R v The Minister for Agriculture, Fisheries and Food and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POPPLEWELL |
| Judgment Date | 23 May 1995 |
| Judgment citation (vLex) | [1995] EWHC J0523-11 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 1995 |
| Docket Number | CO 1132-92 |
[1995] EWHC J0523-11
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Crown Court List)
Before: Mr Justice Popplewell
CO 1132-92
MR D VAUGHAN QC and MR M CLOUGH (Instructed by Allen & Overy Solicitors, 9 Cheapside, London EC2) appeared on behalf of the Applicants.
MR P ROTH (Instructed by (The Solicitors, Ministry of Agriculture, Fisheries and Food, Whitehall, London SW1) appeared on behalf of the Respondents.
MR R MILLETT (Instructed by Theodore Goddard, 150 Aldersgate Street, London EC1A 4EJ) appeared on behalf of the Interveners.
(As approved)
Tuesday, 23rd May 1995.
I now deal with the question of potatoes. The declaration which the European Court made was that:
"The Agreement of 19 December 1972 establishing an Association between the European Economic Community and the Republic of Cyprus, annexed to Council Regulation (EEC) No 1246/73 of 14 May 1973, and Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products must be interpreted as precluding acceptance by the national authorities of a Member State, when citrus fruit and potatoes are imported from the part of Cyprus to the north of the United Nations Buffer Zone, of movement and phytosanitary Certificates issued by authorities other than the competent authorities of the Republic of Cyprus."
The declaration which was agreed as a result of my judgment reads as follows:
"It is declared that the United Kingdom may not accept in relation to the import of citrus fruits and potatoes from the part of Cyprus to the North of the United Nations Buffer Zone:
(1) EUR 1 movements certificates; and
(2) phytosanitary certificates issued under Council Directive 77/93/EEC (as amended), other than those issued by the competent authorities of the Republic of Cyprus."
It is the Applicant's case that there are present in some ports in the United Kingdom, perhaps in Northern Ireland, some ships carrying potatoes with phytosanitary certificates other than those issued by the competent authorities in the Republic of Cyprus and that some more are on the way, and they seek a declaration on an injuction preventing MAFF from allowing them entry into the country.
The position is this: that although no potatoes have been entering this country recently, the Turkish certificate which govern the citrus products, presently govern the potatoes. In the light of my judgment, subject to some point that Mr Vaughan has not developed but has reserved, it appears that they would have been entitled, everything being the same, to have the potatoes imported subject to that certificate.
However, Council Directive 77/93/EEC was amended pursuant to a Commission Directive 95/4/EEC of 21st February 1995. The reason for that was that some virus, bacteria or organism harmful to plants, for the purpose of this judgment, (Smith) Smith, has been found on potato tubers imported from Egypt and Turkey. It is a disease.
A certificate from the place of origin, is needed to show that the potatoes are coming from an area where (Smith) Smith is not known to occur. It can only come with a certificate from the place of origin. The effect of the amendment is that a certificate from Turkey is, to put it quite simply, not a valid certificate in health terms.
That Directive was dated 21st February 1995. Article 2 says:
"Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive on 1 April 1995. They shall forthwith inform the Commission thereof."
I accept that the Republic of Cyprus had not issued a certificate so that the certificate which presently accompanies these potatoes is in contravention of the Commission Directive.
It is contended, on behalf of MAFF, that the amended Directive is not yet part of United Kingdom law. It is accepted, that in due course the necessary procedure will take place to amend the Plant Health (Great Britain) Order 1993. It will require, I believe, an Order of Council. It needs to be signed by three ministers and Mr Roth tells me that, without being able to give a firm undertaking, it may well be that it will be in force by Friday.
The Applicant's contention is twofold: firstly, in the light of the European judgment and my judgment, these potatoes cannot be admitted without a certificate from the Republic of Cyprus. They do not have a certificate from the Republic of Cyprus. In the case of the citrus products it was contended and accepted by me that a certificate from the Turkish authorities was a sufficient certificate to enable the citrus products to be accepted.
Mr Vaughan submits that there is no valid certificate at the moment because the Turkish Certificate is invalid according to the Directive. There is no certificate from ROC. He says that it matters not whether the Directive has been incorporated into United Kingdom law or not because the effect of the European judgment and my judgment is that
Article 12(1)(b) requires a certificate under the Directive. It requires, he submits, a certificate from ROC. It does not have one. An ineffectual Turkish certificate is not sufficient.
Secondly, he says, in any event, the failure by the United Kingdom to implement the Directive gives his clients a right to bring these proceedings. He drew my attention to a number of authorities, of which it is only necessary to mention their names, Ratti, Becker and Marshall. He submits that provided the terms are unconditional and precise he is entitled to rely on the Directive against the national government even though they have not implemented it.
Mr Roth puts forward two contrary arguments. He says that this is a new point. It is the subject, effectively, of separate proceedings. It does not arise out of my judgment or the judgment of the European Court. He takes no point on that, save to say therefore the Applicants do not have sufficient interest in bringing these proceedings, because there are only going to be a handful of shipments in the period leading up to the end of the week. Although it is open to an individual to bring proceedings against the national government for failure to implement a Directive, that individual has to be somebody on whom rights are bestowed. It cannot be enforced by a third party who is not enforcing rights under the Directive: the only rights that are being sought in this case by the Applicants are not direct rights.
Secondly, he submits that it is clear from the authorities, to which I will refer in a moment, that it is not enough that you have some interest in the result of the failure of a national government to implement a Directive. You have to show that you have suffered some loss and it has to be a direct loss. I find the most convenient resume of the law, in the decision of Mr Justice McCullough in Twyford Parish Council and others v The Secretary of State for the Environment, where having dealt with the argument, he found, as a matter of fact, that the submission of the Applicant on the Directive fails, but nevertheless he set out the law. Having set out what the European Court of Justice said in Marshall, he said this:
"I have no doubt the Applicants were amongst those whom the Directive was intended to benefit and that its provisions were unconditional and sufficiently precise. But the question arises as to whether this alone would entitle them to rely on the failure to implement the Directive within the prescribed time."
He then observed, in the three cases to which his attention had been drawn, that they had a direct interest, in that the individuals in question had suffered: Mrs Becker,
Miss Marshall and Mrs Dik.
Mr Justice McCullough finished by saying:
"The position as I see it is, therefore, as follows. In BECKER the Court said that an individual who has suffered from failure to implement a directive may rely upon the directive (i) against others than the State, and (ii) against the State. In the opinion of Sir Gordon Slynn in MARSHALL (ii) was right, but (i) was wrong. The Court in MARSHALL did not disagree. And that is the law.
I therefore conclude that there is no authority for the view advanced by Mr Mole, that if the terms of a directive, which should have been implemented but had not, were breached, an individual who had not thereby suffered could enforce it against the defaulting State."
I hope that accurately summarised the law.
It seems to me, that Mr Vaughan's first argument is well-founded and it goes like this: the European Court and I decided that for the potatoes coming into this country from Cyprus, pursuant to the Directive, it was necessary to have a certificate from the Republic of Cyprus. These potatoes do not have a certificate from the Republic of Cyprus; they have a certificate which is contrary to the Directive.
It matters not, in my judgment, in that respect, that the United Kingdom has not implemented the Directive. The whole argument of the European Court, in my judgment, was concerned with the Directive, as indeed was the argument in relation to citrus products, which was also concerned with the Directive. The amendment to the Directive means, in my judgment, that there is no argument which MAFF can properly put forward suggesting that the judgment of the European Court and this Court cannot be complied with by relying on a Turkish...
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