by paragraph 1, re-surfaced in paragraph 10.
With regard to institutional structures, during the
negotiations of the Good Friday/Belfast Agreement, the
choice of a single all-island institution or two separate but
equal institutions was presented. The latter option was
eventually provided for in the form of the establishment of
the two Human Rights Commissions. Sinn Fein and the
SDLP had lobbied for an all-island institution but when this
proposal met with Unionist and British opposition, a
compromise was reached in the form of a Joint Committee
of representatives of the two Commissions.
III. THE JOINT COMMITTEE AND THE CHARTER
The Joint Committee was formally established in
November 2001. At an early stage, the Committee
decided that while its programme of work should include a
number of issues, work on the Charter should be a priority.
A sub-committee was subsequently established to drive
the process for the elaboration of the Charter forward. A
paper originally prepared by the sub-committee, and
subsequently approved by the Joint Committee, was
released in May 2003 as a Pre-Consultation Paper. The
purpose of the pre-consultation paper was to invite

opinion on the proposals contained therein initially from

political parties and other members of civil society. Based
on the responses received, the Joint Committees intention
was to amend the paper, if necessary, before broadening
the consultation process at a later date.
The Proposed Models
The pre-consultation paper explains that although
paragraph 10 of the Good Friday/Belfast Agreement only
required it to consider the possibilityof establishing a
Charter, the Joint Committee had interpreted this to mean
that it would be failing to meet the general publics
expectations if it failed to produce a draft charter. The
Committee clearly made a number of further assumptions
in regard to the wording of the Agreement. These include
the view that the underlying idea for the Charter seemed
to be a common foundation of fundamental rights for both
political entities in Ireland or, more precisely, for the
people living in them. Moreover, the use of the word
measures in paragraph 10 suggested that something
more than a purely declaratory document was envisaged
and that while the wording specified that the charter
should be open to signature by democratic political
parties, it was not exclusive in that respect. Based on
these working assumptions, the pre-consultation paper
puts forward three possible models for a Charter,
explaining the advantages and disadvantages of each,
without ruling out the possibility of other models being
considered. A common feature to all three models is the
idea that they would be open to signature by the political
parties in Northern Ireland and the Republic of Ireland, the
Northern Ireland Executive and the two governments of
the United Kingdom and Ireland. The three options posited
range along a spectrum of potential enforceability in that
the key distinction between all three lies in the method of
implementation envisaged for each.
At one end of the spectrum is a declaratory model (Model
A) which would be limited to enunciating rights worthy of
protection on the island of Ireland. Envisaged as being
similar in structure to the Universal Declaration of Human

Rights, the Committee clearly viewed this model as posing

little difficulty in terms of legal feasibility and acceptability
at political level. However, it expressed reservations
about this type of model on the basis that it would have
no practical value in terms of concrete human rights
protection and because its lack of enforceability could
even transmit a negative message concerning the
importance of human rights guarantees to the
maintenance of democratic society.
At the opposite end of the spectrum, the Committee posits
a legally binding, judicially enforceable charter of rights
(Model C). This model would contain a detailed list of
human rights standards to which the courts in both
jurisdictions would have to adhere in applying and
interpreting existing domestic law. The Committee noted
the strong attraction of this model in conferring practical
human rights protection to individuals seeking a remedy.
However, it also noted a number of disadvantages
attaching to it, including the lack of political feasibility,
disputes as regards the method of incorporation into both
legal systems, as well as inevitable disagreement as to its
content.
The model preferred by the Joint Committee (Model B)
occupies the middle-ground between these two extremes.
It is presented as a programmatic charter, committing
signatories to the progressive implementation of certain
basic principles. The latter are initially presented as
including such matters as agreement to incorporate
international human rights standards into domestic law;
recognition of the rights and aspirations of all national,
religious, ethnic or linguistic communities throughout
Ireland and a determination to abide by democratic means
when pursuing political objectives. A far more detailed
list of rights, however, was ultimately envisaged here, as
is made clear in a subsequent section of the document
which sets forth the proposed content of Model B. The
Committee conceived of this model as being similar in
format to programmes of action implemented by the
United Nations in recent years. The proposed method of
implementation appears to be by periodic reporting

requirements similar to those employed by United Nations

treaty bodies. The Committee favoured this approach
because it struck the appropriate balance between the
other two extremes; would not pose difficulties in terms of
securing the agreement of the political parties and
because it thought that it would make an appreciable
difference to the lives of people throughout both parts of
the island.
The outcome of the pre-consultation process shored up
the many difficulties raised by the Charter concept in the
Good Friday/Belfast Agreement and the Joint Committees
approach to it. To begin with, the number of responses
received by the Committee was disappointing. While
requests were sent to 121 bodies for comment on the preconsultation paper, only 28 substantive responses were
received. Only two of these were from political parties.
While the responses that were received were mainly
positive towards the notion of an all-island charter of
rights, and to the notion of robust consultation in regard to
it, there was a significant degree of variation in receptivity
to the models mooted by the Joint Committee. While few
organisations opted for Model A, there was divergence as
regards preference for Model B over Model C, with some
organisations preferring not to express a preference at all.
This degree of variation indicates the difficulties that will
inevitably flow from any attempt to construct a charter of
rights in whatever guise, a difficulty that would appear to
have been seriously underestimated by the Joint
Committee in the pre-consultation paper. Apart from the
critiques raised in regard to the various models mooted,
certain of the responses pointed to more fundamental
difficulties underlying the pre-consultation process itself.
In particular, certain submissions raised the question of
the precise mandate of the Joint Committee in regard to
the Charter concept, querying whether this had been well
enough worked out by the Committee itself before
advancing to consultation. Finally, and perhaps most
importantly, others expressed concern that the Committee
had not made clear the purpose that would be served by
constructing an all-island Charter of Rights in the first
place.

Progress by the Joint Committee on the charter of rights

project ultimately stalled partly due to difficulties in the
operation of the Committee itself. Following the
appointment of two new Commissions, the process looks
set to be revitalised. Incomplete as it may have been, the
results of the pre-consultation process should provide
valuable guidance to the new sub-committee as it
approaches its work. The remaining sections of this article
examine more closely certain of the themes raised by the
consultees in an effort to illuminate the extent of the
challenge faced by the Joint Committee by the terms of
the Good Friday/Belfast Agreement.
IV. CONSTRUCTING AN ALL-ISLAND CHARTER OF RIGHTS
A. The Mandate of the Joint Committee
As noted above, one of the issues raised by the preconsultation process was the precise mandate of the Joint
Committee in regard to the all-island charter. It is
important to recall here the exact wording of the Good
Friday/Belfast Agreement which provided that the Joint
Committee will consider, among other matters, the
possibility of establishing a charter, open to signature by
all democratic parties This wording is phrased
ambiguously, such that it could be interpreted in a number
of ways. It could, for example, be interpreted as requiring
the Committee to simply discuss and make
recommendations to the two governments as regards the
necessity and/or legal implications of establishing an allisland charter of rights, without necessarily producing a
draft charter. The Committee has adopted a more robust
interpretation to the effect that it would be failing in its
duty if it did not produce a draft charter which should be
the subject of public consultation.
Certainly, it would appear that the drafters of the
Agreement had not clearly worked out the role of the
Committee in regard to the Charter:

The two nationalist parties policy was for a single human

rights commission for the island of Ireland. The British
government and the unionist parties were opposed to this.
So then when we decided we would go on a compromise
which was the Joint Committee and since a Charter of
fundamental political rights would be all-Ireland, it was
ascribed to the Joint Committee at the very last minute
and there wasnt a huge amount of thought given.
Nonetheless, if the Commissions are to consider a Charter
of Rights, it is clear from the process of drafting such
documents elsewhere, that the institution or organs
carrying out the process of consultation and drafting of the
Charter must be seen as having the legitimacy, expertise
and capacity to do so. This requires adequate resources
and political support. The principal issue that arises about
placing the Charter in the hands of the two Commissions is
that while they are independent bodies, they are outside
of the political process. Given the centrality of the political
parties acceptance to the success of the project, it is
inevitable that the legitimacy of the Commissions in taking
forward this task will be questioned. This concern arises
from the legacy of the Bill of Rights in Northern Ireland,
where many have questioned whether the Northern
Ireland Human Rights Commission (NIHRC) was the
appropriate body to carry out the task of the Bill of Rights,
often centring their concerns on the wording of the
Agreement itself. This has made the task of the NIHRC
especially difficult. Care must be taken to ensure that the
same does not arise with respect to the Charter of Rights.
In this respect, it is crucial that the Joint Committee
considers this issue in more depth, providing a more
convincing rationale for its interpretation of the text of the
Agreement. Indeed, any future consultative process on
the charter project should include space for debate on the
actual meaning of this aspect of the Agreement.
B. The Need for an All-Island Charter of Rights
The next fundamental issue arising in regard to the Joint
Committees pre-consultation paper is its apparent lack of
analysis as regards the need for an all-island Charter of

rights. This issue is somewhat related to the last, in that

the Committees appreciation of its role in regard to the
Charter should be influenced by a careful consideration of
the necessity for such a document in the first place.
As we have noted in the first section of this paper, while
the history of a Charter of Rights for the Island of Ireland
may date back before the Agreement, and may have been
suggested in various ways by political parties as part of
the peace process through the 1980s and 1990s, it is by
no means clear whether the implications and
constitutional position of such was fully thought through at
the time of the drafting of the Good Friday/Belfast
Agreement. This is not merely of historical interest, but is
important for the legitimacy of the Commissions in
carrying out the task and the eventual success of their
endeavours. This makes it all the more urgent that the
Joint Committee use its best endeavours to clearly work
out the need for the Charter to begin with. The text of the
Agreement certainly gives the Committee the possibility of
deciding that a Charter might not be suitable and of
therefore deciding that it is not necessary to actually
produce a draft of such an instrument. The response often
to the suggestion that such documents should be
considered is usually a resounding lets have one
followed by a discussion of what they should contain, how
they should be implemented and what status they should
acquire. Unfortunately, this would appear to have been
precisely the attitude adopted by the Joint Committee in
regard to the Charter. A more considered approach would
have been to enter into a detailed assessment of existing
human rights protections on both parts of the island with a
view to deciding whether an all-island charter, in whatever
incarnation, should be adopted at all.
To this end, the Committee must ask itself whether
sufficient protection is already available, in the context of
Northern Ireland and the Republic, in the form of legal
protection such as the Human Rights Act 1998, the Bill of
Rights being developed by the NIHRC, Constitutional rights
under the Irish Constitution, the European Convention on
Human Rights Act 2003, as well as other human rights

legislation. International treaties and standards to which

the two governments are parties, such as the European
Convention on Human Rights, the International Covenant
on civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the Convention on
the Elimination of All Forms of Racial Discrimination, the
Framework Convention on National Minorities, and the
European Social Charter will also have to be taken on
board. The Joint Committees analysis will have to address
fundamental questions like whether a Charter would
simply add an extra layer of complexity to the existing
spectrum of human rights protections already available.
And further, whether enhanced protection for human
rights on the island could be achieved in any other way.
An obvious difficulty arising in performing this assessment,
of course, is the relative prematurity of such an exercise in
regard to both jurisdictions. This is particularly true as
regards Northern Ireland given that the Bill of Rights
process is still on-going. As one political party
representative stated:
If you want an all-island Charter, my view is that you first
have to see what the rights are in Northern Ireland first of
all I will not go to a position of having an all-island
Charter of Rights until I see clearly what the response and
responsibilities of my neighbouring State is to human
rights in particular and in general, and as to what we in
Northern Ireland view as our responsibility to rights. When
we get both of our positions clear, we can see how we
may have cooperation. So its premature for me to
consider because I do not yet see the environment
conducive to me as a Unionist giving it serious
consideration.
Indeed, some organisations refused to respond to the preconsultation process by the Joint Committee, viewing it as
premature until the Bill of Rights in Northern Ireland was
more advanced. In the Republic, incorporation of the
European Convention on Human Rights is still in its infancy
and hence opinion as to its effect is still substantially
untested. Progress on the Charter will necessarily be slow

certainly until there is more clarity on the shape of the Bill

of Rights in Northern Ireland. But this should not inhibit
the Committee from at least entering into a preliminary
assessment of the need for a Charter.
C. Possible Objectives of an All-Island Charter of Rights
Crucial to any assessment of the need for a Charter will be
reflection on the possible objectives of such an instrument
in an all-island context. The purpose of a Charter or Bill of
Rights will vary according to the political, social and
cultural context in which it applies. In some situations it
may be there to ensure national unity or guarantee
human rights, in others, to introduce constitutional order
in a post colonial jurisdiction, in yet others, to mediate
political transition in a revolutionary society. The concept
of the all-island, trans-jurisdictional Charter, as expressed
in the Good Friday/Belfast Agreement, is completely
unique, and hence, a considerable degree of thought
needs to go into the objectives that it might serve if any
resulting document is to be truly coherent. In this section,
we advance a number of possible objectives that might be
served by such a Charter.
1. To achieve or further the goal of equivalence of
protection
One possible aim of an all-island Charter would be to
harmonise the protection of human rights across the
Republic and Northern Ireland and to fill any gaps that
may be found to exist in the framework of human rights
protection in both jurisdictions. As Livingstone has
argued, There is good reason to have an equivalent
human rights machine North and South to encourage the
free movement of people between the different parts of
the island. Lower degrees of protection in areas affecting
peoples lives (for example, educational or religious rights)
may discourage people relocating from the North to the
South or vice versa.
The concept of equivalence of rights protection in both
jurisdictions finds explicit expression in paragraph 9 of the

Good Friday/Belfast Agreement. Under this section, the

Irish government committed itself to taking comparable
steps towards strengthening human rights to those taken
by the British government in regard to Northern Ireland.
Specifically, the Irish government agreed to bring forward
measures to strengthen and underpin constitutional
protection of human rights, drawing upon the European
Convention on Human Rights and other international
human rights instruments and to examine, in this context,
the possibility of incorporating the ECHR into the domestic
legal system. Paragraph 9 continued:
The measures brought forward would ensure at least an
equivalent level of protection of human rights as will
pertain in Northern Ireland.
Thus, this conception of equivalence of rights protection
is limited in the sense that it commits the Irish
government only to bring forward measures aimed at
matching the scope and nature of human rights protection
pertaining in Northern Ireland. It does not commit the
British government to remedy deficiencies that obtain in
Northern Irish law as compared to those which obtain in
the Republic.
The genesis of the provision is, like the Charter, somewhat
uncertain. According to Morgan, its roots may be traced to
Article 5 of the Anglo-Irish Agreement 1985 which allowed
the Irish government latitude to comment on Northern
Irish Affairs, but which also provided that some of the
proposals being considered then might also have
application to the Republic. In his view, the concept of
equivalence in the Good Friday/Belfast Agreement
delivered on the latter part of the 1985 Agreement for the
first time and in a significant way. From a Unionist
perspective, it was an attempt to enshrine an obligation
on the Irish government to practice what it preached as
regards protection of human rights in Northern Ireland:
we viewed that there were a lot of rights in Northern
Ireland already that the Southern government should
come up to the same standard as here be equivalent in

that sense that is loosely in mind what the concept of

equivalence means.
The Irish government, on the other hand, appears to have
been confident that the human rights framework in the
Republic was superior to that obtaining in Northern
Ireland, though it was cognisant of the political imperative
to commit to implementing an equivalent human rights
package as that pertaining in Northern Ireland:
We took the view that the human rights framework in the
south was probably at that stage superior to that in the
NorthBut what we were saying here with equivalence
was that with respect to the rights in the Good Friday
Agreement, we werent just telling them what to do. We
would live by them too.
Whatever the objective behind the provision, it is clear
that the equivalence commitment is legally binding on the
Irish government, though the scope and intensity of that
commitment is open to question. Some have argued that
it cannot be interpreted as a blank cheque requiring
every development in Northern Ireland to be matched in
the South, while others maintain that the Republic has far
to go in terms of matching human rights protection in
Northern Ireland in a number of vital areas. Certainly, it
seems that the Irish government has interpreted the
provision in a minimalist way by limiting its delivery to the
specific commitments to incorporate the European
Convention on Human Rights, to establish the Human
Rights Commission, to ratify the Framework Convention
on the Protection of National Minorities and to implement
enhanced equality legislation.
An interesting question arises as to the relationship
between the Charter concept and the concept of
equivalence in the Agreement. In formal terms, the
concepts are distinct. The obligation on the Irish
government to implement equivalence in paragraph 9 is
binding on that government, whereas the charter concept
in paragraph 10 does not bind either government. Morgan
has argued that the Charter was a human rights gesture

of no legal import, whose raison dtre is all but made

redundant by the obligations regarding equivalence
undertaken by the Irish government in paragraph 9.
OCinnide, on the other hand, makes a convincing
argument that the Charter concept could be a means for
developing a more robust concept of equivalence to that
which is expressed in paragraph 9 of the Agreement. In
his view, the broader thrust of the Good Friday/Belfast
Agreement suggests that achieving a common standard of
rights protection in both jurisdictions should be an
important policy objective. Interpreted in this light,
paragraph 10 can be viewed as a vehicle for achieving
such a standard on a cross-border basis:
Firstly, the process of discussing and framing a charter of
rights may help to flesh out the commitments entered into
in the Agreement and create debate on the level of
protection of rights that should be guaranteed throughout
the entire island of Ireland. Secondly, if a text of a charter
is agreed, whether it is expressed to be declaratory,
programmatic or legally binding, it will provide a standard
against which the protection of rights and equal
opportunities in Northern Ireland and Ireland can be
assessed.
But if this rationale is to provide an objective for the
Charter, it will be essential for the Joint Committee to
carefully analyse existing protections in both jurisdictions,
with a view to identifying those areas where each
jurisdiction can borrow from the other to arrive at a better
approach. If such a methodology is adopted, the content
of the Charter would necessarily become much more
focused and targeted than the content suggested by the
Joint Committee in its pre-consultation paper. At the
same time, it is by no means clear that pursuit of
common equivalence is best obtained by the
construction of an all-island Charter. Even if the
Committee recognises it to be a desirable objective, it
might well conclude that a more suitable means for
achieving it would be to amend existing human rights
protections in both jurisdictions, leaving space for the
Charter to fulfil an alternative and equally worthy

objective.
2.
To augment or harmonise upwards human rights
protections in both jurisdictions
An even more ambitious objective stretching beyond the
expanded notion of common equivalence outlined above
is that of a Charter designed to augment the scope of
existing human rights protection in the domestic law of
both jurisdictions. Debate on the proposed content of the
Northern Ireland Bill of Rights has already focused minds
on the extent to which there is a need for additional
human rights protection in the domestic sphere going
beyond the parameters of the ECHR. Specifically,
attention has focused on the appropriateness and
feasibility of including economic, social and cultural rights,
protection for especially vulnerable groups like children,
and of rights which would more fully reflect the particular
circumstances of Northern Ireland as the Bill of Rights is
supposed to do. Likewise, reform and improvement of the
existing human rights frame work in the Republic has been
a persistent theme in the Republic, to varying degrees, at
least since the Constitution Review Group Report in 1996.
Therefore, some groups view the Charter concept as a
potential springboard for the construction of a fresh
instrument that will go beyond existing provisions in both
jurisdictions. Potential inspiration for any such instrument
might be drawn from international instruments heretofore
unincorporated in national law.
In this respect, there can be little doubt that Charters of
rights can assist in aligning national law with international
law. However, any conclusion as to the merit of this type
of instrument would need to be based on a very thorough
assessment of the gaps that currently exist between
national law and international human rights law in each
jurisdiction. That process cannot be fully informed until the
Bill of Rights is eventually drafted in Northern Ireland,
when it can be expected that the gap in Northern Ireland
at least will have narrowed considerably. If that process is
completed, some would argue that the equivalence
objective would trump this type of approach because of its

status in the Good Friday/Belfast Agreement:

Even if you get a joint Charter, unless its very detailed
which seems unlikely for political and legal reasons, its not
going to be as strong as the equivalence protectionsAt
best it will simply confuse people; at worst it will be used
as an opportunity to undermine the Bill of Rights, you
know lets go for a Charter which for both legal and
political reasons will have to be a lot more aspirational
than a bill of rights would be. Whereas, if we got a bill of
rights, then the Republic would come in beautifully on it as
could the rest of the UK.
Leaving aside this perspective, and assuming that the
relevant gaps between national law and international law
are identified, the Joint Committee would then need to
consider what international law needs to be incorporated,
and whether it should be incorporated in full or in part. If
in part, which parts and why? The importance of
coherence and consistency in any such endeavour cannot
be gainsaid. The NIHRC has been criticised in several
quarters in regard to its two draft Bills of Rights for not
being clear on why it has included some international
provisions and not others. The Committee would have to
consider whether a resulting Charter would simply restate
international obligations so that they apply domestically.
If so, would it draw on the exact wording, use them in
whole or in part or only use them to ensure domestic
protection is greater than that provided internationally?
The Human Rights Act and European Convention on
Human Rights Act already play some role in this regard,
but the question is what role other documents such as the
ICCPR, ICESCR, Framework Convention on National
Minorities, the European Union Charter on Fundamental
Rights and European Directives would play. At the very
least, the Committee would have to ensure that the text
they proposed did not fall below existing international
commitments of the two governments.
3. To operate as a pledge by political parties to act at all
times in furtherance of particular rights

A third possible objective of the Charter would be to serve

as a pledge for political parties in both jurisdictions to act
at all times in respect of or in furtherance of the rights
enshrined. The historical development of the Charter
concept and a textual analysis of the wording of paragraph
10 certainly indicate that this is the type of all-island
Charter originally envisaged by the drafters of the Good
Friday/Belfast Agreement:
...the Charter was seen as something which the parties
would sign up to all of the parties. It would be open to
signature by all of the parties on the island so that you
would have as it were the political establishment, as in the
parties to the political or democratic process, would have
committed themselves to safeguarding and upholding the
rights to be specified in the Charter.
It may be that this type of instrument was perceived as
providing a means of getting all parties on board after the
adoption of the Good Friday/Belfast Agreement, including
in particular those who were opposed to the Agreement. It
offered a way of leaving open the door for them to
participate in discussions. Its value would come in
providing a common floor of understanding on basic
minimum rights protection which could end a culture of
suspicion on both sides of the border:
Its again the concept that the two governments felt that
the fundamental rights were already enshrined but
werent being respected and this is really a nudge to the
parties. In other words we were going to get people like
the IRA and UDA, UVF etc. to sign up to this and help
people to exercise their rights. Their rights might have
been there in law but not in reality. The origin there again
was to get the parties to say that we are wholeheartedly
committing ourselves to anti-sectarianism.
In effect, an instrument of this nature could bind political
parties to adopt a rights-based approach to governance.
Of course, even if this was the purpose which was loosely
intended by the drafters of the Agreement, the Joint
Committee is by no means bound to implement it.

