Lawlor v Minister for Agriculture

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1986 No. 11837P]
• Court: High Court

High Court

[1986 No. 11837P]

Lawlor v. Minister for Agriculture

Patrick Lawlor

Plaintiff

and

The Minister for Agriculture, Noel Duffy and Mary Duffy

Defendants

Cases mentioned in this report:—

Blake v. The Attorney General [1982] I.R. 117; [1981] I.L.R.M. 34.

Brennan and Others v. Attorney General [1983] I.L.R.M. 449.

Bock v. Commission [1971] E.C.R. 897.

Buchanan & Co. v. Babco Ltd. [1977] Q.B. 208; [1977] 2 W.L.R. 107; [1977] 1 All E.R. 518 (C.A.); [1978] A.C. 141; [1977] 3 W.L.R. 907; [1977] 3 All E.R. 1048.

Burke v. Minister for Labour [1979] I.R. 354.

Dreher v. Irish Land Commission [1984] I.L.R.M. 94.

Electricity Supply Board v. Gormley [1985] I.R. 129; [1985] I.L.R.M. 494.

Germany v. Commission [1963] E.C.R. 63; [1963] C.M.L.R. 347.

Hamilton v. Hamilton [1982] I.R. 466.

Kaufhof v. Commission [1976] E.C.R. 431.

Nestor v. Murphy [1979] I.R. 326.

O'Callaghan v. Commissioner for Public Works [1985] I.L.R.M. 364.

Racke v. Hauptzollamt Mainz [1979] E.C.R. 69.

The Housing (Private Rented Dwellings) Bill, 1981 [1983] I.R. 181; [1983] I.L.R.M. 246.

Toepfer v. Commission [1965] E.C.R. 405; [1966] C.M.L.R. 111.

Watson and Belmann [1976] E.C.R. 1185; [1976] 2 C.M.L.R. 552.

Constitution - Property rights - Ownership - Exercise - Exigencies of the common good - Retroactivity - European Communities (Milk Levy) Regulations 1985 (S.I. No. 416) - European Communities Act 1972 (No. 27), s. 3 - Constitution of Ireland 1937, Articles 40 and 43.

Constitution - Conformity - Immunity - Membership of European Communities - Measures necessitated by the obligations of membership of the Communities - Constitution of Ireland, 1937 Article 29, s. 4, sub-s. 3.

Sale of land - Dairy farm - Milk "quota" - Transfer - Ministerial regulation - Retroactive effect - Interim period - Whether quota retained by vendor in absence of express agreement - European Communities (Milk Levy) Regulations; 1985 (S.I. No. 416) - European Communities Act 1972 (No. 27) s. 3 - Commission Regulation (EEC) No. 1371/84.

Statute - Statutory interpretation - European Communities legislation - Principles of interpretation - Domestic legislation enacted to implement E.E.C. regulation - Schematic or teleological approach.

Plenary Summons.

The facts are as set out in the judgment of Murphy J., post. By plenary summons dated the 17th December, 1986, the plaintiff sought:—

• (1) a declaration that the plaintiff was entitled to the reference quantities ("quotas") formerly assigned to him by the first defendant within the meaning of divers milk super levy regulations;

• (2) a declaration that the property comprised in an agreement for sale dated the 28th November, 1983, did not comprise or include any milk quota or reference quantity in respect of the lands thereby sold;

• (3) orders restraining the first defendant from communicating with Bailieborough or Dundalk and Drogheda Dairies for the purposes of reducing the reference quantities assigned to the plaintiff;

• (4) orders restraining the first defendant from assigning or causing to be allocated any portion of the plaintiff's reference quantities to the second or third defendants; and

• (5) orders restraining the second and third defendants from making representations to the first defendant with the object of causing such allocations to be made.

