The Agricultural Subsidies (Appeals) (Scotland) Regulations 2000

Prospective

Scottish Statutory Instruments

2000 No. 347

AGRICULTURE

The Agricultural Subsidies (Appeals) (Scotland) Regulations 2000

Made

3rd October 2000

Laid before the Scottish Parliament

3rd October 2000

Coming into force

9th November 2000

The Scottish Ministers, in exercise of the powers conferred on them by section 2(2) of the European Communities Act 1972(1) and of all other powers enabling them in that behalf, make the following Regulations:

Prospective

Citation and commencement S

1.  These Regulations may be cited as the Agricultural Subsidies (Appeals) (Scotland) Regulations 2000 and come into force on 9th November 2000.

Commencement Information

I1 Reg. 1 in force at 9.11.2000, see reg. 1

Interpretation S

2.—(1) In these Regulations–

“Commission Regulation 3887/92” means Commission Regulation (EEC) No. 3887/92 laying down rules for applying the integrated administration and control system for certain Community aid schemes(2) as amended by Commission Regulation (EC) No. 229/95(3), Commission Regulation (EC) No. 1648/95(4), Commission Regulation (EC) No. 2015/95(5), Commission Regulation (EC) No. 1678/98(6) and Commission Regulation (EC) No. 2801/1999(7);

“Council Regulation 3508/92” means Council Regulation (EEC) No. 3508/92 establishing an integrated administration and control system for certain Community aid schemes(8) as amended by Council Regulation (EC) No. 165/94(9), Council Regulation (EC) No. 3233/94(10) Council Regulation (EC) No. 3235/1994(11), Council Regulation (EC) No. 3072/1995(12), Council Regulation (EC) No. 1577/96(13), Council Regulation (EC) No. 2466/96(14),

Commission Regulation (EC) No. 613/97(15), Council Regulation (EC) No. 820/97(16), Council Regulation (EC) No. 1036/1999(17) and Council Regulation (EC) No. 1593/2000(18);

“holding” has the same meaning as in Council Regulation No. 3508/92;

“IACS scheme” means one of the Community schemes set out in Article 1.1 of Council Regulation 3508/92; and

“IACS year” means a period of 12 months commencing on 16th May and “IACS year 2000” means such a period commencing on 16th May 2000.

(2) Any reference in these Regulations to a person to whom a decision is directed, an applicant for review or a person appealing to the Scottish Land Court includes a reference to any successor, executor, trustee in bankruptcy, receiver or liquidator of such a person or applicant.

Commencement Information

I2 Reg. 2 in force at 9.11.2000, see reg. 1

Application S

3.  These Regulations apply to decisions of the Scottish Ministers of the kind referred to in regulation 4 belowin relation to holdings which are administered by the Scottish Ministers in accordance with the Integrated Administration and Control System Regulations 1993(19).

Commencement Information

I3 Reg. 3 in force at 9.11.2000, see reg. 1

Decisions amenable to review and appeal S

4.  The following decisions may be reviewed and appealed in accordance with the following provisions of these Regulations–

(a) a decision, under or in accordance with Commission Regulation 3887/92 (including anything done in accordance with Article 11.1 of the Regulations), by the Scottish Ministers to refuse, reduce or recover (in whole or in part) payment under an IACS scheme for the IACS year 2000 or any IACS year thereafter; and

(b) a decision by the Scottish Ministers to refuse, reduce or recover (in whole or in part) payment of compensatory allowance under regulations 12, 17 or 18 of the Hill Livestock (Compensatory Allowances) (Scotland) Regulations 1999(20).

Commencement Information

I4 Reg. 4 in force at 9.11.2000, see reg. 1

Review of decisions S

5.—(1) A person to whom a decision referred to in regulation 4 above is directed, may apply, no later than 60 days following the date of the decision to be reviewed, to the Scottish Ministers for a review of that decision.

(2) An application for review must be in writing and specify–

(a) the name and address of the applicant, and where that person is not the applicant the basis upon which review is sought;

(b) the subsidy scheme in relation to which the review is sought and the IACS year to which the decision referred;

(c) the decision of the Scottish Ministers which is to be reviewed and its date;

(d) full details of the grounds upon which review is sought; and

(e) the change sought to the decision.

(3) An application under this regulation is to be treated as made if, it is received by the Scottish Ministers at their offices at Pentland House, Robb’s Loan, Edinburgh marked “for the attention of the EU Agricultural Subsidies Appeals Secretariat”.

Commencement Information

I5 Reg. 5 in force at 9.11.2000, see reg. 1

Review S

6.—(1) Where an application is made under regulation 5 above, the Scottish Ministers shall review the decision which is specified in it.

(2) In reviewing a decision the Scottish Ministers may–

(a) consider any document or other evidence produced by the applicant (whether or not that document or evidence was available at the time of the decision);

(b) invite the applicant to provide such further information relevant to the review as they consider appropriate; and

(c) give the applicant an opportunity to give evidence to make representations in person or through a representative.

Commencement Information

I6 Reg. 6 in force at 9.11.2000, see reg. 1

Decision following review S

7.—(1) Following review of a decision in accordance with regulation 6 above the Scottish Ministers may–

(a) confirm their decision;

(b) amend or alter their decision in any respect which they consider appropriate; or

(c) revoke their decision in its entirety and substitute a new decision.

(2) The Scottish Ministers must give their decision under paragraph (1) above in writing, setting out the facts upon which their decision is based and the reasons for their decision.

(3) The Scottish Ministers must, in the case of a decision which does not provide the remedy specified by the applicant in accordance with regulation 5(2)(e) above, offer the applicant an opportunity to have their decision under this regulation reviewed by persons appointed by them.

Commencement Information

I7 Reg. 7 in force at 9.11.2000, see reg. 1

Further review by persons appointed S

8.—(1) An applicant to whom regulation 7(3) above applies may, no later than 60 days following the date of the decision under regulation 7 above, apply in writing to the Scottish Ministers to have that decision reviewed by persons appointed by them.

(2) Where the decision to be reviewed is a decision of a kind referred to in regulation 7(1)(b) or (c) the applicant may supplement his original application under regulation 5(2) above as the nature of that decision may require.

(3) An application under this regulation is to be treated as made if it is received by the Scottish Ministers at their offices at Pentland House, Robb’s Loan, Edinburgh marked “for the attention of EU Agricultural Subsidies Appeals Secretariat” and is accompanied by a fee of £100.

(4) The fee referred to in paragraph (3) above is payable to Scottish Ministers and recoverable by them, in the event of default, as a debt.

Commencement Information

I8 Reg. 8 in force at 9.11.2000, see reg. 1

Power of persons appointed S

9.—(1) Where an application is made under regulation 8, the Scottish Ministers shall appoint such persons (who may include a member of the staff of the Scottish Ministers) as they consider appropriate to review the decision and provide those persons with a copy of–

(a) the application;

(b) the decision under regulation 7 above; and

(c) any document or note of evidence produced or taken in relation to a review under regulation 6 above.

(2) The persons appointed under this regulation shall review the decision and may–

(a) consider any document or other evidence produced by the applicant or the Scottish Ministers (whether or not that document or evidence was available at the time of taking the decision under regulation 7 above);

(b) invite the applicant and the Scottish Ministers to provide such further information relevant to the review as the persons appointed consider appropriate; and

(c) give the applicant and the Scottish Ministers an opportunity to give evidence or to make representations in person or through a representative.

(3) Following their review of the matter the persons appointed shall report–

(a) their findings in fact and law on the matter; and

(b) their recommendations as to the determination of the application,

to the Scottish Ministers.

(4) Having considered the matters reported to them under paragraph (3) above the Scottish Ministers may–

(a) confirm their decision;

(b) amend or alter their decision in any respect which they consider appropriate; or

(c) revoke their decision in its entirety and substitute a new decision.

(5) In coming to their decision in accordance with paragraph (4) above the Scottish Ministers must have regard to the findings and recommendations reported to them by the persons appointed under this regulation but are not bound to follow all or any part of such findings or recommendations.

