Supreme Court allows appeal, holding 14-day judicial review time limit for EU law claims is not incompatible with EU principles.

THE SUPREME COURT

[Appeal No. 405 JR/2010]

Denham C.J.

Murray J.

Fennelly J.

O’Donnell J.

McKechnie J.

Between/

TD, ND (A MINOR SUING BY HER MOTHER AND NEXT FRIEND TD) AND AD (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND

TD)

Respondents

and

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

ATTORNEY GENERAL AND IRELAND

Appellants

JUDGMENT of Mr. Justice Fennelly delivered the 10th day of April 2014.

1. The respondents, failed asylum seekers, seek to contest, by way of judicial review, a number of decisions whereby the State, and

ultimately the Minister for Justice Equality and Law Reform (hereinafter “the Minister”) refused them recognition as refugees. As

applicants in these proceedings, they invoke provisions and principles of the law of the European Union (“EU law”) for the purpose of

invalidating those decisions. They are met by the contention of the State that their application for judicial review is out of time. It

was not brought within the period of fourteen days laid down by s.5 (2) of the Illegal Immigrants (Trafficking) Act 2000 (“the Act of

2000”). There was no ground for extending that time.

2. In the High Court, Hogan J raised of his own motion the question whether the time limit imposed by s. 5(2) is compatible with the

principles of EU law which limit the exercise of national procedural autonomy by the courts of the Member States, to wit, the

principles of equivalence and effectiveness. The learned judge held the provisions of s. 5(2) to be in breach of both of those

principles. Nonetheless, in granting leave to appeal to the appellant, he certified the following point of law as being a point of

exceptional public importance for the purpose of that appeal pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000:

“Where an applicant for judicial review seeks relief against a refusal by the Minister for Justice, Equality and Law Reform

to grant a declaration of refugee status on the grounds that the Refugee Act, 1996, as amended, is incompatible with

European Union law is the application of the limitation period contained in s.5(2)(a) of the Illegal Immigrants (Trafficking)

Act, 2000 and where there is otherwise no good or sufficient reason for extending the period within the meaning of that

sub-section incompatible with either or both of the European Union legal principles of equivalence and effectiveness.”

3. Murray J has delivered a detailed and comprehensive judgment. I gratefully adopt his account of the history of the proceedings and

of the arguments and submissions of the parties to the appeal. I would add only that, as I understand the primary submissions made

on behalf of the Minister on the appeal, it is argued that s. 5 of the Act of 2000 applies to all immigration decisions and not merely to

those which concern the implementation or application of EU law. In other words, the section applies to decisions which are in no way

concerned with EU law. The written submissions of the Minister express the matter in the following two paragraphs:

”The primary submission of the Appellants…is that, not only was an incorrect or inappropriate comparator selected by the

High Court, but the principle of equivalence is manifestly not breached in circumstances where the clear wording of

Section 5 of the Act of 2000 is such that it applies not only to challenges to asylum and immigration decisions which are

based on European Law, but also to all challenges brought under national law.”

“Section 5 is utterly neutral in its terms and applies to all challenges regardless of the source of legal rights upon which

the applicant for relief is relying.”

4. I fully agree with the judgment of Murray J that the section does not infringe the principle of effectiveness. I regret, however, that

I do not share his view that s. 5(2) infringes the principle of equivalence. I entirely accept his very full account of the jurisprudence

of the Court of Justice on these issues. My difference with the judgment of Murray J concerns essentially the interpretation of the

scope of s. 5(1) of the Act of 2000 and the range of proceedings to which it applies. In this judgment, I explain why I do not believe

that s. 5(2) infringes the principle of equivalence.

5. The question at issue is whether s. 5(2) gives equivalent protection to rights enjoyed by individuals depending on whether their

claims for judicial review before the High Court are derived respectively from national law and/or the law of the European Union.

6. Section 5 of the Act of 2000 makes an application for judicial review the exclusive legal procedure for challenging the validity of a

range of administrative decisions which concern asylum and immigration, in effect the control of the rights of persons to enter and

remain on the territory of the State. In order to consider the scope of application of that section, it is appropriate, at the outset, to

take stock of the present state of the distribution of competences between the Member States, on the one hand, and the European

Union, on the other. Since the entry into force of the Lisbon Treaty, the Treaty on European Union (“TEU”) and the Treaty on the

Functioning of the European Union (“TFEU”) govern the relationship between the Union and the Member States in accordance with

the principle of conferral.

7. Article 4 TEU provides:

“1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member

States.

2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent

in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect

their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and

safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”

Article 5 TEU, echoing Article 4.1, states that the “limits of Union competences are governed by the principle of

conferral.”

8. Articles 2 to 4 TFEU identify matters that are, respectively, within the exclusive competence of the Union or where competence is

shared with the Member States. Article 4.2 lists among the subjects of “shared competence”:

(a) internal market;

(j) area of freedom, security and justice.

9. Article 26.2 TFEU provides:

“The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons,

services and capital is ensured in accordance with the provisions of the Treaties.”

Thus, the internal market comprises, inter alia, the free movement of persons within the European Union.

10. The “area of freedom, security and justice” encompasses asylum policy. Article 78 of the Treaty on the Functioning of the

European Union provides that the Union is to “develop a common policy on asylum, subsidiary protection and temporary protection

with a view to offering appropriate status to any third-country national requiring international protection…………..” That policy “must

be in accordance with the Geneva Convention of 28 July 1951……………and other relevant treaties.” Article 18 of the Charter of

Fundamental Rights of the European Union provides:

“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the

Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and

the Treaty on the Functioning of the European Union…”

11. The most notable EU legislative acts are Council Directive 2004/83/EC 29 April 2004 on minimum standards for the qualification and

status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the

content of the protection granted (“the Qualifications Directive”) and Council Directive 2005/85/EC 1 December 2005 on minimum

standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”). Thus, claims for

asylum are now, in effect, entirely governed by EU law. Murray J, at paragraphs 17 to 23 of his judgment explains that matters of

asylum and refugee law are governed by EU law.

