Of Courts and Constitutions is a Liber Amicorum in honour of Justice Nial Fennelly. Justice Fennelly was the first and so far only Irish Advocate General (AG) of the Court of Justice of the EU (CJEU). He moved to Luxembourg in 1995 after a long career at the Bar only to return to his homeland in 2000 to serve as a judge of the Irish Supreme Court where he remained up until his retirement in May 2014. The contributions to this edited collection are extremely varied but, in many ways, the book reflects the Justice's multi-faced career path and interests: it covers questions of both EU law and Irish law; many of the contributions build expressly on some of Fennelly's most influential judgments and opinions, and the authors themselves span across the legal profession, further enriching the book with a diversity of styles, approaches, and concerns. For example, the first section of the book, written exclusively by current and former members of the EU judiciary, provides helpful “inside” insights into the functioning of the CJEU. Among the list of contributors, moreover, one finds the holders of the highest judicial offices in the EU and Ireland, whose extra-judicial voices are perhaps more rarely included in contemporary academic debates.

Other prominent “legal figures” of the twenty-first century are also present to pay tribute to the Justice. One is Mr. Kadi, who alone gave rise to no fewer than four judgments by the CJEU, alongside two AG opinions. What is often termed the “Kadi saga” is helpfully retraced in David Edward's contribution. Kadi was included in the list of people associated with the al-Qaida organisation by the UN Security Council (UNSC) in 2001, as a result of which he was subject to various restrictive measures at the EU level. Most readers will be familiar with the heated debate over the relationship between the UN and the EU that dominated the first round of cases and culminated in the 2008 judgment of the CJEU (Kadi II). In that case, the Court (re)-asserted its power to review all EU measures – including those adopted to give effect to Resolutions of the UNSC – for their compatibility with EU fundamental rights, thus reversing the General Court's (GC) decision at first instance (Kadi I).

Less well known, perhaps, is the remainder of the Kadi saga and the significant problems that still underpin this area. Kadi's success was short-lived, as the European Commission immediately put him back on the list. In the second round of cases initiated by Kadi, the focus shifted to the appropriate scope and intensity of judicial review. In particular, controversy arose as to the proper interpretation to be given to the CJEU's statement that it should ensure “the review, in principle the full review” of the relevant measures. Whilst the GC read this as unequivocally mandating a rigorous review, AG Bot thought it only implied that judicial intervention should “in principle” but not always (and indeed not in the present case) consist in a full review. On appeal, the CJEU (Kadi IV) did not comment on this point, simply repeating its original formula. But, through an insightful comparison between the different language versions, Edwards shows that the AG's Bot construction was simply not borne out by any of the non-English texts. The former CJEU judge also picks upon another linguistic difference between the English version that requires an “investigation” of the “evidence adduced” against the person – which suggests a review of the evidential basis – and the French equivalent of “éléments retenus a charges”, which would limit review to the allegations against that person. However, Edward's suggestion that the CJEU intended the latter meaning slightly over-simplifies the matter. In Kadi IV, the CJEU defined its role as being to ensure that the measure has been taken “on a sufficiently solid factual basis”. Whilst it was deemed sufficient for only one of the reasons put forward by the EU institutions to be substantiated – admittedly a much more limited form of review than that proposed by the GC in Kadi III – the CJEU made clear that it will ask for and scrutinise the underlying evidence that supports that reason. As the CJEU starts engaging with such substantive review, the emphasis is likely to turn to the handling and control of “secret evidence”, namely information that is deemed “too sensitive” to be disclosed to the individual. This is the topic of Nicholas Forewood's chapter in which he offers some comparative perspective with the system(s) in place in the US. At the time of writing, amendments to the rules of procedure enabling the CJEU to examine such information are under consideration, but – to use the Judge's words – they do not seem to provide “fair and balanced mechanisms” (p. 109) for the review of measures having such a significant impact on individuals.

Another figure is Mr. Pringle – an independent member of the Irish Parliament – who alone decided to “stand up” to some of the EU measures adopted to address the Eurocrisis. Relying on a combination of EU law and constitutional law arguments, Pringle challenged the Treaty establishing the European Stability Mechanism (“ESM”), which created a permanent fund designed to financially support members of the Eurozone. Under challenge was also European Council Decision 2011/199/EU which – using the simplified legislative procedure – amended the EU Treaties to provide an explicit legal basis for such a mechanism, even though the ESM itself was concluded as an international agreement formally outside the EU structure. The case went all the way up to the Irish Supreme Court, which also solicited the input of the CJEU on the EU law aspects.

