Supreme Court of Ireland Decisions

Judgment Title: Albatros Feeds -v- Minister for Agriculture and Food & ors

Neutral Citation: [2006] IESC 52

Supreme Court Record Number: 110/05

High Court Record Number: 2005 No. 63JR

Date of Delivery: 26 July 2006

Court: Supreme Court

35

THE SUPREME COURT
Judicial Review
No. 2005/63JR

Hardiman J.
Fennelly J.
Kearns J.


BETWEEN

THE MINISTER FOR AGRICULTURE AND FOOD,
IRELAND AND THE ATTORNEY GENERAL
Respondents
and
ALBATROS FEEDS LIMITED
Appellants

JUDGMENT of Mr. Justice Fennelly delivered the 26th day of July, 2006
This is an appeal from the decision of Kelly J sitting in the Commercial Court of the High Court. In a judgment delivered on 7th March 2005, the learned High Court judge determined agreed issues in proceedings seeking the judicial review of a number of decisions of the Minister for Agriculture (hereinafter “the Minister”). The decisions consisted of instructions providing for the recall from the market and “Seizure and Detention Notices” in respect of a consignment of corn gluten imported by the Applicant/Respondent (hereinafter “Albatros”) as animal feed from the United States.
Kelly J accepted that the Minister had no power to issue the instructions or the notices. Orders of certiorari were made. The Minister now appeals the decision of Kelly J.

The facts
Albatros is engaged in the import and distribution of animal feedstuffs. This importation is conducted pursuant to a license issued by the Minister pursuant to the European Communities (Processed Animal Protein) Regulations, 2000 (S.I. 486 of 2000). That instrument and its interpretation is what this case is all about. I will call it “the 2000 Regulation.” The feedstuffs are imported for onward sale to customers of Albatros who use the products for blending into finished products for feeding to animals.
On 6th November, 2004, the m.v. ‘Pakrac’, carrying a cargo of various products imported from the United States, for delivery to Albatros, arrived at Foynes, County Limerick. The cargo included CPI gluten, the product relevant to these proceedings. Nothing turns on the description of the product and I will simply call it gluten.
A portion of the cargo, including 1845.7 tonnes of the gluten, was discharged between the 6th and 9th November, 2004 at Foynes and portion, being 4,557.56 tonnes, was discharged between 10th and 12th November, 2004 at Ringaskiddy, County Cork. Such consignments are subject under European rules to sampling and testing by officials of the Minister. The objective of the testing is principally related to the prevention of the spread of bovine spongiform encephalitis (BSE).
On 18th November, 2004, Albatros was informed by the general manager of the store-keeping company in Ringaskiddy that he in turn had been informed by agents of the Minister that certain of the cargo which had been unloaded there contained bone “spicules” and that accordingly the material in possession of the store keeper was to be impounded. Subsequently a representative of the Minister confirmed by telephone that a sample from the Ringaskiddy consignment contained a number of bone spicules and that on that basis the Foynes consignment was also to be impounded.
On 18th November, 2004, the Minister issued an instruction in writing to Albatros concerning the Ringaskiddy consignment. On 25th November, 2004, she issued an instruction (identical in all material respects, save for one detail mentioned below) in respect of the Foynes consignment. Each of the instructions took the form of a letter addressed to Mr David Hickey, the Managing Director of Albatros and was headed: Re: European Communities (Processed Animal Protein) Regulations, 2000 (S.I. 486 of 2000). That is what I call the 2000 Regulation.
The instruction in relation to the Ringaskiddy consignment read as follows:

“A consignment of CPI maize gluten feed imported on the m.v. Pakrac into Ringaskiddy on 12th November, has been sampled by an authorised officer at Moyglare Holdings Limited, Ringaskiddy, Co. Cork. A copy of this sampling report form has been forwarded to you together with notification that a duplicate sample has been left at the premises where the sample was taken.

The sample was found on analysis to contain processed animal protein, which is regarded as a serious breach of the above regulations. I attach a copy of the analysis certificate.

Therefore, in accordance with the powers vested in the Minister you are instructed to:-…
[part of text not relevant]
2. Within 24 hours of this notification, issue a written instruction to all affected customers informing them that:
(a) The product must not be sold or used as a feeding stuff or feed ingredient, since it has been found to be in breach of the above regulations, and
(b) In the case of customers who are retailers, (i) that they initiate a recall of all contaminated materials sold, and (ii) compile a list of the names and addresses of these customers along with the quantity and dates of delivery.
3. Arrange for the immediate recall of all unused product from customer premises to Moyglare Holdings Limited, Ringaskiddy, Co. Cork, under your responsibility and at your expense.”
The instruction dated 25th November 2004, in respect of the Foynes consignment referred back to what had happened in the case of the Ringaskiddy consignment, and stated:

“As you are aware, this sample [the sample taken from the Ringaskiddy consignment] was found to contain bone of terrestrial animal origin, which is regarded as a breach of the above Regulations.
As noted above, what the letter of 18th November 2004, regarding the Ringaskiddy consignment had actually said was that the “sample was found on analysis to contain processed animal protein, which is regarded as a serious breach of the above regulations.” The letter of 25th November went on to deal specifically with the Foynes consignment. It stated:

