This is an appeal under the Rural Payments (Appeals) (Scotland) Regulations 2015 (“the Appeals Regulations”).
 The appellant is Mr Ronald James Downie (“the appellant”) who carries on business as C Downie & Son. This is a large sheep farming operation (almost 7,000 sheep on 8,000 ha) centred on Newton of Crathie, Ballater, Aberdeenshire, but also involving many other locations extensively spread across Scotland including one at Bankfoot, Perthshire, which features in this appeal.
 The decision appealed against is a decision of the Scottish Ministers (“the respondents”) dated 20 March 2017 to refuse a claim made by the appellant under the Scottish Upland Sheep Support Scheme (hereinafter referred to as “SUSSS” or “the Scheme”) and, in addition, to impose a penalty in the same amount as the sum claimed for. That decision was upheld following a review meeting held in terms of the Appeals Regulations on 27 September 2017 and the appellant has now appealed to this court.
 Since, had his application been successful, the appellant stood to get £113,000 of aid under the Scheme and, since in addition to losing that, he has been, in effect, fined in the same amount (recoverable by deduction from other payments to which he may be entitled over the next three years), the financial consequences to the business are significant, indeed, we were told, possibly terminal.
 SUSSS is what is known in the legislation of the European Union Common Agricultural Policy, from which it derives, as a “voluntary coupled payment scheme”. In terms of the Scheme guidance issued by the respondents its purpose is to “give direct support to help maintain sheep flocks in farm businesses reliant on poorer quality rough grazing found in Scotland’s basic Payment Region three”. It came into operation in 2015.
 On 14 October 2016 the appellant, through his agent, Mr Gordon McConachie, an agricultural consultant with Savills in Aberdeen, lodged a SUSSS claim in respect of 1800 ewe hoggs.
 On 8 February 2017 two inspectors from the respondents’ Thainstone office arrived at Newton of Crathie to carry out an unannounced SUSSS inspection, the appellant’s business having been chosen for such because his was one of the largest claims under the Scheme. No one was at home when they arrived but Mr Downie was contacted by telephone and arrangements were made to start the inspection the following day. It covered Bankfoot as well as Crathie and was not finished until 20 February.
 In short the result of that inspection was that all 1800 animals claimed for were found to be ineligible, not for any reason to do with the animals themselves (which were, all but 15 of them, present and correct where they should be and, in themselves, in every way eligible under the Scheme), but because of (a) the absence of adequate records and (b) infringements of the rules relating to the transport of animals between holdings. The appellant was informed of that outcome and the matter went through the review process already mentioned and has now come to us. We heard the appeal at Edinburgh over three days from 18 to 20 September 2018, when the appellant was represented by said Mr McConachie and the respondents by Ms Laura Thomson, advocate.
Issues in the appeal
 Going into the appeal, we thought there were two major issues to be resolved. These were (a) whether the appellant’s record-keeping in terms of animal identification was sufficient to meet the relevant legislative requirements and (b) whether the movement of 2,239 animals from Newton of Crathie to Bankfoot on or around 5 February 2017 had been properly documented. However, in the course of the hearing the first of these came to be conceded by the appellant (in other words, it was accepted that the records kept did not satisfy the requirements), at least as to its facts, if not its significance, and the other took on a different form, not hitherto focused in the grounds of appeal: instead of arguing that this movement of animals had been properly documented it came to be argued that the rules on which the respondents were relying simply did not apply to a movement which was between two locations managed by the same farmer. That, in turn, resolved into a dispute as to the meaning of “holding” for the purposes of SUSSS.
 Aside from these issues the severity of the penalty imposed is a striking feature of the case but we heard no submission that it was wrong as a matter of law.
 A consequence of these developments is that we can by-pass much of the factual evidence in the case and concentrate on the application of the relevant law to what is now not in dispute. Nevertheless some account must be given of the evidence.
 Appeals under the 2015 Regulations take the form of considering matters anew. For the appellant evidence was given by Mr McConachie, Mr Downie himself, Ms Lorna Elizabeth Paterson, Northeast Scotland Manager of the National Farmers Union of Scotland, and Mr John David Fyall, an agricultural consultant and Chair of the National Sheep Association in Scotland (although giving evidence only in a personal capacity). For the respondents evidence was given by Nicola Jane Ward and Kirsteen Janet Ellen Sutherland, both Agricultural Officers in the respondents’ Thainstone office, being the inspectors who carried out the inspection, Mr Stewart Alexander Johnston, Acting Principal Agricultural Officer in the same office, who conducted said review, and Ms Lynn Katherine Alice Stewart, Head of Direct Payments within the respondents’ Rural Payments Directorate, at Saughton House, Edinburgh, who spoke to the calculation of the penalty.
 It is necessary to say something about Mr McConachie as a witness. In advance of the hearing we had allowed him to represent the appellant as a lay representative in terms of Rule 100(3)(b) of our Rules (being the Rules of the Scottish Land Court 2014). At that time there was no mention of him being a witness as well as a representative. That emerged the week before the hearing and, with some hesitation, we allowed it for reasons of expediency: it would be difficult for the appellant at that stage to arrange alternative representation and his ability to afford it was, in any event, in doubt.
 Matters became compounded in the course of the hearing, however, when it became apparent that there was the potential for a conflict of interest between Mr McConachie and the appellant, in as much as he had been responsible for some of the appellant’s record-keeping and record-keeping was at the root of his difficulties in this case. The fact that Mr McConachie was clear that, in terms of the agreement he had with the appellant, he was not responsible for the keeping of the sorts of records which are germane to this appeal did not wholly remove our unease as to the roles in which he appeared before us. None of this impeaches Mr McConachie’s integrity: it is said more by way of a reminder to ourselves to be more careful when considering applications from lay representatives in future.
 Leaving conflict of interest aside, we had reservations about Mr McConachie’s credibility and reliability in relation to one aspect of the case, being the circumstances in which the “rolling diary” referred to later herein was found. However, (a) ultimately that issue has no bearing on the success or otherwise of this appeal and (b) we otherwise found him to be a credible and reliable witness.
 We had no difficulty with the credibility and reliability of any of the other witnesses, save to say that, in so far as Ms Paterson and Mr Fyall expressed a view as to the definition of “holding” for the purposes of the Scheme, that being a matter of law, we place no reliance on their views.
 For the reasons given at para  above, it will suffice to say what follows about the evidence.
 It is not in dispute that the only record produced to the inspectors at inspection was in the form of two pages (a page and a double page) from was called a “marking diary” (production 26) giving dates in May to August 2016 (the diary was being used as a notebook rather than a diary) on which a number of lambs at various locations were “cut” (a reference to castration and tail-docking). It is not recorded whether tagging also took place but, if it did, the tag numbers are not recorded. It is likewise not in dispute that if this record was intended to be a holding register it was, in terms of the legislation which we come to below, deficient in that it did not give (a) date of tagging (if tagging took place), (b) tag numbers for each animal, (b) its year of birth, and (c) its breed and genotype (if known).
 The appellant and Mr McConachie were aware of the inadequacy of these two pages as a record. The appellant and his son knew that they had some other record of at least some of the required information somewhere, so they set about looking for it. We can draw a veil over this chapter of evidence. A great deal of time could be spent on testing the authenticity of the document eventually produced for little gain, because, whether it is genuine or not (we incline to the view that it is), it too is inadequate in terms of the legislative requirements.
 That document was another diary, referred to in the evidence as a “rolling diary”, and it was produced for the first time at the review meeting of 24 August. It is production 6. This diary was being used as such and it contains (only) entries on various dates from 3 May to 13 October 2016 giving numbers of lambs marked (that is to say marked with the appellant’s’ distinctive marking, sometimes known as a keel mark) and tagged, with a range of tag numbers, which generally do not correspond with the numbers of animals said to have been tagged, but without the full identification numbers of the animals being given. No mention is made of breed or genotype. For example, an entry for 28 May says simply this:
483 lambs marked
Ewe lambs 15100 ->
This is followed by an entry the next day which says:
457 lambs cut
EL. 15461 ->
These entries would seem to suggest that 361 ewe lambs were tagged on 28 May and that the other 122 lambs said to have been “marked” were not ewe lambs. The full tag numbers are not recorded and there is no mention of breed or genotype.
 Similarly, an entry on 3 May reads:
202 lambs marked
Ewe lambs old tags
used 04641 – 12100
It is impossible to know what tags were used to mark these animals, we do not know how many of them were ewe lambs. Indeed none of the required detail is recorded.
Movement of sheep from Crathie to Bankfoot
 We heard a good deal of evidence from Mr Downie, the two inspectors and Mr Johnston about the movement of 2,239 sheep from Crathie to Bankfoot on or around 5 February 2017. It was the inspectors’ understanding from what was said at inspection, as also Mr Johnston’s as to what was said at the review hearing, that Mr Downie had described movement of these animals from Crathie to Bankfoot in several journeys over several days around 5 February, whereas only a single movement of all 2,239 sheep was reported to the Scottish Animal Movement Unit (“SAMU”) and that not until 13 February. It was Mr Downie’s evidence, supported (so far as the review meeting is concerned) by Mr McConachie, that what had happened, and what he had described to both the inspectors and Mr Johnston, was the gathering of the animals from various parts of Crathie over several days in the lead up to 5 February and the movement of all of them to Bankfoot on that day, albeit in five separate journeys, three of them undertaken by a haulage contractor, R W Stewart, and the other two by Mr Downie and his son, involving, in total, three vehicles, as opposed to the single movement reported to SAMU.
 Mr McConachie conceded that, even if we accepted that all the animals were moved to Bankfoot on 5 February, if the respondents’ view of the meaning of “holding” for SUSSS purposes was correct, the documentation for the move was deficient in the following respects: (a) only a single movement of animals was recorded, not the five separate transports by which, according to the appellant, the animals were actually moved to Bankfoot, (b) the appellant and his son were not identified as the hauliers for the two trips to Bankfoot they undertook, (c) the registration numbers of all the vehicles used were not recorded nor (d) the individual identifiers of the animals being moved in each transport.
