C-20/00

BOOKER AQUACULTURE AND HYDRO SEAFOOD

OPINION OF ADVOCATE GENERAL MISCHO delivered on 20 September 2001 1

1. The Court of Session (Scotland), in minimum Community measures for the Edinburgh (United Kingdom), asks the control of certain fish diseases, 7amended Court, in essence, whether the right of by Directive 2000/27/EC. 8 property, as recognised by Community law, requires that compensation be paid to farmers whose fish have had to be destroyed under measures imposed by a Council directive for the control of dis- eases. 3. Annex A to Directive 91/67, as amended by Directive 93/54, divides the diseases covered by the former directive into three lists.

8. So far as concerns the diseases in List II, that is, diseases that are endemic in the Community, Article 5 of Directive 91/67 lays down the procedure to be followed to 12. Lastly, Articles 7 and 9 of Directive obtain, for a given zone of the Community, 91/67 lay down the conditions in which the status of approved zone, that is, a zone fish susceptible to the diseases in List II may free of disease. be transported and placed on the market in the Community. If they originate from an approved zone or farm they may be trans- ported and sold alive. Otherwise they may only be transported to, and sold in, an approved zone after having been slaught- 9. Article 6 lays down a similar procedure ered and eviscerated prior to dispatch. for obtaining the status of approved farm in a non-approved zone. The criteria for the grant of approval are set out in Annex B to the directive.

13. Directive 93/53, introducing minimum measures for the control of certain fish diseases, makes a distinction between the control of a disease in List I, and one in List 10. Annex B also lays down criteria for the II, occurring in an approved zone or farm. restoration of approval of a zone when this has been lost following an outbreak of disease.

14. In the case of an outbreak of a disease in List I, Articles 5 and 6 require, in particular: the imposition of an exclusion 11. Approval can only be restored on the zone around the affected farm; the immedi- two-fold condition that: (i) immediately ate withdrawal of all fish from its waters; I - 7416

BOOKER AQUACULTURE AND HYDRO SEAFOOD

16. In the case of an outbreak of a disease in List II in an approved zone or farm, Article 9 of Directive 93/53 requires an epizootic investigation. It also makes the 19. Decision 90/424 provides for a finan- 9 — Council Directive of 27 November 1990 laying down the cial contribution by the Community to veterinary rules for the disposal and processing of animal national compensation programmes, sub- waste, for its placing on the market and for the prevention of pathogens m feedstuffs of animal or fish origin and ject to criteria I will describe later in the amending Directive 90/425/EEC (OJ 1990 L 363, p. 51), context of the last question, in respect of amendedby Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health require- urgent intervention in the case of the ments governing trade in and imports into the Community of products not subiect said requirements laid down in specific Community rules referred to in Annex A(I) to Directive 89/662ÆEC and, as regards pathogens, to Direc- tive 90/425/EEC (OJ 1993 L 62, p. 49). 10 —OJ1990 L 224, p. 19.

I - 7417

OPINION OF MR MISCHO — JOINED CASES C-20/00 AND C-64/00

outbreak of certain diseases and pro- confirmed outbreak of VHS in an approved grammes for the eradication of certain zone, all the fish present in an infected farm endemic diseases. must be slaughtered. Those having attained commercial size may escape destruction, and be placed on the market, with a view to their sale or processing for human con- sumption, provided that they show no clinical signs of disease. By contrast to the regime under Article 9 of Directive 93/53, 20. In its initial version, Decision 90/424 therefore, the United Kingdom official ser- did not apply to any fish disease. However, vice cannot authorise the fattening to com- in 1994, it was amended, pursuant to mercial size of the fish to be slaughtered. Article 5(1), to apply to a fish disease as well, infectious haemotopoietic necrosis ('IHN').

28. Both Booker and Hydro claimed com- (b) they are first eviscerated; pensation from the public authorities for their losses, but were refused on the ground that the rules in force did not provide for it, and there could be no ex gratia payment given the Government's long-established policy of not paying compensation for fish diseases. (c) their slaughter, evisceration and prep- aration for marketing or processing for human consumption is carried out in accordance with any rule of law relat- ing to those matters.

29. The two undertakings did not accept this refusal, and commenced proceedings in the United Kingdom courts. It is in the context of these actions that the Court of Session (Scotland), in Edinburgh, using the procedure for reference for a preliminary ruling, under Article 234 EC, has referred various questions to the Court of Justice.

26. Consequently, all fish present at the farm were slaughtered. Stocks dating from 1993 and 1994 were destroyed because they had not attained commercial size, whilst those dating from 1991 could be sold for human consumption in accordance with the conditions set by the 1994 Regu- 30. In the reference in the proceedings lations. brought by Booker, registered under the

I - 7419

OPINION OF MR MISCHO — JOINED CASES C-20/00 AND C-64/00

number C-20/00, the national court asks erty, which the Court ensures and three questions, as follows: which derive in particular from the European Convention on Human Rights?

BOOKER AQUACULTURE AND HYDRO SEAFOOD

32. The two cases were joined for the damental Freedoms (hereinafter 'the Euro- purposes of the written procedure, the oral pean Convention on Human Rights'), procedure and judgment. Hydro submits that there are, in this case, no 'exceptional circumstances' such as to justify an absolute refusal of compensation for the losses it has suffered as a result of the measures of slaughter and destruction ordered by the Scottish authorities. It submits that the characterisation of the 33. In their written and oral observations contested notices as the 'control of use of Booker and Hydro submitted that, in property' is totally unrealistic and, in any applying a blanket policy which denies event, renders ineffective the protection of any right to compensation whatsoever, the the right of property by Community law. Scottish Ministers have breached funda- mental rights that not only the Community institutions are required to respect, but so, too, are the Member States when they adopt measures applying Community law.

39. They consider, however, that those general principles do not require the pay- 42. In order to carry this out logically, it is ment of compensation in the circumstances necessary to proceed in stages. It is only of the main proceedings, and that Directive meaningful to consider what the Commu- 93/53 is, therefore, valid. nity principles on the protection of funda- mental rights possibly require in respect of compensation, in a situation such as that in which Booker and Hydro find themselves, if it has first been established that those principles do in fact apply in this case.

The first questions

44. If it had been a question of measures not falling within the ambit of Community law, there would certainly have been no such duty to respect those general prin- ciples. 11 48. In Bostock, 14 the Court, relying expressly on those two judgments, con- sidered whether the protection of funda- mental rights recognised in the Community legal order required a Member State to introduce, amongst the measures it adopted 45. On the other hand, in respect of to implement the system of production measures adopted to apply Community quotas laid down in the context of the law, the case-law of the Court of Justice common organisation of the milk market, a has very clearly stated that those principles system of compensation for the outgoing must be respected. lessee by the lessor, or whether one of those rights confers on the lessee directly a right to such compensation in respect of the reference quantity transferred to the lessor upon the expiry of the lease.

46. In Wachauf, 12 it is stated that the requirements flowing from the protection of fundamental rights also bind the Member States 'when they implement Community rules' and that 'the Member States must, as far as possible, apply those rules in accordance with those require- 49. In the same way, in Demand, 15the ments'. Court stated, still in respect of the system of milk quotas, that, when the Member States make use of the power granted to them by the Community legislature to determine the procedure for the reallocation of reference quantities released by certain producers, 47. In ERT, 13 the Court confirmed this they are required to do so 'in compliance applicability of fundamental rights with general principles and fundamental enshrined in the general principles of Com- rights upheld in Community law by decisions of the Court of Justice'.

