Case C-96/06: Judgment of the Court (Third Chamber) of 13 March 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg (Germany)) — Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas (Regulation (EC) No 615/98 — Directive 91/628/EEC — Export refunds — Refusal — Non-compliance with Directive 91/628/EEC — Adverse effect on animal welfare — Burden of proof — Lack of evidence)
Date: 2008-03-13
Institutions: Court of Justice
Subjects: animal welfare, export refund, interpretation of the law, protection of animals, transport of animals

9.5.2008

EN

Official Journal of the European Union

C 116/3

Interveners in support of the applicant: Kingdom of Denmark (Case
C-14/06), (represented by: J. Molde, B. Weis Fogh and J. Bering
Liisberg, Agents), Portuguese Republic,
(represented by: L.
Fernandes and M.J. Lois, Agents), Republic of Finland, (repre-
sented by: A. Guimaraes-Purokoski, Agent), Kingdom of
Sweden, (represented by: A. Kruse, Agent), Kingdom of Norway,
(represented by: I. Djupvik, K. Waage and K.B. Moen, Agent, and
by E. Holmedal, advokat)

Defendant: Commission of the European Communities (repre-
sented by X. Lewis, M. Konstantinidis and H. Støvlbæk, Agents)

Intervener in support of the defendant: United Kingdom of Great
Britain and Northern Ireland (represented by V. Jackson, Agent,
and by J. Maurici, Barrister)

Judgment of the Court (Third Chamber) of 13 March 2008
(reference for a preliminary ruling from the Finanzgericht
Hamburg (Germany)) — Viamex Agrar Handels GmbH v
Hauptzollamt Hamburg-Jonas

(Case C-96/06) (1)

(Regulation (EC) No 615/98 — Directive 91/628/EEC —
Export refunds — Refusal — Non-compliance with Direc-
tive 91/628/EEC — Adverse effect on animal welfare —
Burden of proof — Lack of evidence)

(2008/C 116/05)

Language of the case: German

Re:

Annulment of the Commission Decision of 13 October 2005
amending for the purposes of adapting to the technical progress
the Annex to Directive 2002/95/EC of the European Parliament
and of the Council of 27 January 2003, on the restriction of
the use of certain hazardous substances in electrical and elec-
tronic
number
C(2005) 3754)
(OJ 2005 L 271,
p. 48) — Exemption of decabromodiphenyl ether (‘DecaBDE’)
from the marketing prohibition imposed by Article 4(1) of
Directive 2002/95/EC without respecting the conditions laid
down by Article 5(1) of that directive

(Text with EEA relevance)

equipment

document

(notified

under

Operative part of the judgment

The Court:

1. Annuls Point 2 of

the Annex

to Commission Decision
2005/717/EC of 13 October 2005 amending for the purposes of
adapting to technical progress the Annex to Directive 2002/95/EC
of the European Parliament and of the Council on the restriction of
the use of certain hazardous substances in electrical and electronic
equipment;

2. Declares that the effects of point 2 of

the Annex to Decision

2005/717 are maintained until 30 June 2008 inclusive;

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Viamex Agrar Handels GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg —
Interpretation of Article 5(3) of 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) — Possibility for competent authority to
refuse to grant export refunds where it considers, ‘in the light of
… all other elements at its disposal’, that the provisions of
Council Directive 91/628/EEC of 19 November 1991 on the
protection of animals during transport and amending Direc-
tives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17) have
not been complied with — Burden of proof — Refusal of
refunds because of the use of a ship included in a list of ships
not complying with the requirements of Directive 91/628/EEC
(‘negative list’) in the absence of indications that the wellbeing
of the animals was actually affected

3. Orders the Commission of the European Communities to pay the
costs of the European Parliament and those of the Kingdom of
Denmark in Case C-295/06;

Operative part of the judgment

4. Orders

the Kingdom of Denmark,

the
the Kingdom of
the United Kingdom of Great Britain and Northern

Portuguese Republic,
Sweden,
Ireland and the Kingdom of Norway to bear their own costs.

the Republic of Finland,

in Case C-14/06,

(1) OJ C 86, 8.4.2006.

1. Despite the documents produced by the exporter in accordance with
Article 5(2) of Commission Regulation (EC) No 615/98 of
18 March 1998 laying down specific detailed rules of application
live
for the export refund arrangements as regards the welfare of
bovine animals during transport,
the competent authority may
consider, pursuant to Article 5(3) of that regulation, that 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, has not been complied with. However, the compe-
tent authority can arrive at that conclusion only if it bases itself on
the documents referred to in Article 5 of Regulation No 615/98,

C 116/4

EN

Official Journal of the European Union

9.5.2008

on the reports referred to in Article 4 of that regulation concerning
animal health, or on any other objective element with implications
for the welfare of the animals such as to call
into question the
documents presented by the exporter, it being for the latter to show,
if appropriate,
relied on by the competent
authority in substantiation of its finding of non compliance with
Directive 91/628, as amended by Directive 95/29, are irrelevant.

the elements

that

Directive 89/552/EC of 3 October 1989, declaring compatible
with the common market certain measures taken by the United
Kingdom regarding restrictions on the television broadcasting of
interest —
a series of sports and other events of national
Concept of being directly and individually concerned for the
purposes of Article 230 EC

2. Pursuant to Article 5(3) of Regulation No 615/98, the competent
authority may refuse the export refund for failure to comply with
the provisions of Directive 91/628, as amended by Directive
95/29, concerning animal health, even in the absence of evidence
showing that the welfare of the animals transported was, in fact,
adversely affected.

Operative part of the judgment

The Court:

1. Dismisses the appeal;

(1) OJ C 96, 22.4.2006.

costs.

2. Orders the Commission of the European Communities to pay the

(1) OJ C 108, 6.5.2006.

Judgment of the Court (Fourth Chamber) of 13 March
2008 — Commission of
the European Communities v
Infront WM AG, formerly KirchMedia WM AG, French
Republic, United Kingdom of Great Britain and Northern
the European
Ireland, European Parliament, Council of

Union

(Case C-125/06 P) (1)

(Appeal — Directive 89/552/EEC — Television broadcasting
of
annulment — Fourth
— Action
Article 230 EC — Meaning of decision of ‘direct and indivi-
dual’ concern to a natural or legal person)

paragraph

for

(2008/C 116/06)

Language of the case: English

Judgment of the Court (Third Chamber) of 13 March 2008
— Commission of the European Communities v Kingdom
of Belgium

(Case C-227/06) (1)

(Failure of a Member State to fulfil
its obligations —
Articles 28 EC and 30 EC — Measures having equivalent
effect — Construction products — Directive 89/106/EEC —
Absence of harmonised standards — National marks of
conformity — Presumption of conformity)

(2008/C 116/07)

Language of the case: French

Parties

Parties

Appellant: Commission of the European Communities (repre-
sented by: K. Banks and M. Huttunen, agents)

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and B. Stromsky, acting as Agents)

to the proceedings:

Other parties
formerly
KirchMedia WM AG (represented by M. Garcia, Solicitor), French
Republic, United Kingdom of Great Britain and Northern
Ireland, European Parliament, Council of the European Union

Infront WM AG,

Defendant: Kingdom of Belgium (represented by: M. Wimmer, A.
Hubert, L. Van den Broeck, acting as Agents, and F. de
Montpellier and G. Block, lawyers)

Re:

Re:

(Fourth

the Court of First
Appeal brought against the judgment of
of
Composition)
Extended
Instance
15 December 2005 in Case T-33/01 Infront WM AG v Commis-
sion of the European Communities, in which the Court annulled
the Commission's decision, adopted under Article 3a of Council

Chamber,

Failure of a Member State to fulfil its obligations — Infringe-
ment of Articles 28 EC and 30 EC — National law imposing a
de facto obligation for economic operators wishing to market in
Belgium construction products
lawfully produced and/or
marketed in another Member State to obtain Belgian marks of
conformity in order to market those products in Belgium