Cases C-37/06 and C-58/06: References for a preliminary ruling from the Finanzgericht Hamburg by orders of that court of  10  and  12 January 2006  in Viamex Agrar Handels GmbH (Case C-37/06) and ZVK Zuchtvieh-Kontor GmbH (Case C-58/06) v Hauptzollamt Hamburg-Jonas
Date: 2006-04-22
Institutions: Court of Justice
Subjects: animal welfare, export refund, interpretation of the law, protection of animals, transport of animals

C 96/2

EN

Official Journal of the European Union

22.4.2006

Pleas in law and main arguments

In support of its appeal against the aforementioned judgment,
the appellant makes the following submissions:

interpretation of,

1. The appellant takes the view that the Court of First Instance
proceeded on the basis of an incorrect, or at any rate
unduly restricted,
in particular, Articles
905 to 909 of the regulation implementing the Community
Customs Code (1) with regard to the procedure for the
repayment and/or remission of customs duties. The prin-
ciple of legal certainty requires that the legal situation of
Ricosmos should have been foreseeable in this particular
case. Ricosmos takes the view that, because of suspensions
of the proceedings of which it was not informed, that was
not the case here. The Court of First Instance also proceeded
incorrectly on the basis of an overly restricted view of the
rights of the defence, reflected in its excessively circum-
scribed interpretation of the right to timeous and full access
to the case files (both that of the national customs authori-
ties and that of the Commission):

2. The appellant considers that the decision of the Court of
First Instance is also at variance with Community law. It
takes the view that the principle of
legal certainty also
implies that the criteria for determining that there was no
obvious negligence must be clear and readily identifiable. It
is precisely because of the considerable flexibility of the
term 'obvious negligence' that those criteria ought in prin-
ciple to be construed restrictively and individually. The
negligence must be evident and essential and must also be
in a clear causal relationship with the special situation
which has been established. In this case, the Court of First
Instance wrongly attached in this regard no, or not enough,
weight to the complexity of the legislation and to the signif-
the appellant, and also
icant professional experience of
misconstrued a number of obligations on the appellant, or
at any rate appraised them in an overly formalistic manner;

3. The appellant

is also of the view that

the Commission
infringed the principle of proportionality and that the Court
of First Instance also attached no, or at any rate insufficient,
weight to new facts which suggested that the customs duties
charged ought to have been cancelled;

4. In conclusion, the appellant expresses the view that the
establishment by the Court of First Instance of the facts
underlying the dispute was in part erroneous or in any
event incomplete.

References for a preliminary ruling from the Finanzgericht
Hamburg by orders of that court of 10 and 12 January
2006 in Viamex Agrar Handels GmbH (Case C-37/06) and
ZVK Zuchtvieh-Kontor GmbH (Case C-58/06) v Hauptzol-
lamt Hamburg-Jonas

(Cases C-37/06 and C-58/06)

(2006/C 96/03)

(Language of the cases: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by orders of the Finanzgericht Hamburg
(Hamburg Finance Court) of 10 and 12 January 2006, received
at the Court Registry on 23 January 2006 and 3 February
2006, for a preliminary ruling in the proceedings between
Viamex Agrar Handels GmbH (Case C-37/06) and ZVK Zucht-
vieh-Kontor GmbH (Case C-58/06) v Hauptzollamt Hamburg-
Jonas on the following questions:

1. Is Article 1 of Regulation (EC) No 615/98 (1) valid inasmuch
as it links the grant of an export refund to compliance with
Directive 91/628/EEC (2) on the protection of animals
during transport?

2. If the first question should be answered in the affirmative: Is
Article 5(3) of Regulation (EC) No 615/98, according to
which export refunds are not to be paid for animals for
which the competent authority considers, in the light of all
elements at its disposal concerning compliance with Article
1 of Regulation (EC) No 615/98, that the Directive on the
protection of animals during transport was not complied
with, compatible with the principle of proportionality?

(1) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 establishing the Community Customs Code (OJ
1993 L 253, p. 1).

(1) OJ L 82, p. 19.
(2) OJ L 340, p. 17.