Muldoon v The Minister for the Environment and Local Government

JudgeMr Justice Maurice Collins,Ms. Justice Costello
Judgment Date16 March 2023
Neutral Citation[2023] IECA 61
CourtCourt of Appeal (Ireland)
Docket NumberCourt of Appeal Record Number: 2019/463, 464 & 465
Alphonsus Muldoon
The Minister for the Environment and Local Government, Ireland and The Attorney General, and Dublin City Council
Mary Kelly (As Administrator Ad Litem of the Estate of Thomas Kelly Deceased)
The Minister for the Environment and Local Government, Ireland and The Attorney General and Clare County Council
Vincent Malone
The Minister for the Environment and Local Government, Ireland and The Attorney General and Dublin City Council

[2023] IECA 61

Collins J.

Costello J.

Haughton J.

Court of Appeal Record Number: 2019/463, 464 & 465



Competition law – Public law – Road Traffic Act 1961 s. 82 – Appellants seeking damages – Whether the respondents were subject to the competition rules in carrying out their licensing functions pursuant to the regulations made under s. 82 of the Road Traffic Act 1961

Facts: Joint appeals concerned the regulation of taxis and various changes in the regime between 1961 and November 2000. The appellants, Mr Muldoon, Ms Kelly and Mr Malone, said that the combined effect of the actions and inactions of the respondents, the Minister for the Environment and Local Government, Ireland, the Attorney General, Dublin City Council and Clare City Council, was to create a market whereby individuals who wished to work as taxi drivers were required as a matter of practice to purchase licences to operate as taxi drivers on the secondary market and to do so at a very great expense, and that taxi plates therefore became a very valuable asset. The regime was abolished overnight by the adoption of S.I. 367 of 2000 on 21 November 2000 (the 2000 Regulations) which resulted in a serious loss to many taxi drivers who had either invested heavily in purchasing a licence or who had intended to rely upon the capital value which had accrued in their licences to provide an income for their retirement. The appellants claimed to have suffered loss as a result of the allegedly wrongful actions/inactions of the respondents and instituted proceedings seeking damages. On 16 October 2015, the High Court (Peart J) delivered judgment in the three cases and rejected all of the claims. Each of the appellants appealed to the Court of Appeal against the decision. The issues concerning competition law were addressed in the judgment of Collins J. The judgment of Costello J concerned the balance of the issues arising in the joint appeals.

Held by Collins J that he agreed with the judge’s conclusion that the Councils were not undertakings, and therefore were not subject to the competition rules, in carrying out their licensing functions pursuant to the regulations made under s. 82 of the Road Traffic Act 1961. He dismissed the appellants’ appeals on their competition law claims and affirmed the order of the High Court dismissing those claims. Costello J held that the appellants were out of time in respect of all of their public law claims and the claims based upon alleged breaches of public law. She held that the appellants’ right to earn a livelihood was not breached either by the maintenance of the secondary market in taxi licences as a result of the quantitative restriction regulations or by their subsequent repeal. She held that the value in the taxi licence was not protected by the Constitution and the adoption of the 2000 Regulations did not breach any constitutionally protected property right of the appellants. She held that the powers conferred on the Minister under s. 82 of the 1961 Act were general powers to regulate public service vehicles for the benefit of the general public; there was no duty of care owed to the individual taxi licence holders at any given time to regulate taxis for their benefit. She held that there was no entitlement to damages against either the Minister or the local authorities for any act or omission in relation to the exercise of their powers under the 1961 Act or regulations adopted pursuant to the Act. She rejected the appeals and allowed the cross-appeals.

Costello J held that the respondents were each entitled to their costs of the appeal, to be adjudicated in default of agreement.

Appeal dismissed and cross-appeals allowed.

Unapproved – No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 16 March 2023


The background to, and the procedural history of, these proceedings and the circumstances giving rise to the claims made by the respective Plaintiffs are set out in detail both in the judgment of the High Court (Peart J) and in the judgment of my colleague Costello J in these appeals. I gratefully adopt their accounts.


In addition to the issues addressed by Costello J in her judgment, with which I agree and to which I have nothing to add, the late Mr Muldoon 1 and Ms Kelly have also advanced a number of competition law claims which this judgment will address. Mr Malone did not make any competition law claim. 2 In the Agreed Issue Paper helpfully provided to the Court for the purpose of the appeals, the competition law issues which the Court is asked to determine are identified as follows:

“5. Was each Council an “undertaking” within the meaning of Article 86, Article 90 EC and section 5 of the Competition Act, 1991 at the material times?

6. Were the Councils in a dominant position in a relevant market and, if so, did each of them abuse its dominant position in that market?

7. Were the actions of the Councils capable of having an influence, direct or indirect, actual or potential, on the pattern of trade between Member States?

8. Did the Minister and/or the State breach Article 90 EC by enacting or maintaining in force in the case of public undertakings and/or undertakings with special and/or exclusive rights measures contrary to the rules contained in the Treaty and, in particular, Article 86 EC?”


Article 86 of the Treaty of Rome (subsequently Article 82 EC and now Article 102 TFEU) prohibits undertakings in a dominant position within the common market (now referred to as the internal market) or a substantial part of it from abusing that position in so far as it may affect trade between Member States, including by limiting production [or] markets to the prejudice of consumers.” I shall refer to this provision as Article 102 TFEU in this judgment.Undertaking” is not defined in Article 102 but, as we shall see, there is a substantial body of jurisprudence addressing what it means. Article 102 TFEU is directly effective and national courts may ( inter alia) award damages for its breach. 3


Section 5 of the Competition Act 1991 similarly prohibited any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in a substantial part of the State. That prohibition is now found in section 5 of the Competition Act 2002 (as amended).Undertaking” was defined in the 1991 Act (in section 3(1)) and that definition is repeated in section 3(1) of the 2002 Act. So far as material, it refers to “ a person, being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service.”Gain” in this context is not limited to pecuniary gain or profit and “ for gain” connotes “ merely an activity carried on or a service supplied … which is done in return for a charge or payment”: Deane v Voluntary Health Insurance Board [1992] 2 IR 319 (“ Deane v VHI”), per Finlay CJ at 332. It was not suggested in argument that, for the purpose of these appeals, there was any relevant difference between the EU law and Irish law concepts of “ undertaking”. 4


Article 90(1) of the Treaty of Rome (subsequently Article 86(1) EC and now Article 106(1) TFEU) provides that, in the case of “public undertakings and undertakings to which Member States grant special or exclusive rights”, Member States shall neither enact nor maintain in force any measure contrary to ( inter alia) the rule provided for in Article 102 TFEU. I shall refer to this provision as Article 106(1) TFEU in this judgment. Article 106(1) TFEU is also directly effective. 5 The 2002 Act does not contain any equivalent to Article 106 TFEU.


In this Court the main battleground, and the principal focus of the parties' argument, was the first of the issues set out above, namely whether Dublin City Council and Ennis Town Council (now subsumed into Clare County Council as a result of the enactment of the Local Government Reform Act 2014) were “ undertakings” at the relevant time. For the reasons set out in his Judgment ( [2015] IEHC 649), Peart J held that they were not. It followed that the

competition claims against the Councils failed. The issue is analysed in some detail in the Judge's Judgment but the essential basis for his conclusion is succinctly stated at para 210:

“the licensing of taxis under powers given to them by the 1978 Regulations is not in my view an economic activity. It is an administrative/regulatory activity or function carried out by the Councils. I have no difficulty accepting as a matter of law that a local authority may, in circumstances where it is itself participating in an economic activity in addition to having a regulatory function, be considered to be an undertaking in relation to that economic activity. But its regulatory function must be severed from that other economic activity, so that when it is performing that purely regulatory function it is not to be considered an undertaking, and therefore is not subject to the competition rules under the Treaty. It follows from the fact that neither council is an undertaking, that neither can be considered to be a public undertaking for the purpose of Article 86. The competition rules do not apply to...

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