Seamus Mallon v The Minister for Justice, Ireland, and the Attorney General (Unapproved)

Factual and Procedural Background

The Appellant was appointed as “Revenue sheriff” for several counties in 1987. Section 12(6)(b) of the Court Officers Act 1945 fixes a compulsory retirement age of 70 for all sheriffs. Anticipating that limit, the Sheriffs’ Association (hereafter “Association A”) asked the Minister for Justice (“the Minister”) to promote amending legislation that would extend the retirement age. On 20 April 2021 the Minister’s office replied by e-mail stating that “approval beyond the age of 70 is not forthcoming” in light of Government policy to consolidate public-service retirement ages at 70.

The Appellant obtained leave to seek judicial review, claiming that the statutory age limit breaches Council Directive 2000/78/EC (“the Employment Equality Directive”) and constitutes unlawful age discrimination. The High Court (Judge Phelan) refused relief in October 2022, holding that: (i) the 20 April 2021 e-mail was not a reviewable decision; (ii) it was nonetheless open to grant declaratory relief on the compatibility of primary legislation with EU law; and (iii) the age limit was objectively justified and proportionate. The Supreme Court granted leave to appeal and heard the matter in 2024.

Legal Issues Presented

1. Whether the mandatory retirement age of 70 in s. 12(6)(b) of the Court Officers Act 1945 is compatible with the Employment Equality Directive as transposed by the Employment Equality Act 1998.
2. What test of compatibility and proportionality applies to mandatory retirement ages, including whether individual capacity assessments are required.
3. Whether general retirement ages may lawfully be set for defined groups based on age-related probabilities rather than on individual characteristics.
4. Whether the Minister’s 20 April 2021 communication constitutes a decision amenable to judicial review.
5. Whether the Appellant should have pursued his discrimination complaint in the Workplace Relations Commission instead of the courts.

Arguments of the Parties

Appellant's Arguments

• The 70-year limit creates direct age discrimination and fails the objective-justification test under Article 6(1) of the Directive.
• Coroners were recently permitted to serve until 72; treating sheriffs differently is irrational and discriminatory.
• The Minister’s refusal of an extension is a reviewable act, and the court should declare s. 12(6)(b) inoperative or award Francovich damages.
• Because the number of sheriffs is small, individual fitness assessments would be feasible and less restrictive.

Respondents' Arguments

• The real source of any obligation to retire is the 1945 Act, not the Minister’s e-mail; therefore no decision exists for certiorari.
• Sheriffs are self-employed office-holders who may continue private professional practice; the age limit is proportionate to legitimate aims such as succession planning, inter-generational fairness, workforce balance, avoidance of capacity disputes and standardisation across the public service.
• The Workplace Relations Commission is the proper forum for any discrimination claim.
• The higher limit for coroners was introduced to retain scarce expertise and does not undermine the general 70-year norm.

Table of Precedents Cited

Court's Reasoning and Analysis

Jurisdictional Matters. The e-mail of 20 April 2021 merely restated statutory consequences and was therefore not amenable to certiorari. Nonetheless, the High Court (and on appeal, the Supreme Court) may grant declaratory relief on the compatibility of primary legislation with EU law. The Court refused to oblige the Appellant to proceed before the Workplace Relations Commission: the High Court is the constitutionally assigned forum to assess the validity of legislation.

Scope of the Directive. Section 12(6)(b) falls within Article 3(1)(c) of the Directive because it governs employment conditions and dismissal (retirement). It therefore must satisfy Article 6(1).

Legitimate Aims. Relying on affidavit evidence, the Court accepted the following aims as legitimate social-policy objectives: organisational and personal retirement planning, inter-generational fairness, workforce age balance, avoidance of humiliating fitness disputes, and standardisation of retirement ages across the public sector.

Proportionality. A retirement age of 70 is higher than ages upheld in multiple CJEU decisions and higher than the State pension age (66). Sheriffs may practise law concurrently and after retirement, mitigating economic impact. The statute’s lack of case-by-case flexibility does not breach proportionality; CJEU jurisprudence recognises that uniform rules can themselves protect dignity and administrative efficiency.

Differential Treatment of Coroners. The Oireachtas raised the coroner limit to 72 to retain scarce expertise in an expanding, specialised jurisdiction. The Supreme Court found this a rational, evidence-based exception that does not undermine the broader 70-year policy and does not create unlawful discrimination against sheriffs.

Consistency and Coherence. Other deviations (e.g., lower limits for Gardaí, Defence Forces) are justified by sector-specific demands and do not render the general policy incoherent.

Application of Article 6(1). Because the aims are legitimate and the 70-year limit is an appropriate and necessary means to achieve them, the provision is objectively justified. No breach of EU law was established.

Holding and Implications

Holding: APPEAL DISMISSED; HIGH COURT ORDER AFFIRMED.

Section 12(6)(b) of the Court Officers Act 1945, imposing a compulsory retirement age of 70 on sheriffs, is compatible with the Employment Equality Directive. The Minister’s 2021 e-mail is not a reviewable decision, and the Appellant was not obliged to pursue the matter before the Workplace Relations Commission. The decision maintains the State’s discretion to set uniform public-service retirement ages and confirms that differential limits may be introduced for specific offices when objectively justified. No new precedent is created, but the judgment consolidates Irish application of established CJEU principles on age discrimination.