FIFTH SECTION
DECISION
Application no. 57551/17
Ewaen Fred OGIERIAKHI
against Ireland
The European Court of Human Rights (Fifth Section), sitting on 30 April 2019 as a Committee composed of:
Ganna Yudkivska, President,
Siofra O’Leary,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 5 August 2017,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ewaen Fred Ogieriakhi, is an Irish national, who was born in 1970 and lives in Castledermot.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and as established in the domestic courts’ judgments, may be summarised as follows.
1. The background to the present application
1. The applicant, then a Nigerian national, arrived in Ireland in May 1998 and claimed asylum. In May 1999 he married Ms G., a French national, who was then residing and working in Ireland. Following his marriage he withdrew the asylum application and obtained a resident permit for the period from 11 October 1999 to 11 October 2000, which was renewed, on request, until 11 October 2004.
2. In late 2001 or by early 2002 at the latest the relationship broke down. According to the facts as outlined in the 2014 judgment of the High Court (see paragraph 23 below), the applicant left the marital home at that time in order to make a new life with Ms M., an Irish national, with whom he had a child, born in 2003.
3. In its 2014 judgment in a preliminary reference in a case concerning Mr Ogieriakhi which is detailed further below, the Court of Justice of the European Union (CJEU), indicated that:
“For all but one month of the period from October 1999 to October 2004, [Ms G.] was either working or receiving social security payments that were subject to the condition that she looked for a job.”
Ms G. returned to her Member State of origin, France, in December 2004.
4. The applicant and Ms G. were divorced in January 2009 and the applicant married Ms M. in July the same year.
2. The applicant’s first application for a residence permit
5. In September 2004 the applicant applied for renewal of his residence permit. That application was refused on 3 November 2004 by the Irish authorities on the ground that the applicant was unable to show that, during the relevant period, Ms G. had been exercising her rights under EU law by working or residing in Ireland.
6. This decision was quashed by a judgment of the High Court dated 11 March 2005. It rejected the applicant’s argument in that case that he was entitled to a permanent right of residence, holding instead that he enjoyed a right, as the non-EU spouse of an EU national, which was derivative and contingent in nature. It also rejected the applicant’s request for a declaration that he was entitled to renewal of his residence permit as, according to the High Court, it had no conclusive evidence before it that the conditions of Article 10 of Regulation no. 1612/68 (see further paragraph 29 below) were met. However, it found that there had been an absence of procedural fairness in the decision taken by the Minister and it therefore quashed that decision refusing renewal of his residence permit and remitted it to be determined by the Minister in accordance with law. There is no indication in the case file that the Minister appealed this judgment.
7. A further decision refusing the applicant residence was taken by the Minister on 13 April 2005, following the return of the applicant’s spouse to France. It does not appear from the file that this decision was challenged.
8. A first claim by the applicant for damages under EU and domestic law in respect of the refusal of residence of 3 November 2004 was rejected by the High Court on 9 May 2007. In that judgment, the High Court judge found that:
“There is no evidence either that the State engaged in breach of Community law in which it persisted despite the existence of a judgment establishing an infringement or by way of preliminary ruling or settled case-law.”
3. The applicant’s second application for a residence permit
9. On 11 March 2007, after the deadline had passed for the transposition into national law of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77), the applicant applied thereunder for permanent residence in Ireland on the ground that he had completed a continuous period of legal residence of five years – from 1999 to 2004 – as a result of his marriage to Ms G. during that period.
10. That application for a right to permanent residence was refused on 19 September 2007 by the Minister for Justice and Equality who considered that the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006) (the “2006 Regulations”), which transposed Directive 2004/38 into Irish law (see paragraphs 39 to 42 below), granted a right of permanent residence on the basis of a continuous five year period up to and including 30 April 2006 (the date of transposition of the directive), but not in respect of a five year period which had expired, as in the applicant’s case, prior to that date.
11. On 26 September 2007, the applicant contested the decision refusing him permanent residence in judicial review proceedings before the High Court. It appears that the Minister undertook not to proceed with the making of a deportation order pending the outcome of the judicial review proceedings. The High Court dismissed the action on 25 January 2008 on the ground that the 2006 Regulations did not apply to residency which pre-dated their entry into force. No appeal was taken at the time against that decision (see further paragraph 18 below regarding the challenge to this decision later introduced by the applicant).
4. The applicant’s dismissal from An Post
12. Meanwhile, the applicant, who was employed by An Post (the State postal service), was dismissed on 24 October 2007 on the grounds that he no longer had a work permit. The letter of dismissal indicated that An Post would be prepared to re-employ the applicant should he obtain a work permit.
13. The applicant initiated proceedings in the Employment Appeals Tribunal for unfair dismissal. On the morning of the hearing on 4 April 2008 the applicant was informed that the Minister had decided to offer him permission to remain in Ireland for a period of three years, an offer confirmed in writing on 8 April. This was based on the fact that the applicant was the father of a child who was an Irish citizen, was in a stable relationship with the mother and had been in the State for a substantial period of time. The High Court later found as a matter of fact in its judgment of 22 December 2014 (see paragraph 23 below) that when the tribunal hearing resumed on 27 June 2008, An Post indicated that its offer of re-employment remained open. The applicant however refused this offer on the basis that he wished to establish a business of his own.
14. The Employment Appeals Tribunal delivered its decision on 14 July 2008, finding that, as the applicant had not established a legal entitlement to work on the date of his dismissal, it followed that the dismissal was lawful. The applicant did not appeal this decision.
15. It appears from the domestic court decisions that the applicant’s business venture did not prosper and that, seeking work in the context of an acute economic downturn, he had difficulty finding alternative employment.
5. The Lassal judgment and subsequent developments regarding the applicant’s status
16. In 2010, in a judgment in the Lassal case, a preliminary reference procedure on the interpretation of Article 16 of Directive 2004/38 (C‑162/09, EU:C:2010:592), the CJEU held that residence prior to the entry into force of that directive may, in principle, be regarded as meeting the criterion of a continuous period of residence of five years.
17. Following that judgment, the applicant wrote to An Post in February 2011 contending that the decision to terminate his employment had been unlawful and calling on the company to make appropriate reparation.
18. The applicant also sought an extension from the Supreme Court of the time to appeal the High Court decision of 25 January 2008 (see paragraph 11 above), which extension was refused by the Supreme Court on 18 February 2011.
19. However, the Minister for Justice and Equality agreed to review his earlier decision in light of the Lassal judgment. Pending his decision, the applicant’s leave to remain was renewed for a further period of three years. The applicant was granted a permanent right of residence on 7 November 2011.
20. The following year, on 31 August 2012, the applicant was granted Irish citizenship by naturalisation on the basis of his marriage to an Irish national.
6. Proceedings for damages for breach of EU law
21. The applicant brought an action for damages before the High Court in January 2012 in order to obtain compensation for the damage suffered as a result of an alleged failure to transpose Directive 2004/38 correctly into national law. In particular, that action was based on the losses sustained because of the termination of his employment contract on 24 October 2007 on the ground that he no longer had a right of residence in Ireland.
22. The High Court decided to stay those proceedings and referred questions to the CJEU relating to EU free movement law and actions for damages for breach of EU law (see Ogieriakhi v. Minister for Justice and Equality and Others, C-244/13, EU:C:2014:2068, and at paragraph 36 below).
23. Following the CJEU’s ruling in the preliminary reference procedure, on 22 December 2014 the High Court found in the applicant’s favour and awarded him financial compensation for six years of lost earnings and an additional sum on the basis that the applicant’s dismissal amounted to a breach of his constitutional right to a good name ([2014] IEHC 582). This compensation was awarded on the basis of the criteria for Member State liability for failure to transpose, correctly or at all, EU law, often referred to as Francovich liability (see further paragraph 37 below), which criteria the High Court considered were fulfilled. Damages were also awarded on the basis of breach of the applicant’s constitutional right to a good name under Article 40.3.2 of the Constitution (see further paragraph 38 below).