Submissions for the appellant
 What Mr McConachie had to say on the first issue was more by way of mitigation than an exculpatory defence. The central thrust of his submission was that, at inspection, all the hoggs claimed for were in themselves eligible and present on a properly registered holding.
 There had, he said, been a great deal of emphasis placed on tagging but the appellant had given a complete list of the tag numbers for the animals claimed for. There was no obligation to keep the holding register in any prescribed form, including the form recommended by the Scottish Government. He conceded, however, that the information contained in the two diaries produced was not adequate in terms of the relevant requirements.
 His position was different, however, when he came on to the movement of the animals to Bankfoot. Although no notice of it was given in the grounds of appeal and mention of it was made for the first time in his own evidence, and in fairly tentative terms at that, we allowed Mr McConachie to develop an argument that, because of the definition of “holding” in art 4(1)(b) of EU Regulation 1307/2013, the movement of the 2,239 sheep from Crathie to Bankfoot was not to be treated as an “off-holding” movement and did not, therefore, attract the movement requirements which the inspectors and Mr Johnston had applied. That definition is as follows: “all the units used for agricultural activities and managed by a farmer situated within the territory of the same Member State”.
 More generally, Mr McConachie drew a distinction between the SUSSS requirements and the requirements of the Sheep and Goats (Records, Identification and Movement) (Scotland) Order 2009 (“SAGRIMO”) but we had difficulty in following the submission he went on to make on the basis of that distinction. In so far as we did understand it, Mr McConachie seemed to be saying that SAGRIMO was an over-arching scheme which applied right across the sheep sector and involved much less severe penalties for breaches of its rules than SUSSS. There was doubt, he submitted, as to which scheme of penalties applied although what the source of that doubt was he did not say.
 What he did say was that much of the respondents’ evidence was opinion and speculation, not fact. Their conclusion that some of 2,239 animals moved to Bankfoot had been moved on days other than 5 February was untenable when it was known that on two of these alleged other dates the appellant had been moving sheep to Thainstone market.
 He also criticised the inclusion in the inspection and review meeting reports of material which had not been written by the inspectors or Mr Johnston but had been inserted by their superiors at Saughton House. The identity of the individuals concerned remained unknown, which was unsatisfactory.
 Turning to the severity of the penalty imposed, it was out of all proportion to the offence. We were, after all, Mr McConachie submitted, talking about technicalities. The sheep claimed for were there and were all eligible. Any penalty imposed for defects in record-keeping should be minor, as would be the case for SAGRIMO breaches. Applying penalties of this amount meant that the scheme was penalising the very people it was supposed to help. The appellant was keeping a sheep flock high in the Cairngorms and keeping local hauliers, markets and other businesses going as a result. A “fine” of almost £250,000 (the approximate total loss to the appellant) was “massively disproportionate”. The appellant had had to cash in investments to fund this case but was unable to afford legal representation.
 Given the late issuing of the review report, outwith the 60 days allowed in the Appeals Regulations, we should not be here at all.
Submissions for respondents
 Ms Thomson invited us to refuse the appeal and confirm the decision of the review hearing. She began with four observations:
(a) Although it was hard not to have sympathy for the appellant and although the penalty may be thought to be severe, SUSSS was voluntary and those who applied undertook to comply with its requirements;.
(b) No notice had been given as to the argument on the meaning of “holding”;
(c) There had been no challenge to the evidence of Lynn Stewart who had explained the penalty framework and how it was applied in this case; and
(d) It was too late now to make anything out of the failure to issue the review meeting report within 60 days; “that ship ha[d] sailed”.
 Counsel referred to a Joint Minute agreeing the legal framework which parties had helpfully prepared and lodged at the outset of the hearing. It was unnecessary to go through this paragraph by paragraph but the end point was art 5 of and paras B and C of the Annex to EC Reg 21/2004. These contained the requirements for a holding register and for animal movement documentation.
 Turning to the facts of this case, she did not understand it to be disputed that the “marking diary” did not meet the record-keeping requirements. Even if marking and tagging took place at the same time, no tag numbers were recorded nor the year of birth nor was mention made of breed and genotype.
 There were two issues with the “rolling diary”; (a) whether it was genuine and (b) if so, whether it remedied the deficiencies in the marking diary.
 Given what we say at para  above, we can pass over Ms Thomson’s submissions as to the authenticity of this document. Even if it was genuine, however, the two diaries together did not meet SUSSS requirements: we had dates on which tagging took place and the number of lambs tagged but not the tag numbers. Where batches of tags were noted the range did not correspond to the number of animals tagged. It was not clear whether all the animals tagged were ewe lambs and, if not, how many were and what were their numbers. The result of this was that all of the ewes claimed for were ineligible and the 100% penalty applied.
 Turning to the movement of sheep to Bankfoot, counsel did not seek to make very much of the apparently late intimation of the movement to SAMU. She made more of Mr Johnston’s evidence that the appellant had said, at the review meeting, that this movement had taken place over several days. Whereas the inspectors had not been clear as to what had been said about this at inspection, Mr Johnston had been very clear as to what had been said at the review meeting. If there had been such movements, they were completely undocumented. But even if all 2,239 animals had been moved on the one day, there ought to have been a separate record for each of the five transports that had taken place that day.
 That, of course, assumes that Bankfoot is, as a matter of law, to be regarded as a separate holding from Crathie. On that matter, counsel submitted that the relevant definition for SUSSS purposes was in art 2(b) of EC Reg 21/2004, viz; “any establishment, any structure, or in the case of free-range farming, any environment, in which animals are held, reared or handled on a permanent or temporary basis, except veterinary practices or clinics”. She derived support for that from art 3 of the same Regulation which required up-to-date registers to be kept “on each holding”, which, she submitted, clearly contemplated the possibility that a farmer may have more than one holding. She also relied on section D of the Annex setting out the information which member states’ computer databases must contain, including the geographical co-ordinates or some equivalent indication of the geographical location of the holding. If the various locations on which the appellant kept sheep all constituted a single holding, the geographical co-ordinates would take in almost the whole of Scotland. Each of those places had a County Parish Holding (“CPH”) number and the movement requirements in section C of the Annex talked about the identification code of the “holding” from which animals were moved and the identification code for the “holding of destination”, so that each unit which had its own CPH was a separate “holding”.
 It was also at odds with the purpose of the relevant regulations (traceability of animal movements) that someone such as Mr Downie could move animals around very diverse locations spread across Scotland without having to keep a record of these movements.
 We should therefore refuse the appeal and confirm the decision of the respondents.
Closing remarks made by Mr Downie
 When counsel had finished Mr Downie asked if he could address us. He made a heart-felt and heart-wringing plea for justice. He loved farming. He worked 100 hour weeks and was passionate about what he did. All 1800 sheep he had claimed for had been found properly tagged and, save for 15 of them, in the proper place at inspection. He quoted from a SUSSS guidance leaflet he had been given which spoke of the possibility of penalties if lambs were not kept in good condition and free of banned substances, hormones and the like. He had complied with all of that yet now he was being severely penalised. The public thought farmers just banked their subsidies but the truth was they needed these subsidies to survive. The whole survival of his business was now at risk and he felt sorrier for his son, whom he had hoped would inherit the business, than for himself.
Resolution of matters of fact
 Given how we have dealt with the authenticity of the rolling diary, there is only one matter of fact which we have to resolve: whether the movement of the 2,239 animals to Bankfoot took place in one day or over several. On this we give the appellant the benefit of the doubt. That doubt arises from (a) the fact that it certainly would take several days to gather that number of sheep from what we understand to be the extensive hill of Newton of Crathie, (b) the fact that on two of the days on which movement of animals to Bankfoot may have taken place it is known that Mr Downie was engaged in moving animals to Thainstone, and (c) there was significant uncertainty on the part of the inspectors as to what, exactly, they had been told by Mr Downie and his son (as opposed to what they had understood). On the balance of probability, therefore, we hold that all the animals were moved to Bankfoot on 5 February.
 We deal first with the point about the review meeting report being late. The Appeals Regulations make clear, at reg 8(3), that the consequence of failing to issue the report within the 60 days stipulated in reg 7(4) is that the beneficiary can then appeal the original decision (as opposed to the review meeting decision) to this Court. That does not mean that the Scottish Ministers lose the right to contest the appeal. It simply provides the beneficiary with a direct route to this court in the event of the review report not being issued timeously.
 We now turn to the legislation which governs SUSSS. It derives, of course, from the Common Agricultural Policy of the European Union. Although the direction of travel of that policy has been away from headage or production related subsidies since the introduction of the Single Payment Scheme (“SPS”) in 2003, there are exceptions. In particular art 52 of Regulation (EU) No 1307/2013, which established rules for direct payments to farmers under the Basic Payment Scheme (“BPS”) which replaced the SPS in January 2015, permits Member States to grant coupled support (i.e. support coupled or linked to production) in certain circumstances (“where specific types of farming or specific agricultural sectors that are particularly important for economic, social or environmental reasons undergo certain difficulties”). One of the sectors in which this is permitted is the sheepmeat sector. It is this provision of EU law which allowed the Scottish Government to devise SUSSS. Article 53.1 of EC Delegated Regulation 639/2014 allows Member States to set their own eligibility criteria for coupled schemes.
 In Scotland (which, we were told, is the only country in the EU to have taken advantage of this permissive provision and created a coupled support scheme) that took the form of the Common Agricultural Policy (Direct Payments etc.) (Scotland) Regulations 2015 (“the Domestic Regulation”), Part 2 of Schedule 3 of which deals with voluntary coupled support for ovine animals. The relevant Part 2 provisions are as follows:
5. In this Part—
“applicable requirements” means the requirements in relation to—
(a) means of identification;
(b) replacement means of identification; and
(c) holding register and movement requirements;
“applicant” means a farmer—
(a) whose holding is wholly or partly situated in Scotland and who, at the time of submitting an application, is producing sheepmeat on any agricultural areas of any part of the holding situated in Scotland comprising parcels of land in region 3; and
(b) in respect of any part of whose holding is situated in Scotland—
(i) at least 80 per cent of the total agricultural area declared for the purposes of a payment under Chapter 1 of Title III (basic payment scheme) of the Direct Payments Regulation on that farmer’s single application in the Scheme year comprises parcels of land in region 3; and
(ii) no more than 200 hectares of that area declared comprises parcels of land in region 1;
“holding”, for the purposes of paragraph 7, means a holding defined in Article 2 of Regulation 21/2004;
“holding register and movement requirements” means the requirements under—
(a) Articles 5(1), (3) and (5), 6(1) and (3) and 8(2) of Regulation 21/2004; and
(b) articles 22, 23 and 25 of the Sheep and Goats Order;
“means of identification” means the requirements on the first and second means of identification under—
(a) Articles 4(1) and (2)(a) and (b) and 9 of, and Sections A.1 to A.4 and A.6 of the Annex to, Regulation 21/2004; and
(b) articles 5, 30 and 37 of the Sheep and Goats Order,
as read with Article 30(5) of the Horizontal Delegated Regulation;
“Regulation 21/2004” means Council Regulation (EC) No 21/2004 establishing a system for the identification and registration of ovine and caprine animals and amending Regulation (EC) No 1782/2003 and Directives 92/102/EEC and 64/432/EEC;
“replacement means of identification” means the requirements on removal and replacement of the means of identification under Article 4(6) of Regulation 21/2004 and articles 14, 15, 18 and 19 of the Sheep and Goats Order;
“Scheme payment” means a payment by way of coupled support under and in accordance with Chapter 1 of Title IV (voluntary coupled support) of the Direct Payments Regulation;
“Sheep and Goats Order” means the Sheep and Goats (Records, Identification and Movement) (Scotland) Order 2009.
Eligible ovine animal
7. For the purposes of Article 53 of the Direct Payments Delegated Regulation and this Schedule, an eligible ovine animal means an ovine animal—
(a) which was born on the applicant’s holding;
(b) which has been kept on that holding from birth and will be kept on that holding during the period beginning on 1st December of the Scheme year and ending on 31st March of the following calendar year;
(c) which is less than 12 months old on 1st December of the Scheme year; and
(d) in respect of which the applicable requirements have been complied with.”
 We see, therefore, that for an animal to be eligible under the scheme the “applicable requirements” have to be complied with (para 7(d)) and that these applicable requirements are those relating to (a) means of identification, (b) replacement means of identification, and (c) holding register and movement requirements.
 We are not concerned with (a) and (b). These relate to technical aspects of identification of animals which are not in dispute in this case. We are concerned with (c), holding register and movement requirements. These requirements are contained in the following provisions:
EC Reg 21/2004
“1. Each keeper of animals, with the exception of the transporter, shall keep an up-to-date register containing at least the information listed in Section B of the Annex.
3. The register shall be in a format approved by the competent authority, kept in manual or computerised form, and be available at all times on the holding and to the competent authority, upon request, for a minimum period to be determined by the competent authority but which may not be less than three years.
5. Each keeper shall supply the competent authority, upon request, with all information concerning the origin, identification and, where appropriate, the destination of animals which the keeper has owned, kept, transported, marketed or slaughtered in the last three years.
1. As from 9 July 2005 or for Bulgaria and Romania the date of accession whenever an animal is moved within the national territory between two separate holdings, it shall be accompanied by a movement document based on a model drawn up by the competent authority, containing at least the minimum information listed in Section C of the Annex, and completed by the keeper if the competent authority has not already done this.
3. The keeper at the holding of destination shall keep the movement document for a minimum period to be determined by the competent authority but which may not be less than three years. On request, he shall supply the competent authority with a copy thereof.
2. Each keeper of animals, with the exception of the transporter, shall, within a period of 30 days as regards information relating to the keeper or the holding and within a period of seven days as regards information relating to movements of animals, provide the competent authority with:
(a) the information for entry in the central register and the outcome of the inventory, mentioned in Article 7(2), and the information required for the setting up of the database referred to in paragraph 1;
(b) in Member States applying the derogation referred to in Article 6(4), each time an animal is moved, the details of the movement, as set out in the movement document referred to in Article 6.
B. HOLDING REGISTER
1. From 9 July 2005, or for Croatia the date of accession, the holding register must contain at least the following information:
(a) the identification code of the holding;
(b) the address of the holding and the geographical coordinates or equivalent indication of the geographical location of the holding;
(c) the type of production;
(d) the result of the latest inventory referred to in Article 7 and the date on which it was carried out;
(e) the name and address of the keeper;
(f) in the case of animals leaving the holding:
(i) the name of the transporter;
(ii) the registration number of the part of the means of transport carrying the animals;
(iii) the identification code or the name and address of the holding of destination or, in the case of animals moved to a slaughterhouse, the identification code or name of the slaughterhouse and the date of departure;
or a duplicate or a certified copy of the movement document referred to in Article 6;
(g) in the case of animals arriving on the holding, the identification code of the holding from which the animal was transferred and the date of arrival;
(h) information on any replacement of means of identification.
