New Appeal: What are an employer’s obligations under s 16 of the Employment Equality Act 1998?

In Nano Nagle School v Daly, the Supreme Court granted Daly leave to appeal on the correct interpretation of s 16 of the Employment Equality Act 1998, which implemented the provisions of Council Directive 2000/78/EC.

 

Background

Daly was a special needs assistant (SNA) in the School, which provides for the needs of children with profound disabilities. In 2010 she suffered injuries which led to her confinement to a wheelchair. In 2011 she sought to return to work. An occupational therapist determined that there are 16 main duties required of an SNA, that Daly would be unable to perform seven of those, but that she would be able to perform nine of those duties with some adaptations to the facilities.

 

The relevant sections of the 1998 Act are outlined in the determination:

Under s.16(3)(b) an employer is under an obligation to take appropriate measures where needed in particular case to enable a person who has a disability to participate in employment unless the measures would impose a disproportionate burden on the employer. However s.16(1) provides that nothing in the Act is to be construed as “requiring any person to……. retain an individual in the position….. if the individual is not (or as the case may be is no longer) fully competent and available to undertake and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be performed”. The next step is that under s.16(3)(a) a person with a disability is fully competent and capable of undertaking any duties is appropriate measures may be provided by the person’s employer. Finally , for these purposes s 16(4) (a) provides that “appropriate measures” in relation to a person with a disability means effective and practical measures to adapt a place of business to the disability concerned which under s16(4) (b) may include “distribution of tasks”.

 

The School concluded that Daly was unfit to return to work. Daly made a complaint to the Equality Tribunal. The Equality Officer decided that there was no discrimination. The Labour Court overturned that decision on grounds that the school failed to give adequate consideration to all the possible options, such as redistributing the tasks Daly was unable to perform among other SNAs. The High Court held that there was no error in law in that decision. However the Court of Appeal allowed the School’s appeal on grounds that, as the School was not required to redistribute tasks it could not have been obliged to consider that option. Daly applied to the Supreme Court for leave to appeal.

 

Supreme Court

The Court determined that given that there were such divergence in the interpretation of an important provision which derived from a directive of EU law, the case met the constitutional threshold for leave to appeal on whether the Court of Appeal erred in its interpretation of s 16 of the 1998 Act.

Advertisements

New Appeal: Does the Circuit Court have jurisdiction to determine what constitutes unlawful state aid?

In this determination, Dún Laoghaire Rathdown County Council v West Wood Club Limited, the Supreme Court granted West Wood leave to appeal on, among other questions:

Does the Circuit Court have jurisdiction to decide whether it constitutes unlawful state aid, where the Council collects commercial rates for West Wood’s leisure facilities, where those rates contribute to the costs of running the Council’s leisure facilities, and where the Council’s facilities  compete with those provided by West Wood?

 

Background

West Wood operates commercial leisure facilities within the area over which the Council sets and collects commercial rates. The Council also provides leisure facilities.

The Council issued Circuit Court proceedings against West Wood for the non-payment of rates for the years 2011, 12 & 13 (over €420,000). West Wood entered a defence claiming that the Council’s collection of rates from it, which contributes to the running costs of the Council’s leisure facilities, amounts to unlawful state aid. West Wood also submitted a counter claim for damages. The Circuit Court held that it did not have jurisdiction to make a determination on the issue of state aid.

On appeal, the High Court held:

a. The Circuit Court has jurisdiction to determine whether the rates amount to State aid.

b. The Circuit Court does not, however, have jurisdiction to determine the compatibility of the aid (if it is found to be such) with the internal market.

c. As a matter of fact, it seems to be common case that if it is State aid, it has not been notified to the Commission and to that extent a finding of a breach of Article 108(3) of the Treaty would follow.

d. However, the court must bear in mind that where the issue relates to the payment of a tax, the obligation to notify the Commission can only be relied upon by the taxpayer if their own tax payment forms an integral part of the unlawful aid.

e. If the exemption of the plaintiff’s own enterprises is established, and was unlawful, it is not a remedy for that particular illegality to grant exemption to the defendant – that would only compound the breach of the rules.

f. Separate considerations seem to apply to the counterclaim as framed in these proceedings. EU law does not require that damages be available as against the recipient of unlawful State aid. Therefore the question of damages is governed by national law, including national rules as to the monetary jurisdiction of different courts. It may be that the counterclaim could, at least to some extent, be described as being against the plaintiff in its capacity as collector of the rates rather than as recipient, but the defendant has not particularised its general claim that the rates, combined with other State funding, amount to State aid. The obligation on national courts to provide a remedy for a breach of EU law does not, it seems to me, extend to breaching national procedural rules (here, rules relating to jurisdiction) where that is not necessary under the principles of equivalence and effectiveness.

g. The defendant’s claim exceeds the jurisdiction of the Circuit Court in relation to damages. While an argument may be open that under national rules the monetary limit does not apply to a counterclaim, this issue was not addressed before me and I am proceeding on the basis that, in the normal course of events, the limit does apply. My view, therefore, would be that the Circuit Court does not have jurisdiction to entertain the counterclaim.

The High Court referred three questions to the Court of Appeal, which were answered as:

Question 1: Does the Circuit Court have jurisdiction, in proceedings issued for the purpose of the recovery of rates, to determine whether the collection of rates and expenditure of the proceeds thereof amounts to State Aid which should have been notified to the European Commission pursuant to Articles 107 – 109 of the Treaty of the Functioning of the European Union?
Answer: Yes, but only where the defence raises an issue which involves a clear error on the face of the proceedings or there is no doubt as to the illegality of the decision in the sense explained and described by the Supreme Court in Dublin City Council v. Williams [2010] IESC 7, [2010] 1 I.R. 810. The time limits prescribed by Ord. 84 also apply by analogy to any such defence or counter-claim, save that, where necessary, consideration should be given to an extension of time where the defendant establishes that it only had a real interest in the matter from the date the plaintiff commenced the present proceedings.

Question 2: Is the issue raised by the defendant, as a matter of law, a challenge to the validity of the rate itself and thus a matter to be dealt with by way of judicial review only?
Answer: No. The Circuit Court enjoys no jurisdiction to pronounce upon the general validity of the rate struck by a rating authority. While it may nonetheless entertain a defence in the limited circumstances indicated in the answer to Question 1, any such defence is, even if successfully established, personal to that defendant and does not involve any general ruling as to the validity of the rate.

Question 3: If the Circuit Court has jurisdiction in such proceedings, and were to hold that the plaintiff is entitled to judgment for the amount of the rates unpaid but also that the collection of the rates in the circumstances amounts to a State Aid which has not been notified to the European Commission, would it have jurisdiction to award to the defendant damages in an amount equal to the amount of the judgment granted to the plaintiff or in any amount in order to ameliorate the effect of the (ex hypothesi) unlawful actions of the plaintiff?’
Answer: In view of the answers just given to Question 1 and Question 2, it would be premature and unnecessary to answer this question.

 

Supreme Court

West Wood applied to the Supreme Court for leave for a further appeal. The Court determined that West Wood raised a question of law of general interest and granted it leave to appeal on the following questions:

i. Does the Circuit Court have jurisdiction, in proceedings issued for the purpose of the recovery of rates, to determine whether the collection of rates and expenditure of the proceeds thereof amounts to State Aid which should have been notified to the European Commission pursuant to Articles 107 – 109 of the Treaty of the Functioning of the European Union?

ii. Is the issue raised by the defendant, as a matter of law, a challenge to the validity of the rate itself and thus a matter to be dealt with by way of judicial review only?

iii. If the Circuit Court has jurisdiction in such proceedings, and were to hold that the plaintiff is entitled to judgment for the amount of the rates unpaid but also that the collection of the rates in the circumstances amounts to a State Aid which has not been notified to the European Commission, would it have jurisdiction to award to the defendant damages in an amount equal to the amount of the judgment granted to the plaintiff or in any amount in order to ameliorate the effect of the (ex hypothesi) unlawful actions of the plaintiff?

New Appeal: Supreme Court grants appeal in case challenging Apple’s planning permission for a data centre at Athenry

In this determination, Fitzpatrick & Anor v An Bord Pleanála & Ors, the Supreme Court granted Fitzpatrick leave to appeal from the decision of the High Court to dismiss her application for an order of certiorari quashing the Bord’s grant of planning permission for Apple to construct a data centre and associated electrical grid connection at Athenry, County Galway.

