Peadar Macfhlannchadha v Minister for Agriculture Food and the Marine, Ireland and the Attorney General

JurisdictionIreland
JudgeMs. Justice Ní Raifeartaigh,Ní Raifeartaigh
Judgment Date11 June 2021
Neutral Citation[2021] IEHC 647
CourtHigh Court
Docket Number2016/867 JR
Between
Peadar Macfhlannchadha
Applicant
and
Minister for Agriculture Food and the Marine, Ireland and the Attorney General
Respondent

[2021] IEHC 647

2016/867 JR

THE HIGH COURT

Direct effect – National legislation – Directive 2001/82/EC – Applicant seeking a declaration that national legislation does not transpose Title V (Articles 58 to 61) of Directive 2001/82 correctly or at all – Whether Directive 2001/82 has direct effect

Facts: The applicant, Mr MacFhlannchadha, complained that the information accompanying veterinary medicinal products available in Ireland was written exclusively in the English language. The essence of his claim was that Ireland was in breach of EU law in failing to properly transpose EU Directive 2001/82 which, he said, requires that the information accompanying veterinary products be provided in both of the official languages of Ireland, namely the Irish and English languages. The applicant applied to the High Court seeking the following reliefs: (i) a declaration that the applicable national legislation does not transpose Title V (Articles 58 to 61) of Directive 2001/82 correctly or at all; (ii) a declaration that Irish law must ensure that the appropriate particulars on the package leaflets and packaging in question in Title V of Directive 2001/82 are in the official languages of the State, that is to say, in both Irish and English, on veterinary medicinal products placed on the market in the State; and (iii) a declaration that the Irish authorities must amend national law to ensure a correct transposition of the provisions of Title V of Directive 2001/82. As the case progressed, a question arose as to the court’s discretion in the matter of the granting of reliefs in circumstances where it reaches a conclusion that an EU Directive has not been correctly transposed. That question arose in part because of the fact that the EU had, since the original hearing in the case, introduced a new Directive giving Member States a clear choice in the matter of the language in which the information is to be published, which would come into effect in January 2022. In those circumstances, the respondents, the Minister for Agriculture, Food and the Marine, Ireland and the Attorney General, argued that the granting of the reliefs sought would be futile. By the time the product manufacturers would have changed their practice (even assuming they would do so) in response to a change in the Irish Regulation, the new EU legal regime would have come into force. Ní Raifeartaigh J then referred to the CJEU questions about whether the Court was entitled to exercise discretion to refuse relief in those circumstances and judgment was delivered by that court on the 17 March 2021.

Held by Ní Raifeartaigh J that on a close examination of the opinion of Advocate General Bobek together with the judgment of the CJEU, she did not see anything to give her sufficient reason to reverse her earlier conclusion that Directive 2001/82 has direct effect with regard to the use of both official languages of the State in the matter of veterinary product instructions. She held that if she was wrong in her conclusion on the issue of direct effect, she would be corrected on appeal. In the specific context of an invitation to revisit a conclusion already reached by her at an earlier stage in the proceedings, she did not see anything in the European pronouncements arising from her preliminary reference which warranted a reversal of her earlier conclusion. She held that the respondents had failed to persuade the Court that it was not possible to grant all of the declarations sought as a matter of Irish law.

Ní Raifeartaigh J granted the following reliefs: (i) a declaration that the applicable national legislation does not transpose Title V (Articles 58 to 61) of Directive 2001/82 correctly; (ii) a declaration that Irish law must ensure that the appropriate particulars on the package leaflets and packaging in question in Title V of Directive 2001/82 are in the official languages of the State, that is to say, in both Irish and English, on veterinary medicinal products placed on the market in the State; and (iii) a declaration that the respondent must amend national law to ensure a correct transposition of the provisions of Title V of Directive 2001/82. Ní Raifeartaigh J proposed awarding costs in favour of the applicant.

Reliefs granted.

JUDGMENT OF Ms. Justice Ní Raifeartaigh DELIVERED ON THE 11TH DAY OF JUNE, 2021.

