Lord Justice May:
Judgment
1. A glance at a large scale map of
2. Section 146 of the Highways Act 1980 obliges owners of land to maintain stiles, gates and similar structures across footpaths and bridleways in a safe condition and to the standard of repair required to prevent unreasonable interference with the rights of persons using the footpaths or bridleways. If the owner does not do so, the appropriate authority may carry out the necessary work and recover the reasonable cost from the owner. By section 134 of the 1980 Act, farmers are allowed to plough across footpaths or bridleways, if it is not reasonably convenient to plough their fields without doing so, but they have to restore the footpaths and bridleways afterwards to make them reasonably convenient for people to exercise the right of way. It is the duty of a highway authority to enforce these provisions.
3. The Highways Act 1980 applies to
4. The Common Agricultural Policy of the European Communities has as one of its central features that farmers receive a minimum guaranteed income. They may do so whether they use their land productively or not. They may become entitled to payments under the Single Payment Scheme. The present Scheme is established under Council Regulation (EC) No. 1782/2003, the whole of which is directly applicable in all Member States. One aim is that entitlement to full payment requires compliance with rules relating to agricultural land, agricultural production and activity. The rules intend to incorporate basic standards which include basic standards of “good agricultural and environmental condition”. By Article 3, in order to qualify for full direct payments, farmers have to respect statutory management requirements and “the good agricultural and environmental condition established under Article 5”. If they do not, their payments may be reduced or, in extreme cases, they may receive no payment at all.
5. Article 5 of the 2003 Regulation includes the following:
“Member States shall ensure that all agricultural land, especially land which is no longer used for production purposes, is maintained in good agricultural and environmental condition. Member States shall define, at national or regional level, minimum requirements for good agricultural and environmental condition on the basis of the framework set up in Annex IV, taking into account the specific characteristics of the areas concerned, including soil and climatic condition, existing farming systems, land use, crop rotation, farming practices, and farm structures. This is without prejudice to the standards governing good agricultural practices as applied in the context of Council Regulation (EC) No. 1257/1999 and to agri-environment measures applied above the reference level of good agricultural practices.”
There is reference in Annex IV to avoiding the deterioration of habitats and to retaining landscape features.
6. The definition of minimum requirements for good agricultural and environmental condition was effected for
7. Paragraphs 26 to 28 are as follows:
“Public rights of way
26. A farmer must not—
(a) without lawful authority or excuse, disturb the surface of a visible footpath, a visible bridleway, or any other visible highway which consists or comprises a carriageway other than a made-up carriageway, so as to render it inconvenient for the exercise of a public right of way; or
(b) without lawful authority or excuse, in any way wilfully obstructed the free passage along a visible highway.
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.
28.(1) Where a farmer has disturbed the surface of a visible footpath or bridleway (other than a field-edge path) as permitted under section 134 of the Highways Act 1980, he must, within the relevant period under section 134(7) of that Act, or within an extension of that period granted under section 134(8) of that Act—
(a) so make good the surface of the path or bridleway to not less than its minimum width as to make it reasonably convenient for the exercise of a right of way; and
(b) so indicate the line of the path or bridleway on the ground to not less than its minimum width that it is apparent to members of the public wishing to use it.
(2) In this paragraph, “minimum width”, in relation to a highway, has the same meaning as in Schedule 12A to the Highways Act 1980.”
Paragraph 29 contains definitions with reference to sections of the Highways Act 1980.
8. To a large extent, these paragraphs do no more than restate provisions already to be found in the 1980 Act. But their potential effect is different. Under the 1980 Act, an offending landowner is subject to the sanctions available under that Act. Under the regulations, an offending farmer may lose some or all of his direct payments under the Common Agricultural Policy. Furthermore, as I understand it, a farmer who incurs expense in order to comply with these requirements has to bear the cost. By contrast, it is suggested that, if the regulations did not contain these requirements, the farmer might be able to recover the cost of maintaining footpaths etc under the Common Agricultural Policy as an “agri-environment measure… above the reference level of good agricultural practices” such as is referred to in the final sentence of Article 5(1) of the Council Regulation.
