England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2013

Mr Justice Singh :

Introduction

1. The claimants are various operators of slaughterhouses and cutting plants in this country and the defendant is the agency responsible for public health in relation to food.
2. The defendant has invoiced the claimants in various amounts which it claims are payable by way of charges for official controls on slaughterhouses and cutting plants. The invoices are on their face for the shortfall in the EU minimum charge for official controls in respect of the financial year 2011-12. It is those invoices which are the subject of challenge in this claim for judicial review.
3. Permission to bring the claim was granted on the papers initially only on ground 2: see the order of Mr Neil Garnham QC (sitting as a deputy High Court judge) of 18 October 2012. A subsequent order of 31 January 2013 made after an oral hearing by HHJ Anthony Thornton QC (sitting as a judge of the High Court) also granted the claimants permission to argue grounds 4 and 5.
4. It is common ground that the issues in this case all concern the proper interpretation of relevant legislation and do not turn on the facts of any specific case. The first issue, which corresponds to the claimants' grounds 2 and 5, is whether the defendant was authorised by relevant EU and domestic legislation to issue the invoices. The second issue, which corresponds to ground 4, is whether, if the claimants are wrong on the first issue, the relevant EU legislation authorised the defendant to invoice individual operators in the manner that it did.
5. At the hearing before me, a further argument was raised, which had not been foreshadowed in writing by the defendant. This is whether, if the defendant is wrong on the first issue, it was nevertheless authorised by domestic legislation to issue the invoices on the ground that they represented a lawful discount of the appropriate charges that it could impose.

Material Provisions of European Union law


6. The principal legislation which needs to be interpreted in this case is Regulation 882/2004 of the European Parliament and the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules ("the Regulation"). In the preamble to the Regulation there appear the following recitals:

"(6) The Member States should enforce feed and food law, animal health and animal welfare rules and monitor and verify that the relevant requirements thereof are fulfilled by business operators at all stages of production, processing and distribution. Official controls should be organised for that purpose.

(7) It is therefore appropriate to establish at Community level a harmonised framework of general rules for the organisation of such controls. It is appropriate to assess in light of experience whether such a general framework functions properly, in particular in the area of animal health and welfare. It is therefore appropriate for the Commission to present a report together with any necessary proposal.

(8) As a general rule this Community framework should not include official controls with regards to organisms harmful to plants and plant products. …

(32) Adequate financial resources should be available for organising official controls. Hence, the competent authorities of the Member States should be able to levy the fees or charges to cover the costs incurred through official controls. In the process, the competent authorities of the Member States will be at liberty to establish the fees and charges as flat-rate amounts based on the costs incurred and taking the specific situation of the establishments into account. Where fees are imposed on operators, common principles should apply. It is appropriate therefore to lay down the criteria for setting the level of inspection fees. With regard to fees applicable for import controls, it is appropriate to establish directly the rates for main import items with a view to ensuring their uniform application and to avoiding trade distortions. …"

7. Article 1 of the Regulation, which deals with its subject matter and scope, provides, in paragraph (1), that the Regulation lays down general rules for the performance of official controls to verify compliance with rules aiming, in particular, at:

(a) eliminating or reducing to acceptable levels risks to humans and animals, either directly or through the environment; and

(b) guaranteeing fair practices in feed and food trade and protecting consumer interests.

Paragraph (4) provides that the performance of official controls pursuant to the Regulation shall be without prejudice to feed and food business operators' primary legal responsibility for ensuring feed and food safety and any civil or criminal liability arising from the breach of their obligations.

8. Article 2, which sets out definitions for the purpose of the Regulation, provides that "official control" means any form of control that the competent authority or the Community performs for the verification of compliance with feed and food law, animal health and animal welfare rules. "Competent authority" means the central authority of a Member State competent for the organisation of official controls or any other authority upon which that competence has been conferred.
9. Chapter I of the Regulation sets out general obligations. Article 3 provides, in paragraph (1), that Member States shall ensure that official controls are carried out regularly, on a risk basis and with appropriate frequency, so as to achieve the objectives of the Regulation taking account of specified matters such as identified risks associated with animals, feed or food.
10. Article 4 provides in paragraph (1) that Member States shall designate the competent authorities responsible for the purposes of official controls set out in the Regulation.
11. Chapter V deals with official controls on the introduction of feed and food from third countries, i.e. import controls.
12. Article 22, which is in the same chapter, provides that the feed or food business operator responsible for the consignment or its representative shall be liable for the costs incurred by competent authorities for the activities referred to in articles 18, 19, 20 and 21.
13. Article 25, also in Chapter V, provides that measures necessary to ensure the uniform implementation of official controls on the introduction of feed and food shall be laid down in accordance with the procedure referred to in article 62 (3).
14. Chapter VI, which concerns financing of official controls, is the chapter at the heart of the present case.
15. Article 26 lays down a general principle and provides that:

"Member States shall ensure that adequate financial resources are available to provide the necessary staff and other resources for official controls by whatever means considered appropriate, including through general taxation or by establishing fees or charges."

