Albatros Feeds Ltd v Minister for Agriculture and Food and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 07 March 2005
• Neutral Citation: [2005] IEHC 65
• Docket Number: RECORD No. 63 JR/2005
• Court: High Court
• Date: 07 March 2005

[2005] IEHC 65

THE HIGH COURT

RECORD No. 63 JR/2005

ALBATROS FEEDS LTD v MIN FOR AGRICULTURE & ORS

(COMMERCIAL)

(JUDICIAL REVIEW)

BETWEEN

ALBATROS FEEDS LIMITED

APPLICANT

And

THE MINISTER FOR AGRICULTURE AND FOOD, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EEC REG 185/04

BELLIO F LLI SRL v PREFETTURA DI TREVISO C-286/02 ECJ

RSC O.63(A) r1(g)

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DEC 2000/766

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 3

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 5

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 5(4)

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 6

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 7

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 8

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 9

EUROPEAN COMMUNITIES (ANIMAL NUTRITION INSPECTIONS) REGULATIONS 2000 SI 4/2000

EUROPEAN COMMUNITIES (PROCESSED ANIMAL PRODUCTS) REGULATIONS 2000 SI 486/2000 ART 10

CONSTITUTION

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950

KAJLI v MIN FOR JUSTICE UNREP 21.8.1992

DPP v DUNNE 1994 2 IR 537

HOLMES, STATE v FURLONG 1967 IR 210

MOVIE NEWS LTD v GALWAY CO COUNCIL UNREP 30.3.1973

EUROPEAN COMMUNITIES (ANIMAL NUTRITION INSPECTIONS) REGULATIONS 2003 SI 238/2003 ART 19

INTERPRETATION ACT 1937 S20(2)

EUROPEAN COMMUNITIES (ANIMAL NUTRITION INSPECTIONS) REGULATIONS 2003 SI 238/2003 ART 7

EUROPEAN COMMUNITIES (ANIMAL NUTRITION INSPECTIONS) REGULATIONS 2003 SI 238/2003 ART 11

EEC REG 999/01 ANNEX IV(3)(II)(E)

EEC DIR 95/53

EEC REG 1234/03

EEC DIR 03/126

EEC REG 1774/02

EEC REG 1326/01

EEC DEC 2001/9

EEC REG 999/01 ANNEX IV

TREATY OF ROME ART 234

EEC REG 1774/02 ART 2

EEC REG 999/01 ANNEX IV ART 1

EEC DIR 03/126

EUROPEAN COMMUNITIES (FEEDING STUFFS) (METHODS OF SAMPLING & ANALYSIS) (AMDT) REGULATIONS 2004 SI 185/2004

CONSTITUTION

Property rights

Interference with personal rights - Powers of Minister - Delegated legislation - Seizure and detention instructions - Whether Minister had power to issue instructions - Whether instructions affecting property rights must state jurisdictional basis on face - Whether jurisdictional basis other than that stated on face of instruction can be relied upon - European Communities (Animal Nutrition Inspections) Regulations 2000 (SI 4/2000) - European Communities (Processed Animal Products) Regulations 2000 (SI 486/2000) - European Communities (Animal Nutrition Inspections) Regulations 2003 (SI 238/2003) - Council Decision 2000/766/EC - Council Directive 95/53/EC - Director of Public Prosecutions v Dunne [1994] 2 IR 537; Kajli v Minister for Justice (Unreported, High Court, 21/8/1992); Movie News Ltd. v Galway County Council (Unrep Kenny J, 30/3/1973) and The State (Holmes) v Furlong [1967] IR 210 followed - Certiorari granted - (2005/63JR - Kelly J - 7/3/2005) [2005] IEHC 65 Albatross Feeds Ltd v Minister for Agriculture and Food

EUROPEAN LAW

Directives

Incorporation into domestic legislation - Regulations - Whether reliance could be had to European Directives where secondary legislation incorporating them into domestic legislation existed - European Communities (Animal Nutrition Inspections) Regulations 2003 (SI 238/2003) - Council Directive 95/53/EC - Certiorari granted - (2005/63JR - Kelly J - 7/3/2005) [2005] IEHC 65 - Albatross Feeds Ltd v Minister for Agriculture and Food

FOOD LAW

Food Safety

Public health - Seizure and detention notice - Animal feed - Bone spicules - Whether minister entitled to issue instructions for detention and seizure of animal feed - "Processed animal proteins" - Whether power to detain animal feed where bone spicules present - Precautionary principle - Whether necessary to show presence of "processed" animal proteins before powers under Regulations of 2000 could be invoked - Whether power to order detention and seizure of animal feed under European law - European Communities (Animal Nutrition Inspections) Regulations 2000 (SI 4/2000) - European Communities (Processed Animal Products) Regulations 2000 (SI 486/200) - European Communities (Animal Nutrition Inspections) Regulations 2003 (SI 238/2003) - European Communities (Feedingstuffs) (Methods of Sampling and Analysis)(Amendment) Regulations 2004 (SI 185/2004) - Council Decision 2000/766/EC - Commission Decision 2001/9/EC - Council Directive 95/53/EC - Commission Directive 2003/126/EC - Council and Parliament Regulation EC/999/2001 - Council and Parliament Regulation EC/1774/2002 - Council Regulation EC/1234/2003 - Certiorari granted - (2005/63JR - Kelly J - 7/3/2005) [2005] IEHC 65 - Albatross Feeds Ltd v Minister for Agriculture and Food

