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Advocate General’s Opinion Is That WRC Has Exceeded It’s Jurisdiction

The Court of Justice of the European Union (“CJEU”) Advocate General issued an opinion on 11th September 2018 agreeing with the Supreme Court’s earlier findings in the matter of The Minister for Justice and Equality, The Commissioner of An Garda Siochana –v- The Work Place Relations Commission & Ors [2017] IESC 43. The Advocate General has opined that the Workplace Relations Commission (“WRC”), and its predecessor the Equality Tribunal had exceeded its own authority by proceeding to hear a complaint in circumstances “where a successful outcome of the complaint would require disapplication of a provision of national (primary or secondary) legislation”.

The matter involved a complaint submitted to the Equality Tribunal (The Predecessor of the WRC) concerning regulations which excluded any person over the age of 35 years from admission to An Garda Siochana. The Equality Tribunal had proceeded to hear the complaint in circumstances where the age restriction was expressly provided for in Ireland’s own national legislation.

It should be noted that for the purpose of the referral and as a result of the Workplace Relations Commission Act 2015 the relevant functions of its predecessor, The Equality Tribunal have now been transferred to the WRC. Nothing turns on that change for the purposes of the decision to the CJEU and the decision will apply in full to the WRC.

High Court and Supreme Court
The Minister of Justice, Equality and Law Reform referred the issue of jurisdiction to the High Court and subsequently to the Supreme Court for determination. Both Courts agreed that the WRC is in itself created by national legislation and as such does not have the power to set aside a national legislative provision in circumstances where it considers a legislative provision to be in breach of European Law. In this matter the regulations’ age restriction could have been potentially in breach of the European Union Council Equality Directive 2000/78/E.C. It was held in both the High Court and the Supreme Court that the power to set aside a provision of national law has been expressly vested in the High Court by virtue of Article 34 of Ireland’s Constitution.

Court of Justice of the European Union
The CJEU has yet to issue a decision in this matter following an earlier hearing but the Advocate General’s Opinion is more often than not followed by the Court of Justice. In summary the Advocate General opined that the WRC did not have jurisdiction to investigate or set aside national provisions in circumstances where it considered such provisions to be in breach of European Law and that such a claimant “must instigate ‘judicial review proceedings’ before the High Court in order to obtain relief through disapplication of a provision of national law deemed contrary to a superior norm”. The Advocate General stated that an administrative body or a court such as the WRC can be under an obligation to refrain from applying a provision of national law only in circumstances where it had the jurisdiction to do so. The Advocate General did not consider the WRC to be such a body or court in view of the fact that as a matter of national constitutional law the power to set aside national provisions was vested solely in the High Court and stated as follows: “It simply does not have jurisdiction at all in cases where a successful complaint requires the disapplication of legislation.”


For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitors.ie or +353 1 6698550
1st October 2018

Anne O’Connell
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2

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