O'Neill v Min Agriculture & Food

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 05 July 1995
• Neutral Citation: 1995 WJSC-HC 3018
• Docket Number: No. 61 J.R./1994
• Court: High Court
• Date: 05 July 1995

1995 WJSC-HC 3018

THE HIGH COURT

No. 61 J.R./1994

O'NEILL v. MIN AGRICULTURE & FOOD

BETWEEN

OWEN O'NEILL

APPLICANT

AND

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

RESPONDENTS

Citations:

CENTRE BELGE D'ETUDES DE MARCHE - TELEMARKETING (CBEM) SA V COMPAGNIE LUXEMBOURGEOISE DE TELEDIFFUSION SA 1984 ECR 3261

MERCI CONVEZIONALI PORTO DI GENOVA SPA CASE 1991 ECR 5889

ELLINIKI RADIOPHONIA TILEORASSI V DIMOTIKI ETAIRIA PLIROFORISSIS 1991 1 ECR 2925

HOFNER V MACROTRON CASE 1991 1 ECR 1979

CORBENS, IN RE THE LONDON TIMES 19.5.93

SPANISH COURIER SERVICES, IN RE 1991 4 CMLR 560

BODSON V POMPES FUNEBRES DES REGIONS LIBEREES CASE 1988 ECR 2479

RTT V GB INNO BM 1991 1 ECR 5941

TREATY OF ROME ART 86

TREATY OF ROME ART 90

WEATHERHILL EUROPEAN COMMUNITY LAW (1993)

GEMEENTE ALMELO V ENERGIEBEDRIJF LLSSELMIJ CASE C-393/92

EAST DONEGAL CO-OP V AG 1970 IR 317

MACGABHANN V INCORPORATED LAW SOCIETY OF IRELAND 1989 ILRM 854

CADBURY LTD V KERRY COOPERATIVE LTD 1982 ILRM 77

SOCIETE CIVILE AGRICOLE DU CENTRE D'INSEMINAYION DE LA CRESPELLE V COOPERATIVE D'ELEVAGE ET D'INSEMINATION ARTIFICIELLE DU DEPT DE LA

MAYENNE CASE 1994 1 ECR 5077

LIVESTOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948

TREATY OF ROME ART 90(1)

TREATY OF ROME ART 30

TREATY OF ROME ART 37

TREATY OF ROME ART 85

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S1

LIVESTOCK MARTS ACT 1967 S3(1)

LIVESTOCK MARTS ACT 1967 S3(2)

LIVESTOCK MARTS ACT 1967 S3(3)

LIVESTOCK MARTS ACT 1967 S3(4)

LIVESTOCK MARTS ACT 1967 S3(5)

MCDONALD V BORD NA GCON 1965 IR 217

LIVESTOCK MARTS ACT 1967 S3

CONSTITUTION ART 40.1

LIVESTOCK MARTS ACT 1967 S4

LIVESTOCK MARTS ACT 1967 S1(2)

LIVESTOCK MARTS ACT 1967 S1(3)

LIVESTOCK MARTS ACT 1967 S1(6)

LIVESTOCK MARTS ACT 1967 S1

LIVESTOCK MARTS ACT 1967 S3(8)

DOYLE V AN TAOISEACH 1986 ILRM 693

TREATY OF ROME ART 177

FRANCE V COMMISSION TELECOMMUNICATIONS TERMINALS 1991 1 ECR 1223

HOFFMAN-LA ROCHE V COMMISSION 1979 ECR 461

AKZO V COMMISSION 1991 1 ECR 3359

SACCHI CASE 1974 ECR 409

INNO CASE 1977 ECR 2115

TREATY OF ROME ART 30

TREATY OF ROME ART 87

TREATY OF ROME ART 88

TREATY OF ROME ART 89

TREATY OF ROME ART 91

TREATY OF ROME ART 92

TREATY OF ROME ART 93

TREATY OF ROME ART 94

CBEM 1985 ECR 3261

MICHELIN CASE 1983 ECR 3461

TREATY OF ROME ART 86(b)

TREATY OF ROME ART 5

EEC DIR 77/504 ART 2

EEC DIR 87/328 ART 4

COMPAGNIE COMMERCIALE DE L'OUEST CASE 1992 1 ECR 1847

TREATY OF ROME ART 7

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S3

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S7

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S7(2)

COURIER SERVICES: THE COMMUNITY V SPAIN 1991 4 CMLR 560

LIVESTOCK MARTS ACT 1967 S6

LIVESTOCK MARTS ACT 1967 S1(7)

TREATY OF ROME ART 3(f)

TREATY OF ROME ART 90(2)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S8(3)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S3(1)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S3(2)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S4

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S5

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S6

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S7(1)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S3

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S7(3)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S8(1)

LIVESTOCK (ARTIFICIAL INSEMINATION) ACT 1947 S8(2)

LIVESTOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948 REG 3

LIVESTOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948 REG 4

LIVESTOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948 REG 5

LIVESTOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948 REG 6

LIVESTOCK (ARTIFICIAL INSEMINATION) REGS 1948 SI 55/1948 REG 7

Synopsis:

AGRICULTURE

Livestock

Cows - Insemination - Means - Artificiality - Herds - Artificial insemination field service - Training of personnel - Refusal of licence to train personnel - State monopoly of A.I. scheme providing field service for herd owners - Abuse of dominant position - Whether any failure to satisfy demands of market - Whether contravention of Treaty of Rome - Live Stock (Artificial Insemination) Regulations, 1948 (S.I. No. 55), articles 3–7 - Live Stock (Artificial Insemination) Act, 1947, ss. 3–8 - Treaty of Rome (EEC), articles 86, 90 - (1994/61 JR - Budd J. - 5/7/95)

|O'Neill v. Minister for Agriculture and Food|

LICENCE

Grant

Power - Exercise - Refusal - Challenge - Minister of State - Regulations controlling provision of bovine A.I. services - Refusal of Minister to authorise applicant to train persons for such services - (1994/61 JR - Budd J. - 5/7/95)

|O'Neill v. Minister for Agriculture and Food|

MINISTER OF STATE

Powers

Exercise - Cows - Insemination - Services - Control - Regulations controlling provision of bovine A.I. services - Refusal of Minister to authorise applicant to train persons for such services - Refusal ~intra vires~ Minister - (1994/61 JR - Budd J. - 5/7/95)

|O'Neill v. Minister for Agriculture and Food|

EUROPEAN COMMUNITIES

Agriculture

Livestock - Cows - Insemination - Means - Artificiality - Herds - Artificial insemination field service - Training of personnel - Refusal of licence to train personnel - State monopoly of A.I. scheme providing field service for herd owners - Abuse of dominant position - Whether any failure to satisfy demands of market - Whether contravention of Treaty of Rome - (1994/61 JR - Budd J. - 5/7/95)

|O'Neill v. Minister for Agriculture and Food|

1 Judgment of Mr. Justice Declan Budd delivered on the 5th day of July, 1995.

2 From early times Ireland has been well endowed with natural advantages for the breeding and rearing of cattle. Good soil and the warm, moisture-bearing South West winds, together with the influence of the Gulf Stream, gave Ireland good grass for the raising of cattle. Indeed, the subject of cattle has permeated Irish life and figures prominently in legend, literature, history and superstition. For example, the central story of the Ulster Cycle of traditional Irish tales in the Cattle Raid of Cuailnge, an epic narrative telling of an expedition led by Queen Maeve of Connaught to carry off by force a great bull possessed by one of the Ulster Chieftains. As I studied the cases cited to me on the Competition Law of the European Community in the lee of the Cooley Mountains and under the shadow of Knocknarea, with the cairn on its summit raised in honour of Queen Maeve, I was very aware of the influence which cattle breeding and dairying have played in the history of our country.

3 This case comes before the High Court by way of an application for Judicial Review brought by the Plaintiff, who is a veterinary surgeon, farmer and cattle breeder of considerable experience from Brittas, County Limerick. He qualified as a vet over thirty years ago and, having been brought up on a farm, he became involved in the successful breeding of pedigree Shorthorn and Hereford cattle and has won no less than seven supreme championships at the R.D.S. shows. He has also practised as a vet, both in private practice and subsequently as a veterinary inspector in the State service. Over the years he has developed an interest and expertise in animal genetics. He has built up an artificial insemination (A.I.) stud across the main road from his farm with full facilities to act as an A.I. station for collection, processing and storage of semen. In his application dated 20th November, 1985 for a licence to operate a private bull stud at Brittas, County Limerick, he made it clear that he would not be providing an A.I. service to stock owners. By licence dated 7th July, 1986 the Minister for Agriculture licensed the Applicant:-

4 (a) to establish an artificial insemination station at Ballyart, Brittas, Co. Limerick;

5 (b) to practice the artificial insemination of cows being superovulated for embryo transfer purposes only;

6 (c) to distribute semen through the existing artificial insemination network and to sell semen for export;

7 in accordance with the provisions of the Livestock (Artificial Insemination) Regulations, 1948 and subject to the conditions set out in the Schedule to the licence. The Applicant was also given approval for his appointment as the veterinary surgeon to take charge of the A.I. station subject to conditions attached to the letter of appointment. The Applicant and his wife, with the assistance of A.I.B. First Venture Fund, have set up a company, Bova Genetics Limited, for his enterprise in running a business based on his expertise in artificial insemination and the promotion of semen products. By application dated 6th March, 1990, Bova Genetics Limited sought to obtain an A.I. licence to give a field service to the farming community and to distribute semen directly to D.I.Y. licence holders. By letter dated 30th November, 1990 the Minister for Agriculture and Food refused to give a licence for an A.I. field service but indicated that, subject to satisfactory facilities and administrative arrangements, consideration would be given to granting a licence to distribute semen, imported or otherwise, directly to licensed D.I.Y. A.I. herd owners. The Minister's private secretary wrote in this letter dated 30th November, 1990, which I quote as exemplifying the Department's attitude and policy:-

"I wish to advise you that the Department is unable to accede to the first part of your application for the following reasons:"

8 As you know, licences issued to AI organisations currently operating here are subject, inter alia, to the conditions that

9 - they operate within a specified area (defined in the case of each licence) and that they are responsible for the provision of an AI service in that area (the combined operational areas of these organisations cover the State) and

10 - they participate in the national testing programme for AI bulls, all such testing to be done under the supervision and control of...