State could be liable for illegal home repossessions if EU law is not correctly implemented
AIB v Counihan ruling requires EU consumer law must be considered in repossession cases
Government must follow example of Waterford County Registrar and suspend repossessions
The Green Party today called on the Government to introduce a moratorium on home repossessions, warning that the State may be liable for illegal repossessions if EU law is not correctly implemented by the Irish court system.
On the 21st of December, the High Court ruled in the case of AIB v Counihan that European Consumer Law must be considered in the context of home repossessions. This means that Judges or County Registrars dealing with repossessions must carry out an assessment of whether the contract’s terms were fair and proportionate. Further to this, EU case law in Kušionová may also require such assessments be made with reference to the fundamental protection afforded to the ‘home’ under the European Charter of Fundamental Rights. Failure to abide by EU law, where applicable, would render repossessions illegal – with the State liable.
Speaking today, Green Party Chairperson, and expert on Constitutional and EU law, Cllr. Roderic O’Gorman said: “This is a very serious situation. Prior to Christmas the County Waterford Registrar suspended all repossession cases until there is legal clarity – but all other areas are continuing as before. The Government must consult the Judiciary and County Registrars to ensure that the resources required to carry out the assessments, as laid down by EU law, are available. If cases continue to be processed without the necessary resources being allocated, the State is likely to be liable if repossessions occur for failing to afford consumers the protections they are entitled to. We’re calling for the Government to introduce a moratorium on repossessions until they have consulted the Judiciary and County Registrars to ensure that there are adequate resources to fulfil the legal obligations under EU law, and legal clarity is restored.”
Green Party Deputy Leader Catherine Martin, TD for Dublin Rathdown, said: “The latest Central Bank figures show over 79,562 private home mortgages are in arrears. Of these, 34,551 are in arrears over 720 days. On the 21st December 2016 the Cork Circuit Court dealt with 40 cases alone. Many of the cases decided since that date may now be in conflict with EU law, and would therefore be unlawful repossessions. There is a potential financial risk for the State here. If the Irish courts were not properly implementing EU law in these cases, and homeowners suffered a loss because of this, the State may be liable to pay them damages.
“The Government must set aside time in the Dáil to discuss the implications of this ruling. We have requested a Topical Debate on the issue in the Dáil this evening.”