OPINION OF ADVOCATE GENERAL
MISCHO
delivered on 20 September 2001 (1)
Joined Cases C-20/00 and C-64/00
Booker Aquaculture Ltd
trading as
Marine Harvest McConnell
and
Hydro Seafood GSP Ltd
v
The Scottish Ministers
(References for a preliminary ruling from the Court of Session (Scotland), Edinburgh (United Kingdom))
((Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases – Destruction of fish stocks infected by viral haemorrhagic septicaemia ( VHS) – Compensation – Obligations of the Member State – Protection of fundamental rights, particularly the right of property – Validity of Directive 93/53))
1. The Court of Session (Scotland), in Edinburgh (United Kingdom), asks the Court, in essence, whether the right of 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 diseases.
2. The Community legislature, using powers conferred on it under Article 43 of the EC Treaty (now, after amendment, Article 37 EC) concerning the common agricultural policy, has taken action in the field of fish diseases by adopting two directives: Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products, (2) amended by Council Directives 93/54/EEC, (3) 95/22/EC, (4) 97/79/EC, (5) and 98/45/EC, (6) and Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases, (7) amended by Directive 2000/27/EC. (8)
3. Annex A to Directive 91/67, as amended by Directive 93/54, divides the diseases covered by the former directive into three lists.
4. List I contains only infectious salmon anaemia ( ISA), and designates Atlantic salmon as the species susceptible to it.
5. List II contains, amongst others, viral haemorrhagic septicaemia ( VHS), and designates turbot as one of the species susceptible to it.
6. ISA is an exotic disease, whilst VHS is known to be present in various parts of the territory of the Community.
7. Article 3 of Directive 91/67 prohibits the placing on the market of fish produced by aquaculture if they show clinical signs of disease on the day of loading, and the sale of live fish coming from a farm subject to control measures adopted under Directive 93/53, or which have been in contact with fish from such farms.
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 obtain, for a given zone of the Community, the status of approved zone, that is, a zone free of disease.
9. Article 6 lays down a similar procedure 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.
10. Annex B also lays down criteria for the restoration of approval of a zone when this has been lost following an outbreak of disease.
11. Approval can only be restored on the two-fold condition that: (i) immediately following the outbreak, all fish from infected farms were slaughtered and all infected or contaminated fish were destroyed; and all facilities and equipment were disinfected in accordance with a procedure approved by the official service concerned, and (ii) after suppression of the outbreak, the criteria for the grant of approval be met, including that the zone be free of the disease for a period of four years.
12. Lastly, Articles 7 and 9 of Directive 91/67 lay down the conditions in which fish susceptible to the diseases in List II may be transported and placed on the market in the Community. If they originate from an approved zone or farm they may be transported and sold alive. Otherwise they may only be transported to, and sold in, an approved zone after having been slaughtered and eviscerated prior to dispatch.
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 II, occurring in an approved zone or farm.
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 zone around the affected farm; the immediate withdrawal of all fish from its waters; the emptying, cleaning and disinfection of the fish-tanks; the killing and destruction of all fish showing clinical signs of the disease, in accordance with the requirements laid down by Directive 90/667/EEC (9) relating to high risk matter; and the killing of all other fish, which must then be destroyed, unless they have reached marketable size, in which case they may be sold for human consumption after having been slaughtered and eviscerated, the viscera being treated as high risk matter.
15. An epizootic investigation must be carried out, and all neighbouring farms must undergo a health inspection. The farm can only be re-stocked after a satisfactory inspection of the cleaning and disinfection operations, and at the end of a period of time considered necessary by the official service to ensure the eradication of the pathogen.
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 restoration of the approval provided for by Directive 91/67 subject to the requirements laid down by Annex B to that directive, namely, the killing of all fish present at the site in question. The official service may, however, allow the fattening to commercial size of the fish to be slaughtered.
17. Article 20(2) of Directive 93/53 provides that ...Member States may, subject to the general rules of the Treaty, maintain or apply in their territory stricter provisions than those laid down by this Directive. They shall notify the Commission of any such measure.
18. Under Article 17 of Directive 93/53, the conditions for financial contribution by the Community to measures connected with the implementation of the directive are laid down by Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field. (10)
19. Decision 90/424 provides for a financial contribution by the Community to national compensation programmes, subject to criteria I will describe later in the context of the last question, in respect of urgent intervention in the case of the outbreak of certain diseases and programmes for the eradication of certain endemic diseases.
20. In its initial version, Decision 90/424 did not apply to any fish disease. However, in 1994, it was amended, pursuant to Article 5(1), to apply to a fish disease as well, infectious haemotopoietic necrosis ( IHN).
21. Directive 93/53 was implemented in the United Kingdom by the Diseases of Fish (Control) Regulations 1994 (S.I. 1994 No 1447), the 1994 Regulations. They require the relevant minister to make rules applying the measures contained in Directive 93/53 in respect of diseases in List I.
22. The United Kingdom was an approved zone in respect of the diseases in List II, since none of them were present in its territory, and chose to apply to those diseases the same measures as those laid down by the Community in respect of the diseases in List I.
23. Accordingly, the 1994 Regulations provide, in particular, that, in the case of a confirmed outbreak of VHS in an approved zone, all the fish present in an infected farm 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 consumption, provided that they show no clinical signs of disease. By contrast to the regime under Article 9 of Directive 93/53, therefore, the United Kingdom official service cannot authorise the fattening to commercial size of the fish to be slaughtered.
24. It was against this legislative background that two fish farms in Scotland were affected, the one, McConnell Salmon Ltd, (to which Booker Aquaculture Ltd ( Booker) succeeded), by an outbreak of VHS in 1994, and the other, Hydro Seafood GSP Ltd ('Hydro') by an outbreak of ISA in 1998.
25. Booker was required to comply with a ministerial notice, adopted pursuant to the 1994 Regulations, which provided:
4. Subject to paragraph 5 hereof, all fish will be killed and their carcasses destroyed in accordance with the provisions of Council Directive 90/667/EEC provided that the carcasses or remains of those fish shall be disposed of in such a manner or to such place as shall be previously approved by the Secretary of State.
5. Any fish which, at the date of this Notice, are of commercial size may be slaughtered for marketing or processing for human consumption provided that:
(a) in the opinion of an inspector they show no clinical signs of disease;
(b) they are first eviscerated;
(c) their slaughter, evisceration and preparation for marketing or processing for human consumption is carried out in accordance with any rule of law relating to those matters.
...
.
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 Regulations.
27. Hydro was required, by various ministerial notices dealing with its various infected sites, to destroy a large number of fish that had not attained commercial size, and prematurely to market fish that had already reached such size. In addition it had to bear the high costs resulting from the controlled destruction of the slaughtered fish.
28. Both Booker and Hydro claimed compensation 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.
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.
30. In the reference in the proceedings brought by Booker, registered under the number C-20/00, the national court asks three questions, as follows:
1. Where, in implementation of an obligation under Directive 93/53/EEC to provide 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, are the principles of Community law relating to the protection of fundamental rights, in particular the right of property, to be interpreted as having placed on a 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?
2. If the Member State is required to adopt such measures, what are the criteria of interpretation needed by a national court to determine whether the measures that are adopted are compatible with the fundamental rights, in particular the right of property, which the Court ensures and which derive in particular from the European Convention on Human Rights?
3. In particular, do the criteria require that the measures differentiate between the situation where the outbreak of the disease was due to the fault of the owner of the fish concerned and the situation where the owner was not at fault?
31. There are four questions in the reference from the proceedings brought by Hydro, registered under the number C-64/00. The first question differs from that in Case C-20/00 only in that it refers to List I instead of List II. The second and third questions are identical. The fourth question is worded as follows:Is Directive 93/53/EEC invalid as being in breach of the fundamental right of property in not making provision for the payment of compensation to (a) 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, in circumstances where an outbreak of ISA has been confirmed?
32. The two cases were joined for the purposes of the written procedure, the oral procedure and judgment.
33. In their written and oral observations Booker and Hydro submitted that, in applying a blanket policy which denies any right to compensation whatsoever, the Scottish Ministers have breached fundamental 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.
34. On the second question, concerning the degree of protection accorded by Community law to the right of property, Booker and Hydro consider that the right of property guaranteed in the Community legal order includes a right to be paid compensation for losses suffered following the destruction, or immediate and premature slaughter of fish stocks by order of the public authorities. In their opinion, the absence of any compensation in the application of domestic legal measures implementing a directive infringes the principle of proportionality.
35. As regards the right to protection of property enshrined in Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the European Convention on Human Rights), 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 contested notices as the control of use of property is totally unrealistic and, in any event, renders ineffective the protection of the right of property by Community law.
36. As for the third question, namely whether, in deciding whether provision should be made for compensation, it is necessary to differentiate according to whether the outbreak of the disease is, or is not, due to fault on the part of the owner of the affected fish, Hydro and Booker submit that the question of fault can only be a factor in assessing fair compensation.
37. As regards the fourth question, on the validity of Directive 93/53, Hydro submits that, to the extent that Community legislation permits, or implicitly authorises, the Member State concerned to infringe the right of property in implementing and applying that directive, those measures constitute an unacceptable breach of the right of property.
38. All the other parties who have submitted observations to the Court, namely the respondent, the French, Italian, Netherlands, United Kingdom and Norwegian Governments, and the Council and the Commission, are agreed that there is no provision in the relevant Community measures providing for the payment of compensation in the context of the cases in question. If any duty to pay compensation exists in Community law, it can only derive from general principles of law.
39. They consider, however, that those general principles do not require the payment of compensation in the circumstances of the main proceedings, and that Directive 93/53 is, therefore, valid.
The first questions
40. It is clear that, in the two cases, it is the first question that is essential. The second and third questions, assuming that they require to be answered, only concern the detailed rules for the payment of compensation that would be made necessary by a positive response to the first question. The fourth question, in Case C-64/00, even if it does not raise exactly the same problem as the first, is also, nevertheless, strictly dependent, in terms of the reply it calls for, on that given to the first.
41. It is therefore by this first question, in the two versions, each corresponding to the specific situation of the applicants in the main proceedings, that I must begin my analysis.
42. In order to carry this out logically, it is necessary to proceed in stages. It is only meaningful to consider what the Community principles on the protection of fundamental 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.
43. I will therefore ask, without, for the moment, concerning myself with the content of the principles of Community law to which the national court refers, whether, when it adopted the 1994 Regulations, and subsequently the individual measures concerning the farms of Booker and Hydro, the United Kingdom was required to comply with the general principles of Community law. In other words, can the legality of the national measures be contested on the basis of a breach of the general principles of Community law? Do the general principles of Community law apply?
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 principles. (11)
45. On the other hand, in respect of measures adopted to apply Community law, the case-law of the Court of Justice has very clearly stated that those principles must be respected.
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 requirements.
47.
In ERT , (13) the Court confirmed this applicability of fundamental rights enshrined in the general principles of Community law to national rules when [those rules] fall within the scope of Community law.
48.
In Bostock , (14) the Court, relying expressly on those two judgments, considered whether the protection of fundamental rights recognised in the Community legal order required a Member State to introduce, amongst the measures it adopted to implement the system of production quotas laid down in the context of the common organisation of the milk market, a system of compensation for the outgoing 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.
49. In the same way, in Demand , (15) the 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, they are required to do so in compliance with general principles and fundamental rights upheld in Community law by decisions of the Court of Justice.
50. This case-law, settled though it is, remains confined, however, to the question of measures adopted by the Member States in order to apply regulations. That might lead some to conclude that the same case-law does not apply where national measures are adopted in order to implement a directive. In my opinion, such a conclusion would be wrong.
51. First, it is not certain that, when, in the Wachauf case, the Court used the term Community rules it was doing so in the narrow sense of Community regulation rather than in the wider sense of that term, which can apply to directives as well as to regulations.
52. Next, even if one agrees with Bruno de Witte (16) that:The question whether the Wachauf line (Member States are bound by Community fundamental rights when they implement EC law) also applies to the transposition and implementation of directives (as opposed to the mere execution of regulations as in Wachauf and Bostock ) remains unclear,it is difficult to see the justification for saying that, when implementing directives, the Member States are freed from their obligation to respect the fundamental rights enshrined in the Community legal order.
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 of the general principles of Community law, (17) but has never declared those general principles to be binding as such on the States when they are adopting measures for the transposition of a directive. Yet, one would think that the choice of form and 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 Wachauf line to directives (and, indeed, to the application by Member States of external agreements concluded by the EC) would seem logical.
54. Lastly, in the actual case before us today, Directive 93/53 states, at the same time as providing that the Member States may ... maintain or apply ... stricter provisions than those laid down by this Directive, that in doing so they must act subject to the general rules of the Treaty.
55. This point alone seems to me to preclude a Member State from claiming that, as long as it faithfully transposes the rules laid down by the directive, without adding anything, it is, in common with the Community legislature, the author of the directive, required to respect fundamental rights, but that as soon as it supplements the measures it is required to adopt by other measures, which seem to it to be appropriate for fully achieving the aim, sought by the directive, of eradicating fish diseases, it can disregard fundamental rights.
56. The legality of a national provision adopted to transpose a Community directive, 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.
57. A directive intrudes, so to speak, into the internal legal order, where it becomes a rule of reference to which the transposing measures must conform.
58. But it does not do so alone. It is inseparable from the norms to which it must, itself, conform, including, obviously, the general principles of Community law.
59. I will therefore take it for granted that, as Booker and Hydro contend, a Member State must respect fundamental rights when it implements a directive. This leads to the question whether, as the two undertakings assert, the measures adopted by the United Kingdom in response to the outbreak of the two diseases constituted a breach of a fundamental right, in this case the right of property.
The relevant case-law of the Court of Justice on the right of property
60. I begin by stating that the right of property is, indeed, a fundamental right. It was established as such in Nold v Commission , (18) and has been constantly upheld since. (19) According to the Court's case-law, what is the scope of this right or, more accurately, what is the extent of the safeguard it ensures against possible encroachment by the State?
61. As early as Nold v Commission , the Court answered this question. It held that: As the court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures.In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot, therefore, uphold measures which are incompatible with fundamental rights recognised and protected by the constitutions of those States.Similarly, international treaties for the protection of human rights, on which the Member States have collaborated, or of which they are signatories, can supply guidelines which should be followed within the framework of Community law....If rights of ownership are protected by the constitutional laws of all the Member States, and if similar guarantees are given in respect of their right freely to choose and practise their trade or profession, the rights thereby guaranteed, far from constituting unfettered prerogatives, must be viewed in the light of the social function of the property and activities protected thereunder. For this reason, rights of this nature are protected by law subject always to limitations laid down in accordance with the public interest. Within the Community legal order it likewise seems legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched.
62. This answer has never subsequently been called into question. It is true that in Hauer , the Court carried out a more 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.
63. It reaffirmed that the right of property does not constitute an absolute prerogative. It may, on the contrary, in view of its social function, be subject to appreciable restrictions, it being understood that these cannot, with respect to the aim pursued by the authority applying them, constitute a disproportionate and intolerable interference with the rights of the owner, impinging upon the very substance of the right of property (paragraph 23).
64. In the light of this case-law, were the decisions with which Booker and Hydro were required to comply a breach of the right of property? I do not think so.
65. First, I note that these decisions cannot be called arbitrary, since they were taken by the competent authority in application of pre-existing legislation.
66. Next, I note that they pursue an aim unquestionably in the public interest. As I stated above, the outbreak of a disease, on a fish farm, can only be taken very seriously because of the risk of it becoming an epidemic, quickly running out of control, and bringing about the ruin of the entire economic sector concerned.
67. It is true that, in the current state of scientific knowledge, the diseases that occurred in the farms of Booker and Hydro do not pose any danger to human health, but it is just as true that, at the time of the outbreaks, the same scientific knowledge did not enable one to envisage any means of combating the diseases in question other than the slaughter of the fish on the infected farms.
68. It is true that, in respect of the diseases in List II, that is, those that are endemic in the Community, the Community legislature itself leaves to the Member States the power to defer the slaughter of fish not showing any signs of the disease until they attain commercial size, when they may sold for human consumption.
69. Booker has not failed, moreover, to invoke this freedom left to the Member States in order to challenge the validity of the decision ordering immediate slaughter without compensation, motivated, in its view, not by animal health considerations, but by the desire to restore, as quickly as possible, the status of approved zone for the region where the outbreak of the disease at its farm occurred.
70. In my view this criticism is unwarranted, for the public interest cannot be confined to the protection of human or animal health, but certainly also extends to the restoration of conditions enabling the harmonious development of an economic activity contributing to national prosperity.
71. Directive 91/67 shows that the loss of approved zone status has considerable disadvantages for the marketing of aquaculture products, such as very seriously to restrict this branch of economic activity.
72. I note, lastly, that the measures adopted by the United Kingdom authorities, viewed as a whole, do not constitute a disproportionate and intolerable interference, impinging upon the very substance of the right of property.
73. Booker and Hydro emphasise the obligation imposed on them of systematic slaughter followed by destruction.
74. It is, however, necessary, in my opinion, to place this obligation in the context of the range of measures imposed by the public authorities, following the outbreak of the diseases on the farms in question. These measures had a single purpose, the eradication of the disease, and were deployed on all fronts where the disease had to be fought. The destruction of slaughtered fish was perhaps the most spectacular measure, but it cannot be forgotten that it was accompanied by systematic disinfection of the facilities and waters with the intention of bringing about, so far as possible, the disappearance of all trace of the infectious agent.
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 fish does not, at any given moment, show signs of the disease does not mean that it is not contaminated by the virus causing the disease. To limit the slaughter to infected fish would, almost certainly, result in 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.
76. Furthermore, though I do not lay claim to any competence whatsover in veterinary matters, I fail to see what advantage there would be in keeping fish in the facilities that had been in contact with fish showing clinical signs of the disease, and probably destined to develop the disease themselves before too long.
77. On the contrary, it seems to me to be reasonable to empty the facilities completely, destroying those fish showing clinical signs of the disease, and, subject to certain precautions, to market those not showing such signs, and which meet the marketing rules in force, in that they have already attained commercial size. This is precisely what the United Kingdom legislation, as applied to Booker and Hydro, provided for.
78. The restriction of the right of property suffered by these two undertakings consisted, therefore, in the obligation, firstly, to interrupt, by systematic slaughter, the fattening of the fish present in their facilities and, secondly, to destroy those fish which could not be marketed, either by reason of their state of health, or because they were of insufficient size. We are plainly very far from a disproportionate and intolerable interference within the meaning of Hauer .
79. It remains to consider whether the decisions taken by the United Kingdom authorities, though they appear proportionate in terms of the obligations imposed, should not, in the final analysis, be considered disproportionate in that they exclude any compensation.
80. I would make two preliminary remarks: first, the Court's case-law concerning the right of property has never stated that any restriction of this right must necessarily be accompanied by compensation. Even Wachauf , in which the Court recognised that, in the situation before it, respect for fundamental rights could not be reconciled with the absence of any compensation, falls short of laying down such a rule.
81. Secondly, I do not consider that the judgment in Flip and Verdegem (20) decides the question with which I am concerned one way or the other.
82. In that case, the Court took care to state that it considered that the questions referred for a preliminary ruling should be understood as concerning, more generally, whether Community rules on control of classical swine fever, as a whole, should be interpreted as providing for complete and immediate compensation for producers whose pigs have been slaughtered by order of the national authorities and, if not, whether those rules should be considered to be compatible with the principle of non-discrimination laid down in Article 7 of the EEC Treaty, now Article 6 of the EC Treaty (paragraph 19).
83. The Court replied to this question by stating that in the absence of Community provisions on the matter, compensation of owners whose pigs have been slaughtered by order of the national authorities under measures to control classical swine fever falls within the competence of each Member State.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 compensation for owners whose pigs have been slaughtered by order of the national authorities (paragraphs 30 and 31).
84. It cannot be inferred from that either that the Member States are exempt from the payment of any compensation or, by contrast, that they are required to grant compensation so as not to be in breach of fundamental rights.
85. One may, at most, wonder whether the Court, in referring merely to the competence of the Member States, did not implicitly recognise that there was no principle of Community law requiring such compensation.
86. Having made these observations, I must now turn to the specific situation on which the national court has consulted us.
87. In this respect, it must be stated that, even in the absence of any intervention by the national authorities, Booker and Hydro would, in any case, have suffered a loss, given the presence in their facilities, firstly, of diseased fish and, secondly, of fish likely to become so within a short space of time, and having, by this fact, lost a large part of their commercial value.
88. The factor triggering the losses they have sustained, therefore, has nothing whatsoever to do with the United Kingdom authorities; it is quite simply the outbreak of a disease on their farms.
89. This outbreak was, as was emphasised in the course of the written procedure, an occurrence to which all farmers are, unfortunately, exposed, no matter what animals they rear. All economic activity probably involves risk, but that risk is particularly great for activities involving the commercialisation of living things.
90. This risk is freely accepted by the economic operators who engage in such activities, and no State has, to date, at least to my knowledge, laid down in principle that losses caused by the outbreak of a disease must always give rise to the payment of compensation from public funds, even if, in fact, many States do grant such compensation in the case of major epidemics.
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 geographical radius around the infected farm, such that they may be contaminated in their turn.
92. No one would think of denying that everything that is dangerous ought to be eliminated, and that this constitutes one of the tasks of the State.
93. We are, in such a case, poles apart from 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, must be eliminated and which therefore no longer has any prospect of being sold for profit.
94. The United Kingdom authorities did not derive any enrichment from the implementation of the measures imposed on Booker and Hydro, who, by an unfortunate combination of circumstances, found themselves, at a given time, the owners of fish some of which had lost part and some all of their market value.
95. This situation may be compared with that where a public authority orders the destruction of a building in danger of 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 for elaborate precautions.
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 intended to appropriate his building.
97. The situation of Booker and Hydro must also be distinguished from that in which disease prevention measures are applied to farms which may be exposed to risk but which, at the time when the restrictive measures are applied to them, have no case of the disease.
98. In such a case, it is certainly right to question, on the grounds of the principle of proportionality, the admissibility of draconian measures imposed without payment of compensation, for purely preventive reasons. In my opinion, in that case, the balance between the public interest pursued and the extent of the sacrifice imposed on the farmer whose farm is free of any contamination might tend towards the payment of compensation.
99. But that is not the problem before us today, since the outbreak of a contagious disease, fraught with risk for an entire economic sector, did occur in the farms of Booker and Hydro.
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 unreasonable having regard to the danger linked to the presence of contaminated fish in the farms concerned, and the situation with which they were intended to deal could not, on any account, be imputed to any action, inactivity or carelessness on the part of the public authorities, but resulted solely from the realisation of a risk inherent in aquaculture. Taking all of these factors into account, I consider that the case-law developed by the Court on the right of property does not require the payment of compensation.
101. There remain, however, two tests to be applied before I am finally able to propose a reply to the first question in each of the two cases before me.
102. As has been held since Nold , and confirmed in Hauer , Community law does not, in defining the precise content of fundamental rights, ignore the level of protection provided, firstly, by international 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.
103. It is true that the judgments of the Court I have cited already take account of these sources of law but, in the interests of thoroughness, I will go on to consider the most recent case-law of the European Court of Human Rights as well as the constitutional principles of the Member States.
The European Convention on Human Rights
104. I will, therefore, begin by considering whether the European Convention on Human Rights, and specifically the First Protocol, as interpreted by the European Court of Human Rights, renders measures such as those to which the farms of Booker and Hydro were subject inadmissible, from the point of view of the protection due to the right of property, if they are not accompanied by compensation.
105. It will be recalled that Article 1 of the Protocol reads as follows: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
106. For the European Court of Human Rights, as it has just stated in the recent decision in Malama v Greece , of 1 March 2001, which joins a line of settled case-law, [t]his article contains three distinct rules: the first, in the first sentence of the first paragraph, which is of a general nature, sets out the principle of peaceful enjoyment of property; the second, in the second sentence of the same paragraph, refers to the deprivation of property, and subjects it to certain conditions; as for the third, set out in the second paragraph, this recognises the power, amongst others, of the States to control the use of property in accordance with the general interest. There is, however, a connection between these rules. The second and third refer to particular examples of interference with property. They must, accordingly, be interpreted in the light of the principle enunciated in the first.
107. When it is called upon to decide an actual case, in which an applicant alleges a breach of Article 1 of the First Protocol, the European Court of Human Rights always adopts the same approach in principle. It starts by examining whether there has, in fact, been an interference with the right of property. If it decides that there has, it proceeds to apply a series of tests. It establishes, first, that the interference was provided for by law. In the decision cited above, it stated in this respect that Article 1 of the First Protocol requires, above all, that an interference by the State in the peaceful enjoyment of a person's possessions be lawful: the second sentence of the first paragraph of that article only permits the deprivation of property subject 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 of law, one of the fundamental principles of democratic society, is a concept inherent in all of the articles of the Convention (Eur. Court HR Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, pp. 850 to 851, paragraph 50). The Court then ascertains whether the interference pursues a legitimate purpose, that is, whether there was a reason in the general interest within the meaning of the second rule laid down by Article 1.
108. In the same decision it is stated in this respect that: The Court considers that, because of their direct knowledge of their society and its needs, the national authorities are, in principle, better placed than the international judge to appreciate what is in the public interest. Under the system of protection established by the Convention, it is, thus, for the national authorities to make the initial assessment of the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.Furthermore, the notion of public interest is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the legislature disposes of a margin of appreciation in implementing social and economic policies, will respect the latter's judgment as to what is in the public interest unless that judgment be manifestly without reasonable foundation ( James v. United Kingdom, 1986 Series A No 98, p. 32, paragraph 46).
109. If these first two conditions, without which any interference constitutes a breach of Article 1 of the First Protocol, are met, the European Court of Human Rights addresses the most delicate question, namely the proportionality of the interference. In the decision cited above, it set out the considerations that guide it in the matter as follows: A measure interfering with the peaceful enjoyment of a person's possessions must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights ( Sporrong and Lonnroth v Sweden , 1982 Series A, No 52, p. 26, paragraph 69). The concern to achieve this balance is reflected 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 by any measure depriving a person of his possessions ( Pressos Compania Naviera S.A. v. Belgium , 1995, Series A, No 332, p. 23, paragraph 38).Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance, and, notably, whether it does not impose a disproportionate burden (21) on the applicants. In this connection, the Court has already said that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 only in exceptional circumstances ( Holy Monasteries v Greece , 1994, Series A, No 301-A, p. 35, paragraph 71).
110. It will be noted, at paragraph 53 of Mellacher v. Austria , of 19 December 1989, (22) that the European Court of Human Rights stated the following, on the subject of the requirement of proportionality:The possible existence of alternative solutions does not in itself render the contested legislation unjustified. Provided that the legislature remains within the bounds of its margin of appreciation, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way (see the James and Others judgment, cited above, Series A No 98, p. 35, paragraph 51).
111. But it will be observed, above all, that if the payment of compensation appears, from the review of the case-law of the European Court of Human Rights, indispensable if the interference is not to appear disproportionate in every case to which the first paragraph of Article 1 of the First Protocol applies, namely, in all cases of deprivation of property, (that is, expropriation resulting in a transfer of ownership, or equivalent measures), compensation does not have the same inevitable character in the case of measures coming within the second paragraph of Article 1, namely, measures controlling the use of goods.
112. A measure of this type must, of course, respect the principle of proportionality. But the absence of compensation is only one element amongst all those taken into consideration in determining whether the extent of the sacrifice imposed on the individual appears justified in the light of the general interest pursued.
113. It does not have the effect of automatically tilting the balance towards the conclusion that the interference is not permissible. It was in this way, for example, that the European Court of Human Rights, in its decision in Handyside v. United Kingdom , of 7 December 1976, (23) cited by the United Kingdom Government, accepted the validity of the destruction without compensation of pornographic material, which it regarded as a form of control of the use of goods, which restricts the Court to review of the legality and purpose of the restriction to the right of property.
114. In that decision, the European Court of Human Rights stated, in support of the solution it adopted, that:The forfeiture and destruction of the Schoolbook, on the other hand, permanently deprived the applicant of the ownership of certain possessions. However, these measures were authorised by the second paragraph of Article 1 of Protocol No. 1 (P1-1), interpreted in the light of the principle of law, common to the Contracting States, whereunder items whose use has been lawfully adjudged illicit and dangerous to the general interest are forfeited with a view to destruction.
115. From this rapid overview of the case-law of the European Court of Human Rights it seems to me that firstly, as a matter of principle, the protection of the right of property according to the case-law of the Court of Justice is not more restrictive than the protection accorded to the same right under the European Convention on Human Rights, and that, secondly in the actual cases before us, it is difficult to characterise the measures of which Booker and Hydro complain as a breach of the First Protocol of the said Convention. The judgment in Nold , in which the Court's definition of the right of property was derived from the same source as the European Court of Human Rights, suggested that this would be the conclusion the Court would reach here, but the concerns expressed by the national court making the reference, and the insistence with which Booker and Hydro have referred to the European Convention of Human Rights, prevented me from dispensing with such a step.
The constitutions or constitutional principles of the Member States
116. Booker states that the constitutional texts of the Member States, which it reproduces in an annex to its observations, would enable it to obtain the payment of compensation for all or part of the losses it has suffered in practically all of the Member States of the Community, except the United Kingdom.
117. There is no doubt that all of the constitutions enshrine the right to private property, subject to requisition or expropriation in accordance with the public interest, 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.
118. There is, however, doubt as to whether the destruction of goods on grounds of public health ─ a case that does not involve any transfer of property to the benefit of the authorities ─ is treated in the same way as such requisition or expropriation.
119. It is true that in Spain, the courts have held that the destruction of animals affected by a contagious disease is a special form of expropriation. However, this does not flow directly from the Constitution.
120. It is the Constitution of the Kingdom of the Netherlands that seems to me to be the most explicit, providing, in respect of 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 courts and academic authorities consider, however, that there is no automatic right to compensation in the case of destruction of property in the public interest.
121. This is confirmed by the observations submitted by the Netherlands Government in the present cases. It stated with particular force that the costs involved in this case by the outbreak of the diseases, including those arising from the control measures, must be borne by Hydro and Booker. The Netherlands Government added: Many Member States adhere to the principle that, in general, everyone must bear the damage that they personally have suffered. It is for the victim to bear his loss, whether this results from mistake, negligence or unforeseeable circumstances. This is, in principle, the case for poor harvests owing to drought, damage caused by lightning or flooding, or that caused by disease.
122. In Ireland, according to the case-law, the destruction of diseased animals requires the payment of compensation, in the light of the Constitution, if the interference with the right of property constitutes an unfair infringement of the said right. The unfairness 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, disproportionate or irrational.
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.
124. Booker also cites three Member States (the Kingdom of Sweden, the Republic of Finland, and the French Republic) in which specific legislation provides for the payment of compensation in respect of fish diseases. It turns out that such legislation also exists in other States of the Community (the Federal Republic of Germany, the Republic of Austria, the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of Spain, the Hellenic Republic, the Italian Republic, the Kingdom of the Netherlands and the Portuguese Republic). I am, however, doubtful whether the Parliaments of these Member States adopted these laws in order to protect private property: they did so, rather, out of national solidarity with the farmers concerned, or in order to obtain their active cooperation in the eradication of diseases likely to spread very widely and very quickly.
125. I note, lastly, that the European Union Charter of Fundamental Rights, proclaimed in December 2000 at the European Council of Nice, likewise does not encourage 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.
126. I know 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 established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order. On the right of property, Article 17 of the Charter states that: 1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.2. Intellectual property shall be protected.
127. On reading this text, it is immediately apparent that it adopts the distinction already laid down in the European Convention of Human Rights, and carefully distinguishes between deprivation of property, and control of the use of goods, requiring the payment of compensation for the former, but having no word on the subject for the latter.
128. Having regard to the discussions to which this distinction has given rise in the context of the European Convention on Human Rights, it does not appear to me possible that this silence is the result of accidental oversight.
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 limitation of the use of goods.
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 be so infected within a short space of time.
131. In my opinion, the situation would be different if it were a question of destroying the fish in an aquaculture facility not yet infected by the disease, solely for the purpose of preventing the bacteria or virus from entering an area favourable to the subsequent geographical spread of the disease. In that case, where the disease may well not occur in the facility in question, the obligation to kill the animals would be comparable to a burden imposed by the public authority in the public interest. It probably ought, therefore to give rise to the payment of compensation.
132. This not being the case in the main proceedings, I propose, in common with the Scottish Ministers, the United Kingdom, French, Italian, Netherlands and Norwegian Governments and the Commission, that the Court reply to the first 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.
The second and third questions
133. If a negative response is, thus, given to the first question, there is no need to consider the second and third questions. I 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 .
134. It is difficult to conceive that the public authorities must compensate the owner of a farm in fact affected by a fish disease in respect of measures imposed by the former, not only for the losses in fact sustained, in relation to the investment and running costs incurred in the undertaking, but also for the loss of profit that the owner hoped to make from that activity.
135. The balance between public and private interest should not lean in favour of a system of comprehensive insurance without any premium being paid by the person insured.
136. Equally, in my view, there should be no question of compensation where it can be shown that there is a causal connection between some fault or negligence on the part of the farmer, and the outbreak of the disease.
The fourth question in Case C-64/00
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 making provision for the payment of compensation where an outbreak of ISA has been confirmed.
138. I note that this directive introduces minimum Community measures for the control of certain fish diseases, and in order to ensure rational development of the aquaculture sector and to contribute to the protection of animal health in the Community (second recital to the preamble).
139. It does not establish an obligation on the part of the Member States to pay compensation for any disease.
140. My proposed reply to the first question in the two cases leads me, logically, to give a negative response to the fourth question.
141. If due respect for the right of property does not require that farmers in the position of Booker and Hydro be paid compensation, it cannot be considered that Directive 93/53 breaches the farmers' right of property in not requiring the Member States to award them such compensation.
142. Furthermore, because we are concerned 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.
143. Article 17 provides, simply by way of a reminder, only that [t]he conditions governing the Community's financial contribution to the measures connected with the application of this Directive are laid down in Decision 90/424/EEC.
144. Article 1 of the latter decision lays down the procedures governing the Community's financial contribution (24) towards:
─ specific veterinary measures,
─ inspection measures in the veterinary field,
─ programmes for the eradication and monitoring of animal diseases
.
145. As the expression contribution indicates, the Community does not assume the whole of the cost of intervention by the Member States, but it makes a contribution, by way of partial repayment of the latter's expenses.
146. This contribution is dependent upon a decision by the Member State in question to pay compensation to the owners of animals infected by a disease.
147. Article 3 of Decision 90/424 (which 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: The Member State concerned shall obtain a financial contribution from the Community for the eradication of the disease, on condition that the measures applied immediately comprise at least the isolation of the holding from the time of suspicion and, following official confirmation of the disease: ...
─ swift and adequate compensation of the livestock farmers
.
148. It is therefore only if the Member State decides, in its absolute discretion, to compensate the farmers (and does so quickly and adequately) that the Community contributes to its costs.
149. It is true that the decision seems to imply that the Member States were all in agreement in fact to compensate those farmers whose animals were infected by one of the diseases listed in the decision.
150. As regards the financial contribution of the Community, it is justified by the concern to make a contribution towards the eradication, as quickly as possible, of any outbreak of a serious infectious disease (fifth recital of Decision 90/424). No mention is made of the need to compensate the damage suffered by the farmers. It seems, therefore, that the Council saw in the payment of compensation a means of obtaining the effective cooperation of the farmers.
151. But it must be accepted, above all, that there is nothing in that decision preventing the United kingdom from deciding to pay compensation to those farmers whose animals are infected by diseases not listed in that decision.
152. The fact that, in Decision 90/424 as currently drafted, the United Kingdom could not obtain a financial contribution from the Community to its compensation measures, if it decided to take any, is a secondary question concerning the finance ministry of that Member State alone.
153. The payment of compensation to farmers and the Community contribution to that compensation are entirely separate questions.
154. Even if the payment of compensation to farmers was an obligation required for the due respect of the right of property, which it is not, it would not necessarily follow that there was an obligation on the Community to contribute to the financing of that compensation.
155. The Council is free to impose obligations on the Member States, undertakings and private individuals giving rise to financial burdens, without having, at the same time, to provide for financial contribution on the part of the Community to those burdens.
156. Only a Member State could challenge, for example, by invoking the principle of equality of treatment, the fact that the decision in question here does not provide for the financial contribution of the Community in respect of certain fish diseases present in its territory, whilst it does do so in respect of diseases present in the territory of other Member States. The United Kingdom has brought no such action against the Council.
157. Neither Directive 93/53 nor Decision 90/424 can, therefore, be declared invalid on the ground that they do not provide for the payment of compensation to farmers of fish infected by the two diseases in question.
158. The principle of such compensation being a question entirely for the Member States, it is in accordance with the different national laws that it must be determined.
159. Thus, supposing that Scottish law recognises a principle of equality of treatment comparable to that in Community law, it would be for the fish farmers to show that they are in a situation substantially identical to that of cattle farmers who have received compensation on the grounds that their animals were infected by bovine spongiform encephalopathy (BSE), or foot and mouth disease.
160. I see no reason therefore to propose that the Court declare Directive 93/53 (or Decision 90/424) invalid, whether on grounds of breach of the right of property, or breach of the principle of equality of treatment.
Conclusion
161. Having regard to the conclusions I have reached in respect of the various questions submitted by the national court for a preliminary ruling, I propose that the Court reply as follows:
(1) In Case C-20/00
─ 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,
─ and not to reply to the second and third questions.
(2) In Case C-64/00
─ to the first question, that:
Where, in implementation of an obligation under Council Directive 93/53 to take control measures for an outbreak of a List I 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,
─ not to reply to the second and third questions and to reply to the fourth question that:
Examination of Directive 93/53 in the light of the need to respect the right of property reveals no factors affecting its validity.
1 – Original language: French.
2 – OJ 1991 L 46, p. 1.
3 – Council Directive of 24 June 1993 (OJ 1993 L 175, p. 34).
4 – Council Directive of 22 June 1995 (OJ 1995 L 243, p. 1).
5 – Council Directive of 18 December 1997 (OJ 1998 L 24, p. 31).
6 – Council Directive of 24 June 1998 (OJ 1998 L 189, p. 12)
7 – OJ 1993 L 175, p. 23.
8 – Council Directive of 2 May 2000 (OJ 2000 L 114, p. 28).
9 – Council Directive of 27 November 1990 laying down the veterinary rules for the disposal and processing of animal waste, for its placing on the market and for the prevention of pathogens in feedstuffs of animal or fish origin and amending Directive 90/425/EEC (OJ 1990 L 363, p. 51), amended by Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health requirements governing trade in and imports into the Community of products not subject said requirements laid down in specific Community rules referred to in Annex A(I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC (OJ 1993 L 62, p. 49).
10 – OJ 1990 L 224, p. 19.
11 – See Case C-299/95 Kremzow [1997] ECR I-2629.
12 – Case 5/88 [1989] ECR 2609, paragraph 19.
13 – Case C-260/89 [1991] ECR I-2925, paragraph 42.
14 – Case C-2/92 [1994] ECR I-955.
15 – Case C-186/96 [1998] ECR I-8529, paragraph 35.
16 – The past and future of the European Court of Justice in the protection of human rights, EU and Human Rights , Oxford University Press, 1999, pp. 859 to 897.
17 – Case 36/75 Rutili [1975] ECR 1219; Case 222/84 Johnston [1986] ECR 1651; the same principle of interpretation applies, obviously, to regs: Case 249/86 Commission v Germany [1989] ECR 1263. See discussion of those cases in Craig and da Bürca, note 27 above at 318-20.
18 – Case 4/73 [1974] ECR 491.
19 – See, in particular, Case 44/79 Hauer [1979] ECR 3727; Joined Cases 41/79, 121/79 and 796/79 Testa [1980] ECR 1979; Case 265/87 Schräder [1989] ECR 2237; and Case C-84/95 Bosphorus [1996] ECR I-3953.
20 – Case C-315/93 [1995] ECR I-913.
21 – It is to this concept that the European Court of Human Rights refers in its most recent case-law, after having used, in the Case of Sporrong and Lonnroth v. Sweden and James v. United Kingdom , cited above, the expression excessive and individual burden.
22 – Series A No. 169.
23 – Series A No. 24.
24 – The emphasis is mine
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