12. The areas of power or jurisdiction which are indisputably within the competence of the European Union are, firstly, all matters

concerning the free movement of persons within the EU, i.e., between Member States, and, secondly, asylum and refugee status and

international protection generally. It is almost certain that any proceeding whereby an individual claims rights either pursuant to the

law of free movement or of asylum will be the subject of EU law.

13. On the other hand, it is not the case that every aspect of the sovereign power of a Member State to control the entry of persons

on to its territory has passed to the EU. Article 4.2 TEU, quoted above, contains the important recognition by the Union that it shall

“respect [the Member States’] essential State functions, including ensuring the territorial integrity of the State, maintaining law and

order and safeguarding national security.” Member States retain their national identity and their sovereign power, other than in

respect of the admittedly very extensive subjects where the EU is now competent, to control entry onto their territory, to permit or

to refuse to permit nationals of third countries, other than those claiming asylum, to enter the State. Insofar as concerns any

attempt by a national of any of the countries which are not members of the European Union, except those seeking asylum or

international protection, the State remains sovereign.

14. The nature of this sovereign power has been the subject of a number of important and well-known judicial pronouncements. In his

judgment in A.O. & D.L. v. Minister for Justice [2003] 1 I.R.1, Keane C.J. stated that, at page 24, that the “inherent power of Ireland

as a sovereign State to expel or deport non-nationals (formerly described in our statute law as "aliens") is beyond argument.” He

approved the following dictum of Costello J in Pok Sun Shun v Ireland [1986] I.L.R.M. 593 at 599, which is also quoted by Murray J at

paragraph 16 of his judgment:

"the State … must have very wide powers in the interest of the common good to control aliens, their entry into the State,

their departure and their activities within the State."

15. The question of whether s. 5(2) of the Act of 2000 infringes the principle of equivalence arises in the context of the performance

by the State of its obligation to provide a judicial remedy to persons having claims, here regarding asylum decisions, under EU law.

Article 19 TEU, which provides for the Court of Justice of the European Union, provides:

“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

That duty is reinforced, at a general level, by Article 47 of the Charter of Fundamental Rights of the European Union as follows:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective

remedy before a tribunal in compliance with the conditions laid down in this Article.”

Furthermore, specific provision is made by the Procedures Directive for the obligation on the Member States and their courts in

matters of asylum. It is a general principle of EU law that an applicant for asylum has a right to an effective remedy before a court or

tribunal of the Member State in which he makes his application. (See Case C-69/10 Diouf v Minister du Travail [2011] ECR I-7151).

There is a consequential duty laid on the courts of the Member States to afford judicial protection to individuals claiming rights

derived from EU law in general and in respect of asylum and international protection, in particular.

16. That duty is performed in accordance with the principle of national procedural autonomy. That is the means by which claims under

EU law benefit from but are, at the same time, subject to national procedural rules. It is a matter for national law to establish courts

with jurisdiction, to provide remedies, i.e., causes of action, under national law and to lay down procedural rules including time limits

for the pursuit of claims deriving from EU law. EU Law, other than for certain specific cases, prescribes no rules.

17. The exercise of national procedural autonomy is subject to two limiting conditions: the principle of equivalence of treatment of

national and EU law claims and the principle of effectiveness. (see Case 45/76 Comet v Produktschap [1976] ECR 2043; Case 33/76

Rewe-Zentralfinanz v Landwirstchaftkammer Saarland [1976] ECR 1989 par 8; Case 199/82 Amministrazione delle Finanze dello Stato v

San Giorgio [1983] 3595 par 12; C-208/90 Emmott [1991] ECR I-4269 par 16; C-9/90 Francovich and others [1991] ECR I-5357.). The

Court of Justice has expounded the principles as follows in, amongst many other cases, Case C-255/00 Grundig Italiana Spa v

Ministero delle Finanze [2002] ECR I-8003:

“…it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and

to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from

Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions

(principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of

rights conferred by Community law (principle of effectiveness)”

The Court has consistently maintained this statement of principle in a large number of cases: see, for example Case 268/06 Impact

[2008] ECR I-02483, paragraphs 46 et seq.

18. The principles of effectiveness and equivalence being rules designed to protect the rights of individuals who pursue claims based

on EU law in the national court will necessarily, as the occasion arises, impose on the national court the obligation to set aside any

conflicting rules of national law. This is what happened in Case C-312/93 Peterbroeck [1995] ECR I-4599. The expiry of a 60-day time

limit under Belgian law had the effect of preventing the Cour d’Appel from examining of its own motion the compatibility of a measure

of domestic law with Community law. It seems clear that the national court must, of its own motion, set aside any conflicting

provision of national law, even where the parties do not raise the matter.

19. The question which I address in this judgment is whether the 14-day time limit laid down by s. 5(2) of the Illegal Immigrants

(Trafficking) Act 2000 complies with the principle of equivalence. Section 5(1) is crucial. Not only does it provide that judicial review

under Order 84 of the Rules of the Superior Courts is the exclusive remedy available to those affected by one or more of the listed

acts. It identifies expressly and exhaustively the range of administrative acts to which the section applies. It provides, as amended,

as follows:

“(1) A person shall not question the validity of—

(a) a notification under section 3 (3)(a) of the Immigration Act, 1999 ,

(b) a notification under section 3 (3)(b)(ii) of the Immigration Act, 1999 ,

(c) a deportation order under section 3 (1) of the Immigration Act, 1999 ,

(d) a refusal under Article 5 of the Aliens Order 1946 ( S.R. and O. No. 395 of 1946 ),” [substituted by s. 10 of the

Immigration Act, 2003];

(dd) a refusal under section 4 of the Immigration Act 2004,” [inserted by s. 16(6) of the Immigration Act, 2004];

(e) an exclusion order under section 4 of the Immigration Act, 1999 ,

(f) a decision by or on behalf of the Minister to refuse an application for refugee status or a recommendation of an Appeal

Authority referred to in paragraph 13 of the document entitled “Procedures for Processing Asylum Claims in Ireland” which,

as amended, was laid by the Minister for Justice, Equality and Law Reform before the Houses of the Oireachtas in March

1998,

(g) a recommendation under section 12 (as amended by section 11 (1)(h) of the Immigration Act, 1999 ) of the Refugee

Act, 1996 ,

(h) a recommendation of the Refugee Applications Commissioner under section 13 (as amended by section 11 (1)(i) of the

Immigration Act, 1999 ) of the Refugee Act, 1996 ,

(i) a decision of the Refugee Appeals Tribunal under section 16 (as amended by section 11 (1)(k) of the Immigration Act,

1999 ) of the Refugee Act, 1996 ,

(j) a determination of the Commissioner or a decision of the Refugee Appeals Tribunal under section 22 (as amended by

section 11 (1)(p) of the Immigration Act, 1999 ) of the Refugee Act, 1996 ,

(k) a refusal under section 17 (as amended by section 11 (1)(l) of the Immigration Act, 1999 ) of the Refugee Act, 1996 ,

(l) a determination of an officer appointed under section 22 (4)(a) of the Refugee Act, 1996 ,

(m) a decision of an officer appointed under section 22 (4)(b) of the Refugee Act, 1996 , or

(n) a decision under section 21 (as amended by section 11 (1)(o) of the Immigration Act, 1999 ) of the Refugee Act,

1996 ,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15

of 1986 ) (hereafter in this section referred to as “the Order”).”

20. This list defines the scope of the section and, therefore, both the scope of the limitation of the remedy of judicial review by the

14-day time limit. It follows that every application questioning the validity of a decision must be and can only be brought and is, when

brought, an application pursuant to Order 84. The subsection does not, at least on its face, distinguish between remedies sought

pursuant to EU law and national law. To determine whether it makes any such distinction, it is necessary to examine the substance of

the fifteen listed acts, decisions or notifications.

21. Every one of the nine acts listed from paragraph (f) to (n) is undoubtedly connected directly or indirectly with the asylum

process. Paragraphs (a), (b) and (c) concern the deportation order, the Minister’s notification of his intention to make one, or the

reasons for his conclusions on representations made concerning a deportation order. While, in practice, the vast majority of

deportation orders are probably made at the end of the asylum process, a deportation may, in principle, be made also in connection

with the expulsion from the State of persons who have not sought asylum. Section 3(1) of the Immigration Act 1999 empowers the

Minister to make a deportation order so as to “require any non-national specified in the order to leave the State within such period as

may be specified in the order and to remain thereafter out of the State.” Section 3(2) lists the following particular cases:

“(a) a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State,

(b) a person whose deportation has been recommended by a court in the State before which such person was indicted for

or charged with any crime or offence,

(g) a person to whom leave to land in the State has been refused,

(h) a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing

in or entering into or leave to stay in the State,

(i) a person whose deportation would, in the opinion of the Minister, be conducive to the common good.”

22. Paragraphs (g) and (h) of s. 3(2) of the Act of 1999 relate to the general power to refuse permission to land. They are also

referred to in paragraphs (d) and (dd) of s. 5(1) of the Act of 2000. Section 4 of the Immigration Act 2004 lays down procedures

whereby non-nationals are either authorised to land in the State or are refused such authorisation. Those coming by air or sea must

present themselves to an immigration officer. Section 4(3) permits an immigration officer to refuse permission to land for a wide

variety of reasons. These include the applicant’s inability to support himself, having been convicted of an offence attracting a penalty

of imprisonment for a year or more, suffering from any one of a number of conditions listed in a schedule and (paragraph (j)) “that the

non-national's entry into, or presence in, the State could pose a threat to national security or be contrary to public policy.” Article 5

of the Aliens Order 1946 (S.I. No. 395 of 1946) gives a separate but much more limited power to an immigration officer to permit a

person, there described as an alien, (now more usually described as a non-national) to land. Leave to land under that provision may

“not be given to an alien coming from any place outside the State other than Great Britain or Northern Ireland…”

23. A fair summary of the scope of application of s. 5 and, in particular, of the fourteen-day time limit, which is at issue, is that, while

the vast majority of cases affected by it in practice are likely to concern failed asylum seekers, the provision applies in principle to

the entire ambit of the State’s exercise of control over its borders. It is not merely the case that the State retains the power to

control the entry of non-nationals other than asylum seekers. Article 4.2 TEU recognises that “national security remains the sole

responsibility of each Member State.” Thus the retained exclusive power of the State, as a matter of principle, includes matters

concerning national security. Moreover, the right to refuse entry may specifically be motivated by concerns to exclude persons whose

entry into the State or whose presence in the State is perceived as presenting a threat to the safety or security of national

residents.

24. What then are the essentials of the case law of the Court of Justice? The fundamental task of the national court is to afford to

those claiming rights under EU law protection equivalent to claims under national law and the Court of Justice specifically leaves it to

the national court, subject to the general guidance provided by that Court, to assess equivalence. In the distribution of competence

between the European Court and the national court, it is only the latter which may pass judgment on the effect of a national law.

25. The Court first laid down the proposition in rather general terms in two cases decided on 16th December 1976, namely Comet v

Produktschap and Rewe-Zentralfinanz v Landwirstchaftkammer Saarland, both cited above. Both cases concerned actions, the first in

the Netherlands, the second in Germany, for the recovery of amounts wrongly levied by way of charges equivalent to customs duties.

Each was met with reliance by the state defendant on a limitation period under national law. While the Court had no objection in

principle to the application of limitation periods and, in the absence of any harmonised Community rules, the claims to recovery had to

be “exercised before the national courts in accordance with the conditions laid down by national law.” (Rewe-Zentralfinanz case

paragraph 5), it held that “the procedural conditions governing the action may not be less favourable than those relating to similar

actions of a domestic nature.” (ibid., paragraph 6). The relevant passage from that judgment is quoted by Murray J at paragraph 27

of his judgment. In the Comet case, the Court referred to rules “governing the same right of action on an internal matter.” (paragraph

19 of judgment).

