This month’s article from the Labour & Superior Court Case Law Review Panel focusses on the CJEU case of An Garda Síochána v The Workplace Relations Commission. Written by David Fagan of Business Legal, the article considers how European Union law MUST be applied in Ireland.

What we learn in this article is that the role of the WRC has (as with all quasi-judicial administrative bodies) been greatly developed and Adjudication Officers are required to:

• Make decisions on matters that could be outside their statutory remit;
• Establish the correct legal interpretation of contractual provisions;
• Resolve apparent conflicts between domestic law and EU law; and
• Apply EU law, even in circumstances where that EU law has not been transposed into domestic Irish legislation, either correctly or at all.

An Garda Síochána v The Workplace Relations Commission case

Last December the Court of Justice of the European Union (“CJEU”), which is the court which decides on administrative issues in the European Union gave a seminal decision in the case of An Garda Síochána v The Workplace Relations Commission (“WRC Decision”) on how European Union law is to be applied in Ireland.

Although this decision arose out of an employment law matter, it relates to the application of European Union law in all areas of law in Ireland.

Common Law v Civil Law

First, a little history: there are two main systems of law in the world.  The Civil Law system which is based originally on Roman law, and the Common Law system which originated in England in Norman times.

The Common Law is a judicially led system; judgements are based upon precedent, and extreme value is placed upon previous decisions.  Under the most rigid application of Common Law systems, the doctrine of Stare Decisis (“Binding Precedent”) means that a court may not overrule its previous decision, unless it can find some distinguishing feature or difference between the previous decision, and the new decision which it now wishes to make.  In Ireland, it has long been clarified that Stare Decisis does not apply to the Supreme Court, and the Supreme Court is free to change its mind with regard to precedent.

However, by contrast, in the Civil Law system, this reliance on precedent does not exist to the same extent.

Judicial control is exercised via the system of precedent in Ireland, and only the High Court and Supreme Court can determine matters of constitutional validity.  Therefore, when an EU law (which only applies in Ireland by virtue of our constitution) is in conflict with a domestic law, then it always fell to the High Court or the Supreme Court to decide such issues.

Until the WRC Decision, in the event that it was suggested that there was a conflict between domestic law and EU law, the WRC (or any other quasi – judicial administrative body in Ireland) could not resolve that conflict, and would have to seek a determination from the High Court in relation to the matter.  Typically this would be done by way of the aggrieved party appealing the matter (possibly via an intermediate appeal to the Labour Court or similar body) to the High Court on a point of law.

What was the practical effect of this position?

Practically speaking, this meant that determining the law in such cases was an expensive proposition.  It was open to the employer, usually having greater resources, to outlast the complainant, and therefore in many cases it was open to abuse by an employer “playing the long game”, as potentially beneficial EU laws were not available to be used in argument by the complainant at the WRC or Labour Court stage.

On the other hand, a determined complainant, who was prepared to represent themselves, or had access to cheap legal resources through friends or relatives, could also blackmail an employer by being able to keep the case alive, with a genuine legal dispute remaining much longer than might have otherwise been the case.

So what is the current situation?

Since the WRC Decision, it is now the law in Ireland that all quasi – judicial administrative bodies must apply and interpret EU law themselves.  It is not a matter exclusively reserved to the High Court (or on appeal to the Supreme Court).

This makes matters much more straightforward.  It also comes with a serious difficulty in relation to the WRC.  On Wednesday 20th of March last, the Supreme Court ruled that an applicant, Mr Tomasz Zalweski, was entitled to take a constitutional challenge to the High Court on a number of grounds in relation to WRC procedures, including the fact that Adjudication Offices in the WRC do not have to be legally qualified, that evidence is not taken under oath, and that there is no penalty for giving false evidence.  The WRC has been heavily criticised in its short lifetime, for the procedures it has adopted, and the quality of justice which it has served.

Following on from the WRC Decision in the CJEU it is these heavily criticised procedures, presided over by potentially non-legally qualified Adjudication Officers, who will have to apply EU law at first instance.  Given that the comfort blanket of passing sometimes highly technical matters off to the higher Courts will no longer be an option in all cases, the WRC is going to have to step up to the plate in the quality of its officials, its procedures, and its legal determinations.

WRC required to interpret Contract law

The above follows on from the Calor Teoranta v McCarthy High Court case almost exactly 10 years ago, wherein Mr Justice Clarke decided that “bodies charged with reaching legally binding decisions on a whole range of areas have to make findings of facts which are material to the exercise of the statutory role”, in essence preventing the Labour Court and other statutory bodies such as the WRC from refusing to determine the correct interpretation of contracts on the basis that this was not within the strict statutory basis of the role.

WRC required to determine EU law even if not transposed into Irish law

Lastly, the above is in addition to the Van Gend en Loos principle, which holds that an “emanation of the State” remains liable under an EU Directive even in circumstances where the EU Directive has not been properly transposed into Irish law, provided the Directive is clear, expressed in negative or prohibitory terms, unconditional, and not expressed to be dependent on any national implementing measure. In such circumstances the Directive is said to have “direct effect”.

Summary

In summary therefore, despite the WRC being a body set up under domestic law, and having some decision-making powers which are entirely set out in domestic law, such as decisions in respect of Unfair Dismissals claims, Industrial Relations claims etc., the WRC (and other quasi-judicial administrative bodies such as the Data Protection Commission) is now required to make decisions on matters outside its statutory remit, such as the correct legal interpretation of contractual provisions, the resolution of apparent conflicts between domestic law and EU law, and the application of EU law even in circumstances where that EU law has not been transposed into domestic Irish legislation, either correctly or at all.

This is quite a step up for what was envisaged originally for the Rights Commissioner service, now operated by the WRC Adjudication Officers.

You will find the case decision here:
http://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-378/17