Viamex Agrar Handels GmbH (C-37/06) and Zuchtvieh-Kontor GmbH (ZVK) (C-58/06) v Hauptzollamt Hamburg-Jonas.
Date: 2008-01-17
17. Article 1 of Regulation No 615/98 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport provides that, for the application of the second subparagraph of Article 13(9) of Regulation No 805/68, the payment of export refunds for live bovine animals falling within heading 0102 of the Combined Nomenclature is to be subject to compliance with, inter alia, Directive 91/628.
19. The purpose of Article 1 of Regulation No 615/98 is to implement Article 13(9) of Regulation No 805/68, according to which the payment of export refunds for live animals is subject to compliance with provisions laid down in Community legislation concerning animal welfare and, in particular, the protection of animals during transport. Article 13(9) was introduced in order to provide a remedy for practice in which account was not always taken of animal welfare during transport.
22. It should be noted, secondly, that the protection of animal welfare is a legitimate objective in the public interest, the importance of which was reflected, in particular, in the adoption by the Member States of the Protocol on protection and welfare of animals annexed to the Treaty establishing the European Community (OJ 1997 C 340, p. 110) and the signing by the Community of the European Convention for the protection of animals during international transport (revised) (Council Decision 2004/544/EC of 21 June 2004 on the signing of the European Convention for the protection of animals during international transport (revised), OJ 2004 L 241, p. 21). The importance of that objective is also reflected in Declaration No 24 on the protection of animals annexed to the Final Act of the Treaty on European Union.
23. Moreover, the Court has held on a number of occasions that the interests of the Community include the health and protection of animals (Joined Cases 141/81 to 143/81 Holdijk and Others  [1982] ECR 1299, paragraph 13, and Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 17). In particular, it held that efforts to achieve objectives of the common agricultural policy cannot disregard requirements relating to the public interest such as the protection of the health and life of animals, requirements which the Community institutions must take into account in exercising their powers, in particular in relation to common organisations of the markets.
27. It is true that, according to settled case-law, a directive cannot of itself impose obligations on an individual (see, inter alia, Case 152/84 Marshall  [1986] ECR 723, paragraph 48; Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 108; Joined Case C‑387/02, C‑391/02 and C‑403/02 Berlucsoni and Others  [2005] ECR I‑3565, paragraph 73; and Case C‑80/06 Carp  [2007] ECR I‑0000, paragraph 20).
29. Moreover, the purpose of the general reference made by Regulation No 615/98 to Directive 91/628 is to ensure, for the purposes of the implementation of Article 13(9) of Regulation No 805/68, compliance with the relevant provisions of that directive on the welfare of live animals and, in particular, the protection of animals during transport. That reference, which lays down the conditions for the grant of refunds, cannot therefore be interpreted as covering all the provisions in Directive 91/628 and, in particular, those provisions which have no connection with the principle objective pursued by that directive.
33. First of all, the principle of proportionality, which is a general principle of Community law and has been affirmed on numerous occasions in the case-law of the Court of Justice, in particular with regard to common agricultural policy (see, inter alia, Case C‑189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 81, and Case C‑310/04 Spain v Council  [2006] ECR I‑7285, paragraph 97), must be observed as such both by the Community legislature and by the national legislatures and courts which apply Community law. That principle must also be observed by the competent national authorities in the application of Regulation No 615/98.
34. Next, it should be borne in mind that, while being bound by the principle of proportionality, the Community legislature enjoys a wide discretionary power in matters concerning the common agricultural policy, corresponding to the political responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretionary power (see, to that effect, Jippes and Others , paragraph 80).
35. The principle of proportionality requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, Case C‑331/88 Fedesa and Others  [1990] ECR I‑4023, paragraph 13, and Jippes and Others , paragraph 81).
36. Finally, as regards judicial review of compliance with that principle, bearing in mind the wide discretionary power enjoyed by the Community legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (see Fedesa and Others , paragraph 14, and Jippes and Others , paragraph 82). Thus, the criterion to be applied is not whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate ( Jippes and Others , paragraph 83).
37. In the present case, bearing in mind the wording of Articles 1 and 5(3) of Regulation No 615/98 and the purpose of that regulation, compliance with Directive 91/628 constitutes a prerequisite for payment of export refunds. Article 5(3) of Regulation No 615/98 establishes that the consequence of failing to comply with the provisions of that directive is forfeiture of the right to the refund, leading to non-payment. It is therefore necessary to determine whether the conditions for granting export refunds laid down in Article 5(3) of Regulation No 615/98 are in conformity with the principle of proportionality.
38. It should be noted in that regard that the competent authorities of the Member States can determine the amount of export refunds only in the two clearly distinct situations set out in Article 5(3) of Regulation No 615/98. In the first situation, where the death of animals is attributable to failure to comply with Directive 91/628, the Community legislature does not confer any discretion upon the competent authorities, since it expressly provides that the refund is not to be paid. On the other hand, in the second situation, where those authorities consider that Directive 91/628 has not been complied with, but that failure has not resulted in the death of animals, the Community legislature confers a certain degree of discretion upon the competent authorities to determine whether it is appropriate, as a result of non-compliance with a provision of that directive, for the export refund to be forfeited, reduced or retained.
39. However, such discretion is not unlimited, since it is circumscribed by Article 5 of Regulation No 615/98. It is only in the light of the documents referred to in Article 5(2), the reports on the checks referred to in Article 4 of that regulation and/or all other elements at its disposal concerning compliance with Article 1 of the regulation that the competent authority may conclude that Directive 91/628 has not been complied with.
40. The documents referred to in Article 5 of Regulation No 615/98 and the reports referred to in Article 4 of that regulation all relate to the physical condition and/or the health of animals during transport. The competent authority can therefore conclude that Directive 91/628 has not been complied with only on the basis of documents relating to the health of the animals which must be provided by the exporter, such as the control copy T 5, which makes it possible to verify, inter alia, whether the animals were fit to travel and whether the means of transport complied with the provisions of that directive.
41. That interpretation cannot be affected by the wording of Article 5(3) of Regulation No 615/98, according to which the competent authority may also conclude that Directive 91/628 has not been complied with in the light of all other elements at its disposal. In fact, that wording must also be interpreted as referring to elements which have some bearing on the welfare of the animals.
42. In those circumstances, Article 5(3) of Regulation No 615/98 must be interpreted as meaning that non-compliance with Directive 91/628 which may result in a reduction in or forfeiture of export refunds relates to the provisions of that directive which have an impact on the welfare of animals, that is to say, their physical condition and/or their health, and does not relate the provisions of that directive which, in principle, have no such impact.
44. It is for the competent authority to assess whether a failure to comply with a provision of Directive 91/628 has had an impact on animal welfare, whether such a failure can, where appropriate, be remedied and whether it must result in the export refund being forfeited, reduced or retained. It is also for that authority to decide whether the export refund must be reduced on a pro rata basis according to the number of animals which may, in its view, have suffered as a result of non-compliance with Directive 91/628 or whether that refund should not be paid since the failure to comply with a provision of that directive has had an impact on the welfare of all the animals.