26. Case C-326/96 Levez v T. H. Jennings [1998] ECR 1-7835 concerned a limitation period applied to an employment claim based on

unequal payments made to a woman compared to a man in the same employment. English law applied a two-year limitation period, s.

2(5) of the Equal Pay Act 1970, to claims based on unequal treatment but not to other claims in the field of employment law, such as

breach of contract, racial discrimination in pay and others. The Court did not find the two year limitation period to be “in itself open to

criticism.” (paragraph 20). It reiterated the statement of the principle it had adopted in Comet and Rewe-Zentralfinanz.

27. It was highly material to the claim in Levez, so far as effectiveness was concerned, that the employer had deceived the claimant:

she did not know that the man who had held the post in question before her had been paid more until more than two years had

elapsed from the beginning of the period of discrimination. Since there was no power to extend the time even in such a case of

deceit, the Court was of the view that the national rule manifestly breached the principle of effectiveness insofar as the relevant part

of her claim was concerned. (paragraphs 32 to 34 of the judgment.)

28. The Court considered separately the applicability of the principle of equivalence. It gave the following guidance regarding

differences between procedures available in English law, (omitting citations):

“39. In principle, it is for the national courts to ascertain whether the procedural rules intended to ensure that the rights

derived by individuals from Community law are safeguarded under national law comply with the principle of equivalence…….

40. However, the Court can provide the national court with guidance as to the interpretation of Community law, which

may be of use to it in undertaking such an assessment.

41. The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement

alleged is of Community law or national law, where the purpose and cause of action are similar…

42. However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all

actions brought, like the main action in the present case, in the field of employment law………

43. In order to determine whether the principle of equivalence has been complied with in the present case, the national

court — which alone has direct knowledge of the procedural rules governing actions in the field of employment law must

consider both the purpose and the essential characteristics of allegedly similar domestic actions

44. Furthermore, whenever it falls to be determined whether a procedural rule of national law is less favourable than those

governing similar domestic actions, the national court must take into account the role played by that provision in the

procedure as a whole, as well as the operation and any special features of that procedure before the different national

courts……” (Emphasis added).

29. The analysis by the Court of the provisions of UK law is important. Firstly, it noted the UK government’s argument that the Equal

Pay Act 1970, even though it had been passed prior to UK accession to the then European Economic Community, was the domestic

legislation which gave effect to the Community principle of non-discrimination on grounds of sex in relation to pay, as required by

what was then Article 119 of the EC Treaty. The Court did not accept that the fact that the same procedural rules applied to claims

under Community law and domestic law was sufficient to ensure compliance with the principle of equivalence. This was because “one

and the same form of action [was] involved.” (Paragraph 47 of the judgment). In other words, the claim was based on discrimination

on the grounds of sex, prohibited by Community law. The fact that national law provided a remedy for infringement of that principle

did not mean that the claim had a separate existence under national law. It was the same claim. It was necessary, in the view of the

Court, to assess equivalence in the light of other possibilities available in English law, insofar as these were disclosed in the order for

reference. Specifically, the Court noted that “claims similar to those based on the Act may include those linked to breach of contract

of employment, to discrimination in terms of pay on grounds of race, to unlawful deductions from wages or to sex discrimination in

matters other than pay.” (paragraph 49). In effect, it was possible for a similar claim to that of the claimant to be brought before the

County Court which would have the power to decide “whether the first-mentioned form of action is governed by procedural rules or

other requirements which are less favourable.” (paragraph 50). It remained a matter for the national court to determine whether the

rules were equivalent.

30. It was crucial to the conclusion which the Court reached at paragraph 47 of its judgment that the two-year limitation period in

English law, though applying in one sense to a claim in domestic law and to one based on Community law, was being applied to a claim

based on discrimination in pay. In truth the two claims were “one and the same form of action…” The Court cited, with approval, the

Opinion of Advocate General Léger, who had conducted an in-depth analysis of the topic. His opinion is, therefore, particularly helpful.

It considers in some detail what aspects of national rules should be compared when applying the principle of equivalence.

31. Firstly, he rejects the argument advanced by the UK that the section of its equal pay act treated Community and domestic

actions in an equivalent fashion. He says, at paragraph 47 of the Opinion, that the actions “are not merely similar…..: their scope is

identical. That is to say they amount to one and the same form of action…” This statement, as I have said, was adopted by the

Court at paragraph 47 of its judgment.

32. Secondly, the Advocate General rejects a UK attempt to rely on the existence of similar rules affecting actions seeking to enforce

the principle of equal treatment for men and women across the board in other fields of law such as Social Security law. His reasoning

is the same: the claim is based on Community and domestic law are essentially the same:” the relevant right is always one and the

same-- a Community right which has been transposed into domestic law.”

33. Thirdly, he rejects a submission from the French Government and the Commission that the comparison should be with claims based

on race discrimination. He considered this to be too broad as being likely to inform all branches of the law.

34. Fourthly, he addresses the claim of Mrs Levez. He considered that her claim to have been the victim of discrimination had been

established. She was seeking a specific remedy, payment of arrears of salary. There could be other reasons why an employee would

be entitled to claim arrears of remuneration. It was those other circumstances which would provide the most appropriate

comparators. In short, he chose “similar claims for salary arrears, arising in the field of employment law” as the most appropriate

situation for comparison.

35. The core of the Levez decision is as follows. The argument of the United Kingdom government that the time limit laid down by the

(English) Equal Pay Act 1970 applied to all equal pay claims, whether based on UK or Community law were the same was deeply

flawed. The English Act was the law by which the UK gave effect to the principle of equal pay laid down by the Treaty (then Article

119 of the EC Treaty). Thus there was nothing to compare. As the Advocate General put it, the claims were “one and the same.”

36. The Court took the opportunity to restate its Levez analysis in its judgment in Case 78/98 Preston v Wolverhampton Healthcare

NHS Trust and others [2000] ECR I-3201. The case concerned a time limit affecting claims by part-time workers to gain access to

occupational pension schemes. The House of Lords order referring a number of questions predated the delivery of judgment in Levez.

