Tribunals must apply EU Law (C 378/17)

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1 Trinity College Dublin, Ireland From the SelectedWorks of Mel Cousins 2018 Tribunals must apply EU Law (C 378/17) Mel Cousins Available at:

2 Tribunals must apply EU Law (C-378/17) In response to a reference from the Irish Supreme Court, the Court of Justice of the European Union (CJEU) has ruled that tribunals adjudicating on disputes concerning the implementation of EU law (in this case the Workplace Relations Commission (WRC) which is responsible for initial adjudication on disputes under, inter alia, the Employment Equality Acts) 1 must apply EU law, if necessary disapplying provision of national law which are inconsistent with EU law. 2 The context The case at issue dates back to before 2009 and concerned a claim that a maximum recruitment age for members of An Garda Síochána (the police force) amounted to unlawful discrimination on the grounds of age. The relevant maximum age was provided for in secondary legislation. 3 A complaint was brought to the Equality Tribunal (which prior to 2015 was responsible for such adjudications) but the Minister for Justice sought an order preventing the Tribunal from investigating the complaint on the basis that, even if it found discrimination, the Tribunal did not have jurisdiction to set aside or disapply substantive law. Charleton J. (also now a member of the Supreme Court) held that the Equality Tribunal did not have a jurisdiction to disapply a statutory instrument made by the Minister. 4 This ruling has been heavily criticised by Fahey as involving an unfortunate example of litigants being denied remedies that they were entitled to under EC law and being subjected to procedural disadvantage through erroneous interpretation. 5 A mere eight years later, when an appeal came before the Supreme Court, that court decided to refer a question to the Court of Justice of the European Union (CJEU) as to whether EU law requires that the Equality Tribunal has a competence or jurisdiction to disapply secondary legislation. 6 1 This was formerly the responsibility of the Equality Tribunal whose functions were transferred t o the WRC on 1 October C-378/17, Minister for Justice and Equality and Commissioner of An Garda Síochána v Workplace Relations Commission, EU:C:2018: Garda Síochána (Admissions and Appointments) (Amendment) Regulations, Minister for Justice, Equality and Law Reform v. Director of the Equality Tribunal [2009] IEHC Elaine Fahey, 'A Constitutional Crisis in a Teacup: The Supremacy of EC Law in Ireland' (2009) 15 European Public Law, Issue 4, pp Minister for Justice, Equality and Law Reform -v- Workplace Relations Commission, [2017] IESC 43. See also the order of reference (which sets out the full wording of the question) which is attached to the judgement on the courts website:

3 The Supreme Court s reference The functions of tribunals in Irish law The Supreme Court clearly took the view that it would not be appropriate for tribunals to be able to dissaply national law. Clarke J (now Chief Justice) pointed out that as a matter of national law, it cannot be said that there is anything even remotely resembling an express jurisdiction conferred on the Tribunal to set aside or disapply general measures of secondary legislation. 7 The Court recognised that there was a difference between the setting aside of a legal measure and its disapplication. 8 However, it suggested that there was no real difference in practice between the application of the two concepts in the circumstances of this case as, if the provision was in breach of EU law it would have to be disapplied in every case. 9 The Court pointed to the limitation on the role of non-court bodies 10 under the Irish Constitution. Art of the Constitution permits the exercise of limited functions and powers of a judicial nature in non-criminal matters, by authorised persons or bodies. 11 In Clarke J s view a significant power to disapply duly enacted legislation could not be described as a limited power in the sense in which that term is used in Art Unusually, before posing the question of legal interpretation for the CJEU, Clarke J already suggested to the CJEU how it might respond to the reference. Clarke J points out that the High Court does have the power to disapply secondary legislation. 13 He goes on to suggest there are two potential solutions to the problem of disapplication, at least so far as national law is concerned. The first would be to confer on the Tribunal a power to disapply national legislation. The second would be to disapply any measures of national law which might otherwise restrict the power of the High Court fully to vindicate any European Union law rights which may be established At [5.11]. See also, [5.15]. 8 At [5.2]. The Court explained that The term disapply is normally used to refer to the circumstances where a measure, although continuing to have general validity, is required not to be applied in the particular circumstances of an individual case because its disapplication is necessary to ensure the vindication of rights guaranteed by European Union law. 9 At [5.3]. See also [5.6]. 10 The courts are delineated in art 34.2 of the Constitution. 11 My emphasis. 12 At [5.8]. 13 At [2.2], [5.4], [5.15], [6.6]. 14 [5.13].

