2 Requirement to maintain land in good agricultural and environmental condition (‘GAEC’)
15.43 The standards of GAEC that must be met by farmers in receipt of the basic payment are set out in Sch 2 to the Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014,115 and in the equivalent Welsh legislation.116 The standards apply to the whole of the agricultural land owned or used by a farmer who makes a claim for the basic farm payment, and cross-compliance applies whenever a claim for a basic payment is made, however small.
Detailed guidance is published by the secretary of state as to the practical application and operation of these requirements.11715.44 In total the requirements to be met by farmers are placed in two groups. The first group118 makes it a breach of compliance to contravene statutory rules for land management set out in 13 different statutes (such as the Wildlife and Countryside Act 1981), or statutory instruments (for example the Environmental Impact Assessment (Agriculture) (England) Regulations 2006). In addition, there are special provisions imposing cross compliance requirements for: soil protection; the protection of watercourses, hedgerows and trees; and for the protection and management of stone walls, stone banks and earth banks.119 In general terms the extent of the cross compliance obligations that are imposed are more limited than applied under the predecessor to the basic payment scheme ie the Single Farm Payment.120
15.45 The Member States were given some discretion in the manner by which the cross-compliance requirements were to be applied, and the intention is to permit a balance between: (i) a common EU framework; and (ii) catering for specific situations where the local conditions in the member states may vary eg as to climatic condition, vegetation, typical landscape features etc.
In most instances the standards applied in the relevant English and Welsh legislation are identical in all material respects. In some cases they are not. In particular, the English cross-compliance regulations contain provisions protecting certain public rights of way,121 whereas the implementing legislation applied by the devolved administrations in other parts of the UK (for example in Wales) does not. The validity of the English cross-compliance provisions requiring the maintenance of rights of way and footpaths was challenged in the Court of Justice in R. (Horvath) v Secretary of State.122 One of the grounds for the challenge concerned the ability of the Member States to provide for differential standards of GAEC to be applied in different constituent parts of its territory, in circumstances where its internal constitutional arrangements provided for different devolved administrations to have legislative competence in relation to different constituent parts of the member state. It was argued before the CJEU that the principle of equality of application of EU law would dictate that the member states must not treat different situations differently without objective justification.12315.46 The European Court held that it was legitimate for the member states to interpret ‘landscape features’ broadly to include visible rights of way, and that the maintenance requirements could be valid in so far as they contributed to maintaining landscape features or (if relevant) the avoidance of the deterioration of habitats. On the key question of whether it was permissible for the devolved administrations in England, Wales, Northern Ireland and Scotland to impose different cross-compliance requirements, the European Court held that it was acceptable for each Member State to allocate powers internally and to implement EU measures on a regional basis (if they are not directly applicable, as was the case here). Where the Member States were given some discretion as to implementation of certain aspects of a measure, as here, therefore, it was acceptable for the devolved administration to adopt a differential implementation of the GAEC standards. The different treatment of GAEC in Wales and England did not, therefore, breach the principle of equality and constitute discrimination.
15.47 The principal land management obligations imposed by the cross-compliance regime are described in more detail in the paragraphs following below.