The plaintiff’s wife, a French national, lived and worked in the State between 1999 and the end of 2004, and the plaintiff resided here throughout that period and beyond. In 2007, the plaintiff applied for permanent residence pursuant to art.16 of Directive 2004/38/EC and reg.12 of the Irish implementing regulations, the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (S.I. No. 656/2006).
The Minister refused this application on two principal grounds. First, the plaintiff’s wife had left the State in December, 2004. Under the then-current regime the plaintiff had no further right of residence, and he was refused an extension of leave to reside in 2005. That gave rise to a question whether it was possible for him, as a person whose presence was not authorised at the time, to acquire rights on the coming into force of the new Directive and domestic regulations in 2006. Second, the plaintiff and his wife had, as a matter of fact, separated and were not living together before she left. In the Minister’s view, that raised the question whether he could be said, as a matter of law, to have been legally residing with her either before or after her departure.
If the correct view had been taken of the plaintiff’s application it would have been clear that he was entitled to permanent residence and was therefore entitled to continue to work without the need to obtain a work permit. The plaintiff was dismissed by his employer in October 2007 because he did not have a work permit.
After the decision in Secretary of State for Work and Pensions v Lassal (Case C-162/09)  E.C.R. I-9217, the Minister undertook to review the plaintiff’s application for permanent residence and in November 2011, he was granted permanent residency.
The plaintiff subsequently initiated proceedings claiming damages for breach of European Union law and for breach of constitutional rights.
The High Court (Hogan J.) decided to refer certain questions to the Court of Justice of the European Union (see  IEHC 133). After receipt of that court’s ruling, Hogan J. held that the plaintiff was entitled to damages for loss suffered by reason of the failure on the part of the State to properly implement the Directive (2014] IEHC 582;  1 I.L.R.M. 344). He also awarded damages in respect of the dismissal on the basis that it constituted a breach of the plaintiff’s constitutional right to a good name.
This decision was overturned in its entirety by the Court of Appeal ( IECA 46;  1 I.L.R.M. 504). The Court of Appeal considered that the conditions for the jurisdiction to award damages for failure to implement EU measures had not been met. In finding that the breach by the State was not sufficiently serious, the Court ruled that the mistake had been honest and excusable, and found that the Directive had not been sufficiently clear and precise to give rise to liability for the error in interpretation. The Court of Appeal further held that there was no applicable national legal principle under which the plaintiff was entitled to damages.
By determination dated 16 June, 2016, (see  IESCDET 66) the plaintiff was granted leave to appeal to the Supreme Court on the following issues:
- Whether an honest and excusable misunderstanding on the part of the State officials as to the requirements of a Directive is a significant factor in considering whether or not the breach of the Directive was serious.
- Whether a person who has suffered damage as a result of the incorrect transposition of a Directive in this State is entitled to claim damages under domestic law, or is confined to the criteria established by the Court of Justice of the European Union in Francovich and Brasserie du Pêcheur.
- Whether the finding that the failure of the State to implement the Directive correctly did not give rise to damages under the principles set out in Francovich and Brasserie du Pêcheurnecessarily entailed a finding that the plaintiff had no right to damages under domestic law, including under the Constitution.
- Whether the plaintiff, as a person who was dismissed because of the application to him of regulations which failed to properly implement the Directive, had any remedy under domestic law.e. Whether the obligation to mitigate loss can require a person in the plaintiff’s position to accept an unwritten offer of employment.
The Supreme Court dismissed the appeal. O’Malley J. delivered the judgment of the court, noting that State liability for loss and damage caused by infringements of EU law for which the State could be held responsible was inherent in the system of the Treaty. It was noted that the right to reparation arose when three conditions were met: the rule of law infringed must be intended to confer rights on individuals; the infringement must be sufficiently serious; and there must be a direct causal link between the breach of the obligation and the damage sustained by the injured party.
In respect of the second condition, O’Malley J. noted that the decisive test for finding that an infringement of EU law was sufficiently serious was whether the member state concerned “manifestly and gravely disregarded the limits of its discretion”. The standard was not as high as that required for the establishment of misfeasance in public office, since that concept was inconceivable in the case of a legislature. To impose that standard would, in practice, make it impossible or extremely difficult to obtain reparation for a breach where it was attributable to a national legislature. It was held that the factors which the competent court may take into consideration included the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law. O’Malley J. also held that good faith on the part of officials was relevant to the extent that a finding of improper motivation would probably be decisive as against the State. However, good faith and honest misapprehension could not be sufficient to excuse the State from liability in an appropriate case. Similarly, a mistake as to the true meaning of a legal measure might be shared with the authorities of one or more other member states, and yet, objectively, be clearly wrong.
Applying this test in the instant case, O’Malley J. held that the applicant was not entitled to Francovich damages. Furthermore, it was held that while it was possible, depending on the facts of a given case, that a breach of EU law could as a matter of fact be accompanied by features giving rise to independent claims under Irish law, what could not be done was to find a free-standing right to damages under national law where the Francovich criteria were not satisfied, if the wrong done was a wrong under EU law. The latter was a separate legal order, with autonomous concepts that must be applied uniformly throughout the Union.
Decision: Appeal dismissed.