# C_2009069EN.01000401.xml

| 21.3.2009 | EN | Official Journal of the European Union | C 69/4 |
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21.3.2009

EN

Official Journal of the European Union

C 69/4

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Judgment of the Court (Grand Chamber) of 25 November 2008 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — Heemskerk BV, Firma Schaap v Productschap Vee en Vlees

(Case C-455/06) (1)

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(Regulations (EC) Nos 615/98, 1254/1999 and 800/1999 - Directive 91/628/EEC - Export refunds - Protection of bovine animals during transport - Power of an administrative authority of a Member State to find, contrary to the declaration of the official veterinarian, that the means of transport of the animals does not comply with Community legislation - Jurisdiction of national courts of Member States - Examination of their own motion of pleas in law derived from Community law - National rule prohibiting reformatio in pejus)

reformatio in pejus

(2009/C 69/05)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicants: Heemskerk BV, Firma Schaap

Applicants:

Defendant: Productschap Vee en Vlees

Defendant:

Re:

Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Interpretation of Article 2(2) of Commission Regulation 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), of Article 33(9) of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organization of the market in beef and veal (OJ 1999 L 160, p. 21), of 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) and of 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) — Power of an administrative authority of a Member State to find, contrary to the declaration of the official veterinarian, that the means of transport is not in accordance with Community provisions — Assessment based on criteria of the Member State concerned or of the Member State in which the vessel transporting the animals is registered — Powers of the courts of the Member States.

Operative part of the judgment

| 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, and, in particular, Articles 1 and 5(3) and (7) thereof, must be interpreted as meaning that a national authority with competence for export refunds is empowered to decide that a transport of animals was not carried out in accordance with the provisions of 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, as amended by Council Directive 95/29/EC of 29 June 1995, although, under Article 2(3) of that regulation, the official veterinarian had certified that that transport complied with the provisions of that directive. In order to reach that conclusion, that authority must rely on objective elements relating to the welfare of the animals such as to call into question the documents presented by the exporter, it being for the latter to show, in that case, that the elements relied on by the competent authority for its finding of non-compliance with Directive 91/628, as amended by Directive 95/29, are irrelevant. |
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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, and, in particular, Articles 1 and 5(3) and (7) thereof, must be interpreted as meaning that a national authority with competence for export refunds is empowered to decide that a transport of animals was not carried out in accordance with the provisions of 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, as amended by Council Directive 95/29/EC of 29 June 1995, although, under Article 2(3) of that regulation, the official veterinarian had certified that that transport complied with the provisions of that directive. In order to reach that conclusion, that authority must rely on objective elements relating to the welfare of the animals such as to call into question the documents presented by the exporter, it being for the latter to show, in that case, that the elements relied on by the competent authority for its finding of non-compliance with Directive 91/628, as amended by Directive 95/29, are irrelevant.

| 2. | Where a vessel has been authorised for the transport of animals in respect of a certain surface area by the Member State of registration of the vessel, the competent authority of the Member State of export must take that authorisation as a basis for assessing whether Community legislation on the welfare of animals during transport has been complied with. |
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2.

Where a vessel has been authorised for the transport of animals in respect of a certain surface area by the Member State of registration of the vessel, the competent authority of the Member State of export must take that authorisation as a basis for assessing whether Community legislation on the welfare of animals during transport has been complied with.

| 3. | The notion of ‘compliance with the provisions established in Community legislation concerning animal welfare’ referred to in Article 33(9) of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal must be interpreted as meaning that, where it is established that the Community requirements relating to loading density laid down in Chapter VI, point 47(B) of the Annex to Directive 91/628, as amended by Directive 95/29, were not complied with during the transport of the animals, it is necessary, in principle, to make a finding of non-compliance with those provisions in respect of all the live animals transported. |
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3.

The notion of ‘compliance with the provisions established in Community legislation concerning animal welfare’ referred to in Article 33(9) of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal must be interpreted as meaning that, where it is established that the Community requirements relating to loading density laid down in Chapter VI, point 47(B) of the Annex to Directive 91/628, as amended by Directive 95/29, were not complied with during the transport of the animals, it is necessary, in principle, to make a finding of non-compliance with those provisions in respect of all the live animals transported.

| 4. | Community law does not require national courts to apply, of their own motion, a provision of Community law where such application would lead them to deny the principle, enshrined in the relevant national law, of the prohibition of reformatio in pejus. |
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4.

Community law does not require national courts to apply, of their own motion, a provision of Community law where such application would lead them to deny the principle, enshrined in the relevant national law, of the prohibition of reformatio in pejus.

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(1)  OJ C 20, 27.1.2007.

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