Complainant

Respondent

Parties

Leonardo  De Oliveira Lima

Road Safety Authority (RSA) National Driver Licence Service (NDLS)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self Represented

 Ms Horkan Solicitor for RSA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00070186-001

22/03/2025

The Complainant was refused an exchange of his Portuguese Driving licence for an Irish Driving Licence on the basis the licence he sought to exchange was coded “70”.

He has referred his complaint under the Equal Status Act where he sets out that he has been discriminated against on the ground of Race and Family status and he has been victimised.

The Respondent has denied in full that they have treated the Complainant in anyway illegally and maintain that they have always applied the law correctly in refusing the exchange of licence and to act in any other manner would mean acting ultra vires.

The Complainant in this case is a Brazilian national who has been working as a professional Driver in Ireland for some years. His permission to drive in Ireland is based on his Portuguese issued licence which was itself exchanged for his Brazilian licence.

It is the Complainant case that this is indirectly discriminatory on the grounds of Family Status, Race and that he has been victimised. The Complainant depends upon his license for his work as a Driver and it is the denial of the licence that threatens his livelihood and family life in Ireland. He has referred to as being discriminated on the grounds of Race and Family Status on his application.

Refusal of Licence Exchange

The Complainant was refused an exchange of his Portuguese issued Driving Licence for an Irish Driving licence. The basis for the refusal is that his licence carried a “code 70”. This code denotes that the licence originated outside of the EU, in the case of the Complainant it originated in Brazil; he having previously exchanged his Brazilian licence for a Portuguese licence.

It is a further argument of the Complainant that the origin of his licence is Portugal which is the member state that exchanged his Brazilian licence for a Portuguese licence. In essence, his argument is that it having been exchanged by Portugal, a Member State, it is now an EU licence and therefore its initial origins are irrelevant and the decision of the NDLS to refuse was made in error.

Summary of Correspondence Regarding Driving Licence Exchange

There has been a lengthy display of correspondence between the parties as evidence by the ES1 form and ES2 form. There is a good deal of extraneous detail in reference to payment that is not at issue here the fee having been returned. Although, the Complainant sets out the fee structure discriminates against third party nationals.

In summary, the Respondent refused the exchange as the Complainant did not sit a driving test in Portugal (or any other Member State or State) and the licence originates outside of the EU and from a third country that does not, yet, have an exchange agreement with Ireland.

It is the argument of the Complainant that under EU law, a third-country licence converted by an EU Member State (Portugal) is valid across the EU. The licence has been used in Ireland for many years, and the refusal to renew or exchange it is viewed as unfair, disproportionate, and contrary to EU principles of equal treatment.

The Respondent reiterated, in writing, to the Complainant setting out the License for exchange was issued in Brazil and cited a “Code 70” issue. In this the Complainant was told that the licence originates from the country where the driving test was taken. Despite its primary originating country, the complainant insists the licence is Portuguese and valid under EU law.

Summary of Formal Request for Licence Exchange Reconsideration

In January 2025 the Complainant requested a review of the decision made by the Respondent, which refused to renew or exchange his valid Portuguese driving licence for an Irish licence. He argued that the decision is disproportionate, procedurally unfair, and inconsistent with Irish and EU law, particularly in relation to third-country nationals. The Complainant argues the following:

·         His Portuguese licence was issued by a Member State and complies with EU standards.

·         The licence had previously been accepted in Ireland for several years.

·         The refusal is based on the licence’s original issuance in Brazil, which he disputes.

·         The refusal disproportionately affects third-country nationals and may amount to indirect discrimination under the Equal Status Act.

·         His compliance with Irish traffic laws, CPC training, and clean driving record were not considered by the Respondent.

·         There is no provision in EU law that prohibits the exchange of a valid EU licence, even if originally issued outside the EU but later converted by an EU Member State.

The Complainant makes out that they have been treated unfairly based on their race and/or family status and that there is no clear wording in the EU regulation that forbids the exchange of a valid Portuguese EU driving licence nor under Irish law.

Redress Sought

1. Licence Recognition: It is submitted that the Respondent should recognise the Complainant Portuguese driving licences in accordance with applicable Irish and European Union law.

