OPINION OF ADVOCATE GENERAL
WAHL
delivered on 29 June 2017(1)
Case C‑383/16
Vion Livestock BV
v
Staatssecretaris van Economische Zaken
(Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands))
(Agriculture — Regulation (EC) No 1/2005 — Protection of animals during transport — Articles 5(4) and 8(2) — Annex II — Long journeys between Member States and between Member States and third countries — Journey log — Transport taking place in part outside the territory of the European Union — Regulation (EU) No 817/2010 — Export refunds)
1.        To borrow loosely from George Orwell, all animals are equal, but are animals transported within the European Union more equal than others?
2.        That is one way of perceiving the stakes at issue in this request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands).
3.        Be that as it may, it is well known that payment of refunds for the export of live animals hinges on compliance with EU rules on animal welfare during transport. The main action concerns the validity of a decision ordering the repayment of export refunds granted under Regulation (EU) No 817/2010 (2) for non-compliance with Regulation (EC) No 1/2005 (3) after a shipment of cattle had left EU soil. (4)
4.        In legal terms, this case might arguably represent the next step after the Court’s ruling in Zuchtvieh-Export (5) regarding, as it were, the applicability ratione loci of Regulation No 1/2005 to the stage of a journey which takes place in third countries. Unlike that case however, the present proceedings involve export refunds. The question is thus not so much where the EU rules on animal welfare during transport apply, but rather what the Union can require of exporters of animals in return for assisting them financially, both ‘at home’ within the Union and ‘abroad’ in third countries.
5.        In what follows, I shall explain why no matter how far Regulation No 1/2005 may extend, in geographic terms, on its own, there can, so far as concerns requests for refunds of exports of live bovines under Regulation No 817/2010, be no doubt that the requirements which follow from Regulation No 1/2005 apply until the first place of unloading in the third country of final destination.
I.      Legal framework
A.      Regulation No 1/2005
6.        According to Article 1(1) of Regulation No 1/2005 (‘Scope’), ‘this Regulation shall apply to the transport of live vertebrate animals carried out within the [Union], including the specific checks to be carried out by officials on consignments entering or leaving the customs territory of the [Union]’.
7.        Article 5(4) of Regulation No 1/2005 (‘Planning obligations for the transport of animals’) provides:
‘For long journeys [(6)] between Member States and with third countries for domestic Equidae other than registered Equidae, and domestic animals of bovine, ovine, caprine and porcine species [“the included species” except for registered Equidae], transporters [(7)] and organisers [(8)] shall comply with the provisions on the journey log set out in Annex II.’
8.        Article 8(2) of Regulation No 1/2005 (‘Keepers’) states:
‘Keepers [(9)] shall check all animals arriving at a place of transit or a place of destination and determine if the animals are or have been subject to a long journey between Member States and with third countries. In the case of long journeys for [the included species except for registered Equidae], keepers shall comply with the provisions on the journey log set out in Annex II.’
9.        Article 14(1) of Regulation No 1/2005 (‘Checks and other measures related to journey log to be carried out by the competent authority before long journeys’) states:
‘In the case of long journeys between Member States and with third countries for [the included species], the competent authority of the place of departure shall:
(a)      carry out the appropriate checks to verify that:
(i)      transporters indicated in the journey log have the corresponding valid transporter authorisations, the valid certificates of approval for means of transport for long journeys and valid certificates of competence for drivers and attendants;
(ii)      the journey log submitted by the organiser is realistic and indicates compliance with this Regulation;
(b)      where the outcome of the checks provided for in point (a) is not satisfactory, require the organiser to change the arrangements for the intended long journey so that it complies with this Regulation;
(c)      where the outcome of the checks provided for in point (a) is satisfactory, the competent authority shall stamp the journey log;
…’
10.      Under Article 21 of Regulation No 1/2005 (‘Checks at exit points and border inspection posts’):
‘1.      … where animals are presented at exit points [(10)] or border inspection posts, official veterinarians [(11)] of the Member States shall check that the animals are transported in compliance with this Regulation and in particular:
(a)      that transporters have submitted a copy of a valid authorisation …
(b)      that drivers of road vehicles transporting [the included species] or poultry and attendants have presented a valid certificate of competence …
(c)      that the animals are fit to continue their journey;
…
(e)      that, in case of export, transporters have provided evidence that the journey from the place of departure to the first place of unloading in the country of final destination complies with [the European Convention for the protection of animals during international transport, signed in Chişinau on 6 November 2003 (12)] applicable in the third countries concerned;
(f)      whether [the included species] have been or are to be transported over long journeys.
2.      In the case of long journeys for [the included species], official veterinarians of exit points and border inspection posts shall perform and record the checks listed in Section 3 “Place of destination” of the journey log in Annex II. Records of those checks and the check provided for in paragraph 1 shall be kept by the competent authority for a period of at least three years from the date of the checks …
3.      Where the competent authority considers that animals are not fit to complete their journey, they shall be unloaded, watered, fed and rested.’
11.      Under Article 25 of Regulation No 1/2005 (‘Penalties’), ‘the Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive’.
12.      Annex II to Regulation No 1/2005 (‘Journey log’) provides:
‘1.      A person planning a long journey shall prepare, stamp and sign all pages of the journey log in accordance with the provisions of this Annex.
…
3.      The organiser shall:
…
(e)      ensure that the journey log accompanies the animals during the journey until the point of destination or, in case of export to a third country, at least until the exit point.
…
7.      If animals are exported to a third country, transporters shall give the journey log to the official veterinarian at the exit point.
In the case of export of live bovine animals with refunds, Section 3 of the journey log shall not be required if the agricultural legislation requires a report.
8.      The transporter referred to in Section 3 of the journey log shall keep:
(a)      a copy of the completed journey log;
…
Documents referred to in points (a) and (b) shall be made available to the competent authority which granted the transporter’s authorisation and upon request to the competent authority of the place of departure, within one month after it has been completed and shall be kept by the transporter for a period of at least three years from the date of the check.
Documents referred to in point (a) shall be returned to the competent authority of the place of departure within 1 month after the completion of the journey …’
13.      The Appendix to Annex II to Regulation No 1/2005 is made up of various sections, each consisting of a standard form. Section 3, in particular, is a form entitled ‘Place of destination’. Point 4 of that form specifies the ‘checks [to be] performed’ by the keeper at the place of destination/official veterinarian. One of those checks — Point 4.5 — concerns ‘journey log records and journey time limits’. Moreover, Section 4 is a form containing a declaration by the transporter to be completed by the driver during the course of the journey. That declaration must indicate, as regards the actual itinerary (resting, transfer or exit points), the various places and addresses; arrival and departure dates and times; length of stops and reasons therefor; any reasons for differences between the actual and proposed itineraries and any other observations; and the number of and reason for any injuries or deaths during the transport. It is to be signed by the driver(s) and the transporter.
B.      Regulation No 817/2010
14.      Under Article 1 of Regulation No 817/2010 (‘Scope’):
‘The payment of export refunds for live bovine animals … shall be subject to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Articles 3 to 9 of [Regulation No 1/2005] and the Annexes referred to therein, and with this Regulation.
…’
15.      Article 2(2) of Regulation No 817/2010 (‘Checks within the customs territory of the [Union]’) states:
‘The official veterinarian at the exit point shall verify … for those animals for which an export declaration is accepted whether:
(a)      the requirements laid down in [Regulation No 1/2005] have been complied with from the place of departure … until the exit point;
and
(b)      the transport conditions for the rest of the journey comply with [Regulation No 1/2005] and that the necessary arrangements have been taken to ensure its compliance until the first unloading in the third country of final destination.
The official veterinarian who has conducted the checks shall complete a report in accordance with the model set out in Annex I to this Regulation certifying whether the results of the checks performed in accordance with the first subparagraph are satisfactory or not satisfactory.
The veterinarian authority responsible for the exit point shall keep that report for at least three years. A copy of the report shall be sent to the paying agency.’
16.      Article 3 of Regulation No 817/2010 (‘Checks in third countries’) provides:
‘1.      After leaving the customs territory of the [Union], the exporter shall ensure that the animals shall be subject to a check at:
(a)      any place where there is a change of means of transport except where such change was not planned and is due to exceptional and unforeseen circumstances;
(b)      the place of the first unloading in the third country of final destination.
2.      An international control and supervisory agency, approved and controlled for this purpose by a Member State … or an official agency of a Member State shall be responsible for carrying out the checks provided for in paragraph 1.
…
A report of each check carried out pursuant to paragraph 1 shall be completed in accordance with the models set out in Annexes III and IV to this Regulation by the veterinarian who carried out the check.’
17.      Article 4 of Regulation No 817/2010 (‘Procedure for payment of export refunds’) provides:
‘1.      The exporter shall inform the competent authority of the Member State where the export declaration is accepted about all necessary details of the journey, at the latest when the export declaration is lodged …
2.      Applications for the payment of export refunds … shall be supplemented … by:
(a)      the document referred to in Article 2(3) of this Regulation duly completed;
and
(b)      the reports provided for in the third subparagraph of Article 3(2) of this Regulation.’
3.      Where the checks referred to in Article 3(1) could not be carried out due to circumstances beyond the control of the exporter, the competent authority, on a reasoned request from the exporter, may accept other documents which prove to its satisfaction that [Regulation No 1/2005] has been complied with.’
18.      Article 5(1) of Regulation No 817/2010 (‘Non-payment of export refunds’) states:
‘The total sum of the export refund per animal calculated in accordance with the second subparagraph shall not be paid for:
…
(c)      animals for which, in the light of the documents referred to in Article 4(2) and/or all other elements at its disposal concerning compliance with this Regulation, the competent authority considers that Articles 3 to 9 of [Regulation No 1/2005] and the Annexes referred to therein have not been complied with.
…’
19.      Article 7 of Regulation No 817/2010 (‘Recovery of amounts over-paid’) states that ‘where it is established after payment of the refund that [Regulation No 1/2005] has not been complied with, the relevant part of the refund … shall be considered to have been paid unduly and shall be recovered …’.
20.      Annex IV to Regulation No 817/2010 consists of a model check report at the place of the first unloading in the third country of final destination. One of the boxes used in relation to the ‘checks performed’ concerns ‘route plan records’.
II.    Facts, procedure and the questions referred
21.      On 9 September 2010, Vion Livestock (‘Vion’), a livestock export company established in the Netherlands, made an export declaration for 36 cattle with Lebanon indicated as the destination. The Staatssecretaris van Economische Zaken (State Secretary for Economic Affairs, Netherlands; ‘the State Secretary’) paid Vion refunds in respect of those cattle.
22.      On the same day, the animals left Woerden (Netherlands) for Beirut (Lebanon). The animals arrived in Koper (Slovenia) on 10 September 2010 at 10.15, where they were unloaded from the truck and loaded onto the livestock vessel MV ‘Heidi H’ and left EU territory. On 21 September 2010, the animals arrived at the place of unloading (Beirut), where they were unloaded on 22 September 2010.
23.      In that regard, while Section 1 of the journey log (‘Planning’) mentions Beirut as the place of destination, Section 3 (‘Place of destination’) indicates that Koper and Slovenia are, respectively, the place and Member State of destination. Section 4 of the journey log (‘Declaration by transporter’) also designates Koper as the place of destination. Section 4 of the journey log was kept updated only until Koper and not Beirut, and the journey log contains no information concerning the animals’ departure from Koper, arrival in Beirut or unloading in Beirut. Moreover, Section 1 of the journey log states that the animals were intended to arrive in Beirut on 16 September 2010.
24.      On 12 October 2010, Control Union Nederland — a company specialising in providing independent inspection services — declared that it had inspected, at Vion’s behest, the animals transported on board the vessel at the place of unloading and that an independent veterinarian had carried out the veterinary inspection. Its declaration stated that Beirut was the place of unloading, that 22 September 2010 had been the date of unloading and inspection and that the provisions of Regulation No 1/2005 had been observed. The declaration was accompanied by a report dated 22 September 2010 and signed by a veterinarian in Beirut on the check carried out at the first place of unloading in the third country of final destination pursuant to Article 3(2) of Regulation No 817/2010.
25.      That report stated that the place of final destination was Beirut and that the route plan data were in compliance with the provisions of Regulation No 1/2005 and Regulation No 817/2010. The veterinarian declared that he had carried out the necessary checks required under Article 3(2) of Regulation No 817/2010 and that the outcome thereof had been satisfactory. Moreover, the report contained the following remarks: ‘animals arrived at the place of destination of discharge on 21/09/2010 and have been discharged in my presence and my control on 22/0[9]/2010 from 11.15 hours till 13.30 hours. Above 139 heads were found to be in good general position and in good general condition’. (13)
26.      By decision of 4 February 2014, the State Secretary ordered Vion to repay export refunds of an amount of EUR 5 292.92, as well as a 10% increase and interest amounting to EUR 577.40. By decision of 18 June 2014, the State Secretary held Vion’s objection against the decision of 4 February 2014 to be unfounded. Vion brought an action for judicial review of that second decision before the referring court.
27.      The parties in the main proceedings disagree on whether Vion was obliged to keep the journey log up to date until the animals were unloaded in Beirut. While the referring court considers that such an obligation essentially follows, as the State Secretary argues, from the judgment in Zuchtvieh-Export, it also considers that Vion’s contention that there is no such obligation finds support in Rule 7 of Annex II to Regulation No 1/2005, which requires transporters to give the journey log to the official veterinarian at the exit point if the animals are transported to a third country.
28.      If there is no such duty, the referring court in any event wonders how the veterinarian in Lebanon might have been able to verify that the requirements flowing from Regulation No 817/2010 were met without being in possession of a journey log (route plan) that had been kept up to date after Koper. In that regard, the referring court states that the precise time of arrival of the vessel in the port of Beirut on 21 September 2010 is not indicated in either the report of 22 September 2010 or the journey log and that, moreover, the animals were originally set to arrive on 16 September 2010. The referring court adds that it assumes that the transporter handed over the journey log to the official veterinarian in Koper, and that this is the sole reason why that part of the journey log was not kept up to date until Beirut. Entertaining doubts as to the proper interpretation of Regulations Nos 1/2005 and 817/2010, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Are Articles 5(4) and 8(2) of [Regulation No 1/2005], read in conjunction with the provisions regarding the journey log in Annex II to that regulation, to be interpreted as meaning that they impose an obligation on the organiser of the transport and/or on the keeper of the animals, when transporting animals to a third country, to keep the journey log up to the place of destination in that third country?
(2)      Are Articles 5 and 7 of [Regulation No 817/2010], read in conjunction with Article 4 of that regulation, to be interpreted as meaning that the export refunds must be recovered if the journey log was not kept up to the place of destination in the third country, for the reason that the transporter discharged the obligation laid down in point 7 of Annex II to Regulation No 1/2005 to give the journey log to the official veterinarian at the exit point?
(3)      Are Articles 5 and 7 of Regulation No 817/2010, read in conjunction with Article 4 of that regulation, to be interpreted as meaning that the export refunds must be recovered if the exporter is unable to prove compliance with the provisions of Regulation No 1/2005, in a situation where the veterinarian, in the context of the checks which he is required to carry out in the third country pursuant to Article 3(1) of Regulation No 817/2010, is unable to verify whether or not the route plan data (the journey log) are satisfactory, that is to say, whether or not they are in compliance with the provisions of Regulation No 1/2005 (and is consequently also unable to declare that the outcome of those checks is satisfactory), inasmuch as the transporter has given the journey log to the official veterinarian at the exit point?’
29.      Written observations were submitted by Vion, the Netherlands Government, the Hungarian Government and the Commission. On 17 May 2017, the Netherlands Government and the Commission presented oral argument.
III. Analysis
A.      Scope of the questions referred
30.      While the second and third questions referred turn on the proper interpretation of the rules on refunds for the export of animals under Regulation No 817/2010 in combination with the requirements of Regulation No 1/2005, the first question solely concerns Regulation No 1/2005.
31.      However, as the Commission initially points out in its observations, the main proceedings concern the lawfulness of a decision ordering the repayment of export refunds. Consequently, the Commission considers that, were the first question to be consideredindependently of the second and third questions, its relevance and, by the same token, its admissibility would be doubtful. The Commission therefore proposes answering the first question jointly with the other two questions.
32.      Vion also has similar reservations. In its view, the main proceedings do not turn on whether the substantive rules of Regulation No 1/2005 must be observed outwith EU territory in order to receive export refunds, but rather on the question of which administrative actions must, under that regulation, be taken using the journey log.
33.      I share those concerns and am further prompted to make the following observations regarding the judgment in Zuchtvieh-Export, in which the Court ruled that the animal welfare standards of Regulation No 1/2005 must be taken into account when planning a long journey which begins within the Union and ends outside EU territory.Those observations will explain why I cannot recommend that the Court answer the first question referred independently from the second and third questions.
34.      Unlike Regulation No 817/2010, which aims, inter alia, to incentivise transporters of animals to comply with the animal welfare rules by offering them, on a voluntary basis, economic support in the form of refunds when they export animals to third countries, (14) the animal transport rules in Regulation No 1/2005 are not optional. Failure to comply with Regulation No 1/2005 may lead to the imposition of penalties in accordance with Article 25 thereof, as specified in national law. Such penalties might take the form of monetary penalties (fines); a temporary or permanent revocation of the relevant occupational authorisations; the bringing of criminal proceedings under animal welfare legislation; or other imaginable types of penalties. That is worth keeping in mind when considering what is at stake in these proceedings.
35.      It is also worth calling to mind that the judgment in Zuchtvieh-Export concerned a refusal, by the competent German authority, to issue customs clearance for a consignment of cattle to be exported from Germany to Uzbekistan. No request for export refunds had been lodged. (15) The Court therefore could not avoid having to interpret Regulation No 1/2005 in isolation from other legislation. (16)
36.      Moreover, in Zuchtvieh-Export the Court was asked to interpret Article 14(1) of Regulation No 1/2005. That provision explicitly obliges the competent authority of the place of departure to check, prior to the departure, that the proposed journey log submitted by the organiser in respect of a long journey between Member States and with third countries is realistic and indicates compliance with that regulation. If not, the authority is to require the organiser to change the arrangements made so that the intended journey complies therewith.
37.      In essence, Zuchtvieh-Export therefore concerned whether Regulation No 1/2005 might apply, in an ex ante monitoring situation, to the part of the journey as planned in the journey log which was intended to take place in a third country. On that reading, it is not apparent that requiring the intended journey to comply with the regulation in its entirety would breach the principle of territoriality. To be somewhat provocative, it could in fact be said that notwithstanding Article 1 of Regulation No 1/2005, given the unequivocal wording of Article 14(1) of Regulation No 1/2005, no other outcome was feasible. (17)
38.      By contrast, the main proceedings concern an ex post monitoring situation where the operation has taken place. Allegations have been made that the requirements set out in Regulation No 1/2005 have not been met as regards specifically the part of the journey which took place beyond EU territory. If those allegations are proven true, instead of a mere refusal to grant clearance, that or those infringements may lead to the imposition of penalties, as required under Article 25 of that regulation.
39.      In truth, the imposition of penalties in respect of the part of a journey which takes place beyond the borders of the Union not only concerns the issue of the territorial scope of Regulation No 1/2005. It also raises the thorny question as to how Member States might reconcile their duty to comply with Article 25 of Regulation No 1/2005 by potentially exercising (criminal) jurisdiction with a view to punishing behaviour which took place in a third country with the distinct possibility that the behaviour in question might not have been unlawful there. (18)
40.      That issue takes on particular significance in the case of the export of live animals to third countries. In such situations, Article 21(1)(e) of Regulation No 1/2005 refers to the European Convention for the protection of animals during international transport. Accordingly, Regulation No 1/2005 appears to operate a distinction between (higher) standards for animal welfare during transport applicable within the Union and (lower) standards applicable in third countries. It has been argued — fairly convincingly — that this indicates that the journey between the exit point and the first place of unloading in the third country of final destination is not governed by Regulation No 1/2005 but rather by international agreements. (19) In any event, the judgment in Zuchtvieh-Export does not exclude the possibility that this might be the case in ex post monitoring situations.
41.      As it is, it seems to me that if the Court were to address the issues mentioned in the three previous points, it would have to do so in a vacuum: the observations lodged with the Court do not broach those aspects at all. In fact the parties who have lodged observations have not even touched on the applicability ratione loci of Regulation No 1/2005 in an ex post monitoring situation, or the possibility that the standards of animal welfare might differ between the Union and third countries. (20)
42.      Against that backdrop, I would urge the Court to err on the side of caution by restricting its answer. The Court has not been informed that penalties issued in accordance with Article 25 of Regulation No 1/2005 are at play in the main proceedings, and it would be unwise to assume that penalties have been or might be imposed. At any rate, should that be the case, the referring court (or other competent national court) would obviously be at liberty to refer another question to the Court.
43.      What is more, it has not escaped my attention that the second question referred contains, more or less, the same query as the first question, only transferred to the regime for refunds on animal exports. Hence, as I propose that the questions referred should be answered on the premiss that the regime for animal export refunds is applicable, there will be no need to answer the first question independently.
B.      Assessment
1.      Introductory observations
44.      By its questions, the referring court essentially asks whether, for the payment of export refunds under Regulation No 817/2010, the transporter must keep the journey log up to date until the first place of unloading in the third country of final destination or whether it is sufficient that the journey log be handed over to the official veterinarian at the exit point of the Union. The referring court also wishes to know whether the exporter bears the risk of not being able to prove that the requirements of Regulation No 1/2005 are met in a situation where the transporter has handed over the journey log to the official veterinarian at the exit point of the Union and, as a consequence, the veterinarian at the first place of unloading in the third country of final destination is unable to check that log.
45.      From the outset, I have already stated that the rules laid down by Regulation No 1/2005 are no model of clarity. (21) The main proceedings bear witness thereto. Indeed, the rules in Regulation No 1/2005 on the journey log — in particular those in Annex II — do not always appear to make much sense. (22) That is unfortunate, as it also has an impact on the interpretation of Regulation No 817/2010 due to the link which the latter makes to the former.
46.      Illustrative in that regard is the fact that the referring court is uncertain whether the concept of ‘journey log’, central to Regulation No 1/2005, corresponds to that of ‘route plan records’ used in the Annexes to Regulation No 817/2010. It is inclined to think so, but cannot be sure.
47.      However, that is one doubt which I shall gladly dispel. Those concepts cannot be different: as stated by the Netherlands Government and as eventually conceded by the Commission at the hearing, the ‘route plan’ (or ‘route plan records’ in the English version of the Annexes to Regulation No 817/2010) is the precursor of the ‘journey log’ and was used in the predecessor to Regulation No 1/2005, namely Directive 91/628/EEC. (23) It is understandable that the predecessor to Regulation No 817/2010, that is to say, Regulation (EC) No 639/2003, (24) still used those words, as Regulation No 1/2005 had yet to be adopted. Regrettably though, it appears that the Commission simply ‘recycled’ the Annexes to Regulation No 639/2003 into Regulation No 817/2010. Doing so preserved a term which had been abandoned in Regulation No 1/2005. That does not imbue trust in the quality of the legislative output.
48.      Be that as it may, I conclude that for the purpose of granting (or withdrawing) export refunds under Regulation No 817/2010, the ‘route plan’ corresponds to the ‘journey log’ as used in Regulation No 1/2005.
2.      Substance
(a)    The obligation under Regulation No 817/2010 to keep the journey log up to date until the first place of unloading in the third country of final destination
49.      Although citing different provisions, the first and second questions both concern whether an obligation exists to keep the journey log up to date until the first place of unloading in the third country of final destination (the second question mentioning also the issue of the recovery of export refunds).
50.      The ambiguous nature of many of the provisions contained in Regulations Nos 1/2005 and 817/2010 does not detract from the fact that Regulation No 817/2010 does make one point emphatically clear. Under Article 1 of Regulation No 817/2010, payment of export refunds is conditional on compliance, ‘during the transport of the animals to the first place of unloading in the third country of final destination, with Articles 3 to 9 of [Regulation No 1/2005] and the Annexes referred to therein, and with [Regulation No 817/2010]’ (emphasis added). It follows that even if one takes the view that Regulation No 1/2005 applies only within the Union per se, the effect of Article 1 of Regulation No 817/2010 is, as recognised by the Hungarian Government, to extend the territorial scope of certain of the provisions of Regulation No 1/2005 to third countries. (25)
51.      Articles 5(4) and 8(2) of Regulation No 1/2005 are both provisions mentioned in Article 1 of Regulation No 817/2010, and they both refer to Annex II to the former concerning the journey log. Therefore, the rules stated in that annex extend to third countries within the regime for export refunds — so much is also clear. However disagreement arises as to whether the rules set out in Annex II to Regulation No 1/2005 oblige the transporter to keep the journey log up to date beyond the exit point of the Union.
52.      In particular, Vion, supported by the Hungarian Government, argues that it follows from the first paragraph of Rule 7 of Annex II to Regulation No 1/2005 that no such obligation exists, as that rule requires the transporter to give the journey log to the official veterinarian at the exit point. Hence, Vion’s interpretation of that rule involves the permanent transfer of the journey log to the official veterinarian at the exit point of the Union, after which the transporter no longer has it in his possession and, accordingly, is no longer responsible therefor.
53.      Vion’s interpretation is not far-fetched. It follows directly from the wording of the first paragraph of Rule 7 of Annex II to Regulation No 1/2005. On the other hand, the underlying problem is that, as explained below, that interpretation makes little sense in the particular situation of exports with requests for refunds. As such, Rule 7 seems to me to amount to yet another example of unclear rule-making. (26) A closer look at the context and aim of the rules of Annex II is therefore called for.
54.      In the first place, some of the rules of Annex II distinguish between intra-Union transport and exports to third countries. (27) As for those rules which do not draw such a distinction, it is inconclusive whether that silence is intended and what consequences flow therefrom.
55.      In the second place, Rule 2 of Annex II to Regulation No 1/2005 appears to treat the journey log as an indivisible whole. It states that the journey log consists of Sections 1 to 5 and that ‘the pages of the journey log shall be fastened together’.
56.      In the third place, the journey log cannot be a purely static document: while Section 3 amounts to a snapshot of the state of well-being of the animals at the exit point, Section 4 is designed to receive data compiled by the transporter (driver) as the transport progresses. It appears that the checks of the journey log records required under Section 3 cannot be carried out without Section 4.
57.      In the fourth place, the second paragraph of Rule 7 of Annex II to Regulation No 1/2005, which is applicable in the main proceedings, is of interest. That paragraph states that ‘in the case of export of live bovine animals [(28)] with refunds, Section 3 of the journey log shall not be required if the agricultural legislation requires a report’. To be clear, Regulation No 817/2010 is a type of agricultural legislation (29) requiring a report. (30) On its face therefore, the second paragraph of Rule 7 of Annex II would tend to lend support to Vion’s interpretation, in the sense that it indicates that only Section 3 of the journey log does not have to be handed over to the official veterinarian in the case of export.
58.      However, first, that would be to overlook the rationale of the second paragraph of Rule 7 of Annex II to Regulation No 1/2005, which is simply to remove the requirement, in the case of the export of live bovine animals with refunds, for the transporter to hand over Section 3 of the journey log to the official veterinarian at the exit point. Indeed, a subsequent check is to be carried out under Annex IV of Regulation No 817/2010 at the first place of unloading in the third country of final destination. Not having to hand over Section 3 of the journey log to the official veterinarian under the second paragraph of Rule 7 means that, in the case of the export of live bovines with a request for refunds, Regulation No 1/2005 implicitly recognises the place of first unloading in the third country of final destination as the ‘Place of destination’ under Section 3. In that regard, what applies to Section 3 of the journey log would also hold true for Annex IV to Regulation No 817/2010: the checks to be performed of the ‘route plan records’ — or journey log — under Annex IV to Regulation No 817/2010 cannot be completed without Section 4, as compiled until the first place of unloading in the third country of final destination. Against that backdrop, the second paragraph of Rule 7 would rather tend to confirm the view that the journey log must be kept up to date beyond the point of exit of the Union. Indeed, it would make no sense to construe Annex IV to Regulation No 817/2010 as simply requiring the veterinarian at the first place of unloading in the third country of final destination to check that the journey log (possibly save for Section 3) has been properly handed over to the official veterinarian at the point of exit of the Union in accordance with Rule 7 of Annex II to Regulation No 1/2005. The former would in most cases not even have any direct knowledge thereof.
59.      Second, the fact that the second paragraph of Rule 7 of Annex II ‘severs off’ one of the sections of the journey log indicates that, contrary to what is suggested by Rule 2, the journey log is in fact not an indivisible whole. The corresponding provision in Article 21(2) of Regulation No 1/2005 also casts doubt on the unity of the journey log. In the default situation (meaning first and foremost an export without a request for refunds), Article 21(2) requires the official veterinarian at the exit point to ‘perform and record the checks listed in Section 3 “Place of destination” of the journey log in Annex II’ in the event of long journeys with the included species. Article 21(2) does not state that the official veterinarian is to have definitive possession of the entire journey log for the purpose of carrying out the checks listed in Section 3. If anything, Article 21(2) would appear only to require the transporter to hand Section 3 over to the official veterinarian. (31) That rather lends support to the idea of a ‘functional’ journey log, in line with what I have alluded to above at point 56.
60.      The ambiguous nature of Annex II to Regulation No 1/2005 is confirmed by Rule 3(e) of Annex II which, albeit directed at the organiser of the journey, requires that person to ‘ensure that the journey log accompanies the animals during the journey until the point of destination or, in case of export to a third country, at least until the exit point’ (emphasis added). Moreover, Rule 8 of Annex II requires the transporter referred to in Section 3 of the journey log (‘Place of destination’) to keep ‘a copy of the completed journey log’ (emphasis added; the word ‘completed’ does not appear in the Dutch version of Regulation No 1/2005). Therefore, unless Rule 8 were to exclude the leg of the journey beyond the Union (which, as I have stated above at point 54, cannot be ruled out, but cannot be presumed either) it would appear that a copy of the journey log is to be kept up to date until the first place of unloading in the third country of final destination.
61.      In the fifth place, unlike the rules contained in Annex II to Regulation No 1/2005 — which are disconcertingly opaque — the aim of Regulation No 817/2010 is crystal clear. It is to maintain the animal welfare standards throughout the entire export operation. (32)
62.      That leads me to consider that the only interpretation that is consistent with the aim of Regulation No 817/2010 is one which requires the transporter to keep the journey log up to date after leaving the point of exit of the Union. Without an up-to-date journey log, the veterinarian at the first place of unloading in the third country of final destination simply cannot be sure that the part of the journey which has taken place outside the Union has complied with the animal welfare rules. There would therefore be a risk that refunds would be paid for exports which fail to observe the animal welfare rules (such as the rules on journey times and resting periods), contrary to what Regulation No 817/2010 is intended to achieve. (33)
63.      In the last place, I note that the Court has stated that the practice of granting export refunds on the basis of Regulation No 817/2010, which involves a post-transport check of the requirements resulting from Regulation No 1/2005, has not shown that the transport of animals with a point of departure in the territory of the Union and with a destination in a third country comes up against systemic difficulties in terms of compliance with those requirements in the territory of third countries. (34) In essence, the Court appears thereby to have discounted arguments based on practical difficulties linked to the application of Regulation No 817/2010 in third countries — for the time being at least.
64.      On that basis, I conclude that on a proper construction of Article 1 of Regulation No 817/2010, read in the light of the second paragraph of Rule 7 of Annex II to Regulation No 1/2005 and of Article 3(2) of Regulation No 817/2010, the transporter of a shipment of live bovines for which a request for export refunds has been made is required to keep the journey log up to date until the place of first unloading in the third country of final destination. Failure to comply with that obligation obviously has certain repercussions on the exporter who has lodged that request, as shall be discussed below.
65.      In light of that answer, I do not consider it necessary to take a position on certain factual observations made by the Commission (35) which are not reproduced in the order for reference. In that regard, it is for the referring court to establish and weigh up the facts that it considers relevant.
(b)    Evidentiary implications of not keeping the journey log up to date for the check to be carried out under Article 3(1)(b) of Regulation No 817/2010
66.      The referring court’s third question indicates that it also wishes to know whether it is the exporter or the authority responsible for payment of export refunds which is to bear the risk that the transporter might hand over the journey log to the official veterinarian at the point of exit of the Union, thus rendering the veterinarian at the place of first unloading in the third country of final destination presumably unable to carry out the requisite checkson the basis of the journey log.
67.      I agree with the Netherlands Government that it may not be necessary to answer that question. It appears to be based on the premiss that the transporter is not obliged to keep the journey log up to date until the place of the first unloading in the third country of final destination. As stated above, I do not consider that to be the case.
68.      In any event, that issue is resolved by Article 3 of Regulation No 817/2010. Under that provision, the exporter is to ensure that the animals are subject to a check at the place of the first unloading in the third country of final destination, and that an external control entity is to be responsible for carrying out those checks. For that purpose, the model form set out in Annex IV to that regulation, mentioned above at point 58, is to be used. That model form requires a veterinarian to perform a check of the ‘route plan records’ — which I have already stated above at points 46 to 48 correspond to the ‘journey log’ as used in Regulation No 1/2005. The veterinarian must then indicate whether the outcome of the check was satisfactory or not. A footnote specifies that the term ‘satisfactory’ indicates ‘conformity with the requirements of [Regulations Nos 1/2005 and 817/2010]’.
69.      The effect of Articles 1 and 5(1)(c) of Regulation No 817/2010 is that compliance with the procedure mentioned in the previous point and, in particular, a satisfactory outcome, is a requirement for payment of export refunds. If the veterinarian at the place of the first unloading in the third country of final destination cannot check the route plan records/journey log because he has not been provided with it, then a state of non-compliance exists.
70.      As for the burden of proof, the Court has held that the system of export refunds is based on voluntary declarations, where the exporter decides on its own initiative to seek a refund and must provide the relevant information necessary to establish its entitlement to the refund and to determine its amount. Since the context is that of an EU aid scheme, the grant of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness. By declaring a product under the procedure for export refunds, an exporter implies that the product satisfies all the conditions necessary for the refund. If the declaration is questioned by the competent authority, it is for the exporter to show, in accordance with the national rules of evidence, that the conditions have actually been complied with. (36)
71.      Specifically, it is for the exporter to establish, in accordance with Article 4(1) and (2) of Regulation No 817/2010, that the conditions for the grant of the export refund are met. It should be noted that the exporter must, in order to obtain payment of the export refund, provide the competent authority of the Member State where the declaration is accepted with proof of compliance with Article 1 of Regulation No 817/2010 and, accordingly, with Regulation No 1/2005, by producing the documents referred to in Articles 2(3) and 3(2) respectively of Regulation No 817/2010. The report drawn up at the place of the first unloading in the third country of final destination and completed in accordance with Annex IV to that regulation by the veterinarian who carried out the check is one of those documents. (37)
72.      In that regard, the absence of a document cannot be compared to a situation where the credibility of the content of that document is at stake. (38) Article 4(3) of Regulation No 817/2010 states that it is only in cases of force majeure that a competent authority may accept other documents proving compliance with Regulation No 1/2005. As a general rule therefore, failure to provide a required document means that the refund requested cannot be paid out.
73.      Vion does not argue a case of force majeure (such a claim would in any event be unlikely to succeed). Rather, in its observations, Vion argues that the principle of legal certainty requires that the right to export refunds can be extinguished only if an exporter has failed to comply with obligations of which he could obviously have been aware.
74.      However, that argument does not concern the issue of who bears the burden of proof in circumstances where the veterinarian at the first point of unloading in the third country of final destination cannot consult the journey log, which is what the referring court addresses by its third question. Rather, that argument appears to concern whether a bar exists to recovery under Article 7 of Regulation No 817/2010 on the ground that it would be at odds with the protection of legitimate expectations, which constitutes a general principle of EU law, (39) in the circumstances of the main proceedings where the export refunds have been paid out in advance. In that regard, it follows from case-law that the principle of the protection of legitimate expectations cannot be relied upon against an unambiguous provision of EU law. (40) The provisions at issue here are far from unambiguous, but the fact that they are does not, in itself, trigger the application of that principle. And so, as the referring court has not asked specifically whether the protection of Vion’s legitimate expectations precludes recovery of the export refunds at issue, I shall not dwell thereon any further, save to say that it is ultimately a matter for that court to consider.
75.      In conclusion, I consider that on a proper construction of Article 5(1)(c) of Regulation No 817/2010, read together with Articles 4(2)(b) and 3(2), export refunds are not to be paid out where a veterinarian, in the context of the checks to be carried out in a third country pursuant to Article 3 of that regulation, is unable to verify whether the route plan records are satisfactory, owing to the fact that the transporter has given the journey log to the official veterinarian of a Member State at the exit point of the Union. Accordingly, any export refunds which have been paid out in advance for that shipment must be recovered in accordance with the procedure laid down in Article 7 of Regulation No 817/2010. It falls to the referring court to make the final determination on recovery, taking all the relevant circumstances into account.
IV.    Conclusion
76.      In light of the foregoing considerations, I propose that the Court answer the questions referred in Case C‑383/16 by the College van Beroep voor het Bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands) to the effect that:
–        on a proper construction of Article 1 of Commission Regulation (EU) No 817/2010 of 16 September 2010 laying down detailed rules pursuant to Council Regulation (EC) No 1234/2007 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport, read in the light of the second paragraph of Rule 7 of Annex II to Council Regulation No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 and of Article 3(2) of Regulation No 817/2010, the transporter of a shipment of live bovines for which a request for export refunds has been made is required to keep the journey log up to date until the place of first unloading in the third country of final destination;
–        on a proper construction of Article 5(1)(c) of Regulation No 817/2010, read together with Articles 4(2)(b) and 3(2), export refunds are not to be paid out where a veterinarian, in the context of the checks to be carried out in a third country pursuant to Article 3 of that regulation, is unable to verify whether the route plan records are satisfactory, owing to the fact that the transporter has given the journey log to the official veterinarian of a Member State at the exit point of the European Union. Accordingly, any export refunds which have been paid out in advance for that shipment must be recovered in accordance with the procedure laid down in Article 7 of Regulation No 817/2010. It falls to the referring court to make the final determination on recovery, taking all the relevant circumstances into account.
1      Original language: English.
2      Commission Regulation of 16 September 2010 laying down detailed rules pursuant to Council Regulation (EC) No 1234/2007 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport (OJ 2010 L 245, p. 16).
3      Council Regulation of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1).
4      I should mention that the Commission also questions whether a state of non-compliance arose before the shipment left EU territory.
5      Judgment of 23 April 2015, Zuchtvieh-Export, C‑424/13, EU:C:2015:259, (‘Zuchtvieh-Export’).
6      Under Article 2 of Regulation No 1/2005 (‘Definitions’), a ‘long journey’ means a journey that exceeds 8 hours, starting from when the first animal of the consignment is moved.
7      Under Article 2 of Regulation No 1/2005, a ‘transporter’ means any natural or legal person transporting animals on his own account, or for the account of a third party.
8      Under Article 2 of Regulation No 1/2005, an ‘organiser’ means (i) a transporter who has subcontracted to at least one other transporter for a part of a journey; or (ii) a natural or legal person who has contracted to more than one transporter for a journey; or (iii) a person who has signed Section 1 of the journey log as set out in Annex II.
9      Under Article 2 of Regulation No 1/2005, a ‘keeper’ means any natural or legal person, except a transporter, in charge of or handling animals whether on a permanent or temporary basis.
10      Under Article 2 of Regulation No 1/2005, an ‘exit point’ means a border inspection post or any other place designated by a Member State where animals leave the customs territory of the Union.
11      Under Article 2 of Regulation No 1/2005, an ‘official veterinarian’ means the veterinarian appointed by the competent authority of the Member State.
12      See also Council Decision 2004/544/EC of 21 June 2004 on the signing of the European Convention for the protection of animals during international transport (OJ 2004 L 241, p. 21).
13      The order for reference does not state explicitly that the 36 cattle for which Vion sought export refunds were among the 139 cattle checked by the veterinarian in Beirut. I shall proceed on the assumption that they were.
14      Compare with the judgment of 13 March 2008, Viamex Agrar Handel, C‑96/06, EU:C:2008:158, paragraph 30.
15      See, explicitly on that point, the Opinion of Advocate General Bot in Zuchtvieh-Export, C‑424/13, EU:C:2014:2216 (‘the Opinion of Advocate General Bot in Zuchtvieh-Export’), point 17.
16      The Court did, however, take Regulation No 817/2010 into consideration when giving its answer; see Zuchtvieh-Export, paragraph 53. For a comparative analysis of the difference in scope ratione loci between that regulation and Regulation No 1/2005, see the Opinion of Advocate General Bot in Zuchtvieh-Export, points 68 to 79.
17      Such a view was evidently not shared by all: see the Opinion of Advocate General Bot in Zuchtvieh-Export.
18      For instance, under the active personality principle of international law, certain States require (typically less egregious types of) offences to be punishable not only in that State, but also in the State where the unlawful behaviour took place as a condition for their exercise of criminal jurisdiction.
19      See the Opinion of Advocate General Bot in Zuchtvieh-Export, points 61 and 62.
20      The judgment in Zuchtvieh-Export, in particular paragraph 54 thereof_does not resolve these issues either. Moreover, the ex post checks referred to in the judgment of 25 November 2008, Heemskerk and Schaap, C‑455/06, EU:C:2008:650, paragraph 28, concerned a different regulation, which complemented the checks to be carried out under a predecessor to Regulation No 817/2010.
21      See my Opinion in Masterrind, C‑469/14, EU:C:2016:47, points 20, 27, 28, 38 and 47.
22      For instance, while Rule 8 of Annex II to Regulation No 1/2005 states, in its second paragraph, that the journey log ‘shall be made available … upon request to the competent authority of the place of departure, within one month after it has been completed’, its third paragraph states that the journey log ‘shall be returned to the competent authority of the place of departure within 1 month after the completion of the journey’.
23      Council Directive 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), as amended. See, in particular, Article 5(2)(b) thereof and Chapter VIII (‘Route plan’) of the Annex thereto, which were inserted by Council Directive 95/29/EC of 29 June 1995 amending Directive 91/628/EEC concerning the protection of animals during transport (OJ 1995 L 148, p. 52).
24      Commission Regulation of 9 April 2003 laying down detailed rules pursuant to Council Regulation (EC) No 1254/1999 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport (OJ 2003 L 93, p. 10).
25      See the Opinion of Advocate General Bot in Zuchtvieh-Export, points 68 to 79, in particular point 71.
26      Thus, it comes as no surprise that the Commission is also unsure of how to construe Rule 7 of Annex II to Regulation No 1/2005, calling into question whether, under the first paragraph of that rule, the words ‘give the journey log to the official veterinarian at the exit point’ refer to all sections of that log, or only to Section 3.
27      That is the case for Rules 3(e) and 4 to 7.
28      The rationale for the limitation to live bovine animals is unclear.
29      Regulation No 817/2010 is, ultimately, adopted on the basis of the rules in the FEU Treaty on agriculture: the legal basis of Regulation No 817/2010 is, in particular, Article 170 of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), which itself has its legal basis in the EC Treaty and, in particular, Articles 36 and 37 EC (now Articles 42 and 43 TFEU).
30      Under Article 3(2) of Regulation No 817/2010, a report is to be drawn up and completed in accordance with the models set out in, inter alia, Annex IV to Regulation No 817/2010, by the veterinarian who carried out the check of the animals at the first place of unloading in the third country of final destination pursuant to Article 3(1)(b) of Regulation No 817/2010.
31      To some extent, Article 21(2) of Regulation No 1/2005 could arguably entail that the terms ‘give the journey log to the official veterinarian at the exit point’ in Rule 7 of Annex II to Regulation No 1/2005 refer to the handing over of the journey log to the official veterinarian for the purpose of performing the relevant checks. However, such a reading of Rule 7 is admittedly not self-evident.
32      Recital 3 of Regulation No 817/2010 states that ‘in order to guarantee that the animal welfare standards are maintained, a monitoring system should be introduced comprising compulsory checks at the exit point from the customs territory of the [Union] and after leaving the customs territory of the [Union] where there is a change of means of transport and also at the place of the first unloading in the third country of final destination’ (emphases added).
33      Recital 7 of Regulation No 817/2010 states, inter alia, that ‘Article 168 of [Regulation No 1234/2007] and this Regulation provide that compliance with legislation of the Union on animal welfare is a condition for the payment of export refunds’.
34      Zuchtvieh-Export, paragraph 53.
35      The Commission argues, inter alia, that it emerges from the case file that the cattle at issue in the main proceedings were not given 24 hours rest before being loaded on to the Heidi H in Koper (Slovenia), and that five animals died on board the vessel and were thrown overboard. However, the Netherlands Government stated at the hearing that the so-called T5 control copy indicated that the bovines at issue left Koper on 13 September 2010.
36      See the judgment of 13 March 2008, Viamex Agrar Handel, C‑96/06, EU:C:2008:158, paragraphs 30 and 31 and the case-law cited.
37      See, by analogy, judgments of 13 March 2008, Viamex Agrar Handel, C‑96/06, EU:C:2008:158, paragraphs 30 to 33, and of 25 November 2008, Heemskerk and Schaap, C‑455/06, EU:C:2008:650, paragraph 24.
38      See, for situations where the credibility of the result of the checks made by the official veterinarian at the exit point of the Union was at stake, judgments of 13 March 2008, Viamex Agrar Handel, C‑96/06, EU:C:2008:158; of 25 November 2008, Heemskerk and Schaap, C‑455/06, EU:C:2008:650; and of 28 July 2016, Masterrind, C‑469/14, EU:C:2016:609.
39      See judgment of 20 June 2013, Agroferm, C‑568/11, EU:C:2013:407, paragraph 47 and the case-law cited.
40      Ibid., paragraph 52 and the case-law cited.