4 He goes on to make the suggestion that While it would, ordinarily, be the case that the High Court could not embark on a hearing dealing with an ordinary employment equality case (for the jurisdiction in that regard is, ordinarily, conferred on the Tribunal), in circumstances where the complaint, if it is to be upheld and if the rights of the persons making the complaint are to be vindicated, would require the disapplication of a measure of national legislation, then it would be necessary to disapply any rules of national law which stood in the way of the High Court exercising the full powers which would ordinarily be enjoyed by the Tribunal in order that the Union law rights of the complainant concerned be fully vindicated. 15 The latter solution, he concludes, would be In contrast in full conformity with the Irish constitutional legal order for it derives from the constitutional power of the High Court to deal with all matters of law and fact. 16 The alternative solution of extending a power, which would not otherwise arise, to the Tribunal to disapply national legislation is wholly contrary to the national legal order and, certainly as a matter of national law, would not represent an appropriate solution to the problem. 17 Principles of equivalence and effectiveness The CJEU has insisted on the general EU law principle of effective judicial protection. 18 It is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law. However, Member States must ensure that rights are effectively protected and that procedures comply with the principles of equivalence and effectiveness. Clarke J acknowledged that any measure of national procedural law must comply with these principles of equivalence and effectiveness. Equivalence means that the procedure to be followed in enforcing a claimed entitlement under Union law must be equivalent to the procedure which would be followed in the same national court by a party seeking to pursue an analogous claim based purely on national law. 19 Effectivness requires that the procedures required to be followed in proceedings seeking to place reliance on entitlements guaranteed by Union law must be such as provide an effective remedy being one which is 15 Ibid. 16 [5.14]. 17 Ibid. 18 See, for example, Impact v Minister for Agriculture and Food, EU:C:2008:223 at [43]. 19 At [6.3] citations omitted. In Impact, the CJEU defined this as requiring that the detailed procedural rules governing actions for safeguarding an individual s rights under Community law must be no less favourable than those governing similar domestic actions at [46].

5 not practically impossible or excessively difficult. 20 He rapidly concluded that the principle of equivalence would be satisfied since any other case of this type, where it is suggested that a measure of secondary legislation was not to be followed, would require, as a matter of national law, to be brought in the High Court. 21 As to the issue of effectiveness the Court also concluded that it had not been shown that having to bring proceedings before the High Court would render the vindication of Union employment equality rights in the High Court excessively difficult. 22 This was not the view of the WRC and it seems rather unlikely that these views would be shared by many equality law practitioners. 23 Indeed, it seems rather inconsistent with the views expressed by a majority of the Supreme Court in Cahill v Minister for Education and Science, a case concerning the Equal Status Act which provides provides similar protection for equality rights in relation to non-employment issues. 24 O Donnell J. (with whom Laffoy and Dunne JJ. agreed) stated that The Equal Status Act of 2000, is an ambitious piece of social legislation targeted at a range of discriminations which may occur in fields other than employment. I do not doubt the real injury and damage that can be caused by such discrimination, or indeed the desirability of having an authoritative determination that such discrimination has occurred, but it is surely unsatisfactory if that requires the considerable time and expense (and risk of costs) that occurred in this case. What is required, is cheap, expeditious and sensitive enforcement at an administrative level, together with the possibility of binding review at an appellate level when important issues of law arise. 25 Clarke J. finally turned to the question as to whether EU law nonetheless required that the Tribunal have a jurisdiction to disapply secondary legislation. He concluded that the answer to the question can not be said to be acte clair and he therefore proposed to refer the question to the CJEU, a proposition with which the other members of the Court agreed. 26 However, the answer which the Court would have liked was obvious and the order of reference goes so far as to suggest that it might well be that it would be an excessive interference in the national legal order to determine at Union level that a body, which would not normally, as a matter of national law and the national legal order, have competence to deal with a particular issue, must be given that competence At [6.4]. 21 At [7.1]. 22 [7.15]. 23 See the CJEU at [23]. 24 [2017] IESC Cahill at [2] of his judgement (emphasis added). Of course, Laffoy and Dunne JJ. were also members of the Court in the WRC case. 26 [9.6]-[9.7]. 27 At [6.10]. Given the Clarkean numbering system, the order was presumably also the work of Clarke J.

