MAS Group Holdings Ltd & Ors, R (on the application of) v Barco De Vapor B.V. & Ors

Under Council Regulation (EC) No 1/2005, animal welfare is the primary objective and the elimination of trade barriers is secondary. Article 3(a) imposes a distinct obligation to minimise journey length. A competent authority may therefore adopt a policy generally requiring the shortest available route, including postponement of a long journey where the shorter route will be available within a reasonable period.

Proportionality requires a fact-sensitive balance. Commercial cost and impact must be considered, but additional cost does not itself establish a disproportionate restriction. A policy is lawful provided the authority remains willing to consider relevant exceptions and circumstances. On the evidence, the route required by the policy was not shown to be unprofitable or to hinder trade.

The claimants, companies involved in exporting livestock, sought judicial review of APHA’s refusal to approve journey log JL 1711. The proposed journey would have transported sheep from England to Germany via Ireland, a route substantially longer than the route using the MV Joline from Ramsgate to Calais.

APHA applied a policy under which the shorter route would normally be required where available on the proposed departure date or within seven days. The claimants challenged the policy and decision under Council Regulation (EC) No 1/2005, Articles 35 and 36 TFEU, and domestic public law principles concerning relevant considerations, fettering of discretion and irrationality.

1. Claim dismissed. None of the six grounds of challenge was established.
2. The Regulation has several objectives, but protection of animals during transport is the main and primary objective. The trade objectives are secondary. Article 3(a) imposes a distinct obligation to minimise journey length; animal welfare is not protected solely by the technical rules governing long journeys.
3. The Policy was not disproportionate. The claimants had not shown that use of the MV Joline was unprofitable or unviable, or that the Policy had hindered trade. Even if proportionality were engaged, the substantial difference between the routes, the welfare risks of the longer Irish route and the absence of a demonstrated prohibitive cost justified requiring the shorter route.
4. Commercial considerations were relevant and had in fact been considered. The seven-day rule reflected commercial interests, and the defendants had considered comparative cost and profitability. Additional cost was not, without more, the relevant disadvantage identified in Danske Svineproducenter v Justitsministeriet [2011] ECR I-13274.
5. Article 3(a) did not require the authority to assess only a journey beginning on the date specified in the journey log. “Journey” was defined by Article 2(j) by reference to the place of departure, not the departure date. Article 14(1)(b) therefore permitted the authority to require a change to the date of the intended long journey.
6. The Policy did not unlawfully fetter discretion. In law, exceptions remained available, and in practice the defendants had shown willingness to consider commercial circumstances. The short period for examining journey logs, under Annex II paragraph 3(b), justified a general policy.
7. There was no breach of Article 35 TFEU, and in any event the Policy and decision were justified because they complied with the exhaustively harmonised Regulation. The irrationality ground and proposed Francovich damages claim also failed. The court reserved consequential orders.