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Journal of the Bar of Ireland • Volume 14 • Issue 3 • June 2009 Security for Costs Global Claims under Construction Contracts BR 3-2009.indd 1 22/05/2009 10:56:58 Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Editor: Eilis Brennan BL Cover Illustration: Brian Gallagher T: 01 4973389 Editorial Board: E: [email protected] W: www.bdgart.com Donal O’Donnell SC, Typeset by Gough Typesetting Services, Dublin Chairman, Editorial Board [email protected] T: 01 8727305 Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Adele Murphy BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Volume 14, Issue 3, June 2009, ISSN 1339-3426 Paul A. McDermott BL Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Contents Jerry Carroll Consultant Editors: Dermot Gleeson SC Patrick MacEntee SC 50 Recent Developments in EU law Eoghan Fitzsimons SC DR ELAINE FAHEY BL Pat Hanratty SC James O’Reilly SC Gerard Hogan SC 54 Recent Developments in the law of prohibition The Bar Review is published by Part 2 Round Hall in association with The Bar Council of Ireland. MÍCHEÁL P. O’HIGGINS SC For all subscription queries contact: xlv Legal Update: Round Hall Thomson Reuters (Professional) A Guide to Legal Developments from Ireland Limited 19th March 2009 up to 8th May 2009 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 E: [email protected] 61 Security for Costs under S.390 of the Companies Act, 1963 web: www.roundhall.ie ANTHONY BARR S.C. Subscriptions: January 2009 to December 2009—6 issues 69 Global Claims under Construction Contracts Annual Subscription: €240.00 + VAT GERARD MEEHAN BL For all advertising queries contact: Sean Duffy, Direct line: + 44 20 7393 7602 E: [email protected] Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review June 2009 BR 3-2009.indd 49 22/05/2009 10:56:59 Recent Developments in EU law DR ELAINE FAHEY BL Introduction “reconsidered” and that the benefit of such free movement rights to the family members and dependants could not now The Court of Justice delivered a number of particularly depend on such a condition. Rather, the Court held that the important decisions in 2008 that are the subject of analysis Community legislature was competent to regulate this issue here. 2008 marked a year where the Court was operating in and that the timing of a marriage or place of establishment the shadow of a ratification crisis surrounding the Treaty of of a citizen and their family was irrelevant, contrary to Lisbon. Nonetheless, key decisions in favour of individual arguments submitted. rights at the expense of Member State sovereignty were The importance of the Metock decision cannot be delivered by the Court in 2008 and the Irish State was involved underestimated in terms of its constitutional re-enforcement in and lost, or will be affected by a number of noteworthy of the centrality of free movement and Union competence decisions. The areas considered in this review here are the free in this area to the European project, a tremendous decision movement of persons, free movement of goods, fundamental in favour of the individual.4 The Irish State lobbied rights, legislative competence, competition law, freedom of unsuccessfully after Metock for an amendment to the Citizens’ establishment and employment law. Rights Directive. Free Movement of Persons Free Movement of Goods Despite the introduction of the Citizens Rights Directive,1 In the recent decision of Dynamic Medien5, the Court (Third European Union law had been silent on key issues as to Chamber) considered a German law prohibiting sale by mail the entry and residence rights for Third Country National order of image storage media (eg DVD) not labelled as having spouses of Union citizens. A major issue raised by the recent been examined in Germany to be suitable for young persons. decision of the Court of Justice (Grand Chamber) in Metock,2 The issue arose as to inter alia whether the law was in breach a referral from Finlay Geoghegan J. in the Irish High Court, of Article 28 EC or whether the rule could be deemed to was as to whether national law or secondary Community law be a “selling arrangement” within the meaning of Keck6 and governs such entry and residence requirements, in light of the thus fall outside the scope of Article 28 EC. The prohibition Akrich3 decision of the Court. In Akrich, the requirement for had as its objective the protection of young persons and third country national spouses of Union citizens of having constituted a form of administrative censorship. a “prior lawful residence” in another State prior to entry to The decision of the Court began with the formulaic outline the host State was first introduced. of the law as to Article 28 EC and the well-settled definition The (Irish) European Communities (Freedom of of quantitative restrictions and subsequent clarification of Movement of Person) Regulations, 2006 purported to “selling arrangements” and the scope of Article 28 EC.7 Thus transpose the Directive into Irish law and the “prior lawful the Court held that a number of marketing methods had been residence” requirement. The Irish High Court in Metock was held by the Court to constitute selling arrangements. Rather faced with several third country national spouses of Union the need to adapt products to the rules in force in a State citizens who were refused residence in Ireland on account would prevent such rules constituting a selling arrangement. of their absence of “prior lawful residence” in another EU The Court held that the rules at issue could not constitute State. a selling arrangement as the rules provided for a labelling The judgment of the Court of Justice was delivered requirement that made the import of image storage media pursuant to the accelerated reference procedure on account more difficult and expensive and could dissuade persons of the significance of the decision. The Court acknowledged from marketing their products in Germany. However, the that no provision of the Directive made its application to protection of young persons was a possible justification for family members of a Union citizen conditional on previous the restrictions imposed and was for the national court to residence in another Member State and in an unusually explicit breach of precedent, held that the “prior lawful 4 Although the decision has been criticised for its excessively speedy residency” requirement introduced in Akrich had to be delivery: Currie “Accelerated justice or a step too far? Residence rights of non-EU family members and the court’s ruling in Metock” (2009) 34 European Law Review 310; Costello “Metock: 1 Directive 2004/38/EC on the right of citizens of the Union and Free Movement and “Normal Family Life” in the Union” (2009) their family members to move and reside freely within the territory 46 CMLRev 58. of the Member States. 5 C-244/06 Dynamic Medien [2008] 2 CMLR 23. 2 C-127/08 Metock & others v. Minister for Justice, Equality & Law Reform 6 Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] [2008] 3 CMLR 39. ECR I-6097. 3 Case C-109/01 Secretary of State for the Home Department v Hacene 7 Case 8/74 Dassonville [1974] ECR 837 and Joined Cases C-267/91 Akrich [2003] ECR I-9607. and C-268/91 Keck and Mithouard [1993] ECR I-6097. Page 50 Bar Review June 2009 BR 3-2009.indd 50 22/05/2009 10:57:00 determine. In light of the fact that the prohibition did not “… that it is not a consequence of the principles prevent the marketing of all such media, this had a significant governing the international legal order under the bearing upon proportionality. Moreover, the examination United Nations that any judicial review of the internal process of such media needed consideration in this regard lawfulness of the contested regulation in the light of and the Court held that in principle, the prohibition was not fundamental freedoms is excluded by virtue of the precluded by Article 28 EC unless the classification procedure fact that that measure is intended to give effect to a was not accessible or amenable to challenge. resolution of the Security Council …”12 The decision in Dynamic Medien is a significant one for the simple reason that it demonstrates a certain clarity and ECJ thus held that the regulation was unfair and infringed maturity of the caselaw, given that the Court sets out the the fundamental rights of the applicant and that the governing caselaw with admirable economy, whatever the regulation would be annulled. The decision has been merits of the selling arrangement distinction introduced by criticized extensively for its conclusions as to sources of law Keck and the ongoing debate as to the role discrimination or and the apparent supremacy of EU law.13 Nonetheless, the the appropriate application of market access in the caselaw as decision represents a strong reading of fundamental rights to the internal market.8 The Court also referred to a diverse within EU law, although the decision is largely grounded in range of human rights instruments, itself a sign of much procedural concerns and not substantive grounds.