The Queen, on the application of Mark Horvath v Secretary of State for Environment, Food and Rural Affairs.
Date: 2009-07-16
25. As a preliminary point, it must be stated that, according to the very wording of Article 5(1) of Regulation No 1782/2003, it is the Member States which are to ensure that all agricultural land is maintained in good agricultural and environmental condition. To that end, they are to define, at national or regional level, minimum requirements ‘on the basis of the framework set up in Annex IV’ of that regulation, taking into account the specific characteristics of the areas concerned.
26. While the Member States are therefore bound, when defining those requirements, to comply with that annex, it nevertheless leaves them, by using general concepts and terms, a certain discretion with regard to the actual determination of those requirements.
27. A farmer must maintain any stile, gate or similar structure, other than a structure to which section 146(5) of the Highways Act 1980 applies, across a visible footpath or bridleway in a safe condition, and to the standard of repair required to prevent unreasonable interference with the rights of persons using the footpath or bridleway.
29. In paragraphs 26, 27 and 28 of this Schedule –
“bridleway”, “carriageway”, “field-edge path”, “footpath” and “made-up carriageway” have the meanings given to them in section 329(1) of the Highways Act 198 0; “highway” has the meaning given to it in section 328 of the Highways Act 1980; and “visible” means visible as a route to a person with normal eyesight walking or riding along it.’
16. The rules defining GAEC standards adopted by the devolved administrations of Scotland, Wales and Northern Ireland do not lay down requirements equivalent to those stated in the provisions at issue in the main proceedings.
The dispute in the main proceedings and the questions referred for a preliminary ruling
17. According to the order for reference, Mr Horvath, a farmer in England, has SPS payment entitlements. There are public rights of way over his land such as those referred to in the provisions at issue in the main proceedings.
18. Mr Horvath brought an action for judicial review of those provisions before the referring court. He claims, in particular, first, that the Secretary of State did not have the right to include the provisions relating to public rights of way among the minimum requirements for GAEC, the failure to comply with which may lead, under Article 6 of Regulation No 1782/2003, to a reduction of SPS payments. Second, he submits that the inclusion of such provisions in the English rules, when there are no such requirements in the rules adopted for Scotland, Wales and Northern Ireland, amounts to discrimination which renders the provisions at issue in the main proceedings unlawful.
19. The High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), decided to stay the proceedings and to refer to the Court of Justice two questions concerning those two issues in the proceedings pending before it. Concerning the second issue, the Secretary of State appealed to the Court of Appeal (England and Wales) (Civil Division), which dismissed the appeal. The High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), then submitted the following questions to the Court of Justice for a preliminary ruling:
‘Where a Member State has provided for a system of devolved government, in relation to which powers are retained to the central State authorities to act for the whole territory of the Member State to ensure compliance with that Member State’s obligations under Community law, in relation to [Regulation No 1782/2003]:
(1) Can a Member State include requirements relating to the maintenance of visible public rights of way in its standards of [GAEC] under Article 5 of and Annex IV to [Regulation No 1782/2003]?
(2) Where a Member State’s internal constitutional arrangements provide that different devolved administrations shall have legislative competence in relation to different constituent parts of that Member State, can it give rise to impermissible discrimination for constituent parts to have different standards of [GAEC] under Article 5 of and Annex IV to [Regulation No 1782/2003]?’
Questions referred for a preliminary ruling
The first question
20. By its first question, the referring court asks, essentially, whether a Member State may include, among the GAEC standards referred to in Article 5 of and Annex IV to Regulation No 1782/2003, requirements relating to the maintenance of visible public rights of way.
Observations submitted to the Court
21. The applicant in the main proceedings proposes that that question be answered in the negative. He submits that the reference, in the first recital of the preamble to Regulation No 1782/2003, to common conditions for direct payments under the income support schemes in the framework of the common agricultural policy means that a basic set of rules is required in this area, with the objective of incorporating the basic standards for, inter alia, GAEC, which must be in principle the same for all farmers across the Community. The GAEC minimum requirements which must be fulfilled in order to receive direct annual payments – the requirements referred to in Article 5 of that regulation – are limited to what is strictly required and the Member States may not legitimately impose supplementary conditions on one or more parties on their territory. The provisions at issue in the main proceedings cannot be considered as minimum requirements because they impose significant supplementary burdens on farmers.
22. According to Mr Horvath, even assuming that the provisions at issue in the main proceedings can be regarded as laying down environmental conditions, they are not GAEC requirements. Since Regulation No 1782/2003 has as its legal basis articles of the EC Treaty concerning agriculture, the environmental component of GAEC must be understood not as an autonomous provision laying down purely environmental standards, but on the contrary as providing only standards which are relevant in the agricultural sector. According to Article 4(1) of the regulation, only the Community institutions may establish the rules on the environmental requirements linked to the SPS entitlements which are contained in Annex III to the regulation. He claims, in addition, that the provisions at issue in the main proceedings are agri-environment measures which are applied above the reference level of good agricultural practices and are therefore excluded from GAEC under the last sentence of Article 5(1) of that regulation.
23. Finally, he submits that rights of way, such as those referred to in the provisions at issue in the main proceedings, cannot be regarded as landscape features within the meaning of Annex IV to Regulation No 1782/2003 since they lack substance and permanence owing to the fact that, while they must be reinstated as required, they may nevertheless be lawfully destroyed by the farmer at the time of each crop cycle. In addition, the imposition of such rights of way does not help avoid deterioration of habitats within the meaning of that annex.
24. The United Kingdom Government and the Commission of the European Communities submit that the rights of way are capable of constituting landscape features and that their maintenance may, therefore, amount to one of the GAEC minimum requirements referred to in Article 5 of Regulation No 1782/2003.
Answer of the Court
25. As a preliminary point, it must be stated that, according to the very wording of Article 5(1) of Regulation No 1782/2003, it is the Member States which are to ensure that all agricultural land is maintained in good agricultural and environmental condition. To that end, they are to define, at national or regional level, minimum requirements ‘on the basis of the framework set up in Annex IV’ of that regulation, taking into account the specific characteristics of the areas concerned.
26. While the Member States are therefore bound, when defining those requirements, to comply with that annex, it nevertheless leaves them, by using general concepts and terms, a certain discretion with regard to the actual determination of those requirements.
27. Moreover, it is apparent from the very wording of the phrase ‘good agriculture and environmental condition’, that the Member States may adopt GAEC requirements for environmental purposes.
28. That finding is not invalidated by the fact that the legal basis for Regulation No 1782/2003 includes Articles 36 EC and 37 EC, which fall under Title II (‘Agriculture’) of Part Three of the Treaty, and not the articles contained in Title XIX (‘Environment’) of that part of the Treaty.
29. Since requirements relating to environmental protection, one of the essential objectives of the Community, must, according to Article 6 EC, ‘be integrated into the definition and implementation of … Community policies and activities’, such protection must be regarded as an objective which also forms part of the common agricultural policy. The Community legislature may therefore, on the basis of Articles 36 EC and 37 EC, decide to promote environmental protection (see, by analogy, Case C-440/05 Commission  v Council  [2007] ECR I‑9097, paragraph 60). Measures intended to achieve such protection, adopted under a Community act having Articles 36 EC and 37 EC as a legal basis, are therefore not restricted to those pursuing agricultural objectives.
34. Since the concept of ‘landscape features’ is not defined in Regulation No 1782/2003, it must be interpreted, as the Advocate General does in point 62 of her Opinion, taking into account its usual meaning and the context in which it is generally used.
35. Also, it is clear from settled case-law that the need for a uniform interpretation of the provisions of Community law means that, in cases of doubt, the text of a provision should not be considered in isolation in one of its versions, but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (Case C-321/96 Mecklenburg  [1998] ECR I‑3809, paragraph 29, and Case C-311/06 Consiglio Nazionale degli Ingegneri  [2009] ECR I‑0000, paragraph 53). The expression ‘ particularités topographiques ’ in the French version of Regulation No 1782/2003 must therefore be compared, for example, with the expression ‘landscape features’ in the English version of that regulation.
37. That is all the more so since a restrictive interpretation of the concept of ‘landscape features’ – which, in particular, would exclude features resulting from human intervention – would be inconsistent with the discretion which Member States enjoy when defining the GAEC minimum requirements.
41. First, landscape features are physical elements of the environment. The requirements relating to the retention of those features must contribute to their preservation as such.
49. It should be recalled that, when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law, the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State (Joined Cases 51/71 to 54/71 International Fruit Company and Others  [1971] ECR 1107, paragraph 4).
50. Thus, it is settled case-law that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Case C-156/91 Hansa Fleisch Ernst Mundt  [1992] ECR I‑5567, paragraph 23).
51. The Court has, in addition, held that, where a regulation empowers a Member State to take implementing measures, the detailed rules for the exercise of that power are governed by the public law of the Member State in question (see Case 230/78 Eridania-Zuccherifici nazionali and Società italiana per l’industria degli zuccheri  [1979] ECR 2749, paragraph 34, and Case C-313/99 Mulligan and Others  [2002] ECR I‑5719, paragraph 48).
55. In that regard, according to settled case-law, the prohibition on discrimination is not concerned with any disparities in treatment which may result, between the Member States, from divergences existing between the legislation of the various Member States so long as that legislation affects equally all persons subject to it (see, to that effect, Joined Cases 185/78 to 204/78 Van Dam and Others [1979] ECR 2345, paragraph 10; Case C-177/94 Perfilli [1996] ECR I‑161, paragraph 17; and Case C-403/03 Schempp [2005] ECR I-6421, paragraph 34).
56. With regard to the last condition referred to in the previous paragraph, it must be pointed out that, in Joined Cases 201/85 and 202/85 Klensch and Others [1986] ECR 3477, relied on by the applican t in the main proceedings, at issue was indeed discrimination between producers of a Member State resulting from a measure adopted by that Member State implementing a Community obligation concerning them. It was in that context that the Court, in paragraph 11 of that judgment, held that, where there is a choice between a number of ways of implementing the Community legislation in question, the Member States may not choose an option whose implementation in its territory would be liable to create, directly or indirectly, discrimination between the producers concerned within the meaning of Article 40(3) of the EEC Treaty (now Article 34(2) EC).