Student Transport Scheme Ltd v Minister for Education and Skills

CourtSupreme Court
JudgeDenham C.J.,Charleton J.,O'Malley J.
Judgment Date10 October 2016
Neutral Citation[2016] IESCDET 123
Date10 October 2016

[2016] IESCDET 123



Denham C.J.

Charleton J.

O'Malley J.

Student Transport Scheme Limited
The Minister for Education and Skills
Bus Éireann
Notice Party
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal

The applicant seeks leave to appeal a decision of the Court of Appeal (Ryan P, Peart and Hogan JJ) delivered on 27th May 2016; judgment of Hogan J, [2016] IECA 152. This in turn upheld the decision of McGovern J in the High Court; judgment of 23rd October 2012, [2012] IEHC 425.


The applicant is a shelf company. It claims a right to participate in tendering for what is claimed to be a public contract whereby schoolchildren at national school and secondary level are transported by the State from their homes to their schools. Approximately 110,000 pupils are transported every day by this means but in order to do so the State has engaged Bus Éireann which manages the scheme, transporting around 10% of the children itself and providing arrangements through private contractors for the remaining 90%. The scheme operates on a cost recovery basis with the Minister reimbursing Bus Éireann.


It might be immediately noticed that competition in respect of the transport of children to school must be presumed to be open through the arrangements made. Challenged in these proceedings, however, is the overall arrangement between the State and Bus Éireann. The scheme has been characterised as an administrative one to affect the duty of the State under Article 42.4 of the Constitution to ‘provide for free primary education’. Questions set out in the judgment of Hogan J in the Court of Appeal encompassed the applicability of the procurement rules and European law in the context of whether those parties entered into a contract in writing, whether it is for pecuniary interest, whether it was in reality a unilateral administrative measure, and whether the contract had been one for indefinite duration which antedated the operation of the current rules, thereby being exempt. The scheme involves the State engaging Bus Éireann to administer the scheme which will enable a sufficient number of buses, staffed competently and safely, to attend particular locations to pick up children, bring them to school and bring them back again to the home after lessons end. This particular scheme was introduced in 1967, following the provision of free secondary education. Letters were exchanged appointing Córas Iompair Éireann, subsequently Bus Éireann, and financial arrangements were entered into which were then supplemented in 1975. The scheme therefore predates the relevant Directive and is made up of elements, including a 13% to charge to cover all other direct and indirect costs for services, which have changed over time, particularly in the context of the national crisis arising from bank debts which became apparent from September 2008.


After an analysis of the relevant national and European law, the Court of Appeal upheld the judgment of McGovern J in the High Court stating:

69. First, in light of the decision of the Court of Justice in Case C-159/11Azienda Sanitaria Locale di Lecce (which was delivered some months after the judgment of McGovern J. in the present case), it is clear that if there was a contract, the fact that the payment was based on a cost recovery basis did not mean that it was not a contract for pecuniary interest within the meaning of Article 1(2)(a) of the 2004 Directive.

70. Second, even if there was a contract, it was a contract of indefinite duration coming within the scope of the Pressetext exemption. While it is true that the Scheme has evolved and changed in the last fifty years or so since its initial inception, STS have not identified any material change within the six month period immediately prior to the commencement of the present proceedings in October 2011. This is in itself a reason why the present appeal must fail as such contracts of indefinite duration fall outside the scope of the 2004 Directive.

71. Third, quite independently of this conclusion, in the light of the reasoning of the Court of Justice in Commission v. Ireland, it is clear that the scheme is an administrative arrangement between the Minister and CIÉ/Bus Éireann. Specifically, there is no concluded contract in writing between the parties for the purposes of Article 1(2)(a) of the 2004 Directive. This finding is in itself also fatal to the STS's claim that there was such a contract and that it should have been put out to public tender.

72. It follows, therefore, that for the reasons just given I believe that McGovern J. was correct in the ultimate conclusion which he reached. I would accordingly dismiss this appeal.


Very lengthy submissions have been received on the part of the applicant and, in common with many other such applications before this Court, these seek to re-argue the case more than identify a point of law of general public importance or state why in the interests of justice there should be an appeal from the Court of Appeal to this Court. Equally...

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2 cases
  • Student Transport Scheme Ltd v The Minister for Education and Skills
    • Ireland
    • Supreme Court
    • 29 March 2021
    ...Transport then sought leave to appeal to the Supreme Court. For the reasons set out in a determination dated 10th October, 2016 ([2016] IESCDET 123), the Court declined to grant leave to appeal. Student Transport sought to bring an application before the Court on foot of the Greendale juris......
  • Student Transport Scheme Ltd v The Minister for Education and Skills
    • Ireland
    • Supreme Court
    • 14 June 2021
    ...the process leading to the determination refusing leave to appeal Facts: The Supreme Court, in a determination of 10th October, 2016 ([2016] IESCDET 123), declined to grant leave to the applicant/appellant, Student Transport Scheme Ltd (Student Transport), to appeal from a judgment of the C......

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