«(Directive 93/53/EEC – Destruction of fish stocks infected by viral haemorrhagic septicaemia (VHS) and infectious salmon anaemia (ISA) – Compensation – Obligations of the Member State – Protection of fundamental rights, particularly of the right to property – Validity of Directive 93/53)»

Community law – Principles – Fundamental rights – Right to property – Restrictions – Whether permissible – Conditions – Minimum measures for the control of certain fish diseases – Directive 93/53 – Compensation for affected owners – None – Compatibility with the right to property – Fish owner's fault – Not relevant (Council Directives 91/67, as amended by Annex A to Directive 93/54, and 93/53) The fundamental rights protected by the Court, of which right to property is one, are not absolute rights but must be considered in relation to their social function. Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organisation of the markets, provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights.Directive 93/53 introducing minimum Community measures for the control of certain fish diseases seeks to contribute to the completion of the internal market in aquaculture animals and products and forms part of a regime intended to introduce minimum Community measures for the control of certain fish diseases. Accordingly, the measures which that directive imposes are in conformity with objectives of general interest pursued by the Community.Taking into account the objective sought, the minimum measures of immediate destruction and slaughter laid down by Directive 93/53 in order to control the diseases in List I in Annex A to Directive 91/67 concerning the animal health conditions governing the placing on the market of aquaculture animals and products, as amended by Directive 93/54, do not constitute, in the absence of compensation for affected owners, a disproportionate and intolerable interference impairing the very substance of the right to property.First of all, the measures laid down by Directive 93/53 are urgent and are intended to guarantee that effective action is implemented as soon as the presence of a disease is confirmed and to eliminate any risk of the spread or survival of the pathogen.Further, the measures referred to do not deprive farm owners of the use of their fish farms, but enable them to continue to carry on their activities there. In effect, the immediate destruction and slaughter of all the fish enable owners to restock the affected farms as soon as possible. Those measures therefore enable the resumption of the transportation and placing on the market in the Community of species of live fish susceptible to the diseases in Lists I and II in Annex A to Directive 91/67, with the result that all interested parties, including fish farm owners, may benefit as a result.Finally, fish farmers carry on a business which carries commercial risks. As farmers, they can expect that a fish disease may break out at any moment and cause them loss. Such risk is inherent in the business of raising and selling livestock and is the consequence of a natural occurrence, so far as the diseases in both List I and List II in Annex A to Directive 91/67 are concerned.As to the extent of any loss, by reason of their condition, fish which show clinical signs of disease have no marketable value. So far as concerns fish which have reached a commercial size and could have been marketed or processed for human consumption since they were not showing, when slaughtered, any clinical sign of disease, any loss eventually suffered by farmers by reason of the immediate slaughter of that kind of fish arises from the fact that they have been unable to choose the most advantageous time for their sale. In fact, because of the risk of their presenting clinical signs of disease in future, it is impossible to determine a more advantageous time for their sale. So far as all other types of fish are concerned, it is not possible to establish whether they have any marketable value either, because of the risk that in the future they will develop clinical signs of disease.Admittedly, the Community legislature may consider, in the context of its broad discretion in the field of agricultural policy, that full or partial compensation is appropriate for owners of farms on which animals have been destroyed and slaughtered. Nonetheless, the existence, in Community law, of a general principle requiring compensation to be paid in all circumstances cannot be inferred from that fact.Having regard to those same considerations, the measures for the immediate destruction and slaughter of fish implemented by a Member State in order to control List I and II diseases in the context of the application of Directive 93/53, which are, respectively, identical and similar to the minimum measures which the Community has laid down for List I diseases and which do not provide for compensation, are not incompatible with the fundamental right to property.The fact that the outbreak of the disease is due or not due to the fish owner's fault has no bearing on the compatibility with the fundamental right to property of those national measures.see paras 68, 78-83, 84-86, 93, 95, operative parts 1-3

JUDGMENT OF THE COURT 10 July 2003 (1)

((Directive 93/53/EEC – Destruction of fish stocks infected by viral haemorrhagic septicaemia (VHS) and infectious salmon anaemia (ISA) – Compensation – Obligations of the Member State – Protection of fundamental rights, particularly of the right to property – Validity of Directive 93/53))

In Joined Cases C-20/00 and C-64/00,

REFERENCE to the Court under Article 234 EC by the Court of Session (Scotland) (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of the principles of Community law on the protection of fundamental rights, in particular of the right to property, and on the validity of Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases (OJ 1993 L 175, p. 23),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, F. Macken (Rapporteur), N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: J. Mischo,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Booker Aquaculture Ltd, represented by P.S. Hodge QC and J. Mure, Hydro Seafood GSP Ltd, represented by A. O'Neill QC and E. Creally, The Scottish Ministers, represented by N. Paines QC and L. Dunlop, the United Kingdom Government, represented by G. Amodeo, acting as Agent, assisted by N. Paines QC, the Italian Government, represented by F. Quadri, the Council, represented by J. Carbery, and the Commission, represented by K. Fitch, at the hearing on 15 May 2001,

after hearing the Opinion of the Advocate General at the sitting on 20 September 2001,

gives the following

Community legislation

Directive 91/67/EEC

...

.

Decision 92/538/EEC

Directive 93/53

Where necessary, appropriate additional measures shall be adopted in accordance with the procedure laid down in Article 19.

Decision 90/424/EEC

National legislation

.

Case C-20/00

...

Case C-64/00

Findings of the Court

On those grounds,

THE COURT,

in answer to the questions referred to it by the Court of Session (Scotland) by orders of 11 January and 18 February 2000, hereby rules:

Rodríguez Iglesias

Puissochet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Macken

Colneric

von Bahr

Cunha Rodrigues

Delivered in open court in Luxembourg on 10 July 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President