Avonmore Creameries Ltd v Bord Bainne Co-Op Ltd

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.,McCarthy J.,O'FLAHERTY J.
Judgment Date21 March 1991
Neutral Citation1991 WJSC-SC 7
Date21 March 1991

1991 WJSC-SC 7

THE SUPREME COURT

Finlay C.J.

McCarthy J.

O'Flaherty J.

227/90
234/90
AVONMORE CREAMERIES LTD v. BORD BAINNE CO-OP LTD
AVONMORE CREAMERIES LIMITED AVONMORE FOODS PLC AND JOHNDUGGAN AND KERRY CO-OPERATIVE CREAMERIES LIMITED AND PATRICK JAMESO'CONNELL
Plaintiffs/
Appellants

and

AN BORD BAINNE CO-OPERATIVE LIMITED
Defendant/
Respondent

Citations:

TREATY OF ROME ART 177

TREATY OF ROME ART 85

TREATY OF ROME ART 86

EEC REG 26/1962

EEC REG 26/1962 ART 2 PARA 2

TREATY OF ROME ART 85(1)

BORLANDS TRUSTEE V STEEL 1901 1 CH 279

AG V JAMESON 1904 2 IR 644

MUTUAL LIFE INS CO OF NEW YORK V RANK ORGANISATION LTD 1985 BCLC 11

COMPANIES (AMDT) ACT 1983

STOHMENGER V BOROUGH OF FINSBURY PERMANENT INVESTMENT BUILDING SOCIETY 1897 2 CH 469

HOLE V GARNSEY 1930 AC 472

STENHOUSE AUSTRALIA LTD V PHILLIPS 1974 AC 391

MULLIGAN V CORR 1925 IR 169

MAXIM NORDENFELT GUNS & AMMUNITION CO V NORDENFELT 1894 AC 535

ESSO PETROLEUM CO LTD V HARPERS GARAGE (STOURPORT) LTD 1968 AC 269

CONSTITUTION ART 45

BUCKLEY & ORS (SINN FEIN) V AG & ANOR 1950 IR 67

BYRNE V IRELAND 1972 IR 241

COMYN V AG 1950 IR 142

O'BRIEN V MANUFACTURING ENGINEERING CO LTD 1973 IR 334

MCGEE V AG 1974 IR 284

MURTAGH PROPERTIES V CLEARY 1972 IR 330

RYAN V AG 1965 IR 294

ROGERS V ITGWU 1978 ILRM 51

LANDERS V AG 109 ILTR 1

NOVA MEDIA SERVICES V MIN POSTS & TELEGRAPHS 1984 ILRM 161

AG V PAPERLINK LTD 1984 ILRM 373

FORDE, COMMERCIAL LAW IN IRELAND 320

GLOUCESTER GRAMMER SCHOOL 1410 YB 11 HEN IV 320

CHESHIRE & FIFOOT LAW OF CONTRACT 11ED 380

SCHROEDER V MACAULAY 1974 3 AER 616

CHITTY ON CONTRACT 26ED V1 PARA1190

MITCHEL V REYNOLDS 1711 1 P WMS 181

WYATT V KREGLINGER & FERNAU 1933 1 KB 793, 49 LQR 465

BULL V PITNEY BOWES LTD 1966 3 AER 384

MCELLISTRIM V BALLYMACELLIGOT CO-OPERATIVE AGRICULTURAL & DAIRY SOCIETY 1919 AC 548

INDUSTRIAL & PROVIDENT SOCIETIES ACT 1893

Synopsis:

EUROPEAN COMMUNITIES

Trade

Restriction - Dominant position - Abuse - Agricultural products - Farmers" association - Export agency - Change of rules - Validity - Jurisdiction of national courts - Jurisdiction ousted by Council directive - (227,234/90 - Supreme Court - 21/3/91)

|Kerry Co-Operative Creameries Ltd. v. An Bord Bainne|

FRIENDLY SOCIETY

Rules

Alteration - Validity - Constitution - Property rights - Infringement - Restraint of trade - Treaty of Rome (EEC) - Competition rules - Trade in agricultural products - Jurisdiction of national courts - Exclusion - Trade between member States - Restriction - Dominant position - Abuse - Whether rules made ~ultra vires~ the society - Industrial & Provident Societies Act, 1893 - Council Regulation (EEC) No. 26/62 of 4/4/62 - Treaty of Rome (EEC), articles 42, 85, 86 - Constitution of Ireland, 1937, Articles 40, 43, 45 - (227,234/90 - Supreme Court - 21/3/91)

|Kerry Co-Operative Creameries Ltd. v. An Bord Bainne|

SUPREME COURT

Jurisdiction

Restriction - European Community - Trade - Competition rules - Application - Agricultural products - Exemption - Determination - Function of Council - (227,234/90 - Supreme Court - 21/3/91)

|Kerry Co-Operative Creameries Ltd. v. An Bord Bainne|

TRADE

Restraint

Doctrine - Constituents - Common law - Covenant - Necessity - Dominant position - Abuse - Treaty of Rome (EEC) - Competition rules - Application - Agricultural products - Exception - Determination by Council - Jurisdiction of national courts ousted - Rules of farmers" association - Effect - (227,234/90 - Supreme Court - 21/3/91) - [1991] ILRM 851

|Kerry Co-Operative Creameries Ltd. v. An Bord Bainne|

1

JUDGMENT delivered on the 21st day of March 1991by FINLAY C.J.