“A quantity of the same product from the same hold on the shipping vessel was previously discharged in Foynes on 9th November. This material has also been found on analysis to contain bone of terrestrial animal origin.”
Between 18th and 23rd November 2004, a number of notices, each bearing the heading: “Seizure and Detention Notice,” was served on Albatros on behalf of the Minister. These were on printed forms, details being completed in manuscript in blank spaces. The printed part refers to “The consignment(s) of feed additive, premixture or feedingstuffs designated:” This is followed by a reference in manuscript to “US Corn Gluten Feed Pellets High Color CPI,” or a similar description. One notice refers to “distillers dried grains,” but I do not think that has any relevance. Some of these notices referred to the consignment being held at Ringaskiddy and some that at Foynes. The standard wording of the printed Seizure and Detention Notice was:

“I, the undersigned, being an authorised officer for the purpose of the regulations listed on the attached schedule, am satisfied that the consignments of feeding stuff designated ………[details completed in manuscript] ……does not comply with the requirements of the regulations marked with an ‘X’ on the attached schedule.

I hereby give you notice that I am seizing the above mentioned consignment(s) and requiring that it be detained at the above mentioned premises. You are hereby directed to take such steps as are necessary to ensure that this consignment or any part thereof does not continue to be put into circulation/is not put into circulation, and that the consignment or any part thereof is not moved from the above premises other than in accordance with my written permission.

This notice is served on you as the person who appears to be in control of the consignments concerned."
Each notice was signed by Maurice Winder as “ Authorised Officer.” Each bore a date from 18th to 23rd November 2004.
Attached, by way of explanation of the expression, “the regulations marked with an ‘X,’” was a schedule of Regulations, headed: “Regulation(s) contravened.” There was a box in which a tick could be placed to indicate the applicable regulation. The regulation marked in every case was the 2000 Regulation.
One of the principal complaints of Albatros is that the 2000 Regulation applied only to processed animal protein whereas no processed animal protein was found as a result of any of the inspections. The instruction dated 18th November, 2004, concerning the Ringaskiddy consignment alleges that a sample of the material was found on analysis to contain “processed animal protein.” A copy of the analysis certificate was enclosed with that instruction. In fact, what was discovered was the presence of a small number of terrestrial animal bone spicules. As I have already observed, the instruction of 25th November, referring to what had been found on analysis of the Ringaskiddy sample, does not repeat that assertion, but says that what was found was: “bone of terrestrial animal origin…”
In the ensuing days, there was intensive communication between Albatros and officers of the Minister concerning the correctness of the analysis upon which the Minister relied. According to Albatros, the Minister’s officers insisted on multiple repeat testing and retested samples even when a first test proved negative. Further, Albatros had to bear the costs of the testing. The outcome of these exchanges and the various analyses can fairly be summarised as being that an extremely small presence of terrestrial animal bone spicules was detected in some, but by no means all of the samples. As I have said, one of Albatros’ contentions is that the presence of such material does not justify a conclusion that animal protein was present. As will appear later, the Minister’s contention is that the presence of bone spicules means that the presence of processed animal protein cannot be ruled out and that the various notices were justified on that basis.

Correspondence
On 26th November, 2004, Ms. Maree Gallagher, solicitor for the Albatros, wrote to the Deputy Chief Inspector of the Minister’s department. In that lengthy letter, the central point of complaint was that the Minister had produced no evidence that the bone spicules allegedly found consisted of processed animal protein, that the Minister had adopted an extreme and inappropriate interpretation of the 2000 Regulation and that the unlimited product recall, which she had imposed was unwarranted, costly and unnecessary. The essential contention of that letter was that the lack of evidence that processed animal protein was present in the corn gluten undermined any justification for the Minister’s action. The letter did not raise the more fundamental point that the Minister did not have the power under the 2000 Regulation to take those actions in any event.
The response came by way of a letter dated 21st December 2004 from the head of the Minister’s legal services division. That letter emphasised, firstly that:

“Controls on the distribution and use of feed materials and compound feeding stuffs, including sampling and testing for the presence of processed animal proteins, are critical to the success of the nation’s effort to contain and eliminate diseases such as BSE from the national herd and as a direct consequence reduce any potential risk to public health.”
That letter, therefore, contended:

"It follows, therefore that when the Department is informed by the designated testing laboratory that evidence of either terrestrial or fish bone has been identified as being present in a sample feed, taken in accordance with the national legislation, imported into this country it is incumbent on the Department to proceed in accordance with both the obligations placed on it by E.U. and national legislation and its stated policy and practice in such an eventuality."
The letter went on to raise the relevance of a European Regulation, which has also been a central part of the Minister’s case on appeal. It said:

"The analytical method applied by the Department is contained in Commission Directive 2003/126/EC which sets out:-

‘The analytical method for the determination of constituents of animal origin for the official control of feeding stuffs’
And
‘Is currently the only method validated to control the presence of animal proteins including these proteins treated at 1330C/ 3bar/20 in feeding stuffs.’"
The letter went on to justify the actions which had been taken in the following terms:

“All subsequent actions taken by this Department, following the notification of the existence of bone spicules are carried out in accordance with the procedures set out in the Department’s contingency plan for animal feed and the standard operating procedure for the sampling analysis and follow up of positive results for processed animal proteins in animal feeding stuffs as regulated with the industry.

