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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Booker Aquaculture Ltd v Secretary Of State For Scotland, Re Application For Judicial Review [1999] ScotCS 189 (12 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/189.html
Cite as: [1999] ScotCS 189
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord McCluskey

Lord Sutherland

 

 

 

OPINION OF THE LORD PRESIDENT

 

in

 

RECLAIMING MOTION

 

in PETITION of

 

BOOKER AQUACULTURE LIMITED

Petitioners;

 

against

 

THE SECRETARY OF STATE FOR SCOTLAND

Respondent:

 

for

 

Judicial Review of (i) The Diseases of Fish (Control) Regulations 1994 and (ii) a decision letter dated 13 May 1996

 

and

 

ANSWERS FOR RESPONDENT

 

_______

 

 

Act: Macdonald, Q.C., Dunlop; R. Henderson.

Alt: Clarke, Q.C., Mure; Steedman Ramate W.S.

12 August 1999

 

Until 1991 at South Druimachro on the island of Gigha there was a salmon farm; in that year the operation was changed to the rearing of turbot. In due course McConnell Salmon Ltd. ("MSL") leased the farm site and took over the turbot of year class 1991 but not those of the year class 1992 which the previous operator transferred to a farm at Tayinloan. MSL, which later became Marine Harvest McConnell Ltd., continued to rear turbot and by the late summer of 1994 the farm was stocked with turbot of year classes 1991, 1993 and 1994. In August of that year MSL came to suspect that some of the turbot might be infected with Viral Haemorrhagic Septicaemia ("VHS") and, as required by Regulation 11 of the Fish Health Regulations 1992 (1992/3300)("the 1992 Regulations"), MSL informed the Secretary of State of their suspicion. There then followed various steps which eventually culminated on 15 September 1994 in the Secretary of State serving a notice on MSL under Regulation 7 of the Diseases of Fish (Control Regulations) 1994 (1994/1447)("the 1994 Regulations"). That notice required MSL inter alia to destroy all eggs, gametes, dead fish and fish which in the opinion of an inspector showed clinical signs of disease and to kill all fish and destroy their carcasses, with the exception of fish of commercial size. Fish of commercial size could be slaughtered for marketing or processing for human consumption, subject to a number of conditions, in particular that in the opinion of the inspector they showed no clinical signs of disease. In practice these fish of commercial size were to be kept for a period during which any traces of antibiotics would be eliminated from their systems and they were then to be slaughtered. MSL complied with the notice.

On 13 December 1994 MSL wrote to the Secretary of State seeking compensation for the losses which they said they had suffered as a result of complying with the notice. The claim was for over £600,000. In a letter dated 13 May 1996 Mr. David Dickson, writing on behalf of the Secretary of State, announced that

"After careful consideration it has been concluded that your legal claim for compensation cannot be accepted. In addition, in line with the Government's long-established policy of non payment of compensation for fish diseases, an ex-gratia payment would not be appropriate."

On 23 December 1996 MSL assigned to Booker Aquaculture Limited all claims and rights competent to them to sue or raise any court proceedings in respect of losses incurred by them arising inter alia out of the service on them of the notice under Regulation 7. In January 1997 Booker Aquaculture Ltd. lodged the present petition for judicial review of the 1994 Regulations and of the decision letter of 13 May 1996. The Secretary of State lodged answers to the petition.

On 28 May 1998 the Lord Ordinary pronounced a declarator to the effect that the Secretary of State had acted illegally by failing to provide either by legislative or administrative means for payment of any compensation where slaughter orders are made under Regulation 7 of the 1994 Regulations. Against that interlocutor the Secretary of State reclaimed. On 1 July 1999, during the hearing before this court, the relevant rights and obligations of the Secretary of State were transferred to the Scottish Ministers but we were informed that the Scottish Ministers were adhering to the position previously adopted by the Secretary of State and were insisting in the reclaiming motion. It was agreed that any procedural formalities resulting from the transfer of the relevant rights and obligations could be dealt with in due course.

The notice giving rise to the actions which are said to have caused loss to MSL was given under Regulation 7 of the 1994 Regulations. Those Regulations were themselves made by the Minister of Agriculture, Fisheries and Food and the Secretary of State acting jointly under Section 2(2) of the European Communities Act 1972 for the purpose of implementing Council Directive 93/53/EEC of 24 June 1993 ("the 1993 Directive"). In order to understand the particular provisions of the directive which apply in this case, it is necessary to take a slightly wider view of the system of Community regulation.

 

The 1991 Directive

A convenient starting point is the Council Directive 91/67/EEC, adopted on 28 January 1991 ("the 1991 Directive"). As the recitals show, the directive was adopted with the purpose of contributing to the completion of the internal market, on this occasion the market in aquaculture animals and products, meaning inter alia fish coming from a farm and the products derived from such fish. Since the animal health situation was not the same throughout the Community, the directive envisages the establishing of approved zones and approved farms, being zones and farms meeting certain rigorous standards designed to ensure that all the fish in the zone or farm are free from the diseases set out in list II in Annex A to the directive.

There are two lists in Annex A: following the amendments made by Directive 94/53/EEC, list I contained only infectious salmon anaemia (ISA), while list II contained a number of diseases, including VHS and infectious haematopoietic necrosis (IHN). Turbot was included among the fish susceptible to VHS. The essential difference between the two classes of disease was that ISA, the disease in list I, was exotic to the Community, whereas VHS and the other diseases in list II were endemic in the Community. Since ISA was exotic to the Community, the directive proceeds on the basis that it is not expected to be found in any part of the Community. There is therefore no need, in the case of ISA, to divide the Community up into approved zones and farms and other zones and farms - in effect the whole Community is treated as if it were an approved zone for ISA. In the case of list II diseases, on the other hand, Article 7 of the directive envisages that live fish, their eggs or gametes can be introduced into one approved zone or farm from another approved zone or farm. By contrast fish which are susceptible to list II diseases and which originate in a non-approved zone can be placed on the market in an approved zone only if they are slaughtered and eviscerated prior to despatch (Article 9). Putting the matter shortly, by establishing a system of approved zones and farms the directive aims to facilitate the marketing of farmed fish and their products and thus to help towards the completion of the internal market.

Articles 5 and 6 and Annex B to the 1991 Directive lay down the procedures by which a Member State may obtain the status of an approved zone or approved farm for an area of its territory or for particular farms on its territory. Annex B I. D. and II. D. deal with the situation which occurs when a list II disease is suspected or confirmed in an approved zone or on an approved farm. Where the outbreak is confirmed the Member State's veterinary service is to withdraw the approved status and, where it does so, the Commission must revoke the decision by which the zone or farm had been given approved status (Article 5.2 as replaced by Article 1.3 of Directive 93/54/ECC). Annex B I. D.6 (also applied by II. D.) provides:

"Restoration of the approval of a zone is subject to the following requirements:

(a) when an outbreak occurs:

- all fish in the infected farms must have been slaughtered, and

infected or contaminated fish must have been destroyed,

- facilities and equipment must have been disinfected in

accordance with a procedure approved by the official services;

(b) after elimination of the outbreak, the requirements set up in

point B must be again complied with."

Since the requirements of point B are the requirements laid down for the grant of approval, the effect of this provision taken as a whole is that, in the event of an outbreak, first, all fish must be slaughtered; infected or contaminated fish must be slaughtered and destroyed; and the farm must be disinfected; only then can the whole process needed for acquiring approved status be started. That process is inevitably lengthy, since it includes a requirement in point B.2 that all fish are free from any clinical or other sign of the disease for at least four years.

Approved Status of Great Britain

By Article 1 of Commission Decision 92/538/EEC of 9 November 1992 Great Britain was "recognized as approved continental zone and approved coastal zone for fish with regard to infectious hematopoietic necrosis and viral haemorrhagic septicaemia" and Article 2 gave the same recognition and approval to Northern Ireland. We were informed that no other Member State had received a similar recognition and approval for all its waters. By Commission Decision 94/817/EC of 15 December 1994, following the outbreak of VHS on Gigha, Article 1 of the 1992 Decision was amended so that the whole of Great Britain remained recognised and approved for fish with regard to IHN, but only "the territory of Great Britain excluding the island of Gigha" was recognised and approved for fish with regard to VHS. We were informed that approved zone status in respect of VHS had not yet been restored in the case of Gigha.

The 1993 Directive and the 1994 Regulations

The 1993 Directive was made in order to introduce minimum Community measures for the control of certain fish diseases. The system varies, depending on whether the disease is a list I or list II disease under the 1991 Directive.

Chapter II of the 1993 Directive contains the control measures for list I diseases and its provisions apply whenever fish on a farm in the Community are suspected of being infected with a list I disease (Article 5.1). Article 5 contains drastic measures which are to be carried out as soon as the presence of the disease is suspected. These measures are designed to prevent the risk of the disease spreading. Article 6 contains the measures which are to be taken in order to eradicate the disease if its presence is confirmed. On an infected farm inter alia:

"- all fish must be immediately withdrawn,

- in the case of inland farms all pools must be drained for the purposes of cleaning and disinfection,

- all eggs and gametes, dead fish and fish showing clinical signs of disease shall be regarded as high-risk material and must be destroyed under the supervision of the official service, in accordance with Directive 90/667/EEC,

- all live fish shall either be killed and destroyed under the supervision of the official service in accordance with Directive 90/667/EEC, or else, in the case of fish which have reached commercial size and show no clinical sign of disease, be slaughtered under the supervision of the official service for marketing or processing for human consumption."

Having dealt with list I diseases in Chapter II, the directive goes on in Chapter III to deal with list II diseases which, at the time of the outbreak on Gigha in 1994, included VHS in turbot. Article 9 applies in the case of an outbreak of a list II disease in an approved zone:

"Where a list II disease is suspected and/or confirmed in an approved zone or on an approved farm situated in a non-approved zone, an epizootic investigation shall be carried out in accordance with Article 8. Member States wishing to regain their status defined in accordance with Directive 91/67/EEC must comply with the provisions of Annexes B and C to that Directive.

2. If the epizootic investigation reveals that the disease could have been introduced from an approved zone or from another approved farm, or could have been transferred to another approved farm as a result of the movement of fish, eggs or gametes, vehicles or persons, or in any other way, those zones or farms shall be considered suspect and the appropriate measures shall apply.

3. The official service may, however, authorize the fattening of fish to be slaughtered until they reach commercial size."

Article 9.1 does not say that, where a list II disease breaks out in an approved zone or on an approved farm, the Member State concerned must take steps to have the approved status restored. It merely says that "Member States wishing to regain their status" must comply with the stringent provisions of Annexes B and C to the 1991 Directive. It may be that, because of the extent of the outbreak or for some other reason, a Member State will decide that it is not prepared to make the effort involved in trying to regain the approved status. In that event the zone will simply continue to be a non-approved zone and any outbreak of a list II disease on a non-approved farm in the zone will fall to be dealt with under Article 10. Since the disease in question is by definition one which is found in the Community, the measures to deal with it in a non-approved zone are less drastic. Indeed the only compulsory measures under Article 10 are designed to contain any outbreak of the disease rather than to eradicate the disease itself (Article 10.1). Article 10.2 envisages, however, that a Member State may for a fixed period set up under the supervision of its veterinary service an optional or compulsory programme for the eradication of list II diseases in non-approved farms or in non-approved zones.

The 1994 Regulations were made in order to implement the 1993 Directive by introducing control measures for fish diseases to be applied in Great Britain. In broad terms the Regulations reflect the scheme of the directive. In particular in Schedule 3 of the Regulations diseases are categorised in accordance with the general scheme in Annex A to the 1991 Directive. Regulations 2 to 5 implement the provisions of Chapter II of the 1993 Directive for list I diseases. VHS is contained in Part II of Schedule 3 and Regulations 6 and 7 provide the control measures to be applied when a disease listed there is first suspected and then confirmed on a farm in an approved zone or on an approved farm. To put the matter shortly, Regulations 6 and 7 are intended to be the United Kingdom's way of implementing the requirements of Article 9 of the 1993 Directive. In the present case we are concerned with the situation where fish have been confirmed to be infected with VHS. Regulation 7 then applies and it is in the following terms:

"If the fish on a farm which is either -

(a) a farm in an approved zone; or

(b) an approved farm which is not in an approved zone;

are confirmed to be infected fish which have a disease listed in Part II of Schedule 3, the Minister shall, by notice in writing served on the occupier of the farm, require -

(i) the immediate removal of all fish from the waters of the

farm;

(ii) the draining, cleaning and disinfection of all pools on

inland farms;

(iii) the destruction of all eggs, gametes, dead fish, and fish

showing clinical signs of disease, under the supervision of the Minister and in accordance with the provisions of Directive 90/667/EEC;

(iv) (aa) the killing and destruction of all live fish, under

the supervision of the Minister and in accordance with the provisions of Directive 90/677/EEC; or

(bb) the slaughter of all live fish, for marketing or

processing for human consumption, under the supervision of the Minister, but only if the fish have reached commercial size and show no clinical signs of disease;

(v) the cleaning and disinfection or destruction of

equipment, material or substances liable to be contaminated with the disease pathogen, under the supervision of the Minister; and

(vi) that the repopulation of the farm shall only take place

when the Minister so authorises by notice."

No Equivalent to Article 9.3 in Regulation 7

A comparison of the terms of Article 9 and Regulation 7 immediately reveals that Regulation 7 has not been framed in such a way as to give the veterinary service the power, envisaged in Article 9.3 of the Directive, to authorise the fattening of fish to be slaughtered until they reach commercial size: Regulation 7(iv)(bb) applies only to fish which have already reached commercial size. The Lord Ordinary formed the view that, by not including a provision corresponding to Article 9.3, the Regulations had denied to the Secretary of State the discretion envisaged by the Directive and had obliged him to order the killing and destruction of fish which might not have required to be killed and destroyed if Regulation 7 had contained that element of discretion. He concluded that the decision of the Secretary of State

"the petitioners have demonstrated that the decision of the respondent which denied any discretion afforded to him as the official service in terms of Article 9(3) of the Directive 93/53/EEC, no explicit provision being made in the 1994 regulations for such an exercise of discretion, was erroneous. It was taken without proper regard for the fundamental right of MSL to their property in that it was reached in an arbitrary way and thus without any consideration of the particular circumstances surrounding the outbreak and without any attempt to secure a fair balance between that fundamental right and the aim of regaining the status of approved zone in the interests of the community. It follows that in the absence of any provision for such an exercise of discretion, the respondent was bound to make provision for compensation in those circumstances where otherwise the discretion to allow fish to be fattened could properly have been exercised in favour of the owner of the property affected by the order to slaughter all fish immediately.

That being so, I will accede to the suggestion of counsel for the petitioners that declarator be pronounced to the effect that in failing to provide either by legislative or administrative measures for payment of any compensation where slaughter orders are made under regulation 7 of the Diseases of Fish (Control) Regulations 1994, the respondent was acting illegally."

From this passage it is apparent that the Lord Ordinary pronounced the declarator on the basis of his view that the United Kingdom had not been entitled to implement the 1993 Directive without including the discretion contained in Article 9.3. This is a somewhat surprising view since Regulation 7 is in substance a stricter measure on the control of list II diseases and Article 20.2 of the directive provides specifically that Member States may, "subject to the general rules of the Treaty, maintain or apply in their territory stricter provisions than those laid down by this Directive." In fact, from what we were told in the course of submissions, it did not appear that this particular argument upon which the Lord Ordinary found in favour of the petitioners had featured prominently in discussion before him. Had it been necessary to deal with it in detail, we should have required to reach a view on the proper construction of Article 9 and in particular on its relationship with Article 10 and the Articles in Chapter II of the Directive. Counsel on both sides readily acknowledged that the questions of construction were difficult and admitted of no certain answer. In the course of the debate, however, it became clear that, while not formally abandoning the Lord Ordinary's approach, counsel for the petitioners were not - as Mr. Mure put it - "coming in with any beating of drums or sounding of trumpets to support" that approach. At most, the fact that the directive envisaged the possibility of a discretion in such cases was said to be a factor which might be taken into account when considering whether it was justifiable for the Secretary of State to require the destruction of all but the fish of commercial size without paying compensation. That being the position, it is unnecessary to deal more fully with this aspect of the Lord Ordinary's reasoning.

Compensation

In the case of the slaughter of animals in relation to certain diseases, compensation is payable under Section 31 of, and Schedule 3 to, the Animal Health Act 1981. It would have been open to the Minister and to the Secretary of State, by virtue of Section 87(3), to extend the definition of animals to include "fish" and so to give themselves the power to pay compensation for the slaughter of fish under Section 32(3) of the same Act. But they have not done so and, as the letter to MSL indicated, this is because of "the Government's long-established policy of non-payment of compensation for fish diseases". The situation therefore is that Regulation 7 was introduced into our law in a situation where our law deliberately excludes any right on the part of those whose fish are killed and destroyed to claim compensation from the Scottish Executive.

As I have explained, during the argument before this court, counsel exposed the difficulties in interpreting Article 9 of the 1993 Directive. Counsel for the respondent argued that Article 9.1, when read along with Article 8.2, meant that the provisions of Articles 5 and 6 applied in the case of list II diseases in an approved zone or on an approved farm. By contrast, counsel for the petitioners submitted that the true position was that, when a list II disease was confirmed, approval of the zone or farm was withdrawn under paragraph I. D.5 of Annex B to the 1991 Directive and the zone or farm became non-approved, with the result that it then fell within the scope of Article 10. The Member State had an option to decide whether or not to try to regain the approved status. If it chose not to do so, the situation would continue to be covered by Article 10, whereas if it chose to do so, the Member State would then have to comply with the provisions in Annexes B and C to the 1991 Directive, including the eradication measures in paragraph I. D.6 of Annex B. If the former interpretation were correct, then Regulation 7 would reflect the application of Article 6 to list II diseases. If the other interpretation were correct, then Regulation 7 would be a measure which the United Kingdom had adopted but which went further than the minimum required by Article 9.

Counsel for both parties were agreed that, whichever was the true position, in implementing the 1993 Directive the United Kingdom had been subject to the general rules of the Treaty and in particular to the general principles of Community law, including the fundamental rights enshrined in Community law. That approach is fully vouched by the observations of Advocate General Jacobs in Wachauf v. Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609 at p. 2629 where he says that

"it appears to me self-evident that when acting in pursuance of powers granted under Community law, Member States must be subject to the same constraints, in any event in relation to the principle of respect for fundamental rights, as the Community legislator."

This approach was adopted by the Court of Justice in paragraph 19 of their judgment in the same case where they stated that, since the requirements of the protection of fundamental rights in the Community legal order

"are also binding on the Member States when they implement Community rules, the Member States must, as far as possible, apply those rules in accordance with those requirements."

Although there was therefore no dispute between the parties that in principle the fundamental rights would apply when a Member State implemented Community rules, there is, as will be seen below, an issue between the parties as to whether, in determining compensation arising out of the application of the national measures implementing Community rules, the Member State is acting within the scope of Community law or within the area of its own competence.

 

The Right to Property

Counsel for the respondent did not seek to question the existence of the fundamental right to property with which these proceedings are concerned. A convenient statement of the general approach to fundamental rights in Community law is to be found in Nold KG v. Commission [1974] ECR 491 in paragraph 13 of the judgment of the Court:

"As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures.

In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States.

Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law."

More particularly, as the Court made clear, for instance, in Hauer v. Land Rheinland-Pfalz [1979] ECR 3727 at paragraph 17 of its judgment, the right to property as guaranteed in the Community legal order is in accordance with the ideas which are reflected in the terms of the first Protocol to the European Convention for the Protection of Human Rights:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

The Hauer case concerned a Regulation which prohibited all new planting of vine varieties classified as wine grape varieties in the area where Frau Hauer's land lay. She challenged the validity of the Regulation, though no question of compensation for the restriction imposed by the Regulation appears to have been raised in the proceedings before the Court of Justice. Referring to the first Protocol, the Court said:

"Having declared that persons are entitled to the peaceful enjoyment of their property, that provision envisages two ways in which the rights of a property owner may be impaired, according as the impairment is intended to deprive the owner of his right or to restrict the exercise thereof. In this case it is incontestable that the prohibition on new planting cannot be considered to be an act depriving the owner of his property, since he remains free to dispose of it or to put it to other uses which are not prohibited. On the other hand, there is no doubt that that prohibition restricts the use of the property. In this regard, the second paragraph of Article 1 of the Protocol provides an important indication in so far as it recognizes the rights of a State 'to enforce such laws as it deems necessary to control the use of property in accordance with the general interest'. Thus the Protocol accepts in principle the legality of restrictions upon the use of property, whilst at the same time limiting those restrictions to the extent to which they are deemed 'necessary' by a State for the protection of the 'general interest'."

The approach of the Court of Justice in this passage appears not dissimilar to that of the European Court of Human Rights in its analysis of Article 1 in Sporrong and Lönnroth Series A No. 52 (1982) at paragraph 61:

"That Article comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph."

In the present case it appears that a notice under Regulation 7 of the 1994 Regulations would impair an owner's right of property in his fish in two ways. First, as counsel for the respondent accepted, in so far as the Secretary of State's notice required him to kill and destroy fish, it would deprive him of his property in the fish. This would fall within the scope of the second rule enunciated by the Court and so within the second sentence in the first paragraph of Article 1. Secondly, in so far as it permitted him to slaughter fish of commercial size for marketing or processing for human consumption, but only subject to certain conditions, then it would restrict the owner's exercise of his right of property in those fish. This would fall within the third rule which is to be found in the second paragraph of the Article. The notice served on MSL operated in each of these ways though the claim for the destruction of the fish is the larger.

So far as concerned the deprivation of their property by the compulsory killing and destruction of MSL's fish, counsel for the petitioners accepted, of course, that deprivation of property was permissible "in the public interest" (Article 1, second sentence). Moreover, they accepted that in considering the public interest it was relevant to have regard to various factors mentioned in the recitals to the 1991 and 1993 Directives: first, the importance of the breeding and rearing of aquaculture animals and the marketing of them as a source of income, secondly, the objective of completing the internal market and avoiding the spread of infectious or contagious diseases in fish, and, thirdly, the consequent need for control measures to ensure rational development of the aquaculture sector and so to contribute to the protection of animal health in the Community. In these circumstances counsel for the petitioners did not argue that a requirement on a fish farmer, whether in terms of a direct transposition of Article 9 or in terms of a more stringent régime imposed by the United Kingdom in Regulation 7, to destroy turbot where there had been an outbreak of VHS could not be justified in the public interest. Rather, they argued that, even though in these circumstances the deprivation of the owner's property might be justified in the public interest, the absence of any possibility of the owner recovering compensation meant that Regulation 7 was none the less in breach of the right of property as that right was to be understood in Community law.

In this connexion counsel for the petitioners referred in particular to the approach of the European Court of Human Rights in interpreting Article 1 of the First Protocol. In Sporrong and Lönnroth at paragraph 69, when discussing the rule contained in the first sentence of the first paragraph of the Article, the Court said:

"For the purposes of the latter provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, mutatis mutandis, the judgment of 23 July 1968 in the 'Belgian Linguistic' case. Series A no. 6, p. 32, § 5). The search for this balance is inherent in the whole of the Convention and is also reflected in the structure of Article 1."

In Lithgow v. United Kingdom Series A No. 102 (1986), in paragraph 120 of the judgment the Court confirmed that these observations were applicable also in a case of deprivation under the second sentence in the first paragraph of Article 1:

"The question remains whether the availability and amount of compensation are material considerations under the second sentence of the first paragraph of Article 1, the text of the provision being silent on the point. The Commission, with whom both the Government and the applicants agreed, read Article 1 as in general impliedly requiring the payment of compensation as a necessary condition for the taking of property of anyone within the jurisdiction of a Contracting State.

Like the Commission, the Court observes that under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle.

In this connection, the Court recalls that not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim 'in the public interest', but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This latter requirement was expressed in other terms in the above-mentioned Sporrong and Lönnroth judgment by the notion of the 'fair balance' that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (Series A no. 52, p. 26, § 69). The requisite balance will not be found if the person concerned has had to bear 'an individual and excessive burden' (ibid., p. 28 § 73). Although the Court was speaking in that judgment in the context of the general rule of peaceful enjoyment of property enunciated in the first sentence of the first paragraph, it pointed out that 'the search for this balance is ... reflected in the structure of Article 1' as a whole (ibid., p. 26, § 69).

Clearly, compensation terms are material to the assessment whether a fair balance has been struck between the various interests at stake and, notably, whether or not a disproportionate burden has been imposed on the person who has been deprived of his possessions."

The explanation by the European Court of Human Rights in this passage of the role of compensation in the protection of human rights would seem to remove the possibility of the divergence between the position under the Convention and the position at Community level which Advocate General Capotorti had previously thought that he could detect: Hauer [1979] E.C.R. at p. 3761. In any event his view was that

"at the Community level, the obligation to pay fair compensation to the expropriated individual should be recognized in accordance with the tendency widely shared by the legal orders of the Member States" (at p. 3761).

In the light of these authorities I am satisfied that the right to property is recognised as a fundamental right under Community law and that the availability of compensation is relevant to any consideration of whether the right has been respected. Moreover, the right pervades the Community legal order and (as was said in Wachauf and other cases) will fall to be taken into account by any Member State when implementing the obligations placed on it by a directive.

Does Community Law apply to the Determination of Compensation in this Case?

Counsel for the petitioners submitted that, in introducing and applying Regulation 7, the Minister and the Secretary of State were in effect implementing the obligations of the United Kingdom under the 1993 Directive. For this reason, they argued, the question of the duty of the Secretary of State to provide for compensation for owners whose fish were killed and destroyed, or the sale of which was controlled, under Regulation 7 was one which fell to be answered by reference to Community law and in particular by reference to the fundamental right to property recognised by Community law. It does indeed seem clear that, if the matter of compensation in the present case is governed by Community law, then the approach identified in the authorities to which I have referred would fall to be applied. In particular, the taking of property in the public interest without payment of compensation would be regarded as justifiable only in exceptional circumstances (Lithgow). Indeed, in his speech on behalf of the respondent, Mr. Macdonald, Q.C., really accepted that this would be the effect of the application of Community law - though he argued that the circumstances were sufficiently exceptional to justify ordering the destruction of the fish without the payment of compensation. On the other hand, if the matter of compensation is not controlled by Community law but by domestic law, then it seems equally clear that different considerations would apply, though what exactly those considerations would be it is unnecessary to determine since the petitioners' case is perilled on Community law.

The Court of Justice emphasised the importance of this dividing line between Community and national law in E.R.T. v. D.E.T. [1991] ECR I-2925 at paragraph 42 of its judgment:

"As the court has held (see the judgment in Joined Cases C-60 and C-61/84 Cinéthèque v. Fédération Nationale des Cinémas Français [1985] E.C.R. 2605, paragraph 25, and the judgment in Case C-12/86 Demirel v. Stadt Schwäbisch Gmund [1987] E.C.R. 3719, paragraph 28), it has no power to examine the compatibility with the European Convention of Human Rights of national rules which do not fall within the scope of Community law. On the other hand, where such rules do fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the European Convention on Human Rights."

The fundamental question in this case therefore appears to me to be whether the matter of compensation for fish which are killed and destroyed or whose use is controlled by virtue of Regulation 7 is governed by Community or national law.

A not dissimilar issue arose in The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte Bostock [1994] ECR I-955 which concerned the right of Mr. Bostock, a tenant of an agricultural holding, to claim compensation for a milk quota, introduced by a Community Regulation, which he surrendered when he was forced to give up his tenancy in 1984, largely on health grounds. Subsequently, the Agriculture Act 1986 made it possible for tenants to obtain compensation from the landlord for the relevant milk quota when the tenancy came to an end. That legislation did not apply to Mr. Bostock's case, but he brought proceedings against the Ministry of Agriculture claiming that, on the basis of what the Court of Justice had said in Wachauf, the Government should be required to make suitable provision for compensation to tenants in his position. The Court of Justice rejected the argument based on the right of property on the ground that the right to property safeguarded by the Community legal order did not include the right to dispose, for profit, of an advantage which does not derive from the assets or occupational activity of the person concerned (paragraph 19). But both Advocate General Gulmann and the Court dealt with the wider issue of the applicability of Community law.

The Advocate General put the matter in this way (at pages 971-972):

"32 The key question in this case is whether rules such as those adopted in the Agriculture Act 1986 are so closely connected to Community law that they 'fall within the scope of Community law'. The issue is of fundamental significance because it is determinative for the division of powers between the Court of Justice and national courts as regards the protection of basic rights and the question is a difficult one to answer. The issue lies within an area where the Court must tread carefully. Similar questions may arise in the most diverse situations and it is important that the Court develop its case-law in the light of the cases that are submitted to it.

33 A significant factor in this case is that in setting up the milk quota scheme in 1984 the Community legislature did not provide for a general duty incumbent on the Member States to protect the economic interests of tenants in connection with milk quotas.

The Commission rightly pointed out in its oral observations that the Member States have specifically been given a discretion and that the Community legislation is very largely silent on the respective interests of landlords and tenants with the result that it is left to national law to strike the balance according to each Member State's own national traditions.

There are good grounds for leaving that task to the legal systems of the Member States. I consider it neither necessary nor correct to hold in this context that the Member States must respect the fundamental rights applying in the Community legal order.

The fact that a legal problem has arisen as a result of the adoption of community rules is, in my view, not in itself sufficient to entail that the solution adopted for that problem by the national authorities must necessarily respect the fundamental rights applying in the Community legal order. The starting point is that such problems can and should be resolved within the framework of the national legal systems in accordance with the solutions which apply in the Member States to corresponding problems that have arisen on the basis of national legislation.

The most natural solution in a situation such as this is that individuals have their rights protected within the framework of the respective national legal system. There is no reason to believe that the Member States' legal systems cannot perform that task adequately. It is not insignificant in this respect that the Member States of the Community are all States that are governed by the rule of law and are obliged to respect the fundamental rights laid down in the European Convention on Human Rights."

It is apparent that the answer to "the key question" favoured by the Advocate General was to the effect that the matter of compensation was not so closely connected to Community law that it fell within the scope of Community law, but rather that the protection of the right of property in the situation created by the Community Regulation was one for the national legal systems of the Member States.

It is equally apparent that the approach of the Court was different since, as I have explained, it held that the right to dispose of a milk quota for profit was not included in "the right to property safeguarded by the Community legal order". In making this ruling in paragraph 19 the Court was presupposing, contrary to the view of the Advocate General, that the question of compensation was one which fell within the scope of Community law. This is indeed clear from the preceding paragraphs in the judgment of the Court. It discusses Wachauf, which concerned the interpretation of a Regulation, and points out (at paragraph 14) that the regulation left the competent national authorities a sufficiently wide margin of appreciation to enable them to apply the regulation in a way which did not involve depriving the lessee of the fruits of his labour and his investments in the let holding without giving him any compensation. In other words they could apply the regulation without disregarding the requirements of the protection of fundamental rights in the Community legal order. The Court continued (paragraphs 15 - 17):

"15 The judgment in Wachauf does not therefore address the question, raised by the national court in this case, of the rights to compensation which a tenant may in appropriate circumstances derive from Community law when he surrenders his lease.

16 However, the Court pointed out earlier in its judgment in Wachauf (paragraph 19) that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules and that the Member States must therefore, as far as possible, apply those rules in accordance with those requirements. In that connection the Court held in its judgment in Case C-260/89 ERT v DEP [1991] ECR I-2925, at paragraph 42, that where such national rules fall within the scope of Community law and reference is made to the Court for a preliminary ruling, it must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights whose observance the Court ensures.

17 It is therefore necessary to examine the fundamental rights relied on by Mr Bostock in order to enable the national court to decide whether the rules in question are compatible with those rights."

The discussion of the nature of the relevant right to property in paragraph 19 can therefore be seen to be part of the way in which the Court discharged its duty to provide all the criteria of interpretation which the national court requires in any case where it has to decide whether the national rules applying the Community rules are compatible with the fundamental rights safeguarded by Community law. The Court provided that guidance because, and only because, it considered that "the national rules [fell] within the scope of Community law".

If one were to apply the approach of the Court of Justice in ex parte Bostock in this case, the appropriate conclusion would appear to be that, since the provisions of the 1994 Regulations, and in particular Regulation 7, were made in implementation of the obligations imposed on the United Kingdom as a Member State by the 1993 Directive, the requirements flowing from the protection of fundamental rights in the Community legal order would be binding on the United Kingdom in making them. That being so, it would be for this court to ensure that the provisions in the Regulations were applied, so far as possible, in accordance with those requirements. In practical terms, given the concessions made by counsel for the respondent, that would mean that this court would need to consider whether there were exceptional circumstances justifying the non-payment of compensation.

None the less, the fact that the Advocate General and the Court of Justice could reach different views on this matter tends to confirm the Advocate General's observation that "the question is a difficult one to answer". He also observed that the matter could arise in the most diverse situations. It appears to me that indeed a somewhat similar issue underlay the proceedings in Flip CV and O. Verdegem NV v. Belgian State [1995] E.C.R. I - 3953, a decision of the Third Chamber of the Court of Justice presided over by Judge Gulmann who was, of course, the Advocate General in ex parte Bostock.

The plaintiffs were owners of pigs which had been slaughtered by order of the veterinary authority in Belgium under measures for the control of classical swine fever. The measures were contained in a Royal Decree which had been made to transpose into Belgian law a Community directive of 1980. The Decree provided that the veterinary inspector must order the slaughter of all pigs present in any holding where the existence of classical swine fever had been confirmed. It also provided that "within the limits of the budgetary appropriations" there was to be granted to the owners of pigs which had been slaughtered compensation corresponding to 50% of the estimated value of the slaughtered pigs which were infected or suspected of being infected and the total estimated value of pigs which were suspected of being contaminated. The plaintiffs contested the amount of the compensation paid to them in accordance with the Decree inasmuch as it did not correspond to the total value of the slaughtered animals and did not include default interest.

As well as adopting legislation and specific plans against classical swine fever, the Council took a series of specific measures against another disease affecting pigs, African swine fever. One such measure was a Council Decision of 1980 on financial aid from the Community for the eradication of African swine fever in Sardinia. Article 1 of the Decision required the Italian authorities to submit for the Commission's approval an emergency plan for the eradication of the disease, the effectiveness of which was to be ensured by the inclusion of a series of measures, including provision for "immediate and total compensation for owners whose pigs have been slaughtered under the plan".

Founding on this provision in the Council Decision of 1980 the plaintiffs argued that the Community rules on measures against classical swine fever laid down a general obligation to pay "total and immediate" compensation and that the compensation provisions in the Royal Decree required to be interpreted in the light of those Community rules. The court at Ghent referred the matter for a ruling by the Court of Justice which reformulated the question and answered it by saying that

"The applicable Community rules on control of classical swine fever must be interpreted as not requiring Member States to provide for a system of compensation for owners whose pigs have been slaughtered by order of the national authorities."

Counsel for the respondent drew attention to the fact that nowhere in the opinion of the Advocate General or in the judgment of the Court is there any mention of the fundamental principle of Community law protecting the right to property. They submitted that it would be remarkable indeed if the fundamental principle applied in the sphere of the control of classical swine fever but it was not mentioned. The fact that it was not mentioned in the judgment suggested, they argued, that the principle did not apply in that sphere and would not apply in the somewhat similar sphere of control of list II fish diseases, such as VHS.

In reply counsel for the petitioners pointed out, rightly, that in Flip the plaintiffs had been paid compensation of a fairly generous level and were arguing that the compensation fell short of the "total and immediate" compensation which, they claimed, was required by Community rules. The Court of Justice was therefore concerned merely with the supposed right to a particular level of compensation rather than with the question, which arises in this case, of whether a Member State can decide not to pay compensation at all. The Royal Decree provided for (rather generous) compensation and there was therefore no occasion for the Court to consider the fundamental right to property which might give rise to the basic right to compensation in an appropriate case. In these circumstances it was entirely understandable that the fundamental right had not been mentioned and that the argument before the Court of Justice had turned on the terms of the various directives.

Counsel for the petitioners were, of course, correct to say that the particular question before the Court related to the level of compensation rather than to whether the plaintiffs were entitled to any compensation at all. In that respect the decision is obviously distinguishable from the present case. But the significance of the case for present purposes does not lie in the actual decision about the level of compensation but in the reasoning which the Court used to justify that decision. In the view of both Advocate General Tesauro and the Court, compensation in relation to the control of classical swine fever was a matter to be determined not by Community law but by the national law of Belgium alone. The Advocate General observed at p. 921:

"First, the legislation on the control of classical swine fever merely provides, on the one hand, for measures of a veterinary nature which the Member States are required to adopt with the double aim of preventing an outbreak of the disease and avoiding its spread, and, on the other, for Community financial assistance for operations to make their territory disease free undertaken by the Member States concerned. In this last respect, it has been seen that, while Decision 80/1096/EEC includes costs incurred in compensating owners whose animals have been slaughtered or destroyed among the costs which may be eligible for Community financial aid, it is silent on the nature of such compensation and, furthermore, it does not even impose the obligation to pay compensation. In the absence of specific provisions in that respect, only the national legal provisions apply, in so far as Belgium is concerned, the abovementioned Royal Decree of 10 September 1981."

The Advocate General went on to analyse other Community acts adopted in order to safeguard and improve the level of the protection of veterinary health and in particular those for the eradication of diseases communicable to man. These revealed other disparities in relation to compensation for farmers and in relation to the characteristics of that compensation. He then concluded at p. 922:

"While the provision of compensation for farmers has indeed become a standard clause, in particular since 1989, in Community programmes for the control of animal diseases, it appears, however, to be dictated essentially by the concern to ensure the effectiveness of the action taken by means of the active collaboration of the individuals concerned. As the Commission pointed out in its observations, the abovementioned provision applies not only in relation to the rules for Community financing, but also where and in so far as it is considered a condition necessary in order to ensure the success of certain measures in the veterinary field. That being the objective, I do not believe that a right to compensation may be inferred from it for owners of animals that have been slaughtered. On the other hand, the disparate and, often, general nature of the wording used to that effect - compensation is to be variously 'swift and adequate' or 'immediate and adequate' - clearly shows that the matter continues to be governed by national law, which is also to determine whether default or statutory interest is payable."

In this passage I understand the Advocate General to be pointing out that an examination of Community measures for the eradication of diseases in animals reveals no uniform pattern as to compensation. In some cases the measure may make no provision for compensation but, in others, in order to ensure that farmers collaborate in making the action effective, the Community act may include provision for the payment of compensation, though the exact formula used for defining that compensation will vary. In other words, Community legislation may dictate to Member States the measures which they must take, including slaughter, to deal with particular diseases but - depending on its terms - it may also stop short of imposing on the Member States an obligation to pay compensation. In that situation the Community legislation controls the measures to be taken but does not deal with the matter of compensation. The matter of compensation "continues to be governed by national law" and "in the absence of specific provisions in that respect, only the national legal provisions apply".

This is likewise the approach of the Court of Justice which observes in paragraphs 23 - 25:

"23 The principle that owners whose pigs have been slaughtered under measures to control classical swine fever are to be compensated is not apparent either from the scheme or from the wording of the directives and decisions in that field.

24 By adopting Directives 80/217 and 80/1095, the Community legislature merely intended to lay down sanitary and preventive measures which the Member States are required to take in order to prevent and eliminate classical swine fever from their territory. Those measures include in particular vaccination of animals, surveillance of infected holdings, the destruction of potentially infected products, meat or animals, the disinfection of contaminated premises and the drafting and implementation of eradication plans under the Commission's supervision.

25 On the other hand, it is not apparent either from the preambles to the two directives or from their provisions that the Community legislature intended to regulate the financial aspects of implementation of those measures by the owners concerned and, specifically, to prescribe measures to compensate those owners. In particular, the directives do not contain any provision which expressly or even implicitly provides for such compensation."

Having analysed various Community measures, the Court states at paragraphs 30 and 31:

"30 In the absence of Community provisions on the matter, compensation of owners whose pigs have been slaughtered by order of the national authorities under measures to control classical swine fever falls within the competence of each Member State.

31 It follows that the applicable Community rules on control of classical swine fever must be interpreted as not requiring Member States to provide for a system of compensation for owners whose pigs have been slaughtered by order of the national authorities."

In my view these observations by the Court suggest that, in the absence of any provision in a particular Community act requiring the payment of compensation, the question of compensation for owners whose pigs had been slaughtered under national measures taken to fulfil a Community obligation remained a matter within the competence of each Member State.

The reasoning of both the Advocate General and the Court proceeds by reference not simply to measures on swine fever but more generally by reference to other Community acts concerning animal diseases. The generality of the reasoning might suggest that it would be applicable in the present context. The Lord Ordinary, on the other hand, distinguished the measures under consideration in Flip from those laid down by the 1993 Directive because the 1993 Directive went beyond being intended to lay down sanitary and preventive measures which the Member States were required to take in order to prevent and eliminate certain fish diseases from their territory.

"Article 9", he said, "applies where the disease breaks out in an approved zone or area which is already regarded as disease free, and where the disease may have been brought into the area from elsewhere or have been transferred elsewhere. For the determination of that issue the epizootic investigation is ordered. This distinction between the Community legislation with which the case of Flip was concerned and that in the present case, is perhaps most aptly shown by consideration of the different approaches between Article 9 and Article 10 each of which applies to different circumstances in relation to control measures for List II diseases. Article 10(2) makes provision for the kind of schemes with which the case of Flip was concerned, namely for farms or areas which have not previously been the subject of Community approval as disease free. In such a case it is the member state that initiates the scheme and in that event it can determine, even with the prospect of Community aid being available, whether it should make provision for compensation in order to encourage the success of the scheme."

I agree with the Lord Ordinary that certain of the Community measures with which the Court was concerned in Flip were analogous to the type of act envisaged in Article 10.2 of the 1993 Directive. But, in my view, the fact that this was the specific context within which the Court had to decide the point does not affect or detract from the principle which appears to underlie the approach of the Court in Flip. The Court appears to proceed on the view that, unless the Community measure imposed an obligation on the Member State to pay compensation, the matter of compensation was not governed by Community law but remained within the competence of the Member States. In other words, the Court does not appear to hold that, since the Royal Decree was made in fulfilment of a Community obligation to take various veterinary measures, Belgium was bound by Community law in deciding what compensation to award to the farmers affected by those measures.

Here, as the petitioners admit, the 1993 Directive makes no provision for the payment of compensation in the event of the killing and destruction of fish or in the case of the regulation of the sale of fish. On the basis of the reasoning in Flip, the proper conclusion might appear to be that, since the Directive imposes on Member States no Community obligation to pay compensation, the matter of compensation remains within the competence of each Member State. In particular it would follow that the matter of compensation for farmers in the United Kingdom remained within the competence of the United Kingdom. On that basis Community law would not regulate the matter of compensation and, in particular, the general principles of Community law, including the right of property, would have no application to it. Since the right of property enshrined in these general principles of Community law was the only basis upon which the petitioners contended that the respondent was obliged to provide for compensation and to pay it in an appropriate case, the result would be that the petitioners would not be entitled to the declarator which they seek.

 

Reference

In that situation, as I have indicated already, it appears to me that the key issue at this stage of the case is whether Community law binds a Member State in respect of any liability to pay compensation for deprivation of property resulting from the application of a domestic measure adopted in implementation of the Member State's obligation to provide control measures for list II diseases under the 1993 Directive. That is a Community law issue which is critical to the final decision of this court on the dispute and it is one which, for the reasons which I have sought to explain, I cannot at present with complete confidence resolve myself. I have a real doubt about it. In those circumstances, applying the approach of Sir Thomas Bingham M.R., as he then was, in R. v. International Stock Exchange ex parte Else [1993] Q.B. 534 at p. 545, I at present consider that this court should refer the issue for the opinion of the Court of Justice. I am confirmed in that view by noting that in ex parte Bostock (at p. 972) the Advocate General described a similar question as "difficult" and suggested that it was for the Court of Justice to develop its case law in the light of cases submitted to it.

On the other hand, I am conscious that, by the time when senior counsel came to address us, the main focus of the argument was on how the Community law principles themselves should be applied. Understandably, perhaps, there was therefore no discussion, for instance, of the judgment of Laws J., as he then was, in R. v. Minister for Agriculture, Fisheries and Food ex parte First Trading Ltd. [1997] 1 C.M.L.R. 250 or of Maurice Kay J. in the Divisional Court in R. v. Customs and Excise ex parte Lunn Poly [1998] Eu.L.R. 438. I note that Laws J. described the reasoning of the Court of Justice in ex parte Bostock as "with great respect, a little delphic". In that situation, before finally deciding whether the case should be referred, it would, I believe, be preferable to give counsel the opportunity, if so advised, to make any additional submissions on the point which I have identified.

Application of Fundamental Right to Property

If the answer to the question which I am at present minded to propose should be referred to the Court of Justice is that Community law does apply to compensation in this situation, then it appears clear that the general principles of Community law, including the right to property, also apply.

As I have explained, counsel for the respondent accepted that, in terms of those principles, it would only be in exceptional circumstances that a person could be deprived of his property without compensation, though he argued that in the present case the circumstances could indeed be regarded as exceptional. In saying this, counsel did not, of course, point to any specific circumstances relating to the present case. Nor were any such circumstances averred in the Answers for the respondent. That indeed is entirely consistent with the approach adopted by the respondent which rests on a general policy decision not to pay compensation to owners whose fish are destroyed by reason of measures taken to control fish diseases. Counsel's argument was in effect that the system of controlled zones and controlled farms was designed to help achieve an important Community objective, the completion of the internal market. That objective could be achieved only if more and more such approved zones and approved farms were established and maintained. It was therefore important that, if an outbreak of a list II disease occurred in an approved zone, Member States should seek to eradicate the disease and to regain the approved status, if possible. That being so, the court could regard the desirability of promoting this important Community objective as in itself constituting an exceptional circumstance entitling the Minister and the Secretary of State to decide that it was appropriate to require owners of an infected farm to bear the whole cost of the necessary measures.

Counsel for the petitioners vigorously challenged that approach. They pointed out that, however worthwhile, the objective pursued by the Community directives was merely an economic objective, adopted because the breeding and marketing of fish and other aquaculture animals constitute a source of income for those working in the fisheries sector. Any aquaculture animal health measures prescribed by the directives were merely designed to help achieve that economic goal. There was no suggestion, for instance, that VHS was transmissible to humans or would affect them in any way. Given that this was the purpose and nature of the system of controls and in particular of the controls in Regulation 7 of the 1994 Regulations, there was nothing in the system as a whole to justify the view that the legislation was dealing with a threat which could in itself be regarded as an exceptional circumstance justifying the owners of fish being deprived of their property without compensation. In that regard it was significant that Regulation 7 did not contain the discretion to authorise the fattening of fish which is found in Article 9.3 of the 1993 Directive. Indeed it was not even incumbent on Member States to seek to have approved status restored. The Secretary of State had simply chosen to do so for what he regarded as good national commercial interests. To deny the owners compensation in these circumstances would be to impose on them an individual and excessive burden and would be to fail to strike the necessary balance between the general interest of the community and the requirements of the protection of the owners' individual rights.

Counsel for the respondent went on to argue that, if this court had any real doubt about the application of the general principles, we should refer the matter to the Court of Justice. In my view, however, if the general principles of Community law apply, it is for this court, rather than the Court of Justice, to apply them in deciding the issue arising out of the Secretary of State's decision to apply Regulation 7 without compensating the owners affected. We cannot therefore seek a ruling from the Court on the particular dispute before us. But the judgments of the Court of Justice in ex parte Bostock and ERL, for instance, suggest that in a case such as this, where a national court seeks a preliminary ruling on the applicability of Community law, then, if the Court finds that it does apply, it will provide the criteria of interpretation needed by the national court to determine whether the national rules are compatible with the fundamental rights enshrined in Community law. In the event of the Court of Justice deciding on any reference that Community law does apply to the matter of compensation, we can accordingly expect to receive from the Court an indication of all the criteria which we need to decide how the general principles should be applied in this case. We cannot ask for more; and for that reason, in the event of a reference being made, there is no need to focus that issue in a question to the Court.

I therefore propose to your Lordships that we should put the case out By Order to give counsel the opportunity of making additional submissions, if so advised, as to whether the court should make a reference to the Court of Justice on the point identified in this opinion. It would also be helpful to discuss the steps which would have to be taken for framing any reference.

 

 

 

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord McCluskey

Lord Sutherland

 

 

 

OPINION OF LORD McCLUSKEY

 

in

 

RECLAIMING MOTION

 

in PETITION of

 

BOOKER AQUACULTURE LIMITED

Petitioners;

 

against

 

THE SECRETARY OF STATE FOR SCOTLAND

Respondent:

 

for

 

Judicial Review of (i) The Diseases of Fish (Control) Regulations 1994 and (ii) a decision letter dated 13 May 1996

 

and

 

ANSWERS FOR RESPONDENT

 

_______

 

 

Act: Macdonald, Q.C., Dunlop; Steedman Ramage, W.S.

Alt: Clarke, Q.C., Mure; R. Henderson

 

12 August 1999

 

I agree with the Opinion of your Lordship in the chair and have nothing useful to add.

 

 

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord McCluskey

Lord Sutherland

 

 

 

OPINION OF LORD SUTHERLAND

 

in

 

RECLAIMING MOTION

 

in PETITION of

 

BOOKER AQUACULTURE LIMITED

Petitioners;

 

against

 

THE SECRETARY OF STATE FOR SCOTLAND

Respondent:

 

for

 

Judicial Review of (i) The Diseases of Fish (Control) Regulations 1994 and (ii) a decision letter dated 13 May 1996

 

and

 

ANSWERS FOR RESPONDENT

 

_______

 

 

Act: Macdonald, Q.C., Dunlop; Steedman Ramage, W.S.

Alt: Clarke, Q.C., Mure; R. Henderson

 

12 August 1999

 

I also agree with the Opinion of your Lordship in the chair and have nothing useful to add.

 

 

 

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