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APPENDIX: SUBSTANTIVE CORRESPONDENCE WITH MINISTER FOR ENERGY
Mr. Robert Molloy T.D., Minister for Energy, Clare Street, Dublin 2. 18 January, 1990. Dear Minister, I wrote to your predecessor on 22 March, 1989 regarding the refusal of the Irish National Petroleum Corporation to come before the last Joint Committee and I had received no reply up to the dissolution of the Dail on 25th May, 1989. As I understood the position in early 1989, the Corporation was refusing to appear before the Joint Committee on the grounds that a High Court action stood adjourned in which Campus Oil and others had questioned the legality of the mandatory oil uptake system relating to the Whitegate refinery. In that regard I am advised that the High Court had referred certain aspects of the case to the European Court and that the latter ruled in support of the Ministerial provisions of the relevant Fuels Order. In the light of the ruling the legal position now appears to be that it is a matter solely for the plaintiffs to reactivate the High Court action. However, I am further advised that, notwithstanding the legal position, the independent oil companies are in practice complying with, and operating, the mandatory oil uptake system. In this context, therefore, the High Court action is, to my mind, effectively dead. Furthermore, it would be of concern to the Joint Committee that sub judice considerations which no longer apply are being invoked to preclude the Corporation from appearing before the Joint Committee. In the light of the foregoing, I would be glad if you would now direct the Corporation to respond positively to the request the Joint Committee proposes to issue shortly to the Corporation. I wish to add, by way of re-assurance, that should the Corporation have any misgivings about appearing before the Joint Committee vis a vis the adjourned High Court action, the Joint Committee will be happy to take such misgivings into account in its questioning of witnesses. Yours sincerely, _________________ Dick Roche, T.D., Chairman of the Joint Committee.
9 March, 1990 Mr. Dick Roche, T.D., Chairman, Joint Committee on State Sponsored Bodies, Leinster House, Dublin 2. Dear Chairman, Thank you for your letter dated 18 January, 1990 about the attendance of the Irish National Petroleum Corporation at the Joint Oireachtas Committee on Commercial State Sponsored Bodies. I would like to make it clear that while I would normally see no problem facilitating the attendance by State Sponsored Bodies before the Joint Committee, this is simply not possible at present for INPC. The suggestion in your letter that sub-judice considerations are being invoked as a measure to deliberately frustrate the work of the Joint Committee is inaccurate. I would, in no way wish to interfere with the work of the Joint Committee in its investigations of Semi-State Bodies which work under the aegis of my Department. You will understand however that the circumstances pertaining to INPC are entirely unique. The adjourned legal proceedings relating to the legality of the mandatory oil uptake system are, in no way, dead. The plaintiffs may re-commence action at any time. Important elements of the European Court judgement remain untested in the Irish Courts. There is a very real risk, therefore, that discussion of issues pertaining to the mandatory regime could be used by the Plaintiffs as evidence in this case. I hope that you will understand why current circumstances prevent the INPC from participating in an examination by the Joint Committee of its affairs. Of course, when the current case is resolved, there should be no problem in the Company appearing before the Committee. Yours sincerely,
Mr. Robert Molloy, T.D., Minister for Energy, Clare St., Dublin 2. 28th March, 1990. Dear Minister, Thank you for your letter of 9th March, 1990 conveying your decision on the non-attendance of the Irish National Petroleum Corporation before the Joint Committee. The Joint Committee which considered your letter at its meeting yesterday is very unhappy at the decision. As I indicated in my letter of 18th January to you, the Joint Committee understands that the substantive point at issue i.e. ministerial power to impose the mandatory uptake, was ruled on in the affirmative by the European Court and that the independent oil companies are operating the system without demur. In this context, it appears to the Joint Committee that any outstanding issues that may be the subject of possible future legal proceedings must surely be peripheral to the main issue. Otherwise the oil companies would not, even from purely commercial considerations, have delayed for so long from resuming such proceedings. No doubt in that regard, the oil companies must be aware that at some definite time in the future, further legal proceedings would be statute barred. The Joint Committee fully appreciates the necessity for the sub iudice practice in parliamentary matters. However, the Joint Committee is at a disadvantage insofar as it is not fully apprised of the specific nature of (i) the original High Court action, (ii) the European Court ruling or (iii) the outstanding matters on which the plaintiffs may re-commence action, specifically the “important elements of the European Court judgement” which remain untested in the Irish Courts. Accordingly, while it has the power under its Orders of Reference to send, inter alia, for papers and records, the Joint Committee requests at this stage that the matter be clarified for it in some detail so that it can determine how best to bring the examination of the Corporation to a conclusion. I should add that the Joint Committee will, in the event of your decision standing, consider the making of a special report to the Houses of the Oireachtas on the matter. Such a report would, of course, include all relevant correspondence. Yours sincerely,
Dick Roche T.D., Chairman of the Joint Committee
25th May, 1990 Mr. Dick Roche, T.D., Chairman, Joint Committee on State Sponsored Bodies, Leinster House, Dublin 2. Dear Chairman, Your letter of 28 March, 1990 regarding the attendance of the Irish National Petroleum Corporation at the Joint Oireachtas Committee on Commercial State sponsored bodies refers. As I have indicated in my letter of 9 March, 1990 to you on this issue the current circumstances pertaining to legal proceedings relating to the mandatory oil uptake system preclude the INPC from participating in an examination by the Joint Committee of its affairs. I reiterate that when the current case is resolved, there will be no problem in the company appearing before the committee. The facts of the legal challenge to the mandatory regime are as follows. The legality of the mandatory offtake regime was challenged by six minor independent companies in 1983. The companies sought an injunction to restrain the Minister for Energy from implementing the mandatory regime. The High Court refused an injunction but the companies then instituted proceedings in the High Court seeking a declaration that the Fuels Order was contrary to certain provisions of the Treaty of Rome. The High Court referred points of interpretation to the European Court. On 10 July 1984 the European Court gave its ruling on the questions referred to it by the High Court. In effect, the ruling stated that while the mandatory regime amounted to a quantitive restriction on imports, an exemption from the prohibition was justifiable under Article 36 of the Treaty on grounds of public policy and public security, if certain conditions were fulfilled. Decision on the latter is a matter for the Irish High Court. Since that ruling no further action has been taken by the six companies to resume the High Court case. The EC Commission which had also challenged the Mandatory Regime withdrew their proceedings finally in May, 1987 in light of the European Court ruling. You will see that the consideration of conditions justifying the mandatory regime under Article 36 of the Treaty has not been concluded in the Irish High Court. The initiative rests with the Plaintiffs despite inaction in this regard by them since the date of the European Court judgement. The case therefore, remains alive. I am concerned not to risk any step which might damage the State’s and INPC’s position in these proceedings. I hope this clarifies the position for you regarding ongoing legal proceedings and the consequent inability of the Irish National Petroleum Corporation to attend at the Joint Committee. Yours sincerely,
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