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),

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

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

(nem.diss.),

in a judgment delivered on 29 March 1985,

that Mr. Justice Barrington was correct in concluding

that the statutory instruments grounding the

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

levy scheme

was

ultra vires

under Irish law, Mr. Justice Hency

continued:

"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

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

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

and

Premier Meat Packers

(Ireland) Ltd.

-v-

Minister for Agriculture,

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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