These procedures provide for, inter alia, product impoundment, product recall and product destruction. The Department is conscious that success in the first two elements of these procedures is critical in minimising the level of potential risk to the food chain should any product containing prohibited material enter it.
The timely impoundment and comprehensive recall, particularly from farms where such products may have found its way for use in animals feed would, in general, lead the Department in conjunction with the F.S.A.I. to judge the risk to the food chain as being negligible.”
These latter paragraphs assume, but do not demonstrate, that the Minister had power to issue the instructions and the seizure and detention notices. This correspondence is recounted more fully in the judgment of Kelly J.
There were, in addition, meetings between representatives of the parties. Albatros endeavoured to persuade the Minister to send representatives to attend at the manufacturing plant in the United States from which the corn gluten came so that it could be shown conclusively that it was impossible for processed animal protein to get into the feedingstuffs. Albatros contended that, if any bone spicules were present in the consignments, they were not derived from processed animal protein but instead represented adventitious contamination which had no health or safety implications. Albatros engaged as its own expert, Dr Lynn Bates of the Department of Foods and Nutrition at Kansas State University who reported, following forensic analysis:

“No traces of any animal particles were found. I concluded from the above observations that no rendered particles from any mammals were present in this corn gluten feed sample. No evidence of any animal products was found”.
However, having regard to the legal issues at stake, it is not possible to pronounce definitively on the scientific aspects of the dispute. The Court is necessarily confined to consideration of the legal issues.


Damage and loss
Albatros claims to have suffered very substantial losses as a result of the issuing of the instructions and notices. It says that additional notices were issued on behalf of the Minister to its customers and that it incurred substantial additional storage costs. More substantially, the product itself was liable to deteriorate. Albatros assessed its losses provisionally in the sum of €2,300,000. It has given notice of its intention to seek recovery of its losses from the Minister. No issue concerning the Minister’s liability for damages arises on this appeal. It is, nonetheless, obvious that the issue of the instructions and notices was capable of causing very serious loss, even to the extent of the entire loss of a perishable or deteriorating product. One of the principal grounds for the decision of Kelly J to take the case into the commercial list was that, as had been urged on behalf of Albatros, the CPI gluten was in danger of deteriorating. At this point, the Court is informed that it has become unfit for use.

The proceedings
By order dated 24th January 2005, Macken J gave leave to apply for judicial review by way of certiorari of the instructions dated respectively 18th and 25th November 2004 and of the Seizure and Detention Notices, together with a number of declarations. On 28th January 2005 Kelly J made an order admitting the case into the commercial list under the provisions of order 63(A) rule 1(g) of the Rules of the Superior Courts, having regard inter alia to Albatros’s estimate of the costs of the recall to it at approximately €2,300,000.00 and the fact that if the product was to be of merchantable quality as it had a limited life span. He gave directions for an accelerated exchange of pleadings and an early trial. The case was heard by him on 16th and 17th February, 2005.
The parties agreed that Kelly J should determine certain issues. They are as follows, together with the answers given by KellyJ.

ISSUE 1.1
Were the Instructions lawfully authorised by the provisions of the Regulations, properly construed?

Answer: No (unless they could be justified under Article 9. They were not).

ISSUE 1.2
Having regard to the fact that, on their face, the Instructions purport to be issued pursuant to the Regulations and that no other statutory authority is referred to in them, are the respondents entitled to contend that the Instructions were properly issued by reference to other statutory provisions?

Answer: No

ISSUE 1.3
Subject to the resolution of 1.2 above, were the instructions lawfully authorised by;
The European Communities (Animal Nutrition Inspections) Regulations, 2000 (S.I. 4 of 2000) and/or,
The European Communities (Animal Nutrition Inspections) Regulations, 2003 (S.I. 238 of 2003).

Answer: No

ISSUE 1.4
Subject again to the resolution of issue 1.2 above, if, on their proper construction, none of the statutory instruments referred to in paras. 1.1 and 1.3 confer on the respondents a specific power to detain and dispose of the applicant’s product, was the Minister nonetheless entitled to issue the instructions of foot of any or all of the following:-
Commission Regulation 1234/2003,
Commission Directive 126/2003,
Council and Parliament Regulations 999/2001 and 1774/2002, and/or,
The decision of the European Court of Justice in case 286/02 Bellio v. Prefettura de Treviso?

Answer: Not necessary to answer this but in any event ‘No’.

There was a second set of questions on which Kelly J found it unnecessary to pronounce and in respect of which there is no appeal.

Issues on appeal
I believe that the issues, as they now appear before the Court can be reduced to two simple headings.

1. The first very obvious issue is whether the 2000 Regulation, the only legal authority cited in any of those documents, authorised the issuing of the instructions and notices. This is independent of the question of whether the Minister had the evidence required to justify those actions. It is true that Albatros did not make this point in its initial correspondence, but the order granting leave to apply for judicial review clearly raised it. It is also convenient to decide, under this heading, the linked question of whether the Minister is entitled to rely on other powers, not cited in the instructions or notices;
2. The second issue concerns the evidence. Assuming that the Minister had power to issue the various instructions and notices and assuming also that she only had the evidence of the presence of bone spicules, was she authorised to issue those notices and instructions?

This combination presents a dilemma. The Court has been informed that the applicable Regulations have been amended to cure any defect in the Minister’s powers to issue the instructions and notices. Thus, the Minister’s interest in the proceedings is limited to defending the action taken in this case and to resisting any claim for damages and, of course, costs. But the first question has no longer term significance for the exercise of the Minister’s powers. On the other hand, the Minister says that the second issue has potential future relevance. It may be important in other cases to know whether the presence of bone spicules, without direct evidence of processed animal proteins, will justify the sort of actions taken. Nonetheless, it seems to me that it is necessary to address the second question only if a positive answer is given to the first. If the Minister had no power, under the 2000 Regulation, to issue recall instructions or search and seizure notices, it does not matter whether the product was allegedly contaminated with processed animal protein or merely with other irrelevant and harmless foreign matter. If she had not the power, she could not do it.
The Minister has, in her written submissions on the appeal, provided a highly detailed and necessarily complex explanation of a number of interlocking and interconnected instruments of European Community law relating to the testing of animal feedstuffs and their ingredients. While it would be normal to commence an analysis of the appeal with the appellant’s arguments, I am satisfied that such an approach would tend rather to confuse than to clarify the rather stark question which faces the court. I propose, therefore, to examine, firstly, the nature of the powers actually exercised by the Minister and then to look at the 2000 Regulation.
Albatros is a company lawfully carrying on a business of importation and distribution of foodstuffs. It must naturally submit to the requirements of the law regarding the examination and control of the products it handles. As a licensed trader, it will be expected to familiarise itself with any applicable regulations and to cooperate with the responsible administrative authorities. It is an obvious corollary that the trader is entitled to know what powers those authorities may exercise.
By issuing the instructions dated 18th and 25th November 2004, the Minister required Albatros to:

· Issue a written instruction to every customer, to whom they had sold the product, stating that it must not be sold or used as a feeding stuff or feed ingredient;
· In the case of retailer customers, issue a written instruction requiring that they initiate a recall of all contaminated materials sold and that they compile a list of the names and addresses of these customers along with the quantity and dates of delivery;
· Arrange for the immediate recall of all unused product from customer premises.

By each of the “Seizure and Detention Notices,” the officer of the Minister proclaimed that he was “seizing” the product described. Furthermore, each notice required Albatros to detain the product and to ensure that it was not put into circulation or continued in circulation.
These are drastic steps. They deprive the trader of possession of his property. They destroy the trader’s right to sell the subject product. If it is a perishable product, they are liable to have the effect of destroying the product itself. They rupture the trader’s relations with his customers. They require him, without explanation as to the legal basis for that action, to issue peremptory instructions to his customers.
To state that the exercise of such powers by the Minister would require to be justified by clear legal authority is obvious to the point of being beyond argument. Moreover, a trader, in receipt of such notices emanating from and bearing the purported authority of a government Minister, is likely and probably entitled to assume that they have been lawfully issued. Where the rule of law governs relations between government and citizens, an individual person or company will reasonably expect that decisions purporting to be made under governmental authority will be clothed with the necessary legislative powers.
In the present instance, each one of the documents at issue proclaims as its legal authority: the European Communities (Processed Animal Protein) Regulations, 2000 (S.I. 486 of 2000). Since that constitutes the purported legal authority for what I have described as the drastic actions of the Minister, it must be scrutinised to see whether it purports to confer on the Minister power to order the recall, removal from circulation, seizure or detention of products mentioned in the 2000 Regulation.
The 2000 Regulation was made pursuant to s. 3 of the European Communities Act, 1972, for the purposes of giving effect to Council Decision 200/766/E.C of 4th December, 2000 and the subsequent Commission decision providing for the implementing control measures. It came into operation on 1st January, 2001.
Since the subject-matter of the Regulation, as indicated in its title, is principally concerned with processed animal proteins, it defines that term as meaning:-

“Meat and bone meal, meat meal, bone meal, blood meal, dried plasma and other blood products, hydrolised proteins, hoof meal, horn meal, poultry offal meal, feather meal, dry greaves, fish meal, dicalcium phosphate obtained from defatted bones, gelatine, and any other similar products including mixtures, feeding stuffs, feed additives and pre-mixtures, containing these products.”

Article 3 lays down a general prohibition against processed animal proteins being fed to farmed animals.
Article 4 makes it an offence to alter fraudulently or use various documents issued or granted under the 2000 Regulation.
Article 5 prohibits, subject to exceptions which are not relevant, both the import and export of processed animal proteins both from and to Member States of the European Union and from and to third countries. Article 5(4) prohibits the import of processed animal proteins from a third country unless done pursuant to a licence issued by the Minister.
Article 6 prohibits a person from being in possession of or having control of processed animal proteins on any land or premises which is used for or in connection with the manufacture of feed stuff or used for or in connection with the holding, handling, keeping or farming of ruminant animals. It also prohibits the incorporation of processed animal proteins into any feeding stuffs intended for feeding to animals other than ruminants except in accordance with a licence granted by the Minister.
Article 7 provides for the licences which may be issued by the Minister from time to time.
Article 8 provides for the appointment by the Minister of authorised officers for the purpose of the regulations. Article 9 provides that the provisions of the European Communities (Animal Nutrition Inspections) Regulations, 2000 (S.I. No. 4 of 2000) shall apply to inspections undertaken by an authorised officer for the purposes of the regulations.
Article 10 creates a number of offences. Many are of a purely regulatory nature and not relevant. The offence that is most potentially relevant, is that which provides:

"(1) Any person who -
(a) contravenes Regulation 3, [prohibition against feeding to animals] 4, [ Fraud regarding documents] 5, [import or export of processed animal proteins]or 6 [ possession or use of processed animal proteins] of these Regulations,
[(b) and (c) are nor relevant]
shall be guilty of an offence."

Article 10(7) provides:

"A person guilty of an offence under this Regulation shall be liable on summary conviction to a fine not exceeding £1,500, or imprisonment for a term not exceeding 6 months or to both such fine and imprisonment."

In essence, the Regulation creates prohibitions on the feeding, import, export or possession of “processed animal proteins”, save in circumstances where such activities are carried out with a licence issued by the Minister. The Regulation then creates a series of offences in respect of their contravention and prescribes penalties upon conviction.
The 2000 Regulation does not purport to confer any power on the Minister in respect of feedingstuffs believed to be contaminated with processed animal proteins, other than a power to “grant a licence to import, export, put into circulation, manufacture feedingstuffs containing processed animal proteins, or feed to farmed animals feedingstuffs containing processed animal proteins.” Indeed, the 2000 Regulation contains no mention of contamination.
It is clear beyond argument that the Minister had no power, pursuant to the 2000 Regulation, to issue the instructions of 18th and 25th November 2004 or any to the “Search and Detention Notices.” The Minister has invited the Court, nonetheless, to interpret the 2000 Regulation as conferring the powers in question, interpreted in the context of a number of European instruments, which I will discuss later.
Could the Minister, nonetheless, justify these actions by reference to other powers and, consequently, by reference to powers of which no notice was given to Albatros? Kelly J pointed out in his judgment that there have been cases where it has been held that the legal authority for an official act should be stated on the face of the relevant instrument. He cited Kajli v. Minister for Justice, Unreported 21st August, 1992; D.P.P. v. Dunne [1994] 2 I.R. 537; State (Holmes) v. Furlong [1967] I.R. 210 and Movie News Limited v. Galway County Council, High Court, 30th March, 1973. These cases are all cited in Hogan and Morgan, Administrative Law in Ireland (3rd Ed. Page 434) as examples of cases where orders affecting fundamental rights had been set aside for failure to show jurisdiction on their face.
However, as Kelly J pointed out, this is not a case of failure to show jurisdiction. All the relevant instruments cite the 2000 Regulation expressly and exclusively as the legality authority upon which they rest. The State here purports to justify drastic intrusion into individual property rights and cites legal authority for doing so. The cited legal authority does not authorise those actions. In these circumstances, I agree with the reasons given by Kelly J for rejecting this part of the Minister’s case. He asked himself whether it was “open to the Minister to seek to sustain the Instructions on a basis other than the Regulations.” He answered:

“In my view it is not. Actions of the type in suit affect property rights. They also create the possibility of a criminal liability if disobeyed. They must be soundly based in law and when documents are served giving effect to them they must show the jurisdiction which is being relied upon. Having done so it is not in general open to the decision maker to rely upon a different jurisdictional basis for the action taken. If that were to be permitted there could be little legal certainty in respect of the exercise of any such powers.
In the present case it appears to me to be particularly appropriate not to permit the Minister to rely upon powers other than those in the Regulations cited by her. That is so not merely because of the commercial and possible criminal consequences for Albatros but also because no form of appeal is allowed internally or externally from the Instructions. Judicial review is the only remedy available to an aggrieved party. No compensation is available to Albatros in respect of the Instructions. It would in my view be wrong for the court to permit the Minister to change her stance as to the legal basis for the Instructions now.”
I agree fully with that statement. Indeed, I think it is fair to say that it was not seriously contested on appeal. The circumstances of the present case lead inexorably to the conclusion that the Minister should be held to the legal authority for the action taken.
The Minister, in her appeal, has presented an elaborate and complex argument requiring that the 2000 Regulation be read with a number of decisions and legislative acts of the European Community.
In deference to the careful and detailed submissions made by Mr Eoin McCullough, Senior Counsel, on behalf of the Minister, I propose to consider these submissions. I must say, however, that, unless the Minister can point to a clearly expressed power to issue instructions to a trader to recall products from the market or for the Minister herself to seize and detain them, these arguments are doomed to fail.
The submissions of the Minister may be summarised as follows.
The 2000 Regulation was introduced to give effect to Council Decision 2000/766/EC. Article 3(1) of that Decision provided that, with certain exceptions, the Member States were to prohibit the placing on the market, the trade in, the importation from third countries and the exportation to third countries of processed animal proteins intended for the feeding of farmed animals which are kept, fattened or bred for the production of food, and are to ensure that such proteins are withdrawn from the market, distribution channels and from on-farm storage. The purpose of that decision was to combat the spread of BSE through animal feed containing contaminated bone and meal. That Council decision was replaced by Commission Regulation (EC) No 1234/2003 of 10 July 2003, which amended various annexes to Regulation (EC) No 999/2001 of the European Parliament and the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies. Commission Regulation 1234/2003 also repealed Council Decision 2000/766/EC and provided (see Article 3) that references to the repealed Decision were to be construed as references to that Regulation.
The result of these changes was that the prohibition against the feeding of processed animal proteins to ruminants was that set out in Article 7 and Annex IV of Regulation No 999/2001, which provides:

“Prohibitions concerning animal feeding
1. The feeding to ruminants of protein derived from mammals is prohibited.
2. Furthermore, the prohibition referred to in paragraph 1 shall be extended to animals and products of animal origin in accordance with point 1 of Annex IV.”
Annex IV (as amended by Commission Regulation 1234/2003) provides:

"ANIMAL FEEDING
Extension of the prohibition provided for in Article 7(1)

1. The prohibition provided for in Article 7(1) shall be extended to the feeding:

(a) to farmed animals, with the exception of the feeding of carnivorous fur producing animals, of:


(a) processed animal protein;

[(b) to (f) not relevant]

(b) to ruminants of animal protein and feedingstuffs containing such protein."

It also provides (in amended form):

“E. The competent authority shall carry out documentary and physical checks including tests on feedingstuffs throughout the production and distribution chain in accordance with Council Directive 95/53/EC(2), to control compliance with its provisions and the provisions of this Regulation. Where any presence of prohibited animal protein is detected, Council Directive 95/53/EC shall apply.”

According to the Minister’s submissions, this latter provision deals with with enforcement.

It was also pointed out that each Regulation is “binding in its entirety and directly applicable in all Member States.” (Article 249 of the EC Treaty).

The Minister’s submissions turned then to Council Directive 95/53/EC of 25 October 1995 fixing the principles governing the organization of official inspections in the field of animal nutrition, which is mentioned in the last citation from Regulation 1234/2003. Article 1 of Directive 95/53, as its name implies, “sets out the principles governing the organization of official inspections in the field of animal nutrition.” It requires Member States to carry out regular checks and detailed inspections of affected products and that, inter alia, they be carried out regularly and without prior notice. The Minister draws attention to Article 8, which provides:

“Where the checks show that products do not meet the requirements of the rules, the Member State shall prohibit their entry or marketing and order their redispatch out of Community territory; it shall immediately inform the Commission and the other Member States that it has rejected the products, indicating the infringements found.”
Insofar as this provision may be considered relevant, it is right to recall the obvious fact that directives, unlike regulations, do not have automatic direct effect. They depend for their effect on national implementing legislation. While there is a well-established line of case-law permitting direct effect to be allowed for directives as against a Member State or its emanations, the converse does not and cannot apply. The Minister cannot rely on the direct effect of Article 8. According to the Minister’s submissions, the final element of the applicable regime is Commission Diective 2003/126/EC, which precribes the analytical method to be used in order to detect the presence of processed animal proteins in feedingstuffs. Article 1 of that directive provides:
“Member States shall provide that where official analysis of feedingstuffs is carried out with a view to officially controlling the presence, identification and/or estimation of the amount of constituents of animal origin in feedingstuffs, in the framework of the coordinated inspection programme in the field of animal nutrition in accordance with Council Directive 95/53/EC(3), it shall be carried out in accordance with the provisions of the Annex to this Directive.”
The Minister established the vital and necessary link between these provisions and those of the 2000 Regulation as follows. Article 9 of that Regulation provides that:
“The provisions of the European Communities (Animal Nutrition Inspections) Regulations, 2000 (S.I. 4 of 2000) shall apply to inspections undertaken by an authorised officer for the purposes of these Regulations.”
S.I. 4 of 2000 was repealed and replaced by the European Communities (Animal Nutrition Inspections) Regulations, 2003 (S.I. 238 of 2003). Both the 2000 Regulation and S.I. 238 were enacted to give effect to Council Directive 95/53/EC, which lays down the inspections regime. Kelly J accepted that the Minister was correct in arguing that “pursuant to the provisions s. 20(2) of the Interpretation Act, 1937, the reference in Article 9 of the Regulations to the provisions of the 2000 Regulations must now be read as a reference to the 2003 Regulations.” The Minister submits that Article 9 of the 2000 Regulation must thus be read as referring to S.I. 238 of 2003, and by extension of reasoning, to Directive 95/53, which it implements. Articles 7 and 8 of the last-mentioned directive provide, in relevant part:
“Article 7

Member States shall ensure the conformity of products by means of random physical checks before they are marketed.

Article 8

1. Where the checks show that products do not meet the requirements of the rules, the Member State shall prohibit their entry or marketing and order their redispatch out of Community territory; it shall immediately inform the Commission and the other Member States that it has rejected the products, indicating the infringements found……”

S.I. 238 of 2003 contains the implementing provisions on which the Minister relies. Article 7 provides, in relevant part:

“……where a product to which Regulation 6 applies does not comply with a provision listed in the definition of inspections, the Minister shall —

(a) prohibit its entry into or marketing in the State, or

(b) order its re-dispatch out of the Community territory, and immediately inform the Commission and other Member States that he has rejected the product and indicate the infringements found.”

The Minister relies on this provision to justify the instructions and the seizure and detention notices. She says that the letters of 18th and 25th November 2004 exercised the power conferred by Article 8 of Directive 95/53. I will assume for the moment that the words used in S.I. 238 (prohibit entry and order re-dispatch) are capable of including those acts.

First, however, I must digress to mention a highly technical issue concerning a discrepancy between the definition of inspections contained in the directive and in the S.I. 238 of 2003, which purports to implement it. The power conferred by Article 7 of S.I. 238 is dependant on the Minister having established non-compliance with “a provision listed in the definition of inspections…” The definition of inspections contained in S.I. 238 of 2003 incompletely reproduced the definition contained in the directive. Inspection is defined to “mean an inspection by the competent authorities to check compliance with the Community provisions laid down in…” followed by a list of directives, but concluding:

“and - any other rules in the field of animal nutrition in which provision is made for official inspections to be carried out in accordance with the provisions of this Directive……”

It is common case that none of the provisions listed in that definition are applicable. Counsel for the Minister points out that Kelly J remarked on this point in his judgment. The learned judge held that the Minister could only carry out inspections by reference to S.I. 238 of 2003 to check compliance with the various Council Directives listed in the definition. Hence she could take the steps authorised by that Regulation only in the same circumstances. Furthermore, the concluding general expression, referring to “any other rules in the field of animal nutrition,” was not reproduced in S.I. 238. Kelly J held that the Minister could not, for these reasons, rely on S.I. 238 as authority for the action taken. The Minister’s response is based on the obligation to interpret national legal provisions in the light of and with the object of giving effect to the provisions of Community law which they purport to implement.

In order to justify her exercise of the powers said to have been conferred on her by Article 7 of S.I. 238, the Minister finally relies on Commission Directive 2003/126/EC. Article 1 of that Directive provides:

“Member States shall provide that where official analysis of feedingstuffs is carried out with a view to officially controlling the presence, identification and/or estimation of the amount of constituents of animal origin in feedingstuffs, in the framework of the coordinated inspection programme in the field of animal nutrition in accordance with Council Directive 95/53/EC(3), it shall be carried out in accordance with the provisions of the Annex to this Directive.”
In a submission designed to address Albatros’ complaint of the absence of evidence of processed animal protein as required before the 2000 Regulation could apply, Mr McCullough, Senior Counsel, drew attention to certain provisions in the Annex to that Directive. For example, dealing with the report on official analysis of feedingstuffs, paragraph 8 provides:
“The report shall at least contain information on the presence of constituents derived from terrestrial animals and from fishmeal.”
Paragraph 8.2 reads, in part:
“For the cases where bone constituents from terrestrial animals are identified, the report shall contain the additional clause:

"The possibility that the above constituents are derived from mammals cannot be excluded."

This additional clause is not necessary in cases where the bone fragments from terrestrial animals have been specified as bone fragments from poultry or mammals.”
The effect of this lengthy review of the regulations can be reduced to the following. The provisions of S.I. 238 of 2003 (replacing S.I. 4 of 2000) apply to any inspections carried out under the 2000 Regulation. The Minister is bound to carry out rigorous inspections on any imported animal feedingstuffs or product to be used in the manufacture of animal feedingstuffs. She is entitled to treat even bone spicules as if they constituted processed animal proteins. She was authorised by Article 7 of S.I. 238 of 2003 to issue the various instructions and notices.

The Minister submits that this result can be achieved, in spite of the absence from the 2000 Regulation of any express authority for her actions by reference to a number of decisions of the Court of Justice of of the European Communities.

The Minister relies, in particular, on the decision of the Court of Justice in Joined Cases C-397/01 to C-403/01, Pfeiffer and others v Deutches Rote Kreuz [2004] ECR I-8835. That was a reference for preliminary ruling concerning the interpretation of the working-time directive between employees and their employer in Germany. In that case, the Court restated in a notably extensive form its well-established jurisprudence regarding the obligation of the courts of the Member States to interpret national legal provisions and procedures so far as posible in the light of provisions, which they were designed to implement. In the following passage from the court’s judgment, I omit citations and underline the key points regarding the obligation of the national court:

"113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive ……

114. The requirement for national law to be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it …

115. Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive…….

116. In that context, if the application of interpretative methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the directive.

117. In such circumstances, the national court, when hearing cases which, like the present proceedings, fall within the scope of Directive 93/104 and derive from facts postdating expiry of the period for implementing the directive, must, when applying the provisions of national law specifically intended to implement the directive, interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the directive ……

In addition, the Minister relied on the specific decision of the Court of Justice in Case C-286/02 Bellio F.lli Srl v Prefettura di Treviso [2004] ECR I-3465. In that case, a consignment of fish flour, imported from Norway into Italy was found to contain fragments of unidentified animal bones, with the result that the consignments of fish flour supplied by the applicant were seized. It appears from the recital of facts that an administrative sanction had been imposed, pursuant to an Italian law, on the applicant, including an order for the confiscation and destruction of 36 sacks of the fish flour. The first question referred by the Italian court concerned whether the Community rules to be interpreted as “meaning that the accidental presence of an unforeseen or prohibited substance in fish flour used in the production of feedingstuffs for animals other than ruminants may be considered to be acceptable de jure or de facto and that, accordingly, traders are allowed a reasonable level of tolerance?” Other questions concerned the principle of proportionality and the precautionary principle. There was no question concerning the existence of a power to seize the product. Nonetheless, the Court of Justice, in ruling on the answer to the first question stated (paragraph 54 of the judgment):



"With regard to the destruction of the contaminated consignments, it should be noted that this is a measure provided for by Article 3(1) of Decision 2000/766. A contaminated consignment must be regarded as unfit for consumption and must if necessary be destroyed whilst taking all necessary precautions to avoid environmental contamination. It suffices in this connection to state that the risk of environmental contamination is one of the risks taken into account by the Scientific Steering Committee in the opinion of 27 and 28 November 2000 (see paragraph 3 thereof).”
I cannot avoid expressing surprise at that statement. Article 3(1) of Decision 2000/766 did not provide for the “destruction of the contaminated consignments.” As I stated above, it prohibited the placing on the market, the trade, the importation from third countries and the exportation to third countries of processed animal proteins. However, that Decision had, as already stated, been repealed prior to the events giving rise to the present proceedings. At paragraph 56 the Court ruled out any element of tolerance, stating:
“……the first indent of Article 2(2) of Decision 2000/766 and Article 1(1) of Decision 2001/9, together with the other Community rules on which those provisions are based, must be interpreted as meaning that the presence, even accidental, of unauthorised substances in fish flour used in the production of feedingstuffs intended for animals other than ruminants is not permitted and that they allow traders no level of tolerance. The destruction of consignments of contaminated flour is a preventive measure provided for by Article 3(1) of Decision 2000/766.”

I now consider whether, in the light of the Minister’s reliance on the various European Community directives and regulations and Irish implementing measures, the Minister was authorised to issue the instructions and the seizure and detention notices. I have already ruled that the 2000 Regulation, read on its own, contains no such power.

It is, at the same time, perfectly clear that the Court is under an obligation to interpret national law, so far as possible, in the light of the Community law provisions it is designed to implement. The important qualification is: so far as possible. The European Court does not interpret national law. It is a fundamental principle that the Community law respects national procedural autonomy. The national court is subject to the obligation of “conforming interpretation,” as the court described it in its judgment in Case C-105/03 Criminal proceedings against Maria Pupino (judgment delivered on 16th June 2005). There are, however, limits to that obligation. Most recently, the European Court in its judgment in Case C-212/04 Adeneler v ELOG, repeated that “the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem.

The national court is not obliged so to interpret its national law in a way which would which are incompatible with the relevant national legislation.

In the application of that principle to the facts of the present case, it is of the first importance to note that the powers claimed by the Minister entail a drastic incursion into the fundamental property rights of the affected trader. Such action must be justified, if at all, by clear words. There are no words in the 2000 Regulation, which are capable, on even the most extended and generous interpretation, of justifying the Minister’s actions.

The Minister claims, nonetheless, that a number of provisions of Community law expressly authorise, or even oblige, the authorities of the Member States to take direct action to prevent trade in contaminated products. It said that the provisions of S.I. 238 of 2003 (replacing S.I. 4 of 2000) apply to any inspections carried out under the 2000 Regulation and that Article 7 of S.I. 238 authorised the Minister to issue the various instructions and notices. I am prepared to accept these propositions for the purposes of the argument. However, the entire attempt to import these powers into the 2000 Regulation depends on Article 9 of the latter instrument, which provides only that, making the necessary substitution of S.I. 238 of 2003 for S.I. 4 of 2000, “shall apply to inspections undertaken by an authorised officer for the purposes of these Regulations.” I simply cannot accept that this reference to inspections can encompass the far-reaching powers expressed in the two letters of instructions or the several seizure and detention notices. It does too much violence to language to claim that they do.

I am fully conscious of the obligation of “conforming interpretation” ( a poor rendering of the French intérpretation conforme). I am equally conscious of the need for severe action to prevent the spread of BSE. Severe action may be indispensable and it may be necessary to infringe fundamental rights including property rights. However, clear words are necessary where fundamental rights are at issue. I do not accept that our courts are obliged to interpret our laws so as to confer drastic powers by vague or indirect words or, indeed by none. In the present case, such a result cannot be achieved by any normal process of legal reasoning.

For these reasons, I would uphold the decision of the High Court insofar as the answers to Questions 1.1, 1.2 and 1.3 are concerned. As indicated by Kelly J, it is not, therefore, necessary to answer Question 1.4. That is essentially whether the bone spicules would have justified the Minister’s actions, assuming she had the necessary powers. That is a more difficult question. Some of the regulatory material placed before the Court and the decision of the Court of Justice in the Bellio case suggests that seizure or other action could be justified by the mere presence of “bone constituents from terrestrial animals,” merely because the “possibility that [those] constituents are derived from mammals cannot be excluded." However, that issue raises questions of interpretation of Community law, which would certainly necessitate a reference for preliminary ruling pursuant to Article 234 of the EC Treaty. Such a reference is not justified unless the Court finds that an answer to the question is necessary to enable it give judgment on the appeal before it. Having regard to the conclusion I have reached on the first question (covering questions 1.1, 1.2 and 1.3 decided by the High Court), it is not necessary for this Court to have answers to Question 1.4.

Accordingly, I believe the Court should dismiss the appeal and affirm the decision of the High Court.