# C_2007020EN.01000201.xml

| 27.1.2007 | EN | Official Journal of the European Union | C 20/2 |
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27.1.2007

EN

Official Journal of the European Union

C 20/2

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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 14 November 2006 — Heemskerk BV en BV v/h Firma Schaap v Productschap Vee en Vlees

(Case C-455/06)

(2007/C 20/02)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: Heemskerk BV en BV v/h Firma Schaap

Applicant:

Defendant: Productschap Vee en Vlees

Defendant:

Questions referred

| 1a. | Is an administrative body empowered to decide, contrary to the declaration of the official veterinarian referred to in Article 2(2) of Regulation (EC) No 615/98 (1), that the transport of animals to which the official veterinarian's declaration relates is not in accordance with the conditions laid down in Directive 91/628/EEC? (2) |
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1a.

Is an administrative body empowered to decide, contrary to the declaration of the official veterinarian referred to in Article 2(2) of Regulation (EC) No 615/98 (1), that the transport of animals to which the official veterinarian's declaration relates is not in accordance with the conditions laid down in Directive 91/628/EEC? (2)

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| 1b. | If the answer to Question 1a is in the affirmative:
  Is the exercise by the administrative body of that power on grounds of Community law subject to specific restrictions, and if so, what are those restrictions? |
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1b.

If the answer to Question 1a is in the affirmative:

Is the exercise by the administrative body of that power on grounds of Community law subject to specific restrictions, and if so, what are those restrictions?

| 2. | If the answer to Question 1 is in the affirmative:
  When assessing whether there is an entitlement to refunds, for which Regulation (EC) No 800/1999 (3), for example, provides, should an administrative body of a Member State determine whether a transport of live animals complies with Community animal welfare legislation by reference to the requirements applicable in the Member State or to those of the State in which the vessel transporting the live animals is registered and which has granted an authorisation for that vessel? |
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2.

If the answer to Question 1 is in the affirmative:

When assessing whether there is an entitlement to refunds, for which Regulation (EC) No 800/1999 (3), for example, provides, should an administrative body of a Member State determine whether a transport of live animals complies with Community animal welfare legislation by reference to the requirements applicable in the Member State or to those of the State in which the vessel transporting the live animals is registered and which has granted an authorisation for that vessel?

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| 3. | Does Community law require a court or tribunal to conduct, of its own motion, an examination — that is to say, an examination of grounds falling outside the basic framework of the disputes — of grounds derived from Regulation (EC) No 1254/1999 (4) and Regulation (EC) No 800/1999? |
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3.

Does Community law require a court or tribunal to conduct, of its own motion, an examination — that is to say, an examination of grounds falling outside the basic framework of the disputes — of grounds derived from Regulation (EC) No 1254/1999 (4) and Regulation (EC) No 800/1999?

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| 4. | Is the phrase ‘subject to compliance with the provisions established in Community legislation concerning animal welfare’ in Article 33(9) of Regulation (EC) No 1254/1999 to be understood as meaning that, where it is established that while transporting live animals a vessel was so heavily laden as to exceed the cargo permitted by the relevant welfare legislation, there was a failure to comply with Community animal welfare legislation only in respect of the number of animals by which the permitted cargo was exceeded, or must it be found that that legislation was not complied with in respect of all the live animals transported? |
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4.

Is the phrase ‘subject to compliance with the provisions established in Community legislation concerning animal welfare’ in Article 33(9) of Regulation (EC) No 1254/1999 to be understood as meaning that, where it is established that while transporting live animals a vessel was so heavily laden as to exceed the cargo permitted by the relevant welfare legislation, there was a failure to comply with Community animal welfare legislation only in respect of the number of animals by which the permitted cargo was exceeded, or must it be found that that legislation was not complied with in respect of all the live animals transported?

| 5. | Does the effective application of Community law entail that a court's examination, of its own motion, of compatibility with provisions of Community law prevails over the principle enshrined in Dutch law of administrative procedure that an individual bringing an action must not be placed thereby in a less advantageous position than if he had not brought that action? |
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5.

Does the effective application of Community law entail that a court's examination, of its own motion, of compatibility with provisions of Community law prevails over the principle enshrined in Dutch law of administrative procedure that an individual bringing an action must not be placed thereby in a less advantageous position than if he had not brought that action?

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(1)  Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport (OJ 1998 L 82, p. 19).

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(2)  Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17).

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(3)  Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11).

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(4)  Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21).

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