The Supreme Court allowed Dunnes Stores’ appeal and declared invalid an order that the Central Statistics Office (CSO) had used to require balance of payments information. It also prohibited prosecution of Dunnes for failing to comply with a direction made under that order.
The judgment, delivered by Mr Justice Clarke on 10 October 2014, concerned the Statistics Act 1993 and the Statistics (Balance of Payments and Financial Accounts) Order 2005. The Court addressed whether the order lawfully set the frequency for compulsory requests for information, where non-compliance could lead to criminal prosecution.
The CSO had required Dunnes to complete quarterly statistical forms. Dunnes did not comply and faced the prospect of prosecution under section 36 of the 1993 Act. It brought judicial review proceedings seeking to establish that the 2005 Order was invalid and that directions relying on it could not support a prosecution. The High Court rejected the claim in 2009, and Dunnes appealed.
Section 25 of the Act empowered the Taoiseach to make an order specifying, among other matters, how often information must be provided. Section 26 allowed the CSO to issue directions within the requirements of such an order, while section 36 made failure to comply with a qualifying direction an offence. Article 6 of the 2005 Order listed four possible frequencies: monthly, quarterly, half-yearly or annually.
The Supreme Court held that a valid section 25 order had to specify the frequency for collecting the information. By setting out almost the full range of realistic frequencies and leaving the choice to the CSO, the Minister had not fulfilled that requirement. The Court concluded that the order was ultra vires and invalid.
The Court did not decide the precise extent to which European Union law independently required private entities to provide information. It held that the EU Regulation did not create a particular criminal sanction, and any criminal sanction in Ireland had to fall within the 1993 Act. Its ruling concerned the availability of prosecution for alleged failure to comply with directions under the invalid 2005 Order. The Court allowed the appeal, declared the order invalid and prohibited prosecution of Dunnes for such an alleged breach.