Memorandum by the Ministry
of Agriculture, Fisheries and Food
1999 (S.I. 1999/3316)
1. By a letter dated 19 January
2000, the Committee has requested that a memorandum be submitted
by the Ministry on three points.
the provision (whether in this instrument or elsewhere) which
excludes a producer from receiving compensatory allowances for
the Scheme year where prohibited substances or their residues,
or authorised substances or their residues held or used illegally,
are found on or in animals on, his holding, as required by Article
14(3) of Council Regulation (EC) No. 1257/1999.
2. In the Ministry's view, it
would not be appropriate to make statutory provision in United
Kingdom law to implement Article 14(3) of Council Regulation (EC)
No. 1257/1999. This Article is a directly applicable provision
of Community law, which empowers and obliges Member States to
exclude producers from receiving compensatory allowances where
(inter alia) residues of prohibited substances are detected
in their animals and, correspondingly, obliges producers in those
circumstances to repay any compensatory allowances already received
by them. As such, the Article creates, in the words of section
2(1) of the European Communities Act 1972 (c.68) "rights,
powers, liabilities [and] obligations" which in accordance
with Community Treaties "are without further enactment to
be given legal effect or used in the United Kingdom". The
section provides that powers, liberties and obligations of this
kind shall be recognised and available in law and be enforced,
allowed and followed accordingly.
3. Given the terms of section
2(1), the Ministry believes its right and power to withhold or
recover compensatory allowances in the circumstances described
in Article 14(3) derive directly from, and can be established
solely by reference to, the Article itself, without the need for
any United Kingdom statutory provision.
4. The Notes for Guidance relating
to the Hill Livestock Compensatory Allowance Scheme in England
and Wales in 2000 draw attention to the exclusion penalties laid
down in Article 14(3) for use and possession of prohibited substances
and illegal use and possession of authorised substances. These
notes are issued to all potential claimants under the Scheme.
5. The two Directives referred
to in Article 14(3), Council Directive 96/22/EC concerning the
prohibition on the use in stockfarming of certain substances having
a hormonal or thyrostatic action and of beta-agonists (OJ No L125,
23.5.96, p.3) and Council Directive 96/23/EC on measures to monitor
certain substances and residues thereof in live animals and animal
products (OJ No L125, 23.5.96, p.10) are implemented in the United
Kingdom by the Animals and Animal Products (Examination for Residues
and Maximum Residue Limits) Regulations 1997 (S.I. 1997/1729).
The use and possession of prohibited substances, and the illegal
use and possession of authorised substances - which Member States
must penalize under Article 14(3) of Council Regulation (EC No
1257/1999) - are criminal offences under those Regulations.
(2) Is the
release of a claimant from his regulation 5 undertaking (to continue
to farm land for a period of five years from first payment of
a compensatory allowance) granted by Regulation 14(b) of this
instrument by reason of any "material circumstance beyond
his control" intended to be limited by, or to be construed
by reference to, the provisions of Article 30 of Commission Regulation
(EC) No 1750/1999 which specify (non-exhaustively) categories
of force majeure?
6. The phrase "any material
circumstance beyond his control" is to be construed by reference
to the provisions of Article 30 of Commission Regulation (EC)
No 1750/1999. In the Ministry's view, it is clear that the "Rules
common to several measures" in Articles 28 to 30 of the Regulation
apply to the compensatory allowances for farmers in less-favoured
areas (Hill Livestock Compensatory Allowances in the United Kingdom)
provided for in Articles 13 to 21 of Council Regulation (EC) No
1257/1999 - for example, Article 28 of the Commission Regulation
defines the "usual good farming practices" referred
to in Article 14(2) of the Council Regulation. Moreover, these
common rules apply to "long-term undertakings/commitments"
given as "a condition for the grant of support" (see
recital (17) and Article 29(1) of the Commission Regulation),
which will include the undertaking to farm in a less-favoured
area for at least five years as set out in Article 14(2) of the
Council Regulation and reflected in regulation 5 of this instrument.
The force majeure provisions of Article 30 of the Commission
Regulation are, the Ministry believes, "a rule guaranteeing
such flexibility for long-term undertakings" - including
the regulation 5 undertaking - "as is needed to take account
of events which could affect these commitments" (see again
recital (17) to the Commission Regulation). From this, the Ministry
concludes that Article 30 of the Commission Regulation governs
"the material circumstances beyond [a farmer's] control"
which justify releasing him from his undertaking to farm in a
less-favoured area; and it follows that this concept in regulation
14(b) of this instrument is to be construed by reference to Article
7. The Ministry does not consider
that the concept is to be limited by Article 30, given that the
list of force majeure circumstances there is not exhaustive
and Member States are expressly permitted to recognise other categories
of force majeure (though these must, presumably, comply
with the overall Community law concept of force majeure).
There is thus no obligation on Member States to specify in
their domestic legislation which circumstances set out in Article
30 - or, indeed, which other circumstances - they propose to recognise
as force majeure. To do so might exclude genuine cases
of force majeure not expressly foreseen in the legislation
and could thus prove unduly restrictive.
29(1) of Commission Regulation (EC) No 1750/1999 requires reimbursement
of support granted if a beneficiary transfers all or part of his
holding to another person who does not take over any commitment
given as a condition for the grant of support for the remainder
of the period; in contrast, regulation 14(c), of this
instrument releases a claimant who ceases farming from his regulation
5 undertaking if at least three hectares of the eligible land
last used by him for grazing continue to be used for agriculture.
Is it intended, by virtue of regulation 14(c), that a claimant
is released from his obligation so long as the specified portion
of his land continues to be used for agriculture for any period
of time after he ceases farming, or only if that portion of his
land continues to be so used for the remainder of the period of
the undertaking? If the former, explain how regulation 14(c) implements
Article 29(1) of the Commission Regulation and, if the latter,
explain the grounds on which the regulation has that effect.
8. The Ministry acknowledges
that there is an apparent inconsistency between regulation 14(c),
which releases a claimant who ceases farming from his regulation
5 undertaking provided at least three hectares of his eligible
land remain in agriculture, but without stipulating for how long
this should be, and Article 29(1) of Commission Regulation 1750/1999,
which requires (in effect) that the land remain in agriculture
for the remainder of the five year period of the undertaking.
As Article 29(1) is a superior rule of Community law, it clearly
prevails, and the Ministry do not intend that claimants be released
by regulation 14(c) if their land remains in agriculture for less
than the remainder of the five year period.
9. The Ministry believes, however,
that it must be implicit in regulation 14(c) that the relevant
land continue to be used for agriculture for the remainder of
the five-year period, given that this period is a vital term of
the regulation 5 undertaking which is being released. If the land
need only continue to be used for agriculture for any period of
time, however short, the original undertaking might be effectively
nullified, which would clearly defeat the objective of regulation
10. Nevertheless, the Ministry
concedes that it would be better to make this requirement explicit
in regulation 14(c). This will be done when the new long-term
statutory arrangements for support for farmers in less-favoured
areas are introduced later this year.
25 January 2000