However, if this purpose is identified by the Joint

Committee as being an appropriate one for the Charter,
then the nature of rights and the method of enforcement
will need to be carefully worked out. This objective is more
likely to be achieved by delineating general principles to
which the parties can commit themselves, rather than a
detailed enumeration of substantive rights. Moreover, if it
is to attract unionist support, it can be nothing more than
a declaratory statement:
The success of any Charter will rely on the likes of the DUP
and the Unionists signing up to it and its clearly for them
to take a position on this but my own assumption would be
that they would not hanker for it being any more than a
declaratory statement because of the implications it has
for all-island institutions.
As a result, the Charter would be essentially declaratory,
not legally binding and voluntary because, in the words
of one of the drafters, there was to be no compulsion of
the political parties to sign up to it because nothing was
dependent on signing up to it.
However, the role of the two Human Rights Commissions
in such an enterprise must be questioned. Getting political
parties round the table to discuss human rights in
Northern Ireland has proved difficult so far. Using a
Charter of Rights for the island of Ireland as a tool may
initially appear attractive as a practical exercise, but given
that the title of the document suggests an all-Ireland
basis, this is not likely to appeal to all political parties,
particularly unionists. The Bill of Rights experience in
Northern Ireland illustrates the problem in giving a
constitutional and politically difficult task to a Human
Rights Commission. In short, if this format for the Charter
is pursued by the Joint Committee, it will need to reflect
very carefully on the role which it should play in bringing it
to fruition.
4.
To enhance North/South cooperation as provided for
in the Good Friday/Belfast Agreement

Given that paragraph 10 envisages that the Charter

should have an all-island basis, one conceivable purpose
for the Charter would be that of enhancing cross-border
cooperation on a practical basis. Viewed through this lens,
the Charter could be looked upon as a practical task on
which the Joint Committee could start work, by identifying
human rights issues which would benefit in particular from
coordination on a cross-border basis:
It fitted in very well, when we were looking at what to give
the Joint Committee to do. One of the areas we were
looking at was racism because obviously racism was a
difficulty facing both sides of the border so it seemed to fit
in perfectly to give the Joint Committee a programme of
work. My slight worry at the time was that the Charter was
interesting but we wanted cooperation across a whole
series of levels and we didnt want the Joint Committee to
focus too heavily on the Charter to the exclusion of other
matters. We wanted to give them the Charter to look at
but we didnt want them to think that the North-South
Joint Committee, which would be a substitute for the
single Human Rights Commission would be confined to
that areathats why we put among other matters in the
reference to the Joint Committee in paragraph 10.
This approach could offer the possibility of North-South
cooperation in targeted areas, culminating in a very
specific charter of rights tailored to these particular areas.
Certain human rights issues naturally lend themselves to
this type of cooperation, for example, the treatment of
travellers and asylum seekers; the campaign against
racism; language rights and linguistic diversity. It would
also be consistent with the emphasis placed on the
institutionalisation and expansion of North-South
cooperation generally in the Good Friday/Belfast
Agreement. This includes the establishment of the NorthSouth Ministerial Council (NSMC) in Strand Two of the
Agreement, with its triad of purposes to develop
consultation, cooperation and action within the island of
Ireland in regard to a number of distinct policy areas; the
British-Irish Intergovernmental Conference, whose brief
includes that of intensifying cooperation between the two

governments on the all-island and cross-border aspects of

areas such as rights, justice, prisons and policing in
Northern Ireland; and the emergence, albeit tentatively,
of a North/South consultative forum.
Indeed, despite North-South cooperation having been an
area of greatest difficulty during the negotiations, it has
since become an unlikely success story. Focusing on
practical, low level cross-border matters, relatively free
from political symbolism, has enabled unionists to accept
cross border bodies as necessary institutions for political,
economic, social and cultural well-being in Northern
Ireland, as well as improved relations between unionists
and the Republic. The close consultation between the two
Ministers responsible for agriculture in dealing with the
outbreak of foot and mouth disease on both sides of the
border in 2001 is an excellent example of how practical
problem solving can foster mutual trust and understanding
and bring about reconciliation in a very practical manner.
Indeed, the comments of Jeffrey Donaldson, speaking in
December 2001, are a good illustration of how far the
concept and indeed realities of cross-border cooperation
has come:
You will find today, more so than in 1974 with Sunningdale
and the Council of Ireland that there is less resistance to
North/South institutionalised cooperation. That is heavily
influenced by changes that have taken place in the
republic. It is seen today as being much less dominated by
the Roman Catholic Church, with changes to the
Constitution that reflect this. It has become a more open
society; a more modern society; economically, it is doing
very well[We} feel that perhaps we can do business with
the Irish republic in a manner that will be mutually
beneficial. So long as there is recognition of the principle
of consent, then the border is going to be there as long as
that is the wish of the majority of the population here but
that should not prevent cooperation between the two
areas that are part of the European UnionIf the NorthSouth ministerial Council and the Implementation bodies
are about cooperation between both parts of this island
then I think unionists rest easy.

Applying the logic of cross-border co-operation to the

issue of rights could, therefore, produce a possible
objective for the Charter, and one that at least deserves
consideration:
I just dont know, but I do think it is interesting to think
about these institutions that lie between the two
jurisdictions and whether the existence of a Charter might
be a safety net to ensure at least a minimum standard of
protection.
However, whether or not a Charter of Rights would be a
useful or indeed suitable vehicle to underpin that type of
cooperation would have to be thoroughly canvassed by
the Joint Committee. As one interviewee stated:
I mean there is no doubt that in other areas, legislation is
required to set the tone for things like fair employment,
but I think when that kind of cross-border work is basically
set to work principally on the basis of good will and
perceived benefits to both sides, I think that you can
exaggerate the benefits of a Charter if it was only going to
be covering just specifically the North/South relations.
This view was also expressed by another political party
representaive:
If it was just a case of sharing best practice, I think that
need could be readily fulfilled without it being
underpinned by a Charter because the legal position both
North and South is not convergent.
Certainly, this would appear to be the approach thus far
adopted by the Joint Committee to its programme of work,
whereby matters such as racism are worked on
independently to the Charter project. The suggestion
being made here is that it at least consider whether the
Charter could be a suitable end-purpose to this type of
cooperation.

D. Legal Status of the Charter and Enforceability

A decision on the appropriate objective for the Charter,
assuming one is to be drafted at all, will necessarily
influence the content of the substantive rights to be
protected by it as well as the legal status and method of
enforcement, if any, to be adopted. The pre-consultation
paper issued by the Joint Committee laid emphasis on the
method of enforcement as the distinguishing feature of
each of the models proposed. As the preceding discussion
has indicated, however, a preoccupation on the best
method of enforcement may have served to distract
attention from the objectives that could best be achieved
by a Charter. Having canvassed some of those
possibilities, it is possible to comment briefly on the
question of legal status and enforcement.
1. A Legally Binding and Enforceable Charter?
As noted above, one of the options mooted by the Joint
Committee (Model C) was that of a legally binding Charter
which would be enforceable in the courts of both
jurisdictions. At first blush, the attractions of a legally
binding and justiciable document are manifold. First, is its
visibility. It is something that can be more easily
publicised. Second, and perhaps most importantly, is its
practical advantage, in that it would guarantee aggrieved
individuals the possibility of obtaining redress in their
domestic courts for any alleged breach of the rights
guaranteed. Thirdly, it would be consistent with the
general thread running through the human rights
provisions of the Agreement, namely that of securing a
common basis for the protection of human rights
throughout the island of Ireland.
Many of the groups consulted by the Joint Committee in
the pre-consultation process strongly advocated this
approach. The Irish Council for Civil Liberties, in
particular, advanced the position that the benefits of this
model far-outweighed those of the others. In its view, a
legally entrenched charter would offer concrete protection
of rights, including of necessity the traditionally neglected

category of economic, social and cultural rights. Likewise,

Amnesty International viewed Model C as the preferred
option to push for by the Joint Committee, particularly in
its view because of the lack of an overarching legal
framework of human rights guarantees in the Republic of
Ireland. As a strategic matter, it took the view that the
starting point for the debate must be the most ambitious
target we can design, and we should dilute that model
where agreement is impossible.
The consultation paper does not set forth a blue-print or
mechanism by which a legally enforceable charter could
be achieved. However, it does point out the complex legal
issues that would arise in terms of bringing about its
fruition:
Would it have a higher status than other laws and, in
which case, which ones? Specifically, how would it relate
to the United Kingdoms Human Rights Act 1998 and to
the Northern Ireland Act 1998? And would it be
subordinate to the Irish Constitution or in some way
trump that Constitution? Would a special court be
required for the enforcement process and should the
involvement of some international judges be sought?
The rationale for embarking on such a complex
constitutional task is by no means clear, especially in the
absence of a clearly demonstrable need and objective for
the instrument in the first place. Similar questions were
raised in both jurisdictions during the drafting of the
Human Rights Act in the United Kingdom and the
European Convention on Human Rights Act 2003 in the
Republic of Ireland. The legal obstacles to constitutional
incorporation of the latter instrument were regarded as
being insurmountable and it is unlikely that the matter
would be regarded differently in the context of an allisland charter. The potential interaction of the Bill of Rights
in Northern Ireland with the Human Rights Act 1998 is
already such a contentious issue as to make it difficult to
conceive at this point how a legally entrenched charter
could be added to the legal landscape already emerging.

This type of Charter also raises serious issues in terms of

its political feasibility. It is not the type of instrument
which could attract unionist support as it may be
perceived as being akin to a de facto all-island
Constitution. And while it would offer the possibility of
something exciting and ambitious and puts the Human
Rights Commissions at the heart of the constitutional
process, it must be remembered that construction of an
all-island Charter of Rights would not take place within a
changing constitutional context. Any institution which
attempted to take on such a formidable task would have
to be very careful of such an ambitious approach when it
has not been accompanied by constitutional change in
society which may encourage people to move, give the
process impetus and encourage peoples enthusiasm.
Given that political parties in the Republic have shown
little enthusiasm for the Charter of Rights so far, and have
little knowledge of such, the Commissions should look to
the experience of the Bill of Rights in Northern Ireland
where it has now been recognised that it cannot proceed
without political party backing.
Lastly, it would seem that a legally binding document had
not been the intention of the drafters of the Agreement:
I dont think (and you can correct me if other sources
contradict me) there was ever a suggestion that it would
be a legally binding charter because as I said we already
have the Irish Constitution and will have a Bill of Rights in
the North so the legal provisions as regards buttressing
human rights were going to be there and the bill of rights
(its passage hasnt been easy and a final draft has not yet
been made) is going into considerably more rights than
the Southern Constitution (e.g. economic social and
cultural rights) because its a more advanced document.
2.

A Programmatic Approach?

A defining characteristic of the preferred approach

advocated by the Joint Committee in Model B was its
provision for a programmatic charter. According to this
model, signatories to the charter (including the political

parties in both jurisdictions, the two governments and the

Northern Ireland Executive, and potentially other
international guarantors such as the European Union or
the USA), would commit to a number of basic principles to
be progressively achieved as well as a programme for
their implementation. An independent body would then
be charged with the task of monitoring implementation in
a manner similar to that of the treaty monitoring bodies of
United Nations human rights conventions.
As noted above, this middle ground approach proved
popular among consultees. In their view, it offered a
compromise between the two extremes of the legally
entrenched model and the risk of the declaratory
approach whereby the charter would appear as nothing
more than a loose set of aspirational principles.
However, as some of the responses noted, the elaboration
of Model B is confused in some respects. While the
essence of the approach is initially stated as being limited
to certain basic principles, the list of rights advocated by
the Joint Committee as forming part of the charter is in
fact quite extensive. The legal status of this Charter is
also unclear. Would the commitment to implement the
rights progressively be legally binding on the parties
concerned or simply be akin to a programme of action,
the achievement of which is desirable but not necessarily
legally binding? Also, it is not clear whether this model is
directed primarily at political parties. If so, the extent to
which it would be possible to make such a commitment
legally binding on those parties is manifestly unclear in
the document.
Within the broad spectrum of objectives canvassed above,
there is certainly scope for a programmatic Charter. The
exact parameters of such an approach may vary, however,
depending on the chosen objective to be achieved. If the
objective of the Charter is to commit the political parties
to a rights-based approach to policy making and
adherence to the principles of non-violence, it may make
more sense for the Charter to take the form of a
declaratory instrument, though the format of particular
guaranteed rights may still be expressed in a

programmatic fashion. If, on the other hand, the

objective being pursued is to commit the two governments
to pursuit of the goal of equivalence or to cross-border
cooperation in particular areas, other models of
programmatic implementation might fruitfully be explored.
For example, one possibility would be the setting of very
specific policy objectives or targets as regards selected
human rights issues that each government would agree to
implement in a programmatic fashion. An example might
be the targets for social inclusion or gender participation
analogous to those set forth in the South African
Development Communitys Declaration on Gender and
Development. This Declaration calls for equal
representation of women and men in the decision-making
bodies of member states and SADC structures at all levels.
Member states have recently agreed in principle to
transform the Declaration into a legally binding Protocol
which it is hoped will accelerate further the
implementation of gender commitments.
Closer to home, equality mainstreaming initiatives in
Ireland and in Northern Ireland provide fertile ground for
analysis in terms of comparable measures in a
programmatic charter. Equality mainstreaming has been
defined as requiring in essence that equality be seen as
an integral part of all public policy making and
implementation, not something that is separated off in a
policy or institutional ghetto. Mainstreaming is a
quintessential aspect of any programmatic approach
insofar as the latter recognises the need to tackle
discrimination not just by means of formal antidiscrimination methods, but also by prioritising equality in
policy making and in practical measures. The most
significant difference in equality mainstreaming measures
between the two jurisdictions, however, is that while the
approach in Northern Ireland through the vehicle of s.75 of
the Northern Ireland Act 1998 is legally binding, the
approach thus far adopted in the Republic is not.
In the Republic, mainstreaming has been implemented
through a variety of programmes, beginning with gender

mainstreaming in the National Development Plan 20002006 and the development of poverty proofing in the
National Anti-Poverty Strategy and later in the National
Action Plan for Social Inclusion. Equality proofing has
also formed part of the Partnership 2000 national
agreement and in the Sustaining Progress Partnership
Agreement 2003-2005. While these measures are
laudable in terms of inculcating a substantive approach to
equality throughout the public sector, they have suffered
from a deficiency in commitment and resources. In
Northern Ireland, on the other hand, s. 75 of the 1998 Act
imposes a statutory duty on public authorities to promote
equality of opportunity between persons of different
religious belief, political opinion, racial group, age, marital
status or sexual orientation; between women and men
generally; between persons with disability and persons
without; and between persons with dependants and
persons without. A detailed schedule of the Act sets out
the measures to be implemented by public authorities in
order to comply with this duty, including the preparation
of an equality scheme for scrutiny by the Equality
Commission for Northern Ireland. If dissatisfied with the
scheme, the Commission may ultimately refer the
authority in question to the Secretary of State for Northern
Ireland who may impose an alternative scheme if
necessary. This approach is regarded as being infinitely
preferable to the more permissive method adopted in the
Republic and as being capable of yielding firm results.
McKeever and N Aoilin have already suggested the
adaptation of s.75 to the arena of social and economic
rights by the enactment of a new statutory duty in
Northern Ireland to promote and protect social and
economic equality. This begs the question of whether
such an approach might be imitable in the context of a
Charter of Rights more generally, particularly if the
emphasis were to be on matters such as, for example,
equality, poverty, racism and disability. This could take the
form, in the first place, of committing each of the two
governments and the Northern Ireland Assembly to setting
out concrete targets on the range of rights identified in the
Charter for a specific period of time. The method of

enforcement could involve requiring the enactment of

legislation which obliges all public authorities to take
cognisance of the identified rights in implementing their
policies and to take proactive measures to avoid violating
the rights. Alternatively, or even additionally, it could
involve establishing a monitoring body to assess the
appropriateness of the targets identified and the extent to
which they have been complied with in accordance with
the recommendations of the Joint Committee. The
establishment of such a monitoring system would certainly
give the document practical value, although the precise
mechanics would require careful evaluation. While
stopping short of a justiciable Charter of rights, and
provided that its terms are sufficiently finessed and
anchored to an identifiable objective, this type of
programmatic charter might well add value to the range of
rights protection already in place in both jurisdictions.
3.

A Declaratory Approach?

A third model mooted by the Joint Committee in its preconsultation paper is that of a purely declaratory charter
with no enforcement mechanism. This model is
perfunctorily dismissed by the Joint Committee on the
basis that it would only have symbolic value and could not
guarantee any practical difference to the protection of
human rights in either part of Ireland. Most of the
respondents to the pre-consultation paper dismissed the
notion of a declaratory charter on the same basis.
Amnesty International, for example, was particularly
trenchant in its opposition to this model and strongly
urged that this option be dropped and given no further
consideration. In its view, a non-enforceable declaration
would add nothing to the current human rights
provisions in the Republic or in Northern Ireland and would
be a minimalist and wholly inadequate response to the
processes enshrined in the Good Friday/Belfast
Agreement. Only one organisation actually advocated a
declaratory charter as offering the best scope of
enhancing existing human rights protection on the island,
in that it would complement current legislation and be
flexible enough to respond to developments in human

rights.
There can be little doubt that if a purely instrumental view
is taken of the Charter, an enforceable model, in whatever
guise, will always trump its declaratory counterpart. This
perspective is clearly the one taken by the Joint
Committee and most of the respondents to the preconsultation paper. However, it is worth re-examining
whether the almost mechanical dismissal of a purely
political declaration is appropriate without a deeper
consideration of its possible merits. In his analysis of
proposals for the Northern Ireland Bill of Rights,
McCrudden has indicated that discussion on the merits of
drafting that instrument simply as a political declaration
will also be an extremely important issue in the context
of discussions concerning the proposed all-island Charter
of Rights:
For some, the potential political significance of the Bill of
Rights is considerable even without formal legal effect, in
that by setting out for the first time the list of rights that
the community aspires to, it may increase the likelihood
that further discussion of the meaning of these rights may
take place and provide the opportunity to consider how
political action can be used to develop these rights further.
Before dismissing the declaratory model, the Joint
Committee itself identified some practical advantages to
this format. These include the likelihood of reaching
agreement on a declaratory model more easily and
speedily amongst the political parties of both parts of the
island; the fact that it could have inspirational effect and
because it could form the basis of a more incremental
approach to the protection of human rights in the future
when an enforceable model would be more easily
achieved. A declaratory model would also avoid the more
theoretical concern that an entrenched charter might lack
democratic legitimacy where there is considerable
controversy and disagreement as to its content. Critiques
of judicially entrenched bills of rights generally lament the
democratic deficit inherent in investing power in an
unelected judiciary to potentially overturn Acts of

Parliament negotiated by elected representatives. These

concerns surely apply a fortiori where negotiation of the
content of the instrument will have to straddle political
and ideological divides in not one, but two jurisdictions. A
further advantage of a declaratory approach is its greater
potential for inculcating a culture of rights and educative
value as compared with a legally binding charter laced
throughout with exceptions and qualifications.
Moreover, it is again important to point out that in the
absence of a clearly defined objective for the Charter to
begin with, it is a mistake to rule out a declaratory model
in principle. Those close to the drafting process have
pointed out that this option was probably the original
intention of the political parties and the two governments
in framing section 5 of the Agreement. As noted above, if
the chosen objective for the Charter was to be that of
committing political parties to act in furtherance of
particular rights, the argument for a declaratory charter
becomes most compelling. The negotiation process alone
for such a document could act as a trust and confidence
building measure on all sides of the political divides. Not
only might an enforcement mechanism be difficult to
apply to political parties which wield no executive power,
but it may run the risk of acting as a sledgehammer to
crack a nut since the incentive to comply with such a
charter would emanate from the more pressing imperative
to secure re-election:
Well political parties take their rise and fall from the
wishes of the electorate. So if one was to print a report
and the report was publicized that political parties were
not adhering to human rights requirements and needs.
Well if that is enough to shake the faith of the community
in them, well then that is the punishment that they
receive. I think that it doesnt need to be any more than
that.
If the policy goal to be achieved by the Charter was to be
that of cross-border cooperation in particular spheres, the
declaratory approach is evidently more suitable than a
legally binding model and arguably more suitable than a

programmatic approach. The inevitable governmental

preference for a declaratory approach to that of an
enforceable model where particularly detailed
commitments are concerned is obvious from the
comments of one political representative:
Enshrining so much in an enforceable charter could curtail
a governments ability to adapt to changing circumstances
or set spending prioritiesIn general, I would point out the
importance of ensuring that the charter is capable of
applying equally in each jurisdiction and is seen to do so.
This would be significantly more difficult if the provisions
were enforceable, particularly where there were cost
implications.
Finally, the charge that the declaratory model would have
a purely symbolic significance may be short-sighted, in
view of the examples that could be drawn on from other
quarters. While the EU Charter of Fundamental Rights, for
example, is still declaratory in nature and currently has
not binding force, it has been drawn on already by the
Court of First Instance and by a number of Advocates
General as a substantive point of reference in regard to
fundamental rights which the Union is bound to protect.
The Universal Declaration of Human Rights has been
drawn on for inspiration by national courts in articulating
the substance of rights protected by national law. The
example of the Harare Commonwealth Declaration 1991 is
also an instructive example, enumerating as it does
human rights standards to which the Commonwealth
association is committed. While it is doubtful that there
was ever any clear intention that member states would be
formally bound by the Declarations language, subsequent
developments have indicated that the Declaration could
also determine future membership criteria. Developments
such as these in their respective contexts indicate that
what may start out as a declaratory instrument may end
up adding value in ways not necessarily previously
envisaged by its drafters.
V. THE WAY FORWARD

A. The need to finalise the Bill of Rights process in

Northern Ireland first
As noted above, and as now recognised by the Joint
Committee, it is clear that the Charter of Rights is
dependent upon the Bill of Rights process for several
reasons. Firstly, it is not clear what the Bill of Rights will
contain or if it will be legally enforceable so any
assessment of a Charter based on the concept of
equivalence of rights or beyond is dependent on the
results of the process in Northern Ireland. Secondly, the
Bill of Rights process in Northern Ireland has been fraught
with difficulties and illustrates the problems of getting
political parties in Northern Ireland to agree, let alone
parties across the whole of the island of Ireland. Therefore:
It is premature, I think and we have not yet got all the
Northern Ireland parties together to talk about a Bill of
Rights for northern Ireland and until that happens, it would
be unwise to try and second guess what would happen
subsequently in terms of a Charter because the discussion
on the Bill of Rights may itself lead on to discussion
around the Charter and once people are talking, the two
may come together in some form. But I speculate.
Not only must a Bill of Rights process be finalised because
of the potential content of any document, but also
because it would indicate the political reality of being able
to get parties together. As a political party representative
commented:
The basis upon which we are cooperating needs to be
established first, which means that we need to see a Bill of
Rights established in Northern Ireland. I know the SDLP
would be keen to move to an all-island approach first.but
the very fact that they are bypassing the Bill of Rights and
going the all-island route puts the shutters up and the
very fact that it has been muttered that Dublin is
considering giving speaking rights to Northern
representatives in Leinster House again is something that
is putting the shutters up with me to say hey, hold on
good fences make good neighbours.

Lastly, the role of the NIHRC in drafting the Bill of Rights

some argue has lessened its reputation and legitimacy.
The Joint Committee must be wary of how it deals with the
Charter of Rights. The same issues seem to apply, what
role will such documents play? What value will they add?
What is the political context in which they have to be
considered?
B. Not to advocate an all-Ireland approach, but to see a
Charter as a point of collaboration
The Joint Committee should be aware that the concept of
an all-island Charter will result in a debate with strong
political undertones which have nothing to do with the
greater protection of human rights per se. The all-island
nature of the Charter may be attractive to nationalists.
However, Unionist politicians are likely to be suspicious of
the all-island aspect of the document. In bringing
forward its work on the Charter, the Joint Committee
should attempt to preserve the neutrality of the concept.
To do so, it should have a heightened awareness of the
political gains that this instrument offers nationalists and
the dangers of alienating unionist support for it. In order
to do so it will need to ensure that there is further
cooperation that provides real practical benefits without
unification by stealth. In addition, in whatever guise the
Charter may be forged, the Joint Committee should place
stress on the notion of corresponding obligation in regard
to the contracting parties, as this might be something that
unionist politicians could more easily sell to their
constituents.
C. Consultation
The Joint Committees pre-consultation process failed to
ignite a significant debate, even amongst a targeted
audience on the value of an all-island Charter of rights.
Nonetheless, the limited response which the preconsultation paper did provoke has highlighted the myriad
of issues that must be faced by the Committee in any
future attempts to reinvigorate the Charter concept.

Although the Committee clearly recognises that

consultation is important, this needs to be balanced
against an agreed view from the Commissions themselves
and some clear consensus as to what the document will
actually contain. Submissions and consultation from the
stakeholders and the public are likely to produce a wide
range of opinions and beliefs, and the Committee needs to
find some way of not only consolidating those but more
importantly coming to their own conclusions and own
consensus, based on their expertise, as to the best
document as a result.
Secondly, in the process of this consultation, it is
important that the Joint Committee engages the political
parties since the Agreement clearly puts political party
acceptance at the heart of the proposed Charter. As the
President of the Irish Human Rights Commission has
himself concluded:
My own personal view is that, if we want to prevent the
process getting out of control and if we want to make the
exercise politically meaningful, we need to engage the
political parties. Unless the political parties are prepared
to engage, nothing will happen. That view may not please
some in wider civil society, but it is the reality.
Although it must not be used as political football, the Joint
Committees success in producing a document which is
likely to be implemented will depend in large measure on
its acceptance by and involvement of the political
stakeholders. Related to this is the need for the
Committee to be clear on what role they wish themselves
to play and that of the political parties to play in the
process. To what extent will the political parties have the
final say on the content of the document, or will this be for
the Joint Committee to determine? How will the Committee
deal with any issue on which the political parties disagree
with them? It may be important to set out at the start
what is realistic and what role they would expect to
achieve.
Thirdly, a Charter can provide an accessible code for the

public of their rights. Research shows that the knowledge

of rights and perception of rights in both Northern Ireland
and the Republic is lacking and there is a considerable
need for education. If a Charter is to fulfil this role, not
only in the process of its adoption, but also as one of its
central aims, this requires that the text is readable, brief
and there is a sense of ownership over its contents, thus
requiring a wide consultation process. This has most
certainly been the lesson learned from the drafting
process of the South African Bill of Rights as well as that of
Canadian Charter of Rights and Freedoms. The
consultative process embarked upon to secure agreement
on the EU Charter of Fundamental Rights is often held up
as a blue-print for negotiation and consultation for any Bill
of Rights. However, it must be remembered that the
limited resources of the two Commissions would make it
virtually impossible for it to embark on a wide-ranging
consultative process. Consequently, continued lobbying
of the two governments for the allocation of a fixed budget
to the Joint Committee itself or to the Commissions
independently for this purpose would have to be
prioritised by those bodies if a truly meaningful
consultation process is to be established.
D. The need to appreciate the complexity of the task at
hand
There must be a clear timeframe that is realistic and not
necessarily immediate. If a Charter is to be drafted with
the consultation of many, and the development of a close
relationship with political parties, this is more likely to take
years not months. Although the Commissions state in their
pre-consultation document that even a Model B approach
will not be too difficult to secure the agreement of the
political parties throughout the island of Ireland to such a
charter, this is unrealistic. The NIHRC has already faced
considerable difficulties when dealing with the phrase
particular circumstances of Northern Ireland in the
Agreement in the context of the Bill of Rights and in terms
of what the Bill of Rights should contain. Some, among
them unionists, have argued that this phrase requires the
Commission only to consider certain rights and take into

account the wider UK context so as not to entrench rights

in Northern Ireland that are not offered elsewhere in the
UK. Others, however, believe the Commission should take
a holistic and broad approach, and include provisions such
as economic and social rights. Even setting out
fundamental rights or basic principles such as those
mentioned in the pre-consultation document has not been
straightforward in the Bill of Rights in Northern Ireland.
For example, among the fundamental rights mentioned
by the joint committee in its pre-consultation document
are the rights of communities. The Commission in
Northern Ireland has faced considerable difficulties in
defining these rights in the context of the Bill of Rights,
and has been criticised for confusing the terms and rights
of communities as opposed to minorities and
suggesting provisions which may undermine various
provisions of the Good Friday Agreement itself. The fact
that the Charter is intended to be a document for the
island of Ireland adds to the politically fraught difficulties
of this task for the two Commissions. Further, these issues
cannot be examined without considering the implications
for the UK as a whole, particularly when this has been a
concern raised by unionist parties in particular in Northern
Ireland with respect to the adoption of a Bill of Rights
there.
VI. CONCLUSION
The above analysis has advocated that a number of basic
issues need to be revisited by the Joint Committee before
it makes any further moves to resurrect the concept of the
all-island charter of rights in the Good Friday/Belfast
Agreement. First is the need for the Committee to reevaluate the extent of its role in relation to the Charter,
analysing in particular whether it is necessarily mandated
by the Agreement to produce a text of a potential charter
for consideration by the two governments and the
Northern Ireland Assembly. Certainly, the wording of the
Agreement suggests that the Committee, at the very
least, must analyse existing human rights protections in
both jurisdictions and arrive at a consensus on whether

there is a need to supplement these by means of an allisland Charter. This will inevitably involve taking time to
consider the appropriateness of adopting yet another
document on human rights, rather than using existing
instruments to promote a culture of rights or enhance
protection. An aspect of this enquiry will also necessitate
consideration of the possible objectives of any such
Charter, what its underlying values would be, its
relationship with other human rights provisions and the
legal context in which it would operate, and the best
method, if any, of enforcement. In the current climate,
where the Charter has aptly been described as being
marooned in political apathy, there can be little doubt
but that the Committee has its work cut out for it.
Progress will inevitably be slow and cannot realistically be
completed until a clearer picture of the likely content of
the Northern Ireland Bill of Rights emerges. In the
meantime, it is hoped that the above observations may be
of some assistance in reinvigorating a more forthright
assessment of the possibilities inherent in the concept of
an all-island charter of rights in the Agreement.

This is the provision of the Good Friday

agreement of which UK will be in
breach if Theresa May got her way on
ECHR.

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech
yesterday which included a call for the United Kingdom
to leave the European Convention on Human Rights.
The speech is set out in full at ConservativeHome, and
(as it appears to be a statement on behalf of her
department) it is also now on the Home Office site.
The statement is, of course, more about the politics of
Brexit and succession to the Tory leadership than

anything serious about law and policy. It is a sort of

counter-balance to her position on the UK remaining in
the European Union.
For a number of reasons, not least that the Good
Friday agreement requires the ECHR to have continual
legal effect in Northern Ireland, this demand will go
nowhere.
(I set out the seven hurdles for repeal of the Human
Rights Act and for UK leaving the ECHR including
the problems presented by Northern Ireland and
Scottish devolution in a post here last May.)
Given the office Theresa May holds, it is worth taking a
moment to look at the Northern Ireland point, for the
UK to leave the ECHR would require the UK to reopen
and renegotiate the Good Friday agreement.
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Any change to the agreement would, in turn, require

fresh referendums in Northern Ireland and the Republic
of Ireland.
It would also risk alienating the nationalists who
accepted the Police Service of Northern Ireland only as
long as it was subject to the ECHR.
It is, in all, a remarkable demand for a serving Home
Secretary to make, and it is also extraordinary for the
Home Office to post the statement on their own site as
if it is government policy and here it should be noted
that policy on the Human Rights Act is (supposedly)
under the Ministry of Justice, and not the Home Office.
This does not seem thought through. One suspects the
Home Secretary does not realise (or does not care)
about the implications of the UK leaving the ECHR
perhaps her desire to send a political signal to Tory
back-benchers and the popular media is too great
Convention_on the first instance it would not be
necessary to leave the entire European Convention
, it would be enough for the UK to formally
withdraw its consent to be bound by Article 46
as amended by Protocols Nos. 11 and 14
supplemented by Protocols Nos. 1, 4, 6, 7, 12 and
13
The High Contracting Parties undertake to abide by the
final judgment of the Court in any case to which they

are parties"
If the response was "You can't do that" then our reply
should be "We just have, and you can like it or lump it.
We've given plenty of warnings that we are fed up with
many of the decisions of this court and now we've
decided that we will simply ignore them. This is our
way to do that honestly and openly, in fairness to our
counterparties in the Convention, rather sneaking
around trying to find ways to get out of implementing
judgements."

http://www.echr.coe.int/Documents/Conventio
n_ENG.pdf

This publication
was published
under the
1997 to 2001
Labour government
The Belfast Agreement, also
known as the Good Friday
Agreement, was reached in multiparty negotiations and signed on
10 April 1998.

https://www.gov.uk/government/uploads/syst
em/uploads/attachment_data/file/136652/agr
eement.pdf

Human Rights Act 1998

http://www.legislation.gov.uk/ukpga/1998/42/
data.pdf

The commitment to repeal the Act and to

replace it with a British Bill of Rights is in 2015
Conservative Manifesto.
https://s3-eu-west1.amazonaws.com/manifesto2015/Conservative
Manifesto2015.pdf
Devolution Memorandum of Understanding and
Supplementary Agreements
http://www.gov.scot/Resource/0043/00436627.p
df

Brexit should be scrutinised as it

happens say Lords
http://www.parliament.uk/docume
nts/lords-committees/euselect/brexit-parliamentaryscrutiny/Brexit-parliamentaryscrutiny-evidence-volume.pdf

Enda Kenny and

Micheal Martin
grandstanding
about a united
Ireland', says
Martin Mansergh

EndaKennyandMichealMartingrandstandingaboutaunited

Ireland',saysMartinMansergh"title="EndaKennyandMicheal
MartingrandstandingaboutaunitedIreland',saysMartin
Mansergh"class="imgresponsive"/>
Dr Martin Mansergh has warned that talk of a border poll is
'disruptive and destabilising'

FORMER Irish government adviser Martin

Mansergh has warned that talk of a border
poll is "disruptive and destabilising".
Mr Manseragh, a former senior adviser to a
number of taoisigh, has also claimed Enda
Kenny and Michel Martin are "grandstanding
about a united Ireland".
Speaking about remarks made by the
Taoiseach and the Fianna Fil leader about a
possible referendum on the status of
Northern Ireland, he said it was a "complete
misrepresentation to say that a border poll is
now more viable than before the Brexit
result".
Mr Kenny last week raised the possibility of a
border poll on a united Ireland as part of the
Brexit negotiations.
Mr Martin later said he hoped the Brexit vote
"moves us towards majority support for
unification, and if it does we should trigger a
reunification referendum".
But Mr Manseragh, who helped to negotiate
the Good Friday Agreement for Taoiseach
Bertie Ahern, criticised the remarks made by
both politicians on Monday night.
"I think theres a certain amount of defining,
stroking and refining positions in order to not
make it look as if Sinn Fin is the only party
that has an interest in this," he told

TheJournal.ie.
"I think the Taoiseach's remarks were
exceptionally hypothetical, Michel Martins
likewise.
"I think they both recognise that the
conditions don't exist (for a border poll)."
Mr Manseragh also dismissed suggestions
that a border poll was now more viable.
"Although I dont think Sinn Fin are
misinterpreting it, I think they are using it to
push an agenda for a united Ireland," he
added.
"They have long wanted a border poll, fully
realising it would be lost, but to set up
momentum for the future - but Im not sure it
works like that to be honest.
"I also think its very disruptive and
destabilising to get people going back into
the trenches in a fundamentalist sort of way,
unionism versus a united Ireland."
http://www.irishnews.com/news/2016/07/26/n
ews/martin-mansergh-kenny-and-martingrandstanding-about-a-united-ireland-622482/

The Impact of Withdrawal from

the European Union upon
Northern Ireland
July 2016

As the only region containing a land frontier with a

European Union from which the UK has chosen to

depart, Northern Ireland will be particularly

significantly affected by withdrawal. It is the prospect of
the return of a hard border partitioning the island of
Ireland, not seen since the Troubles, which is perhaps
of greatest concern. However, the status of the border
is only one of several issues vexing Northern Ireland.
This report concentrates upon the four most
important: the lack of consent for withdrawal; the
impact upon the Good Friday Agreement; the
hardening of the border; and prospects for crossborder trade.

The lack of consent for

withdrawal
The withdrawal of Northern Ireland from the EU lacks
local democratic legitimacy, in that the region voted by
56 per cent (440,707 votes) to 44 per cent (349,442) to
remain. The Northern Ireland vote amounted to 0.2 per
cent of the 17,410,742 total UK Leave tally and 0.3 per
cent of the Remain side's support. Nationalist areas
voted strongly to remain, Foyle providing the third
highest percentage remain vote in the UK, the highest
outside London. Majority Unionist areas were much
more evenly divided, but mainly voted in favour of
withdrawal. However, Fermanagh and South Tyrone
the constituency of Arlene Foster, the Democratic
Unionist Party (DUP) First Minister of Northern Ireland
returned a 59 per cent Remain vote on the highest
turnout (67 per cent) in the region. Locally, the contest
was marked by modest turnout; at 63 per cent, it was 9
per cent lower than the UK figure. Public opinion

appeared largely unchanged in the year preceding the

referendum, the 2015 Northern Ireland General
Election survey having indicated an 11 per cent lead for
Remain twelve months earlier.1
Withdrawal from the EU will eventually require the
parliamentary repeal of the European Communities Act
(1972), which allowed the UK to join the (then)
European Economic Community and enshrined the
supremacy of its law. This repeal will presumably arrive
at the end of the Article 50 withdrawal process.
Ultimately Westminster determines Northern Ireland's
membership of, or withdrawal from, the EU. A recent
House of Lords European Union committee report
stated in respect of Scottish exit that the Scottish
Parliament's consent would be required before the
extinguishing of EU law, based upon a view offered by
Sir David Edward, a former Judge of the Court of Justice
of the European Union.2 The Committee extended this
view to suggest that, given how the European
Communities Act is entrenched in the devolution
settlements in Northern Ireland and Wales, the
committee has no reason to believe that the
requirement for legislative consent for its repeal would
not apply to all the devolved nations.
However, the withholding of consent for EU withdrawal
by the Northern Ireland Assembly would be a purely
symbolic gesture, given the Westminster sovereign
override. Westminster determines EU policy, including
membership, for Stormont. However futile resistance
may be, consent for an EU exit will certainly not be
forthcoming from the Northern Ireland Assembly,
based upon party stances. It would be supported by

only approximately one-third of the 129 membersthe

thirty-eight belonging to the DUP, the solitary
Traditional Unionist Voice representative and possibly a
very small number from the Ulster Unionist Party's
sixteen-strong contingent (against leadership policy),
while the left-wing People Before Profit's two members
might back withdrawal. All other parties are strongly
opposed to exit. Key decisions for Northern Ireland are
taken in the Assembly on the basis of parallel crosscommunity consent, which clearly does not pertain in
this case, given that the two nationalist parties of the
SDLP and Sinn Fein strongly oppose withdrawal.
However, this is a key decision beyond Stormont's
scope.
The Social Democratic and Labour Party (SDLP) leader,
Colum Eastwood, has urged that every parliamentary
and diplomatic tool must now be used to maintain the
North's membership of the EU whether it is through
the Danish model of selective territorial membership or
via another creative exemption, every legal and
logistical avenue must now be explored.3 Although
surely doomed to fail, legal challenges to withdrawal
could conceivably delay the process. In contrast, the
DUP position is that the UK government will negotiate
on Northern Ireland's behalf, with Arlene Foster
dismissive of the Irish government's tentative idea to
establish a NorthSouth forum to discuss implications
of the UK exit.

Implications for the Good Friday

Agreement

Northern Ireland opponents of EU withdrawal can use

the Good Friday Agreement to bolster their case. The
1998 deal pledges close cooperation between the
British and Irish governments over its contents as
partners in the European Union. It pledges the North
South Ministerial Council, established under Strand
Two of the deal, to consider the European Union
dimension of relevant matters, including the
implementation of EU policies and programmes. The
views of the Council must be taken into account and
represented appropriately at relevant EU meetings.
Withdrawal means the UK cannot do this and is
potentially in breach of a binding international treaty.
The Irish government could legitimately take the matter
to the United Nations and the UK government could be
obliged to defend a reneging before the International
Court of Justice, although that scenario is far-fetched.
Alternatively, the Irish government could agree to
renegotiate the 1998 Agreement and allow the UK to
replace references to the EU with the EEA, or other
arrangements as appropriate, but where is the
incentive for the Irish government to allow the
dismantling of an aspect of what is widely held as a
model peace and political deal? The Irish government is
traditionally europhile, even if the Irish electorate has
become less so in recent times, needing a second
referendum to uphold the Nice and Lisbon treaties. The
EU component of the Agreement was hardly central to
its workings, which are most important in respect of
power-sharing within Northern Ireland, but
international agreements cannot be cherry-picked.
There may be demands that any revised Good Friday

Agreement be put to the electorates North and South,

as it was in 1998. If the British or Irish government fails
to act to uphold the Agreement in its current form, it is
likely that other political parties will act. This might be a
more fruitful route for Sinn Fein than calls for a border
poll on Irish reunification, which will not be granted by
the UK Secretary of State and would in any case be lost
for the republican cause if confined to Northern
Ireland.
Strand Three of the Good Friday Agreement has also
indirectly fuelled the debate over EU membership.
Although the Conservative government will act on the
basis of the UK as an entirety, variable geometry of
belonging is apparent. Guernsey, Jersey and the Isle of
Man are three UK dependencies which form part of the
BritishIrish Council established under Strand Three of
the 1998 deal but do not belong to the European
Union. Exponents of flexibility4 argue that while
England and Wales can leave the EU, separate
arrangements can pertain to other parts of the UK,
pending the resolution of UK status via a border poll
(Northern Ireland) or independence referendum
(Scotland) following the alteration of the terms of union
precipitated by EU withdrawal.
A further awkward aspect of UK withdrawal relates to
the European Convention of Human Rights (ECHR). The
Convention is not an EU institution, but secession from
the EU may embolden those in the Conservative party
seeking to replace adherence to the ECHR with a UK Bill
of Rights. Again, this would be at odds with the Good
Friday Agreement in which the British government
committed to complete incorporation into Northern

Ireland law of the ECHR, with direct access to the

courts, and remedies for breach of the Convention (p.
20), and retreat from this pledge may be subject to
legal challenge.
Political parties responses to the challenges posed to
the Good Friday Agreement by Brexit have been
predictably variable. While accepting the vast bulk of its
content in the 2006 St Andrews Agreement, the anti-EU
DUP never supported the Good Friday Agreement and
regards its references to the EU as irrelevant. The
DUP's government partners in Sinn Fein take a
diametrically opposite view in defending the
Agreement. The SDLP has been the most pro-EU party
in Northern Ireland, in the 1990s even advocating a role
for the EU Commission in directly running the region.
Its strong promotion of the Good Friday Agreement has
been within the party's ideological outlook of a Europe
of the Regions. The UUP response, as co-architects of
the Agreement with the SDLP, has been more mixed.
The current leadership defend the deal and the EU, but
the party leader at the time of the Agreement, David
Trimble, now a Conservative peer, advocated Brexit.

Hardening the border

Fears of a return to a hard border between Northern
Ireland and the Republic of Ireland may be
exaggerated. The security checkpoints of the 1970s
1990s era were a response by the British to the threat
from an IRA operating on both sides of the border. The
deployment of British military personnel and
installations further alienated the republican section of
the border population sympathetic to the IRA. The

modern-day dissident IRAs, although still a threat, are

much smaller, not as active and afforded less traction
by republican border communities. There is also no
desire for the British government to revive the security
focus of the Troubles. It would take an unforeseen
upsurge in armed republican activity for this to change.
Beyond the old conflict, however, there are obvious
tensions between the maintenance of an open border
and the aspiration to control immigration. Bereft of
border controls, there will be no obvious way of
preventing large numbers of EU nationals entering the
UK from the EU by crossing the border between the
Republic of Ireland and Northern Ireland. Self-evidently,
there is the possibility of large numbers of EU nationals
seeking to live and work in the UK entering via this
route, across a border currently marked only by an
occasional sign and a few currency huts for euro
sterling exchanges.
While the UK would retain the right to deport those
arrivals entering illegally (by, for example, failing to
satisfy an immigration points system which may be put
in place), without knowledge of such arrivals, UK border
agencies would find it impossible to act meaningfully
within Northern Ireland. The UK could conceivably
confine its border control frontier to England, Scotland
and Wales as an alternative. This would potentially
place Northern Ireland within a more overtly Irish
context, a feature which would be welcomed by
nationalists but might concern unionists. In the
absence of a significant paramilitary threat (although, if
revived, one that might target British customs posts),
the Irish government will be unwilling to undertake

border policing on behalf of the British government.

The border has diminished greatly in salience in recent
years, albeit not in constitutional terms, with unionist
versus nationalist differences over its long-term future
still dominating Northern Ireland politics. The
pragmatic benefits of cross-border trade and ease of
movement have become accepted as routine. A
majority of unionists now accept the NorthSouth
bodies established under the Good Friday Agreement.
By far the most significant of those bodies is the Special
European Union Programmes Body (SEUPB), which
manages cross-border EU structural funds. The SEUPB
implements the EU Programme for Peace and
Reconciliation in Northern Ireland, which has
amounted to four peace programmes financially
underwriting the peace process, providing more than
1.3 billion euros of funding. These projects have
diminished the border's salience, vastly improved
cross-border transport links and brought the two main
communities together in seeking joint funding. The
current Peace IV programme is due to expire in 2020,
but an earlier Brexit will see the curtailment or
abandonment of several projects. The EU's promotion
of reconciliation and an all-island infrastructure has not
shifted identities. Only 4 per cent of the population see
themselves as European, with the bulk adopting British,
Irish or, to a lesser extent, Northern Irish identities. The
perception of the EU has tended to be that of a
generous cash cow.5 That generosity, allied to the allisland commonalities of EU citizenship, has ameliorated
the physical border and diminished the political
hostilities emanating from its existenceadvances

which may now be tested.

Cross-border trade
Cross-border trade between Northern Ireland and the
Irish Republic has increased significantly during the
past two decades of relative peace. The question raised
is what happens to such trade in a new era likely to
involve tariffs placed upon UK goods heading into the
Irish Republic and on UK imports from across the
border? Such a scenario may be avoided if the UK buys
into a European Economic Area agreement, or a
bilateral deal is agreed between the UK and Ireland
permitting a special customs arrangement allowing
goods and services to travel between the two states (or
possibly Northern Ireland and the Irish Republic only)
free of charge. Either would have to be approved by all
Member States of the EU, and the chances of approval
of a bespoke deal benefiting only the UK and Ireland
and at odds with core EU principles appear remote.
That an a la carte trade arrangement would benefit
Northern Ireland, the UK more widely and the Republic
of Ireland can hardly be doubted, and special treatment
possesses historical, geographical, economic and
political justifications. The economic case for the
avoidance of tariffs is pressing upon the Republic of
Ireland. In total 34 per cent of its exports of goods and
services go to the euro zone, of which almost half go to
Britain, the highest single reliance upon British
purchases of any EU country.6 It is unsurprising
therefore that the Taoiseach has been in no rush to
endorse those desirous of a punitive response to
Brexit.

However, as the EU represents its largest export

market, withdrawal matters even more to Northern
Ireland than it does to the Irish Republic or the rest of
the UK. Exports to EU countries are likely to suffer from
the imposition of tariffs. Growth in such exports has
considerably outpaced that to non-EU countries in
recent years and amounted to 3.63bn in 2014,
compared to 2.53bn of non-EU exports,7 while
Northern Ireland is also more reliant upon imports
from the EUnow likely to be more expensivethan
other parts of the UK. The importance of Northern
Ireland's currently tariff-free trade relationship with the
Irish Republic is apparent, with 37 per cent of the
North's EU exports heading there, amounting to 21 per
cent of its entire exports. Northern Ireland's EU trade
dependence has been such that a 3 per cent reduction
in the region's GDP has been calculated as the likely
outcome of withdrawal.8 While some local measures
were already in place to boost the local economy
regardless of the referendum outcome, notably the
plan to cut corporation tax to 12.5 per cent in April
2018, economic effects upon Northern Ireland may be
particularly severe. Sectoral impacts will vary but, given
that the region contains the most agricultural economy
of any part of the UK, potential impacts upon farmers
are especially noteworthy. Common Agricultural Policy
(CAP) payments provided 60 per cent of their cash
income in 201415.9 Northern Ireland's farmers receive
among the highest payments-per-hectare annual
awards in the EU and 9 per cent of the UK's total
allocation of EU pillar payments, with these subsidies
and presumably some farms now on borrowed time.10

Conclusion
A number of uncertainties pertain to Northern Ireland's
departure from the UK. The Good Friday Agreement
will require alteration, the physical status of the border
may change slightly and the improvements in crossborder trade evident in recent years may be reversed.
Prior to Brexit, relations between the UK and the Irish
government had never been better and the cooperative
bilateralism which emerged during the peace process
was abetted by shared EU membership. The pragmatic
logic of continued cooperation may ensure that
difficulties are surmounted and BritishIrish
exceptionalism, long evident in such matters as voting
rights in the UK for Irish citizens, is likely to be seen in
terms of permitting free movement across a soft land
border between Northern Ireland and the Republic of
Ireland. This may of course displease those in the UK
desirous of much tighter controls, and may meet
opposition within the EU from those wanting sanctions
against the UK. Given the majority opposition within
Northern Ireland to withdrawal from the EU, the
process of UK disengagement will not represent a
fulfilment of desires to take back control, the
campaign slogan favoured by those wishing to leave
the EU.
T

Notes
1J. Tonge, The 2015 Northern Ireland General Election
survey, UK Data Service, SN 7523,
https://discover.ukdataservice.ac.uk/doi?sn=7523#1 (accessed
6 July 2016).
2House of Lords European Union Committee, The
Process of Withdrawing from the European Union,

T
T

T
T

T
T

Westminster, House of Lords, 2016.

3C. Eastwood, North's Remain vote must be respected,
Irish Times, 4 July 2016.
4B. O'Leary, Detoxifying the UK's exit from the EU: a
multi-national compromise is possible, 27 June 2016,
http://blogs.lse.ac.uk/brexitvote/2016/06/27/de-toxifying-theuks-eu-exit-process-a-multi-national-compromise-is-possible/
(accessed 5 July 2016).
5See e.g. L. McGowan and J. O'Connor, Exploring
Eurovisions: awareness and knowledge of the European Union
in Northern Ireland, Irish Political Studies, vol. 19, no. 2, 2004,
pp. 2142.
6See Ireland post-Brexit: put asunder, The Economist,
28 July 2016, p. 33.
7A. Stennett (2016) The EU referendum and potential
implications for Northern Ireland, Northern Ireland Assembly
Research and Information Service Research Paper, NIAR 32-16.
8Ibid., p. 8.
9Department of Agriculture and Rural Development,
Farm Incomes in Northern Ireland 201415, Belfast, DARD,
https://www.daerani.gov.uk/sites/default/files/publications/dard/farm-incomes-innorthern-ireland-2014-15-final.PDF (accessed 8 July 2016).
10M. Allen, E. Downing, T. Edwards, N. Seaton and
M. Semple, Cap Reform 2014-20: EU agreement and
implementation in the UK and in Ireland, RaISe paper 702-14,
30 October 2014,
http://www.niassembly.gov.uk/globalassets/Documents/RaISe/
Publications/2014/dard/allen10314.pdf (accessed 5 July 2016).

http://onlinelibrary.wiley.com/doi/10.1111/146
7-923X.12288/full
What exactly is the author aiming for?It is not Brexit, but
UKexit.Next we read that each constituent nation, such as they
are geographically speaking, has a right to opt out of
Brexit/UKexit.The UK is a united kingdom.
Scotland voted to remain part of it.Now it has voted as part of the

UK in a referendum.Is it Brexit for the lot, minus any which after

the fact wish to secede?Is it UKexit without the UK exiting at all,
but only England and Wales?Is this a story to support the wish for
the establishment to ignore this pure democratic result?
The EU leadership is known for disregarding democratic
outcomes in order to steamroller ahead with EU
federalisation.This makes the EU more unpopular.Now there are
moves afoot to disregard the results of this referendum in order
to have business as usual under the guise of Brexit-light on the
part of the Bremains who do not accept the outcome.Some
elected representatives in Parliament are now starting to behave
as if they were EU apparatchiks.Come the next general election,
assuming the country will not be hijacked and the general
franchise abolished, do Bremainers propose to disregard the
result if it is not to their liking?
The EU issue will not go away, no matter what. Assuming that
democracy as a poitical system can be railroaded, as the mood
amongst Bremainers indicates, does not bode well for the future.
Well Mr OLeary, maybe I dont disagree as much as you appear,
to me, to assume.Your explanation makes your position clear, yet
the use of Brexit and UKexit are still counter-intuitive.That the UK
is constituted thus I never dispute, nor that Scotland and
Northern Ireland may decide to go their own way and rejoin the
EU on their own account.As it stands, if Brexit goes ahead, the
entire UK will be out of the EU.
Where you make it convoluted is your suggestion that the UK did
not vote as one.I have followed the campagning on the
referendum from the start.I have not once got the impression
that Scotland and Ireland were not locked into the result.I might
be wrong here, though I dont think so.What I object to is the
implication of your explanation, that Scotland and Northern
Ireland did not vote as part of the UK membership of the EU.
My view means that I believe your position is designed to upset
what I see as a purely democratic vote.Your position on the union
of one and the union of the other is niether here nor there.The
UK is the EU member, the UK voted as one on the matter.If any
part of the UK wishes to vote again, or use the outcome as per the
nation and people in question to secede from the UK and try to
join the EU, good luck to them.
Maybe I dont see your point, maybe you dont want to see
mine.Seeing the nonsense which the Bremain lobby and the
government of the UK has delivered to get the people to vote

remain, in vain, I do not think any argument from now on is going

to make any difference to the future of the UK.The peoples in the
UK will fight it out with their various governments through casting
their votes as and when they are allowed.What happens when
elected representatives continue to disregard majority votes is
anybodys guess, but again, the UK voted as one on UK
membership of the EU.Your argument that Scotland and Northern
Ireland voted severally as independent members of the EU, or
implying such, does not stack up.
A good piece and very interesting but regarding:
Recall first that many UK dependenciesincluding three
members of the British-Irish Council, Jersey, Guernsey and the
Isle of Manare currently not part of the European Union. So its
already true that sovereign states, including the UK, have parts of
their territories subject to their sovereignty within the European
Union, and parts of them outside.
the Crown Dependencies are not part of the United Kingdom.
More here:
https://en.wikipedia.org/wiki/Crown_dependencies

Background briefing on the Crown

Dependencies: Jersey, Guernsey and
the Isle of Man
http://www.justice.gov.uk/downloads/about/m
oj/ourresponsibilities/Background_Briefing_on_the_
Crown_Dependencies2.pdf
AGREEMENT ON THE EUROPEAN ECONOMIC
AREA
http://www.efta.int/sites/default/files/docume
nts/legal-texts/eea/the-eea-agreement/Main
%20Text%20of%20the
%20Agreement/EEAagreement.pdf

Does the British Constitution need statutory protection

from the excesses of the CJEU?
Professor Derrick Wyatt QC, Brick Court Chambers
For me, discussing the Court of Justice has always involved a paradox.
One the one hand, it has injected the rule of law into every aspect of the
EUs activities.
On the other, some of its decisions undermine the rule of law because
they have no legal basis, and amount to judicial legislation. I shall not
dwell on this latter point. I developed it at some length in a lecture in
November arguing that the Court of Justice needed a new judicial
approach for the 21st Century http://www.biicl.org/event/1124
I rest on the evidence therein.
For the avoidance of doubt, the cumulative effects of the Courts judicial
failings will not lead me to vote to leave the EU. But I do think that
judicial default by the Court has undermined confidence in the EU in the
UK, and has encouraged some opinion formers to argue for Brexit.
So, the Court of Justice is the guardian of the rule of law, but who is to
guard that guardian?
In his Chatham House speech of 10 November last, the Prime Minister
floated the possibility that the UK might adopt constitutional safeguards
similar to those which exist in Germany and other EU countries. Two
situations were identified where safeguards might apply. In one there is
a threat to a fundamental freedom in the national constitution. In the
other a judgment of the Court of Justice exceeds the powers conferred
upon it. The Prime Minister concluded:
We will consider how this could be done in the UK.
Behind this statement of the Prime Minister lie several stories. The first
is a political story. It is that Boris Johnson wanted a legal guarantee of
British sovereignty before he would campaign to remain in the EU. That
story is now over. The political impetus behind the Prime Ministers
initial suggestion has gone.
The second story is a legal one. It is about the German Constitutional
Court. The possible model for the change in UK practice indicated by
the Prime Minister. It is true that the German Constitutional Court has
said repeatedly that it is entitled to uphold the German Constitution
against EU law. But it is also true that the German Constitutional Court

has never refused to apply EU law. It uses the German Constitution as

a pressure point between German law and EU law. This is designed to
show the European Court that its approach to this issue or that issue is
so strongly contested that a political crisis might result. But the German
Court has avoided political crisis so far.
On occasion the German Constitutional Court might indicate that there
is a high risk that a rule of EU law would be inapplicable in Germany.
But it avoids deciding the point. Or it interprets the EU law in a way
which is consistent with the German Constitution. And it declines to
make a reference to the Court of Justice. But the Constitutional Court
has not yet gone so far as to refuse to apply EU law. Not yet.
That is the model for the UK suggested by the Prime Minister in his
Chatham House Speech. It is a model in which there is more barking
than biting. And it is model which reserves the legal right of national
judicial defiance.
The third story behind the Chatham House plan is also a legal one. This
story reveals that the UK Constitutional model already functions in much
as the same way (for present purposes) as the German Constitutional
model. How so?
The UK Supreme Court has flagged up possible exceptions to the
supremacy and direct effect of EU law in the UK. These exceptions are
implied into sections 2 and 3 of the European Communities Act. The
first possible exception would cover EU rules and judgments which
infringe fundamental principles of the British Constitution. This was
flagged up in the HS2 Case. In the event, the Supreme Court interprets
EU law so as to avoid conflict with Article 9 of the Bill of Rights 1689,
and declines to make a reference to the Court of Justice. I see a striking
parallel between the Supreme Courts technique in this case, and that of
the German Constitutional Court in its judgment of 26 January 2016, in
which it found a European Arrest Warrant unenforceable in Germany. It
found the warrant contrary to the German Constitution, but also contrary
to EU law. It did not find it necessary to make a reference.
But back to the exceptions to the direct effect and supremacy of EU law
identified by the UK Supreme Court. The second possible exception
was flagged up in the Pham case last year. This would cover judgments
of the Court of Justice which clearly exceed the Courts competence
under the EU Treaties. Such judgments would not be covered by the
European Communities Act, and would not be applied in the UK.
The Supreme Court acknowledged that the Court of Justice has final
authority as a matter of EU law.

But the effect in UK law of a judgment of the Court of Justice is a matter

for UK law.
The language of the Supreme Court is respectful and diplomatic. It
refers to mutual respect and caution on all sides. But it also refers to the
dilemma faced by any national court when faced with a European Court
judgment. which - I am going to quote:
oversteps the jurisdictional limits which Member States have
clearly set at the European Treaty level and which are reflected
domestically in their constitutional arrangements.
The Supreme Court finds it unnecessary to apply EU law to decide the
case before it. But its judgment includes a seven and a half page
demolition of the Court of Justices judgment in the Rottman case, and
issues a thinly veiled warning that that judgment might not be applicable
in the UK. For those unfamiliar with Rottman, I digress briefly on the
subject of the Courts case law on Union Citizenship.
The Court has worked hard to expand and develop the concept of EU
Citizenship. It has branded EU Citizenship as a status destined to be
the fundamental status of nationals of member States (first expressed
in Grzelczyk). This is based on judicial policy rather than any relevant
text. It is supported by no reasoning. It makes an implicit contrast with
national citizenship - if EU Citizenship is destined to be the fundamental
status of the nationals of the Member States, then national citizenship is
destined to be something less. This implication is confirmed by later
case law.
The Court has deduced from this allegedly fundamental status the
proposition that the acquisition and loss of national citizenship is subject
to review in light of EU law. The Court announces this in the Rottman
case. There is no textual basis in the Treaties for this, and it subjects the
very existence of national citizenship to EU law.
The Courts conclusion is in my view inconsistent with the Treaty
requirement that EU Citizenship shall not replace national citizenship. If
the EU law concept of Citizenship over-rides conditions on the
acquisition and loss of national citizenship imposed by national law,
then to that extent EU Citizenship replaces national citizenship. The
Courts conclusion in Rottman is also inconsistent with the treaty
requirement that the Union respect the national identities of the Member
States, and respect their essential state functions. There is no more
essential a state function than determining the conditions for acquisition
and loss of national citizenship.

