Issue of Garda age limit to be referred to European court

The Supreme Court has referred to Europe the question of whether the Equality Tribunal, now part of the Workplace Relations Commission (WRC), has the power to decide if the 35-year age limit for joining the Garda Síochána is discriminatory.

A five-judge Supreme Court unanimously agreed to refer the issue to the Court of Justice of the European Union (CJEU) arising out of a case originally brought by three men who claimed the rule discriminated against them under national and European law.

The WRC has appealed a 2009 High Court finding that an equality tribunal did not have the authority to make a binding legal declaration on the inconsistency or insufficiency on a comparison of European and national legislation. Such a power was “expressly reserved” to the High Court under Article 34 of the Constitution, a judge ruled.

Legal costs

The Minister for Justice also brought a cross-appeal against the refusal of the High Court to award the Minister her legal costs. The three complainants were notice parties in the appeal. The three, who were in their 30s and 40s, had applied to join the force between 2004 and 2007 and were refused.

In his judgment on behalf of the Supreme Court, Mr Justice Frank Clarke said as a matter of national law, a person or a body exercising statutory power – not being a court established under the Constitution – does not have jurisdiction to commence a process where the only positive conclusion would involve setting aside or disapplying a measure of legislation.

On that basis, he had concluded the WRC (formerly the tribunal) would not, as a matter of national law, have jurisdiction to entertain the complaints of the three men in this case.

Disapplication

That was because the only lawful conclusion in favour of the three would require the disapplication of an EU directive, Establishing a General Framework for the Equal Treatment in Employment and Occupation (Directive 2000/78).

He was satisfied the division of competence between the WRC/tribunal and the High Court does comply with principles of equivalence or effectiveness.

However, there remained an issue as to whether EU equality legislation requires the WRC/tribunal, notwithstanding those earlier findings, “must have a jurisdiction to embark on the hearing of these complaints”.

Therefore, the Supreme Court had decided to refer to the CJEU, under the Treaty on the Functioning of the EU, issues concerning the jurisdiction of the WRC in the context of the equal treatment in employment directive.