A lot has been written on the CJEU's ruling, which concluded that the ESM Treaty was compatible with EU law. Whilst not the sole focus of his contribution, the judgment figures prominently in Paul Gallagher's attempt to refute claims that the EU's response to the crisis did not meet the requirements of the Rule of Law. His analysis is thorough, but rests on a rather thin conception of the Rule of Law as allowing “something less than legal certainty” and hence only a “reasonable legal basis … for the exercise of [a] power or for the making of [a] decision” (p. 129). As such, it may in fact feed arguments that political and economic opportunism prevailed over legal and democratic considerations. The judgment of the Irish Supreme Court, which is covered in detail in Roan Keane's and Hugh Geoghegan's contributions, is not immune to this kind of criticism either. On the point of constitutional law, the Court concluded that the ESM did not involve an impermissible transfer of power that would require a constitutional amendment and hence a referendum. To both authors' relief, this “put to sleep” (p. 213) the Crotty case, in which the Court had reached the opposite conclusion as regards the Single European Act and prevented its ratification. But, irrespective of what one makes of this earlier line of case law, the end result is that the judgment prevented a politically significant decision from being put to a popular vote.

The Zambrano children, too, make an appearance in the final chapter of the book where Cathryn Costello explores the circumstances under which the foreign parents of “child citizens” can be deported, comparing the different standards applicable under national law, EU law, and the European Convention on Human Rights (ECHR). Under EU law, EU citizens typically had to “move” to another Member State before enjoying EU citizenship rights, including the right to be joined or accompanied by family members. In Zambrano – described by Costello as a “revolution” (p. 421) – the CJEU dispensed with this “cross-border” element in situations where a national measure would amount to a “denial of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union”. The test was subsequently qualified, such that foreign parents are only protected against removal if that would result in the child having to “leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole”. Despite that, Costello sees these developments in an optimistic light, and uses the various judgments to build a broader conceptual framework for approaching claims for protection against deportation.

Far from being a random collection of cases, these “usual suspects” merely reflect some of the main questions that have dominated European legal studies over the last decade and which thus naturally underpin other contributions of the book. First among those is undoubtedly the conceptualisation and practical ramifications of the interaction between different and often overlapping legal orders. From a theoretical standpoint, the question often boils down to “who” has (or should have) the last word in cases of normative conflicts, resulting in the various levels making competing claims of ultimate authority. The long-lasting “confrontation” between the CJEU and the German Constitutional Court (GCC) on that point is well (if not exhaustively) documented. But, in an excellent piece, Wolfgang Heusel moves the debate one step further by focusing on the extent to which the GCC's stance is in fact truly incompatible with EU law in light of the fact that its underlying rationale – namely the preservation of its national constitutional identify – is itself protected under Article 4 of the Treaty on the EU. This echoes the broader point that, in practice, conflicts are often minimised by an increased convergence in legal standards and the objectives that they seek to achieve. This is amply demonstrated in Catherine Donnelly's insightful chapter on the Europeanisation of public law, where she shows the influence of European standards in strengthening the duty to give reasons under Irish law. Moreover, while the role of judicial “dialogue” in this process is well known, hers and Donal O'Donnell's contribution on the same topic reveal how individual judges are often key to such processes of cross-fertilisation. Indeed, it was Justice Fennelly in Mallack who opened the gate for a generalisation of the duty to state reasons in Irish law, applying a reasoning that bears striking similarities with the approach of the CJEU in Kadi.

But the more recent and pressing issue is the financial crisis, which – as Gallagher himself concedes – threatens “the survival of the Euro and some would argue the survival of the Union project, at least in its present form” (p. 127). Gallagher may argue that the EU's legal response complied with the requirements of the Rule of Law but this does little by way of legally “problematising” the underlying systemic crisis facing the EU. Nor does it help to address the growing schism between the EU and its “people” or indeed provide much “consolidation” to all those currently facing austerity measures. Writing on the (seemingly) entirely different topic of how switching judicial offices affects the notion of allegiance, Diarmund Rossa Phelan observes: “The EU has changed the concept of allegiance. In the EU, notions of allegiance, duty, and fidelity, are consensual, transient, reversible, and dependent on reciprocity of benefit” (p. 409). Her inquiry focuses on the judicial office but, as she explains, the realisation that allegiance in this context is temporary and contingent on “individual will” rather than “real community” has far broader implications. If that is at the core of European law and institutions, she asks, on what basis can the allegiance of the most populous “third class” in the EU be presumed? By “third class”, she refers to the “residual” category of people who do not belong to what she calls the “State benefit class” or “the capitalists whom the financial systems rewards” (p. 410). This classification would merit far greater discussion than space allows for here, but she touches on an important point on the conceptual disconnect between the EU and the majority of its “citizens”. Going back to the original context of her study, there are, however, some positive sides to the switching of judicial allegiance. One is the production of an edited collection, which, whilst regrettably lacking an overarching theme, nonetheless brings together a number of high-quality interventions on some of the most important and challenging questions of EU and Irish law.