It follows that I agree with the Supreme Court in Pham as regards the
Rottman judgment. I note that the Supreme Court also accepted the
possibility that the ECHR and English law would produce the same
result as that contended for under EU law. And it concluded that the EU
law point need not be addressed.
Why did the Supreme Court spend seven and a half pages demolishing
Rottman and then conclude that the EU law point need not be
addressed? Because that extended criticism was a letter addressed to
Luxembourg. The Court of Justice is briefed by its research services on
the way national supreme courts deal with EU law matters. The
Supreme Court was telling the Court of Justice that it is very concerned
indeed about the legal basis for Rottman.
I have already said I agree with the Supreme Court about Rottman. I
also agree with the Supreme Court in HS2 and Pham as regards their
interpretation of sections 2 and 3 of the European Communities Act.
It is true that the European Communities Act instructs UK courts to give
effect to EU law in accordance with the judgments of the Court of
Justice. But it surely does so on the basis that the Court of Justice will
undertake its judicial task in accordance with the wording of the treaties,
and in accordance with the standards of legal certainty and predictability
which the rule of law requires.
The Rottman judgment fails that test.
It follows that the Rottman judgment is not applicable in the UK, unless
the UK Parliament agrees specifically to extend the law of Union
Citizenship in the way indicated by the Court of Justice. I say extend the
law, because that is what the Court of Justice is purporting to do. It is
purporting to extend EU competence, and diminish national
competence to the same degree.
I am aware that at the end of the day a failure by the UK to apply EU
law will lead to infraction proceedings. The Supreme Court knows that
as well as anybody. So why do I countenance, and indeed encourage,
at any rate in highly exceptional circumstances, national judicial
defiance?
The reason is this. National judicial defiance, based on the rule of law, is
the means by which the national constitutional orders address the
problem of judicial failure in Luxembourg.
The theory that the Kompetenz-Kompetenz of the Court of Justice must

be completely assimilated into the national legal orders is unsustainable

in practice. It depends upon a hypothesis of judicial infallibility which the
Court of Justice itself refutes with disconcerting regularity.
The politics behind the Prime Ministers call for a German solution on
10 November might have gone away, but the underlying problem
remains. That problem is judicial failure in Luxembourg. And the
Supreme Court has indicated the part which UK courts can play in
seeking to address that problem.
I say this because any mitigation of the underlying problem will include
a constructive and even abrasive dialogue between national courts and
the Court of Justice. That abrasive dialogue might at times spill over into
national judicial defiance. We should not be shocked by this. National
judicial defiance to safeguard the rule of law is not something to be
ashamed of.
The framework for this abrasive dialogue is the interface between the
national constitutions and the EU legal order. These boundaries are
natural pressure points for exposing and seeking to reconcile conflicts
between national conceptions of constitutional integrity, and the Courts
conception of its own judicial mission.
Core values of the EU legal order claim to protect the integrity of the
national legal orders. In particular, the duty of the EU to respect national
identities and essential state functions. If I were a judge of a national
supreme court or a national constitutional court, I would find it difficult to
accept that the European Court of Justice had exclusive jurisdiction to
decide all questions relating to the interpretation and application of
these principles. I would expect the Court of Justice to take account of
the views of national courts, under the duty of sincere cooperation, and
even to defer to national courts on certain matters, under the principle of
subsidiarity.
Would further UK legislation facilitate or improve this process? By this
process I mean the process which I have described as constructive
and even abrasive or defiant dialogue. I remind my patient listeners that
I have already suggested that the Supreme Court is engaged in this
process. I add that it is handling this process with consummate skill.
I make the obvious point. If a statute contained provisions which were
bound to restrict the application of EU law, this would attract infraction
proceedings. That is not what I have in mind. I am sure that was not
what the Prime Minister had in mind.
I am referring to UK legislation which would be compatible with EU law.

The starting point would be this:

There are limits on the reception of EU law into the UK legal order
which are intrinsic to our system of parliamentary sovereignty, and to
the idiosyncrasies of our constitution.
That is how I would describe the limits referred to by the Supreme Court
in HS2 and Pham - they are intrinsic limits. The UK courts will always
apply the European Communities Act, or any successor legislation,
consistently with the rule of law. The UK courts will not read such
legislation as amounting to a completely blank cheque to the EU
institutions and Court to unilaterally extend their own jurisdiction.
For a UK statute to endorse the direct effect and supremacy of EU law
in accordance with the rule of law, the fundamental principles of the UK
Constitution, and the principles of conferral, subsidiarity, and respect for
national identities, would not infringe EU law.
Nor would it add anything to what I think the UK courts will do in any
event. Except perhaps that it might embolden lower UK courts to
question ECJ judgments. That might be a headache for government. It
is one thing for a government to pick a political fight, it is another thing
to have any court at any level in the judicial hierarchy lining up infraction
proceedings for you.
On the other hand, a government might wish to endorse the Supreme
Courts reading of the European Communities Act, and to say that EU
law only applies in the UK if it respects the fundamental principles of the
UK constitution and if the Court of Justice complies with the rule of law.
I do not assume that that is what a government would want to do. It
would usually suit government for national courts to simply get on and
apply EU law. If abrasive dialogue ends up as judicial defiance, it is the
government which will face the infraction proceedings. The government
might then find itself promoting a remedial act to give effect to a
judgment which the UK courts have refused to apply because contrary
to the rule of law!
If a government did promote legislation, it might want to ensure that only
superior courts undertake the assessments referred to by the Supreme
Court in HS2 and Pham. Responsibility for such assessments might be
confined to the Court of Appeal and the Supreme Court, or even to the
Supreme Court alone.
I think I have to wind up with this conclusion.

Legislation is not essential. The Supreme Court has matters well in

hand. But legislation could clarify the constitutional position, and clarity
and certainty are key features of the rule of law.

Human Rights Act must stay

Downloads

03/10/2014 15:37
Scotland
Law, Order and Public Safety

Current legislation protects most vulnerable in society.

Responding to media speculation today on a possible repeal of the
European Human Rights legislation, Community Safety and Legal
Affairs Minister Roseanna Cunningham today said the Scottish
Government was strongly opposed to such a move, which she
warned would have serious consequences both at home and abroad.
Ms Cunningham said:
The Scottish Government is strongly opposed to any attempt by a
future UK Government to repeal the Human Rights Act or to
withdraw from the European Convention on Human Rights. To do so
would require the consent of the Scottish Parliament and, given our
longstanding opposition, we would invite the Scottish Parliament to
refuse this.
The Human Rights Act exists to protect the interests of everyone in
society and the previous UK bill of rights commission in December
2012 clearly showed that the people of Scotland do not want the
current legislation to change.
The safeguards in the Act have been actively used to protect the
everyday rights of ordinary people in Scotland, in particular helping
some of the most vulnerable in society to challenge policies like the
bedroom tax.
Human rights protections, and the Human Rights Act, are central
to the law of Scotland and we intend to do everything within our
power to ensure those protections remain in place.
Today the Scottish Human Rights Commission stressed the
importance of Scotlands Government and Parliament showing
strong leadership on this issue, and we stand shoulder to shoulder
with them in protecting this countrys commitment to upholding
human rights and the rule of law.
This Government will ensure we continue to protect the best
interests of the people of Scotland going forward.
Any attempt to water down or evade its obligations under ECHR
would seriously damage the reputation of the UK as a state and
undermine its ability to provide international leadership, as well as
damaging relationships with the Council of Europe regime.

The Sewel Convention: Key Features

Introduction

\
\

1. The Sewel Convention is an important aspect of the devolution

settlement, and is reflected in the Memorandum of Understanding
between the UK Government and the Scottish Government
(formerly Scottish Executive) and in Devolution Guidance Note 10.
2. Nothing in the Scotland Act prevents the UK Parliament from
legislating on matters which are within devolved competence:
section 28(7) makes that clear. However during the passage of the
Scotland Act, the UK Government announced that it "would expect a
convention to be established that Westminster would not normally
legislate with regard to devolved matters in Scotland without the
consent of the Scottish Parliament." (In this context 'devolved
matters' does not refer just to matters that are within the legislative
competence of the Scottish Parliament and could, therefore,
potentially be included within an Act of the Scottish Parliament. It
additionally is taken to refer to matters which, although reserved,
affect the breadth of the devolved institutions' powers - i.e. the
legislative competence of the Scottish Parliament or the executive
competence of the Scottish Ministers.) This has become known as
the Sewel Convention, and its purpose is to reflect and respect the
devolution settlement and the role of the devolved institutions.
3. In certain circumstances it can be sensible and advantageous for
Scotland if, with the consent of the Scottish Parliament (signified by
approval of an appropriate motion), the Scottish Ministers agree
with the UK Government that a Westminster Bill should include
provisions on devolved matters. Scottish Ministers will consider
promoting a Legislative Consent Motion (formerly referred to as a
'Sewel Motion') in a number of circumstances:
Where it would be more effective to legislate on a UK basis in order
to put in place a single UK-wide regime (e.g. powers for the courts
to confiscate the assets of serious offenders);
Where there is a complex inter-relationship between reserved and
devolved matters that can most effectively and efficiently be dealt
with in a single Westminster Bill (e.g. the introduction of civil
partnerships).
Where the UK Parliament is considering legislation for England and
Wales which the Scottish Government believes should also be
brought into effect in Scotland, but no Parliamentary time is
available at Holyrood (e.g. to strengthen protection against sex
offenders);
Where the provisions in question, although they relate to devolved
matters, are minor or technical and uncontroversial (e.g. powers for

Scottish Ministers to vary the functions of the Central Council for

Education and Training in Social Work);
Where the breadth of the powers of the Scottish Parliament and/or
Scottish Ministers would be enhanced in a manner that could not be
achieved unilaterally through an Act of the Scottish Parliament (e.g.
conferral of functions in relation to railways).
5. It should be emphasised that Legislative Consent Motions
normally relate only to certain specific provisions in Westminster
Bills, not to whole or even substantial parts of these Bills.
Legislation on devolved matters which is passed by means of the
Sewel Convention is therefore entirely different in scale and scope
from legislation passed by the Scottish Parliament, which accounts
for the vast bulk of the total legislative output on devolved matters.

The role of the Parliament

6. The Sewel Convention ensures that Westminster will normally
legislate on devolved matters only with the express agreement of
the Scottish Parliament, after proper consideration and scrutiny of
the proposal in question. To facilitate that scrutiny, the Executive
advises the Parliament as early as possible of any Bill that is likely
to be subject to a Legislative Consent Motion and will provide the
relevant Committee with a detailed memorandum explaining the
purpose and effect of any devolved provisions as soon as possible
after it is introduced. The Committee will then be able to consider
the proposal, taking evidence from interested parties if it considers
that necessary, before making a recommendation to the full
Parliament as to whether it should approve the Legislative Consent
Motion.
7. If significant amendments are made to the provisions of the
Westminster Bill which relate to devolved matters during its
Parliamentary passage, the Scottish Government will inform the
Parliament by means of a supplementary memorandum. A further
Legislative Consent Motion would be required if the effect of the
amendments was to introduce new provisions on devolved matters
which went beyond the terms of the Legislative Consent Motion to
which the Parliament had agreed.
8. Normally the Parliament's consent to a Legislative Consent
Motion does not in any way shift the boundaries between reserved
and devolved matters, which remain as set out in the Scotland Act.
The legislative powers and competence of the Parliament remain
entirely unchanged; and the fact that a Legislative Consent Motion
has been passed does not in any way reduce the ability of the
Parliament to legislate itself on the same issue in future. The Sewel
Convention is simply a procedural means of preventing Westminster
legislating on a devolved matter without the express consent of the
Scottish Parliament. If for whatever reason the Parliament does not
wish Westminster to legislate for Scotland on the matter in
question, it can simply withhold its consent.

9. In December 2005, a revised set of procedures governing the

Legislative Consent process were introduced. The new procedures
are set out in Chapter 9B of the Scottish Parliament Standing
Orders.

Summary

The Sewel Convention is a useful and important aspect of the

devolution settlement which operates to the benefit of the people of
Scotland;
In effect, it allows Scotland to have the best of both legislative
worlds at Westminster and at Holyrood. Without it, the stark choice
would be to do without worthwhile legislation in Scotland or, in
those cases within the legislative competence of the Scottish
Parliament, to put aside our own legislative priorities to make room
for a separate Bill;
Legislative Consent procedure is used only in relation to specific
aspects of a Westminster Bill, and is subject to the express
agreement of the Scottish Parliament by means of a Legislative
Consent Motion;
Proposals for a Legislative Consent Motion are set out in a detailed
Scottish Government memorandum which can be subject to a
process of scrutiny by the relevant Committee of the Parliament;
The operation of the Sewel Convention is therefore open and
transparent, and fully reflects the Scottish Government's
accountability to Parliament;
The use of a Legislative Consent Motion normally has no bearing
whatever on the boundaries between reserved and devolved
matters as set out in the Scotland Act. The Scottish Parliament
continues to enjoy full legislative competence as before.
The use of Legislative Consent Motions are governed by the
Standing Orders of the Scottish Parliament.
Scottish Government
May 2008

The office of the

AttorneyGeneral: Then
and Now
A discussion in the Twittersphere about aspects of
Mr Jeremy Wrights recent appearance in the Brexit
litigation as leading counsel for the Crown led to a
request that I should post a piece about the office of
Attorney General.
The thirteenth century saw the first occasion when a
professional attorney was paid to prosecute cases
for the King[1], who could not appear in courts
where he had an interest, but it was not till 1461 that
this lawyer was summoned by writ to the House of
Lords to advise the government on legal matters.
This is the first reference to an office of Attorney
General, and during subsequent centuries many
distinguished lawyers held the office, with giants
like Rufus Isaacs (1910-1913)[2] and F.E.Smith
(1915-1919)[3] serving as Attorney General in the
second decade of the last century. By convention the
Attorney General always prosecuted in poisoning
cases.
In the nineteenth century the Attorney General
would be based in his chambers in the Temple. He
would be paid a retainer and receive individual brief
fees for his work for the Crown, whether advisory or
representational. He would then carry on his private

law practice when he was not advising the Cabinet

or appearing for the Crown in the Courts. It was
only in Sir Hartley Shawcrosss time as Attorney
General (1945-1951) that the holder of the office
would be paid a full ministerial salary instead of a
retainer and brief fees.
In addition to appearing for the Crown in Court, the
Attorney General also had other responsibilities,
such as deciding whether to grant his consent[4] to
litigation being brought against the Crown, which
could not be sued without its consent prior to the
enactment of the Crown Proceedings Act 1947
(shades of the Winslow Boy[5]), deciding whether
to apply for committal for contempt of court, and
determining that an application might be made to
the court to set aside the inquisition findings of a
coroners jury and order a new inquest. He might
also sanction a relator action in which an
injunction might be sought against someone who
found the penalties imposed by the criminal law no
bar to highly profitable law-breaking, or to restrain
a threatened breach of the criminal law.[6]
However distinguished the holder of the office
might be, he could not expect slavish deference at
all times from the Bench. In his Miscellany-atLaw[7] R.E.Megarry QC tells of the Attorney
General, reputedly Sir Thomas Inskip QC (19321936)[8], who told the law lords that roulette was
played with cards, only to receive a devastating
monosyllabic correction from the Woolsack.
Sir Peter Rawlinson QC MP was Attorney-General
between 1970 and 1974. In the Prologue to his
Memoirs, A Price Too High[9], he describes the
occasion in July 1962 when he was invited by

Harold Macmillan to become Solicitor-General, the

junior Law Officer of the Crown[10]. When he was
on the point of replying, the Prime Minister said:
But before you give me your answer I must remind
you of the special position of the Law Officers, who
are the last, the sole survivors in the long line of public
servants of the Crown who sit in the House of
Commons.

Sir Peter writes:

I swallowed back my words of acceptance and was

honoured by a scholarly review of mediaeval office
holders, a review which flowed into the sixteenth and
seventeenth centuries, embraced approvingly the
career of Samuel Pepys, and concluded with the
admonition that the loyalties of a law officer must be
first to the Crown, second to Parliament, and only
thirdly, almost incidentally, to the administration.
And now, concluded the Prime Minister, would I do
him the honour of joining his administration as
Solicitor General?

I find it hard to imagine that a similar conversation

took place in July 2014, 52 years later, when David
Cameron invited a 39-year old member of the junior
criminal Bar to replace an Attorney General whom
he had sacked for giving his administration correct
but unpalatable advice about this countrys
obligations under an international human rights
convention.
Sir Peters book could hardly do more to illustrate
the vast difference between the way he had carried
out his duties as Attorney General and the way his
present day successor performs his job. He said that
when he took over in June 1970 he decided that he
was going to lead for the Crown in court far more

often than his immediate predecessor.[11] Quite

apart from the fact that he enjoyed being in court
and came from a substantial practice, he had been
taught that it was the duty of the senior Law Officer
whenever possible to represent the Crown in
litigation in which it had a major interest. In
addition to appearing personally to prosecute on
every circuit apart from the Welsh circuit, he also
appeared in much civil litigation and appellate
proceedings. Although he knew that this policy
would not be popular with his political colleagues,
he considered that for so long as a system existed in
which the Attorney General was the first Counsel to
the Crown as well as legal adviser to the Cabinet, the
first duty was that of Counsel:
The lesson given me across that long table in
Admiralty House on that June afternoon by the first
Prime Minister whom I served remained in my mind.

In those days the Law Officers were based in the

Law Officers Corridor in the Royal Courts of
Justice, where I used to go from time to time
between 1978 and 1981 when I was a member of
what is now called the Attorney Generals A
panel[12]. This was created for the first time in 1978
when Harry Woolf was the Treasury Devil[13] and
Sam Silkin QC MP was Attorney General. In Sir
Peters day as Attorney General he had a private
secretary who took his dictation and kept his diary,
a driver, and a staff of four qualified lawyers. Add to
these the Solicitor General and his smaller retinue
and they all fitted into a comparatively short
corridor. When the time came for them to leave the
Law Courts and seek new premises closer to
Whitehall, I remember Sir Patrick Mayhew QC MP,

who was then Attorney General, insisting that they

should not be too conveniently close for people to
drop in easily, with the result that they relocated to
some attractive rooms in Buckingham Gate, close to
Buckingham Palace. It is only in much more recent
years that the Law officers were relocated again to
offices in a particularly unprepossessing part of
Victoria Street, where I have visited all the last three
holders of the office.
I have described elsewhere Sir Peters concern,
expressed 15 years after he left office, that the
Westland Affair[14] showed that at heart what a
modern administration really wanted was
tame in-house legal advisers, creatures of the
government more in the style of the retained family or
company solicitor than of independent officers of the
Crown.

Part of the essence of the Attorney Generals office

was his role as the guardian of justice hence his
central role in relation to those charged with
contempt of court. One of the most remarkable
court hearings I ever attended was a three-day
Chancery case in which Mr Justice Vinelott had to
determine whether Lord Kagans company might
lawfully plead guilty of fraud, against the advice of
their lawyers, in order to prevent any long public
ventilation of the facts at the trial at the Leeds
Crown Court at which his lordship had himself
entered a guilty plea. Sir Michael Havers, who was
then Attorney General (1980-1987), invited me to
represent him as guardian of the interests of justice,
although in the event my role was largely
superfluous.
In those days statute added two extra

responsibilities to the Attorney Generals burden.

The first was to make references to the Court of
Appeal from time to time in cases where a trial
judge had made a ruling favourable to the defence
on a point of law of general public importance.
Although the jurys verdict was final and the
outcome in the Court of Appeal could not affect the
defendant personally, this was a means of obtaining
an authoritative ruling at appellate level on the
point of law in question.
The other was the procedure by which the Court of
Appeal might be asked by the Attorney General to
review what was said to be an unduly lenient
sentence. In these cases an increase in the sentence
did affect the defendant personally I remember
that Lord Lane, who was Lord Chief Justice (19801992) at the time this reform was introduced, was
initially sceptical about the need for it, but was very
soon convinced after dealing with what was always a
tiny minority of cases in which the sentencer had
gone off the rails for one reason or another. One
High Court judge, who always prided himself on his
lenient sentencing, told me that on the only
occasion when one of his sentences was referred to
the Court of Appeal an even more lenient sentence
was substituted.
I was (and in two cases the others have sadly died
still am) a personal friend of five of the six holders
of the office of Attorney General between 1987 and
2010[15] and have always been on friendly terms
with the sixth[16]. All of them had heavyweight
practices at the Bar before their appointment, and
none of them by any stretch of the imagination
could be described disparagingly as political silks.

