Facts: SA and RJ sought international protection in Ireland in mid-February and mid-March 2023. On lodging their applications, they were not provided with accommodation and they each spent over two months homeless. They were provided with vouchers and charities provided food and access to sanitary facilities. At the end of March, the Daily Expenses Allowance (€38.80 for an adult) was made available to homeless applicants. The applicants could also obtain an Additional Needs Payment. In bringing this case, the applicants sought a claim for damages in the High Court. The two cases were test cases for a group of 50 similar cases.
The State accepted that it did not meet the applicants’ entitlement to accommodation under the European Communities (Reception Conditions) Regulations 2018 and it accepted that a declaration of a breach of the applicants’ rights was appropriate. However, the claims for damages was opposed by the State as the failure to provide accommodation arose from force majeure circumstances of saturation of available accommodation due to an unforeseeable and unexpected increase in Ukrainian refugees and international protection applicants.
Reasoning: In the High Court, in assessing the claim for damages and the State’s defence of force majeure, the Court first examined the Francovich test. This test sets out the requirements for damages to be awarded against a State for a breach of EU law. The Court reviewed EU case law on situations of force majeure and highlighted how it is understood differently depending on the legal context in which it operates, with differing formulations of the parameters. The case law is nonetheless consistent in the requirement that force majeure can only arise in relation to an abnormal and unforeseeable circumstance outside the control of the party relying on the defence, with some differences in the limits of the defence. Generally, the CJEU has taken a strict approach to the availability of the defence.
The High Court recognised that the recast Reception Conditions Directive 2013/33/EU does not expressly provide for a defence of force majeure where the state has failed to provide material reception conditions, indeed, providing reception conditions is mandatory. Even where a force majeure defence could be available in principle, the question remained as to whether it could be used where inviolable rights under the Charter of Fundamental Rights of the EU are concerned, in this case, Article 1 on human dignity. Furthermore, that the parameters for such a defence are unclear.
Decision: The High Court held that the situation was not acte claire in EU law and stayed proceedings. A preliminary reference was referred to the CJEU.
