Booker Aquaculture Ltd v Secretary of State for Scotland (C20/00); Hydro Seafood GSP Ltd v Scottish Ministers (C64/00)
| Jurisdiction | Scotland |
| Judgment Date | 12 August 1999 |
| Docket Number | No 2 |
| Date | 12 August 1999 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
European lawEEC Directive on control of fish diseasesRight to compensationStatutory instrument implementing directiveNeither directive nor statutory instrument making provision for compensationSecretary of State requiring destruction of diseased fish under statutory instrument powers but rejecting farm owner's claim for compensationWhether right to property recognised as fundamental right in EC lawWhether right to compensation governed by EC law or national lawWhether reference to European Court of Justice for preliminary ruling appropriateEEC Council Directive 53/93, art 9Diseases of Fish (Control) Regulations 1994 (1994 SI No 1447), reg 71
The Diseases of Fish (Control) Regulations 1994 were made by the Minister of Agriculture, Fisheries and Food and the Secretary of State acting jointly under sec2(2) of the European Communities Act 1972 for the purpose of implementing EEC Council Directive 53/93 of 24 June 1993. Regulation 7 of the 1994 Regulations provides, inter alia, that if on either an approved fish farm or a farm in an approved zone, fish are confirmed to be infected with a listed disease, the Minister shall, by notice in writing, require the immediate removal of all fish, the draining, cleaning and disinfection of all pools and the destruction of all eggs, gametes, dead fish and fish showing clinical signs of disease under the supervision of the Minister and 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. Neither the Council Directive nor the 1994 Regulations made any provision for the payment of compensation in respect of the destruction of the diseased fish.
In September 1994 the Secretary of State served a notice under reg 7 of the 1994 Regulations on the owners of a fish farm in order to require them, inter alia, to destroy all eggs, gametes, dead fish and fish which in the opinion of an inspector showed clinical signs of viral haemorrhagic septicaemia, and to kill and destroy their carcasses, with the exception of fish of commercial size which could be kept for slaughter and processing or marketing if they showed no clinical signs of the disease. In May 1996 the Secretary of State rejected the farm owner's claim for compensation and in January 1997 the farm owner's assignees sought judicial review of the 1994 Regulations and the Secretary of State's decision to refuse payment of compensation. The Lord Ordinary pronounced a declarator that the Secretary of State had acted illegally by failing to provide either by legislative or administrative means for payment of compensation where slaughter orders were made under reg 7 or the 1994 Regulations. The Secretary of State reclaimed and before the Inner House a question arose as to whether reg 7 was in breach of the right to property as understood in EC law because of the absence of the possibility or recovering compensation.
Held (1) that the right to property was recognised as a fundamental right under EC law and the availability of compensation was relevant to any consideration of whether the right had been respected when Community rules were implemented by member states; (2) that the fundamental question was whether the matter of compensation for fish which were killed and destroyed or whose use was controlled by virtue of reg 7, was governed by EC law or national law; and (3) (after a By Order hearing on 1 November 1999) that that fundamental question
was an EC law issue which was both critical to the final decision of the case and incapable of resolution by the court with complete confidence, and should therefore be referred to the Court of Justice for a preliminary ruling; and cause put out by order to allow adjustment of a draft referenceBooker Aquaculture Limited presented a petition under the judicial review procedure in the Court of Session to obtain review of the legality of the Diseases of Fish (Control) Regulation 1994 and a decision of the Secretary of State for Scotland contained in a letter dated 13 May 1996 in which he rejected the petitioners' claim for compensation in respect of the destruction of diseased fish following the making of an order to that effect given by the Secretary of State on 15 September 1994 in terms of reg 7 of the Diseases of Fish (Control) Regulations 1994. The Secretary of State was called in the petition as respondent and lodged answers.
The petition and answers called before the Lord Ordinary (Lord Cameron of Lochbroom) for a first hearing.
At advising, on 28 May 1998, the Lord Ordinary pronounced a declarator that the Secretary of State had acted illegally by failing to provide either by legislative or administrative means for payment of any compensation when slaughter orders were made under reg 7 of the Diseases of Fish (Control) Regulations 1994.
The respondent reclaimed.
Cases referred to:
ERT v DEP (Case C260/89) [1991] ECR I2925
Flip CV and O Verdegem NV v Belgian State (Case C315/93) [1995] ECR I913
Hauer v Land Rheinland-Pfalz (Case 44/79)[1979] ECR 3272
Lithgow v United KingdomHRC Series A No 102 (1986) 8 EHRR 329
Nold KG v Commission (Case 473) [1974] ECR 491
Queen (The) v Ministry of Agriculture, Fisheries and Food, ex parte Bostock (Case C2/92)[1994] ECR I955
R v Customs and Excise, ex parte Lunn Poly[1991] 1 CMLR 1357
R v International Stock Exchange, ex parte Else [1993] QB 534
R v Minister for Agriculture, Fisheries and Food,ex parte First Trading Ltd [1997] 1 CMLR 250
Sporrong and Lnnroth v SwedenHRC Series A No 52 (1982) 5 EHRR 35
Wachauf v Bundesamt fr Ernhrung und Forstwirtschaft (Case5/88) [1989] ECR 2609
The reclaiming motion called before the First Division, comprising the Lord President (Rodger), Lord McCluskey and Lord Sutherland for a hearing on the summar roll.
At advising, on 12 August
LORD PRESIDENT (Rodger)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 reg 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 reg 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 reg 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 reg 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 sec 2(2) of the European Communities Act 1972 for the purpose of implementing Council Directive 93/53/EEC of 24 June...
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