High Court sets aside Labour Court determinations for errors of law regarding EWC rights and costs.

THE HIGH COURT

[2025] IEHC 628

[Record No. H-MCA 2024/493]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 46 OF THE WORKPLACE RELATIONS ACT 2015 BETWEEN JEAN-PHILLIPE CHARPENTIER APPELLANT AND VERIZON IRELAND LIMITED RESPONDENT AND THE LABOUR COURT NOTICE PARTY AND THE ATTORNEY GENERAL NOTICE PARTY JUDGMENT of Ms Justice Bolger dated this 14th day of November 2025

1. This is an appeal on a point of law arising from two determinations of the Labour Court, TID 241 and TID 242. The appellant seeks orders setting aside both determinations and orders against the respondent employer seeking the relief that had been sought from the Labour Court as well as the following declarations:

“6. If necessary, a Declaration that the provisions of section 17 and the Second Schedule of the Transnational Information and Consultation of Employees Act 1996, as amended, and specifically those provisions relating to the requirement to provide training and expert assistance to EWC’s, are incompatible with Directive 2009/38/EC.

9. If necessary, a Declaration that the inability of the Workplace Relations Commission and or the Labour Court to award EWC members their legal costs when seeking to apply the rights arising from the Directive and/or to represent the collective interests of the employee is incompatible with Directive 2009/38/EC.”

2. The appellant also asks this Court to make an Article 267 TFEU reference to the Court of Justice of the European Union (CJEU), if necessary. For the reasons set out in my judgment, I am satisfied that the law is sufficiently clear for this Court to determine the issues and therefore I do not consider it necessary or appropriate to make a reference to the CJEU.

3. I have found errors of law in the Labour Court’s determinations and I will hear counsel further on the appropriate orders that should be made arising from my decision set out below.

Formatting of the Labour Court determinations

4. Both determinations of the Labour Court run to several pages, TID 241 is 9 pages and TID 242 is 11 pages but neither have page or paragraph numbers. Not for the first time (Hanley v PBR Restaurants Ltd (Trading as Fish Shack Café) [2025] IEHC 224), it has been difficult for this Court to accurately refer to the locations of extracts from the determinations. For obvious reasons, this is unsatisfactory for an appellate court tasked with reviewing the determination, as well as for anyone who wishes to cite an identifiable extract from it. It is to be hoped that this easily rectifiable, important issue will be addressed by the Labour Court in its formatting of future determinations.

Background

5. Directive 2009/38/EC of 6 May 2009 (hereinafter referred to as “the Directive”) provides for the establishment of a European Works Council (hereinafter referred to as a “EWC”) to inform and consult employees in transnational operations. Ireland implemented the Directive by the Transnational Information and Consultation of Employees Act 1996 (hereinafter referred to as "TICEA"). The original Directive (94/45/EC) was the first adopted under the procedure contained in the Agreement on Social Policy annexed to Protocol 14 of the Maastricht Treaty and, thus, did not apply to the UK. This Directive was subsequently extended to the UK by Council Directive 97/74/EC, as a result of which, most EWCs migrated to the UK. That version was replaced in 2009 by the current Recast Directive. Following the withdrawal of the UK from the European Union, a number of multinational companies migrated their EWCs to Ireland. There is currently a proposal for an amendment to the Recast Directive, but this judgment only addresses the current law.

6. The appellant is the Chair of the EWC for Verizon Communications Inc., an American multinational telecommunications conglomerate. The appellant is employed by Verizon France SAS. The respondent is Verizon’s representative agent in the EU. In 2021, the respondent’s EWC was migrated to Ireland and in the absence of an agreement, a new EWC was established under the subsidiary requirements provided for under the Second Schedule to TICEA. The issues raised in this case are novel as it is the first time the TICEA and the Directive have been considered by the Irish courts and there is currently no jurisprudence from the CJEU on the Directive.

The status of EWCs in Irish law

7. EWCs are established throughout the EU pursuant to the national legislation implementing the Directive in each Member State, with some differences in how some Member States achieve the aims of the Directive. Unlike some of the other Member States, EWCs in Irish law do not have a separate legal personality. Because of that, the appellant brought a claim before the WRC in his capacity as chair of the EWC and was described by the Labour Court as having brought the complaint in "a representative capacity".

Relevant legislative provisions

8. The relevant provisions of the Directive, and the Preamble thereto, are as follows:

“Recital (33): "In order to perform their representative role fully and to ensure that the EWC is useful, employees ' representatives ... must be able to receive the training they require.”

(35): “The Member States must take appropriate measures in the event of failure to comply with the obligations laid down in this Directive.”

(36): “In accordance with the general principles of Community law, administrative or judicial procedures, as well as sanctions that are effective, dissuasive and proportionate in relation to the seriousness of the offence, should be applicable in cases of infringement of the obligations arising from this Directive.”