Nor could Dominic Grieve, the Coalition

Governments first Attorney General (2010-2014)
who suffered the fate traditionally meted out to
messengers who brought bad news.
As Peter Rawlinson feared, the office got more and
more desk-bound, and although Lord Goldsmith
(2001-2007) made a valiant attempt to break the
hardening mould and appear in court as often as he
could, this was but a pale reflection of what had
happened in earlier years. Because of this trend, I
believe I only once had an Attorney General appear
before me, and that was Lord Goldsmith in October
2002 in the Court of Appeal (when I was sitting
with Lord Woolf and Lord Justice Chadwick) in
what became known as the Belmarsh case.[17] Both
the Special Immigration Appeals Commission and
the Court of Appeal heard that case quite soon after
the 9/11 attack on the Twin Towers, and we reached
the same conclusion on the main issue (though
differing on the issue of discrimination). For some
reason the case did not reach the House of Lords for
a further two years, so that they were able to decide
it in the knowledge, denied to us, that no further
terrorist outrage had in fact happened for over three
years since 9/11.
Lord Goldsmiths tenure of office was also marked
by the fact that as Attorney General he played a
central role in promoting pro bono legal activities.
He founded both a national and an international
pro bono committee (I served for a while on the
latter under his successor Dominic Grieve) and he
also introduced primary legislation by which the
fees which would otherwise have been payable to
the lawyers for a successful party who had acted pro

bono were paid instead to the Access to Justice

Foundation, a body charged with promoting access
to justice in a practical way.
In Baroness Scotlands time in office (2007-2010) a
new Protocol was signed between the Attorney
General and the prosecuting departments whereby
in future the role of the Attorney General in relation
to individual prosecutions would be limited to
deciding whether to give his/her consent to a
prosecution when statute required this, together
with the right to interfere by stopping a prosecution
if satisfied that it was necessary to do so for the
purpose of safeguarding national security.
The tradition of appointing experienced advocates
to the office of Attorney General seems, at any rate
temporarily, at an end. When the present holder of
the office, Jeremy Wright QC MP, appeared in the
Divisional Court last week to lead for the Crown in
the Brexit case, nobody expected him to be able to
cope with tough questioning from the Bench on the
very difficult questions of constitutional law that
were being debated. In the event he gave a factual
description of the lead-up to the issues, including
relevant statutes and familiar caselaw, and left it to
leading Treasury Counsel (James Eadie QC) and a
third leading counsel (Jason Coppel QC) to argue
the difficult points in the Crowns case.
In the event, no doubt in deference to his
inexperience, the members of the court asked very
few questions of the Attorney General during his
presentation. According to the uncorrected
transcript[18], this is what happened when one of
them did, and when a more skilled advocate would
have had the answer at his fingertips. He was

speaking of the absence of any provision to bring

the UKs adherence to the Treaty of Rome to an end
in 1972.
[THE ATTORNEY GENERAL] Parliament could of
course have made such provision. And would do so
against the background of the established position
under customary international law that states were
entitled to withdraw from or renunciate treaties. We
submit
LORD JUSTICE SALES: You say that is international
law? I think that that was in dispute in light of Article
56 and 62, I think it was, of the Vienna Convention.
THE ATTORNEY-GENERAL: Yes. The submission we
make, my Lord, is that as a matter of customary
international law that was the position in 1972. The
Vienna Convention on the law of treaties did not come
into force until 1980, so we submit that it was a
matter of customary international law which
Parliament would have understood at the point at
which the 1972 Act was passed.
LORD JUSTICE SALES: And the authority for that is?
THE ATTORNEY-GENERAL: Well, we submit it is a
matter of customary international law. I dont believe
that is disputed. But of course I will be corrected, I am
sure, if I am wrong about that.
THE LORD CHIEF JUSTICE: Would it be possible for
some member of your team to give us a sort of
reference point to one of the authorities, which no
doubt will not be going back to 1962[19], they wont
be as extensive as they are today. But if someone
could give us a note of that and provide it to Lord
Pannick and if there is an issue on customary
international law, we can then indicate it.
THE ATTORNEY-GENERAL: My Lord, we will
certainly do that.

It remains to be seen whether in future we will

return to the tradition of appointments to the office
of Attorney General of advocates with sufficient
skills and practical experience to argue difficult
points of law on behalf of the Crown in the courts.
Another of the difficulties confronting the present
arrangements arose from the fact that in spite of the
importance of the case, the Attorney General was
constrained to seek permission to leave the court
during the third day of a hearing which had lasted
slightly longer than had been anticipated. I am
sure that this was inevitable, given the other
pressures on his diary, but it marked a sea change
from the way in which his predecessors would have
acted more than a generation earlier.

[1] The function of Lawrence del Brok in about 1247

was to sue the Kings affairs of his pleas before
him.
[2] Later the Marquess of Reading: Lord Chief
Justice, Foreign Secretary and Viceroy of India.
[3] Later the Earl of Birkenhead: Lord Chancellor
and Secretary of State for India.
[4] A petition of right seeking such consent might
be delivered to the Attorney General who might
grant it with the words fiat justitia let right be
done a practice colloquially described as granting
his fiat.
[5] Terence Rattigans play of that name was based
on the case of George Archer-Shee, a 14-year-old
cadet at the Royal Naval College, Osborne, who was

convicted of stealing a postal order in 1908. His

conviction was subsequently set aside by the High
Court after the Attorney General had granted his
fiat.
[6] In Gouriet v Union of Postal Workers [1978] AC
435, in which Mr Gouriet complained that the trade
union was inciting its members not to handle postal
packets destined for South Africa, the House of
Lords overruled a judgment of the Court of Appeal
which had held that if the Attorney General refused
consent, he was not above the law, and an aggrieved
citizen could then come to court direct for relief.
Lord Denning MR memorably said: To every
subject in this land, no matter how powerful, I
would use Thomas Fullers words over 300 years
ago: Be you ever so high, the law is above you. The
House of Lords said that in making a politically
charged decision on a relator application, the
Attorney General was answerable to Parliament, not
to the courts.
[7] Stevens & Sons, 1955.
[8] Later Viscount Caldecote: Lord Chancellor and
Lord Chief Justice.
[9] George Weidenfeld & Nicolson, 1989.
[10] By the Law Officers Act 1997 the Solicitor
General may perform any function of the Attorney
General.
[11] Sir Elwyn Jones QC MP (Attorney General
1964-1970 and later, as Lord Elwyn-Jones, Lord
Chancellor 1974-1979).
[12] Its other members were Simon Brown, Brian
Davenport, Konrad Schiemann, Tony Grabiner,
David Steel, Andrew Collins and Nick Bratza.
[13] As the first junior counsel, common law, was

known. The tradition then was that this post would

be held by a senior member of the junior Bar for five
years, with a reversion straight to the High Court
Bench.
[14] When Leon Brittan QC MP (Secretary of State
for Trade and Industry) felt constrained to resign
from office following the authorised leak of a letter
from the then Solicitor-General (Sir Patrick
Mayhew). The Attorney General, Sir Michael
Havers, had been so angry about the incident that
he threatened to send the police in to 10 Downing
Street to ascertain who had authorised the leak, an
episode Charles Moore describes at some length in
the second volume of his excellent biography of
Margaret Thatcher.
[15] Patrick Mayhew, Nicholas Lyell, Gareth
Williams, Peter Goldsmith and Patricia Scotland.
[16] Sir John Morris, now Lord Morris of Aberavon
KG QC.
[17] A v Home Secretary [2002] EWCA Civ 1502;
[2004] UKHL 56.
[18] For 18 October 2016, pp 91-93.
[19] In error for 1972?
https://sirhenrybrooke.me/2016/10/21/theoffice-of-the-attorney-general-then-and-now/

Maastricht
20 October 2016

EU and non-EU leaders of the European Peoples

Party (EPP) met in Maastricht ahead of todays
European Council. Russias involvement in Syria
and eastern Ukraine, Greeces incapacity to
swiftly process asylum applications as agreed in
the EU-Turkey deal and the pending trade deal
with Canada were the main topics on the EPPs
Summit agenda.
The EPP strongly condemns Russias ongoing
attacks targeting innocent people, especially
the latest inhuman attacks on Aleppo, as well
as Russian support for the Syrian regime,
which commits the same atrocities. These
attacks contradict Russias claims to
be seeking a diplomatic solution to the war. The
inhuman bombings in Syria and the continuous
destabilisation in eastern Ukraine must be
stopped immediately and cannot remain
unpunished. There will be consequences. We
have to stand up for our values. No price is too
high to defend them, said EPP President Joseph
DAUL.
EPP leaders also discussed again the migration
issue and the different routes being used to
reach Europe. In light of this situation, EPP
leaders called on the Greek government to
respect its commitments and increase its efforts
to process asylum applications, as this is an
important precondition for implementing the EUTurkey deal. If Greece doesnt deliver its part,
the future of the EU-Turkey deal will be called
into question. Moreover, Greece has to protect
its border with Bulgaria.
Also in the context of migration, EPP leaders
analysed future development in the African
continent, the growth of its population and how
to ensure greater economic progress. The EU
should look into proposals which would allow
people from Africa to have a better future at

home.
Finally, the EPP strongly supported the EUCanada trade agreement, known as CETA.
The EPP family wholeheartedly supports
the CETA agreement. Free trade with Canada, a
very like-minded country which shares our
values and standards, will boost the EUs
economy and lead to greater prosperity and
more job opportunities for European citizens.
EPP representatives in all EU institutions
have worked hard to secure a deal which is not
only free but fair, and in which no one is left
behind, concluded the President.
EU and non-EU heads of state and government,
opposition leaders of the European Peoples
Party (EPP) and the Presidents of the European
Council and the European Commission Donald
TUSK and Jean-Claude JUNCKER have been
invited to participate at the upcoming EPP
Summit, to take place in Maastricht on 20
October. On the agenda will be the preparation
for the European Council meeting of 20 and 21
October.
EPP President Joseph DAUL will host the
Summit. The Chairman of the EPP Group in the
European Parliament, Manfred WEBER, EPP
Secretary General Antonio LPEZ-ISTRIZ and
the members of the EPP Presidency will
participate.
The EPP leaders will gather in the Netherlands
to celebrate the 25th anniversary of the Treaty
of Maastricht, upon the invitation of Sybrand
BUMA, the leader of the Dutch member party
CDA.
Angela MERKEL (Germany), Nicos
ANASTASIADES (Cyprus), Boyko
BORISSOV (Bulgaria), Enda KENNY (Ireland),
Viktor ORBN (Hungary) and Andrej PLENKOVI
(Croatia) will participate at the Summit.

Minister of Interior Angelino ALFANO (Italy) and

opposition leaders Janez JANA (Slovenia),
Simon BUSUTTIL (Malta), Anna KINBERG
BATRA (Sweden), Grzegorz
SCHETYNA (Poland), Marc SPAUTZ (Luxembourg)
and Laurent WAUQUIEZ (France) will attend the
EPP Summit.
Non-EU heads of state and government Erna
SOLBERG (Norway), Serzh SARGSYAN (Armenia),
Isa MUSTAFA (Kosovo), Petro POROSHENKO
(Ukraine) and opposition leaders Lulzim BASHA
(Albania) and Viorel CIBOTARU (Moldova) will
also attend the party Summit.
EPP Summit:
Date: 20 October from 11:30 until 15:00
Press registration:
The journalists are requested to collect their
press accreditation at the MECC Maastricht,
Parking 7 (P7) entrance, 6229 GV
Maastricht. Shuttle service will be provided to
access the Summit venue (Provincie Limburg).
Note to the Press:
A bus will be provided for the press. It will leave
Brussels at 9:00 from the EPP headquarters
located at 10, rue du Commerce, 1000 Brussels.
The return is planned at 15:30 from the Summit
venue.
The press area will open at 10:30.
The EPP will be offering live info and photo
feeds from the EPP Summit through its official
Twitter, Facebook and Flickr accounts. Follow us
live and get an insight on how our leaders
prepare for the European Council:
Twitter: http://twitter.epp.eu
Facebook: https://www.facebook.com/epp.eu
Flickr: http://flickr.epp.eu
Recorded broadcast-quality footage will be
available on 20 October from 13:00 GMT until
13:20 GMT via satellite:

EUTELSAT 3B (3 E)
XP D08
CH G
UL 13991.2500 H / DL 11691.2500 V
SR 7.200
FEC 3/4
Modulation: DVB-S2/8PSK
Encoding: MPEG4 4:2:0
For security reasons, please ensure that you
bring a valid form of identification: journalists
and cameramen will be given access to the
venue upon presentation of their accreditation
badges issued by the European Council, or their
national press ID cards. Journalists without one
of these documents must contact Karine
Milheiro (e-mail: km@epp.eu).
Demain : Rencontre des dirigeants du PPE au
sommet du parti Maastricht, prcdant le
Conseil europen liste des participants
Les chefs dEtat et de gouvernement, les chefs
de lopposition de et en dehors lUnion
europenne, appartenant au Parti populaire
europen (PPE), ainsi que les Prsidents du
Conseil europen et de la Commission
europenne Donald TUSK et Jean-Claude
JUNCKER, ont t invits participer au
prochain sommet du parti, qui se tiendra le 20
octobre Maastricht. La prparation du Conseil
europen des 20 et 21 octobre sera lordre du
jour.
Ils seront reus par Joseph DAUL, Prsident du
PPE. Le Prsident du groupe PPE au Parlement
europen Manfred WEBER, le Secrtaire gnral
du PPE Antonio LPEZ-ISTRIZ et les membres
de la Prsidence du PPE participeront la
runion.
Les dirigeants du PPE se runiront aux Pays-Bas
pour clbrer le 25me anniversaire du Trait de
Maastricht, linvitation de Sybrand BUMA,

leader du parti membre nerlandais CDA.

Angela MERKEL (Allemagne), Nicos
ANASTASIADES (Chypre), Boyko BORISSOV
(Bulgarie), Enda KENNY (Irlande), Viktor
ORBN (Hongrie) et Andrej PLENKOVI (Croatie)
participeront au Sommet.
Le Ministre de lIntrieur Angelino
ALFANO (Italie)ainsi que les leaders de
lopposition Janez JANA (Slovnie), Simon
BUSUTTIL (Malte), Anna KINBERG
BATRA (Sude), Grzegorz
SCHETYNA (Pologne), Marc
SPAUTZ (Luxembourg) et Laurent WAUQUIEZ
(France) y assisteront galement.
Les chefs dEtat et de gouvernement en dehors
de lUnion europenne Erna SOLBERG
(Norvge), Serzh SARGSYAN (Armnie), Isa
MUSTAFA (Kosovo), Petro
POROSHENKO (Ukraine) ainsi que les leaders
dopposition Lulzim BASHA (Albania) et Viorel
CIBOTARU (Moldavie) seront galement
prsents.
Sommet PPE:
Date: le 20 octobre 2016, de 11h30 15h00
Accrditation presse:
Les journalistes sont pris daller chercher leur
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Note la presse:
Un bus sera mis la disposition de la presse. Il
partira 9h00 du sige du PPE situ 10 rue du
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Lespace presse sera ouvert partir de 10h30.
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comptes Twitter, Facebook et Flickr du PPE.

Suivez-nous en direct et dcouvrez comment

nos leaders prparent le Conseil europen:
Twitter: Error! Hyperlink reference not valid.
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Les squences video de haute dfinition seront
disponibles le 20 octobre de 13h00 13h20
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Pour des raisons de scurit, veuillez vous
munir de documents didentification en cours de
validit. Laccs sera autoris aux journalistes et
aux cameramen sous prsentation de leur badge
daccrditation dlivr par le Conseil europen
ou de leur carte nationale de presse. Les
journalistes ne possdant aucun de ces
documents sont pris de contacter Karine
Milheiro (e-mail: km@epp.eu).
The cornerstone of the EPPs foreign policy is a
strong relationship between the European Union
and the United States of America. Although we
do not always agree with our American allies on
all issues, we share the same fundamental
values and interests, not to mention the same
challenges and concerns. And, history has
shown that we are both better off when we work
together. The EPP believes that the
Transatlantic Trade and Investment Partnership
(TTIP), which is currently being negotiated by
the EU and the US, is a particularly important
means to boost this crucial relationship. TTIP
has the potential to deliver real and concrete

benefits to European workers, businesses and

citizens. In short, it is a rare opportunity that
Europe must pursue! We can do this while also
making sure that our standards, including in
areas such as food security, are held to the
highest levels.
As the largest and most influential transnational
party in Europe, the European Peoples Party
(EPP) bears an international responsibility. Most
of the current political, economic,
security/defence and environmental challenges
of the EU cannot be tackled without our
partners outside Europe. Therefore, the EPP
engages intensely with likeminded parties and
partners all over the world, with a new focus on
the Middle East, North Africa region (MENA), the
transatlantic cornerstone, and the countries of
the European Neighbourhood Policy (ENP),
which underline the crucial role of our Eastern
Partnership (EaP) relations. In cooperation with
the Centrist Democrat International (CDI) and
the International Democrat Union (IDU), the EPP
extends as a regional organisation to the
worldwide network of centre-right and
conservative parties. The EU enlargement
process is of real importance for the EPP and we
are working intensively on the further EU
integration of the Western Balkan countries
together with our EPP Foreign Ministers.
Holding together our family of 75 member
parties from 40 different countries is our pride,
strength and commitment.
Many of the external developments in Europes
neighbourhood have direct consequences for, or
are intrinsically linked to, the domestic situation
in EU Member States, as in the cases of homegrown terrorism, jihadi fighters, human
trafficking, dangerous populism and Russian
influence. More than ever before, the separation

between external and internal threats no longer

holds true. In this context migration stemming
from massive flows of people to Europe poses
enormous challenges to our values and
societies. Migration is a long-term concern and
it requires a comprehensive and joint response
at EU level.
Increased irregular migration, illicit arms, the
drug trade and human trafficking, as well as
international terrorism are challenges of the
globalised world. It is our task to protect
European citizens and our values. Europe needs
to protect its borders and find a balance
between minimising the threat of criminal
activity and maximising ease and convenience
for travelers. The EU is an area of freedom,
justice and safety, and needs clear structures in
support of crime victims and their rights.
Strengthening external border security by
enhancing Frontex is an urgent necessity
together with the creation of a European Coast
Guard. The EU must also effectively cooperate
with external countries border security
authorities, especially in countries that are
identified as a source or transit route of
irregular migration. We address these pressing
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Ministers.
We believe that Europe is a vast community of
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freedom, responsibility, justice, security,
respect for the dignity of human life and
equality between men and women. However,
today European values face their greatest
challenges since the Cold War. But in contrast to
those times, todays challenges to our values
come from several directions: from the
European Unions Eastern as well as Southern
Neighbourhoods, while some are global in

nature and others emanate from within our own

societies.
We want to build a healthy society with a new
emphasis on solidarity among all Europeans.
The European Union must become stronger,
simpler and more democratic. The European
institutions should focus on specific major
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to adapt the European Union to the realities and
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closer to the citizens.
For the EPP, a strong and united Union acting
together is best suited to face the many
challenges and threats to our central values and
our way of life. If we do not protect and promote
our common values, they could be endangered
or lost entirely.
We focus on these issues in our Working Group
on European Policy where we draft our
political documents, as well as in the EPP
meeting of European and Foreign Affairs
Ministers (EPP GA).

Newton Emerson: Unionists

right to boycott Kennys
Brexit forum
Cross-Border discussions already possible and real talks
will be between Dublin and London
Thu, Oct 20, 2016, 05:00

Newton Emerson

14

Perhaps the Taoiseach is ignoring all this because his forum is just a gimmick
or a distraction for political rivals in which case, everyone should boycott it.
Photograph: Dara Mac Donaill/The Irish Times

Unionists are quite right to boycott the Taoiseachs allIreland Brexit forum. Or at least they are being entirely
rational, contrary to the impression from the SDLP.
In a statement on Monday, issued in the name of party

leader Colum Eastwood, the SDLP sought to assure

unionists that in the confines of that forum there is no
trapdoor to Irish unity. Nor is it a papist conspiracy.
Those attending will not be sprayed with holy water at
the door.
The implication is that unionist objections to allIreland co-operation are of a piece with deranged
religious bigotry. Lest anyone accuse this in turn of
being a gratuitous sectarian insult, the SDLP carefully
directed its statement at political unionism. This is a
phrase used to separate unionist people from their
politics, so it is of a piece with the dismissal of
unionism as a false consciousness.
However, most nationalists are genuinely unaware of
doing this. It is a subconscious accusation of false
consciousness.
If there is an irrational unionist reaction against the
idea of an all-Ireland forum, it stems from the 1984
New Ireland Forum, which the SDLP was instrumental
in creating.

A united Ireland

For those too young to remember or who have blanked

the memory out, that forum brought together everyone
who wanted a united Ireland to agree that, yes, they
wanted a united Ireland.
To demonstrate how open-minded they were, they
included some interim options what might now be
termed soft unity but these were struck out at the
last minute by Charlie Haughey, leaving only hard
unity.
:
:
:

Brexit: What is Article 50 and why does it matter?

Brexit: Farmers are a resilient bunch. We have to get
on with it
May to offer Foster and McGuinness role in Brexit
talks

The SDLP could have assured political unionism that

the new all-Ireland forum will be nothing like the old
New Ireland Forum but sadly it neglected to do so.
Of course, a great deal has changed since 1984. For
example, the SDLP is now led by a 33-year-old man
from Derry instead of by a 47-year-old man from
Derry.
The passage of time has given unionists two rational
reasons to decline the Taoiseachs invitation. First,
there are the institutions for cross-Border discussion
already set up under the Belfast Agreement. These are
separated into strands, north-south and east-west,
each served by statutory bodies with standing
secretariats, and each tasked with hosting regular
negotiations up to heads-of-government level. They are
the North/South Ministerial Council, the British-Irish
Council and the British-Irish Intergovernmental
Conference.

