Opinion of the Advocate General — ECLI:EU:C:2018:698
Date: 2018-09-11
Language of the case: English
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Grand Chamber), 4 December 2018 EU law — Primacy — Conflicting national law — Equal treatment in employment and occupation — National body established by law in order to ensure enforcement of EU law in that area — No jurisdiction to decide to disapply national legislation that conflicts with EU law — Not permissible (Council Directive 2000/78) EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a national body established by law in order to ensure enforcement of EU law in a particular area lacks jurisdiction to decide to disapply a rule of national law that is contrary to EU law. The Member States have the task of designating the courts and/or institutions empowered to review the validity of a national provision, and of prescribing the legal remedies and the procedures for contesting its validity and, where the action is well founded, for striking it down and, as the case may be, determining the effects of such striking down. On the other hand, in accordance with the Court’s settled case-law, the primacy of EU law means that the national courts called upon, in the exercise of their jurisdiction, to apply provisions of EU law must be under a duty to give full effect to those provisions, if necessary refusing of their own motion to apply any conflicting provision of national law, and without requesting or awaiting the prior setting aside of that provision of national law by legislative or other constitutional means (see, to that effect, judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraphs 17, 21 and 24, and of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 46 and the case-law cited). Against that background, if the Workplace Relations Commission, as a body upon which the national legislature has conferred the power to ensure enforcement of the principle — as given concrete expression by Directive 2000/78 and the Equality Acts — of non-discrimination in respect of employment and occupation, has before it a dispute involving observance of that principle, the principle of primacy of EU law requires it to provide, within the framework of that power, the legal protection which individuals derive from EU law and to ensure that EU law is fully effective, disapplying, if need be, any provision of national legislation that may be contrary thereto (see, to that effect, judgments of 22 November 2005, Mangold, C‑144/04, EU:C:2005:709, paragraph 77; of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 53; and of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 35). If a body such as the Workplace Relations Commission, entrusted by law with the task of ensuring that the obligations stemming from the implementation of Directive 2000/78 are implemented and complied with, were unable to find that a national provision is contrary to that directive and, consequently, were unable to decide to disapply that provision, the EU rules in the area of equality in employment and occupation would be rendered less effective (see, to that effect, judgment of 9 September 2003, CIF, C‑198/01, EU:C:2003:430, paragraph 50). (see paras 34, 35, 45, 48, 52, operative part)