Ogieriakhi v Minister for Justice and Others (No. 2)


Respondent/Defendant:Minister for Justice and Equality, Ireland, Attorney General and An Post
Court/s:High Court
Citation/s:[2014] IEHC 582
Nature of Proceedings:First instance
Judgment Date/s:22 Dec 2014
Judge:Hogan J.
Category:Employment, EU Treaty Rights, Residence
Keywords:Employee, Employer, Employment, EU Treaty Rights, First instance, Free Movement, Residence
Country of Origin:Nigeria / Ireland (naturalised Irish citizen)
Geographic Focus:Ireland

The plaintiff was a naturalised Irish citizen of Nigerian origin. In October, 2007, he was dismissed from his employment as a postal sorter with An Post on the sole ground that he could not establish at the time to the satisfaction of his employer that he had the right to work in Ireland.

In High Court proceedings for damages for breach of his rights under the Citizens’ Directive (Directive 2004/38/EC), he claimed that he had acquired the status of permanent resident under Article 16 of that Directive, which Ireland had purported to transpose by the EC (Free Movement of Persons)(No. 2) Regulations 2006. This was, he said, by virtue of his marriage to a French national, who had been employed in the State between the years 1999 to 2004. The marriage had broken up in or around 2001/2002. He then entered into a relationship with an Irish woman. He and his French wife divorced in January, 2009 and he married the Irish woman later that year.

The High Court (Hogan J.) decided to refer a number of questions to the Court of Justice of the European Union (CJEU) in the proceedings pursuant to Article 267 TFEU. By decision of the 10th July, 2014, the CJEU ruled in the plaintiff’s favour so far as the proper interpretation of Article 16(2) of the 2004 Directive was concerned: see C-244/13 Ogieriakhi. It stated:-

“Article 16(2) of Directive 2004/38/EC…must be interpreted as meaning that a third-country national who, during a continuous period of five years before the transposition date for that directive, has resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded as having acquired a right of permanent residence under that provision, even though, during that period, the spouses decided to separate and commenced residing with other partners, and the home occupied by that national was no longer provided or made available by his spouse with Union citizenship.”

The High Court held that, in the light of the ruling, the State had failed properly to apply EU law, because the plaintiff had been wrongly refused residency up to and including the 30th April, 2006, being the date upon which the Directive had come into force. It held that, as the plaintiff had been previously married to an EU national for the period of five years in respect of which she had exercised her free movement rights in the State, he had become entitled to permanent residency in the State.

The plaintiff then sued the State in the instant proceedings in a Francovich-style action for damages claiming that it had failed properly to transpose the provisions of the Directive into domestic law or else to apply its provisions in a manner compatible with EU law.

The High Court decided to award him damages.

The High Court noted that the CJEU had summarised the requirements to succeed in a Francovich-style claim, namely:-

  1. the rule of law infringed must be intended to confer rights on individuals;
  2. the infringement must be sufficiently serious; and
  3. there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties;

As regards the second condition, after stating that the decisive test for finding that an infringement of EU law is sufficiently serious is whether the Member State concerned manifestly and gravely disregarded the limits of its discretion, the Court indicated that the criteria which national courts may take into account include the degree of clarity and precision of the rule infringed.

The High Court held that right of residence under Article 16(2) was personal to the third-country national, and that the first condition was accordingly satisfied. It also held that the second condition was satisfied, for the breach of Article 16(2) which took place was a very serious one with grave consequences for the plaintiff. It was not satisfied that the interpretation placed on the Directive was excusable having regard to its recitals and operative provisions. The third condition was satisfied too, in that there was a causal link between the breach of EU law and the damage suffered by him. He had been dismissed from his employment simply because it could not be established that he had the right to work or reside in the State, and the reason why his entitlement to reside in it was not acknowledged was entirely attributable to the Minister’s incorrect interpretation of the scope of application of Article 16(2) of the 2004 Directive, namely that periods of five year residency completed prior to the 30th April 2006 simply did not count for that purpose.

The court therefore concluded that the plaintiff was entitled to damages.

Turning to the question of their quantum, it estimated on the basis of the evidence before it that his gross loss over the six year period was €133,944. It accepted that he had a duty to mitigate his loss. It noted that he had received an offer from his former employer to re-engage him once an appropriate vacancy arose, and that he had acted unreasonably in doing so. However, it held that the offer ought to have been made in writing so as to assess the terms upon which he might have been re-engaged. It also noted that he had sought re-engagement in 2011 following the decision of the CJEU in C-162/09 Lassal which showed that Article 16 of the Directive had retroactive effect. It considered that the invalidity of his dismissal as amounting to a breach of EU law was manifest in the light of that decision and that the failure of his former employer to redress the wrong occasioned by it could not be objectively defended. It held that it was therefore inappropriate to impose a reduction on his damages for his failure to mitigate from the date of the decision in Lassal. It therefore assessed his damages as €107,905.00, subject to the payment by him of appropriate income tax and fiscal charges.

Turning to his claim for damages for breach of his constitutional rights, the court held that his dismissal from his employment brought about by operation of law clearly engaged the protection of the property rights protected by Article 40.3.2. However, it held that the Francovich remedy provided him with effective and adequate protection of the property rights in question and represented an adequate and just compensation for the wrongful interference with them.

The court held, however, that he was entitled, in the special circumstances of the case, to sue directly for damages for breach of his constitutional right to a good name under Article 40.3.2, as the ordinary common law rules regarding claims for damages for breach of contract following the wrongful dismissal from employment would be “basically ineffective” to protect and to vindicate that right. It decided to award him the sum of €20,000 under that heading.

The court therefore decided that the plaintiff was entitled to damages for breach of his EU and constitutional rights.


In order to bring a damages claim against a Member State like Ireland for breach of EU law under the European Court of Justice’s (ECJ) 1991 decision in Francovich, the breach must be sufficiently serious. In deciding whether or not this is so, the court must determine whether or not the Member State concerned manifestly and gravely disregarded the limits of its discretion. In examining that question, the criteria which national courts may take into account include the degree of clarity and precision of the rule infringed. In general, any loss incurred as a result of a breach must be mitigated. Where loss has occurred due to breach of property rights, Francovich provides an adequate remedy and it is not necessary to compensate the injured party by reference to the property rights provisions of the Constitution of 1937. Nonetheless, recourse to other remedies, such as constitutional protection of the right to one’s good name, may be relevant and obtainable in a given case.

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