By affidavit sworn on the 15th December, 1986, the plaintiff deposed that he would suffer damage if 78,013 gallons of milk, equivalent to 41% of his total quota, were assigned to the second and third defendants. By affidavit sworn the 20th January, 1987, the second defendant deposed that he and the third defendant had submitted with the plaintiff to a special arbitration procedure set up by the first defendant, in which the plaintiff had contended that the reference quantity properly referrable to the Burtonstown farm, the subject matter of the agreement for sale dated the 28th November, 1983, amounted to only 30,000 gallons, but that the arbitrator had decided that the proper amount was 78,013 gallons, and that it was solely on foot of that award that the plaintiff had embarked upon alternate proceedings in the High Court. An affidavit on behalf of the first defendant was sworn by Michael Corry on the 23rd January, 1987. Pursuant to notice of motion dated the 19th December, 1986, the High Court (Blayney J.) on the 2nd February, 1987, granted interlocutory injunctions in the terms of (3) and (5) above, the plaintiff through his counsel having given an undertaking as to damages. Notice pursuant to O. 60 of the Rules of the Superior Courts, 1986, was served on the Attorney General that at the hearing the plaintiff would be seeking a declaration that the European Communities (Milk Levy) Regulations, 1985 (S.I. 416 of 1985) did not come within the scope or ambit of Article 29, s. 4, sub-s. 3 of the Constitution.

Article 12 of the European Communities (Milk Levy) Regulations, 1985 (S.I. 416) provides:—

"(1) (a) Any person who purports to sell or transfer or sells or transfers land or any part of any land without at the same time assigning to the purchaser or transferee, as the case may be, of that land or that part of that land the relevant reference quantity shall be guilty of an offence.

• (b) Any person who purports to lease or leases land or any part of any land for a period of not less than three years without at the same time assigning to the lessee of that land or that part of that land the relevant reference quantity shall be guilty of an offence.

• (c) Any person who purports to purchase, or who purchases, or who takes a lease of, any land or any part of any land for a period of not less than three years without an assignment of the relevant reference quantity shall be guilty of an offence.

• (d) Any person who purports to lease or leases, or takes a lease, of any land or any part of any land for a period of less than three years, and assigns or takes an assignment of the relevant reference quantity shall be guilty of an offence.

• (e) Any person who is found guilty of an offence under this paragraph shall be liable on summary conviction to a fine not exceeding £1,000.

  • (2) Subparagraphs (1) and (2) of Article 5 of Commission Regulation No. 1371 shall be applicable to other transfers referred to in subparagraph (3) of the said Article 5 except that as regards, and only as regards, the period commencing on the 1st day of January, 1983, and ending on the 1st day of April, 1984, the following provisions shall have effect:—

    • (a) this Regulation shall not be construed as applying in relation to a sale, lease, transfer or disposal of land in relation to which an agreement in writing had previously been concluded whereby it was agreed that all or part of the relevant reference quantity was to be retained by the person selling, leasing, transferring or disposing of the land, and

    • (b) nothing in the Regulations shall be construed as affecting such an agreement."

Section 3 of the European Communities Act, 1972, provides:—

"(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).

(3) Regulations under this section shall not create an indictable offence."

Article 7 of Council Regulation (EEC) No. 857/84 provides:—

"1. Where an undertaking is sold, leased or transferred by inheritance, all or part of the corresponding reference quantity shall be transferred to the purchaser, tenant or heir according to procedures to be determined.

2. Under formula B, where a purchaser replaces, wholly or in part, one or more purchasers, his annual reference quantity shall be established:—

for the end of the current 12 month period, by taking into account all or part of the reference quantities on a pro rata basis of the time still to run;

for the following period of 12 months, by adopting all or part of the reference quantities of the purchaser or purchasers whom he replaces.

• 3. Member States may provide that a part of the quantities be added to the reserve referred to in Article 5."

Article 5 of Commission Regulation (EEC) No. 1371/84 provides:—

"For the purposes of applying Article 7(3) of [Council Regulation No. 857/84/E.E.C.] the following rules shall apply to the transfer of reference quantities granted to producers and purchasers in application of formulas A and B and of reference quantities granted to producers selling for direct consumption:—

1. Where an entire holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be transferred in full to the producer who takes over the holding.

2. Where one or several parts of a holding is sold, leased or transferred by inheritance, the corresponding reference quantity shall be distributed among the producers operating the holding in proportion to the areas used for milk production or according to other objective criteria laid down by Member States. Member States may disregard transferred parts the area of which used for milk production is less than a minimum size which they shall determine.

3. The provisions of subparagraphs 1 and 2 above shall also be applicable in other cases of transfer which, under the various national rules, have comparable legal effects as far as producers are concerned. Member States may apply the provisions of subparagraphs 1 and 2 in respect of transfers taking place during and after the reference period."

Article 29, s. 4, sub-s. 3 of the Constitution of Ireland, 1937, provides:—

"3 The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European...