2. Review of Respondent Practices: It is requested that the Respondent undertake a review of its procedures to ensure alignment with the Equal Status Acts and the principles of fairness, proportionality, and non-discrimination as enshrined in EU law.

3. Proportionality in Service Provision: It is recommended that the Respondent adopt a fair and equitable approach to licence recognition and associated service fees. Particular attention should be given to ensuring that applicants from third countries are not subject to disproportionate financial burdens. The retention of fees for services not rendered—such as the non-issuance of a licence—may result in indirect discrimination and unjustified financial loss.

4. Clarity and Fairness in Fee Structure: The fee charged appears to have been intended for the issuance of a licence. However, the NDLS has not clearly indicated that the fee also covers the verification process. This lack of transparency may render the fee disproportionate and place an undue burden on third-country nationals, potentially reinforcing discriminatory outcomes.

5. Impact and Request for Resolution: The primary objective of the Complainant is to have their licence recognized in a manner that ensures equal treatment with other Irish and EU citizens.

No additional remedies are sought at this time, although continued refusal to recognize the licence may result in barriers to employment and adverse effects on personal and family life. Should these issues persist, the complainant sets out that they may be compelled to seek compensation for the stress, lost professional opportunities, and the administrative obstacles encountered. The Complainant hopes that the Respondent will take appropriate action to prevent further hardship.

In summary of their case the Complainant set out that they were looking for the Adjudicator to set aside the legislation in line with Commissioner of An Garda Síochána and Minister for Justice, Equality and Law Reform v Roland Boyle (EDA234). The Complainant also cites  Landsberg v Road Safety Authority [2021] IEHC 748 a case where South African nationals were found to have been discriminated against in the non-exchange of their driving licences.

The Complainant cites the following in their written submissions:

·         Meadows v Minister for Justice [2010] IESC 3;

·         Secretary of State for the Home Department, ex parte Daly [2001]

·         R (L and others) v Manchester City Council [2001],

·         Eweida v. United Kingdom (2013)

·         Smith and G v UK (1999)

·         State (Keegan) v Stardust tribunal [1986] IR 642

·         Case c-718/18

·         Article 8 of the ECHR

·         Article 15 TFEU

·         Directive 2005/36/EC

·         S.I. No. 359/2008

The Complainant properly opened to the hearing:

Commissioner of An Garda Síochána and Minister for Justice, Equality and Law Reform v Roland Boyle (EDA234) and  Landsberg v Road Safety Authority [2021] IEHC 748.

It is the case of the Respondent that they returned the driving license presented and refused the application on the basis that it was a driving licence issued by Portugal on foot of a driving licence from Brazil. It was confirmed that the Complainant had not passed a driving test in Portugal or any other Member State or other state with which the Irish State has a bilateral agreement. This is required to allow the licence proffered to be accepted in accordance with Irish law.

The Respondent are a statutory body who have responsibility for the management of driving licences within the Irish State. It rejected the application for exchange within their governing regulations.

The Respondent sets out that it has no legislative power to exchange a licence for another third-party country where the licence has originated in a state for which the Respondent does not have a licencing exchange agreement, in this instance Brazil.

It is not denied by the Respondent that they refused the exchange of licence and the subsequently on a review application again denied the application on the basis the licence originated in a third country for which Ireland has no bilateral arrangements and is not covered by another treaty.

The Respondent addresses the position of the Complainant that there is no clear wording in EU Regulations that forbids the exchange of a Portuguese issued licence. The Respondent answers this by setting out as a creature of statute it is obliged by law to adopt the approach in this case under the Road Traffic (Recognition of Foreign Licences) Order 2007 (SI 527/2007) whereby:

“2) This Order does not apply to a licence or permit issued by another Member State or a state mentioned in the Schedule which was issued in exchange for a licence or permit issued by a state, other than the State, which is not another Member State or a state mentioned in the Schedule.”

The Respondent sets out that it acted under the Road Traffic (Recognition of Foreign Driving Licences) Order 2007, which excludes licences exchanged from non-recognised states (e.g., Brazil) and the RSA has no discretion to override this legislation.

 EU Driving License Directive

Article 2 – Mutual Recognition sets out that a Driving licence issued by EU Member States must be mutually recognised across the EU. This means a person with a valid licence from one Member State can drive in another Member State without needing to exchange it immediately.

Article 11 sets out that if a licence holder takes up normal residence in another Member State, they may voluntarily request an exchange of their licence for an equivalent licence in that country. Further, the Respondent sets out that the Member States of their own volition may choose to allow exchange of licences issued by non-EU (third country) and if they do, the new EU licence must be marked with “Code 70”, indicating it originated from a third country. If the holder of such a licence moves to another Member State, that new country is notobliged to recognise the exchanged licence under the mutual recognition principle.

Importantly the Directive does not establish a uniform framework for the recognition across the Union, and it allows for the adoption of the process used in Ireland as it does for other member states.

Road Traffic (Recognition of Foreign Driving License) Order 2007(S.I. No. 527 if 2007)

This act sets out that member state licences can be exchanged and provides a list of third countries that have achieved recognition by Ireland for the exchange of a licence of which Brazil is not listed. This sets out the following:

 “(2) This Order does not apply to a licence or permit issued by another Member State or a state mentioned in the Schedule which was issued in exchange for a licence or permit issued by a state, other than the State, which is not another Member State or a state mentioned in the Schedule.”

Application of the Equal Status Acts 2000 - 2015

The Equal Status Act at section 14 is titled ‘Certain measures or activities not prohibited’ and provides that a body is not prohibited from acting in accordance with the requirements of legislation or a Court order and, particularly, in adopting a measure of the EU.

It is the case of the Respondent that they are acting within Irish and EU legislation.

This issue has been tested in G v The Department of Social Protection [2015] 4 IR 167. The case involving surrogacy and the surrogate mother not being entitled to Maternity Benefit due to the nature of the birth and birth mother. The High Court found that Equal Status Act could not override the terms of another statutory scheme i.e. the Department of Social Protection (DSP) Maternity Benefit and Adoptive Benefit schemes.

 O’Malley J, set out:

“Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of the policy of the other… [T]hat raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary to that Act embodied in another Act. In my view it cannot...”

It is the submission of the Respondent that legislative enactments being followed and that are offensive to the Complainant are exempt from the provisions of the Equal Status Act.

In seeking to have the matter dismissed, the Respondent draws attention to Farley v Ireland [1997] 5 JIC 0104, and the decision of Barron J:

“So far as the legality of a matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense…it is merely a question of saying that so far as the plaintiff is concerned if he or she has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.”

Respondent Conclusion

The Respondent submits the matter be dismissed as the refusal was an action taken in furtherance of a requirement of an enactment and, so, is exempt from the provisions of the Act by virtue of section 14(1)(a)(i). Further the Respondent asserts that it is always acting within Irish and EU legislation.

The Parties

The Complainant in this case attended the hearing without representation and was offered an opportunity to consider if he wished to apply for an adjournment. This was based on the complexity of the matter, his own reservations at facing legal representation from the other side and his concerns he raised pre-hearing of the delay in submissions from the Respondent.

Due to his lack of legal advice and to offer an abundance of fair procedures, he was offered the opportunity of an adjournment. The Complainant benefited from a short adjournment to discuss the matter with his Partner and on return declared he did not require an adjournment. I am satisfied that the Complainant has had an opportunity to consider his position and the need for legal representation and has chosen, after consideration, to proceed without the same.

The Complainant attended the hearing with his family and clearly presented as a person determined to succeed in his case and to pursue his chosen profession. He had, during the hearing, asked for mediation and to have his application considered separately considering all the correspondence he had presented to the Respondent. The Respondent while sympathetic were of the view that their hands were bound by legislation and they could not make an exception as requested, nor would mediation be useful given the legal restrictions placed upon them and to mediate in this way would mean they would be acting ultra vires. In any event, such a request could only be fruitless at the point of hearing, the time for mediation having passed already with its commencement.

The Respondent in this matter has been open, honest and helpful to the Complainant in making their complaint and tried to further explain and assist the Complainant during the hearing. The Respondent were courteous, honest and helpful to both the Complainant and to me in this matter which had some complex arguments and facts put forward many of which had little bearing on the case at hand.

Background Facts

Renewal of the Portuguese Licence

The Complainant does not deny that they achieved the renewal of their Portuguese licence during their residency in Ireland. It is a legislative requirement that an applicant for a renewal of a licence be resident in that country. The Complainant appears to have achieved this renewal despite not being resident in Portugal and has not explained to the hearing how this occurred.

Lack of Portuguese Driving Test

The Complainant did not argue against, in their in their oral nor written submissions, that they have failed to sit a driving test in an EU Member State. They have obtained their Driving Licence for Portugal under a bilateral arrangement between Portugal and Brazil. Such bilateral arrangements between Member States and third countries are not uncommon.

Whilst Ireland has bilateral arrangement for exchange with non-Member States it does not have one with Brazil, which can only lead to a conclusion that Ireland is not yet satisfied with the licencing regulations in Brazil, a fact that can easily change in the future through diplomatic negotiations. It is not for the Portuguese state to circumvent such diplomatic missions that may affect Ireland, or vice versa, and diplomatic negotiations are entirely an Executive function, not open to scrutiny by the Commission.

Irish Driving Test

It was argued during the hearing that the Complainant could, in the last fourteen years, have sat an Irish Driving Test, and there was no bar for him to do so now. In response the Complainant set out that this would take an inordinate amount of time, to which the Respondent explained there were some exemptions in taking the test and there waiting list was relatively short in terms of weeks and not years. I find it incredible that the Complainant has not researched and even pursued this avenue to address his difficulties in a non-legal forum.

Other Avenues for Redress

During the hearing the Complainant made an appeal to the Respondent to make a special case for him, for which the Respondent could not legally comply and for the Minister to make exceptions in his case, which was clearly not an approach that could be countenanced by the Respondent.

There was a great deal of argument at the hearing mostly in terms of the Road Traffic Acts and little in terms of the Equal Status Act. Indeed, the Complainant appeared to have a greater familiarity with the Road Traffic Acts than the legislation under which they brought their complaint.

It was raised with the Complainant at the hearing that it would appear the Complainant is pursuing a matter of the challenging the decision of a public body in coming to its decision; a matter, perhaps, better suited to a Judicial Review of the decision of the Respondent; which is entirely outside of the remit of an Adjudicator and the WRC. The Complainant told me that he had taken advice on this and was told he should start his case “somewhere”.

Respondent Arguments

The Respondent sets out convincingly that undersection 14(1)(a)(i) of the Act that its actions are not prohibited where they are following legal imperatives.

The case of G v The Department of Social Protection [2015] 4 IR 16 is a precedent where the High Court found that Equal Status Act could not override the terms of another statutory scheme i.e. the DSP maternity benefit scheme and Adoptive Benefit scheme; O’Malley J, set out:

“Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of the policy of the other… [T]hat raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary o that Act embodied in another Act. In my view it cannot...”

It is the submission of the Respondent that the legislative enactments being followed and that are offensive to the Complainant are exempt from the provisions of the Equal Status Act and in this I must agree.

In seeking to have the matter dismissed, the Respondent drew attention to the decision of Barron, J. in Farley v Ireland [1997] 5 JIC 0104:

“So far as the legality of a matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense…it is merely a question of saying that so far as the plaintiff is concerned if he or she has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.”

The proper meaning of this was explained in detail to the Complainant by both the Respondent and me. The Respondent did not, in quoting this, wish to be seen as offensive and went to great lengths to explain the legal, as opposed to plain and ordinary meaning of those words.

The Complainant Case

The issue in this case is not, as is set out in the Complainant submission, if the Respondent acted unlawfully in refusing the exchange of his Brazilian originating Portuguese licence Quite clearly, the Respondent was always acting within the law. The question arising is if the refusal was offensive to the Equal Status Act either directly or indirectly.

Complainant Case Law

The Complainant in their documentation has named a large body of case of which only two cases were opened at the hearing, that of Commissioner of An Garda Síochána and Minister for Justice, Equality and Law Reform v Roland Boyle (EDA234).

