The Queen, on the application of Mark Horvath v Secretary of State for Environment, Food and Rural Affairs.

• Jurisdiction: European Union
• Celex Number: 62007CC0428
• ECLI: ECLI:EU:C:2009:47
• Docket Number: C-428/07
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 03 February 2009

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 3 February 2009 ¹(1)

Case C‑428/07

Mark Horvath

v

Secretary of State for Environment, Food and Rural Affairs

(Reference for a preliminary ruling from the High Court of Justice of England and Wales (United Kingdom))

(Article 5 of and Annex IV to Regulation (EC) No 1782/2003 – Direct aid – Common agricultural policy – Minimum requirements for good agricultural and environmental condition of land – Possibility of laying down requirements relating to the maintenance of visible public rights of way – Devolved implementation of Community law in a Member State – Principle of equality)

Table of contents

I – Introduction

II – Legal framework

A – Community law

B – National law

III – Facts and main proceedings

IV – Questions

V – Procedure before the Court of Justice

VI – Main arguments of the parties

A – The first question

B – The second question

VII – Legal assessment

A – First question

1. Environmental policy aspects in Regulation No 1782/2003

a) The relationship between agriculture and environmental protection in the CAP

b) Environmental protection requirements in Regulation No 1782/2003

c) The legal bases in primary law

2. The Member States’ powers to define minimum requirements

a) Regulation No 1782/2003 as conferring rule-making powers

b) The practical implementation of Regulation No 1782/2003 in England

i) The concept of ‘landscape’ within the meaning of Regulation No 1782/2003

ii) The physiognomic concept of landscape

iii) The geographical concept of landscape

– Topographical features

– Definition of the geographical concept of landscape

c) Measure for the ‘retention of landscape features’

d) Maintenance of public rights of way as a measure to ‘ensure maintenance’ and to ‘avoid the deterioration of habitats’ within the meaning of Annex IV to Regulation No 1782/2003

3. Conclusions

B – The second question

1. Devolved implementation of Community law

a) Devolved and differentiated rule-making under the CAP

b) Autonomy of the Member States in the allocation of their internal powers

2. The alleged breach of the principle of non-discrimination

a) The relevant reference framework for assessing a difference in treatment

i) Mutatis mutandis application of the criteria for determining selectivity in the law on aid

ii) Identification of the source of discrimination

b) Conclusions

VIII – Conclusion

I – Introduction

1. In this reference for a preliminary ruling the High Court of Justice of England and Wales (‘the referring court’) has asked the Court of Justice of the European Communities two questions on the implementation at national level of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers. (2)

2. The first question concerns the interpretation of Article 5(1) of and Annex IV to Regulation No 1782/2003. The referring court specifically seeks to ascertain whether a Member State is permitted to include requirements relating to the maintenance of visible public rights of way in the standards of good agricultural and environmental condition of land set out therein. With its second question, the referring court would like to know whether it can give rise to impermissible discrimination for constituent parts of a Member State to have different standards of good agricultural and environmental condition under Article 5 of and Annex IV to Regulation No 1782/2003 because a Member State’s internal constitutional arrangements provide that different devolved administrations are to have legislative competence in relation to different constituent parts of that Member State.

3. This reference has been made in a dispute between Mr Horvath (‘the applicant’) and the Secretary of State for Environment, Food and Rural Affairs (‘the defendant’) concerning the lawfulness of a national implementing regulation which defines the minimum requirements for good agricultural and environmental condition of agricultural land for the territory of England.

II – Legal framework

A – Community law

4. On 29 September 2003 the Council adopted Regulation No 1782/2003, which entered into force on 28 October 2003.

5. The regulation was adopted an order to provide for a policy of supporting farmers’ incomes by means of a single payment scheme (‘the single payment scheme’). The single payment scheme is intended to provide farmers with a minimum guaranteed income, ‘decoupled’ from production, by allocating to farmers ‘payment entitlements’ against which they may claim a direct payment annually. Receipt of the annual direct payment under the single payment scheme – if claimed by the farmer – is subject to ‘cross-compliance’ conditions (Article 3).

6. The cross-compliance conditions comprise two elements: the ‘statutory management requirements’ (Article 4), to be established by Community legislation, and ‘good agricultural and environmental condition’ (Article 5).

7. Article 5(1) of the regulation provides:

‘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.’

8. If the cross-compliance conditions are not satisfied, the total amount of direct payments to be granted in the calendar year in question is to be reduced or cancelled pursuant to Article 6(1) of Regulation No 1782/2003.

9. Annex IV to the regulation states:

‘Good agricultural and environmental condition referred to in Article 5

Issue	Standards
Soil erosion: Protect soil through appropriate measures	– Minimum soil cover – Minimum land management reflecting site-specific conditions – Retain terraces
Soil organic matter: Maintain soil organic matter levels through appropriate practices	– Standards for crop rotations where applicable – Arable stubble management
Soil structure: Maintain soil structure through appropriate measures	– Appropriate machinery use
Minimum level of maintenance: Ensure a minimum level of maintenance and avoid the deterioration of habitats	– Minimum livestock stocking rates or/and appropriate regimes – Protection of permanent pasture – Retention of landscape features – Avoiding the encroachment of unwanted vegetation on agricultural land’

B – National law

10. In 1998, the United Kingdom Parliament passed primary legislation whereby provision was made for a system of devolved government in relation to Wales, Northern Ireland and Scotland. In relation to devolved matters, the United Kingdom Government generally acts only in respect of England.

11. The statutory relationship between the United Kingdom Government and the devolved administrations is supplemented by a ‘Devolution Memorandum of Understanding’, which seeks to provide further detailed arrangements for that relationship in the form of a statement of political intent. Under the terms of the devolution legislation and the Memorandum of Understanding, it is the responsibility of the devolved administrations to implement obligations under Community law which concern devolved matters. Under the devolution legislation, United Kingdom ministers have reserve powers to intervene where it is necessary to do so in order to ensure the implementation of these obligations. Under the devolution legislation, it is unlawful for the devolved administrations to act or legislate in any way that would be incompatible with Community law. The devolved administrations are directly accountable through the domestic courts, in the same way as the United Kingdom Government is, for shortcomings in their implementation or application of Community law.

12. In principle, the common agricultural policy in general and the implementation of Regulation No 1782/2003 in particular are devolved matters and are therefore the responsibility of each devolved administration. As a result, and with a view to complying with their obligations under Article 5 of the regulation, the defendant (acting in relation to England alone) and each of the devolved administrations adopted separate implementing regulations, defining partly different minimum requirements for good agricultural and environmental condition.

13. The relevant implementing regulation for England is the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (England) Regulations 2004, SI 2004/3196 (‘the English implementing regulations’), which entered into force in England on 1 January 2005.

14. In paragraphs 26 to 29 of the English implementing regulations, the defendant included requirements relating to the maintenance of public rights of way in the standards of good agricultural and environmental condition. They are defined inter alia as follows:

‘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 of 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 obstruct the free passage along a visible...