The Supreme Court has dismissed Dunnes Stores’ appeal against environmental levy assessments totalling €36,573,727 for four accounting periods from July 2004 to June 2008. The Court upheld the application of the plastic bag levy to qualifying bags supplied to customers anywhere in a shop or supermarket, including bags the retailer described as “flimsy”.
The judgment, delivered by Mr Justice William M. McKechnie on 4 June 2019, followed a High Court decision refusing the company’s judicial review claims. Dunnes had challenged the interpretation of the levy rules, the validity of the regulations, the information Revenue provided about its calculations and the constitutionality of statutory powers used to collect the levy.
The Court found that a bag can fall within the levy if it is made wholly or partly of plastic, is suitable for customer use at the point of sale and is not within a specified exemption. The Court interpreted “or otherwise” in the regulations as extending the levy to bags supplied elsewhere in an outlet, rather than limiting it to bags supplied at the point of sale. It said the provisions were difficult to construe, but rejected Dunnes’ interpretation, which it considered would allow outlets to avoid the levy by placing bags away from the checkout.
The Court also rejected the argument that the Minister had to identify a narrower class of supermarkets or other sales outlets. It held that the Minister could specify all such outlets.
On the complaint that Revenue had not given adequate details of how it calculated the assessments, the Court did not grant relief. It said the Revenue Commissioners were in principle bound to apply procedural fairness, but considered the Appeal Commissioners the appropriate forum if Dunnes remained disadvantaged in pursuing its appeal. The judgment noted that the liability issues could be dealt with first, followed by the question of the amount due.
The Court also rejected the constitutional challenge to section 72(5)(b) of the Waste Management Act 1996. It held that the power to adapt tax-related procedures for collecting the levy did not authorise the Minister to amend primary legislation and that the Act contained sufficient principles and policies. The appeal was dismissed.