1 July 2009

NOTE

This document does not purport to be a legal interpretation of EU or national legislation

1 July 2009 

To explain the cause of countless equines in Ireland on 1 July 2009 to suddenly (without prior notice or warning) be excluded from the food chain by Department of Agriculture, Food and the Marine (the Department), as a result of the Department ‘instructing’ the passport issuing organisations (PIOs) to endorse Section IX of equine identification documents (passports) as ‘not suitable for human consumption' from 1 July 2009 in respect of equines born up to 30 June 2009, it is necessary to go back to 22 December 1999, when the European Commission gave effect to Decision 2000/68/EC.

Decision 2000/68/EC

22 December 1999

On 22 December 1999, the European Commission gave effect to Decision 2000/68/EC, which introduced mandatory equine identification (passports) and mandatory equine medicinal controls (food chain safety). The Member States were therefore bound under Article 4 of Decision 2000/68/EC to have in force by 1 July 2009 the national regulations required to ensure that all equines were accompanied by an identification document (passport) when moved.

However, from 1 July 2000 the Department left the old national regulations (S.I. 305/1993) in force in Ireland in total contravention of and in legal conflict with Decision 2000/68/EEC because the old 1993 Regulations did not lay down rules requiring equines to be accompanied by an identification document (passport) when moved.

24 June 2004

It was not until 24 June 2004 that the Department had the Minister enact the national regulations S.I. 399/2004, which finally repealed the old 1993 Regulations and transposed Decision 2000/68/EC into Irish Law—thereby laying down rules in Ireland requiring equines to be accompanied by an identification document (passport) when moved.

However, because there was no time frame laid down in Decision 2000/68/EC for an equine to be identified, equine owners in Ireland became accustoned to getting identification documents (passports) issued for their equines before they exported out of Ireland (but not always because of a lack of identification control checks), before they were entered in an international performance events in Ireland, before they were entered in noted international auctions in Ireland,  and before they were sent to a slaughter plant in Ireland. Because there were no identification control checks at Horse Fairs in Ireland, it was rare for an equine at a Horse Fair in Ireland to have an identification document (passport).

So, because an identification document (passport) could legally be issued in respect of an equine of any age, and because of a lack of identification control checks, the majority of equines in Ireland (or being brought into Ireland) did not have an identification document (passport), and equine owners in Ireland therefore became accustomed to that accepted ‘normal’.

Regulation (EC) 504/2008

6 June 2008

On 6 June 2008, the European Commission gave effect to Regulation (EC) 504/2008. However, whereas Decision 2000/68/EC related to the need for equines to be identified (to have a passport) when moved, Regulation (EC) 504/2008 introduced a major change that, from 1 July 2009—as in other livestock—equines are not just identified (required to have a passport) because they are moved, but because they are born. 

The Department (as the ‘competent’ authority responsible for applying EU equine identification laws in Ireland) should therefore have acted asap from 6 June 2006 to make new national regulations transposing Regulation (EC) 504/2008 into Irish Law which would come into force in Ireland on 1 July 2009 in unison with the new national regulations of all other EU Member States—thereby allowing Regulation (EC) 504/2008 to be binding in its entirety and directly applicable in all Member States as required in Article 29 of the Regulation.

However, instead of making the required new national regulations, the Department left the old national regulations S.I. 399/2004 in force in Ireland from 1 July 2009 to 5 July 2011 in total contravention of and in legal conflict with Regulation (EC) 504/2008. 

The argument can therefore be made that from 1 July 2009 up to 5 July 2011 Regulation (EC) 504/2008 was not binding or applicable at all in Ireland (as it was it other Member States which had their new national regulations come into force on 1 July 2009), and that from 1 July 2009 up to 5 July 2009 equines in Ireland could therefore still (in total contravention of and in legal conflict with the Regulation) get an identification document (passport) at any age without penalties being applied, and only when moved.

It is a fact that during the time the Department left the old national regulations 399/2004 illegally in force in Ireland from 1 July 2009 up until 5 July 2011, it ironically caused Ireland to infringe Article 24 of Regulation (EC) 504/2008—by failing to have national regulations in force laying down rules on penalties for infringements of the Regulation. It also caused Ireland to infringe Article 11(1), 2nd paragraph of Regulation (EC) 504/2008—by failing to lay down the minimum qualification required for the intervention referred to in the first subparagraph (to implant a transponder in an equine) or designate the person or profession entrusted with such operations. The old national regulations 399/2004 did not even mention transponders, never mind the person responsible for implanting them in equines.

Article 5(6) of Regulation (EC) 504/2008

‘Without prejudice to Article 13(1), equidae born in the Community shall be identified in accordance with this Regulation before 31 December of the year of birth of the equine animal or within six months following the date of birth, whatever date occurs later’.

Article 5(6) of Regulation (EC) 504/2008 applied to equines born from 1 July 2009, and was therefore applicable in respect of equines born from the time the Member States were obliged under Article 29 of the Regulation to have their national regulations (transposing the Regulations into their national laws) come into force on 1 July 2009 (thereby allowing the Regulation to be binding in its entirety and directly applicable in all Member States from 1 July 2009). 

Article 26(2) of Regulation (EC) 504/2008

'Equidae which are born by 30 June 2009 at the latest, but not identified by that date in accordance with Decisions 93/623/EEC or 2000/68/EC, shall be identified in accordance with this Regulation by 31 December 2009 at the latest'.

Article 24 of Regulations (EC) 504/2008

‘The Member States shall lay down the rules on penalties applicable to infringements of this Regulation’

Article 27 of Regulations (EC) 504/2008

‘This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union. It shall apply from 1 July 2009. This Regulation shall be binding in its entirety and directly applicable in all Member States.’

Incorrect interpretation of Regulation (EC) 504/2008

It is evident that the following incorrect interpretation of Regulation (EC) 504/2008 by the Department resulted in the Department ‘instructing’ the passport issuing organisations (PIOs) to endorse Section IX of equine identification documents (passports) as ‘not suitable for human consumption' from 1 July 2009 in respect of equines born up to 30 June 2009: 

1. Because the Department interpreted Article 27 of Regulation (EC) 504/2008 as literally to mean that the Regulation was binding in its entirety and directly applicable in all Member States, the Department did not identify the need to make new national regulations transposing the Regulation into Irish Law, nor therefore the need to repeal the old national regulations S.I. 399/2004 and the Department therefore left the old national regulations S.I. 399/2008 in force in Ireland from 1 July 2009 in total contravention of and in legal conflict with the Regulation. 

   How this interpretation was wrong
   
   Article 27 of Regulation (EC) 504/2008 was not a statement to the Member States; it was an order to the Member States requiring them all to have come into force on 1 July 2009 their own national regulations that would allow the Regulation to be binding in its entirety and directly applicable in all Member States from 1 July 2009. The Regulation couldn't be binding in its entirety and directly applicable in all Member States from 1 July 2009 unless every Member State laid down the rules they were required to lay down (as stipulated in the Regulation) and had them come into force in their new national regulations on 1 July 2009.  

2. It is because the Department did not identify the need to make new national regulations transposing the Regulation into Irish Law and because the Department did not correctly (or at all) interpret Article 26(2) of Regulation (EC) 504/2008, that the Department treated equines born up to 30 June 2009 the same as equines born from 1 July 2009—and therefore as subject to a penalty being applied from 1 July 2009 where Article 5(6) of the Regulation was infringed as regards the time frame for identifying an equine stipulated in Article 5(6). It is evident therefore that that is the reason why the Department ('outside' of the required national regulations) ‘instructed’ the passport issuing organisations (PIOs) to endorse Section IX of equine identification documents (passports) as ‘not suitable for human consumption' from 1 July 2009 in respect of equines born up to 30 June 2009: 

   How this interpretation was wrong

   Firstly, the Department caused Ireland to infringe Article 5(6) of Regulation (EC) 504/2008 from 1 July 2009 by not having new national regulations come into force on 1 July 2009, which laid down the required time frame for identifying an equine stipulated in Article 5(6).

   Secondly, the Department caused Ireland to infringe Article 24 of Regulation (EC) 504/2008 from 1 July 2009, by not having new national regulations come into force on 1 July 2009, which laid down the rules on penalties applicable to the Regulation.

   Thirdly, the Department denied equine keepers their legislative (from the Decision to the revolutionary identification changing Regulation) transitional provisions provided for in Article 26(2) of Regulation (EC) 504/2008 by ‘instructing’ the passport issuing organisations (PIOs) to endorse Section IX of equine identification documents (passports) as ‘not suitable for human consumption' from 1 July 2009 in respect of equines born up to 30 June 2009 as the penalty for infrigment of Article 5(6) of Regulation (EC) 504/2008 as regards the time frame for identifying an equine stipulated in the Regulation. The Department ‘instructed’ the passport issuing organisations (PIOs) to deny equine owners their transitional rights provided for in Article 26(2) of Regulation (EC) 504/2008, because new national regulations did not come into force on 1 July 2009, which repealed the old national regulations S.I. 399/2004. 

   It is therefore evident, that the Department ‘instructed’ the passport issuing organisations (PIOs) to apply a penalty which was not within the legal scope of the old national regulations S.I. 399/2004 which the Department left illegally in force from 1 July 2009 and which directly contravened the transistional provisions laid down in Article 26(2) of Regulation 504/2008 for equines born up to 30 June 2009.

   NOTE: If equines born up to 30 June 2009 could actually have been identified in accordance with Regulation (EC) 504/2008—as the Department thought they were—then the Commission would not have needed to make Article 26(2) of the Regulation laying down transitional (temporary) provisions for equines born up 30 June 2009, and a penalty would therefore had to have been applied from 1 July 2009 in respect of equines born up to 30 June 2009 that were not not identified within the time frame stipulated in Article 5(6) of the Regulation. It is because equines born up to 30 June 2009 (under the Decision) could not actually be identified in accordanance with the Regulation from 1 July 2009 (because they were not born under Regulation), that when giving effect to the Regulation on 6 June 2008 it was nececessry for the Commission to Article 26(2) of the Regulation laying down transitional (temporary) provisions for equines born up 30 June 2009 to provide for a legacy of equines born up to 30 June 2009 but not indentified by 30 June 2009 (under the Decision).

   Replacement passports
   
   Article 26(2) of Regulation (EC) 504/2008 was therefore a transitional (temporary) provision allowing equines born up to 30 June 2009 to be identified in accordance with Regulation (EC) 504/2008 (under the Regulation) up to 31 December 2012 without infringing the Regulation (and therefore without penalties being applied). Because equines born up to 30 June 2009 could only be identified in accordance with the Regulation (under the Regulation) up to 31 December 2009, it meant that where equines born up to 30 June 2009 were presented for identification after 30 December 2009, it had to be presumed by the passport issuing organisations (PIOs) that they were already identified and issued passports which were lost. The only passports that the passport issuing organisations (PIOs) could issue in respect of those equines were therefore replacement passports which excluded the equines from the food chain (as stipulated in Article 17 of the Regulation).

 Damage caused to the Irish Horse Industry

What the Department should have done 

The Department should asap after 6 June 2008, made a public announcement to the entire Irish Horse Industry (in the equestrian-related newspapers as articles and on TV as news bulletins), advising and warning the entire Irish Horse Industry (and private equine owners) that new national regulations would be coming into force on 1 July 2009 which would transpose the new Regulation (EC) 504/2008 in Irish Law, and that this would mean that under the new national regulations rules would be laid down allowing equines born up to 30 June 2009 until 31 December 2009 (a full year and a half from 6 June 2008) to be identified and issued ‘clean’ (food chain) allowed first time identification passports, after which they could only be issued replacement passports excluding them from the food chain. And that penalties will be applied in respect of equines born from 1 July 2009 that are not identified within the one-year time frame provided. 