(6) The Scottish Ministers must give their decision under this regulation in writing and where they do not adopt the findings and recommendations reported to them shall set out–

(a) the relevant facts upon which their decision is based;

(b) the reasons for their decision;

(c) their reasons for not following in whole or in part the findings or recommendations of the persons appointed; and

(d) the effect of their decisions on the payment or non payment of subsidy.

(7) Where the Scottish Ministers decide in accordance with paragraph (4)(b) or (c) above, the fee referred to in regulation 8(3) above must be refunded to the applicant.

(8) The Scottish Ministers may make such payment, by way of fee or reimbursement of expenses, to any of such persons appointed under paragraph (1) above, as appears to them to be appropriate.

Commencement Information

I9 Reg. 9 in force at 9.11.2000, see reg. 1

Notification of decisions S

10.—(1) A decision under regulations 7 and 9 above must be notified to the applicant so soon as practicable after it is made by recorded delivery post to the address shown on the application for review.

(2) In the case of a decision under regulation 9 the findings and recommendations of the persons appointed shall be notified along with the decision.

Commencement Information

I10 Reg. 10 in force at 9.11.2000, see reg. 1

Appeal to the Scottish Land Court S

11.—(1) Where an applicant is dissatisfied by a decision under regulation 9 above, that applicant may appeal against that decision on any issue of fact or law to the Scottish Land Court, in accordance with the following provisions.

(2) An appeal may be made no later than 60 days following the date of the decision which is appealed.

(3) An appeal shall be in such form as may be prescribed from time to time by the Rules of the Scottish Land Court.

(4) An appeal shall specify–

(a) what finding of fact, if any, is sought in substitution for any of the findings set out in the decision;

(b) what, if any, additional finding of fact is sought;

(c) the documents or witnesses to be relied on in relation to the matters set out in sub paragraphs (a) and (b) above;

(d) the findings or propositions of law contained in the decision which are to be challenged;

(e) the propositions of law relied on in support of the appeal; and

(f) the legislative provisions and judicial authorities to be referred to in relation to the appeal.

Commencement Information

I11 Reg. 11 in force at 9.11.2000, see reg. 1

Procedure in the Scottish Land Court S

12.—(1) The Scottish Land Court may hear evidence or submissions on matters of fact or law not specified in accordance with regulation 11 above on such terms and conditions as to expenses or otherwise as it considers appropriate but shall only do so in respect of any matter referred to in regulation 11(4)(a) to (c) above unless it is satisfied that there are special circumstances to justify doing so.

(2) The Chairman of the Scottish Land Court may make such arrangements as he considers appropriate for the hearing of appeals under these regulations and in particular may delegate to himself, or to any members of the Court sitting with a legal assessor, power to determine the whole or any part of an appeal.

(3) In determining an appeal to the Scottish Land Court may–

(a) confirm the decision of the Scottish Ministers under regulation 9 above;

(b) amend or alter that decision in any respect which it considers appropriate; or

(c) substitute for that decision any decision which it considers appropriate,

and any such determination of the Scottish Land Court is, subject to any case stated in accordance with section 1(7) of the Scottish Land Court Act 1993(21), binding upon the Scottish Ministers and the applicant.

Commencement Information

I12 Reg. 12 in force at 9.11.2000, see reg. 1

Reimbursement of fee following successful appeal S

13.  In the event that, as a result of an appeal under regulation 11 above, the Scottish Land Court determine in accordance with regulation 12(3)(b) or (c) above, the Scottish Ministers must reimburse the fee paid in accordance with regulation 8(3) above.

Commencement Information

I13 Reg. 13 in force at 9.11.2000, see reg. 1

ROSS FINNIE

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

3rd October 2000

Prospective

Explanatory Note

(This note is not part of the Regulations)

These Regulations have affect in Scots Law in relation to holdings (whether wholly situated in Scotland or partly in Scotland and partly elsewhere in the United Kingdom), which are administered by the Scottish Ministers under the Integrated Administration and Control System Regulations 1993. They introduce for the first time legal rights to seek a review of the certain decisions of the Scottish Ministers in relation to payment of certain agricultural subsidies and to appeal such decisions after review to the Scottish Land Court.

The kind of decisions which can be reviewed and appealed are set out in regulation 4. They are decisions to refuse reduce or recover in whole or in part payments under an IACS Scheme (as defined in regulation 2(1)) or under certain provisions of the Hill Livestock (Compensatory Allowances) (Scotland) Regulations 1999.

Procedure for review is by application made no later than 60 days following the date of the decision to be reviewed (regulation 5).

The review in first instance will be conducted by the Scottish Ministers or their officials. Certain powers are given to the Scottish Ministers in relation to such reviews (regulation 6(2)).

Scottish Ministers must following a review give their decision in a form specified by regulation 7.

Where an applicant review is dissatisfied by such a decision insofar that it does not completely comply with the remedy which he sought in his application, the applicant may apply to the Scottish Ministers to have their decision reviewed by persons appointed by (regulation 8(1)).

A fee of £100 is payable in respect of such an application (regulation 8(3)).

Scottish Ministers may appoint such persons as they consider appropriate to conduct this stage of review. In particular the Scottish Ministers may appoint a member of their staff for this purpose (regulation 9(1)).

Persons appointed under regulation 9 must review the decision of the Scottish Ministers and have certain power to consider additional information or to invite representation from the applicant and the Scottish Ministers (regulation 9(2)).

Following their review of the decision the persons appointed by the Scottish Ministers must report their findings in fact and law and any recommendations which they wish to make to the Scottish Ministers (regulation 9(3)).

The Scottish Ministers then require to make a decision having regard to the findings and recommendations reported to them by the persons appointed (regulation 9(4) and (5)).

The Scottish Ministers require to give their decision in writing and to give full details of the facts and reasons for their decision (regulation 9(6)).

Where the Scottish Ministers decide that an applicant has been successful in whole or in part in the review they must refund the fee of £100 (regulation 9(7)).

The Scottish Ministers may make payments to persons appointed by them under regulation 9 (regulation 9(8)).

Decisions must be notified in accordance with regulation 10.

Where an applicant is dissatisfied with a decision following review under regulation 9 that person may appeal against that decision on any issue of fact or law to Scottish Land Court in accordance with the terms of regulation 11.

Regulation 12 sets out certain aspects of the internal procedures of the Scottish Land Court.

Regulation 13 requires reimbursement of the fee required by regulation 8(3) in the event that the appeal to the Scottish Land Court is successful.

In particular regulation 12(3) sets out the orders which may be made by the Scottish Land Court following consideration of the appeal. They may confirm the decision of the Scottish Ministers or amend or alter the decision which has been appealed or substitute that decision with one of their own.

(1)

1972 c. 68. Section 2(2) was amended by the Scotland Act 1998 (c. 46), Schedule 8, paragraph 15(3). The functions conferred on a Minister of the Crown by section 2(2) were transferred, so far as within devolved competence, by section 53 of the Scotland Act 1998 to the Scottish Ministers.

(2)

O.J. L 391, 31.12.1992, p.36.

(3)

O.J. L 27, 4.2.1995, p.3.

(4)

O.J. L 156, 7.7.1995, p.27.

(5)

O.J. L 197, 22.8.1995, p.2.

(6)

O.J. L 212, 30.7.1998, p.23.

(7)

O.J. L 340, 31.12.1999, p.29.

(8)

O.J. L 355, 5.12.1992, p.1.

(9)

O.J. L 24, 29.1.1994, p.6.

(10)

O.J. L 338, 28.12.1994, p.13.

(11)

O.J. L 338, 28.12.1994, p.16.

(12)

O.J. L 329, 30.12.1995, p.18.

(13)

O.J. L 206, 16.8.1996, p.4.

(14)

O.J. L 335, 24.12.1996, p.1.

(15)

O.J. L 94, 9.4.1997, p.1.

(16)

O.J. L 117, 7.5.1997, p.1.

(17)

O.J. L 127, 21.5.1999, p.4.

(18)

O.J. L 182, 21.7.2000, p.4.

(19)

S.I. 1993/1317 as amended by S.I. 1994/1134, S.I. 1997/1148, S.I. 1999/1820 and S.I. 2000/2573.

(20)

S.S.I. 1999/187.

(21)

1993 c. 45.