 

Background

In August, 2016 An Bord Pleanála granted Apple permission for a development at Athenry. The proposed development is on a 500 acre site. The entire masterplan is to construct eight data halls. But the initial planning application is for one data hall and an electrical grid connection. The grid connection would have a 20 acre foot print and would be capable of supplying power to eight data halls. If all eight halls are constructed, the development could use 6-8% of the electricity supply of the state (Fitzpatrick’s submission).

Apple’s Environmental Impact Assessment (EIA) only assessed the impact of one hall and the connection. Fitzpatrick argues that EU law requires that the EIA consider the impact of the complete masterplan, including the environmental effect of the greenhouse gases created in the generation of the electricity to supply eight data halls.

Fitzpatrick applied to the High Court for an order of certiorari quashing the Bord’s decision. McDermott J (here) dismissed that application.

Fitzpatrick applied to the Supreme Court for leave to appeal McDermott J’s decision. Fitzpatrick’s grounds of appeal are set out here, Fitzpatrick doc.

 

Supreme Court

The Court determined that:

8. At this point the Court is not persuaded that it can safely be said that there might not be a point of general importance concerning the application of the broad general principles identified in the case law to a category of case such as this.

Because of that finding, the Court considered it necessary to grant leave generally, with the questions for appeal to be determined during case management, giving consideration to:

(a) The scope of the grounds of appeal which ought properly be permitted to be pursued on this appeal having regard to the way in which the case was fought in the High Court;

(b) Whether the Court should direct an early and preliminary hearing on the question of whether it is necessary, in the context of the CILFIT jurisprudence, for the Court to make a reference to the Court of Justice under Article 267 of the Treaty on the Functioning of the European Union; and

(C) The putting in place of expedited directions to lead either to an early preliminary hearing of the type identified at (b) or to an expedited full hearing as the Court considers appropriate.

 

The submissions by each of the participants are attached to the determination (link at top).

New Appeal: Does Brexit prohibit surrender of an EU citizen to the UK under an EU arrest warrant?

In this judgment, Minister for Justice v O’Connor, the Supreme Court granted O’Connor leave for a leapfrog appeal from the High Court. As a preliminary issue, the Court decided to make a reference to the Court of Justice of the European Union. The Court proposed a draft question:

 

Having regard to:

(1) (a) The giving by the United Kingdom of notice under Article 50 of the TEU;

(b) The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

(c) The consequential uncertainty as to the extent to which Mr. O’Connor would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom.

Is a requested state required to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be permitted, either

(i) in all cases?

(ii) having regard to the particular circumstances of the case? or

(iii) in no cases?

(2) If the answer to Q. 2 is that set out at (ii) what are the criteria or considerations which a court in the requested member state must assess to determine whether surrender is required?

(3) In the context of Q. 2, can the Court of a requested member state postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting member state from the Union?

 

Background

In 2006 Blackfriars Crown Court convicted O’Connor on two counts of tax fraud and released him on bail pending sentencing. When he did not attend court for sentencing, the judge sentenced him, in his absence, to two concurrent sentences of four years and six months.

In 2011 the UK issued a European arrest warrant seeking O’Connor’s surrender from this jurisdiction. The High Court endorsed that warrant. Gardai arrested O’Connor, and the High Court granted the Minister an order for O’Connor’s surrender. The Supreme Court granted O’Connor leave to appeal on an issue of the provision of legal aid (post). When that appeal was unsuccessful, the case returned to the High Court.

O’Connor then objected to his surrender on grounds that, as the United Kingdom had triggered the Brexit process, his rights as an EU citizen could not be guaranteed after March 2019. The High Court rejected that argument (here) and refused to grant a certificate for an appeal to the Court of Appeal. O’Connor applied for leave to appeal to the Supreme Court.

Generally applications for leave to appeal to the Supreme Court are determined on written submissions by three judges. In this case, the Court convened an extended panel and heard oral submissions from the parties.

O’Connor opposed the Minister’s intention to surrender him to the United Kingdom in circumstances where it may not be within the jurisdiction of the CJEU post Brexit and where rights accruing to him under the Charter of Fundamental rights may not be capable of enforcement.

The Court accepted that this is an issue of general public importance (there are 20 similar cases pending). The Court also determined that the case met the constitutional threshold of involving exceptional circumstances for a leapfrog appeal, as the High Court had refused a certificate to appeal to the Court of Appeal.

New Appeal: Did the State correctly transpose EU Directive 2008/94/EC (protection of employees in the event of their employer’s insolvency)?