Nature of the Case
1

This case concerns the question of whether Ireland failed to correctly transpose an EU Directive concerning the written information to be provided by the manufacturers of veterinary products on and with those products. The Directive requires that certain specific product information “ shall appear” on the packaging and in the accompanying leaflet “ in the language or languages of the country in which they are placed on the market”. The applicant is a native Irish speaker from the Connemara Gaeltacht who uses veterinary products for his pet dog. His case is that the Directive requires the relevant information be provided in both Irish and English when the product is sold in Ireland because both languages are “ the languages of the country”. However, the Irish transposing regulations permit the information to be provided in English only. Therefore, the key question in the case is whether the Directive has direct effect, within the meaning of that concept in EU law, insofar as it concerns the language in which the relevant product information is to be provided. If it has direct effect in that particular, the Irish regulation fails to correctly transpose the Directive to that extent.

2

As the case progressed, a further question arose as to the court's discretion in the matter of the granting of reliefs in circumstances where it reaches a conclusion that an EU Directive has not been correctly transposed. This question arises in part because of the fact that the EU has, since the original hearing in this case, introduced a new Directive giving Member States a clear choice in the matter of the language in which the information is to be published, which will come into effect in January 2022. In those circumstances, the respondent argued that the granting of the reliefs sought would be futile. By the time the product manufacturers would have changed their practice (even assuming they would do so) in response to a change in the Irish Regulation, the new EU legal regime would have come into force. I then referred to the CJEU questions about whether the Court was entitled to exercise discretion to refuse relief in those circumstances and judgment was delivered by that court on the 17 March 2021.

Part 1: The factual and legal context
Factual Background
3

The applicant is a native Irish speaker who lives in the Connemara Gaeltacht. He speaks Irish at home and at work. He conducts all of his official business in Irish as far as he can. Native Irish speakers are more comfortable in their own language than in English, a fact which is often not fully appreciated by the rest of the Irish population. He has a pet dog and requires veterinary medicinal products for the dog. His complaint is that the information accompanying veterinary medicinal products available in Ireland is written exclusively in the English language. The essence of his claim in these proceedings is that Ireland is in breach of EU law in failing to properly transpose EU Directive 2001/82 which, he says, requires that the information accompanying veterinary products be provided in both of the official languages of Ireland, namely the Irish and English languages.

The Reliefs Sought
4

The applicant seeks the following reliefs: (i) a declaration that the applicable national legislation does not transpose Title V (Articles 58 to 61) of Directive 2001/82 correctly or at all; (ii) a declaration that Irish law must ensure that the appropriate particulars on the package leaflets and packaging in question in Title V of Directive 2001/82 are in the official languages of the State, that is to say, in both Irish and English, on veterinary medicinal products placed on the market in the State; and (iii) a declaration that the Irish authorities must amend national law to ensure a correct transposition of the provisions of Title V of Directive 2001/82.

The current Irish Regulation
5

Before turning to the detailed provisions of the EU Directive, I will deal briefly here with the Irish regulation in its relevant aspects. Directive 2001/82 was transposed into Irish law by the European Communities (Animal Remedies) Regulations 2007 ( S.I. No. 144/2007), and subsequently the European Communities (Animal Remedies) (No.2) Regulations 2007 (S.I. No 786/2007). The latter regulation provides that the information which must appear on outer packaging, immediate packaging and the package leaflet for veterinary medicinal products ‘ shall be in English or Irish’. Thus it gives a choice in the matter of language.

The EU legislation
6

The Directive in issue in these proceedings is Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products ( OJ 2001 L 311, p. 1), as amended by Directive 2004/28/EC of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 136, p. 58). It will be referred to in this judgment simply as Directive 2001/82.

7

Title V of Directive 2001/82 contains the relevant provisions, namely Articles 58, 59 and 61. Article 58(1) and (4) of that Directive provide as follows:

‘1. Except in the case of the medicinal products referred to in Article 17(1), the competent authority shall approve the immediate packaging and outer packaging of veterinary medicinal products. Packaging shall bear the following information, which shall conform with the particulars and documents...

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