Article 9: “The central management and the EWC shall work in a spirit of cooperation with due regard to their reciprocal rights and obligations.”

Article 10.1: “… the member of the EWC shall have the means required to apply the rights arising from this Directive, to represent collectively the interests of the employees of the Community-scale undertaking or Communityscale group of undertakings.”

10.4: “In so far as this is necessary for the exercise of their representative duties in an international environment the members of ... the EWC shall be provided with training without loss of wages.”

11.2: "Member States shall provide for appropriate measures in the event of failure to comply with this Directive; in particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Directive to be enforced.”

Annex I (5): "The EWC or the select committee may be assisted by experts of its choice, in so far as this is necessary for it to carry out its tasks.

(6): "The operating expenses of the EWC shall be borne by the central management.

The central management concerned shall provide the members of the EWC with such financial and material resources as enable than to perform their duties in an appropriate manner.

In compliance with these principles, the Member States may lay down budgetary rules regarding the operation of the EWC. They may in particular limit funding to cover one expert only.

Sections 3(2) and 3(3) provide:

3(2): "A word or expression used in this Act that is also used in the Directive has, unless the context otherwise requires, the same meaning in this Act as it has in the Directive.”

3(3): “In construing a provision of this Act, a court shall give it a construction that will give effect to the Directive, and for that purpose the court shall have regard to the provisions of the Directive, including its preamble”

Sections 17(1A) and 17(6) provide:

17(1A): central management shall provide the members of the EWC […] with the means required to apply the rights arising from the Directive, to represent the collective interests of the employees of the Community-scale undertaking or Community-scale group of undertakings concerned.”

17(6): “Insofar as it is necessary for the exercise of their representative duties in a transnational setting, the members of [...] the EWC […] shall be provided with appropriate training by their employer without loss of wages.”

Section 17A provides:

"A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 17 shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not wellfounded,

(b) order the employer to take a specified course of action, or

(c) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.”

Section 17B provides:

"A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 17A, shall affirm, vary,' or set aside the decision of the adjudication officer.

Section 46 of the Workplace Relations Act 2015 provides for a further appeal to the High Court on a point of law.

The Second Schedule of the Act provides as follows at paragraph 6:

6(1): "The operating expenses of the EWC, including a select committee where one is established, shall be borne by the central management.”

6(2): "The central management concerned shall provide the EWC members with such financial and other resources as are necessary to enable them to perform their duties in an appropriate manner.”

6(4): "The funding of experts by the central management shall be limited to funding the equivalent of one expert per meeting.””

The appellant’s claim and appeal before the Labour Court: Determination TID

9. The EWC, through its select committee, of which the appellant is a member, engaged a body known as the EWC Academy and secured advice from a Dr Altmeyer of the Academy. An invoice of €11,200 was submitted to the respondent for payment but the respondent disputed the necessity and/or appropriateness of elements of the invoice. The appellant brought a complaint to the WRC pursuant to s. 17 TICEA and cited the Second Schedule TICEA seeking payment of the invoice from the respondent on the basis that it was an expense incurred by the EWC Select Committee.

10. The Workplace Adjudication Officer found in part favour of the appellant and directed payment of half of the amount due to the appellant as chair of the EWC to discharge part of the invoice. The appellant appealed to the Labour Court seeking payment of the full amount and also sought an order from the Labour Court in respect of the costs associated with bringing the proceedings. He argued before the Labour Court that reasonable legal fees incurred in prosecuting the appeal should be discharged by central management regardless of the outcome of the appeal, unless the complaints and any appeal therefrom were totally without merit or were frivolous and/or vexatious. He contended that once the EWC has examined the necessity of instructing lawyers from the perspective of a reasonable third party, the reasonable costs of conducting a legal dispute must, in principle, be borne by central management. The appellant’s written submissions to the Labour Court were set out in a letter dated 11 October 2023, in which the appellant sought “compensation in an amount to be quantified at the hearing”, relying on Article 10.1 of the Directive as transposed by Article 17(1A) of TICEA. The appellant also relied on preamble 36 of the Directive and Article

11.2 requiring Member States to provide for "appropriate measures" in the event of any failure to comply with the Directive. His arguments on legal costs were expanded upon in his Counsel’s oral submissions to the Labour Court who submitted that, because enforcement of the rights conferred by the Directive can only be dealt with in the final instance by the courts and given that the EWC has no financial resources of its own, central management must bear the reasonable legal costs necessarily and appropriately incurred by the EWC unless the complaints are considered to be totally without merit, or frivolous and/or vexatious. Counsel also relied on the EU principle of effectiveness and argued that not making any costs provision would be an effective deterrent to enforcing EWC members’ rights (transcript of the hearing before the Labour Court, 8 July 2024, at pp. 14 to 15).