6 The Court of Justice It was rather clear that the Supreme Court (or at least those members sitting on this case) thought that the desirable option would be to disrupt the normal mechanism of the Employment Equality Acts (and presumably the Equal Status Acts) and to allow the High Court only to hear cases which may involve the disapplication of secondary legislation. 28 Presumably, the same approach would, a fortiori, apply to primary legislation. Advocate General Wahl accepted much of the argument of the Supreme Court but included one important caveat. 29 He opined that the division of jurisdiction in specific cases between a statutory body and an ordinary court on the basis of the nature of the complaint made, is not precluded by EU law, provided that no concurrent jurisdiction may arise within the same complaint. Arguably, this approach would indeed have given rise to concurrent jurisdiction. However, the CJEU took a very different approach. The Grand Chamber of the CJEU took a very straightforward view of the case, not suggesting that there was any ambiguity as to the possible answer. In the tone of someone explaining a rather simple proposition to a rather slow student, the CJEU emphasised that national courts and tribunals must apply EU law including the disapplication of national law where necessary. The CJEU started by distinguishing between the power to disapply, in a specific case, a provision of national law that is contrary to EU law and the power to strike down such a provision, which has the broader effect that that provision is no longer valid for any purpose. This mean that, on the one hand, Member States are responsible for designating the courts and/or institutions empowered to review the validity of a national provision, and of prescribing the legal remedies and the procedures for contesting its validity and, where the action is well founded, for striking it down and determining the effects of such striking down. 30 On the other hand, the CJEU held that the primacy of EU law means that the national courts called upon, in the exercise of their jurisdiction, to apply provisions of EU law must be under a duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national law, and without requesting or awaiting the prior 28 The points made in the judgement are, if anything even more strongly emphasised in the order of reference. For example (at [6.4]: The Supreme Court noted, therefore, that the issue in this case was not one where a body which undoubtedly had jurisdiction was limited in its power to provide an effective remedy but rather was one where national law, as definitively interpreted by the Supreme Court, in effect divides the jurisdiction in equality cases between the Commission and the courts by confining to the courts a jurisdiction in cases which involve the disapplication of measures of national legislation. 29 EU:C:2018: CJEU at [34].

7 setting aside of that provision of national law by legislative or other constitutional means. 31 Therefore the CJEU repeated previous rulings to the effect that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of EU law by withholding from the relevant national court the power to do everything necessary to disregard national legislative provisions which might prevent directly applicable EU rules from having full force would be incompatible with the very essence of EU law. 32 The CJEU held that this would include a situation, as in the Irish case, where in the event of a conflict between a provision of EU law and national law, the resolution of the conflict was reserved to a body other than the court called upon to apply EU law. 33 The CJEU pointed out that duty to disapply national legislation concerned not only national courts, but all organs of the State, including administrative authorities, required to apply EU law. Therefore, the principle of primacy of EU law requires not only the courts but all relevant national bodies (including tribunals) to give full effect to EU rules. 34 The CJEU recalled that Article 9 of Directive 2000/78 (establishing a general framework for equal treatment in employment and occupation) requires Member States to ensure that judicial and/or administrative procedures for the enforcement of obligations under that directive are available to all. The Irish legislature chose to confer the power of ensuring compliance with Directive 2000/78 on the Workplace Relations Commission. The Court concluded that Against that background, if the Workplace Relations Commission, as a body upon which the national legislature has conferred the power to ensure enforcement of the principle of non-discrimination in respect of employment and occupation, has before it a dispute involving observance of that principle, the principle of primacy of EU law requires it to provide, within the framework of that power, the legal protection which individuals derive from EU law and to ensure that EU law is fully effective, disapplying, if need be, any provision of national legislation that may be contrary thereto. 35 The Court buttressed this conclusion with a number of further comments. First, it argued that it would be contradictory if an individual were able to rely on EU law before a tribunal upon which national law has conferred jurisdiction but that body was under no obligation to apply those provisions if there was a conflict with national law. 36 Second, the Court recognized that the WRC was a court or tribunal within the meaning of Article 267 TFEU which could make a preliminary reference to the CJEU. 37 Therefore, it would be obliged to apply the Court s 31 At [35] citing 106/77, Simmenthal, EU:C:1978:49, at [17], [21] and [24], and C-52/16 and C-113/16, SEGRO and Horváth, EU:C:2018:157, at [46]. 32 At [36]. Again citing Simmenthal and C-213/89, Factortame, EU:C:1990:257, at [20]; and C-409/06, Winner Wetten, EU:C:2010:503, at [56]. 33 At [37]. 34 At [38-39]. 35 At [45]. 36 At [46]. 37 At [47]. Citing C-363/12, Z., EU:C:2014:159.

