Greene v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-HC 1577
• Court: High Court
• Docket Number: No. 2453P/1987,[1987 No. 2453P]
• Date: 01 January 1990

GREENE v. MIN AGRICULTURE

BETWEEN

THOMAS GREENE AND OTHERS

PLAINTIFFS

AND

THE MINISTER FOR AGRICULTURE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

1989 WJSC-HC 1577

No. 2453P/1987

Synopsis:

GOVERNMENT

Grants

Farmers - Incomes - Support - European Community - Council directive - Implementation by Government - Whether government scheme repugnant to Constitution - Protection of marriage - Equality before the law - Condition of scheme excluded married farmers if combined incomes of farmer and farmer's spouse exceeded specified amount - Held that the impugned conditions were breaches of the State's pledge in Article 41.3.1 of the Constitution to guard with special care the institution of marriage and to protect it from attack: ~Murphy v. The Attorney General~ [1982] I.R. 241 applied and ~Muckley v. Ireland~ [1985] I.R. 472, [1986] ILRM 364 considered - Held that the impugned conditions could not be severed from the said schemes and that the schemes were invalid because they were made ~ultra vires~ the defendant Minister - Rules of the Superior Courts, 1986, order 15, r. 9 - Council Directive No. 75/268/E.E.C. - Constitution of Ireland, 1937, Articles 29, 40, 41 - (1987/2453 P - Murphy J. - 14/4/89) - [1990] 2 I.R. 17 - [1990] ILRM 364

|Greene v. Minister for Agriculture|

AGRICULTURE

Farmers

Income - Support - Government - Scheme - Validity - State's pledge to protect marriage - Breach - Income support for farmers working poor land - Condition of scheme excluded applicants on basis of off-farm income limit placed on combined incomes of married applicants and spouses of applicants - ~See~ Government, grants - (1987/2453 P - Murphy J. - 14/4/89)1990 2 IR 17

|Greene v. Minister for Agriculture|

CONSTITUTION

Family

Marriage - Protection - State's pledge - Breach - Government scheme - Income support for farmers working poor land - Exclusion of applicants based on off-farm income limit placed on combined incomes of married applicants and spouses of applicants - ~See~ Government, grants - (1987/2453 P - Murphy J. - 14/4/89)1990 2 IR 17

|Greene v. Minister for Agriculture|

EUROPEAN COMMUNITIES

Council of Ministers

Directive - Implementation - Government - Scheme - Validity - State's pledge to protect marriage - Breach - Income support for farmers working poor land - Condition of scheme excluded applicants on basis of off-farm income limit placed on combined incomes of married applicants and spouses of applicants - ~See~ Government, grants - (1987/2453 P - Murphy J. - 14/4/89)

|Greene v. Minister for Agriculture|

MINISTER OF STATE

Powers

Scheme - Grants - Payment - European Economic Community - Council directive - Implementation by State - Breach of State's pledge to protect institution of marriage - Invalid condition of scheme not severable - ~See~ Government, grants - (1987/2453 P - Murphy J. - 14/4/89) - [1990] 2 I.R. 17 - [1990] ILRM 364

|Greene v. Minister for Agriculture|

Citations:

EEC DIR 75/268

EEC DIR 75/268 ART 1

EEC DIR 75/268 ART 7

EEC DIR 72/160 ART 2(1)

ROYER'S CASE 1976 ECR 497

MOULINS ET HUILERIES DE PONT-A-MOUSSON V OFFICE NATIONALE INTERPROFESSIONEL DES CEREALES 1977 2 ECR

CONSTITUTION ART 29.3

LAWLOR V MIN AGRICULTURE 1988 ILRM 400

QUINN'S SUPERMARKET V AG 1972 IR 8

CONSTITUTION ART 40.1

MURPHY V AG 1982 IR 241

MUCKLEY V IRELAND 1985 IR 472

HYLAND V MIN SOCIAL WELFARE & AG 1989 ILRM 196

CONSTITUTION ART 15.4

MCLOUGHLIN, STATE V EASTERN HEALTH BOARD 1986 IR 416

PINE VALLEY V MIN ENVIRONMENT 1987 ILRM 747

MESKELL V CIE 1973 IR 121

EEC DIR 75/268 ART 17

KELLY IRISH CONSTITUTION 1980 P347

MURPHY V AG 1983 IR 241

1 Judgment of Mr. Justice Murphy delivered the 14th day of April 1989.

2 This is a claim by the Plaintiffs for an Order declaring that certain schemes made by the Minister for Agriculture between 1975 and 1986 in pursuance of E.E.C. Directive 75/268/E.E.C. or some of them are invalid in whole or in part.

3 On the 28th of April 1975 the Council of the European Communities made a Directive "on mountain and hill farming and farming in certain less favoured areas". This is the Directive cited as 75/268. As is customary in Council Directives it contains numerous recitals setting out the background against which it is made and the object which it seeks to achieve. Some of these recitals are particularly relevant to the present case and I quote them in full as follows:-

"Whereas the statement made by the Community concerning hill farming annexed to the Treaty of Accession declares that special conditions obtain in hill farming areas as compared with other areas of the United Kingdom and that differences, at times vary marked, exist between areas in the Member States of the original Community, and also that the special conditions obtaining in certain areas of the enlarged Community may require action with a view to attempting to resolve the problems raised by these special conditions and in particular to maintain reasonable incomes for farmers in such areas.

Whereas it is necessary that steps be taken to ensure the continued conservation of the countryside in mountain areas and in certain other less favoured areas; whereas the Member States have already taken or plan to take positive measures for this purpose and these efforts should be encouraged; whereas farming performs a fundamental function in this respect;

Whereas the steady decline in agricultural incomes in these areas as compared with other regions of the Community, and the particularly poor working conditions prevalant in such areas are causing large scale depopulation of farming and rural areas, which will eventually lead to the abandonment of land which was previously maintained, and moreover jeopardising the viability and continued habitation of those areas the population of which is predominantly dependent on an agricultural economy;

Whereas in adopting provisions allowing Member States to apply for the assistance of farming in the less favoured areas, all or some of the measures making up a particular system of aids designed to meet the particular needs of these areas the Community would be supporting the efforts made by the Member States to maintain a farming industry in such areas;

Whereas the permanent natural handicaps existing in such areas which are due chiefly to the poor quality of the soil, the degree of slope of the land and the short growing season, and which can be overcome only by operations the cost of which would be exorbitant, lead to high production costs and prevent farms from achieving a level of income similar to that enjoyed by farms of a comparable type in other regions.

——

Whereas it may be essential if the objectives assigned to farming in the less favoured areas are to be attained that farmers permanently engaged in agriculture in such areas be paid annual compensatory allowances;

Whereas it should be left to the Member States to fix the amount of such allowances according to the severity of the handicaps involved within the limits and conditions fixed for the different types of areas both as to the amounts which may be paid and the types of production which may be covered".

4 The operative part of the Directive is set out in Article 1 thereof in the following terms:-

"In order to ensure the continuation of farming, thereby maintaining a minimum population level or conserving the countryside in certain less favoured areas the list of which is determined in accordance with the procedure laid down in Article 2. Member States are authorised to introduce the special system of aids provided for in Article 4 to encourage farming and to raise farm incomes in those areas".

5 The Directive describes in general terms the type of less favoured farming areas to which the schemes might relate but imposes on the individual Member States the obligation of designating the relevant areas within the national territories. The particular type of aid provided is described as "a compensatory allowance". Again the individual Member States are assigned the task (by Article 7) of fixing the amounts of the compensatory allowance subject to provisions providing for both minimum and maximum payments. The minimum figure (as set out in Article 7) provides that no allowance shall be paid for "less than fifteen units of account per livestock unit". Nor may the allowance exceed fifty units of account per livestock unit. Livestock units are established by the annex to the Directive which expresses bovine, ovine and capric animals in livestock units for the purposes of the Directive. Effectively, therefore, the compensatory allowance takes the form of an animal headage payment by the Member State to certain farmers and there is then provision (in Article 15) under which the Member States may be recouped part of the expenditure incurred by them. The portion of the expenditure borne by the Community has varied from time to time but is now approximately 50%. The Directive is addressed to the Member States and under Article 17 the Member States are required to take the necessary measures to conform to the provisions thereof within one year from the date of its notification. However, perhaps the most specific provision dealing with the obligation of the Member State is set out in Article 6 as follows:-

"1. Where Member States grant a compensatory allowance, farmers with at least three hectares of ultilised agricultural area who undertake to pursue a farming activity in accordance with the aims of this Directive for at least five years shall be eligible for such an allowance. However, where a farmer gives up agriculture in accordance with Article 2 (1) of Council Directive Number 72/160/E.E.C. of 17 April 1972 concerning measures to encourage the cessation of farming and the re-allocation of utilized agricultural areas for the purpose of structural improvement, in cases of force majeure or, for example where his...