Ogieriakhi v Minister for Justice: No right to damages where mistaken interpretation of EU law was not inexcusable

Here, dismissing Ogieriakhi’s appeal, the Supreme Court held:

113. In summary, the appellant has undoubtedly been injured by the mistaken interpretation of the relevant EU law on the part of the Minister. He lost his employment and was threatened with deportation. Both of these events are likely to have caused him distress. However, the right to damages as a remedy for breach of European Union law requires him to demonstrate, not just that an error of law caused his loss, but that the error of law concerned was inexcusable. In the circumstances of this case I consider that it was not, and that no right of his under the national legal order has been infringed such as to give rise to a right to damages. I would dismiss the appeal.

 

Background

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. In this determination (Ogieriakhi v Minister for Justice), 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.

 

Supreme Court

O’Malley Iseult J wrote the judgment for a unanimous five judge panel of the Court.

On the first question, O’Malley J states that “good faith and honest misapprehension cannot be sufficient to excuse the State from liability in an appropriate case”[101]. On whether the Minister’s breaches of EU law give rise to a remedy under domestic law, she states:

  1. As already stated, the sole reason for the loss of the appellant’s employment was the incorrect interpretation of EU law by the Minister. Domestic law undoubtedly gives an individual in this position a right to apply to the courts for enforcement of the correct interpretation of that law. The national courts also have jurisdiction to determine whether, as a matter of EU law, damages can be awarded under EU law criteria. What cannot be done is to find a free-standing right to damages under national law where the Francovich criteria are not satisfied, if the wrong done is a wrong under EU law. The latter is a separate legal order, with autonomous concepts that must be applied uniformly throughout the Union (see Dias and Ziolkowski, referred to above, on the question whether rights of residence conferred by national law could confer rights under EU law). In the circumstances of this case it was the sole source of the rights claimed by the appellant. It does not give rise to separate rights under domestic law.

And on the question of mitigation of loss she states:

106. … In my view the date of that refusal was the cut-off point for the assessment of loss – to rule otherwise was, in effect, to hold the State liable for the financial failure of the business, since it is inconceivable that a court could have awarded six years loss of earnings if in fact he had earned a larger income during that time.

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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.

 

Background

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.

 

Supreme Court will ask the CJEU to define “trial” within the Framework Decision on European Arrest Warrants

In this judgment, Minister for Justice & Equality v Lipinski, the Supreme Court held it necessary to make a reference to the Courts of Justice of the European Union on the scope of “trial” within Article 4a of the Framework Decision on European Arrest Warrants. Should trial be interpreted narrowly, limiting its application to a criminal prosecution? Or should trial be interpreted broadly, to also include later proceedings such as hearings to suspend sentences and hearings to revoke the suspension of sentences?

 

Background

In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.

 

Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court will 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 on the correct interpretation of trial in Article 4a of the Framework Decision.

Ryanair v Revenue: Reference to CJEU on Ryanair’s right to VAT refund arising from Aer Lingus bid

Here, the Supreme Court decided to refer a question to the Court of Justice of the European Union on whether Ryanair is entitled to reclaim VAT paid on professional services relating to its unsuccessful bid to purchase Aer Lingus.

 

Background

In 2006 Ryanair made a formal bid to purchase the shares in Aer Lingus. At the time, Ryanair purchased professional services to aid it in that process. Those services, as an economic activity, were subject to VAT. Ryanair’s bid was not successful.

Later, Revenue determined that Ryanair was not engaged in an economic activity in purchasing those professional services and refused Ryanair credit for those VAT payments against its VAT liability.

Ryanair unsuccessfully appealed Revenue’s decision to the Appeals Commissioner, in the Circuit Court (Judge Lenane) and in the High Court (Laffoy J). Ryanair appealed to the Supreme Court on a point of law.

 

Supreme Court

Writing for the Supreme Court, Clarke J held that the case involved an issue of EU law which is not clear.

To qualify for a VAT return, a claimant must be a taxable person carrying out an economic activity as defined under the Sixth VAT Directive (77/388/EEC). Clarke J outlined that there are two lines of jurisprudence regarding the definition of economic activity and the purchase of company shares, which he called the Cibo jurisprudence and the Rompelman jurisprudence.

In Cibo the CJEU distinguished between the purchase of shares as a passive investment and the purchase of shares for the purpose of engaging in economic activity such as providing managerial services to a subsidiary. The former is not an economic activity for the purposes of the VAT Directive; the latter is.

In Rompelman the CJEU held that, at the level of principle, initial investments which are geared towards the carrying out of economic activity at a later stage may qualify for an appropriate VAT deduction.

Clarke J noted two relevant facts of this case: Ryanair’s purchase of Aer Lingus did not proceed and Ryanair did not engage in any economic activity in the form of the provision of management services to Aer Lingus. However, Judge Lehane did find as a matter of fact that Ryanair did not intend to be a passive investor, it intended to provide management services to Aer Lingus to improve productivity. And the Supreme Court is bound by that finding.

The question that the Court will ask the CJEU to determine is: does the fact that Ryanair intended to be an active investor, although its purchase did not proceed, mean that its preliminary investment was an economic activity for the purposes of the VAT Directive and can avail it to reclaim the VAT paid on the professional services?

New Appeal: Can Irish Courts grant a divorce to parties divorced in another Member State?

In this determination, DT v FL, the Supreme Court granted DT leave to appeal from the Court of Appeal on the question: as a matter of EU law, can the Irish courts grant a divorce where the parties have been granted a divorce by a court of another Member State but which is not recognised under Irish law?

 

Background

DT and FL married in ireland in 1980. In 1987 they sold their family home in Ireland and moved to another Member State (MS). In 1992 FL returned to Ireland with her children. DT remained in the other MS. In 1994 a district court of the other MS granted the parties a divorce.

In 2000 FL issued Irish proceedings seeking a decree of judicial separation or a decree of divorce. Both the High Court and the Supreme Court rejected DT’s submission that the Irish courts must recognise the 1994 divorce, T v L [2003] IESC 59.

In 2004 another issue arose during the Irish proceedings wherein DT argued again that the High Court should decline jurisdiction on grounds that the Brussels Convention obliged recognition of the 1994 divorce. Once again both the High Court and the Supreme Court rejected that argument.

When the matter returned to the High Court DT argued that if the Irish courts granted a decree of divorce it would create a judgment and order that would be irreconcilable with an existing judgment by a court of another MS and that such would be impermissible under EU law. The High Court and the Court of Appeal (here) rejected that argument.

DT sought leave to appeal to the Supreme Court. Granting leave, the Court determined that DT raised an issue of general public importance and certified two questions:

(a) whether the Court of Appeal was correct to hold that the Irish courts could properly, as a matter of European Union law, grant a decree of divorce in all the circumstances of this case; and,

(b) in the event that Mr L succeeds on ground (a), and only in that event, whether the order for costs made by the Court of Appeal should stand.

New Appeal: EU law, environmental protection and costs for judicial review of planning decisions

In this determination, Sweetman v An Bórd Pleanála & Eirgrid, the Supreme Court granted Sweetman leave to appeal directly from the High Court against that court’s order that he pay the Bórd’s and Eirgrid’s costs for his failed judicial review action. The Court limited the appeal to consider two issues:

(a) That the trial judge was incorrect to hold that these proceedings were not governed by s 50B of the Planning and Development Act 2000 as amended (which would mean no order for costs); and

(b) That, even if the trial judge was correct to so hold, applicable measures of European Union law required the trial judge to exercise his discretion in respect of costs in a manner other than the way in which that discretion was actually exercised.

 

Background

In October 2016, Sweetman brought judicial review proceedings challenging the Bórd’s decision to grant Eirgrid permission for certain works of overhead power lines in County Mayo. The High Court (Hedigan J) dismissed those proceedings and awarded the Bórd and Eirgrid orders to recover their costs from Sweetman. Hedigan refused Sweetman certification to appeal the costs orders to the Court of Appeal.

Sweetman applied to the Supreme Court for leave to appeal to that court. Article34 of the Constitution provides for an appeal directly from the High Court to the Supreme Court where: (1) the case involves an issue of general public importance; and (2) there are exceptional circumstances which warrant such an appeal.

Granting Sweetman leave to appeal, the Court determined that, firstly, the case did raise an issue of general public importance: whether it is necessary to interpret s 50B in a manner compatible with EU law (including the Aarhus Convention) or whether certain relevant provisions of EU law have direct effect. And secondly, as an appeal to the Court of Appeal was not available, that provided the exceptional circumstances to warrant an appeal directly to the Supreme Court.

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.

 

Background

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.

Minister for Justice v McArdle; MJ&E v Brunell: Court refuses to make preliminary reference under acte clair doctrine

handcuffs-in-EU-logoHere, citing Cilfit (the acte clair doctrine), Denham CJ refused the Appellants’ request that the Court make a preliminary reference to the European Court of Justice on whether the Council Framework Decision on the European Arrest Warrant system permits a public prosecutor, who is personally involved in the investigation of an offence, to issue an arrest warrant as an “independent judicial authority”.

She stated that, due to the principles of mutual respect and co-operation in the operation of the European arrest warrant scheme “[t]here is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it”.

Background

The Kingdom of the Netherlands issued a European arrest warrant request for McArdle and Brunell for the purposes of prosecuting them for the murder and dismembering of an Irish citizen (Keith Ennis) in Amsterdam in 2009. The warrants were issued by a public prosecutor from the Public Prosecutor’s Office in Amsterdam. The High Court (Edwards J) ordered the surrenders. Both appealed to the Supreme Court.

Supreme Court

Denham CJ outlined one issue (among others) as being whether the Framework Decision requires independent judicial scrutiny of a decision to issue a warrant–McArdle argued that the Public Prosecutor was not independent and sought a preliminary reference to the ECJ:

Is Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States to be interpreted as permitting a public prosecutor, who is personally involved in the investigation of an offence, to issue a European Arrest Warrant in respect of that offence where it has not been established that the underlying enforceable judgment, arrest warrant or other enforceable judicial decision having the same effect was issued by an independent judicial authority.

Citing Cilfit, Case 283/81 [1982] E.C.R 3415, (the acte clair doctrine) Denham CJ refused to make the proposed preliminary reference, as the meaning of the Directive is clear. Article 6.1 states: “The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State“. Citing Fennelly J in Dundon v Govenor of Cloverhill Prison [2006] 1 IR 518, she stated that the definition of judicial authority in the 2003 Act is broad and should be interpreted as far as possible in light of the wording and purpose of Framework Decision to achieve the result it pursues. And the status of the public prosecutor in the Netherlands is designated by the national legal system of that State.

She stated that, due to the principles of mutual respect and co-operation in the operation of the European arrest warrant scheme (Article 1) “[t]here is a presumption that when a European arrest warrant is issued, and stated to be issued, by a public prosecutor or judge of a Member State acting as the judicial authority designated by the Member State, he or she is the judicial authority within the meaning of the Framework Decision and the Act implementing it” (Article 6) [51]. Also, due to the principle of mutual respect, there is a presumption that the national legal system of the issuing Member State provides adequate safeguards and remedies. As the appellants did not rebut that presumption, the Court dismissed the appeals.

Farrell v Whitty: Court makes preliminary reference to the ECJ on whether the MIBI is an emanation of the State

European Court of Justice.svgHere, the Court issued a preliminary reference to the European Court of Justice on whether the Motor Insurers Bureau of Ireland is an emanation of the State as per the test in Foster and Others v British Gas plc (Case C-188/89).

Background

In January 1996, Farrell was injured in a motor accident while she was a passenger in the rear of a van which was not fitted with seats.  Whitty was the driver, and there was no dispute regarding his liability for Farrell’s injuries. However, Whitty did not have insurance to cover passengers travelling in the rear of his van, and he did not have the means to compensate Farrell for her injuries.

The Second Council Directive 84/5/ EEC of 30 December 1983 required Member States to set up or authorise a body to provide compensation for damage to property or personal injuries caused by unidentified or uninsured vehicles. In Ireland that body is the MIBI. The Third Council Directive 90/232/EEC of 14 May 1990 extended the obligations of such bodies to compensate all passengers travelling in uninsured vehicles. In Elaine Farrell v Alan Whitty & Ors (Case C-356/05) [2007] ECR I-03036 the ECJ held that Ireland had failed to properly transpose the Third Directive into law. Farrell has been paid compensation. The issue still in dispute is whether the State or the MIBI is liable for that payment (and there are a number of other similar cases).

High Court

In the High Court (here) Birmingham J held that the MIBI was an emanation of the State and was therefore liable for the payment of compensation to Farrell. In support of that conclusion he cited the reasoning of the Advocate General and the submission of the Commission in Elaine Farrell v Alan Whitty & Ors that the MIBI is an emanation of the State [7.2] as set out in the ECJ decision in Foster v British Gas Plc (Case 188/89) [1990] ECR I-3313:

20. It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a Directive capable of having direct effect may be relied upon.

The MIBI appealed that decision to the Supreme Court.

Supreme Court

CharletonJ wrote the judgment for the Court. He determined that the Court would make a reference to the ECJ on the issue. Clarke J and Laffoy J

23. The Supreme Court therefore asks the assistance of the Court of Justice of the European Union by referring the following questions:

1. Is the test in Foster and Others v British Gas plc (Case C-188/89) as set out at para 20 onthe question of what is an emanation of the state to be read on the basis that the elements of the test are to be applied

(a) conjunctively, or

(b) disjunctively?

2. To the extent that separate matters referred to in Foster and Others v British Gas plc (Case C-188/89) may, alternatively, be considered to be factors which would properly be taken into account in reaching an overall assessment,is there a fundamental principle underlying the separate factors identified in that decision which a court should apply in reasoning an assessment as to whether a specified body is an emanation of the State?

3. Is it sufficient that a broad measure of responsibility has been transferred to a body by a member state for the ostensible purpose of meeting obligations under European law for that body to be an emanation of the member state or is it necessary, in addition, that such a body additionally have (a) special powers or (b) operate under direct control or supervision of the member state?

Minister for Justice v Strzelecki: Court rejects narrow interpretation of “surrender” in the European Arrest Warrant Act

prisonWhere a person has been surrendered under a European arrest warrant and the issuing state seeks consent to prosecute the suspect on additional charges to those for which the surrender was granted, the issuing state is in effect seeking to have the terms of surrender amended to include permission to prosecute on additional charges. Therefore s 37 of Part 3 of the European Arrest Warrant Act 2003, which provides the grounds under which the courts must prohibit surrender, is applicable (judgment).

Background

In July 2102 the High Court made an order under the 2003 Act surrendering Strzelecki to the Republic of Poland. In December 2012 Poland requested permission, under s 27 of the 2003 Act, to prosecute him for two additional charges. In the High Court, Strzelecki objected to the application based on human and fundamental rights issues: s 37 of Part 3 of the 2003 Act provides grounds under which the courts must prohibit surrender (where surrender would be incompatible with the State’s obligations under the ECHR, Charter of Fundamental Rights of the European Union, the Constitution, etc,). The High Court held that, as he had already been surrendered to Poland, and as Poland is a signature to the ECHR and a member of the EU, Strzelecki could not raise the issues which Part 3 of the 2003 Act list as grounds to prohibit surrender. Strzelecki appealed that finding to the Supreme Court.

Sections 22(7) and (8) of the 2003 Act:

(7) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to –
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.
(8) The High Court shall not give its consent under subsection (7) if the offence concerned is an offence for which a person could not by virtue of Part 3 be surrendered under this Act.

Supreme Court

Denham CJ, with whom the other four justices concurred, held that the High Court had erred in excluding Strzelecki from raising fundamental rights issues. An application to prosecute on additional charges is a request that the consent to surrender include prosecution for those additional offences. Therefore s 37 of the 2003 Act is applicable [35]. That means that he can raise issues of human and fundamental rights. However, the European arrest warrant procedure is based on mutual respect between Member States, and, as the relevant case law establishes, the High Court may determine that the courts of the requesting state may be better placed to adjudicate on those issues.

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