The proceedings
9. Mr Horvath is a farmer in
10. Mr Horvath has two grounds of challenge. He says, first, that Article 5(1) and Annex IV of the 2003 Council Regulation do not enable the
11. Crane J accordingly ordered a reference to the European Court of Justice under Article 234 of the Treaty and Part 68 of the Civil Procedure Rules. The first referred question was:
“Can a
There is no appeal against the making of that part of the reference, although Buxton LJ, in giving permission to appeal to this court against the second question referred, to which I shall come in a moment, suggested that there was a high level of artificiality in the proceedings. The paragraphs in the 2004 Regulations did not, he observed, do more than require farmers to comply with existing domestic legislation under the 1980 Act; and he could not understand how these paragraphs were beyond the scope empowered by a Council Regulation which emphasised the need to achieve good environmental condition.
12. I pause to say that an enlarged version of the facts and the relevant European and domestic legislation, which it is not necessary to rehearse for the purposes of this appeal, may be found in paragraphs 1 to 58 of Crane J’s judgment which is at [2006] EWHC Admin 1833.
The disputed question
13. The 2004 Regulations apply only to
14. The Welsh, Scottish and Northern Irish regulations do not contain anything equivalent to paragraphs 26 to 29 of the English regulations; and they are not the same as each other. There are, therefore, four different regulations implementing the 2003 Council Regulation within the
15. The consequence of the difference between the English regulations and those for Wales, Scotland and Northern Ireland is that United Kingdom farmers outside England are not at risk of reduction or loss of their Common Agricultural Policy payments if they do not maintain footpaths and bridleways, as are farmers in England; and that a Welsh farmer, for instance, may be able to recover the cost of maintaining footpaths as an agri-environmental measure when an English farmer is not. There is the further anomaly that a Welsh farmer is nevertheless subject to the parallel provisions of the Highways Act 1980.
16. The Secretary of State’s case is that differences such as these, resulting from different decisions of the Secretary of State for England and of the devolved administrations for Wales, Scotland and Northern Ireland, do not offend EC law, since the defining EC regulation gives a discretion to impose minimum requirements and expressly enables the definition of those requirements to be made “at national or regional level”. On the assumption for this purpose that the English regulations are, taken alone, legitimate, there is no suggestion that the Welsh, Scottish or Northern Irish regulations are other than legitimate in themselves. These are expressly permitted differences “at regional level”, which do not need to be justified by a comparative process – no more than would equivalent differences between (say) United Kingdom regulations and French regulations, provided that each was individually legitimate.
17. Crane J rehearsed the parties’ submissions on this topic at length in paragraphs 59 to 86 of his judgment, where he considered a number of authorities. His conclusion in paragraph 86 was as follows:
“I have come to the conclusion that it is necessary to refer the discrimination issue to the European Court of Justice. There is authority in Klensch, Mulligan, and Romeu, that tends to support the propositions that a
The three authorities referred to in that passage are Marthe Klensch v Secretaire D’État à L’Agriculture et à La Viticulture (1986) C-201 and 202/85; Mulligan v Minister for Agriculture and Food, Ireland (2002) C-313/99; and Romeu v Commission of the European Communities (2005) T-298/02.
18. Crane J accordingly ordered the reference of a second question as follows:
“Where a
It is suggested that this question on reflection would be more appropriately expressed if it were introduced by the word “can” rather than “does”? The point here is that Mr Fordham does not say that these legislative differences must give rise to unlawful discrimination; but that they may do so, if they are not justified in the way that I have indicated.
The appeal
19. The Secretary of State appeals against the part of Crane J’s order which refers this second question. Mr Eicke says that this court can and should resolve the issue in favour of the Secretary of State with complete confidence; that Crane J’s decision was plainly wrong; that this court is as well placed as he was to decide a matter which does not admit of any spectrum of judicial discretion; and that this court should be confident that no assistance from the European Court of Justice is necessary – see for this synthesis R v International Stock Exchange ex parte Else (1982) Ltd. [1993] QB 534; H.P. Bulmer Ltd v J. Bollinger S.A. [1974] Ch. 401; R (A) v Secretary of State for the Home Department [2002] EWCA Civ. 1008 and [2002] 3 CMLR 353. As the test to be applied by this court on this appeal, that is uncontroversial.
20.
