This article is the first to undertake a comparative statistical study examining the application and trends in European Union ('EU') law before the Scottish and Irish courts over a ten year period from 2009 – 2018. The paper poses the question, how does European integration impact on the domestic legal systems of EU Member States due to the increasing volume, and significance, of cases where EU law is raised and applied within domestic legal systems? It highlights similarities and differences between the two jurisdictions and the fields of law where EU law has been most prominent. The research, focussing on civil law matters, is of particular relevance in light of Brexit. It highlights the potential difficulties implicit in attempting to unpick over 40 years of assimilation of EU law and principles into Scots law and lays the groundwork for a further comparative study after another 10 years on the extent of the impact of Brexit in Scotland and Ireland.
The last 10 years of EU integration has seen a “rights revolution”, at least in so far as fundamental rights are increasingly the register through which legal conflicts in the EU are articulated. But how are EU fundamental rights enforced in a legal order where enforcement relies upon the navigation of multiple institutions and levels of law? This article will seek to clarify this question, using the example of equality law to explore the various remedies available under EU law to enforce EU fundamental rights, and analysing their various strengths and weaknesses. The article will argue that while EU law has considerably enhanced the possibilities for individuals and groups to challenge breaches of fundamental rights to equality, the system of remedies provided by EU law has serious weaknesses. First, the autonomy provided by EU law for domestic orders to develop their own remedies and rules of access creates significant discrepancies in enforcing fundamental rights across the Member States. Secondly, the enforcement of EU equality law remains primarily based on individual litigation both leaving “gaps” in protection for vulnerable groups and making it difficult to address “systemic” problems of discrimination. The EU’s “rights revolution” both provides legal and political opportunities for social actors while also challenging the EU’s existing system of judicial remedies.