COURT PROCEEDINGS -- REFERENCE BY THE IRISH HIGH COURT TO THE COURT OF JUSTICE OF THE EUROPEAN UNION
The Shareholder Applicants in the proceedings challenging the July 2011 Ex Parte Direction Order claim that the seven consistent preliminary rulings of the CJEU between May 1991 and December 2008 (as delineated in the Legal Arguments tab), which constitute the current EU law jurisprudence, which was in force at the time of the making of the July 2011 Ex Parte Direction Order, render the Direction Order incompatible with EU law, because they prohibited in July 2011 breach of the relevant provisions of the Second Company Law Directive and the respective actions of the Minister.
The High Court has determined in its judgment of 15 August 2014 in the said court proceedings challenging the legality of the July 2011 Ex Parte Direction Order (Neutral Citation:  IEHC 418, paragraphs 40.36 and 41.1) that:
- “it can certainly be said that there is support both for the view that this body of jurisprudence [of EU law on the Second Company Law Directive] prohibits breach of the Second Company Law Directive and for the view that the cases would be decided differently in the light of current circumstances and the existence of CIWUD.”
Importantly, the proceedings challenging the July 2011 Ex Parte Direction Order are in respect of actions of the Irish Minister for Finance in July 2011. In this regard, the Irish High Court has acknowledged the pertinence in this case of the current CJEU jurisprudence on the Second Company Law Directive, i.e. that this body of jurisprudence prohibits breach of the Second Company Law Directive. At the same time, the Irish High Court has found support for the view that the CJEU would decide the relevant case law (i.e. the aforementioned seven consistent preliminary rulings of the CJEU between May 1991 and December 2008) differently at present in the light of current circumstances and the existence of CIWUD.
- In light of those findings, the Irish High Court has determined “that it is not in a position to say definitively whether the Court of Justice [of the European Union] would resile from, qualify or affirm the jurisprudence outlined above on the [Second Company Law] Directive. This being a central issue in the case, the determination of which is necessary to the decision of the court, [the High Court] propose[s] to seek a preliminary ruling from the Court of Justice [of the European Union] pursuant to Article 267 of the Treaty [on the Functioning of the European Union].”
Thus, in effect, the Irish High Court has decided to refer questions to the CJEU for a preliminary ruling pursuant to Article 267 TFEU as to whether the CJEU would retroactively resile from or qualify its relevant current jurisprudence on the Second Company Law Directive which, pursuant to the comprehensive CJEU case law, was in force at the time of the making of the July 2011 Ex Parte Direction Order. In this regard, it is important to bear in mind that the answer of the CJEU must enable the national court to give judgment in the dispute. Thus, it is clear that if the CJEU resiles from or qualifies its jurisprudence on the Second Company Law Directive, it would have to do so with a retroactive effect in order to enable the Irish High Court to give judgment regarding the legality of the July 2011 Ex Parte Direction Order. This is further reinforced in this particular case because the Irish High Court has referred questions to the CJEU that are highly specific to what occurred in July 2011.
Breaches of the Second Company Law Directive are prohibited unless the CJEU retroactively changes its comprehensive and consistent jurisprudence
Notably, the very existence of the said reference to the CJEU makes it clear that, following an inter partes hearing, the Irish High Court has not been able to uphold the legality, i.e. the compatibility with EU law, of the actions of the Irish Minister for Finance in respect of the July 2011 Direction Order, having regard to the principle of proportionality of EU law (as applied to actions of Member States). This is in the context of the fact that the said Direction Order was made without any inter partes hearing and without any opportunity whatsoever for the PTSB GH shareholders to be heard on 26 July 2011 by the court through which the ex parte Direction Order was effected by the Minister. What follows is that the July 2011 Direction Order plainly would not have been made on 26 July 2011 in the terms in which it was made, if there had been an opportunity of an inter partes hearing on that day. The inter partes hearing would have necessitated at the very least the reference to the CJEU pursuant to Article 267 of the Treaty on the Functioning of the European Union (the "TFEU").
Furthermore, what follows from the above-mentioned judgment of the Irish High Court of 15 August 2014 is that, unless the CJEU retroactively resiles from or qualifies its current jurisprudence, the current jurisprudence of EU law prohibited breach of the Second Company Law Directive regarding the July 2011 Ex Parte Direction Order, and, ipso facto, the respective rights of the Shareholder Applicants in the July 2011 Ex Parte Direction Order Proceedings (and indeed of all the other 135,000 original shareholders in PTSB GH) must be fully protected until (unless) the current comprehensive and consistent CJEU jurisprudence on the Second Company Law Directive is retroactively changed by the CJEU (following the said reference from the Irish High Court pursuant to Article 267 TFEU).
The principle of legal certainty of EU law means that the current jurisprudence of EU law is fully in force until the CJEU or an act of the European Union Parliament changes the jurisprudence.
In fact, based on the CJEU case law, in order for the CJEU to retroactively resile from or qualify its own jurisprudence on EU law, with the result of retroactively meaningfully changing the scope of rights and obligations under EU law, the CJEU would have to disregard / set aside, inter alia, the principle of legal certainty, which is one of fundamental general principles of EU law.
Furthermore, if the CJEU retroactively resiled from or qualified its jurisprudence on the Second Company Law Directive in respect of measures such as the Ex Parte Direction Order of July 2011, it would have to do so despite the subsequent unqualified reaffirmation of that jurisprudence by the recast of the Second Company Law Directive by the European Parliament in October 2012.
As far as the past and present are concerned, based on the CJEU case law, the aforesaid comprehensive CJEU jurisprudence on the Second Company Law Directive has been - and continues to be - unequivocally legally binding in respect of PTSB GH and its shareholders. Rules of EU law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force (cf. the CJEU case 106/77 Amministrazione delle finanze dello Stato v Simmenthal SpA  ECR 629, paragraph 14). Furthermore, the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which, in the case of a directive intended to confer rights on individuals, persons concerned must be enabled to ascertain the full extent of their rights (cf. the CJEU case C-197/96 Commission v. France, paragraph 15).
Certain aspects of the the above matters continue to be subject of further court proceedings.
PTSB Shareholders Oppose Breaches of EU Law by the Irish Minister for Finance