11. The respondent did not dispute that the EWC was entitled to be assisted by experts of its choice and to be funded by central management for the procurement of necessary and reasonable expert assistance. However, it challenged the application of s. 17 to the appellant’s claim as it said the section only covered the protection of individuals and not collective rights such as those conferred by para. 6 of the Second Schedule on which the appellant relied in seeking the discharge of the invoice.

12. The Labour Court found that the appellant was acting in a representative capacity and that the issues raised were therefore collective and not particular to him as an individual. The Labour Court concluded, at the final page of its determination: - “Section 17, in the Court's view, is framed so as to afford statutory protection to individual members of EWCs qua individuals. It is not – and was not intended by the legislature – to be a means of progressing disputes that are collective in nature.

For this reason, the court finds that within appeal, being an appeal under section 17B from a decision of an Adjudication Officer under section 17A is not wellfounded. Having made this decision, the court does not regard it as necessary for it to examine each of the items in the disputed invoice to determine whether they relate to expert advises that were necessary and appropriate. The appeal fails and the decision of the Adjudication Officer is varied for the reasons set out above. The question of awarding the Complainant costs in respect of bringing the within proceedings is moot in circumstances where the Court has not upheld his appeal. The Complainant’s application for his costs is, accordingly, refused."

13. It is clear that written and oral submissions were made by the appellant to the Labour Court in relation to the Directive and in particular the transposition of Articles 10 and 11 by ss. 17 and 17A. Those submissions were addressed by the respondent in its written submissions to the Labour Court in particular at paragraph 20, where it submitted that the Directive “and its legislative history confirm that the ‘means required to apply the rights arising’ do not concern financial resources but legal capacity” and cited provisions of the Directive which it said supported its argument as well as a Eurofound study that had identified uncertainty in case law over the legal standing of EWCs.

14. Whilst the Labour Court referred in its summary of the appellant’s submissions to the appellant having relied on, inter alia, Article 10.1 of the Directive which the appellant had said was transposed by ss. 17, 17(1A) and the Second Schedule, the Labour Court did not cite any provision of the Directive or of EU law under its heading "Discussion and Decision" (although it did in TID 242). If one read that "Discussion and Decision" in isolation from the Labour Court’s summary of the appellant’s submissions, one would not have been made aware of the relevance of any EU Directive or any part of EU law to the decision the court had been asked to make.

15. Clearly the Labour Court did not consider that Article 10.1 of the Directive or the principle of effectiveness of EU law or the appellant’s submissions based thereon, merited any mention in either its discussion or its determination. It is as if the Labour Court was determining a claim based on national legislation alone without any regard to the Directive that the legislation was expressly intended to implement and without regard to the appellant's arguments based on the provisions of the Directive and related principles of European law. The appellant’s claim and appeal before the Labour Court: Determination TID 242

16. The respondent had arranged online training for EWC members in early 2021 (hereinafter referred to as "the May training"). The appellant wanted to attend a separate training event at the EWC Academy in Hamburg in September 2021. When he advised the respondent that he required funding to attend the Hamburg training, the respondent said it did not consider that to be necessary given the May training that the respondent had provided. The appellant attended the Hamburg training anyway and sought funding for it, which the respondent refused. The appellant brought a claim to the WRC, arguing that the respondent was obliged to pay for the Hamburg training pursuant to s. 17(6) of TICEA. The appellant also sought the costs of bringing the claim and relied on Article 10 of the Directive as transposed by s. 17(1A) as well as the principle of effectiveness of European law, i.e. similar arguments to those made in relation to his costs application in Determination TID 241, discussed above. The respondent contended that the Labour Court had no jurisdiction to award costs either under the Act or the Directive.

17. The Labour Court heard evidence from the appellant and a number of other witnesses about the May training and the Hamburg conference. The appellant criticised the May training for not having allowed questions, for not sharing the PowerPoint slides and the absence of training on confidentiality which he said was provided in the Hamburg training. The appellant said the Labour Court should draw inferences from the absence of evidence from either of the two persons who provided the May training. He relied on the objectives of the Directive that gave EWC members a right to receive appropriate training and cited the dictionary definition of "training", which he said was not satisfied by the May training. The respondent asserted that the May training was both appropriate and reasonable and relied on their engagement with the EWC, including the appellant, prior to the May training and on the absence of any objection from the EWC at that time or any complaints from them afterwards. The respondent also challenged the evidence given to the Labour Court by one of the appellant's witnesses because the respondent said that he was not an independent expert as he had been a co-speaker with the appellant at the Hamburg conference and was close to the EWC Academy and to the appellant and other persons associated with the EWC.

18. The Labour Court netted down the issues as follows: -

"(a) Did the online seminar organised by Central Management for the EWC Members in May 2021 constitute training?

(b) Was Management’s decision to refuse to fund the Complainant’s attendance at the EWC Academy conference in September 2021 unreasonable?

(c) Should the Respondent be directed by the Court to reimburse the Complainant for the costs associated with his attendance at the Hamburg Conference?

(d) How should decisions re EWC Members training needs be determined?

(e) Who bears the cost of such training?

(f) Should the Court make an award in respect of the costs of bringing the within proceedings in favour of the Complainant?”

19. In relation to (a) to (d), the Labour Court found that the respondent had provided appropriate and reasonable training in May and therefore did not have to fund the appellant's attendance at the Hamburg Conference. The Labour Court held that the provision of training "should be a collaborative activity with input from both the EWC members themselves and representatives of management" (at the second last page of the Labour Court determination towards the end of that page). Whilst the employer is responsible for discharging the cost of training that is reasonably required, "it is not a case that a company is required under the Directive or the Act to furnish its EWC with a blank cheque" (from the last page of the Labour Court determination towards the top of the page).

20. The issue of costs was then addressed by the Labour Court in the following single sentence in the section of its determination entitled "Discussion and Decision": - "The question of awarding the Complainant costs in respect of bringing the within proceedings is moot in circumstances where the Court has not upheld his appeal." (At the last page of the Labour Court determination at (f)).

That was the entirety of the Labour Court’s discussion and decision on the appellant's application for costs.

The appeals to this Court

21. The appellant's appeals to this Court challenge the Labour Court's finding on the adequacy of the May training and its interpretation of TICEA, in particular s.17 thereof, as incompatible with the Directive and the European Charter and seeks, inter alia, a declaration that TICEA is incompatible with the Directive. The appellant also challenged the Labour Court’s refusals of costs. The respondent endorsed the Labour Court’s approach that s. 17 does not provide for the resolution of collective claims and argued that TICEA provided for significant remedial structures in rendering a breach pursuant to s. 13(2) an offence under s. 18 which the respondent said was an appropriate and effective remedy, which was sufficient compliance with the Directive.

22. The respondent argued that the Labour Court’s upholding of its refusal to pay for the Hamburg Conference was a finding of fact that could not be overturned on a point of law appeal. In relation to the appellant’s application for costs from the Labour Court, the respondent endorsed the Labour Court's view that it had no jurisdiction to award costs in any circumstances. The respondent argued that, in any event, the Directive made no provision for costs.

23. The Attorney General was joined to the appeal as a notice party and made submissions principally on the Labour Court’s interpretation of s. 17. The Attorney said Article 10 of the Directive on the role and protection of employee representatives was given effect in s.

17. He relied on Article 17 of the Directive in relation to compliance and the obligation of Member States to make provision for administrative or judicial appeal procedures. The Attorney challenged the respondent’s argument that the criminal sanctions provided for by TICEA were an effective remedy. The Attorney’s written submissions summarise the position at para. 46 as follows:- “46.1 The Labour Court correctly identified as an issue to be determined whether the complaint was well-founded in the sense of being a complaint within the scope of section 17.

46.2 It is submitted the complaint is one which falls within section 17 in circumstances where it is capable of being a complaint of a contravention of the appellant's rights qua carrying out functions as member of the EWC provided by section 17. Accordingly, it is submitted the Labour Court erred in law in concluding that the complaint was not within the scope of section 17.

46.3 It is submitted that expert costs properly incurred collectively by an EWC for the purpose of applying the rights arising from the Directive can be encompassed within the ‘means required to apply the rights arising from the Directive’ which must be provided by Central Management.”

24. In relation to costs, the Attorney confirmed the Labour Court’s lack of jurisdiction to award costs but also identified as a "separate issue" the following at para. 53 of his written submissions: - "whether following such a complaint to the WRC or appeal to the Labour Court, an EWC member/employee could seek from Central Management agreement to reimburse all or some of the legal expenses associated with such a claim on the basis that such expenses or costs are necessary to be discharged to satisfy the requirement of section 17(1A) that an EWC member/employee representative had the means required to apply rights of the Directive. It is submitted that section 17(1A) could, depending on the circumstances, encompass such a claim and if it did, such a claim could in turn be the subject of a complaint to the WRC.”

This Court’s jurisdiction

25. This Court’s limited jurisdiction on an appeal from a determination of the Labour Court is well established, most recently by the Supreme Court in An Bord Banistíochta, Gaelscoil Moshíológ v. The Labour Court and Aodhagán Ó Súird and The Department of Education [2024] IESC 38 where O’Donnell CJ reiterated that the appellate court’s view of the merits “is not the issue and is not a legally relevant factor”. It is well established that any breach by the Labour Court of its statutory duties, including its duty to give reasons, is an appealable point of law. In Daly v Nano Nagle School [2019] IESC 63, the Supreme Court said (at para. 74) that the duty to give reasons required “some outline of the relevant facts and evidence upon which the reasoning is based”. The Supreme Court criticised the Labour Court for failing to adequately explain the basis for the award it had made, which the Supreme Court said was a breach of fair procedures. More recently in Onyemekeihia v Minister for Justice and Equality [2023] IEHC 697 O’Regan J criticised the Labour Court for having reached “a bald conclusion” without explaining why it accepted certain evidence or reconciled contradictory findings. The Labour Court’s lack of explanation in the determination impugned in that judgment was found to be irrational and contrary to its statutory duty to give adequate reasons for its determination. In a similar vein, in L v. The Teaching Council [2025] IEHC 155 Barr J. stated at para. 85: "the duty on the decision-maker is to give sufficient reasons for their decision, so that the parties to the dispute, and in particular the losing party, can know what was decided and why it was decided. It should also be apparent from the decision that their submissions and arguments were considered by the decision-maker."

The issues before this Court

26. The following issues fall to be addressed by this Court:-

(i) Arising from Labour Court determination TID 242, whether the Labour Court’s upholding of the respondent's refusal to fund the appellant's attendance at the Hamburg Conference is an appealable point of law and if so, whether the respondent’s refusal was lawful.

(ii) Arising from determination TID 241, whether the Labour Court was correct in its interpretation of s. 17 TICEA that the section does not cover a collective dispute.

(iii) From both Labour Court determinations, whether the Labour Court erred in determining that the appellant's application for costs was moot where his appeals were not upheld. In determining each issue, this Court must consider whether the Labour Court complied with its statutory duties, as discussed above. I address each of the issues separately below.

(i) The Labour Court’s determination on funding attendance at the Hamburg Conference

27. The appellant submits that the Labour Court failed to properly analyse what is required by "training" as referred to in TICEA, failed to engage with the adequacy of the May training and failed to draw inferences from the absence of evidence from either of the two persons who provided the May training. The respondent contends that this constitutes an unappealable finding of fact whereas the appellant contends that the Labour Court’s determination and analysis of the evidence constitutes an error of law.

28. Whilst a finding of fact can constitute an error of law, it is an onerous burden for an appellant, particularly given the curial deference to which the Labour Court is entitled from this Court in determining factual matters. It is only in exceptional circumstances that the weight to be attached to evidence or the inferences to be drawn therefrom could constitute potential appealable errors of law rather than unappealable findings of fact.

29. The Directive and TICEA require the parties to work together in a “spirit of cooperation”, as per s. 12(1) and s. 16 TICEA echoing Articles 6 and 9 of the Directive, which suggests an expectation, if not an obligation, of engagement about training to be provided to the members of an EWC. There was evidence before the Labour Court of engagement between the respondent and the EWC members, including the appellant, on the content of the training that was to be provided. An email dated 21 April 2021 from the respondent to the EWC, including the appellant, stated:- "[F]ollow-up on our discussion meeting in relation to the EWC training. You can find the provisional outline of the training attached. As discussed, let us know if there is something that you would like to see added in relation to the functioning of the EWC under the Irish statutory provisions."

30. The Labour Court stated in their determination that they reviewed the PowerPoint presentation used by the trainers in the May training and had regard to their own experience of continuing professional development and training, from which they concluded that the May training satisfied the definition of “training” required by TICEA.

31. Given the evidence put before the Labour Court and the Labour Court’s analysis of it, I do not accept the appellant's criticism that there was a lack of engagement about the May training or that it fell short of the training the appellant says was required about confidentiality which he says was made available to him at the Hamburg Conference. The appellant has not discharged his onerous burden of establishing an appealable point of law from what clearly was a finding of fact by the Labour Court about the nature and adequacy of the May training. The Labour Court’s findings in relation to the May training, the adequacy of it and the consequential reasonableness of the respondent's refusal to pay for the appellant’s attendance at the Hamburg Conference constitute reasoned and rational findings of fact, from which no appeal lies to this Court.

(ii) The interpretation of section 17 and section 17(A)

32. The Attorney, correctly, contends at para. 34 of his written submissions that:- “in considering the correct interpretation of section 17 and having regard to the applicable principles of statutory interpretation identified by the Supreme Court in Heather Hill v An Bord Pleanála [2022] 2 ILRM 313 it is appropriate to consider the Act as a whole and its legislative context.” The legislative context of the TICEA is, without doubt, the Directive it implements, as is made clear (if needed) by the first words of its short title: “An act to implement Directive No. 9/45 EC of 22nd September 1994 of the Council of the European Union…”. As with any legislation that implements a European Directive, the provisions of the Act must be read in the light of the European Directive it implements and the need to interpret the national legislation in a manner that properly takes account of the provisions of the Directive, i.e. its indirect effects that can be relied on before a national court including the WRC and the Labour Court.

33. The principle of indirect effect was discussed by the CJEU in Marleasing SA v. La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135 where the court said, at para. 8, that it followed from the Member States’ obligations, “in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is, required to do so, as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article A189 of the Treaty".

Applying that principle, the Supreme Court, per Charleton J in S v. The Governor of the Midlands Prison [2019] 3 I.R. 595, stated, at para. 10:- “The 2015 Regulations must be interpreted, as far as possible, in the light of the underlying 2004 Directive. … Any interpretation of the 2015 Regulations cannot be strained to the extent that the plain words of national legislation are undetermined so that they are read to mean something which they plainly do not. Where a national measure gives effect to an obligation of the State which arises by reason of membership of the European Union, that legislation must be construed so as conform to that legislative purpose.”

He observed that such an obligation applies "even in a domestic dispute between private parties" (at para. 11) and went on to potentially limit the application of this principle when he stated, at para. 12:- “conforming interpretation between Irish statute law and the European legislation which necessitated that measure cannot be used beyond the scope of its proper purpose so as to impose a solution which contradicts the plain terms of national law, even though such a strained or even contradictory interpretation may possibly be seen in conformity with an obligation under a Directive. There is a limit to the duty of the national courts, who must interpret national law in the light of any European law obligation as far as this is possible. This cannot enable a distortion of what the enactment means or be, as the European Court of Justice has put it, contra legem.”

34. No contradiction of the national legislation, TICEA, arises here such as raises the possibility of a contra legem interpretation, as is clear from the stated purpose of the national legislation, as per its short title, to provide for:- "the establishment of transnational arrangements for the information and consultation of employees and community-scale undertakings and community-scale groups of undertakings where requested in the manner provided for in this Act, to provide for the establishment of European Works Councils in such undertakings or groups of undertakings unless agreements entered into in accordance with this Act provide otherwise".

Interpretation of TICEA requires consideration of the Directive and any indirect effects of the Directive. Sections 3(2) and 3(3) make it clear, were it even necessary, that TICEA is to be interpreted in the light of the Directive. The respondent points out that this may also require consideration of Francovitch State liability. However, this is not an approach to the exclusion of other interpretive obligations such as indirect effects, as the respondent seemed to contend for on the facts of this case.

35. Section 17 refers to representatives and employees and members of the EWC and 17(1A) to the representation of "the collective interests of employees". Elsewhere TICEA has many other references to employees (plural) and employee representatives (plural); for example, s. 8(1), (4) and (5), s. 9 (1), s. 14 and s. 16. This emphasis on collective interests reflects the wording of Article 10(1) of the Directive i.e. "represent collectively the interests of the employees of the community-scale undertaking". Nevertheless, the respondent contends that there is no indirectly effective collective right in Article 10(1) and therefore no right to be Marleasing-ed. This is because of the reference to "competence" which Counsel for the respondent says limits the "means required" in the Directive to legal capacity rather than to financial resources because if “means” was intended to refer to financial or material resources, that the Directive would have expressly said so. The respondent cited several EU Commission documents to support its interpretation of Article 10, including a Commission Staff Working Document of 14 May 2018, which reported on the Member States’ implementation of the Directive. That report identified variety between Member States’ recognition of the capacity of EWCs to seek legal redress and referred (at page 24) to how the capacity of EWCs to seek legal redress varied from one Member State to another and that, in the vast majority of countries "Rules on financial means and legal costs of proceedings are limited to the general provisions of Article 10(1) of the Recast Directive, under which the members of the EWC shall have means required to apply the rights arising from [the] Directive'".

Annex 5 to the report identified Ireland as only allowing individual worker representatives to bring action before the courts for the EWC.

36. The respondent also relied on an earlier Commission Staff Working Document of 2008 that stated, at page 20:- "European courts do recognise the competence of European Works Councils to represent employees, which is not restricted to the internal matters of the company in question. However, national court cases highlight legal uncertainties as to the right of employee representatives to pursue complaints in particular where the EWC includes management representatives."

Counsel for the respondent submitted that the CJEU can have regard to such documents in interpreting a directive, unlike the situation in Irish law where, for example, Dáil debates are not utilised as an interpretive tool. She cited 'Judicial Protection of European Union' (6th Ed.), Schermers H and Waelbroeck D, at page 16, where the authors state:- “Following Continental judicial tradition, the Court can make use of the preparatory documents of secondary Community legislation, such as debates in the European Parliament or preparatory discussions in a management or consultative committee.”

However, the authors also say that the Court

“only resorts relatively exceptionally to the historical background or to the 'travaux preparatoires’ when interpreting Community law.”

37. Even if those documents relied on by the respondent can be used to interpret the Directive, I do not consider their content supports the respondent’s restrictive interpretation of Article 10.1. EWCs must be competent to represent employees but that does mean that the reference to "means" in Article 10.1 is limited to legal capacity only. Such an interpretation would mean that Ireland (in exercising its discretion as to how the rights afforded by Article 10.1 are to be provided to EWCs) having included the additional words into s. 17 "central management shall provide", beyond what is contained in Article 10.1, conferred the ability to grant legal standing to the EWCs on central management. That cannot and should not be a statutory power conferred on an employer. Rather, the wording of Article 10.1 is consistent with the interpretation urged on this Court by the appellant and the Attorney General, i.e. that "means" is not confined to capacity. The phrase “means” is used elsewhere in the Directive including in Article 5(4) and Article 6(f) in a far wider way than capacity. If it was intended for "means" in Article 10.1 to have a different and more restricted meaning, that would have been expressly provided for. This conclusion is also supported by how the phrase "means" is used elsewhere in TICEA including in s. 9(1) which provides:- "The central management shall be responsible for creating the conditions and means necessary for the setting up of an arrangement for the information and consultation of employees…".

Once again, if the respondent’s submission that "means" is limited to legal standing was correct, s. 9(1) would confer an obligation on an employer to provide for legal standing. That does not make sense.

38. Neither does the wording of the Directive support the respondent’s restrictive interpretation limiting the rights of Article 10.1 to what Counsel for the respondent calls "a process guarantee". "Means" as used in Article 10.1 and s. 17 is potentially much wider than just money as it is whatever means are "required to apply the rights arising from the Directive to collective representatives representing the interests of the employees".

39. I accept the respondent's argument that, if the entitlement contended for by the appellant is not provided for by the Directive and in particular Article 10.1, then there is nothing on which a Marleasing argument can be based. However, I do not accept the respondent’s narrow interpretation that Article 10.1 is limited to the legal capacity of the EWC members to apply the rights conferred on them by the Directive. Legal capacity is a far more limited concept than "means". Simply conferring legal capacity on the members of an EWC would not be sufficient to enable them to represent collectively the interests of the employees. This is particularly so in Irish law, where an EWC does not have separate legal personality. The members of an EWC could not properly or effectively apply the rights arising from the Directive to collectively represent the interests of the employees without being given the means to do so.

40. Further, I do not accept the respondent’s submission that the imposition of criminal liability by ss. 17(2) and 18 TICEA is a sufficient or adequate judicial process to comply with the effective judicial process requirements of Article 11 of the Directive and the principle of effectiveness of EU law. Many employment rights acts allow for criminal liability alongside individual claims. The possibility of criminal sanctions arising from a breach of protective employment legislation is an exceptional measure and cannot easily replace the far more commonly utilised practice of bringing a complaint before the WRC or on appeal to the Labour Court. There is no valid or logical basis for suggesting that the existence of the former displaces the latter.

41. Section 2(3) requires TICEA to be interpreted so as to give effect to the Directive, which must include Article 10.1 and Article 11. TICEA makes specific provision for the members of an EWC that has been established pursuant to an agreement. On the facts of this case, there was no such agreement, as a result of which the EWC was established pursuant to TICEA’s subsidiary requirements pursuant to its Second Schedule. As properly held by the Labour Court, it cannot have been the intention of the legislature to provide a lesser form of protection to the members of an EWC established by agreement as versus one established pursuant to those subsidiary requirements, in effect by operation of law. In addition, there are provisions of s. 17 that, if breached, could only be enforced collectively such as s. 17(5).

42. The obligation on central management to discharge certain expenses of the EWC and its members is conferred on a subsidiary requirement EWC by para. 6 of the Second Schedule to TICEA. The enforcement of that right is not excluded by s.17 or s.17A, given the obligation on the WRC and the Labour Court on appeal to interpret the provisions of TICEA in light of the Directive, including Article 10.1 and the principle of effective judicial protection under Article 11, and the general principle of the effectiveness of European law.

43. The Labour Court, in interpreting s. 17 narrowly to exclude any collective complaints, erred in law in failing to consider the provisions of the Directive and further erred, in finding that s. 17 only protected individual members of the EWC qua individuals and in disallowing the appellant's representative capacity claim on behalf of the members of the EWC which he was representing. The Labour Court fell into a further error of law in failing to examine the appellant's complaint that the expert’s advices were necessary and appropriate as expert costs properly incurred by the EWC for the purpose of applying the rights arising from the Directive which to be provided by central management.

(iii) The appellant’s application for costs

44. The issue of the appellant's application for costs arose in both Labour Court determinations. The appellant’s application for costs was made pursuant to legislation implementing a Directive that had never previously come before the Labour Court and for which it seems there was no guidance from the CJEU. This contrasts with many of the Irish Acts implementing EU employment directives where there is a wealth of CJEU jurisdiction which the Labour Court is well accustomed to applying.

