DWT14114

In the Determination the parties are referred to as they were at first instance. Hence Mr O’Donovan is referred to as the Claimant and Seclusion Properties is referred to as the Respondent.

The matter was heard by a Rights Commissioner who issued a Decision on9^thFebruary 2012.The Rights Commissioner found for the Claimant and awarded him compensation in the amount of €2,200. The Rights Commissioner did not address any of the legal question upon which this case turns.

The Issue

The Claimant is claiming an entitlement to annual leave in respect of a period during which he was on sick leave and not at work. There is no issue that the Act, literally construed, does not afford the Claimant the entitlement for which he contends. Rather, the claim is grounded on a Decision of the Court of Justice of the European Union in Joined Cases C-520/06 and C-350/06Stringer and others v. HM Revenue and Customssub nomCommissioners of Inland Revenue v. Ainsworth and othersSchultz-Hoff v. Deutsche Rentenversicherung Bund[2009] IRLR 214.

Those cases relate to the entitlement of workers to four weeks holidays with pay per year under Article 7 of Directive 2003/99/EC (the Working Time Directive), as amended. The issue decided is those cases is well known and is not in contention. The CJEU decided that the right to paid holidays prescribed by the Directive is not conditional on the number of hours worked by a worker in the period to which the leave relates and that any provision of national law which links the entitlement to hours worked is incompatible with the Directive.

It is also acknowledged that the doctrine of direct effect of European Law has no application in this case. In advancing his claim the Claimant relies on the doctrine of indirect effect; that is to say, the Act must be construed, as far as possible, in light of the wording and purpose of the Directive so as to produce the result envisaged by the Directive

This matter came before the Court on 14^thMarch 2013. It was adjourned on that occasion and a resumed hearing was held on 16^thMay 2014. On that occasion the matter was again adjourned so as to allow negotiations to take place between the parties. Agreement was not reached and the solicitors for the Claimant requested the Court to deliver its Determination in the case. Both parties were asked to make further submissions on the legal principles against which this case must be decided. Detailed submissions were subsequently received by the Court.

The Law

The doctrine of indirect effect, or the doctrine of conforming interpretation as it is now known, was first formulated in Case C-Von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891. However the most oft-quoted formulation of the doctrine was provided in Case C-106/89,Marleasing SA v La Comercial Internacionale de Alimentacion SA[1990] ECR 1-4135, as follows: -

• “[I]n applying national law, whether the provisions in question were adopted before or after the Directive, the national Court called upon to interpret it is required to do so, as far as possible, in light of the wording and purpose of the Directive in order to produce the result pursued by the latter”

• 24. In that regard, the Court has consistently held that when national courts apply domestic law they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the Directive concerned in order to achieve the result sought by the Directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them (see, inter alia, joined casesC-397/01toC-403/01Pfeiffer and others[2005] IRLR 137, paragraph 114; joined casesC-378/07toC-380/07Angelidaki and others [2009] ECR I-3071, paragraphs 197 and 198; and caseC-555/07K�c�kdeveci[2010] IRLR 346, paragraph 48).

  25. It is true that this principle of interpreting national law in conformity with European Union law has certain limitations. Thus the obligation on a national court to refer to the content of a Directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see caseC-268/06Impact[2008] IRLR 552, paragraph 100, and Angelidaki and others, paragraph 199).

• In that regard, it should be noted that the principle that national law must be interpreted in conformity with European Union lawalso requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see caseC-212/04Adeneler and others[2006] IRLR 716, paragraph 111, and Angelidaki and others, paragraph 200).

• “If the application of interpretative methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of the provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, and the national Court is bound to use those method in order to achieve the result sought by the Directive”

In the written submissions furnished on behalf of the Claimant, Counsel correctly drew the Court’s attention to the Decision of the High Court inMinister for Justice, Equality and Law Reform v The Equality Tribunal[2009] 20 E.L.R. 116. That case arose from a complaint by an individual to the Equality Tribunal alleging discrimination by the Commissioner of An Garda Siochana on grounds of age. The Commissioner had refused to consider the Complainant’s application because he was over the maximum age prescribed for admission to the force by statutory regulation which imposed an upper age limit on recruitment to the force of 35. The Commissioner objected to the jurisdiction of the Equality Tribunal to investigate the case claiming that it had no right to overrule the statutory regulations. The Equality Officer initially took the view that the Complainant was entitled to rely on the Directive directly as against the Commissioner and that if the statutory regulations were in conflict with the Directive they would have to be disapplied.

The Commissioner brought Judicial Review proceedings seeking orders of prohibition directed at preventing the Equality Officer from continuing to investigate the case. In a Judgment delivered in February 2009 Charleton J. held that the Equality Officer has exceeded his power by seeking to overrule or set aside a statutory provision which should have determined the case in the Commissioner’s favour.

Theratio decidendiof that Decision appears to be encapsulated in the following passage at par 8 of the judgment of Charleton J: -

• • There is no principle of European law which allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to achieve a result, whereby it is of the view that European legislation has not been properly implemented at national level and that this situation is to be remedied by the re-ordering in ideal form of national legislation. The limit of jurisdiction is of primary importance to the exercise of authority, whether the court be one established as an administrative body, or is one of the courts under the Constitution. In the event that a view emerges that national legislation has not properly implemented European legislation, this is no more than an opinion. The respondent does not have the authority to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. The High Court has that power as this has been expressly reserved to it by Article 34 of the Constitution. The respondent is bound by S.I. No. 749 of 2004 fixing the upper age for admission to training as a member of An Garda Síochána at 35 years.

The Decision inMinister for Justice, Equality and Law Reform v The Equality Tribunalraises the question of whether this Court has jurisdiction to apply the doctrine of conforming interpretation at all. It should be noted, however, that the correct application of that doctrine does not require the setting aside of a provision of national law. Rather, it involves the correct application of national law by interpreting that law in light of the wording and purpose of a Directive upon which that law is based. It is founded in part on the presumption that the national legislature intended to transpose a Directive faithfully. If this Court is circumscribed in applying the law of the European Union in deciding a case within its jurisdiction that could offend against the principals of effectiveness and equivalence. If the case were to turn on that point the Court would feel constrained to seek the guidance of the Court of Justice by way of a reference for a preliminary ruling pursuant to Article 267 TFEU (ex Article 234 TEC). In this case the costs that would be incurred by the parties in such a referral would undoubtedly be disproportionate to the value of the claim. Nevertheless, in order to properly apply Union law such a referral might be necessary. However, for reasons that follow the Court does not believe that the case turns on that point and according the Court reserves its position on that question.

It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national lawcontralegem.As was pointed out by the CJEU inDominguez v Centre Informatique du Centre Ouest Atlantique,a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.

In this case the submissions received by the Court do not identify what, if any, interpretative methods known to Irish law could be employed by the Court so as to produce the result contended for by the Claimant and avoid a constructioncontra legem.Nor do the submissions identify the appropriate test to delineate the point of departure between a permissible conforming interpretation and an impermissiblecontra legeminterpretation.

The Court believes that this case should be decided on the basis of the arguments and submissions advanced by the parties. Based on the submissions made, the Court cannot see any basis upon which it could construe the statute in the manner contended for by the Claimant. In these circumstances the Court must hold that the Respondent is entitled to succeed in its appeal

Outcome

The appeal is allowed and the decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
9th December, 2014.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.