7. Court of Appeal
24. On 26 February 2016, the decision of the High Court was overturned by the Court of Appeal which recognised that there was no question that the Irish authorities had initially mistakenly interpreted Directive 2004/38 ([2016] IECA 46). However, the Court of Appeal considered that the conditions for the award of damages had not been met as the breach of EU law by the State was not sufficiently serious, was an honest and excusable mistake, and the directive had not been sufficiently clear and precise to give rise to liability. The President of that Court held, in conclusion:
“[...] the High Court judgment on the breach of Union law cannot stand. The principle expressed by the [CJEU] in Brasserie [joined Cases C-46/93 and C-48/93, EU:C:1996:79] and the earlier and later cases is clear and it goes back to Francovich where it was first expounded. The court has held that the objectives of the treaties require that there should be a jurisdiction of this kind. The principle of liability is not that an inadvertent error in transposition of a Directive gives rise to a right of action for a person affected. But that is the test that the trial judge in effect applied. Although the judge identified and cited the correct rules as laid down by the [CJEU], he actually applied an entirely different criterion.”
25. The Court of Appeal also found that the High Court had been wrong to invent a constitutional tort or remedy in the circumstances of this case (see, in particular, paragraphs 37, 40, 43‑45 of the judgment of the Court of Appeal).
8. Supreme Court
26. The applicant was granted leave to appeal the Court of Appeal’s decision to the Supreme Court. In his original application for leave to appeal, the applicant requested the Supreme Court to make a second preliminary reference to the CJEU pursuant to Article 237 TFEU. On 13 July 2017, the Supreme Court upheld the decision of the Court of Appeal ([2017] IESC 52), confirming his failure to meet the conditions for Francovich damages under EU law (see paragraphs 102-105 of the Supreme Court judgment), observing in particular:
“[...] these issues gave rise to complex considerations that were not expressly covered by the terms of the Directive. While the rulings of the Court of Justice in Lassal and in this case are clearly determinative of the issues it cannot, in my opinion, be said that the answers to the questions were obvious, or that the Directive was so clear and precise as to render the error on the part of the State authorities “grave and manifest” or “inexcusable”. It is relevant to note that the Commission, in its correspondence and its communication to the Parliament, appears to have taken the position at least at some stage that, if the facts of the case were as they ultimately turned out to be, the appellant did not have a valid claim.
In my view, therefore, the criteria for liability for Francovich damages were not satisfied and the learned High Court judge was incorrect in this respect.”
27. Ms Justice O’Malley giving the lead judgment added, at paragraph 106:
“[...] I would simply add that even if the criteria for Francovich damages had been met, I do not believe that the award could have been upheld. The appellant was offered his job back at the Employment Appeals Tribunal hearing and the trial judge found that if he accepted the offer he would have been back in employment within one year of his dismissal.”
28. In relation to the award for constitutional damages (paragraphs 109‑112) she held:
“[...] the sole reason for the loss of the appellant’s employment was the incorrect interpretation of EU law by the Minister. Domestic law undoubtedly gives an individual in this position a right to apply to the courts for enforcement of the correct interpretation of that law. The national courts also have jurisdiction to determine whether, as a matter of EU law, damages can be awarded under EU law criteria. What cannot be done is to find a free-standing right to damages under national law where the Francovich criteria are not satisfied, if the wrong done is a wrong under EU law.”
B. Relevant EU law and practice
1. Directive 2004/38
29. Directive 2004/38, cited above, was adopted in 2004 with a view to remedying the sector-by-sector, piecemeal approach to the right of free movement and residence. The directive aimed to facilitate the exercise of this right by providing for a single legislative act to amend Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community and to repeal, inter alia, Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.
