The Gazette 1985

GAZETTE

APRIL 1985

ruling seeking to ascertain whether it had been appropriate for him to make a reference at the inter- locutory stage. On that question, the Court of Justice affirmed in its preliminary ruling that the decision, and indeed discretion in this case, to seek a preliminary ruling was peculiarly a matter for the court or tribunal which sought the reference: and that provided the request for a preliminary ruling raised issues of Community law the Court of Justice would consider itself properly seized of the problem. On the substantive issue — of whether a national tax or levy such as the 2% levy conflicted with the rules for the common organisation of the markets for the particular agricultural produce in question, or in the case of live bovine animals constituted a charge equivalent to a customs duty on exports — the Court of Justice gave guidance to the national court on the principles to be applied in making this determination, but referred the matter back to the national judge to apply those principles. Following the preliminary ruling (delivered in the joined cases by the European Court in March 1981), 6 the ICMSA settled its case, but the plaintiffs in the other action continued theirs, which was heard by Mr. Justice Barrington in 1982. He gave judgment on 26 April 1983 7 to the effect that the plaintiffs had failed to satisfy him that the 2% levy on live bovine animals interfered with the common organisation of the market in cattle and beef, but that the plaintiffs had established that the scheme was unreasonable in making cattle exporters and butchers accountable parties for the payment of duty while allowing them no adequate means of recouping this duty from the producers — the farmers. Consequently, Mr. Justice Barrington concluded on the facts and on the manner in which the 2% levy scheme operated that it constituted a duty which was more onerous for cattle exporters than for other parties (such as owners of meat plants) and that consequently it operated as a duty on exports contrary to the provisions of the Treaty of Rome. Mr. Justice Barrington also ruled that the statutory instruments grounding the scheme were ultra vires the Government and were also invalid as being so inadequate and unworkable as to constitute an unreasonable and unintended use of power. On appeal to the Supreme Court, it was held by Henchy J. (nem.diss.), in a judgment delivered on 29 March 1985, 8 that Mr. Justice Barrington was correct in concluding that the statutory instruments grounding the 2% levy were invalid under Irish law, as being ultra vires because they were unreasonable and in excess of the impliedly intended scope of the delegation. Having reached the conclusion that the 2% levy scheme was ultra vires under Irish law, Mr. Justice Hency continued: 9 "In my judgment the dispute between the parties is susceptible of a conclusive determination under the domestic law of this State. I consider that a decision on a question of Community law as envisaged by Art. 177 of the Treaty of Rome is not necessary to enable this Court to give judgment in this case. Just as it is generally undesirable to decide a case by bringing provisions of the Constitution into play for the purpose of invalidating an impunged law when the case may be decided without thus invoking constitutional provisions, so also, in my opinion, should Community law, which also has the

paramount force and effect of constitutional provisions, not be applied save where necessary for the decision in the case." Right to recover sums due under EEC legislation Again this right can best be illustrated by reference to some Irish cases. In North Kerry Milk Products Limited -v- Minister for Agriculture and Fisheries 10 the plaintiff brought proceedings against the Minister as the agency in Ireland responsible on behalf of the EEC for the implementation of the Common Agricultural Policy, including the payment of aids and subsidies on agricul- tural products. The action related to a claim for aid under two. EEC Regulations, 987/60 and 756/70, and the dispute centered on the relevant point in time for the calculation of the aid, as there had been a change in the exchange rate of the Irish currency and the unit of account between the date of processing of the skimmed milk and the date of marketing of casein produced from it. On 21 June 1976 the High Court requested a preliminary ruling, and on 3 March 1977 the Court of Justice ruled that the relevant calculation would be by reference to the date of conversion between the Irish pound and the unit of account applicable on the date of marketing — which was effectively in favour of the plaintiff and against the Minister, so that the North Kerry Milk Products Limited ultimately secured payment at the more favourable rate. In several cases decided in 1983, the trial judge delivered judgment in favour of the plaintiff in claims based on payments due under EEC law without deeming it necessary to make a reference under Article 177. In Agra Trading Limited -v- The Minister for Agriculture , M Mr. Justice Barrington granted liberty to enter final judgment against the Minister in a sum claimed in respect of export refunds alleged to be due on the export by the plaintiffs to Russia of beef sold from intervention stock for that purpose. It was accepted by the Minister (who was acting as agent for the Community in the matter) that the meat was exported to Russia, but an issue arose as to whether some further wrapping of the items by the plaintiffs meant that it was no longer exported "in the same state" as when it was brought into intervention. Mr. Justice Barrington concluded that the plaintiff company's claim was proved, and that the defendants' claim was problematical at best and would involve considerable delay if he acceded to their request to make a reference to the European Court on the matter. In the circumstances, he gave the plaintiffs leave to enter final judgment for the sum claimed, and allowed the Minister to take such steps as he might think proper to assert his claim based on the interpretation of the EEC regulations in independent proceedings. This decision was referred to and followed by Mr. Justice Barron in two cases, Hibernia Meats Limited -v- Minister for Agriculture 12 and Premier Meat Packers (Ireland) Ltd. -v- Minister for Agriculture, 13 on which he gave judgment two months later on 29 July 1983. In the first case the plaintiff also claimed a sum for export refunds, and in the second case the plaintiff claimed a sum for goods sold and delivered. It was not disputed that the plaintiffs were entitled to these sums, but the issue arose as to whether the Minister was entitled to set off a separate claim by him against each plaintiff for an equivalent sum in effect extinguishing both claims. Mr. Justice Barron was satisfied that the plaintiffs were entitled to the specific sums claimed in each set of proceedings, and that the claim of the defendant was a matter which gave rise to a

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