STATUTORY INTERPRETATION

Delegation of legislation

Secondary legislation - Statutory instrument - Incorporation by reference - Definition - Inspections - Whether powers of Minister required to be expressly stated in regulations - Whether powers incorporated by reference - Whether necessary for Regulations of 2000 to be listed within definition of "inspections" in order for powers under Regulations of 2003 to apply - European Communities (Animal Nutrition Inspections) Regulations 2000 (SI 4/2000) - European Communities (Processed Animal Products) Regulations 2000 (SI 486/2000) - European Communities (Animal Nutrition Inspections) Regulations 2003 (SI 238/2003) - Interpretation Act 1937 (No 38), s 20(2) - Certiorari granted - (2005/63JR - Kelly J - 7/3/2005) [2005] IEHC 65 -Albatross Feeds Ltd v Minister for Agriculture and Food

Mr. Justice Kelly

1 The applicant (Albatros) seekscertiorari against the first respondent (the Minister) in respect of certain "instructions" and "seizure and detention notices" issued by her in respect of a quantity of maize gluten which the applicant attempted to import into the State.

2 Albatros is a limited company incorporated in Ireland. It is an importer of grains and animal feedstuffs.

3 On importation, the feedstuffs are sold to third parties who use them for blending into a finished product.

4 On 6th November, 2004, the m.v. “Pakrac”, carrying a cargo of 30,642 metric tonnes of various products, including corn gluten for delivery to Albatros, arrived at Foynes. The cargo was in five separate holds on the ship. Four products were on board. Two holds were occupied by roquette gluten and the remaining three by soya hulls, corn distillers and CPI gluten respectively. The CPI gluten, which is the only product relevant to these proceedings was stored in hold no. 2. This cargo was being imported from the United States of America.

5 A portion of the cargo, including 1,845.70 metric tonnes of the CPI gluten was discharged at Foynes between the 6th and 9th November, 2004. Hereafter I will refer to this as "the Foynes consignment".

6 Following discharge of the cargo at Foynes the ship transported the remainder of the cargo to Ringaskiddy, Co. Cork. There 4,557.56 metric tonnes were discharged between 10th and 12th November, 2004. This I will refer to as "the Ringaskiddy consignment".

7 Feedstuffs imported into the State are subject to routine sampling and testing by the servants or officers of the Minister.

8 On 18th November, 2004, the applicant was informed by the general manager of the store keeping company in Ringaskiddy that he in turn had been informed by agents of the Minister that certain of the cargo which had been unloaded there contained "spicules" and that accordingly the material in possession of the store keeper was to be impounded. Subsequently a representative of the Minister confirmed by telephone that a sample from the Ringaskiddy consignment contained a number of bone spicules and that on that basis the Foynes consignment was also to be impounded.

9 On the same day, 18th November, 2004, the Minister issued an instruction in writing to Albatros concerning the Ringaskiddy consignment. This instruction was purportedly issued pursuant to the European Communities (Processed Animal Products) Regulations, 2000, ( S.I. 486 of 2000) (the Regulations). Insofar as it is relevant the instruction read as follows:-

"A consignment of CPI maize gluten feed imported on the m.v. Pakrac into Ringaskiddy on 12th November, has been sampled by an authorised officer at Moyglare Holdings Limited, Ringaskiddy, Co. Cork. A copy of this sampling report form has been forwarded to you together with notification that a duplicate sample has been left at the premises where the sample was taken."

10 The sample was found on analysis to contain processed animal protein, which is regarded as a serious breach of the above regulations. I attach a copy of the analysis certificate.

11 Therefore, in accordance with the powers vested in the Minister you are instructed to:-…

12 2. Within 24 hours of this notification, issue a written instruction to all affected customers informing them that:

13 (a) The product must not be sold or used as a feeding stuff or feed ingredient, since it has been found to be in breach of the above regulations, and

14 (b) In the case of customers who are retailers,

15 (i) that they initiate a recall of all contaminated materials sold, and

16 (ii) compile a list of the names and addresses of these customers along with the quantity and dates of delivery.

17 3. Arrange for the immediate recall of all unused product from customer premises to Moyglare Holdings Limited, Ringaskiddy, Co. Cork, under your responsibility and at your expense."

18 On 18th November, 2004, a number of what are described as "seizure and detention notices" were served by the Minister's officers on the applicant in relation to the Foynes consignment. The notice...