Jaspers (Treburley) Ltd & Ors, R (on the application of) v Food Standards Agency

A directly applicable EU regulation forms part of domestic law, but each provision must still be examined to determine whether it creates enforceable rights or obligations for individuals. An obligation imposed on a Member State to ensure that fees are collected does not necessarily impose a corresponding payment obligation on operators. Charging provisions require clear and precise language, consistent with legal certainty. A public authority cannot use a discretionary discount mechanism, or administrative guidance, to impose charges which legislation does not authorise. Where a regulation leaves implementation to Member States, the remedy for any gap between the required result and lawful means of achieving it is domestic legislation.

Operators of slaughterhouses and cutting plants challenged invoices issued by the Food Standards Agency for alleged shortfalls between charges previously invoiced and EU minimum charges for official controls during 2011–12.

The issues were whether Regulation 882/2004 authorised the invoices; whether the minimum fees were to be calculated by reference to individual operators or aggregate fees; and whether domestic charging regulations permitted the invoices to be treated as lawful discounts or interim demands.

1. Claim granted. The Agency was not authorised to demand the disputed charges.
2. EU regulation and direct effect. Although Regulation 882/2004 was directly applicable, that did not mean that every provision imposed enforceable obligations on individuals. The relevant question was whether the particular provision was clear, unconditional and required no further legislative action to confer an enforceable personal obligation.
3. Article 27. Article 27(2) required Member States to ensure that specified fees were collected, but did not itself impose an obligation on individual operators to pay them. Articles 22 and 27(8), concerning import controls, demonstrated that the Regulation could impose payment obligations directly where that was intended. The Regulation otherwise established a general framework and left implementation discretion to Member States.
4. Legal certainty. A provision said to impose a charge must be construed strictly. Rules imposing charges must be clear and precise, so that the citizen can ascertain rights and obligations. The 2009 Regulations authorised time-cost charges, but contained no charging provision for the disputed EU minimum shortfalls.
5. Individual operators. If the issue had arisen, the minimum fees under Article 27(3) would have been chargeable by reference to each operator. The minimum rates for animals, dairy products and fishery products were inconsistent with an aggregate-fee approach.
6. Discounts and guidance. The Agency could not use the discount provisions in Schedule 2 to collect, by the back door, sums which it could not lawfully collect directly. The invoices were not presented as interim charges. Guidance could not create an obligation to pay a charge, levy or tax where legislation did not do so.
7. Preliminary reference. The court declined to refer the matter under Article 267 TFEU. Applying the principles stated in R v Stock Exchange, ex p. Else Ltd, the judge had no real doubt about the interpretation and could resolve it with complete confidence.

First-instance judicial review claim. No earlier judicial decision in the same proceedings was stated.