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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Partridge Farms Ltd, R (on the application of) v Secretary of State for Environment, Food & Rural Affairs  EWCA Civ 284 (01 April 2009)
Cite as:  NPC 58,  EWCA Civ 284,  Eu LR 816
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
LORD JUSTICE STANLEY BURNTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE LAWRENCE COLLINS
| THE QUEEN
on the application of
PARTRIDGE FARMS LIMITED
|- and -
|SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Hugh Mercer QC and Mr Jeremy Brier (instructed by Clarke Willmott) for the Respondent
Hearing dates: March 16 and 17, 2009
Crown Copyright ©
Lord Justice Lawrence Collins:
"The Minister shall pay for animals slaughtered under this section compensation of such amount as may be determined in accordance with scales prescribed by order of the Minister made with the Treasury's approval."
II Partridge Farms Ltd and high value cattle
III Background to the Order
"The changes in compensation policy will, for the most part, impact on those livestock keepers who own high value animals, as they will need to pay valuers. Any change of policy in this area is likely to impact to a greater extent on the dairy sector. Generally speaking, there is a higher proportion of higher value herds in the dairy sector than in any other livestock sector, but every sector has a number of higher value breeding stock and pedigree breeds. However, it is important to bear in mind that compensation will continue to be paid at a fair rate, reflecting as closely as possible market prices, whichever disease an animal is affected by. Any rationalised approach will be fairer than the existing approaches."
"… Inevitably, when calculating a compensation payment based on average prices achieved for similar types of animal, some animals may (under the new system) be over-valued and some under-valued. Though the net effect, it is expected, will be compensation payments that more accurately reflect 'real market prices.' "
IV The judgment below
V The appeal
A The Secretary of State's arguments
B The claimant's arguments
VI Discussion and conclusions
Principle of equality and objective justification
"… the prohibition of discrimination laid down in [Article 40(3) of the EEC Treaty] is merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law.
This principle requires that similar situations shall not be treated differently unless differentiation is objectively justified."
"8 Under Article 40(3) of the EEC Treaty the common organization of the agricultural markets to be established in the context of the common agricultural policy must 'exclude any discrimination between producers or consumers within the Community'. That provision covers all measures relating to the common organization of agricultural markets, irrespective of the authority which lays them down. Consequently, it is also binding on the Member States when they are implementing the said common organization of the markets.
9 That finding is borne out by a consistent line of cases (judgments of 19 October 1977 in Joined Cases 117/76 and 16/77 Ruckdeschel & Co. and Hanse Lagerhaus Stroh & Co. v Hauptzollamt Hamburg-St. Annen  ECR 1753, and in Joined Cases 124/76 and 20/77 SA Moulins et Huileries de Pont-à-Mousson v ONIC  ECR 1795), in which the court held that the prohibition of discrimination laid down in Article 40(3) of the EEC Treaty is merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law. That principle requires that similar situations shall not be treated differently unless differentiation is objectively justified.
10 Consequently, where Community rules leave Member States to choose between various methods of implementation, the Member States must comply with the principle stated in Article 40(3). That principle applies, for instance, where several options are open to the Member States …
11 It follows that in such circumstances a Member State 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 Treaty, having regard to the specific conditions on its market and, in particular, to the structure of the agricultural activities carried out in its territory."
"… the principle of equality cannot preclude the legislator from adopting a criterion of general application - indeed that is inherent in the nature of legislation. It may affect different persons in different ways, but beyond certain limits any attempt to tailor legislation to different circumstances is likely only to lead to new claims of unequal treatment."
"30 … When the Council introduced the levy and fixed the rules for its application, it selected from the various possibilities open to it the one which seemed most appropriate for the aim pursued, that aim being to exert direct, albeit moderate, pressure on the price paid to milk producers in order to make them aware of the link between production and outlets for milk products …
32 The aim of Regulation No 1079/77, which is clearly indicated inter alia in the first two recitals in its preamble, is to solve the problem of the imbalance on the market in milk within the framework of the common organization of the market by means of a concerted effort by all Community producers in equal measure, regardless of the quality of their products and the use to which they are put, that is to say regardless of whether milk is used for direct consumption or for the production of butter, milk powder, cheese or other processed products. It is also irrelevant whether such products are to be marketed within the Common Market or exported.
33 … [I]t is wholly compatible with Article 40(3) of the Treaty, which provides that any common price policy in the framework of the market organization 'shall be based on common criteria and uniform methods of calculation', for the co-responsibility levy to be determined on the basis of the central unit of value in the common organization of the market, namely the target price, which is fixed by reference to a standard type of milk accepted as typical of community production.
34 The fact that the introduction of the co-responsibility levy under the common organization of the market may affect producers in different ways, depending upon the particular nature of their production or on local conditions, cannot be regarded as discrimination prohibited by Article 40(3) of the Treaty if the levy is determined on the basis of objective rules, formulated to meet the needs of the general common organization of the market, for all the products concerned by it."
"Infringement of the principles of non-discrimination and proportionality
53 The principle of non-discrimination and the principle of proportionality which, in this instance, is closely linked to it are general principles of Community law and, in the field of agriculture, including fisheries, are embodied in the second subparagraph of Article 34(2) EC.
63 Furthermore, the fact that one particular group is affected to a greater extent than another by a legislative measure does not necessarily mean that the measure is disproportionate or discriminatory inasmuch as it seeks a comprehensive solution to a problem of general public importance.
76 It is apparent from the foregoing considerations that the contested measures were not manifestly inappropriate."
Application of the principles
"In this case the different situations are undertakings breeding higher quality animals and undertakings breeding lower quality animals. All such producers receive the same compensation for animals slaughtered on grounds of TB. No difference is made between the animals on grounds of quality and a range of other relevant factors."
Lord Justice Keene:
Lord Justice Ward: