By Sharon Morioka
Michigan Law
Since December 2022, Rossa Fanning has served as attorney general of Ireland, following a career as one of the country’s most highly regarded barristers. He returned to his alma mater to make a September 5 presentation to Professor David Halberstam’s class on European law, where he discussed European Union law from the perspective of a member state. Topics included Ireland’s history in the EU, the political institutions of the EU, member state versus EU law, and the implications of Brexit.
He also made September 6 presentations to Professor Christopher McCrudden’s class on Comparative Human Rights Law and at LSA’s Weiser Center for Europe and Eurasia, where he discussed Ireland’s unique geopolitical position.
Four takeaways from his presentation to Halberstam’s class:
1. Ireland continues to be enthusiastic about the EU.
On January 1, 1973, Ireland, Denmark, and the United Kingdom joined the European Communities, whose original members were Belgium, France, Italy, the Netherlands, Luxembourg, and then-West Germany. It was the first expansion of the organization, which now numbers 28 countries thanks to subsequent expansions.
Several treaties shaped the EU, but the two most notable were the Maastricht Treaty in 1992, which founded the European Union, and the Treaty of Amsterdam in 1997, which allowed member states to transfer power from national governments to the European Parliament.
When Ireland joined the EU, said Fanning, “it had to be voted on by the people in a referendum to permit constitutional change. And 83 percent of voters supported Ireland joining the European Union. As we all know, it’s very hard to get 83 percent of people to agree on any sort of politically contentious question.”
Today, membership in the EU remains very popular, as 74 percent of Irish people have a positive view of the EU and a mere 6 percent have a negative view.
“European Union membership has, by any objective view, been extremely positive as an aid to Ireland’s modern economic development,” Fanning said. Aid from the EU over the course of the past 50 years has contributed to Ireland’s infrastructure development, and many multinational companies have established their European headquarters there.
“Ireland is unrecognizable from the country that joined the European Union 50 years ago,” Fanning said.
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2. Four political institutions work together for the EU and its citizens.
At the top of the structure is the European Council, composed of the political leaders of each member state. The council has the power to vote on new member states and to ratify the president of the European Union Commission, among other high-level responsibilities.
The European Commission is at the heart of the EU in terms of governance and is led by the College of Commissioners. Each member state nominates a commissioner who is responsible for a directorate-general, or department, composed of civil servants; for example, the EU agricultural commissioner is roughly approximate to the US secretary of agriculture. The European Commission, therefore, is effectively the cabinet of the EU and is responsible for the day-to-day running of the EU. While political power is deliberately dispersed in the EU, said Fanning, “insofar as you could identify one person who leads the European Union, the most obvious person who fits that bill is the president of the EU Commission, Ursula von der Leyen.”
In addition to the council and commission are the Council of the European Union, an ad hoc group composed of ministerial representatives from each member state, and the European Parliament, which approves the EU budget, passes legislation, and scrutinizes the activity of the EU Commission.
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3. The EU and Ireland continue to face challenges in managing the issues arising out of Brexit.
When the United Kingdom voted to leave the EU in January 2020 (known as “Brexit”), it was the most important political development since the founding of the EU, Fanning said.
“Until Brexit, the EU was seen as a club that everybody was dying to get into,” he noted —despite stringent requirements and a commitment to the EU rule of law. Neither EU laws nor treaties anticipated the desire of an individual member state to leave, resulting in years of intractable and difficult negotiations between the UK and the EU.
In addition, much of the legislation enacted by the British Parliament since the UK joined the EU was not independently conceived legislation; rather, it was enacted by parliament to bring the UK into compliance with EU directives. The same holds true for other EU member states, which means that separation from EU laws is not simple.
The impact of Brexit continues to reverberate in Ireland. When the UK was part of the EU, there was free movement of people and goods across the border between the Republic of Ireland and Northern Ireland.
“Once the United Kingdom left the European Union, it meant that the border between Northern Ireland and the rest of Ireland is now a frontier between the UK and the European Union,” said Fanning. However, in February 2023, the EU and UK were able to negotiate the Windsor Framework, which, Fanning said, “dampened down some of the more inflammatory features of the Withdrawal Agreement that created a trade border between Northern Ireland and the UK.”
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4. Member state laws are based on EU directives.
Just as the UK laws, pre-Brexit, were based on EU directives, so are the laws of other member states. In fact, the EU legislates either by directive or regulation.
“A regulation is said to be directly effective in the member states, and it’s just like an act of parliament,” said Fanning. “A directive, on the other hand, is an instruction to a member state to legislate in accordance with EU principles and is not, generally speaking, directly effective.
“Viewed from the perspective of any member state, upwards of half of the laws of that country now will realistically be EU law in the sense of EU regulations that have direct effect or domestic law that is legislated for by a national parliament, which is required to comply with EU directives.”
When a conflict between EU law and member state law arises, the doctrine of supremacy means that European Union law will prevail. And if a member state doesn’t comply, it is in breach of EU law, which means that the EU Commission can sue the member state in the EU courts.
Member states are willing to give up some degree of economic and legal sovereignty, Fanning said, because the economic and stability benefits of being members of the European Union justify the cost. However, any further integration toward a Federal Europe is off the table.
“The different countries have too many differences—language differences, cultural differences—and I don’t think they ever would voluntarily give up that level of sovereignty,” said Fanning. “So I think the European Union now is probably at a point of political equilibrium. The member states don’t want to go backwards and probably don’t want to go very far forward.”
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