Supreme Court of Ireland Decisions

1. The issue in this case, as refined and expounded in the course of the submissions to this Court, is whether the Appellants were entitled to be notified individually by the Respondent Minister of the adoption of Council Regulation (EEC) No 1639/91 on the 13th June 1991 and of their right to apply for a milk quota under that regulation. Regulation 1639/91 is generally known in this country and will be hereinafter referred to as “the Mulder Two Regulations” and similarly milk quotas granted in pursuance thereof will be referred to as “Mulder Two Quotas” . In other Member States and in the reported judgments of the European Court of Justice those regulations and quotas granted thereunder are usually identified by reference to the description “Slom Two” . A more appropriate title for the latter regulations and quotas might be “Spangl/Rauh”. Explaining those actual and possible designations will provide the context in which the issue aforesaid arises.

2. Council Regulations 8 56/84 and 85 7/84 both dated the 31st March 1984 (the Milk Quota Regulations) revolutionised dairy farming throughout the Member States of the Community. In a system explained in a dozen or so recitals and implemented in not many more articles they provided that every Member State should have a reference quantity for milk. If that quantity was exceeded levies or penalties became payable. Ultimately such penalties were borne by the individual producers who exceeded in any year (where the national quota had been likewise exceeded) the reference quantities (or quota as it is always known) ascribed to them. The penalties for exceeding quotas are serious but the benefits of producing and delivering milk within quota are very considerable having regard to the guaranteed price structure provided by other Community regulations.

3. The quota of individual dairy farmers in Ireland (and in Italy) is based on the gallonage delivered in the year 1983. In other Member States the basis year is 1981. Save in certain exceptional cases, which have no relevance to these proceedings, an Irish farmer who was not in milk production in 1983 could not obtain a quota under the Milk Quota Regulations as originally adopted. This caused serious problems. Before the adoption of those Regulations other attempts had been made to discourage the overproduction of milk. In particular, Council Regulation (EEC) No 1078/77 introduced the Non-Marketing of Milk Scheme and the Dairy Herds Conversion Scheme under which farmers who undertook to withdraw from milk production for a period of five years were paid a premium related to the milk gallonage supplied by them in the period immediately prior to their undertaking. “Slom” is the Dutch acronym for the designation of such schemes (or the victims of them) and I use it to identify those schemes although in other contexts it has a more extensive connotation. The overlap of the Slom Schemes with the introduction of the Milk Quota Regulations caused serious injustice. Dairy farmers including the Appellants herein (or their predecessors in title) who had agreed to withdraw from dairy farming for a limited period, which included the basis year for the allocation of quotas (1983), found themselves in the position that although they were in theory free to return to milk production, in practice they could not do so. In the absence of a quota every gallon of milk produced by them was likely to attract a super levy penalty.

4. It was a Dutch farmer, J Mulder, who instituted proceedings in the Netherlands claiming that the Milk Quota Regulations were invalid insofar as they excluded dairy farmers who were participating in the Slom Schemes during the basis year. Those proceedings were referred to the European Court of Justice where Mr Mulder’s claim was upheld. Effectively the amending regulations (the Mulder One Regulations) provided that producers whose period of non-marketing or conversion pursuant to an undertaking given under a Slom Scheme expired

5. Within that time-limit some 2,500 Irish farmers applied to the Respondent Minister for a Mulder One Quota. Some 1,800 applicants were successful and the remainder (including all of the Appellants or their predecessors) were refused. They were properly refused. The Minister, as the Competent Authority and acting in an administrative capacity, necessarily rejected applications from farmers whose period of non-marketing of milk expired prior to the 1st October 1983 (‘the Date Category’) and also those (‘the Inheritors Category’) who received a holding by means of inheritance (or similar means) subsequent to the expiry of the undertaking to withdraw given by the originator of the inheritance. A suggestion that the Irish Competent Authority gave an unduly restrictive interpretation to the Mulder One Regulations because of some political or economic policy is without foundation. As a matter of law the Minister had no discretion as to the interpretation to be given to the regulations and as a matter of fact it is clear that the Minister had pressed the European Commissioner for Agriculture to adopt a more generous approach in the drafting of the Mulder One Regulations. The Minister had contended in a letter of the 19th September 1989 that the exclusion of the Date Category and the Inheritors Category would be unfair and oppressive and forecast the litigation which was subsequently initiated. The European Commissioner was unable to comply with the demands made on him by the Irish Minister. The litigation

6. Effect was given to those rulings of the Court of Justice by regulations which, as I mentioned at the outset, might properly be described in the circumstances as the Spagl/Rauh Regulations but are in practice, in this jurisdiction, referred to as the “Mulder Two Regulations” (Council Regulation (EEC) No 1639/91 of the 13th June 1991).

7. The formula by which the Council remedied the deficiencies in the Mulder One Regulations so as to render the Appellants eligible to request a quota under the amending regulations (the Mulder Two Regulations) is not material to the resolution of the present proceedings. However it is helpful to quote the recital from the Mulder Two Council Regulation analysing the problems that had arisen and more particularly referring to the machinery by which the amending regulations were to be operated by the Competent Authorities in the Member States. The first recital to Council Regulation 1639/91 provides as follows:-

8. The Appellants relied strongly on the machinery provisions contained in Article 3a of the Milk Quota Regulations as amended by the Mulder One Regulations and extended by the Mulder Two Regulations to quotas allocated or to be allocated thereunder. Article 3a.( 1) provides as follows:-

9. Adverting to the words which I have emphasised the Appellants contend that the subarticle imposed upon the Competent Authority of every Member State the duty to lay down procedures which were adequate and appropriate to give notice of the making of the Mulder Two Regulations and the right of the Appellants to apply for quotas thereunder. It was contended that this wider interpretation of the relevant regulation was supported by the fourth recital to the same regulation which provided as follows:-

10. The Appellants argued that the Community legislation (the Mulder Two Regulations) was incomplete in itself and that national procedures had to be adopted before the Community regulations could be truly effective.

11. The Respondents contended that the relevant regulations had direct effect and that the Minister was not under any obligation to adopt any measure by way of legislation, statutory instrument or otherwise to give effect thereto. Reference was made to Article 189 of the EEC Treaty which provides (among other things) as follows:-

12. Again the Respondents referred to s.2 of the European Communities Act 1972, which provides that:-

13. That regulations have immediate and direct effect throughout the Community as from the date of their publication has been emphasised in two cases relied upon by the Respondents, namely Racke v. Hauvtzollamvt Mainz [1979] ECR 69 where the Court stated (at page 85) that:-

14. It is clear that in general there is no obligation on Member States to promulgate Community Law and certainly its application in Member States could not be accelerated or postponed by the decision of national authorities. Any argument to the contrary would involve reasserting the element of national sovereignty which was ceded by the Member States to the Community. It is readily appreciated that hardship may be caused by legislation (whether European or domestic) imposing obligations or conferring rights upon which time-limits are placed where knowledge of the enactment of the legislation does not reach the attention of those to whom it is addressed within the prescribed time-frame. Whatever the hardship it is clear that European legislation takes effect from the date of its publication in the Official Journal of the European Communities. The problem facing the Appellants is that they must argue not merely that the Minister was bound to give adequate publicity to the Mulder Two Regulations but also that he was bound to give individual notice to each of the Appellants.

15. The Minister accepted that he did have some obligation to publicise the making of the Mulder Two Regulations. This obligation, he claimed, did not derive from Community Law generally, the Milk Quota Regulations or any amendment thereof. What Counsel on his behalf conceded was that, having published in the national press and elsewhere particulars of earlier regulations concerning those quotas, farmers in general had a legitimate expectation that similar material - and in particular amending regulations - would be given comparable publicity. He admits this obligation and claims to have discharged it in full. It is not disputed that the Minister publicised the making of the Mulder Two Regulations in the daily, weekly and provincial press as well as the journals most closely associated with the farming industry. Perhaps most significantly the Minister communicated in relation to the regulations directly with the co-operatives and creameries who effectively operate the Milk Quota Scheme. The Appellants do not dispute the range of this publicity but in certain respects (to which

16. From the evidence given in the High Court it appears that the Department of Agriculture in Northern Ireland did conduct a review of those farmers who had applied for a quota pursuant to the Mulder One Regulations and had been refused for reasons which were no longer applicable on the adoption of the Mulder Two Regulations and that the Department circularised all of those affected. It appears however, that the Northern Ireland Authorities were alone in adopting this helpful course. In all of the other Member States the Competent Authority limited itself to some form of press campaign publicising the making of the regulations.

17. In my view there is nothing in any of the Milk Quota Regulations which imposes upon the Competent Authority the duty to give publicity to the making of any regulations by the Council. It may be desirable that this should be done and it may be that the Minister is correct in believing that by virtue of the practice he adopted he has assumed an obligation to continue to publicise regulations in the manner which he has heretofore done. Certainly, there is no basis for an obligation to notify individual citizens however obvious their interests or however desirable that course might appear. Indeed, a decision to give notice individually to persons affected by Regulations would create not merely a precedent but perhaps an expectation which the Competent Authority could not ignore in other and less meritorious cases. Furthermore, the giving of notice individually would appear to be inconsistent with the nature of legislation which, unlike judicial decisions, is general rather than specific in its application.

18. The argument that the Minister was bound to adopt ‘fair procedures” in giving notice of the Mulder Two Regulations was based on the decisions of this Court in Haughey v. Mr Justice Moriarty [eIWLR_1056] and Bailey v. Mr Justice Flood [eIWLR_1055] (both delivered on the 28th July 1998) and the -decision of the former Supreme Court in the Earl of Mount Charles v. Sweeney [1935] IR 163. All three of these cases concerned the adjudication on or the investigation of particular issues concerning specified persons. In those cases the Court had to consider the requirement to give notice to particular persons and the adequacy of that notice to enable the person to whom it was addressed to defend his legal and constitutional rights. There is no justification in principle and no precedent in law for applying a comparable procedure to the promulgation of legislation. If the European Regulations had imposed upon the Minister an obligation which involved the making of a statutory instrument to give effect to those regulations or any procedure to be implemented thereunder the appropriate method of publishing the statutory instrument is dictated by the provisions of s.3 of the Statutory Instruments Act, 1947 as amended by the Statutory Instruments (Amendment) Act, 1955. That legislation requires that a copy of the instrument should be sent to a limited number of libraries and certain specified chambers of commerce. In addition, the subsection requires that notice of the making of the statutory instrument must be published in Iris Oifigiúil . As it was not incumbent upon the Minister to make any statutory instrument even that modest standard of publication was not required of him by positive legislation. The extent of his responsibility, if any, derived from the legitimate expectation which he conceives he created by the procedures which he adopted in relation to the earlier regulations.

19. If it is implied that the Minister owed a particular responsibility to the Appellants and other farmers because the reasons for refusing their applications were ultimately rejected by the European Court of Justice, this is incorrect. The Minister’s decision insofar as it related to

20. Accordingly, the farmers concerned in the present case would have had no redress unless and until remedial legislation was adopted. As that legislation is the source of the Appellants rights, the antecedent conduct of the parties is irrelevant to any analysis of those rights.

21. In my view the learned Trial Judge correctly concluded that there was no obligation on the Minister to give notice to the individual Appellants or any other parties whose claims for a quota under the Mulder One Regulations had been rejected. I would dismiss the Appellants appeal.

22. There remains the cross-appeal by the Respondents against so much of the judgment of the learned Trial Judge as found that the notice published by him in the national press on or about the 27th August 1991 and subsequent dates was misleading and in fact misled the seventhly named Plaintiff, Sean Purcell, thereby entitling him to pursue a claim to damages.

23. It seems to me that the appropriate course is to set out in full the offending advertisement which was expressed in the following terms:-

24. It was the evidence of Mr Seán Purcell that his father Thomas Purcell, from whom he had inherited the lands in question in November 1986, had drawn that advertisement to his attention. Mr Sean Purcell said that this occurred shortly after he had a car accident. He gave evidence that he, Sean Purcell, read through the advertisement fairly quickly and told his

25. Whilst the adequacy of the notice cannot be determined by the interpretation thereof by any particular farmer I confess that I am surprised by the reaction of Mr Purcell and his father. They were both interested in dairy farming; they had applied for a Mulder One Quota. Mr Sean Purcell being a younger man would have been more enthusiastic about dairy farming than his father and they would both have been exposed to a whole series of advertisements from the Department of Agriculture dealing with a variety of aspects of milk quotas over a period of years and presumably most of the newspapers and much of the local conversation would turn on the availability of quotas and the dangers of exceeding them. Having regard to his application under the Mulder One Regulations and the specific grounds on which it was rejected by the Minister - and reaffirmed by those who made representations on his behalf -the significance of the dates set out in the advertisement for the expiration of the Non-Marketing or Conversions Schemes should have been immediately apparent to Mr Sean Purcell. In that I am mistaken but I can only attribute his error in the reading of the advertisement to the effects of the accident to which he referred and the haste with which he read the advertisement. It is not suggested and could not be suggested that the advertisement

26. In this I find myself in disagreement with the learned trial Judge. The advertisement was clear and it was accurate. Undoubtedly more could have been done to underscore the benefits available under the Mulder Two Regulations and to identify the categories of persons who might benefit thereunder but I can find no legal obligation to provide such emphasis or, if any such obligation existed, any means of determining or limiting its extent.

27. In my view, the advertisement published by the Respondent Minister in the national, local and technical papers particularly taken in conjunction with his communications with the creameries and co-operatives fully discharged any obligation which he had assumed; there was no inaccuracy therein and on a fair reading the persons to whom it was addressed should not have been misled.

28. In the circumstances I would allow the cross-appeal and discharge so much of the order of the learned Trial Judge insofar as he held that the advertisement of the Mulder Two Regulations was misleading or gave to the seventhly named Defendant a right to damages.