Viamex Agrar Handels GmbH v Hauptzollamt Hamburg-Jonas.
Date: 2008-03-13
30. In that regard, according to settled case‑law, since the system of export refunds is based on voluntary declarations, where the exporter decides on its own initiative to seek a refund, it must provide the relevant information necessary to establish its entitlement to the refund and to determine its amount. In the context of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) and the system of penalties introduced by that regulation, the Court has already held that, since the context is that of a Community aid scheme, the grant of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness (see, to that effect, Case C‑210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 41, and Case C‑309/04 Fleisch‑Winter  [2005] ECR I‑10349, paragraph 31).
31. The Court has also held that, 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 (see, to that effect, Fleisch‑Winter , paragraphs 32 and 35).
34. However, as is clear from the aim of Articles 3 and 5 of Regulation No 615/98, presentation by the exporter of those documents does not constitute irrefutable proof of compliance with Article 1 of that regulation, or of compliance with Directive 91/628. That evidence is sufficient only in so far as the competent authority does not have at its disposal elements in the light of which it may find that the directive has not been complied with.
35. That interpretation is confirmed by the wording of Article 5(3) of Regulation No 615/98, under which the competent authority is entitled not to pay the export refund for animals in respect of which it considers – 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 any other element at its disposal concerning compliance with Article 1 of the regulation – that Directive 91/628 has not been complied with.
36. It is clear that, despite the documents produced by the exporter in accordance with Article 5(2) of Regulation No 615/98, the competent authority may consider that the exporter has complied neither with Article 1 of that regulation nor with Directive 91/628, provided, inter alia, that the conditions laid down in Article 5(3) of that regulation are met.
37. Given that it is for the exporter, pursuant to Article 5(2) of Regulation No 615/98, to furnish proof of compliance with Article 1 of that regulation, the obligation incumbent upon the competent authority is to analyse that evidence, together with any other element available to it, in order to reach a finding as to whether or not Directive 91/628 has been complied with and decide whether or not to grant the export refund.
38. However, Article 5(3) of Regulation No 615/98 cannot be interpreted as entitling the competent authority arbitrarily to call into question the evidence attached by the exporter to its export refund application. The Court has held, in that regard, that the discretion which the competent authority enjoys is not unlimited, since it is circumscribed by Article 5 of Regulation No 615/98 (see, to that effect, Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK  [2008] ECR I‑0000, paragraph 39). That discretion appears, in particular, limited as to the nature and the evidentiary value of the elements on which the competent authority relies.
39. First, regarding the nature of those elements, the Court has held inter alia that it is only in the light of the documents relating to animal health referred to in Article 5(2) of Regulation No 615/98, the reports on the checks referred to in Article 4 of that regulation and/or other elements at its disposal concerning compliance with Article 1 of the regulation and having a bearing on animal welfare that the competent authority may conclude that Directive 91/628 has not been complied with (see Viamex Agrar Handel and ZVK , paragraphs 39 to 41).
41. The competent authority is thus required, pursuant to Article 5(3) of Regulation No 615/98, to base itself on objective and specific elements relating to the welfare of the animals which are capable of establishing that the documents attached by the exporter to its export refund application do not prove compliance with the provisions of Directive 91/628 during transportation, and it is for the exporter to show, where appropriate, that the elements relied on by the competent authority to substantiate its finding of non‑compliance with Regulation No 615/98 and Directive 91/628 are not relevant (see, by analogy, Fleisch‑Winter , paragraph 35).
42. In any event, the competent authority is required to justify its decision by stating the reasons why it considers the evidence presented by the exporter does not enable it to be concluded that Directive 91/628 was complied with. For that purpose, the authority is required, in particular, to make an objective assessment of the documents presented to it and to show the pertinence of the elements it has relied on in order to establish that the documentation attached to the export refund application was not sufficient to show compliance with the relevant provisions of Directive 91/628. Such a reasoned decision is particularly indispensable to the exporter as it may wish to bring an action against a decision rejecting totally or in part its export refund application.
46. In that regard, it should be borne in mind that, in the light of the wording of Articles 1 and 5(3) of Regulation No 615/98 and the purpose of that regulation, compliance with the provisions of Directive 91/628 relating to animal health constitutes a prerequisite for payment of export refunds (see Viamex Agrar Handel and ZVK , paragraph 37).
47. Moreover, as the Advocate General pointed out at point 44 of his Opinion, the wording of Article 5(3) of Regulation No 615/98 clearly shows that the Community legislature made the payment of export refunds conditional upon compliance with Directive 91/628, regardless of any proof of actual and specific injury suffered by the animals during their transportation.
48. It appears that the Community legislature considered, on the basis of scientific and veterinary studies as well as assessments of the application of Community legislation carried out in the animal protection field, that once the provisions of Directive 91/628 concerning the health of those animals are no longer complied with, the welfare of the animals is liable to be endangered and can no longer be guaranteed.
49. Such an approach appears moreover to be fully justified by the circumstance that, in practice, it is not always possible for the competent authority to ascertain that the animals have actually suffered, or been injured, as a result of non‑compliance with those provisions.
51. It is for the competent authority to assess whether failure to comply with a provision of Directive 91/628 has had an impact on the welfare of the animals, whether such a failure can, if 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 inevitably had an impact on the welfare of all the animals (see Viamex Agrar Handel and ZVK , paragraph 44).