Delicate balancing act

These forums represent a delicate balancing act in the

construction of the agreement. Unionists were
extremely averse to North-South bodies in fact, that
has been their principal aversion to peace deals since
the failed Sunningdale Agreement of 1973.
The UUP only accepted the North/South Ministerial
Council in exchange for its east-west counterpart, while
the DUP remained officially anti-agreement until
2006. So unilaterally dropping another North-South
body onto the scales is highly irresponsible. It is a
particularly blatant bypass of the agreed mechanisms
because the North/South Ministerial Council is
empowered by law and treaty to establish an allIreland civic forum, whose proposed make-up appears
indistinguishable from the Taoiseachs all-Ireland
forum. If anyone else messed with the agreement in

this manner there would be dark mutterings of a threat

to the peace process.
Unionists do not generally issue such threats because
they are ambivalent about the process or see
themselves as harmless. Even so, the DUP has been
admirably diplomatic, insisting it will gladly join allIreland Brexit talks via the proper channels.
The second good reason for a unionist no-show is that
the real Brexit negotiations will be east-west, between
London and Dublin. Sovereign states present their
terms to Brussels, which bends its fundamental
principles accordingly that is how the EU actually
works.
If Irish nationalists want an additional voice for
Northern Ireland, the correct forum for that is the
British-Irish Intergovernmental Conference, which
brings the Stormont Executive together with London
and Dublin and whose remit specifically includes EU
membership and the common travel area.
If Scottish nationalists want to join the conversation
they can raise it at the British-Irish Council, which has
a seat for every state, devolved region and dependency
in the British and Irish isles.
Perhaps the Taoiseach is ignoring all this because his
forum is just a gimmick or a distraction for political
rivals in which case, everyone should boycott it.
Or perhaps it is a serious venture, subverting the
Belfast Agreement only because urgent haste makes
that necessary. Perhaps this really is where Irelands
collective response to Brexit will be forged.
In that case, however, the place for unionists is forging
the UKs response. Their stance need not be hostile but
they are on the British side by definition.
Expecting unionists to speak for Ireland as well is
another subconscious accusation of false
consciousness. Unionists will negotiate with Ireland,

through the agreed institutions for doing so and no

good is served by being rude about it.
http://www.irishtimes.com/opinion/newton-emerson-unionists-rightto-boycott-kenny-s-brexit-forum-1.2835515

Ugly truth about rise

of Trump and Brexit
david aaronovitch

The movements for change in Britain and the

US are not being driven by the left-behind
poor but by nationalism

In the Rorschach test you look at a randomly

created ink blot and say whether you think it looks
like a chicken, an umbrella or the Antichrist. The
idea is that your choice gives an insight into your
personality. In the political pundits Rorschach test
you argue with someone about whether the blot

really is a chicken, an umbrella or the Antichrist.

So it has been with explaining phenomena like the
Brexit vote or the Trump candidacy. Someone says
it was all about immigration, someone else says its
all about taking back control and a third says its all
about
http://www.thetimes.co.uk/edition/comment/brexit-wasnt-decidedby-left-behind-britain-05nfwbp95

"That was not what [Ireland] agreed to when we

entered into Good Friday Agreement with UK &
registered [it] in UN"

Ireland s new competition law ... International

Competition Network s guiding principles for merger
notification and r eview. ... and discriminates against
A competition policy for the WTO.
IRELANDS Failing firm defence
References
MERGER DECISIONS
Andersen France - M.2816 Ernst &Young France/Andersen
France, 5 September 2002.Text of decision:
http://europa.eu.int/comm/competition/mergers/cases/dec
isions/m2816_en.pdf
(see paras. 80-85 for reference to Andersens assets and
para. 75 for conclusion on post-merger market structure).
Andersen UK - M.2810 Deloitte & Touche/Andersen (UK), 1
July 2002.Text of decision:
http://europa.eu.int/comm/competition/mergers/cases/dec
isions/m2810_en.pdf
(see paras 50 and 44 respectively for quotations from
decision).
Kali+Salz - M.308 Kali+Salz/MdK/Treuhand, 14 December
1993 (OJ L186, 21.7.1994).The text of the final decision on
9 July 1998, after the Court judgment, is available in
German on:
http://europa.eu.int/comm/competition/mergers/cases/dec
isions/m308_de.pdf
Kali+Salz (ECJ judgment) - Joined Cases C-68/94 and C30/95, French Republic v Commission and SCPA v
Commission, 31 March 1998 [1998] ECR I- 1375.The
quotation is from para. 115.Text of the judgment:
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celex
plus!prod!CELEXnumdoc&lg=EN&numdoc=694J0068
Boeing/MDC - M.877 Boeing/McDonnell Douglas, 30 July
1997 (OJ L336 8.12.1997).The US authorities came to a
different conclusion based on
the same circumstances.The Federal Trade Commission
concluded that (1) McDonnell Douglas, looking to the

future, no longer constitutes a meaningful competitive

force in the commercial aircraft market and (2) there is no
economically plausible strategy that McDonnell Douglas
could follow, either as a stand-alone concern or as part of
another concern, that would change that grim
prospect.The finding was controversial, however, and one
Commissioner dissented from this view. Text of decision:
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexpl
us!prod!CELEXnumdoc&lg=en&numdoc=31997D0816
BASF - M.2314 BASF/Pantochim/Eurodiol, 11 July 2001 (OJ
L132 17.5.2002).Text of decision:
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexpl
us!prod!CELEXnumdoc&lg=en&numdoc=32002D0365
De Havilland - M.53 Arospatiale-Alnia/De Havilland, 2
October 1991.Text of decision:
http://europa.eu.int/comm/competition/mergers/cases/dec
isions/m53_en.pdf
Boeing wanted to sell its regional aircraft division, De
Havilland, to Arospatiale and Alnia, creating combined
market shares of up to 64%.The parties argued that, in the
absence of the merger, Boeing would have phased out the
production of De Havilland, but the Commission found no
evidence that such a shutdown was inevitable in the
absence of the merger, and stated that the burden of
proof is heavier in failing division cases such as this. De
Havilland did in fact later exit the market.The failing firm
defence was also rejected in:
M.774 - Saint-Gobain/Wacker-Chemie/NOM, 10 September
1997: http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!
celexpl
us!prod!CELEXnumdoc&lg=en&numdoc=31997D0610
M.890 Blokker/Toys R Us, 26 June 1997 (OJ L316
25.11.1998): http://europa.eu.int/smartapi/cgi/sga_doc?
smartapi!celexpl us!prod!
CELEXnumdoc&lg=en&numdoc=31998D0663 and M.993
Bertelsmann/Kirch/Premiere, 27 May 1998 (OJ L53
27.2.1999): http://europa.eu.int/smartapi/cgi/sga_doc?
smartapi!celexplu s!prod!
CELEXnumdoc&numdoc=31999D0153&lg=EN
US POLICY
US Department of Justice and Federal Trade Commissions
Horizontal Merger Guidelines:

http://www.ftc.gov/bc/docs/horizmer.htm
The failing firm defence is discussed explicitly in these
guidelines, which make clear that a failing firm defence
can be admitted in some cases where the imminent failure
of one of the merging firms would cause the assets of that
firm to exit the market. In such cases, the post-merger
outcome may be no worse than the exit of the assets from
the market which would otherwise occur, causing a
restriction of supply and therefore higher prices.
SPEECHES
KarelVan Miert:International Cooperation in the Field of
Competition: A View from the EC. Speech on 16 October
1997 to the 24th Annual Fordham Conference:
http://europa.eu.int/comm/competition/speeches/text/sp
1997_073_en.html
Mario Monti:Antitrust in the US and Europe - a history of
convergence. Speech on 14 November 2001 to the
American Bar Association:
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.
gettxt=gt&doc=SPEECH/01/540|0|RAPID&lg=EN
OFT view on failing firm defence
The OFTs consultation paper, Mergers: substantive
assessment, was published in October 2002. Here is an
extract on the failing firm defence:
4.29 ... Where one of the parties to a merger is genuinely
failing, pre-merger conditions of competition might not
prevail even if the merger were prohibited. The
counterfactual might then have to be adjusted to reflect
the likely failure of one of the parties and the resulting loss
of rivalry.
4.30 In order to satisfy the failing firm defence against a
finding of an expected substantial lessening of
competition, the following three conditions need to be
met. These three conditions will probably be met only in
rare cases.
4.31 First, in order to rely on a failing firm defence, the
firm must be in such a
parloussituationthatwithoutthemerger
it and its assets would exit the market and that this would
occur in the near future. These criteria will not often be
met, even by firms on the verge of bankruptcy
administration. Firms in liquidation will usually meet this

criterion, however.
4.32 Second, there must be no serious prospect of reorganising the business. Identifying the appropriate
counterfactual in these types of situation is often very
difficult. For example, even companies in receivership
often survive and recover.
4.33 Third, there should be no less anti- competitive
alternative to the merger. Even if a sale is inevitable, there
may be other realistic buyers which would be interested in
obtaining the plant/assets should the merger not proceed:
that could indeed be a means by which new entry can
come into the market.
It may also be better for competition that the firm fails and
the remaining
players compete for its share and assets than that the
failing firms share and assets are transferred wholesale to
a single purchaser ...
4.35 Information that the OFT would request in order to
assess properly a failing firm defence may include
evidence:
that the company is indeed about to fail under current
ownership
that re-financing options have been explored and
exhausted
that there are no other credible bidders in the market,
and that all possible options have been explored, and
how the acquiring firm proposes using the failing firms
assets post merger.
Paper OFT506 is available on
http://www.oft.gov.uk(searchforsubstantive)
14
Competition Law Insight November 2002
UK merger control
Learning and failing to learn from Europe: significant gaps
will remain in procedural safeguards under the new UK
merger regime
By Nigel Parr, Ashurst Morris Crisp*
Just as the Competition Act 1998 remodelled UK
competition law in relation to anti-competitive agreements
and the abuse of a dominant position, the Enterprise Bill
will thoroughly reform the UK merger control system.

It will introduce a number of generally well regarded

changes, including removing ministers from most decision
making and replacing the public interest assessment test
with one focused on a substantial lessening of
competition.
However, unlike the 1998 Act which is based closely on
European Community competition law, the new merger
regime will, in some respects, fall short of the procedural
standards applied in Brussels.
Whilst the Enterprise Bill improves on the situation under
the EC Merger Regulation by retaining the two phase
procedure carried out by the Office of Fair Trading and the
Competition Commission, in failing to provide access to
the file or full judicial review on the merits, the new
regime will fail to adopt best practice under EC law. It
seems that the opportunity to secure a world-class UK
merger control regime may be missed.
Need for judicial review
A recent example of the difficulties encountered by
competition authorities in assessing mergers is that of
Airtours. In its Airtours judgment, the European Court of
First Instance (CFI) closely examined the European
Commissions decision to prohibit the proposed acquisition
of First Choice by Airtours. The CFI examined the evidence
relied on by the Commission in detail, studied the facts of
the case and analysed the Commissions conclusions.
The CFI criticised the Commission for making assumptions
about the travel
industry rather than studying the factual evidence in detail
and concluded that it follows that the Commission
prohibited the transaction without having proved to the
requisite legal standard that competition would be
significantly impeded in the market.
This finding was not based on faulty legal or economic
arguments being employed by the Commission, but on the
basis that the Commissions technical analysis simply was
not supported by the facts of the case.
The three procedural safeguards considered in this article
exist to ensure that such situations do not arise. Although
one of them will form part of the new UK regime, the
omission of the other two is a serious cause for concern.
Dividing responsibility for the investigation

In its July report on the EC Merger Regulation, the House of

Lords Select Committee on the European Union criticised
the procedural safeguards that currently exist under EC
law to ensure due process, and thereby the quality of
decision making.
It recommended that the Commission should divide
responsibility for the consideration of cases in Phase I and
Phase II, with separate teams of officials for each phase.
This, the Committee argued, would be the most
straightforward way of introducing a second pair of eyes
into the EC merger regime and should ensure that any
case that reaches Phase II is subjected to a measure of
independent thinking.
This separation of the two phases currently exists in the
UK system and will be retained by the Enterprise Bill.
Under the Enterprise Bill, detailed
second stage investigations will be conducted by the
Competition Commission (CC) with the initial inquiry
being carried out by the Office of Fair Trading (OFT).
However, without two of the key safeguards that exist at
EC level (i.e. access to the file and effective judicial
review), a simple separation of functions cannot in itself
guarantee a fair and accurate decision. In particular, it
does not inherently assist in the interpretation, evaluation
and weighing of often incomplete and conflicting facts and
evidence.
Access to the file
In the EC merger control process, the parties have a right
to review the Commissions file after issue of the
statement of objections in order to examine for
themselves the sources upon which the Commission has
based its objections.
Access to the file is one of the key procedural safeguards
that ensures the effective exercise of the right to be heard
and is specifically recognised as such by the Commission
and the European Courts (see, for example, the
Commissions Notice on Access to the File, and the CFIs
judgment in the Endemol case).
In merger cases, access to the file is particularly important
for the reasons implicit in the Airtours judgment.Very few
mergers that are referred to the CC, if any, will be open
and shut. It is therefore inevitable that evidence collected

by the CC will point both ways.

Without full access to the file, giving the parties to the
merger an early opportunity to examine properly the facts
which the decision making body has before it and on
which it may rely, situations where a
Competion Law Insight November 2002
15
* Dr Nigel Parr is a partner in Ashurst Morris Crisp
UK merger control
competition authority fails to base its decision firmly on
the facts will inevitably be more likely to occur.
The Enterprise Bill leaves it to the CCs Chairman to draw
up the CCs procedural rules, drafts of which were
published in September.
A key and welcome inclusion in the CCs procedures is the
publication of provisional findings to which the parties will
be able to respond within 21 days. These findings should
ideally be supported by a detailed annex of factual
evidence on which the parties can comment, although
there is no suggestion in the draft rules that this will be
the case.
In the absence of such a development, the parties will be
unable to subject the provisional findings to proper
scrutiny by reference to the facts and evidence available
to the CC.
Even if such evidence were annexed to the CCs
provisional findings, whilst welcome, this would not be a
satisfactory alternative to access to the file, not least
because adverse provisional findings would be unlikely to
refer to evidence from third parties that supports the
merger.
It is difficult to see why the parties to a merger should not
have first hand access to the CCs file so that they can
engage in a proper and informed debate with the CC
during its inquiry.
Apart from being a well established part of the
Commissions procedures, it is now also a key part of the
OFTs procedures under the Competition Act.
Experience of the OFTs and Commissions procedures
shows that the confidential business secrets of third
parties can be protected, and that granting access to the

file early in the process should not unduly delay the CCs
investigation.
Full judicial review
The difficulties caused by lack of access to the file are
compounded by the lack of access to effective judicial
review in UK merger cases. The Airtours decision
demonstrates that competition authorities can
significantly misconstrue facts and give an incorrect
weight to the various items of evidence that they review.
Responsibility for judicial review in merger cases will be
given to the Competition Appeals Tribunal (CAT) by the
Enterprise Bill.
On appeals against the imposition of penalties, the parties
will be given a full hearing on the merits.
In other cases, instead of granting the CAT the opportunity
to exercise its undoubted expertise in competition cases
by engaging in a full review, section 117(6) of the
Enterprise Bill restricts the CAT to applying the same
principles as would be applied by a court on an application
for judicial review.
The administrative law requirements for judicial review
relate to procedural unfairness, lack of a proper legal basis
(i.e. ultra vires) or unreasonableness - a decision so far
bordering on the absurd that no reasonable decision
maker could have made it.
In no judicial review case involving competition law has a
decision been struck down for poor reasoning or
inadequate assessment, as the CFI concluded was the
case in Airtours.
Indeed, the decision in the recent Interbrew case, where
the CCs report was overturned, was based on procedural
unfairness rather than an error of substantive assessment.
The CC had concluded that Interbrews merger with Bass
would create a duopoly which would be contrary to the
public interest.
Whilst Interbrew continued to contend that the merger
would be beneficial to competition, it was nonetheless
forced to accept that it could not challenge the CCs
conclusions in relation to this point on any public law
ground.
Accordingly, Interbrew had to base its application for
judicial review solely on the CCs recommended remedies,

and the only ground on which it succeeded was that it had

not been given a fair hearing as it had not been given an
opportunity to comment on the actual remedy
recommended by the CC.
Limited scope of review
In Parliament, Andrew Lansley (MP for South
Cambridgeshire) asked why, if the CAT was only to apply
the usual administrative law grounds, the review process
was being given to the CAT at all rather than to a properly
constituted administrative court.
He also considered that some merger cases - for example,
those requiring a separation of businesses rather than a
more modest undertaking - should be subject to
a more thorough form of review involving a full rehearing
on the merits.
Replying for the government, the Minister for E-Commerce
and Competitiveness, Douglas Alexander, said that the
jurisdiction anticipated by the Bill will mirror judicial review
in the courts but will allow scope in some circumstances
for the CAT to consider whether a decision was based on a
material error of fact.
Admittedly, the law on judicial review is still developing,
but there is currently no scope for any review that would
be as thorough as that carried out by the CFI in Airtours.
Conclusion
The publication of provisional findings by the CC before a
final decision is taken is a welcome development.
However, to ensure rigorous and effective decision making
by the CC, there should arguably be both full access to the
file and full judicial review of merger decisions along the
lines carried out by the CFI.To deny merging parties one of
them may be open to reasonable critical debate.To deny
both is stacking the scales too heavily in favour of the
regulator.
The Commission is currently undertaking a thorough
review of the EC Merger Regulation. Its recent green paper
on the subject invited views on the effectiveness of the
due process guarantees built into the procedures,
particularly in relation to protecting the merging parties
rights of defence. The Competition Commissioner, Mario
Monti, gave a speech in June 2002 where he made it clear
that the Commissions administrative system as a whole

was being reviewed and that numerous suggestions for

improving the system were currently under consideration.
Given a choice, following the Airtours decision, many
businesses may conclude that the evidence and
arguments they make in defence of their mergers are
likely to be considered more carefully by the Merger Task
Force than by the UK authorities. Having followed EC
competition law (particularly the relevant procedural
safeguards) closely in drafting the Competition Act, it is
strongly arguable that a similar approach should be
adopted in relation to mergers under the Enterprise Bill.
16
Competition Law Insight November 2002
References
Enterprise Bill.Text following the end of report stage in the
House of Lords, 21 October 2002. Clauses:
http://www.publications.parliament.uk/pa/ld200102/ld
bills/116/2002116a.pdf
Schedules:
http://www.publications.parliament.uk/pa/ld200102/ld
bills/116/2002116a.pdf
Airtours - Case T-342/99, Airtours PLC v Commission,
judgment 6 June 2002.
Endemol - Case T-221/95, Endemol Entertainment Holding
BV v Commission, judgment 28 April 1999. Enter case
number in search form at this web page reference:
http://europa.eu.int/jurisp/cgi-bin/form.pl?lang=en
House of Lords Select Committee on the EU, 32nd
Report:The Review of the EC Merger Regulation. 30 July
2002. HL 165 (ISBN 0 10 412702 3). 21.50.
http://www.parliament.the-stationeryoffice.co.uk/pa/ld200102/ldselect/ldeucom/165/165.pdf
European Commission, Green Paper on the Review of
Council Regulation (EEC) No 4064/89 (COM(2001) 745/6 11 December 2001). In his speech (noted below),
Commissioner Monti said that the Commission intended to
finalise the amendments to the Regulation, interpretative
guidelines on the substantive competition test, and best
practice guidelines on the conduct of investigations by the
end of 2002.
http://europa.eu.int/comm/competition/mergers/review/g

reen_paper/en.pdf
European Commission, Notice on the internal rules of
procedure for processing requests for access to the file in
cases pursuant to Articles 85 and 86 of the EC Treaty,
Articles 65 and 66 of the ECSC Treaty and Council
Regulation (EEC) No 4064/89 (OJ C23/3, 1997).
http://europa.eu.int/comm/competition/antitrust/acdosen
_en.html
Interbrew SA and Bass PLC:A report on the
acquisition by Interbrew SA of the brewing interests of
Bass PLC (CC, Cm 5014). http://www.competitioncommission.org.uk/reports/452interb.htm#full
Summary: http://www.competitioncommission.org.uk/reports/452interb.htm#summary
Interbrew - Interbrew S.A. and Interbrew UK Holdings Ltd v
The Competition Commission and The Secretary of State
for Trade and Industry, High Court (Queens Bench Division
- Administrative Court List, Case No. CO/402/2001,
judgment 23 May 2001.
http://www.bailii.org/ew/cases/EWHC/Admin/2001/
367.html
Speech by Mario Monti, European Competition
Commissioner: Review of the EC Merger Regulation roadmap for the reform project. British Chamber of
Commerce, Brussels, 4 June 2002 (SPEECH/02/252).
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action
.gettxt=gt&doc=SPEECH/02/252|0|AGED&lg=E
N&display=
The full cost of the new UK Enterprise Act
Compulsory disqualification of errant directors
By Jane Whittaker and Frances Graupner, Macfarlanes*
The government has seriously raised the stakes in its
drive to attain compliance with the revamped UK
competition regime.
It initially bared its teeth with the introduction of hefty civil
fines on companies when the Competition Act 1998 came
into force on 1 March 2000, and offered immunity or
reduced fines for whistleblowers. The teeth were
significantly sharpened when the Enterprise Bill appeared
two years later.
The Bills most obviously startling innovation is the
criminalisation of hard-core Competition Act offences

(price-fixing, bid-rigging and market- sharing agreements).

Executives may face jail sentences and swingeing
personal fines as a result. The system was inspired by its
rather
successful US counterpart, but criminal law features only
rarely in other countries competition laws.
Then, presented with a timely opportunity to cram
apparently limitless competition law reforms into fresh
primary legislation, the government decided to create yet
another draconian initiative to prevent violations.
This is the disqualification of directors who violate the UK
regime. The Bill provides for the Company Directors
Disqualification Act 1986 to be amended to allow the
Office of Fair Trading to request disqualification of
directors.
The proposal is only now starting to get the high profile it
deserves. It is this new measure, perhaps more than the
threat of imprisonment, that may in practice have
enduring long-term consequences for a
large number of individuals and may therefore prove to be
the most effective deterrent.
OFTs new disqualification opportunity
Directors involved in breach of the Competition Act will be
eligible to be disqualified from acting as company
directors, or even from being concerned in the promotion,
formation or management of a company, for up to 15
years. Once the UK or the EU competition authorities have
decided that a violation affecting trade in the UK has
occurred, the OFT will be able apply to the High Court for a
Competition Disqualification Order (CDO). The Court
must then issue a CDO if two specified conditions are
satisfied(nextsection).
* Jane Whittaker is a partner and Frances Graupner, a
solicitor, at Macfarlanes, London
Competition Law Insight November 2002
17
Full cost of the Enterprise Act
This harsh measure will be available for use either as
stand-alone retribution or in addition to the imposition of
criminal penalties on individuals. The relative ease by
which the two conditions may be satisfied and the potency

of the punishment are likely to make it a

fearsomethreatforexecutives,especiallyas a CDO will follow
after there has been a decision based on the civil law test
of liability (on the balance of probabilities), rather than
the more burdensome criminal test (beyond reasonable
doubt).
The OFT will be able to ask the court for a CDO if a UK or
EU authority has already decided that there has been a
breach of the UK and/or EC competition laws. These
authorities are the OFT and other specified UK regulators,
the UK Competition Appeal Tribunal, the European
Commission and the European Court (ECJ and CFI).
This imminent UK measure is unmatched by any
equivalent US antitrust law penalty.The US Department of
Justice may well be envious of the UK regulator in this
respect - the US authorities being left with the upper hand
only in respect of the prospect of treble damages awarded
to cartel victims in civil actions, who frequently wield
massive power through the class action system.
European legislators have long considered the treble
damages feature of civil enforcement to be undesirable.
The UK enacted the Protection of Trading Interests Act
1980 to block the extraterritorial application of US treble
damages awards in the UK.
How will the OFT use its discretion?
The OFT is only likely to seek CDOs where a serious
breach has been committed, but it remains to be seen
how willingly it aims to disqualify given the large range of
situations classifiable as serious.
If, on the OFTs application for a CDO, a court is satisfied,
first, that there has been a violation and, second, that the
persons conduct as a director makes him unfit to be
concerned in the management of a company, the court
will have to make a CDO.
That said, if the company concerned has obtained
leniency in respect of the breach for which
disqualification is sought, its directors cannot be the
subject of a CDO for that offence.
Wide net of seriousness
What then are serious cases, given that they are not
limited to the hard-core offences attracting criminal
prosecution?

The OFT has issued a consultation paper that subdivides

seriousness into particularly serious, serious and
less serious. The OFT is very likely or likely,
respectively, to apply for a CDO for the first two
categories, but does not rule out the possibility of a
disqualification application for the third category.
Particularly serious breaches obviously encompass
situations where the director planned, approved or
encouraged the violation, but they also include situations
where he or his staff attended meetings in which the
illegal activity either occurred or was discussed. The
OFTs paper refers
to internal or external meetings in this context, but a
narrower scope of meetings affected may yet result from
the consultation process.
It will not be necessary to prove that the director had an
active role in carrying out the violation, since he will be
eligible for disqualificationifthecompanyisinbreach and he
could reasonably have known that, by carrying out the
activity in question, the company would breach
competition law.
Whilst the OFTs paper defines particularly serious by
reference to a directors actual personal behaviour, there
will surely, in practice, be a nexus between this behaviour
and the degree of severity of the infringement as
such,although this is not made clear. In extreme cases the
OFT might even seek CDOs against an entire board.
Prosecution of company directors
Company directors in the UK are some of the most heavily
regulated people on earth. The Companies Act 1985
creates 179 distinct criminal offences, most of which can
be committed by a director. Many more have been added
by the Insolvency Acts, Finance Acts and legislation
intended for other purposes. Only three of the 179 are
general crimes of dishonesty. Imprisonment is available as
a punishment for 24 offences.
Criminal prosecution is seen to be the cheapest and most
efficient way of securing compliance. Civil litigation is an
unreliable and costly option, except in the gravest cases,
but some duties may be more effectively policed by other
means. For example, the administrative fines for late
delivery of annual accounts that were introduced in 1992

have resulted in a consistently higher compliance rate

than prosecutions ever did.
The recent Company Law Review concluded that criminal
law enforcement plays an important role, but that it
should be made more systematic, with offences clearly
divided into dishonest, intermediate and regulatory.The
governments draft Company Law Bill would rationalise all
company law offences into six types, each with its own
range of sentences and three exposing the defendant to
imprisonment.
The Enterprise Bill provides that an individual may commit
a criminal offence where there is dishonest participation
in an agreement whose purpose is a hard- core anticompetitive activity. The US Sherman Act criminalises an
offence where the defendant knowingly and
intentionally became a member of a conspiracy.The US
penalties for individuals are up to 3 years imprisonment
and fines of up to $350,000. For corporations, the fines are
up to $10m or, alternatively,twice the gain or twice the
loss resulting from the wrongful conduct.
Dishonesty is the element of guilt that English criminal law
leaves to the jury. It is absent from Irish cartel offences as
well as from US law, and may be difficult to prove. The
OFT says that, applying the concept as defined in R v
Ghosh [1982] QB 1053, the test will be whether what was
done was dishonest by the ordinary standards of
reasonable and honest people and, if so, whether the
defendant had realised that their actions were dishonest
according to those standards.The OFT says that someone
who takes action to bring the cartel to an end or blows the
whistle on it, or who has bare knowledge of it without
involvement, will not be guilty.This illustrates what
dishonesty will not mean in this context, but does little to
clarify it as a positive notion (The Cartel Offence: Noaction letters to individuals. OFT consultation paper
OFT503. July 2002).
There is no power under the EC Treaty to introduce
criminal law enforcement for competition law violations,
nor are there currently any penalties on individuals for
violating article 81 or article 82.That is soon to change in
the UK, since the facts on which UK disqualification may
be sought will include breach of EC competition law under

the Enterprise Bill.

18
Competition Law Insight November 2002
Full cost of the Enterprise Act
Turning to serious cases, these will range from
knowing or having reasonable grounds to suspect that
employees were directly or indirectly involved in a
violation and failing to try to stop their involvement, right
down to suspecting that authorised funds would be used
to finance the breach.
Subjective test of less serious
The remaining question is, therefore, what qualifies as
less serious? Less serious cases will include situations
where there is no evidence that the director was actually
aware of the activity concerned but ought to have known
of it, for example where the director deliberately failed to
keep tabs on the companys activities.
The OFT will have plenty of room for subjective manoeuvre
in considering whether a director ought to have known,
as it can take into account the general knowledge, skill
and experience that reasonably may be expected of a
director and the general knowledge, skill and experience
actually possessed by that director.
Directors of any company that has previously committed a
competition law violation will have to be actively vigilant
against recidivism, the OFT emphasises. If a director has,
or has had a previous, managerial role in a company
subject to competition law scrutiny, the OFT will speedily
consider that he should have known.
Similarly, an inexperienced director or a director of a
relatively unsophisticated company might escape
disqualification in circumstances where a better educated
or more experienced director, or a larger or higher profile
company, would not.
A director will also be assumed to have known about the
breach where familiarity with internal company
information such as price lists, sales records, funding
requests, minutes of meetings, accounting records and
discussions with other directors or employees should have
led him to suspect a breach.
So, although the OFT does provide a glimmer of hope for a

director whose staff have tried to conceal their illegal

activities from him, it appears that there will be
exceedingly high expectations that directors ought to
know what is going on in their own company - a value
judgment that promises to launch vociferous dissent and
dispute.
The unfitness issue
It will be up to the High Court to decide as to the
unfitness (or otherwise) of a person to act as a
director.This will depend on whether his conduct actually
contributed to the breach; if not, whether he had
reasonable grounds to suspect that the breach was
being committed and took no steps to prevent it; and,
otherwise, whether he at least ought to have known that
certain conduct constituted a breach.
A director who has been involved in
previousviolationswill,notsurprisingly,be dealt with more
severely than a first-time offender.
In addition, punitive measures also burden any director
who obstructs or fails to cooperate when the OFT carries
out its investigation.
As a result, a director who has not actively objected to any
decision to engage in a violation will effectively only be
able to defend himself by claiming that he could not
reasonably have known that the behaviour in question
was illegal or that, in the time- honoured way, the
company behaved as it did because it suffered severe
external duress or pressure - a let-out tantamount to the
concept of superior orders.
Justifiable angst in the boardroom
Ripples of concern through the boardrooms are bound to
follow introduction of this new penalty. It is meant to act
as a real deterrent.
Given that the test is set relatively low, we can expect the
OFT to be rigorous in its applications for CDOs following
proven breaches of competition law, if the OFT really
wants the Competition Act to have a significant effect.
Directors who flout the law must be prepared to take the
consequences.
References
Enterprise Bill.Text following the end of report stage in the
House of Lords, 21 October 2002. Clauses:

http://www.publications.parliament.uk/pa/ld200102/ld
bills/116/2002116a.pdf
Schedules:
http://www.publications.parliament.uk/pa/ld200102/ld
bills/116/2002116b.pdf
Competition Disqualification Orders:A consultation paper.
OFT, July 2002.
http://www.oft.gov.uk/NR/rdonlyres/efv6gxxnhmw34rsg
p4qvqyeje2pjtmiwpkaftoojc7wlwcrwde3o42n574nvvdeo5z
itbhttyf2am6x73qzdh3ihjya/Resources%2fOFT+IDEA S
%2fBusiness+leaflets%2fEnterprise+Bill%2foft500.pdf
Full cost of the Enterprise Act
In Brief
New European takeovers draft
The Commissions new draft directive on takeover bids
was published on 4 October. It will take the place of its 12year-old predecessor that fell at the final fence in
Parliament in July 2001.
Faced with three main objections, the new draft takes a
rather oblique route. It fully meets the demand that
minority shareholders be compensated properly when
squeezed out or when they have the right to demand to
be bought out.
Employee-related concerns have been met by an explicit
reminder about the companys duties to inform and
consult. This seems rather feeble, but it may be the most
that can be achieved in the context.
By depriving the board of any power of defensive
manoeuvre without shareholder approval during a bid,
however, the draft ducks Parliaments concern. This was,
roughly, the fear of laying companies open to predatory
behaviour before company law is sufficiently coordinated
across Europe, and across the Atlantic.
The drafts logic is sound, and the goal may well serve
competitive markets better than the alternative. But the
Commission would have been wiser to explain itself more
fully to the pro-board lobby.
It rejected the more radical views of the Winter Report,
which took a wholly pro-owner stance. For example,Winter
advocated nullifying positive rights during a bid, such as
multiple voting rights.
The Commission accepted that these cannot simply be

overridden in a bid.They represent rights that have a value

as property, and so may not be taken away without
compensation.
On the other hand, rejecting the radical does not mean
that the final draft meets the demands of what proved to
be a powerful lobby on the previous draft.This is not a
criticism - more a reality check.
Competition Law Insight November 2002
19
Ireland new competition laws
By Helen Kelly, Matheson Ormsby Prentice*
The second part of 2002 has seen significant changes to
the competition and merger control regimes in Ireland.
The Competition Act 2002, which was signed into law in
April 2002, replaces all existing competition and mergers
legislation.
Parts of the Act came into force on 1 July 2002, while
preparations are currently under way for the new merger
control regime to come into force on 1 January 2003. Many
of the changes that the Act introduces are currently
contemplated at EC level and in other member states,
including the UK.
Abolition of notification system
One of the key features of the Act is the abolition of the
notification procedure. It is no longer possible to notify an
agreement to the Competition Authority for approval in
the manner still allowed under article 81(3) of the EC
Treaty. Instead, businesses and their legal advisers are
now solely responsible for ensuring that agreements
comply with competition rules.
Irelands abolition of the notification system is in line with
the draft modernisation regulation proposed by the
European Commission. Indeed, it may serve as a testing
ground for the success of such initiatives.
The elimination of a notification system means that the
Competition Authority is now free to use its resources to
pursue cartels and abusive behaviour (see below).
Fines and imprisonment
The Act increased fines and terms of imprisonment for
hard core anti- competitive offences including price
fixing, market sharing and limiting output/sales. Company

directors or others convicted of such offences now face

terms of imprisonment of up to five years (increased from
two years under the old Act), while financial penalties can
amount to the higher of 4,000,000 or 10 per cent of the
annual turnover.
The Competition Authority also has the power to arrest a
person suspected of committing a hard core offence. A
number of police officers have been seconded to the
Competition Authority to work on cartel cases.
To date, no prosecutions have been made under the Act
and no fines have been imposed. Under the previous
competition legislation, there was just one summary
conviction for breach of competition laws with a fine of
IR1,500 (1,904.61).
It is understood that a number of files outlining suspected
breaches of competition law were sent to the Director of
Public Prosecutions over the past few years, but a decision
on whether or not to proceed is still awaited.
It is interesting that the UK Enterprise Bill also seeks to
impose a term of imprisonment for persons guilty of hard
core competition law offences.
New merger control regime
The Act also introduces a new merger control regime as of
1 January 2003.This marks the most significant change to
domestic merger control law for many years.
The Act reduces the political dimension in merger control
cases by removing ministerial discretion from all nonmedia merger control decisions. In future, mergers will be
notified to the Competition Authority, rather than the
Minister for Enterprise, Trade and Employment. The
Competition Authority will have exclusive jurisdiction to
clear or block all mergers except media mergers, where
the Minister retains the power to make the final decision.
The Act abolishes the current assets test and introduces
new turnover thresholds, as follows:
where each of two or more of the
undertakings involved in the
acquisition carry on business in any part of the island of
Ireland (i.e. including Northern Ireland)
any one of the undertakings involved has turnover in the
state of not less than 40 million
the worldwide turnover of at least two of the

undertakings involved is not less than 40 million

The turnover thresholds are likely to be significantly lower
for media mergers, but no announcement had been made
at the time of writing.
The Act provides for a two-phase examination process for
mergers similar to that provided for in the EC Merger
Regulation. Phase one allows the Competition Authority to
make a determination within one month of notification to
allow the merger to proceed. Where there are significant
competition concerns, the Competition Authority may
proceed to a phase two investigation.
In a phase two investigation, the Competition Authority
will have three months within which to investigate the
merger and decide whether it should be cleared or
blocked. The Authority will also have the power to receive
and negotiate undertakings or commitments from the
parties in order to reduce the impact on competition of an
otherwise difficult merger. In such cases, additional time
will be allowed for the parties to negotiate the
undertakings with the Competition Authority; both in
phase one and phase two.
Mergerassessment
The Act also changes the test for the examination of
mergers. It introduces a new competition-based test and
removes the public interest or common good criteria for
non-media mergers. The new US-style substantive test for
the assessment of mergers is whether or not the merger
Partner and Head of EC, Competition and Regulatory
Law Group, Matheson Ormsby Prentice, Dublin

Draft Commission Regulation and the 6 Draft Commission Notices on 10 October

2003, submitted to consultation by the Commission for the revised implementation of
the rules on competition laid down in Articles 81 and 82 of the Treaty, concerning
understandings and abuse of dominant position

http://ec.europa.eu/competition/consultations/2003
_modernization_package/afep_en.pdf

American Chamber of Commerce to the European Union

http://ec.europa.eu/competition/consultations/2003_modernization_
package/amcham_en.pdf

RESPONSE OF THE EUROPEAN COMPETITION LAW PRACTICE GROUP TO

THE EUROPEAN COMMISSIONS CONSULTATION ON THE
MODERNISATION PACKAGE
http://ec.europa.eu/competition/consultations/2003_modernization_
package/baker_en.pdf

Commission Decision of 12 December 1994 on the terms of

reference of hearing officers in competition procedures before
the Commission (Text with EEA relevance)
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?
uri=CELEX:31994D0810&from=EN

EUROPEAN COMMISSION PUBLIC CONSULTATION ON THE

REVISION OF THE 1997 NOTICE ON THE INTERNAL RULES
OF PROCEDURE FOR PROCESSING REQUESTS FOR
ACCESS TO THE FILE IN ANTITRUST AND MERGER CASES
INTERNAL RULES OF PROCEDURE FOR PROCESSING
REQUESTS ... Articles 85 and 86 of the EC Treaty, Articles
65 and 66 ... of the ECSC Treaty and Council Regulation
(EEC)
http://ccbe.eu/NTCdocument/ccbe_response_access1_1183705883.p
df

Donald Trump has a unique view of

the Bill of Rights. Heres how it
might look under his presidency.
Freedom of the (dishonest, disgusting, totally
biased) press?
meta date and author
October 21, 2016 by Adrienne Watson

The president of the United States takes an oath to

preserve, protect, and defend the Constitution of
the United States.
Donald Trump, who is one of two people who might
take that oath next, promises to staunchly defend
Article XII of the Constitution (there is no
Article XII) while threatening to undo the
fundamental principles of American democracy that
are laid out in itprinciples that have set us apart
for the past 240 years and give us hope for a
brighter future.
Clearly, Trump misunderstands the Constitution
and the Bill of Rights (Donald, if youre reading,
thats the first 10 amendments to the Constitution).
And if Trumps actually read the Bill of Rightsa
big ifhow would he enforce it?
Heres our best guess at what the Bill of Rights
would look like under a Trump presidency:

[Donald J. Trumps] Bill of Rights

Amendment I

Donald J. Trump Congress shall make any no

law respecting an establishment of religion, or
prohibiting the free exercise of Muslim

Americans thereof; or abridging the freedom to

wish happy holidays of speech, or of the
dishonest and disgusting, totally biased press
(but not Sean Hannity); or the right of the
people peaceably to assemble, or to but Donald J.
Trump can petition the Government for a redress
of grievances such as too many fire marshals
and totally false accusations of having small
hands.

Amendment II

A well regulated Militia, being necessary to the

security of a free State, the right of the people to
keep guns without undergoing background
checks and bear Arms in classrooms in every
school in America, shall not be infringed.

Amendment III

No African American or Latino Soldier shall, in

time of peace be quartered in any house Trump
property, without the consent of the Owner, nor in
time of war, as long as their lease is marked
with a C for colored but in a manner to be
prescribed by law.

Amendment IV

The right of the people to be secure in their persons,

houses, papers, tax returns and effects, against
any unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon
the end of an audit by the IRS and probable
cause, supported by what people are
saying! Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.

Amendment V
No president person shall be held to answer for
whether they are really born in the United
States a capital, or otherwise infamous crime,
unless they are rumored to be from Kenya on
a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law;
nor shall private property be taken for public use,
unless Donald J. Trump wants to build a
YUGE concrete wall that Mexico will pay
for without just compensation.

Amendment VI

In all criminal prosecutions against scams like

Trump University, the accused shall enjoy the
right to a speedy and public trial, by an impartial
jury and a non-Latino judge of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the lie! accusation; to be
confronted with the witnesses against him; to have
compulsory process for compelling obtaining a
state attorney general witnesses to (possibly!)
look the other way in his favor in exchange for
a large campaign donation, and to have the
Assistance of Counsel for his defense.

Amendment VII
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of
trial by jury for a small-business owner stiffed
by a large corporation with the letters T,
R, U, M, and P in its name shall not be
preserved.

Amendment VIII

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual
tweets punishments inflicted unless sent at 3
a.m. from an Android phone.

Amendment IX

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage
others retained by the people, except for women,
Latinos, Muslims, African Americans, Gold
Star families, the LGBT community,
prisoners of war, people with disabilities,
journalists, and Paul Ryan.

Amendment X

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to
Vladimir Putin, who is a very strong
leader the people.