The European Union
Cases
Crotty v. An Taoiseach
[1986] IR 713
Finlay C.J.
9th April 1987
Part of the plaintiff’s appeal in this case is against the dismiss by the High Court of his claim for a declaration that the European Communities (Amendment) Act, 1986, is invalid having regard to the provisions of the Constitution. The Court in this decision deals with that issue only.
The European Communities (Amendment) Act, 1986, (“the Act of 1986”) purports to amend the European Communities Act, 1972, and to bring into the domestic law of the State Article 3, s. 1; Title II; Article 31; Article 32; and in part Articles 33 and 34 of the Single European Act (“the SEA”). The Act of 1986 was enacted by the Oireachtas in December, 1986, but does not come into effect until the making of a statutory order which has not yet been made. The other provisions of the SEA largely consisting of the provisions on European cooperation in the sphere of foreign policy contained in Title III are not affected by the Act of 1986 and do not fall to be dealt with in this decision of the Court.
In the High Court the plaintiff’s claim was rejected on the grounds that because the SEA had not yet been ratified by the State and because the Act of 1986 had not yet been brought into effect the plaintiff failed to establish that he had a locus standi to challenge the validity of the Act of 1986 having regard to the provisions of the Constitution. The Court is satisfied, in accordance with the principles laid down by the Court in Cahill v. Sutton [1980] I.R. 269, that in the particular circumstances of this case where the impugned legislation, namely the Act of 1986, will if made operative affect every citizen, the plaintiff has a locus standi to challenge the Act notwithstanding his failure to prove the threat of any special injury or prejudice to him, as distinct from any other citizen, arising from the Act.
The net issue therefore here arising is as to whether the provisions of Article 29, s. 4, sub-s. 3 of the Constitution authorise the ratification by the State of the provisions of the SEA intended to amend the Treaties establishing the European Communities. These provisions are the Articles and Title of the SEA referred to in the Act of 1986. Article 29, s. 4, sub-s. 3 reads as follows:
“3 The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
This provision was enacted as the Third Amendment to the Constitution by virtue of a referendum held in 1972 and permitted the State to join the European Communities. The Court is satisfied that the first sentence of this provision authorised the State to join three Communities identified as to each by reference to the Treaty which established it.
It is clear and was not otherwise contended by the defendants that the ratification by the State of the SEA (which has not yet taken place) would not constitute an act “necessitated by the obligations of membership of the Communities”. It accordingly follows that the second sentence in Article 29, s. 4, sub-s. 3 of the Constitution is not relevant to the issue as to whether the Act of 1986 is invalid having regard to the provisions of the Constitution. It was contended on behalf of the plaintiff that any amendment of the Treaties establishing the Communities made after the 1st January, 1973, when Ireland joined those Communities would require a further amendment of the Constitution. It was contended on behalf of the defendants that the authorisation contained in the first sentence of Article 29, s. 4, sub-s. 3 was to join Communities which were established by Treaties as dynamic and developing entities and that it should be interpreted as authorising the State to participate in and agree to amendments of the Treaties which are within the original scope and objectives of the Treaties. It is the opinion of the Court that the first sentence in Article 29, s. 4, sub-s. 3 of the Constitution must be construed as an authorisation given to the State not only to join the Communities as they stood in 1973, but also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objectives of the Communities. To hold that the first sentence of Article 29, s. 4, sub-s. 3 does not authorise any form of amendment to the Treaties after 1973 without a further amendment of the Constitution would be too narrow a construction; to construe it as an open-ended authority to agree, without further amendment of the Constitution, to any amendment of the Treaties would be too broad. The issue then arises as to whether the effect of the amendments to the Treaties proposed by the SEA is such as would bring the introduction of them into the domestic law by the Act of 1986 outside the authorisation of Article 29, s. 4, sub-s. 3 as above construed.
The only provisions affecting the European Coal and Steel Community proposed in the SEA are Articles 4 and 5 thereof, and the only provisions affecting the European Atomic Energy Community proposed in the SEA are Articles 26 and 27 thereof. These Articles have essentially the same effect as Articles 11 and 12 with regard to the European Economic Community (the EEC). All of these Articles give a power to the European Council at the request of the Court of Justice of the European Communities to attach to that Court a court of first instance for the trial of certain classes of cases. It is sufficient, therefore, for the purpose of this decision to consider the EEC Treaty (the Treaty of Rome) and the proposed amendments and additions to it.
The Act of 1986 enjoys the presumption of constitutional validity, so the onus is on the plaintiff to show that it is in some respect invalid, having regard to the provisions of the Constitution. The contention made on behalf of the plaintiff on this issue was under four headings.
(1) Changes which are proposed in the decision-making process of the Council in six instances from unanimity to a qualified majority were asserted to be an unauthorised surrender of sovereignty.
(2) The power given to the Council by unanimous decision at the request of the Court of Justice of the European Communities (the European Court) to attach to it a court of first instance with an appeal from the latter on questions of law to the European Court was said to be an unauthorised surrender of the judicial power.
(3) It is submitted that Article 20 dealing with cooperation in economic and monetary policy, Article 21 dealing with social policy, Article 23 dealing with economic and social cohesion, Article 24 dealing with research and technological development, and Article 25 dealing with the environment, all add new objectives to the Treaty of Rome which make them additions to the original Treaty which are outside the existing constitutional authorisation.
(4) It is submitted that powers granted to the Council by Articles 18 and 21 of the SEA would enable it by a qualified majority to direct the approximation of laws concerning the provision of services and concerning the working environment, health and safety of workers which amount to new powers outside the existing constitutional authorisation and which could encroach on existing guarantees of fundamental rights under the Constitution.
In discharging its duty to interpret and uphold the Constitution the Court must consider the essential nature of the scope and objectives of the Communities as they must be deemed to have been envisaged by the people in enacting Article 29, s. 4, sub-section 3. It is in the light of that scope and those objectives that the amendments proposed by the SEA fall to be considered.
Article 2 of the Treaty of Rome provided as follows:
“The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.”
Article 3 of that Treaty set out what the activities of the Community should include for the purposes stated in Article 2, and amongst these activities are:
“(c) the abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital;
(f) the institution of a system ensuring that competition in the common market is not distorted;
(g) the application of procedures by which the economic policies of Member States can be coordinated and disequilibria in their balances of payments remedied;
(h) the approximation of laws of Member States to the extent required for the proper functioning of the common market;
(i) the creation of a European Social Fund in order to improve employment opportunities for workers and to contribute to the raising of their standard of living;
(j) the establishment of a European Investment Bank to facilitate the economic expansion of the Community by opening up fresh resources;
(k) the association of the overseas countries and territories in order to increase trade and to promote jointly economic and social development.”
For the purpose of attaining its objectives and implementing its provisions the Treaty of Rome established certain institutions. Amongst these is the Court of Justice of the European Communities which was established to ensure that in the interpretation and the application of the Treaty the law is observed. The decisions of that Court on the interpretation of the Treaty and on questions covering its implementation take precedence, in case of conflict, over the domestic law and the decisions of national courts of Member States.
Another institution of the EEC is the Council, whose decisions have primacy over domestic law and which for the purpose of ensuring that the objectives of the Treaty are attained is charged with ensuring the co-ordination of the general economic policies of the Member States. Some of its decisions must be unanimous, others may be taken by qualified majority, and still others by simple majority. The capacity of the Council to take decisions with legislative effect is a diminution of the sovereignty of Member States, including Ireland, and this was one of the reasons why the Third Amendment to the Constitution was necessary. Sovereignty in this context is the unfettered right to decide: to say yes or no. In regard to proposals coming before the Council which the State might oppose, unanimity is a valuable shield. On the other hand, in proposals which the State might support, qualified or simple majority is of significant assistance. In many instances the Treaty of Rome provided a requirement that a decision on a particular topic should be unanimous, but would after the expiry of a particular stage or of the transitional period require only a qualified majority. The Community was thus a developing organism with diverse and changing methods for making decisions and an inbuilt and clearly expressed objective of expansion and progress, both in terms of the number of its Member States and in terms of the mechanics to be used in the achievement of its agreed objectives.
Having regard to these considerations, it is the opinion of the Court that neither the proposed changes from unanimity to qualified majority, nor the identification of topics which while now separately stated, are within the original aims and objectives of the EEC, bring these proposed amendments outside the scope of the authorisation contained in Article 29, s. 4, sub-s. 3 of the Constitution. As far as Ireland is concerned, it does not follow that all other decisions of the Council which now require unanimity could, without a further amendment of the Constitution, be changed to decisions requiring less than unanimity.
The power of the Council to attach to the European Court a court of first instance with limited jurisdiction which would be subject to appeal on questions of law to the European Court, does not affect in any material way the extent to which the judicial power has already been ceded to the European Court. This Court is therefore of the opinion that the establishment of an additional court, if it occurs, has not been shown to exceed the constitutional authorisation.
The existing Treaty contains various provisions dealing with the approximation of laws in general, with freedom for the provision of services in the Member States, with working conditions and with the prevention of occupational accidents and diseases. The proposals contained in Articles 18 and 21 of the SEA have not been shown to contain new powers given to the Council which alter the essential character of the Communities. Neither has it been shown that they create a threat to fundamental constitutional rights. Therefore, it is the opinion of the Court that the appeal under this heading also fails.
For the foregoing reasons, it has not been shown to the satisfaction of the Court that any of the provisions of the European Communities (Amendment) Act, 1986, are invalid having regard to the provisions of the Constitution.
On the remaining issues of the appeal the following judgments were then delivered:
Finlay C.J.
9th April 1987
In addition to the appeal against the dismiss of his claim for a declaration that the European Communities (Amendment) Act, 1986, is invalid having regard to the provisions of the Constitution, which has been dealt with in the decision of the Court, the plaintiff has appealed against the dismiss of a claim for a declaration and injunction restraining the Government from ratifying the Single European Act (“the SEA”). The grounds for that claim, other than those already dealt with by the decision concerning the Act of 1986, are that the provisions contained in Article 30 under Title III of the SEA are inconsistent with the Constitution.
These provisions are entitled “Provisions on European cooperation in the sphere of foreign policy.” They do not purport to constitute amendments of or additions to any of the Treaties establishing the Communities. Adherence to these provisions of the SEA by the State could not be an act necessitated by any obligation of membership by the State of the Communities nor could such provisions be laws enacted, acts done or measures adopted by the Communities or institutions thereof. Article 29, s. 4, sub-s. 3 of the Constitution accordingly does not apply to the provisions concerning European Political Cooperation (EPC) contained in Article 30 under Title III of the Single European Act.
Article 29, s. 6 of the Constitution therefore applies to those provisions since they can derive no immunity from it by virtue of Article 29, s. 4, sub-s. 3 and they do not become part of the domestic law of the State unless and until the Oireachtas validly so determines. The Oireachtas has passed no law purporting to bring these provisions into the domestic law of the State. The provisions of the SEA contained in Article 30 therefore rank as part of an international treaty negotiated by the Government but not yet ratified, the terms of which have been approved by resolution of Dail Eireann but which has not been brought into our domestic law.
Article 30 of the SEA is divided into twelve sub-articles. It constitutes an agreement between states adhering to the SEA, described in Title III as”High Contracting Parties”, which are in fact the Member States of the Communities. From the preamble to the SEA and from the terms of Article 30 themselves, it is clear that the agreements contained in that Article are arrived at with the possible ultimate objective of a form of European political union between the Member States of the Communities as an addition to the existing economic union between them. There can be no doubt that if that aim were ever achieved it would constitute an alteration in the essential scope and objectives of the Communities to which Ireland could not agree without an amendment of the Constitution. Article 30 in summary provides for:
1. Cooperation in the formation of foreign policy between the parties, with the aim of formulating and putting into effect a joint foreign policy.
2. Cooperation with the Commission of the Communities.
3. Cooperation with the Parliament of the Communities.
4. Cooperation on European security.
5. The adoption of common positions at international conferences and in international institutions.
6. The state holding the Presidency of the Council of the Communities at any time shall hold the Presidency of the EPC which shall be responsible for initiating action and representing the position of Member States with third countries in relation to EPC activities.
7. A Secretariat is to be established, the members of which will have diplomatic status.
The detailed terms of these provisions impose obligations to consult; to take full account of the position of other partners; to ensure that common principles and objectives are gradually developed and defined; as far as possible to refrain from impeding the formation of a consensus and the joint action which this could produce; to be ready to cooperate policies more closely on the political aspects of security. They do not impose any obligations to cede any national interest in the sphere of foreign policy. They do not give to other High Contracting Parties any right to override or veto the ultimate decision of the State on any issue of foreign policy. They impose an obligation to listen and consult and grant a right to be heard and to be consulted.
The net issue which arises in this part of this appeal is whether, having regard to the general nature and effect of Article 30 of the SEA and its status in relation to our law as above outlined, this Court is entitled under the Constitution, at the instance of the plaintiff, to intervene so as to prevent the Government from ratifying this treaty. It is an issue of a fundamental nature, the importance of which, in my view, transcends by far the significance of the provisions of the SEA. The separation of powers between the legislature, the executive and the judiciary, set out in Article 6 of the Constitution, is fundamental to all its provisions. It was identified by the former Supreme Court in Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and has since been repeatedly acknowledged and implemented by this Court. It involves for each of the three constitutional organs concerned not only rights but duties also; not only areas of activity and function, but boundaries to them as well.
With regard to the legislature, the right and duty of the Courts to intervene is clear and express.
1. Article 15, s. 4, Article 34, s. 3, sub-s. 2 and Article 34, s. 4, sub-s. 4 of the Constitution vest in the High Court and, on appeal, in this Court the right and duty to examine the validity of any impugned enactment of the Oireachtas and, if it be found inconsistent with the Constitution, to condemn it in whole or in part.
2. Article 26 of the Constitution confers on this Court the duty, upon the reference to it by the President of a Bill passed or deemed to have been passed by both houses of the Oireachtas, to decide whether such Bill or any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision thereof.
3. The Courts do not, in my opinion, have any other right to intervene in the enactment of legislation by the Oireachtas.
With regard to the executive, the position would appear to be as follows: This Court has on appeal from the High Court a right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights.
This right of intervention is expressly vested in the High Court and Supreme Court by the provisions of Article 34, s. 3, sub-s. 1 and Article 34, s. 4, sub-s. 3 of the Constitution and impliedly arises from the form of the judicial oath contained in Article 34, s. 3, sub-s. 1 of the Constitution.
Article 29, s. 4, sub-s. 1 of the Constitution provides:
“The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.”
Article 28, s. 2 of the Constitution provides:
“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
The combined effect of these two constitutional provisions clearly is that the executive power of the State in connection with its external relations shall be exercised by or on the authority of the Government but that in so exercising that power the Government is subject to the provisions of the Constitution.
Article 29, s. 5, sub-s. 1 provides:
“Every international agreement to which the State becomes a party shall be laid before Dail Eireann .”
Article 29, s. 5, sub-s. 2 provides:
“The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann .”
I have already referred to the provisions of s. 6 of Article 29 of the Constitution vesting in the Oireachtas the right to determine the extent and manner in which an international agreement shall be part of the domestic law of the State. From these constitutional provisions, it seems reasonable to infer a scheme under the Constitution that by virtue of Article 29, s. 5, sub-s. 1, Dail Eireann should have a primary control over the exercise by the Government of its executive power in relation to entering into international agreements, and that under Article 29, s. 5, sub-s. 2 no international agreement of major importance being one that involved a charge upon public funds could bind the State without the approval of Dail Eireann as to its terms. This scheme is consistent with the provisions of Article 28, s. 3, sub-s. 1 which provide:
“War shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann .”
A declaration of war and participation in war is necessarily part and parcel of the external relations of the State. This provision again emphasises the control by Dail Eireann of the Government in its exercise of executive power in external relations.
The overall provisions concerning the exercise of executive power in external relations do not contain any express provision for intervention by the Courts. There is nothing in the provisions of Articles 28 and 29 of the Constitution, in my opinion, from which it would be possible to imply any right in the Courts in general to interfere in the field or area of external relations with the exercise of an executive power. This does not mean that the executive is or can be without control by the Courts in relation to carrying out executive powers even in the field of external relations. In any instance where the exercise of that function constituted an actual or threatened invasion of the constitutional rights of an individual, the Courts would have a right and duty to intervene.
In this case where the plaintiff adduced no evidence at the hearing in the High Court but relied on matters pleaded and not denied, I am satisfied that he has not established any actual or threatened invasion of any constitutional right enjoyed by him as an individual arising from the terms of Article 30 of the Single European Act.
It was submitted that, whereas the plaintiff acknowledged that the Courts had no function to intervene with the Executive in the formation or statement of policy, either in external relations or in any other part of Government activity, a difference arose where the declaration of policy involved, as it is stated Article 30 of the SEA involves, a commitment to other states for consultation, discussion and an endeavour to coincide policies. I cannot accept this distinction. It appears probable that under modern conditions a state seeking cooperation with other states in the sphere of foreign policy must be prepared to enter into not merely vague promises but actual arrangements for consultation and discussion. I can find no warrant in the Constitution for suggesting that this activity would be inconsistent with the Constitution and would, as is suggested, presumably in each individual instance, require a specific amendment of the Constitution.
I am confirmed in the view which I have reached with regard to the constitutional limits of the intervention by the Courts in the exercise by the Government of its executive functions by the decision of this Court in Boland v. An Taoiseach [1974] I.R. 338. FitzGerald C.J., in the course of his judgment in that case, at p. 362, stated as follows:
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”
In the course of his judgment in the same case, Budd J., at p. 366, stated as follows:
“The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen or the citizen and the State and matters pertaining thereto. Such matters have nothing to do with matters of State policy. Viewing the matter from another angle, as to the nature of any relief that could properly be claimed in proceedings of this nature, I ask whether it could be said that the Courts could be called upon to pronounce adversely or otherwise on what the Government proposed to do on any matter of policy which it was in the course of formulating. It would seem that that would be an attempted interference with matters which are part of the functions of the Executive and no part of the functions of the judiciary. From a practical standpoint alone, what action would be open to the Courts? The Courts could clearly not state that any particular policy ought not to be pursued.
The Constitution goes further in indicating how far the policies involved in government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them. Ultimately, there is the responsibility of the Government to the people who must be consulted by way of referendum where any change of the Constitution is contemplated.”
Griffin J., in the course of his judgment in that case, at p. 370, stated as follows:
“In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and the right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”
I do not consider that it has been established that adherence by the State to the terms of Article 30 of the SEA amounts, in the words of FitzGerald C.J., “to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.” Furthermore, I interpret the decision of Griffin J. in Boland v. An Taoiseach [1974] I.R. 338 as being consistent with the view already expressed by me that where an individual person comes before the Courts and establishes that action on the part of the Executive has breached or threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights but that otherwise they can not and should not.
I, therefore, am satisfied that this appeal on this issue should be dismissed.
Walsh J.
This part of the proceedings deals only with Title III of the Single European Act. The heading of that title is “Provisions on European cooperation in the sphere of foreign policy.” This title is not included in the European Communities (Amendment) Act, 1986. Neither is the preamble to the Single European Act incorporated in or referred to by the said Act. The terms of the preamble are however relevant to the issue now before the Court concerning Title III. In its first paragraph the preamble refers to the will to continue work to transform relations between the Member States of the European Communities into a European Union. It goes on to say that the signatories are resolved to implement “this European Union” firstly on the basis of the Communities operating according to their own rules and, secondly, of European Cooperation among the Signatory States “in the sphere of foreign policy” and to invest this union “with the necessary means of action”. It is abundantly clear, and indeed was not contested in the present case, that so far as Ireland is concerned the creation of a European Union which would include Ireland would require an amendment of the Constitution. Title III of the Single European Act, which in reality is itself a separate treaty although not so in form, does not purport to create a European Union; but on the other hand openly acknowledges that such is the objective.
The preamble goes on to state that the parties are determined “to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice.” So far as the latter aspirations are concerned no objection could be taken to them having regard to the fact that the preamble of the Constitution of Ireland sets out that one of the aims of the Constitution is to safeguard the dignity and freedom of the individual and to assist in establishing concord with other nations. Article 5 of the Constitution says that Ireland is a sovereign, independent and democratic state. Article 29, s. 1 of the Constitution contains the affirmation that Ireland is devoted to the ideal of peace and friendly co-operation amongst nations founded on international justice and international morality (see the Irish language text of the Constitution).
The preamble to the Single European Act further refers to “the responsibility incumbent upon Europe to aim at speaking ever increasingly with one voice and to act with consistency and solidarity in order more effectively to protect its common interests and independence, in particular to display the principles of democracy and compliance with the law and with human rights to which they are attached, so that together they may make their own contribution to the preservation of international peace and security in accordance with the undertaking entered into by them within the framework of the United Nations Charter.” The sentiments there expressed are also unexceptionable as a general objective of the European Community and of the individual Member States, and as such would appear to be in no way incompatible with the aims and aspirations of the Constitution in those fields.
It is however the treaty provisions set out in Title III which have given rise to the plaintiff’s claim for an order to restrain the Government from ratifying the treaty already executed by them. Article 33, s. 1 of the Single European Act provides that it will be ratified “by the High Contracting Parties in accordance with their respective constitutional requirements.” In essence therefore this part of the case is concerned with whether or not, as a matter of Irish law, the method of ratification proposed by the Government is in accordance with the Constitution, namely, whether it can now be ratified on the basis that its terms have been approved in their entirety by Dail Eireann in accordance with Article 29, s. 5, sub-s. 2 of the Constitution.
This brings me to a consideration of the relevant provisions of the Constitution and the treaty-making powers of the executive organ of government (the “Government”). Article 6 of the Constitution refers to “all powers of government” and goes on to differentiate between the legislative, executive and judicial organs of government. It refers to the powers of government as being derived “under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.” It must follow therefore that all the powers of government are to be exercised according to the requirements of the common good. Section 2 of the same Article provides that these powers of government are exercisable”only by or on the authority of the organs of State established by this Constitution.” So far as external or foreign relations are concerned Article 29, s. 4, sub-s. 1 of the Constitution provides that “the executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.” Article 28, s. 2 provides that “the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
The Constitution confers upon the Government the whole executive power of the State, subject to certain qualifications which I will deal with later, and the Government is bound to take care that the laws of the State are faithfully executed. In its external relations it has the power to make treaties, to maintain diplomatic relations with other sovereign States. The Government alone has the power to speak or to listen as a representative of the State in its external relations. It is the Government alone which negotiates and makes treaties and it is the sole organ of the State in the field of international affairs. For these functions it does not require as a basis for their exercise an Act of the Oireachtas. Nevertheless the powers must be exercised in subordination to the applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.
The powers of external sovereignty on the part of the State do not depend on the affirmative grant of this in the Constitution. They are implicit in the provisions of Article 5 of the Constitution. The State would not be completely sovereign if it did not have in common with other members of the family of nations the right and power in the field of international relations equal to the right and power of other states. These powers of the State include the power to declare war or to participate in a war, to conclude peace, to make treaties, and maintain diplomatic relations with other states.
However the exercise of the power is limited. In the first instance the Government alone has the power, as already mentioned, to speak and listen as the representative of the State, and, subject to the constitutional restraints, to make treaties. Article 28, s. 3, sub-s. 1 of the Constitution provides that war shall not be declared and the State shall not participate in any war save with the assent of Dail Eireann . That is one express constitutional prohibition on the exercise by the Government of its powers in its international relations. So far as treaties or international agreements are concerned Article 29, ss. 5 and 6 deal further with the matter. They provide that (a) every international agreement to which the State becomes a party shall be laid before Dail Eireann , (b) the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann (save where the agreements or conventions are of a technical and administrative character) and (c) no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. As a general rule neither the Government nor the Oireachtas can be restrained until their intentions are translated into acts. In proper cases they are subject to judicial cognisance, and judicial review and restraint. Thus statements of the Government policy as such are not restrainable by the Courts. But if the policies are translated, for example, into treaties then different considerations arise.
In the present case counsel for the defendants submitted that even in the case of treaties the Courts are not empowered to interfere unless the treaties are translated into domestic legislation. To do so, the defendants asserted, would be for one of the organs of State to trespass upon the functions of another in a manner unauthorised by the Constitution. The defendants relied upon the decision of the former Supreme Court of Justice in Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 in support of this proposition. That was a case in which legislation was impugned. The power to review legislation is expressly granted by the Constitution. What the Court was doing in that case was to interfere in what it regarded and described at p. 84 of the report as “an unwarrantable interference by the Oireachtas with the operation of the Courts in a purely judicial domain.” It does not follow from that conclusion that the actions of the executive can never be reviewed by the Courts even in respect of matters which are on their face apparently within the exclusive domain of the Government. It is beyond dispute and well settled in many cases that one of the functions of the Courts is to uphold the Constitution. That includes restraining the Government from freeing themselves or purporting to free themselves from the restraints of the Constitution.
This issue was discussed at some length in this Court in the case of Boland v. An Taoiseach [1974] I.R. 338. The subject of that litigation was what became known as the “Sunningdale Agreement”, and in particular clause 5 thereof. It was held by this Court that it was not an agreement or treaty but a communiqué containing declarations and assertions of policy, and therefore was not restrainable. In the course of his judgment in that case FitzGerald C.J. at p. 362 stated:
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
O’Keeffe P. in the course of his judgment at p. 363 stated that it was clearly not within the competence of the Government to agree to depart from the terms of the Constitution. He found that the document in question was not such an agreement but simply a statement of policy. Budd J. stated, and in my view correctly so, that the Courts could clearly not state that any particular policy ought not to be pursued and was of opinion that nothing more than a declaration of policy had been made and that there was not any agreement between the parties. It is to be inferred from his judgment that if an agreement were in existence different considerations would apply. Griffin J. in his judgment was also of opinion that the stage had not been reached in that case where the Courts could intervene as no formal agreement had been reached between the parties, and furthermore that if the contemplated agreement were reached it would have led to legislation which itself could be the subject of a constitutional challenge in the Courts. Pringle J. agreed that the appeal in that case should be dismissed for the reasons stated in the judgments, and that the Courts had no power to interfere with the exercise by the Government of its executive functions in the circumstances relied upon by the plaintiff. That, as I understand it, meant that Pringle J. was in agreement with his colleagues that nothing beyond the pronouncemment of a policy had taken place and that therefore the Courts could not intervene at that stage.
What is at issue in the present case is not simply a declaration of policy but an actual treaty. As it will obviously involve a charge upon the public funds the requirement of the Constitution in Article 29, s. 5, sub-s. 2, that it should be approved by Dail Eireann , has been complied with. The State is not yet bound by this Treaty even though it has been laid before Dail Eireann because its binding effect depends upon ratification in accordance with Irish “constitutional requirements”. The question therefore is whether the State in attempting to ratify this Treaty is endeavouring to act free from the restraints of the Constitution.
The object of this Treaty, so far as Ireland is concerned, is to bind this State in its relations with the other Member States of the European Communities. Adherence to the Treaty, or indeed the Treaty itself, is not in any sense an obligation arising from or necessitated by membership of the European Communities. I do not accept the submission made on behalf of the defendants that unless and until the terms of the Treaty are translated into domestic legislation the Court has no competence in the matter. In international law the State in entering into a treaty must act in good faith. That is why the provision in the Treaty itself for ratification in accordance with the constitutional requirements of this State is so important. If some part or all of the Treaty were subsequently translated into domestic legislation and found to be unconstitutional it would avail the State nothing in its obligations to its fellow members. It would still be bound by the Treaty. Therefore if the ratification of this Treaty under the Irish Constitution requires a referendum to amend the Constitution to give effect to it, the fact that the State did not hold a referendum would not prevent the State from being bound in international law by the Treaty. If a referendum were to be held or had been held and the Treaty were rejected then the State would not be in breach of its international obligations because it would not have ratified the Treaty. It is not for the other states to the Treaty to satisfy themselves that the Government of Ireland observed its own constitutional requirements. This is solely a matter for the Government of Ireland and if it fails to take the necessary steps, the State cannot afterwards be heard to plead that it is not bound by the Treaty.
The Treaty does not purport to commit the State to agreeing to the establishment of a European Union of which Ireland would be a part. That is manifestly something to which the Government could not commit the State. What the Treaty does is to commit the State to pursuing a policy which has, inter alia, as one of its objectives the transformation of the relations of Ireland with the other Member States of the European Communities into a European Union. If this were simply a unilateral statement of policy on the part of the Government or part of a multilateral declaration of policy to the like end it could not be called into question in this Court. As was pointed out by Budd J. in Boland v. An Taoiseach [1974] I.R. 338 at p. 366 it would, as such, be outside “the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them.” The present Treaty provisions go much further than that and, notwithstanding that, they have been approved by Dail Eireann . As was pointed out in the decision of the Court in the first part of this case the essential nature of sovereignty is the right to say yes or to say no. In the present Treaty provisions that right is to be materially qualified.
It commits the State, and therefore all future Governments and the Oireachtas, to the other Member States to do the following things:
1. To endeavour to formulate and to implement a European foreign policy.
2. To undertake to inform or consult the other Member States on any foreign policy matters of general interest (not just of common interest) so as to ensure that the combined influence of the States is exercised as effectively as possible through co-ordination, the convergence of their positions and the implementation of joint action.
3. In adopting its position and in its national measures the State shall take full account of the position of the other Member States and shall give due consideration to the desirability of adopting and implementing common European positions.
4. The State will ensure that with its fellow Member States common principles and objectives are gradually developed and defined.
5. The State shall endeavour to avoid any action or position which impairs the effectiveness of the Community States as a cohesive force in international relations or within international organisations.
6. The State shall so far as possible refrain from impeding the formation of a consensus and the joint action which this could produce.
7. The State shall be ready to co-ordinate its position with the position of the other Member States more closely on the political and economic aspects of security.
8. The State shall maintain the technological and industrial conditions necessary for security of the Member States and it shall work to that end at national level and, where appropriate, within the framework of the competent institutions and bodies.
9. In international institutions and at international conferences which the State attends it shall endeavour to adopt a common position with the other Member States on subjects covered by Title III.
10. In international institutions and at international conferences in which not all of the Member States participate the State, if it is one of those participating, shall take full account of the positions agreed in European Political Cooperation.
One other matter expressed in somewhat ambiguous terms at Article 6 (c) in Title II is as follows:
“Nothing in this Title shall impede closer cooperation in the field of security between certain of the High Contracting Parties within the framework of the Western European Union or the Atlantic Alliance.”
One interpretation of that is that the Member States who are members of the Western European Union or the Atlantic Alliance (Ireland is not a member of either) can develop their own co-operation in those fields without being impeded by anything in Title III of this Treaty. However, it can also amount to an undertaking on the part of this State that in the exercise of whatever powers it may have under Title III it shall do nothing to impede such co-operation in the field of security in the framework of the Western European Union or the Atlantic Alliance on the part of those Member States which belong to those institutions.
All of these matters impinge upon the freedom of action of the State not only in certain areas of foreign policy but even within international organisations such as the United Nations or the Council of Europe. That latter effect of the Treaty could amount to the establishment of combinations within these organisations. In touching upon the maintenance of the technological and industrial conditions necessary for security the Treaty impinges upon the State’s economic, industrial and defence policies. The obligation on the High Contracting Parties after five years to examine whether any revision of Title III is required does not give the Treaty a temporary character.
I mentioned earlier in this judgment that the Government is the sole organ of the State in the field of international relations. This power is conferred upon it by the Constitution which provides in Article 29, s. 4 that this power shall be exercised by or on the authority of the Government. In this area the Government must act as a collective authority and shall be collectively responsible to Dail Eireann and ultimately to the people. In my view it would be quite incompatible with the freedom of action conferred on the Government by the Constitution for the Government to qualify that freedom or to inhibit it in any manner by formal agreement with other States as to qualify it. This view is, in my opinion, corroborated by the provisions of Article 29, s. 4, sub-s. 2 of the Constitution which provides:
“For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.”
The history of this particular provision is too well known to require elaboration but the wording is such that for the particular purpose of that provision the European Economic Community is in my view such a group or league of nations with which the State is associated for the purpose of international co-operation in matters of common concern. However the limitations are very clear. This provision relates solely to the exercise of the executive functions of this State in its external relations and is subject to such conditions, if any, as may be determined by law. Furthermore it simply provides for the adoption of any organ or instrument or method of procedure for the exercise of the executive functions of the State. It does not require prior consultation with any other State as to the policy itself. It also provides that there must be enabling legislation. The framers of the Constitution, and the people in enacting it, clearly foresaw the possibility of being associated with groups of nations for the purpose of international co-operation in matters of common concern and they provided for the possibility of the adoption of a common organ or instrument. Equally clearly they refrained from granting to the Government the power to bind the State by agreement with such groups of nations as to the manner or under what conditions that executive function of the State would be exercised.
In enacting the Constitution the people conferred full freedom of action upon the Government to decide matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as, in the opinion of the Government, the occasion requires. In my view, this freedom does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures, and so to bind the State in its freedom of action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of sovereignty as the freedom to form economic policy and the freedom to legislate. The latter two have now been curtailed by the consent of the people to the amendment of the Constitution which is contained in Article 29, s. 4, sub-s. 3 of the Constitution. If it is now desired to qualify, curtail or inhibit the existing sovereign power to formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action. To acquire the power to do so would, in my opinion, require a recourse to the people “whose right it is” in the words of Article 6 “. . . in final appeal, to decide all questions of national policy, according to the requirements of the common good.” In the last analysis it is the people
themselves who are the guardians of the Constitution. In my view, the assent of the people is a necessary prerequisite to the ratification of so much of the Single European Act as consists of title III thereof. On these grounds I would allow this appeal.
Henchy J.
The Single European Act (“the SEA”) is something of a misnomer, for it is a treaty rather than an instrument with the legislative connotations usually attaching to an Act. As a treaty it has a dual purpose: (1) to amend and supplement the Treaties on which the European Communities are founded; and (2) to put on a formal basis co-operation between the Member States in the field of foreign policy. It is with the latter objective, which is dealt with in Title III of the SEA, that we are concerned in this part of the plaintiff’s appeal.
Title III (which is headed “Provisions on European cooperation in the sphere of foreign policy”) deals with matters which are outside the scope of the existing treaties. This is evidenced by the two opening paragraphs of the preamble to the SEA:
“MOVED by the will to continue the work undertaken on the basis of the Treaties establishing the European Communities and to transform relations as a whole among their States into a European Union, in accordance with the Solemn Declaration of Stuttgart of 19 June 1983,
RESOLVED to implement this European Union on the basis, firstly, of the Communities operating in accordance with their own rules and, secondly, of European Cooperation among the Signatory States in the sphere of foreign policy and to invest this union with the necessary means of action.”
It is clear, therefore, that, so far as Title III is concerned, Ireland’s constitutional authority for ratifying the SEA is not to be found in Article 29, s. 4, sub-s. 3 of the Constitution, which is the constitutional amendment which allowed Ireland to become a member of the European Communities. One must look elsewhere in the Constitution to see if there are express or implied provisions which would make Ireland’s ratification of Title III consistent with the Constitution.
It is first necessary to make clear the scope and objective of Title III, all of which is contained in Article 30 of the SEA. Article 30, s. 1 provides that the Member States of the European Communities “shall endeavour to formulate and implement a European foreign policy.” Thus, unlike the main part of the SEA, Article 30 is not intended to be an amendment of the existing Treaties but sets the Member States on a course leading to an eventual European Union in the sphere of foreign policy. Pending the attainment of that objective, which is outside the stated aims of the existing Treaties, the Member States become bound to formulate and conduct their foreign policy according to the terms stated in Article 30. What had been no more than an objective declared by the Stuttgart Declaration of 1983 is now to become a matter of solemn treaty.
The essence of this fundamental transformation in the relations between the Member States of the European Communities is that they are no longer to have separate foreign policies but are, as far as possible, to merge their national foreign policies in a European (i.e. Community) foreign policy and to work together in the manner indicated, so as to implement what is called European Political Cooperation, with a view to achieving eventual European union.
The principal courses of conduct to which the High Contracting Parties bind themselves are set out in s. 2 of Article 30:
“(a) The High Contracting Parties undertake to inform and consult each other on any foreign policy matters of general interest so as to ensure that their combined influence is exercised as effectively as possible through coordination, the convergence of their positions and the implementation of joint action.
(b) Consultations shall take place before the High Contracting Parties decide on their final position.
(c) In adopting its positions and in its national measures each High Contracting Party shall take full account of the positions of the other partners and shall give due consideration to the desirability of adopting and implementing common European positions.
In order to increase their capacity for joint action in the foreign policy field, the High Contracting Parties shall ensure that common principles and objectives are gradually developed and defined.
The determination of common positions shall constitute a point of reference for the policies of the High Contracting Parties.
(d) The High Contracting Parties shall endeavour to avoid any action or position which impairs their effectiveness as a cohesive force in international relations or within international organizations.”
Without going further into Article 30, it is clear from those provisions that once the Member States ratify this Treaty each state’s foreign policy will move from a national to a European or Community level. Apart from becoming bound to endeavour jointly to formulate and implement a European foreign policy, each Member State will become specifically bound to inform and consult its fellow-members, to refrain from deciding on a final position as to an issue of foreign policy without prior consultations, to take full account of the positions of the other partners in adopting its positions and in its national measures, to ensure that common principles and objectives are gradually developed and defined, and to recognise that the determination of common positions shall constitute a point of reference.
Those and other commitments expressed in Article 30 make manifest that, although the approach to the ultimate aim of European Union is to be reached by a pathway of gradualism, each Member State will immediately cede a portion of its sovereignty and freedom of action in matters of foreign policy. National objectives and ideological positions must defer to the aims and decisions of an institution known as European Political Cooperation, which is to work in tandem with the European Communities. A purely national approach to foreign policy is incompatible with accession to this Treaty. The methods of co-operation between the Member States, which hitherto have been informal, aspirational or, at most, declaratory (as under the Stuttgart Declaration), now pass into a realm of solemnly covenanted commitment to the conduct of foreign policy in a way that will lead to European political union, at least in the sphere of foreign policy. In that respect, Title III of the SEA is the threshold leading from what has hitherto been essentially an economic Community to what will now also be a political Community.
In the case of Ireland, it is proposed that this transformation be effected not by any amendment of the Constitution, nor by any statutory change in the domestic law, but by simply depositing an instrument of ratification of the SEA. The fundamental and far-reaching changes in the conduct of the State’s foreign policy to which I have referred would thus be effected by the Government, without reference to the people and without an Act of parliament. Counsel for the Government has sought to justify this approach by submitting that, because Article 29, s. 4, sub-s. 1 of the Constitution has committed the conduct of foreign policy to the Government, the Courts are not entitled to control the Government in the way it decides to conduct foreign policy. It is therefore contended that the plaintiff’s claim is ill-founded.
I am unable to accept the submission that the powers of Government in the conduct of foreign policy are not amenable to control by the Courts. It is true that Article 29, s. 4, sub-s. 1 of the Constitution provides that “the executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.” However, when one turns to Article 28 one finds that s. 2 of that Article clarifies the position by declaring that “the executive power of the State shall, subject to the provisions of this Constitution,be exercised by or on the authority of the Government.” (Emphasis added). It follows, therefore, that in the conduct of the State’s external relations, as in the exercise of the executive power in other respects, the Government is not immune from judicial control if it acts in a manner or for a purpose which is inconsistent with the Constitution. Such control is necessary to give effect to the limiting words “subject to the provisions of this Constitution.”
In testing the constitutional validity of the proposed ratification of the SEA (insofar as it contains Title III) it is important to note that the Constitution at the very outset declares as follows in Article 1:
“The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right . . . to determine its relations with other nations . . . in accordance with its own genius and traditions.”
It appears to me that this affirmation means that the State’s right to conduct its external relations is part of what is inalienable and indefeasible in what is described in Article 5 as “a sovereign, independent, democratic State.” It follows, in my view, that any attempt by the Government to make a binding commitment to alienate in whole or in part to other states the conduct of foreign relations would be inconsistent with the Government’s duty to conduct those relations in accordance with the Constitution.
The ultimate source and limits of the Government’s powers in the conduct of foreign relations are to be found in Article 6, s. 1 of the Constitution:
“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”
It follows that the common good of the Irish people is the ultimate standard by which the constitutional validity of the conduct of foreign affairs by the Government is to be judged. In this and in a number of other respects throughout the Constitution the central position of the common good of the Irish people is stressed as one of the most fundamental characteristics of Ireland as a sovereign, independent, democratic state.
A perusal of Title III of the SEA satisfies me that each ratifying Member State will be bound to surrender part of its sovereignty in the conduct of foreign relations. That is to happen as part of a process designed to formulate and implement a European foreign policy. The freedom of action of each state is to be curtailed in the interests of the common good of the Member States as a whole. Thus, for example, in regard to Ireland, while under the Constitution the point of reference for the determination of a final position on any issue of foreign relations is the common good of the Irish people, under Title III the point of reference is required to be the common position determined by Member States. It is to be said that such a common position cannot be reached without Ireland’s consent, but Title III is not framed in a manner which would allow Ireland to refuse to reach a common position on the ground of its obligations under the Irish Constitution. There is no provision in the Treaty for a derogation by Ireland where its constitutional obligations so require. On the contrary, Title III expressly provides:
“In adopting its positions and in its national measures [which presumably would include Acts of the Oireachtas] each High Contracting Party shall take full account of the positions of the other partners and shall give due consideration to the desirability of adopting and implementing common European positions.”
Thus, if the other Member States were to take up a common position on an issue of external relations, Ireland, in adopting its own position and in its national measures, would be bound by Title III to “take full account” of the common position of the other Member States. To be bound by a solemn international treaty to act thus is, in my opinion, inconsistent with the obligation of the Government to conduct its foreign relations according to the common good of the Irish people. In this and in other respects Title III amounts to a diminution of Ireland’s sovereignty which is declared in unqualified terms in the Irish Constitution.
It is urged on behalf of the Government that the changes in existing inter-state relations effected by Title III are slight, that it does little more than formalise existing practices and procedures by converting them into binding obligations. This, I fear, is to underestimate the true nature in international law of a treaty as distinct from a mere practice or procedure, and to misinterpret the commitments for the future involved in Title III. As a treaty, Title III is not designed in static terms. It not alone envisages changes in inter-state relations, but also postulates and requires those changes. And the purpose of those changes is to erode national independence in the conduct of external relations in the interests of European political cohesion in foreign relations. As I have pointed out, the treaty marks the transformation of the European Communities from an organisation which has so far been essentially economic to one that is to be political also. It goes beyond existing arrangements and practices, in that it establishes within the framework of the Communities new institutions and offices (such as European Political Cooperation, the Political Director and the Political Committee) and charts a route of co-ordination, by means such as working parties, a secretariat and regular meetings, so as to give impetus to the drive for European unity.
All this means that if Ireland were to ratify the Treaty it would be bound in international law to engage actively in a programme which would trench progressively on Ireland’s independence and sovereignty in the conduct of foreign relations. Ireland would therefore become bound to act in a way that would be inconsistent with the Constitution. The Government’s constitutional mandate requires it to act in accordance with the Constitution. In proposing to ratify this treaty it is in effect seeking to evade that obligation and to substitute for it an obligation, or a series of obligations, in international law which cannot be reconciled with the constitutional obligations.
There is, of course, nothing in the Constitution to prevent the Government, or any person or group or institution, from advocating or campaigning for or otherwise working for a change in the Constitution. Likewise there does not appear to be any constitutional bar to a non-binding arrangement by the State to consult with other states in the conduct of its foreign policy. It is quite a different matter when, as here, it is proposed that the State be bound by an international treaty which requires the State to act in the sphere of foreign relations in a manner which would be inconsistent with constitutional requirements. What would be an imperative under international law would be proscribed under the Constitution. In such circumstances it is the Constitution that must prevail.
For the foregoing reasons I am of the opinion that, without the appropriate constitutional amendment, the ratification of the SEA (insofar as it contains Title III) would be impermissible under the Constitution. I would declare accordingly.
Griffin J.
I agree with the judgment delivered by the Chief Justice. I should like however to add some observations of my own.
Title III, although included in the Single European Act (SEA), and set out in Article 30 in that Act, is effectively a separate treaty between the twelve countries who are the Member States of the European Communities. They are referred to throughout that Title as the High Contracting Parties (“the parties”), the designation usually applied to states in international treaties. The long term aim and objective of Title III is the formation of a European union. It is not in issue that if the State were to join such a union, a constitutional amendment would be necessary, but a European union is neither sought to be created nor is it created by the Treaty.
There has been European Political Cooperation (EPC) since October, 1970, (prior to the entry of the State to the Communities), when the first report of the Foreign Ministers of the Members States was adopted at Luxembourg. In that report the governments undertook to co-operate in the field of foreign policy by consulting regularly, harmonising views and opinions, concerting attitudes, and, where possible, undertaking joint action. There were three subsequent reports in 1973, 1981 and 1983, and Article I of the SEA provided that political co-operation should be governed by Title III and that the provisions of that Title should confirm and supplement the procedures agreed in the four reports and the practicesgradually established among the Member States. The purpose of Title III which is entitled “Treaty Provisions on European Cooperation in the sphere of foreign policy” appears to be to formalise the procedures and practices of the EPC and to do so by means of a treaty. By virtue of Article 32 of the SEA, nothing in Title III is to affect the Treaties establishing the Communities, so it does not purport to amend the Treaties in any way.
Details or summaries of the provisions of Article 30 have been included in the judgments already delivered and I do not propose to repeat them, although I will refer to some of those provisions. The language used in Article 30 would appear to have been chosen with extreme care to ensure that the obligations of the parties under the treaty would permit the utmost freedom of action to each of the parties in the sphere of foreign policy, and is in stark contrast to that used in Title II. For example, the parties are to endeavour to formulate and implement a foreign policy; to inform andconsult each other on foreign policy matters; consultations are to take place before deciding on their final position; they are to endeavour to avoid any action or position which impairs their effectiveness as a cohesive force; they are as far as possible to refrain from impeding a consensus; in international institutions and at international conferences they are to endeavour to adoptcommon positions on the subjects covered by the Title, and where not all the parties participate in such institutions or conferences, they are to take full account of positions agreed in EPC. On security, the parties are expressed to be ready to co-ordinate their positions more closely on the political and economic aspects of security military and defence aspects of security are not included and in my view should accordingly be considered to be excluded. Under clause 6 (c) nothing in Title III is to impede closer co-operation in the field of security between certain of the parties within the framework of the Western European Union or the Atlantic Alliance this provision would appear clearly to have been inserted to ensure that the declared stand on neutrality and military alliances taken by the State is fully respected, as the State is the only party which is not a member of either alliance, although four other parties are also not members of the Western European Union.
Having regard to the terms in which the provisions of Title III are expressed, I am in complete agreement with the Chief Justice in concluding that those provisions do not impose any obligations to cede any sovereignty or national interest in the field of foreign policy, nor do they in any way allow a decision of the State on any issue of foreign policy to be overridden or vetoed. The Treaty, being an international agreement to which the State is a party, has been laid before and been approved by Dail Eireann in compliance with the provisions of Article 29, s. 5, sub-ss. 1 and 2 of the Constitution. The Government is therefore, in my opinion, as the organ of government by which the executive power of the State is to be exercised pursuant to Article 29, s. 4 of the Constitution, entitled to ratify the Treaty without the necessity of an amendment of the Constitution.
However, there remains, as the Chief Justice pointed out in his judgment, an issue of a fundamental nature, i.e., as to whether the Court is entitled, at the instance of the plaintiff, to prevent the Government from ratifying the Treaty. In presenting the argument on behalf of the plaintiff, his counsel Mr. Browne, in relation to Title III, based his right to seek the intervention of this Court to prevent ratification of the Treaty on an apprehension on the part of the plaintiff that Title III would affect the independence of the State in relation to foreign policy, even though, as he put it, the Treaty had not become part of the domestic law of the State under Article 29, section 6. This brings into question the power of the Court to intervene in the acts of the Executive and inevitably to consideration of the separation of powers provided for in the Constitution.
Article 6 of the Constitution reads as follows:
“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
The effect of this Article has been considered and interpreted in a number of cases, which include Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and Boland v. An Taoiseach [1974] I.R. 338. In Buckley’s Case O’Byrne J. delivered the judgment of the Court and said at p. 81 that the object of Article 6 was:
“. . . to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”
Under Article 15, s. 2, sub-s. 1 the Oireachtas is the organ of State in which the sole and exclusive power of making laws is vested. Article 15, s. 4, sub-s. 1 provides that the Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or to any provision thereof; and sub-s. 2 of that section provides that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid. Under Article 34, s. 1 the judicial power of government can be exercised only by judges duly appointed in the manner provided by the Constitution in courts established by law under the Constitution. The High Court and this Court on appeal from the High Court are by Article 34, s. 3, sub-s. 2 expressly given jurisdiction to examine the validity of any law enacted under Article 15 which may be challenged as being repugnant to the Constitution or to any provision thereof. If the challenged Act or any provision thereof is found to be invalid by the High Court or by this Court, the Court so finding is bound to declare that the impugned Act or provision thereof is invalid. Those Articles provide the only power given to the Courts by the Constitution to declare invalid legislation enacted by the Oireachtas.
In the case of a Bill referred to this Court by the President, pursuant to Article 26 of the Constitution, for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to the Constitution or to any provision thereof, this Court is by Article 26, s. 2, sub-s. 1 given express power, and has the duty, to consider such question and pronounce its decision on such question. This is the only power given to any Court to consider a Bill which has not yet become law.
In my opinion, the Courts have no power, either express or implied, to interfere with the Oireachtas in the course of the passage of a Bill, and all efforts seeking to prevent by Court interference the introduction or passage of a Bill have failed, the most recent example being the unsuccessful attempt by the plaintiff in this case to prevent the introduction of the European Communities (Amendment) Bill, 1986.
Article 28, s. 2 provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. Under s. 4, sub-s. 1 of Article 28 the Government shall be responsible to Dail Eireann . Article 29, s. 4, sub-s. 1 provides that the executive power of the State in or in connection with its external relations shall in accordance with Article 28 of the Constitution be exercised by or on the authority of the Government.
No express power is given by the Constitution to the Courts to interfere in any way with the Government in exercising the executive power of the State. However, the Government, and all of its members and the administration in respect of which the members are responsible, are subject to the intervention of the Courts to ensure that in their actions they keep within the bounds of lawful authority. Where such actions infringe or threaten to infringe the rights of individual citizens or persons, the Courts not only have the right to interfere with the executive power but have the constitutional obligation and duty to do so. But that right to interfere arises only where the citizen or person who seeks the assistance of the Courts can show that there has been an actual or threatened invasion or infringement of such rights.
As stated earlier, the executive power of the State in or in connection with its external relations shall, in accordance with Article 28, be exercised by or on behalf of the Government. Under Article 29, s. 5, sub-s. 1 every international agreement to which the State becomes a party shall be laid before Dail Eireann , and under sub-s. 2 of that section the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann , Dail Eireann being the body to which the Government is expressly answerable under Article 28, s. 4, sub-s. 1. The constitutional scheme in respect of international agreements would appear therefore to be that the Government, exercising the executive power, may enter into international agreements, but such agreements must be laid before Dail Eireann , and if the agreement involves a charge on public funds, the State is not to be bound by the agreement unless the terms of the agreement have been approved of by Dail Eireann .
The power of the Court to interfere with the exercise by the Government of the executive power of the State was considered by this Court in Boland v. An Taoiseach [1974] I.R. 338. FitzGerald C.J., having referred to the statement of O’Byrne J. in Buckley & Others (Sinn Féin) v. Attorney General [1950] I.R. 67 and to the separation of the executive, legislative and judicial powers of government in Article 6 of the Constitution, said at p. 362:
“Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
And in the same case, I said at p. 370:
“Counsel for the defendants argued that in no circumstances may the Courts interfere with the Government in the exercise of its executive functions. For the purpose of this action it is not necessary to determine this question in the form in which the argument was made, as the defendants need only show that the Courts cannot and should not intervene having regard to the circumstances of the present case. In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”
I see no reason to resile from what is stated in that passage, which was said in the context of an unqualified submission by counsel for the defendants that it is no part of the function of the judicial organ of the State to interfere with the Government in the exercise by it of the executive power of the State. In that case, in discussions arising out of that submission, members of the Court put to counsel for the defendants the example of a declaration of war by the Government without the assent of Dail Eireann , in clear breach of the provisions of Article 28, s. 3 of the Constitution, as being a circumstance in which the Court would be bound to intervene to protect a citizen against what would undoubtedly be an invasion of his rights and a justiciable matter. I fully endorse the opinion of the Chief Justice that there is nothing in the provisions of Articles 28 and 29 of the Constitution from which it would be possible to imply any general right in the Courts to interfere with the exercise of the executive power in the sphere or area of external relations, but that in any instance where the exercise of that power constitutes an actual or threatened invasion or breach of the constitutional
rights of an individual the Courts must have both the right and the duty to intervene to protect those rights. The decision in Boland v. An Taoiseach [1974] I.R. 338 is in my opinion consistent with that view.
In my judgment, the plaintiff has failed to establish any such invasion or breach of any of his rights resulting from the State being a party to the Treaty the provisions of which are set out in Title III.
I would accordingly dismiss this appeal.
Hederman J.
I agree with the judgments of Walsh J. and Henchy J. for the reasons given by them. There is little I can usefully add.
It appears to me that the essential point at issue is whether the State can by any act on the part of its various organs of government enter into binding agreements with other states, or groups of states, to subordinate, or to submit, the exercise of the powers bestowed by the Constitution to the advice or interests of other states, as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies.
The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers not the disposers of them. For the reasons already stated I would allow the appeal.
[Editor’s Note: On 25th May, 1987, in a referendum to amend the Constitution by inserting a provision approving the accession of Ireland to the Single European Act, the number of votes cast in favour of the amendment was 755,423 and the number of votes against 324,977, the amendment being thereby carried.]
Meagher v Min Agriculture & Food
[1993] 11 JIC 1803, 1993 WJSC-SC 4046
Court: Supreme Court (Ireland)
Judge: MR. JUSTICE BLAYNEY, DENHAM J.
LAW
The sources of the law in issue are both national, constitutional and statutory, and European, however all are part of the domestic law. The relevant sections have been set out previously but for analysis I re-state them.
(i) Bunreacht na hEireann Article 15.2.1:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” Hereinafter referred to as Art. 15.2.1.
(ii) Bunreacht na hEireann Article 29.4.
2 “3. The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Automic Energy Community (established by Treaty signed at Rome on 25th March, 1957).
The State may ratify the Single European Act (signed on behalf of the Member States of the Communities at Luxembourg on the 17th day of February, 1986, and at the Hague on the 28th day of February, 1986.
4. The State may ratify the Treaty on European Union signed at Maastricht on the 7th day of February, 1992, and may become a member of that Union.
5. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities, or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.
(iii) European Communities Act, 1972.
” Section 2 From 1st January, 1973, the Treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those Treaties.”
Hereinafter referred to as s. 2 of the 1972 Act. Section 3 (i)A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
Section 3(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
Hereinafter referred to as s. 2, s. 3(1) or s. 3(2) of the 1972 Act.
(iv) Treaty of Rome, Article 5:
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising on this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.”
They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty”. Hereinafter referred to as Art. 5.
(v) Treaty of Rome, Article 189:
“In order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions.
A regulation shall have general application, it shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods …”.
Hereinafter referred to as Art. 189.” This case is not about a balance of power between Community Authorities and National Authorities. It was accepted by the parties that Community Law has primacy.
The issue to be determined is the balance within the national forum of s. 2 and s. 3 of the 1972 Act, Art. 15.2 and Article 29.4.5 of Bunreacht na hEireann and Arts. 5 and 189 of the Treaty of Rome. Thus the kernel is the word “necessitated” in Art. 29.4.5 and the “choice” afforded in Art. 189.
FACTS
On the facts of the case there was no contest. There was no replying affidavit to either of the affidavits filed by the State.
The State set out facts which established that under the Directive an extension of time within which to apply for a summons was necessary, as was a power to search.
I am satisfied that on the facts of the case, as set out by the State and not controverted by the applicant/respondent, it was necessary in view of the substance of the Directive to both extend time within which a summons could be issued and to authorize search warrants.
Thus, while, in general, facts may be judicially reviewable they were not in contest in this case.
” NECESSITATED”
It is clear that on the facts of this case it was necessary (a) to amend Petty Sessions (Ireland) Act, 1851 as to the time limits within which to apply for a summons and (b) to create a right of search.
There is no doubt that these two factors must be brought into Irish Domestic Law under its obligations under Community Law.
However, the fact that they were “necessitated” under the Directive to be incorporated into national law is not the end of the matter.
” CHOICE”
Art. 189 leaves to the National Authorities the choice of form and methods. In choosing the form and method the Minister has to act in accordance with the law and the Constitution. Thus the Minister must balance the relevant Articles of the Constitution, which in this case are Art. 15.2 and Art. 29.4.5. His choice, under Art. 189, must be in accordance with national law, the Constitution and Community Law. His decision is judicially reviewable.
The fact that the substance of the Directive is binding as to the result to be achieved, and that a Minister must initiate an enabling national process, does not determine the issue of choice of method. Whereas the State is required to implement the substance of the Directive into law, the State is not required by Community Law to choose any particular form or method.
FORM OR METHOD
In determining the form or method the State, Minister, must have due regard to the Constitution, both Art. 15.2 and Art. 29.4.3.
Under Bunreacht na hEireann as enacted in 1937 the sole and exclusive power of making law for the State was vested in the Oireachtas. This is a fundamental aspect of democratic government, based on the separation of powers.
That basic tenet has been qualified by membership of the European Community which has established other law making authorities. Inter alia it has established law making in the form of directives, which are binding on the State, as to the result to be achieved, leaving to the national authorities the choice of form and methods.
Were the Constitution still in its 1937 form the State, Minister, would have no choice – he would have to initiate a process of legislation through the Oireachtas. However, the Constitution has been amended, and Community Law has been introduced to the domestic law, and the situation is not now governed by Art. 15.2 alone. Art. 15.2 cannot be read in isolation.
The term “necessitated” in Art. 29.4.5 together with Art. 189 of the Treaty make it clear that in balancing the two the mere fact that the substance in laws enacted, acts done or measures adopted, is necessary to be incorporated into domestic Irish law, is not the end of the matter.
The term “necessitated” is relevant to the choice of method, however membership has not itself obligated a special form and method of implementation. Art. 15.2 and the choice of form and methods of Art. 159 must then be read together with Art. 29.4.5.
Art. 29.4.5 refers to “laws enacted, acts done or measures adopted.” Clearly this refers to legislation through the Oireachtas and other methods of implementation, including the two sets of regulations herein.
The Minister made the regulations under s. 3 of the 1972 Act. The Directive is “binding” on the State as to the result to be achieved. The principles and policies are set out in the Directive. Under s. 3(2) the Minister’s regulations may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations, including amending an Act (exclusive of the 1972 Act). Clearly incidental, supplementary and consequential provisions are not foundation principles and policies.
If the Directive left to the national authority matters of principle or policy to be determined then the “choice” of the Minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined by the national authority, where the situation is that the principles and policies were determined in the Directive, then legislation by a delegated form, by regulation, is a valid choice. The fact that an Act of the Oireachtas has been affected by the policy in a directive, is a “result to be achieved” wherein there is now no choice between the policy and the national Act. The policy of the Directive must succeed. Thus where there is in fact no choice on a policy or a principle it is a matter appropriate for delegated legislation. If the Directive or the Minister envisaged any choice of principle or policy then it would require legislation by the Oireachtas.
The appropriate test is as set out by O’Higgins C.J. in Cityview Press v. An Chomhairle Oiliuna 1980 I.R. 381 at p. 399, where he stated:-
“In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
Applying the test to this situation the test is whether the ministerial regulations under s. 3 of the 1972 Act are more than the mere giving effect to principles and policies of the said Act and the Directives which are part of domestic law as to the result to be achieved.
If the regulations contain material exceeding the policies and principles of the Directives then they are not authorised by the Directives and would not be valid under s. 3 unless the material was incidental, supplementary or consequential. In those circumstances if they were not incidental, supplementary or consequential the regulations would be an exercise of legislative power by an authority not so permitted under the Constitution. If it be within the permitted limits, if the policy is laid down in the Directive and details only are filled in or completed by the regulations, there is no unauthorised delegation of legislative power.
DEMOCRACY
The Separation of powers is a fundamental principle of Bunreacht na hEireann. The power to legislate for the State is solely within the Oireachtas – save where that authority has been assigned under the Constitution to Community Authorities and organs of the State to act in accordance with Community Law as integrated into national law.
There was no question in this case that the principles and policies of the Directives were not within the Treaties.
In the Directives herein the policies and principles have been determined. Thus there is no role of determining policies or principles for the Oireachtas. While the Directive must be implemented there is no policy or principle which can be altered by the Oireachtas, it is already binding as to the result to be achieved.
That being the case the role of the Oireachtas in such a situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as to what has already been decided, which debate would act as a source of information. Such a sterile debate would take up Dail and Senate time and act only as a window on community directives for the members of the Oireachtas and the nation. That is not a role envisaged for the Oireachtas in the Constitution.
Consequently, solely because the Minister is making a regulation which repeals a statute, does not of itself invalidate the regulation which as a vehicle, as a choice, can be intra vires the Constitution under Art. 29.4. To say that the regulations breach Art. 15.2.1 simply because it repeals or amends a statute is to hold the false premise that the Minister is determining principles or policy.
The regulations in this case being within the policies and principles of the Directives the substance of the regulation is within the Directives. There are no policies and principles enunciated in the regulations that are not within the Directives. There are no policies and principles in the regulation additional to the directive.
Consequently, to state that such an action – effectively an administrative implementation of policies and principles of a directive – is superior legislation as envisaged in Art. 15.2.1 – is a misnomer. Superior legislation involves a decision on policies and principles by the Legislature and an implementation thereof in the form of a statute. Here what is at issue in essence is subordinate legislation as delegated under Community Law.
No constitutional right, other than the process under Art. 15.2, of Bunreacht na hEireann was submitted as part of the argument, or as being in issue. Nor was any issue raised as to the validity of the Directives and their principles and policies under the Treaties.
I am satisfied that the regulations in issue in this case were not ultra vires the power of the Minister for Agriculture and Food under s. 3 European Communities Act, 1972insofar as they authorised the procedure for the granting of the search warrant, and insofar as they extended time thereby amending s. 10(4) Petty Sessions (Ireland) Act, 1851 being as they were implementations of policies and principles in the relevant Directives.
I am in agreement with the judgment of Blayney, J. and consequently I would allow the appeal.
Browne v. Ireland
[2003] 3 IR 208
Keane C.J.
The detention order granted by the fourth respondent was for 48 hours, during which time the catch was offloaded and sold, the proceeds of £16,900 being retained pending the outcome of the prosecution.
The applicant having waived any preliminary examination, he was returned for trial on two charges. The first was that he:- “did keep on board the said sea fishing vessel, a drift net prohibited by art. 11 of Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998 and of para. 4 of the Sea Fisheries Drift Net Order 1998, contrary to s. 223A of the Fisheries (Consolidation) Act 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994.”
The second charge was that the applicant:-
“did use for fishing one or more drift nets prohibited by art. 11 of Council Regulation (E.C.) 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998 and contrary to art. 3 of the Sea Fisheries (Drift Nets) Order 1998, contrary to s. 223A of the Fisheries (Consolidation) Act 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994.”
At every stage of these procedures, the solicitor for the applicant objected that there was no jurisdiction to detain the vessel and gear and prosecute the applicant for an offence allegedly committed on the high seas outside the exclusive fishing limits of the State. The vessel was released to the applicant subsequent to the entry by him of bail bonds to secure its release.
The grounds on which the High Court granted leave to apply by way of judicial review for the reliefs ultimately granted can be summarised as follows:-
(1) the Sea Fisheries (Drift Nets) Order 1998 (hereafter “the Order of 1998”) of which the applicant was alleged to be in breach, wasultra vires the powers of the second respondent, having been made in purported exercise of powers conferred on him by s. 223A of the Fisheries (Consolidation) Act 1959, as amended and not in exercise of the powers conferred on the second respondent by s. 3(1) of the European Communities Act 1972, as amended;
(2) the Order of 1998 is ultra vires the powers conferred on the second respondent by s. 223A of the Act of 1959 in purporting to authorise the creation by the second respondent of an indictable offence outside the exclusive fisheries limits of the State;
(3) alternatively, if the said regulations are intra vires s. 223A, the latter section constituted an impermissible delegation of law making power by the Oireachtas to the second respondent, contrary to Article 15 of the Constitution;
(4) Council Regulation (E.C.) No. 1239/98 (hereafter “the Council Regulation of 1998”) is unlawful and invalid as, inter alia, being contrary to the aims of the common fisheries policy, violating the principles of proportionality and infringing the applicant’s legitimate expectation of the right to earn a living by way of drift net fishing and the principle of non-discrimination.
In his judgment, the High Court Judge found in favour of the applicant on the first and second grounds and it was accordingly unnecessary for him to reach any conclusion as to the constitutionality of s. 223A of the Act of 1959 or as to whether the Council Regulation of 1998 was unlawful and invalid and, accordingly, neither of these grounds was the subject of any submissions to this court.
It should, however, be pointed out that proceedings were instituted in the Court of First Instance of the European Communities in Armenent Cooperatif Artisanal Vendéen (ACAV) v. Council of the European Union (Case T/138/98) [2000] II E.C.R. 341 seeking the setting aside of the Council Regulation of 1998 and that members of the Irish Tuna Association, including the applicant, were given leave to intervene in that case. Ireland also intervened in the proceedings and supported the application to set aside the regulation. In its judgment of the 22nd February, 2000, the Court of First Instance dismissed the action as inadmissible.
The regulatory framework
The Council Regulation of 1998 is a European measure laying down certain technical measures for the conservation of fishery resources. It amended an earlier regulation (Council Regulation (E.C.) 894/97). Articles 11 and 11a provide as follows:-
“11. No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5 kilometres.
11a.(1) From 1st January 2002, no vessel may keep on board, or use for fishing, one or more drift nets intended for the capture of species listed in Annex VIII.
(2) From 1st January 2002, it is prohibited to land species listed in Annex VIII which have been caught in drift nets.
(3) Until 31st December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the flag member state. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more drift-nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 to 1997.
(4) Member States shall communicate to the Commission for each target species by 30th April of each year, the list of vessels authorised to carry out fishing activities using the drift nets referred to in paragraph 3; for 1998, the information shall be sent not later than 31st July 1998.”
One of the species listed in Annex VIII is albacore tuna.
Council Regulation (E.E.C.) No. 2847/93 of the 12th October, 1993, (hereafter “Council Regulation of 1993”) is a measure establishing a control system applicable to the common fisheries policy binding on the member states under the provisions of the Treaty of Rome. Article 31 provides that:-
“1. Member States shall ensure that the appropriate measures be taken, including of (sic) administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:
– fine,
– seizure of prohibited fishing gear and catches,
– sequestration of the vessel,
– temporary immobilization of the vessel,
– suspension of the licence,
– withdrawal of the licence.”
The relevant provisions of the Order of 1998 are as follows:-
“I, Michael Woods, Minister for the Marine and Natural Resources, in exercise of the powers conferred on me by Section 223A (inserted by Section 9 of the Fisheries (Amendment) Act 1978 (No. 18 of 1978)), and amended by Section 4 of the Fisheries (Amendment) Act, 1983 (No. 27 of 1983)) of the Fisheries (Consolidation) Act, 1959 (No. 14 of 1959) and the Fisheries (Transfer of Departmental Administration and Ministerial Functions) Order, 1977 (S.I. 30 of 1977) (as adapted by the Marine (Alteration of Name and Department and Title of Minister)) Order, 1997 (S.I. No. 301 of 1997)), for the purpose of giving effect to Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998 hereby order as follows:-
2. In this order –
‘Drift nets’ means a wall of netting used in fishing, which is free to move according to tide and wind conditions.
3.(1) Subject to Article 4 of this Order, the master of an Irish sea fishing boat shall comply with Articles 11, 11a and 11b of the Council Regulation.
(2) Subject to Article 4 of this Order, the master, owner, charterer or hirer of an Irish sea fishing boat shall not cause or permit a person on board the boat to fail to comply with Articles 11, 11a or 11b of the Council Regulation.
(3) Subject to Article 5 of this Order, the master of a foreign sea fishing boat, in the exclusive fishing limits of the State, shall comply with Articles 11, 11a and 11b of the Council Regulation.
(4) Subject to Article 5 of this Order, the master, owner, charterer or hirer of a foreign sea fishing boat shall not cause or permit a person on board the boat, in the exclusive fishery limits of the State, to fail to comply with Articles 11, 11a or 11b of the Council Regulation.
4.(1) The holder of an authorisation granted under Article 6 of this Order may keep on board an Irish sea fishing boat to which the authorisation relates, or use for fishing from the boat, one or more drift nets whose individual or total length is not more than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to keep on board, or use for fishing from the boat, one or more such drift nets, intended for the capture of species listed in the Annex.
(2) This Article shall cease to have effect on the 1st day of January, 2002.”
There follows an article entitling the holder of an equivalent authorisation to keep on board a foreign sea fishing boat drift nets of the prescribed length within the exclusive fishery limits of the State, which article was also to cease to have effect on the 1st January, 2002. Article 6 then goes on to provide for the granting by the Minister of the necessary authorisations and contains ancillary provisions relating thereto.
Finally, art. 7 revokes the Sea Fisheries (International Waters) (Drift Net) Order 1994 (hereafter “the Order of 1994”) and the Sea Fisheries (Drift Net) Order 1995 (hereafter “the Order of 1995”).
The Order of 1994, which was also made in purported exercise of the powers conferred on the Minister by s. 223A of the Fisheries (Consolidation) Act 1959 provided that the provisions of art. 9a of an earlier Council Regulation (Council Regulation (E.E.C.) No. 3094/86), as amended by Council Regulation (E.E.C.) No. 345/92 of the 27th January, 1992, were thereby prescribed and adopted and that, accordingly, any infringement of art. 9a(1) of the Council Regulation outside the exclusive fishery limits of the State in relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel, after the commencement of the order was to be an infringement of the order. The articles referred to in the earlier regulations were in similar terms to art. 11(and 11b) of the Regulation of 1998. A drift net was also defined in the same manner as in the Order of 1998.
The Order of 1995 again, made in purported exercise of the powers conferred on the Minister by s. 223A of the Fisheries (Consolidation) Act 1959 contained a similar prohibition in respect of any vessels within the exclusive fishery limits of the State.
The Fisheries (Consolidation) Act 1959 is, as its short title indicates, a consolidating Act which repealed and re-enacted legislation concerned with fisheries stretching back to 1846. As originally enacted in 1959, it contained 21 parts and 335 sections. Only one part – Part XIII containing originally 24 sections – relates exclusively to sea fisheries. Part XIII has been amended from time to time, the first relevant amendment in the context of the present proceedings being the insertion of a new s. 223A by s. 9 of the Fisheries (Amendment) Act 1978 which was as follows:-
“(1) The Minister may by order prescribe and adopt such measures of conservation of fish stocks and rational exploitation of fisheries as the Minister thinks proper.
(2) A person who contravenes or attempts to contravene an order under this section shall be guilty of an offence.
(3) The Minister may by order revoke or amend an order under this section including an order under this subsection.”
The crucial amendment for the purposes of the present proceedings was, however, effected by s. 4 of the Fisheries (Amendment) Act 1983 (hereafter “the Act of 1983”) which provided that:-
“(1) Chapter II of Part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (1) of Section 223A [inserted by section 9 of the Act of 1978]:
‘(1) The Minister may, as he shall think proper, by order, prescribe and adopt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.
(1A) Without prejudice to the generality of subsection (1) of this section, an order under this section may,
(a) relate
(i) generally to sea-fishing or to sea-fishing which is of a specified class or description,
(ii) generally to fishing other than sea fishing or to such fishing which is of such a class or description,
(iii) generally to fisheries other than sea-fisheries or to such fisheries which are of such a class or description,
(iv) generally to fishing boats (including sea fishing boats) or to fishing boats which are of such a class or description,
(v) to boats, other than fishing boats, which are of such a class or description,
(b) For the purpose of enabling the order to have full effect, extend any or all of –
(i) the powers conferred by this Act on a sea fisheries protection officer for the purpose of this Act
(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act,
(iii) the powers so conferred on authorised officers within the meaning of Section 301 of this Act,
(c) include such incidental, supplementary and consequential provisions as the Minister considers appropriate,
and in case such provisions are included in such an order by virtue of paragraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the order’.”
By s. 5 of the Act of 1983, Chapter 2 of Part XIII of the Act of 1959 was further amended by the insertion of the following section after s. 224A:-
“224B(1) Without prejudice to the generality of section 3(1) of the Act of 1972, the Minister may by regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the treaties or of any act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction .
(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:
(a) any fish,
(b) any fishing gear.”
The “Act of 1972” referred to in subs. (1) is the European Communities Act 1972.
Section 2 of the Fisheries (Amendment) Act 1978 provides penalties for persons who are guilty of an offence of contravening or attempting to contravene an order under s. 223A. A person guilty of an offence of contravening an order such as the Order of 1998 is liable on conviction on indictment to a fine not exceeding £20,000 and to forfeiture, as a statutory consequence of conviction of the offence, of
(a) any fish,
(b) any fishing gear, found either –
(i) on the boat to which the offence relates, or
(ii) in any other place where they may be.
Section 2 of the European Communities Act 1972 (hereafter “the Act of 1972”) provides that:-
“From the 1st day of January 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.”
Section 3 provides that:-
“(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending, or applying, with or without modification, other law, exclusive of this Act).
(3) Regulations under this section shall not create an indictable offence.
(4) Regulations under this section may be made before the 1st day of January 1973 but regulations so made shall not come into operation before that day.”
Finally, art. 17 of the Council Regulation of 1997 should be noted. It provides:-
“1. Member states may take measures for the conservation and management of stocks:
(a) in the case of strictly local stocks which are of interest solely to the fishermen of the Member State concerned, or
(b) in the form of conditions or detailed arrangements designed to limit catches by technical measures:
(i) supplementing those laid down in the Community legislation on fisheries, or
(ii) going beyond the minimum requirements laid down in the said legislation,
provided that such measures apply solely to the fishermen of the Member State concerned, are compatible with Community law, and are in conformity with the common fisheries policy.”
The High Court judgment
The trial judge said that it was clear from the decision of this court in Maher v. Minister for Agriculture [2001] 2 I.R. 139 that a community measure could set out the principles and policies being adopted by the communities to such a degree as to obviate the requirement for domestic primary legislation. In such circumstances, the relevant minister could avail of the power conferred by s. 3 of the Act of 1972 to give effect to the measure in question. He said that, in the case of the Council Regulation of 1998, there was no suggestion that any area of policy had been left for regulation by the member states or that the Order of 1997 purported to address any additional policy considerations or adopt enforcement measures that went beyond anything contemplated in the Council Regulation of 1998. He was also of the view that, while the Fisheries Acts 1959 to 1994 contained many principles and policies, they did not contain the principles and policies of the Council Regulation of 1998. He accordingly concluded that the Order of 1998 did not give effect to principles and policies of the Fisheries Acts 1959 to 1994, but”constituted a completely new addition thereto.”
He was also satisfied that the Oireachtas in enacting s. 223A of the Act of 1959 had not intended to authorise the creation of an indictable offence by a statutory instrument giving effect to a European Community measure, thereby bypassing the prohibition on so doing under s. 3(3) of the Act of 1972.
The trial judge was also of the view that the Order of 1998 did not expressly prohibit any infringement of art. 11 of the Regulation of 1998 outside the exclusive fishery limits of the State. He said that, if criminal liability was to be imposed for such an infringement, it could only be done so expressly and unambiguously and that the Order was also invalid on that ground.
Submissions of the parties
Counsel on behalf of the respondents accepted that, having regard to the decisions of this court in Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381, the validity of the Order of 1998 depended on whether it did no more than give effect to principles and policies contained in a parent statute. In the present case, those principles and policies were to be found, not in the Order of 1998, but in s. 223A of the Act of 1959, which entitled the second respondent to adopt measures for conservation of fish stocks and for rational exploitations of fisheries, which measures in turn were to be found, inter alia, in the Council Regulation of 1998.
Counsel for the respondents submitted that, in holding that the Order of 1998 did not give effect to principles and policies of the Fisheries Acts themselves, but constituted a new addition thereto, the trial judge had adopted an unduly narrow construction of the relevant test: the principles to which the Order was to give effect were the conservation of fish stocks and the rational exploitation of fisheries which, of necessity, could be implemented only by reference to the common fisheries policy of the European Community.
Counsel for the respondents further submitted that the trial judge was in error in inferring, as he appeared to have done, from the terms of s. 3 of the Act of 1972 that the only way in which an indictable offence could be created for the purpose of giving effect to European Community measures was by the enactment of primary legislation. There was no reason in principle why regulations could not be made under primary legislation, rather than under s. 3 of the Act of 1972, for the purpose of giving effect to the State’s obligation to implement community law. He said that it was clear from the terms of art. 31 of the Council Regulation of 1993 that any sanction for the breach of the relevant regulation would have to be commensurate with the seriousness of the infringement and this inevitably meant, in this jurisdiction, the creation of an indictable offence.
Counsel for the respondents further submitted that the invocation by the second respondent of s. 223A(1) of the Act of 1959 was in accordance with the law as laid down by this court in Maher v. Minister for Agriculture [2001] 2 I.R. 139, since in so doing he was adopting measures for the purpose of giving effect to a community regulation which was directly applicable in Irish law.
Counsel for the respondents further submitted that, if as argued on behalf of the applicant, s. 223A could not be availed of by the second respondent to make the Order of 1998, the question inevitably arose as to what the purpose was of the Oireachtas in empowering the second respondent to adopt and prescribe measures in the case of sea fisheries for the stated purposes. The section in that form had been enacted by the Oireachtas in 1983 at a stage, when, with insignificant exceptions, the determination of policy in those areas was within the exclusive competence of the European Community.
Counsel for the respondents further submitted that the trial judge was in error in supposing that it was not within the jurisdiction of the Oireachtas to create an indictable offence on the high seas outside the exclusive fishery limits of the State. It was clear that, in Irish law, civil and criminal jurisdiction extended to Irish registered vessels whether they were within the jurisdiction of the State or not.
Counsel on behalf of the applicant, submitted that the nature in law of the Order of 1998 was not in doubt: it was an attempt to give effect by means of delegated legislation to the principles and policies contained in the Council Regulation of 1998. While a minister in his particular area of responsibility was undoubtedly entitled to give effect to principles and policies which had never been enacted by the Oireachtas but were contained in an European Community measure, that could only be done by invoking the powers conferred on ministers by s. 3 of the Act of 1972. Where a minister availed of those powers, as he could have done in this case, he was precluded from including in the instrument a provision for the creation of an indictable offence. That was clearly intended by the Oireachtas as an important limitation on the power of ministers to give effect by delegated legislation to European Community measures and they could not have envisaged that a minister would circumvent that prohibition by purporting to make the order under other legislation which contained no indication that it was intended to be used for the purpose of giving effect to European Community measures.
Counsel for the applicant submitted that this was reinforced by the difference in wording between s. 223A and 224B of the Act of 1959, which had both been inserted by the Act of 1983. Where the Oireachtas wished to create an indictable offence for the breach of European Communities measures within the exclusive fishery limits of the State, the second respondent had been expressly given power to make such regulations for the purpose of giving effect to those European Community measures and this was stated to be “without prejudice to the generality of s. 3(1) of the Act of 1972”. The suggestion that the Oireachtas had enacted a similar provision for giving effect to European Communities measures outside the exclusive fishery limits of the State by enacting s. 223A was wholly implausible.
Counsel for the applicant further submitted that it did not follow that, because s. 223A of the Act of 1959 did not empower the second respondent to make the Order of 1998, it was in some sense otiose. In the first place, while the jurisdiction of the European Community as to fisheries was confined to the maritime waters of the community, s. 223A was not confined to sea fisheries: it also applied to the conservation and rational exploitation of inland fisheries in respect of which the European Community had no jurisdiction. In any event, the terms of art. 17 of the Council Regulation of 1997 made it clear that member states retained a limited jurisdiction in respect of conservation and management measures applicable solely to the fishermen of the member state concerned.
Conclusions
It is accepted in this case that the Council Regulation of 1998, which prohibits the use by vessels of any of the member states, either within their exclusive fishery limits or on the high seas, of drift nets exceeding 2.5 kilometres in length for the purpose of catching albacore tuna is directly applicable in the State to the same extent as if it were an Act of the Oireachtas. As is normally the case with European Community measures, it is left to the member states to provide for the effective policing of the measure in question in whatever is the appropriate manner having regard to the laws of the member state concerned. It is not in dispute in this case that, in these circumstances, the second respondent was empowered by s. 3 of the Act of 1972 to make regulations for that purpose, even though the principles and policies which were being given effect to were not prescribed by the Oireachtas in primary legislation. It is clear from the decisions of this court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 and Maher v. Minister for Agriculture [2001] 2 I.R. 139 that the fact that, in such cases, the principles and policies to which the regulation gives effect are not to be found in any Act of the Oireachtas, but rather in the Community measure concerned, does not affect its constitutional validity. It is beyond argument at this stage that the law as laid down by this court in Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381, that secondary legislation will trespass on the exclusive law making role of the Oireachtas unless it does no more than give effect to principles and policies laid down in an Act of the Oireachtas, is not applicable to regulations intended to give effect, by virtue of s. 3 of the Act of 1972, to European Community measures such as the Council Regulation of 1998. There is, however, one crucial qualification to that general statement of the law, namely, that any such regulation cannot create an indictable offence.
It is clear, in this case, that the Order of 1998 was intended to give effect to the principles and policies as to the conservation of fishery resources adopted by the Council in Council Regulation 1998. There is not any Act of the Oireachtas in existence setting out principles and policies applicable to the conservation of fishery resources both within the exclusive fishery limits of the State and on the high seas. As is clear from the judgment of the Court of Justice in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 804/79) [1981] 2 E.C.R. 1045, since the 1st January, 1979, the power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has been vested exclusively in the European Communities.
I am satisfied that it follows inevitably that the Order of 1998 was not intended to give effect to principles and policies set out by the Oireachtas in parent legislation. It was intended simply to give effect to the principles and policies adopted by the Communities in Council Regulation 1998, as, indeed, the terms of the order itself make unambiguously clear: the second respondent while purportedly invoking powers conferred on him by s. 223A of the Act of 1998 says in express terms that this is being done:-
“for the purpose of giving effect to Council Regulation (E.C.) No. 1239/98.”
As I have already indicated, there is not the slightest doubt as to the power of the second respondent to give effect by statutory instrument to the principles and policies contained in that measure, even though they have not been embodied in any Act of the Oireachtas: that is the clear object of s. 3 of the Act of 1972. What no minister can do, in availing of the powers conferred by that section, is to provide for the creation of an indictable offence: that power was expressly reserved to the Oireachtas by subs. (3). There is no indication whatever in the language of s. 223A that it was envisaged by the Oireachtas that the second respondent could give effect to principles and policies which had never been considered or adopted by the Oireachtas by means of a statutory instrument under that section which effectively circumvented the prohibition on the creation of indictable offences in s. 3(3) of the Act of 1972.
That conclusion is reinforced when one considers the terms of s. 224(B) of the Act of 1959 which was inserted in the original Act by the Oireachtas at the same time as s. 223A. Had it been the intention of the Oireachtas at that time to empower the second respondent by regulation to give effect on the high seas to measures of the European Community and to create an indictable offence in respect of a contravention of such regulations, it is difficult to understand why they did not avail of the provision which they clearly considered appropriate in the case of s. 224B. The application of the maximexpressio unius est exclusio alterius would suggest that such a deliberate omission on the part of the draftsman is not consistent with an intention to confer those powers on the second respondent by virtue of s. 223A.
While there was some discussion in the course of the written and oral submissions as to whether the creation of an indictable offence was”necessitated” by the obligations of our membership of the communities within the meaning of Article 29.4.5 of the Constitution, having regard to the provisions of art. 31 of the Council Regulation of 1993, it seems to me that that issue does not arise in this case. Either the Order of 1993 was intra vires s. 223A of the Act of 1959 or it was not. If it was within the power of the second respondent to make such a regulation for the reasons advanced on his behalf in the High Court and this court, it is not material whether the making of the regulation in that form was “necessitated” by the obligations of the State as a member of the communities. If, on the other hand, the order was ultra vires s. 223A and could only have been validly made by the second respondent under s. 3 of the Act of 1972, it follows that it was of no effect and it is again unnecessary to consider the issue as to whether it was “necessitated” in constitutional terms by our membership of the communities. For the reasons I have given, I am satisfied that the making of the order wasultra vires s. 223A of the Act of 1959.
That finding is sufficient to dispose of this appeal. I do not think it is necessary, in these circumstances, to come to any conclusion on the further submission advanced on behalf of the applicant that, in any event, since the Order of 1998 did not, as it was contended, expressly provide for the creation of an indictable offence in respect of contraventions of the Council Regulation of 1998 committed outside the exclusive fishery limits of the State, it should not be construed as creating such an offence.
I would dismiss the appeal and affirm the judgment and order of the High Court.
Denham J.
Issue
The issue in this case is whether the second respondent has the power to create the indictable offence purportedly made in the Sea Fisheries (Driftnets) Order 1998 or whether the second respondent acted in excess of his power. I am satisfied that the second respondent had no power under s. 223A of the Fisheries (Consolidation) Act 1959 as amended, to create the purported indictable offence.
The issue of the power of the second respondent arises in the circumstances of the implementation of the law of the European Union in Ireland. The issue has arisen as a preliminary matter to a criminal trial.
Appeal
This is an appeal against the order of the High Court (Kearns J.) made on the 6th March, 2002 and perfected on the 8th May, 2002. The respondents have brought this appeal and they seek to set aside the judgment and order of the High Court and in their place obtain an order refusing the relief claimed by the applicant.
Circumstances
The issue arises in the following circumstances. The applicant, who is the master of an Irish registered fishing boat, the M.F.V. Antonia, faces charges in the Circuit Criminal Court. On the 15th June, 2000, he left Dingle, County Kerry, to fish for tuna, for which he had a permit issued by a sea fisheries office pursuant to the provisions of the Sea Fisheries (Driftnets) Order 1998. He deposed that he sailed with 2.5 kilometres of driftnet and approximately 4 kilometres of gill net. He deposed that he did not believe the gill net was a driftnet under the European regulations. The Antonia travelled some 400 miles from Dingle in a south westerly direction and ended up fishing on the night of 18th June, 2000, in an area some 190 miles outside of the 200 mile exclusive fishery limit of the State. The applicant fished for tuna from the 18th, to the 23rd June, 2000. On the 24th June, 2000, his sea fishing boat was boarded by a boarding party from the Irish naval vessel L.E. Deirdre and his fishing nets were inspected. The two nets were measured at 2.545 kilometres and 4.554 kilometres. The applicant was cautioned that he was being detained for the offence of keeping on board, or using for fishing, one or more driftnets whose individual or total length was more than 2.5 kilometres contrary to art. 11 of the Council Regulation (E.C.) 1239/98 amending Council Regulation (E.C.) 894/97. The applicant indicated that he understood the cautions. Both the applicant’s boat and the naval boat sailed to Castletownbere arriving on the 26th June, 2000. On arrival the applicant was met by a garda and two sea fisheries officers of the Department of the Marine. The applicant’s boat was then detained on suspicion of having committed an offence pursuant to s. 223A of the Fisheries (Consolidation) Act 1959, as amended. On application, the District Court in Macroom granted a detention order of 48 hours during which time the fish was off-loaded and sold, the proceeds amounting to £16,900 being retained pending the prosecution.
The applicant was arrested and charged with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Sheet 27 charged that the applicant between the 18th and the 24th June, 2000, being the master of the Irish registered sea fishing vessel M.F.V. Antonia did use for fishing one or more driftnets prohibited by art. 11 of Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998 and contrary to art. 3 of the Sea Fisheries (Driftnets) Order 1998, contrary to s. 223A of the Fisheries (Consolidation) Act 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994. Sheet 28 charged that the applicant did keep on board the sea fishing vessel a driftnet prohibited by art. 11 of Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998 and of para. 4 of the Sea Fisheries (Driftnets) Order 1998, contrary to s. 223 of the Fisheries (Consolidation) Act 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994.
The applicant pleaded not guilty to the charges. On a “without prejudice” basis the applicant waived preliminary examination and consented to return for trial to the Circuit Court and indicated that he would be seeking judicial review. The matter has been adjourned by Cork Circuit Criminal Court.
The High Court granted leave to apply for judicial review on the 19th December, 2000, on a number of grounds. In his grounding affidavit the applicant deposed:-
“I say that I am advised by my legal advisors and so believe that the first respondent herein has not implemented the European Council Regulations in accordance with the European Communities Act 1972, as amended, or in accordance with the Constitution and that the said Statutory Instrument made by the second respondent was made ultra vires.”
The High Court order
The High Court granted an order of prohibition directed to the first respondent prohibiting him from prosecuting the applicant in the Cork Circuit Criminal Court on the charges preferred against him in the said charge sheets. The High Court granted the reliefs set out in paras. 6 and 7 of the motion declaring the Order of 1998 to beultra vires. These reliefs sought were:-
“6. A declaration that the Sea Fisheries (Driftnet) Order 1998 (S.I. 267 of 1998) is ultra vires the powers of the third respondent herein and contrary to the European Communities Act 1972, as amended, and/or contrary to s. 5 of the Fisheries (Amendment) Act 1983.
7. A declaration that the Sea Fisheries (Driftnet) Order 1998 (S.I. 267 of 1998) is ultra vires the powers of the third respondent herein pursuant to s. 223A of the Fisheries (Consolidation) Act 1959, as inserted by s. 4 of the Fisheries (Amendment) Act 1983, or alternatively, the said section is invalid having regard to the provisions of the Constitution and in particular Article 15 thereof.”
The High Court refused to refer the matter under Article 234 of the Treaty of the European Communities to the Court of Justice of the European Communities for the purpose of getting declarations. The High Court adjourned the issue of damages.
The High Court judgment
The High Court Judge held as follows:-
(a) Unlike Maher v. Minister for Agriculture [2001] 2 I.R. 139, s. 3 of the European Communities Act 1972 was not availed of for the transposition. Instead the Fisheries (Consolidation) Act 1959 was the chosen vehicle.
(b) The respondents did not show that the second respondent had legal authority by reference to the wording of the Fisheries Acts to make the order and accordingly, must be held to have acted ultra vires as to the mode of implementation of the European Community regulation.
The High Court Judge was satisfied that in the Fisheries Acts the Oireachtas was not intending to delegate to the second respondent a power to implement any measure of European Union law from whatever treaty source arising or to delegate a power creating an alternative but silent European Union power of implementation. He held that it could not be said that the Oireachtas had implicitly authorised a by-pass of existing methods by which the second respondent might have properly sought to implement any such European obligation. He held that it was the clear implication to be drawn from s. 3(3) of the European Communities Act 1972 that primary legislation is required where it is intended to create an indictable offence. Further, that the Order does not expressly prescribe that an infringement of art. 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to the earlier Order (see Fisheries (International Waters) (Driftnet) Order 1994).
Grounds of appeal
The respondents filed the following grounds of appeal and submitted that the High Court Judge erred in:-
1. finding that, by making the Sea Fisheries (Driftnets) Order 1998 the second respondent violated Article 15.2.1 of the Constitution of Ireland;
2. finding that, by making the Sea Fisheries (Driftnets) Order 1998 the second respondent acted ultra vires;
3. failing to find that Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998, is directly applicable in the State and, as such, is part of its domestic law;
4. failing to find that Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998, is an instrument capable of setting out policies and principles for secondary legislation;
5. failing to take any account of the fact that the Sea Fisheries (Driftnets) Order 1998 was made for the purpose of giving effect to Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998;
6. failing to find that the principles and policies grounding the Sea Fisheries (Driftnets) Order 1998 are contained in Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998;
7. finding that the principles and policies grounding the Sea Fisheries (Driftnets) Order 1998 were to be found in the Fisheries Act 1959 to 1994;
8. finding that the adoption of the Sea Fisheries (Driftnets) Order 1998 did not satisfy the principles and policies test for delegated legislation;
9. finding that section 223A of the Fisheries Acts 1959 to 1994 did not give the second respondent power to make the Sea Fisheries (Driftnets) Order 1998;
10. failing to find that s. 223A(1) of the Fisheries Acts 1959 to 1994 expressly permits the second respondent to adopt measures for the conservation of fish stocks and measures for the rational exploitation of fisheries;
11. finding that the second respondent was required to make the Sea Fisheries (Driftnets) Order 1998 by means other than an order made under and by virtue of the powers given to him by s. 223A of the Fisheries Acts 1959 to 1994;
12. notwithstanding the enactment of the Fisheries (Amendment) Act 1978, finding that s. 3 of the European Communities Act 1972 requires the third respondent to enact primary legislation in order to create an indictable offence;
13. failing to hold that the Sea Fisheries (Driftnets) Order 1998 was necessitated by the obligations of membership of the Community insofar as the third respondent is required to bring proceedings against natural or legal persons responsible for a failure to respect the provisions of the common fisheries policy that are capable of effectively depriving those persons of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements and effectively discouraging further such offences;
14. finding that the Sea Fisheries (Driftnets) Order 1998 did not apply to offences committed on board an Irish registered sea-fishing boat;
15. finding that the Sea Fisheries (Driftnets) Order 1998 prohibited acts committed within the territorial seas and/or the exclusive fishery limits of the State only;
16. finding that the Sea Fisheries (Driftnets) Order 1998 is an ambiguous provision imposing criminal liability to trial, conviction and punishment by means of interpretation only;
17. finding that the Sea Fisheries (Driftnets) Order 1998 offends Article 15.2.1 of the Constitution;
18. finding that the Sea Fisheries (Driftnets) Order 1998 offends Article 6 of the Constitution;
19. finding that the Sea Fisheries (Driftnets) Order 1998 disapplies or repeals s. 4 of the European Communities Act 1972.
When oral submissions were made to the court it was stated that the”necessitated by the obligations of membership of the community” argument was not being advanced.
Community law
The European Community has taken conservation measures as part of the common fisheries policy, this includes restrictions on driftnets. In regulations the Council has expressed jurisdiction over all waters falling within the sovereignty or jurisdiction of member states. Outside those waters jurisdiction is expressed over all community fishing boats, even on the high seas.
Council Regulation (E.E.C.) No. 2847/93
Council Regulation (EEC) No. 2847/93 of the 12th October, 1993, established a conservation control system, as part of the common fisheries policy. In the recitals it provided that to ensure all catches and landings are kept under surveillance, member states must monitor in all maritime waters the activities of community vessels. It was further recited that the absence of dissuasive sanctions in certain member states reduced the effectiveness of controls, that member states should take all the necessary non-discriminatory measures to guard against and prosecute irregularities, particularly by establishing a roster of sanctions which effectively deprive the wrongdoers of the commercial gain resulting from their infringements. It was provided that to ensure compliance with the rules of the Common Fishery Policy a community system was thereby established including provision for conservation and resource management. Article 1.3 provided that the system shall apply to all fishing activities carried out in the maritime waters of the member states. It provided also that it shall apply to the activities of community fishing vessels which operate in the waters of non-member countries and on the high seas. Article 2.3 provides that each member state shall monitor outside the community fishing zone the activities of its vessels and cases where such control is required to ensure compliance with community rules applicable in those waters. Title VIII relates to measures to be taken in the case of non-compliance.
Article 31 provides:-
“1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:
– fines,
– seizure of prohibited fishing gear and catches,
– sequestration of the vessel,
– temporary immobilization of the vessel,
– suspension of the licence,
– withdrawal of the licence.”
For the purposes of this case, it is noteworthy that there is no reference to an indictable offence. While this is understandable in the context of European Union law it is an important factor when considering the Irish law and the Constitution.
As to an infringement, art. 32 states:-
“1. Where an infringement of the provisions of this Regulation is discovered by the competent authorities of the Member State of landing or transshipment, those competent authorities shall take appropriate action in accordance with Article 31 against the master of the vessel involved or against any other person responsible for the infringement.”
Thus the “appropriate action” is to be considered to be in accordance with art. 31.
Council Regulation (E.C.) No. 894/97
Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, codified certain technical measures for the conservation of fishery resources by, amongst other measures, specifying mesh sizes of fishing nets as well as establishing limitations on fishing in certain areas. Reference was made to United Nations Resolution 44/225, and to the United Nations Convention on the Law of the Sea which requires all members of the international community to co-operate in the conservation and management of the living resources of the sea, reciting that it was desirable to regulate fishing with driftnets. The regulation applied to the taking and landing of fishery resources occurring in all maritime waters under the sovereignty or jurisdiction of the member states except as provided in arts. 6(1)(b), 10(17) and 11(3).
Council Regulation (E.C.) No. 1239/98
The Common Fishery Policy was further developed in Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998, which amended Regulation (E.C.) No. 894/97. Reference was made to Council Regulation (E.E.C.) No. 3760/92 of the 20th December, 1992, establishing a community system for fisheries and aquaculture and to requiring the Council to establish conservation measures necessary to ensure rational and responsible exploitation of living marine resources, for which purposes the Council may adopt technical measures regarding fishing gear. Referring to Regulation (E.C.) No. 894/97 which regulated fishing with driftnets, the rapid increase in their use and that uncontrolled expansion could present grave risk of excessive increase in fishing, in accordance with the Communities’ international obligations to contribute towards the conservation and management of the biological resources of the oceans, it was recited that it was necessary to regulate strictly any expansion of driftnet fishing by community vessels, and it was recited that restrictions on the length of driftnets are required, art. 11 of Regulation (E.C.) No. 894/97 was replaced by the following:-
“11. No vessel may keep on board, or use for fishing, one or more driftnets whose individual or total length is more than 2.5 kilometres.
11a.(1) From 1 January 2002, no vessel may keep on board, or use for fishing, one or more driftnets intended for the capture of species listed in Annex VIII.
…
(3) Until 31 December 2001, a vessel may keep on board, or use for fishing, one or more driftnets referred to in paragraph 1 after receiving authorisation from the competent authorities of the flag Member State. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more driftnets shall not exceed 60% of the fishing vessels which used one or more driftnets during the period 1995 to 1997.
…
11c. With the exception of waters covered by Council Regulation (EC) No. 88/98 of 18 December 1997 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound and notwithstanding Article 1(1), Articles 11, 11a and 11b shall apply in all waters falling within the sovereignty of jurisdiction of the Member States and, outside those waters shall apply to all Community fishing vessels.”
It was provided in article 11(b):-
“(6) In the case of failure to comply with the obligations laid down in Article 11 and 11a and this Article, the competent authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of the Regulation (E.E.C.) No. 2847/93.”
The Regulation further provided in art. 2:-
“It shall apply from 1 July 1998.
This Regulation shall be binding in its entirety and directly applicable in all Member States.”
Irish legislation The Parent Act
The Parent Act, the legislative base submitted by the respondents for the delegated legislation, is the Fisheries (Consolidation) Act 1959, as amended. In this Act principles and policies were laid down by the legislature as to fishing. It is a comprehensive consolidating Act. I shall consider it first as of 1959, which was long before Ireland joined the European Community or the Common Fisheries Policy was established, and then shall refer to the current relevant amended sections.
The Fisheries (Consolidation) Act 1959 is, as the long title described, an Act to consolidate the Fisheries Acts 1842 to 1958 and certain other enactments relating to fisheries. It was a long Act, 335 sections and 6 schedules. Part I is preliminary and general. It has an extensive definitions section. Part II sets out miscellaneous powers and duties of the second respondent. It relates to tidal waters. Under s. 9 the second respondent may make byelaws, including those for relevant nets, defining the boundary of the mouth of a river. The second respondent was given authority to grant special local licences and fish culture licences. Part III of the Act of 1959 set up fishing districts and electoral divisions. For example, district number 1, Dublin district, comprises (a) the whole of the sea and the tideway along the coast between the following points, vis., the most easterly point on Red Island, Skerries, County Dublin and Wicklow Head, County Wicklow and around any islands or rocks off the coast between the said points, and (b) the whole of the several rivers, lakes and their tributaries flowing into the tideway between the said points, and the land drained thereby. Part IV makes provision for boards of conservators for the fishing districts. Pursuant to Part V, every board of conservators had each year to strike on all fisheries within its district a rate sufficient to meet the estimated expenditure of the board for that District for that year. Part VI established laws as to licences for fishing for salmon, trout and eel, licences for fishing in special tidal waters and licences for fishing for trout with rod and line in certain waters. Part VI made regulations as to nets. Specific regulations were made as to nets for salmon on any part of the coast or within any bay, estuary or tideway, or at the mouths of rivers. Part VIII makes provisions in relation to fixed engines, fishing weirs, fishing mill dams and other obstructions to the passage of fish. Part IX sets out restrictions as to times of fishing for salmon, trout, pollen and eels and ancillary provisions. Part X provides for the provision of a salmon dealers licence and salmon exporters licence. A variety of miscellaneous matters, including prohibitions on certain methods of fishing for salmon, protection of fishing waters from poisoning and pollution, protection of young and breeding fish, protection of private fisheries, are set out in Part XI. Part XII provides for the transfer to the second respondent of certain tidal waters, weir and mill dam fisheries, amongst other matters.
Part XIII makes provision for sea fisheries, which is relevant to this case. There are a number of definitions, relating to expressions such as “the exclusive fishery limits of the State”, “fishing gear”,”foreign sea fishing boat”, “Irish sea fishing boat”, “master”, “net”,”sea fish”. Chapter 2 of this part contains provisions relevant to exclusive fishing limits of the sea; it prohibits any foreign sea fishing boat to enter within the exclusive fishery limits of the State, with a few exceptions. Breach of s. 221(1) created an offence. Section 223 of the Act originally provided in 1959:-
“(1) The Minister may from time to time by bye-law prohibit (at the option of the Minister either, as may be specified in such bye-law, absolutely or unless such conditions as the Minister thinks fit to insert in such bye-law are complied with) the use, within the waters of any specified area (being an area within the exclusive fishery limits of the State), in or from either, as may be specified in such bye-law, any boat or any boat of a specified class, of any method of trawling or seining (including fishing by means of any kind of net hauled along the bottom of the sea whether by a moving boat or by any mechanical appliance in an anchored boat), and different bye-laws may be made in respect of different classes of boats and different methods of fishing” (the emphasis has been added).
A summary offence was established for breach of any bye-law made under s. 223. This section has been repealed and amended.
Originally s. 224 provided that if any sea fishing boat to which Part IV of the Merchant Shipping Act 1894 applies is found within the exclusive fishing limits of the State without having on board the official papers issued in pursuance of the Act in respect of such boat, or any other boat was found within the exclusive fishing limits of the State without having on board official papers evidencing the nationality of such boat, the master of such boat shall be guilty of an offence.
Chapter III of this part contains provisions relating to under-sized sea fish. The second respondent was given authority to declare any specific kind of sea fish under-sized.
Section 226 made restrictions as to nets on sea fishing boats. It provided:-
“(1) The Minister may, whenever and so often as he thinks fit, by order declare it to be unlawful to carry, on board any Irish sea-fishing boat in a specified area or on board any other sea-fishing boat in so much (if any) of that area as is within the exclusive fishery limits of the State, any net for sea-fishing which is not constructed in such manner and has not a mesh of at least such size as may be specified in such order.”
Further, s. 227 made it an offence to carry on board any Irish sea fishing boat anywhere or on board any other sea fishing boat within the exclusive fishing limits of the State, any device by means of which the mesh of any part of a net then carried on such boat could be obstructed or otherwise in effect diminished. Also, s. 228 made it an offence to have in possession for the purpose of sale, on board any Irish sea-fishing boat anywhere or on board any other sea fishing boat within the exclusive fishing limits of the State, any under-sized sea fish. The second respondent may by order revoke or amend any order made under this chapter of the Act. Every order made by the second respondent shall be published in Iris Oifigúil specifying the date when it comes into force. Section 231 gives every sea fishery protection officer powers of inspection, examination and detention of sea fish and nets, and the right to demand the name and address of specified persons. Chapter 5 of this part introduced provisions relating to the dredging of shell fish by canvas, hide or other material by which under-sized fish may be taken or destroyed. Section 238 prohibited the setting in the sea or in the tideway of any estuary any net for the catching of herrings or any trammel net or any drag net or other net in the water. Part XIV relates to oysters. Many provisions in this section relate to the conservation and protection of oysters and oysters beds. Part XV deals with molluscs, other than oysters. Here also there are provisions relating to conservation of molluscs (other than oysters). Part XVI relates to crabs, once again there are conservation provisions. Part XVII contains penalties for miscellaneous offences. Part XVIII provides powers for water keepers, officers and servants of boards of conservators, An Garda Siochana and other persons for the enforcement of the Act. Part XIX contains provisions relating to legal proceedings, fines, forfeitures, inquiries and service of documents. Part XX contains miscellaneous provisions. The first schedule
to the Act sets out the enactments repealed, from the Fisheries (Amendment) Act 1842 to the Amendment Act of 1958. The second schedule sets out the fishery districts, electoral divisions and number of conservators of each electoral division. The third schedule makes provision for the accounts of boards of conservators. The fourth schedule sets out the duties (cost) of licences. The fifth schedule relates to bye-laws fixing close seasons for molluscs (other than oysters). The sixth schedule sets out the form of appointment of water keepers under s. 294.
Clearly this Consolidation Act was and is wide ranging. This parent Act contains clear principles and policies relating to sea fishing. They include principles and policies relating to conservation and rationalisation of fishing. Specifically, policy on nets and under-sized fish is clearly stated. Further, Part XIII plainly makes provision for fishing boats in the Irish exclusive fishing zone and for Irish boats outside that zone. This Act has been amended many times since 1959.
I have considered the Parent Act of 1959 in some detail because it shows that in 1959 the legislature set down clear principles and policies in legislation relating to sea fishing, including conservation and rationalisation. Since then the Act has been amended many times and some of the amendments are relevant to the issue before the court. This Act has been amended by the legislature since Ireland joined the European Community and the Common Fisheries Policy and these changed circumstances are reflected in the amendments.
Section 223
Section 223A(1) of the Parent Act, as inserted by s. 9 of the Fisheries (Amendment) Act 1978, as amended by s. 4 of the Fisheries (Amendment) Act 1983, is the legislative base submitted by the respondents for the delegated legislation. Section 4 of the Fisheries Amendment Act 1983 provides:-
“(1) Chapter II of Part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (1) of section 223A [inserted by section 9 of the Act of 1978]:
‘(1) The Minister may, as he shall think proper, by order prescribe and adopt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.
(1A) Without prejudice to the generality of subsection (1) of this section, an order under this section may –
(a) relate –
(i) generally to sea-fishing or to sea-fishing which is of a specified class or description,
(ii) generally to fishing other than sea-fishing or to such fishing which is of such a class or description,
(iii) generally to fisheries other than sea-fisheries or to such fisheries which are of such a class or description,
(iv) generally to fishing boats (including sea-fishing boats) or to fishing boats which are of such a class or description,
(v) to boats, other than fishing boats, which are of such a class or description,
(b) for the purpose of enabling the order to have full effect, extend any or all of –
(i) the powers conferred by this Act on a sea fisheries protection officer for the purposes of this Act,
(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act,
(iii) the powers so conferred on authorised officers within the meaning of section 301 of this Act,
(c) include such incidental, supplementary and consequential provisions as the Minister considers appropriate,
and in case provisions are included in such an order by virtue ofparagraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the order.’
(2) An order under subsection (1) of section 223A [inserted by section 9 of the Act of 1978] of the Principal Act and which immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made under the first of the subsections inserted in the said section 223A bysubsection (1) of this section and may be revoked or amended as if it had been so made.”
Section 224B
Section 224B, as inserted by s. 10 of the Fisheries (Amendment) Act 1978, as amended by s. 5 of the Fisheries (Amendment) Act 1983, empowers the second respondent to make regulations to give effect to community law within the exclusive fishery limits of the State. Section 5 of the Fisheries (Amendment) Act 1983 provides:-
“Chapter II of Part XIII of the Principal Act is hereby amended by the insertion of the following section after section 224A [inserted by section 10 of the Act of 1978]:
‘224B.(1) Without prejudice to the generality of section 3(1) of the Act of 1972, the Minister may by regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the treaties or of any act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.
(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:
(a) any fish,
(b) any fishing gear’.”
European Communities Act 1972
Under s. 2 of the European Communities Act 1972, from the 1st January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of the Communities shall be binding on the State and shall be part of the domestic law of the State. Section 3 of that Act provides:-
“(1) A Minister of State may make regulations for enablingsection 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) Regulations under this section shall not create an indictable offence.”
However, the delegated legislation in issue in this case was not made under the European Communities Act 1972. It was not the method of implementation chosen by the second respondent.
The delegated legislation, the Order
The delegated legislation in issue is the Sea Fisheries (Driftnets) Order 1998. In this Order the second respondent, stating that it was in exercise of the powers conferred on him by s. 223A (inserted by s. 9 of the Fisheries (Amendment) Act 1978, amended by s. 4 of the Fisheries (Amendment) Act 1983) of the Fisheries (Consolidation) Act 1959, inter alia, for the purpose of giving effect to Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998, ordered:-
“3.(1) Subject to Article 4 of this Order, the master of an Irish sea-fishing boat shall comply with Articles 11, 11a and 11b of the Council Regulation.
(2) Subject to Article 4 of this Order, the master, owner, charterer or hirer of an Irish sea-fishing boat shall not cause or permit a person on board the boat to fail to comply with Articles 11, 11a or 11b of the Council Regulation.
(3) Subject to Article 5 of this Order, the master of a foreign sea-fishing boat, in the exclusive fishing limits of the State, shall comply with Articles 11, 11a and 11b of the Council Regulation.
(4) Subject to Article 5 of this Order, the master, owner, charterer or hirer of a foreign sea-fishing boat shall not cause or permit a person on board the boat, in the exclusive fishery limits of the State, to fail to comply with Articles 11, 11a or 11b of the Council Regulation.
4.(1) The holder of an authorisation granted under Article 6 of this Order may, keep on board an Irish sea-fishing boat to which the authorisation relates, or use for fishing from the boat, one or more driftnets whose individual or total length is not more than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to keep on board, or use for fishing from the boat, one or more such driftnets intended for the capture of species listed in the Annex.
(2) This Article shall cease to have effect on the 1st day of January, 2002.
5.(1) The holder of an authorisation granted for the purposes of Article 11a (3) of the Council Regulation by the competent authority of the flag Member State of the European Community (other than the State) may, in the exclusive fishery limits of the State, keep on board the foreign sea-fishing boat to which the authorisation relates, or use for fishing from the boat, one or more driftnets whose individual or total length is not more than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to keep on board, or use for fishing from the boat, one or more such driftnets intended for the capture of species listed in the Annex.
(2) This Article shall cease to have effect on the 1st day of January, 2002.
6.(1) The Minister may, until the 31st day of December, 2001, upon the application of any person who is the owner, charterer or hirer of an Irish sea-fishing boat and upon being furnished by the person with any information which the Minister may reasonably require in relation to the application, grant to the person an authorisation (for the purposes of Article 11a (3) of the Council Regulation) authorising the use from the boat of one or more driftnets, whose individual or total length is not more than 2.5 kilometres, for the capture of species listed in the Annex during such period as may be specified in the authorisation.
(2) An authorisation under this Article shall stand revoked if the holder of the authorisation ceases to be the owner, charterer or hirer of the boat to which the authorisation relates or does not or ceases to hold a licence granted under section 222B (inserted by section 2 of the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959.
(3) An authorisation under this Article shall be subject to –
(a) the conditions specified in Article 11b of the Council Regulation and specified in the authorisation, and
(b) any or all of the following conditions (if any) as the Minister thinks fit and specifies in the authorisation –
(i) restricting the quantity of species listed in the Annex that may be taken, landed or transhipped in a specified period or periods.
(ii) prohibiting the landing or transhipment of species listed in the Annex other than at specified places,
(iii) requiring the master of the boat concerned to keep specified records, in addition to those required by Article 11b (3) of the Council Regulation in relation to the activities of the boat,
(iv) requiring the master of the boat concerned at all times on a request being made in that behalf to permit the boarding and inspection of the boat and inspection of the authorisation and any records kept on board the boat in relation to the boat, whether pursuant to a requirement of the authorisation or otherwise, by a sea fisheries protection officer and the taking of copies of the authorisation or any such records by such an officer.
(v) requiring the keeping of the authorisation on the boat concerned, or
(vi) requiring the surrender of the authorisation by the holder to the Minister or a sea fisheries protection officer upon its expiry or revocation.
(4) The Minister may, if he or she is satisfied that there has been a failure to comply with the condition specified in an authorisation under this Article, revoke the authorisation.
(5) Where an application for an authorisation under this Article is made by a person who has previously held an authorisation that was revoked under this Article by the Minister, the Minster may, if he or she so thinks fit refuse to grant the authorisation to which the application relates.
(6) The Minister may at any time revoke or vary any condition, or insert a new condition, under paragraph (3) (b) of this Article, and the condition as so revoked, varied or inserted shall be regarded as being specified in the authorisation.
(7) Neither a person to whom an authorisation is granted under this Article nor the master of an Irish sea-fishing boat to which such an authorisation relates shall fail to comply with the conditions specified in the authorisation or cause or permit such a failure.
(8) The following are hereby revoked.”
Decision Common Fisheries Policy
Article 3E of the Treaty of Rome provides that the Community’s activities shall include a common policy in the sphere of agriculture and fisheries. Article 10 imposes an obligation on members states to take all appropriate measures to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions and to abstain from any measure which might jeopardise the attainment of the Treaties. The Community institutions exercise exclusive powers over the common fisheries policy. Since the 1st January, 1979, the power to adopt measures relating to conservation of the resources of the sea belongs to the Community. Member states no longer exercise national power in relation to conservation measures in their jurisdictional waters. The adoption of conservation measures is a matter of Community law. Section 223A(1) of the Fisheries (Consolidation) Act 1959 expressly relates to conservation measures. As the conservation measures since 1979 are those of the common fisheries policy, the section must be construed accordingly.
European Community Act 1992
The second respondent did not use s. 3(1) of the European Communities Act 1972 to implement the Council Regulation in issue. Section 3(1) of that Act is a primary mode for implementing regulations of the community. In such transposition the principles and policies may be found in a Council Regulation or Regulations: Meagher v. Minister for Agriculture [1994] 1 I.R. 329, Maher v. Minister for Agriculture [2001] 2 I.R. 139. However, if this method of implementing Council Regulations is used then the minister may not by order create an indictable offence: s. 3(3) of the European Communities Act 1972. This is a clear policy and principle stated by the Oireachtas. Whereas significant powers are given to a minister of state to make regulations for enabling the implementation of community law this power, to create an indictable offence, was retained by the legislature.
Section 224
Section 224 of the Fisheries (Consolidation) Act 1959 provided for certain offences of sea fishing boats within the exclusive fishery limits of the State, such as not having on board official papers, lights, etc. Section 224A was inserted by s. 10 of the Fisheries (Amendment) Act 1978. It provided that “without prejudice to the provision of any other enactment” the second respondent may make regulations for the purpose of carrying out the Convention on the Conduct of Fishing Operations in the North Atlantic made at London on the 17th March, 1967, or any convention amending or replacing that convention. Section 224A(2) provided that a person who contravened a regulation under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding £500.
Here we see a clear provision made in a statute by the Oireachtas, providing that the second respondent may make regulations, without prejudice to the provision of any other enactment. A summary procedure is envisaged.
Section 5 of the Fisheries (Amendment) Act 1983 inserted a new s. 224B to empower the second respondent to make regulations to give effect to matters relating to the European Communities. Section 5 provides:-
“Chapter II of Part XIII of the Principal Act is hereby amended by the insertion of the following section after section 224A [inserted by section 10 of the Act of 1978]:-
‘224B(1) Without prejudice to the generality of section 3(1) of the Act of 1972, the Minister may by regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the treaties or of any act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.
(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:
(a) any fish,
(b) any fishing gear’.”
This is a specific power given to the second respondent, expressly stated to be without prejudice to the generality of s. 3(1) of the Act of 1972, to make regulations and to give effect within the exclusive fishery limits of the State, to any provision of either the treaties or any act adopted by an institution of the European Communities to restrict or regulate fishing in the waters of the community. Section 224B(2) mirrors s. 3(2) of the Act of 1972. Provision is made in subs. 3 expressly for an indictable crime. Thus, here the legislature expressly created machinery and gave power to the second respondent to implement community law by regulation and to create an indictable offence. However, as the power relates only to the exclusive fishery limits of the community it could not be utilised to create an offence on the high seas, and so could not be the basis for the second respondent to implement the Council Regulation in this case.
Maritime Jurisdiction Act 1959
Section 7 of the Maritime Jurisdiction Act 1959 enabled the Government, having regard to any international agreement to which the State is a party, where it is satisfied that it is necessary to maintain the resources of the sea, by order to prescribe and adopt such measure of conservation as it thinks proper in relation to any stock of fish or other marine resources in any area (a fishery conservation area) of the high seas adjacent to the exclusive fishery limits. A person who contravenes any provision of any such order shall be guilty of an offence and shall, on summary conviction, be liable to the penalties provided by s. 223 of the Fisheries (Consolidation) Act 1959 for an offence under that section.
In this Act the legislature enacted principles and policies relating to conservation on the high seas and created appropriate offences. The statute is prior to Ireland’s accession to the European Community and the Common Fisheries Policy. Thus the legislature even then provided for extra territorial offences relating to conservation, such offences to be established by order, the offence to be summary.
Section 223
The mode of implementation chosen by the second respondent for the Order in issue was s. 223A of the Fisheries (Consolidation) Act 1959 (inserted by s. 9 of the Fisheries (Amendment) Act 1978, amended by s. 4 of the Fisheries (Amendment) Act 1983) stated to be for the purpose of giving effect to the Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998.
The issue for determination is whether the second respondent could create an indictable offence by this order or whether he actedultra vires in so doing. When Ireland joined the European Community the Constitution and laws were amended accordingly. Whereas the basic democratic structure of separated powers of government, into executive, judicial and legislative organs, continued in place, in addition new law making powers in the European Community were included in the Constitution and the law as part of the shared sovereignty within the European Community. Thus, the Oireachtas was no longer the sole law making authority. However, an important principle of the Community is that the method of implementing regulations of the Community is a matter for the member states. On Ireland joining the Community the primary provision for the implementing of Community law into Ireland was stated to be the European Communities Act 1972. The principles and policies of the legislature as to the mode of implementation of community law are set out clearly in that Act. The Oireachtas in plain and simple language gave to the ministers of state authority to make regulations enabling s. 2 to have full effect. Further, the legislature (s. 3(2)) stated the clear principle that such regulations may contain such incidental, supplementary and consequential provisions as appear to the minister making regulations to be necessary for the purpose of the regulations (including provisions repealing, amending or applying with or without modification, other law, exclusive of the Act). This is a clear policy. A concern has been expressed of a perceived democratic deficit, that in the arrangements for the implementation of community law in Ireland the legislature has little if any role. This issue has been referred to in previous cases. It is an important part of the fabric of the Constitution of Ireland that the legislature is the law making body in the State. While authority has been given by the State to the Community to make law the implementation of such law should be in conformity with the law and the principles of the Constitution. The European Community has also recognised the importance of national public law and leaves it to the State to implement regulations. The result is that when there are clear principles established by the national legislature as to the mode of implementing the law of the European Community such must be applied and inferences may be drawn from both the Constitution and legislation as to the implementation of regulations.
Thus, the primary legislative provision for implementing Community Regulations, the European Communities Act 1972 specifically states a principle and policy that regulations made by the minister enabling the implementation of Community law shall not create an indictable offence. It is an important principle of the legislation, it limits the power of the minister, and the legislature is retaining to itself the power to create indictable offences. Such a principle recognises the significance of indictable offences and that they should be established by the Irish parliament. This recognition by a member state of its parliament is entirely consistent with Community law: the method of implementation is for the member state. In such a situation a balance is achieved: the importance of major institutions in the State and in the Community receive appropriate recognition.
Of course the European Communities Act 1972 is not the only statute setting out procedures empowering a minister of state to make regulations for implementing Community law. While it is the primary such statute the Oireachtas may and has legislated in other statutes for modes of implementation. The legislature is not barred from revisiting the issue.
Can the second respondent make the Order?
In view of the special role of the Oireachtas as the law making body under the Constitution, and in view of the expressed policy on the creation of indictable offences in s. 3(3) of the Act of 1972, any statute purporting to give power to a minister to create an indictable offence should set out such power in plain and clear language. There should be no ambiguity. In this case the Fishing (Consolidation) Act 1959, as amended, does not express in clear and plain language that the second respondent has power to create an indictable offence, in implementing community law, on the high seas. Consequently, I am satisfied that he does not have such authority and that in making the order he acted ultra vires. That decision is sufficient to determine the case.
Role of Fishing (Consolidation) Acts 1959, as amended
In 1959, when the Fisheries (Consolidation) Act 1959 was passed by the Oireachtas, Ireland was not a member of the European Community. In the Act of 1959 there was a consolidation of Acts relating to fishing, including sea fishing. Principles and policies as to conservation and rational fishing of fish stocks in Irish waters and on the high seas were matters addressed in this Act and in its later amendments.
On Ireland joining the European Community and then on the development of the common fisheries policy, the making of policies on fishing, including conservation, moved to the Community institutions. Such principles and policies were no longer determined by the Irish Government or parliament.
However, Irish legislation continued to address the issues in Fisheries Amendment Acts and orders, conservation and driftnets being matters dealt with in more than one order. The principles and policies of international agreements were regulated in Community law and then came to be implemented in Ireland.
The Irish Fisheries Acts are a complex scheme of legislation. The legislation continues while the principles and policies of sea fishing are made by the European Community. Where the Community makes the common fisheries policy there is no role for the Oireachtas in making the principles and policies, unless it is so given by the common policy. The Oireachtas is in the same position as described in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 where I stated at p. 367:-
“In the directives herein the policies and principles have been determined. Thus there is no role of determining policies or principles for the Oireachtas. While the directive must be implemented there is no policy or principle which can be altered by the Oireachtas, it is already binding as to the result to be achieved.
That being the case the role of the Oireachtas in such a situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as to what has already been decided, which debate would act as a source of information. Such a sterile debate would take up Dáil and Seanad time and act only as a window on the Community directives for the members of the Oireachtas and the Nation. That is not a role envisaged for the Oireachtas in the Constitution.”
The principles and policies as to sea fisheries are made now in the Community, in the common fisheries policy. Where the legislature legislates for matters in such policy, both expressly and by implication, the legislature is implementing the common fisheries policy. The second respondent is in somewhat the same position as the Minister for Agriculture who implements the common agricultural policy. Here too the policy making is in the Community. There is no policy decision making in Ireland after the principles and policies of the common fisheries policy have been decided in the Community, unless returned to the member states.
In Maher v. Minister for Agriculture [2001] 2 I.R. 139 at p. 222, I stated:-
“This case is not about any democratic deficit in Ireland. If there is a democratic deficit it should be met prior to the making of the Community regulations. If any such deficit exists it cannot be addressed after the policies and principles have been established by the Community regulations. This is not a case of the executive usurping the role of the legislature. Once principles and policies have been established by Community regulations there is no role, certainly no meaningful role, for the national legislature.
The democratic system in Ireland functions through three branches of government. However, in addition, the State is subject to European institutions and provisions made therein. These regulations are directly applicable. These regulations are part of Irish laws as a consequence of Ireland’s membership of the European Union. They are part of Irish law without any input from the three branches of government.
The principles and policies in relation to the milk quota were set down in the European provisions. These regulations are directly applicable in Ireland. They set out the principles and policies of the milk quota system. This scheme is a creation of the European Union and an important part of the Common Agriculture Policy and the Common Organisation of the Market. It is quintessentially a market device run from central institutions.
There was no necessity for legislation in the Oireachtas as the principles and policies are established in the Regulations. Indeed, such an enactment might have caused an impediment of the common organisation of the market if it had strayed from the principles and policies in the regulations. Also, such an approach might have created the illusion that there were policies to be decided in the national parliament when in fact there were not. There was no renvoito the national legislature.”
The principle and policies as to conservation of fish stocks and measures of rational exploitation of fisheries may be found in the Common Fisheries Policy, which may be stated in the Community regulations. It is then a matter of implementing these policies in the member states.
Offence/penalty
The offence in issue is created in Community law which gives member states some choice as to the penalty. The penalty created in Ireland should meet the requirements of the Community Regulations. However, the choice, while remaining within the principles and policies of the Community law, is required to be implemented in Ireland. In enabling that choice the second respondent is required to comply with Irish public law, which includes s. 3 of the European Communities Act 1972 and the Constitution. I am satisfied that the second respondent did not comply with Irish law.
Conclusion
For the reasons stated in this judgment I am satisfied that it was not open to the second respondent to use the mechanism of s. 223A of the Fisheries (Consolidation) Act 1959 (inserted by s. 9 of the Fisheries (Amendment) Act 1978, amended by s. 4 of the Fisheries (Amendment) Act 1983) to create an indictable offence by means of statutory instrument as a method of giving effect to Council Regulation (E.C.) No. 894/97 of the 29th April, 1997, as amended by Council Regulation (E.C.) No. 1239/98 of the 8th June, 1998.
For the reasons given I would dismiss the appeal and affirm the order of the High Court granting an order of prohibition directed to the first respondent herein prohibiting him from prosecuting the applicant in the
Cork Circuit Criminal Court on the charges preferred by him and contained in Castletownbere charge sheets No. 27 and No. 28 of 2000.
In the absence of clear words from the Oireachtas in s. 223A of the Fisheries (Consolidation) Act 1959, as amended, giving such power to the second respondent I am satisfied that the second respondent actedultra vires in creating an indictable offence in purported exercise of his powers under that section. Of course it is open to the Oireachtas to legislate for exceptions or amendments to its policy as set out in s. 3(3) of the European Communities Act 1972, as amended.
Murray J.
I agree with the judgment delivered by the Chief Justice.
McGuinness J.
I also agree with the Chief Justice.
Hardiman J.
I also agree with Keane C.J.
O’Connor & McCarthy v DPP and Others
[2015] 2 IR 71,
Judge: Ms. Justice Iseult O’MalleyThe regulations
7. The offence with which the applicants are charged is created by regulation 35(1) of the European Communities (Birds and Natural Habitats) Regulations, 2011 ( S.I. 477/2011), which provides as follows:
2 “35. (1) A person who, without lawful authority-
(a) carries out, on land within or outside a European site, any plan or project or activity that may have a significant effect on, or adversely effect the integrity of, a European Site,
or
(b) enters or occupies any European Site, or brings onto or places or uses or releases in any European Site any animal or object, including but not limited to-
(i) any off-road vehicle, recreational water craft, plant and equipment, tractor or engine,
(ii) machinery for the extraction or mining of natural resources including, but not limited to trees, vegetation, minerals, rock, soil, gravel, sand, turf or peat, where such action or the use or presence on the European Site of such an animal or object is likely to have a significant effect on, or adversely affect the integrity of, a European Site,
Shall be guilty of an offence.
8. By virtue of regulation 35(2) it is a defence to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.
9. It is not disputed that Moanveanlagh Bog, a raised bog which has been designated as a Special Area of Conservation, comes within the definition of a “European site” set out in the regulations.
10. Regulation 67 (2) provides that a person who commits an offence under regulation 35(1) is liable
a “(a) on summary conviction, to a Class A fine or imprisonment for a term not exceeding six months, or both, or
(b) on conviction on indictment, to a fine not exceeding €500,000, or imprisonment for a term not exceeding three years, or both.”
11. A court imposing sentence is obliged, pursuant to regulation 67(3), to have regard in particular
“…to the risk or extent of injury to the environment arising from the act or omission constituting the offence, and to the polluter pays principle.”
12. The 2011 regulations are stated in the preamble to have been made by the Minister for Arts, Heritage and the Gaeltacht
“[I]n exercise of the powers conferred on me by section 3 of the Act of 1972 and for the purpose of giving effect to Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 (which codifies Council Directive 79/409/EEC of 2 April 1979 (as amended)) and Council Directive 92/43 EEC of 21 May 1992 [as amended by various measures related to the accession of Member States]”.
13. The regulations came into operation on the 21 st September, 2011.
The Directives
14. Council Directive 92/43/EEC of 21 May 1992, on the conservation of natural habitats and of wild fauna and flora, is by now well known as the Habitats Directive. Its objective is described in Article 2, which reads in full as follows:
2 “(1) The aim of this Directive shall be to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member Slates to which the Treaty applies.”
(2) Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of community interest.
(3) Measures taken pursuant to this Directive shall take account of economic, social and cultural requirements and regional and local characteristics.”
15. The Directive provides for the establishment of the Natura 2000 network. This is composed of special areas of conservation designated by reference to the lists of habitats annexed to the text of the Directive. Raised bogs are included in the annex. Each Member State is obliged to propose and transmit lists of sites for designation.
16. Article 6 deals with the measures to be taken by Member States. As far as this case is concerned, the relevant sub-articles are (1) and (2).
2 “(1) For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the site.
(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.”
17. Article 23(1) obliged Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification.
18. Article 23(2) stipulates that when such measures are adopted, they shall contain a reference to the Directive or be accompanied by such reference on the occasion of their official publication.
19. Directive 2009/147/EC , known as the “Birds Directive”, does not appear to be of direct relevance to this case.
20. Directive 2008/99/EC, on the protection of the environment through criminal law, requires Member States to ensure that, inter alia, any conduct which causes the significant deterioration of a habitat within a protected site shall constitute a criminal offence. The annexes to this Directive include the Habitats Directive as part of a list of legislation which must be made the subject of criminal law measures.
21. Article 5 requires Member States to take the necessary steps to ensure that offences are punishable by effective, proportionate and dissuasive penalties.
22. It is relevant to note the following recitals in the preamble:
2 “(3) Experience has shown that the existing system of penalties have not been sufficient to achieve complete compliance with the laws for the protection of the environment. Such compliance can and should be strengthened by the availability of criminal penalties, which demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law.
[…]
(5) In order to achieve effective protection of the environment, there is a particular need for more dissuasive penalties for environmentally harmful activities, which typically cause or are likely to cause substantial damage to the air, including the stratosphere, to soil, water, animals or plants, including to the conservation of species.
[…]
(10) This Directive obliges Member States to provide for criminal penalties in their national legislation in respect of serious infringements of provisions of Community law on the protection of the environment…
(12) As this Directive provides for minimum rules, Member States are free to adopt or maintain more stringent measures regarding the effective criminal law protection of the environment…”
23. Member States were obliged to transpose this directive by the 26 th December, 2010.
The power of the Minister to provide for criminal offences by regulation
24. Section 2 of the European Communities Act, 1972 provides that from the 1 st January, 1973, the Treaties of the European Communities, and existing and future acts adopted by those institutions, shall be binding on the State and be part of Irish domestic law under the conditions laid down in such treaties.
25. Section 3 of the Act of 1972, as it originally stood, read in relevant part as follows:
2 “(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) Regulations under this section shall not create an indictable offence.”
26. This section was considered in Browne v. Ireland [2003] 3 I.R. 205, which concerned certain provisions of the Fisheries (Consolidation) Act, 1959, as amended. The applicant had been charged on indictment with offences contrary to a particular statutory instrument and contrary to s. 223A of the 1959 Act. That section conferred on the Minister for the Marine a power to make orders for the purposes of conservation of fish stocks and rational exploitation of fisheries. Breach of such an order was an offence. The order, pursuant to which the applicant had been charged, was stated to have been made for the purpose of giving effect to a Council Regulation.
27. A further section – s.224A – provided, without prejudice to the generality of s.3 of the Act of 1972, that the Minister could make regulations in relation to fishing for the purpose of giving effect to any provision of the Treaties or any act adopted by an institution of the European Communities. The Act further provided that to fish or attempt to fish in contravention of any such regulations would be an offence punishable, on conviction on indictment, by fine and forfeiture.
28. In upholding a challenge to the validity of a particular order made under s.223B, the Supreme Court observed that the order was not intended to give effect to the principles and policies of any domestic legislation. Rather, it was clear that they were intended to give effect to the principles and policies of the relevant Council Regulation. There was “not the slightest doubt” as to the power of the Minister to adopt that course, even though those principles and policies had not been embodied in any Act of the Oireachtas. That was the clear object of s.3 of the 1972 Act. However, the latter made it clear that the power to create an indictable offence pursuant to that provision was reserved to the Oireachtas.
“There is no indication whatever in the language of s. 223A that it was envisaged by the Oireachtas that [the Minister] could give effect to principles and policies which had never been considered or adopted by the Oireachtas by means of a statutory instrument under that section which effectively circumvented the prohibition on the creation of indictable offences in s.3 (3) of the Act of 1972.”
29. At p. 243 Denham J. said that any statute purporting to give power to a Minister to create an indictable offence should set out such power in plain and clear language.
30. The Court noted the distinction between s.223A and 224B in this regard.
31. The Supreme Court considered this area again in Kennedy v Attorney General [2005] 2 I.L.R.M. 401. Again, the applicant had been charged with an offence contrary to an order made under s.223A of the Fisheries (Consolidation) Act, as amended. The respondents sought to distinguish Browne by arguing that the order in question did not involve a measure giving effect to Community law but was, rather, adopted by the State in the exercise of its residual power to manage and control sea fishing and was covered by the principles and policies of the parent Act.
32. Giving the judgment of the majority, Denliam J. noted (at p.412) that s.3(3) of the Act of 1972 retained to the Oireachtas the power to create an indictable offence. She went on:
“This recognition of the power of the Oireachtas is consistent with Community law, as the method of implementing Community law is a matter for the Member State. This principle and policy may be revisited by the Oireachtas. However, in view of the expressed policy in the Act of 1972 any change in that policy should be clear from the words of a statute.”
33. Having regard to the context in which the order was made, and to relevant measures adopted by the Community, the Court considered that it was “unrealistic” to suggest that the order had been made as an exercise of the residual power of the State and not to give effect to the rules and objectives of the common fisheries policy. Browne was therefore not distinguishable. The Oireachtas had not intended that s.223 A, rather than s.224B, should be used to implement Community law.
34. In 2007, the prohibition in the Act of 1972 on the creation of indictable offences by Ministerial order was dropped. Section 3 was amended by substitution of the following subsection for subs. (3):
2 “(3) Regulations under this section may-
(a) make provision for offences under the regulations to be prosecuted on indictment, where the Minister of the Government making the regulations considers it necessary for the purpose of giving full effect to-
(i) a provision of the treaties governing the European Communities, or
(ii) an act, or provision of an act, adopted by an institution of the European Communities or any other body competent under those treaties,
and
(b) make such provision as that Minister of the Government considers necessary for the purpose of ensuring that penalties in respect of an offence prosecuted in that manner are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions of which the offence consists, provided that the maximum fine (if any) shall not be greater than €500,000 and the maximum term of imprisonment (if any) shall not be greater than three years.”
35. Both the “maximum fine” and the “maximum term of imprisonment” are defined by reference to the potential penalty on indictment.
36. By virtue of s. 4 of the European Union Act 2009, s. 3(a)(i) and 3(a)(ii) now refer to the treaties governing, and the institutions of, the European Union.
The Evidence
37. The applicants do not themselves claim ownership of turbary rights in Moanveanlagh Bog. The first named applicant describes himself as an agricultural contractor, working on contract for farmers in his local area of Co. Kerry. The second named applicant is a machine operator employed by the first named applicant.
38. Both of the applicants assert that various families living on or near Moanveanlagh Bog have turbary rights in it, and have taken turf from it for generations. It is further asserted that these owners of turbary rights oppose the designation of the bog as a Special Area of Conservation and allege that their property rights have been infringed by the designation process. This opposition is alleged to be on the basis that there was a lack of adequate or proper notification. The applicants aver that it is their understanding that the owners claim that they are entitled to continue to exercise their rights.
39. An affidavit sworn by Mr. Francis Donohoe of the National Parks and Wildlife Service sets out the history of the issue from the point of view of the respondents.
40. Mr. Donohoe refers to the obligation imposed on Member States by the Habitats Directive to list candidate sites of Community Importance. He says that this process began, in relation to active raised bogs and degraded raised bogs, in the late 1990s. In 1999 a list of 30 bogs was transmitted. Further sites were added in 2000 and 2002. Over that period a total of 53 individual bog sites were nominated for designation as SACs.
41. Also in 1999, the then Minister decided to prohibit commercial turf extraction on raised bogs which had been proposed for designation. She provided, however, for a 10-year period of “derogation” during which individuals could continue to cut turf subject to certain restrictions. She also established a scheme for the purchase by the State of freehold ownership or turbary rights in affected areas.
42. In May, 2010 on foot of receipt of a report by an inter-Departmental working group in relation to the legal obligation to provide effective protection for raised bogs, the Government decided that turf cutting should cease immediately in the 31 sites that had been selected for designation between 1997 and 1999. It was also decided that cutting would cease at the end of 2011 for the sites selected in 2002.
43. In January, 2011 the European Commission issued a letter of formal notice to Ireland concerning breaches of the Habitats Directive and the Environmental Impact Assessment Directive in respect of peat extraction from protected bogs. In June of that year the Commission issued a “reasoned opinion”, requiring the State to take “urgent action” to improve the implementation of protective legislation and indicating that it was considering the use of interim measures – that is, potentially, an application to the Court of Justice of the European Union for a direction compelling the State to prevent further damage to the sites. Mr. Donohoe says that such a step could cause considerable reputational damage to Ireland and would also entail the risk of significant fines against the State.
44. According to Mr. Donohoe, the Government has introduced a number of measures to implement the decision of May, 2010. A scheme to compensate affected persons and provide them with alternative locations for cutting is described as “heavily subscribed”.
45. Dealing specifically with Moanveanlagh Bog, Mr. Donohoe says that it was proposed for designation in December 2002. Public notices were placed in the local media at this time and relevant persons were informed either individually or through public announcements. Copies of the Notice of Intention to Designate (accompanied by an information pack) were made available in offices of the National Parks and Wildlife Service, Garda Stations, Social Welfare offices, Teagasc and the Farm Development Service. A number of people indicated that they wished to object to the proposal but, according to Mr. Donohoe, no “valid” appeals were submitted to the Department.
46. The Bog was included in a list transmitted to the European Commission in February 2007 and was subsequently adopted, by decision made in December 2008, as a site of Community Importance for the Atlantic biogeographical region.
47. On the 16 th December, 2011, a letter was sent to landowners and the owners of turbary rights on the Moanveanlagh Bog SAC informing them of the compensation scheme and reminding them that the “derogation” granted in 1999 had expired in relation to the Bog. Notices to the same effect were placed in newspapers (including The Kerry man and the Kerry’s Eye) in January 2012.
48. On the 22 nd May, 2012, a registered letter was sent by the Department to the first named applicant at his home address advising him that it had come to the attention of officials of the Department that he had been engaged in unauthorised turf-cutting within the Moanveanlagh SAC. He was notified that this was an offence under the Regulations, and requested to desist from any further cutting or drainage works within the SAC.
49. With reference to the penalties applicable under the regulations, Mr. Donohoe deposes as follows:
“I say that the cutting of turf on designated sites is a highly mechanised process carried out for the most part by contractors as a commercial enterprise. Nowadays the cutting of turf by hand on these sites is extremely rare. I say that typically, plot owners are charged up to €500.00 to have their plot cut and Department officials have observed a single plot being cut in approximately one hour. It is quite feasible for a contractor to cut ten plots in a single day yielding a gross return of €5,000.00, the amount equivalent to the maximum Class A fine on summary conviction. I understand that recently, five contractors cut fifty-four plots on one of these sites in a single day. To be an effective deterrent the Regulation had to provide for both summary conviction and convictions on indictment.”
50. Mr. James Ryan, a Wildlife Inspector in the Department who describes himself as “the Irish national expert on raised bog conservation and restoration”, has sworn an affidavit as to the effects of turf-cutting in raised bogs. I do not believe that it is necessary to go into this in great detail, since no issue is taken with it by the applicants, but it should be noted that he says that turf-cutting has both direct effects (by removal of habitat) and indirect effects (by drying out the bog system, thus affecting capacity to support the habitat). Almost all raised bogs in Ireland have been subjected to cutting, many for centuries, and many have been cutover or cutaway completely. There are no completely intact raised bogs left in the country. Only 1,639 ha of “intact” high bog can now be classified as Active raised bog and of the remainder, only 11% is considered to have significant potential for restoration.
51. Moanveanlagh Bog is considered one of the best remaining examples of a raised bog in the south-west of Ireland. However, it has suffered very adverse effects from cutting and associated drainage and now has only 4.6 ha of active bog. The most recent monitoring assessment (in 2013) gives it an Unfavourable Bad-Declining Assessment, the lowest ranking possible. Mr. Ryan says that it is essential that cutting is stopped and restoration initiated as soon as possible in order to minimise further avoidable losses.
The applicants’ grounds
52. The applicants plead that the Habitats Directive does not require the Member States to create an offence, whether summary or indictable, for the purpose of transposing the Directive into national law. The creation of a criminal offence by way of ministerial regulation for the purpose of transposing the Directive was done at the discretion of the Minister. The regulations are ultra vires the Minister, in so far as the indictable offence created is not necessary for the purpose of giving full effect to the Directive or for the purposes of the European Communities Act 2007.
53. It is claimed that the regulations fail to recite a finding or determination that the creation of an indictable offence is necessary for the purpose of giving full effect to the Habitats Directive such as would show that the jurisdiction created by the European Communities Act 2007 was properly exercised.
54. It is further pleaded that the regulations are ultra vires the Minister, invalid and of no legal effect in so far as the indictable offence created thereunder is not necessitated by Ireland’s membership of the European Union.
55. The regulations are said to be ultra vires the Minister, invalid and of no legal effect in so far as they create the indictable offence with which the applicants are charged. If (which is denied) the Minister was entitled to create an offence and/or an indictable offence by regulation, he was obliged to consider the extent to which the penalty provided for under the regulation was such that it would be effective in implementing the directive and/or would act as a deterrent and/or would otherwise be proportionate having regard to the act or omissions so impugned. In fixing the maximum penalty without reference, for example, to the severity of the act or omission impugned, but rather following a pattern in ministerial regulations implementing Community law, the Minister failed to consider the effectiveness, deterrence and/or the proportionality of the penalty imposed in this case.
The Applicants’ submissions
56. The applicants submit that the Habitats Directive makes no provision for criminal offences.
57. According to the applicants it is significant that the 2011 Regulations were not expressed to have been made in order to give effect to Directive 2008/99/EC on the protection of the environment through criminal law. They refer to Recital (3) of that Directive, set out above. They also refer to Article 8 of the 2008 Directive. This requires that when Member States adopt measures pursuant to its provisions they shall contain a reference to the Directive, or be accompanied on publication by such a reference. The 2011 Regulations contain no reference to this Directive, and were not made within the time limit prescribed by it.
58. It is contended that, in any event, the provision in directive 2008/99/EC requiring the criminalisation of “any conduct which causes significant deterioration of a habitat within a protected site” differs significantly to the offence created by the 2011 Regulations, which does not require actual damage to have been caused.
59. The argument is made that, having regard to the foregoing, the Habitats Directive does not have as a “principle or policy” the creation of criminal offences and therefore does not necessitate the imposition of criminal sanctions. If it did, the introduction of the 2008 directive would have been unnecessary. The decision to create an indictable offence was a policy decision made by the third named respondent which fell outside the requirements, or “principles and policies” of the Directive.
60. The applicants refer to Article 15.2 of the Constitution, which vests in the Oireachtas the sole and exclusive power of making laws for the State. Having regard to the jurisprudence of the Supreme Court on this provision, the applicants submit that s.3(3) of the Act of 1972 cannot be relied upon by the Minister unless the EU instrument intended to be implemented contains in its principles and policies a requirement for criminal sanctions. If it does not, the creation of such sanctions can be done only by way of an Act of the Oireachtas.
61. The applicants make the further submission that there is no evidence that the Minister had regard to whether or not the creation of an indictable offence was effective, proportionate and would have a deterrent effect. It is contended that 90% of statutory instruments made in the year 2011 under s.3 of the Act of 1972 created offences carrying the maximum penalty permitted by the section. This is said to demonstrate a “blanket policy” on the part of the Minister and a failure to exercise due consideration.
Respondent’s Submissions
62. The respondents’ position is that, as a matter of European Union law, Ireland is required to take all measures necessary to guarantee the application and effectiveness of the Habitats Directive. In particular, the State is required to ensure that infringements of Union law are subject to penalties which are effective, proportionate and dissuasive. It was in consideration of these obligations and requirements that the regulations, the subject-matter of these proceedings, were made.
63. The respondents point to the obligation of the State, pursuant to Article 4(3) of the Treaty of the European Union, to take
“any appropriate measure, general or particular, to ensure the fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.”
64. It is submitted that the creation of an offence, and the provision for it to be prosecuted on indictment pursuant to Regulations 35(1)(b) and Regulation 67(2) were, and are, considered by the Minister to be appropriate and necessary for the purpose of ensuring the effectiveness of the Habitats Directive.
65. Reliance is placed on Bund Naturschutz (Case C-244/05) [2006] ECR I-8445, a case concerning the Habitats Directive in which the European Court of Justice held that Member States must
“… in accordance with the provisions of national law, take all the measures necessary to avoid interventions which incur the risk of seriouslycompromising the ecological characteristics of the sites which appear on the national list transmitted to the Commission.”
66. It is submitted that a failure by the State to take action against private individuals who infringe EU law would in itself entail a breach of EU law on the part of the State.
67. The respondents accept that, as a general rule, criminal law does not fall within the competence of the EU. However, it is contended that the use of criminal sanctions may on occasion be necessary to ensure that full effect is given to EU law and that this is an accepted method in measures of transposition in this jurisdiction. It is suggested that this practice “foreshadowed” the introduction of Directive 2008/99/ EC, and that the latter measure did not indicate that criminal sanctions had not been permissible before its introduction.
68. In the context of the instant case, it is argued that the fulfilment of obligations under the Habitats Directive can only be achieved through the use of the criminal law. The creation of an indictable offence is rationally connected with the objective and the punishment is proportionate, having regard to the irreparable damage that may be caused.
The authorities
69. In Meagher v Minister for Agriculture [1994] 1 I.R. 329 the applicant had been charged with offences created under regulations dealing with certain veterinary medicinal products. The regulations, which were made for the purposes of implementing a Council Directive, extended the time limit for prosecutions set out in the Petty Sessions (Ireland) Act 1851 from six months to two years. They also conferred a power of search. The applicant contended, in the first instance, that s. 3, sub-s. 2 was invalid having regard to Article 15 of the Constitution in so far as it permitted a Minister by regulation to amend existing law. On this issue, the judgment of the Court was given by Finlay CJ. who said at pp.351-3:
“The power to make regulations contained in section 3, subs. 1 of the Act of 1972 is exclusively confined to the making of regulations for one purpose, and one purpose only, that of enabling s. 2 of the Act to have full effect. Section 2 of the Act which provides for the application of Community law and acts as binding on the State and as part of the domestic law subject to conditions laid down in the Treaty which, of course, include its primacy, is the major of fundamental obligation necessitated by membership of the Community. The power of regulation-making, therefore, contained in s. 3 is prima facie a power which is part of the necessary machinery which became a duty of the State upon its joining the Community and therefore necessitated by that membership.”
The Court is satisfied that having regard to the number of Community laws, acts done and measures adopted which either have to be facilitated in their direct application to the law of the State or have to be implemented by appropriate action into the law of the State, the obligation of membership would necessitate facilitating of these activities in some instances at least, and possibly in a great majority of instances, by the making of ministerial regulation rather than legislation of the Oireachtas.
The Court is accordingly satisfied that the power to make regulations in the form in which it is contained in s.3, sub-s. 2 of the Act of 1972 is necessitated by the obligations of membership by the State of the Communities and now of the Union and is therefore by virtue of Article 29, s. 4, sub-ss. 3, 4 and 5 immune from constitutional challenge.
In so far as it may be possible to point to hypothetical instances of certain types of laws, measures or acts of the Community or Union which in their implementation or application within the national law might not, as to the method of implementation or application, be necessarily carried out by ministerial regulation, but rather should have been carried out by enactment of law by the Oireachtas, the Court is satisfied, without deciding that such instances do occur, that the principles laid down by this Court in the decision of East Donegal Co-Operative Livestock Marts Ltd. v. Attorney General [1970] I.R. 317, must be applied to the construction of the impugned subsection in the manner in which it was applied by the decision of this Court in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232 to the construction of the section of the statute impugned in that case, namely, s. 75 of the Social Welfare Act, 1952. That principle is that it must be implied that the making of regulations by the Minister, as is permitted by the section, is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to the section, contravene any provisions of the Constitution.
If therefore in such an instance challenge were to be made to the validity of a ministerial regulation having regard to the absence of necessity for it to be carried out by regulation instead of legislation and having regard to the nature of the content of such regulation it would have to be a challenge made on the basis that the regulation was invalid as ultra vires being an unconstitutional exercise by the Minister of the power constitutionally conferred upon him by the section.”
70. The applicant had also argued as a separate issue that the provisions of the regulations in respect of the time limits and search powers were ul tra vires the Minister.
71. The Court approached this issue on the basis that the Minister had the power to include these provisions if it was necessary for the purpose of giving effect to the directives.
72. The powers of search were considered to be clearly necessary having regard to the obligations imposed on the State in respect of matters such as the taking of samples from farms.
73. It had been argued on behalf of the applicant that there was nothing in the directive that expressly required a two-year time limit and for that reason it was not justified. In rejecting this Blayney J. said at p. 359:
“The directive clearly required…that offences had to be created and obviously …it had to be possible for these offences to be effectively prosecuted, Accordingly the implementation of the directive required that the Regulations should provide for an adequate time for the preparation of the prosecution. It was not necessary that the directive should itself fix a time. It was a matter for the State to decide on the length of time required to enable the prosecution to be brought and that is what the Minister has done in providing for a period of two years.”
74. Blayney J. went on to deal with the argument that, since the directive left to national authorities the choice of implementation method, the method chosen was not “necessitated”, saying:
“[ Article 189 of the Treaty of Rome] obliges the State to implement the directive and equally obliges the State, in exercise of the discretion given to it, to choose an appropriate method of implementation. If the State were free not to implement the directive, then clearly, if it were to do so, it would be a voluntary act not necessitated by the obligations of membership and would not be protected by Article 29, s.4, sub-s.5 of the Constitution. But the State is not free. It is obliged to implement the directive and so is obliged o choose a method of implementation and, provided the method it chooses is appropriate for the purpose of satisfying the obligation of the State and the measures it incorporates do not go beyond what is required to implement the directive, it is correctly characterised as being necessitated by the directive.”
75. Similarly, Denham J. held that on the facts of the case, both the amendment of the time limit and the creation of the power of search were necessary, and had to be enacted into domestic law in fulfilment of the State’s obligations.
76. The applicant had also contended that since Member States have a choice as to the forms and methods of implementation of a directive, what was done by the way of implementation of a directive was not “necessitated” by membership of the Community.
77. Having noted that the directive in question set out the principles and policies while leaving to the national authorities the choice of form and methods of implementation, Denham J. went on (at pp. 365-6):
“If the Directive left to the national authorities matters of principle or policy to be determined then the “choice “of the Minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined by the national authorities, where the situation is that the principles and policies were determined in the directive, then legislation by a delegated form, by regulation, is a valid choice.”
78. However, if the Minister was in a position, under a directive, to make choices as to principles and policies then primary legislation would be required. Denham J. considered that the appropriate test was that set out in Cityview Press v. An Chomhairle Oiliuacute;na [1980] I.R. 381.
“Applying the test to this situation the test is whether the ministerial regulations under s. 3 of the Act of 1972 are more than the mere giving effect to principles and policies of the said Act and the directives which are part of Irish law as to the result to be achieved.”
If the regulations contained material exceeding the policies and principles of the directives then they are not authorised by the directives and would not be valid under s. 3 unless the material was incidental, supplementary or consequential.”
79. In Maher v Minister for Agriculture [2001] 2 I.R. 139 the Supreme Court was dealing with a statutory instrument made in order to give effect to a Council Regulation on milk quotas. The applicants were the holders of lands with milk quotas which, under the Irish regulations, they would be compelled to sell to the Minister at a fixed price. They argued that the regulations involved substantial policy choices which were not necessitated by membership of the EU and should have been made by way of Act of the Oireachtas.
80. The Supreme Court, noting that Community law did not require any particular form of implementation and that the choice of form and method was a matter for each Member State, held that choice of implementation by statutory instrument was a valid one. The Council Regulations were part of Irish law and could be regarded in the same way as an enabling statute of the Oireachtas.
81. Keane C.J said at pp. 178-179, having referred to the passages quoted above from the judgment of Finlay C.J. in Meagher:
“As that passage indicates, there are two broad categories of cases in which regulation made in purported exercise of the powers conferred by s. 3 might be found to be ultra vires the powers conferred on Ministers by section 3. The first category would be cases in which the making of the regulation was found not to be “necessitated” by the obligations of the membership referred to in Article 29.4.5 and to have violated some constitutional right of the plaintiff. The challenge in such a case would be no different from the challenge mounted to an Act of the Oireachtas allegedly necessitated by the obligations of membership which prima facie violated a constitutional right of the plaintiff. The second category of cases in which such a challenge could be successfully mounted to a regulation is where the implementation of a directive or defined parts of a European Community or European Regulation by ministerial regulation rather than an Act of the Oireachtas would be in conflict with the exclusive legislative role of the Oireachtas under Article 15.2.1 and would not be saved by the provisions of Article 29.4.5. That would arise in a case where the ministerial regulation went further than simply implementing details of principles or policies to be found in the directive or regulation in question and determined such principles or policies for itself and the making of the regulation in that form, rather than in the form of an Act of the Oireachtas, could not be regarded as necessitated by the obligations of membership. That this is what was intended to be conveyed by that passage in the judgment of the court is, I think, made clear when one comes to consider the judgments of the court on the vires issue in that case and, in particular, the judgment of Denham J.”
82. Fennelly J. said that the issue of “necessity” was appropriately to be considered by reference to the content, not the form, of the implementing instrument and that consequently, it was perfectly possible for the courts to apply the case-law on Article 15.2.1 without any conflict with Community law.
“Meagher v. Minister for Agriculture is clear authority for the proposition that, where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, then Article 15.2.1 of the Constitution is not infringed by the use of ministerial regulation to implement it. Both the judgment of the court and that of Denham J. expressly preserve the force of that provision, as it has been interpreted, for cases where such an obligation does not exist. The “principles and policies “test applies mutatis mutandis where the delegated legislation represents n exercise of a power or discretion arising form Community law secondary legislation. It applies with particular clarity to the case of directives where Article 294(EC) leaves the choice of forms and methods to the member stales. The question will not arise so frequently in the case of regulations since they are directly applicable without the need for national implementing measures.”
83. In Maher, it was held that the choices as to policy left to the member states by the Regulation had been reduced “almost to vanishing point”.
84. Browne v The Minister for the Marine has already been referred to in relation to the legislative history of s. 3 of the Act of 1972. In reaching the conclusion dealt with in para.28 above, the Supreme Court cited the decisions in Meagher and Maher. At p.219, Keane C.J. said:
“It is clear from the decisions of this court in [Meagher and Maher] that the fact that, in such cases, the principles and policies to which the regulation gives effect are not to be found in any Act of the Oireachtas, but rather in the Community measure concerned, does not affect its constitutional validity. It is beyond argument at this stage that the law as laid down by this court in Cityview Press v An Chomhairle Oiliuacute;na, that secondary legislation will trespass on the exclusive law making role of the Oireachtas unless it does no more than give effect to principles and policies laid down in an Act of the Oireachtas, is not applicable to regulations intended to give effect, by virtue of s. 3 of the Act of 1972, to European measures…”
Discussion and conclusions
85. The applicants do not assert that any of their property rights have been infringed by the regulations and the sole question is whether the criminal offence with which they have been charged was lawfully created. The answer to this question depends on whether or not it was lawful to utilise the provisions of s.3 of the Act of 1972.
86. It seems clear from the authorities discussed above that the validity of this method of legislation cannot depend purely on the opinion of the Minister that it was necessary to create the offence. The power conferred on a Minister to make regulations is only for the purpose of enabling s. 2 to have full effect. In assessing whether a particular measure fulfils that purpose regard must be had to the relationship between the regulations made by the Minister and the EU measures intended to be implemented.
87. What then are the “principles and policies” of the Habitats Directive? As far as is relevant to this case, it seems to me that that question is answered by reference to Article 6(2). The State is obliged to take all appropriate steps to prevent deterioration in listed sites, of which Moanveanlagh Bog is one.
88. There is no dispute as to the obligation of the State to implement effectively the objectives of the Habitats Directive, or as to the status of the bog in question as a protected site. Further, there has been no challenge to the evidence adduced on behalf of the respondents either as to the damage being caused by turf-cutting on raised bogs, or as to the efforts made by the State, dating back to the 1990s, to halt the practice by means of persuasion and/or compensation. It is also clear that those efforts have not been fully successful and that cutting continues on protected sites, with the associated damage thereby entailed.
89. In those circumstances, it seems to me that the introduction of criminal sanctions, almost twenty years after the Habitats Directive came into being, can fairly be said to have been necessary for the proper implementation of that Directive. The fact that it does not, in terms, call for the creation of criminal offences is not, in my view, decisive, since directives by their nature leave the choice of implementation methods to the member states. No authority has been referred to which might suggest that criminal sanctions cannot be created unless the “parent” directive calls for them. Other measures to bring a stop to the deterioration of raised bogs have been tried. If they have not succeeded, as appears to be the case, then the choices of the State as to how the Directive is to be implemented may narrow down to the point where the criminal law has to be invoked. In my view that situation has been reached in relation to this issue. It is not open to the State to stand by and permit further damage to be done – that would be a breach of its legal obligations under the Directive.
90. The applicants say that there is no evidence of any consideration by the Minister of the questions of effectiveness, proportionality and dissuasiveness. It seems to me that this argument is misconceived. The burden of proof lies on them, if they wish to argue that the regulations are ineffective, disproportionate or not dissuasive. In any event, I consider that the respondents have adduced sufficient evidence to establish that the penalties imposed by the 2011 regulations are not disproportionate, having regard to the potential damage caused by the conduct in question and also to the commercial nature of much of the continuing cutting. Effectiveness and dissuasiveness are matters not capable of empirical proof at this stage.
91. In the circumstances I refuse the reliefs sought.
Maher v. Minister for Agriculture
[2001] 2 I.L.R.M. 481
Maher v. Minister for Agriculture, Food and Rural Development [2001] IESC 32; [2001] 2 IR 139; [2001] 2 ILRM 481 (30th March, 2001)
THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
MURRAY J.
FENNELLY J.
340/2000
BETWEEN:
NICHOLAS PHILIP (OTHERWISE MARTIN) MAHER,
MALACHY BRETT AND RITA RYAN
APPELLANTS
AND
THE MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
[JUDGMENTS FROM KEANE C.J., DENHAM J., MURRAY J. AND FENNELLY J.; MURPHY J. AGREED WITH DENHAM J.]
JUDGMENT delivered on the 30th day of March 2001 by Keane C.J.
Introduction
1. What has become known as the milk quota system has given rise to much litigation, both at the level of the member States and in the Courts of Justice of the European Communities. The present case arises out of the making by the first named respondent (hereafter “the Minister” ) of the European Communities (Milk Quota) Regulations 2000 (S.I. No. 94 of 2000) (hereafter “S.I. 2000” ). These provided for certain changes in the system which I shall endeavour to summarise at a later point. The validity of S.I. 2000 is challenged by the appellants on the ground that it constitutes the exercise of legislative power by the Minister contrary to Article 15.2.1 º of the Constitution, violates the property rights of the applicants guaranteed by the Constitution and is not afforded immunity by the provisions of Article 29.4.7 of the Constitution, providing for the consequences of our accession to the European Economic Communities. The appellants’ claim was dismissed in the High Court in a reserved judgment by Carroll J. and they have now appealed from that judgment and order to this court.
2. The milk quota scheme was first introduced in 1984 by the Council of EEC in order to cope with problems which had arisen from the implementation of the Common Agricultural Policy (hereafter “the CAP” ) established under the Treaty of Rome as it affected the market in dairy products. The measures establishing the scheme were, accordingly, part of the common organisation of the market in the milk sector in the EEC, deriving from the CAP and known as the COM.
3. One of the features of the COM was a guaranteed price for milk producers throughout the EEC. This ultimately had it as its consequence a supply of milk and milk products throughout the EEC which was hugely in excess of the demand, resulting in massive costs to the community and severe downward pressure on milk prices. Attempts to deal with the problem in other ways having proved abortive, the scheme adopted in 1984 provided for a ceiling on milk production in each of the member States and the allocation to individual producers of a ceiling on their annual production. This was effected by the imposition of what was described as a “super levy” on any producer who exceeded the ceiling which would render uneconomic the production of any milk in excess of the relevant figure. This was done by the allocation of what were called “reference quantities” to the individual producers which became known as “quotas” and it will be seen that it was an essential part of the scheme that the total of the quotas in any member State, including Ireland, should not exceed the quota allocated by the EEC to the member State in question.
4. The scheme was originally intended to run for five years up to the 31st March 1989, but was in fact successively extended up to the 31st March 1993. A new, but substantially similar, system was then adopted which expired on 31st March 2000.
5. While the scheme achieved its objective of halting the growth in milk production in the EEC, the quota was initially set at a level which was substantially above the consumption of milk and milk products in the EEC. Accordingly, there continued to be a surplus of milk in the community. Various methods were adopted by the EEC of dealing with the resultant problems. Eventually, what was called “Agenda 2000” was adopted by the EEC Commission with a view to preparing the dairy sector for the further problems which would arise from the enlargement of the European Union and the liberalisation of trade within the World Trade Organisation. The latter developments would mean, not merely a new threat of surpluses in milk production, but also an undermining of the effectiveness of the quota regime in maintaining milk prices.
6. Agenda 2000 proposed to continue the milk quota regime for six years to March 2006 and also envisaged other proposals which were of particular relevance to the present proceedings. These related to what was seen by the Commission as a particular problem, i.e. the extent of quotas held by persons who were no longer actively involved in the production of milk. Under the scheme as originally introduced, the milk quota was attached to the land and could only be transferred to another person if the land to which it was attached was being transferred to that person. An exception was introduced, however, in 1987 which enabled producers to lease any part of the quota which he or she did not intend to utilise in a particular year until the end of the milk quota year.
7. The new measures adopted by the EEC to give effect to Agenda 2000 required the member States to adopt detailed rules as to what was to happen in relation to the transfer of quotas. It also conferred certain discretions on the member States as to provisions which might or might not be included in any such detailed rules. The relevant rules in Ireland are contained in S.I. 2000 which is challenged in these proceedings.
8. The effect of S.I. 2000 is that, subject to certain exceptions, it is no longer possible for persons who are not actively engaged in milk production to transfer their quota with the land by way of sale. Nor, again, subject to certain exceptions, is it possible to lease a quota with the land. While a quota can be transferred upon the renewal of a lease of lands, a person who has not been involved in milk production for three years or more, can make a temporary lease or transfer of the quota for one further year and no more. The regulations also provided for a “restructuring scheme” under which a quota holder can offer all or part of his or her quota to the purchaser of the milk in return for payment. The maximum price is to be determined by the Minister. There are exceptions to these various requirements when the lands were being sold, leased, given to or inherited by a spouse or family member.
9. The first applicant in an affidavit said that he was the owner of 130 acres of land in Cashel, Co. Tipperary and that there was a milk quota attached to the lands which amounted to approximately 28,170 gallons. He said that as a result of borrowings which he had to make at high interest rates in the 1970s to develop his dairy business and the wiping out of his dairy herd by brucellosis between May and September 1980, he found it necessary to earn an income outside dairy farming. He and his wife, accordingly, in 1986 started up an oil distribution company and in the year 1996 he leased his lands and milk quota to one Maurice Ryan: the lease expired on the 31st March 2000. He said that, as a result of the introduction of S.I. 2000, if he wished to retain his quota, he had only three options:
(a) to resume milk production;
(b) to renew the lease to Mr. Ryan;
(c) to lease the quota temporarily for one year.
10. He said that neither of the first two options were available to him and the third would only enable him to retain the quota for a year. However, if he were to dispose of the milk quota, his options would be to sell it under the restructuring scheme at the maximum price fixed by the Minister of £1.36 per gallon or do the same in a year’s time, after temporarily leasing it for one year. He would also be entitled to sell it to his former lessee, Mr. Ryan, but the latter was not interested in acquiring it. He said that the figure fixed by the Minister did not represent the market value of the milk quota. He said that his two children were aged 14 and 16 and that he wished to retain his milk quota so that they could take up dairy farming in a few years’ time if they so chose.
11. The second applicant said that he was the joint owner with his wife of lands and premises at Fethard, Co. Tipperary together with the milk quota attaching to the lands: the lands comprised approximately 77 acres and the milk quota amounted to approximately 24,404 gallons. He said that some years ago he began to suffer from ill health and it became necessary for him to cease milk production and sell his cows. Since then most of his income had been earned from leasing some of the lands together with part of his milk quota and temporarily leasing the balance of the milk quota. He said that his only options as a result of the introduction of S.I. 2000 were to resume milk production or sell his quota under the restructuring scheme. He said that, as he was now nearly 76 and no longer in full health, he was not in a position to resume milk production. As to the sale of his quota under the restructuring scheme, his complaints were the same as those of the first applicant.
12. The third applicant is the owner of 20 acres of land at Clonoulty, Co. Tipperary together with the milk quota attaching to the lands amounting to 11,844 gallons. She said in her affidavit that for a number of years she had temporarily leased the quota to the local creamery and that most of her income had come from that temporary lease. Her only other income was the sale of weanling calves born in the winter/spring months and sold the following autumn/winter. As in the case of the other two applicants, she said that her only options as a result of S.I. 2000 were to resume milk production or sell her milk quota under the restructuring scheme and that she was not in a position to resume milk production as she could not afford the cost of installing a new milking parlour. Her complaints as to the option of selling under the restructuring scheme were to the same effect as those of the first and second named applicants.
The regulatory framework
13. The relevant EEC Regulations are Council Regulation (EEC) No. 3950/92 of 28th December 1992 as last amended by Council Regulation (EC) No. 1256/99 of 17th May 1999 (hereafter “the EC Regulations” ).
14. Article 6 requires member States, before a specified date, to authorise for a twelve month period temporary transfers of individual reference quantities which producers who were entitled thereto do not intend to use. It also provides that the member States may vary transfer operations depending on the category of producers or dairy production structures, may limit them at the level of the purchaser within regions and may determine to what extent transfer operations may be renewed. It also permits a member State to decide not to comply with this requirement, on the basis of certain criteria. The last mentioned discretion was not exercised in the case of Ireland.
15. Article 7.1 provides that
“Reference quantities available on a holding shall be transferred with the holding in the case of sale, lease or transfer by inheritance to the purchasers taking it over in accordance with the detailed rules to be determined by the member States taking account of the areas used for dairy production or other objective criteria and, where applicable, of any agreement between the parties.
“Any part of the reference quantity, which is not transferred with holding, shall be added to the national reserve …”
16. As already noted, the detailed rules in Ireland are set out in S.I. 2000. However, Article 8a of the EC Regulations provided that
“Acting in compliance with the general principles of community law, member States may take the following measures, with the aim of ensuring that reference quantities are solely attributed to active milk producers: …
(b) member States may decide not to apply the provisions on transfer of reference quantities in Article 7(1).”
17. The Minister availed of this power by providing as follows in Article 5(1) of S.I. 2000:-
“Subject to the exceptions provided for in Regulations 6, 7, 8, 9, 10 and 11, where any holding, or part thereof, is transferred the milk quota attached to that holding or part thereof shall not be transferred to the person to whom that transfer is made.”
18. Sub-paragraph (2) goes on to provide that, where there is a transfer of land to which the milk quota attaches, the milk quota is to be added to the “national reserve” unless one of the relevant exemptions in the regulations has been availed of. The concept of the “national reserve” , which has been a feature of the EEC milk quota scheme since its inception in 1984, means in effect that, where a milk quota ceases to be attached to a particular farm, it may remain available as part of the total quota to which the member State is entitled. Under S.I. 2000, such milk quotas become available to active milk producers, with priority being given to small and medium producers.
19. The exemptions provided for under S.I. 2000 from Article 5(1) must next be considered. Article 7, in effect, enables the Minister to grant a certificate of entitlement to transfer a milk quota to a person who satisfies him that he has been actively engaged in the production of milk for the previous three years. Article 6 enables the quota to be transferred to the spouse and defined members of the family of the transferor. Article 9 enables the lessee of land and a quota to purchase the leased quota with or without the land from the lessor on the termination of the lease, provided he or she is a producer. Article 10 provides for the transfer of the quota on a renewal of the lease. Article 12 provides for the transfer of the quota to the lessor where a lease of land which the milk quota attaches terminates.
20. Article 8 of the EC Regulations provides that
“With a view to completing restructuring of milk production or to environmental improvement, member States may take one or more of the following actions in accordance with detailed rules which they shall lay down taking account of the legitimate interests of the parties …” .
21. There follow five options which were available to the member States. That contained in sub-paragraph (b) was availed of by the Minister in S.I. 2000 and was as follows:-
“… determine on the basis of objective criteria the conditions under which producers may obtain, in return for payment, at the beginning of a twelve month period, through allocation by the competent authority or by the body designated by that authority, of reference quantities released definitively at the end of the preceding twelve month period by other producers in return for compensation in one or more annual instalments equal to the above mentioned payment …”
22. Article 26 of S.I. 2000 enables the Minister, pursuant to Article 8(b), to introduce a scheme called the “milk quota restructuring scheme” for the surrender of a milk quota at the end of each milk quota year and its reallocation at the beginning of the following year. Sub-paragraph (5) provides that the maximum payment for a surrendered quota and the reallocation price is to be set by the Minister.
23. The Minister also availed of the power conferred on the member State by Article 6.1 of the EC Regulations as to the temporary transfer of quotas which producers who were entitled thereto did not intend to use. Article 27 of
S.I. 2000 provides inter alia as follows:-
“(2) A person may, subject to paragraphs (3) and (4), offer for temporary transfer such part of his or her milk quota as he or she does not intend to use during that milk quota year.
(3) The holder of a quota who neither made milk deliveries to a purchaser, or sold milk or milk products directly for consumption, during any three successive milk quota years since 1st April 1997 and who made a temporary transfer of his or her quota under Regulation 16 of the Regulations of 1995 or under paragraph (2) during each of the three milk quota years in question shall not be entitled to make a temporary transfer under paragraph (2).
(4) A person who neither made milk deliveries to a purchaser or sold milk or milk products directly for consumption, has leased his or her land and milk quota for a period of three successive years or more, since April 1st, 1997 shall be entitled to make a temporary transfer of his or her quota under paragraph (2) for one year only.”
24. There follow provisions enabling the Minister to authorise a temporary transfer of the quota for one further milk quota year in “exceptional circumstances” .
25. Finally, it should be noted that recital (6) of the EC Regulation sets out the rationale of the relevant provisions of the EC Regulations as follows:-
“Whereas the experience with the additional levy scheme has shown that the transfer of reference quantities through legal constructions such as leases which do not necessarily lead to a permanent allocation of the reference quantities concerned to the transferee, can be an additional cost factor for milk production hampering the improvement of production structures;
Whereas in order to strengthen the reference quantities’ character as a means of regulating the market of milk and milk products, the member States should be authorised to allocate reference quantities, which have been transferred through leases or comparable legal means, to the national reserve for redistribution, on the basis of objective criteria, to active producers in particular, to those who have used them before;
Whereas member States should also have the right to organise the transfer of reference quantities in a different way than by means of individual transactions between producers;
Whereas it should be explicitly provided, in particular with a view to taking account adequately of existing legal rights, that, when using these authorisations, member States are to take the necessary measures to comply with the general principles of community law …”
26. The factual background in Ireland against which the Minister, in purported exercise of the powers conferred on the member States, made S.I. 2000, was set out in an affidavit by Mr. Patrick Evans, an assistant principal officer in the milk policy division of the department of the Minister. He said that Ireland had had particular difficulties in relation to the milk quota scheme due to the large number of small and medium scale producers in the dairying sector. Of 31,500 active producers engaged in milk production in Ireland, 68% of the total had a milk quota of less than 35,000 gallons. He said that in view of the fact that milk production was far more profitable than beef, sheep or pig production, producers were constantly seeking to expand their dairying enterprise and that, as a result, the demand for milk quota in Ireland far exceeded the supply of such quota.
27. Mr. Evans said that this situation was compounded because of the leasing of land and quota, which represented between 9% and 10% of the national quota. A further 6% of the national quota was leased temporarily without land on an annual basis. In the result, a significant portion of the profit from milk production was transferred from the milk producer to the owner of the quota who, in most instances, was no longer involved in milk production. This was likely to increase because of the number of producers ceasing milk production and resulted generally in a less efficient dairying industry characterised by a lack of certainty and higher production costs. He said that it was standard practice for member States to consult with the Commission beforehand on the measures they might propose to adopt for the application of the milk quota regime in their respective territories and this procedure had been fully observed by Ireland.
28. Mr. Evans further deposed that the Minister had consulted with organisations representing the dairy industry and other interested parties before making a decision on the changes that should be introduced. He said that there was a general consensus that
(i) the new regime should reinforce the position of active milk producers;
(ii) the interests of small and medium scale producers should be favoured;
(iii) the permanent transfer of quota should be facilitated;
(iv) quota should be allocated at a reasonable cost.
29. Mr. Evans said that the Minister, in implementing the new regime by way of S.I. 2000, was of the view that the provisions were necessary in order to ensure that the objectives contained in the EC Regulations were achieved in Ireland. In particular, the changes were intended to ensure, as provided in Article 8a of the EC Regulations, that quotas were solely attributed to active milk producers.
30. Mr. Evans said that the first and second named appellants had benefited to the extent of approximately £70,000 and £46,000 respectively from their quotas, during periods when they were not active milk producers.
The applicable law
31. Article 32 of the Treaty of Rome under the title “Agriculture” provides that the common market is to extend to agriculture and trade in agricultural products and must be accompanied by the establishment of a common agricultural policy. The objectives of the CAP are set out in Article 33 as follows:
“(a) To increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) Thus to ensure a fair standing of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) To stabilise markets;
(d) To ensure the availability of supplies;
(e) To ensure the supplies for each consumer is at reasonable prices.”
32. Article 33.2 requires account to be taken of the particular nature of agricultural activity, resulting inter alia from the “social structure” of agriculture, in working out the CAP.
33. Article 34 provides for the establishment of a common organisation of agricultural markets and under Article 2 may include the measures required to attain the objectives set out in Article 33, including in particular the regulation of prices.
34. Article 5 provides that
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the community. They shall facilitate the achievement of the community’s tasks.
“They shall abstain from any measure which could jeopardise the attainments of the objectives of this Treaty.”
35. Article 189 establishes what might be called the legislative machinery of the community. It provides that
“In order to carry out their task, the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions.
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member States.
“A directive shall be binding, as the result to be achieved, upon each member State to which it is addressed, but shall leave to the national authorities the choice of form and methods …”
36. Article 29.4.3º of the Constitution provided inter alia that the State might become a member of the European Economic Community established by the Treaty of Rome. Article 29.4.7º, as amended, provides that
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the communities [including the European Economic Community], or prevents laws enacted, acts done or measures by the European Union or the communities or by institutions thereof, or by bodies competent under the treaties established in the communities, from having the force of law in the State.”
37. Following the accession by Ireland to the European Communities, the European Communities Act 1972 (hereafter “the 1972 Act” ) was enacted by the Oireachtas. Section 2 provided that
“From the 1st day of January 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.”
Section 3 provided that
“(1) A Minister of State may make regulations for enabling s. 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purpose of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) Regulations made under this section shall not create an indictable offence.”
Section 4, as substituted by section 1 of the European Communities (Amendment) Act 1973, provided that regulations under the Act were to have statutory effect, but could be annulled where the Joint Committee on the Secondary Legislation of the European Communities so recommends to the Houses of the Oireachtas and also enables one-third of the members of Dáil Éireann or Seanad Éireann to requisition a meeting of either House where regulations are made and the Dáil and Seanad, as the case may be, stands adjourned for a period of more than ten days.
In Meagher .v. Minister for Agriculture , (1994) 1 IR 329 it was held by this court that s. 3 of the 1972 Act was not invalid having regard to the provisions of the Constitution.
38. The law of the European Communities can have legal effect in Ireland because of the making of Regulations which are directly applicable in each of the member States. The EC Regulation, on foot of which the Minister purported to make S.I. 2000, is such a regulation. It is, accordingly, to be distinguished from Directives, which have binding force as to the result to be achieved for each member State to which they are addressed, but which leave the member States free to choose the form and methods for implementing the directive. The jurisprudence of the Courts of Justice of the European Communities has, of course, established that the law of the communities, whether embodied in regulations or directives, must be given primacy, where it is applicable, over the domestic law of the member States.
39. It is claimed on behalf of the applicants in the present proceedings that S.I. 2000 was made in violation of certain provisions of the Constitution and that its making was not necessitated by the obligations of membership of the European Union or of the communities within the meaning of Article 29.4.7º of the Constitution. The first article relied on is Article 15.2.1º which provides that
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
40. The second ground is that S.I. 2000 constitutes an unjust attack on the property rights of the applicants, in the form of their respective milk quotas, guaranteed by Articles 40.3.1º and 2º and 43 of the Constitution.
41. It was conceded on behalf of the appellants that, if the making of
42. S.I. 2000 was necessitated by the obligations of Ireland’s membership of the Communities within the meaning of Article 29.4.7º of the Constitution, the applicants could not succeed, even if the regulations were otherwise in violation of the Constitution.
The High Court judgment
43. In the High Court, the learned High Court judge held that the discretions which were left to the member States were within the principles and policies determined by the Council of Ministers in the organisation of the milk market in the European Union and that S.I. 2000 did not go beyond what was required by those principles and policies. She said that the decision of the Minister that quotas should go to active milk producers was in accordance with the stated policy of the Regulations. She was of the view that S.I. 2000 was necessitated by the obligations of membership of the EU. However, she was also of the view that, because the choices made in S.I. 2000 were within the principles and policies of the milk quota scheme, it could also be regarded as valid secondary legislation which was not contrary to Article 15.2.1º of the Constitution.
44. As to the claim that S.I. 2000 was in breach of the property rights of the appellants, the learned High Court held that it was clear from the jurisprudence of the European Court of Justice that the right to property safeguarded by the community legal order did not include the right to dispose for profit of an advantage such as a milk quota. She concluded that the nature of the milk quota, which was created by European law, must bear the same meaning in domestic law as in the legal order of the European Union.
45. The learned High Court judge had been urged by counsel for the appellants to have regard to the Dáil Debates on the Eleventh Amendment of the Constitution Bill in determining what was meant by the expression “necessitated by the obligations of membership …” in Article 29.4.7º. She rejected the submission that she was entitled to have regard to what was said during the course of the Oireachtas debates, but had regard de bene esse to the fact that during the passage of the Bill through the Oireachtas the word “necessitated” was substituted for the word “consequent on” . However, she was also of the view that that did not assist the arguments advanced on behalf of the applicants as to the validity of S.I. 2000.
46. As already noted, the appellants have appealed from the judgment and order of the High Court. The respondents have served a notice to vary the judgment in so far as it could be construed as allowing the court to have regard to the amendment effected to the Eleventh Amendment of the Constitution Bill during its passage through the Oireachtas.
Submissions of the parties
47. Mr. Gerard Hogan S.C., on behalf of the applicants, did not invite the court to overrule its previous decision in Meagher to the effect that s. 3 of the 1972 Act was not invalid having regard to the provisions of the Constitution. He submitted, however, that in determining whether S.I. 2000 was itself “necessitated” by the obligations of EC membership and thus immune from constitutional scrutiny, the court should not follow in its entirety the reasoning by which the court arrived at its conclusions in that case. (It should be pointed out at this stage that the court in Meagher, having ruled on the constitutionality of s. 3 of the 1972 Act, went on to consider whether the specific regulations challenged in that case were intra vires and unanimously concluded that they were.) He said that, in so far as any of the judgments in that case suggested that the word “necessitated” should be equated to “convenient” or “desirable”, that reasoning should not now be followed. He submitted that the word “necessitated” clearly indicated that Article 29.4.7º allowed for the transfer of legislative, executive and juridical sovereignty to the European Union and the Communities only where this was a legal obligation resulting from membership of the EU and the Communities.
48. Mr. Hogan submitted that this approach to Article 29.4.7º was reinforced by the parliamentary history of the Third Amendment of the Constitution Bill, 1971: the words “consequent upon” originally used in the Bill had been replaced by “necessitated” at the committee stage. In the present case, the issue, accordingly, was as to whether the making of S.I. 2000 by the Minister in purported exercise of the powers conferred by s. 3 of the 1972 Act was a legal obligation deriving from our membership of the Communities and not simply a consequence of that membership.
49. Mr. Hogan further submitted that this construction of Article 29.4.7º was supported by the terms of Article 29.4.6º which provided that
“The State may exercise the options or discretions provided by or under Article 1.11, 2.5 and 2.15 [of the Amsterdam Treaty] and the Second and Fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.”
50. He submitted that this provision in the Constitution would have been quite unnecessary if legislative sovereignty could be surrendered to the European Union in the manner suggested by some of the reasoning in Meagher. Mr. Hogan further submitted that, having regard to the wide range of choices which a member State could make under the relevant Articles of the EC Regulation, it could not be said that, even adopting the reasoning of the court in Meagher, legislation in the form of a ministerial regulation was necessitated in this case by the obligations of EC membership and he cited in particular passages in the judgment of the court and of Denham J. in that case. He also cited the decision of Murphy J. as a High Court judge in Green .v. Minister for Agriculture (1990) 2 IR 17.
51. Mr. Hogan submitted that, assuming that S.I. 2000 was not shielded from constitutional scrutiny by virtue of Article 29.4.7º, it clearly violated Article 15.2.1º of the Constitution, since it constituted delegated legislation which went significantly further than simply giving detailed effect to principles and policies contained in a parent Act. He relied particularly in support of this proposition on the decisions of this court in Cityview Press Ltd. .v. AnCO , (1980) IR 381, O’Neill .v. Minister for Agriculture , (1997) 2 ILRM 435 and Laurentiu .v. Minister for Justice, Equality and Law Reform , (2000) 1 ILRM 1 and of the High Court in McDaid .v. Sheedy , (1991) 1 IR 1 and Lovett .v. Minister for Education , (1997) 1 ILRM 89.
52. Mr. Hogan submitted that, in determining whether S.I. 2000 was constitutionally valid, as being no more than the detailed implementation of principles and policies contained in parent legislation, it was immaterial that S.I. 2000 had been made in purported exercise of a power conferred by an EC Regulation, as distinct from a Directive, citing observations of the Court of Justice in Case 230/78 SPA Eridania – Zuccherifici . Mr. Hogan said that, while Mr. Evans in his affidavit had laid stress on the provisions of the Regulation enabling member States to take measures “with the aim of ensuring that reference quantities are solely attributed to milk producers” , it is nowhere said that this is a community objective which the regulation requires member States to implement: on the contrary, it simply enables member States who wish to pursue this policy objective so to do.
53. Mr. Hogan urged that it was clear from S.I. 2000 that the Minister had elected to make substantial and important policy choices, of which the most significant in practical terms was the effective breaking of the link between land and quota, save for family transactions. He said that the jurisprudence of the Court of Justice made it clear that, in areas where common rules applicable to all the member States are not laid down by a particular regulation, the member States in implementing the regulation in those areas are entitled to act in accordance with the procedural and substantive rules of their own national law, citing the decision of the Court of Justice in Kjell Kirllson .v. Svenska Jordbruksverket , Case C-292/97 (2000) ECR 1-2737. He also relied on Case C-258/93 Dominikanerinnen-Kloster altenhohenau , (1995) ECR 1-4069.
54. As to the claimed violation of the applicants’ property rights, Mr. Hogan accepted that the Court of Justice had generally taken the view that milk quotas do not constitute a property right so far as community law is concerned and referred in this context to R. .v. Ministry of Agriculture, xp. Bostock , Case C-2/92 (1994) ECR 1-955. However, that case was concerned with the right to dispose of a quota for profit, whereas the present case involved what was effectively a form of compulsory acquisition by the State of a quota at a price substantially less than the prevailing market value. He said that, in these circumstances, a milk quota might qualify for protection as a property right which the member States were obliged as a matter of community law to protect, citing the comments of the Advocate General in Damand .v. Haubtzollampt Trier , (KC-186/96) 1998 ECR 1-8529, 8541.
55. Mr. Hogan further submitted that, in any event, the dicta in Bostoch did not prevent such a right from being regarded as a property right for the purposes of Irish constitutional law. He pointed out that in Duff .v. Minister for Agriculture (KC-63/93 (1996) ECR 1569, the Advocate General had pointed out that the fact that the plaintiff’s legitimate expectations at community law level had not been infringed by the actions of the Minister did not prevent such a requirement being founded on principles of national law and that, in the event, that passage had enabled the plaintiff to succeed when the case returned to this court.
56. Mr. Hogan submitted that there was no valid reason why an intangible but valuable right such as a milk quota should not be regarded as a property right and, as such, it had been unquestionably violated by S.I. 2000.
57. On behalf of the respondents, Ms. Mary Finlay, S.C. submitted that, even if it were assumed that the making of S.I. 2000 by the Minister was not “necessitated” by the obligation of Ireland’s membership of the European Communities within the meaning of Article 29.4.7º of the Constitution, it was intra vires s. 3 of the 1972 Act as representing the detailed implementation of principles and policies set out in parent legislation, in accordance with the law as found by this court in Cityview Press Ltd. .v. AnCO and Laurentiu .v. Minister for Justice, Equality and Law Reform .
58. Ms. Finlay submitted that the EC Regulations, which had direct effect in Ireland, were the equivalent of parent legislation in that they enabled the member States to exercise certain discretions in regard to the implementation of the milk quota scheme generally throughout the European Union.
59. Ms. Finlay submitted that, in the context of the common organisation of the market in milk and milk products, it was recognised that the position of producers varied in different areas throughout the Community and that this required different responses in different areas. It was for that reason that the Regulations empowered the member States to take certain limited decisions as to the precise way in which the COM was to be implemented in each member State. Such discretions had, however, to be exercised at all times in accordance with the Regulations and with a view to achieving the overall objectives and aim of the COM and in such a way as to avoid discrimination between producers in different parts of the Community.
60. Ms. Finlay submitted that s. 3 of the 1972 Act authorised the Minister to make regulations for the purpose of enabling the EC Regulations as to the milk quota and super levy scheme to have full effect in Ireland and that was the sole purpose of S.I. 2000. Accordingly, prima facie , S.I. 2000 was intra vires the powers conferred on the Minister by s. 3 of the 1972 Act.
61. Ms. Finlay submitted that the super levy/milk quota regime was established by EC regulations and that the respective roles of the Council of Ministers and EC Commission on the one hand and the member States on the other hand in the COM was analogous to the respective roles of the Oireachtas and the Executive in relation to purely domestic legislation. All the essential policies and principles relating to the COM were determined by the Council of Ministers and what was left of the member States were detailed implementing rules and limited permissible variations. The position of the Minister was thus not the same as that of the relevant ministers in O’Neill .v. Minister for Agriculture and Laurentiu .v. Minister for Justice and the making of S.I. 2000 complied with the test laid down in Cityview Press Ltd. .v. AnCO .
62. Ms. Finlay submitted that it was not correct to say that the break in the link between land and quota “effected by the 1999 EC Regulation” and S.I. 2000 was a radical new departure, as suggested on behalf of the applicants. Since the introduction of the general rule in 1984 that quota should transfer with the land, a series of exceptions had been created and those introduced by the 1999 Regulation were only the last in the sequence. She further submitted that Article 7(1) expressly obliged the member States to lay down detailed rules: S.I. 2000 were such detailed rules. As to the decision not to provide for the automatic transfer of quotas with land, this could only be done for the purpose of ensuring that quotas were solely attributed to active milk producers and this was what S.I. 2000 was intended to achieve.
63. Ms. Finlay submitted that restructuring schemes had also been authorised in the member States by EC law since 1987. The actions that could be taken by member States with a view to completing restructuring of milk production were exhaustively set out in Article 8 of the EC Regulation and in making the detailed rules the member States were constrained by the express provisions of that Regulation and the overall aims and policies of the CAP, COM in milk and milk products, the additional levy scheme and the relevant EU instruments. Ms. Finlay submitted that in making Regulation 27 relating to the temporary leasing of quota, the Minister was acting in accordance with the express obligation under Article 6.1. It was merely the precise terms of a detailed temporary leasing scheme which were left to be specified by the member State and this was what had been done in S.I. 2000.
64. As to the submission that Article 40.3.2º and 43 had been violated by
65. S.I. 2000, Ms. Finlay submitted that it was clear that a milk quota was not a property right and the opinion of the Advocate General in Duff .v. Minister for Agriculture was not authority for the proposition that the nature of the rights conferred by a milk quota on the appellants were different in Irish law.
66. Ms. Finlay submitted that there was no question of anything in the nature of a compulsory acquisition by the State of a quota at less than the prevailing market price. The quota was not acquired in any sense by the State: in the present case, the applicants were all persons who were no longer engaged in active milk production and who were entitled to release their quota, which would then be reallocated to an active producer who would pay them the specified price. Each of the applicants was simply endeavouring to earn a greater profit from the milk quota currently held by them than was permissible under the S.I. 2000 and were not seeking to use the quota for the purpose for which it was intended, i.e. the production of milk up to the amount of the quota.
67. If, contrary to the submissions, it was found that any of the provisions of S.I. 2000 prima facie violated the Constitution, it was submitted that they were “necessitated” by the obligation of membership of the European Union or of the Communities and hence were entitled to the protection of Article. 29.4.7º of the Constitution. Ms. Finlay submitted that it was clear from the decision of this court in Meagher that the fact that the member State had been left some element of choice or discretion as to the precise form a particular measure should take was perfectly consistent with the measure being necessitated by the obligations of EC membership. Thus, in Meagher, although the relevant directive contained no express provision as to the creation of sanctions, the court accepted that the nature of the sanctions to be imposed, including the penalties, were properly determined by regulation. She submitted that the somewhat broader approach to the construction of the phrase “necessitated by the obligations of membership” than that being contended for on behalf of the appellants was also consistent with the decision of this court in Crotty .v. An Taoiseach (1987) IR 713.
68. Ms. Finlay said that the respondents strongly resisted the proposition advanced by the appellants that the reasoning in Meagher should be reconsidered at this stage by the court. Meagher had been a decision on the constitutionality of s. 3 of the 1972 Act and had been continuously relied on since then by the State, approximately 498 statutory instruments having been made by various ministers under s. 3 of the 1972 Act.
69. As to the notice to vary, Mr Paul Gardiner S.C. on behalf of the respondents submitted that the decision of this court in People (DPP) .v. McDonagh (1996) 1 IR was not authority for the proposition that the parliamentary history of a particular bill was an admissible aid to the interpretation of an amendment of the Constitution effected by way of referendum. He said that to hold otherwise would be to derogate from the primary role of the people in determining whether the Constitution should be amended which had been emphasised in two recent decisions of this court, McKenna v. An Taoiseach (No 2) (1995) 2 IR 10 and Hanafin .v. Minister for the Environment (1996) 2 IR 321. He submitted that it followed that the court was not entitled to have regard to the fact that the words “consequent upon” originally used in the Third Amendment of the Constitution Bill had been replaced by “necessitated” at the committee stage.
Conclusions
70. It is accepted in this case that, if the making by the Minister of S.I. 2000 was “necessitated” by the obligations of membership of the European Union or the European Economic Community, it could not be successfully challenged by the appellants. It would seem to follow that this should be the first issue to be addressed by this court.
71. As a result of the passage of the Eleventh Amendment of the Constitution, Article 29.4.3º empowered the State to become a member of inter alia the European Economic Community established by the Treaty of Rome. Article 29.4.5º ensured that laws enacted, acts done or measures adopted by the State which were necessitated by the obligations of membership of inter alia the EEC were not invalidated by any other provision of the Constitution. Section 2 of the 1972 Act, which provided that the treaties governing the European Communities and the existing and future acts adopted by the institutions of the communities were to be binding on the State and be part of its domestic law under the conditions laid down in the treaties, was clearly necessitated by the obligations of membership of those communities.
72. The result was a historic transfer of legislative, executive and judicial sovereignty to the European Communities and, as a result of further referenda, the European Union. In particular, the exclusive roles hitherto enjoyed by the Oireachtas in the legislative field and the courts in the administration of justice were significantly abridged. The developing jurisprudence of the European Court of Justice also made it clear that there existed effectively an autonomous European legal order and that the member States were obliged to acknowledge the primacy of Community law over national law in areas where it was applicable.
73. It was also, moreover, clear that the Member States envisaged that the communities established by treaties were to be dynamic in their nature and that the obligations of membership referred to in Article 29.4.5º would not be static.
74. In the result, a significant new volume of legislation became applicable in Ireland and binding on all the citizens either in the form of Directives which the State, as a result of its membership, was obliged to implement in domestic legislation, or Regulations which were directly applicable in Ireland and did not require such legislation for their implementation. Since, under the communities’ legal order, the method by which a Directive was implemented, as distinct from its substance, was to be determined by the Member State, the Directive itself would contain no indication as to which of the two normal methods employed in Ireland – an Act of the Oireachtas or a ministerial regulation – was to be employed. The Directives, in short, did not contain the enabling provision, commonplace in domestic Irish legislation, under which a minister or some other body so authorised by the Oireachtas can give detailed effect in the form of regulations to policies determined by the Oireachtas. That was not necessarily the case with Regulations which, of their nature, did not require implementation by either legislation or regulation. As the present case demonstrates, however, it was also possible for the Council of Ministers to issue regulations having direct effect in a Member State such as Ireland which, in defined areas, required or authorised the Member State to adopt its own rules whether by way of legislation or regulation. It is also, of course, obvious that in some instances, in the case of both Directives and Regulations, their detailed implementation can be effected by administrative acts rather than by legislation or regulation.
75. Accordingly, had s. 3 of the 1972 Act not been enacted by the Oireachtas, it would have been necessary for Directives to be implemented by an Act of the Oireachtas, since there would have been no parent legislation in this country enabling it to be done by way of regulations made by the appropriate minister. The same would apply to those Regulations in which the member States were required or authorised to adopt rules themselves for the purpose of implementing the Regulations. Thus, although a Directive did no more than require the member States to reduce or increase a tariff or duty by a specified sum, leaving no policy choice to be made by the Oireachtas, it would have been necessary for an Act to be passed if Ireland was to fulfil its obligation as a member of the community.
76. As already noted, s. 3 of the 1972 Act, giving Ministers the power to make regulations for the purposes of s. 2, was found to be constitutional by this court in Meagher. The judgments in the case were cited frequently in the course of the arguments in the present case and clearly require careful consideration.
77. The facts can be briefly summarised. Two Council Directives of the EEC prohibited the administration to animals of certain hormonal preparations for fattening purposes. The second Directive required the member States to ensure that official on-the-spot random controls were made for the presence of the prohibited substances and to conduct, through the appropriate authority, an investigation at the farm of origin to determine the reason for the presence of the substances. The Minister, in purported exercise of the powers conferred on him by s. 3 of the 1972 Act, made regulations providing that the possession of the proscribed substances was to be an offence. They also enabled a judge of the District Court or Peace Commissioner to issue a search warrant where there was reasonable ground for suspecting that a person was in possession of one of the prohibited substances. The Regulations further provided that the time limit under the Petty Sessions (Ireland) Act 1851, under which proceedings for summary offences had to be instituted within six months, was not to apply and that the proceedings could be commenced at any time within two years after the date of the offence.
78. The applicant was a farmer who was prosecuted under the regulations, following a search of his premises on foot of a search warrant granted by a District Court judge. He instituted proceedings seeking, inter alia , a declaration that the provisions of s. 3 were invalid having regard to the provisions of the Constitution, together with a declaration that the regulations were, in consequence, ultra vires . It was held in the High Court that so much of s. 3(2) of the 1972 Act as entitled a Minister by regulation to repeal or amend a previous law was unconstitutional and that, accordingly, the regulations were of no effect.
79. The Minister and the Attorney General then appealed to this court. The court considered first the constitutionality of s. 3 of the 1972 Act and allowed the appeal of the Minister and the Attorney General, the judgment of the court being delivered by Finlay C.J. It then went on to consider an alternative argument advanced on behalf of the applicant that, assuming s. 3 to be constitutionally valid, the regulations were nonetheless ultra vires .
80. Giving the judgment of the court, Finlay C.J. said that the obligation of membership would necessitate the facilitating of laws enacted, acts done or measures adopted in some instances at least – and possibly in a great majority of instances – by the making of ministerial regulation rather than legislation of the Oireachtas. In the result the power to make regulations conferred by s. 3(2) was immune from constitutional challenge.
81. There follows a passage in the judgment which is of critical importance in the context of the present case:
“Insofar as it may be possible to point to hypothetical instances of certain types of laws, measures or acts of the Community or Union which in their implementation or application within the national law might not, as to the method of implementation or application, be necessarily carried out by ministerial regulation, but rather should have been carried out by enactment of law by the Oireachtas, the court is satisfied, without deciding that such instances do occur, that the principles laid down by this court in the decision of East Donegal Co-operative Livestock Marts Limited v. Attorney General (1970) IR 317, must be applied to the construction of the impugned subsection in the manner in which it was applied by the decision of this court in Harvey v. the Minister for Social Welfare (1992) IR 232 to the construction of the section of the statute impugned in that case, namely, s. 75 of the Social Welfare Act, 1952. That principle is that it must be implied that the making of regulations by the Minister, as is permitted by the section, is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to the section, contravene any provisions of the Constitution.
“If therefore in such an instance challenge were to be made to the validity of the ministerial regulation, having regard to the absence of necessity for it to be carried out by regulations instead of legislation and having regard to the nature of the content of such regulation, it would have to be a challenge made on the basis that the regulation was invalid as ultra vires being an unconstitutional exercise by the Minister of the power constitutionally conferred upon him by the section.”
82. As that passage indicates, there are two broad categories of cases in which a regulation made in purported exercise of the powers conferred by s. 3 might be found to be ultra vires the powers conferred on Ministers by s. 3. The first category would be cases in which the making of the regulation was found not to be “necessitated” by the obligations of membership referred to in Article 29.4.5º and to have violated some constitutional right of the plaintiff. The challenge in such a case would be no different from the challenge mounted to an Act of the Oireachtas allegedly necessitated by the obligations of membership which prima facie violated a constitutional right of the plaintiff. The second category of cases in which such a challenge could be successfully mounted to a Regulation is where the implementation of a Directive or defined parts of an EC or EU Regulation by ministerial regulation rather than an Act of the Oireachtas would be in conflict with the exclusive legislative role of the Oireachtas under Article 15.1 and would not be saved by the provisions of Article 29.4.5º. That would arise in a case where the ministerial regulation went further than simply implementing details of principles or policies to be found in the Directive or Regulation in question and determined such principles or policies itself and the making of the Regulation in that form, rather than in the form of an Act of the Oireachtas, could not be regarded as necessitated by the obligations of membership. That this is what was intended to be conveyed by that passage in the judgment of the court is, I think, made clear when one comes to consider the judgments of the court on the vires issue in that case and, in particular, the judgment of Denham J.
83. Blayney J. (with whom Finlay C.J. and O’Flaherty and Egan JJ. agreed), pointed out in the first instance that the requirement in the Directive for on-the-spot random controls could not be effected unless power was given to enable a compulsory search to be made of farms where animals were kept. It followed that so much of the regulation as authorised the issuing of such warrants by the District Court was necessitated by the provisions of the Directive.
84. As to the extended time limit for the institution of criminal proceedings and the amendment purportedly affected for that purpose by the regulations of the time limit under the Petty Sessions Act, 1851, Blayney J. said that it was accepted that the creation of offences by the regulations was required for the implementation of the relevant Directives. He also pointed out that there was uncontested evidence that the six months’ limitation period for the institution of proceedings under the Petty Sessions (Ireland) Act, 1851 would in many instances be too short and he said that it followed that the Minister had power to provide for a longer period and so had power to extend the six months to two years.
85. Blayney J. went on to reject a submission by Counsel for the applicant in that case that, because Article 189 of the Treaty of Rome left to the State the choice of the form and methods of implementing a directive, what was done by way of implementation was not necessitated by the State’s obligation of membership. In a passage of some significance in the context of the present case, he added:-
“The article obliges the State to implement the directive and equally obliges the State, in exercise of the discretion given to it, to choose an appropriate method of implementation. If the State were free not to implement the directive, then clearly, if it were to do so, it would be a voluntary act not necessitated by the obligations of membership and would not be protected by Article 19.4.5 º of the Constitution. But the State is not free. It is obliged to implement the directive and so is obliged to choose a method of implementation and, provided the method it chooses is appropriate for the purpose of satisfying the obligation of the State and the measures it incorporates do not go beyond what is required to implement the directive, it is correctly characterised as being necessitated by the directive.”
86. In her judgment, Denham J, with whom Finlay C.J., O’Flaherty J. and Egan J. also agreed, said that the fact that the creation of a right of search and the amendment of the Petty Sessions (Ireland) Act, 1851 were “necessitated” under the Directive, was not the end of the matter. Article 189 left to the national authorities the choice of form and method and, in choosing the form or method, the Minister must have due regard, not merely to Article 29.4.3º of the Constitution, but also to Article 15.2. The learned judge went on:-
“If the Directive left to the national authority matters of principle or policy to be determined, then the ‘choice’ of the Minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined the national authority, where the situation is that the principles and policies were determined in the Directive, then legislation by a delegated form, by regulation, is a valid choice …”
87. She went on to point out that the appropriate test was as set out by O’Higgins C.J. in Cityview Press . She added:-
“Applying the test to this situation the test is whether the ministerial regulations under s. 3 of the Act of 1972 are more than the mere giving effect to principles and policies of the said Act and the Directives, which are part of domestic law as to the result to be achieved.”
88. In a passage which is again of significance in the context of the present case Denham J. said:-
“In the Directives herein the policies and principles have been determined. Thus there is no role of determining policies or principles for the Oireachtas. While the Directive must be implemented there is no policy or principle which can be altered by the Oireachtas, it was already binding as to the result to be achieved.
“That being the case the role of the Oireachtas in such a situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as to what has already been decided, which debate would act as a source of information. Such a sterile debate would take up Dáil and Seanad time and act only as a window on community directives for the members of the Oireachtas and the nation. That is not a role envisaged for the Oireachtas in the Constitution.”
89. It follows that, in the present case, the first enquiry must be as to whether the implementation of the EC Regulation by legislation, whether in primary or secondary form, was necessitated by the obligations of membership within the meaning of Article 29.4.5º of the Constitution. It is clear that it was.
90. Article 7.1 expressly required the making of detailed rules by the member States as to the transfer of quotas with a holding in the case of its sale, lease or transfer by inheritance to purchasers. To that extent at least, Ireland was under an obligation to adopt such detailed rules and it was not contended on behalf of the appellants that this could have been achieved by administrative decisions, rather than legislation, either primary or secondary in form, which was binding in law on all those affected whether as persons entitled to quotas, producers of milk or purchasers of milk or milk quotas.
91. The second enquiry in the present case is as to whether, given that the making of detailed rules in legislative form, to at least that extent, was necessitated by the obligations of membership, their being made in the form of S.I. 2000 other than by an Act was in conflict with the exclusive legislative role of the Oireachtas under Article 15.1 and was not necessitated by the obligations of membership.
92. As the submissions on behalf of the parties demonstrate, there are two routes by which a conclusion can be reached on this issue. One can initially decide whether the making of the regulation in the form of a statutory instrument rather than an Act of the Oireachtas was “necessitated” by the obligations of membership. If it was, then it is clearly unnecessary to consider whether it is in conflict with Article 15.2 or, for that matter the Articles guaranteeing the private property rights of the applicants. Alternatively, one can determine first whether it violates either Article 15.1 or the private property rights or both of them. If the latter course were adopted, and the conclusion were reached that no breach of the Constitution had been established, it would be unnecessary to consider whether enactment in the form of a regulation rather than by an Act was necessitated by the obligations of membership.
93. Ultimately, however, it is immaterial which of these alternative approaches is adopted, because it is almost beyond argument that the choice of a statutory instrument as a vehicle for the detailed rules rather than an Act was not in any sense necessitated by the obligations of community membership. There would appear to be no difference in principle between the obligation on a member State to implement a Directive and the corresponding obligation under a Regulation, such as the EC Regulation in the present case, to adopt detailed rules for the implementation of specified parts of the Regulation. In each case, while the member State is obliged to implement the Directive or the specified part of the Regulation, the choice of form and method for implementation is clearly a matter for the member State.
94. The law was stated as follows by the Court of Justice in Eridania .v. Minister of Agriculture and Forestry :
“The fact that a regulation is directly applicable does not prevent the provisions of that Regulation from empowering a community institution or a member State to take implementing measures. In the latter case the detailed rules for the exercise of that power are governed by the public law of the member State in question ; however, the direct applicability of the measure empowering the member States to take the national measures in question will mean that the national courts may ascertain whether such national measures are in accordance with the content of the community regulation.” (Emphasis added.)
95. I have already referred to the submission advanced on behalf of the appellants in this case that, in so far as the reasoning in Meagher suggested that the power to make Regulations under s. 3 of the 1972 Act could be availed of by a Minister where it was “convenient” or “desirable” so to do, it should not be followed. I am satisfied, however, that neither the judgment of the court nor the judgments of Blayney J. and Denham J. on the vires issue lend any support to the proposition that, in cases where it is convenient or desirable for the community measure to be implemented in the form of a Regulation rather than an Act, the making of the Regulation can for that reason alone be regarded as “necessitated” by the obligations of membership. Thus, while it appears from the judgment of the court that an argument was advanced on behalf of the respondents in that case that the necessity for “expedition” in the implementation of a Directive would justify its implementation in the form of Regulation rather than an Act, such a submission, as a general proposition, would, in my view, be unsustainable and derives no support from the judgments in Meagher. Doubtless, where no policy choices are left to the member State, expedition is one of the factors which may legitimately be taken into account in deciding to opt for the making of a Regulation rather than the enactment of primary legislation, but it would be a serious overstatement to say that it justifies the making of regulations rather than the enactment of an Act in the case of every Directive or EU Regulation and again that is clearly not consistent with what was held by this court in Meagher.
96. I have reached these conclusions without regard to the change of wording in the relevant bill from “consequent on” to “necessitated”.
97. It follows that, in the present case, it could not be said that the making of the rules in the form of S.I. 2000 rather than an Act was necessitated by the obligations of membership and the essential enquiry must be as to whether the Minister in making S.I. 2000 was in breach of Article 15.1 of the Constitution.
98. In determining that issue, it is accepted that the appropriate test is as set out by O’Higgins C.J. in Cityview Press where he stated:-
“In the view of this court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
99. However, in applying that test to a case in which the regulation is made in purported exercise of the powers of the Minister under s. 3 of the 1972 Act, it must be borne in mind that, while the parent statute is the 1972 Act, the relevant principles and policies cannot be derived from that Act, having regard to the very general terms in which it is couched. In each case, it is necessary to look to the Directive or Regulation and, it may be, the treaties in order to reach a conclusion as to whether the statutory instrument does no more than fill in the details of principles and policies contained in the EC or EU legislation.
100. Thus, there are no doubt many cases, of which Meagher was one, where no choice has to be made by the member State as to the appropriate policy to be implemented: the policy in that case was unmistakably the outlawing of the hormonal substances in question and the giving of the necessary powers of search and prosecution to the competent authorities in the member States. Nor had the State any discretion as to whether any particular part of the impugned Regulation was to be omitted. In the passage I have cited, Blayney J. emphasises that the implementation of the Directive in that case was in no sense a voluntary act by the member State.
101. In the present case, the EC Regulations, as already noted required the member States to adopt detailed rules as to the transfer of quotas with land and it also required the authorisation of temporary transfers of quotas which producers who were entitled thereto did not intend to use. However, in three areas, it was left to the member States to decide whether they elected to pursue specified courses of action. First, they could effectively derogate from the provisions of Article 7.1 by providing that quotas were not to be automatically transferred with a holding. They could only do so, however, in order to ensure that quotas were solely attributed to active milk producers. The Minister decided to make use of this option by providing in S.I. 2000 that, subject to certain exceptions, quotas were not to be automatically transferred with the land. Since one of the exceptions was in favour of active milk producers, there can be no doubt that the Minister, in making the Regulation in that form, could not be accused of having effected an impermissible derogation from the general provisions of Article 7.1. S.I. 2000 also allowed for exceptions in the case of sales or transfers to specified members of the family of the person entitled to the quota.
102. The member States were also entitled under Article 6 to determine to what extent transfer operations might be renewed. This was availed of by the Minister so as to restrict persons entitled to quotas who had leased their quotas for three successive years from making more than one further lease of the land and quota. Finally, Article 8 enabled the member States to take one or more of five courses of action with a view to completing restructuring of milk production or environmental improvement. One of these was availed of by the Minister to introduce the milk quota restructuring scheme.
103. It seems clear that, had the Minister taken the view that, in the Irish context, the number of persons leasing quotas was so insignificant that regulations designed to eliminate the practice were unnecessary and would only create hardship with little or no corresponding benefit to the operation of the COM in Ireland, he would have been making a valid choice in terms of the EC Regulation and, indeed, of the general policy of the CAP and the COM. If that were not the case, and the elimination of such practices was to be of universal application throughout the Community, no such option would have been afforded to the member States. The same considerations apply to the options as to restricting temporary leases and introducing a milk quota restructuring scheme. It is, of course, the case that, as the evidence of Mr. Evans demonstrates, the election by the Minister to make the choices that he did resulted from the fact that, whatever be the position in other member States, in Ireland the prevalence of the leasing practice was resulting in a less efficient dairying industry with higher production costs.
104. It is undoubtedly the case that the milk quota/super levy scheme is intended to be tightly regulated by the EC institutions and that the manner in which it operates in all the member States is regularly monitored by the Commission. However, that does not alter the fact that, in specific areas, the EC has decided that the manner in which it is to be implemented in the member States is to be left to the member States to determine.
105. As I have already indicated, a Directive, or in this case a Regulation, can be equated to the parent statute in which, in the case of domestic legislation, one would expect to find principles and policies laid down which were then to be implemented in detail by a form of delegated legislation. There is, however, manifestly a significant difference between a Directive or Regulation, which is applicable throughout the fifteen member States of the European Union, and an Act of the Oireachtas the effect of which is confined to a relatively small and homogeneous area within the European Union. In the case of a Regulation which is intended to apply in a number of different regions throughout the European Union in which the conditions of the dairying industry may vary widely, it is not surprising to find that the Regulation, in specified areas, leaves choices as to the nature of the implementing measures to be introduced by the member State. The issue in this case is as to whether the choice of the appropriate measures can be regarded as involving no determination of policy or principle, as that expression has been used in previous decisions of this court.
106. I have experienced some difficulty in arriving at a conclusion as to how this issue is to be resolved. Applying the reasoning which found favour in Meagher, it seems self-evident that there are choices to be made by Ireland, as a member State, in determining how it will implement the Regulation in those areas where it has been afforded a discretion. Once it is acknowledged that rules of this nature may be implemented in a manner requiring parliamentary scrutiny and that implementation by ministerial regulation is not necessitated by our membership of the European Union, it gives rise to natural misgivings to find that there is no role for the democratically elected institutions of the State, other than the limited one under s. 4 of the 1972 Act. I am, however, persuaded by the analysis carried out by Fennelly J. in the judgment that he will deliver that, in the case of the operation of the super levy scheme, the choices as to policy available to the member States have in truth been reduced almost to vanishing point. As he points out, the scheme which has given rise to these proceedings was essentially the creation of the European Union and, if one seeks to determine the principles and policies which underlie it, one must look, not to any parent legislation in Ireland, but to the treaties of the European Union and the Regulations and Directives which have established the complex machinery of the CAP and the common market in milk. It follows that the making of the Regulation was not an impermissible exercise of the legislative role of the Oireachtas and that the appellants’ contentions to the contrary are not well founded.
107. There remains the question as to whether the Regulations also constituted an unjust attack on the alleged property rights of the applicants in contravention of Articles 40.3.1º and 2 and 43 of the Constitution. I have no doubt that the Regulations do not violate any property rights within the meaning of the relevant articles of the Constitution. Even if one were to adopt the most expansive view of what is meant by a right of property within the meaning of those articles and extend it beyond the well accepted species of property under our law – real and personal property, including, under the latter category, choses in action – it could still in no sense be equated to a right of property.
108. It seems to me unnecessary in this context to consider whether rights in the nature of licences conferred by the law in relation to particular property, such as planning permissions or licences for the sale of alcohol, constitute property rights. The quotas to which the applicants were entitled in this case are not licences or permits which may enhance the value of property which they own or occupy. The applicants may produce as much milk as they please and require no licence from any authority so to do.
109. The attempts by the EEC to redress the consequences of the policy of guaranteeing the price of milk in the Community led to the super levy scheme, a regulatory regime intended to redress the imbalance in the market brought about by the guaranteed price policy. That in turn resulted in milk producers, including the applicants, being entitled to sell their milk up to a specified level without incurring the super levy which would make production uneconomic. Manifestly, such a regulation of the market in milk products could always be altered to the economic disadvantage of those, who, like the applicants, had previously benefited from it, but it is a singularly inapt use of language to describe that result as a violation of property rights.
110. The fact that the right in question may effectively be disposed for cash does not mean that it is a property right. A person who is standing in a queue to buy a particular commodity and gives up his place to someone else for cash would not appear to be doing anything unlawful, but he is most assuredly not disposing of a property right, merely his right to occupy that particular place on public or private land at that particular time. Nor do I find that any assistance is to be derived from comparisons with patents, trademarks or copyright rights, which under our legal system are nowadays generically described as “intellectual property rights” . Systems of law in developed societies invariably protect those who produce such intangible assets in the expectation of reward by creating a discrete structure of legal protection, embodied in our case in the relevant statutes. They are not remotely comparable in my view to the opportunities for profit presented by a regulatory scheme designed for the benefit of subsidised producers.
111. It is accordingly unnecessary, in this context, to consider whether, in any event, any supposed infringement of property rights under Irish law was necessitated by the obligations flowing from membership of the European Union.
112. The position under community law must also be considered, since it is clear that whether the rights of property safeguarded by the community legal order have been infringed in any particular case is a question to be determined in accordance with that law.
113. The law was made abundantly clear by the Court of Justice in R. .v. Minister of Agriculture, ex parte Bostock where it was said that:-
“The right to property safeguarded by the community legal order does not include the right to dispose, for profit, of an advantage, such as the reference quantities allocated in the context of the common organisation of a market, which does not derive from the assets or occupational activity of the person concerned.”
114. That statement of the law seems to me to accord in every important respect with the position under our Constitution. The comments of the Advocate General in Damand .v. Haubtzollampt Trier suggesting a different approach have not been endorsed by the Court of Justice.
115. Although it was urged on behalf of the applicants that Bostock did not wholly shut out the possibility of a claim based on what was claimed to be a compulsory acquisition of the right in question, it is clear that, if the entitlement to a milk quota is not a right of property, it is immaterial whether what was involved in this case constituted a compulsory acquisition of the right in question. Moreover, in circumstances where, as here, the applicants were fully entitled to continue availing of their milk quotas if they resumed milk production, however inconvenient or difficult that might have been in their individual circumstances, it could hardly be plausibly contended that any property right they might have had had been compulsorily acquired. Nor is the right in any event necessarily acquired by the State or any of its organs. While the Minister is entitled to fix a price for the transfer of the quota to another person which is below what it would fetch in the market, the applicants are hardly in a strong position to complain of such an interference with the forces of the market.
116. I would dismiss the appeal and affirm the order of the High Court.
THE SUPREME COURT
No 340/2000
Keane C.J.
Denham J.
Murphy J.
Murray J.
Fennelly J.
BETWEEN/
NICHOLAS PHILIP (otherwise MARTIN) MAHER,
MALACHY BRETT and RITA RYAN
APPLICANTS/APPELLANTS
and
THE MINISTER FOR AGRICULTURE, FOOD AND
RURAL DEVELOPMENT, IRELAND AND
THE ATTORNEY GENERAL
RESPONDENTS
Judgment of Mrs. Justice Denham delivered on 30th day of March, 2001.
1. Appeal
117. This case arises out of an application by Nicholas Philip (otherwise Martin) Maher, Malachy Brett and Rita Ryan, the applicants and appellants, hereinafter referred to as the applicants, against the Minister for Agriculture, Food and Rural Development, Ireland and the Attorney General, respondents, hereinafter referred to as the respondents. The application for relief was refused by the High Court (Carroll J.) on 16th December, 2000. Against that order and the judgment delivered on 15th December, 2000 the applicants have appealed to this Court. This application arises by way of judicial review. In essence it is the applicants’ case that the Minister for Agriculture, Food and Rural Development, hereinafter referred to as the Minister, did not have legal authority upon which to make the European Communities (Milk Quota) Regulations 2000 (S.I. No. 94 of 2000), hereinafter referred to as Regulations 2000.
2. Judicial Review
118. On 20th April, 2000 the High Court (O’Caoimh J.) granted leave to the applicants to apply by way of application for judicial review for the following reliefs:
1. A declaration that Regulations 2000 are ultra vires the Minister and have no legal force or effect.
2. A declaration that Regulations 2000 failed to respect the principle of separation of powers and the provisions of Articles 5, 6 and 15.2.1. of the Constitution of Ireland.
3. A declaration that article 8a of Council Regulation (E.E.C.) No. 3950/92 of the 28th December, 1992 as inserted by article 1(10) of Council Regulation (E.E.C.) No. 1256/1999 of the 17th May, 1999, does not entitle the Minister to introduce by secondary legislation, rather than primary legislation, the abolition of milk quota holders’ right to sell or lease a milk quota with land on the open market.
4. A declaration that the purported abolition by the Minister of a milk quota holder’s right to sell or lease a milk quota with land on the open market constitutes an unjust attack on the property rights of the applicants guaranteed by Article 40.3.1. and 2 and Article 43 of the Constitution of Ireland.
5. A declaration that the purported abolition by the Minister of a milk quota holder’s right to sell or lease a milk quota with land on the open market is a violation of the applicants’ rights under the European Convention on Human Rights, including article 6(1) and article 1 of the First Protocol thereof, which said rights form part of the general principles of law protected by the law of the European Union.
6. If necessary, an injunction, including such interim and interlocutory reliefs as may be appropriate, restraining the Minister from enforcing or attempting to enforce the provisions of Regulations 2000 in regard to any sale or lease of land and milk quota to which the applicants may become a party.
119. The respondents opposed the applicants’ application for judicial review, the main grounds of opposition being:
a) Regulations 2000 are intra vires the powers of the Minister under s. 3 of the European Communities Act, 1972.
b) The exclusive purpose of Regulations 2000 is to enable the regulations relating to the common organisation of the market in milk and milk products and in particular Council Regulation (E.E.C.) No. 3950/92 of the 28th December, 1992 as amended and Commission Regulation (E.E.C.) No. 536/93 of the 9th March, 1993 as amended to have full effect in Ireland and to provide for such incidental supplementary and consequential matters as appear to the Minister to be necessary for the purpose of Regulations 2000.
c) Regulation 3950/92 requires Member States to make detailed rules relating to the transfer of milk quotas pursuant to the transfer of ownership in the relevant lands or to or from the national reserve. Accordingly, detailed transfer rules are necessary for the purpose of giving effect to Regulation 3950/92. In the premises, the Minister is authorised by s. 3 of the European Communities Act, 1972 to make such detailed transfer rules by statutory instrument.
d) The respondents acknowledge that Regulation 3950/92 and in particular articles 7(1), 8 and 8a(b) confers discretion on Member States as to the rules relating to transfer of quotas but contend that such discretion is limited. The discretionary choices may only be exercised in relation to limited subject matter and only for the express purposes specified in Regulation 3950/92 and in accordance with the policy, principles and terms of the said regulation.
e) The discretions conferred on Member States by Regulation 3950/92 in relation to the transfer of quota with or without land, do not prevent the Minister giving full effect to Regulation 3950/92 in Ireland by statutory instrument made pursuant to s. 3 of the European Communities Act, 1972.
f) The respondents deny that the effect of Article 7(1) of Regulation 3950/92 as replaced by Article 1.(8) of Council Regulation (E.C.) No. 1256/1999 of the 17th May, 1999 and Article 8a(b) of Regulation 3950/92 (as inserted by Article 1.(10) of Regulation 1256/1999) is to return or vest legislative competence in the Member States in respect of key aspects of the milk quota/ super-levy regime including rules governing the transfer of milk quotas.
g) Without prejudice to the foregoing, the respondents contend that any provisions of Regulations 2000 which are not necessary for the purpose of
giving full effect to Regulation 3950/92 in Ireland do not contravene Article 15.2.1. of the Constitution.
. . .
h) The respondents deny that the principles and policies according to which the Minister is obliged to exercise the discretionary powers conferred on Ireland by Regulation 3950/92 in relation to the transfer of quota with or without land, are to be found exclusively in Article 7(1) and Article 8a(b). The said powers must be construed in accordance with Council Regulation (E.C.) No. 1255/1999 of 17th May, 1999, Regulation 3950/92, the amending Regulations and in particular Regulation 1256/1999 and the recitals to such Regulations.
i) Regulations 2000 contain only those provisions which the Minister considered necessary or appropriate, having regard to the current situation in the market in milk and milk products in Ireland for the purpose of giving full effect to the E.U. regulations relating to the common organisation of the market in milk and milk products and in particular Regulation 3950/92 as amended.
j) It is denied that the Minister in making Regulations 2000 contravened Articles 5 or 6 of the Constitution.
. . .
k) In the making of Regulations 2000 the Minister took into account the position and, in many instances, competing interests of different persons affected or potentially affected by Regulations 2000. The transfer provisions in Regulations 2000 represent the Minister’s determination as to the measures which are necessary and appropriate having regard to the differing interests involved in accordance with the limited discretion conferred on him by the E.U. regulations.
l) The respondents deny that the framework governing the transfer of milk quotas provided for in Regulations 2000 and in Regulation 3950/92 (as amended by Regulation 1256/1999) constituted an unjust attack on the applicants’ property rights under Article 40.3.1. and 2 and Article 43 of the Constitution of Ireland.
m) The respondents deny that a milk quota is a property right for the purpose of the provisions of the Constitution of Ireland. On the contrary, a milk quota is an instrument used as a market management mechanism as part of the common organisation of the market in the milk sector initially introduced by Council Regulation (E.E.C.) No. 856/84 of 31st March, 1984. The respondents contend that the right or entitlement to dispose for a profit of an advantage such as a milk quota allocated in the context of a common organisation of a market which does not derive from the assets or occupational activity of the person concerned does not constitute a property right under Article 40.3 and Article 43 of the Constitution of Ireland, under the law of the European Union or for the purposes of the European Convention on Human Rights and Fundamental Freedoms (the “European Convention”).
n) Further, or in the alternative if a milk quota is a property right as alleged (which is denied), the respondents deny that the measures governing the transfer of milk quotas contained in Regulations 2000 constitute an unjust attack on the applicants’ property rights in the manner alleged. On the contrary, the respondents contend that the said rights may be regulated in accordance with the principles of social adjustment and insofar as the applicants’ property rights have been restricted or delimited as alleged (which is denied), such restrictions and/or delimitation are justified by the exigencies of the common good in accordance with Article 43.2 of the Constitution. Furthermore the respondents contend that the alleged restrictions correspond to the objectives of the regime provided for by Regulation 3950/92 (as amended by Regulation 1256/1999).
3. The High Court
120. The application was heard in the High Court, judgment being delivered by Carroll J. on 15th December, 2000 as follows:-
“In my view the discretions which are left in the member states are all within the principles and policies determined by the Council of Ministers in the organisation of the milk market in the European Union. The regulations in S.I. 2000 do not go beyond what is required. There are no principles or policies to be determined as they are embodied in the various development of the scheme since 1984.
Article 6.1 is mandatory (temporary transfer of milk quotas for twelve months). Article 6.2 gives a discretion not to implement it. In my view the failure to exercise the discretion is not the exercise of a discretion. It is simply a case of ignoring the discretion and proceeding with the mandatory implementation of Article 6.1.
The choices given in the implementation of mandatory leasing in the second paragraph of Article 6.1 do not constitute any departure from the overall policies of the milk levy scheme. It is provided that regard can be had to the category of producer, the transfer operations can be limited at the level of the producer within regions and the extent which transfers can be renewed may be determined.
In the case of Article 7.1 this did involve the exercise of a discretion under Article 8(a) not to implement it. This broke the link between land and milk quotas (subject to exceptions) and is contained in Regulation 5.1 of S.I. 2000. But the discretion had to be exercised, as stated in Article 8(a) “ acting in compliance with the general principles of community law ” and “ with the aim of ensuring that reference quantities are solely attributed to active milk producers”.
121. The Minister was entitled to make the decision that quotas should go the (sic) active milk producers which was in accordance with the stated policy under the milk quota council Regulations.
122. The actions which could be taken under Article 8 of the council regulations were to be taken “with a view to restructuring of milk production or to environmental improvements” and “taking account of the legitimate interests of the parties”.
123. While the regulations are complicated they do take account of the legitimate interest of parties and they are framed with a view to completing the restructuring of milk production.
124. In my view, S.I. 2000 even though it involved the making of choices within the framework of the principles and policies of the milk quota scheme, was necessitated by the obligations of membership of the E.U. Precisely because those choices were within the principles and policies of the milk quota scheme, it can equally well be viewed as permitted secondary legislation which is not contrary to Article 15.2.1. of the Constitution.
125. As to the claim that the right to a milk quota is a property right within the meaning of Article 40.3.2 and Article 43 of the Constitution, regard must be had to the decision of the European Court of Justice in R. v. Ministry of Agriculture
Ex parte Bostok (sic) (1994) E.C.R. 1955 where it was held at p. 1984:
“the right to property safeguarded by the community legal order does not include the right to dispose for profit of an advantage such as the reference quantities allocated in the context of the common organisation of a market which does not derive from the assets or occupational activity of the person concerned.”
126. The Applicants seek to establish that they have greater protection under the Constitution than under community law. In my view the nature of the milk quota which is created by European Law must bear the same meaning in domestic law as in the legal order of the European Union. The purpose of the creation of the milk quota system was to regulate and restructure milk production within the union. It was not for the creation of a new form of landlordism which would allow the owner of a quota to live off the rent obtained there from without producing a single gallon of milk. In my view this ground also fails.”
4. Grounds of Appeal
127. Against the order and judgment of the High Court the applicants have appealed on a number of grounds. The most important of these being the grounds that the learned trial judge erred:
1. In holding that the discretions left to the Member States under Council Regulation No. 3950/92 as amended by Council Regulation No. 1256/1999 are all within the principles and policies determined by the Council of Ministers in the organisation of the milk market in the European Union.
2. In holding that Regulations 2000 do not go beyond what is required to implement Council Regulation No. 3950/92, as amended by Council Regulation No. 1256/1999.
3. In holding that there were no principles or policies to be determined in Regulations 2000 as they are embodied in the various developments of the milk quota scheme since 1984.
4. In holding that the failure to exercise the discretion given in article 6(2) of Council Regulation No. 3950/92 is not the exercise of a discretion, but is simply the case of ignoring the discretion and proceeding with the mandatory implementation of Article 6(1) of the said regulations.
5. In holding that the choices given in the implementation of temporary leasing in the second paragraph of article 6(1) of Council Regulation No. 3950/92 do not constitute any departure from the overall policies of the milk levy scheme.
6. In holding that the Minister was entitled to make the decision that quotas should go to active milk producers which was in accordance with the stated policy under the milk quota Council regulations.
7. In holding that Regulations 2000 do take account of the legitimate interests of parties.
8. In holding that Regulations 2000 were necessitated by the obligations of membership of the European Union even though they involve the making of choices within the framework of the principles and policies of the milk quota scheme.
9. In holding that the choices were within the principles and policies of the milk quota scheme.
10. In holding that Regulations 2000 can be viewed as permitted secondary legislation which is not contrary to Article 15.2.1 of the Constitution.
11. In failing to hold that the effect of article 7(1) and article 8a(b) of Council Regulation No. 3950/92 is to return and vest legislative competence in the Member States in respect of key aspects of the milk quota regime, including the rules governing the transfer of milk quotas.
12. In failing to hold that neither Article 7(1) nor Article 8a(b) of the said Council regulation contained sufficient principles and policies to justify the making of Regulations 2000.
13. In failing to hold that the exercise of the discretions contained in Council Regulation No. 3950/92, as amended by Council Regulation No. 1256/1999, is not necessitated by the obligations of membership of the European Union or of the Communities.
14. In failing to hold that the making of Regulations 2000 contravenes Articles 5, 6 and 15.2.1. of the Constitution.
15. In failing to hold that Regulations 2000 constitute a purported exercise of legislative power by the Minister which is not permitted under the Constitution.
16. In failing to hold that the provisions of Regulations 2000 are ultra vires the first-named respondent and are of no legal force or effect.
17. In holding that the nature of a milk quota must bear the same meaning under the Constitution as in the legal order of the European Union and that a right to a milk quota is not a property right within the meaning of Article 40.3.2 and Article 43 of the Constitution.
18. In failing to hold that Regulations 2000 constitute an unjust attack on the property rights of the applicants guaranteed by Article 40.3 and Article 43 of the Constitution.
5. Submissions of the Applicants
128. Comprehensive written submissions were filed on behalf of the applicants which were supplemented by oral argument from counsel. Mr. Gerard Hogan, S.C., counsel for the applicants, highlighted the relevant regulations, focused on the ‘necessitated’ point, considered the matter of permissible delegated legislation, touched on the issue of parliamentary debates and made submissions on the property rights dimension.
129. Counsel referred to Article 29.7 of the Constitution of Ireland and submitted that the word “necessitated” therein is a straightforward word meaning legally obliged, a clear legal provision. Counsel argued that Article 29.4.6 of the Constitution has to be read in harmony with Article 29.4.7. He submitted that the object was to protect a national legislature as far as possible. Counsel argued that 29.4.7 is the general rule, that it must be necessitated, and 29.4.6 is an exception.
130. Counsel referred to what he submitted were three key authorities. He referred to Lawlor v. Minister for Agriculture , [1990] 1 I.R. 356 , which he argued was either wrongly decided or not applicable to the present case; Greene v. Minister for Agriculture [1990] 2 IR 17, which he distinguished; and Meagher v. Minister for Agriculture [1994] 1 I.R. 329 . Insofar as Meagher is an authority for an interpretation of “necessitated” which also extends the constitutional immunity to domestic measures which are simply “convenient” or “desirable” then he submitted that the appellants did not resile from respectfully submitting that such reasoning ought not now to be followed. He argued that such a conclusion is at odds with the plain language of Article 29.4.7. He submitted that the word “necessitated” is not ambiguous and plainly implies a legal obligation only. Even if “necessitated” were not so unambiguous, the Meagher interpretation, he submitted, is at odds with the underlying purpose of Article 29.4.7 which is to allow for the transfer of legislative, executive and judicial sovereignty to the European Union only where this is legally obligated. But that where it is not so obligated, Article 29.4.7 makes it equally plain that the Constitution reigns supreme. He argued further that the Constitution must be read harmoniously and in light of all the interlocking provisions especially the interaction of Article 29.4.6 and Article 29.4.7. He submitted that it is generally accepted that Article 29.4.6 was formulated to deal with the increasing strain which the flexibility provisions of the Treaty of Amsterdam and the increasing variable geometry of European law, of which the 1999 Council Regulations are just a specialised example, were placing on the necessitated obligations wording contained in Article 29.4.7. He submitted that Article 29.4.6 is designated to allow the State to exercise certain specific options and discretions arising under the Treaty of the European Union and the treaties establishing the European Communities provided that the prior approval of both Houses of the Oireachtas is forthcoming. He stressed that the fact that Article 29.4.6 permits the State to exercise certain options and discretions subject to the key parliamentary safeguards reinforces the submission that Article 29.4.7 ought not to be given an interpretation which would permit the further reduction of legislative sovereignty to the European Union in the absence of an expressed Union or Community legal obligation to this effect. Counsel submitted that in Meagher the Supreme Court upheld the constitutionality of s.3 of the European Communities Act, 1972 as necessitated by the obligations of Community membership on the ground that it was part of the necessary machinery which became a duty of the State upon its joining the Community and therefore necessitated by that membership; that the Court had envisaged circumstances in which the exercise of that power would be unconstitutional; and that the present case involved a challenge to the Minister’s powers to make regulations under s.3 of the Act of 1972. Counsel submitted that in this case the European Union legislation allowed a Member State significant choices in respect of fundamental principles and policies under the 1999 Council Regulations, and, accordingly, he submitted that the implementation of these provisions by means of a statutory instrument was not necessitated within the meaning of Article 29.4.7.
131. Counsel submitted that the 1999 Council Regulations confer such extensive concessions on Member States, together with a wide panoply of choices, that the exercise of the said discretions could not be said to be necessitated by the obligations of Community membership.
132. Thus counsel submitted that insofar as Meagher is an authority for the interpretation of the word ‘necessitated’ he submitted it was incorrect. However, he referred to the application of the double construction rule and the presumption that the Minister will not make regulations where the appropriate approach is legislation. Counsel argued that such is the case here. That the Minister in making this scheme by statutory instrument was exercising an unconstitutional power and hence in that way his argument comes within the Meagher decision as made.
133. Counsel submitted that there were no adequate principles and policies in European law to enable a statutory instrument to be made by the Minister. He submitted that it would be hard to describe Regulations 2000 by virtue of their size, range of decisions, range of choices, and range of policy aspects, as anything other than legislation. He submitted that it is clear from Regulations 2000, as far as land transfers and the operation of the restructuring scheme are concerned, the Minister had elected to make substantial and important policy choices. He gave the following examples:
a) The extent to which quotas would transfer with land upon a sale, lease or inheritance when deciding the category of cases in which the link between quota and land provided for in article 7(1) of the 1992 Regulations should not apply.
b) Whether or not to apply to provisions on the transfer of quotas in article 7(1) of the 1992 Council Regulations.
c) Whether or not to provide for a system under which all or part of the transferred quota reverts to the national reserve on the expiration of rural leases or other transactions involving comparable legal effects.
d) The extent to which inter family transfers of land and milk quota are exempt from the operation of the rule that (save in excepted cases) the quota is not reallocated with the sale of land.
e) The definition of an active milk producer and the extent to which such a person may transfer land with quota. He submitted that it is impossible to underestimate the practical significance of the first choice, the effective breaking of the link between land and quota save for family transactions.
134. Counsel also submitted that the Minister exercised substantial policy choices conferred by article 6(1) of the 1992 Regulations (as inserted by the 1999 Regulations) in that he had determined via article 27 of Regulations 2000: a) the category of persons entitled to lease quota on a temporary basis, b) the number of years for which they will be entitled to lease quota and c) the circumstances in which the Minister can derogate from the rules which he has prescribed. Counsel submitted that fundamental principles of Irish constitutional law require that policy decisions and choices must be made by the Oireachtas and not delegated to the Minister and his civil servants. He said that it was highly implausible that the drafters of Article 29.4.7 ever envisaged that the system of parliamentary democracy enshrined by Articles 5,6 and 15 of the Constitution would be undermined and that decisions of fundamental importance could be taken by the executive rather than the legislative branch of government.
135. At the core of counsel’s argument was the analysis that there is a renvoi back to national law. That if the State elects to take this action it must do so by legislation, as there is a renvoi back to the national state. Counsel submitted that the respondents had argued that in this situation the principles and policies are determined, that it is a Community policy. However, counsel argued that, it is clear from the language of article 8.a that this is not so. He referred to the use of the word “may”, and said that if the State wants to take the measures it can, but it is not an implementation of Community policy. Counsel argued that the Minister is legislating in this case, that the Minister is making far reaching radical changes, and that such changes may only be made by the Oireachtas. That here the Minister is making major policy decisions which may only be made by the Oireachtas.
136. Counsel for the applicants stressed that in this case what was for consideration was that European Union legislation had in reality transferred effective law making power back to the State. Counsel referred to the Meagher judgment and relied on the judgment of the Chief Justice where he pointed out that there could be cases where the appropriate mode to give effect to European legislation would not be a statutory instrument, on the East Donegal principle. He submitted that this is such a case.
137. Counsel submitted two representative examples of how there were no principles or policies and why the Minister is legislating. Firstly, he referred to articles 5 and 6 of the statutory instrument, the family transaction. He submitted that this is pure policy. On an analysis of the agricultural community he submitted that there is nothing similar in European law that speaks of that; he submitted that it was a policy judgment which in Ireland was reserved to the Oireachtas. Secondly, he referred to article 6 of the Council regulations, a mandatory system of temporary leasing. Here there is determination of the category of producer. A determination of how temporary leasing should run and for how long. He submitted that there was nothing in article 6 governing this.
138. Counsel made submissions on the extent to which a milk quota is a property right. Counsel submitted that a valuable permission is being effectively extinguished and that in a restructuring scheme there is a form of compulsory purchase where the Minister determines the price. He stated that the Minister is fixing the price substantially below the market price as of 1st April, 2000.
139. Counsel accepted that the European Court of Justice has generally taken a view that milk quotas do not constitute a property right so far as Community law is concerned. However, he submitted that the present case concerns a form of compulsory acquisition by the State of a quota at a price substantially less than the prevailing market value. In these circumstances a milk quota may qualify for protection as a property right which the Member States were obliged as a matter of Community law to protect and he referred to the comments of the Advocate General in Demand v. Hauptzollamt Trier (Case C-186/96) [1998] E.C.R. 1-8529, at p. 8541. Counsel argued that the decision in Bostock did not prevent such a right being regarded as a property right for the purposes of the Irish Constitution. He submitted that this was made clear by the opinion of Advocate General Cosmas in Duff v. Minister for Agriculture (Case C-63/93) [1996] E.C.R. 1-569. In Duff the European Court held that the plaintiff’s legitimate expectations at Community law level had not been infringed by the actions of the Minister, but the Advocate General observed at para. 60 that this did not prevent “such a requirement from being founded on principles of national law which, in an appropriate case, may ensure greater protection in this respect than that afforded by the general principles applicable in the Community legal order”.
140. Counsel pointed out that when the case returned to the Supreme Court both O’Flaherty J. and Barrington J. for the majority seized upon this passage to justify finding that the Minister had infringed the plaintiff’s rights as a matter of Irish public law. Counsel submitted that it would be unrealistic not to regard a milk quota as a valuable asset in its own right, as land itself. If, for example, a chose in action can be regarded as property ( Iarnród Éireann v. Ireland [1996] 3 I.R. 321) there seems little reason by which another valuable and tangible right such as a milk quota should not be so regarded. If a milk quota is such a right then he respectfully submitted that it follows inexorably that Regulations 2000 infringes that right. For example, no matter how excellent the public policy reasons, the Minister could not prescribe a scheme for the forfeiture of unused agricultural land at a price significantly below market value or which seriously inhibited the right to lease such an asset. Yet this is what has been proposed by Regulations 2000 and it is submitted that these provisions are manifestly in conflict with Articles 40.3.2 and 43 of the Constitution.
141. Counsel concluded that:-
a) Neither the making of Regulations 2000 nor their contents are necessitated by the obligations of Community membership within the meaning of Article 29.4.7.
b) Regulations 2000 are ultra vires the provisions of s. 3 of the Act of 1972 inasmuch as the Minister has made policy decisions of the utmost importance regarding the operation of the milk quota regime in Ireland. In doing so the Minister has legislated in contravention of the provisions of Article 15.2.1 of the Constitution.
c) A milk quota is a property right for the purposes of both Community law and Irish constitutional law and Regulations 2000 represent an unjust and unconstitutional attack on these property rights.
142. Counsel submitted that fundamentally this case is not about milk quotas, it is about the separation of powers between the executive and the legislature. It is an example of the democratic deficit. He submitted that the executive has usurped the role of the legislature. He submitted that the case requires the Court to protect the integrity of the democratic system and that key decisions of policy should not be made by the executive. Article 29.4.7 transfers sovereignty to the European Union to the extent legally required. If it is not required it is not necessitated.
6. Submissions on behalf of the Respondents
143. Ms. Mary Finlay, S.C., counsel for the respondents, submitted that it was fundamental to the Minister’s position that what is at issue is a European scheme which forms an integral part of the Common Organisation of the Market (C.O.M.) which is part of the Common Agricultural Policy (C.A.P.). She submitted that C.A.P. was created by treaty and that the C.O.M. in milk products is a European scheme created by regulation. Counsel submitted that the Court is required to look at what the Minister is authorised to do. The Minister was given choices as to details only. Counsel pointed out that the milk quota is exclusively within the Community province. There is no legislative function in Ireland.
144. Counsel submitted that insofar as the Supreme Court considers the method chosen by the State to provide detailed implementing rules it is governed by Irish law exclusively. This Court can only find what is the appropriate method by looking at the nature of the Community law that requires the details. Counsel submitted that the European Union regulations are part of the domestic law of Ireland and that they are similar to an enabling act of the Oireachtas. In this instance the regulations exist as part of Irish law and are analogous to an enabling act, that the principles and policies may be found in an enabling act or in regulations. Counsel relied on the principles and policy test. Counsel submitted that the question was whether as a matter of Irish public law the Minister had acted properly.
145. Counsel referred to the Meagher case and the reference therein to the fact that the East Donegal test applies. Counsel accepted that she had to satisfy the Court that the Minister was acting intra vires s.3 by making Regulations 2000 and that he could only do that if he was not invading the power of the Oireachtas under Article 15.2.1. of the Constitution.
146. Counsel submitted that the Minister was not breaching Article 15.2.1, the sole and exclusive power of making laws being vested in the Oireachtas, in this case. Counsel submitted that there was enabling legislation, being the relevant E.U. regulations and ss. 2 and 3 of the European Communities Act, 1972. Counsel submitted that the relevant provisions in considering the principles and policies are: 1) The Treaty provisions of Articles 32 to 38 inclusive, Article 10 (formerly Article 5), and the general obligation on the State to take measures to ensure fulfilment of obligations. 2) The Common Organisation of the Market, Council Regulation (E.C.) No. 1255/1999 of 17th May, 1999. 3) The milk quota regulations, especially Regulation (E.E.C.) No. 3950/92 of 28th December, 1992 and Council Regulation (E.C.) No. 1256/1999 of 17th May, 1999.
147. Ireland is obliged to have in place an effective detailed system for the application of the milk quota system in Ireland. The objective of the milk quota regulations is to put quotas into the hands of milk producers. That is an aim of the milk quota regulations. Therefore the Minister’s decision to take measures under Article 8a is part of his obligation to do so, it represents the implementation of the scheme.
148. Counsel referred to Mr. Hogan’s suggestion that the European Union regulations had returned legislative powers to the Member States, especially the 1999 Regulation. Counsel for the respondents said that no such legislative competence was returned. European law was the origin of the milk quota system. The competence rests exclusively with the European Union to make policy choices to achieve a single market. From the outset the European Union delegated detailed rules to the State. This has continued to date. The State has the function of making detailed rules. The European Union has delegated choices to the Member States. Counsel submitted that when the State is implementing European Union provisions the State is bound by obligations including fundamental rights and to seek to achieve the objectives of the scheme. In this case the Minister has power to make choices. The question for the Court is whether the choices, given to the Minister in the context of the European scheme, are general policy choices.
149. Counsel submitted that the purpose of the milk quota system is part of price stability in C.O.M. and to achieve a fair standard of living for dairy producers. The inter-relationship between the price of a gallon of milk and the quantity of the quota is important.
150. Counsel pointed out that there is a real prospect of the milk quota scheme ending in 2006. It is referred to in the Regulations. Counsel stated that none of plaintiffs are producers. All the plaintiffs have given up milk production. They are outside the parameters of the regulations. Counsel submitted that it is part of the objective of the regulations that persons actively producing milk are persons in whose hands the quota should rest.
151. Counsel did not make the case that the Minister is obliged to make these rules by statutory instrument. Counsel submitted that it was permissible for the Minister to do it by statutory instrument as the principles and policies are clearly set out in the European Union regulations. Counsel did not rely on the necessitated form. If it is not necessitated under Article 29.4.7 the Minister can only make regulations if it does not encroach on the Oireachtas. Counsel for the respondents argued that it did not because the principles and policies are in the regulations. Further, that under Article 10 of the Treaty there is an obligation on Ireland to effectively implement European Union schemes.
152. In relation to the submission that the milk quotas are property rights within the meaning of Article 40.3.2 and Article 43 of the Constitution and that Regulations 2000 constitute an unjust attack on same contrary to such constitutional provisions, counsel submitted that the argument was unstateable. It was submitted that the applicants’ right to a milk quota is not a property right within the meaning of the Constitution. A milk quota under Irish law must have a similar characteristic to that under Community law as it has been exclusively created by Community law. It is common case that the European Court of Justice has determined that the right to a milk quota is not a property right under Community law and, accordingly, it was contended that it is not a property right within the meaning of the Constitution. It was submitted that even if a milk quota is to be given a separate characteristic under Irish law, it is in accordance with Irish law a licence created by law and subject to an implied condition that the law may change the licence scheme or conditions attaching to such licence. The changes to such a scheme made by Regulations 2000 do not conflict with Article 40.3.2 or Article 43 of the Constitution. Further, it was submitted, Regulations 2000 being necessitated by the obligations of membership of the European Union, Articles 40.3.2 and 43 cannot be relied upon to invalidate any of the provisions thereof, by reason of Article 29.4.7.
7. Decision
153. The kernel of this case is the delegated legislation by the Minister. The question is whether this was a breach of Article 15.2.1 of the Constitution of Ireland. A decision on this matter determines the major issue.
7.i. Nature of the Milk Quota Scheme.
154. This case concerns Regulations 2000, being the European Communities ( Milk Quota) Regulations, 2000 (S.I. No. 94 of 2000). These regulations form part of a scheme relating to milk quotas throughout the European Union. The Minister in making Regulations 2000 did so pursuant to section 3 of the European Communities Act, 1972 for the purpose of giving effect in Ireland to Council Regulation (E.E.C.) No. 3950/92 of the 28th December, 1992 establishing an additional levy on milk and milk products (as amended by Council Regulation (E.E.C.) No. 1256/1999 of the 17th May, 1999) and Commission Regulation (E.E.C.) No. 536/93 of the 9th March, 1993 which laid down additional rules on the application of the additional levy.
155. The milk quotas scheme originates in policy established over many decades. After World War II farmers in Western Europe were managing farms in a traditional fashion. There was a need to modernise. The European Economic Community introduced price levels for products, including milk. Europe developed the Common Agricultural Policy (C.A.P.), which involved annual review of common prices in the Community. With this policy there was a rise in production and a secure price for producers for the quota. This C.A.P. was a market policy. A policy for a single market, managed centrally. The E.C. Treaty, Art. 33(1) (formerly 39(1)) sets out the objectives of the C.A.P. as follows:
“(a) to increase agricultural productivity by promoting technical progress and by ensuring the national development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.”
156. In applying the C.A.P. account must be taken of, in accordance with Article 33(2) (formerly 39(2)):
“(a) The particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions;
(b) the need to effect the appropriate adjustments by degrees;
(c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.”
157. The E.C. Treaty provides that to attain objectives (a) to (e), as set out above, a common organisation of agricultural markets must be established. This may be done in a variety of ways. The Community having established a common organisation of the market, Member States are obliged not to undermine that which is established.
158. The C.A.P. fixes prices in some products. This is done in a variety of ways to achieve the objectives of Community policy. The Community institutions have a discretion in the method of achieving the objective. In Balkan-Import-Export GmbH v. Hauptzollamt Berlin- Packhof (Case 5/73) [1973] E.C.R. 1091, at p. 1112 this was described as follows:
“Article 39 of the Treaty sets out various objectives of the common agricultural policy. In pursuing these objectives, the Community Institutions must secure the permanent harmonization made necessary by any conflicts between these aims taken individually and, where necessary, allow only one of them temporary priority in order to satisfy the demands of the economic factors or conditions in view of which their decisions are made.”
159. The matters for determination on this appeal are issues of law – essentially the validity of Regulations 2000. However, the factual and legal background to the milk quota system is relevant and was before the High Court, and this Court, in the affidavit of Patrick Evans, Assistant Principal Officer in the Department of Agriculture, Food and Rural Development.
160. The context of the milk quota scheme was described by Patrick Evans, in his affidavit of 19th May, 2000, at paragraph 6:
“. . . The milk quota or super levy regime is an integral part of the common organisation of the market in the milk sector in the European Union.”
161. At paragraph 9 of his affidavit Mr. Evans describes the milk quota scheme:
162. “Each year the Commission carries out an analysis of the market situation and future outlook with regard to each of the agricultural products governed by a common organisation to the market. The Commission’s report of this market analysis is followed by whatever proposals the Commission considers necessary to provide for changes to ensure that the objectives of the regime in individual sectors continue to be met. These proposals are known as the “Price Proposals”. If adopted by the Council the proposals lead to the introduction of new Council regulations or amendments to existing regulations. From time to time the Commission makes proposals for major reforms of the operation of the C.A.P. In 1992, the Council adopted proposals known as the MacSharry Proposals for the reform of the C.A.P. These proposals initially contained certain provisions for the reform of the common organisation of the market in the milk sector. However, these were not adopted by the Council. The proposals ultimately adopted at that time led to very little change in the provisions governing the operation of the market in the milk sector. In 1998 the Commission made further proposals for further major reforms in the operation of the C.A.P. These were known as the Agenda 2000 proposals. The primary influence on the Commission in framing these latter proposals was the likely impact on the operation of the C.A.P. resulting from the expected enlargement of the European Union and of further trade liberalisation arising from negotiations within the World Trade Organisation which were due to commence in 1999. The Agenda 2000 proposals contained proposals for significant changes in the operation of the common organisation of the market in the milk sector.”
163. It was his view that:
“It should be apparent from the foregoing paragraphs that the operation of the common organisation of the market in the milk sector is tightly managed to help achieve market balance and is subject to a constant review. The milk quota/super
levy system has, since its introduction in 1984 before (sic) the most important mechanism for ensuring that the objectives of the C.O.M. are achieved.”
164. He made reference to the agreement reached and implemented in Council Regulations Nos. 1255/1999 and 1256/1999. He referred to article 8a of Regulation 3950/92 (as inserted by Article 1(10) of Regulation 1256/1999) and stated that this is the clear policy of the Member States – the Regulation provided a framework whereby Member States were given choices to ensure that milk quotas would be attributed to active milk producers.
165. The standard practice of this aspect of C.O.M. was explained by Mr. Evans at paragraph 30 of his affidavit thus:
“Under the provisions of Article 8 of Commission Regulation (E.E.C.) No. 536/93 Member States are obliged to inform the Commission of measures adopted for the application of Regulation 3950/92 or any amendment thereto within one month following their adoption. It has become standard practice in these circumstances for Member States to consult with the Commission beforehand on the measures they might propose to adopt for the application of the regime in their respective territories so as to prevent any adverse consequences. The Commission are particularly vigilant in scrutinising implementing measures adopted in Member States in connection with a common organisation of the market established by E.U. regulation. They do this so as to ensure both that the implementing measures are authorised by the relevant E.U. regulations and are not in any way inconsistent with the overall aims and objectives of the particular Common Organisation of the Market. The method of implementation of the Common Organisation of the Market in milk and milk products in Ireland is also subject to review by the European Court of Auditors. Detailed consultations took place between the Department and the Commission concerning the implementation of the changes to milk quota or super levy regime as introduced by Regulation 1256/1999. . . . ”
166. I accept the description of the management and practice of the milk quota scheme as given by Mr. Evans. It illustrates the level of centralised control from the Community institutions.
167. The milk quota scheme is governed fundamentally by Community provisions. The scheme is part of the Common Agricultural Policy and the Common Organisation of the Market. In both broad policies and practical direction it is centrally controlled in Europe.
7.ii. European Regulations
168. Community regulations are binding on Member States and are directly applicable within Member States. They are of general application. They are norms created by the Community. They are used extensively in relation to agriculture. As they are directly applicable they are part of national domestic law automatically: see Variola v. Amministrazione delle Finanze (Case 34/73) [1973] E.C.R., 981 at p. 990 where it was noted by the European Court of Justice that:
“The direct application of a Regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law. By virtue of the obligations arising from the Treaty and assumed on ratification, Member States are under a duty not to obstruct the direct applicability inherent in Regulations and other rules of Community law. Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Community Regulations throughout the Community. ”
169. Regulations, being part of domestic law of the State, may be treated as instruments setting out policies and principles for subordinate legislation. If the principles and policies are set out in the Community regulations then there may be no role for the national parliament to determine principles and policies. If the principles and policies are established in law in the State, albeit in Community regulations rather than domestic legislation, then it is open to the Minister to make the required and technically detailed statutory instruments.
7.iii. Choice
170. Community law does not determine the mode of implementation of the milk quota scheme within the national state. Ireland has the choice of mode of implementation. That choice falls to be made in accordance with Irish public law.
7.iv. Irish Public Law
171. The relevant Irish public law is to be found in the Constitution of Ireland. Article 15.2.1 of the Constitution gives to the national parliament the sole and exclusive power of making laws for the State. No other legislative authority has power to make laws for the State. To this Constitution, as part of the general scheme of national entry to the European Community, have been added Article 29.4.6 and Article 29.4.7. Article 29.4.6 states:
“The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 [of the Amsterdam Treaty] and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.”
172. Article 29.4.7 provides:
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”
173. These matters were analysed in Meagher v. Minister for Agriculture [1994] 1 I.R. 329. In that case I stated at pp. 366-367:
“The separation of powers is a fundamental principle of Bunreacht na h Éireann. The power to legislate for the State is solely within the Oireachtas – save where that authority has been assigned under the Constitution to Community authorities and organs of the State to act in accordance with Community law as integrated into national law.
There was no question in this case that the principles and policies of the directives were not within the Treaties.
In the directives herein the policies and principles have been determined. Thus there is no role of determining policies or principles for the Oireachtas. While the directive must be implemented there is no policy or principle which can be altered by the Oireachtas, it is already binding as to the result to be achieved.
That being the case the role of the Oireachtas in such a situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as to what has already been decided, which debate would act as a source of information. Such a sterile debate would take up Daíl and Seanad time and act only as a window on Community directives for the members of the Oireachtas and the Nation. That is not a role envisaged for the Oireachtas in the Constitution.”
174. Applying the principles and policies test to this case, if the principles and policies are to be found in the European regulations then it is open to the Minister to proceed by way of statutory instrument. If there are choices to be made within a scheme then these choices may not be policy decisions. The exercise of a choice governed fully by a structure established in a policy document (such as a European regulation) is not the determination of a policy.
7.v. Milk Quota Regulations
175. The organisation of the milk market by regulations began decades ago and is continuing. In Regulations 2000 the Minister, purporting to exercise powers conferred on him by section 3 of the European Communities Act, 1972 and for the purpose of giving effect to Council Regulation (E.E.C.) No. 3950/92 of the 28th December, 1992 and Commission Regulation (E.E.C.) No. 536/93 of the 9th March, 1993 made Regulations 2000, being a statutory instrument. This followed on Council Regulation (E.C.) No. 1256/1999 of 17th May, 1999 amending Regulation (E.E.C.) No. 3950/92 of the 28th December, 1992 establishing an additional levy in the milk and milk products sector. The policies may be seen therein. For example, recital (2) states:
“Whereas the level of price support in the dairy sector will be gradually reduced by 15% in total over three marketing years from 1 July 2005; whereas the effects of this measure on internal consumption and export of milk and milk products justify a well balanced increase in the total reference quantity for milk in the Community following the respective price cuts on the one hand and targeting certain structural problems at an earlier stage on the other …”
176. Further principles and policies are set out in recital (4):
“(4) Whereas the underuse of reference quantities by producers can prevent the sector of milk production from developing properly; whereas in order to avoid such practices Member States should have the possibility to decide in accordance with the general principles of Community law that, in cases of substantial underuse over a significant period of time, the unused reference quantities will revert to the national reserve with a view to their reallocation to other producers;
(5) Whereas in order to strengthen the possibilities for decentralised management of reference quantities for restructuring of milk production or environmental improvement Member States should be given the power to implement certain provisions in that context at the appropriate territorial level or in collection areas;
(6) Whereas the experience with the additional levy scheme has shown that the transfer of reference quantities through legal constructions such as leases which do not necessarily lead to a permanent allocation of the reference quantities concerned to the transferee, can be an additional cost factor for milk production hampering the improvement of production structures; whereas, in order to strengthen the reference quantities’ character as a means of regulating the market of milk and milk products, the Member States should be authorised to allocate reference quantities, which have been transferred through leases or comparable legal means, to the national reserve for re-distribution, on the basis of
objective criteria, to active producers in particular to those who have used them before; whereas Member States should also have the right to organise the transfer of reference quantities in a different way than by the means of individual transactions between producers; whereas it should be explicitly provided, in particular with a view to taking account adequately of existing legal rights, that, when using these authorisations, Member States are to take the necessary measures to comply with the general principles of Community law …”
177. These regulations have over the decades set out the policies of the milk quota scheme. They stress, as above, that the States make decisions “in accordance with the general principles of Community law.”
178. The regulations, the European provisions, relating to the milk quota scheme were referred to in written and oral submissions by the parties and copies provided to the Court. The European provisions contain extensive principles and policies. They are analysed fully by Fennelly J., with which analysis I agree.
179. The principles and policies of the milk quota scheme have been determined in the European provisions. The Minister in making Regulations 2000 was not determining principles and policies. The Minister was implementing the policies and principles in accordance with the general principles of Community law. The Minister was not purporting to legislate. Consequently, there was no breach of Article 15.2.1 of the Constitution of Ireland.
7.vi. Property Rights
180. The submissions of counsel in relation to this aspect of the case have been set out earlier. Whilst there were submissions that milk quota may qualify for protection as a property right which Member States are obliged as a matter of Community law to protect the stress put on this aspect of the submissions was that the dicta in Bostock did not prevent such right being regarded as a property right for the purposes of Irish Constitutional law.
181. The Community law was stated in R v. Ministry of Agriculture, ex parte Bostock (Case C-2/92) [1994] E.C.R . 1-955 where it was held at p. 984 that:
“The right to property safeguarded by the Community legal order does not include the right to dispose, for profit, of an advantage, such as the reference quantities allocated in the context of the common organisation of a market, which does not derive from the assets or occupational activity of the person concerned (judgment in Case C-44/89 Von Deetzen v. Hampzollant Oldenburg (Von Deetzen II) [1991] E.C.R. 1-5119, paragraph 27).
It follows that the protection of the right to property guaranteed by the Community legal order does not require a Member State to introduce a scheme for payment of compensation by a landlord to an outgoing tenant and does not confer a right to such compensation directly on the tenant.”
182. I am satisfied that this is a clear statement of law, which I apply. Milk quotas do not confer property rights under Community law. This was generally accepted by the applicants.
183. However, it was argued that while Bostock concerned the right to dispose of a quota for profit, the applicants’ case concerns a form of compulsory acquisition by the State of a quota at a price substantially less than the prevailing market price. In such circumstances, it was submitted, a milk quota may qualify for protection as a property right which States are obliged under Community law to protect. Reference was made to comments of the Advocate General in Demand v. Hauptzollamt Trier (Case C-186/96) [1998] E.C.R. 1-8529 at p. 8539 et seq. The Advocate General stated, inter alia :
“36. We have come a long way since classical Roman times, when property signified a power over a thing that was so direct and complete as to be indistinguishable from the thing itself. Nowadays a large proportion of transactions relate to things which, strictly speaking, are not things at all. They have been created in order to satisfy a specific socio-economic function and, more than any other good, depend on the legislative framework within which they are created and sustained. Take, for example, industrial patents. In order to protect industrial products and thus encourage invention, the legislature creates a new legal instrument and defines its content primarily according to its aims. In doing so the legislature is fully aware that economic dynamism will be sure to bring to light legal aspects of the new instrument which were not foreseen and probably not foreseeable. It will again be for the legislature or, as the case may be, the courts to define its limits and to adapt this foreign body to the workings of the law.
37. To my mind that is the situation as regards the so-called milk quotas. The Community legislature must have believed that it could simply regulate these instruments according to their purpose, namely to control milk production within the Community, and leave it to each Member State to resolve the complex private-law issues which the introduction of the new scheme would inevitably raise. Mindful of the significance of the new arrangement, however, it laid down two important conditions: the quota scheme was introduced on a temporary basis and the quotas were linked with dairy holdings. Both of these conditions have been gradually weakened, the first because the quota scheme has been consistently extended between 1984 and the present time and the second because the Member States have been given increasingly wider opportunities to authorise the transfer of reference quantities independently of the holding. Since 1 April 1993 Member States have even been able to authorise, subject to certain conditions, ‘the transfer of reference quantities between certain producer categories without transfer of the corresponding land’ (see point 20 above).
38. The national legislatures have used those opportunities in very different ways. While in England a veritable ‘quota market’ has flourished since the introduction of the scheme, the French rules do not even permit the temporary transfers provided for in Article 6 of Regulation 3950/92. In the absence of a coherent and stable legislative approach, it comes as no surprise that the characterisation of milk quotas by national courts has ranged from ‘valuable intangible asset’, or even ‘intangible asset susceptible of being leased or transferred, ownership of which constitutes a subjective right’, to the more modest ‘administrative restriction of production’ or ‘fiscal advantage akin to a subsidy’. Legal writers have already expressed doubts as to whether the quota is an immovable asset or a movable asset or whether it is possible to provide real securities over the actual quota rather than the milk production effected thereunder.
184. The justification for the indecisive and case-by-case approach which the Court of Justice tends to take in defining the criteria for protecting property interests is based, at least in part, on this wide range of views which the Community legislation has spawned within the legal orders of the Member States, in particular in the field of private law.
39. While the relative stability of the quota scheme over a given period helps to create a degree of legal certainty, the relaxation of the conditions governing the transfer of quotas reinforces the concept which traders legitimately have of the quota as an autonomous valuable asset. In those circumstances, and in spite of the great differences in regard to this matter between the individual national legal orders, I believe that milk quotas must currently be regarded as authentic intangible assets. However, since they were introduced for the purpose of regulating the market in milk, their content should be defined according to that purpose, which continues to be their raison d’ être.
40. For those reasons I consider that examination of the validity of the measures adopted within the framework of the regulation of the market in milk must be centred on their necessity and proportionality in the light of the aim which they were intended to pursue. The conclusions drawn from that examination will have to be applied to every holder of a reference quantity, irrespective of the means whereby those quantities were allocated (or, if one prefers, acquired).
41. Put another way, although the fact that milk quotas are in the nature of property may enhance their role in transactions to the point of protecting the subjective rights of those holding them, that aspect must not prevail over the paramount objective of regulating the market. Traders who deal in quotas (by means of the various transactions permitted under national law) must never lose sight of the fact that in the final analysis quotas are, in their essence and by virtue of their purpose, instruments for regulating the market on a temporary basis and that that this entails risks and uncertainty. That clearly does not mean that the legislature is completely free to dispose of those reference quantities as it pleases. It does mean, however, than when analysing the validity of any regulatory measure, such as the 4.5% reduction of the quantities free from levy, one must take into account the inherently regulatory nature of milk quotas before classifying those measures as expropriations. In economic terms, one might perhaps say that for a trader who holds a quota the intervention measures which affect that quota represent one more operating risk, closely linked with the situation on the market. That is a risk which the operator will have to bear, although only in consideration of the protection which the system affords him by guaranteeing a minimum price.
42. Milk quotas thus constitute instruments of market intervention which, through the process of the law, have become an item of property. The content of that item of property/instrument will clearly vary according to the various national legal systems. Some will require a closer link between the quota and a holding or will subject the transfer of the quota to various conditions. The quota is not thereby deprived of its character as an item or property, just as firearms or enriched uranium are not deprived of their character as items of property by the restrictions on transferring them. Those conditions will only provide a means of preventing, to some extent, the creation of ‘quota markets’.
43. The solution which I propose is, to my mind, not only the one which best reflects economic reality; it is the one which permits a more satisfactory protection of subjective rights. It is now less true than ever that ‘the right to property thus safeguarded within the Community legal order does not comprehend the right to dispose, for profit, of an advantage, such as the reference quantities allocated in the framework of the common organisation of a market, which does not derive from the assets or occupational activity of the person concerned’. That is what the Court appears to have meant by omitting that passage from the more recent Irish Farmers judgment. Unlike the approach it took in earlier cases, in that judgment the Court did not reject the allegation of violation of the right to property on the ground that quotas did not constitute assets. On the other hand, the Court stated that ‘conversion into a definitive reduction without compensation does not affect the actual substance of that right [to property] inasmuch as the Irish producers were able to continue to pursue their trade as milk producers’. That statement shows that the Court decided to approach the legal impact of intervention measures – which is what milk quotas are – on their own particular ground, that of the right to property. It only remains, therefore, to say so clearly.”
185. In spite of his eloquence the Court did not develop the right to a right to property but held:
“40. With regard more particularly to the right to property, which, according to the plaintiff in the main proceedings, has been infringed, the Court held, in paragraphs 28 and 29 of Irish Farmers’ Association, cited above, that the regulations in question form part of a body of legislation intended to remedy the surpluses on the milk market and therefore correspond to aims pursued by the Community in the general interest and that the conversion into a definitive reduction without compensation does not affect the actual substance of that right.
41. It must be added that, regardless of the legal nature to be attributed to an additional reference quantity, but having regard to the persistence of surpluses, a definitive withdrawal of 4.74% of an additional reference quantity appears to be appropriate and necessary to achieve the aim of that measure, namely an enduring reduction of the surpluses.
42. The Community legislature has not thus exceeded the bounds of the latitude available to it, the definitive reduction of 4.74% both of the initial quantity and of the additional quantity not being disproportionate to the aim pursued.”
186. Thus the Court did not follow the approach of the Advocate General on the property right issue. The Court’s judgment is based on to the intention grounding the milk quota, the aims of the Community in the general interest. The Court stressed the fact that such steps are necessary to achieve the aim, in the general interest.
187. Counsel for the applicant did not stress this aspect of the appeal. This was a correct approach. I am satisfied that a milk quota is not per se a property right under Community law.
188. However, the applicants submitted that milk quota is a property right under Irish constitutional law. The applicants have relied upon the opinion of Advocate General Cosmas in Duff v. Minister for Agriculture (Case C-63/93) [1996] E.C.R. 1-569 where he stated:
“60. It is, I think, useful to add that, although the above mentioned general principles of Community law can provide no basis for a requirement on the part of Member States to provide for the grant of special reference quantities to the producers referred to in the first indent of Article 3(1) of Regulation No. 857/84, there is nothing to prevent such a requirement from being founded on principles of national law which, in an appropriate case, may ensure greater protection in this respect than that afforded by the general principles applicable in the Community legal order.
61. That possibility in no way jeopardises the uniform application of Community legislation since the first indent of Article 3(1) of Regulation No. 857/84 specifically gave the Member States the possibility of adopting different solutions as regards the grant or otherwise of special reference quantities. It should, however, be emphasized that the application of a principle of national law in order to found such an obligation on the part of the relevant Member State is subject to exactly the same restrictions as those to which national law is in any event subject when it gives effect to provisions of Community law. Thus, that principle will have to be applied in exactly the same manner as it is applied in areas unconnected with Community law, whilst, furthermore, the application thereof must not lead to any substantive alteration of the rules governing the additional levy scheme on milk, jeopardize the effectiveness of the scheme or compromise the successful attainment of its objectives. It goes without saying that it is not for the Court [that is the European Court], but for the national court to examine whether there are any principles of national law capable of imposing on the relevant Member State an obligation to grant special reference quantities to the producers to whom the contested provision of Regulation No. 857/84 refers.”
189. Reference was made also to Deutsche Milchkontor v. Germany (Cases 205 to 215/82) [1983] ECR 2633 and in particular to paragraphs 30 to 33:
“30. The first point to be made in this regard is that the principles of the protection of legitimate expectation and assurance of legal certainty are part of the legal order of the Community. The fact that national legislation provides for the same principles to be observed in a matter such as the recovery of unduly paid Community aids cannot, therefore, be considered contrary to that same legal order. Moreover, it is clear from a study of the national laws of the Member States regarding the revocation of administrative decisions and the recovery of financial benefits which have been unduly paid by public authorities that the concern to strike a balance, albeit in different ways, between the principle of legality on the one hand and the principles of legal certainty and the protection of legitimate expectation on the other is common [to] the laws of the Member States.
31. Where the rules and procedures applied by the national authorities in the recovery of Community aids are the same as those which they apply in comparable cases concerning purely national financial benefits, there is in principle no reason to assume that those rules and procedures are contrary to the national authorities’ duty under Article 8 of Regulation No. 729/70 to recover sums irregularly granted and that consequently they reduce the effectiveness of Community law. This applies in particular to grounds for excluding recovery where these are related to the administration’s own conduct and it can therefore prevent them from occurring.
32. It should be added, however, that the principle that national legislation must be applied without discrimination compared to purely national procedures of the same kind requires the interest of the Community to be taken fully into consideration in the application of a provision which . . . requires the various interests in question, namely on the one hand the public interest in the revocation of the measure and on the other hand the protection of the legitimate expectation of the person to whom it is addressed, to be weighed up against one another before the decision is revoked.
33. The answer to the seventh question must therefore be that Community law does not prevent national law from having regard, in excluding the recovery of unduly-paid aids, to such considerations as the protection of legitimate expectation, the loss of unjustified enrichment, the passing of a time-limit or the fact that the administration knew, or was unaware owing to gross negligence on its part, that it was wrong in granting the aids in question, provided however that the conditions laid down are the same as for the recovery of purely national financial benefits and that the interests of the Community are taken fully into account.”
190. Of these paragraphs, Barrington J. held in Duff v. Minister for Agriculture (No.2) [1997] 2 I.R. 22 at p. 81 that:
“It appears to me that in these passages the Advocate-General has gone out of his way not to exclude the possibility that the plaintiffs may have a remedy in national law. Neither has he excluded the possibility that principles of Community law, such as legitimate expectation, may be invoked by the plaintiffs so long as there is no discrimination against Community funds (as compared to national funds) and so long as the interest of the Community are kept in sight.”
191. In that case the Supreme Court (O’Flaherty, Blayney and Barrington JJ., Hamilton C.J. and Keane J. dissenting) held that on the evidence the Minister had in fact decided to make provision for development farmers such as the plaintiffs, young farmers and disease-herd farmers. However, the Minister had made a mistake of law in seeking to provide for these categories of farmers other than by establishing a reserve under Article 5. The decision was accordingly illegal, and therefore it was not a question of reviewing the manner in which the Minister had reached his decision. The majority held that the plaintiffs were entitled to compensation for the Minister’s mistake of law. Thus the case may be distinguished as being grounded on the Minister’s mistake of law.
192. I am satisfied that in certain circumstances persons may have a greater protection of property rights at national law than under Community law. As to whether such a situation exists depends on the facts, circumstances and laws of each case.
193. The property rights under the Constitution of Ireland are enshrined in Article 40.3.2 and
194. Article 43. They provide:
Article 40.3.2
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
Article 43
“1. 1º The State acknowledges that man, in virtue of his rational being,
has the natural right, antecedent to positive law, to the private
ownership of external goods.
2º The State accordingly guarantees to pass no law attempting to
abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
2. 1º The State recognises, however, that the exercise of the rights
mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
2º The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”
195. To determine the precise right in issue under Irish law it is necessary to analyse the nature of milk quota in relation to constitutional property rights. There are a number of relevant factors to this analysis.
(a) The nature of milk quota scheme
196. The nature of the right conferred by a milk quota is to permit the holder to produce milk up to the quantity of the quota without the payment of a levy. Milk quotas form part of the levy scheme which is constantly subject to changes, including reduction in the amount of quota without compensation: Irish Farmers’ Association & Ors. V. Minister for Agriculture [1997] E.C.R. 1-1809. In that case, in relation to the issue of legitimate expectation, the nature of the constant adjustments of the scheme were addressed:
“According to the consistent case-law of the Court, in the sphere of the common organization of the markets, whose purpose involves constant adjustments to meet changes in the economic situation, economic operators cannot legitimately expect that they will not be subject to restrictions arising out of future rules of market or structural policy. The principle of the protection of legitimate expectations may be invoked as against Community rules only to the extent that the Community itself has previously created a situation which can give rise to a legitimate expectation (see Case C-177/90 Kühn v Landwirtschaftskammer Weser-Ems [1992] ECR I-35, paragraphs 13 and 14, and Case C-63/93 Duff and Others v Minister for Agriculture and Food, Ireland, and the Attorney General [1996] ECR I-569, paragraph 20).”
197. In relation to property rights the Court again stressed the nature of the scheme, referring to social function and to aims pursued by the Community in the general interest. It stated:
“Right to property
26. The plaintiffs in the main proceedings argue that the permanent withdrawal of 4.5% of their reference quantities without compensation infringes the right to property.
27. That argument cannot be upheld, either. The right to property is certainly one of the fundamental rights whose observance is ensured by the Court. Such rights are not, however, absolute rights but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organization of the markets, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights ( Kühn, cited above, paragraph 16).
28. Having regard to those criteria, it must be held that, first, the regulations in question form part of a body of legislation intended to remedy the surpluses on the milk and milk products market and that they therefore correspond to aims pursued by the Community in the general interest.
29. Secondly, conversion into a definitive reduction without compensation does not affect the actual substance of that right inasmuch as the Irish producers were able to continue to pursue their trade or profession as milk producers. Moreover, the reduction in milk production led to an increase in the price of milk, thus compensating, at least in part, the loss suffered.”
(The applicants in this case are not producers, as is stressed later.)
(b) Genesis of milk quota scheme.
198. It is also appropriate to consider the genesis of the milk quota. The foundation of that right is in Community law. A milk quota is quintessentially a Community creation. It was created and is updated regularly by Community laws. On any analysis a milk quota is grounded in Community law. Community policy governs the development of milk quotas, indications of future policy have already been given. Because of this the fundamental principles of milk quotas will continue to be governed Community wide by Community law. Insofar as domestic law on milk quota exists, it is subject to the principles and policies established in Community law.
(c) Producers are a key factor.
199. It is of the essence of the milk quota scheme that quota is released by those ceasing to produce and reallocated to a producer. The facts of this case relating to the applicants are relevant. The applicants are not producers. They have earned monies from the quota, however. There are a number of options opened to each of them. They are not seeking to use the quota as producers themselves.
200. General principles of Community law do not prohibit the State treating a milk quota as a property right provided such approach is consistent with Community law. It must be in compliance with Community law. The domestic right in this case, however, is itself grounded in Community law, on the facts, circumstances and law. In analysing the rights under the milk quota scheme in Ireland the same characterisations should apply as under Community law. The essence of the right in this jurisdiction is not severable from the concept of the right under Community law. The right in issue arises in a scheme created with a view to the aims of the Community in the general interest. The nature of the right stemming as it does exclusively from the C.O.M. does not change. Any “right” which the applicants have is solely because of the milk quota regulations which enable them to produce a milk quota to a certain level with monetary consequences. It is a right created by Community law subject to a change in the scheme.
201. Insofar as it may be analysed as similar to a property right it is analogous to a licence and to Irish law in relation to such schemes. An analogy may be seen in Hempenstall v. Minister for the Environment [1994] 2 I.R. 20. The applicants were holders of taxi licences who claimed that certain regulations made by the Minister for the Environment under the Road Traffic Act, 1961 had had the effect of reducing the value of their taxi licences and that this constituted an unjust attack on their property rights. Costello J., in rejecting the applicants’ arguments, primarily on the ground that no diminution in the value of their licences had actually occurred, observed, at p. 28:
“. . . even if it were established that the making of the Regulations of 1992 resulted in a diminution in the value of the applicants’ taxi-plates this would not as a matter of law amount, in my opinion, to an attack on the applicants’ property rights. Property rights arising in licences created by law (enacted or delegated) are subject to the conditions created by law and to an implied condition that the law may change those conditions. Changes brought about by law may enhance the value of those property rights (as the Regulations of 1978 enhanced the value of taxi-plates by limiting the numbers to be issued and permitting their transfer) or they may diminish them (as the applicants say was the effect of the Regulations of 1992). But an amendment of the law which by changing the conditions under which a licence is held, reduces the commercial value of the licence cannot be regarded as an attack on the property right in the licence-it is the consequence of the implied condition which is an inherent part of the property right in the licence. [emphasis added]”
202. The learned High Court judge examined the issue of whether a change in the law can be said
to have been an “unjust attack”:
“Thirdly, a change in the law which has the effect of reducing property values cannot in itself amount to an infringement of constitutionally protected property rights. There are many instances in which legal changes may adversely affect property values (for example, new zoning regulations in the planning code and new legislation relating to the issue of intoxicating liquor licences) and such changes cannot be impugned as being constitutionally invalid unless some invalidity can be shown to exist apart from the resulting property value diminution. In this case no such invalidity can be shown. The object of the exercise of the Ministerial regulatory power is to benefit users of small public service vehicles. It has not been shown or even suggested that the Minister acted otherwise than in accordance with his statutory powers. Once he did so then it cannot be said that he has thereby “attacked” the applicants’ property rights because a diminution in the value may have resulted. [emphasis added]”
203. A similar approach was taken in a consideration of the liquor licensing scheme. In State (Pheasantry) v. Donnelly [1982] I.L.R.M. 512, the Court emphasised that the licence was granted subject to certain limitations and conditions. Carroll J. stated:
“The licence is a privilege granted by statute and regulated for the public good.”
204. The learned judge then continued, at p. 516:
“It is ab initio subject to various conditions … There is no constitutional right to a liquor licence or a renewal thereof. There are only such rights as are given by statute subject to the limitations and conditions prescribed by statute. [emphasis added]”
205. Resonances of this line of reasoning may also be detected in cases such as Hand v. Dublin Corporation [1991] 1 IR 409 and Private Motorists Provident Society Ltd. v. Attorney General [1983] I.R. 339.
206. Thus in domestic law the right in a licence is subject to conditions created by law. This is an inherent aspect of the right in a licence. It is a right subject to the policies implemented by
provisions at national level. It is a scheme, a policy, in the general interest. By analogy in this case the Community provisions stand in the place of national legislation. The principles and policies of the milk quota scheme are therein provided. It is subject to the same analysis as to a licence created by statute. There are inherent aspects. It is subject to change. It is a scheme in the general interest.
207. The nature of a domestic right such as a licence is dependent on the law, usually statutory, which creates and develops the specific scheme. Behind the stated scheme is a policy being implemented through the legislation by the legislature. Such a scheme is in the public interest. It may be viewed through the concepts of the exigencies of the common good and proportionality.
208. The milk quota scheme at Community level is based on policy related to the market and to aims of the Community, which policies have been stated in treaties, regulations and cases. Policy changes and develops. Conditions and terms of the milk quota scheme change from year to year. Indeed, this is a scheme with a very ‘hands on’ supervision from central institutions. It is a policy with the general aim of the common good. The applicants have an advantage, a right, as a consequence of this policy. It is a right created in the public interest and subject to the public interest. It is a right to which the applicants know the terms and conditions and know of their variability. On this analysis the scheme is constitutionally permissible.
8. Conclusion
209. The mode of implementation of the detailed milk quota scheme in Ireland pursuant to European provisions is a matter of choice for Ireland. The choice is governed by Irish public law. It was not necessary that the State chose implementation by statutory instrument. However, that choice is valid under Irish public law as the European regulations are part of Irish law and may be regarded in the same way as an enabling statute of the Irish legislature.
210. Once the principles and policies are set out in the European regulations then Irish public law permits implementation by way of a statutory instrument of the principles and policies of the European regulations. The statutory instrument is not laying down principles and policies so it is not ultra vires . Further, as no principles or policies are being determined there is no requirement for the national legislature to legislate. Article 15.2.1 is not being defeated as the decisions of principles and policies have been made in the European regulations. The detailed implementation must be in accordance with the regulations. Indeed, the practice is that the implementation of the principles and policies of the milk quota scheme is overseen tightly from Europe.
211. This case is not about any democratic deficit in Ireland. If there is a democratic deficit it should be met prior to the making of the Community regulations. If any such deficit exists it cannot be addressed after the policies and principles have been established by the Community regulations. This is not a case of the executive usurping the role of the legislature. Once principles and policies have been established by Community regulations there is no role, certainly no meaningful role, for the national legislature.
212. The democratic system in Ireland functions through three branches of government. However, in addition, the State is subject to European institutions and provisions made therein. These regulations are directly applicable. These regulations are part of Irish law as a consequence of Ireland’s membership of the European Union. They are part of Irish law without any input from the three branches of government.
213. The principles and policies in relation to the milk quota were set down in the European provisions. These regulations are directly applicable in Ireland. They set out the principles and policies of the milk quota scheme. This scheme is a creation of the European Union and an important part of the Common Agricultural Policy and the Common Organisation of the Market. It is quintessentially a market device run from central institutions.
214. There was no necessity for legislation in the national parliament of Ireland as the principles
and policies are established in the regulations. Indeed, such an enactment might have caused an impediment of the common organisation of the market if it had strayed from the principles and policies in the regulations. Also, such an approach might have created the illusion that there were policies to be decided in the national parliament when in fact there were not. There was no renvoi to the national legislature.
215. There are choices to be made within the regulations. However, these choices are the exercise of a discretion within the principles and policies established. The fact that there is a discretion does not take it outside the principles and policies established – which have been established at European level. The discretion exercised is a limited one within the principles and policies established.
216. Thus the method chosen to implement Regulations 2000 was constitutional and not a breach of Article 15.2.1. It was not a violation of the separation of powers as the decisions had all been taken at European level. Indeed, to hold that the choice left to Ireland required legislation might well diminish the status of the national legislature; to require it to act as a body in decision making where the decisions as to principles and policies have been made,
and furthermore are carefully monitored, in European institutions.
217. The nature of the milk quota was established at European level, it is a creation of the European Union. The applicants have submitted that it is a property right under Irish constitutional law, that they are entitled to the protection of the Irish Constitution. I am satisfied that this is not so in this case. The nature of a milk quota is similar under Community and Irish law. Milk quota arises as a scheme under C.A.P. and C.O.M. to regulate the European market. It is a right to produce and sell milk to the amount of their quota. In fact none of the applicants are producers. It is a scheme the terms and conditions of which are constantly changing. Restructuring is an important aspect under Community principles and policies. It is a scheme in the general interest. Even if it is a property pursuant to the Articles of the Constitution of Ireland, it is subject to the exigencies of the common good and principles of proportionality, consequently also to the general aim of this scheme. Either way the applicants have not made out a case as claimed.
218. For the reasons stated I would dismiss the appeal.
THE SUPREME COURT
340/00
Keane, C.J.
Denham, J.
Murphy, J.
Murray, J
Fennelly, J.
BETWEEN
NICHOLAS PHILIP (OTHERWISE MARTIN) MAHER
MALACHY BRETT AND RITA RYAN
Applicants
AND
THE MINISTER FOR AGRICULTURE FOOD AND RURAL DEVELOPMENT
IRELAND AND THE ATTORNEY GENERAL
Respondents
Judgment delivered the 30th day of March, 2001, by Murray, J.
219. I have had the advantage of reading the judgment of Fennelly, J. and I agree with his reasoning and conclusions on the issue as to whether the national rules contained in the European Communities (milk quota) Regulations 2000 (S.I. No. 94/2000) (“The 2000 Regulations”), implemented for the purpose of community regulations ought to have been introduced by way of primary legislation in order to comply with the provisions of the Constitution in lieu of the statutory instrument adopted by the Minister.
220. Fennelly, J. has very clearly set out all the factual elements and applicable law , in particular the legal measures adopted at both community level and national level governing the milk quota system. Therefore, it is not necessary for me to make detailed reference to those matters and I do so only so far as it is necessary for the purpose of addressing the particular issues with which this judgment in concerned. Those issues are the claim made on behalf of each of the Applicants that the 2000 regulations infringed the property rights of the Applicants as guaranteed by the Constitution and, or alternatively, their property rights as protected by European Community law.
221. In this respect it was submitted on behalf of the Applicants that a milk quota should be treated as just as valuable an asset in its own right as land itself. In effect the Applicants were being required to sell their milk quota under the 2000 restructuring scheme to the Minister at a price fixed by him at a fraction of its market value. It was submitted that this was equivalent to the forfeiture of unused agriculture land at a price significantly below its market value and was in conflict with Article 40.3.2 and Article 43 of the Constitution.
222. Since the basis on which the milk quota could be sold into the restructuring scheme pursuant to the 2000 Regulations was a matter within the discretion of the national authorities it fell to be exercised in accordance with national law , the Minister was bound in so doing to respect the property rights of the Applicants as guaranteed by the Constitution.
223. It was also submitted that, even if a right derived from community law does not fall to be considered as a fundamental right within the meaning of that law, it does not follow that such a right cannot enjoy protection of the Constitution where it is expressly or implicitly recognised as a fundamental right.
224. As regards European community law, it was submitted that the right to property is one of the fundamental rights protected by community law. While it was accepted that the Court of Justice has generally taken the view that milk quotas do not constitute a property right so far as community law is concerned, as in the case of R -v- Ministry of Agriculture, ex-parte Bostock (C-2/92 [1994] ECR 1-955) it was submitted that Bostock concerned the right to dispose of a quota for profit whereas the present case concerns a form of compulsory acquisition by the state of a quota at a price substantially less than the prevailing market value. In this context a quota may qualify for protection as a property right which the member states in turn are obliged, as a matter of community law to protect. In support for this submission the Applicants relied on the opinion of the Advocate General in Demand -v- Hauptzollampt Trier (C-186/96 [1998] ECR 1-8529 at 8541). That opinion included the following statement at paragraph 42 “ Milk quotas thus constitute instruments of market intervention which through the process of the law, have become an item of property. The content of that item of property/instrument will clearly vary according to the various national legal systems. Some will require a closer link between the quota and the holding or will subject the transfer of the quota to various conditions. The quota is not thereby deprived of its character as an item of property, just as fire arms are enriched uranium or not deprived of their character as items of property by the restrictions on transferring them. These conditions will only provide a means of preventing, to some extent, the creation of ‘quota markets’ .”
225. For the Respondents it was submitted that the nature of rights conferred by the milk quota on the Applicants can be no different under Irish law than under Community law. The Respondents rely on the judgment of the Court of Justice in R -v- Ministry of Agriculture, ex-parte Bostock for the submission that so far as Community law is concerned a milk quota it is not a property right. It follows, in their submission, that it cannot be a property right under national law. Furthermore, on the facts of the case the Applicants are seeking no more than to earn a greater profit from the milk quota currently held by them than is allowed for by the 2000 Regulations. These milk quotas form part of the additional levy scheme which has been introduced for a limited period only and which has been the subject of constant changes including reductions in the amount of quota without compensation which has been upheld as permissible by the Court of Justice. It is not a property right in Community law.
226. In the alternative the Respondents argue that if the Applicants are to be considered as having a property right in their milk quota, it can be no greater than a property right and a licence to produce and deliver milk in the amount of their quota. The changes made by the 2000 Regulation does not interfere with this right since the quota must be regarded in Irish law as a licence or permit created by law and subject to an implied condition that the law may legitimately change the licence scheme or conditions attaching to such licence. Accordingly, the 2000 Regulations do not conflict with either Article 40.3.2 or 43 of the Constitution.
Decision:-
227. It is appropriate first of all to consider the submission on behalf of the Applicants that the State is entitled and indeed bound to respect constitutional guarantees for the respect of fundamental rights even where that right is derived from Community law in circumstances where the degree of protection to be afforded to such a right is left to the discretion of the member state. In support of that contention, the Appellants relied on the views expressed in an opinion of Advocate General Cosmas in Duff -v- Minister for Agriculture (C-63/93 [1996] ECR 1/569) where he held that the Plaintiff’s legitimate expectations at Community law level had not been infringed by the actions of the Minister, but this did not prevent “… such a requirement from been founded on principles of national law which, in an appropriate case, may ensure greater protection in this respect than that afforded by the general principles applicable in the community legal order .”
228. I do not consider that the proposition as framed and advanced on behalf of the Appellants needs to find its source in Community law. It seems to me that the view expressed by Advocate General Cosmas is no more than a reflection of the position in national law when member states exercise their legislative powers in a matter in which they have competence and a discretion as to the legal protection to be afforded to fundamental personal rights. In such circumstances the Member States have the power, or as the case may be, the duty to legislate in accordance with national law including constitutional law. One of the primary duties of the organs of government under our Constitution including the judicial organ of government is to ensure due observance of the Constitution, respect for the fundamental rights which it protects and where appropriate to defend and vindicate them, always with due regard to the precedence which the Constitution in effect accords to Community law and its fundamental principles by virtue of the relevant provisions of
Article 29.
229. Of course it is the case that a Member State when introducing legal measures at national level, which fall within the scope of community law, such as giving effect to a directive or regulation, must comply with community requirements with regard to the protection of fundamental rights which is an integral part of the community legal order. (C-222/84 Johnston -v- Chief Constable of the RUC [1986] ECR 1651 para. 18). This is so even if the measures taken are within the ambit of a discretion left to the member state. Whether such a measure respects the community protection of fundamental rights must be determined by community law alone.
230. However, where the State enacts a legislative measure in the exercise of a discretion conferred by community law it is not ipso facto absolved from ensuring that such legislation is compatible with the Constitution. This is self-evident from the terms of Article 29.4 which, inter alia , provides that no provision of the Constitution invalidates laws enacted or measures adopted by the State which are “necessitated” by the obligations of membership of the European Union or of the Communities. The discretion allowed to the Member State maybe so circumscribed by community law that the entire of any legislative measure taken by it or the exercise of such discretion is “necessitated”. This could arise where the exercise of a discretion conferred by community law was required to be exercised exclusively having regard to the policy considerations and objectives of the community measure and where considerations of national law would distort the proper exercise of such a discretion.
231. On the other hand, the discretion conferred by community law on the State when implementing legislative measures maybe sufficiently wide to permit the State to have full regard to the constitutional protection afforded to fundamental rights without impinging on the full effect and uniform application of community law. In such circumstances the State, in the exercise of such discretion, would be bound to respect personal and fundamental rights as guaranteed by the Constitution.
232. In this particular case it may well be that the discretion conferred on the Minister to cease to apply Article 7 (1) of Regulation (EEC) 3950/92 as amended by the insertion of Article 1 (10) of Regulation (EC) 1256 /99 of Article 8 a (b) is so circumscribed to be considered “necessitated” within the meaning of Article 29 of the Constitution. These concern the rules on the transfer of quotas. The position may be otherwise in respect of the power conferred on the Minister by the national regulations, the 2000 Regulations, to fix the maximum price per litre/gallon for which the price of milk quotas may be calculated.
233. However, it is not necessary to venture further into these issues unless the Applicants have established that they have a property right and that the constitutional guarantees have been infringed as they allege.
Property Rights – national law:-
234. The next question which arises is whether a right being asserted by the Appellants in these proceedings is a property right, and if so whether it has been infringed contrary to Article 40.3.2 or Article 43 of the Constitution.
235. First of all regard must be had to the general context in which the milk quota or super levy system has functioned and been regulated. It is an integral part of the Common Agriculture Policy the objectives of which are set out in Article 33 of the E.C. Treaty namely:-
(a) To increase agricultural productivity by promoting technical progress and by ensuring the rational development agricultural production and the optimum utilisation or the factors of production, in particular, labour;
(b) Thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) To stabilise markets;
(d) To ensure the availability of supplies;
(e) To ensure that supplies reach consumers at reasonable prices.
236. Article 34 of the Treaty authorises the community to take all measures required to attain the above objectives and in particular measures concerning the “ regulation of prices, aids for the production and marketing of the various products, storage and carry over arrangements and common machinery for stabilising imports or exports. ”
237. The milk quota system is an integral part of the common organisation of the market in the milk sector. This common organisation of the milk sector market was introduced initially by council Regulation (EEC) No. 804/68 with a view to guaranteeing to producers a common target price with the support of certain intervention measures.
238. The basic common organisation of the market in the milk sector from its inception on the adoption of Council Regulation (EEC) no. 804/68 and its evolution to the present regime to which the 2000 Regulations apply has been clearly set out in the judgment of Fennelly, J. From a general point of view it is clear that the milk quota system as successively varied and amended was intended to achieve the objectives of the common organisation of the market in the milk sector and those of the Common Agricultural Policy. In particular it had among its primary objectives that of maintaining market balance and producers income. In a real sense it created an artificial market for milk products since the regime was designed at all times to counteract the negative effects of prevailing market forces in open unregulated national markets. A stable milk sector market has benefits for the consumer and thus for society for a whole but it can be fairly said that at least equal benefactors of the regulation of the market are those farmers who participate in the milk quota regime. This is highlighted by the recital in Council Regulation (EC) 1255/99 which recites as one of its fundamental objectives “to ensure a fair standard of living for the agricultural community.”
239. Thus by the various measures and mechanisms authorised by the Treaty, a particular and common organisation of the market of milk as a product was constructed. The market can be said to be particular in so far as that the conditions of trade, including the price of milk, are fashioned by the regulatory regime to the direct benefit of producers. The history of the establishment and evolution of the common organisation of the market in the milk sector, as outlined in the judgment of Fennelly, J. and elsewhere, demonstrates that the regulatory regime did not always achieve the objectives anticipated either because it did not have the full effect expected or because of intervening factors such as over production of milk. The common organisation of this market successively over the years has been subject to variations, refinements and amendments with a view to achieving the basic objectives of the Common Agricultural Policy. These changes have included reductions in the amount of quota without compensation (the legality of which was upheld by the Court of Justice in the Irish Farmers Association and Ors -v- Minister for Agriculture (C-22/94 [1997] ECR 1 1809 ). Such constant changes are an inherent feature of the common organisation of the market in the agricultural sector. As Mr Patrick Evans, official at the Department of Agriculture, Food and Rural Development, points out in paragraph 9 of his affidavit “ each year the commission carries out an analysis of the market situation and a future outlook with regard to each of the agricultural products governed by the common organisation to the market. The Commissions report of this market analysis is followed by any proposals the Commission considers necessary to provide for changes to ensure that the objectives of the regime in individual sectors continued to be met .” Neither the organisation nor the market which it governs can be assumed to remain static.
240. It seems to me that when changes are effected to a regime regulating the organisation of a product market, such as that which we have here, which are internally rational to the regime and the objectives to be achieved by it, those who participate as economic operators in that market must, in principle, accept such changes as an inherent element in that market in which they participate provided, at least, those changes do not affect other substantive rights independent of the regime and do not offend against fundamental principles such as non- discrimination.
241. If a person’s rights or activities under such a regulatory regime were to be abridged or limited for purposes external or extraneous to those of the regulatory regime, any question of compensation which might arise would have to be approached from a different perspective. Such could arise, for example, where a state authority compulsory acquired portion of a farmer’s lands for public road or public housing to the extent that his entitlement to be attributed or ability to use a quota was reduced or eliminated altogether. Obviously this does not arise in this case
242. The substantive independent right which has been put in issue in this case is what is claimed to be the Appellant’s fundamental right to the ownership of property. No issue has arisen concerning the breach of fundamental principles such as non-discrimination.
243. Whether the Applicant’s property rights as guaranteed by the Constitution have been breached falls to be considered in the light of the impact of the 2000 regulations on their position as persons who have been allocated a quota under the system and the disadvantage which they claim to suffer as a result of that impact.
The position of the Applicants :-
244. It is not contested, and it indeed it is part of their case, that each of the Applicants participated for a significant number of years in the milk quota regime and profited therefrom. It is also the case that each have profited, in varying degrees, from a leasing of their quota in respect of milk quantities of which they were not the actual producers.
245. As regards Mr Maher, the options now available to him in the light of the 2000 Regulations are as follows: –
(a) He can resume milk production and benefit fully from the milk quota regime;
(b) He can transfer the quota with land to a relative as defined in the 2000 Regulations. The quota which he leased to Mr Maurice Ryan since 1996 to March 31, 2000 can be sold to Mr Ryan, with or without the leased land;
(c) He can sell the quota under the 2000 milk quota restructuring scheme;
246. This would involve selling at the maximum price fixed by the Minister which is less than he would obtain on the market without a capped prices restraint.
(d) If he sells the quota under the restructuring scheme, his son or daughter will have priority to buy up an equivalent level of quota from future restructuring schemes provided that sufficient quota is available.
247. Mr Maher submits that the only real option to him are either to resume milk production or to sell his milk quota under the 2000 milk quota restructuring scheme. It was submitted that at present he is not in a position to resume milk production as this would be very expensive. Selling the quota to Mr Ryan is not a realistic option as he and Mr Ryan have not been able to agree on terms. In practice, it is claimed, he cannot keep the quota for any of his children and that the option of his children to buy an equivalent level of quota from a future restructuring scheme is subject not only to the availability of quota at that time but also subject to the operation of a restructuring scheme being in place. His only option therefore is to sell the quota under the 2000 milk quota restructuring scheme at a price less than the ‘market value’.
248. Mr Brett and his wife are an elderly couple depending on income from their quota. The options open to Mr Brett are:-
(a) Resume milk production
(b) Sell the quota under the 2000 milk quota restructuring scheme.
249. Because of their age it is not a realistic option for them to resume milk production and the only realistic option open to them is to sell under the restructuring scheme at a price less than the market value of the milk quota.
250. Ms Ryan it is contended is in much the same position. She could not afford at this stage, it is stated, to return to milk production and selling into the restructuring scheme is her only option leading again to a loss by comparison to what she could obtain if she was allowed to sell on the open market.
251. The common elements in the position of the three applicants is that none of them are active producers, all have the option of resuming production of milk on their respective farms and benefiting in full from the milk quota regime, but because of their personal circumstances the resumption of working their farm to produce milk is not a realistic option for them personally. In each case it is claimed that they are realistically only left with one option to sell into the restructuring scheme. This would involve selling at the capped price fixed by the Minister of £1.36 per gallon. In support of the first Applicant’s claim, evidence was tendered on his behalf by way of the affidavit of Mr Noel Corcoran, an auctioneer, to the effect that his milk quota had a value of £3.00 per gallon “on a sale on the open market”. It is not in dispute that, at least at the time of the High Court proceedings, the capped price fixed by the Minister was significantly less than what would be obtainable on the “open market.”
252. In their written and oral submissions the Applicants contended that it would be unrealistic not to regard a milk quota as valuable an asset in its own right as land itself, and that the resulting effect of the price fixed by the Minister was analogous to “to the forfeiture of unused agricultural land at a price significantly below market values or which seriously inhibited the right to lease such an asset. Such a consequence was manifestly in conflict with Articles 40.3.2 and 43 of the Constitution.”
253. First of all it should be said that the 2000 Regulations apply to all persons who were holders of a milk quota so to speak at the time of their entry into force and it is not in issue that they apply to all that class of persons in accordance with objective criteria.
254. Pursuant to those regulations, each of the Applicants is entitled, in common with all other holders of quotas, to retain the quotas attributed to them on resuming production of milk. It is for reasons wholly personal to them that they will not do so.
255. Their quotas are not being forfeited. That the Minister was entitled to make detailed rules concerning restrictions on transfer of quota with land with a view to implementing the community regulations is not in dispute (save obviously as to whether it ought to have been done by way of primary legislation or secondary legislation). In making such rules and in exercising the discretion provided for in Article 8a(b) of Regulation 3950/92 (as inserted by Article 1.10 of Regulation 1256/1999, the Minister was constrained by the objective of “ ensuring that reference quantities are solely attributed to active milk producers ”. As Fennelly, J. points out in his judgment, member state discretionary action is circumscribed by the objectives of the scheme authorising it and that “ in the instant circumstances, Member States are authorised to act only to achieve the aim of ensuring that reference quantities are attributed to producers ”.
256. In my view the adjustments implemented by the 2000 Regulations are internally rational to the objectives to be achieved by the regulatory regime. There is no forfeiture. There is no interference with a substantive right, such as property right.
257. The foregoing measures are no more than regulatory adjustments which are an inherent part of a particular organisation of any market. Clearly no economic operator who participates in such a market can legitimately expect it to remain in a static or frozen form and must accept the consequences of such inherent internal adjustment as governing his or her participation in that market.
258. It seems to me that on any view the interest of the Applicants in their quotas, however it is characterised, have not been substantively diminished subject only to the remaining question which has arisen with regard to sale under the 2000 restructuring scheme. In reality it is that question which has been the focal point of the Applicant’s complaint regarding infringement of their property rights. In doing so they have contrasted the price available in the restructuring scheme by virtue of the capped price fixed by the Minister and that which would be available on what, the first Applicant’s auctioneer referred to as, “ the open market ”. It may be said that “open market” is hardly an apt term since the market in milk and hence its price is a creature of the particular market conditions created by the regulatory regime itself. In reality it is the price which the sale of a quota, based on the maximum fixed price per gallon, (or litres), would obtain on that particular market as a construct of the regulatory regime, which is contested.
259. Article 26 (5) of the 2000 regulations is the provision which authorises the Minister to fix the capped or maximum payment for a quota surrendered in the 2000 Restructuring Scheme. It is also the provision which authorises the Minister to set the reallocation price. It is not this provision which is in issue with regard to the infringement of the Applicant’s property rights but rather the price fixed by the Minister pursuant to that provision and which he announced by way of departmental notice no. 94/1, namely that the maximum price for quota to be offered under the restructuring scheme is fixed at 30p per litre or approximately £1.36 per gallon. The uncontested evidence before the High Court, as set out in paragraph 39 of the affidavit of Mr Evans is that the maximum price was fixed having regard to the objectives contained in Article 8, (the allocation of quotas to active milk producers). In this regard Mr Evans added “ I say and believe that this was a fair price taking into account the interest of milk producers requiring additional quota and those person disposing of their quota. Most of quota surrendered and reallocated in accordance with the scheme will be reallocated to small and medium size producers. In most cases, producers finance the purchase of additional quota by raising loans from lending institutions. Many of the producers will have required quota in previous years, similarly financed. On the other hand, persons selling their quota under the restructuring scheme are likely to have benefited significantly from leasing their quota over a number of years with land or under temporary leasing schemes”
260. It is clear that the price fixed by the Minister is internally and rationally related to the functioning and the continuing existence of the common organisation of the milk market with a view to achieving it’s objectives. Non-active milk producers, such as the Applicants who have a quota and who for reasons personal to them do not wish to or cannot resume actual production of milk are allowed an opportunity to sell at a maximum price which takes account on the one hand of the needs of such persons and on the others of persons who wish to enter the system, acquire a quota or an additional quota and actively produce milk. The so called ‘market value’ relied upon by the Applicants is also an artificial product of the organised market in milk. The potential opportunity to sell at the “market price” generated by the functioning of the quota system to the exclusion of the regime now established by the 2000 regulations (including the price fixed by the Minister under those regulations) is not a property right. Property rights generates notions of proprietorship and dominion. In the context of this scheme I do not consider that the Applicant’s had a proprietary interest in the selling at the particular “market price” which they seek to rely on. For the reasons stated I consider that the Minister, in fixing the price which he did, has acted within the ambit of the common organisation of the milk market and a quota regime and if there can be said to be a market price it is that governed by the maximum price fixed by the Minister. To hold otherwise it would be to deny the Minister his right and duty to exercise his lawful regulatory powers to ensure the proper functioning of the system. It would also wrongfully attribute to the Applicant’s some proprietorial right to determine how the regulatory system in which they have participated should be operated.
261. For these reasons I am of the view that the property rights of the Applicants have not been infringed under national law.
Property Rights – community law: –
262. It is well established that the protection of fundamental rights is an integral part of the community legal order which Member States must respect. The right to property is one of those rights (C-4/73 Nold -v- Commission [1974] ECR 491, para 14 and C-4/79 Hauer -v- Land Rhinland Pfalz [1979] ECR 3727 , paras 17-30). Action on the part of Member States taken within the scope of community law has to comply with community requirements with regards to the protection of fundamental rights (C-22/84 Johnston-v- Chief Constable of the RUC [1986] ECR 1651 , para 18). In the Wachauf case the Court of Justice held that “ since those requirements are also binding on the Member States when they implement community rules, the Member States must, as far as possible, apply those rules in accordance with those requirements ” (C-5/88 Washauf [1989] ECR 2609 para19). The Hauer case made it clear that the compatibility of such measures with the fundamental rights as protected by the community must be determined autonomously in the light of community law alone. [at p.3744].
263. In this context the issue is whether the 2000 regulation made by the Minister infringes community law guarantees on the right to property.
264. Counsel for the Applicants have freely acknowledged that in the Bostock case (cited above) the Court of Justice held, in reaffirming an earlier decision, that “the right to property safeguarded by the community legal order does not include the right to dispose, for profit, of an advantage, such as the reference quantities allocated in the context of the common organisation of a market, which does not derive from the assets or occupational activity of the person concerned …” (at p. 984)
265. That statement of the law still stands and nothing in the subsequent case law of the Court of Justice including its decision in Demand -v- Hauptzollampt Trier (cited above) has qualified it notwithstanding the views expressed by the Advocate General in that case.
266. The Applicants have argued that Bostock concerned the right to dispose of a quota for profit whereas this case is concerned with what is in effect a compulsory acquisition of the State of a quota at a price substantially less than the prevailing market price. As I have already held there is no forfeiture of the quota. It is the personal circumstances of the Applicants which prevent them from utilising the quota attributed to them. What they are concerned with is the price limitation on which they may sell that quota. In my view the situation of the Applicants is governed by the Court of Justice in the Bostock case.
267. There is in any case parallel jurisprudence of the Court of Justice in its approach to the assertion of property rights in the context of the common organisation of the market in the agricultural sector. In this approach the Court of Justice, without declaring that the rights in question are in fact property rights, has dealt with the issue by defining the proper restrictions which in any event maybe placed on the exercise of property rights in the context of a common organisation of the market. In Schrader (C-265/87 [1989] ECR 2237 , the Court stated “ both the right to property and the freedom to pursue a trade or profession … do not constitute an unfettered prerogative, but must be viewed in the light of the social function of the activities protected thereunder. Consequently, the right to property and the freedom to pursue a trade or profession may be restricted, particularly in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the community and that they do not constitute a disproportionate and intolerable interference which infringes upon the very substance of the rights guarantee ”.
268. This approach has been followed in successive cases and repeated in the Demand case where the Court stated, at paragraph 40, “ with regard to more particularly to right to property, which according to the Plaintiff in the main proceedings has been infringed, the Court held, in paragraphs 28 and 29 of Irish Farmers Associations , cited above, that the regulations in question form part of a body of legislation intended to remedy the surpluses on the milk market and therefore correspond to aims pursued by the community in the general interest and that the conversion into a definitive reduction without compensation does not affect the actual substance of that right ”.
269. In the ensuing paragraph it stated “ it must be added, regardless of the legal nature to be attributed to an additional reference quantity, but having regard to the persistence of surpluses, a definitive withdrawal of 4.74% of an additional reference quantity appears to be appropriate and necessary to achieve the aim of that measure, namely an enduring reduction of surpluses ”.
270. Having regard to the position of the Applicants as I have already outlined this case law also applies to their situation however their interest is regarded.
271. Accordingly I conclude that there are no property rights of the Applicants which have been infringed under community law.
272. The issue being clearly governed by decisions of the Court of Justice, there is no obligation to make a reference under the third paragraph of Article 234 of the E.C. Treaty (C-283/81 CILFIT -v- Ministry of Health [1982] ECR 3415, paras. 14,15).
273. Having regard to the conclusions which I have reached and those of Fennelly, J. in his judgment I would dismiss the appeal.
THE SUPREME COURT
Keane C.J.
Denham J
Murphy J.
Murray J.
Fennelly J.
340/2000
BETWEEN
NICHOLAS PHILIP (OTHERWISE MARTIN) MAHER
MALACHY BRETT AND RITA RYAN
APPLICANTS
AND
THE MINISTER FOR AGRICULTURE FOOD AND RURAL DEVELOPMENT IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT delivered the 30th day of March, 2001 by FENNELLY J.
274. Each of the three applicants is a farmer in County Tipperary. Each is entitled to a reference quantity, commonly called a milk quota, for the production of milk on his or her holding. Each of the applicants has for a number of years, by reason of personal circumstances, leased either the relevant holding together with the milk quota or temporarily leased the milk quota itself. These arrangements permitted the applicants to continue to benefit from the milk quota entitlement without actively engaging in milk production. They were carried out in accordance with the milk-quota regulations in force.
275. The situation of the applicants was changed in the year 2000. The first respondent, the Minister for Agriculture Food and Rural Development (“the Minister”), made new regulations. The applicants may either have to resume active production or have their milk quotas sold for restructuring at a price determined by the Minister. They claim that this could not be done in the way the Minister did it, namely by regulations and without any act of the Oireachtas. Furthermore, the applicants say that their fundamental rights in respect of property have been infringed.
276. This case raises in a different form one of the issues which was decided by this Court in Meagher v Minister for Agriculture and Food and others [1994] 1 I.R. 329 ( “ Meagher” ) . It is necessary to consider further the relationship between European Community law and the constitutional prerogative of the Oireachtas as the sole law-making authority for the State.
Common Organisations of the Market
277. The Common Agricultural Policy of the European Community (“CAP”) is one of the foundations of the European Community. Although it is becoming normal to refer to the European Union, all the legal issues in the present case arise under the Treaty Establishing the European Community ( The EC Treaty). I will use the new numbering and form of numbering introduced by the Treaty of Amsterdam. Article 33EC states the objectives of the CAP, which include improved conditions of production, fair standards of living, stable markets and reasonable prices for consumers. It also provides that account should be taken of: “the particular nature of agricultural activity, which results from the social structure of agriculture and natural disparities between the various agricultural regions.”
278. The preferred mechanism for attainment of the objectives of the CAP is, as envisaged by Article 34EC, the common organisation of the market in individual product categories. A common organisation of the market “may include all measures required to attain the objectives set out in Article 33, in particular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising imports and exports.” Article 37EC reserves the power to establish a common organisation of the market to the Council acting on a proposal from the Commission.
279. The basic common organisation of the market in milk products was laid down by Council Regulation (EEC) No 804/68 of 27 June 1968 (OJ English Special Edition 1968 (I), p. 176.) on the common organisation of the market in milk and milk products. Its aim was to guarantee to producers a common target price, supported by certain intervention measures.
280. This system failed, however, to resolve the more or less permanent market imbalance amounting to structural over-supply. The Community responded , inter alia, by introducing the so-called co-responsibility levy, via Council Regulation 1079/99 of 17 May 1977 (OJ 1977, L 131, p.60.) The levy was payable by producers at rates varying from 1.5% to 4% of the target price on all milk sold. (See Case 179/84 Bozzetti v Invernizzi [1985] ECR 2301.) Still the surpluses persisted.
281. This very serious situation furnished the setting for the introduction of what is commonly called either the super-levy or the milk quota system. Council Regulation (EEC) No 856/84 of 31 March 1984 amending Regulation (EEC) 804/68 …… of 31 March 1984 ( Regulation 856/84 ) commences by reciting that the “market in milk products in the Community is suffering from structural surpluses as a result of an imbalance between supply and demand…” In particular, it records in the third recital in the preamble that:
“..despite application of [the] co-responsibility levy, quantities of milk delivered are increasing at a rate such that disposal of surpluses is imposing financial burdens and market difficulties which are jeopardising the very future of the common agricultural policy.”
282. The essentials of the new regime, as it existed up to 1987, are succinctly summarised, and described as “revolutionary,” in the judgment of Murphy J in Lawlor v Minister for Agriculture [1990] 1 I.R. 356, at page 362 ( “Lawlor”). Regulation 856/84 contains the basic elements of the scheme and Council Regulation (EEC) No 857/84 of 31 March 1984 adopts, as its title states “general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector.” The core of the new system was the establishment of a structure of reference quantities at Community, national and producer level. The additional levy or super-levy was designed to penalise excess production by requiring the producer to pay an amount per gallon, the “super-levy” on any excess such that he would incur a loss. Hence the need to relate milk quota to landholding. In the result, the so-called milk quota came to be perceived, rightly or wrongly, as a species of property right enjoyed by those producers who met the initial conditions, or some later adjustments, to be awarded one. The regime was originally introduced for a five-year period, but has been renewed for successive periods. At present it is due to expire on 31 March 2008, but subject to a specific undertaking by the Council to conduct a mid-term review with a view to allowing it to run out after 2006.
283. What is in controversy in the present case is the aspect of the regime that regulates the relationship between the ownership of agricultural land and the milk quota derived from it. The applicants complain of changes to the rules regarding the transfer of holdings with milk quota attached and the rules regarding temporary transfer of milk quotas. These changes followed the adoption of Council Regulation (EEC) No 3950/92 of 28 December 1992 but especially of Council Regulation (EC) No 1256/99 of 17th May 1999. I will consider these changes in detail later in this judgment.
284. The present case centres essentially on the exercise by the State, by means of secondary legislation, of a number of options or discretions conferred by the Community rules. It is important to note from the outset that it is not suggested, in any respect, that the State has committed any infringement of Community law by exceeding the scope of the discretion conferred by those rules. The national rules are contained in the European Communities (Milk Quota) Regulations 2000 ( S. I. No. 94 of 2000) (the “2000 Regulations”) made in exercise of the powers conferred by section 3 of the European Communities Act 1972. The 2000 Regulations make changes in the existing regime insofar as it attaches milk quota to land, make provision for the adding of milk quota so detached from land to the national reserve and provide for the phasing out of the system of temporary transfers.
