knowledge 4 February 2019 |

Landmark Ruling Confirms Statutory Bodies may Disapply National Law that Conflicts with EU Law

This important decision has moved the bar with implications arising for litigants, in that they can now pursue matters of EU law before a diverse range of statutory bodies such as, for example, the Tax Appeals Commission,² the Valuation Tribunal, or the Information Commissioner.  The decision could potentially also play a role in proceedings before professional regulatory bodies such as the Law Society and the Medical Council, where a person seeks to rely on their rights under EU law.

Background

The case in question arose out of the exclusion of three individuals from the Garda recruitment process between 2005 and 2007 on the grounds that they were older than the statutory upper age limit for Garda recruits of 35 years.  The men took a case to the Equalities Tribunal (now the WRC) alleging that they had suffered discrimination on the grounds of age, in contravention of EU law and particularly of Directive 2000/78.³

The claim was challenged on the grounds that the WRC did not have jurisdiction to hear a claim which would require them to override a provision of national law (the Garda age limit being a statutory provision).  When the WRC refused to consider this objection as a preliminary issue, the Minister brought judicial review proceedings in the High Court seeking to prevent the WRC from hearing the case, which began the process eventually leading to the recent CJEU decision.

Both the High Court ⁴ and the Supreme Court on appeal found that the WRC did not have jurisdiction to hear a case where the only positive outcome would require it to disapply a provision of Irish national law.  This power was reserved to courts established under the Constitution and could not be extended to statutory bodies, albeit that those bodies exercise a quasi-judicial function. 

Crucially, during the appeal the Supreme Court referred a question to the CJEU asking whether EU law required that the WRC hear the claim and whether, as a matter of EU law, the WRC should be empowered to set aside national law where it is in contravention of EU law.

The CJEU Decision

While the Advocate General took a different view in his opinion, it was ultimately determined that the WRC must have the power to set aside any national law which conflicts with EU law in its consideration of  any claim under the equality legislation.

The decision turned on the principle of primacy of EU law, which requires that EU law supersede national law where the two conflict and requires all national bodies to give full effect to EU rules.  On that basis, the CJEU found that a national body established by law in order to ensure enforcement of EU law in a particular area (such as, in this case, the WRC) must have jurisdiction to disapply any provision of national law where it is contrary to EU law.

The court stated 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”.

Importantly, however, the court also noted that there is a distinction to be drawn between the power to disapply national law in a particular case, and to strike down a national law.  That function (to strike down a law) remains exclusively one of the Superior Courts of Ireland and is not affected by this ruling.

Implications

While this case expressly dealt with the powers of the WRC, it is equally applicable to any comparable state body, or indeed to any “organ of state” tasked with applying EU law.  As the court noted in its judgment, “[the] duty to disapply national legislation that is contrary to EU law is owed not only by national courts, but also by all organs of the State — including administrative authorities — called upon, within the exercise of their respective powers, to apply EU law”.

The ruling confirms that state bodies exercising quasi-judicial functions have jurisdiction (and are required) to disapply national law if necessary in order to properly enforce EU law.  Crucially for litigants seeking to rely on rights grounded in EU law, the decision may obviate the need to commence High Court actions where a process is available via a relevant statutory body, resulting in more claims being resolved through such bodies with the potential for cost savings for litigants and in some instances (depending on the state body) the potential for matters to proceed in camera.  It cannot be ignored that the decision also has serious implications for relevant state bodies who now have a significantly expanded jurisdiction and may see an increase in applications previously confined to the Superior Courts.