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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