2

I have read the judgments which are about to be delivered by McCarthy J. and O'Flaherty J., each of which deals with the issues of national law arising in these two appeals, and I am in agreement with theconclusions which they have reached and with their proposed dismissal on all grounds of the appeals by the Plaintiffs against the findings and order made by Costello J. on those issues.

3

In relation to the claim that the adoption of the new rules was invalid as constituting an unreasonable restraint of trade, both the judgments decide that the measures were reasonable. With those decisions and with the reasoning underlying them I am in complete agreement.

4

McCarthy J. in his judgment has rejected the submission made on behalf of the Respondent that a restraint of trade must be an express covenant or condition in a contract, whereas, O'Flaherty J. has concluded that the existence of such covenant or condition in a contract is a precondition for the application of the doctrine concerning restraint oftrade.

5

The resolution of the issue thus arising asbetween the two judgments is not necessary for the determination of the Plaintiff's claim in the light of our agreed conclusion that any restraint of trade, howsoever arising in the case, was reasonable.

6

Having regard to the general importance of this issue of law, I would prefer to reserve my decision on it until it arises in a case as a question necessary for the determination of the claim.

7

The agreed decision of this Court to affirm the dismiss of the entire of the Plaintiff's claim, based on national law, makes potentially relevant issues of European Community law which have been pleaded anddebated.

8

The other members of the Court have authorised me in this judgment to state our agreed views on these issues.

9

Where a decision of the High Court involving (as occurred in this case) a determination of questions of EC law is appealed to this Court, the function of thisCourt, having regard to the provisions of Article 177 of the Treaty establishing the European Community (The Treaty) is both clear andlimited.

10

It is for this Court to reach a decision as to whether the resolution of any question concerning

11

(a) the interpretation of the Treaty and/or

12

(b) the validity and interpretation of acts of the institutions of the Community and/or

13

(c) the interpretation of the statutes of bodies established by an act of the Council where those statutes so provide is necessary to enable this Court to give judgment.

14

That decision is, of course, a matter of national law necessarily governed by a consideration of the principles applicable in that law to the issues which must be determined in order for this Court to give judgment on the issues between the parties.

15

In any case where a judge of first instance has, as he is clearly entitled to do, reached a decision onone or more question of European Community law, coming within the categories mentioned in Article 177 of the Treaty, this Court as a final court of appeal cannot affirm, vary or reverse such a decision, but must, if the resolution of such questions is necessary to enable it to give its judgment, refer those questions for a preliminary ruling to the Court of Justice of the European Communties pursuant to Article 177. If, of course, this Court decides that the resolution of such questions is not necessary to enable it to give judgment in the case, then no reference is made. In either event it is not appropriate for this Court to express any view on issues of European Community law arising in this manner, except for the particular instance where it may conclude that what was alleged to be an issue of EC law is in fact incapable of any but one resolution, and has so clearly been determined.

16

In this case the Plaintiff's claim that the enactment of the new Rules is invalid as constituting abreach of Article 85 and Article 86 of the Treaty.

17

With regard to the allegation of a breach of Article 85, Costello J., having reviewed the provisions of relevant Article of the Treaty and of Regulation No. 26 adopted by the Council of Ministers on the 6th April 1962, came to the following conclusion:

"So, an important jurisdictional point arises. How can I in the light of paragraph 2 of Article 2 of Regulation 26 adjudicate on the issue which has been raised in these proceedings, namely whether Regulation 26 exempts the Association created by the new Rules from the provisions of Article 85? I do not think I can. I must apply a law which specifically withdraws from national courts jurisdiction to adjudicate on such an issue and confers jurisdiction on the commission (and on appeal the Court of Justice) to determine it.

.........

I conclude, therefore, that prima facie Regulation 26 applies to the agreements which are involved by the adoption of the new Rules. As no application to stay these proceedings has been made pending an application to the Commission to determine the matter, I must dismiss the claim that the newRules infringe Article 85 of the Treaty, in the absence of a contrary ruling on the point by the Commission."

18

This Court is satisfied that the conclusion thus reached was correct and, furthermore, that it constitutes a decision concerning the jurisdiction of the Court to grant to the Plaintiffs relief in respect of a complaint in these proceedings of a breach of Article 85. As such it is a determination not of a question of interpretation of the Treaty, such as is referred to in Article 177, but of the fact that the determination of the question of an alleged breach of Article 85 cannot be made by the national court in this case and, consequently, could not be necessary to enable the Court to give judgment in this action.

19

The Court is, therefore, satisfied that the issue of an alleged breach of Article 85 should neither be determined in this appeal nor referred to the Court of Justice of the European Communities pursuant to Article177 of the Treaty.

20

With regard to the complaint of a breach of Article 86, the conclusion of Costello J. was as follows:

"Complete exemption from the application of Article 86 was not, therefore, granted to farmers" co-operatives. But it seems to me that the rules of a farmers" co-operative which finds itself in a dominant position...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT