Table of Contents: I. Introduction. – II. Research design and literature overview. – III. Legal explanations. – III.1. A stricter application of Cilfit by the Supreme Court. – III.2. The Court of Appeal: a de facto court of final appeal applying Cilfit. – IV. A generational change in knowledge and mentality. – V. Increased (EU law) litigations and requests to refer. – VI. No negative feedback loops: general satisfaction with Court of Justice answers. – VI.1. General satisfaction and inspiration. – VI.2. Very few deficient Court of Justice judgments: exceptions proving the rule. – VII. Concluding remarks.
Abstract: Ireland has always had a mixed relationship with the EU. It is one of the few EU Member States in which the people rejected EU constitutional changes. Until the EU enlargement of 2004, Ireland had the lowest rate of preliminary references to the Court of Justice across all EU Member States. The latter has changed in recent years. Irish courts have been at the forefront with important references in sensitive areas (Court of Justice: judgment of 27 November 2012, case C-370/12, Pringle; case C-293/12, Digital Rights Ireland [GC]; judgment of 6 October 2015, case C-362/14, Schrems [GC]; judgment of 25 July 2018, case C-216/18 PPU, Celmer [GC]). While only 44 cases where referred in its first 30 years of membership (1973-2003), 45 references were made in the six years between 2013-2018. This Article explains this marked change from what seems an island mentality to enthusiastic engagement with the Court of Justice. Why have Irish courts become more active interlocutors of the Court of Justice? What are their motives to refer (or not)? This question is studied on the basis of a legal-empirical research consisting of interviews with Irish judges and a systematic analysis of all decisions (not) to refer since 2013. This Article attributes the increase in references to the arrival of new judges with more knowledge about EU law and a more positive attitude towards referring. Other factors are the previous positive experiences with the Court of Justice that have stimulated (other) judges to refer. Legal considerations also played a role. Not only the Supreme Court, but also the High Court and the Court of Appeal have rather faithfully applied Cilfit (Court of Justice, judgment of 6 October 1982, case 283/81, v. Ministero della Sanità).
Keywords: preliminary ruling procedure – Cilfit – motives to refer – knowledge of EU law – domestic litigation – (dis)satisfaction with Court of Justice judgments.
* Associate Professor of International and European Law, Radboud University Nijmegen, email@example.com.