Case C-455/06: 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 (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 )
Date: 2008-11-25
Institutions: Court of Justice
Subjects: administrative powers, animal welfare, health certificate, interpretation of the law, live animal, protection of animals, transport of animals, veterinary inspection

C 69/4

EN

Official Journal of the European Union

21.3.2009

2. Article 7(1) of Directive 2003/88 must be

interpreted as
precluding national legislation or practices which provide that the
right to paid annual leave is extinguished at the end of the leave
year and/or of a carry-over period laid down by national law even
where the worker has been on sick leave for the whole or part of
the leave year and where his incapacity to work has persisted until
the end of his employment relationship, which was the reason why
he could not exercise his right to paid annual leave.

Parties to the main proceedings

Applicants: Heemskerk BV, Firma Schaap

Defendant: Productschap Vee en Vlees

3. Article 7(2) of Directive 2003/88 must be

interpreted as
precluding national legislation or practices which provide that, on
termination of the employment relationship, no allowance in lieu of
paid annual leave not taken is to be paid to a worker who has
been on sick leave for the whole or part of the leave year and/or of
a carry-over period, which was the reason why he could not exercise
his right to paid annual leave. For the calculation of the allowance
in lieu, the worker's normal remuneration, which is that which
must be maintained during the rest period corresponding to the
paid annual leave, is also decisive.

(1) OJ C 281, 18.11.2006.
OJ C 56, 10.3.2007.

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

Re:

Reference for a preliminary ruling — College van Beroep voor
het bedrijfsleven — Interpretation of Article 2(2) of Commis-
sion Regulation No 615/98 of 18 March 1998 laying down
the export refund
specific detailed rules of application for
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
the system of export refunds on agricultural
application of
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.

(Case C-455/06) (1)

Operative part of the judgment

(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 administra-
tive 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)

(2009/C 69/05)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

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,
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 Direc-
tive 91/628, as amended by Directive 95/29, are irrelevant.

although,

the vessel, the competent authority of

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
the Member State of
of
export must
for assessing
take that authorisation as a basis
whether Community legislation on the welfare of animals during
transport has been complied with.

21.3.2009

EN

Official Journal of the European Union

C 69/5

legislation concerning animal welfare’

3. The notion of ‘compliance with the provisions established in Com-
munity
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 estab-
lished 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.

(1) OJ C 20, 27.1.2007.

Judgment of the Court (First Chamber) of 22 January 2009
v
— Commission

European Communities

the

of
Portuguese Republic

Operative part of the judgment

The Court:

1. Declares

that, by refusing to pay to the Commission of

the
European Communities the default interest payable on account of
the late payment of own resources under the ATA system, the
Portuguese Republic has failed to fulfil its obligations under Arti-
cles 2, 6(2) and 9 to 11 of Council Regulation (EEC, Euratom)
No 1552/89 of 29 May 1989 implementing Decision
88/376/EEC, Euratom on the system of the Communities' own
resources;

2. Dismisses the remainder of the action;

3. Orders the Portuguese Republic to bear its own costs and to pay
three quarters of the costs of the Commission of the European
Communities;

4. Orders the Commission of the European Communities to bear the

remainder of its own costs.

(1) OJ C 117, 26.5.2007.

(Case C-150/07) (1)

(Failure of a Member State to fulfil its obligations — Late
payment of own resources — Default interest payable —
Accounting rules — ATA system)

Judgment of the Court (Eighth Chamber) of 9 October
the European Communities v
2008 — Commission of

Kingdom of the Netherlands

(2009/C 69/06)

Language of the case: Portuguese

(Case C-230/07) (1)

(Failure of a Member State to fulfil obligations — Directive
2002/22/EC — Electronic
communications — Single
European emergency call number — Caller location — Failure
to transpose within the period prescribed)

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Wilms and M. Afonso, acting as Agents)

(2009/C 69/07)

Language of the case: Dutch

Defendant:
Fernandes, J.A. Anjos and C. Guerra Santos, acting as Agents)

Portuguese Republic

(represented by: L.

Inez

Re:

Failure of a Member State to fulfil its obligations — Infringe-
ment of Articles 2, 6(2), 9, 10 and 11 of Council Regulation
(EEC, Euratom) No 1552/89 of 29 May 1989 implementing
Decision 88/376/EEC, Euratom on the system of the Commu-
nities' own resources (OJ 1989 L 155, p. 1) — Refusal to pay
default interest in the case of late payment of own resources
under the ATA system — Accounting rules

Parties

Applicant: Commission of the European Communities (repre-
sented by: W. Wils and M. Shotter, acting as Agents)

Defendant: Kingdom of the Netherlands (represented by: C.M.
Wissels)

Intervener in support of the defendant: Republic of Lithuania (repre-
sented by: D. Kriaučiūnas, agent)