EU law

This is the appropriate editorial to replace that of the Irish Times of 2nd February 2013.

The blame for Ireland’s faulty beef burgers lies with the relevant Irish meat processors and, maybe, with someone in Poland. The testing of the burgers showed two pertinent facts; the animal source of the burger content and the proportion coming from each animal type. Of the tested burgers, most contained trace elements of horse and/or pig. One did not. That one burger, from Silvercrest Foods Ltd., revealed that Silvercrest’s meat constituent of the burger was one third horse meat. The other burgers, with traces of adulteration, were evidence of contamination, probably from the factory machinery. The machinery, in its turn, must have been contaminated by the very same source as the Silvercrest  burger; the meat the processors had put through the machines and into the burgers. The fact that there were traces only in those other burgers was not a relief; it simply showed the adulteration had passed through the factory and was, or had been, in an earlier burger production run.

Why did it take the Minister so long to discover Silvercrest’s meat sources led to, inter alia, Poland?

The fact that the public does not know the full facts relating to the adulteration of its food is the responsibility of the Minister for Agriculture and Food. It is unacceptable that the Minister persists in implying that unwittingly eating horse and pig meat is not a food safety issue. The public did not choose to eat horse or pig in the circumstances in which it ate those meats; the Minister is wrong to imply that the public does not know what is good for it, or that its loss of control over its food is not a big deal. Strictly, the Minister seems to think frozen burgers are fungible protein sources.

It is galling that Tesco is acting as the Minister should have acted; applying severe but appropriate sanctions to the guilty. Of what is Silvercrest guilty? It, reputedly, breached its contract with Tesco. It was limited under that contract to sourcing its meat from Irish or British suppliers. That contract would not have failed to stipulate that the meat was to be beef meat. When Silvercrest supplied Tesco it knew that the burgers, or some of them, were not in accordance with contract. Every such supply to Tesco involved a misrepresentation by Silvercrest. Unwittingly, presumably, Tesco in its turn misrepresented the contents of the burgers to its customers. In fact each of those misrepresentations was really a misrepresentation of Silvercrest to each consumer. Tesco was just a conduit of the falsehood. To suggest that this was a failure of quality control is, to be charitable, poor judgement. What Tesco describes as a “breach of trust” is clearly a breach of contract and a breach of Section 41 of the Consumer Protection Act 2007. It is an unsettled point whether it was also a breach of Section 42 of the Consumer Protection Act 2007.

It is disturbing that the Polish authorities are challenging the Silvercrest and Ministerial narrative of events. If Poland is not the source of the horse meat, what is the Minister going to do about that, resigning aside?

The finding by the Food Safety Authority of Ireland of horse meat in frozen beef burgers invokes the following legal provisions:

A)            Articles 14 (1) and 16 of Regulation (EC) N° 178/2002 on General Food Law;

B)            Regulations 5 (1) and 6 of the European Communities (General Food Law) Regulations 2007.

Under Article 14 (1) of Regulation No. 178/2002, “Food shall not be placed on the market if it is unsafe”. “Unsafe” includes food unfit for human consumption.

The Regulation goes on…

“In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.”

So, food is contaminated if it contains extraneous matter.

Article 16 of Regulation No. 178/2002 provides;

“Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.”

Under Regulation 5 (1) of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator places unsafe food on the market or otherwise contravenes Article 14 of the EC Regulation.”

Under Regulation 6 of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator fails to comply with Article 16 of the EC Regulation in the labelling, advertising or presentation of food.”

So, citizens will want to know if there will be prosecutions for the Irish beef burger incident.

When the Food Safety Authority of Ireland tested a range of Irish frozen beef burgers, purchased from Irish and British supermarkets, it found evidence that they contained horse meat and/or pig meat.

It found that the source of the offending meat was the respective manufacturer of the beef burger. In the case of Silvercrest Foods Ltd. almost 30% of one burger constituted horse meat.

These facts were sufficient evidence to prosecute the various manufacturers (and the retailers).

Prosecutions are necessary because of the overriding objective of securing the safety of consumer food in the EU. If you are a manufacturer it is easy to ensure the safety of the food produced in your factory; you make sure that your sources are safe.If you fail to do this you should be prosecuted.