Two of these questions are relevant to the present issues.

37. The first of these deals with the subject-matter of the comparison. The House of Lords asked the Court to specify the “relevant

criteria for determining whether another right of action in domestic law is a domestic action similar to the right under Article 119.” The

Court restated its ruling in Levez as follows:

“55. The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement

alleged is of Community law or national law, where the purpose and cause of action are similar..

56. In order to determine whether the principle of equivalence has been complied with in the present case, the national

court-- which alone has direct knowledge of the procedural rules governing actions in the field of employment law-- must

consider both the purpose and the essential characteristics of allegedly similar domestic actions…” (emphasis added)

38. In the second of these questions, the House of Lords asked the Court to specify “the relevant criteria under Community law for

determining whether the procedural rules governing the similar claim or claims are more favourable than the procedural rules which

govern the enforcement of the right under Article 119.” Such comparisons should be more straightforward. Regard must be had, the

Court said, to the “relevant guidance as to the interpretation of Community law given in Levez.” It continued:

“60. Thus, in paragraph 51 [of Levez], the Court stated that the principle of equivalence would be infringed if a person

relying on a rights conferred by Community law were forced to incur additional costs and delay by comparison with a

claimant whose action was based solely on domestic law.

61. More generally, it observed that whenever it failed to be determined whether a procedural provision of national law

was less favourable than those governing similar domestic actions, the court must take into account the role played by

that provision in the procedure as a whole, as well as the operation and any specific features of that procedure before a

different national courts…

62. It follows that the various aspects of the procedural rules cannot be examined in isolation but must be placed in the

general context. Moreover, such an examination may not be carried out subjectively by reference to circumstances of

fact but must involve an objective comparison, in the abstract, of the procedural rule is at issue.

63. In the view of the foregoing, the answer… must be that in order to decide whether procedural rules at issue are

equivalent, the national court must verify objectively, in the abstract, whether the rules at issue are similar taking into

account the role played by those rules in the proceeds as a whole, as well as the operation of that procedure and any

special feature of those reasons. ”

39. The Court has maintained these principles in the two subsequent decisions to which the parties have referred mainly Case C-

63/08 Pontin v T-Comalux S.A. [2009] ECR I-10467 and Case 246/09 Bulicke v Deutsche Buro Service GmbH [2010] ECR I-7003. There

was an unusual problem in Pontin. The Luxembourg did not agree with the version of Luxembourg law given by the national court in its

order for reference. Basically, a female employee dismissed during pregnancy had the right to apply within fifteen days to the

president of the court having jurisdiction for an order annulling her dismissal. Luxembourg also gave a general right to claim

compensation for wrongful dismissal within three months. The national court referred questions to the Court of Justice on the premiss

that failure to invoke that right deprived the employee of the right to claim under the general provision. The Luxembourg Government

said that this was a misstatement of the national law. Certainly, no provision to that effect is cited in the account of national law as

it appears in the judgment. The Court of Justice followed its constant principle that it had to take the national law from the referring

court. On that basis, there could scarcely have been any doubt that there was a blatant difference in treatment in Luxembourg law

between female employees maintaining a claim based on the relevant EU Directive and those claiming generally under national

employment law. The Court, while carefully acknowledging that it was a matter for the national court to decide, clearly took the view

that if the rules were what they appeared to be “at first sight,” there would be a breach of the principle of equivalence. The

judgment in Pontin, nonetheless, contains a helpful observation on the question of what should be regarded as a similar actions (see

paragraph 55):

“With regard… to whether the principle of equivalence is complied with in the present case, it is apparent from the order

of a reference that both actions in employment law matters mentioned by the referring court, that is to say, an action for

damages and an action available in the event of dismissal on account of marriage, appear at first sight to be comparable

to an action for nullity and reinstatement. As stated in paragraph 45 above, it is for the national court to determine

whether this is so as regards their purpose, cause of action and essential characteristics.”

40. Bulicke concerned the application in German law of the provisions of Council Directive 2000/78/EC of 27 November 2000

establishing a general framework for equal treatment in employment and occupation. The German implementing law included a two-

month time limit within which a claim had to be made in writing addressed to the employer. If the employer rejected the claim, the

applicant had a period of three months to bring proceedings before a Labour court. The standard limitation period in German law was

three years. The applicant, who was aged 41, complained that she had applied unsuccessfully for a job, which was given to two

persons aged 20 and 22. She brought her action before the Regional Labour Court, which dismissed her action on the ground that she

had not submitted her claim to the employer within the stipulated two-month period. That court referred a question of interpretation

to the Court of Justice concerning whether the time limit infringed the Directive, stating expressly that the “three-year limitation

periods ally to equivalent claims under national law.”

41. The Court, in its judgment in Bulicke, repeated, at paragraph 28, that it is “for the national court, which alone has direct

knowledge of the procedural rules governing actions in the field of employment, to consider both the purpose and the characteristics

of allegedly similar domestic actions…” (emphasis added). The Court also noted the view which had been expressed by the national

court that, in the absence o a binding collective agreement, “no limitation periods apply in employment law other than general

limitation periods.” (paragraph 31) The Court observed, at paragraph 34, that:

“It does not appear that a provision such as Paragraph 15(4) of the AGG, which provides that that a victim of

discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination for

compensation for pecuniary or non-pecuniary damage within two months, is less favourable than provisions concerning

similar domestic actions in employment law. It is, however, for the national court to determine whether the procedural

time-limits referred to by the Arbeitsgericht Hamburg in its judgment of 10 December 2008 are comparable time-limits.”

42. Finally, it is worth noting that the Court considered that neither the primary law of the European Union nor the Directive precluded

the adoption of a national procedural rule such as the two-month time limit, subject to the proviso that the “time-limit is not less

favourable than that applicable to similar domestic actions in employment law..” (Emphasis added)

43. As it happens, the main bulk of the case-law which has been debated on the appeal arises in the field of employment law. The

exercise has been useful. It gives certain coherence to the application of the principles. It seems clear that the Court of Justice

considers that observance of the principle of equivalence should be considered by reference to the field or subject-matter of law

concerned. It is also useful to refer briefly to some cases outside the field of employment law. In 1997 and 1998, the Court of Justice

gave judgment on three references, one from Denmark and two from Italy concerning time limits imposed by national law on the

recovery of charges unduly levied contrary to Article 10 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on

the raising of capital. In Joined Cases C-71/91 and C-178/91 Ponente Carni SpA and Cispadana Costruzioni SpA v Amministrazione

delle Finanze dello Stato, [1993] ECR 1-1915, the Court had held that the Directive prohibited the collection of annual charges for the

registration of capital companies. A number of claims for recovery of improperly collected charges ensued. Case 188/95 Fantask

[1997] ECR 1-6820 was one. A number of companies in Denmark claimed recovery of charges unduly levied but were met with a five-

year limitation period under Danish law. The Court, at paragraph 49, rules rather briefly that it was “apparent that the period applies

without distinction to actions based on Community law and those based on national law.” The judgment had noted, at paragraph 43

that, according to the order for reference, the limitation applied to “the right to recovery of a whole range of debts…” The Court

delivered judgment in two Italian references on 15th September 1998. They were Joined Cases C-279/ 96, C-280/96 and C-281/ 96

Ansaldo Energia SpA [1998] ECR 1-5025 and Case 231/96 Edis [1998] ECR 1-4951. Ansaldo concerned a less favourable rate of

interest applied to recovery from the state as compared with actions between individuals. Edis concerned the application of a three-

year time limit to claims for recovery against the State compared with a general ten-year limitation period. The Court saw no problem

with differentiation of this kind. In Edis, at paragraph 37, it held:

“Thus, Community law does not preclude the legislation of a Member State from laying down, alongside a limitation period

applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special

detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges

and other levies. The position would be different only if those detailed rules applied solely to actions based on Community

law for the repayment of such charges or levies.”

44. The Court, therefore, saw the essence of equivalence in being whether similar claims based on national law were treated more

favourably than claims based on what was then Community law. There was no lack of equivalence in making a distinction between

claims against private individuals or entities, on the one hand, and claims against the State, on the other. However, the time limit for

claims against the state must not offend the principle of equivalence. In considering that, the Court noted the position in Italian law

as being:

“…the time-limit a tissue applies not only to repayment of the contested registration charge but also to that of all

governmental charges of that kind. Moreover, according to information provided by the Italian Government and not

disputed, a similar time-limit also applies to actions for repayment of certain indirect taxes. Nor does it appear from the

wording of the provision at issue that it applies only to actions based on Community law.”

45. Finally, and importantly, the Court, in each case indicated that the assessment of equivalence was to be considered “with regard

to the same kind of charges or dues…” In Edis the Court held, at paragraph 36:

“Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without

distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with

respect to the same kind of charges or dues…”

46. It ruled to the same effect, mutatis mutandis, at paragraph 29 of its judgment in Ansaldo.

47. The continuing need to have regard to the actual subject-matter of a claim can be seen from a more recent judgment in Case C

93/12 ET Agrokonsulting-04-Velko Stoyanov (judgment of 27th June 2013, not yet reported) on a reference from a Bulgarian court.

The case concerned which of two national rules concerning jurisdiction of national courts applied to claims for payments under the

common agricultural policy. A farmer based in an area some 250 km from Sofia applied for aid under the single area payment scheme,

which was refused by a decision of the responsible authority. Under the general Code of Administrative Procedure in Bulgaria, all

proceedings concerning administrative acts fell to the jurisdiction of the court where the authority which had adopted the contested

act had its seat. This meant, in fact, the capital (Sofia) which could be a long way from the land in question. On the other hand, the

law on ownership and use of agricultural land assigned jurisdiction to the court of the place where the land was situated. It is, of

course, a constant theme of the case law that it is for the domestic legal system of each Member State to designate the courts and

tribunals having jurisdiction. According to the referring court, which clearly had sympathy for the applicant, the collection of

evidence, the production of experts’ reports and the inspection of properties, which are often hundreds of kilometres from the city of

Sofia, are liable to mean that claims are liable to be delayed and rendered more costly, which would adversely affect access to the

courts for farmers, described by the referring court as a ‘vulnerable social group.’ It referred a question asking the ECJ whether this

situation infringed the principle of equivalence. However, the Court of Justice, while carefully following its practice of leaving the final

decision to the national court, took the view that the administrative acts adopted on the basis of the land law were closely linked to

rights in rem over immovable property including, inter alia, acts relating to the restitution of property rights or the use of agricultural

land, to the provision of compensation to owners of property and to activities concerned with the maintenance of the cadastral map

of the agricultural land over which ownership has been restored. The Code of Administrative Procedure, on the other hand laid down a

national jurisdiction rule which applied generally to actions brought against administrative acts, including those relating to direct

payments to farmers under the single area payment scheme. The Court thought that the rules were not comparable for the purposes

of the application of the principle of equivalence.

48. We are required, accordingly, by the case law of the Court of Justice to consider the matter in the light of the “purpose,” the

“cause of action” and the “essential characteristics” of the claim at issue and, in that light, to consider any equivalent claims or

cause of action. As it happens, several of the principal cases, other than the earliest ones of Rewe-Zentralfinanz and Comet, which

have been cited, have been in the area of employment law. Advocate General Léger in Levez singled out the relief claimed, namely

payment of arrears of salary rather than the ground of complaint, namely non-discrimination, as the criterion for comparison. The

Court has tended to look for a broad definition of the subject matter. It emerges, particularly from Preston, that there is a distinction

to be drawn between the nature of the claim, in the sense of its subject matter, on the one hand, and the characteristics of the legal

remedy or cause of action, on the other. One looks at the first in order to determine what are similar claims or causes of action. The

Court, in the four cases of Preston, Levez, Pontin and Bulicke, seems clearly to identify employment law as the field in which the

comparative exercise is to be performed. In the three cases of Fantask, Edis and Ansaldo, the Court speaks of actions with regard to

“the same kind of charges or dues.” In ET Agrokonsulting, the Court did not regard claims regarding ownership of land as comparable

to actions contesting administrative acts generally. It seems clear that the court must consider the substantive area of law

concerned, the nature and scope of the relief claimed and the grounds of the claim. This enables a similar claim or cause of action to

be identified. Having done so, the court carries out the comparison exercise, in order to decide whether there is lack of equivalence.

For that purpose, the court must consider the nature and effectiveness of the remedy provided, any limitation period, the expense of

the procedure and any other procedural rules. In other words, the similarity of causes of action is not determined by the nature of the

remedy claimed.

49. I turn then to the judgment of Hogan J in the present case. In a crucial passage, at paragraph 26 of his judgment, he said:

“Of course, in one sense, the principle of equivalence is satisfied in that s. 5 applies to all (or, perhaps, it would be more

accurate to say, nearly all) applications for judicial review of decisions taken in the asylum process, irrespective of

whether the basis for the challenge rests on domestic or European law grounds. But it would seem from cases such as

Pontin and Bulicke that a national court is required to take a broader view of what constitutes equivalence for this

purpose and that the comparison must also be made with other broadly similar actions in the sphere of judicial review:

see, by analogy, e.g., paras. 55-59 of Pontin and para. 34 of Bulicke.”

50. I regret to say that, with great respect, I do not share this method of analysis. It concentrates on the nature of the cause of

action itself, judicial review, rather than the underlying subject-matter of the claim. The essential subject-matter of the causes of

action listed in s.5 (1) of the 2000 Act is the control by the State of entry into or remaining on its territory by persons from other

countries. As I have analysed the scope of s.5 (1) above, it includes decisions which fall within the scope of EU law as well as

decisions which concern only issues of purely national law. In fact the learned judge says that the provision applies to “applications

for judicial review of decisions taken in the asylum process, irrespective of whether the basis for the challenge rests on domestic or

European law grounds.” No doubt, it is conceivable that an asylum decision might be contested on a ground based on national law. It

would be open to national law to provide for more generous protection of asylum seekers than required. In reality, however, such

challenges are likely to attract the Levez description, that the are “one and the same.” It is clear that all asylum decisions now fall

within the scope of EU law. More importantly, however, the learned judge appears to have overlooked the fact that s. 5(1) includes

within its scope decisions which are not, in any sense, connected with the asylum process. That is crucial. If it were the case that s.

5(1) was simply concerned with decisions taken in the asylum process, the Levez analysis would apply. The right under EU law and

under national law would be the same.

51. The learned judge quite rightly draws attention to the general time limit for judicial review under O. 84, r. 21(1) of the Rules of the

Superior Courts, namely six months (since reduced to three months) for certiorari. I could see a plausible argument for treating the

matter by reference to that limit and I will return to it.

52. However, Hogan J, in fact, opts for comparison with other time limits. He refers to what he describes as “other statutory schemes

regulating aspects of the judicial review procedure in specific subject areas [which] have been governed by a general two months (or,

in some instances, an eight week) time limit: see, e.g., s. 87(10) of the Environmental Protection Agency Act 1992; s. 50(8) of the

Planning and Development Act 2000 (as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006).” His

ultimate conclusion is that:

“The appropriate comparator for s.5 of the 2000 Act is not, perhaps, the easiest to find, but in the light of the purpose

and essential characteristics of legislation prescribing limitation periods in judicial review matters, I think that the eight

week time limit in planning and environmental matters is probably the most appropriate.”

53. He immediately adds, quite correctly, that “asylum matters are a world away from that of planning and development law.” The

reason he gives for taking the time limit under the Planning Act for comparison is that “the limitation periods share the following

characteristic, namely, an overwhelming interest in legal certainty and a desire to protect third parties who might be affected by the

invalidity of an administrative decision.”

54. With great respect to a very careful judgment, I regret to say that I believe the approach is mistaken. Having effectively

acknowledged, at an early point in his reasoning, the general applicability of s. 5(1) to all applications, whether based on EU or

domestic law, for judicial review of asylum decisions (which I take the liberty of correcting to read all immigration decisions or

decisions controlling the entry of persons onto the national territory), the learned judge does not return to any consideration of the

underlying subject-matter of the decisions. Rather, he chooses to define the subject matter by reference to the limitation periods

themselves. The determining characteristic for what is a similar claim is not the subject-matter of the decision to be challenged, the

area of law in which it takes place or the ground of complaint. It is the “overwhelming interest in legal certainty and a desire to

protect third parties who might be affected by the invalidity of an administrative decision.” The justification for the limitation period

becomes the criterion for judging similarity. In my view, that is an incomplete system of analysis.

55. The appellant has referred the Court to an obiter dictum contained in its decision in McNamara v An Bord Pleanála [1998] 3 I.R.

453. In that case, there had been an unsuccessful application in the High Court for judicial review of a decision of An Bord Pleanála to

grant planning permission. The High Court judge had declined to grant the certificate which is necessary under the planning legislation

before an appeal can be brought to this Court. As the decision to refuse a certificate was not itself appealable, the appeal was

dismissed. However, the appellant had argued that the limitation on the right to appeal was itself contrary to what was then

Community law, on the grounds that it infringed the principle of equivalence. Keane J, as he then was, delivered a judgment with

which all members of the court agreed. He dealt with the matter as follows:

“There is a further difficulty in the path of the applicant. I am satisfied that no question of European Union law has been

identified in the present case which could, in any event, have properly been the subject of a reference, either by the High

Court or this Court, for a preliminary ruling pursuant to Article 177. Counsel on behalf of the applicant submitted that the

imposition of the two months time limit meant that the national procedural rules applicable to the raising of a European

Union law point were less favourable than those governing domestic actions or, alternatively, rendered it virtually

impossible or excessively difficult to exercise the rights conferred by European Union law. He urged that this was in breach

of the decisions of the Court of Justice in Peterbroeck v. Belgian State (Case C-312/93) [1995] E.C.R. I-4599 and Van

Schijndel and Van Veen v. SPF (Joined Cases C-430/93 and C-431/93) [1995] E.C.R. I-4705.

“That submission is clearly unsustainable. The time limit imposed by s. 82(3A) of the Act of 1963, as amended by s. 19(3)

of the Act of 1992, is applicable to all proceedings in which a person seeks to question the validity of decisions to grant

planning permissions, whether the challenge is based on domestic law or European Union law or a combination of both.

Cases involving questions of European Union law are thus not treated in any sense less favourably and, while the time

limit applicable is undoubtedly inflexible, it cannot be seriously contended that it renders the assertion of rights under

European Union law "virtually impossible" or "excessively difficult.”

56. That statement of Keane J does not, of course, constitute a binding precedent. For the reason given, it was an obiter dictum.

Moreover, it would not, in any event, be binding if the court were of the view that it was obliged to conclude that the time limit

imposed by s. 5(1) of the 2000 Act, in fact, infringed EU law: in that situation the Court would accord precedence to EU law.

Nonetheless, like any statement from that eminent authority, it carries considerable persuasive force. In a situation in which the Court

of Justice has repeatedly stated that it is only the national court, having the necessary knowledge of national law, which can pass

judgment on whether a particular national provision infringes the principle of equivalence, it is helpful to consider the reasoning of any

national judge on an analogous provision. The point made by Keane J about the two-month limitation period, as it then existed, was

that it applied to all challenges to planning decisions, whether the ground of challenge was based on EU law or domestic law. It was

not like the situation in Levez, where the national and EU-law claims were identical, an allegation of discrimination in pay between

men and women.

57. In the final analysis, it falls to this Court to pass judgment. It must decide whether the fourteen-day time limit discriminates

impermissibly against EU claims, in effect claims of asylum seekers. The Court acts in the capacity of a court applying the shared

body of law of the European Union. The Court of Justice is conscious of and respects the autonomy and diversity of legal systems in

the Member States. Only the national court is in a position to understand and appreciate the multitudes of national rules and

jurisdictions and how they relate to and affect each other. This Court, as the national court applying EU law, must conscientiously

give full effect to the principles laid down by the Court of Justice, but, in performing that duty, it applies its own special knowledge of

the national legal system.

58. The Court must determine whether the fourteen-day time limit infringes the principle of equivalence by treating claims based on

EU law less favourably than equivalent or similar claims based on national law. Quite obviously, the fourteen-day limit is more exacting

and less favourable than the six-month limit (now three months) which applies generally to applications for judicial review. The answer

to the question comes down essentially to whether the relevant national law, i.e., s. 5(1) of the Act of 2000 picks out a list of

subjects of claim under EU law which must be brought within a special period of fourteen days, which is shorter than the period

applied to equivalent claims under national law.

59. I would interpret the references by the Court of Justice to cause of action and special characteristics as referring to the subject-

matter of claims. When referring to judicial review, the subject-matter could be broadly defined so as to encompass all claims for

review of administrative decisions of every type or it could relate to the underlying subject-matter of the decisions which may be

challenged.

60. The decisions of the Court of Justice do not make any distinction on these grounds. The Court must, it is clear, take a broad view

and examine the system in its entirety. The subject-matter of an application for judicial review is related to both the underlying area

of law to which the decision relates, whether it be employment, planning, immigration or anything else and the relief sought in the

claim, such as certiorari of an administrative decision. Judicial review concerns both the decision under challenge and whatever the

decision is about.

61. It is easy, at one level to show lack of equivalent treatment. An asylum decision is subject to the fourteen-day limit and a

challenge to any administrative decision, where no special limit is laid down, was six months at the relevant time. But that analysis is

insufficient and is not required by EU law. As the Court of Justice has repeatedly stated, (see, in particular paragraph 42 of Levez,

cited above), national law is not required to accord its most favourable time limits to EU-law claims. Regard must be had to the

essential nature of the subject-matter of the claim.

62. The Court should look at the substance of the rule whose compatibility is under scrutiny to see whether it is discriminatory. One

looks at its essential scope and area of operation. This brings us back to s. 5(1) of the Act of 2000. I am satisfied that s. 5(1) covers

all decisions related to immigration and the entry or refusal of entry of non-nationals into the national territory of the State, whether

those decisions are based on EU law or not. (In fact, decisions to refuse subsidiary protected are not included, but that accords more

favourable treatment to an EU law claim and does not affect the analysis). While it is true that asylum decisions concern important

and fundamental rights of those affected, the same can be said of decisions, made by national authorities outside the scope of EU

law. Those decisions also concern the fundamanental rights of those affected. In addition they relate to the fundamental right and

duty of the State to police its own frontiers.

63. It is my opinion that s. 5(1) of the Act of 2000 applies without distinction both to claims based on EU law and to those made

under national law. Consequently, s. 5(2) of the same Act does not discriminate between claims based on EU law and those based on

national law. It does not infringe the principle of equivalence. In this respect, I disagree with the view of the learned trial judge.

64. Finally, it is necessary to consider whether the Court should make a reference for preliminary ruling to the Court of Justice

pursuant to Art 267 TFEU. That Article provides in relevant part that:

“Where any such question is raised before any court or tribunal of a Member State against whose decisions there is no

remedy under national law, that court or tribunal shall bring the matter before the Court.”

65. Finally, I do not consider that there is any need, and thus there is no obligation on this Court, to refer any question of

interpretation to the Court of Justice pursuant to the provisions of Article 267 of the Treaty on the Functioning of the European

Union. The principles governing the exercise by the national courts of their application of the principle of equivalence have been

clearly laid down in the very well settled case law of the Court of Justice. The present appeal raises no new issue of interpretation of

any provision of EU law. It requires the application of established principles to an Act of the Oireachtas. Moreover, it is abundantly

clear that it is for the national court to form its own judgement as to whether the national rules infringe the principle for the very

reason that only that court has the capacity to know and understand the operation of the national rules within the context of the

system as a whole.

66. I would allow the appeal, set aside the order of the High Court and dismiss the application for judicial review.