Common law in danger of being 'swamped'

The number of cases decided without any oral hearing whatsoever at the EU Court of Justice in Luxembourg is far higher than expected by newly-installed Advocate General, Gerard Hogan, who joined the court one month ago.

At the Law Reform Commission’s annual conference in Dublin this morning, he queried whether there was too much value put on the oral tradition of the common law system.

He also posed the question as to whether Ireland would, over time, become swamped by civil law EU Member States.

“Ireland could become an EU Louisiana, swamped by surrounding states,” he quipped. 

Civilian values

He stated that some recent cases, where “civilian values” – with a preference for legal certainty and for rules to be written down – in essence trumped the common law method, where key principles simply emerge from case law. 

“This development is not something we should necessarily fear,” he said. “Rather, we have much to learn from such an approach.”

“On the other hand,” he added, “the great attraction of the common law – especially in the sphere of contract and commercial law – is that it is flexible, fact-based and develops only incrementally – and furthermore generally respects party autonomy, especially in a business-to-business environment,” he said. 

Chief weaknesses

Advocate General Hogan said that common law also avoided the multiple abstractions long thought to be one of the chief weaknesses of the German civil law system.

He wondered what might happen to EU contributions to common law post-Brexit, and pondered the implications for our core private law. 

If the English public law doctrines are no longer recognised, he asked, would this lead to the putting aside of the common law systems within the EU? 

He queried whether there could be fundamental changes in store after Brexit, pointing out that there had been some inroads, to date, to the fabric of the common law. 

At the EU Court of Justice, he said that case law had become far more important in civil law jurisdictions than might have been the case two generations ago.

The EU Court of Justice had created a huge body of case law, he said, which was just as important to civil as to common law.

Preference for legal certainty

Advocate General Hogan commented that recent cases had reflected a civil law attitude to judges’ discretion in common law systems, showing a distaste for discretionary time limits as inconsistent with legal certainty.

This was especially the case where the application of this discretionary feature was simply governed by previous case law, and was not directly based on a written text, he said.

A recent judgment by Advocate General Kokott made clear that, under a common law system such as Ireland’s, not only statutory provisions but also decisions of the court were determinative. 

Advocate General Hogan pointed out that, under civil law, key rules in society were set down in a text and not in a judicial decision, and that this had recently trumped the common law method in some recent cases.

Merits of common law system

The pragmatic, fact-based, incremental basis of common law had many merits, the Advocate General said. 

There have been contributions to the common law from EU general principles under the EU Charter of Fundamental Rights, including proportionality, abuse of rights, legitimate expectations and effective remedy.

A major example of this going the other way was the requirement, in Article 5 of the Damages Directive, that discovery be made available in competition law cases.

This represented a major change for civil law countries with no tradition of discovery, such as Germany.

“Common law works in practice,” he said, “though it might not appear to work in theory.” 

But there was a cleavage between common law and civil law attitudes, particularly where rules were not written down.  

Real question

The real question is what will happen after Brexit, given the issue of the relationship between Irish common law and that of Britain.

About 28% of written judgments in Ireland cite a prior English or Welsh case, Advocate General Hogan pointed out.

Those figures would decrease as far as English case law was concerned, and become significantly higher with respect to decisions emanating from the European Court of Justice. 

There will be a ‘de facto’ isolation of Ireland, post Brexit, and clearly the EU Court of Justice is very concerned about this, he concluded.