New Appeal: Court to review State’s liability for breach of EU Directive

brasserie_du_pecheurIn this determination (Ogieriakhi v Minister for Justice), the Supreme Court granted Ogieriakhi leave to appeal the Court of Appeal’s judgment that the State was not liable towards him in damages (Francovic and Brasserie du Pecheur) for failure to correctly apply Directive 2004/38/EC (right of EU citizens and their families to move freely) in assessing his application for permanent residence.



Ogieriakhi, a Nigerian national, entered the State in 1998 seeking asylum. In 1999, he married a French national who was working in the State. The State granted Ogieriakhi a permit to reside in the State until 2004. In 2001 he began working for An Post. That same year, his marriage broke up. In 2003. Ogieriakhi had a daughter, born to a new partner, Ms Madden.

In 2004, the Minster refused to renew Qgieriakhi’s permission to remain in the State. Unknown to An Post, he continued to work without a permit. In 2005, the High Court quashed the Minister’s decision.

In April 2006, the State transposed Directive 2004/38/EC (right of EU citizens and their families to move freely) into Irish law. The Directive provided EU citizens and their family members with the right to permanent residence in another Member State where they have resided legally for five years.

In 2007, Ogieriakhi applied for permanent residency under the Directive, on the basis that he resided here legally from 1999 to 2004. However, the Irish legislation interpreted the Directive as providing the right to remain where the EU citizen member was legally residing in the State for five years after the Directive came into effect in 2006. The Minister refused his application.

In October 2007, An Post dismissed Ogieriakhi from his job, as he had no valid permit to work. In 2008, the Minister granted him permission to remain in the State for three years, as he was the father of an Irish citizen and in a stable relationship, In 2008, An Post offered Ogieriakhi his job back. He declined, as he had started his own business.

In October 2010, the ECJ released its decision in Secretary of State for Work and Pensions v. Lassal C – 162/09. The ECJ held that, for the purposes of the Directive, Member States must grant residency where an EU citizen or a family member resided in that state legally for a period of five years prior to 2006. In 2011, the Minister granted Ogieriakhi permanent residency.

In 2012, Ogieriakhi issued proceedings against the State for damages for loss of income caused by the loss of his job, which was caused by the State’s failure to correctly apply the Directive. In the High Court, Hogan J made a reference to the ECJ, which delivered its judgment in 2014. Hogan J awarded Ogieriakhi €108,000 in damages.

In February 2016, the Court of Appeal (here) overturned that High Court decision. The COA held that Hogan J had misapplied ECJ jurisprudence, specifically the rule from Brasserie du Pêcheur on when Member States are liable in damages for breach of EU law:

the decisive test for liability is manifest and grave disregard by the Member State of the limits on its discretion. Secondly, if the State persists in its refusal to implement the Directive, notwithstanding a specific ruling of the Court of Justice that the State’s conduct is an infringement, that is sufficient. Similarly, if the court’s established case law is clear on the infringement but the State fails to comply, the court may take into consideration:

(a)    The clarity and precision of the rule breached;

(b)    the measure of discretion left by that rule to the national authorities;

(c)    whether the infringement and the damage caused was intentional or involuntary;

(d)    whether any error of law was excusable or inexcusable;

(e)    the fact that the position taken by a Community institution may have contributed towards the omission, and

(f)    the adoption or retention of national measures or practices contrary to Community law.

17.    To address these issues in turn, beginning with the criteria of clarity and precision, the respondents submit that there was substantial uncertainty until the Court of Justice disposed of the matter in its decision in Lassal. The detailed reasoning in that judgment, with its analysis of previous decisions and of the overall purpose of the Directive, demonstrates the complexity of the matter. It is also relevant that Ireland was not alone in its interpretation of the Directive among Member States that were genuinely endeavouring to bring the new regime into domestic law. It is difficult to understand how there could be a finding that the State manifestly and gravely disregarded the limits on its discretion when all the relevant personnel were working honestly to implement the Directive, which is precisely what the court found. The most that can be said, and the worst that can be said, is that the State made a mistake.

Ogieriakhi applied to the Supreme Court for leave to appeal the COA decision. The Court granted leave on five questions:

a. Whether an honest and excusable misunderstanding on the part of the State officials as to the requirements of a Directive is a significant factor in considering whether or not the breach of the Directive was serious.

b. Whether a person who has suffered damage as a result of the incorrect transposition of a Directive in this State is entitled to claim damages under domestic law, or is confined to the criteria established by the Court of Justice of the European Union in Francovic and Brasserie du Pecheur.

c. Whether the finding that the failure of the State to implement the Directive correctly did not give rise to damages under the principles set out in Francovic and Brasserie du Pecheur necessarily entailed a finding that the applicant had no right to damages under domestic law, including under the Constitution.

d. Whether the applicant, as a person who was dismissed because of the application to him of regulations which failed to properly implement the Directive, had any remedy under domestic law.

e. Whether the obligation to mitigate loss can require a person in the applicant’s position to accept an unwritten offer of employment.

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