FA Gill Limited & Ors., R (on the application of) v Food Standards Agency

Article 85 of EU Regulation 2017/625 imposes a high level of transparency on charges for official controls. The public must be given sufficient information to understand, in broad terms, how the charges were calculated and to check their general accuracy.

The information must identify the relevant source data and explain the calculation steps in plain English. The duty does not require disclosure at a level enabling operators to conduct an independent audit.

Where the duty is breached, the court may grant a proportionate mandatory order requiring the missing information to be published. Quashing the underlying invoices is unnecessary where the breach can be remedied without demonstrating that the charges themselves are inaccurate.

Six food business operators sought judicial review of invoices issued by the Food Standards Agency for official control charges at meat premises. They alleged breach of the transparency duty in Article 85 of EU Regulation 2017/625 and unlawfulness in the recovery of contractor costs.

Permission was granted on the transparency ground and on the contractor-cost ground. The latter was abandoned before trial, although the claimants maintained that the wage and contractor data had not been sufficiently explained. The central issue was whether the information published by the FSA for the 2021/22 charging period enabled a reasonably astute member of the public to understand, broadly, how the hourly rates had been calculated.

1. Claim succeeded in part. The FSA breached Article 85 of EU Regulation 2017/625 because its website did not explain how the principal cost figures used to calculate the hourly rates had been arrived at, or how total costs had been apportioned between official veterinarians and meat hygiene inspectors.
2. Article 85 was a specific statutory transparency regime. Read with Recitals 39 and 68, it required a high level of transparency concerning the method and data used to establish charges, the amount charged and the breakdown of costs under Article 81.
3. The appropriate standard was whether a reasonably astute member of the public could understand, broadly, how the hourly rates had been calculated. The source data had to be clearly stated and the calculation process explained in plain English. The duty did not require disclosure sufficient to permit an independent audit of the FSA’s calculations.
4. The FSA’s published material identified total costs, categories of costs and budgeted chargeable hours, but did not explain the calculation of the constituent cost figures or their allocation between the two categories of staff. Further information supplied during the proceedings enabled the judge to understand the calculations, but did not cure the breach in the published material.
5. The inclusion of enforcement hours in the 2021/22 budget did not affect the hourly rate because the corresponding costs and hours were reduced in identical proportions. No further disclosure of enforcement hours or activity codes was therefore required.
6. Judicial review remedies were discretionary. Since the breach could be remedied by requiring explanatory notes to be inserted in the relevant cost-data PDFs, quashing the invoices would have been disproportionate and pointless. The FSA was ordered to publish clear, short and jargon-free explanations for the 2021/22 and 2022/23 charging periods. The parties were to agree the wording, failing which the court would determine any dispute.

This was a first-instance judicial review in the Administrative Court. Permission was granted on the transparency and contractor-cost grounds; the contractor-cost ground was abandoned before trial, and permission on the reasons ground was not renewed.