As the claimants observe, that article, at least if taken by itself, would suggest that Member States are left with a very wide discretion about how to finance official controls: they may do so by establishing fees or charges but they need not to do so, as they could choose to finance official controls through general taxation. However, as the defendant points out, the scheme set out in Chapter VI of the Regulation does not stop there.

16. Article 27, so far as material, provides that:

"(1) Member States may collect fees or charges to cover the costs occasioned by official controls.

(2) However, as regards the activities referred to in Annex IV, section A and Annex V, section A, Member States shall ensure the collection of a fee.

(3) Without prejudice to paragraphs (4) and (6), fees collected as regards the specific activities mentioned in Annex IV, section A and Annex V, section A shall not be lower than the minimum rates specified in Annex IV, section B and Annex V, section B….The rates in Annex IV, section B and Annex V, section B shall be updated by the Commission at least every 2 years, in particular to take account of inflation. …

(4) Fees collected for the purposes of official controls in accordance with paragraphs (1) or (2):

(a) shall not be higher than the costs borne by the responsible competent authorities in relation to the items listed in Annex VI; and

(b) may be fixed at a flat rate on the basis of the costs borne by the competent authorities of a given period of time or, where applicable, at the amounts fixed in Annex IV, section B or Annex V, section B.

(5) In setting the fees Member States shall take into consideration:

(a) the type of business concerned and relevant risk factors;

(b) the interests of businesses with a low throughput;

(c) traditional methods used for production, processing and distribution;

(d) the needs of businesses located in regions subject to particular geographical restraints.

(6) When, in view of own-check and tracing systems implemented by the feed or food business as well as of the level of compliance found during official controls, for a certain type of feed or food or activities, official controls are carried out with a reduced frequency or take account of the criteria referred to in paragraph 5(b) to (d), Member States may set the official control fee below the minimum rates referred to in paragraph 4(b), provided that the Member State concerned provides the Commission with a report specifying:

(a) the type of feed or food activity concerned;

(b) the controls performed in the feed and food business concerned; and

(c) the method for calculating the reduction of the fee.

(7) When the competent authority carries out several official controls at the same time in a single establishment, it shall consider these controls as a single activity and charge a single fee.

(8) Fees relating to import controls are to be paid by the operator or his representative to the competent authority in charge of import controls. …

(10) Without prejudice to the costs deriving from the expenses referred to in article 28, Member States shall not collect any fees other than those referred to in this article for the implementation of this Regulation.

(11) Operators or other relevant businesses or their representatives shall receive proof of their payment of fees….."

17. Article 28, which concerns expenses arising from additional official controls, provides that:

"When the detection of non-compliance leads to official controls that exceed the competent authority's normal control activities, the competent authority shall charge the operators responsible for the non-compliance, or may charge the operator owning or keeping the goods at the time when the additional official controls are carried out, for the expenses arising from the additional official controls. Normal control activities are the routine control activities required under Community or national law and, in particular, those described in the plan provided for in article 41. Activities that exceed normal control activities include the taking and analysis of samples as well as other controls that are required to check the extent of a problem, to verify whether corrective action has been taken, or to detect and/or substantiate non-compliance."

18. Article 67 of the Regulation provides that it applies from 1 January 2006. However, Articles 27 and 28 apply from 1 January 2007.
19. Annex IV of the Regulation, in section A, provides that the activities referred to are the activities covered by specified Directives for which Member States are currently collecting fees pursuant to Directive 85/73/EEC. Section B provides that Member States shall collect, for controls relating to the following list of products, at least the corresponding minimum rates for fees or charges. These are then laid down in relation to specific types of meat: e.g. 5 Euros per animal in the case of adult bovine animals. Chapter 4 of Annex IV lays down minimum rates for fees or charges applicable to milk production: 1 Euro per 30 tonnes and 0.5 Euros per tonne thereafter.
20. Annex V concerns activities and minimum rates for fees or charges related to the official controls of goods and live animals introduced into the Community, in other words imported goods. Section B sets down minimum fee rates for such official controls.
21. Annex VI sets out the criteria to be taken into consideration for the calculation of fees:

(1) salaries of the staff involved in the official controls;

(2) the costs for the staff involved in the official controls, including facilities, tools, equipment, training, travel and associated costs;

(3) the laboratory analysis and sampling costs.

