Hydro Seafood Gsp Limited V. The Scottish Ministers For Judicial Review Of The Making Of The Diseases Of Fish (control) Regulations 1994 And Answers For Respondents
| Jurisdiction | Scotland |
| Judge | Lord Hamilton |
| Date | 07 February 2000 |
| Docket Number | P11/14G |
| Court | Court of Session |
| Published date | 07 February 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| P11/14G/1999
| OPINION OF LORD HAMILTON in the Petition HYDRO SEAFOOD GSP LIMITED Petitioners; against THE SCOTTISH MINISTERS Respondents; for Judicial Review of the making of the Diseases of Fish (Control) Regulations 1994 and Answers for Respondents ________________ |
Petitioners: Davidson Q.C., Creally; McClure Naismith
Respondents: McCreadie; R. Henderson
7 February 2000
[1]In this petition for judicial review, which was presented in March 1999, the petitioners seek certain remedies relative to the making of the Diseases of Fish (Control) Regulations 1994 ([1994] S.I. 1447). The initial respondent was the Secretary of State for Scotland but, since the coming into force of the Scotland Act 1998, the Scottish Ministers have been substituted in his place.
[2]These Regulations ("the 1994 Regulations") were made jointly by the Minister of Agriculture, Fisheries and Food and the Secretary of State purportedly in exercise of the powers conferred on them by Section 2(2) of the European Communities Act 1972; they bore to implement Council Directive 93/53/EEC ("the 1993 Directive").
[3]The petitioners conduct the business of salmon farming from a number of sites in Scotland. In 1998 those sites included several farms in marine waters in the West of Scotland. On various dates in the summer of 1998 the Secretary of State served on the petitioners notices under Regulation 5 of the 1994 Regulations relative to fish stocks held by them at several farms. The notices were in respect of stocks of fish suffering from infectious salmon anaemia ("ISA"). Those notices required the destruction and disposal by prescribed methods of fish showing, in the opinion of an inspector, clinical signs of the disease. Fish of a commercial size might be slaughtered for marketing or processing for human consumption, provided that there were satisfied certain strict requirements, including that they showed, in the opinion of an inspector, no clinical signs of disease. Further requirements were made by the notices. The petitioners complied with those notices.
[4]The petitioners claim that, as a result of their compliance, they have sustained substantial financial losses. They applied to the Secretary of State for compensation but he responded that no compensation would be paid. That position is maintained by the present respondents.
[5]The 1993 Directive introduced minimum Community measures for the control of certain fish diseases. It required that Member States bring into force before 1 July 1994 the laws, regulations and administrative provisions necessary to comply with it. The 1993 Directive classified fish disease by reference to two lists (list I and list II) referred to in Annex A to Directive 91/67/EEC ("the 1991 Directive"). The 1991 Directive was amended by Directive 93/54/EEC which replaced Annex A to the 1991 Directive with a new Annex A, again containing a list I and a list II. ISA appeared as the only disease on list I (as replaced), Atlantic salmon being identified as a susceptible species. List II (as replaced) included viral haemorraghic septicaemia ("VHS"), turbot being identified as one of several susceptible species. The essential difference between the two classes of disease is that ISA, which appears in list I, is exotic to the Community and VHS and the other diseases in list II are endemic to it. That classification is reflected in the 1994 Regulations which by Schedule 3 classifies diseases into two Parts, Part I and Part II. ISA is the only disease appearing in Part 1. VHS is one of two diseases appearing in Part II. Regulations 4 and 5 prescribe control measures relative to Part I disease. Regulations 6, 7 and 8 prescribe control measures relative to Part II disease.
[6]In 1994 there was an outbreak of VHS among turbot being farmed at a site on the Isle of Gigha. Notices served on the operators by the Secretary of State under the 1994 Regulations required in some cases the destruction and in others the slaughter of fish. These notices were complied with by the operators who later applied to the Secretary of State for compensation for their losses. That application was refused. The operators assigned their claim to Booker Aquaculture Limited which in January 1997 presented to this court a petition for judicial review. The Secretary of State lodged answers to that petition. In May 1998 the Lord Ordinary pronounced an order in favour of the petitioners. The Secretary of State reclaimed. The reclaiming motion was heard by the First Division at about the beginning of July 1999 and advised on 12 August 1999. It is reported as Booker Aquaculture Limited v Secretary of State for Scotland 2000 S.C. 9. The First Division ordered that the case be put out By Order with a view to hearing submissions from parties as to whether the court should make a reference to the Court of Justice of the European Communities on the point identified in the Lord President's Opinion. By the time the case was heard By Order (on 1 November 1999) the Scottish Ministers had been substituted for the Secretary of State as respondents. Following discussion on that date the First Division was satisfied that a reference should be made to the Court of Justice. The case was further continued for settlement of the terms of the reference. On 19 January 2000 the First Division referred the case to the Court of Justice under reference to a Request for a Preliminary Ruling in terms of Article 234 of the Treaty of Rome.
[7]In paragraph 12 of that Request it is stated inter alia:
"... after the appeal hearing, this court [the First Division] ruled on 12 August 1999 inter alia as follows:-
(a) The right to property is recognised as a fundamental right under Community Law, and the availability of compensation is relevant to any consideration of whether that right has been respected (per the Lord President, at page 21).
(b) The right to property pervades the Community's legal order, and falls to be taken into account by a Member State when implementing the obligations placed upon it by a Directive (per the Lord President, at page 21).
(c) In the event that Community law were to apply to the circumstances of the present case, then the general principles of Community law would also apply and it would be for the Court of Session to apply those general principles in determining whether United Kingdom rules are compatible with the fundamental rights enshrined in Community law (per the Lord President, at page 39).
(d) The Notice was made under United Kingdom domestic regulations which were in implement of Community obligations and in the exercise of powers emanating from Council Directive 93/53/EEC (per the Lord President, at page 9).
However, this court considers that, having regard to the observations of Advocate-General Gulmann in the case of Bostock and the Court of Justice in the case of Flip ..., a real question remains as to whether Community law obliges Member States, when carrying out those obligations and exercising those powers in a way which in the result affects the property of persons such as the Petitioners as occurred in this case, to pay compensation to such persons in respect of the deprivation of, or loss of control over, the property concerned (per the Lord President, at page 36). In light of these conclusions, this court requests a preliminary ruling on this issue under Article 234 (formerly Article 177) of the Treaty of Rome. Both parties are content that the court should make this request".
The full citation of the case of Bostock referred to above is The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock (case C-2/92) [1994] E.C.R. I-955 and that of Flip is Flip C.V. and O. Verdegem NV v Belgian State (case C-315/93) [1995] E.C.R. I-913.
[8]The remedies sought by the present petitioners from this court are set out in Statement 3 of the petition. They are in the following terms:
"3.1 Declarator that, in respect that the 1994 Regulations make no provision for compensation of persons the destruction of whose property is ordered thereunder, in making the 1994 Regulations the respondent was bound to introduce a scheme for compensation.
3.2 Declarator that the petitioners are entitled to compensation in respect of the losses suffered by them in complying with the notices issued by the respondent in terms of the1994 Regulations requiring destruction of fish stocks owned by the petitioners.
3.3 Declarator that, in making the 1994 Regulations, the respondent was acting ultra vires et separatim irrationally et separatim illegally.
3.4 Reduction of the 1994 Regulations et separatim Regulation 5 of the 1994 Regulations et separatim the notices served by the respondent on the petitioners in terms of the 1994 Regulations hereafter referred to.
3.5 Payment to them by the respondent of the sum of FOURTEEN MILLION POUNDS STERLING".
[9]In Statement 11 (as amended) the petitioners challenge the making of the 1994 Regulations and the notices given to them thereunder on the following grounds:
"11.1 The Law of the European Union recognises the right to property as a fundamental right. In enacting the Directive 93/53/EEC ("the 1993...
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