MJELR v Equality Tribunal: Supreme Court to make reference to CJEU on Tribunal’s jurisdiction under EU law

Here, Minister for Justice, Equality and Law Reform v The Workplace Relations Commission and Others, the Supreme Court determined to make a reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union. The question relates to whether EU law requires that the Equality Tribunal must have jurisdiction to hear a complaint where the remedy sought is the disapplication of secondary legislation but where the Tribunal does not have jurisdiction to commence such proceedings under national law.



In 2005 one of the notice parties was refused entry to train as a member of the Gardai on grounds of age, the upper age limit being 35. He lodged a complaint with the Equality Tribunal under the Employment Equality Acts 1998 to 2004, which implemented Council Directive 2000/78/EC. The Minister sought to have the Tribunal’s jurisdiction to disapply a statutory instrument determined as a preliminary issue. The Tribunal refused and set a date for hearing. The Minister issued judicial review proceedings on that decision in the High Court.


High Court

Charleton J (here) upheld the Minister’s complaint. He found that the Tribunal, a body created by statute, did not have jurisdiction to disapply the legislation and therefore lacked jurisdiction to hear the complaint. The correct procedure would have been for the complaint to be transferred to the High Court. The Tribunal member appealed that decision to the Supreme Court.


Supreme Court

Clarke J wrote the judgment for the five judge panel. He drew attention to the source of the power of tribunals, Art. 37.1 of the Constitution:

Nothing in this constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this constitution.


He stated that “ 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. 37.1” [5.8]. He determined that jurisdiction on employment matters must therefore be divided between the Tribunal and the High Court, but that this was consistent with the EU law principles of equivalence and effectiveness.

However Clarke J determined that there is a question of whether EU law requires that the Tribunal must have jurisdiction to embark on hearings of the nature of the underlying case here. The Court will refer a question to the CJEU. The wording of the question is not recorded in the judgment.


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