30. Article 1 (a) and (b) of the directive lays down the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members and the right of permanent residence of these persons in the territory of the Member States.
31. Article 2 (1) and (2) defines Union citizens and family members as follows:
“1. "Union citizen" means any person having the nationality of a Member State;
2. "Family member" means:
(a) the spouse; [...]”
32. Article 16 provides:
“1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years. [...]”
2. Selected judgments of the Court of Justice of the European Union (CJEU) on the interpretation of Article 16 of Directive 2004/38
33. In Lassal, cited above, the CJEU held that continuous periods of residence of five years which were completed before the date of transposition of Directive 2004/38, namely 30 April 2006, in accordance with earlier EU law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16 (1) of that directive. Ms Lassal, supported by the European Commission, had argued for this interpretation while Ireland, Belgium and the United Kingdom had argued that Article 16 (4) of the directive could not be relied upon by persons who left the host State prior to 30 April 2006.
34. In the case of Secretary of State for Work and Pensions v. Dias (C‑325/09, EU:C:2011:498), the CJEU held that Article 16 (1) and (4) of Directive 2004/38 must be interpreted as meaning that periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under Article 16 (1) of Directive 2004/38.
35. In Ziolkowski and Szeja v. Land Berlin (C-424/10 and C-425/10, EU:C:2011:866), the CJEU held that Article 16 (1) of Directive 2004/38 must be interpreted as meaning that an EU citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7 (1) of the directive.
36. In its preliminary ruling in Ogieriakhi, cited above, the CJEU held that the fact that Mr Ogieriakhi, during the period from 11 October 1999 to 11 October 2004, ceased to live with his spouse was irrelevant for the purposes of his acquisition of a right of permanent residence under Article 16 (2) of Directive 2004/38. Further, the CJEU held that Mr Ogieriakhi had not lost his status as a spouse of a Union citizen, as he had remained married until January 2009 in the Member State in which his spouse Ms G. exercised her right to free movement.
3. Francovich liability
37. Pursuant to EU law, failure by an EU Member State to implement a directive, or partial, incorrect or inadequate implementation, may give rise to state liability. The establishment of such state liability, which is often, as indicated above, referred to as Francovich liability, is dependent on several conditions developed in the case-law of the CJEU being fulfilled, namely: the rule of law which has been infringed must have been intended to confer rights on individuals; the breach must be sufficiently serious; and 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 (see Francovich and Others, C 6/90 and C 9/90, EU:C:1991:428; Brasserie du Pêcheur and Factortame, cited above; and Dillenkofer and others, joined cases C‑178/94, C-179/94, C-188/94, C-189/94 and C-190/94, EU:C:1996:375).
C. Relevant provisions of Irish law
1. The Irish Constitution
38. Article 40.3 of the Irish Constitution provides as follows:
“1o The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
2. The 2006 Regulations
39. The 2006 Regulations, cited above, came into force on 1 January 2007. Under the Regulations a spouse of a Union citizen is described as a “qualifying family member”.
40. Under Article 6 of the Regulations a Union citizen’s right to reside for longer than a period of three months is, in summary, contingent on the Union citizen (i) being in employment or self-employment; or (ii) having sufficient resources to support himself or herself and any accompanying spouse or dependants and having comprehensive sickness insurance; or (iii) being enrolled in an educational establishment and having comprehensive sickness insurance. The same provision entitles a family member of the Union citizen to reside in the State where the Union citizen fulfils the aforementioned conditions.
41. Under Article 9 of the Regulations, family members may retain a right to residence on an individual and personal basis in the event of the departure of the Union citizen provided they satisfy the same conditions as those applicable to a Union citizen wishing to remain in the State longer than three months. Similarly, under Article 10 of the Regulations a right of residence may be retained in the event of divorce or annulment of marriage, if inter alia it is shown that the marriage had lasted at least three years, including one year in the State.
