The decision delivered by the European Court of Justice (“ECJ”) on 4 December 2018 has the potential to fundamentally alter a statutory authority’s powers when adjudicating on a matter that concerns both national legislation and the EU Law that it has derived from.

The Supreme Court of Ireland made a referral to the ECJ under the Article 234 reference procedure querying whether a national body had the power to disapply national law where that national law conflicts with EU Law.

The referral by the Supreme Court arose from a decision of the Equality Tribunal, whereby it had disapplied a section of the Employment Equality Act 1998 as it conflicted with Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

The State previously sought various reliefs from the Irish Courts in respect of the decision by the Equality Tribunal to disapply the national legislation. The State maintained that Article 34.2 of the Constitution reserved exclusive jurisdiction to the High Court to deal with the validity of any law in Ireland, thus the Equality Tribunal lacked jurisdiction to disapply the national legislation.

The Workplace Relations Commission (formerly the Equality Tribunal) maintained that as a body bound by the general obligation to ensure that national and EU Law relating to equality in employment are complied with, it must have all the powers necessary for that purpose.

The ECJ noted that a distinction must be drawn between the power to disapply a provision of national law that is contrary to EU Law and the power to strike down such a provision, which has the broader effect in that the provision is no longer valid for any purpose.

The ECJ held that if a body such as the Workplace Relations Commission was unable to declare that a national provision is contrary to a directive and was unable to decide to disapply that provision, then EU rules would be rendered less effective. Thus the principle of effectiveness and primacy of EU Law would fail.

Accordingly, the ECJ held that a national body established by law in order to ensure enforcement of EU Law must be allowed to disapply national legislation where that national legislation is contrary to EU Law.

The Supreme Court will now consider this ruling in the context of the original appeal. It will be interesting to see how it chooses to deal with this decision.

Amongst the issues that now arise for consideration are;

  1. Whether the decision maker within the statutory body is legally qualified to assess whether or not the national legislation is contrary to EU Law?
  2. Whether the decision maker is obliged to always assess if there is a contradiction between national and EU Law without having been prompted by a party to the adjudication / review / decision etc?
  3. If one party raises a potential conflict between both national and EU Law, to what extent can a respondent make submissions in respect of that alleged conflict and should the decision maker also obtain independent submissions / advice regarding the area at question?
  4. If a party is unhappy with the decision, does the remedy take the form of an appeal or a Judicial Review?

To put it into context just how much of our national legislation derives from EU Law, a recent BBC article on Brexit outlined that more than 62% of UK law derived from either regulations or directives issued from the EU.

The below are some of our most commonly used and relied upon legislation that derives from EU Law;

EU Directive Irish National Legislation
  • Working Time Directive 2003/88/EC
  • Organisation of Working Time Act 1997
  • Third Money Laundering Directive 2005/60/EC
  • Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
  • Council Directive 89/391/EEC & 91/383/EEC on the introductions to encourage improvements in the safety and health of workers at work
  • Safety, Health and Welfare at Work Act 2005
  • Various EU directives regarding waste, dangerous substances and assessments of certain projects to the environment
  • Waste Management Act 1996