Friends of Antique Cultural Treasures Ltd, R (On the Application Of) v Secretary of State for the Environment Food And Rural Affairs (Rev 1)

Member States may adopt environmental measures stricter than EU secondary legislation where the Treaties preserve that power. Such measures remain subject to proportionality review and the requirements of free movement law.

In assessing proportionality, the court must examine scientific and economic evidence carefully, while allowing appropriate weight to governmental expertise and Parliament’s policy and moral judgments. Under the precautionary principle, uncertain evidence may justify robust environmental action where there is some evidential basis for the risk identified. A measure is proportionate if it is not inappropriate for its purpose and no less restrictive measure would be equally effective.

The claimant, a company representing dealers and collectors of antique objects containing ivory, sought judicial review of the proposed operation of the Ivory Act 2018. The Act prohibits dealing in ivory, subject to narrow exemptions, and was not yet in force.

Ground 1 alleged that EU legislation exhaustively harmonised the field and prevented the United Kingdom from imposing stricter restrictions on intra-EU trade. Ground 2 alleged that, alternatively, the restrictions were disproportionate under EU law, the EU Charter of Fundamental Rights and A1P1 of the ECHR.

1. Ground 1 dismissed. Article 193 TFEU expressly permits Member States to maintain or introduce more stringent environmental measures, provided that they are compatible with the Treaties. The relevant competence remained shared. Secondary legislation could not displace the express Treaty power. The EU regime therefore imposed minimum, not exhaustive, harmonisation.
2. The court applied Criminal Proceedings against Tridon and Azienda Agro-Zootecnica Francini, which supported the availability of stricter national environmental measures, subject to Treaty compliance.
3. Proportionality required consideration of proper purpose, rational connection or suitability, necessity, and the relation between the benefit secured and the harm caused. The test of suitability was whether the measure was not inappropriate for its purpose. A less restrictive alternative had to be equally effective.
4. The court applied the approach in R (Lumsdon) v Legal Services Board. The review was strict, particularly as scientific and economic evidence required close scrutiny, but the court recognised Defra’s greater policy expertise and accorded considerable weight to Parliament’s moral and political judgments. The precautionary principle permitted robust action despite evidential uncertainty, provided that some evidence supported the relevant risk.
5. The evidence linking the Act to reduced illegal trade within the United Kingdom was tenuous. The evidence concerning the effect of the legal ivory market on overseas demand was stronger, although still incomplete and impressionistic. The precautionary principle, together with the leadership and international-support rationales, made the measures not inappropriate.
6. The court rejected stricter enforcement, age verification or certification as equally effective alternatives. Such measures would not achieve the Act’s wider objectives of reducing demand, changing perceptions and supporting international action. A targeted export blacklist would also be difficult to formulate and diplomatically counterproductive.
7. The Act did not expropriate property. It restricted dealing while permitting retention, use and, subject to the applicable law, sales outside the United Kingdom. Although the impact assessment materially understated the financial effect on businesses and failed to address collectors adequately, those deficiencies did not alter the proportionality conclusion.
8. The claim for judicial review was dismissed.