In the first case the Labour Court set aside a Garda Regulation related to the age of recruitment. It should be noted that the facts in that case are distant from the present. Firstly, it is an age discrimination complaint brought under the Employment Equality Acts 1998 to 2015, challenging Garda regulations in terms of recruitment of individuals.

The present matter has been brought under the Equal Status Act and the point of the Complainant raising this was explicitly asking that I set aside the legislation on the exchange of driving licences in a comparable manner. This avoids some key facts; besides those I have already set out in that the exchange of driving licences is an Executive function and subject to diplomatic negotiations on the part of the State. It is not within my legislative powers of my warrant to do such a thing.

The second case the Complainant opened a further case of  Landsberg v Road Safety Authority [2021] IEHC 748. In reviewing the 77-page judgement it is clear in that case is not in any relevant to the Complainant case and has no logical application to the Complainant case at all.

The applicants, South African nationals seeking international protection in Ireland, applied to exchange their South African driving licences for Irish licences under the Road Traffic (Licensing of Drivers) Regulations 2006 (S.I. 537/2006). Their applications were refused by the NDLS because they could not provide “evidence of residency entitlement”.

What the Complainant does not draw attention to is that Ireland has an exchange of driving licence arrangement with South Africa and the issue in this case was the matter of their residency status. If their residency status was clearer, they would have granted the same without recourse to the High Court.

Having examined both, I can only conclude that neither case has any binding or persuasive effect.

Comparators and Prima Facie Burden

Under the Equal Status Acts 2000–2018, the prima facie burden of proof lies initially with the Complainant. In this, the Complainant must present facts from which it may be presumed that discrimination occurred. These facts must be credible, specific, and significant enough to raise a presumption of discrimination. Mere assertions, beliefs, or speculation are not sufficient to shift the burden as per Valpeters v Melbury Developments Ltd (2010):

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

And in Mitchell v Southern Health Board (2001):

“Only if primary facts establish a presumption of discrimination does the burden shift to the respondent.”

The Complainant offered me no comparators in their submissions verbal or oral. When pressed on comparators, the Complainant named two broad comparators. Firstly, in Ukrainian nationals exchanging their licences for Irish licences. The second was USA nationals exchanging a US licence for a Canadian licence which (in some provinces) can be exchanged for an Irish licence. The Complainant offered me no comparator on family status.

In response to these the Respondent set out that Ukrainian nationals may use their Ukrainian licence in Ireland, but they may not exchange it.

In the case of a USA licence via Canada, the then exchanged license from Canada would not have a code 70, but the administrative process of exchange in those circumstances would reveal this through declarations.

I do not find the comparators offered as satisfying me for the purposes of the Act.

The Complainant has not shown any evidence, even statistically, that a person of a different marital status or race would be treated differently to the Complainant. There is nothing to suggest that race has any factor in this and the Complainant has failed to show any detrimental treatment in comparison with another race; even tangentially.

Similarly, the Family Status ground does not stand up for the Complainant where he has adduced no evidence as to his own family status or how such may compare against the treatment of a person of a differing marital status. I believe the Complainant is confusing the effects of the Respondent decision on him and his family, rather than being discriminated against because of his family status and in this the complaint is entirely misconceived.

I find that as neither Race nor Family Status come into this, neither directly nor indirectly and the Complainant has not adduced enough facts to shift the burden to the Respondent. In any event, the Respondent has convincingly set out that it is acting in accordance with the legislation set for it by the Oireachtas and the EU as is allowed under the Equal Status Act at s14.

Conclusion

The Complainant has failed to shift the burden of proof; he has not established primary facts for which a presumption of discrimination can lead to the shifting of the burden ofproof.

There is nothing in what the Complainant has offered me by way of evidence that allows me to draw an inference of discrimination. Further, it is clear to me that the Respondent was acting following the law at all times and is exempt from the provisions of the Act by virtue of section 14(1)(a)(i).

I have to conclude that the Complainant has been misguided in their complaint, and it is frivolous and vexatious, as set out above.

I can only find the Complainant not well-founded.

For the reasons set out above, I must conclude that the within complaint (CA-00070186-001) is not well founded and I decide accordingly.

Executive Competence, Legislative Exemptions, Diplomatic Negotiations