Under EU law Ireland is obliged to prosecute for breaches of EU law and the known facts were evidence of breaches of EU law and Irish law. The person responsible for ensuring there are prosecutions is the Minister for Agriculture and Food. That means there will be no prosecutions because he has shown he does not agree with the law.

He thinks that negligence is insufficient to get a conviction or even to bring a prosecution. He implies that proving knowing and deliberate adulteration of food is what is required to bring a prosecution and get a conviction but this is not and should not, be the case.

His is the latest in a long line of Irish failures. Ireland is an extreme example of a noted problem; regulatory capture. When a regulated industry (such as banking) exerts sufficient influence, its regulator becomes its champion and defender instead of its regulator.

Here we go again.

A)            If an Irish tourist is injured by, say, a taxi in Rome, while crossing the street, any claim for compensation will have to be litigated in Italy. That, presumably, is the place where the taxi driver resides.

B)            If, as it might happen, the Irish tourist is injured in Rome by a hired car driven by a person from Ireland the claim for compensation may be taken in Ireland (being the place where the wrongdoer [or one of them] resides).

C)            If an Irish tourist is injured while driving a defective car hired by him in Rome (after he arrived there), due to the defect, any claim for compensation will have to be litigated in Italy. That, presumably, being the place where the car hire company resides.

Each of the cases above is an instance of the basic rule in EU law; the defendant is entitled to be sued in the place where he resides (or the place of the performance of the contract).

There are exceptions to the basic rule. The significant exception, for tourists (who are almost always “consumers”) arises where the tourist has booked a “package holiday”.

“Package [holiday]” is defined in Section 2 (1) of the Package Holidays and Travel Trade Act 1995.

“”package”, subject to subsection (2), means a combination of at least two of the following components pre-arranged by the organiser when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation—

( a ) transport;

( b ) accommodation;

( c ) other tourist services, not ancillary to transport or accommodation, accounting for a significant proportion of the package;”

Section 20 of the Act makes the organiser liable for “the proper performance of the obligations under the contract”;

“20.—(1) The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.”

Normally, a package holiday is booked in the tourist’s home country. Even is this is not the case, where the organiser directed his “activities” to the consumer’s home state the consumer is, as an exception to the basic EU rule, entitled, in both cases, to litigate disputes arising, in the tourist’s home state.

Of course the dispute must relate to “the proper performance of the obligations under the contract”.

So, if a consumer of a package holiday is injured abroad, consequent on a failure to properly perform the obligations of the package holiday contract, the consumer may issue proceedings in Ireland seeking compensation.

What are the “the obligations under the contract”? Read the contract. That reveals the explicit obligations. In addition, it is implicit that the persons supplying the services will do so competently and with proper premises and materials. That means that injuries from food poisoning, or road accidents caused by the negligence of drivers or mechanics are all suitable to be litigated under the 1995 Act, conditional on those services causing the injury being part of the “obligations under the contract”.

It is often possible to buy “add-on” excursions when in the package holiday destination. By definition, these are likely to be outside the scope of the package holiday.

Bismark reputedly said that nobody should get too close to the making of laws or sausages.

On Thursday, on behalf of the StopSOPAIreland.com campaign, I took a trip to Leinster House, to catch a glimpse of the sausage machine at work.

Together with Ian Bergin, who runs the Facebook campaign, and TJ McIntyre of DRI, I met with Catherine Murphy TD to discuss her scheduled exchange of questions with Minister Sherlock.

We experienced the minute-by-minute changes of timetables and proposals in relation to the disputed Ministerial Order.

We had originally believed that there would be a full debate that day on the matter. Instead, on arrival, we learned that instead there was to be a tightly structured 8 minute exchange of statements between Derek Keating for FG and Catherine Murphy for the Technical Group of Independents.

To put it at its lowest, this didn’t really seem to meet the needs of the situation.

Nonetheless, there was still the possibility being held out of a further, fuller debate. But when that debate might be- including rather incredibly, whether it would be held before or after the law had been signed- was subject to, um, flux. In all senses of the word.

While we were in the building, we took the chance to bend the ear of any friendly faces we happened upon. They all told us that the issue of the SOPAIreland Order had become one of the hottest potatoes in the Dáil in a bewilderingly short time. One TD told us that, a week ago, this proposal hadn’t had any kind of attention.

“But now…” he said, trailing off.

More than one TD spoke about getting hundreds of emails and what did or didn’t work as a lobbying tactic. Being civil was good. Basing an argument on logic, rather than threats was another point that got the thumbs up. (This was contrasted with what might have worked in the, shall we say, recent past). All expressed dismay at the impact of hundreds (or 50,000) of emails all arriving into an individual’s inbox. “After a couple of hundred, you’re just hitting delete.”, we were told by a TD’s assistant.

I suggested that the TDs offices were probably experiencing the inevitable consequence of the lessening of friction inhibiting communication between constituents and their representatives. Our campaign emails (ie your emails), it was acknowledged, were of a sort not usually seen. “These people, they represent a usually silent group – the people who really know about the internet”, as one other TD described them.

We then decamped to the Visitor’s Gallery, in time to see Catherine Murphy’s opening question to Minister Sherlock. I needn’t describe it for you- here’s the video:

SOPA Ireland in the Dáil

Today started with more Digital Rights Ireland business- of the courtroom kind- before easing off a little. The Minister had rounded off the night before by confirming that he would hold a Dáil debate before, rather than after, the passing of the SOPA law into force.

That he had been unable to confirm that order of events on Thursday gives a little peep into the kind of day he’d been having.

By 4.50 today, Catherine Murphy TD (a former client) was able to confirm that the debate would go ahead on Tuesday evening at 5.30pm and last 50 minutes.

Just received word that next week's debate on #sopaireland will take place on Tuesday at about 5:30pm. May be subject to change.

January 27, 2012 5:50 pm via webReplyRetweetFavorite

@CathMurphyTD

Catherine Murphy

Last week, this law wasn’t going to be published.

Last week, there was no media attention for this proposal.

Last week, there wasn’t any possibility of the matter going to Cabinet to be discussed.

Last week, the idea of a Dáil debate on this Ministerial Order would have been absurd.

“But now…”

Thank you all.

Maybe there’s a necessary correlation between shocking bumbling incompetence (as in the case of sometime EU Commissioner Charlie McCreevy) and a prediliction to patronise.

Whatever the case, we see it in the EU Commission plan to “give” a class-action procedural right to EU citizens. Mr. Almunia is in charge of this. He says, confusingly, that;

“…only state bodies and certified non-profit organisations would be allowed to bring actions, and that any damages awarded would go entirely to victims and not to the representative entity“

After an interview with Mr. Almunia the Financial Times wrote:

“Another thorny issue is whether to facilitate more private damages actions by the “victims” of competition offences, notably those who suffer from the higher prices imposed by cartels. Mr Almunia’s predecessor, Neelie Kroes, argued that such group actions could be a useful deterrent to illegal price-fixing. But corporate lobbyists warned about the dangers of introducing a US-style “class action” culture and Ms Kroes’ legislative proposals were stillborn.”

So, what’s it to be? A “state body” of the nanny state (headed by Patrick Neary?) or a right to personally litigate wrongdoing by corporate giants?

Of course, this begs the question; why has Ireland not already introduced the right to maintain class actions?

The answer is; they are opposed at a high level.

See our earlier post on the issue HERE.

In January 2010 in Case C-456/08 the European Court of Justice found that Order 84A of the Rules of the Superior Courts was not in accordance with Article 1(1) of Directive 89/665.

The Commission had taken proceedings against Ireland over a failure by the National Roads Authority and the terms of Order 84A of the RSC.

Ireland lost on both points. The ECJ condemned Order 84A on the grounds it;

“..gives rise to uncertainty as to which decision must be challenged through legal proceedings and as to how periods for bringing an action are to be determined..”

The ECJ judgment recites a plea by Ireland that:-

“.. to date, no Irish court has dismissed, as being out of time, any action challenging a decision of a contracting authority made in the course of a public contract award procedure which was brought within the three-month limitation period but not at the earliest opportunity”.

