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Tir gan teanga, tir gan anam - European Court of Justice conducts case in Irish for first time

25/03/2021

Locations

Ireland

On 17 March 2021, the European Court of Justice ("ECJ") delivered its judgment in relation to a case which was conducted in the Irish language for the first time in the ECJ's history.
Background
The case arose from a referral made to the ECJ in October 2019 by the High Court  by Ms Justice Ní Raifeartaigh. The referral concerned whether not the High Court had discretion to grant relief in circumstances where the State had failed to properly implement an EU Directive (2001/82/CE) concerning the labelling of medicinal veterinary products. This arose from a challenge launched by Peadar Mac Fhlammchadha, who works as Advocacy Manager at Conradh Na Gaeilge. Mr Mac Fhlammchadha argued that the Directive required information on leaflets and packaging to be in both Irish and English, as they are both the official languages of the State.

Ms. Justice Ní Raifeartaigh found in favour of Mr Mac Fhlannchadha but deferred making any orders. This was in circumstances where a new EU Directive was due to come into force in January 2022 which would allow the State to choose between packaging in English or Irish. Noting the new changes soon to be implemented, Ms. Justice Ní Raifeartaigh opined that changing the packaging in order to comply with the current Directive would be futile. The State argued that granting of relief would serve no useful purpose since the Applicant understood the information in English. The State also identified the potential costs which enforcing the current Directive could have on foreign suppliers, potentially forcing some to pull out of the Irish market.

Ms Justice Ní Raifeartaigh decided to make a referral to the ECJ and queried whether the High Court is entitled to essentially overlook breaches of EU Law in certain circumstances. Specifically, Ms Justice Ní Raifeartaigh queried the following:
  1. Whether a national court has discretion to refuse relief in spite of its decision that national law has failed to give effect to a particular aspect of a Directive of the EU; and
  2. Would the principle of 'direct effect' in EU law be undermined if the national court refused to grant relief in this case, in circumstances where the new EU Directive will no longer require bilingual labelling once it takes effect in January 2022.  
 
The request for a preliminary ruling can be accessed here
 
Language Arrangements
The ECJ can hear cases in any of its Member States' official languages, but no cases have been brought in Irish since Ireland joined the EU in 1973.
Proceedings in this referral to the ECJ were conducted in Irish and then relayed to the Justices by translators in French. In preliminary ruling proceedings, the language of the ECJ proceedings is always the language used by the national court or tribunal which made the referral. Mr Mac Fhlannchadha elected to have his case in the High Court heard through Irish, which then led to this historic sitting of the ECJ. All documents exchanged between the parties were in Irish; any documents lodged by the parties were translated into French, the official language of the ECJ. Deliberations by the Justices were also be carried out in French.
 

By contrast, in direct actions, applicants may choose the language of the case. They are not bound by the language of their own nationality or by that of their lawyer. However, where the defendant is a Member State, the language of the case is the language, or one of the languages, of that State. Once the language of the case has been determined, that language must be used throughout the proceedings, both in the written and in the oral form. The choice of the language to be used is binding not only on the parties, but also on any third parties who may be granted leave to join in the proceedings.
 
Judgment
On 17 March 2021, the ECJ published its judgment in relation the request for a preliminary ruling, The judgment was delivered in Irish and was then translated by the Directorates for Legal Translation into the official languages of the EU. By way of summary, the ECJ found as follows:

Article 288 TFEU must be interpreted as precluding a national court – which, in the context of proceedings laid down in national law for that purpose, finds that the Member State to which it pertains has failed to fulfil its obligation to transpose correctly Directive 2001/82 – from refusing, on the ground that it appears to it that the national legislation is consistent with Regulation 2019/6 which repeals that directive and will be applicable with effect from 28 January 2022, to make a declaration that that Member State has not correctly transposed that directive and is required to take remedial steps in that regard.

Following the release of the judgment, the case will now return to the Irish High Court. The judgment in English can be accessed here. The judgment in Irish can be accessed here. 
 
 Written by Eimear Burke, Hannah Unger and Paul Bruun-NIielson. 
 

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