The Department should have called a meeting with the Irish Horse Industry (and private equine owners) and issued information posters and pamphlets for the Irish Horse Industry (and private equine owners) to place in the premises—as the Department did in 2004 when they gave effect to the two years late S.I. 399/2004 (which did not carry the same threat to the Irish Horse Industry as Regulation (EC) 504/2008 would if not handled correctly).

The Department should have allowed the Irish Horse Industry its right to an input into the framing of the new national regulations which would affect the Irish Horse Industry (not the Department), including agreeing on a suitable penalty where the new national regulations are infringed in respect of the time frame provided for equines born from 1 July 2009 to be identified. Every other Member State applied a fine as the penalty where their national regulations (which they all had come into force on 1 July 2009) were infringed in respect of the time frame provided for equines born from 1 July 2009 to be identified.

What the Department should not have done

Having left the old national regulations 399/2004 illegally in force from 1 July 2009 in total contravention of and in legal conflict with Regulation (EC) 504/2008—which caused Ireland to contravene Article 24 of the Regulation by not laying down rules on penalties for infringements of the Regulation—the Department ‘instructed’ the passport issuing organisations (PIOs) therefore ‘outside’ of the required national regulations, to penalise equine keepers, who aubmmitted applications for issue of passports from 1 July 2009 in respect equines born up to 30 June 2009, by classifying their equines on Section IX of their passports ‘as not intended for slaughter for human consumption’.

A completely unaware Irish Horse Industry woke up on 1 July 2009 to find out that countless equines born up to 30 June 2009 that had not been identified—issued passports—(which was the majority of equines in Ireland) had been removed from the food chain by the Department. The Irish Horse Industry was aware that what actually happened was that the Department had denied equine keepers of their transitional rights provided in Article 26(2) of Regulation (EC) 504/2008 in respect of equines born up to 30 June 2009, and that the Department had done so from the time the Department left the old national regulations S.I. 399/2004 illegally in force from 1 July 2009—and which therefore did not transpose Regulation into Irish Law in any regards. Although the Irish Horse Industry has been left completely in the dark as to what caused the sudden (unexpected) Irish Horse Industry crash on 1 July 2009, the Irish Horse Industry is being made aware now of the cause, and can therefore hold the Department officials responsible for the crash responsible.

The Department not only caused the sudden (unexpected) Irish Horse Industry crash on 1 July 2009 by ‘instructing’ the passport issuing organisations (PIOs) therefore ‘outside’ of the required national regulations, to penalise equine keepers, who aubmmitted applications for issue of passports from 1 July 2009 in respect equines born up to 30 June 2009, by classifying their equines on Section IX of their passports ‘as not intended for slaughter for human consumption’., but that wrong action taken by the department is what caused the equine identifciation system to be corrupted from 1 July 2009, and what caused animal wefare issues because equines which before 1 July 2009 had a food chain value only were abandoned all over Ireland with many passing away in unaccpetable conditions.

There could be no doubt, that had the Department published the mandatory Public Notice in June 2008 required to provide the Irish Horse Industry with the knowledge and time required to avert the demolition storm that hit the Irish Horse Industry on 1 July 2009 and that caused so much irreparable damage, to convince the Department to apply a fine for infringements of Article 5(6) of Regulation (EC) 504/2008 (the age limit for having a first time identification passport issued) the same as every other EU Member State.

NOTE: Although the Food Safety Department of the European Commission could commend Ireland, as the only Member State that chose exclusion of animals from the food chain as the penalty where equines were not identified within the time frame laid down in Article 5(6) of Regulation (EC) 504/2008, that penalty could only have been applied in respect of equines born from 1 July 2009.