WRC Can Dis-apply Irish Law to Ensure Effectiveness of EU Law
Earlier this year, the Court of Justice of the EU (the “CJEU”) ruled that decision-making bodies such as the Workplace Relations Commission can disregard domestic Irish law in making their decision, if they find the domestic legislation to be incompatible with EU law.
The CJEU held that all State organs, regardless of their jurisdiction or status in national law, must be able to adopt all measures necessary to ensure the full effectiveness of EU law.
The decision raises issues of immense importance in Ireland given the Constitutional limitation of jurisdiction on courts and decision-making bodies contained in Article 34(3) of the Constitution which expressly provides that:
“1° The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.
2° Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court, the Court of Appeal or the Supreme Court.”
In the past, the High Court has overturned decisions of the Labour Court for straying beyond the boundaries of domestic legislation where there was no ambiguity on the face of the relevant statute. This arose where the Labour Court adopted a purposive interpretation of domestic legislation to give effect to EU law, resulting in decisions that did not sit easily with national law. For example, in HSE v Umar, Hedigan J observed: “It is clear that a court must be faced with some obscurity or ambiguity that requires resolution before it can give a purposive interpretation. If there is no such obscurity or ambiguity then it must apply the law as the Oireachtas provided. To do otherwise is to amend the statute by imposing something which is not there.” This jurisdictional restraint has been directly acknowledged by the Labour Court. In Seclusion Properties Limited v Kieran O’Donovan, the Labour Court stated, ” it is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with Directive applies “as far as possible”. This is to say, it cannot serve as a basis for an interpretation of national law contra legem“.
The question must be asked if the above position is sustainable and, if not, what are the Constitutional implications of the CJEU decision?
The issue arose in Minister for Justice and Equality and Commissioner of An Garda Síochána v Workplace Relations Commission referred by the Supreme Court to the CJEU. The case concerned alleged age discrimination in the recruitment of members to An Garda Síochána. Mr Boyle and two others brought complaints to the Equality Tribunal (now the Workplace Relations Commission) after their applications to join An Garda Síochána were refused because they were over the age limit for entry into the force (35 years old). It was submitted by the complainants that the age restriction set down by Garda Regulations was in breach of the EU Equality Directive 2000/78/EC. The Minister for Justice and Equality intervened, arguing that the Equality Tribunal could not hear the claim as it lacked the necessary jurisdiction. The Minister’s application for judicial review succeeded, with the High Court making an order prohibiting the Equality Tribunal from proceeding with the hearing. The High Court held that the Equality Tribunal lacked jurisdiction to adopt a legally binding decision, concluding that national law was incompatible with EU law, as that power was expressly reserved to the High Court under Article 34 of the Constitution.
The Equality Tribunal appealed the order of the High Court to the Supreme Court. The Supreme Court reiterated that the WRC did not have the power to set aside national legislation where it formed the view that it was in breach of EU law. The Supreme Court held that the power to set aside national law, and apply EU law instead, rested exclusively with the High Court by virtue of Article 34 of the Constitution. The WRC disagreed and, in that context, the Supreme Court decided to stay the proceedings and refer to the CJEU for a preliminary ruling on the question of whether the WRC could have jurisdiction on claims that raise questions of dis-applying national law.
In giving its ruling, the CJEU disagreed with the Irish Courts and with the Opinion of Advocate General Wahl, holding that:
“…EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a national body established by law in order to ensure enforcement of EU law in a particular area lacks jurisdiction to decide to dis-apply a rule of national law that is contrary to EU law.”
The CJEU went so far as to say:
“Rules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law …
It follows from the principle of primacy of EU law…, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, dis-applying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.
Consequently, the fact, highlighted by the referring court, that in the present instance national law permits individuals to bring an action before the High Court founded on the alleged incompatibility of a national provision with Directive 2000/78 and allows the High Court, if it upholds the action, to dis-apply the national provision at issue is not capable of calling the above conclusion into question.”
The CJEU noted that the Irish legislature had specifically tasked and empowered the WRC to ensure compliance with the Equality Directive, which implied that it should be able to dis-apply national laws that undermine the Equality Directive.
Implications of cjeu decision
This decision marks a significant change in the Irish legal landscape and considerably increases the decision-making powers of the WRC and Labour Court. How the Irish legal landscape adapts remains to be seen but the CJEU has set a few unequivocal markers in its judgment, including:
- National laws, even constitutional provisions cannot undermine the unity and effectiveness of EU law.
- Bodies such as the WRC and Labour Court, called upon to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, even if this means dis-applying domestic legislation (a matter that is reserved to the High Court in the Constitution).
- The fact that an appeal to the High Court existed under the domestic legislation was inadequate.
The case was remitted to the Supreme Court and we await with interest how the courts and/or the legislature will address this issue.