Albatros Feeds Ltd v Minister for Agriculture and Food and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 26 July 2006
• Neutral Citation: [2006] IESC 52
• Court: Supreme Court
• Docket Number: [S.C. No. 110 of 2005]
• Date: 26 July 2006

MIN FOR AGRICULTURE & ORS v ALBATROS FEEDS LTD

Judicial Review

BETWEEN

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

Respondents

and

ALBATROS FEEDS LIMITED

Appellants

[2006] IESC 52

Hardiman J.

Fennelly J.

Kearns J.

No. 2005/63JR

THE SUPREME COURT

CONSTITUTIONAL LAW:

Property rights;

EUROPEAN LAW:

Directives;

FOOD LAW:

public health;

STATUTORY INTERPRETATION:

Secondary legislation

Interference with property rights - Powers of Minister - Delegated legislation - Seizure and detention instructions - Whether stated jurisdictional basis authorised instructions - Whether Minister had power to issue instructions - 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 - Respondents' appeal dismissed (110/2005 -SC - 26/7/2006) [2006] IESC 52, [2007] 1 IR 221 Albatros Feeds Ltd v Minister for Agriculture and Food

: The applicants sought to appeal the decision of the High Court granting certiorari in respect of instructions given by the Minister for Agriculture providing for the recall from the market of animal feedstuffs of the Respondent and the seizure and detention of a consignment of the Respondent, pursuant to the European Communities (Processed Animal Protein) Regulations, 2000.

Held by the Supreme Court, in dismissing the appeal, that the far-reaching powers of recall, prohibition or seizure and detention notices emanating from the Minister had no basis in the Regulations. The principle of "conforming interpretation" could not be strained here so as to infringe upon the fundamental rights of the respondent.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 26th day of July, 2006

2 This is an appeal from the decision of Kelly J sitting in the Commercial Court of the High Court. In a judgment delivered on 7th March 2005, the learned High Court judge determined agreed issues in proceedings seeking the judicial review of a number of decisions of the Minister for Agriculture (hereinafter "the Minister"). The decisions consisted of instructions providing for the recall from the market and "Seizure and Detention Notices" in respect of a consignment of corn gluten imported by the Applicant/Respondent (hereinafter "Albatros") as animal feed from the United States.

3 Kelly J accepted that the Minister had no power to issue the instructions or the notices. Orders of certiorari were made. The Minister now appeals the decision of Kelly J.

The facts

4 Albatros is engaged in the import and distribution of animal feedstuffs. This importation is conducted pursuant to a license issued by the Minister pursuant to the European Communities (Processed Animal Protein) Regulations, 2000 (S.I. 486 of 2000). That instrument and its interpretation is what this case is all about. I will call it "the 2000 Regulation." The feedstuffs are imported for onward sale to customers of Albatros who use the products for blending into finished products for feeding to animals.

5 On 6th November, 2004, the m.v. "Pakrac", carrying a cargo of various products imported from the United States, for delivery to Albatros, arrived at Foynes, County Limerick. The cargo included CPI gluten, the product relevant to these proceedings. Nothing turns on the description of the product and I will simply call it gluten.

6 A portion of the cargo, including 1845.7 tonnes of the gluten, was discharged between the 6th and 9th November, 2004 at Foynes and portion, being 4,557.56 tonnes, was discharged between 10th and 12th November, 2004 at Ringaskiddy, County Cork. Such consignments are subject under European rules to sampling and testing by officials of the Minister. The objective of the testing is principally related to the prevention of the spread of bovine spongiform encephalitis (BSE).

7 On 18th November, 2004, Albatros 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 bone "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.

8 On 18th November, 2004, the Minister issued an instruction in writing to Albatros concerning the Ringaskiddy consignment. On 25th November, 2004, she issued an instruction (identical in all material respects, save for one detail mentioned below) in respect of the Foynes consignment. Each of the instructions took the form of a letter addressed to Mr David Hickey, the Managing Director of Albatros and was headed: Re: European Communities (Processed Animal Protein) Regulations, 2000 (S.I. 486 of 2000). That is what I call the 2000 Regulation.

9 The instruction in relation to the Ringaskiddy consignment 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 [part of text not relevant]

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

14 (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

15 (b) In the case of customers who are retailers, (i) that they initiate a recall of all contaminated materials sold, and (ii) compile a list of the names and addresses of these customers along with the quantity and dates of delivery.

16 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."

17 The instruction dated 25th November 2004, in respect of the Foynes consignment referred back to what had happened in the case of the Ringaskiddy consignment, and stated:

"As you are aware, this sample [the sample taken from the Ringaskiddy consignment] was found to contain bone of terrestrial animal origin, which is regarded as a breach of the above Regulations."

18 As noted above, what the letter of 18th November 2004, regarding the Ringaskiddy consignment had actually said was that the "sample was found on analysis to contain processed animal protein, which is regarded as a serious breach of the above regulations." The letter of 25th November went on to deal specifically with the Foynes consignment. It stated:

"A quantity of the same product from the same hold on the shipping vessel was previously discharged in Foynes on 9th November. This material has also been found on analysis to contain bone of terrestrial animal origin."

19 Between 18th and 23rd November 2004, a number of notices, each bearing the heading: "Seizure and Detention Notice," was served on Albatros on behalf of the Minister. These were on printed forms, details being completed in manuscript in blank spaces. The printed part refers to "The consignment(s) of feed additive, premixture or feedingstuffs designated:" This is followed by a reference in manuscript to "US Corn Gluten Feed Pellets High Color CPI," or a similar description. One notice refers to "distillers dried grains," but I do not think that has any relevance. Some of these notices referred to the consignment being held at Ringaskiddy and some that at Foynes. The standard wording of the printed Seizure and Detention Notice was:

"I, the undersigned, being an authorised officer for the purpose of the regulations listed on the attached schedule, am satisfied that the consignments of feeding stuff designated ......... [details completed in manuscript] ......does not comply with the requirements of the regulations marked with an "X" on the attached schedule.

I hereby give you notice that I am seizing the above mentioned consignment(s) and requiring that it be detained at the above mentioned premises. You are hereby directed to take such steps as are necessary to ensure that this consignment or any part thereof does not continue to be put into circulation/is not put into circulation, and that the consignment or any part thereof is not moved from the above premises other than in accordance with my written permission.

This notice is served on you as the person who appears to be in control of the consignments concerned."

20 Each notice was signed by Maurice Winder as " Authorised Officer." Each bore a date from 18th to 23rd November 2004.

21 Attached, by way of explanation of the expression, "the regulations marked with an "X,"" was a schedule of Regulations, headed: "Regulation(s) contravened." There was a box in which a tick could be placed to indicate the applicable regulation. The regulation marked in every case was the 2000 Regulation.

22 One of the principal complaints...