In this determination, Glegola v Minister for Social Protection & Ors, the Supreme Court granted the State leave to appeal against the Court of Appeal’s order that the State pay Glegola damages under the Francovich principles, for the State’s failure to correctly transpose EU Directive 2008/94/EC (protection of employees in the event of their employer’s insolvency) into Irish law.

 

Background

The Employment Rights Commissioner awarded Glegola €16,000 against her former employer, Metro Spa Ltd, for unfair dismissal. Metro had no assets and had been struck of the companies register for failure to file returns. Glegola applied to the High Court for a number of orders: an order restoring Metro to the register; an order to wind up Metro; and an order under s 251 of the Companies Act 1990, which she believed would entitle her to recover her compensation from the Social Insurance Fund established under the Protection of Employees (Employers’ Insolvency) Act 1984, as required by EU Directive 2008/94/EC. The High Court (Charleton J) granted those orders.

When the Department of Social Protection refused to sanction payment from the Social Insurance Fund, Glegola issued judicial review proceedings in the High Court seeking a number of orders:

(i) First, that the Declaration under section 251 was sufficient to trigger the provisions of Article 2(1)(b) of the Directive, which it was claimed had direct effect. Accordingly, the State was obliged to make the payment from the Fund as described.

(ii) In the alternative, that the State had failed to fully transpose into Irish law the said Article in failing to have in place a procedure whereby, as part of the statutory scheme applicable to a petition to wind up a company by the court, a petitioner could, in the alternative, apply for an Order of the type envisaged by the said Article 2(1)(b) of the Directive.

(iii) And, finally, if the argument last mentioned was well-founded, she contended that in accordance with the decision of the Court of Justice in Francovich & Bonifaci v Italy (Joined Cases C-6/90 and C-9/90), she was entitled to an award of damages against the State in an amount equivalent to the said debt.

The High Court refused to grant those reliefs. Glegola appealed to the Court of Appeal, which held that the State had failed to correctly transpose the Directive into Irish law and awarded Glegola damages against the State under the Francovich principles. The State applied to the Supreme Court for leave for a further appeal.

 

Supreme Court

The State is seeking that the Court set aside the decision of the Court of Appeal and restore the orders of the High Court. It did not request that the Court make a reference to the CJEU but suggested that the Court may be required to do so of its own accord to enable it to give final judgment. The Court determined that the State had raised issues of general public importance and certified the following questions, whether:

1 (a) The Court of Appeal erred in deeming Article 2(1)(b) to be mandatory notwithstanding the disjunctive wording of Article 2(1) and/or the reference in Article 2(1) to insolvency as a concept “…as provided for under the laws, regulations and administrative provisions of a Member State”

(b) The Court of Appeal erred in failing to interpret Article 2 as requiring as a condition precedent the “opening of proceedings” which is solely based on insolvency law of Member States.

2 (a) The Court of Appeal erred in law in failing to distinguish between a “clear cut” breach of EU law and Ireland’s implementation of Directive 2008/94/EC by way of a requirement of insolvency consistent with Irish company law’s definition on insolvency.

(b) The Court of appeal erred in law in awarding Francovich damages on the basis that a wrongly held interpretative view (even if objectively and reasonably held) by a Member State equates to a “manifest breach”.

(c) The Court of Appeal erred in law and/or in fact in its determination that the applicants were guilty of a manifest and grave disregard of its discretion by reference to the “clarity” of Article 2(2) when it is not clear, but opaque.

(d) The Court of Appeal erred in law and/or fact in its determination that the appellants were guilty of a manifest and grave disregard of its discretion by reference to certain obiter comments by the High Court in Re David Joinery Ltd notwithstanding the specific lack of any jurisprudence from the Court of Justice of the European Union on the issue.

(e) The Court of Appeal failed to accord any or any proper weight to the rationale for Francovich damages, i.e. a balancing exercise between protecting rights afforded under EU law with Member States’ right to exercise legislative discretion in implementing EU Directives.

(f) The Court of Appeal failed to accord any or any proper weight to the distinct lack of any or any pertinent jurisprudence from the Court of Justice on the ambit of Article 2 of Directive 2008/94/EC.

(g) The Court of Appeal failed to accord any or any proper weight to the nebulous wording of Directive 2008/94/EC and Article 2 in particular.

(h) The Court of Appeal failed to accord any proper weight to the lack of Commission proceedings against Ireland.

 

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.

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.

%d bloggers like this: