The Gazette 1985

GAZETTE APRIL 1985 How EEC Law Affects Practitioners Part IV

by Senator Mary Robinson, S.C.

Rights under Community Law: Their Enforceability in the Irish Courts. Right to refund of levies or taxes paid under Irish measures which are found to be in breach of Community Law A good illustration of this is provided by Pigs & Bacon Commission -v- McCarron. 1 In June 1978, Mr. Justice Costello concluded that in order to adjudicate on the claim brought by PBC for payment of £28,594 which it claimed was due from McCarron & Co. in respect of the levy payable by bacon curers from 1 January 1975 to 31 September 1975, together with the counterclaim by McCarron & Co. for the sum of £52,787.10 being the amount of levy paid from 1 February 1973 to 31 December 1974 which they claimed was wrongly paid because of the incompatibility of that levy with Community law, it would be necessary to have a ruling under Article 177 on the relevant Community provisions. Twelve months later, on 26 June 1979, the Court of Justice handed down this ruling, which was to the effect that a national levy system would be incompatible with the common organisation of the market in pigmeat where it is permitted a central marketing agency vested with the statutory power to charge the levy to operate ^ bonus system for exporting through its agency, and thereby to inflict a financial disadvantage on any producer who arranged his export sales directly. Then the Court of Justice ruled: 2 "It is for the national court to determine, on the one hand, whether and to what extent the levy charged on a product coming under the common organisation of the market and devoted to purposes incompatible with that organisation must be reimbursed and, on the other hand, whether and to what extent there may be set off against that right to reimbursement the amount of the bonuses paid to the trader concerned." The matter having come back for further hearing before the trial Judge, Mr. Justice Costello accepted the argument by PBC that only part of the levy system which they operated was condemned by the Court of Justice, namely, the export bonus scheme. He concluded that the other activities of the PBC funded by the levy were distinguishable and severable, so that a proportion of the levy remained payable by producers, and consequently he gave judgment that a sum of £9,468.24 was due by McCarron in respect of an amount of levy not condemned by virtue of the ruling of the Court of Justice. Costello J. relied by analogy on the authority of Cassidy -v- Minister for Industry and Commerce [1978] IR 297 which concerned drink price

control orders made by the Minister for Industry and Commerce under various statutory instruments. The effect of the Judgment of the Supreme Court in that case had been to curtail or restrict the area of application of the price control Orders, and to declare that the Orders as made were to apply and operate only to the extent permitted by the enabling legislation and no further. McCarron appealed to the Supreme Court, which allowed the appeal from Costello J. because it took a different view of how the ruling of the Court of Justice should be applied to the facts of the case. Giving the Judgment of the Court O'Higgins, C.J. distinguished Cassidy's case and refused to engage in an exercise of calculating what proportion of the levy could continue to be charged. Having examined the legislative provisions the Chief Justice concluded that the fixing of the levy was a statutory power and duty of the PBC, and that the court could not seek to ascertain what portion could be attributed to lawful purposes: 3 "To do this would involve the Court, and not the Commission, in declaring a rate of levy. I have, therefore, come to the conclusion that following the ruling of the Court of Justice of the European Community already referred to it is not possible now to sever or amend the levy orders made by the plaintiffs. These orders determined a rate of levy which it was not within the competence of the Commission to determine and are, in my view, on that account, null and void, and incapable of severance." Another case illustrating this type of claim was the challenge to the 2% levy imposed on certain agricultural produce in 1979 by the Irish Government. Separate legal challenges were brought by the ICMSA, and by a number of meat exporters and butchers, and the case of the latter was ultimately successful before the High Court and on appeal to the Supreme Court. In both cases, ICMSA -v- Ireland* and Martin Doyle & Others -v- An Taoiseach , 5 Mr. Justice Barrington made references under Article 177 to the Court of Justice, and these cases were joined for the purposes of the oral hearing and judgment of that Court. Mr. Justice Barrington had sought the rulings at the stage where the separate plaintiffs were seeking inter- locutory injunctions restraining the Government from continuing to charge and collect the 2% levy and before there had been a full plenary hearing and identification of the factual background by the national court. Indeed, the State had appealed against the decision by Mr. Justice Barrington to seek the ruling in the ICMSA case, but that appeal was withdrawn on the agreement of Mr. Justice Barrington to add a further question to the preliminary 145