Barco De Vapor BV & Ors (t/a Joint Carrier) v Thanet District Council

A harbour authority may regulate port safety, but cannot use that power as a Trojan horse to prohibit lawful animal shipments on animal-welfare grounds. Where EU legislation exhaustively harmonises the protection and welfare of animals during transport, a restriction under Article 35 TFEU cannot be justified under Article 36 by imposing additional requirements outside that legislation. A measure which pursues animal welfare must comply with the harmonised regime. A breach of Article 35 gives rise to Francovich damages where the breach is sufficiently serious and directly causes loss. In assessing seriousness, the court considers the importance and clarity of the rule, the authority’s discretion, excusability, knowledge, deliberateness, available less restrictive measures, and the persons affected.

The claimants exported livestock from the United Kingdom through Ramsgate, a port owned and operated by Thanet District Council. Following an incident involving injured sheep, unloading, drownings and euthanasia, the Council suspended all live-animal shipments from the port on 13 September 2012. The suspension was lifted on 29 November 2012 after the claimants obtained interim relief and the Animal Health and Veterinary Laboratories Agency reviewed its procedures.

The judicial-review proceedings were discontinued, but the damages claim was transferred to the Chancery Division. The issues were whether the suspension breached section 33 of the Harbours, Docks and Piers Clauses Act 1847, whether that breach was actionable, whether the suspension was an unjustifiable restriction under Articles 35 and 36 TFEU, and whether damages were available under the Francovich principle.

1. The claim under section 33 of the Harbours, Docks and Piers Clauses Act 1847 was not actionable as a private claim for damages. The section protected the public interest and did not protect a limited class whom Parliament intended to have a private right of action. The court therefore did not need to determine whether the ban breached section 33.

2. Section 40 of the Harbours Act 1964 enabled the Council to regulate port safety, including whether a vessel could safely use the port. It did not permit additional animal-welfare conditions which prohibited a lawful category of shipment. The statutory power could not be exercised inconsistently with section 33 or Article 35 TFEU.

3. Regulation 1/2005 exhaustively harmonised the relevant field: the protection, welfare and health of animals during transport. The Regulation allocated responsibility for emergency measures to the competent authority and did not require unloading or animal-handling facilities at the port of departure. Article 1(3) did not authorise the Council’s additional restriction.

4. The ban was a measure equivalent to a quantitative restriction on exports contrary to Article 35 TFEU. Because it pursued animal-welfare grounds within the field exhaustively harmonised by Regulation 1/2005, it could be justified only by compliance with that Regulation. The Council’s ban did not comply with it and was therefore unjustifiable.

5. The breach was sufficiently serious for Francovich liability. Article 35 was a fundamental and clear Treaty provision; the Council had little or no relevant discretion, knew the competent authority’s position, acted hastily without specific legal advice, and failed to consider less restrictive measures. The ban was disproportionate and affected a defined group of commercial operators.

6. The claimants established a sufficient direct causal link between the ban and their inability to export sheep from the United Kingdom across the Channel. The precise quantum and heads of recoverable loss were left to an inquiry.

Judgment was entered for the claimants on liability. Thanet District Council was liable to pay damages for losses caused by the breach of Article 35 TFEU.