21. Buxton LJ noted that the second question only arises if the first question is answered in the affirmative. In granting permission to appeal, he wrote:
“The proposition inherent in the second question is therefore that it may be discriminatory for one region in a
22. The case has proceeded and the appeal has been presented at two levels, one of general principle, the other with reference to the words of Article 5(1) of the 2003 Council Regulation. Each is informed by what
23. A basic principle to be found in paragraphs 8 to 11 of the judgment of the European Court of Justice in Klensch is that Member States must adhere to the fundamental principle of equality. This requires that similar situations should not be treated differently unless differentiation is objectively justified. Member States must comply with this principle where Community rules leave them to choose between various methods of implementation. Member States may not choose an option whose implementation would be liable to create, directly or indirectly, discrimination between [in this instance] farmers having regard to the structure of the agricultural activities carried out in its territory. The
24. Paragraphs 34 and 35 of the judgment of the European Court in Mulligan restate the principle in Klensch and say that, where Member States lay down or apply measures of this kind, they must do so on the basis of objective criteria. In paragraph 29 of the judgment in Romeu, the court said that the term “
25. At the level of principle, Mr Fordham submits that a
26. Mr Eicke’s submission was, or tended to be, that, where a
27. The Community principle as between Member States can be found in J. van Dam en Zonan and others 185/78-204/78, ECR 1979 02345, where Netherlands fishermen complained that restrictive Netherlands fishing quotas offended the principle of equal treatment between the nationals of all Member States. The European Court of Justice rejected this contention, saying, at paragraph 10 of the judgment, that it cannot be held contrary to the principle of non-discrimination to apply national legislation, the compatibility of which with Community law is not contested, because other Member States allegedly apply less strict rules. If there are inequalities of this kind, they must be eliminated by consultation. They cannot be the foundation of a charge of discrimination with regard to the provisions made by a
28. Mr Eicke would accept, I think, that material regional differences within
29. Mr Eicke relied on the fact that, with the four sets of different regulations within the
30. It is surprising that there is scarcely any authority directly relevant on this difficult topic. You would have thought that the question would have arisen and been answered before now, but apparently not. It might possibly be said that the absence of authority shows that Mr Fordham’s point must be a bad one. But that is not an analytical reason for reaching that conclusion with confidence.
31. In Commission v
“In that connection, it should be observed that it is for all the authorities of the Member States, whether it be the central authorities of the State or the authorities of a federated State, or other territorial authorities, to ensure observance of the rules of Community law within the sphere of their competence. However, it is not for the Commission to rule on the division of competences by the institutional rules proper to each
32. In Commission v
“If, for reasons which may be linked to the federal structure of the State, other specific provisions of the Federation or the länder lay down particular requirements corresponding, possibly, to the individual needs of the various fields of activity covered by the Directive, it must be noted that Article 13 of the Directive allows the Member States to lay down stricter rules than those contained in the Directive. Furthermore, the general rule in Paragraph 4 of the UVPG ensures, as has been explained by the German Government, that the provisions of Paragraph 6(3) and (4) are to apply when the requirements contained in specific provisions fall short of those laid down in the corresponding provision of the UVPG.”
33. In An Application by Joseph McParland for Judicial Review (2002) NICA 22, the applicant had been refused a road service licence because he had previous convictions which under Northern Irish legislation were not spent. The issue was whether this complied with the requirements of Council Directive 89/438/EEC when the Directive had been implemented in
“We consider that Directive 89/438 left it open to Member States to apply either their own domestic rehabilitation legislation or some other measure having an equivalent effect. As Mr Barling pointed out, the Community has consistently left matters relating to the criminal law to Member States and they are free to adopt any type of rehabilitation legislation. We do not think that if a
It is, we agree, surprising, and it might be regarded as undesirable, that the law should differ markedly between two different constituent parts of the
This, so far as it goes, tends to support the Secretary of State’s case. But
34. Mr Eicke referred to two
“The diversity of internal legislation inherent in a federal State can never, in itself, constitute discrimination, and it is unnecessary to justify it. To claim the contrary would be to mistake totally the very essence of federalism.”
Mr Fordham accepts that this supports the Secretary of State’s case. But he says that this lone voice is insufficient for complete confidence on an issue which in any event has to look to the proper meaning and extent of Article 5(1) of the 2003 Council Regulation.
35. In Magee, the applicant, who had been arrested in connection with an attempted bomb attack, complained of ill-treatment after arrest when he was being interviewed and that he had for a time been refused access to a lawyer. He also complained that under the law in
36. At the particular level, the parties’ submissions address the construction of Article 5(1) of the 2003 Council Regulation. Accepting that the authorities do not by themselves provide resounding support for the Secretary of State’s case, Mr Eicke nevertheless submits that none of them was decided with the benefit of the words “at national or regional level”. He submits that, by these words, Article 5(1) expressly permits minimum requirements for good agricultural and environmental condition to be implemented at regional level. With devolved or federated assemblies, regional provisions, legitimate in themselves, which are not discriminatory internally within the region, do not have to be justified in comparison with different but equally legitimate provisions in other regions of the same
37.
38. In summary, the Secretary of State’s case depends on one or both of the following:
a) that Article 5(1) of the 2003 Regulation as a matter of construction permits Member States to implement the relevant definition at devolved regional level and that therefore differential implementation does not need to be objectively justified for the purposes of the principle of equality and non- discrimination.
b) That, where there is devolution by means of a fixed constitutional arrangement, implementation by a devolved authority is to be treated for the purposes of the principle of equality and non-discrimination as if it were implementation by the Member State.
39. I am not completely confident that the construction of Article 5(1) in paragraph 38(a) above is correct. Indeed, I am provisionally inclined to think that, taken alone, it may be wrong. I am provisionally inclined to think that “regional level” refers to geographical regions; that it remains the Member States who have to do the defining; that an objective justification for differences is necessary with reference to the specific characteristics of the areas concerned; but, importantly, that the Regulation may not have been drafted with devolved assemblies in mind. It may in these circumstances be possible for the European Court of Justice to do some creative construction here, or to see the words of the Article as operating within a general framework by which regulations such as this may be implemented by devolved assemblies. But I am not confident that this court should do so without their assistance.
40. As to paragraph 38(b) above, I am not completely confident that the European Court of Justice would so decide and I am not confident that assistance from the European Court of Justice is unnecessary. I do not think that complete confidence can be found in the single voice, dissenting on the main issue, of one judge of the European Court of Human Rights in 1981. None of the other authorities gives more than indications, not all of which point in the same direction. It is strange indeed that the issue has not arisen for clear decision before. But, as I have said, that is not an analytical reason for complete confidence. I would rather expect that the European Court of Justice would find a way, perhaps with reference to the principles of subsidiarity, of concluding that the Secretary of State is correct. It would certainly be constitutionally unsatisfactory within the
41. For these reasons I would dismiss this appeal.
Lady Justice Arden:
42. I likewise conclude that this appeal must fail for the reasons explained in this judgment.
43. We have to determine whether the judge, Crane J, erred in making a reference of an issue as to art 5 of Council Regulation 1782/2003 (“the Council Regulation”) to the Court of Justice of the European Communities (“the Court of Justice”). As May LJ has explained, the issue involves the application of the Community law principle of non-discrimination (“the non-discrimination principle”) to the minimum standards defined by member states for the purpose of art 5 of the Council Regulation. Art 5 has been implemented by the
44. The question at issue is whether regional bodies can discharge the member state’s obligations to implement art 5 differently for their different regions without having to justify their departure from some legislative norm applying to the member state as a whole, that is, minimum standards determined for the whole of the
45. The judge’s order provides for another question to be referred to the Court of Justice at the same time, but there is no appeal from that part of his order.
46. For the purposes of the question with which we are concerned, there is no suggestion that the legislative acts of the
47. As to the background, I gratefully adopt what has already been said by May LJ and I respectfully agree with his careful analysis of the cases cited by him.
48. I reach the conclusion expressed in the first sentence of this judgment for the following reasons which I amplify below:
i) The devolution arrangements in the United Kingdom are unusual, but the devolved administrations have competence to implement Community obligations for their respective territories in devolved subject areas, such as the environment and agriculture, should they choose to exercise their powers, and therefore they fall to be treated under Community law like the equivalent institutions in states with fuller federal status;
ii) Community law clearly permits implementation by regional bodies, although the treaty obligation to ensure compliance with Community obligations remains with the member state;
iii) However, there is no decision of the Court of Justice on the question whether the non-discrimination principle applies to prevent differential implementation by regional bodies without objective justification where, as in art 5 of the Council Regulation, member states are given a discretion as to the form of implementation or standards to be imposed;
iv) Art 5 of the Council Regulation expressly permits implementation by regional bodies, but it is not clear whether the non-discrimination principle applies to prevent differential implementation by regional bodies under art 5 without objective justification;
v) Further reasons supporting the judge’s order for a reference include (a) the developing nature of the concept of subsidiarity and (b) the fact that the issue raises constitutional questions for the Community.
49. In para. 39 of his judgment, May LJ has expressed certain provisional views with which Scott Baker LJ agrees. It would be convenient to state at an early point in this judgment where I have come to different conclusions, although those differences are not material to the result of this appeal. I agree with them that this appeal should be dismissed. However, I do not share their provisional view that the critical sentence of art 5 of the Council Regulation does not permit regional implementation. Moreover, I express doubts as to whether it is correct to say as a matter of Community law that (where member states have a discretion as to the manner of implementation) differential implementation by regional bodies needs to be objectively justified for the non-discrimination principle, and accordingly I do not share the tentative provisional view of May and Scott Baker LJ rejecting the Secretary of State’s submission on this. In addition, I consider that on its true interpretation art 5 permits implementation by regional bodies. However, since we are all agreed for other reasons that the judge was right to make a reference, those differences of view are not determinative of this appeal, though in another case the existence of those differences could well have been a reason for making a reference.
50. I now take each of the reasons given above in turn in order to develop them. At the end of my judgment, I deal with three final matters, namely art 1 of the First Protocol to the European Convention on Human Rights, the approach on appeal to an order for reference and directions.
(i) The devolution arrangements in the United Kingdom are unusual, but the devolved administrations have competence to implement Community obligations for their respective territories in devolved subject areas, such as the environment and agriculture, should they choose to exercise them, and therefore they fall to be treated under Community law like states with fuller federal status
51. The devolution arrangements were introduced by Acts of the United Kingdom Parliament (“the Westminster Parliament”) in 1998. It is not necessary for me to describe all the elements of the devolution arrangements, and the description that follows incorporates the helpful analysis in the skeleton argument of Mr Tim Eicke, for the Secretary of State, with which analysis Mr Michael Fordham QC, for Mr Horvath, largely agrees. These Acts were passed as part of a “programme of constitutional legislation …with a view to improving the government of the
52. I start with
53. The devolution arrangements for implementing Community obligations are so far as relevant the same in
54. The statutory relationship between the devolved administrations and the United Kingdom government in relation to obligations to implement Community law is supplemented by a Devolution Memorandum of Understanding (“Devolution MoU”) entered into in December 2001 between the government of the United Kingdom, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee (Cm. 5240). The Devolution MoU contains a series of non-legally binding agreements between the
“This Memorandum is a statement of political intent, and should not be interpreted as a binding agreement. It does not create legal obligations between the parties. It is intended to be binding in honour only… ”
55.
“The devolved administrations are responsible for implementing international, ECHR and EU obligations which concern devolved matters. In law,
56. This makes it clear that, in terms of the division of functions and responsibilities between central government and devolved administrations, the primary responsibility of implementing obligations arising under EC law in relation to devolved matters lies within the devolved administrations. In practice,
57. The
58. However, the important point is that for
59. It should be noted that in the
(ii) Community law clearly permits implementation by regional bodies, although the treaty obligation to ensure compliance with Community obligations remains with the member state
60. This is demonstrated for instance by the extract from the judgment of the Court of Justice in Commission v
(iii) However, there is no decision of the Court of Justice on the question whether the non-discrimination principle applies to prevent differential implementation by regional bodies without objective justification, where, as in art 5, member states are given a discretion as to the form of implementation or standards to be imposed
61. Mr Tim Eicke, for the Secretary of State, accepts that there is no decision directly in point on the issue of Community law that has arisen in this case. We have not been shown, nor would we expect to see, a decision on art 5 itself, but there is also no authority on the principle of Community law involved here in any other context. Thus there is no authoritative decision which makes it clear that, where Community legislation is in fact implemented at a regional level, the principle of non-discrimination is not engaged by differences in the implementing legislation. It is essential to the Secretary of State’s case to demonstrate that regional bodies may exercise the power of implementation differentially without any need to justify those differences. Mr Eicke has to draw a distinction between national agencies or bodies in a purely unitary state and regional bodies in a member state with devolution arrangements or with a fully federal system.
62. We have not been taken to any decision dealing expressly with the effect for the purposes of the non-discrimination principle of a division of responsibility for implementing Community obligations in this situation. Regional legislative bodies exist in several other member states, such as Austria, Belgium, Spain and Germany (for more details, see Legislative, Executive and
63. I find insufficient support for the Secretary of State’s submission in either of the two cases involving
64. Similar points arose in the later case of Commission v
“46. By harmonising the national provisions relating to PPE intended for the protection of fire fighters in the performance of their usual duties, the PPE Directive does not infringe either the principle of subsidiarity or that of proportionality…
49. Since the derogation provided for by point 1 of annex one to the PPE Directive does not apply in this case, the länder were not entitled, by virtue of article 4 (1) thereof, to impose additional conditions on PPE which satisfies the provisions of that directive and bears the EC marking.”
65. When it gave relief at the end of its judgment, the Court of Justice declared “that by subjecting, by means of the legislation of certain länder, [PPE] for firefighters to additional requirements despite the fact that it complies with the requirements of Council Directive 89/66/EEC … the Federal Republic of Germany has failed to fulfil its obligations under… that Directive”.
66. Effectively, the conclusion was that the Community measure pre-empted any member state measure in the same field. The Court attached significance to the fact that the measure was a harmonisation measure to remove a barrier to trade. For that reason, the länder could not adopt additional requirements. By implication, if the measure had permitted additional requirements to be attached, the länder could have adopted differential legislation. One interpretation of this decision is that, where Community law does not require member states to impose the same requirements (as under a harmonisation measure), then regional bodies can pass legislation, and in that event , just as member states are not bound to adopt the same requirements as are adopted by other member states, so too regional bodies can impose different requirements. However, again, that point is not addressed in terms by the Court of Justice.
67. Mr Eicke referred briefly to subsidiarity at the start of his oral submissions, and I refer to it again under (v) below. Commission v
(iv) Art 5 of the Council Regulation expressly permits implementation by regional bodies, but it is not clear whether the non-discrimination principle applies to prevent differential implementation by regional bodies under art 5 without objective justification
68. Relevant extracts of the Council Regulation are set out in the judgment of May LJ and the judge. The critical second sentence of art 5(1) provides that:
“Member States shall define, at national or regional level, minimum requirements of good agricultural and environmental conditions on the basis of the framework set up in Annex IV, taking into account the specific characteristics of the areas concerned, including soil and climatic condition, existing farming systems, land use, crop rotation, farming practices, and farm structures.”
69. This provision is clearly not self-executing. It specifically requires further measures by member states. There is no one method by which the measures are to be achieved. There can therefore properly be differences in the requirements laid down by different member states.
70. In any devolved or federal system, differences between implementing measures (if some latitude is permitted) are bound to occur. This was one of the points made by Judge Matscher in Dudgeon v
71. In the context of the Council Regulation, the term “regional” (which appears near the start of the critical sentence) will bear the meaning assigned to it by Community law. May LJ has referred to the possibility that the words “at national or regional level” in that sentence may refer either to the process of defining the requirements for agricultural and environmental condition or the results of the process of definition (judgment [36]). (We have not been shown any other language versions of the Council Regulation. I have independently considered the French version of art 5, but that does not clarify this point). In my judgment, if there are specific characteristics of regions within the member states, those characteristics must be taken into account under the last 27 words of the critical sentence in art 5. The words “at national or regional level” at the start of the sentence in my judgment refer to the political structures for defining the minimum requirements. Those political structures can under the wording of art 5 be regional or national, depending on the internal constitutional arrangements of the member state. The words “at national or regional level”, read naturally, qualify the word “define”. There is no point in including those words, unless they have a different meaning from the last 27 words of the critical sentence. My interpretation is both in accordance with the language used and logical. A process of legislative definition has inevitably to use political structures. The Council Regulation could reasonably have been adopted on the view that it was more effective and more appropriate to use regional political structures, where they exist, than national ones, particularly in relation to the environment. Mr Fordham submits that a regional political structure may not match the geographical region. In my judgment, this is no answer. That is always going to be a potential problem in relation to the environment, and it is not eradicated by requiring legislation at the level of the member state, which may have territorial jurisdiction only over a part of a region, such as a mountain range or river.
72. The judge explained in his judgment that references to the environment to the Council Regulation were added during the drafting process. Neither party on this appeal has sought to rely on those matters, nor have we been concerned with the legal basis in Community law for the Council Regulation.
73. Accordingly, I conclude that art 5 permits regional bodies to lay down the minimum requirements, but that still leaves the question whether differential implementation within a member state by regional bodies requires objective justification under Community law for departures from some national set of minimum standards. The wording of art. 5 does not provide a clear answer to that point.
(v) Further reasons supporting the judge’s order for a reference include (a) the developing nature of the concept of subsidiarity and (b) the fact that the issue raises constitutional questions for the Community
74. A further reason supporting the judge’s order for a reference is that the issue of interpretation will need to be considered at the level of fundamental principle (on this, see generally Meltzer, Member State Liability in Europe and the United States, (2006) Int’l J Con Law 39, 59-67). If the rationale of the non-discrimination principle is to prevent unjust action by a member state, that rationale has no application where the difference in treatment arises only because of implementation by a regional body acting properly and proportionately in a manner different from that of another regional body in the same member state.
75. Likewise, the principle of subsidiarity has to be considered. This principle was introduced by the
76. Mr Fordham makes the point that the observations of the
European Convention on Human Rights, First Protocol, art 1
77. Mr Fordham also relies on the right to property in art 1 of the First Protocol to the European Convention on Human Rights. Mr Eicke did not address us on this in his submissions, and accordingly I do not refer to it further in this judgment, other than to say that it does not seem to me, provisionally, that it raises any additional issue which requires to be considered by this court on this appeal.
The approach on appeal to an order for reference
78. I must finally deal with Mr Fordham’s submission that the test on this appeal is whether the judge was plainly wrong in concluding the second question in a reference. He submitted that this court should not set aside the exercise by the judge of his discretion to make the reference of the second question unless it was satisfied that he had gone outside the reasonable ambit of his discretion. Mr Fordham also suggested that there was some distinction between making a reference and including a question in a reference, but I do not understand what the difference can be, other than the lessening of any argument about cost and delay. In this case, the question has been whether the judge correctly directed himself as to Community law when he decided to make the reference. This is not an appeal against the weighing up by the judge of considerations relevant to the exercise of discretion, but an appeal on the point of law. If he was wrong on the view of Community law he took and the answer is clear, the appeal would be allowed without reference to any discretionary factor relevant to making a reference. The issue in this case therefore is whether the judge was correct in law and not whether he was perverse in the way he exercised his discretion.
Expedition of the hearing before the Court of Justice and administrative directions
79. Finally, I turn to Mr Eicke’s submission that if this matter is referred, there will be uncertainty in the execution of devolution arrangements. It is impossible to avoid the conclusion that this case raises important constitutional issues for the
80. The judge gave a direction under CPR 68 PD1.4 that a copy of his judgment should be annexed to the reference. The judge’s judgment is, however, some ninety paragraphs. In addition, parts of the judgments of this court will be relevant. The practice direction draws attention in para. 1.2 to the need to translate documents into many other languages and they should always therefore be as succinct as possible. In those circumstances, I would direct the parties to consult the Registry of the Court of Justice to see whether it would assist the Court of Justice to have a summary of the judgments prepared by counsel (either instead of or in addition to the judgments of this court and the High Court). If so, and subject to any further submissions from counsel which may be submitted in writing after this judgment is handed down, I would direct the parties to provide to the Senior Master within a period to be fixed by the court (if not agreed) an agreed summary of the various judgments of the national court (insofar as relevant to the Court of Justice), that this summary must not exceed fifteen A4 pages (single-spaced) and that it must be clearly headed “summary prepared by the parties”. It is important that the summary should be complete (as regards any matter relevant to the proceedings before the Court of Justice) and accurate, as this document would then be used by the members of the Court of Justice and circulated to the other member states to enable them to decide whether to make representations to the Court of Justice. I would make this direction in case the officials of Court of Justice should themselves decide to omit parts of the judgments. This process may lead to the omission of passages which the parties wish to be before the Court or to be included in the communication about the reference from the Court to the other member states. It may also add to the delay.
81. In conclusion, I would dismiss this appeal and give the direction set out in the preceding paragraph.
Lord Justice Scott Baker:
82. I agree that this appeal should be dismissed for the reasons given by May LJ.
