R (on the application of Horvath) v Secretary of State for Environment, Food and Rural Affairs

Farmer – Single payment scheme (SPS) – Factors leading to reduction in SPS payment – Whether defendant secretary of state properly including factors relating to public rights of way in domestic regulations – High Court referring to ECJ for preliminary ruling – Ruling accordinglyUnder the EC common agricultural policy, farmers in member states received a minimum guaranteed income, whether or not their land was productive, and a potential payment under the single-payment scheme (SPS) established under EC Council Regulation 1782/2003. Entitlement to full payment was subject to compliance with rules governing agricultural land, production and activity that incorporated basic standards of good agricultural and environmental condition (GAEC). The GAEC standards were defined at national or regional level, as required by article 5(1) of Regulation 1782/2003, implemented in England by the Schedule to the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance)(England) Regulations 2004.Paragraphs 26 to 29 of the Schedule imposed restrictions on farmers in respect of public rights of way, so that they risked losing payments if they interfered with or failed to restore or maintain stiles and gates across visible footpaths and bridleways.The claimant, who was an English farmer and was eligible to receive payment under the SPS, challenged the lawfulness of those paragraphs. The Administrative Court decided to seek a preliminary ruling of the European Court of Justice (ECJ) as to whether: (i) a member state might include, among the GAEC standards, requirements in respect of the maintenance of visible public rights of way; and (ii) where a member state’s constitutional system provided that devolved administrations were to have legislative competence, the adoption by those administrations of different GAEC standards within the meaning of article 5 constituted discrimination, contrary to Community law: see [2006] EWHC 1833 (Admin).The defendant secretary of state appealed unsuccessfully to the Court of Appeal against that decision and the reference to the ECJ proceeded: see [2007] EWCA Civ 620; [2007] PLSCS 148. Held: A preliminary ruling was given.Member states were bound, when defining standards under article 5(1) of Regulation 1782/2003, to comply with the framework set out in annex IV to that regulation. However, they had a discretion as to the actual determination of the requirements. Moreover, the description “good agriculture and environmental condition” indicated that member states might adopt GAEC requirements for environmental purposes since environmental protection was an essential objective of the Community and also formed part of the common agricultural policy. An obligation to maintain visible public rights of way might constitute a GAEC minimum requirement in as much as it formed part of the framework in annex IV, even if it concerned the environment rather than pursuing an agricultural objective.Those rights of way might amount to landscape features, the retention of which was included in the standards laid down in annex IV. The concept of landscape features had to be interpreted according to its usual meaning and context. A restrictive interpretation would be inconsistent with the discretion enjoyed by member states when defining GAEC minimum requirements.The temporary destruction of landscape features in the case of public rights of way could not of itself adversely affect their permanent character. Natural features of the land, such as vegetation or stretches of water, might undergo seasonal changes and yet still be perceived as forming part of the landscape. Moreover, a farmer who disturbed the surface of a visible footpath or bridleway had to make good those surfaces within specified time limits. An obligation to maintain such rights of way might constitute a measure applying the standard in annex IV that required landscape features to be retained. An obligation deriving from those standards might have the environmental objective of avoiding a deterioration of habitats, but it was not necessary that the national measures aimed at the retention of landscape features and at ensuring a minimum level of maintenance should also have such an objective.Furthermore, where the constitutional system of a member state provided that devolved administrations were to have legislative competence, the mere adoption by those administrations of different GAEC standards did not constitute discrimination contrary to Community law. Each member state could allocate powers internally and implement Community acts that were not directly applicable by means of measures adopted by regional or local authorities, provided that the relevant Community legal measures were implemented correctly.Maurice Sheridan, barrister, R Barker, solicitor, and A Stanic, solicitor advocate, appeared for the claimant; C Gibbs and I Roa, acting as agents, assisted by Lord Davidson of Glen Clova QC, and D Wyatt QC appeared for the UK government; M Lumma, acting as agent, appeared for the German government; N Travers, BL, appeared for the Irish government; K Banks and F Erlbacher, acting as agents, appeared for the European Commission.Eileen O’Grady, barrister