Booker Aquacultur Ltd (C-20/00) and Hydro Seafood GSP Ltd (C-64/00) v The Scottish Ministers.
Date: 2003-07-10
65.  In that regard, according to settled case-law, fundamental rights form an integral part of the general principles of law, whose observance the Court ensures.  For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, to that effect, Case 44/79   Hauer   [1979] ECR 3727, paragraph 15).  The ECHR has special significance in that respect (see, among others, Case C-274/99 P   Connolly   v   Commission   [2001] ECR I-1611, paragraph 37, and Case C-94/00   Roquette Frères   [2002] ECR I-9011, paragraph 25).
66.  The principles established by that case-law have been reaffirmed in the preamble to the Single European Act and in Article F(2) of the Treaty on European Union (Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 79).  They are now set out in Article 6(2) EU pursuant to which the Union   "shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms ... and as they result from the constitutional traditions common to the Member States, as general principles of Community law"  .
67.  The right to property is one of the fundamental rights protected by the Court (Hauer  , cited above, paragraph 17).
68.  However, fundamental rights are not absolute rights but must be considered in relation to their social function.  Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organisation of the markets, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights (Case 5/88   Wachauf   [1989] ECR 2609, paragraph 18; Case C-177/90   Kühn   [1992] ECR I-35, paragraph 16, and Case C-22/94   The Irish Farmers' Association and Others   [1997] ECR I-1809, paragraph 27).
78.  Directive 93/53 therefore seeks to contribute to the completion of the internal market in aquaculture animals and products and forms part of a regime intended to introduce minimum Community measures for the control of certain fish diseases. Accordingly, the measures which that directive imposes are in conformity with objectives of general interest pursued by the Community.
79.  As to whether, taking into account the objective sought and in the absence of compensation, the restrictions on the right to property resulting from those measures constitute a disproportionate and intolerable interference impairing the very substance of the right to property, it must be observed that those measures are urgent and are intended to guarantee that effective action is implemented as soon as the presence of a disease is confirmed and to eliminate any risk of the spread or survival of the pathogen.
80.  Further, the measures referred to do not deprive farm owners of the use of their fish farms, but enable them to continue to carry on their activities there.
81.  In effect, the immediate destruction and slaughter of all the fish enable owners to restock the affected farms as soon as possible.
82.  Those measures therefore enable the resumption of the transportation and placing on the market in the Community of species of live fish susceptible to List I and II diseases, with the result that all interested parties, including fish farm owners, may benefit as a result.
83.  Finally, as Booker itself acknowledged, the business which it carries on as an owner of a fish farm carries commercial risks.  As the Scottish Ministers, the United Kingdom and Netherlands Governments and the Commission correctly maintained, the petitioners in the main proceedings can expect, as farmers, that a fish disease may break out at any moment and cause them loss.  Such risk is inherent in the business of raising and selling livestock and is the consequence of a natural occurrence, so far as both List I and II diseases are concerned.
84.  As to the extent of any loss, by reason of their condition, fish which show clinical signs of disease have no marketable value.  So far as concerns fish which have reached a commercial size and could have been marketed or processed for human consumption since they were not showing, when slaughtered, any clinical sign of disease, any loss eventually suffered by farmers by reason of the immediate slaughter of that kind of fish arises from the fact that they have been unable to choose the most advantageous time for their sale.  In fact, because of the risk of their presenting clinical signs of disease in future, it is impossible to determine a more advantageous time for their sale.  So far as all other types of fish are concerned, it is not possible to establish whether they have any marketable value either, because of the risk that in the future they will develop clinical signs of disease.
85.  Admittedly, the Community legislature may consider, in the context of its broad discretion in the field of agricultural policy (see Case C-315/93   Flip and Verdegem   [1995] ECR I-913, paragraph 26), that full or partial compensation is appropriate for owners of farms on which animals have been destroyed and slaughtered. Nonetheless, the existence, in Community law, of a general principle requiring compensation to be paid in all circumstances cannot be inferred from that fact.
86.  It follows from all the preceding considerations that the minimum measures of immediate destruction and slaughter laid down by Directive 93/53 in order to control List I diseases do not constitute, in the absence of compensation for affected owners, a disproportionate and intolerable interference impairing the very substance of the right to property.
88.  As regards the application of Directive 93/53 by the Member States, it is settled case-law (see, in particular,   Wachauf  , cited above, paragraph 19, and Case C-2/92   Bostock   [1994] ECR I-955, paragraph 16), 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.  Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements.