Pigs & Bacon Commission v McCarren & Company Ltd

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 21 May 1981
• Neutral Citation: 1981 WJSC-SC 1080
• Docket Number: (247-1980),[1976 No. 194]
• Court: Supreme Court
• Date: 21 May 1981

1981 WJSC-SC 1080

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Kenny J.

(247-1980)

PIGS & BACON COMMISSION v. McCARREN & CO.

PIGS AND BACON COMMISSION

v.

McGARREN & COMPANY

Reversing High - 24.6.80

1 JUDGMENT delivered the 21st day of May 1981 by O'HIGGINS C.J. Nem. Diss.

2 The Plaintiffs are a statutory corporation established by the Pigs and Bacon Acts 1935to 1961. In these proceedings they claimed originally against the Defendants, who are bacon curers and who are licensed under the provisions of the said Acts, a sum of £28,594. This sum was claimed in respect of levies which the Plaintiffs allege to be due and payable under the said Acts. Section 34 of the Pigs and Bacon (Amendment) Act 1939provides for the imposition of the levies in question. By subsection (1) of the Section it is provided that every person who holds or has held a licence shall, for every levy period during which or any part of which he holds or has held such licence, pay to the Commission a levy in respect of every carcase used for the production of bacon at his premises. A levy period is any period of 3 months commencing on the 1st January, 1st April, 1st July or 1st October (s.s. (4) ). The Commission mentioned refers to the Plaintiffs. By subsection (3)(a) the Commission is empowered to make orders in respect of each levy period fixing the rate of levy and every such order shall come into force on the first day of the levy period commencing next after such order is made (s.s.(3)(b) ). By subsection (3)(c) every such order "shall remain in force until a subsequent order under this subsection is made and comes into force". The effect of this Section is that every levy operates for a period of three months, and when the next order is made and comes into force, the previous order is spent, and it is not possible or permissible to amend or make a new order for any earlier period.

3 Section 38 of the Act makes provision for the recovery of the amount of levy or levies claimed to be due by a licensee. Under this Section the Plaintiffs are empowered to ascertain the amount of the levy and thereupon by subsection (1)(c) of the Section "make a certificate (in this Section referred to as a certificate of indebtedness) certifying the period for which such levy is payable, the person by whom such levy is payable and the amount of such levy, and shall serve a copy of such certificate on such person." By subsection (2) of Section 38 it is provided that where a copy of the certificate has been served "the amount certified by such certificate shall become and be payable by such person to the Commission and shall, after the expiration of 28 days from such service, be recoverable by the Commission as simple contract debt in a court of competent jurisdiction."

4 No question arises on this appeal with regard to the observance of the statutory procedure for the making of levy orders or for the recovery from the Defendants of the amount claimed to be due by them. What is in issue is whether in the circumstances of this case any claim by the Plaintiffs is now legally maintainable against the Defendants because of the impact on the Plaintiffs' statutory powers of the Treaty of Rome and of Community Law.

5 It appears that the Plaintiffs in order to provide for an orderly expansion of bacon exports from this country introduced in the year 1970 an export bonus scheme. This scheme operated on the basis of a payment per carcase to each, curer exporting bacon who sold his produce for export through the Plaintiffs. This bonus payment was financed by means of the levies and was allowed to each qualifying exporter by refund from the levies payable. An exporter who did not sell through the Plaintiffs did not qualify for the export bonus out of course remained liable for the payment of the whole levy in respect of his particular production. The Defendants contended in the High Court that this export bonus scheme was contrary to the provisions of the Treaty Establishing the European Economic Community, and of the regulations made thereunder for the common organisation of the market in pig-meat. The learned trial Judge, Mr. Justice Costello, in the light of this contention decided to refer a series of questions for the ruling of the Court of Justice of the European Community in accordance with his powers to do so under Article 177 of the Treaty. The Court of Justice gave its ruling on the questions raised in the following terms:

6 2 "1. Having regard to the provisions of the Treaty relating to the free movement of goods, Regulation No. 2759/75 must be interpreted as meaning that a national system is incompatible with the common organisation of the market in pig-meat where the object of that system is to permit a central marketing agency vested by law with the power to charge a levy on the whole of the production of a commodity coming under the common organisation of the market, such as pig carcases intended for the production of bacon,

7 (a) to effect, from the proceeds of the receipts from the levy, the payment of bonuses for certain products intended to be marketed in the Common Market or exported to non-Member countries,

8 (b) to inflict a financial disadvantage on any producer, who is compelled to pay the production levy, by reason of the fact that he effects his sales directly without availing himself of the intermediary or of the services of the Central...