53. As the same author has rightly said, '[i]n several cases, the ECJ has held that the specific duties imposed by a directive on the Member States should be read in the light 51. First, it is not certain that, when, in the of the general principles of Community Wachauf case, the Court used the term law, 17 but has never declared those general 'Community rules' it was doing so in the principles to be binding as such on the narrow sense of 'Community regulation' States when they are adopting measures for rather than in the wider sense of that term, the transposition of a directive. Yet, one which can apply to directives as well as to would think that the choice of form and regulations. methods left to the States according to Article 249 (ex Article 189) EC does not include the choice whether or not to violate fundamental rights, and vice versa, that respect for fundamental rights is an implicit part of the "result to be achieved" under the directive. So, the extension of the 52. Next, even if one agrees with Bruno de Wachauf line to directives (and, indeed, to Witte 16 that: the application by Member States of exter- nal agreements concluded by the EC) would seem logical'.

'The question whether the Wachauf line (Member States are bound by Community fundamental rights when they implement EC law) also applies to the transposition 54. Lastly, in the actual case before us and implementation of directives (as today, Directive 93/53 states, at the same opposed to the mere execution of regu- time as providing that the Member States lations as in Wachauf and Bostock) 'may... maintain or apply... stricter provi- remains unclear',

55. This point alone seems to me to preclude a Member State from claiming that, as long as it faithfully transposes the 59. I will therefore take it for granted that, rules laid down by the directive, without as Booker and Hydro contend, a Member adding anything, it is, in common with the State must respect fundamental rights when Community legislature, the author of the it implements a directive. This leads to the directive, required to respect fundamental question whether, as the two undertakings rights, but that as soon as it supplements assert, the measures adopted by the United the measures it is required to adopt by Kingdom in response to the outbreak of the other measures, which seem to it to be two diseases constituted a breach of a appropriate for fully achieving the aim, fundamental right, in this case the right of sought by the directive, of eradicating fish property. diseases, it can disregard fundamental rights.

56. The legality of a national provision The relevant case-law of the Court of adopted to transpose a Community direc- Justice on the right of property tive, national though it is, cannot be assessed in the light of national law alone. As we know, the national courts no longer hesitate to set aside a national measure purporting to transpose a directive if it appears to them that the measure does not respect the directive. 60. I begin by stating that the right of property is, indeed, a fundamental right. It was established as such in Nold v Com- mission, 18 and has been constantly upheld since. 19 According to the Court's case-law, what is the scope of this right or, more

Similarly, international treaties for the protection of human rights, on which the Member States have collaborated, or of 62. This answer has never subsequently which they are signatories, can supply been called into question. It is true that in guidelines which should be followed within Hauer, the Court carried out a more the framework of Community law. detailed analysis of the inferences to be drawn from the First Protocol to the European Convention on Human Rights and from the constitutions of the Member States. However, the conclusion it arrived at did not differ from that in Nold v Commission.

I - 7426

BOOKER AQUACULTURE AND HYDRO SEAFOOD

63. It reaffirmed that the right of property 67. It is true that, in the current state of does not constitute an absolute prerogative. scientific knowledge, the diseases that It may, on the contrary, in view of its social occurred in the farms of Booker and Hydro function, be subject to appreciable restric- do not pose any danger to human health, tions, it being understood that these can- but it is just as true that, at the time of the not, with respect to the aim pursued by the outbreaks, the same scientific knowledge authority applying them, constitute 'a dis- did not enable one to envisage any means proportionate and intolerable interference of combating the diseases in question other with the rights of the owner, impinging than the slaughter of the fish on the upon the very substance of the right of infected farms. property' (paragraph 23).

68. It is true that, in respect of the diseases in List II, that is, those that are endemic in 64. In the light of this case-law, were the the Community, the Community legislature decisions with which Booker and Hydro itself leaves to the Member States the were required to comply a breach of the power to defer the slaughter of fish not right of property? I do not think so. showing any signs of the disease until they attain commercial size, when they may sold for human consumption.

75. If all of the fish had to be slaughtered, it was only because this measure alone offered the hope of re-establishing the healthy status of the farm. Just because a 72. I note, lastly, that the measures adopted fish does not, at any given moment, show by the United Kingdom authorities, viewed signs of the disease does not mean that it is as a whole, do not constitute a dispropor- not contaminated by the virus causing the tionate and intolerable interference, disease. To limit the slaughter to infected impinging upon the very substance of the fish would, almost certainly, result in right of property. further slaughter, as and when other fish were found to be infected, and would, in any case, lead to lasting delay in the implementation of the essential measures for the disinfection of the facilities.

73. Booker and Hydro emphasise the obli- gation imposed on them of systematic slaughter followed by destruction.

76. Furthermore, though I do not lay claim to any competence whatsover in veterinary 74. It is, however, necessary, in my matters, I fail to see what advantage there opinion, to place this obligation in the would be in keeping fish in the facilities context of the range of measures imposed that had been in contact with fish showing by the public authorities, following the clinical signs of the disease, and probably outbreak of the diseases on the farms in destined to develop the disease themselves question. These measures had a single before too long.

I - 7428

BOOKER AQUACULTURE AND HYDRO SEAFOOD

77. On the contrary, it seems to me to be cerning the right of property has never reasonable to empty the facilities com- stated that any restriction of this right must pletely, destroying those fish showing clini- necessarily be accompanied by compen- cal signs of the disease, and, subject to sation. Even Wacbauf, in which the Court certain precautions, to market those not recognised that, in the situation before it, showing such signs, and which meet the respect for fundamental rights could not be marketing rules in force, in that they have reconciled with the absence of any com- already attained commercial size. This is pensation, falls short of laying down such a precisely what the United Kingdom legis- rule. lation, as applied to Booker and Hydro, provided for.

I - 7429

OPINION OF MR MISCHO — JOINED CASES C-20/00 AND C-64/00

83. The Court replied to this question by 87. In this respect, it must be stated that, stating that 'in the absence of Community even in the absence of any intervention by provisions on the matter, compensation of the national authorities, Booker and Hydro owners whose pigs have been slaughtered would, in any case, have suffered a loss, by order of the national authorities under given the presence in their facilities, firstly, measures to control classical swine fever of diseased fish and, secondly, of fish likely falls within the competence of each to become so within a short space of time, Member State. and having, by this fact, lost a large part of their commercial value.

It follows that the applicable Community rules on control of classical swine fever must be interpreted as not requiring Member States to provide for a system of 88. The factor triggering the losses they compensation for owners whose pigs have have sustained, therefore, has nothing been slaughtered by order of the national whatsoever to do with the United Kingdom authorities' (paragraphs 30 and 31). authorities; it is quite simply the outbreak of a disease on their farms.

91. In addition, one should not lose sight of the fact that a farm affected by a disease becomes, objectively, and without any criticism whatsoever of, or any question of passing moral judgment on, the owner, a danger to all the other farms within a 95. This situation may be compared with geographical radius around the infected that where a public authority orders the farm, such that they may be contaminated destruction of a building in danger of in their turn. collapsing, or where a building was erected at a time when the use of asbestos was permitted and, much later, the danger of asbestos having been recognised, the public authority orders de-contamination work that turns out to be so expensive that the owner is, de facto, obliged to decide to demolish it, at great cost, owing to the need 92. No one would think of denying that for elaborate precautions. everything that is dangerous ought to be eliminated, and that this constitutes one of the tasks of the State.

96. It does not seem to me that, in such cases, the owner concerned can claim the right to compensation that he could, by contrast, claim if the public authority 93. We are, in such a case, poles apart from intended to appropriate his building. the appropriation of a private person's property by the public authority, such as the compulsory purchase of a building. There is no transfer of ownership in property of definite economic value to satisfy a need in the general interest. There is only property which, even if it may possibly still hold some economic value, 97. The situation of Booker and Hydro must be eliminated and which therefore no must also be distinguished from that in longer has any prospect of being sold for which disease prevention measures are profit. applied to farms which may be exposed to

99. But that is not the problem before us 102. As has been held since Nold, and today, since the outbreak of a contagious confirmed in Hauer, Community law does disease, fraught with risk for an entire not, in defining the precise content of economic sector, did occur in the farms of fundamental rights, ignore the level of Booker and Hydro. protection provided, firstly, by inter- national instruments for the protection of human rights to which the Member States are party, foremost amongst them being the European Convention of Human Rights, and, secondly, the constitutional traditions common to the various Member States. 100. In short, the situation was therefore as follows: the United Kingdom authorities applied only preexisting legislation to Booker and Hydro; in doing so, they unquestionably pursued a public interest purpose; the measures imposed, though strict and restrictive, do not appear unreas- onable having regard to the danger linked 103. It is true that the judgments of the to the presence of contaminated fish in the Court I have cited already take account of farms concerned, and the situation with these sources of law but, in the interests of which they were intended to deal could not, thoroughness, I will go on to consider the I - 7432

BOOKER AQUACULTURE AND HYDRO SEAFOOD

most recent case-law of the European The preceding provisions shall not, how- Court of Human Rights as well as the ever, in any way impair the right of a State constitutional principles of the Member to enforce such laws as it deems necessary States. to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.'

I - 7433

OPINION OF MR MISCHO — JOINED CASES C-20/00 AND C-64/00

property. If it decides that there has, it make the initial assessment of the existence proceeds to apply a series of tests. It of a problem of public concern warranting establishes, first, that the interference was measures of deprivation of property. Here, provided for by law. In the decision cited as in other fields to which the safeguards of above, it stated in this respect that 'Article 1 the Convention extend, the national auth- of the First Protocol requires, above all, orities accordingly enjoy a certain margin that an interference by the State in the of appreciation. peaceful enjoyment of a person's pos- sessions be lawful: the second sentence of the first paragraph of that article only permits the deprivation of property "sub- ject to the conditions provided for by law", and the second paragraph recognises the right of States to control the use of property by enforcing "laws". Furthermore, the rule Furthermore, the notion of "public inter- of law, one of the fundamental principles of est" is necessarily extensive. In particular, democratic society, is a concept inherent in as the Commission noted, the decision to all of the articles of the Convention (Eur. enact laws expropriating property will Court HR Amuur v. France, judgment of commonly involve consideration of politi- 25 June 1996, Reports of Judgments and cal, economic and social issues. The Court, Decisions 1996-III, pp. 850 to 851, para- finding it natural that the legislature dis- graph 50).' The Court then ascertains poses of a margin of appreciation in whether the interference pursues a legit- implementing social and economic policies, imate purpose, that is, whether there was a will respect the latter's judgment as to what reason in the general interest within the is "in the public interest" unless that judg- meaning of the second rule laid down by ment be manifestly without reasonable Article 1. foundation (James v. United Kingdom, 1986 Series A No 98, p. 32, paragraph 46).'

of the general interest of the community 110. It will be noted, at paragraph 53 of and the requirements of the protection of Mellacher v. Austria, of 19 December the individual's fundamental rights (Spor- 1989, 22 that the European Court of rong and Lönnroth v Sweden, 1982 Series Human Rights stated the following, on A, No 52, p. 26, paragraph 69). The the subject of the requirement of propor- concern to achieve this balance is reflected tionality: in the structure of Article 1 as a whole, including therefore the second sentence, which is to be read in the light of the principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought 'The possible existence of alternative sol- by any measure depriving a person of his utions does not in itself render the con- possessions (Pressos Compania Naviera tested legislation unjustified. Provided that S.A. v. Belgium, 1995, Series A, No 332, the legislature remains within the bounds of p. 23, paragraph 38). its margin of appreciation, it is not for the Court to say whether the legislation repre- sented the best solution for dealing with the problem or whether the legislative discre- tion should have been exercised in another way (see the James and Others judgment, cited above, Series A No 98, p. 35, para- graph 51).'

112. A measure of this type must, of measures were authorised by the second course, respect the principle of propor- paragraph of Article 1 of Protocol No. 1 tionality. But the absence of compensation (Pl-1), interpreted in the light of the is only one element amongst all those taken principle of law, common to the Contract- into consideration in determining whether ing States, whereunder items whose use has the extent of the sacrifice imposed on the been lawfully adjudged illicit and danger- individual appears justified in the light of ous to the general interest are forfeited with the general interest pursued. a view to destruction.'

I - 7436

BOOKER AQUACULTURE AND HYDRO SEAFOOD

The constitutions or constitutional prin- affected by a contagious disease is a special ciples of the Member States form of expropriation. However, this does not flow directly from the Constitution.

116. Booker states that the constitutional texts of the Member States, which it repro- duces in an annex to its observations, would enable it to obtain the payment of compensation for all or part of the losses it 120. It is the Constitution of the Kingdom has suffered in practically all of the of the Netherlands that seems to me to be Member States of the Community, except the most explicit, providing, in respect of the United Kingdom. property, that, 'in the cases laid down by or pursuant to law there shall be a right to full or partial compensation if, in the public interest, the competent authority destroys property or renders it unusable, or restricts the exercise of the owner's rights to it'. The 117. There is no doubt that all of the courts and academic authorities consider, constitutions enshrine the right to private however, that there is no automatic right to property, subject to requisition or expropri- compensation in the case of destruction of ation in accordance with the public inter- property in the public interest. est, carried out in accordance with the law or subject to the payment of compensation, the principle of which is established, in most cases, in the constitutional provision itself.

122. In Ireland, according to the case-law, cooperation in the eradication of diseases the destruction of diseased animals requires likely to spread very widely and very the payment of compensation, in the lighl quickly. of the Constitution, if the interference with the right of property constitutes an unfair infringement of the said right. The unfair- ness is to be determined in accordance with the exigencies of the common good and the principles of social justice. Interference has been held to be unfair if it is absurd, 125. I note, lastly, that the European Union disproportionate or irrational. Charter of Fundamental Rights, pro- claimed in December 2000 at the European Council of Nice, likewise does not encour- age the conclusion that the protection of the right to private property requires that the owners of animals affected by an epidemic, or animal disease, have a right to compensation. 123. It cannot be concluded, therefore, that there is a constitutional principle common to the laws of the Member States according to which the destruction of fish must necessarily give rise to the payment of compensation. 126. Iknow that the Charter is not legally binding, but it is worthwhile referring to it given that it constitutes the expression, at the highest level, of a democratically estab- lished political consensus on what must today be considered as the catalogue of 124. Booker also cites three Member States fundamental rights guaranteed by the (the Kingdom of Sweden, the Republic of Community legal order. On the right of Finland, and the French Republic) in which property, Article 17 of the Charter states specific legislation provides for the pay- that: ment of compensation in respect of fish diseases. It turns out that such legislation also exists in other States of the Commu- nity (the Federal Republic of Germany, the Republic of Austria, the Kingdom of Bel- gium, the Kingdom of Denmark, the King- '1. Everyone has the right to own, use, dom of Spain, the Hellenic Republic, the dispose of and bequeath his or her lawfully Italian Republic, the Kingdom of the acquired possessions. No one may be Netherlands and the Portuguese Republic). deprived of his or her possessions, except I am, however, doubtful whether the Par- in the public interest and in the cases and liaments of these Member States adopted under the conditions provided for by law, these laws in order to protect private subject to fair compensation being paid in property: they did so, rather, out of good time for their loss. The use of national solidarity with the farmers con- property may be regulated by law in so cerned, or in order to obtain their active far as is necessary for the general interest.

132. This not being the case in the main 128. Having regard to the discussions to proceedings, I propose, in common with which this distinction has given rise in the the Scottish Ministers, the United King- context of the European Convention on dom, French, Italian, Netherlands and Human Rights, it does not appear to me Norwegian Governments and the Commis- possible that this silence is the result of sion, that the Court reply to the first accidental oversight. questions in the two cases that, in the relevant circumstances, the principles of Community law concerning the protection of fundamental rights, in particular the right of property, are not to be interpreted as meaning that they require the payment of compensation to the owners concerned. 129. Furthermore, I share the view of the Commission that the measures in question in the present cases do not constitute expropriations, but extreme cases of limi- tation of the use of goods.

The second and third questions

130. There is no expropriation of the fish tanks or other aquaculture facilities, but an obligation to destroy the fish already infected by the disease, or highly likely to 133. If a negative response is, thus, given to be so infected within a short space of time. the first question, there is no need to

I - 7439

OPINION OF MR MISCHO — JOINED CASES C-20/00 AND C-64/00

consider the second and third questions. I The fourth question in Case C-64/00 will simply point out that, in my opinion, if there is to be a right to compensation, the compensation should not cover loss of prospective profits, and would, in any case, be limited to damnum emergens. 137. By its fourth question, the Court of Session (Scotland) asks whether Directive 93/53 is invalid as being in breach of the fundamental right of property in not mak- ing provision for the payment of compen- sation where an outbreak of ISA has been confirmed.

— programmes for the eradication and monitoring of animal diseases'. 142. Furthermore, because we are con- cerned with a directive, by definition addressed to the Member States, it should not be surprising that it contains no provision in respect of compensation to be paid from the Community budget. 145. As the expression 'contribution' indi- cates, the Community does not assume the whole of the cost of intervention by the Member States, but it makes a contribu- tion, by way of partial repayment of the latter's expenses.

143. Article 17 provides, simply by way of a reminder, only that '[t]he conditions governing the Community's financial con- tribution to the measures connected with the application of this Directive are laid 146. This contribution is dependent upon a down in Decision 90/424/EEC'. decision by the Member State in question to pay compensation to the owners of animals infected by a disease.

144. Article 1 of the latter decision Mays down the procedures governing the Com- 147. Article 3 of Decision 90/424 (which munity's financial contribution 24 towards: would be applicable if the two fish diseases in question in the present cases were mentioned in the list in paragraph 1) provides, in paragraph 2, that:

— specific veterinary measures,

'The Member State concerned shall obtain 24 — The emphasis is mine a financial contribution from the Commu-

I - 7441

I - 7442

BOOKER AQUACULTURE AND HYDRO SEAFOOD

154. Even if the payment of compensation on the ground that they do not provide for to farmers was an obligation required for the payment of compensation to farmers of the due respect of the right of property, fish infected by the two diseases in ques- which it is not, it would not necessarily tion. follow that there was an obligation on the Community to contribute to the financing of that compensation.

158. The principle of such compensation being a question entirely for the Member 155. The Council is free to impose obli- States, it is in accordance with the different gations on the Member States, undertak- national laws that it must be determined. ings and private individuals giving rise to financial burdens, without having, at the same time, to provide for financial con- tribution on the part of the Community to those burdens.

159. Thus, supposing that Scottish law recognises a principle of equality of treat- ment comparable to that in Community law, it would be for the fish farmers to 156. Only a Member State could challenge, show that they are in a situation substan- for example, by invoking the principle of tially identical to that of cattle farmers who equality of treatment, the fact that the have received compensation on the grounds decision in question here does not provide that their animals were infected by bovine for the financial contribution of the Com- spongiform encephalopathy (BSE), or foot munity in respect of certain fish diseases and mouth disease. present in its territory, whilst it does do so in respect of diseases present in the territory of other Member States. The United King- dom has brought no such action against the Council.

— to the first question, that:

Where, in implementation of an obligation under Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases, to take control measures for an outbreak of a List II disease on an approved farm or in an approved zone, a Member State adopts a domestic measure the application of which results in the destruction and slaughter of fish, the principles of Community law relating to the protection of fundamental rights, in particular the right of property, are not to be interpreted as having placed on the Member State the obligation to adopt measures providing for the payment of compensation

(a) to an owner of fish which are destroyed; and

(b) to an owner of fish which are required to be slaughtered immediately, thereby necessitating the immediate sale of those fish by that owner, I - 7444

BOOKER AQUACULTURE AND HYDRO SEAFOOD

— and not to reply to the second and third questions.

Examination of Directive 93/53 in the light of the need to respect the right of property reveals no factors affecting its validity. I - 7445