Material provisions of domestic legislation

22. The Secretary of State has made regulations under section 2(2) of the European Communities Act 1972: the Meat (Official Controls Charges) (England) Regulations 2009 (SI 2009 No. 1574).
23. The interpretation provision, regulation 2, provides that "official controls charge" means the charge calculated in accordance with Schedule 2 and notified in accordance with regulation 3(1), (2) or (3). "Operator" means a food business operator who is carrying on a food business at any premises, or his duly authorised representative. "Accounting period" means a period of less than a year determined by the Food Standards Agency.
24. Regulation 3 provides that:

"(1) The [Food Standards] Agency shall, subject to the following provisions of this regulation, notify each operator of any premises at which controls have been exercised in any accounting period of an official controls charge in respect of those controls as soon as practicable after the end of that period.

(2) Where the Agency cannot comply with paragraph (1) because it has insufficient information available to it to enable it to calculate the official controls charge for any accounting period in respect of any premises, it shall notify the operator of those premises of an interim charge, being such amount as the Agency estimates (having regard to the information it has) the official controls charge to be.

(3) Where the Agency has notified an operator of an interim charge in accordance with paragraph (2), and sufficient information becomes available to the Agency to calculate the official controls charge, it shall calculate that charge and –

(a) where it exceeds the interim charge, notify the operator of the amount by which the official controls charge exceeds the interim charge; or

(b) subject to paragraph (5) where it is less than the interim charge, credit to the operator the amount by which the interim charge exceeds the official controls charge.

(4) Any charge notified to an operator under paragraph (1), (2) or (3) shall be payable by him to the Agency on demand. …"

25. Regulation 4 provides that, where the Agency has had judgement entered against an operator of any premises for any sum which is payable to it under Regulation 3(4) and the operator fails within a reasonable time to satisfy the judgement, the Agency may refuse to exercise any further controls at those premises until the judgement has been satisfied. This is regardless of any other legal remedy open to it.
26. Schedule 2, which addresses the calculation of the official controls charge, provides, in paragraph 1, that the charge payable by the operator of any premises shall be the sum that is equal to such percentage of the time costs generated by those premises in the relevant accounting period as the Agency considers appropriate, and the Agency may determine different percentages for different premises or different types of premises. Paragraph 4 provides for agreements between the Agency and operators concerning the performance of controls other than audit. In particular it requires them both to make all reasonable efforts to agree the number of inspectors required for the purpose of carrying out controls at the premises and the number of hours required daily for that purpose. Paragraph 7 sets out the manner in which the time costs generated by any premises in any accounting period shall be calculated. Paragraph 10 provides that the Agency shall determine the hourly rate applicable to inspectors. Paragraph 11 provides that the hourly rate for any inspector or class of inspector shall be calculated so as to reflect such proportion of the costs of the items listed in Annex VI to Regulation 882/2204 [i.e. the EU Regulation with which this case is concerned] incurred by that inspector or class of inspector.

Relevant Guidance

27. The Food Standards Agency has issued a guide for food business operators on charges for official controls with effect from 26 March 2012. This provides in paragraphs 43-46 for a discount to be granted on official control charges. Paragraph 43 provides that:

"Operators of slaughterhouses and cutting plants receive a discount that reduces the time cost charge. For each financial year the discount is normally based on the full time costs and charges at the approved premises during the previous calendar year. The discount is set so that the monthly charges for official controls will, assuming all factors are unchanged, be the same as in 2008/09, subject to compliance with the EU minimum (see paragraphs 61 to 62)."

28. Paragraphs 60-63 address the EU minimum referred to. So far as material they state that:

"60. The EC Legislation (Regulation (EC) No. 882/2004) which governs the charging for official controls sets minimum charges per carcase for species types and for the weight of meat for cutting premises. Although the FSA charges on a time cost basis we are still required to ensure compliance with the minimum charges. The minimum charges which will apply are shown in Annex C. The FSA cannot charge more than the full cost of official controls. If time based charges, invoiced in full with no discount, fall below the EU minimum you will not be required to pay any more.

61. During the year the FSA will monitor minimum EU compliance and update you during the course of the year on your status. After the end of each financial year the FSA will compare the time based charge which you have been invoiced with the minimum charge for your premises. If the charge that you have been invoiced falls below the minimum charge the FSA will invoice an additional sum to you for the difference between your actual charges invoiced to date and the minimum charge.

62. The euro to sterling conversion rate is calculated on the daily exchange rate, published in the Official Journal of the European Union, Series C. Using the average daily rate for each billing period (roughly each calendar month) to be applied to the throughput for that billing period. … "

The First Issue

29. The principal issue in this case is: where is the charging provision to be found in legislation which authorises the defendant to issue the invoices which it has purported to issue? The defendant's main submission is that it is to be found in Article 27 of the Regulation.
30. Article 288 of the Treaty on the Functioning of the European Union ("TFEU"), so far as material, provides that:

"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

31. There is no doubt that the Regulation is directly applicable within the meaning of EU law and, as such, it is part of the domestic law of this country and does not need further enactment. However, that does not necessarily lead to the conclusion that a particular provision in the Regulation either confers rights on individuals or imposes obligations on them which can be enforced in the national legal order. The answer to that question will still depend on whether the particular provision concerned fulfils the well-established criteria for direct effect.
32. An early case in the European Court of Justice concerning the effect of EU regulations was Case 31/74 Galli [1975] ECR 47. That case concerned regulation 120/67/EEC on the common organisation of the market in cereals. In giving his Opinion Sir Jean-Pierre Warner, the Advocate-General, said at p.70:

"… certain provisions of Regulation number 120/67/EEC should be regarded as conferring rights on private persons, whilst others should be regarded as binding Member States only, without conferring such rights. It may be asked: 'How can this be, when Article 189 [now Article 288] of the Treaty provides:

"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States"?'

The answer, I think, lies in this. …The provisions of Article 189 were the means chosen by the authors of the Treaty to ensure that every Regulation should, automatically, be incorporated into the law of each Member State. In the absence of such a provision, each Community Regulation would have had to be so incorporated by the method appropriate by the constitutional law of the State – a bewildering prospect. But it does not follow that every provision of every regulation confers rights on citizens of Member States that they can rely upon in their national Courts. We are familiar with national statutes, which unquestionably form part of national law, some provisions of which impose obligations on the State or on public authorities without conferring personal rights on citizens. This must be so too in the case of Community Regulations. Their provisions can have direct effect, in the sense of conferring personal rights, capable of being upheld by national Courts, only in so far as they satisfy the familiar tests laid down by the Court, i.e. the tests of being clear and unconditional, and of requiring no further legislative action for their implementation. …"

33. In this context the defendant relied on a passage in the judgment of the Court of Justice in Case 94/77 Fratelli Zerbone S.n.c. v Amminstrazione delle Finanze dello Stato [1978] ECR 99, at para. 23, as to the effect of an EU regulation:

"… the direct application of a Community regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure adopting it into national law." (Emphasis added)

34. The defendant submitted, by reference to the emphasised words, that a regulation has the effect of imposing obligations without the need for implementing national legislation. In my view, that passage does not bear the weight which the defendant sought to put on it. What the Court of Justice was saying in that passage was, first, that, where there is a national measure implementing a regulation, it cannot alter the nature of the rights and obligations created by the regulation itself. Further, as the passage itself makes clear, the question is still one of determining who is "subject to it": that may be the Member State alone or it may be an individual within the national legal order. The mere fact that a regulation is directly applicable does not by itself answer that question.
35. As the Advocate-General said in Galli, an analogy can be drawn with primary legislation in the national legal order. In this country we are familiar with the concept that primary legislation may exist which confers powers or imposes duties on a public authority to achieve a particular result. It does not necessarily follow that there is a corresponding obligation on an individual, for example to pay a tax, a levy or some other charge. In the end, the question becomes one of interpretation of the particular provision in question to see if it does indeed impose such an obligation on an individual.
36. In my judgement, there is nothing in the Regulation, whether in Article 27 or otherwise, which imposes such an obligation in the present context: there is no charging provision which authorised the demand for charges that was made by the defendant in this case. Certainly the defendant was unable to point to an express provision imposing such an obligation on individuals. In my judgement, Article 27(2) does not have that effect. It imposes an obligation on Member States to ensure that the fees referred to are collected but it does not go further than that.
37. This can be contrasted with at least two provisions in the Regulation which do impose an obligation on individuals to pay certain charges: Article 22 and Article 27(8) but they both relate to charges in the context of import controls from third countries.
38. That contrast makes sense having regard to the overall structure and purpose of the Regulation. Chapter V of the Regulation, which concerns imports, imposes charges directly and does not leave a margin of discretion to Member States. That this is the express purpose of the Regulation can be seen from the words of recital (32) in the preamble. In contrast, the preamble, in particular the recitals I have quoted earlier, including recital (32), makes it clear that, in the context of other charges, the purpose of the Regulation is to establish a "general framework" but leave a margin of discretion to Member States as to its implementation.
39. The defendant submits that the Regulation does more than simply confer powers; it imposes obligations on Member States, in particular in Article 27(2). That may be so but that does not answer the question of whether the Regulation imposes an obligation to pay certain charges on individuals. As I have already indicated, in my judgement, Article 27(2) imposes an obligation on Member State to ensure that certain fees are collected; it does not impose an obligation on individuals to pay those fees.
40. Ultimately the defendant has to rely on a purposive construction to achieve that result. It submitted that it would be a "nonsense" for a Member State to have an obligation to achieve a certain result (that certain charges are collected) but for there to be no corresponding obligation on individuals to pay those charges to the competent authority of a Member State. I do not accept that submission. It seems to me that a strict approach has to be taken to what is said to be a charging provision. This accords with the approach to the interpretation of such provisions which the Court of Justice has emphasised by reference to the principle of legal certainty.
41. In Case 169/80 Administration des Douanes v Société anonyme Gondrand Frères [1981] ECR 1931 the Court of Justice said at para. 17:

"The principle of legal certainty requires that rules imposing charges on the taxpayer must be clear and precise so that he may know without ambiguity what are his rights and obligations and may take steps accordingly."

42. If there is a gap between the result which a Member State is required to achieve and the means to achieve it, the remedy lies within the hands of that Member State. It could choose to introduce national legislation to give effect to its obligations under EU law.
43. The Secretary of State has introduced such domestic legislation in the shape of the 2009 Regulations. However, they do not go so far as to enable the defendant to levy the particular charges which are in issue in this case. The Regulations do permit the defendant to demand other charges, on a time cost basis. It is of interest to note that the Regulations clearly do contain a charging provision. Regulation 3(4) makes it clear that the invoice for a relevant charge is payable on demand. There is no such provision in respect of the charges which the defendant sought to raise in the present case.
44. Counsel for the defendant was driven to submit at the hearing before me that the 2009 Regulations were otiose as the Regulation, being directly applicable, need not have been implemented at all. Although it is possible that the Secretary of State has proceeded to make the Regulations on the basis of a misunderstanding, and that the Regulations were unnecessary to impose the relevant charges, it seems to me that the more likely explanation is the more natural one: that such domestic legislation is necessary to achieve the results required of a Member State by Article 27 of the EU Regulation. However, in my judgement, the 2009 Regulations do not go so far as to impose an obligation to pay the charges which were invoiced in the present case.
45. Accordingly I determine the first issue in favour of the claimants.

The Second Issue

46. The second issue does not strictly arise since it was an alternative submission by the Claimants if they were wrong on the first issue. However, since it was addressed by both parties, I will consider it briefly here.
47. The claimants submit that the term "fees collected" in Article 27(3) of the Regulation refers to the aggregate fees collected, not fees in respect of a particular operator. The claimants submit that this interpretation not only accords with the language, structure and purpose of the Regulation read as a whole but that the contrary interpretation would tend to penalise the more efficient operator. The claimants therefore submit that the defendant did not have the power to issue the invoices in the manner that it did in the present case.
48. I do not accept that submission. I prefer the submission of the defendant on the second issue. In particular it seems to me that the claimants' submission cannot be right in the light of the provisions of Chapters I, IV and V of Annex IV. The minimum charge per animal inspected is plainly intended to be levied on an individual operator according to the number of each type of animal inspected. This interpretation receives strong support from the terms of Chapters IV and V of Annex IV, which requires a minimum amount to be collected in respect of the initial quantity of dairy or fishery products inspected and a different amount to be collected for further quantities thereafter. Those provisions would make no sense if the fees collected are aggregate fees and must refer to fees in relation to an individual operator.
49. Accordingly, if it arose, I would determine the second issue in the defendant's favour.