Factually, this seems wrong, or economical with the facts.

In Danninger v Bus Atha Cliath and Deepdrill Developments Ltd. [2007] IEHC, the court recited the following:-

“Leave was sought to commence judicial review proceedings on 23rd May, 2006, approximately six weeks after the formal notification of the of the award of the contract to the notice party.”

- and then ruled on a plea that the Applicant was late, in these terms:-

“I would not hold that time began to run as and from the 3rd January, 2006, when the tender documents were received, because I would regard it as reasonable that legal advice might be obtained in relation thereto. One month seems to me to be more than adequate time in which to seek such advice. Given that there is both an opportunity and, pursuant to O. 84A an obligation, to bring proceedings “at the earliest opportunity”, I would hold that an interim application should have been made shortly thereafter. That interim application would have challenged clause 4.14 of the tender conditions and should have sought interlocutory relief.”

In Danninger the applicant applied for Judicial Review six weeks after losing the tender application process. That was within the three months time limit for applications. The court ruled that time commenced against the applicant not from the ending of the tender process but from the time the applicant knew, or ought to have known, of the grounds upon which it ultimately made its application.

That was a date (as found, by estimate, by the court) to be 3rd February 2006.

That meant that time expired on 3rd May 2006. Thus, 23rd May 2006 the date of the application to court, was twenty days too late. The court however, did not rule that the time had expired for that reason; it ruled it had expired on 3rd February 2006 because the applicant had not applied “at the earliest opportunity”.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

See the most recent post on the issue HERE

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted.

Currently, DRI has furnished its expanded draft of the terms of the Reference to be sent to the ECJ. The State, through its Counsel, has agreed to revert to DRI by 17th August 2010 with its responses, if any.

The case will be re-listed before the Court in October.

1. NAMA was set up by the Government expressly for the purposes of paying the “long-term economic value” for bank assets.

2. “Long-term economic value” (“LTEV”) was a notion supplied to the Government by the Commission of the European Union. This writer cannot say from where the Commission derived it, but it is possible the Commission is not “wedded” to the notion, unlike the Irish Government.

3. In the context of the establishment of NAMA, it was insinuated that LTEV was, and is, in excess of current market value. Strictly, nobody can say what current market value of bank assets are; there has been no functioning market for them for some time and the Government has imposed a secrecy blanket on possible sources of information on the point.

4. Nonetheless, some assets have been assigned current market value; this happened in Irish High Court proceedings. Those values showed a 70%- 80% fall in the value of property-based bank assets.

5. The tranfer of bank assets to NAMA, therefore, was expressly in defiance of the actual value of those assets. The price to be paid was a political decision made before NAMA was established.

6. It is a lie, consequently, to say that the banks misled NAMA. It is the people of Ireland who have been misled.

The High Court is seeking submissions from the parties to the Digital Rights Ireland case. See the Pleadings HERE.

The Court is seeking suggestions as to the form of questions to be submitted to the European Court of Justice. DRI has, in its Statement of Claim, suggested a form of question or questions to be submitted. Clearly, the High Court is not convinced that the form of question suggested by DRI is exactly right (or is seeking the assent of the State to DRI’s form of question). The hearing next Wednesday will show us which is the case.

DRI’s case is brought in its own name, but it is an action with implications for every citizen of Ireland, whether they know it or not.

For this reason McGarr Solicitors have published DRI’s pleadings on the Web since 2006. This is reasonable; the Respondents are, in effect and name, the State. The issues are public law issues and there can be no prevailing claim to privacy on those issues from these Respondents. It is worth noting that it is not common, to put it at its lowest, to see pleadings of current proceedings published but there is usually an exception to every rule and we have one here.

Between now and next Wednesday we will re-formulate the questions to go to the ECJ. These questions will form part of the Order of the Court making the reference to the ECJ. We currently estimate a two year wait to get a hearing in the ECJ. Delay is inevitable; every Member State of the EU has a right to intervene and be heard in the matter. That implies that every Member State must receive a copy of the Questions and the parties’ submissions.