How the applicants are affected
285. The first-named applicant owns 130 acres of land, of which 36.17 acres have a milk quota of 28,170 gallons. The latter was awarded to him in 1990 under the so-called “Mulder” arrangements. The latter point in no way affects his legal position, except that the “Mulder” quotas were awarded to milk producers who had gone out of production temporarily under a Community scheme and this may explain why this applicant has not for some years been actively engaged in milk production.
286. This applicant leased his land to one Maurice Ryan from 1996 to 2000 at £83 per acre and 25p per gallon. He complains that his options are now limited to :
– renewal of the lease to Maurice Ryan, but nobody else;
– sale of his milk quota to Maurice Ryan only;
– resumption of milk production (which, due to his personal circumstances he is unable or unwilling to do);
– temporary transfer of his milk quota for one year only.
– sale into restructuring, but at a price to be fixed by the Minister.
287. He wishes to keep his land with milk quota until one or more of his children, now aged 14 and 16, are of an age to enter dairy farming if they so wish. He objects to being compelled, as he sees it to sell his milk quota to the Minister at “a pittance” i.e. the price likely to be fixed by the Minister.
288. It may be added that this applicant, if he resumed active milk production, would be entitled, after an interval of three years to sell his land with milk quota just as before.
289. The second-named applicant jointly owns with his wife 77 acres with a milk quota of 24,404 gallons. He is 76 years of age. For reasons of ill-health he has for some years, in part leased his lands with milk quota and, for the remainder (9404 gallons), has temporarily leased the milk quota to the local co-operative creamery.
290. Since he is deprived of the right to continue the practice of temporary transfer and may not lease land and milk quota on the open market, he says his only options are:
– to resume production;
– to sell into the restructuring scheme.
291. The third-named applicant is the owner of twenty acres of land with milk quota of 11,844 gallons. She has for a number of years availed of the right of temporary transfer of the entire of this milk quota to the local co-op. She cannot continue the temporary transfer without the consent of the Minister. She sees her only options as being the resumption of milk production or sale into restructuring on the Minister’s terms.
292. The applicants say that they are placed at a disadvantage by being prevented from leasing land and milk quota and/or temporarily leasing milk quota (where relevant) at open market rates. In particular the Minister has indicated a price for the sale of milk quota into restructuring of £1.36 (said to be about to descend to £1.00) per gallon as against an open-market price of £3.00. This, they claim, amounts to a regime of compulsory purchase of their milk quota.
The Proceedings
293. The applicants applied for judicial review of the 2000 Regulations. Mr Patrick Evans, of the Milk Policy Division of the Department of Agriculture gave on affidavit a very comprehensive account of the milk quota system. The matter was heard by Miss Justice Carroll, in the High Court. The applicants argued that the aspects of the 2000 Regulations complained of, to the extent that they consisted of the exercise by the State of options, represented the making of policy choices and could not, therefore, be considered to be necessitated by membership of the European Communities for the purpose of Article 29.4.7 of the Constitution. Consequently, they could be enacted only by primary legislation. The right of a holder of milk quota to sell his land with quota attached could not be restricted or abolished by secondary legislation. Accordingly, the 2000 Regulations were introduced in contravention of Article 15.2.1 of the Constitution.
294. Miss Justice Carroll dismissed the claim of the applicants. She held that “the Minister was entitled to make the decision that quotas should go to active milk producers which was in accordance with the stated policy under the milk quota council Regulations.”
295. She explained her conclusion as follows:
” In my view , SI 2000 even though it involved the making of choices within the framework of the principles and policies of the milk quota scheme, was necessitated by the obligations of membership of the EU. Precisely because those choices were within the principles and policies of the milk quota scheme, it can equally well be viewed as permitted secondary legislation which is not contrary to Article 15.2.1 of the Constitution.”
296. The applicants have appealed to this Court. The say principally that the learned trial judge erred in law in holding that the Minister was merely executing principles and policies laid down in Community regulations. They state rather that, in making the choices which he did, he made decisions which themselves involved policy choices which could be made only by primary legislation passed by the Oireachtas. They also state that the 2000 Regulations infringe their property rights as guaranteed by the Constitution and/or by Community law.
The applicants’ submissions
297. The applicants claim that the 2000 Regulations are not necessitated, principally because they consist of the exercise of choice, by the obligations of membership of the Community and secondly that they are not within the ambit of principles and policies laid down in the Community regulations.
298. It seems to me more logical to approach these two questions in the reverse order. Firstly, do the 2000 Regulations represent a valid exercise by the Minister of the powers delegated to him considering the Constitution, the European Communities Acts and the Community regulations? If they do, they are permitted and valid and the question of whether they are necessitated does not arise.
299. The applicants submitted that Regulation 1256/99 allowed Member States such broad discretion that it involved for this State the making of significant choices in respect of fundamental principles and policies. It amounted to the return of broad measures of legislative power to the Member States. Wherever Community law does not lay down common rules as part of the common organisation of the market in milk and milk products, the recent case-law of the Court of Justice shows that the national authorities “act in accordance with the procedural and substantive rules of their own national law…” ( Case C- 285/93 Dominikanerinnen-Kloster Altenhohenau v Hauptzollamt Rosenheim [1995] ECR I- 4069, paragraph 26; Case C-292/97 Kjell Karlsson and others v [2000] ECR I-2737). In any event, at a general level, national measures implementing a regulation provided for by the regulation itself are “governed by the public law of the Member State in question.” (Case 230/78 Eridania v Minister for Agriculture and Forestry [1979] ECR 2749, paragraph 33).
300. In such a situation and, in the light of the decision in Meagher, Article 15.2.1 of the Constitution requires that delegated legislation should not stray beyond the principles and policies laid down in the parent act. The constitutional constraints on secondary legislation could not be dispensed with. The applicants also relied on a range of decisions of the High Court and of this Court.
301. Insofar as land transfers and the operation of the restructuring scheme is concerned the Minister has made important policy choices in the 2000 Regulations:
– deciding whether to maintain the link between land and milk quota and on the cases in which the link would cease to apply;
– adopting rules to exempt inter-family transfers from the changes made;
– deciding on the reversion of milk quota to the national reserve in the case of expiring leases;
– deciding on the extent to which active milk producers could transfer land with quota;
– making choices between the five permitted methods of transfer of milk quota set out in Article 8 of Regulation 3950/92 as amended by Regulation 1256/99;
– determining the maximum payment for the surrender of milk quota;
302. The applicants lay special emphasis on the important policy choices made by the Minister in breaking the link between land and milk quota. They contest the existence of any Community policy to favour active milk producers. Article 8a confers a discretionary power only. The exercise of the latter must be subjected to the test laid down by this court in Cityview Press v An Comhairle Oiliuna [1980] I.R. 381. The relevant principles and policies must be set out in the governing statute. In the present instance, they are not set out in the Community Regulations so that the 2000 Regulations represent an impermissible exercise by the executive of legislative power and are, for that reason, invalid.
303. Moreover, the 2000 Regulations consist of the exercise of options or the making of choices of a fundamental kind. Even though the occasion for their making derives from Community legislation, they are not mandatory or obligatory. Hence, they are not “necessitated by the obligations of membership of the European Union or of the Communities.” Consequently, they do not benefit from the exemption conferred by Article 29.4.7 of the Constitution from scrutiny for any infringement of its other provisions, in particular Article 15.2.1. In this context, the Court was invited to consider the change made in the course of the legislative process leading to the passing by the people of the necessary constitutional amendment to permit accession by the State to membership of the Community from “consequent upon” to “necessitated” in the wording now found in Article 29.4.7 of the Constitution.
304. Although the Court in Meagher upheld the constitutionality of the European Communities Act, 1972, in conferring wide power on the State to implement provisions of Community law by using the forms of delegated legislation, the judgment of the Court in that case clearly envisaged circumstances in which an exercise of that power could be held to be unconstitutional. The applicants took issue with the judgments in Meagher and certain High Court judgments, as well as the judgment of the learned trial judge insofar as they gave a broad meaning to the expression, “necessitated.”
305. If the applicants fail in all of their arguments aimed at impugning the validity of the 2000 Regulations, they say that the latter constitute an improper invasion of their rights of property, specifically in their rights in respect of milk quota. As they represent the exercise of discretion, they are not “necessitated” and not protected by Article 29.4.7 from other provisions of the Constitution. They fairly concede that the case-law, specifically Case 2/92 R v Ministry of Agriculture, ex p. Bostock [1994] ECR I- 995, (“Bostock”) is against them. Milk quota is not considered by the Court of Justice to be a property right. They cite a recent opinion of Advocate General Ruiz-Jarabo Colomer (Case C-186/96 Demand v Hauptzollamt Trier [1998] ECR I-8529) to suggest that change is possible. They also say that Community law does not prevent national law from offering a higher level of protection (Case C-63/93 Duff v Minister for Agriculture [1996] ECR I-569, Advocate General Cosmas’ Opinion, paragraph 60, and Duff v Minister for Agriculture [1997] I.R. 22.)
The respondents’ submissions
306. The respondents take issue with the applicants in respect both of the permissibility of the 2000 Regulations and their necessity.
307. The sole purpose of the 2000 Regulations was to give effect to Regulation 3950/92 and Regulation 1256/99. These have general application in Irish law by virtue of Article 249EC. Their role is analogous to an act of the Oireachtas and all relevant principles and policies are to be found in this basic enabling legislation. The 2000 Regulations are thus intra vires the powers conferred by section 3 of the European Communities Act, 1972 (“the act of 1972″). They were, in any event, necessitated by the obligations of membership of the European Community.
308. The respondents contend, in particular, that Regulation 3950/92 and Regulation 1256/99 disclose the existence of Community policies :
– favouring the putting of milk quota in the hands of active milk producers;
– reducing the costs of production;
– improving the structure of milk production.
309. The respondents contest, in particular, the applicants’ claim that a large body of legislative power has been returned to the Member States. All national rules must be approved by the Commission. In practice, they are always discussed in advance. The national rules at issue in this case are detailed rules and make limited permissible variations in the common organisation of the market.
310. Significant exceptions to the rule of the transfer of land with milk quota existed from 1984 and have been progressively extended. The changes made by Regulation 1256/99 were only the last in a series of exceptions. The Minister was constrained by the very precise objective set out in Article 8a, i.e., “the aim of ensuring that reference quantities are solely attributed to milk producers” as well as the general principles of Community law. Furthermore, the Minister has no power to determine the destiny of milk quota which he permits not to be transferred with land. It must, in accordance with Article 7(1), be added to the national reserve.
311. Similarly, restructuring has long been expressed as an objective of the Community regulations, as can be seen, in particular, from Article 8 of Regulation 3950/92 Restructuring has existed before and independently of changes in the rules regarding the transfer of quota.
312. This State has not exercised the option not to implement temporary transfer, as permitted by Article 6(2) of Regulation 3950/92 . It is accordingly implementing the mandatory obligation expressed in Article 6(1) to introduce a temporary leasing scheme within the scope of very limited options. Reliance is placed on the definition of producers to show that the Minister , in Regulation 27(3) was implementing Community policy. The Applicants are not producers.
313. In accordance with the case-law of the Court of Justice, in particular Bostock, the enjoyment of a reference quantity or milk quota does not amount to a property right.
The Constitution: the Oireachtas as Sole Legislator
314. The main issue is whether the 2000 Regulations represent impermissible and invalid legislation, taking the form of a statutory instrument, in circumstances where primary legislation is required. The Constitution, the act of 1972 and the EC Treaty all have a bearing on the issue. It is also necessary to consider the principal authorities, especially Meagher.
Article 15.2.1 of the Constitution provides:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
315. An enormous body of subordinate laws is, nonetheless, constantly passed by means of statutory instruments, regulations and orders. This type of delegated legislation is, by common accord, indispensable for the functioning of the modern state. The necessary regulation of many branches of social and economic activity involves the framing of rules at a level of detail that would inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is better left to the implementing rules. They are not, in their nature such as to involve the concerns and take up the time of the legislature. Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to meet changing circumstances. Without suggesting that a different approach is required for the present case, by reason of the fact that it concerns the implementation of European Community legislation, it is obvious that the adoption of detailed rules regulating production and trade in agricultural products is a particularly notable example of the exigencies of this type of law-making. There is, for example, an obvious need to be able to react rapidly and often severely to sudden trading problems or so as to protect human and animal health in the face of the outbreak of disease.
316. On the other hand, it is obvious that secondary legislation largely by-passes parliamentary scrutiny and the democratic process. Thus, the courts have found it necessary to strike an appropriate balance between the protection of the exclusive law-making domain of the Oireachtas and the proper function of the executive. The distinction is a functional one, aimed at designating the proper bounds of legislative and executive power. Delegated legislation is permitted and does not infringe Article 15.2.1, provided that the principles and policies which it is the objective of the law to pursue can be discerned from the act passed by the Oireachtas so that the delegated power can only be exercised within the four walls of the law. This serves the double purpose of preserving the legislative prerogatives of the Oireachtas and assuring those affected by orders or regulations that the courts may be asked to police the bounds set by the law and, if necessary, to declare them to be ultra vires the powers of the Minister or other delegated authority.
Cityview Press remains the leading authority on the permissible bounds of delegation of legislative power. It concerned powers to impose a levy to finance ANC, the industrial training authority. ANC could, inter alia , fix the amount of the levy as well as the categories of persons who were bound to pay it. The judgment of the Court, given in response to a claim that the empowering statute was unconstitutional, was delivered by O’Higgins C.J.. The leading passage reads as follows:
“…the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving of effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so by the Constitution. On the other hand, if it be within the permitted limits- if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
317. In the event, the Court held that the act in question contained “clear declarations of policies and aims” and that there had been no “unconstitutional delegation of authority.”
Apart from Meagher, the principal recent authority of this Court is Laurentiu v Minister for Justice [2000] I.L.R.M. 1. That case is notable for the discussion in the leading majority judgments of Denham and Keane JJ of the antecedents of the test based on principles and policies in the common law countries and its place in the constitutional scheme of separation of powers. Denham J stated at page 22:
“There are limits to permissible delegation by the organs created by the Constitution . The Oireachtas may not abdicate its power to legislate. To abdicate would be to impugn the constitutional scheme. The scheme envisages the powers (legislative, executive, judicial) being exercised by the three branches of government-not any other body. The framework of the Constitution, the separation of powers, the division of power, retains a system which divides by function the powers of government to enable checks and balances to benefit democratic government. Also, in accordance with the democratic basis of the Constitution, it is the people’s representatives who make the law, who determine the principles and policies. The checks and balances work as between the three branches of government- not elsewhere. Thus Article 15.2 must not be analysed in isolation but as part of the scheme of the separation of powers in the Constitution.”
318. This passage contains a proper emphasis on the essential part of the Oireachtas in preserving and assuring the democratic nature of the State. Article 15.2 also performs the function, recalled by Barrington J in his dissenting judgement of striking “a balance between the rights of individual citizens and the exigencies of the common good.”
319. As to the application of the test of principles and policies, Denham J went on to point out that: “Each case depends on its own facts and requires that the principles and policies ….be set out in the legislation.”
320. In the case in question, it was held that the Aliens Act, 1935 failed the test, since it contained no discernible principles or policies at all. The test, however, remains intact. It provides the basis for deciding whether a given legislative act abdicates the exclusive authority of the Oireachtas. It is intrinsic to the test, and is important in the present case, that the named executor of delegated authority has power and discretion to make decisions within the four walls of the governing statute. For example, The State (Sheehan v Government of Ireland [1987] I.R. 555 shows that a discretionary power may, in certain circumstances, be so expressed that the decision whether to exercise it at all may be postponed indefinitely .
Delegated legislation: Community Law
321. The case which is most material to the present discussion is Meagher and not merely because it concerned the implementation in Irish law of a directive adopted by the Community legislature.
322. Before embarking on a consideration of the relevance of Meagher to the present case, it is necessary to recall the changes to the constitutional and legal structure of this State resulting from membership of the European Communities and later the European Union and to refer to the provisions of the EC Treaty which are principally concerned. The import of Meagher cannot be considered in isolation.
323. The first important constitutional provision is Article 29.4.3 introduced by the Third Amendment to the Constitution in 1972 under which it was provided that “The State [might] become a member of the ………European Economic Community.” Article 29.4, paragraphs 3, 4, and 5, respectively authorised the State by means of successive constitutional amendments to ratify the Single European Act in 1987, the Treaty on European Union (the Maastricht Treaty) in 1992 and the Treaty of Amsterdam in 1997. It emerges clearly from the judgment of this Court in Crotty v An Taoiseach [1987] IR 713 that the legislative capacity of the Council (and, since then, increasingly the European Parliament as co-legislator) seriously encroaches on the legislative sovereignty of the State.
324. Article 29.4.7 provides in addition that:
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by the institutions thereof, or by the bodies competent under the Treaties establishing the Communities, from having the full force of law in the State.”
325. The Community regulations giving effect to the common organisation of the market in milk and milk products are “first pillar Community measures, i.e. they were adopted under the EC Treaty. Accordingly, it is unnecessary, in the present case, to have regard to any acts or measures adopted under the Treaty on European Union. Furthermore, it is probable that the authority to ratify the respective Treaties, in particular, the EC Treaty provide sufficient basis, in Community law terms, for the full effect in Irish law of directly applicable Community measures, even without the additional protection provided by Article 29.4.7.
326. The first two paragraphs of Article 249EC provide:
“In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all the Member States.”
327. The first paragraph of Article 10EC (formerly Article 5), which is also relevant, provides:
“ Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.”
328. Community regulations are directly applicable; their entry into force and their application are “independent of any measure adopting [them] into national law.” ( Case 94/77 Zerbone v Amministrazione delle Finanze dello Stato [1978] ECR 99, paragraph 23.) As Denham J. explains, in different words, they do not require any national act of implementation for their binding effect. Indeed, where they are, in their own terms, capable of being directly applied, it has been said that: “ Member States must not adopt or allow national institutions with a legislative power to adopt a measure by which the Community nature of a legal rule and the consequences which arise from it are obscured.” ( ibid. paragraph 26.)
329. Where, however, as frequently happens especially in the case of a common organisation of the market, regulations, in addition to being directly applicable, allow Member States discretion in their implementation, some national act of implementation or transposition will be required. Then the principle cited by the applicants from the judgment of the Court of Justice in Eridania comes in. The Court there, at paragraph 34 of the judgment, said:
“The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures. In the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question; however, the direct applicability of the measure empowering the Member State to take the national measures in question will mean that the national courts may ascertain whether such national measures are in accordance with the content of the Community regulation.” .
330. Clearly, the last sentence refers to the right of the courts of the Member States to refer questions of interpretation to the Court of Justice pursuant to Article 234EC (then Article 177 of the Treaty).
331. Counsel for the applicants drew attention specifically to the remark of Advocate General, at page 2787:
“But where a provision in Community legislation confers a discretion on a Member State it is open to that Member State to enact legislation for the purpose of implementing that provision. To what extent such legislation may be necessary , o r administrative action may suffice, is a matter to be determined by that Member State ’s own law, including where appropriate its constitutional law. ”
332. As was observed succinctly by Lord Hoffman, “Community law is indifferent to the internal arrangements of power within a member state.” (R v Secretary of State for Heath [2001] 1 All ER, 850 at 860) .
333. These passages must be read with those, also cited by the applicant, from the more recent case-law on milk quotas. It will suffice to quote the following from the judgment in Dominikanerinnen-Kloster (paragraph 26):
“It should, first, be recalled that …….. the Court [has held] that according to the general principles on which Community law is based and which govern the relations between the Community and the Member States , it is for the Member States, by virtue of Article 5 of the Treaty, to ensure that Community regulations are implemented within their territory. In so far as Community law , including its general principles, does not include common rules to this effect, the national authorities when implementing Community regulations act in accordance with the procedural and substantive rules of their own national law; however, these national rules must be reconciled with the need to apply Community law uniformly so as to avoid unequal treatment of producers and traders. Furthermore, such rules must not have the effect of making it virtually impossible to implement Community regulations……”
334. The applicants claim that a broad measure of competence has been returned to the Member States will be examined on its merits by reference to Regulation 3950/92 and Regulation 1256/99. However, Member States have limited scope for independent action when dealing with milk quotas. They cannot take action to grant them to fill a gap left by the amendment of a Community Regulation (Case C-127/94 R v MAFF esp. Eckroyd [1996] ELR I – 2741.) I believe it is possible to say that the passages just quoted do not give any support to the applicants’ claim that Member States act autonomously in making choices when implementing Community rules. They establish the following propositions.
335. Firstly, in the absence of common rules, or where Community law authorises such action, Member States may adopt their own national rules. Secondly, by virtue, inter alia, of Article 10EC (formerly Article 5 of the Treaty), Member States must ensure the implementation of Community regulations and take no action to undermine them. Thirdly, in doing so, they are implementing Community law, with the result that general principles of Community law, notably the principle of equal treatment but also the fundamental rights protected in the Community legal order must be respected. Fourthly, Community law is indifferent as to the national method of implementation ( subject to the principle of effectiveness as explained in the passage from Dominikanerinnen-Kloster as well as the principle of equivalence, i.e., that rights under Community law are treated no less favourably than those granted by national law). For present purposes, that indifference relates to the choice between legislation and regulation.
336. In summary, Member States, acting within the framework of Community regulations, exercise powers or discretions which are conferred on them for the furtherance of the objectives of the scheme in question. Community law does not require any particular form of implementation. That is a matter for the legal system of the Member State concerned, except that the implementation must not have the effect of impeding the effectiveness of Community law.
337. The European Communities Act, 1972 contains the following provisions:
“2. From the 1 st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.”
“3.(1) A Minister of State may make regulations for enabling section 2 of this act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions for the repealing, amending or applying, with or without modification, other law, exclusive of this Act.”
338. Whatever view might be taken by the Court of Justice regarding the direct effect of treaty provisions or acts of secondary legislation, section 2 was clearly an essential part of the machinery for giving effect to those provisions as a matter of Irish law, in view of
339. Article 29.6 of the Constitution. For the purposes of the present case, it has the effect of making Articles 10EC and 249EC part of the law of the State.
340. It is the effect of section 3(1) which is in issue. The applicants accept, as they must, that the act of 1972, as was found in Meagher is compatible with the Constitution. However, they rely on the reiteration in the judgment of the Court, on that issue, of the principle that legislation must be so interpreted as not to be in conflict with the Constitution, in particular that an act cannot be interpreted so as to invade the exclusive legislative domain of the Oireachtas. Finlay C. J., delivering the judgment of the court stated at page 352:
“In so far as it may be possible to point to hypothetical instances of certain types of laws, measure or acts of the Community or Union which in their implementation or application within the national law might not, as to the method of implementation or application, be necessarily carried out by ministerial regulation, but rather should have been carried out by enactment of law by the Oireachtas, the Court is satisfied, without deciding that such instances do occur, that the principles laid down by this Court in the decision of East Donegal Co-Operative Livestock Marts Ltd. v. Attorney General [1970] I.R. 317, must be applied to the construction of the impugned subsection in the manner in which it was applied by the decision of this Court in Harvey v. The Minister for Social Welfare [1990] 2 I.R.. 232 to the construction of the section of the statute impugned in that case, namely, s. 75 of the Social Welfare Act, 1952. That principle is that it must be implied that the making of regulations by the Minister, as is permitted by the section, is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to the section, contravene any provision of the Constitution.
“If therefore in such an instance challenge were to be made to the validity of a ministerial regulation having regard to the absence of necessity for it to be carried out by regulation instead of legislation and having regard to the nature of the content of such regulation it would have to be a challenge made on the basis that the regulation was invalid as ultra vires being an unconstitutional exercise by the Minister of the power constitutionally conferred upon him by the section.”
341. The early part of this passage might be read as implying that, in some circumstances, the implementation of Community law is necessarily, by reasons of the demands of Community law itself, carried out by regulation. It is clear, however, from the second quoted paragraph that this reading is not what was intended; in any event, as shown above, Community law makes no such demands. The issue of “necessity” is appropriately considered by reference to the content, not the form, of the instrument.
342. Consequently, it is perfectly possible for the courts, at least at the level of general principle, to apply the principles and policies test laid down in the case-law on Article 15.2.1 without any conflict with Community law. That test is designed, as is clear from the judgment of Denham J in Laurentiu, to protect the democratic basis of government, a principle which finds expression in the EC Treaty and in the judgments of the Court of Justice. Article 6 of the Treaty on European Union records that:
“The Union is founded on the principles of liberty, democracy , respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”
343. The second part of the decision in Meagher deals with the application of the principles and policies test to the implementation by means of a regulation made under the act of 1972 of Community law in the form of a Council directive. Blayney and Denham JJ delivered individual judgments, with which Finlay C. J. and O’Flaherty and Egan JJ agreed.
344. The two directives at issue concerned the prohibition of use of certain animal-growth hormonal substances. The State had included respectively a power to search farms and an extension of the time fixed by statute for commencing prosecutions of offences in ministerial implementing regulations. Blayney J decided that the directives could not be implemented without the first provision and that an extension of the time for prosecution was necessary. He reiterated the principle of the supremacy of Community law over national law and held that the national measures in controversy were “necessitated by the directive.” His determination of the issue followed from an analysis of Community law provisions . The respondents argued in this case that, on a true analysis of the Community directives, Ireland as a Member State had discretion and was not bound to adopt the particular implementing measures and that the Court still found them to be “necessitated”. That is, in my view, to miss the point and to confuse the interpretation of Article 29.4.7 of the Constitution with the interpretation of Community law. The fact is that, rightly or wrongly, Blayney J held that the provisions in question were required by Community law . Denham J shortly expressed the same opinion (page 363). This result is the same as would have followed if questions of interpretation of the relevant provisions had been referred to the Court of Justice and the latter had ruled that the adoption of the two provisions in controversy constituted Community-law obligations of the State.
345. Denham J made it clear, however, that this was not the end of the matter. She said:
“If the directive left to the national authority matters of principle or policy to be determined then the “choice” of the Minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined by the national authority, where the situation is that the principles and policies were determined in the directive, then legislation by a delegated form, by regulation, is a valid choice. The fact that an act of the Oireachtas has been affected by the policy in a directive, is a “result to be achieved” wherein there is now no choice between the policy and the national act . The policy of the directive must succeed. Thus where there is in fact no choice on a policy or a principle it is a matter appropriate for delegated legislation. If the directive or the minister envisaged any choice of principle or policy then it would require legislation by the Oireachtas.”
Meagher is clear authority for the proposition that, where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, then Article 15.2.1 of the Constitution is not infringed by the use of ministerial regulation to implement it. Both the judgment of the Court and that of Denham J expressly preserve the force of that provision, as it has been interpreted, for cases where such an obligation does not exist. The “principles and policies” test applies mutatis mutandis where the delegated legislation represents an exercise of a power or discretion arising from Community-law secondary legislation. It applies with particular clarity to the case of directives where Article 249EC leaves the choice of forms and methods to the Member States. The question will not arise so frequently in the case of regulations since they are directly applicable without the need for national implementing measures. Where a regulation leaves open a range of choice, the test will apply. Each case will have to be decided on its own merits. The mere existence of a Community regulation implies some sort of Community policy. Article 253EC obliges the Community legislature to state in such acts “the reasons on which they are based.” Member State implementing measures come inherently within the scope of such a stated policy. However, the principle of the applicability of the test is a recognition of the possibility that the choices left to the Member States may be of such significance in their nature or scope or so unconnected with Community policies and aims that they require legislation and that resort to regulations in such cases would infringe Article 15.2.1. On its facts, Greene v Minister for Agriculture [1990] 2 I.L.R.M. could have been such a case, though Article 15.21 was not in issue. The Community rules allowed Member States to “lay down additional or restrictive conditions” one of which was held by Murphy J. to infringe Article 41 of the Constitution.
346. I should say that I fully agree with the judgment of the Chief Justice in his analysis of Meagher and with his conclusion that none of the measures impugned in this case was “necessitated by the obligations of membership.” I also agree, consequently, that the essential question is whether the Minister was in breach of Article 15.2.1 of the Constitution. If he was, the 2000 Regulations will be invalid, since, unlike those involved in Meagher, they are not “necessitated”.
Applying the test
347. I will deal, firstly, with the change in the rules linking land and milk quota. From the outset, the Community rules envisaged that, in general, agricultural land used for milk production would be transferred only with the relevant milk quota attached. The original provision was Article 7(1) of Regulation 857/84, which provided:
“Where an undertaking is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined.”
348. There were differences between Formula A (where the milk quota is allocated to producers) and Formula B, adopted in Ireland, (where it is allocated to purchasers). However, rules were formulated to ensure that the same rules would apply where Formula B was adopted. (See Commission Regulation (EEC) No 1374/84, Article 5 and Murphy J in Lawlor, page 3640).
349. It may be noted that this provision was not founded on any explicit reasoning to be found in any of the recitals in the preamble to the regulation. The respondents’ argument that there were significant exceptions from the beginning to the rule of transfer of land with milk quota is not convincing. Article 7(3) merely provided part of the reference quantities might be added to the national reserve. Article 4, which was also invoked, authorised Member States to compensate milk “producers undertaking to discontinue milk production definitively” and to add the amounts so freed to the national reserve. Ireland did not, in fact, exercise these options. I am similarly unconvinced by a number of other examples of special exceptions which were cited from the years 1985 to 1987. It seems clear that the Community, as of 1984, opted firmly for a policy that land could be transferred only with the milk quota attached.
350. Regulation 857/84 was repealed by Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector. The fourteenth introductory recital to that Regulation states:
“Whereas when the additional levy system was brought in in 1984, the principle was established that when an undertaking was sold, leased or transferred by inheritance, the corresponding reference quantity was transferred to the purchaser, tenant or heir;
whereas this original decision should not be changed; whereas, however, national provisions to safeguard the legitimate interests of the parties should be implemented in all cases of transfer, where the parties are not in agreement;”
351. In the event, Article 7 was re-enacted by Regulation 3950/92 with some changes which are immaterial to the present case. Article 8 of Regulation 3950/92 provide for some other limited exceptions such as transfer to the national reserve when land is transferred for improvement of the environment. It also authorised Member States, with a view to restructuring of milk production, to permit transfer of reference quantities without the corresponding land “with the aim of improving the structure of milk production at the level of the holding.” Generally, however, the link between land and milk quota was maintained.
352. This prohibition on sale or transfer of land without milk quota, because it was effected by a regulation was, of course, directly applicable in Irish law and needed no further enactment to give it effect. It was, nonetheless, reinforced, as the applicants point out, by penal provisions in Regulation 12(1) of the European Communities (Milk Levy) Regulations, 1985 (S. I. No. 416 0f 1985) and by Regulation 4 of the European Communities (Milk Quota) Regulations , 1995 (S. I. No 266 of 1995)( the “1995 S.I.”)
353. Council Regulation (EC) No 1256/99 of 17 May 1999 amending Regulation (EEC) No Regulation 3950/92 ……. authorised radical change in the rules regarding the maintenance of the link between land and milk quota on sale or transfer.
354. Article 8 of Regulation 1256/99 replaces Article 7(1) of Regulation 3950/92 as follows:
“Reference quantities available on a holding shall be transferred with the holding in the case of sale, lease or transfer by inheritance to the producers taking it over in accordance with detailed rules to be determined by the Member States….”
355. At the same time, Article 1(10) of Regulation 1256/99 inserts a new Article 8a into Regulation 3950/92, which provides:
“Acting in compliance with the general principles of Community law, Member States may take the following measures, with the aim of ensuring that reference quantities are solely attributed to active milk producers:
(a)…..
(b) Member States may decide not to apply the provisions on transfer of reference quantities in Article 7(1).”
356. The changes in the rules made by the Minister, the 2000 Regulations, regarding attachment of land to milk quota commence with Regulation 5(1) which provides, in relevant part:
“(1) Subject to the exceptions provided for in Regulations 6, 7, 8, 9, 10, and 11, where any holding, or part thereof, is transferred the milk quota attached to that holding or part thereof shall not be transferred to the person to whom the transfer is made;
“(2) Where there is a transfer of land to which milk quota attaches then, such milk quota shall be added to the national reserve unless Regulation 6, 7, 8, 9, 10, 11, 19, 20, 21, or 22 have been availed of …”
357. This amounts to a clear and explicit decision by the State to avail of the power given by Community law to break the link between land and milk quota. There are a number of exceptions. The applicants say that both by deciding to exercise that option and in choosing the exceptions, the Minister was impermissibly legislating.
358. It is crucial to this issue to discern whether, in making this decision, the State is pursuing a Community objective or, recalling the applicants’ contention that power has been returned to the Member States, a purely national one. The power not to apply the provisions of Article 7(1) is given by Article 8a, inserted by Article 1(10) of Regulation 1256/99. That Article permits Member States to take such action “with the aim of ensuring that reference quantities are solely attributed to active milk producers…” This reflects policy expressed in the fourth recital in the preamble:
“Whereas the experience with the additional levy has shown that the transfer of reference quantities through legal constructions such as leases which do not necessarily lead to a permanent allocation of the reference quantities concerned to the transferee, can be an additional cost factor for milk production hampering the improvement of production structures; whereas, in order to strengthen the reference quantities ’ character as a means of regulating the market of milk and milk products, the Member States should be authorised to allocate reference quantities, which have been transferred through leases or comparable legal means, to the national reserve for re-distribution, on the basis of objective criteria to active producers in particular to those who have used them before; whereas Member States should also have the right to organise the transfer of reference quantities in a different way than by the means of individual transactions between producers; whereas it should be explicitly provided, in particular with a view to taking account adequately of existing legal rights, that, when using these authorisations, Member States are to take the necessary measures to comply with the general principles of Community law;..”
359. I believe that this recital and the general scheme of the milk quota regime demonstrate that the State is acting as a delegate of the Community in making the choice to separate land and milk quota. As is shown by the case-law, the fact that Community regulations authorise the Member States to exercise discretion does not take action of the latter kind outside the scope of the Community regime. Member State discretionary action is circumscribed by the objectives of the scheme authorising it. The milk quota is itself a creature entirely of Community law. Member States are bound, by virtue of Article 10EC (formerly Article 5 of the Treaty), to ensure that Community law is implemented; national rules must comply with the general principles of Community law and the particular rules which apply. In the instant circumstances, Member States are authorised to act only to achieve the aim of ensuring that reference quantities are attributed to producers. Any action by the State in pursuit of a an unauthorised objective would be susceptible of challenge, by means of an infringement action pursuant to Article 226EC in the Court of Justice as being contrary to the terms of Regulation 1256/99.
360. Thus, applying the principles and policies test on the basis that Regulation 1256/99 stands in the place of an act of the Oireachtas, I believe that the State, in adopting Regulation 5 of the 2000 Regulations was exercising a power expressly conferred and for the purpose for which it was given.
361. In the light of that conclusion, it is probably not necessary to give separate consideration to the exceptions. They consist of modifications to the departure from the link of land and milk quota. However, they were argued as constituting distinct legislative choices.
362. The principal exceptions which have been canvassed in argument before the Court are those in Regulations 6, 7, 9 and 10. It will be sufficient to refer to these for the purpose of evaluating the extent and the nature of the legislative power exercised by the Minister in making the 2000 Regulations.
363. Regulation 6 provides that the “ milk quota attached to a holding shall be transferred” in the case of “sale, lease, gift or inheritance by a person to a relative of that person…,” a term defined in Regulation 6(2). It includes spouses, parents, children, brothers, sisters, grandparents, grandchildren, uncles and aunts. It is suggested that this also involves the making of a legislative choice not contemplated by Community law. It is not clear that the applicants have any independent interest in challenging this provision. It would not benefit them if it were annulled. Their claim is in reality that the Minister did not have the power, by regulation, to end the link of land to milk quota in the event of sale or transfer. For what it is worth, however, I believe that this exception would be held to fall comfortably within the power conferred on the Member States by the regulation. I have already referred to the inclusion of “the social structure of agriculture” among the considerations relevant to the common agricultural policy. If it is correct to say that Member States are authorised by Community law to restrict or end the rule that milk quota transfers with land, there is no basis – and none has been suggested – for saying that Community law would regard it as impermissible to make an exception for certain defined family transactions. The wording of Article 7(1) has at all times included “transfer by inheritance” among the cases where the link would apply. There is enough evidence in the case-law cited to the Court ( Case C-313/89 Rauh [1991] ECR I- 1647; Case C-44/89 von Deetzen v Hauptzollamt Oldenberg [1991] ECR I-5119 “von Deetzen” ) to show, not surprisingly, that the Court of Justice interprets provisions of Community law so as to favour family transactions. As already noted, Article 33EC requires account to be taken of “the social structure of agriculture,” which unarguably includes the family basis of farm ownership. The relaxation of the new rule to favour family transactions accords with that aim.
364. By virtue of Regulation 7, where a producer (or his legal personal representative) can obtain a certificate from the Minister, inter alia, that he has produced milk on the holding for a period of three years prior to the milk quota year in which the transfer is proposed, he may continue to transfer land with quota. This patently favours the active milk producer and accords with the objective of Article 8a and the sixth recital. This provision also demonstrates that removal of the land/milk-quota link is by no means as draconian as has been suggested. It remains open to each of the applicants, as they acknowledge, to resume production of milk on their own land and by this means and to regain the right to sell their land with milk quota.
365. Regulation 9 permits the purchase of land by a lessee of land and quota to be made with or without milk quota on the expiry or earlier determination of a lease. The lessee must, himself be a producer. This also favours the active milk producer.
366. Regulation 10 permits the renewal of an existing lease on its expiry, in which case the milk quota is transferred to the lessee for the term of the renewal. This provision cannot be the subject of complaint. Apart form favouring milk production, it represents the sort of fine regulatory choice which fits easily within the scope of action which can be taken without infringing Article 15.2.1 of the Constitution.
367. For these reasons, I do not think that the 2000 Regulations infringe Article 15.2.1 of the Constitution, in respect of the changes regarding the transfer of land with milk quota.
368. I should explain the purpose of the detailed consideration I have given to the Community provisions. It has never been contested that the 2000 Regulations were, in Community law terms, within the scope of the discretion available to the State. Therefore, I am not considering an issue of Community law. If I were, the court might be obliged to refer to the Court of Justice. I am judging, rather, whether the scope of the discretion conferred by Community law in regulations which become part of national law was so independent of principles and policies laid down by those Community regulations, as to place the State in conflict with Article 15.2.1 of the Constitution.
369. At this point, it is also necessary to consider the Communit y rules regarding temporary transfer of milk quotas. They, to some extent, also involve separation of land and milk quota. Temporary transfers were first authorised by Council Regulation (EEC) No 2998/87 of 5 October 1987 amending Council Regulation 804/68 … This recites that “experience has shown that certain producers do not intend, over a 12-month period, using up all their individual reference quantities [and that] … Member States should be authorised to place at the disposal of other producers for the 12-month period in question, the quantities which are not going to be used by other producers who are entitled thereto;” On this premise, Article 1 inserted a new Article 1a in Regulation 804/68 as follows:
“1a. Member States may authorise, at the beginning of each 12-month period and for the duration thereof temporary transfers of that part of the individual reference quantity which the producer who is entitled thereto does not intend to use .
Member State s may limit the transfer operations to certain categories of producers and on the basis of the milk production structure in the regions or collecting areas concerned.”
Regulation 3950/92 recited that “ ….the temporary transfer of parts of individual reference quantities in Member State s which authorised this ha [d] proven to be an improvement to the scheme [and that] this facility should therefore be extended to all producers [though its] implementation ……….. should not stand in the way of further structural change and adjustment , nor fail to take account of the resulting administrative difficulties;”
370. Consequently, Article 6 of Regulation 3950/92 renewed the power to permit temporary transfer, transforming it, however, into an obligation, and adding that Member States might “determine to what extent transfer operations may be renewed.” Furthermore, Article 6(2) provided:
“Any Member State may decide not to implement paragraph 1 on the basis of one or both of the following criteria:
– the need to facilitate structural developments and adjustments,
– overriding administrative needs.”
The temporary transfer provisions were implemented in the State by Regulation 16 of the 1995 S.I. This delegated to the Minister the power to determine the categories of producers who might benefit and, more relevant to the present case, “the extent to which temporary transfers ……… [might] be renewed.” The public were to be informed by notices in a National newspaper.
371. Regulation 1256/99 made no significant change in the temporary transfer rules. It did, however, restate Article 6(1) of Regulation 3950/92 as follows:
“Before a date that they shall determine and by 31 March at the latest, Member States shall authorise, for the 12-month period concerned, temporary transfers of individual reference quantities which producers who are entitled thereto do not intend to use.”
372. Important restrictions are imposed, by Regulation 27 of the 2000 Regulations, on the system of temporary transfers as it has hitherto operated in the State.
373. Paragraphs (1) and (2) ostensibly preserve the right of a milk quota holder to make a temporary transfer of “such part of his or her milk quota as he or she does not intend to use during that milk quota year.” Paragraph (3), however, denies this right where the holder has “neither made milk deliveries to a purchaser, or sold milk or milk products directly for consumption, during any three successive milk quota years since 1 April 1997 and who made a temporary transfer of his quota under Regulation 16 of the Regulations of 1995 or under paragraph (2) during each of the 3 milk quota years in question..”
374. Paragraph (4), on the other hand permits a person who, likewise, has “neither made milk deliveries to a purchaser, or sold milk or milk products directly for consumption,” but has leased the land and milk quota for the same period to make a temporary transfer but for one year only.
375. Paragraph (5) enables the Minister, on application, to approve a temporary transfer for one further milk quota year only by a person affected by paragraph (3) or (4), where exceptional circumstances have caused the failure to deliver milk.
376. The respondents have made it clear that the State has not exercised the option granted by Article 6(2) of Regulation 3950/92 not to implement Article 6(1). Consequently, it is said, the State was obliged by Article 6(1) to “authorise … temporary transfers of individual reference quantities which producers who are entitled thereto do not intend to use.” However, it is further argued that the applicants do not come within the definition of producer. That term is defined in Article 9 of Regulation 3950/92 as a “natural or legal person …… farming a holding within the geographical territory of the Community :
– selling milk or milk products directly to the consumer,
– and/or supplying the purchaser.”
377. The respondents rely on the decision of the Court of Justice in Case C-152/95 Macon v Préfet de l’Aisne [1997] ECR I-5429. That case dealt with the identical definition in Article 12(c) of Regulation 857/84, where farmers, who had ceased milk production, (no explanation for this cessation appears in the report) sought compensation under a Community scheme for producers undertaking to discontinue production definitively. The Court of Justice held that the “term had not been given an independent meaning for the purposes of the rules on discontinuation of milk production.” (Paragraph 21). It held (paragraph 23):
“Only farmers actually selling milk or other milk products can … be considered to be producers. By contrast farmers who have spontaneously ceased milk production are no longer producers for the purposes of Article 12(c) of Regulation 857/84.”
378. The Court, in that judgment recalled its judgment in Case C-341 Ballmann [1991] ECR I-25, where it had said: “the status of producer is accorded to any person who manages a holding, that is to say a set of production units … and sells or delivers milk or milk products.”
379. Since consideration of this issue involves the interpretation of a provision of a Community regulation, the issue of the obligation of this Court to refer questions to the Court of Justice can arise. For the moment, I will say only that, in my view, the meaning of the term “producer” is quite clear. None of the applicants come within that definition. Therefore, they cannot rely on Article 6(1) of Regulation 3950/92 to claim the right to continue to make temporary transfers of their milk quotas. Accordingly, the Minister, in denying them that right by the terms of Regulation 27 was not making a choice between different options conferred by Regulation 3950/92. He was not entitled in Community law to grant the right to make temporary transfers to persons who were not producers. That is, of course, a conclusion of Community law which might have to be referred for preliminary ruling.
380. However, this Court, as a “court …. against whose decisions there is no judicial remedy under national law” is not obliged by Article 234EC to refer a question of interpretation to the Court of Justice, unless “a decision on that question is necessary to enable it to give judgment.” That is the situation which pertains in the present case, as I will explain.
381. As has been seen, Article 6 of Regulation 3950/92 authorises Member States to “determine to what extent transfer operations may be renewed.” The State was, on any view, entitled to determine that the right to make temporary transfers should be permitted for one further year only, unless exceptional circumstances were demonstrated. In making this decision, the Minister acting on behalf of the State was exercising a discretion conferred by Community regulations and for one of the policy reasons clearly stated by Community law. This is supported by the fourth recital in the preamble to Regulation 1256/99. It expresses the view that Member States “should have the possibility to decide in accordance with the general principles of Community law that, in cases of substantial under use [of milk quota ] over a significant period of time, the under used reference quantities will revert to the national reserve with a view to their reallocation to other producers;”
382. In my view, the Minister was entitled to decide, in the light of the general policy of favouring active producers that persons entitled to milk quotas, not in active production, but having used the facility of temporary transfer for three years past should be entitled to renew such temporary transfer for one further year only. In so doing, he was acting in accordance with principles and policies set out in the Community regulations.
383. The result of the foregoing is that:
1. The changes made in the rules regarding the link of milk quota to land on transfer constitute an exercise of discretions so closely linked to principles and policies laid down in Community law as not to require legislation for the purposes of Article 15.2.1 of the Constitution.
2. Although the applicants’ ability to make temporary transfers of their milk quotas is severely restricted by the 2000 Regulations, they have no right under Community law, from which such a right exclusively derives, to make such transfers. Although this involves a question of Community law, it is not necessary for this Court to decide the case on that basis, since, in this case also, the State was pursuing principles and policies laid down in Community law.
Property Rights
384. It is only in respect of the first of these issues that the applicants are in a position to maintain that their property rights have been infringed. It has been established since at least as early as the judgment of the Court of Justice in Case 11/70 Internationale Handellsgesellaschaft [1970] ECR 1125, that fundamental rights and in particular rights to property are protected in the Community legal order. In Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, that court explained that such protection was inspired by the common constitutional traditions of the Member States and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The court drew attention specifically to the German and Italian Constitutions and to Article 43 of the Constitution of Ireland. However, it is equally clear from this judgment that “the question of a possible infringement of fundamental rights by a measure of the Community institutions can only be judged in the light of Community law itself.” (paragraph 14). The other named sources of fundamental-rights protection are integrated into the Community legal order. In Bostock, the Court of Justice said, citing its earlier decision to the same effect in Case C-44/89 Von Deetzen :
“The right to property safeguarded by the Community legal order does not include the right to dispose, for profit, of an advantage, such as the reference quantities allocated in the context of the common organisation of a market, which does not derive from the assets or occupational activity of the person concerned…”
385. In its judgment in Demand, the Court of Justice used the expression, “regardless of the legal nature to be attributed to an additional reference quantity,” when assessing and then rejecting a claim that Community provisions had infringed rights of property. As Murray J. explains in his judgment, when Member States exercise discretions conferred on them by Community law, as in this case, it is for Community law to decide whether they have infringed fundamental rights. The Court of Justice stated in Duff, at paragraph 29 that “the protection of fundamental rights in the Community legal order are also binding on the Member States when implementing Community rules.” (emphasis added). In that case, the Court of Justice considered both Community rules and the exercise of discretion at national level. It did not refer in its judgment to the point made by the Advocate General, in his Opinion, that national law might “in appropriate cases … ensure greater protection … than that afforded by the general principles applicable in the Community legal order.”
386. In my opinion, the applicants’ complaint that their fundamental rights, whether or not described as property rights, have been infringed by the 2000 Regulations is unsustainable as a matter clearly decided in the constant case-law of the Court of Justice. Specifically, I cannot accept that their said rights were infringed by the State in exercising the discretion conferred on it to cease to apply Article 7(1) of Regulation 3950/92 (as amended) as introduced by the insertion by Article 1(10) of Regulation 1256/99 of Article 8a(b). I agree with the judgments of Denham and Murray JJ. on the issue of protection of property rights in milk quotas in Community law. I think that the position of the Court of Justice regarding claims based on infringements of property rights in milk quotas is clear beyond argument to the extent of being acte clair . On that basis – which was not seriously contested on behalf of the applicants – I do not think the Court is under an obligation to refer any question for preliminary ruling to the Court of Justice of the European Communities pursuant to Article 234EC.
387. In the present case the alleged infringements flow from the exercise of Member States’ discretion within the framework and in pursuit of Community policies. In my view, the principle enunciated in Hauer applies to such a situation. It is not a case of the exercise of an autonomous power to impose restrictions permitted by Community law but in furtherance of national policies. If this was such a case, of course, Article 15.2.1 of the Constitution would apply and it would also follow that any law so enacted would be amenable to scrutiny by reference to other articles of the Constitution, specifically Article 43.
388. It need not follow that in every case an exercise of a power delegated by Community law which is valid in the sense of being within principles and policies laid down by the latter will survive scrutiny vis à vis other articles of the Constitution. It is difficult to envisage circumstances in which the exercise of a discretion would violate a provision of the Constitution protecting, for example, property rights without at the same time involving the invasion of the exclusive legislative role of the Oireachtas, but in principle that must be possible. I agree with Murray J. in his treatment of the issue of property rights.
389. In any event, in the circumstances, I would dismiss this appeal.
Patrick Lawlor v The Minister for Agriculture v Noel Duffy and Mary Casey-Duffy
1986 No. 11837P
High Court
2 October 1987
[1988] I.L.R.M. 400
delivered his judgment on 2 October 1987 saying: This case raises the question as to whether and, if so, to what extent the purchaser reference quantity (or the milk quota as it is more commonly known) passed with the sale of property which took place pursuant to a contract of sale dated 28 November 1983.
The Regulatory Background.
Whether it was the result of mistaken policies or technological advances in the agricultural industry is irrelevant. It is sufficient to note that the European Economic Community recognized that the Community as a whole was suffering from surpluses as a result of imbalance between supply and demand for, amongst other things, milk and milk products. Various regulations were made which had the effect of introducing what was known as a uniform co-responsibility levy on all milk delivered to dairies and on certain dairy products sold direct from the farm with a view to correcting this imbalance. These measures did not resolve the problems.
In March 1984 the Council of the European Communities decided to introduce an additional levy on quantities of milk delivered beyond a guaranteed threshold. The general scheme determined by the Council was to establish the figure for the quantity of milk or milk equivalent representing the level of internal consumption and then current export possibilities of the Community as a whole and having done so to distribute that figure among the Member States on the basis of milk deliveries within their territories during the 1981 calender year. Among the many refinements made — no doubt as a result of protracted economic and political debate — to this simple concept was the provision that the basis year for Ireland (and indeed Italy) should be the calendar year 1983. Whilst the scheme envisaged a Community target and national limits for the Member States the fundamental concept was to penalise the producer who exceeded that part of the national quota or reference quantity ascribed to him.
This superlevy scheme was introduced by Council Regulation (EEC) No. 856/84 of 31 March 1984 and duly published in the Official Journal of the European Communities on 1 April of that year. That regulation having clearly stated that its purpose was ‘to curb the increase in production’ went on to provide that the levy system could be implemented in each region of the territory of Member States in accordance with one or other of two formulae, the first of which imposed the levy on the producer in the first instance, and the other which provided for the imposition of the levy on the purchaser of the milk or milk products in excess of the relevant reference quantity. However in the later event there was express provision requiring the purchaser to pass on the levy to those producers who had increased their deliveries above the appropriate quota. Levies were also to be imposed on producers who sold quantities for direct consumption in excess of the reference quantity. General regulations (Council Regulation (EEC) No. 857/84) were duly made on 31 March 1984 and published in the Official Journal. Article 2 of Regulation 857 aforesaid provided that the reference quantity (for quota as it is referred to in practice) should be equal to the quantity of milk or milk equivalent delivered by the producer (where Formula A was adopted) or purchased by the purchaser (where Formula B was selected) in the basis year subject to certain adjustments which are not material to the present case. The actual levy fell to be determined by the Commission at or as a substantial proportion of the target price for milk in accordance with Article 1 of the 857 Regulation. At this stage too it may be noted that by an administrative decision notified to the Commission on 25 April 1984 this country elected to be treated as a single region to which Formula B would apply.
Article 8 of Regulation 857 provided that where Formula B applied:
Member States may take the necessary steps making it possible for the purchasers of milk and milk products to manage the reference quantities allocated to them
Article 10 provided (as had been required in principle by Regulation 804) that the purchaser liable for a levy (under Formula B) should recover it through the price to be paid to the producers. However, the Article to which attention in particular was directed was Article 7(1) which provided as follows:
Where an undertaking is sold, leased or transferred by inheritance all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined.
In Article 12 a number of terms used throughout the regulations were defined. Purchaser was defined as an undertaking or grouping which purchases milk or other milk products either to treat or process them or to sell them to one or more undertakings treating or processing milk or other milk products. Effectively, therefore, purchasers in this country would be equated with the milk co-operative societies. The word producer is defined as:
A natural or legal person or group of natural or legal persons farming a holding located within the geographical territory of the Community:—selling milk or other milk products directly to the consumer, and/or-supplying the purchaser.
The word holding was in turn defined as:
All the production units operated by the producer and located within the geographical territory of the Community.
In the course of the evidence some dispute arose as to how far the public generally and the farming community in particular were aware of the negotiations leading up to the introduction of the superlevy. It would appear that informed journalists were commenting on the lines of the proposals ultimately adopted towards the end of 1983. However, the promulgation of the regulations in Ireland may be said to have occurred by an advertisement published in the national papers by the Department of Agriculture on 7 April 1984. That advertisement summarized the regulations in the following terms:
Under an E.E.C. Regulation for controlling milk production a total reference quantity of 5.525 million tonnes (about 1,180 million gallons) has been fixed for Ireland for the marketing year 2 April 1983 to 31 March 1985. In the distribution of this total by creameries dairies and other purchasers account will be taken of the fact that the overall quantity is equivalent to estimated deliveries in 1983 plus about 4.6316%. A levy equal to the target price for milk (about 96.3p per gallon) will be payable by purchasers on deliveries in excess of reference quantities as determined by the Minister for Agriculture. Any levy payable will be collected quarterly but there is provision for an end of year adjustment. Detailed rules for the implementation of the new arrangements will be made shortly following discussions between the Department of Agriculture and representatives of milk producers and processors.
On 16 May 1984 the Commission of the European Communities by Commission Regulation (E.E.C. No. 1371/84) made detailed rules for the application of the additional or superlevy. This Commission Regulation recited and invoked the Council Regulations 804, 856 and 857 and in particular Article 7(1) of the latter regulation. In Article 5 of Commission Regulation 1371 specific rules are provided to apply to the transfer of reference quantities granted to producers and purchasers in application of Formulas A and B for the purposes of Article 7(1) aforesaid. Those rules are as follows:
(1) Where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred in full to the producer who takes over the holding.
(2) Where one or several parts of a holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be distributed among the producers operating the holding in proportion to the areas used for milk production or according to other objective criteria laid down by Member States. Member States may disregard transferred parts the area of which used for milk production is less than a minimum size which they shall determine.
(3) The provisions of subparagraphs 1 and 2 above shall also be applicable in other cases of transfer which, under the various national rules, have comparable legal effects as far as producers are concerned. Member States may apply the provisions of sub-paragraphs 1 and 2 in respect of transfers taking place during and after the reference period.
It is the validity, effect and operation of this Article which is crucial to the present case.
The national regulations dealing with the superlevy are entitled European Communities (Milk Levy) Regulations 1985 (S.I. No. 416 of 1985) and was made by the Minister for Agriculture on 12 December 1985. The Minister purported to make these regulations in exercise of the powers conferred on him by (inter alia) s. 3 of the European Communities Act 1972.
In passing it may be said that whilst criticism was directed at the Minister or his Department for failure to introduce national regulations at an earlier date first it may be said that even at the present date other Member States have not as yet introduced appropriate national regulations and secondly there was a need for discussion between the Minister as the competent authority and the various bodies affected by the introduction of the scheme. Indeed there were a number of respects in which the evidence established clearly that the Minister was influenced by the representations made to him. One respect in which this was so was the allocation between the purchasers of the total national reference quantity. Apparently all of the parties potentially affected preferred a scheme under which the national quota was distributed in toto rather than a partial distribution plus the creation of a national reserve.
Para. 4 of the national regulations provided as follows:
(i) the Minister shall, pursuant to Article 2 of Council Regulation No. 857, allocate to each purchaser a reference quantity which shall be determined by reference to the quantity of milk or milk equivalent pruchased by the purchaser during the reference year, and each purchaser shall, subject to the provisions of Article 3 of that regulation allocate a reference quantity to each producer who, during the reference year, delivered a quantity of milk to the purchaser.
Para. 12 (1) of the national regulations contain detailed provisions making it a criminal offence for any person to dispose of land or to take a disposition of land without at the same time transferring and taking a transfer of the reference quantity or quota relevant to the land so disposed of. Clearly those provisions are prospective in their operation. However, clause 1 (2) goes on to provide that the provisions of Article 5(1) and (2) of Commission Regulation 1371, that is to say, the express Community provision against disposing of land otherwise than in conjunction with the reference quantity, should be applicable with retrospective effect subject to the qualification that in respect of the period from January 1983 to 1 April 1984 the provisions should not apply:
In relation to a sale lease transfer or disposal of land in relation to which an agreement in writing had previously been concluded whereby it was agreed that all or part of the relevant reference quantity was to be retained by the person selling, leasing, transferring or disposing of the land.
Whilst the courts do approach retrospective provisions with some hesitation the foregoing provision has the added complication that the draftsman appears to have purported to deal with the situation which would arise as a result of farmers not merely having anticipated the introduction of the superlevy regulations but also the inclusion of some provisions enabling the parties to regulate rights as between themselves to the quota enjoyed in relation to lands disposed of before the regulations came into effect.
Perhaps it would be possible to summarize the effect of the superlevy regulations by saying that in the first instance they fixed an E.E.C. limit for the production of milk and milk products. Secondly, they determined a national (or where appropriate, regional) reference quantity. Thirdly, where Formula B was adopted the competent authority (in Ireland the Minister for Agriculture) fixed the reference quantity for every purchaser (the co-operatives) by reference to the deliveries taken by them in the calendar year 1983 and fourthly the purchasers in turn allocated a reference quantity or quota to the producer who was, as the definition already quoted indicates, a person farming a holding and supplying milk to the purchaser. Again, the holding is defined as including all of the production units operated by the producer.
The sanction for over-production, that is to say, the imposition of the additional levy, did not apply at all in any year unless the national quota was exceeded. If it was so exceeded the purchasers who had taken deliveries in excess of the quantities allocated to them by reference to their purchases in the year 1983 became liable to pay the levy to the Minister but the provisions already referred to then enabled (and indeed required) the co-operative to penalise the farmer who over-produced by recovering the levy from him. Looking at the procedure in reverse, therefore, one can see that it could happen that a farmer could over-produce or over-supply a particular creamery but due to a shortfall by other producers that the co-operative would not be in excess of its quota. Alternatively, the producer might escape liability because even if the particular co-operative had exceeded its limit its excess might be compensated for by a diminution in deliveries to other creameries.
The scheme to curb milk production was no doubt desirable. Perhaps it was inescapable but certainly it was revolutionary. The competent authority in every region within the E.E.C. was in fact required to penalise each and every farmer/producer who sold milk after 2 April 1984 or if he had produced and sold milk to penalise him if he increased his output beyond that achieved in the basis year. Awesome though this problem was in Ireland (and perhaps Italy) it must have been greater still in the other Member States where the basis year was 1981 rather than 1983 as it is in Ireland.
I confess I would have expected to find complex administrative machinery set up by statute to introduce and police this revolutionary regime. Virtually no such administrative machinery exists. The broad concept laid down by the E.E.C. regulations and amplified to some extent by the national regulations contained in the statutory instrument already referred to provide the only legislative basis for the scheme and the actual work is carried out administratively by the officials of the Minister for Agriculture acting as the competent authority. Indeed the administrative basis of the scheme would appear to rest on a circular letter dated 5 April 1984 from the Department of Agriculture (and signed by Mr Corry who gave evidence in the case and to whom further reference will be made) and addressed to each registered creamery. This circular drew attention to the provisions of the milk superlevy scheme and called upon every creamery to make returns to the Department of their total level of intake in the year 1983 on a quarterly as well as an annual basis. The circular promised that upon receipt of those figures and following verification of the returns that the creamery would be notified of the quota applying to each creamery. It appears that the creameries in turn wrote to individual producers notifying them of their milk deliveries to that particular creamery for the year 1983 and their superlevy quota for the year 1984/5 based on the deliveries for the relevant year. Such notices were put in evidence and again it would appear astonishing that such crucial decisions could be made and recorded with such simplicity and informality. It is clear now but it must have been apparent even in 1984 that a substantial milk quota was one of these intangible rights so common in modern society whether they be intoxicating liquor licences or planning permissions which can transform the value of a holding into a different order of magnitude.
The Facts
It is in the context of the legislative provisions discussed above that I now turn to consider the facts of the present case.
Prior to April 1983 the plaintiff, Mr Patrick Lawlor, was the owner of two farms in County Meath. The home farm was situate at Brownstown (and is hereinafter referred to as the Brownstown farm) and the outfarm was situate at Burtonstown (and accordingly is referred to as the Burtonstown farm). Each was a residential farm and each was unquestionably a dairy farm. By coincidence they were almost identical in area, the Brownstown farm being 90 acres and the Burtonstown farm 91 acres. They were some four miles apart but the quality of the ground was not significantly different. The Burtonstown farm had been acquired in 1978 for a sum of £220,000.00 and for financial reasons Mr Lawlor decided in 1983 to dispose of that holding. The farm was put up for auction by Messrs. Patrick Smith & Son Auctioneers on 25 October 1983 and was described in the general particulars as a 90 acre residential dairy farm. A contract was subsequently signed by the third named defendant (apparently on her own behalf and on behalf of the secondly named defendant) and it is of some significance that in that contract the special conditions expressly excluded milking equipment and feeders. There was, however, an offer by Mr Lawlor set out in a letter of November 1983 addressed to Mrs Casey Duffy offering to sell her for a sum of £11,000.00 the milking equipment described in the schedule to that letter all of which was then situate at the Burtonstown farm. It is common case that that offer was accepted by the purchasers. For the purposes of his dairy farming business Mr Lawlor had entered into important contracts with Bailieborough Dairies Ltd and Drogheda and Dundalk Dairies (registered as Ryan Dairies Ltd) which gave him a guaranteed outlet for all or the greater part of his production. I accept that Mr Lawlor offered the purchasers the benefit of part of these milk supply contracts and that this offer was declined by the purchasers. On the other hand I am satisfied that Mr Lawlor and his wife are mistaken in saying that the purchasers had stated or indicated that they did not intend to engage in milk production. Furthermore, it is absolutely clear that the contract was not entered into on the basis of any such representation. The contract itself provided for the postponement of completion until certain contracts entered into by the purchasers in relation to their own lands had been completed. This clause and certain provisions with regard to interest consequential thereon gave rise to problems so that the actual transfer of the lands by Mr Lawlor to Mrs Duffy was not executed until 29 May 1984 although the purchasers had been allowed into possession in February of that year.
By letter dated 14 August 1986 Mr O’Donnell, an officer in the Department of Agriculture, wrote to the plaintiff referring to the sale of the Burtonstown farm and pointing out that the production of that farm together with the Brownstown farm and an additional 41 acres of land rented for milk production yielded 183,753 gallons of milk which were supplied by Mr Lawlor to the Bailieborough Co-operative and the Drogheda and Dundalk Dairies in the year 1983 which gave him a quota of 190,276 gallons. Mr O’Donnell then went on to say:
the regulations state that where one or several parts of a holding are sold leased or transferred by inheritance, the corresponding reference quantity (quota) shall be distributed among producers operating the holding in proportion to the areas used for milk production in the reference year i.e., in Ireland’s case the calendar year 1983. Since Mr Duffy now owns 41% of the land used for milk production in the reference year he is entitled, under the E.C. regulations, to a corresponding portion of the quota. The corresponding portion of the quota is 78,013 gallons. Arrangements will now be made for the appropriate reduction of your quota at Bailieborough Co-operative and Drogheda and Dundalk Dairies.
The foregoing letter is misleading in two respects. First it gives the impression that the quota to be transferred was based solely on the proportion of Mr Lawlor’s dairy holdings which had been disposed of and secondly that the Department of Minister had the function of determining producer quotas.
In fact the Minister was brought into the matter — quite correctly — by Tir Laighean Co-op Ltd who wrote to the Dairying Division of the Department on 8 July 1985 and 3 January 1986. The purpose of the second letter was to secure an adjustment of that co-operative’s quota as a result of the fact that the purchasers of the Burtonstown farm intended to transfer the output of that farm to Tir Laighean in place of the Drogheda and Dundalk dairies. Undoubtedly such an adjustment falls within the Minister’s responsibilities as it is his function to fix the quotas for the purchaser/co-operatives. It was following upon the correspondence with Tir Laighean that a representative of the Department, Mr Ernan Mansfield, called upon the plaintiff. The purpose of his interviews with Mr Lawlor, and indeed his inspection of the lands and the records relating to the herds which had been kept there, was to establish the areas used for milk production by Mr Lawlor prior to the sale and the proportion of those lands which had been included in the sale to the purchasers.
By January 1986 Mr Lawlor was fully conscious of the value of a milk quota. He was anxious to ensure that he would retain as large a fraction of his original quota as possible. Accordingly he argued that a substantially greater part of his 1983 milk production had been derived from the Brownstown farm than the Burtonstown farm. Indeed he procured — on the advice of Mr Mansfield — letters from the co-operative societies concerned in support of that argument. In addition, however, expert evidence was given by Mr R.A. Collins, a bachelor in agricultural science in support of the contention that it was the home farm, the Brownstown farm, which was the more significant area for the production of milk. Mr Collins gave his evidence on the basis of information supplied to him by Mr Lawlor and on a reconstruction of the disposition of Mr Lawlor’s herd throughout the year 1983 as between the two farms. Effectively it was contended that during 1983 there was a policy of transferring freshly calved cows from the Burtonstown farm to the Brownstown farm and replacing them with a similar number of cows at the end of their lactation. It was also contended that the calf replacements which were bred by Mr Lawlor (who sold such replacements as were surplus to his requirements) constituted part of a cattle business rather than a dairy business and that accordingly the area which they occupied in the Burtonstown farm was not an area of milk production.
It is fair to say that the arguments presented by Mr Lawlor to the officials of the Department in 1986 were received not merely sympathetically but with an open mind. Indeed it is clear that some officials of the Department took the view that a higher proportion of the milk output should be apportioned to the Brownstown farm than the Burtonstown farm notwithstanding the fact that the two farms were virtually identical in area and similar in soil composition. The Department had in fact produced notes for the information of dairy produce inspectors, such as Mr Mansfield, and having quoted the relevant Community regulations went on in a chapter entitled application of the Term Areas used for milk production to provide as follows:
This term means the areas of the farm used for the purposes of maintaining a dairy production unit including pasture land used for cows producing milk and replacement heffers. This would include land used for growing hay and silage (to be used for feed) and land used for growing crops to feed to the dairy herd together with the appropriate farm buildings. Growing of tillage crops (not for feed), bog land etc. are excluded. The apportionment of the quota to the purchaser or lessee must be made according to the areas used for milk production in the relevant reference years i.e. 1983 calendar year in the case of a quota for deliveries to creameries or dairies or 1981 calendar year in the case of a quota for direct sales to consumption. Therefore the appropriate quota is calculated in proportion to the area in dairy production on the above basis.
Without questioning Mr Collins’ integrity there is — as he would recognise — a difficulty in fully accepting his conclusions, as there are no management or other records showing precisely how the herds were distributed amongst the various holdings in the year 1983. I would be slow to accept conclusions based upon a reconstruction of the events. With regard to the other point which was hotly contested, namely, whether replacement calves formed part of the dairy herd or a cattle business I have no doubt that the former is the correct answer in the context of the present dispute. Obviously stock in trade in any industry or business can be viewed differently for different purposes but it does seem to me that to exclude the fields occupied by calves bred primarily as replacements for a major dairy herd from the areas used for milk production as that term is used in the relevant E.E.C. regulations would be far too fine a distinction.
In my view the experts in the Department made a very careful and proper analysis of all of the relevant factors and in my view arrived at a correct conclusion as to the extent of the areas used for milk production. Indeed it seems to me that Mr Mansfield was able to demonstrate the correctness of the Departmental decision by comparing the gallonage achieved in the year 1983 with that achieved by Mr Lawlor in 1985.
Accordingly it follows in my view that the adjustment which the Minister made in the reference quantities allocated to the purchaser/co-operatives concerned was correct and it would follow that a corresponding adjustment would properly be made by the co-operative to Mr Lawlor as producer. I reject the case made on behalf of the plaintiff insofar as it is contended that the adjustment was incorrect in its conclusion or reached by procedures which were unfair.
The Argument
Whilst the challenge to the validity of the superlevy regulations, that is to say, both the Community regulations and the Ministerial regulations purporting to give effect thereto is both wide ranging and sophisticated, I think I may, without injustice, summarize it as follows:
(1) The domestic regulations (S.I. No. 416 of 1985) insofar as they purport to give retrospective effect to the provisions of subparagraphs (1) and (2) of Article 5 of commission Regulation 1371 are first unconstitutional as constituting an unjust attack on the property rights of the plaintiff and secondly, ultra vires the Minister by whom they were made because they were not made within the framework of the terms and objects of the enabling legislation or in accordance with constitutional propriety.
(2) That the defendants could not rely on the provisions of Article 29.4.3° of the Constitution to exempt the domestic regulations from the purview of the Constitution as those regulations were not necessitated by the obligations of membership of the communities.
(3) That Article 5(3) of Commission Regulation 1371/84 insofar as it provided that subparagraphs (1) and (2) of that Article should or might have retrospective effect was null and void because it was made without sufficient reason or adequate motivation.
The constitutional argument on the part of the plaintiff is simple to this extent. It is said that the plaintiff had in April 1984 a valuable property right consisting of a milk quota amounting to approximately 190,000 gallons. That such a quota was valuable is beyond dispute. The plaintiff then complains that by the domestic regulations made nearly two years later this valuable property right was reduced by approximately one half. That, it is said, is a flagrant abuse by the State, through subordinate legislation, of the plaintiff’s property right and a gross failure by the State to defend and vindicate those rights. In this context reference was made to the decision of the Supreme Court in The Housing (Private Rented Dwellings) Bill 1981, [1983] IR 181 and in particular to a passage in the judgment of the then Chief Justice at p. 191 as follows:
The effect of the rebates permitted by s. 9 is that, for a period of five years after the enactment of the Bill as law, landlords are to receive an amount which will be substantially less than the just and proper rent payable in respect of their property. In the absence of any constitutionally permitted justification, this clearly constitutes an unjust attack upon their property rights. The Bill offers no such justification for depriving the landlord of part of his or her just rent for the period specified in the Bill. This Court has already held that the pre-existing rent control constituted an unjust attack upon property rights. In such circumstances, to impose different but no less unjust deprivations upon landlords cannot but be unjust having regard to the provision of the Constitution.
The decision of Barrington J. in Brennan v The Attorney General and Wexford County Council [1984] ILRM 449 was invoked partly by way of precedent and partly as an illustration of laws which because of their arbitrary and unreasonable nature failed to vindicate the property rights of the citizen. The decision in Burke v The Minister for Labour [1979] IR 354 was cited in part as authority for the proposition, which I accept of course, that delegated legislation must accord with constitutional requirements and in particular for the general statement of Henchy J. in relation to delegated functions set out at p. 361 of the report as follows:
Where Parliament has delegated functions of that nature, it is to be necessarily inferred as part of the legislative intention that the body which makes the orders will exercise its functions, not only with constitutional propriety and due regard to natural justice, but also within the framework of the terms and objects of the relevant Act and with basic fairness, reasonableness and good faith.
It was recognized that the validity of the superlevy regulations and in particular Article 5(3) of 1371/84 might have been challenged in the European Court under Article 173 of the Treaty within the time limit specified in that Article or alternatively under Article 184 in accordance with the procedures laid down therein notwithstanding the expiry of the period specified in Article 173. On the other hand it was accepted that it was not competent for this Court to annul the particular regulation. Any challenge to the regulation in these proceedings would require a reference by this Court to the Court of Justice under Article 177 of the Treaty.
In his challenge to the disputed regulation by reference to the Treaty, counsel on behalf of the plaintiff relied upon the following authorities:
Germany v Commission [1963] ECR 63; Toepfer v Commission [1965] 1 ECR 405; Bock v Commission [1971] 2 ECR 897; Kaufhof A.G. v Commission [1976] 1 ECR 431; Watson and Belmann [1976] 2 ECR 1185; Racke v Mainz [1979] 1 ECR 69.
Having regard to my limited function in relation to this aspect of the matter I do not propose to examine these authorities at any length. Perhaps it would be fair to say that these cases established or illustrate the principle that retroactivity must in general be avoided in community legislation and secondly that the means taken to achieve legislative aims must bear a reasonable correspondence or proportionality with the intended objective. These indeed are principles which are perhaps equally well established in our national system (see Burke v Minister for Labour above, Hamilton v Hamilton; Dunne v Hamilton, [1982] IR 466). In addition, however, it was contended on behalf of the plaintiff that the regulations of the Commission must be based on an appropriate statement of reasons and they might be condemned if the recitals lacked an appropriate degree of clarity (see Germany v Commission above).
The Defence
The defence, particularly that of the Minister, is based partly on fact and partly on law. The principal witness on behalf of the Minister was Mr Michael Corry. He is a Principal Officer in the Department of Agriculture and he was intimately concerned with the negotiations and planning which resulted in the superlevy regulations. His expertise and his integrity were beyond question. Moreover, the fact that Mr Corry was in a position to deal fully and candidly with all of the problems which he and his colleagues had foreseen or encountered and the reasons for the courses which they adopted distinguished the present from almost every other constitutional issue where the intention of the legislature is deduced or inferred ordinarily from the legislation itself and the arguments based thereon frequently owe more to the ingenuity of the lawyers than the intention of the legislators. The national interest which the Minister and perhaps successive Ministers for Agriculture sought to achieve was the maximum national reference quantity. As already explained there was a wide consensus that the national reference quantity should be fully allocated among purchasers. It was undesirable that the quota should be exceeded but on the other hand it was important that it should be fully utilized. Once the community accepted the quota system it followed that the use by the farming community of their lands for dairy purposes must be interfered with to some extent. Mr Corry believed it was clear from Council Regulation 857/84 and in particular Article 7 thereof that the quotas were to be land based. That view is further supported by the definition by the words producer and holding in Article 12 of the same regulation. Indeed the concept of milk quotas divorced from land would seem to me to be meaningless. Article 5 of Regulation 1371 and Rule 12(1) of the domestic regulations makes it clear that subsequent to the introduction of the regulations at any event the producer’s quota or an appropriate part thereof would pass with dairy lands. It was against that background that the Minister’s advisers had to consider what regulations should be made in relation to sales of land which took place after the commencement of the basis year and before 2 April 1984. As Mr Corry pointed out, if a hypothetical purchaser had paid the full value for the dairy land and received no quota there would be an outcry and, in the absence of a national reserve, there would be no means of remedying the injustice. If a vendor who sold part of his land retained the full quota in respect of the portion retained by him this might indeed lead to greater efficiency but that had been contrary to the intention of the community in introducing the levy. Mr Corry and his colleagues were aware of course that sales had taken place during the basis year, they believed — and in my view correctly — that some decision had to be made as to how the quota would be dealt with where all or part of a dairy farm was disposed of during the basis year. To that extent Mr Corry did not interpret Article 5(3) of Regulation 1371/84 as conferring on the State a discretion. It was necessary to make a decision as to how the pre-regulation sales would affect the allocation of quotas. The Department was aware of perhaps a dozen vendors who are in a similar position to that of the plaintiff in the present case.
The defendants contest at every level the argument presented on behalf of the plaintiff. It is said first that the plaintiff had no property right in the milk quota. Secondly, that if it did constitute a property right it was not attacked and thirdly that if the operation of the superlevy regulations did constitute an attack that it was not unjustified. This indeed is the approach which was adopted by the Supreme Court in analysing the Rent Restrictions Act 1960 in Blake v Attorney General [1982] IR 117 and in particular attention may be drawn to the comments of O’Higgins CJ at p. 139 and p. 140 of the report. However, the argument on behalf of the defendants goes even further. It is contended that the effect of the domestic regulations does not fall to be considered by reference to the standard of protection for property and other rights provided by Article 40.3.2° of the Constitution because it conforms to the requirements of Article 43 thereof. The distinction between Article 43 and the relevant sub-article of Article 40 was discussed in Dreher v The Irish Land Commission [1984] ILRM 94 and in particular in a passage from the judgment of Walsh J which was subsequently cited with approval by O’Higgins CJ in O’Callaghan v The Commissioners for Public Works in Ireland and the Attorney General [1985] ILRM 364 and by Finlay CJ in the ESB v Gormley [1985] IR 129. The particular passage from the judgment of Walsh J. is in the following terms at p. 96:
the State in exercising its powers under Article 43 must act in accordance with the requirements of social justice but clearly what is social justice in any particular case must depend on the circumstances of the case. In Article 40.3.2°‘the State undertakes by its laws to protect as best it may from unjust attack, and in the case of injustice done, vindicate … (the) property rights of every citizen.’ I think it is clear that any State action that is authorised by Article 43 of the Constitution and conforms to that Article cannot by definition be unjust for the purpose of Article 40.3.2°. It may well be that in some particular cases social justice may not require the payment of any compensation upon a compulsory acquisition that can be justified by the State as being required by the exigencies of the common good. It is not suggested that the present case is one such, nor is it in dispute that in the present case the applicant was entitled to just compensation for the land compulsorily acquired from him.
In the O’Callaghan case it was held that the preservation orders made under the National Monuments Act 1954 did not constitute an unjust attack on the right of ownership. It was a limitation on the user of the lands and the absence of a provision for the payment of compensation in respect of the limitation of use did not amount to an unjust attack. Orders made under the statute in question delimit the exercise of the rights of ownership so that they may be reconciled with the exigencies of the common good but does not delimit the right of private ownership or the general right to transfer land. The application of the same principle led to a different result in the E.S.B. case. There it was held that whilst the erection of pylons for the transmission of the national electricity supply was required by the common good the court rejected the contention that the acquisition of the right to erect the pylon without the legal duty to pay compensation did not constitute an attack on the property rights of the landowner.
I do not doubt that at the present day a milk quota is a valuable intangible asset. Indeed there was clear evidence that the existence of an appropriate quota in relation to dairy land might well double the value thereof. It does seem to me that there is a fallacy in the plaintiff’s argument in basing his claim to an interference in the year 1984 with his right to a milk quota. The entire superlevy system from its inception on 2 April 1984 was a massive interference with or limitation on the manner in which farmers could profitably make use of their lands. This was the far-reaching decision which was made with a view to curbing milk production and restoring the balance between production and consumption so that the Community Agricultural Policy could operate in the interests of all of the producers within the Member States. Far-reaching though these provisions were it seems to me quite clear that in their purpose and effect they amounted to a regulation or limitation on the use of lands by individual producers with a view to reconciling their exercise with the exigencies of the common good.
The allocation of quotas in the first instance was merely the machinery by which milk production would be pegged back to the agreed levels. When quotas are determined for regional or national purposes clearly one may speak in tonnes or gallons. Likewise this is true under Formula B where one is discussing quantities of milk or milk products delivered to purchasers within a given period but when quotas are related — as ultimately they must be — to production by producers they must relate to the holdings on which the milk is produced. In the working out of the regulation the producer’s quota is in the first instance related to the producer and the quantity of milk supplied by him to a purchaser in the basis year but on any interpretation of the E.E.C. regulations or the domestic regulations it is quite clear that the quota itself takes into account the fact that the milk is produced on the farmer’s landholding. As the defendants contend and Mr Corry believed the quotas were from their inception land based.
Attention was drawn to the appropriate canons of interpretation of E.E.C. legislation. In particular reference was made to the second edition of Charman and the comments to be found therein on the teleologicial and schematic approaches to interpretation. With respect, it seems to me that the principles of interpretation were most helpfully and authoritatively dealt with in the paper read by Professor Kutscher, the President of the Chamber at the Court of Justice in Luxembourg in 1976 on Methods of Interpretation as seen by a Judge at the Court of Justice . I may quote at some length a pasage from page 1.36 of that paper as follows:
It would be superfluous to point out once more what importance schematic interpretation has in the case law of the Court of Justice. Its application corresponds to the special features which characterise the legal system of the community. If this legal system takes the form of a broadly conceived plan and if it confines itself essentially to setting aims and directions as well as to establishing principles and programmes for individual sectors, and if in addition there is no legislature which fills in the framework drawn up by the treaties within a reasonable time … the judge is compelled to supplement the law on his own and to find the detailed rules without which he is unable to decide the case brought before him. The judge can succeed in this task only by having recourse to the scheme the guidelines and the principles which can be seen to underly the broad plan and the programme for individual sectors. Without recourse to these guidelines and principles it is not even possible to give precise definition to the significance and scope of the general rules and concepts of which the treaties make such abundant use … It is plain that such a schematic interpretation which sees the rules of community law in their relationship with each other and with the scheme and principles of the plan, cannot escape a certain systemization and therefore on occasion demand that solutions of a problem be inferred by deduction from general principles of law.
It is interesting to note from his decision in Buchanan & Co v Babco Ltd [1977] QB 208 at 213 that Lord Denning MR was equally impressed by Judge Kutscher’s paper and he, Lord Denning, explained the European method of interpretation in the following terms:
They adopt a method which they call in English by strange words — at any rate they were strange to me — the schematic and teleological method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit — but not the letter — of the legislation, they solve the problem by looking at the design and purpose of the legislature — at the effect which it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation?.
It is proper to say, however, that the House of Lords on appeal from the Court of Appeal in Buchanan & Co. v Babco Ltd [1978] AC 141 made it clear that they did not share Lord Denning’s enthusiasm for the schematic or teleological approach nor did they find any justification for incorporating it in the English legal system.
It seems to me that in construing E.E.C. regulations I am bound to apply the canons of interpretation so clearly adumbrated by Judge Kutscher in his paper and with regard to domestic legislation it does seem to me that similar principles must be applicable at least insofar as it concerns the application of Community regulations to this State. Moreover, it does seem to me that the teleological and schematic approach has for many years been adopted in this country — though not necessarily under the description — in the interpretation of the Constitution. The innumerable occasions in which the preamble to the Constitution has been invoked and in particular the desire therein expressed to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual may be assured, through social order attained, the unity of our country restored and concord established with other nations in seeking to fill the gaps in the Constitution is itself an obvious example of the teleological approach. Indeed in somewhat more mundane circumstances arising in the interpretation of the Family Home Protection Act 1976 in Nestor v Murphy [1979] IR 326 Henchy J expressly decided that the court must adopt what has been called a schematic or teleological approach.
If no national regulations had been made and if indeed Article 5(3) of 1371/84 had not been incorporated in the regulations (or indeed was invalid as the plaintiff contends) the court would be faced with the task of applying and interpreting the surviving superlevy regulations in accordance with the clearly established intention of the Community to curb milk production by penalizing farmers in the Community who after 2 April 1984 produced milk where they had not done so in the basis year or, if they had been in milk production in that year, exceeded the quantities produced by them in that year. It was evident — particularly in those member States where the basis year was 1981 — that changes in ownership of dairy lands would have taken place between the commencement of the basis year and the date on which the regulations became operative. This involves in one sense the interpretation of the prospective effect of the regulations. The true question is, as I see it, to whom is the quota to be allocated? The farmer in, say, Germany who delivered several thousand gallons of milk to his purchaser in 1981 but died in 1982? The dairy farmer who subsequent to the basis year sold the vast bulk of his holding at the full market price for dairy land and retained for himself a residence and pleasure grounds? What of the purchaser who buys the entire holding of the dairy farmer who had been in milk production throughout the basis year? Is the vendor to be allocated a quota even though he possesses no land at all and the purchaser to be prevented from engaging in dairy production?
It seems to me that the scheme and purpose of the regulations would force any court to the conclusion that what the Community intended was that quotas should be allocated by reference to milk production on given holdings throughout the basis year and that in the event of those holdings having changed hands or being subdivided between the basis year and the coming into operation of the superlevy regulations that the persons acquiring the holdings should acquire also quotas appropriate to the amount and the nature of the lands acquired by them. I believe that this was inherent in the original scheme and that Article 5(3) aforesaid (or more particularly the second part of that subparagraph) was little more than an aide memoire to the Member States reminding them of the need to make provision to cope with changes which have taken place subsequent to the commencement of the basis year. Obviously the statutory regulations are better calculated than any judgment of the court to provide the precise detail which administrators are entitled to have in administrating a scheme of such complexity and importance. Nevertheless, it seems to me that in substance what has been described as the retroactive effect of Article 5(3) and the domestic regulations of December 1985 introduced no new concept. The granting of the quotas was an action lying in the future and it was essentially a matter of interpretation of the regulations as to how one would identify the persons and in particular the producers to whom such quotas should be allocated. I believe that the disputed regulations did little more than clarify the intentions of the Community in this respect and provide somewhat clearer — though by no means perfect — machinery to enable the desired result to be achieved.
In these circumstances my conclusions may be summarized as follows:
1. The superlevy regulations in no way attempt to abolish the right of private ownership or the general right to transfer, bequeath or inherit property. They do delimit the exercise of certain rights of ownership but this delimitation is clearly with a view to reconciling the exercise of ownership rights with the exigencies of the common good. The general limitation or curbing on the right to enter into or expand dairy production in all of the circumstances is not a limitation on ownership rights such as calls for monetary compensation.
2. The interference with the property rights of dairy farmers in general and Mr Lawlor the plaintiff herein in particular having conformed with Article 43 does not require to be examined by reference to Article 40.3. Furthermore if the matter did fall to be considered under that Article I am quite satisfied that the careful balance which was made between the rights of vendors and purchasers subsequent to the commencement of the basis period and the solution applied — that is to say the retrospective operation of the regulations — were in no sense unjust. They were neither capricious nor arbitrary. They considered and weighed fairly, and in my view correctly, the interests of all of the parties whose rights were bound to be affected once it was accepted that there would be an overall limitation on milk production.
3. If contrary to the views already expressed the view was to be taken that the domestic regulations offended the provisions of Articles 40 and 43 of the Constitution I am satisfied that the apparent infringement would fall within the exception provided by Article 29.4.3° of the Constitution. It seems to me that the word necessitated in that sub-article could not be limited in its construction to laws, acts or measures all of which are in all of their parts required to be enacted, done or adopted by the obligations of membership of the Community. It seems to me that the word necessitated in this context must extend to and include acts or measures which are consequent upon membership of the Community and in general fulfilment of the obligations of such membership and even where there may be a choice or degree of discretion vested in the State as to the particular manner in which it would meet the general spirit of its obligations of membership.
4. It was not part of the duty of the Minister as the competent authority or otherwise to allocate a milk quota as such either to the plaintiff or to the purchaser/defendants. He did, however, have the duty to allocate quotas to the purchaser/co-operatives and for the purposes of that task it was necessary for him in the circumstances which had occurred to ascertain the appropriate fraction of the milk quota to be transferred from the Bailieborough Co-operative Society to the Tir Laighean Co-operative Society. That exercise involved the carrying out of the exercise which was in fact conducted by Mr Mansfield and I am satisfied not only that the exercise was carried out competently and fairly but I believe that the particular decisions implicit in the final conclusion were correct and that indeed the decision itself was as accurate as one could possibly hope to achieve.
5. Whilst it has been recognized by both parties that it is no part of the function of the court to determine whether or not any part of the E.E.C. regulations were invalid it would be open to this Court to refer the matter to the European Court of Justice under Article 177 of the Treaty if I considered that a decision of that court was necessary to enable me to give my judgment herein. I do not consider such a reference to be necessary. For the reasons already adumbrated in the consideration of the principles of constitutional justice applicable to the superlevy regulations as a whole I am quite satisfied that from the outset, that is to say 2 April 1984, that it was clear that the quotas were to be land based and to be calculated by reference to activities which occurred in an earlier year. In those circumstances it was and is in my view inevitable that some provisions would have to be made dealing with the changes which had occurred between the commencement of the basis year and the introduction of the regulations, and it was also clear that those regulations would either possess or appear to possess a retroactive effect.
In these circumstances I would dismiss the plaintiff’s claim.
Greene and Ors v Minister for Agriculture and Ors
[1990] ILRM 364
Murphy J
This is a claim by the plaintiffs for an order declaring that certain schemes made by the Minister for Agriculture between 1975 and 1986 in pursuance of Directive 75/268/EEC or some of them are invalid in whole or in part.
On 28 April 1975 the Council of the European Communities made a directive ‘on mountain and hill farming and farming in certain less favoured areas’. This is the directive cited as 75/268. As is customary in council directives it contains numerous recitals setting out the background against which it is made and the object which it seeks to achieve. Some of these recitals are particularly relevant to the present case and I quote them in full as follows:
Whereas the statement made by the Community concerning hill farming annexed to the Treaty of Accession declares that special conditions obtain in hill farming areas as compared with other areas of the United Kingdom and that differences, at times very marked, exist between areas in the member states of the original Community, and also that the special conditions obtaining in certain areas of the enlarged Community may require action with a view to attempting to resolve the problems raised by these special conditions and in particular to maintain reasonable incomes for farmers in such areas.
Whereas it is necessary that steps be taken to ensure the continued conservation of the countryside in mountain areas and in certain other less favoured areas; whereas the member states have already taken or plan to take positive measures for this purpose and these efforts should be encouraged; whereas farming performs a fundamental function in this respect;
Whereas the steady decline in agricultural incomes in these areas as compared with other regions of the Community, and the particularly poor working conditions prevalent in such areas are causing large scale depopulation of farming and rural areas, which will eventually lead to the abandonment of land which was previously maintained, and moreover jeopardising the viability and continued habitation of those areas the population of which is predominantly dependent on an agricultural economy;
Whereas in adopting provisions allowing member states to apply for the assistance of farming in the less favoured areas, all or some of the measures making up a particular system of aids designed to meet the particular needs of these areas the Community would be supporting the efforts made by the member states to maintain a farming industry in such areas;
Whereas the permanent natural handicaps existing in such areas which are due chiefly to the poor quality of the soil, the degree of slope of the land and the short growing season, and which can be overcome only by operations the cost of which would be exorbitant, lead to high production costs and prevent farms from achieving a level of income similar to that enjoyed by farms of a comparable type in other regions.
Whereas it may be essential if the objectives assigned to farming in the less favoured areas are to be attained that farmers permanently engaged in agriculture in such areas be paid annual compensatory allowances;
Whereas it should be left to the member states to fix the amount of such allowances according to the severity of the handicaps involved within the limits and conditions fixed for the different types of areas both as to the amounts which may be paid and the types of production which may be covered.
The objective part of the directive is set out in article 1 thereof in the following terms:
In order to ensure the continuation of farming, thereby maintaining a minimum population level or conserving the countryside in certain less favoured areas the list of which is determined in accordance with the procedure laid down in article 2, member states are authorised to introduce the special system of aids provided for in article 4 to encourage farming and to raise farm incomes in those areas.
The directive describes in general terms the type of less favoured farming areas to which the schemes might relate but imposes on the individual member states the obligation of designating the relevant areas within the national territories. The particular type of aid provided is described as ‘a compensatory allowance’. Again the individual member states are assigned the task (by article 7) of fixing the amounts of the compensatory allowance subject to provisions providing for both minimum and maximum payments. The minimum figure (as set out in article 7) provides that no allowance shall be paid for ‘less than 15 units of account per livestock unit’. Nor may the allowance exceed 50 units of account per livestock unit. Livestock units are established by the annex to the directive which expresses bovine, ovine and capric animals in livestock units for the purposes of the directive. Effectively, therefore, the compensatory allowance takes the form of an animal headage payment by the member state to certain farmers and there is then provision (in article 15) under which the member states may be recouped part of the expenditure incurred by them. The portion of the expenditure borne by the Community has varied from time to time but is now approximately 50%. The directive is addressed to the former states and under article 17 the member states are required to take the necessary measures to conform to the provisions thereof within one year from the date of its notification. However, perhaps the most specific provision dealing with the obligation of the member states is set out in article 6 as follows:
1. Where member states grant a compensatory allowance, farmers with at least three hectares of utilised agricultural area who undertake to pursue a farming activity in accordance with the aims of this directive for at least five years shall be eligible for such an allowance. However, where a farmer gives up agriculture in accordance with article 2(1) of Council Directive number 72/160/EEC of 17 April 1972 concerning measures to encourage the cessation of farming and the re-allocation of utilized agricutural areas for the purpose of structural improvement, in cases of force majeure or, for example where his property is subject to compulsory purchase or is purchased in the public interest, he shall be released from such undertaking. Farmers in receipt of a retirement pension shall be released from the undertaking referred to in the preceding paragraph.
2. Member states may lay down additional or restrictive conditions for granting the compensatory allowance.
The minister duly designated the disadvantaged areas and notified the Council of his decision in that regard. In 1975 administrative schemes were prepared and promulgated by the minister in purported compliance with Directive 75/268, one providing for cattle headage payments in severely handicapped areas, the second known as the beef cow scheme in disadvantaged areas and the third the handicapped areas (mountain sheep) scheme 1975. All of these schemes provided that they should be applicable only to farmers with at least 7.5 statute acres of utilized agricultural area who undertook to pursue farming activity for at least five years. To that extent and in the manner to which the farmers might be released from their undertakings the schemes prepared by the minister reflected very closely the provisions of paragraph 1 of article 6 aforesaid. In addition the cattle headage scheme provided that ‘applications will be accepted only from herd owners whose herds are registered under the bovine tuberculosis eradication scheme’. The scheme in relation to sheep as it evolved in subsequent years contained numerous conditions with regard to the breeds and types to which it would apply as well as to their quality and marking. In particular a condition was imposed excluding applications from flock owners ‘who do not furnish a current sheep-dipping certificate in respect of the sheep presented’.
Attention was drawn to these technical conditions as being ones not specifically provided for by the Council Directive but being conditions additional and restrictive properly imposed by the minister in exercise of the powers conferred upon him by paragraph 2 of article 6 aforesaid and indeed as representative of the type of condition which that paragraph envisaged.
In all of the schemes for the year 1979 the minister introduced an additional condition in the following terms:
The scheme will only apply to applicants … whose off farm income did not exceed £3,550 for the year ended 31 December 1978.
That clause was varied and extended in 1982 by the substitution of a provision in the following terms:
The scheme is open to farmers … whose off farm income combined with that of their spouses did not exceed £5,415 for the income tax year ended 5 April 1982.
The combined spouse off-farm income limit has changed from time to time. It has been both increased and reduced.
The named plaintiffs are farmers in disadvantaged areas or the spouses of such farmers. All of them have been refused compensatory allowances under one or other of the ministerial schemes. It is clear from the evidence that the applications failed in some cases because the off-farm income of the applicant exceeded the limit fixed by the scheme from time to time and in other cases it was clear that the off-farm income of the spouse was the reason why the application for payment was refused. Apart from that essential fact the evidence of the named plaintiffs was not of the greatest importance. Perhaps it could be said of all of them that the incomes which they derive from farming — whether one accepts the figures as computed by the plaintiffs themselves or as revised by Dr Bielenberg on their behalf — are very modest indeed. This could be significant in the sense that the headage payments payable under the schemes though apparently small in amount might be of marginal significance to them. On the other hand the scheme is not necessarily confined to farmers with very small holdings or unprofitable farms. Indeed the plaintiffs would emphasise the fact that the scheme is open to farmers who would be earning an income in excess of £20,000 per annum from their farming activities.
The arguments made on behalf of the plaintiffs may be summarized as follows:
1. That such of the ministerial schemes as excluded applicants by reference to their own off-farm income or that of their spouse was invalid as a scheme based on or including such a condition was ultra vires the directive which it purported to implement. It was, it is contended, ultra vires because it distinguished without justification between whole-time farmers and part-time farmers; between wealthy farmers and poor farmers because there was no justification in the directive for according different treatment to farmers with different incomes. In support of the principle involved reference was made to Royer’s case [1976] ECR 497 at page 518 and in particular the passage at paragraph 75 in the following terms:
The freedom left to the member states by Article 189 as to the choice of forms and methods of implementation of directives does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of the directives.
Again reference was made to S.A. Moulins et Huileries de Pont- à-Mousson v Office Nationale Interprofessional Des Céréales [1977] 2 ECR 1795 at page 1811 for the general proposition (at paragraph 17) as follows:
This principle requires that similar situations shall not be treated differently unless differentiation is objectively justified.
However, the issue between the parties in this regard did not turn so much on any principle of EEC law as upon the interpretation of the directive itself. Was the purpose of the directive the conservation of land as the plaintiffs contend or was its purpose to provide income support for farmers in disadvantaged areas as the defendants argue? It seems to me that the directive had both objectives. In the first of the recitals quoted from the directive specific reference was made to the need ‘to maintain reasonable incomes for farmers’ in less favoured areas. It was a subsequent recital which expressed concern about:
Jeopardising the viability and continued habitation of those areas the population of which is predominantly dependent on an agricultural economy.
It seems to me that these recitals make it clear that the directive had the twofold purpose of conserving less favoured areas and maintaining farm incomes. It may be that one object was the means of achieving another but both are clearly identified and it seems to me therefore that the minister in framing a scheme to implement the directive was entitled to have regard to both of the material considerations.
Once it is recognized that the maintenance of farm incomes in the relevant areas is a valid and material consideration there is no difficulty in justifying some form of means test. If part of the objective of the directive is to achieve ‘reasonable incomes’ or if the attainment of such incomes is the means of achieving the ultimate goal of conservation of less favoured areas it would be legitimate and in my view appropriate to import into the scheme some form of means test.
The plaintiffs can and do point out that the form of the means test is crude. It is not clear why it relates to off-farm income and not farm income. Perhaps it is particularly surprising to learn that the off-farm income as interpreted for the purposes of the scheme does not extend to unearned income. Again it is obvious that in the absence of some form of tapering provision or marginal relief that the income limits could operate oppressively in some cases. It is theoretically possible that as a result of an additional £2 of income between him and his spouse an applicant could lose £2,000 in headage payments. Perhaps some of these factors can be explained within the policy of the directive. Perhaps it could be argued that off-farm earned income entails a greater degree of off-farm activities and accordingly a lesser involvement in the pursuit of farming. Whilst Dr Bielenberg, the distinguished agricultural consultant, in the course of his evidence disputed that proposition, it does seem to me that the point is at least arguable. In fact the desirability of limiting compensatory allowances having regard to off-farm incomes has been recognized in at least four of the member states. Belgium, France, Greece and Italy operate schemes which require the applicant to earn at least 50% of his income and to spend at least 50% of his time working on the farm. The fact that other member states have such schemes and that those schemes and the scheme prepared by the Minister for Agriculture here have been approved annually by the Commission who, as I say, reimburse a substantial part of the expenditure is a material, though not decisive, consideration.
The fact that a scheme may produce anomalies which more detailed consideration or more sophisticated drafting might obviate would not be a sound reason for condemning the validity of the scheme.
In my view the series of schemes made by the minister in purported compliance with Directive 75/268 were an appropriate means of implementing that directive having regard to its purpose and the express powers conferred on the individual member states. Accordingly the argument by the plaintiffs to the effect that the schemes were ultra vires the directive fails.
2. Anticipating correctly an argument to be made by the defendants, it was contended that Article 29.4.3° of the Constitution did not protect the ministerial schemes from a challenge as to their validity having regard to the provisions of the Constitution. The relevant subsection of the Constitution provides as follows:
The State may become a member of the European Coal and Steel Community (established by treaty signed at Paris on 18 April 1951), the European Economic Community (established by treaty signed at Rome on 25 March 1957) and the European Atomic Energy Community (established by treaty signed at Rome on 25 March 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.
On behalf of the defendants it was contended that the implementation of the ministerial schemes was necessitated by the obligation of this State as a member of the Community. Whilst it was recognized that the scheme was drafted and made by the minister it was pointed out that it required and obtained the approval of the Commission and it was contended that on being approved each scheme became ‘a measure adopted by the State necessitated by the obligations of membership of the Communities’. In my view this argument is not well-founded. Undoubtedly membership of the Community required Ireland to implement a scheme complying with Directive 75/268/EEC but it does not follow that any and every scheme drafted in pursuance of that directive and meeting its purposes is necessarily required by our membership of the Community. The specific provisions of article 6(2) allowing member states to introduce ‘additional or restrictive conditions’ and the fact that some members have and others have not introduced such restrictive conditions demonstrates that such conditions are not required by membership of the community.
In Lawlor v Minister for Agriculture [1988] ILRM 400 in dealing with Article 29.4.3° of the Constitution I did comment as follows:
It seems to me that the word ‘necessitated’ in that sub-article could not be limited in its construction to laws, acts or measures all of which are in all of their parts required to be enacted, done or adopted by the obligations of membership of the Community. It seems to me that the word ‘necessitated’ in this context must extend to and include acts or measures which are consequent upon membership of the Community and in general fulfilment of the obligations of such membership and even where there may be a choice or degree of discretion vested in the State as to the particular manner in which it would meet the general spirit of its obligations of membership.
I have no doubt but that laws enacted, acts done and measures adopted by the State are necessitated within the meaning of the Third Amendment aforesaid by obligations of membership of the Communities even where the particular actions of the State involve a measure of choice, selection or discretion. If there was no such flexibility it would hardly be necessary to say that the particular actions were adopted by the State at all. Presumably they would have operated as a regulation of the Community rather than as a directive by it.
On the other hand there must be a point at which the discretion exercised by the State or the national authority is so far-reaching or so detached from the result to be achieved by the directive that it cannot be said to have been ‘necessitated’ by it. In the Lawlor case (above) the directive under consideration effectively required member states to make some provision providing for or dealing with the problems which would necessarily have arisen between the basis year for the reference quantity (or quota as it is referred to in practice) and the date on which the relevant Council Regulations came into operation. There was a measure of discretion as to how this might be achieved but either the problem had to be resolved by legislation or the lacuna filled by judicial decision as rights would necessarily have been affected between the basic year and the date on which the Regulations took effect. In the present case there is nothing in the directive which requires expressly or by implication any regulation by member states dealing with the income of farmers or their spouses who may be affected by the directive. As I say the particular conditions were introduced by some member states and not by others in accordance with the almost unqualified discretion with regard to the imposition of conditions conferred by the directive. It does not seem to me that the word ‘necessitated’ as used in the Third Amendment involves questions of degrees of necessity or at least limits as to discretion. In the present case it seems to me that the particular provisions introduced by the defendants with regard to the income of the farmer or his spouse could not be said to have been necessitated by the obligations of the State as a member of the Community.
3. That the ministerial schemes which imposed conditions in relation to the income of a farmer or his spouse were ultra vires the minister, first, because they failed to vindicate the personal right of the citizen to equality before the law in accordance with Article 40.1 and 40.3 and secondly because they were in breach of the pledge given by the State in Article 41.3 to guard with special care the institution of marriage.
Counsel on behalf of the plaintiffs recognized that there were formidable difficulties in sustaining the argument based on the equality provisions contained in Article 40.1 of the Constitution.
The authoritative exposition of Article 40.1 of the Constitution is set out in the decision of the Supreme Court in Quinn’s Supermarket Ltd v Attorney General [1972] IR 1 and is summarized in the judgment of Walsh J at 13 as follows:
The provisions of Article 40.1 of the Constitution were discussed in the decision of this Court in State (Nicolaou) v An Bord Uchtala. As was there decided, this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.
On behalf of the plaintiffs it was suggested that that was a restricted interpretation of Article 40.1 and that I should prefer the wider interpretation for which Professor Kelly contends in his learned treatise on the Constitution. Apart from any difficulty which this Court might face in adopting the interpretation and approach favoured by Professor Kelly as expressed by him in ‘The Irish Constitution’ (1980 Edition) at p. 347 and as amplified in his article in The Irish Jurist 1983, p. 259 it seems to me that the constitutional issue in the present case is effectively governed by the decision of the Supreme Court (delivered by Kenny J) in Murphy v Attorney General [1982] IR 241 in which it was held that the imposition of different burdens of taxation on married couples living together as against the burden imposed on unmarried couples living together did not offend the equality article of the Constitution. It seems to me that that precedent and principle is equally applicable to the present case.
However, I believe that the same authority, that is to say, Murphy v Attorney General, requires me to conclude that the imposition by the State or any of its agents, of a burden on married couples living together which is substantially different from a burden placed on unmarried couples living together is in breach of the pledge by the State to guard with special care the institution of marriage and to protect it against attack. The judgment of the Court on that issue is set out in the penultimate paragraph of the judgment (at 287) and may have been ambiguous in the sense that it was not clear whether the court was condemning the legislation because it represented something in the nature of an inducement to live together without marrying or whether the legislation was condemned simply because of the penalty which it imposed. That the latter was the correct interpretation was clearly established by a single sentence towards the conclusion of the judgment of the Chief Justice in Muckley v Ireland [1985] IR 482 at 485 as follows:
Essentially the decision (i.e. Murphy v Attorney General) is to the effect that the invalid sections penalised the married state.
Again the fact that the particular financial burden imposed on the plaintiffs in the Murphy case related to a ‘progressive’ tax was not the decisive factor in condemning the fiscal provisions under which it was provided. In Hyland v Minister for Social Welfare and Attorney General [1989] ILRM 196, Barrington J applied the Murphy decision to those provisions of the Social Welfare (No. 2) 1985 Act which imposed a financial disadvantage — though not a progressive one — on married as opposed to unmarried couples living together.
Consequences
What then are the consequences of this constitutional infirmity in the ministerial schemes made pursuant to Directive 75/268?
The ministerial schemes not being laws enacted by the Oireachtas are not invalidated by virtue of Article 15.4 of the Constitution. Again that article would have no application and would provide no direct assistance in determining the extent to which the schemes would be invalidated or the date from which they would cease to have operative effect. The ministerial schemes are defective and must be condemned because they fail to respect and vindicate express constitutional rights. In State (McLoughlin) v Eastern Health Board [1986] IR 416 at 426 McCarthy J observed as follows:
… I greatly doubt if any statutory instrument can remain valid when any material portion of it has been judicially condemned; I cannot identify any legal principle of construction to support judicial resuscitation of truncated subordinate legislation.
Whilst I would be happy to adopt that proposition and the felicitious manner in which it is expressed it is even more important to recognize that in the present case, as in the McLoughlin case, the operation of the ministerial schemes without excluding therefrom the married couples who exceeded the income limits for the time being would be to operate a very different scheme from that which had been intended by the minister and sanctioned both in its content and its financing by the Commission. The very large number of persons associated with the plaintiffs in the present case is ample proof of that fact. In the circumstances the argument of the plaintiffs for relief based on the severance of the offensive conditions from the remainder of the schemes cannot succeed.
The question whether a minister may be liable in damages for the ultra vires decision taken by him in good faith was considered in Pine Valley Development Ltd v Minister for the Environment [1987] ILRM 747. In the same case the Supreme Court also considered whether a property owner whose rights were affected by such an ultra vires decision as a result of the failure of the State to defend and vindicate his property right by taking effective action to compensate him for the loss which he sustained as a result of the invalid order. The Supreme Court rejected the claim for damages under either heading in the particular circumstances of that case.
The plaintiffs in the present case unlike those in the Pine Valley case cannot establish the infringement of any personal constitutional right. The only right which they can assert successfully is the general right of the citizens to the performance by the State of its obligation ‘to guard with special care the institution of marriage’. Whilst I accept that citizens are entitled to ensure that that duty is observed and the constitutional pledge is honoured the duty cast on the State does not create a corresponding right in the individual citizen so that a breach of the duty would necessarily constitute an infringement of any right of his. Even if the ultra vires and unconstitutional action of the minister did give rise to an action sounding in damages I would not accept that such damages could be measured by reference to the difference between the headage payments which the plaintiffs would have received under the various ministerial schemes if they had operated in accordance with their terms other than those conditions relating to the income of spouses. This conclusion necesssarily follows from the views which I have already expressed on the non-severability of the offending conditions. The evidence indicated that the amount allocated annually for the ministerial schemes both by the State and by the Commission was determined on the basis of the conditions contained in the schemes including the condition which excluded individuals or married couples with incomes exceeding specified limits. I would not infer from the evidence nor would economic considerations suggest that the moneys available would have been increased to meet the demands which would have arisen if it had been appreciated that these conditions were in part invalid having regard to the provisions of the Constitution. It seems much more likely that appropriate steps would have been taken to redraft these conditions so as to ensure that they did not discriminate against married couples or otherwise penalise the married state. Economic interests, constitutional requirements and public morality would all be in harmony if the condition discriminating against married couples was extended to unmarried couples living together. However, these are not recommendations for amendment but reasons for declining to infer that the damage suffered by the plaintiffs or any of them could be measured by reference to the headage payments from which they were precluded by virtue of the unconstitutional conditions in the ministerial schemes.
The seminal case of damages for breach of constitutional rights is Meskell v Coras Iompair Eireannn [1973] IR 121 and the basic proposition as to that right is set out by Walsh J at 138 as follows:
… a person whose constitutional rights have been infringed may sue to enforce them or he may sue for damages suffered by reason of the infringement.
It seems to me that the constitutional rights of the plaintiffs, that is to say, their personal constitutional rights, have not been infringed. What has happened is that the minister as an agent of the State has neglected to perform his constitutional duty to safeguard the institution of marriage. There is no evidence of damage suffered by the plaintiffs by reason of the neglect by the minister of that constitutional duty.
In these circumstances it seems to me that the plaintiffs are entitled to declaratory relief only and that their claim to damages fails.
One further matter arose in the case which is not material for the purposes of this judgment but it might be helpful to comment on it in case the matter is taken elsewhere. The action was brought by six plaintiffs named in the title to the proceedings and paragraph 12 of the statement of claim went on to assert as follows:
The plaintiffs bring this action on behalf of themselves and on behalf of all farmers in such areas, and in particular those farmers who are listed in the schedule thereto, who, since the implementation of 1979 Regulations and those which follow them, have been refused or have not received headage payments on account of the aforementioned invalid and discriminatory provisions.
In fact no schedule was annexed to the statement of claim but by agreement between the solicitors on behalf of the plaintiffs and the defendants a list of 1390 farmers was transmitted to the defendants in lieu of the schedule referred to in the statement of claim. Counsel contended that all of the persons named in the list were plaintiffs and that the persons named in the title to the proceedings were entitled to sue on behalf and for the benefit of those named in the list without any further order of the court. On behalf of the defendants it was contended that a representative order would be necessary for that purpose and that the same should not be granted. As the nominal plaintiffs did not in fact apply for a representative order no issue was knit. However, evidence was led and argument was addressed to the issue of fact as to how far the persons named in the list had authorised proceedings on their behalf. The listed plaintiffs (as opposed to those named as plaintiffs) did not sign and were not asked to sign any specific authorisation in respect of the proceedings. What the evidence established was that the problem was debated in a number of venues throughout the country where interested parties were invited to attend and a general exchange of views took place. Essentially those who were in favour of pursuing the matter further were asked to subscribe to a fighting fund and I am satisfied on the evidence that they did so on the basis that they would be persons on whose behalf and for whose benefit the proceedings would be brought. I think it unlikely that they anticipated that they might render themselves liable for additional costs as a result of so doing. Indeed the evidence would suggest that the funds collected were such that there should be no need for further recourse to those associated with the proceedings no matter what the outcome of the case. Accordingly I would resolve any issue of fact in regard to this matter by concluding that the listed plaintiffs had authorised the proceedings on their behalf and in their name. As I say this is not material having regard to the decision which I have reached and will be relevant only if my judgment on the substantive issue is reversed by the Supreme Court.
Hayes v Ireland
[2010] IEHC 325
JUDGMENT of Justice William M. McKechnie delivered on the 18th day of June 2010
1. This judgment is given in respect of an application heard by this Court, at the same time as it heard the associated linked cases of GVM Exports Limited (In Voluntary Liquidation) v. Ireland & Ors (Record No.: 2005/843P) and GVM Exports Limited (In Voluntary Liquidation) v. The Minister for Agriculture, Food and Rural Development and District Judge O’Halloran (Record No.: 2003/745 JR), in respect of which a separate judgment is given.
Background:
2. The applicant is a farmer in Emly, County Tipperary, and is currently facing a number of charges in Tipperary District Court. The charges relate to breaches of various regulations relating to the testing of cattle for Bovine Tuberculosis (“TB”) and Brucellosis. The applicant was originally served with 30 summons in 2005 and a further 50 summonses in 2006. As against him, these allege breaches of:
i) Brucellosis in Cattle (General Provisions) Order 1991 (S.I. 114/91) (“Brucellosis Order 1991”) – Articles 5(5), 18(1), 18(2), 18, as amended by Article 10 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 2003 (S.I. 700/03), and 19(7), as amended by Article 7 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 2001 (S.I. 229/01);
ii) Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1989 (S.I. 308/89) (“TB Order 1989”) – Articles 12(4);
iii) European Communities (Identification and Registration of Bovine Animals) Regulations 1999 (S.I. No 276/99) (“EC(IRBA) Regulations 1999”) – Regulations 6(2), 8, 12, 19(b), 20(1), 21 and 24;
iv) Diseases of Animals Acts 1966 to 2001 (Approval and Registration of Dealers and Dealers’ Premises) Order 2001 (S.I. 79/01) (“DAA 1966 to 2001 Order 2001”) – Article 8(3).
3. An example of a summons in one group of such charges will identify the first issue in the case. The summons reads:
“That you the said accused … did on the 10th May 2003 within the State move or allowed to be moved an eligible animal bearing ear-tag number IE 1911269 4 0417 out of your holding [emphasis added] without a valid cattle identity card in respect of that animal or a movement permit permitting such movement contrary to Article 18(1) of the Brucellosis in Cattle (General Provisions) Order, 1991 (S.I. No. 114 of 1991) as inserted by Article 2 of the Brucellosis in Cattle (General Provisions) (Amendment) Order, 1998 (S.I. No. 39 of 1998), an offence within the meaning of Article 31 of the Brucellosis in Cattle (General Provisions) Order, 1991 (S.I. No. 114 of 1991) as inserted by Article 4 of the Brucellosis in Cattle (General Provisions) (Amendment) Order, 2000 (S.I. No. 57 of 2000) and Section 48(1)(a) and (d) of the Diseases of Animals Act, 1966 (No. 6 of 1966).”
As can be seen, what constitutes a “holding” is essential to the offence as charged. A review of the other legislative provisions under which the applicant is also charged, as outlined at para. 2 supra, similarly, either directly or derivatively, rely on the definition of a “holding”.
4. The applicant, to answer such charges, appeared in the District Court before Judge Finn and argued, inter alia, that inconsistencies between national legislation, under which he was charged, and the relevant European Legislation, in particular that relating to the definition of “holding” under EC Regulation 1760/2000, were such that the national legislation should be set aside, and the summons dismissed.
5. The learned Judge reserved judgment, delivering it on the 26th February 2007. He held, when dealing with the holding issue, inter alia, that:
“[T]his Court is satisfied that there is no distinction between the word kept in its singular form and the words held, kept or handled as is set out in the European Directives here.”
Therefore effective transposition was in place. Being dissatisfied with the ruling, the within judicial review proceedings were commenced; with the charges being left stand pending outcome.
6. The applicant takes issue on a number of grounds. In particular the applicant, pursuant to the leave Order of the 26th March 2007 (Peart J.) alleges that:
i) Article 18 of the Brucellosis Order 1991, as amended by Article 2 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998 (S.I. 39/98) (“Brucellosis Order 1998”), an offence within the meaning of Article 31 of the Brucellosis Order 1991, as inserted by Article 4 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 2000 (S.I. 57/2000) (“Brucellosis Order 2000”) is ultra vires s. 3 of the Diseases of Animals Act 1966 (“DAA 1966”) in respect of the 1991 and 1998 Orders and ss. 3, 13, 20 and 27 of the DAA 1966 in respect of the 2000 Order.
ii) Article 18(2) of the Brucellosis Order 1991, as amended by Article 10 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 2003 (S.I. 700/03) (“Brucellosis Order 2003”), and an offence under Article 31 of the Brucellosis Order 1991, as inserted by Article 4 of the Brucellosis Order 2000, are ultra vires s. 3 of the DAA 1966 in respect of the 1991 and 1998 Order, and ss. 12, 20 and 27 of the DAA 1966, as amended by the Diseases of Animals (Amendment) Act 2001 (“DA(Am)A 2001”), in respect of the 2003 Order.
iii) Article 19(7) of the Brucellosis Order 1991, as amended by Article 7 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 2001 (“Brucellosis Order 2001”), (S.I. 229/2001), contrary to Article 11 of the 2001 Order is ultra vires s. 3 of the DAA 1966 in respect of the 1991 Order and ss. 3, 13, 14, 15 and 16 of the DAA 1966 in respect of the 2001 Order.
iv) Article 5(5) of the Brucellosis Order 1991 and Article 31 of the Brucellosis Order 1991, as inserted by Article 4 of the Brucellosis Order 2000 are ultra vires s. 3 of the DAA 1966 in respect of the 1991 Order and ss. 12, 20 and 27 of the DAA 1966 in respect of the 2000 Order.
v) Articles 12(4) and 35 of the TB Order 1989 are ultra vires s. 3 of the DAA 1966.
vi) Articles 3(1) and 8(3) of the DAA 1996 to 2001 Order 2001 are ultra vires ss. 3 and 29A (inserted by the Diseases of Animals (Amendment) Act 2001) of the DAA 1966.
vii) Articles 3, 6, 8, 12, 19, 20(1), 21, 24 and 29(1) of the EC(IRBA) Regulations 1999 are ultra vires s. 3 of the European Communities Act 1972 (“ECA 1972”).
viii) Section 4 of the ECA 1972 as amended by the European Communities (Amendment) Act 1973 is unconstitutional.
The applicant also seeks an Order of certiorari quashing the ruling made by Judge Finn in the District Court on the 26th February 2007, and an Order of prohibition preventing his trial in relation to the above charges.
7. In summary, the applicant alleges that:
i) The definition of “holding” was improperly transposed into national law, and the State has failed to set up the Identification and Registration system as required by European law.
ii) The Orders made under the DAA 1966 are ultra vires the powers granted to the Minister under that Act, either simpliciter, or because they are in fact implementing European law and therefore should have been made under s. 3 of ECA 1972.
iii) The Orders have impermissibly sought to create an indictable offence, since the EC(IRBA) Regulations 1999 have altered or extended the ingredients of offences under the DAA 1966, contrary to s. 3(3) ECA 1972.
iv) The permission granted by s. 4 ECA 1972 to the Minister to create orders with statutory effect is unconstitutional having regard to Article 15.2.1˚ of the Constitution.
v) In the alternative, regulations having statutory effect are not covered by the Interpretation Acts and it is therefore impossible to ascertain a legitimate commencement date.
The Definition of “Holding” in European and national legislation:
8. The applicant has been charged under a number of orders and regulations. It would not appear to be in dispute that the definition of “holding” is a fundamental component of those charges.
9. The applicant contends that there is a fundamental inconsistency between the definition of the phrase “holding” under the national legislation, by reference to which he is charged, and European legislation, in particular Regulation (EC) 1760/2000, “establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97”.
10. The applicant draws attention to the following definitions contained in the Brucellosis Order 1991. “Herd” is defined in Article 2 of that Order as meaning:
“the animals which are for the time being on a particular holding and in case only one animal is for the time being on a particular holding, the animal shall for the purpose of this Order be regarded as being a herd”
“Holding” is defined by that Order as:
“all the land used by an owner of animals, whether solely or jointly with any other person or persons, for farming purposes or used by a dealer for or in connection with an animal purchased or disposed of (by sale or otherwise) by him.”
These definitions are likewise contained in identical form in Article 2 of the TB Order 1989, although in the definition of “holding” under this Article, the word “either” is included so that the definition commences “all the land either used by an owner of animals…”. However, in my opinion, nothing turns on such addition.
11. Article 2 of the EC(IRBA) 1999 defines “holding” as:
“any establishment, construction or, in the case of an open air farm, any place situated within the country in which animals are kept.” (Emphasis added)
12. The applicant seeks to contrast these definitions with the definition of “holding” in Article 2 of Council Regulation 1760/2000, originally contained in Council Regulation 820/97, which defines “holding” as:
“any establishment, construction or, in the case of an open-air farm, any place situated within the territory of the same Member State, in which animals covered by this Regulation are held, kept or handled.” (Emphasis added
13. The applicant contends that the EC(IRBA) Regulations 1999 have not adequately transposed the definition of “holding” under European law; the Irish legislation refers to places where animals are “kept”, but does not include places where animals are also “held” and “handled”. The applicant argues that under the current regime the Restriction Orders served on him must apply to all of his holdings, whereas if the Regulation had been properly transcribed, it would be possible to restrict only places where cattle were “kept” or “held” or “handled”; in the instant case the cattle were only being “held”. There is also currently no requirement for some connection between the animals, other than the fact that they are included in the same “herd”, regardless of geographic location.
14. Although many of the summonses referred on their face to the phrase “holding”, a number of the summons, in particular those alleging breaches of Regulation 8, 6(2) and 24 of the 1999 Order, do not expressly so refer. It should therefore be noted how it is contended that the definition of “holding” is relevant in those instances.
15. With regards to the offences charged under Regulation 8 of the 1999 Order, Regulation 8 requires that:
“A keeper shall not transfer responsibility for an animal unless the passport relating to that animal, which has been signed and completed as appropriate in accordance with Regulation 5 and where appropriate in accordance with Regulation 12, is transferred at the same time to the new keeper.”
Regulation 5, referred to in Regulation 8, requires that a passport which has been issued in accordance with Regulation 4(1)(a) shall be signed by the keeper, and Regulation 4(1)(a) notes that the Minister may issue a passport in the format as set out in the Second Schedule. The front of the passport, as set out in that Schedule, states:
“This is an official document. It is the property of the Minister for Agriculture and Food. Any alteration/defacement/damage renders it invalid. Documents must be signed by the owner/keeper and completed at record of owners/keepers transactions and movements following arrival of animal at each holding.”
It is therefore clear that the definition of a “holding” is relevant to offences under Regulation 8, since the obligations in relation to passports arise at the time of arrival of the animal at a “holding”.
16. In the alternative, under Regulation 5, a passport could be issued in accordance with Regulation 4(1)(b) or 4(1)(c), and in such cases:
“(i) in the case of an animal born on his holding, be signed by the keeper to whom the passport was issued in the space provided, or
(ii) in other cases, be completed and signed by the keeper of the animal to whom the passport is issued at the first available line of the section titled ‘record of owners/keepers (to be completed by each new owner/keeper on arrival of animal at holding)’.” (Regulation 5(b))
Again the definition of “holding” would be a relevant consideration.
17. Regulation 12, referred to in Regulation 8, states:
“Where an animal is moved onto a holding, other than a mart, the new keeper shall, within seven days of such movement, and in any event before responsibility for that animal is transferred further, insert on the passport relating to that animal in the first line available in the section of the passport titled “record of owners/keepers (to be completed by each new owner/keeper on arrival of animal at holding)”—
(a) the date of arrival of the said animal on the holding,
(b) where appropriate, the herd number, or other identification number, allocated by the Minister for the time being to the new keeper,
(c) the name and address of the new keeper, and
sign the passport at the place indicated in that line.”
The definition of a “holding” is clearly an important consideration in this Regulation.
18. With regards to offences charged under Regulation 6(2), the Regulation requires that animals not be moved from a “holding” unless the animal is accompanied by a passport.
19. In relation to the offences charged under Regulation 24, the Regulation states:
“A person shall not, in purported compliance with Regulation 3, 5, 10, 12 or 20, include in any passport, application form, book, document, register or record a particular which he knows to be false or does not know to be true or recklessly include in such passport, application form, book, document, register or record a particular which is false or which he does not know to be true.”
The plaintiff notes that only Regulation 3 is relevant for our purposes, and this states that:
“A keeper shall, in the case of an animal born on his holding and identified in accordance with the 1999 Order after the date of coming into force of these Regulations, within seven days of the date on which the animal has been so identified—
(a) complete an application form in respect of that animal.
(b) sign the application form at the place indicated therefor, and
(c) return the application form by post to the address indicated thereon.”
It is therefore clear that the definition of a “holding” is relevant in all of the summons received and challenged by the plaintiff herein.
20. The plaintiff further contends that in failing to properly transpose the definition of “holding”, the Minister has also failed to comply with four elements of the Identification and Registration system required by EC Regulation 1760/2000, namely:
i) Ear tags within the meaning of Article 4 of the Regulation;
ii) Computerised databases within the meaning of Article 5;
iii) Animal passports within the meaning of Article 6; and,
iv) The keeping of individual registers on each holding within the meaning of Article 7.
21. In reply, with regards to the alleged invalidity of the various Orders and Regulations, as outlined supra, the respondents categorically deny that they are invalid in the ways alleged or at all. It is denied that the national Regulations/Orders have failed to properly transpose Council Regulation No. 820/97 and/or Council Regulation 1760/2000. It is also denied that the Orders/Regulations were in any way ultra vires the powers of the Minister, either under the DAA 1966, or Council Regulations, or at all.
22. When considering whether the EC(IRBA) Regulations 1999 have properly transposed Council Regulations 820/97 and 1760/2000 , and thus whether they comply with the requirements of the Identification and Registration system, one must first consider the ordinary meaning of these phrases. The term “kept”, given its ordinary meaning, could, in my opinion, include the terms “hold” or “handled”. However, it is recognisable that the natural meaning of “kept” could imply some, more than transitory, period of retention. In this regard the ordinary meaning of the word could, in my opinion, ex facie, be broad enough to cover “held” and “handled”, but it is not wholly conclusive.
23. One must therefore also look at the phrase in context. Council Regulation 820/97 was enacted, inter alia, to create a system for the identification and registration of cattle. It arose in circumstances where, as stated in the preamble, the market for beef and beef products had been “destabilised by the bovine spongiform encephalopathy crisis”. It is thus clear that the aim of the Regulation was to re-establish confidence in the market after a major problem due to disease in the food chain, and aimed to do so through “improving the transparency of the conditions for the production and marketing of the products concerned particularly as regards traceability.” Further, it would protect both human and animal health. In this regard, it would seem strange if the phrase “kept” could be utilised to circumvent such rules, which have clear public interest aims, so that a person who was merely “holding” animals would be considered exempt. I am reinforced by this view to some extent, although by no means determinatively, by the definition of “keeper” contained in both the national and European regulations which:
“shall mean any natural or legal person responsible for animals, whether on a permanent or temporary basis, including during transportation or at a market.”
The concept of “keeper” therefore does not imply any permanent or non-transitory element.
24. I would also mention Article 2(3) of EC(IRBA) Regulations 1999 which states that:
“A word or expression that is used in these Regulations and is also used in the Council Regulation or the Commission Regulations has, unless the contrary intention appears, the meaning in these Regulations that it had in the Council Regulation or Commission Regulations.”
25. The parent Regulation having direct effect, it would not be possible for the national legislation to run contrary to it: the applicant has therefore argued that if there is some conflict between the two, the national legislation must inevitably fail. Reference was made to the Simmenthal doctrine of the supremacy of Community / Union law (named after Administrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629. See also Falminion Cost v. ENEL [1964] ECR 585; Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125). This doctrine requires that where national provisions are in conflict with European law, national courts must refuse to apply them (see Craig & de Búrca, “EU Law (4th Ed.)” (2008), Ch. 10).
26. Having considered the above, I do not believe that the EC(IRBA) Regulations 1999 are in conflict with Council Regulation 820/97 and thus also Council Regulation 1760/2000. There is at most ambiguity as to whether the natural and ordinary meaning given to the phrase “kept”, used in the national legislation, is sufficient to cover “held, kept or handled”. In circumstances where there is ambiguity I have therefore had regard to both the circumstances surrounding the Council Regulation and the relationship between the implementing legislation and the parent Regulation. I can only come to the conclusion that the national Regulation has not improperly transposed the European Regulation. I therefore find that the phrase “kept” used in the EC(IRBA) Regulations 1999 can be understood from its context as to include places where animals are also “held” and “handled”, in conformity with the European definition. By implication I therefore also reject the applicant’s assertion that the Minister has failed to properly implement the Identification and Registration system as required under European law in this regard. Although it may have been preferable for the national legislation to transpose the definition verbatim, its failure to so do, is not, in this case, fatal.
Ultra vires and the Diseases of Animals Act 1966:
27. The applicant contends that the control of diseases in cattle, in particular bovine TB and brucellosis, have become an area of exclusive European competency. In this regard orders and regulations made under the old system have now been superseded by European legislation. Further, the Brucellosis Order 1991, Brucellosis Order 1998, Brucellosis Order 2000 and Brucellosis Order 2001 are ultra vires ss. 3, 12, 13, 14, 15, 16, 20, 27 and 29A of the DAA 1966. Before continuing it is therefore necessary and helpful, although lengthy, to set out the relevant provisions of that Act in full.
28. Section 3 of the DAA 1966 states:
“(1) The Minister may make orders, subject and according to the provisions of this Act—
(a) generally, for the due execution of this Act or for the prevention of the spreading of disease;
(b) in particular, for the several purposes specified in this Act, including any matter which under this Act may be prescribed.
(2) The Minister may by order amend or revoke any order under this Act.”
Section 12 states:
“(1) The Minister may prescribe that notice be given of the existence or suspected existence of any particular disease or illness of animals or poultry, the persons by whom the notice is to be given, and the authority to whom and the manner in which it is to be given.
(2) …”
Section 13 states:
“The Minister may, for the purpose of the prevention or checking or eradication of disease, make orders for all or any of the purposes set out in the Second Schedule.”
The relevant parts of the Second Schedule, as amended, state:
“PURPOSES FOR WHICH ORDERS MAY BE MADE BY THE MINISTER UNDER SECTION 13.
1. Securing and regulating effective isolation on land or premises and prohibition or restriction of movement into or out of land or premises or part thereof of animals or poultry affected or suspected of being affected or capable of infecting animals or poultry with a disease or animals or poultry capable of being infected.
2. Securing and regulating the cleansing and disinfection of premises and removal therefrom and subsequent disposal of dung, litter, fodder or any other thing, and exclusion of any animals and birds therefrom.
3. Securing and regulating the cleansing and disinfection of vehicles, places, pens, fittings and receptacles used for animals and poultry.
4. …
5. …
6. …
7. Prescribing and regulating the seizure, detention and disposal of diseased or suspected animals or poultry, carcasses or eggs exposed, carried, kept or otherwise dealt with in contravention of an order of the Minister; and for prescribing the liability of the owner or consignor or consignee of any such animals, poultry, carcasses or eggs in the matter of the expenses connected with the seizure, detention or disposal thereof.
8. …
9. …
10. …
11. Prescribing and regulating the disinfection of the clothes of persons coming in contact with or employed about diseased or suspected animals or poultry and the use of precautions against the spreading of disease by such persons.
12. Prohibiting or regulating or restricting the sale, use or movement of any kind of fodder, litter or other material whereby disease might be spread.
13. Prescribing and regulating the treatment of diseased or suspected animals or poultry, or animals or poultry which appear to the Minister to be in any way exposed to the infection of disease.
14. Prohibiting the exposure for public sale or exhibition or the export of diseased or suspected animals or birds or animals or birds at risk of contracting a disease except under and in accordance with a licence.
15. …
16. Requiring, prescribing and regulating the taking from animals and poultry or any particular, categories of animals and poultry of samples, as appropriate of blood, urine, faeces, or other bodily discharges, semen, saliva, milk, eggs, hair, wool, fur, feathers, mucus, skin or other tissue and, in the case of carcasses of animals or poultry, the taking of samples from such carcasses and the subjection of any samples so taken to such tests as may be necessary to establish or confirm the existence of disease, and the submission of reports on such tests.
17. Requiring, prescribing, regulating and prohibiting the application to or the injection into animals and poultry of any substance with a view to the carrying out of such tests as may be necessary to establish or confirm the existence of disease and the submission of reports on such tests.
18. Requiring, specifying or regulating any other tests of animals and poultry for the purpose of establishing or confirming the existence of disease.
19. Prohibiting, except with the consent of the Minister, tests of animals and poultry, other than such tests as are prescribed, specified or regulated by an order of the Minister.
20. Requiring, specifying, regulating and prohibiting (except with the consent of the Minister) the treatment of animals or poultry with serum or vaccine.
21. Prescribing in relation to any particular disease, that persons may not engage in the business of dealing in animals or poultry unless authorised by a licence issued in that behalf by the Minister and subject to such conditions as may be set out in such licence.
22. Purposes ancillary or incidental to any of the foregoing purposes.”
Section 14 states:
“(1) The Minister may prescribe—
(a) the cases in which places and areas are to be declared to be infected or at risk of being infected with a disease;
(b) the authority, mode and conditions by and on which declarations in that behalf are to be made;
(c) the effect and consequences of such declarations;
(d) the duration and discontinuance of such declarations; and
(e) other matters connected with the making of such declarations.
(2) The Minister may by order alter the limits of a place or area declared to be infected or at risk of being infected by disease.
(3) Every place or area so declared infected or at risk of being infected shall be an infected place or area for the purposes of this Act.
(4) Where an order is made declaring a place or area or an area or place at risk of being infected to be no longer an infected place or area then from the time specified in the order the place or area shall cease to be, or be in, an infected place or area or an area or place at risk of being infected.
(5) An order or notice of the following description—
(a) an order of the Minister or of a local authority declaring a place to be an infected place or area, or declaring a place or area to be no longer an infected place or area; or
(b) a notice served in pursuance of directions of the Minister or of a local authority by virtue of an order made under this section,
shall be evidence, until the contrary is shown to all intents of the existence or cessation of the disease and of any other matter whereon the order or notice proceeds.”
Section 15 states:
“The Minister may make orders—
(a) prescribing and regulating the publication, in relation to a place or area declared infected or at risk of being infected, of the fact of such declaration;
(b) prohibiting or regulating the movement of animals and poultry and persons into, within, or out of an infected place or area or a place or area suspected of being at risk of being infected;
(c) prescribing and regulating the isolation or separation of animals and poultry being in an infected place or area or a place or area suspected of being at risk of being infected;
(d) prohibiting or regulating the removal of carcasses, eggs, fodder, litter, utensils, pens, hurdles, dung, or other things into, within, or out of an infected place or area or a place or area suspected of being at risk of being infected;
(e) prescribing and regulating the destruction, burial, disposal, or treatment of carcasses, eggs, fodder, litter, utensils, pens, hurdles, dung, or other things, being in an infected place or area or a place or area suspected of being at risk of being infected, or removed thereout;
(f) prescribing and regulating the cleansing and disinfection of infected places and areas or a place or area suspected of being at risk of being infected, or parts thereof, and of receptacles or vehicles used for the confinement or conveyance of animal or poultry;
(g) prescribing and regulating the disinfection of the clothes of persons being in an infected place, and the use of precautions against the spreading of disease by such persons.”
Section 16 states:
“A person owning or having charge of animals, poultry or eggs in an infected place or area or a place or area suspected of being infected may affix, at or near the entrance to a building, enclosure or farm in which the animals, or poultry or eggs are, a notice forbidding persons to enter thereon without the permission mentioned in the notice, and thereupon it shall not be lawful for any person, not having by law a right of entry or way into, on or over that building, enclosure or farm, to enter or go into, on, or over it without that permission.”
Section 20 states:
“The Minister may make, in relation to any clearance area or attested or disease-free area, orders—
(a) as to animals or poultry affected or suspected of being affected or capable of affecting animals or poultry with the relevant disease—
(i) authorising the taking of possession, by agreement, of the animals or poultry on behalf of the Minister;
(ii) in default of agreement, securing and regulating the removal out of the area or slaughter of the animals or poultry;
(iii) securing and regulating the isolation and maintenance of the animals or poultry pending their being taken possession of on behalf of the Minister or removed out of the area or slaughtered;
(b) securing and regulating the isolation and testing from time to time of animals or poultry brought on to land or premises;
(c) the prohibition or restriction of the movement of animals and poultry into, out of, through or within the area;
(d) securing and regulating the keeping of records in relation to animals or poultry and the production and inspection of the records;
(e) specifying forms of notices to be served under orders made by virtue of this section;
(f) providing, in cases in which there has been failure to comply with the requirements of any such notice, for—
(i) in case the notice requires removal out of the area or slaughter of animals or poultry—the taking of possession of the animals or poultry, their disposal as the Minister think fit and the recovery (without prejudice to any penalty that may have been incurred) of the cost of taking possession of the animals or poultry and of thereafter maintaining them and disposing of them;
(ii) in any other case—the carrying out of the requirements of the notice by or on behalf of the Minister and the recovery (without prejudice to any penalty which may have been incurred) of the cost of carrying out the requirements;
(g) determining, in the case of holdings situate partly within and partly outside any clearance, attested or disease-free area, or situate wholly or partly within two or more such areas, the area to which such holdings belong;
(h) authorising entry on land or premises for the purposes of any such order;
(i) for purposes ancillary or incidental to any of the foregoing purposes.”
Section 27 states:
“The Minister may make orders—
(a) prohibiting, regulating or restricting the movement save under licence of animals or poultry and the removal of carcasses, fodder, litter, dung, eggs and other things, for prohibiting and regulating the user of eggs and for prescribing and regulating the isolation of animals or poultry newly purchased or imported;
(b) prescribing and regulating the issue and production of licences in regard to the movement and removal of animals, poultry, eggs and things;
(c) prohibiting or regulating the holding of markets, fairs, exhibitions and sales of animals or poultry and the exposure of animals and poultry thereat;
(d) prescribing and regulating the cleansing and disinfection of places used for the holding of markets, fairs, exhibitions or sales of animals or poultry or for lairage of animals, and yards, sheds, stables, and other places used for animals or poultry;
(e) prescribing and regulating the cleansing and disinfection of vessels, aircraft, vehicles, places, pens and fittings, used for animals or poultry or for the carrying of animals or poultry or purposes connected therewith;
(f) prescribing and regulating the records to be kept of purchases and sales of animals and poultry, the manner in which such records are to be kept and the circumstances under which, and the authority or person to whom, the contents of such records are to be made known.”
Section 29A (see para. 6 (vi) supra.) states:
“(1) In this section ‘dealer’ means a person who purchases an animal or poultry and sells and supplies the animal or poultry to another person within a period of 45 days.
(2) The Minister may by order—
(a) regulate the possession, purchase, sale or supply of animals and poultry, or animals and poultry of a particular class or description, by dealers for the purpose of preventing the outbreak or spread of a disease or for the purpose of preventing injury or suffering to animals or poultry,
(b) provide for the approval and registration of dealers and dealers’ premises.
(3) Subject to this section, a person who purchases an animal shall not sell or supply that animal while it is alive for a period of not less than 30 days and, during that period, shall hold the animal on land in his or her ownership or under his or her control.
(4) Subsection (3) shall have effect only during such period and in respect of the whole of or such part or parts of the State as may be specified by the Minister by order, where he or she considers it reasonably necessary to avoid the outbreak or spread of disease or diseases of a particular class or description.
(5) The Minister or an officer of the Minister may issue a permit to a person or dealer or a class of person or dealer permitting an animal to be sold or supplied within the period referred to in subsection (3).
(6) In this section ‘sell’ includes offer, expose or keep for sale, invite an offer to buy, or distribute for reward and cognate words shall be construed accordingly.”
Section 48 states:
“(1) If a person, without lawful authority or excuse, proof of which shall lie on him, does any of the following things, he shall be guilty of an offence—
(a) if he does anything in contravention of this Act, or of an order of the Minister, or of a regulation of a local authority; or
(b) if, where required by this Act or by an order or regulation made thereunder to keep an animal or bird separate as far as practicable, or to give notice of disease with all practicable speed, he fails to do so; or
(c) if he fails to give, produce, observe, or do any notice, licence, rule, or thing which by this Act, or by an order of the Minister, or by a regulation of a local authority, or by an authorised person he is required to give, produce, observe, or do; or
(d) if he does anything which by this Act or an order of the Minister is made or declared to be not lawful; or
(e) if he does or omits anything, the doing or omission of which is declared by this Act or by an order of the Minister to be an offence; or
(f) if he refuses to an inspector or other officer or authorised person acting in execution of this Act or of an order of the Minister, or of a regulation of a local authority, admission to any land, building, place, vessel, pen, vehicle, boat or aircraft which the inspector or officer is entitled to enter or examine, or obstructs or impedes him in so entering or examining, or otherwise in any respect obstructs or impedes an inspector or a member of the Garda Síochána in the execution of his duty, or assists in any such obstruction or impeding; or
(g) …
(h) if when duly required to do so under this Act or any order made thereunder he refuses or fails to give information within his knowledge or wilfully or negligently gives false or misleading information.
(2) A person who is guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding £100.
(3) A person who has been convicted of an offence under any paragraph of subsection (1) shall, if within twelve months after such conviction he commits a further offence under the same paragraph, be liable on summary conviction, at the discretion of the court, to imprisonment for a term not exceeding one month in lieu of the fine to which he is liable under subsection (2).”
And, section 49 states:
“(1) If a person does any of the following things, he shall be guilty of an offence—
(a) if, with intent to evade this Act or an order of the Minister or a regulation of a local authority, he does anything for which a licence is requisite under this Act or an order of the Minister or a regulation of a local authority, without having obtained a licence; or
(b) if, where a licence is requisite, having obtained a licence, he, with the like intent, does the thing licensed after the licence has expired; or
(c) if he uses or offers or attempts to use as such a licence an instrument not being a complete licence, or an instrument untruly purporting or appearing to be a licence, unless he shows to the satisfaction of the court that he did not know of that incompleteness or untruth and that he could not with reasonable diligence have obtained knowledge thereof; or
(d) if he alters or falsely makes or antedates or counterfeits or offers or utters, knowing it to be altered, or falsely made or ante-dated or counterfeited, a licence, declaration, certificate, or instrument made or issued, or purporting to be made or issued, under or for any purpose of this Act or of an order of the Minister or a regulation of a local authority; or
(e) if, for the purpose of obtaining a licence, certificate or instrument, he makes a declaration or statement false in any material particular, unless he shows to the satisfaction of the court that he did not know of that falsity and that he could not with reasonable diligence have obtained knowledge thereof; or
(f) if he obtains or endeavours to obtain such a licence, certificate or instrument by means of a false pretence, unless he shows to the satisfaction of the court that he did not know of that falsity, and that he could not with reasonable diligence have obtained knowledge thereof; or
(g) if he grants or issues such a licence, certificate or instrument, being false in any date or other material particular, unless he shows to the satisfaction of the court that he did not know of that falsity, and that he could not with reasonable diligence have obtained knowledge thereof, or if he grants or issues such a licence, certificate or instrument, having and knowing that he has no lawful authority to grant or issue it; or
(h) if, with intent to evade or defeat this Act or an order of the Minister, or a regulation of a local authority, he grants or issues an instrument being in form a licence, certificate or instrument made or issued under this Act or an order of the Minister or a regulation of a local authority, for permitting or regulating the movement of a particular animal or bird or the doing of any other particular thing, but being issued in blank, that is to say, not being before the issue thereof so filled up as to specify any particular animal or thing; or
(i) …
(j) …
(k) …
(l) if, where the Minister has by order prohibited, absolutely or conditionally, the use for the carrying of animals or birds or for any purpose connected therewith of a vessel, vehicle, aircraft or pen or other place, he without lawful authority or excuse, proof whereof shall lie on him, does anything so prohibited.
(2) A person who is guilty of an offence under subsection (1) shall be liable on summary conviction to a fine not exceeding £100 or, at the direction of the court, to imprisonment for a term not exceeding two months.”
29. Sections 48 and 49 of the DAA 1966, which relate to penalties for offences thereunder, were amended by s. 23 of the Bovine Diseases (Levies) Act 1979, which was later amended by s. 7 of the Bovine Diseases (Levies)(Amendment) Act 1996. These Acts included provision for prosecution on indictment, and increased the fines and potential imprisonment for offences under the DAA 1966. Section 7 provides for a maximum penalty of IR£1,500 and/or a term of imprisonment not exceeding six months in the case of summary conviction. Two separate regimes were created for offences on indictment. The first relates to offences where the person is convicted by reason of having:
“(I) in contravention of an order of the Minister under the Act of 1966, interfered with or removed an ear-tag, or
(II) altered or falsely made or ante-dated or counterfeited, or offered or uttered, knowing it to have been altered or falsely made or ante-dated or counterfeited, a licence, declaration, certificate or instrument described in section 49 (1) (d) of the Act of 1966.” (s. 7(b)(i))
In relation to these offences a person convicted is subject to a maximum fine of IR£10,000 and/or a term of imprisonment not exceeding two years. If a person is otherwise so convicted on indictment, the maximum fine is IR£5,000 and/or a term of imprisonment not exceeding one year.
30. The impugned Orders were all adopted under the DAA 1966, with the exception of the EC(IRBA) Regulations 1999 which were adopted pursuant to s. 3 of the ECA 1972. However, they were not all adopted pursuant to the same sections of the DAA 1966. For the sake of clarity and completeness the sections under which they were adopted in each case should be set out:
• TB Order 1989 (S.I. No. 308/89) – Arts. 3, 13, 14, 19, 20, 27 and 48
• Brucellosis Order 1991 (S.I. No. 114/91) – Arts. 3, 12, 13, 19, 20, 27 ad 48
• TB (Amendment) Order 1996 (S.I. No. 85/96) – Arts. 3, 13, 20 and 27
• Brucellosis Order 1996 (S.I. No. 86/96) – Arts. 3, 13, 20 and 27
• TB Order 1996 (S.I. No. 103/96) – Arts. 3, 13, 14, 19, 20, 27 and 48
• Brucellosis Order 1998 (S.I. No. 39/98) – Arts. 3, 13, 20 and 27
• TB Order 1999 (S.I. No. 277/99) – Arts. 3, 13, 14, 19, 20, 27 and 48
• Brucellosis Order 2000 (S.I. No. 57/00) – Arts. 3, 13, 20, and 27
• DAA 1966 to 2001 Order 2001 (S.I. No. 79/01) – Arts. 3 and 29A
• Brucellosis Order 2003 (S.I. 700/03) – Arts. 3, 13, 15 and 27
As can therefore be seen each relies on a number of powers granted to the Minister under the DAA 1966.
31. The applicant, in written submissions, alleges in particular that Article 3 of the Brucellosis Order 1991 is contrary to s. 20(b) of DAA 1966. Article 3 of the Brucellosis Order 1991 states:
“It appearing to the Minister to be necessary for the eradication of brucellosis and the Minister being satisfied that brucellosis is virtually non-existent in the State, for the purposes of such eradication and of the Act the State is hereby declared to be an attested or disease-free area.”
In his view, that section only authorises the making of orders requiring post movement testing; thus Article 18(2) substituted by Article 2 of the Brucellosis Order 1998, which requires a blanket 30 day pre-movement test, without any change to the State’s declared attested status, is ultra vires the DAA 1966.
32. The applicant contends that although the 30 day pre-movement test is a requirement under, inter alia, EEC Commission Decision 81/401, it is still ultra vires the DAA 1966, since the time of the alleged offences predates the validation given by the European Communities Act 2007 to European law implemented under Acts that do not otherwise provide for it.
33. Furthermore, with regards to the 30 day pre-movement test for brucellosis the Minister does not purport to objectively justify imposing a blanket requirement for a pre-movement test in what the competent authority has declared to be an attested or disease free area, i.e. the State.
34. Similarly with regards to the pre-movement requirement imposed on the applicant by the Brucellosis Order 2003, which provides at Article 10:
“Paragraph (2) of Article 18 of the Principal Order, as inserted by the 1998 Order, is hereby substituted by the following:
“(2) An eligible animal may not be moved into or out of any holding other than directly to a premises at which it is to be slaughtered or in the case of eligible male animals directly to an approved assembly centre for onward movement to slaughter in a country not requiring such a test unless —
(a) the animal has passed a blood test for brucellosis within the period of 30 days prior to the day on which the animal is so moved, and
(b) the date of such blood test is specified on the passport or cattle identity card in respect of such animal or movement permit issued in respect of such movement.”
35. More generally the applicant contends that orders made under the DAA 1966 cannot give effect to European law. In particular such would be inconsistent with the decisions of the Supreme Court in Browne v. Ireland [2003] 3 IR 305 and Kennedy v. Ireland [2005] IESC 36. The applicant notes however that the Orders at issue in those proceedings have been retrospectively validated by s. 4 of the European Communities Act 2007.
36. In reply, the respondents firstly note that historically, particularly before membership of the Union, there has been a domestic statutory and regulatory framework, periodically reviewed, which introduced detailed and comprehensive rules relating to testing, movement, identification, isolation and trade in bovine animals in the State. Secondly, the principles and policies which underlie such rules, namely the eradication of certain animal diseases, including, inter alia, bovine tuberculosis and brucellosis, are currently set out in the DAA 1966 as amended, which itself consolidated earlier animal health legislation dating back to 1894. Thirdly, all of the impugned Orders, expressly made under powers conferred on the Minister by the DAA 1966 and DA(Am.)A 2001, give effect to the principles and policies as set out by the Oireachtas in those Acts.
37. The respondents characterised the above argument of the applicant and then responded. First the characterisation: whereas the Minister may well have been entitled to make orders under the DAA 1966, prior to accession to the Community in 1973, or perhaps prior to the 1990s when the European Union became more active in animal disease control, those Orders created under the 1966 Act became invalid when European directives or regulations were issued which were relevant to any of the subject matters of those Orders, even where the domestic legislation was not inconsistent with any instruments of European law. The respondents’ reply: it is not a requirement of Irish constitutional law that any obligations imposed on the State by the EU, whether by directive or regulation, can only by brought into force by a statutory provision which provides for the making of an order to give effect to European legislation, and these pre-existing provisions are not rendered invalid, merely by the imposition of EU legislation in the area, where national measures are already consistent.
38. When considering allegations of ultra vires, the starting point must inevitably be whether the impugned regulations fall within the four walls of their parent legislation, ex facie. The applicant has particularised his allegations in this regard and I propose to deal with each in turn.
39. The first allegation is that Article 18 of the Brucellosis Order 1991, as inserted by Article 2 of the Brucellosis Order 1998 is ultra vires s. 3 of DAA 1966. Article 18 as amended states:
“18. (1) An eligible animal may not be moved into or out of any holding unless the person in charge of the animal has in his possession a valid cattle identity card in respect of such animal or a movement permit permitting such movement.
(2) An eligible animal may not be moved into or out of any holding other than directly to a premises at which it is to be slaughtered unless—
(a) the animal has passed a blood test within the period of 30 days prior to the day on which the animal is so moved, and
(b) the date of such blood test is specified in the cattle identity card in respect of such animal or movement permit issued in respect of such movement.
(3) A bull aged 12 months or more or a female animal aged 18 months or more may be sold not more than once, whether by public or private sale, during the period of 30 days from the carrying out of a blood test referred to in paragraph (2) of this Article.
(4) Where a bull or female animal, to which paragraph (3) of this Article applies, is sold, in accordance with that paragraph, by private sale, it shall be moved from the holding on which the blood test referred to in paragraph (2) of this Article has been carried out, directly to the holding of the purchaser.
(5) A bull or female animal, to which paragraph (3) of this Article applies, may be moved from the holding on which the blood test referred to in paragraph (2) of this Article has been carried out directly to a mart (within the meaning of the Livestock Marts Regulations, 1968 ( S.I. No. 251 of 1968 )) for the purposes of being sold, in accordance with the said paragraph (3), and where such bull or female animal—
(a) is sold at such mart, it shall be moved from the mart directly to the holding of the purchaser, or
(b) is not so sold, it shall be moved from the mart directly to the first-mentioned holding.
(6) Where an eligible animal is being moved into or out of any holding, a veterinary inspector or authorised officer may require the person in charge of the animal to produce for inspection by him the movement permit issued in respect of such movement or identity card in respect of such animal and in case a requirement is made under this paragraph the person of whom it is made shall forthwith comply with the requirement.”
40. Section 3 of DAA 1966 permits the Minister to make orders generally either (i) for the execution of the Act or (ii) for the prevention of the spreading of disease, and particularly for the several purposes as specified in the Act. It is clear that Article 18 of the Brucellosis Order 1991, as amended by Article 2 of the Brucellosis Order 1998 is therefore, ex facie, intra vires s. 3 of DAA 1966.
41. The applicant also takes issue with Article 18 of the Brucellosis Order 1991, as amended by Article 10 of the Cattle (General Provisions) (Amendment) Order 2003. This amends Article 18(2) of the 1991 Order so as to read:
“An eligible animal may not be moved into or out of any holding other than directly to a premises at which it is to be slaughtered or in the case of eligible male animals directly to an approved assembly centre for onward movement to slaughter in a country not requiring such a test unless —
(a) the animal has passed a blood test for brucellosis within the period of 30 days prior to the day on which the animal is so moved, and
(b) the date of such blood test is specified on the passport or cattle identity card in respect of such animal or movement permit issued in respect of such movement.”
I am satisfied that no distinction of relevance, with regards to the ultra vires of the Article arises from this amendment, and consequently my conclusions in relation to Article 18 as amended by the 1998 Order equally apply.
42. The next article which the applicant takes issue with is Article 4 of the Brucellosis Order 2000, which amends Article 31 of the Brucellosis Order 1991, and extends its application to breaches of the Brucellosis Order 1998. Article 4 of the 2000 Order states:
“Article 31 of the Principal Order is replaced by the following Article:
‘31. Where a person contravenes any provision of this Order or of the 1998 Order, he shall be guilty of an offence under the Act’.”
The applicant contends that this Article is ultra vires ss. 3, 13, 20 and 27 of DAA 1966. With regards to s. 3 (see para. 28 supra.) it must fall under the first part, namely in and for the execution of the Act. It must therefore be referable to another section of the Act and be in execution of it. Section 13 permits the Minister to make orders for the prevention, checking or eradication of disease for all or any of the purposes set out in the Second Schedule. The Second Schedule of the Act contains a number of purposes, however the most relevant with regards to Article 4 is part 22 of the Schedule which allows orders for purposes ancillary or incidental to any of the other purposes listed. It is clear that in circumstances where the Minister may make orders prohibiting, prescribing, requiring or regulating certain actions, he must be able to sanction for failure to comply with such orders. Article 4 is therefore intra vires s. 13 of DAA 1966; similarly with regards to s. 20 of DAA 1966. In relation to s. 27 of DAA 1966, although this section does not contain an ancillary action clause, it is patent that as part of making orders which may prohibit, prescribe, regulate or restrict certain specified actions, the Minister must be able to include some form of sanction for breach. As stated, the Brucellosis Order 2000 is purported to be made under ss. 3, 13, 20, and 27 of DAA 1966, therefore Article 4 of the 2000 Order should fall within one of those sections. It is not possible to fully differentiate within the Order as to which particular Article has been enacted pursuant to which section, although it may be more apparent in some cases. In any event, it is not necessary to identify the exact section, once I am satisfied that the Article in question is intra vires the Act itself. As stated, I am confident that Article 4 of the Brucellosis Order 2000 is intra vires ss. 3, 13 and 20, and am of the opinion that it is almost certainly intra vires s. 27 of DAA 1966 as well. It is therefore not ultra vires any of the sections as alleged or at all.
43. The next provision which the applicant takes issue with is Article 19(7) of the Brucellosis Order 1991, as amended by Article 7 of the Brucellosis Order 2001, which provides that:
“It shall not be lawful for a keeper to be in possession of or to have under his control an animal whose eartag or eartags have been interfered with or altered in any way.”
The applicant alleges that this Article is contrary to ss. 3, 13, 14, 15 and 16 of the DAA 1966. Again it is clear that firstly, s. 3 merely grants powers in execution of the Act, and is therefore not an authoritative provision. For the same reasons as considered in relation to Article 31 of the Brucellosis Order 1991, as amended, (see para. 42 supra.), I am satisfied that this article is not ultra vires the sections of the DAA 1966 as identified. Similarly I am confident that Article 5(5) is intra vires ss. 3, 12, 20 and 27 of the DAA 1966, as are Articles 12(4) and 35 of the TB Order 1989.
44. The applicant next contends, in this regard, that Articles 3(1) and 8(3) of the DAA 1966 to 2001 Order 2001 are ultra vires ss. 3 and 29A of the DAA 1966. Article 3(1) of the aforesaid Order of 2001 states:
“It shall not be lawful for a dealer to engage in the buying or selling of animals or poultry other than in compliance with this Order.”
Article 8(3) thereof states:
“Where the Minister suspends or revokes a registration made under Article 6, the person concerned shall cease to be registered in the dealer’s register and he or she shall not engage in dealing in animals or poultry subsequent to the date of revocation or suspension, as in the case may be, except with the approval of the Minister.”
Again, on consideration of the powers conferred by the DAA 1966 as amended, I am satisfied that these provisions are intra vires.
Ultra vires s. 3 ECA 1972:
45. Finally in this regard, the applicant contends that Articles 3, 6, 8, 12, 19, 20(1), 21, 24 and 29(1) of the EC(IRBA) Regulations 1999 are ultra vires s. 3 ECA 1972. Section 3 ECA 1972 provides:
“(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(3) Regulations under this section shall not create an indictable offence.
(4) …”
46. It is therefore clear from s. 3(3) that regulations under s. 3 may not create an indictable offence. This limitation was considered in Browne v. Ireland [2003] 3 IR 219:
“It is beyond argument at this stage that the law as laid down by this court in Cityview Press v. An Chomhairle Oiliúna [1980] IR 381, that secondary legislation will trespass on the exclusive law making role of the Oireachtas unless it does no more than give effect to principles and policies laid down in an Act of the Oireachtas, is not applicable to regulations intended to give effect, by virtue of s. 3 of the Act of 1972, to European Community measures such as the Council Regulation of 1998. There is, however, one crucial qualification to that general statement of law, namely, that any such regulation cannot create an indictable offence.
47. In the present case the applicant alleges that since s. 7 of the Bovine Diseases (Levies) (Amendment) Act 1996 provides for an indictable offence for breach of a ministerial order under DAA 1966, and since such orders were amended and extended by the EC(IRBA) Regulations 1999, which was made under s. 3 ECA 1972, this is ultra vires as a contravention of the prohibition on the creation of an indictable offence, which is referable to a Regulation made under s. 3 ECA 1972. Section 7 of the above Act of 1996 provides for both summary and indictable offences, in particular s. 7(1) provides:
“A person convicted of an offence under the Act of 1966 for which a penalty is provided for in section 23 of the Principal Act shall, in lieu of that penalty—
(a) on summary conviction be liable to a fine not exceeding £1,500, or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fine and such term of imprisonment,
(b) on conviction on indictment, be liable—
(i) in case such person is so convicted by reason of his having—
(I) in contravention of an order of the Minister under the Act of 1966, interfered with or removed an ear-tag, or
(II) altered or falsely made or ante-dated or counterfeited, or offered or uttered, knowing it to have been altered or falsely made or ante-dated or counterfeited, a licence, declaration, certificate or instrument described in section 49 (1) (d) of the Act of 1966,
to a fine not exceeding £10,000, or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such term of imprisonment,
(ii) in case such person is otherwise so convicted, to a fine not exceeding £5,000, or, at the discretion of the court, to imprisonment for a term not exceeding one year or to both such fine and such term of imprisonment.”
It is therefore claimed that the extending or altering the ingredients of indictable offences by statutory instrument, amounts to a breach of s. 3(3) ECA 1972. Note, the “Principal Act” referred to in the section is the Bovine Diseases (Levies) Act 1979: see para. 29 supra.
48. It is a reasonable proposition that if s. 3 prohibits the creation of indictable offences, it must logically exclude the extension or alteration of them since the expansion of a criminal provision already in place may create new criminal liability where there was non before; similarly with regards to the alteration of existing criminal offences. The question before me must thus be whether the impugned articles of the EC(IRBA) Regulations 1999 do in fact extend or alter the ingredients of an indictable offence(s). The relevant impugned articles of the EC(IRBA) Regulations are Articles 3, 6, 8, 12, 19, 20(1), 21, 24 and 29(1).
49. Before looking at these Articles it must be borne in mind that if any of the Articles of the EC(IRBA) Regulations 1999 are breached, then under Article 29 they will be prosecutable summarily only. No provision is expressly made for indictable offences within these Regulations. On its face, the Regulations are therefore intra vires s. 3(3) ECA 1972. Article 29 should therefore be kept in mind when examining the below Articles, since a breach of their provisions is expressly stated to be summarily prosecutable. It is only if it could be said that one of the Articles amends the relevant part of an order which itself creates an indictable offence that any Article of the EC(IRBA) Regulations will be ultra vires.
50. I shall now turn to consider each of the impugned Articles in order. Article 3 requires a “keeper”, within 7 days of the birth of an animal, to complete an application form, sign the application form at the place indicated therefor, and return the application form to the address indicated thereon. I am satisfied that it in no way alters or amends the provisions of any prior order made under the DAA 1966. Its breach is only prosecutable summarily under Article 29.
51. Article 6 requires that:
“(1) Without prejudice to the generality of Article 5 of the 1999 Order, any requirement in the 1989 Order or the Brucellosis in Cattle (General Provisions) Order, 1991 (S.I. No. 114 of 1991) for an animal to be accompanied by an appropriately completed identity card shall, in the case of an animal in respect of a which a passport has been issued, be construed as a like requirement for that animal to be accompanied by that passport.
(2) Without prejudice to the generality of paragraph (1) a keeper shall not move an animal to which these Regulations apply from a holding unless the animal is accompanied by that passport.
(3) …”
Again I am satisfied that, having regard to the Orders referred to, this Article does not extend or alter any element of an indictable offence. Its breach is sanctionable only through Article 29.
52. In relation to the remaining articles. In summary:
? Article 8 provides that a keeper shall not transfer responsibility for an animal unless the passport has been properly signed and completed.
? Article 12 provides that a keeper shall, within 7 days of moving an animal to a new keeper, complete certain matters on the passport.
? Article 19 provides that a person shall not alter, efface, obliterate or make a false or unauthorised entry on a passport, or otherwise have in his possession a passport so altered, effaced or obliterated or has false or unauthorised entries, or have possession a passport other than one issued and transferred in accordance with the Regulations, or have in possession any document capable of being confused with a passport.
? Article 20(1) provides that a keeper shall keep a register of certain specified particulars including, inter alia, the number of animals present on the holdings.
? Article 21 requires that any register created in pursuance of the Regulations shall be produced or surrendered to an authorised person or a member of the Garda Síochána on demand.
? Article 24 provide that a person shall not include in any passport, application form, book, document, register or record a particular which he knows to be false or does not know to be true, or recklessly includes in such a passport etc. a particular which is false or which he does not know to be true.
None of these Articles purport to alter or amend any existing indictable offence. Any sanction for their breach is only prosecutable summarily under Article 29.
53. I am therefore confident that the Articles 3, 6, 8, 12, 19, 20(1), 21, 24 and 29(1) of the EC(IRBA) Regulations 1999 are intra vires s. 3 ECA 1972. The Articles clearly do not create any indictable offences ex facie. Nor can I see that they amend or alter any existing indictable offence which might be provided for under any of the other Regulations made under the DAA 1966; indeed none of the Articles purport to do so. The only sanction for breach of any of these Articles is under Article 29 of the Regulations and is summary in nature.
54. In relation to the allegations that certain provisions of the EC(IRBA) Regulations affect the operation of indictable offences, I would finally note that the applicant herein has not been charged with any such indictable offence. It could therefore be considered that his challenge in this regard could be moot or an expression of ius tertii. Notwithstanding the correctness or otherwise of this, I have proceeded to consider the above arguments, and nothing in fact turns on my considerations in this regard.
55. Having regard to the above, I am therefore satisfied that none of the provisions impugned by the applicant herein are ultra vires any of their parent Acts as contended or at all, and that the EC(IRBA) Regulations 1999 are intra vires s. 3(3) ECA 1972. I would therefore dismiss the applicant’s claim in this regard.
Orders made under 1966 Act giving effect to European law:
56. The applicant alleges that a number of the Orders referred to above improperly seek to implement European law requirements under the 1966 Act. In particular, the applicant impugns:
i) TB Order 1996 – which, he claims, seeks to introduce the identification requirements in terms of eartags from Directive 92/102/EC;
ii) TB Order 1999 – which seeks to introduce the identification requirements in terms of eartags and passports from Council Regulation 820/78;
iii) TB Order 2000 – which seeks to transpose provisions relating to health problems affecting intra-Community trade in bovine animals and swine, insofar as they relate to TB, from Council Directives 97/15/EC, 98/46/EC and 98/99/EC.
57. In Browne v. Ireland [2003] 3 IR 205 the Supreme Court held that the Sea Fisheries (Drift Net) Order 1998, an order made by the Minister for Marine and Natural Resources to give effect to Council Regulation (EC) No. 1239/98 was ultra vires s. 223A of the Fisheries (Consolidation) Act 1959 (as amended) (“the 1959 Act”). Similarly, in Kennedy v. Attorney General [2007] 2 IR 45 the Court held that the Mackerel (Licensing) Order 1999, an order made by the Minister for Marine and Natural Resources to give effect to Council Regulation (EEC) 2847/93 as amended by Council Regulation (EEC) 2846/98 was ultra vires s. 223A of the 1959 Act. In both cases the Supreme Court was satisfied that the Minister could have made the impugned Regulations under s. 3 ECA 1972 as he was merely giving effect to principles and policies contained in EC and EEC Regulations made by the Community, as part of the Common Fisheries Policy. However, the question arose as to whether the Minister was entitled to use the powers conferred by s. 223A of the 1959 Act to give effect to the EC instruments in question.
58. The respondents contend that it is clear from Browne that s. 3 ECA 1972 is not the only method of implementing European law. In particular they draw attention to the comments of Denham J. ([2003] 3 IR 205 at 242-243) where she stated:
“Of course the European Communities Act 1972 is not the only statute setting out procedures empowering a minister of state to make regulations for implementing Community law. While it is the primary such statute the Oireachtas may and has legislated in other statutes for modes of implementation. The legislature is not barred from revisiting the issue.”
59. They further draw attention to what they contend is the ratio of both Browne and Kennedy. Keane C.J. in Browne at p. 220 of the report stated:
“It is clear, in this case, that the Order of 1998 was intended to give effect to the principles and policies as to the conservation of fishery resources adopted by the Council in Council Regulation 1998. There is not any Act of the Oireachtas in existence setting out principles and policies applicable to the conservation of fishery resources both within the exclusive fishery limits of the State and on the high seas. As is clear from the judgment of the Court of Justice in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 804/79) [1981] 2 ECR 1045, since the 1st January, 1979, the power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has been vested exclusively in the European Communities.
I am satisfied that it follows inevitably that the Order of 1998 was not intended to give effect to principles and policies set out by the Oireachtas in parent legislation. It was intended simply to give effect to the principles and policies adopted by the Communities in Council Regulation 1998, as, indeed, the terms of the order itself make unambiguously clear: the second respondent while purportedly invoking powers conferred on him by s. 223A of the Act of 1998 says in express terms that this is being done:-
‘for the purpose of giving effect to Council Regulation (E.C.) No. 1239/98.’”
60. The respondents argue that the fundamental purpose of any legislation enacted by the EU, whether by directive or regulation, is to require a Member State to take the necessary steps and have in place the necessary provisions by way of domestic legislation to provide for the outcome sought to be achieved in the EU legislation. If Ireland, or indeed any other Member State, already has in place provisions which are mirrored by subsequent EU legislation, it is not a legal requirement that the previous legislation be repealed and replaced by fresh legislation. Thus, if a member state has in place legislation which achieves the objectives of a directive, or which obviates the necessity to bring in law that would otherwise be needed to give full effect to a regulation, there is no necessity for new legislation to be enacted under, e.g., s. 3 ECA 1972.
61. In the alternative, the impugned Orders made under the DAA 1966 are of an entirely different kind to those annulled in Browne and Kennedy. In particular:
i) Unlike the situation under the Common Fisheries Policy, exclusive competence in the field of animal disease has not been given to the EU – Directive No. 64/432/EEC (as amended) is concerned with intra-Community trade in animals and does not set out to provide a code in relation to animal health / disease within member states themselves (see also the European Communities (Trade in Bovine Animals and Swine) Regulations 1997, S.I. No. 270/97 which was made with the purpose of, inter alia, giving effect to Council Directive No. 64/432/EEC, and which does not deal with the eradication of bovine TB or brucellosis in the State, but instead concerns intra-Community trade in bovine animals).
ii) The impugned Orders are made to give effect to principles and policies relating to the control and eradication of animal disease within the State, which is an express principle and policy of the DAA 1966, whereas the Drift Net Order 1998 and the Mackerel (Licensing) Order 1999 could not be said to give effect to any principles and policies of the 1959 Act.
iii) The Orders in this case are not expressed to be made to give effect to any EC or EU law, but made under various sections of the 1966 Act and to give effect to the principles and policies of that Act.
iv) In the alternative, even if the relevant EC instruments do in fact require the State to implement obligations set out therein in relation to animal health controls within the State, there is no support for the contention that Regulations made under the DAA 1966 must necessarily be inadequate for this purpose. If the Orders meet with the obligations set out in the relevant EC instruments, there is no difficulty as a matter of European law or Irish Constitutional law.
62. Keane C.J. in Browne provides a useful summary of the Court’s approach in that case, with regards to whether the impugned Orders were ultra vires s. 223A of the 1959 Act:
“Either the Order of 1993 was intra vires s. 223A of the Act of 1959 or it was not. If it was within the power of the second respondent to make such a regulation for the reasons advanced on his behalf in the High Court and this court, it is not material whether the making of the regulation in that form was ‘necessitated’ by the obligations of the State as a member of the communities. If, on the other hand, the order was ultra vires s. 223A and could only have been made validly by the second respondent under s. 3 of the Act of 1972, it follows that it was of no effect and it is again unnecessary to consider the issue of whether it was ‘necessitated’ in constitutional terms by our membership of the communities. …” (ibid. at 221)
63. It is thus clear that if the principles and policies of the national legislation are such that the implementing legislation can be said to be intra vires that Act, they will not cease to be so, merely because they in some way implement European legislation. The problems which arose in relation to the Sea Fisheries (Drift Net) Order 1998 and the Mackerel (Licensing) Order 1999 in Browne and Kennedy can be located in the fact that prior to European legislation, the national legislation did not even contemplate regulations of this nature; namely those relating to the Common Fisheries Policy. In the present case, the control of diseases in animals within the State has been legislated upon for well over 100 years. The fact that there may be overlap between European legislation and national legislation will not render regulations made under the national legislation impermissible provided that those regulations are intra vires the parent act and consistent with the European legislation.
64. That implementation is a matter wholly within the competence of the Member States has been repeatedly emphasised both by the ECJ and national Courts (see Commission v. Belgium [1980] ECR 1473; Commission v. Italy [1983] ECR 711; Commission v. Netherlands [1987] ECR 3989; Browne v. An Bord Pleanála [1989] ILRM 865). The ECJ in Deutsche Milchkontor GmbH v. Germany [1983] ECR 2633 at 2665-6 stated:
“[I]t is for the Member States, by virtue of Article 5 of the Treaty, to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory. Insofar as Community law, including its general principles, does not include common rules to this effect, the national authorities when implementing Community regulations act in accordance with the procedural and substantive rules of their own national law.”
65. It has also been recognised that where national laws are already sufficient there is no requirement upon a Member State to legislate freshly merely to expressly implement a community directive. If the law of the Member State already carries the result to be achieved, no further action is required. This view is confirmed by paragraph 23 of the judgment of the Court in Commission of the European Communities v. Germany [1986] 3 CMLR 579 which states:
“It follows from that provision that the implementation of a directive does not necessarily require legislative action in each Member State. In particular the existence of general principles of constitutional or administrative law may render implementation by specific legislation superfluous, provided however that those principles guarantee that the national authorities will in fact apply the directive fully and that, where the directive is intended to create rights for individuals, the legal position arising from these principles is sufficiently precise and clear and the persons concerned are made fully aware of their rights and, where appropriate, afforded the possibility of relying on them before the national courts. That last condition is of particular importance where the directive in question is intended to accord rights to nationals of other Member States because those nationals are not normally aware of such principles.”
66. I am fully satisfied, having reviewed both the national and European legislation, that there is nothing improper or ultra vires in the inclusion of apparent European requirements in the impugned national Regulations. Indeed, from a practical point of view, it would seem sensible to harmonise or base national disease control with or on the requirements of intra-Union disease control; there is nothing improper in using EU legislation as a template in this regard. In any event, I am satisfied that the Regulations do not relate to matters fundamentally and wholly within the competence of the EU. I believe that the impugned Orders made under the DAA 1966 are not invalid, in such a way as was the case in Browne and Kennedy or otherwise. I therefore reject the applicant’s arguments in this regard.
Constitutionality of Regulations having Statutory Effect:
67. Section 4(1)(a) of ECA 1972 provides that regulations made under s. 3 of the Act shall have statutory effect. The applicant contends that whilst it would be permissible for statutory effect to be given to secondary or European legislation existing when the section was enacted, it is not possible to give like effect to Orders/regulations created, and/or made, thereafter. Regulations having such statutory effect cannot undergo parliamentary consideration, amendment or decision in accordance with the provisions of the Constitution and the standing Orders of the Houses of the Oireachtas. Nor are they subject to the constitutional controls involved in submission by the Taoiseach of the Bill, as passed by the Oireachtas, to the President for her signature and for promulgation by her as law in accordance with Article 25 of the Constitution. Nor is a regulation made under s. 3 of ECA 1972 capable of being referred by the President under Article 26 of the Constitution for a decision on whether such might be, in whole or part, unconstitutional. Section 4, nonetheless, seeks to confer the force of statute on such regulations and to treat them as if they were in law legislation passed by the Oireachtas. Thus insofar as this section purports to give statutory effect to regulations subsequently made by the Minister under the ECA 1972, it is unconstitutional. The Oireachtas cannot, through this mechanism, clothe such regulations with the force of statute. Furthermore, s. 4 ECA 1972 is not necessitated by the obligations of Community membership, for the purposes of Article 29.4.10˚ of the Constitution.
68. The respondents draw attention to the Supreme Court cases of Meagher v. Minister for Agriculture [1994] 1 IR 329, which upheld the constitutionality of s. 3(2) of the ECA 1972, and Maher v. Minister for Agriculture [2001] 2 IR 139 which found that s. 3 did not trespass upon the exclusive law-making role of the Oireachtas under Article 15.2.1˚ of the Constitution. Insofar as they are relevant, the respondents consider that both Browne and Kennedy are distinguishable from the present case since the impugned Orders are of an entirely different kind to the ones annulled in those cases, and in any event and as a matter of fact the conclusions of the Court in those cases would support them.
69. The Supreme Court in Meagher v. Minister for Agriculture [1994] 1 IR 329 considered, inter alia, the constitutionality of s. 3 of the ECA 1972. Johnson J., as he then was, in the High Court found that s. 3 of the ECA 1972 was unconstitutional since:
“[A]ny power given to a Minister to make regulations for the purposes of amending or repealing laws is unconstitutional…” (ibid. at p. 344)
However, the Supreme Court upheld the constitutionality of the section since:
i) The power to make regulations in s. 3(1) of ECA 1972 is exclusively confined to the making of regulations for one purpose only, namely that in s. 2 of the Act; giving effect to Community law.
ii) The power of regulation contained in s. 3 is prima facie a power which is part of the necessary machinery for implementing European law, which became a duty of the State upon joining the then EEC, and is therefore necessitated by membership.
iii) It must be implied that regulations enacted by the Minister, as permitted by the section, are intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore, it must be implied, constitutionally.
70. In Maher v. Minister for Agriculture [2001] 2 IR 139, Keane C.J. in the Supreme Court, considering Meagher, stated;
“[T]here are two broad categories of cases in which a regulation made in purported exercise of the powers conferred by s. 3 [of ECA 1972] might be found to be ultra vires the powers conferred on Ministers by section 3. The first category would be cases in which the making of the regulation was found not to be ‘necessitated’ by the obligations of membership referred to in Article 29.4.5˚ [of the Constitution] and to have violated some constitutional right of the plaintiff. The challenge in such a case would be no different from the challenge mounted to an Act of the Oireachtas allegedly necessitated by the obligations of membership which prima facie violated a constitutional right of the plaintiff….” (ibid. at p. 197)
The second category of cases which Keane C.J. identified arising from Meagher, was those where the ministerial regulation had gone beyond simply implementing the principles or policies contained in the European legislation and instead itself determined such principles or policies. This does not arise in the present case. Nonetheless, Keane C.J., considering what could be considered “necessitated” by membership of the Union, noted that the choice of a regulation rather than an Act in this regard was an important consideration:
“I am satisfied, however, that neither the judgment of the Court [in Meagher] nor the judgment of Blaney and Denham JJ. on the vires issue lend any support to the proposition that, in cases where it is convenient or desirable for the community measure to be implemented in the form of a regulation rather than an Act, the making of the regulation can for that reason alone be regarded as ‘necessitated’ by the obligations of membership. … Doubtless, where no policy choices are left to the member state, expedition is one of the factors which may legitimately be taken into account in deciding to opt for the making of a regulation rather than the enactment of primary legislation, but it would be a serious overstatement to say that it justifies the making of regulations rather than the enactment of an Act in the case of every directive or European Union regulation and again that is clearly not consistent with what was held by this court in Meagher v. Minister for Agriculture.” (ibid. at p. 182)
He continued:
“It follows that, in the present case, it could not be said that the making of the rules in the form of the Regulations of 2000 rather than an Act were necessitated by the obligations of membership and the essential inquiry must be as to whether the first respondent in making the Regulations of 2000 was in breach of Article 15.2.1˚ of the Constitution.
In determining that issue, it is accepted that the appropriate test is as set out by O’Higgins C.J. in City View Press Limited v. An Comhairle Oiliúna [1980] I.R. 381 … However, in applying that test to a case in which the regulation is made in purported exercise of the powers of the first respondent under s. 3 of the Act of 1972, it must be borne in mind that while the parent statute is the Act of 1972, the relevant principles and policies cannot be derived from that Act, having regard to the very general terms in which it is couched. In each case, it is necessary to look to the directive or regulation and, it may be, the treaties in order to reach a conclusion as to whether the statutory instrument does no more than fill in the details of principles and policies contained in the European Community or European Union legislation.”
71. It would thus seem the case that one must consider whether the implementation of the Regulation by way of statutory instrument was necessitated by membership of the EU, in order for it to be intra vires the power granted to the Minister under s. 3 of the ECA 1972. The ultimate question must be whether there was a sufficient level of choice left to the member state in the implementation of the Regulation. Does the member state have any real scope in the contents of any national implementing legislation? Was the Member State determining policies and principles? This analysis is borne out similarly in the decision of Denham J. in that case where she stated:
“The principles and policies of the milk quota scheme have been determined in the European provisions. The first respondent in making the Regulations of 2000 was not determining policies and principles in accordance with the general principles of Community law. The first respondent was not purporting to legislate. Consequently, there was no breach of Article 15.2.1˚ of the Constitution of Ireland.” (ibid. at p. 120)
72. Fennelly J., discussing the issue of permissible delegation, notes the following, adopting a more pragmatic approach:
“An enormous body of subordinate laws is, nonetheless, constantly passed by means of statutory instruments, regulations and orders. This type of delegated legislation is, by common accord, indispensable for the functioning of the modern state. The necessary regulation of many branches of social and economic activity involves the framing of rules at a level of detail that would inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is better left to the implementing rules. They are not, in their nature such as to involve the concerns and take up the time of the legislature. Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to meet changing circumstances. Without suggesting that a different approach is required for the present case, by reason of the fact that it concerns the implementation of European Community legislation, it is obvious that the adoption of detailed rules regulating production and trade in agricultural products is a particularly notable example of the exigencies of this type of law-making. There is, for example, an obvious need to be able to react rapidly and often severely to sudden trading problems or so as to protect human and animal health in the face of the outbreak of disease.” (ibid. at p. 245)
Fennelly J., however, goes on to note that, given that secondary legislation largely bypasses parliamentary scrutiny and the democratic process, it is:
“necessary to strike an appropriate balance between the protection of the exclusive law-making domain of the Oireachtas, and the proper function of the executive… Delegated legislation is permitted and does not infringe Article 15.2.1˚, provided that the principles and policies which it is the objective of the law to pursue, can be discerned from the Act passed by the Oireachtas, so that the delegated power can only be exercise within the four walls of the law.”
73. Despite the statements above, Keane C.J., however, in Browne v. Ireland [2003] 3 IR 205 at 219 noted:
“It is beyond argument at this stage that the law as laid down by this court in Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381, that secondary legislation will not trespass on the exclusive law making role of the Oireachtas unless it does no more than give effect to principles and policies laid down in an Act of the Oireachtas, is not applicable to regulations intended to give effect, by virtue of s. 3 of the Act of 1972, to European Community measures … There is, however, one crucial qualification to that general statement of the law, namely, that any such regulation cannot create an indictable offence.”
Keane C.J. concluded that there were two possibilities in that case with regards to the validity of the Sea Fisheries (Driftnet) Order 1998 adopted under the Fisheries (Consolidation) Act 1959: either it was intra vires the Act, in which case it is unnecessary to enter into a question of whether it was necessitated by membership of the Union; or else it was ultra vires the Act and could only have been validly made under s. 3 of the ECA 1972, in which case again it is unnecessary to consider whether it was necessitated by membership of the Union.
74. In Kennedy v. Attorney General [2007] 2 IR 45, Denham J., in the Supreme Court, having reviewed the above-mentioned case law, noted that the core question in cases where it is alleged that the Minister has attempted to circumvent the prohibition on the creation of indictable offences under s. 3(3) of ECA 1972, is whether the Minister in making the impugned Order or Regulation under another Act purporting to use the national legislation to give effect to Community law. She ultimately concluded, having reviewed the relevant Community regulations and the common fisheries policy as reflected in those regulations, “that it would be unrealistic to consider that the Order of 1999 was enacted for the purpose of a residual power of the State… without reference to the Community regulations and the common fisheries policy” (ibid. para.35). She was in no doubt in that case that the Order had in fact been made to implement such, and “[t]he fact that there is an element of national management does not preclude application of the overarching Community law” (ibid. para. 37). However, it should be noted that unlike the common fisheries policy involved in both Browne and Kennedy, in this case there is no question of a common system of disease control.
75. The constitutionality of s. 3 ECA 1972 was upheld by the Supreme Court in Meagher. That section permitted the Minister to make regulations “repealing, amending or applying, with or without modification, other law exclusive of this Act”. It was therefore the case that s. 3 permitted the Minister to alter existing legislation by statutory instrument. Ordinarily such would be wholly inconsistent with law-making power of the Oireachtas and thus contrary to Article 15.2.1˚ of the Constitution; only acts may amend acts. However, where a matter, which would otherwise be contrary to the Constitution, is necessitated by membership of the Union it is saved by Article 29.4.10˚. In relation to s. 3(2) ECA 1972, Finlay C.J. held that;
“The Court is satisfied that, having regard to the number of Community laws, acts done and measures adopted which either have to be facilitated in their direct application to the law of the State or have to be implemented by appropriate action into the law of the State, the obligation of membership would necessitate facilitating of these activities, in some instances, at least, and possibly in a great majority of instances, by the making of ministerial regulation rather than legislation of the Oireachtas.
The Court is accordingly satisfied that the power to make regulations in the form in which it is contained in s. 3, sub-s. 2 of the Act of 1972 is necessitated by the obligations of membership by the State of the Communities and now of the Union and is therefore by virtue of Article 29, s. 4, sub-ss. 3, 4 and 5 immune from constitutional challenge.”
It was therefore the case that s. 3(2) could be said to be necessitated by membership of the Union, and the question then fell as to whether any of the impugned provisions themselves were intra vires the ECA 1972, or otherwise unconstitutional themselves. As Finlay C.J. continued:
“[I]t must be implied that the making of regulations by the Minister, as is permitted by the section, is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to the section, contravene any provisions of the Constitution.”
76. I am satisfied that s. 4 ECA 1972 is of a similar nature to the provision considered in Meagher. It purports to confer statutory status upon Orders of the Minister. Such would be unconstitutional but for Article 29.4.10˚. Likewise I am satisfied that it is such that it is necessitated by membership of the Union; it follows that if the power to amend exclusive legislation through ministerial Order under the ECA 1972 is constitutional, the power to make Orders having statutory effect must likewise be so. The ministerial Orders in both cases act as though they are primary legislation (Quinn v. Ireland [2007] 3 IR 395 consideration). However that is not to say that the minister is given carte blanche. Any regulation made under the ECA 1972 must still be intra vires the Act, and thus must comply with the principles of constitutional justice, and they may still be challenged in that way. Furthermore it is clear that the Oireachtas is still left with a supervisory role in relation to such regulations under ss. 4(1)(b) and 4(2); the Oireachtas may remove such statutory effect from regulations made thereunder within one year of their making.
77. There is one final matter which was raised by the applicant in relation to statutory instruments having statutory effect. The applicant claims that it is not possible to ascertain, as a matter of law, when such instruments come into force under the Interpretation Acts 1937 – 1997, and therefore such instruments must be invalid. The relevant sections are ss. 8 – 9 of the Interpretation Act 1937, which state:
“8.—(1) The date of the passing of every Act of the Oireachtas shall be the date of the day on which the Bill for such Act is signed by the President.
(2) Immediately after the passing of every Act of the Oireachtas the Clerk of Dáil Éireann shall endorse on such Act, immediately after the title thereof, the date, of the passing of such Act, and such date shall be taken to be part of such Act.
(3) Every enactment contained in an Act of the Oireachtas shall, unless the contrary intention is expressed in such Act, be deemed to be in operation as from the end of the day before the date of the passing of such Act.
9—(1) Where an Act of the Oireachtas, or a portion of any such Act, or an instrument made wholly or partly under any such Act, or a portion of any such instrument is expressed to come into operation on a particular day (whether such day is before or after the date of the passing of such Act or the making of such instrument and whether such day is named in such Act or instrument or is to be fixed or ascertained in any particular manner), such Act, portion of an Act, instrument, or portion of an instrument shall come into operation at the end of the day before such particular day.
(2) Every instrument made wholly or partly under an Act of the Oireachtas shall, unless the contrary intention is expressed in such instrument, be deemed to be in operation as from the end of the day before the day on which such instrument is made.”
The above Acts (save for the Interpretation (Amendment) Act 1997) have since been repealed and replaced by the Interpretation Act 2005; the relevant provisions in relation to passing and commencement being ss. 15 and 16 respectively. Nothing of distinction arises from the changes made therein.
78. The applicant would appear to argue that if statutory instruments having statutory effect are to be treated for all intents and purposes as Acts of the Oireachtas, they must also comply with s. 8, or in the alternative they are not covered by either s. 8 or s. 9. It is clear to me that statutory instruments having statutory effect are not Acts of the Oireachtas for this purpose. The definition of an “Act” is given in s. 2(1) of the Interpretation Act 1937 (as in s. 2(1) of the 2005 Act) is either an Act of the Oireachtas, or “a statute which was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and which continued in force by virtue of Article 50 of the Constitution”. Clearly statutory instruments having statutory effect are not “Acts” in this regard. The fact that they have statutory effect, does not change the reality of what they are; statutory instruments. It is their effect which is statutory, not their physical nature. As stated above, although this method of legislating may be idiosyncratic, it is not unconstitutional, and the Minister is entitled to so legislate. There is, in my opinion, no weight in the argument that they are not covered by the Interpretation Acts 1937 – 1997 or the Interpretation Act 2005, or that it is unclear when they commence.
79. In the present case, the EC(IRBA) Regulations 1999 state expressly, in Article 1(2), that they are to come into force on the 13th September 1999. The applicant could not, therefore, complain that such is unclear or ambiguous. Nor could he complain that he was unable to ascertain whether such Regulations were or are in force. His arguments in this regard could thus be considered moot. Furthermore, having regard to s. 9(1) of the Interpretation Act 1937, it is clear that these Regulations came into force at the end of the 12th September 1999. Apart from the requirement in s. 8, there is, in any event, no real difference between an Act and a statutory instrument with regards to when it will be deemed in operation.
Conclusions:
80. I am therefore satisfied, having regard to the foregoing, that:
i) the relevant regulations impugned in this case are intra vires the DAA 1966 and ECA 1972 and are not unconstitutional having regard to the principles of constitutional justice;
ii) s. 4 ECA 1972, as amended by ECA 1973, is not unconstitutional;
iii) statutory instruments having statutory effect are covered by the Interpretation Acts 1937 – 1997 and the Interpretation Act 2005.
I would therefore refuse all reliefs sought by the applicant.