The Third Issue

50. As I have mentioned, at the hearing before me, the defendant for the first time made an alternative submission if its submission on the first issue should be rejected (as it has been by me). The defendant submits that, even if the Regulation does not itself impose an obligation on operators like the claimants to pay the charges invoiced by it, nevertheless there was an obligation to pay those amounts under Regulation 3 of the 2009 Regulations, i.e. under domestic legislation.
51. The defendant submits that paragraph 1 of Schedule 2 to the Regulations enables it to give a discount on the charges that would otherwise be payable and that the amount of the discount is such as it considers "appropriate." It submits that the initial invoice could and should therefore be regarded as an interim demand, not a final demand: there is power to make interim demands under Regulation 3(2) and (3). It further submits that the exact amount of the discount it should give is a matter for its discretion and so the claimants cannot complain if the discount is less than they thought they were going to get, because the defendant has to collect the EU minimum amounts. The defendant also submits that there can be no unfairness about this, because operators are given fair notice in the defendant's guidance that it will have to collect those EU minimum amounts, in particular at paras. 60-62 (quoted earlier).
52. I am unable to accept the defendant's submissions on this issue. In my judgement, they conflict with basic aspects of the rule of law, particularly bearing in mind the need for clear and precise provision in the context of the levying of taxes and similar charges from the citizen. In Steele Ford and Newton v Crown Prosecution Service (No. 2) [1994] 1 AC 22, at 33, Lord Bridge of Harwich said:

"…it is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. …"

53. I reach my conclusion for three reasons. First, the defendant has never purported to act under Regulation 3(2) and (3): the invoices in this case were not described as being interim ones.
54. Secondly, the domestic legislation enabling a discount to be given does not anywhere refer to using that facility in order to collect the EU minimum amounts referred to in the Regulation. For the purpose of this issue, one has to assume that the defendant has already lost on the first issue, otherwise the issue does not arise in the first place. If the defendant's interpretation of the legislation on the first issue is wrong, as in my judgement it is, then there is nothing in the legislation that imposes an obligation on the individual operator to pay the amounts invoiced. The defendant cannot achieve the same result by the back door by refusing to give the discount which would otherwise be given, in order to collect the amounts which it cannot lawfully collect by the front door. If the domestic legislation were amended, for example to refer expressly to an obligation to pay the EU minimum rates, then my provisional view would be that the defendant would be able to collect those rates. However, as the defendant acknowledges, this is not an issue that arises in the present case and will not affect the outcome of it. Given the way in which this new point arose, there was limited argument directed to it and, since the point may arise for decision in the future, it would not be appropriate to say more at this stage.
55. Thirdly, the defendant cannot rely on its guidance to achieve this result either. Although guidance can have an important role to play in public law, it cannot impose an obligation on the citizen to pay a charge, levy or other form of tax without the clear and precise provision of legislation. In this context, guidance cannot be a substitute for legislation.
56. Accordingly I determine the third issue in the claimants' favour.

Reference to the Court of Justice?

57. I have considered the question whether this Court should make a reference for a preliminary ruling to the Court of Justice under Article 267 TFEU. The defendant suggested that I should do so, since the interpretation of the Regulation is a matter of EU law and, if there were a reference by a higher court at some stage in these proceedings, it would only add to the delay that is likely to take place, which would be undesirable, since all concerned need to know what their legal position is as soon as possible not only for the financial year in issue in these proceedings but for future years.
58. It was common ground before me that the principles on which a national court (other than a final court of appeal) should exercise its discretion whether or not to make a reference remain in essence as summarised by Sir Thomas Bingham MR in R v Stock Exchange, ex p. Else Ltd [1993] QB 534, at 545:

"… if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer."

59. With those principles in mind, I have decided not to exercise the Court's discretion to make a reference in this case. I do not have any real doubt about the interpretation of the EU Regulation and believe that I can with complete confidence resolve the issue myself. Furthermore, if I do make a reference, that will necessarily lead to significant delay, whereas, if I decide the case myself, there may be no appeal or, if there is an appeal, the Court of Appeal may not feel it necessary to make a reference either.

Conclusion

60. For the above reasons this claim for judicial review will be granted.