45. The appellant’s applications for cost were both treated in the same way in each of the Labour Court’s determinations, i.e. a bare conclusion that the issue was moot because the appeal was not upheld. The appellant had made submissions to the Labour Court about the protections and obligations imposed on employee representatives of an EWC—such as himself—and on the respondent, as their employer, by TICEA and the Directive. Those submissions were undoubtedly novel in circumstances where national legislation (Regulation

19 of the Redundancy (Redundancy Appeal Tribunal) Regulations 1968) and the Labour Court’s own rules state that the Labour Court has no jurisdiction to award costs. However, the brevity of the Labour Court’s conclusions belies the sophistication of the legal arguments made to it which were, to an extent, linked to the collective nature of the TICEA and Directive rights for which the appellant was contending. The fact that the Labour Court may not normally have jurisdiction under national legislation to award costs does not mean that it cannot be required to examine and properly determine a costs application pursuant to an Act implementing a Directive.

46. The fact that the Labour Court’s national statutory jurisdiction may not allow for legal costs does not automatically limit the Labour Court's jurisdiction as a national court implementing European law or its obligations pursuant to TICEA, an Act implemented to transpose a Directive that is binding in the result to be achieved. To properly apply its jurisdiction under the TICEA statutory regime required the Labour Court to examine the applications before it in the light of both TICEA and the Directive. That was not done here.

47. Neither are the Labour Court’s obligations limited by the fact that national legislation provides in principle for costs to follow the cause. The appellant’s application was not a simple "costs follow the cause" type application that might be made in the civil courts pursuant to the jurisdiction conferred on those courts by s. 169 of the Legal Services Regulation Act 2015. This was a very particular application being made pursuant to a complex Act that required, by its own provisions and by the Labour Court’s obligations as a national court implementing European law, to be interpreted in the light of the Directive it was implementing and any relevant principles of EU law. No such interpretation or analysis can be discerned in the Labour Court’s bare conclusion that the appellant’s costs application was moot once the appeal was not upheld. Had the Labour Court properly considered the appellant’s application and the relevant provisions of TICEA and the Directive and of EU law, it would have appreciated the nuances of the appellant’s applications for costs. Specifically, the EWC, having no separate legal personality or independent financial resources, could only proceed with expert, including legal, advice and assistance. Given the requirements of the Directive, and in particular Article 11, which seeks to ensure that the effective enforcement of EWC members’ rights is not deterred, the Labour Court should have considered whether it could, or should, permit an EWC or an employee to seek agreement from central management to reimburse all or some of the legal expenses associated with the claim on the basis that those expenses were necessary to satisfy the requirement of s. 17(1A) that an EWC member or employee representative had the means required to apply the rights conferred by the Directive.

48. The Labour Court fell into an error of law in failing to consider the appellant's application for costs simply because the appeal had not been upheld. The Labour Court fell into an error of law in failing to consider the appellant's argument that the provisions of TICEA and the Directive, including on deterrence, required the Labour Court to consider the application for costs and/or for compensation even where the appeal was not upheld and to consider whether the respondent could or should be required to reimburse some or all of the expenses, including legal expenses, incurred by the appellant having regard to the requirements of s. 17(1A) and depending on the circumstances and facts that were put before the Labour Court.

Conclusions

49. The Labour Court fell into the following errors of law in the impugned determinations:-

1. The Labour Court fell into an error of law in its narrow interpretation of s. 17 as excluding any collective complaints and in its failure to consider the provisions of the Directive in doing so.

2. The Labour Court fell into an error of law in finding that s. 17 only protected individual members of the EWC qua individuals and in disallowing the appellant's representative capacity claim on behalf of the members of the EWC which he was representing.

3. The Labour Court fell into an error of law in failing to examine the appellant's complaint that the EWC Academy’s Dr Altmeyer’s advices were necessary and appropriate as expert costs properly incurred by the EWC for the purpose of applying the rights arising from the Directive which to be provided by central management.

4. The Labour Court fell into an error of law in failing to consider the appellant’s application for costs simply because the appeals had not been upheld.

5. The Labour Court fell into an error of law in failing to consider the appellant’s argument that the provisions of TICEA and the Directive, including on deterrence, required the Labour Court to consider the application for costs and/or for compensation even where the appeal was not upheld and to consider whether the respondent could or should be required to reimburse some or all of the legal expenses incurred by the appellant having regard to the requirements of s. 17(1A) depending on the circumstances and facts that were put before the Labour Court

50. The impugned parts of both determinations of the Labour Court should be set aside. It is open to this Court to remit the matter to the Labour Court, including to a different division, with or without directions. It is also open to this Court to grant declaratory relief. I will hear Counsel further on the precise orders that should be made. I will put the matter in before me at 10.00am on 3rd December 2025 for the purpose of making final orders including costs. If any of the parties wish to put in further written submissions on the final orders to be made, those should be lodged with the court at least 48 hours in advance of the matter coming back before me. If the matter is expected to take more than one hour, the Court should be advised at least seven days in advance.

Counsel for the appellant: Owen Keany BL, Anthony Kerr SC

Counsel for the respondent: Rosemary Mallon BL, Eileen Barrington SC Counsel for the Attorney General: Desmond Ryan BL, Caren Geoghegan SC