2. From 31 December 2009, the holding register must contain at least the following up-to-date information for each animal born after that date:
(a) the identification code of the animal;
(b) the holding of birth, the year of birth and date of identification;
(c) the month and the year of death of the animal on the holding;
(d) if known, the breed and the genotype.
However, for animals identified in accordance with point 7 of Section A, the information set out in (a) to (d) of this point must be provided for each batch of animals having the same identification and must include the number of animals.
3. The holding register must contain the name and signature of the designated or approved officer of the competent authority who has checked the register and the date on which the check was carried out.
C. MOVEMENT DOCUMENT
1. The movement document must be completed by the keeper on the basis of a model drawn up by the competent authority. It must contain at least the following information:
(a) the identification code of the holding;
(b) the name and address of the keeper;
(c) the total number of animals moved;
(d) the identification code or the name and address of the holding of destination or of the next keeper of the animals or, when animals are moved to a slaughterhouse, the identification code or the name and location of the slaughterhouse, or, in the event of transhumance, the place of destination;
(e) the data concerning the means of transport and the transporter, including the transporter’s permit number;
(f) the date of departure;
(g) the signature of the keeper.
2. From 1 January 2011, the keeper of the holding of departure shall record on the movement document the individual identification code of each animal identified in accordance with points 1 to 6 of Section A before the movement takes place.
By way of derogation from the first subparagraph, the competent authority may authorise for movements not involving intra-Community trade the recording of the individual identification code of each animal at destination on behalf of the keeper of the holding of departure subject to the following conditions:
(a) the animals are not transported in the same means of transport as animals from other holdings, unless the batches of animals are physically separated from each other;
(b) the holding of destination is approved by the competent authority for the purpose of recording individual animal codes on behalf of the keeper of the holding of departure;
(c) procedures are in place to ensure that within 48 hours of the time of departure:
(i) the individual identification code of each animal is recorded in accordance with point 2(a) of Section B in the holding register of the holding of departure;
(ii) the information relating to the movement is provided to the competent authority to update the computer database in accordance with point 2 of Section D.
3. However, the information provided for in point 2 shall not be obligatory for animals born until 31 December 2009:
(a) on their movement to a slaughterhouse, directly or via a channelling procedure excluding subsequent movements to any other holding;
(b) until 31 December 2011 for all other movements.”
This section has no associated Executive Note
22.—(1) The keeper of an animal, other than a person concerned only in transporting animals, must comply with Article 4(4) and Article 5(1), (3) and (5) of the Council Regulation. [This is a reference to Regulation EC 21/2004.]
(2) When an animal is moved onto or from its holding, the keeper must record—
(a) the information required by Section B of the Annex; and
(b) the number of animals moved.
(3) The information referred to in paragraph (2) in respect of animals moving onto a holding must be recorded by the keeper by entering it in the register but individual identification codes of each animal may, alternatively, be recorded by retaining a duplicate or certified copy of the movement document.
(4) The information referred to in paragraph (2) in respect of animals moving from a holding must be recorded by the keeper by either—
(a) entering it in the register; or
(b) retaining a duplicate or a certified copy of the movement document and keeping such a duplicate or copy with the register.
(5) For the purposes of Article 5(3) of the Council Regulation the register must be—
(a) in a form approved by the Scottish Ministers;
(b) available for 3 years from the last day when an animal referred to in the register dies or leaves the holding;
(c) in the case of the movement of an animal onto or from a holding, recorded by the keeper within 48 hours of the movement;
(d) in the case of identifying an animal born on a holding or an animal that dies on the holding, recorded by the keeper within 48 hours of the event; and
(e) in the case of any replacement means of identification applied to an animal, recorded by the keeper within 48 hours of it being applied detailing the date of re-identification.
(6) Where a keeper moves animals to another holding but continues to be the keeper, the keeper does not have to keep the register on that holding but must be able to produce it within a reasonable amount of time to the Scottish Ministers or an officer of the Scottish Ministers upon request.
(7) When an animal is re-identified and is not on its holding of birth, the keeper shall record in the holding register both the old identification, if known, and the new identification.
This section has no associated Executive Note
23.—(1) The keeper of an animal must comply with Article 6(1) of the Council Regulation and keep and complete the movement document in accordance with this article, except that the identification codes of the animals moved may be recorded at a critical control point.
(2) Subject to article 28, the movement document must—
(a) be in a form approved by the Scottish Ministers;
(b) be completed in full by the appropriate keeper, as specified in that form; and
(i) the information required by Section C of the Annex; and
(ii) the date of an animal’s arrival at the holding of destination.
(3) In accordance with Article 6(3) of the Council Regulation, a copy of the movement document must be kept at the holding from which an animal is moved and at the holding of destination for a period of at least 3 years from the date of the movement it records.
Supply of information for the central database
This section has no associated Executive Note
25. In accordance with Article 8(2) of the Council Regulation, the keeper of an animal must provide to the Scottish Ministers, in such manner and form as the Scottish Ministers may specify, the information required for the purposes of Article 7(2) and Article 8(1) of the Council Regulation—
(a) within 30 days in the case of information relating to the keeper or the holding;
(b) within 3 days in the case of information relating to movement of animals; and
(c) within 48 hours in the case of animals that move through premises in accordance with Article 6 and Section C.2 of the Annex.”
 The appellant was therefore required to have a “holding register” containing the information prescribed in arts 5(1), (3) and (5), 6(1) and (3) and 8(2) of Regulation 21/2004 and arts 22, 23 and 25 of SGRIMO. What that comes to in terms of recording animals on his holding is that he was required to record: (a) the identification code of each animal; (b) the holding of birth, year of birth and date of identification; (c) the month and the year of death of an animal on the holding; and (d) if known, the breed and genotype.
 The respondents are not prescriptive as to the form a holding register must take. They have produced a model one but don’t insist on its use. As long as the requisite information is available and up-to-date the register can take whatever form suits the individual farmer. The fact is, however, that the appellant did not have a holding register of any kind. The two diaries produced are simply not worthy of the name. They were deficient in respect of all four requirements specified in para 2 of section B of the Annex to Reg 21/2004. The result of that is that one of the “applicable requirements” of the Domestic Regulation was not satisfied and the animals claimed for were therefore ineligible for participation in SUSSS in terms of reg 7(d) thereof.
 The movement requirements of Reg 21/2004 and SAGRIMO also had to be satisfied. This involved entering, in the holding register, in the case of animals leaving the holding, (a) the name of the transporter, (b) the registration number of the vehicle, the identification code or the name and address of the holding of destination (para 1(f) of Section B of the Annex to Reg 21/2004) and the completion of a movement document giving (a) the identification code of the holding; (b) the name and address of the keeper; (c) the total number of animals moved; (d) the identification code or the name and address of the holding of destination, (e) the data concerning the means of transport and the transporter, (f) the date of departure and (g) the signature of the keeper (para 1 of Section C of the Annex) and, from 1 January 2011, the individual identification code of each animal moved (para 2 of Section C).
 In so far as para 1(f) of Section B of the Annex to Reg 21/2004 and reg 22(3) and (4) of SAGRIMO allow the keeper of animals to rely on a copy of the movement document referred to in art 6 of Reg 21/2004 as an alternative to recording the movement in the holding register, the document sent to SAMU in respect of the movement of animals to Bankfoot was itself deficient in terms of the information contained. A copy of it is production 6 and it simply gives the date, the CPH numbers of the holdings of departure and destination, the appellant’s signature and the total number of animals moved. The animals are not identified, so the movement document does not make good the deficiency in the appellant’s other records.
 All of that applies only if the animals, when moved to Bankfoot, were leaving the appellant’s holding, which brings us to the contested matter of the definition of “holding” for SUSSS purposes, the two contenders being, as we have seen, art 4(1)(b) of EU Regulation 1307/2013 and art 2(b) of EC Reg 21/2004.
 Starting with the Domestic Regulation, we have seen that the definition given in reg 2 Interpretation is by way of reference to art 4(1)(b). But the Domestic Regulation covers much more than the coupled payment schemes. As we understand it, it is the domestic provision which implements the BPS in Scotland. As we have seen, the provisions relating to voluntary coupled support schemes are contained in Part 2 of Schedule 3, where “holding” is defined by reference to art 2(b) of EC Reg 21/2004. This makes sense, since the “applicable requirements” of SUSSS are taken from the Annex to that Regulation.
 SAGRIMO does not appear to contain a definition of “holding” but we note that the “Documentation and recording of information” provisions in Part 4 thereof incorporate the same requirements from EC Reg 21/2004 (see regs 22, 23 and 25 set out above), so one would expect the Reg 21/2004 definition to apply.
 Accordingly it seems very clear to us that the definition of “holding” which applies for SUSSS purposes is that contained in art 2(b) of EC Reg 21/2004, which is:
“any establishment, any structure, or in the case of free-range farming, any environment in which animals are held, reared or handled on a permanent or temporary basis, except veterinary practices or clinics”.
 It is a very wide definition admittedly, wide enough you might think to cover moving animals internally within a single geographical unit, but we do not understand it to have caused confusion among Scotland’s stock farmers until now. We heard in evidence that the appellant has 28 retention locations spread across north-east Scotland, from the Central Belt in the south to Banffshire in the north, and we think most farmers would be incredulous of any notion that someone like that could move animals around these locations without recording the movements in the equivalent of a holding register and by way of intimation to SAMU.
 Accordingly we hold that the movement of 2,239 sheep (which included all the hoggs for which SUSSS was claimed) was a movement “off-holding” which attracted the movement requirements which we have identified. It follows that in this respect also the applicable requirements were not satisfied and the hoggs claimed for were, therefore, ineligible, so, on this count also, the appellant’s SUSSS claim fell to be refused in its entirety.
 Before we turn to penalty we wish to comment on what we thought was quite unfair criticism of the SUSSS guidance prepared by the respondents on the part of the appellant and Mr McConachie. Production 14 is their “full guidance” on the Scheme as it was in 2016. No doubt there are other abbreviated publications which do not go into as much detail but this document was readily available to claimants and no one reading it could fairly claim to be left in a state of uncertainty or confusion. Page 2 contains an overview of the Scheme in bullet point form. The last bullet point is “You must maintain a flock register and keep it up to date. In addition, you must comply with [SAGRIMO].” The following pages contain the detail, including, at page 4, guidance under the headings “Animal Identification Requirements”, “Holding register requirements” and “Movement documents and movement notification requirements”. No one who bothered to read what is said there could honestly claim to be left in very much doubt as to what he or she had to do. It is, of course, often said that farmers are too busy to read this sort of thing. Maybe so, but that is why there are such people as advisers and consultants; such people indeed as Mr McConachie. Moreover the doors of SGRPID offices throughout the land are open to help farmers comply with their obligations.
 What took Mr McConachie and his clients and, as they got to hear of it, the entire Scottish sheep-farming industry, completely aback was the severity of the penalty.
 For penalty purposes the relevant EU Regulation is Commission Delegated Regulation (EU) No 640/2014 (“the Commission Delegated Regulation”). For the purposes of that Regulation voluntary coupled support measures provided for in Chapter 1 of Title IV of Regulation EU 1307/2013 are called “animal aid schemes” (art 2(13)). The Regulation calculates penalties on the basis of the number of animals “determined” compared with the number of animals claimed for. For animal aid schemes an animal is “determined” if it meets “all conditions laid down in the rules for granting the aid” (art 2 (18)(a)). So, for an animal to be determined for the purposes of SUSSS all the conditions laid down in the SUSSS rules must be met. None of the appellant’s animals met all of these requirements, so none was entitled to be determined for payment or penalty purposes.
 Section 4 of the Commission Delegated Regulation deals with the calculation of payment entitlement and, as part of that, art 31 deals with administrative penalties. These penalties are graded in accordance with any difference found between the number of animals declared (i.e. claimed for) and the number determined. Paragraph (3) of art 31 requires a percentage of animals declared but found to be non-compliant with the Scheme rules as against the number of animals determined to be calculated. In the present case 100% of the animals claimed for were found to be non-compliant.
 Paragraph 2(b) of art 31 includes the following provision:
“If the percentage established in accordance with paragraph 3 is more than 50%, no aid or support to which the beneficiary would have been entitled pursuant to Article 30(3) shall be granted under the aid scheme or support measure or type of operation under such support measure for the claim year concerned.”
That clearly applies in this case, but the sting is in the tail. The paragraph continues:
“Moreover, the beneficiary shall be subject to an additional penalty of an amount equal to the amount corresponding to the difference between the number of animals declared and the numbers of animals determined in accordance with Article 30(3). If that amount cannot be fully off-set in the course of the three calendar years following the calendar year of the finding, in accordance with Article 28 of Implementing Regulation (EU) No 909/2014, the outstanding balance shall be cancelled.”
 That somewhat opaque provision has been taken by the respondents to mean that a penalty equal to the amount the appellant would have received had all animals been eligible must be imposed. More particularly, Lynne Stewart expresses it in her witness statement as being the number of non-determined animals (1,800) x the SUSSS pay rate of €77.08 = (after conversion to sterling) £118,248.74. Mr McConachie did not argue that that interpretation was wrong; only that the penalty was excessive. For our own part, although it could have been expressed much more clearly, we cannot see any other way of interpreting the provision. Accordingly we hold that the penalty is correct. Unfortunately, since it is a penalty laid down at EU level, the respondents have no discretion to mitigate it.
 It does seem to us, however, that the nature and size of the penalty gives rise to a question of proportionality. The principle of proportionality is a feature of European Union law, including the proportionality of measures taken by EU institutions themselves; see the discussion of this in the Supreme Court case of R (on the application of Lumsden and others) v Legal Services Board  UKSC 41 at paras  to ) and, nearer home, although involving a different principle of EU law, Feakins v The Scottish Ministers decision of the European Court of Justice in C-335/13 dated 6 November 2014. That being the case, we have thought it right to continue the appeal for a hearing on whether we should refer the question of the proportionality of the penalty to the ECJ. The office of the Court will liaise with parties with a view to fixing such a date. The appellant would be well advised to obtain legal advice from a lawyer familiar with this area of law and be represented by such a person at that hearing.
[A date was subsequently set for hearing submissions on a possible reference to the EJC but parties subsequently agreed that the appeal should be dismissed with no expenses due to or by either party and the hearing on a reference never took place.]