42. Article 12 of the Regulations provides:
“(1) Subject to paragraph (3) and Regulation 13, a person to whom these Regulations apply who has resided in the State in conformity with these Regulations for a continuous period of 5 years may remain permanently in the State.
(2) For the purposes of paragraph (1), continuity of residence in the State shall not be affected by temporary absences not exceeding 6 months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of 12 consecutive months for important reasons such as childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
(3) The entitlement to remain permanently in the State pursuant to paragraph (1) shall cease to exist where the person concerned has been absent from the State for a period exceeding 2 consecutive years.”
COMPLAINTS
43. The applicant made several complaints under the heading of Article 6 of the Convention. He complained that the judgments of the Supreme Court and Court of Appeal had effectively overturned the judgment of the High Court of 11 March 2005 (see paragraph 6 above). He complained that the judgment of the Supreme Court called into question the finality of the CJEU’s decision in Ogieriakhi, cited above. He complained that An Post failed to put their offer made in June 2008 to re-employ him in writing (see paragraph 13 above). He also complained that the Supreme Court in its judgment of July 2017 failed to make a preliminary reference to the CJEU. Finally, the applicant complained under Article 6 in conjunction with Article 13 that the alleged failure of the domestic authorities to issue him with a permanent residence permit card following the CJEU’s decision in Ogieriakhi, cited above, constituted a violation of his right to an effective remedy.
44. Relying on Article 8 of the Convention, the applicant complained that the loss of his employment in 2007-2008 was an unjustified interference with his right to private life. In this regard, he argued that the termination of his employment, with the implication that he had been working illegally in the Respondent State, caused him distress and damaged his reputation. He also claimed under Article 14 that as a result of this interference with his right to private life under Article 8 he had been discriminated against in comparison with other Irish nationals and EU citizens.
45. Finally, the applicant complained under Article 1 Protocol No. 1 to the Convention that because his previous employer was downsizing its workforce and would not now re-employ him, he was entitled to voluntary redundancy and compensation under the Convention.
THE LAW
A. Preliminary observations
46. The Court considers that it is important, as a preliminary, to distinguish between two different sets of domestic legal proceedings relating to the applicant’s applications for a residence permit.
47. The first set of proceedings, outlined in paragraphs 5 to 8 above, relate to the refusal to renew the applicant’s residence permit in 2004. That request was based on the applicant’s marriage to an EU national residing in Ireland and was based principally on Article 10 of Regulation 1612/68, the secondary EU legislation then in force regulating the right to reside of family members of EU nationals who are not nationals of an EU Member State themselves. The Minister’s refusal to renew the applicant’s residence permit was quashed by a decision of the High Court of 11 March 2005 for lack of fair procedure and remitted to the Minister to be determined in accordance with law.
48. The second set of proceedings, outlined in paragraphs 9 to 11 above, relate to a separate and subsequent application by the applicant for a permanent right of residence pursuant to Article 16 of Directive 2004/38, as transposed into Irish law by the 2006 Regulations.
49. The distinction between these two sets of proceedings is outlined to the extent that it may be relevant for determining the admissibility of some or all of the applicant’s complaints.
B. General principles relating to the six month rule and the exhaustion of domestic remedies
50. As regards the six-month rule, the Court reiterates that it has a number of aims (see, among others, Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-42, 29 June 2012). Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. The rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible.
51. As regards the obligation to exhaust domestic remedies, the Court refers to its well-established case law as summarised, for instance, in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014.
52. According to that case-law, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his Convention grievances and to raise complaints intended to be made subsequently in Strasbourg to the appropriate domestic body, at least in substance, in compliance with the formal requirements and time-limits laid down in domestic law.
C. Complaints under Article 6 of the Convention
53. The Court observes that in his application for leave to appeal to the Supreme Court from the judgment of the Court of Appeal of February 2016, the applicant argued that the Court of Appeal failed to consider any of his Convention arguments in breach of his right to a fair hearing under Article 6 of the Convention.
54. Where an applicant has relied upon “rights and freedoms” guaranteed by the Convention in pleas before domestic courts, the courts are required to examine them with particular rigour and care (see Fabris v. France [GC], no. 16574/08, § 72, ECHR 2013 (extracts)). Failure to fulfil that obligation may in certain circumstances constitute a violation of Article 6 § 1 of the Convention (see for example Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 96, 28 June 2007).
55. However, the applicant has not raised this complaint before this Court. Instead, he has pursued several entirely different complaints under the heading of Article 6.
56. The applicant firstly claims that the Court of Appeal and the Supreme Court impermissibly overturned a previous decision of the High Court of 11 March 2005. According to the applicant, that 2005 judgment was subsequently reopened and questioned by the State in the High Court judgment of 5 March 2013, in which a preliminary ruling was requested of the CJEU. It was also called into question by the Supreme Court in its judgment of 13 July 2017. This, according to the applicant, violated his right to a fair hearing under Article 6 of the Convention.
57. The Court notes that the complaint was not raised at any stage in the domestic proceedings. In any event, this complaint appears to be based on a confusion between the legal question the subject of the first set of domestic proceedings – the fairness of ministerial decision-making when determining whether the applicant enjoyed a right of residence pursuant to Regulation no. 1612/68 then in force – and the legal question the subject of the second set of proceedings – the applicant’s right to permanent residence on the basis of the newly transposed Directive 2004/38 based on a five year period of residence which predated the transposition of that directive. When deciding the latter question – for all that the national courts may initially have erred in their interpretation of EU law – it is clear that they were not reopening the 2005 High Court judgment. They were simply resolving a different legal question pursuant to a different provision of EU law. Furthermore, as is clear from paragraph 6 above, in its 2005 judgment the High Court did not determine the question of the applicant’s residence entitlement; it remitted that question to the competent Minister. The 2005 judgment looked merely at the fairness of the procedure leading to the renewal of the applicant’s residence permit. The questions raised by the Supreme Court in paragraph 102 of its judgment (see paragraph 26 above) and criticised by the applicant were clearly questions of relevance to whether the conditions for Francovich liability were fulfilled, were ones which arose in the context of the developing case-law of the CJEU on Article 16 of Directive 2004/38 (see paragraphs 33 to 36 above), and had formed part of the reasons for the 2013 decision of the High Court to refer questions to the CJEU in relation to the applicant’s case. Accordingly, this part of the Article 6 complaint is manifestly ill-founded.
58. The applicant’s second Article 6 complaint hinges upon his contention that the Supreme Court – in finding that the applicant could not fulfil the conditions for Francovich liability for the reasons outlined in paragraph 103-105 of its judgment (see paragraph 26 above) – called into question the finality of the CJEU’s decision in Ogieriakhi. The argument is clearly misconceived; it seeks to conflate the different issues which the CJEU and Supreme Court were being asked to determine. As highlighted above, the questions raised by the Supreme Court in paragraph 102 of its judgment were clearly questions of relevance to whether the conditions for Francovich liability were fulfilled. The Supreme Court was not seeking to undermine the CJEU’s answers to the questions posed by the High Court in its 2013 judgment seeking a preliminary reference. Accordingly, the applicant’s complaint is manifestly ill-founded.
59. The applicant’s third complaint in relation to Article 6 concerns the alleged failure of his former employer to provide him with written reasons for its 2008 offer to re-employ him. The Court notes that the offer made by An Post in the course of the proceedings before the Employment Appeals Tribunal (see paragraph 13 above) was not relevant to the questions of law and fact concerning the fairness of the applicant’s dismissal. In the circumstances, the Court considers that the absence of written reasons was not decisive for the determination of the applicant’s civil rights within the meaning of Article 6 § 1. Accordingly, the complaint is incompatible ratione materiae with the Convention.
60. Finally, in relation to the applicant’s complaint under Article 6 that the Supreme Court refused to make a preliminary reference under Article 267 TFEU, it is important to recall that it is for the national courts to interpret and apply domestic law, if applicable in conformity with EU law, and to decide on whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. The Court reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court’s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, §§ 54-59 and Baydar v. the Netherlands, no. 55385/14, § 39, 24 April 2018).
61. In his application for leave to appeal to the Supreme Court, the applicant requested the Supreme Court to make a second preliminary reference to the CJEU (see paragraph 26 above). In the circumstances, the Court considers that the applicant has exhausted domestic remedies in respect of his complaint.
62. The Court recalls that where summary reasoning is employed by a domestic court to refuse a request for a preliminary ruling, this may be sufficient where it follows already from a conclusion reached in another part of the domestic judgment that a request to the CJEU for a preliminary ruling was redundant (Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 173, ECHR 2013 (extracts)). In the applicant’s case the High Court had already sought and received a preliminary ruling on questions of substantive EU free movement law and Francovich damages. It is clear from the 2017 judgment of the Supreme Court that that court was merely applying the relevant case-law to the applicant’s case. Even if the Supreme Court did not explicitly address the applicant’s request to return his case to the CJEU, this could not in the circumstances be considered arbitrary as it followed clearly from that court’s reasoning why it considered a second preliminary reference was not necessary. Therefore the applicant’s complaint must be rejected as manifestly ill-founded.
63. Having regard to the above considerations, to the extent that Article 6 applies and any reservations which the Court has regarding whether the applicant has fully exhausted remedies in respect of all his complaints under Article 6, the Court concludes that the applicant’s Article 6 complaints are nevertheless manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
64. As regards the applicant’s complaint under Article 13 in conjunction with Article 6 of the Convention, the Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that the applicant’s complaints under Article 6 are manifestly ill‑founded. For similar reasons, the applicant does not have an “arguable claim” and Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
D. The other complaints
1. Article 8 and Article 14 in conjunction with Article 8
65. The applicant’s complaint under Article 8 relates to the termination of his employment with An Post. The Court notes that the applicant challenged his dismissal before the Employment Appeal Tribunal, who found that the decision to dismiss him was lawful in the circumstances (see paragraph 14 above). The Court observes that the applicant did not appeal the tribunal’s decision. As a result, the applicant failed to fulfil his obligation under Article 35 § 1 of the Convention to pursue all domestic remedies in respect of his Article 8 complaint.
66. The Court also considers that the applicant’s complaint under Article 14 in conjunction with Article 8, which also focuses on the decision of An Post to terminate his employment, must be rejected for the same reason.
67. Accordingly, the applicant’s complaints under this heading must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
2. Article 1 of Protocol No. 1
68. As regards the applicant’s complaint pursuant to Article 1 of Protocol No. 1, the applicant argues that, since his former employer indicated in 2011 that it was not willing to re-instate him, not least because it was downsizing its workforce, he was entitled to voluntary redundancy under the relevant provisions of domestic law.
69. However, the applicant was dismissed by his former employer in October 2007, a dismissal found by the Employment Appeals Tribunal to have been lawful.
70. Given that the applicant lodged his application on 5 August 2017, it is clear that, leaving aside the question whether in 2011 the applicant was entitled to seek reinstatement, having refused an offer of reemployment in 2008, and whether he had exhausted domestic remedies in relation to such an alleged right, this complaint was lodged out of time.
71. Even assuming that the applicant could raise this complaint in the context of domestic proceedings in relation to Francovich damages and damages for breach of a constitutional right, such that the complaint could, in the context of the present proceedings, comply with the six month rule, the applicant never claimed, at any time, before the domestic courts that he was entitled to voluntary redundancy and compensation under the Convention.
72. In the circumstances, the Court considers that the applicant has failed to raise his Article 1 Protocol No.1 complaint in substance before the domestic courts. Accordingly, this complaint must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 May 2019.
Milan BlaškoGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy