Schwaninger Martin Viehhandel - Viehexport v Zollamt Salzburg, Erstattungen.
Date: 2008-07-17
20. It should be pointed out, at the outset, that Article 1 of Regulation No 615/98 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, inter alia, to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Directive 91/628 (see Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK  [2008] ECR I‑0000, paragraph 17).
21. As regards the scope of the general reference made by Article 1 of Regulation No 615/98 to Directive 91/628, the Court has held that the purpose of that article is to ensure, for the application 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 (see, to that effect, Viamex Agrar Handel and ZVK , paragraph 19).
23. Although it is true that Article 1 of Regulation No 615/98 makes the payment of export refunds subject to compliance with the requirements of Directive 91/628, in the various stages of the transportation of animals until the first place of their unloading in the third country of final destination, it must be noted that the requirements laid down in point 48(7)(b) of the annex to that directive expressly refers to intra‑Community transport and can thus not be applied to the same type of transport to a third country.
24. Point 48 of the annex to Directive 91/628 must be interpreted as meaning, first, that point 48(7)(b) applies to transport by roll‑on/roll-off ferry on a regular and direct link between two geographical points of the Community which must, by definition, be in a position to comply with the conditions set out in point 48(7)(b) and, second, that, where that latter provision is not applicable, the requirements laid down in point 48(7)(a) must be complied with.
30. It should be pointed out that, in the absence of specific provisions for transport by roll‑on/roll‑off ferry, such as that at issue in the main proceedings, and since point 48(7)(b) of the annex to Directive 91/628 does not apply to that means of transport, only point 48(7)(a), which lays down the general provisions applicable to transport by sea, determines the conditions in which the transportation of animals in such a roll‑on/roll‑off ferry must take place.
39. As regards the consequences which non‑compliance with those formalities could entail, the Court has held that, where the competent authority of a Member State considers that Directive 91/628 has not been complied with but that has not led to the death of the animals, the Community legislature grants a certain amount of discretion to that authority 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. Such discretion is not unlimited, however, since it is circumscribed by Article 5 of Regulation No 615/98 (see Viamex Agrar Handel and ZVK , paragraphs 38 and 39).
40. In addition, the Court has held that 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 (see Viamex Agrar Handel and ZVK , paragraph 44).
42. However, in order to adopt such a decision, the Court has held that the competent authority is 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 that regulation and that directive are not relevant (see Case C-96/06 Viamex Agrar Handel [2008] EC I‑0000, paragraph 41).
43. 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 that directive ( Viamex Agrar Handel , paragraph 42).