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- PublicationPaving the Way : Adjustments of Systems and Mutual Influences between the European Court of Human Rights and European Union Law before Accession(University College Dublin. School of Law, 2014)The negotiations on accession of the EU to the ECHR successfully ended on April 5, 2013. While they remain, until accession, autonomous and separate from an institutional point of view, the two European legal orders have not developed in isolation. Just as the CJEU has done vis-à-vis the Strasbourg system, the ECtHR has had to take into account the law emanating from the EU. Accession is admittedly viewed as a simplification, or at least a standardisation, of the relationship between the two European systems and the two courts. However, the pressure put on the ECtHR in this regard must not be overlooked. Having implicitly assumed a leading role in the management of the interaction of the two systems and the interdependence of the two bodies of case law before accession, the ECtHR will formally inherit that responsibility thereafter. This article seeks to contribute to the extensive literature on accession by assessing the case law on the relationship between the ECtHR and EU law prior to accession. In particular, taking stock of the reasoning of the ECtHR helps our understanding of how the court has paved the way for accession and how its EU-related case law is relevant for the further development of the European public order postaccession.
- PublicationChallenging Exchange Programs: Studying the Common Law and Civil Law Systems in a Joint Law Degree(European Law Faculties Association, 2009-04)The demands of globalization have put greater pressure to internationalize the university law curriculum in order to prepare students as lawyers. This is particularly relevant in the context of the European Union. A particularly challenging type of programme regarded as a potentially useful tool to further the internationalization and integration of European higher education and to make the European Higher Education Area (EHEA) a reality is the joint degree. It is broadly defined as a degree awarded on the basis of completion of a study programme established and provided jointly by two or more higher education institutions, normally located in different countries. This paper offers a case study on a particular joint law degree which involves the study of the two major legal systems of common law and civil law – namely the University College Dublin Bachelor of Civil Law/Maîtrise (Irish/English law and French law) Degree. While emphasis is put on the challenges and benefits of teaching and learning in such a degree, the experience is put into perspective with other exchange programmes involving French legal studies. Sustaining a whole range of exchange programmes in a law school prompts wider reflections on how to meet the paradoxical challenge of diversity and integration in the context of European legal education.
- PublicationLa Cour européenne des droits de l'homme et le droit de l'Union européenne, notamment la Charte des droits fondamentaux : une gestion subtile entre ajustements systémiques et enrichissements mutuels(University College Dublin. School of Law, 2012)Alors que les négociations d’adhésion de l’Union européenne (UE) à la Convention européenne des droits de l'homme (CEDH ou Convention) sont en cours à la suite de réformes significatives de chacun des ordres juridiques européens, nombreux sont déjà les points de contact entre ceux‐ci. On est bien loin du 'silence' des Traités communautaires sur les droits fondamentaux et de l'apparente étanchéité entre les deux systèmes. S'ils sont encore, jusquʹà l'adhésion, autonomes et séparés d'un point de vue institutionnel, les ordres juridiques européens n’ont pas évolué en vase clos. La question de l’interaction entre le droit de la CEDH et celui de l'UE est connue. Elle a donné lieu, et donne encore lieu avec la perspective de l’arrimage d’un système à l'autre, à une abondante littérature.
- PublicationLegal Education in Ireland: A Paradigm Shift to the Practical?Irish legal education is under increasing pressure to reform and reinvent itself in the face of various challenges, especially those implied by the Bologna process. In line with two of the main priorities of the process, namely employability and student-centred learning, a growing number of Irish law faculties have incorporated, or are planning to incorporate, more practice-related components into the law curriculum and, in some cases, a fully fledged Clinical Legal Education programme. This is an important shift in the paradigm of legal education in Ireland which should be welcomed and encouraged by all stakeholders – students, academics, practitioners, judges and those involved in myriad capacities in the administration of justice. In the first part, a comprehensive presentation is given about the general structure of legal education in Ireland dealing with the main legal education providers, academic and professional requirements for legal training, as well as figures on the legal population and the approximate cost of legal education. The second part goes on to consider three views about the role of practice in Irish legal education, namely the 'traditional' view, the 'holistic' view and the 'clinical' view. These schematically presented views reflect different perspectives on the nature and purpose of legal education. They do not necessarily compete with each other, especially the last two which could arguably complement one another in the general renewal that Irish legal education is facing at the moment. The traditional view is that the status quo, i.e., in which practical elements are not a big feature of legal education at third level, has worked well and should, more or less, be preserved. The holistic view encourages the teaching of some element of practical preparation, but that this can best be provided to students by third level institutions through interdisciplinary courses that put law in context.
- PublicationL'Obligation De Renvoi Préjudiciel En Irlande : Raisonnement Sur Hypothèses En L'Absence De Dispositif National De Sanction(Bruylant, 2014-04)One of the most recently debated issues about the preliminary ruling procedure is about State liability for breaches of EU law by the judiciary. Stemming from the implications of three sets of cases by the Court of Justice of the European Union, namely Köbler, Kühne and Kempter, Lucchini and Fallimento Olimpiclub, the issue calls for a reflection on the possibility to sanction at national level a judicial decision not to refer. The issue is of particular relevance since the European Court of Human Rights has ruled that an arbitrary decision not to refer a question for a preliminary ruling theoretically could infringe the right to a fair trial. The work by Laurent Coutron, L’Obligation De Renvoi Préjudiciel: Une Obligation Sanctionnée ?, offers detailed analyses on this issue in nineteen EU Member States, including Ireland. Some legal systems such as Germany regard the preliminary ruling procedure as a right for individuals who are entitled to an appropriate remedy when this right has been infringed by failure to refer by a supreme court which has the obligation to do so. Other countries have started to hint in this direction, for example the French Court of Cassation which has recently decided that the refusal to refer could be regarded as a ‘denial of justice’ leading to possible State liability proceedings. The report on Ireland is divided in three parts. A first part gives an overview of the practice of preliminary procedure by Irish courts with updated figures and trends. A second part presents preliminary observations about the domestic courts subject to the obligation to refer. The third part analyses the mechanisms aimed at 'sanctioning' the failure to refer by courts against which there is no remedy. While such mechanisms are absent in Irish law, the chapter puts forward two potential options, namely the possibility of judicial review and State liability for a decision not to refer by the Supreme Court, the High Court and instances involving lower courts against which there is no further remedy.
- PublicationThe Implications of the 'No' Vote in France: Making the Most of a Wasted Opportunity(Brill Academic, 2008)On 29th May 2005, French citizens were asked the following question: "Approuvez-vous le projet de loi qui autorise la ratification du traité établissant une Constitution pour l’Europe?" (Do you approve of the Bill authorizing the ratification of the Treaty establishing a Constitution for Europe?). When French people cast their vote, nine Member States representing nearly half the people of the European Union (EU) had already decided, by parliamentary or referendum method, to ratify the Treaty establishing a Constitution for Europe (hereby, the Constitutional Treaty). France was the second Member State to ratify by referendum after Spain where approval of the Constitutional Treaty was massive – but turnout low. 54.67% of French voters answered "non" and hence rejected the Constitutional Treaty, even though France was one of the major proponents of the Convention on the Future of Europe which led to the drafting of the Constitutional Treaty.
- PublicationPopular Sovereignty and the Use of the Referendum – Comparative Perspectives with Reference to France(Bloomsbury Professional, 2012)Constitutions are bound to evolve. A constitution which cannot change or adapt does not serve effectively its purpose since the values and principles it is based upon need to be 'brought to life' through interpretation, application and incremental revisions: in sum, a successful 'living constitution' has a past, present and future. In this regard, it is remarkable to observe how the Irish and French Constitutions have survived through time as two of the most enduring constitutions in Europe without either becoming a mere 'petrified object of devotion'.
- PublicationThe Comparative Method in Legal Research: The Art of Justifying Choices(Clarus Press, 2016-06)Comparative law is a thriving area in the study of t he law which has attracted, in the last decades, a growing interest in legal scholarship and legal edu cation. The expanding literature published in quality specialised outlets as well as a steadfast nu mber of research events organised by universities, research institutes and other numerous organisations all attest the phenomenon. It is difficult to find an academic law curriculum which does not comprise a course in comparative law in some form, whether as an introductory course in the first years of study, or as a more substantial course at a later stage. A comparative perspective may also be embedded, in a more or less systematic way, in the study of the different subjects of law (i.e. contract law, commercial law, constitutional law, family law, procedural law...). Comparative legal studies are also increasingly being pursued at doctoral level. In a sense, ‘we are all comparatists now’, or bound to be.
- PublicationConstitutional Law in France (International Encyclopaedia of Laws)This Part provides a vignette of French constitutional history as well as some significant features of the current regime, including information on the State and its territory, as well as up-to-date data on population and demographics.