8 response to the questions raised, disapplying, if necessary, of its own motion conflicting provisions of national legislation The CJEU explicitly rejected (albeit without specifically referencing it) the Supreme Court s conclusions that its split jurisdiction approach complied with the EU law requirement of effectiveness. It held that If a body such as the Workplace Relations Commission, entrusted by law with the task of ensuring that the obligations stemming from the implementation of Directive 2000/78 are implemented and complied with, were unable to find that a national provision is contrary to that directive and, consequently, were unable to decide to disapply that provision, the EU rules in the area of equality in employment and occupation would be rendered less effective. 38 In a critical sentence, the CJEU concluded that [r]ules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law. 39 Discussion The CJEU s ruling makes clear that tribunals such as the WRC must apply EU law in all cases including where there is a conflict between national law and EU law. 40 The CJEU distinguished between (i) the disapplication of national law where there is a such a conflict and (ii) the setting aside of a national law as where such a law is found to be unconstitutional (something which is under article of the Constitution confined to the High Court, the Court of Appeal or the Supreme Court). In reality, however, the Supreme Court had recognized this distinction and its point was a broader one, viz, that the Irish Constitution allowed only limited powers to non-court bodies and that disapplication could not be considered to be a limited power. The CJEU s response to this, which is somewhat buried in the judgment, is that even constitutional provisions have to give way to EU law. The CJEU s conclusion as to the supremacy of EU law is unsurprising (pace AG Wahl). 41 The Court recited a litany of references to previous rulings to the same effect. In reality, the Supreme Court s proposed solution was impracticable (if not unworkable) and clearly would have raised issues of concurrent jurisdiction. It is easy to envisage cases in which there may be factual or other legal issues (such as the interpretation of EU law) to be decided before one had to arrive at a possible disapplication of national law. Under the Supreme Court s option, would these cases have to be dealt with from the beginning in a slow and expensive High Court (and one often lacking any real understanding of equality law) or would they have 38 At [48]. 39 At [49]. My emphasis. 40 One might assume that the same would apply to tribunals which must interpret EU law (such as the Social Welfare Appeals Office) even if they are not (unlike the WRC) explicitly tasked with hearing disputes concerning the implementation of EU law. The SWAO hears disputes which include issues concerning the implementation of Regulation 883/2004 concerning co-ordination of social security and Directive 79/7 concerning equal treatment in social security. In practice, Appeals Officers (and even departmental deciding officers) have long disapplied national law where it is inconsistent with Regulation 883 (and its predecessor Regulation 1408/71). 41 Indeed, this outcome was predicted by Fahey op. cit. at the time of the High Court ruling.

9 to be transferred to that Court at some stage in the process? No doubt that CJEU was also mindful that any resiling from the principle of EU supremacy was likely to give rise to further references from other national courts pointing to their own particular exceptional rules. 42 The Supreme Court has shown little understanding of and less interest in equality law. 43 Its lack of concern for the practicalities of the dispute resolution process is, therefore, unsurprising. However, the Irish judiciary is generally seen as pro-communitaire and the question arises as to why a unanimous Supreme Court should have thought it advisable to question a rather basic principle of EU law. It is indeed true that the current Supreme Court has sought to emphasize the importance of the Irish Constitution. It has, for example, pointed out that the European Convention of Human Rights is incorporated into Irish law by way of statute and has stressed that in cases involving claims under both the Convention (or more correctly the European Convention on Human Rights Act, 2003) and the Constitution, the Constitution has primacy and must be considered first. This has led to a down playing of the ECHR in the Irish courts and very few successful claims have been brought concerning the Convention if one compares, for example, to the UK which engaged in a similar form of incorporation (but which does not have a written constitution). 44 However, the Irish courts have not previously been noted for reluctance to implement EU law or to attempt to restrict the interpretation of EU law in the light of the Constitution (or the principles of subsidiarity/national procedural autonomy referred to in the order of reference). Perhaps this was just a once-off aberration? A psychological explanation for this behaviour might be that the consequences of EU law supremacy might have been seen as somehow undermining the role of the Irish judiciary. This explanation might be seen as consistent with the current Supreme Court s jurisdictionally-bounded activism It is, however, noticeable that no other Member State intervened before the Court to support the Irish position. 43 In rulings such as Equality Authority -v- Portmarnock Golf Club [2009] IESC 73; Stokes -v- Christian Brothers High School Clonmel [2015] IESC 13; Cahill v. Minister for Education and Science [2017] IESC See Greene, Alan (2016) 'Through the looking glass? Irish and UK approaches to Strasbourg jurisprudence.' Irish Jurist, 55 (1). pp That is the Court takes an active approach within what it sees as the limits of its own (and the courts ) jurisdiction.