Anglo Irish Beef Processors International and Others v Minister for Agriculture, Food and Forestry

(Reference for a preliminary ruling from the High Court of Ireland)

«(Differentiated export refunds – Force majeure – Additional security – Release of security – Resolution of the UN Security Council)»

Opinion of Advocate General La Pergola delivered on 18 January 1996

Judgment of the Court (Sixth Chamber), 28 March 1996

Summary of the Judgment

Agriculture – Common organization of the markets – Export refunds – Differentiated refund – Conditions for granting – Importation of the product into the country of destination – Goods exported, by reason of force majeure, to other countries which qualify for a lower refund or none at all – Partial forfeiture of the security – Breach of the principles of proportionality and protection of legitimate expectations – None (Commission Regulation No 3665/87, Art. 33(5))

Article 33(5) of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation No 354/90, is to be interpreted as meaning that where, owing to force majeure, goods do not reach their intended country of destination but are exported to other non-member countries which qualify for a lower export refund or none at all, the security forfeited is to be equal to the difference between the amount of the refund paid in advance and that of the refund actually due. If the regulation were interpreted as precluding forfeiture of the security in similar circumstances, the exporter would qualify for a refund at a higher rate than that applicable to the countries into which the goods were actually imported, an outcome which clearly runs counter to Article 33(5). Furthermore, by not allowing the security to be released in full in cases of force majeure, the regulation is not in breach of either the principle of proportionality or that of the protection of legitimate expectations. In view of the purpose of the system of differentiated refunds, it is essential that products in respect of which a subsidy is granted in the form of a refund actually reach their destination so that they can be marketed there, and therefore forfeiture of a part of the security equal to the difference between the amount of the refund paid in advance and the amount of the refund actually due, without any penalty being imposed, is commensurate with the objective pursued by the legislature. Moreover, as is clear from the wording of the relevant provisions of Regulation No 3665/87, they cannot give rise to any legitimate expectation other than entitlement to a refund subject to the conditions laid down.

JUDGMENT OF THE COURT (Sixth Chamber) 28 March 1996 (1)

(Differentiated export refunds – Force majeure – Additional security – Release of security – Resolution of the UN Security Council)

In Case C-299/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the High Court of Ireland for a preliminary ruling in the proceedings pending before that court between

Anglo Irish Beef Processors International and Others

Minister for Agriculture, Food and Forestry,

on the interpretation and validity of Council Regulation (EEC) No 2340/90 of 8 August 1990 preventing trade by the Community as regards Iraq and Kuwait (OJ 1990 L 213, p. 1) and 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), as amended by Commission Regulation (EEC) No 354/90 of 9 February 1990 (OJ 1990 L 38, p. 34),

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, G. Hirsch, G.F. Mancini, F.A. Schockweiler and P.J.G. Kapteyn (Rapporteur), Judges,

Advocate General: A. La Pergola, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

─ Anglo Irish Beef Processors International and Others, by Michael M. Collins, SC, instructed by A. & L. Goodbody, Solicitors,

─ Ireland, by Michael A. Buckley, Chief State Solicitor, acting as Agent, and by Aindrias O'Caoimh, SC,

─ the United Kingdom, by Lindsey Nicoll, of the Treasury Solicitor's Department, acting as Agent, and by David Lloyd Jones,

─ the Council of the European Union, by Jorge Monteiro and António Tanca, of its Legal Service, acting as Agents,

─ the Commission of the European Communities, by Peter Oliver and Claudia Schmidt, of its Legal Service, acting as Agents;

having regard to the Report for the Hearing,

after hearing the oral observations of Anglo Irish Beef Processors International and Others, represented by Michael M. Collins, SC, and Peter Shanley, SC, of Ireland, represented by Aindrias O'Caoimh, SC, of the Council of the European Union, represented by António Tanca, and of the Commission, represented by Peter Oliver and Claudia Schmidt, at the hearing on 30 November 1995,

after hearing the Opinion of the Advocate General at the sitting on 18 January 1996,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

a Community exporter applies for an export refund in accordance with Commission Regulation (EEC) No 3665/87;

─an advanced payment is made by a Member State to the exporter who provides security for the amount of the advanced payment together with a further 20% of this amount in accordance with the above Commission regulation;

─the goods which are the subject of the export refund application are in transit to Iraq, the country of destination for the purposes of the export refund application when the EC Council of Ministers adopts Regulation (EEC) No 2340/90 which has the effect of inter alia prohibiting exports by Community nationals to Iraq;

─the exporter is unable to meet an essential condition namely that the goods must be exported to Iraq for the award of the export refund in question as a result of Council Regulation (EEC) No 2340/90;

─reasonable efforts are made to sell the goods in question in countries of similar export refund status to Iraq but these efforts are largely unsuccessful;

Can Commission Regulation (EEC) No 3665/87 be interpreted in such a manner as to prohibit the drawing down on the security provided by the exporter in the above circumstances whether by reason of <i>force majeure</i> or by reason of the disproportionate effect which the drawing down of the security would have in comparison to the circumstances relied upon as justifying such a drawing down or otherwise?

If Commission Regulation (EEC) No 3665/87 cannot be interpreted in the above manner is it void in whole or in part because of this?

Can Council Regulation (EEC) No 2340/90 be interpreted as covering goods in transit to Iraq and if so is it void in whole or in part because of its treatment of goods in transit in the present circumstances?

Question 1

By its first question, the national court essentially asks whether Regulation No 3665/87, cited above, must be interpreted ─ bearing in mind that, owing to <i>force majeure</i>, the goods were exported to a destination other than that originally intended ─ as precluding an intervention agency from withholding such proportion of the security lodged as corresponds to the amount that was not payable to the recipient, on account of the disproportionate effect of forfeiture of the security by comparison with the matters set out in the order for reference by way of justification for such forfeiture, or for any other reason.

It is important at the outset to note the features of the system of advance payment of export refunds which are relevant in the circumstances of this case.

Under Regulation No 565/80, Member States are authorized to pay refunds, in whole or in part, prior to the export of beef, subject to the lodgment of a security guaranteeing reimbursement of the amount paid in the event that the trader proves to have no right to the refund.

Regulation No 3665/87 lays down common detailed rules for the application of the system of export refunds, <i>inter alia</i> in respect of beef. Article 5(1) thereof provides that payment of the differentiated or non-differentiated refund is conditional not only on the product having left the customs territory of the Community but also ─ save where it has perished in transit as a result of <i>force majeure</i> ─ on its having been imported into a non-member country and, where appropriate, into a specific non-member country within 12 months following the date of acceptance of the export declaration.

Under Article 16(1) of Regulation No 3665/87, where the rate of refund varies according to destination, payment of the refund is dependent upon the additional conditions laid down in Articles 17 and 18 of that regulation. Article 17(1) provides that the product must have been imported in an unaltered state into the non-member country or one of the non-member countries for which the refund is prescribed within 12 months following the date of acceptance of the export declaration.

Under Article 33(5) of Regulation No 3665/87, where, as a result of a case of <i>force majeure</i>, the amount of the refund is smaller than the amount paid in advance, the security forfeited is to be equal to the difference between the amount of the refund advanced and the amount of the refund actually due. However, Article 33(3)(d) of that regulation provides that, except in cases of <i>force majeure</i>, where the amount of the refund is smaller than the amount paid in advance, the security forfeited is to be equal to the difference between the amount paid in advance and the amount of the actual refund, such difference being increased by 20%.

Consequently, in a case such as this, in which it is undisputed that the circumstances which prevented the plaintiffs from exporting the beef to Iraq amount to <i>force majeure</i>, the intervention agency may withhold the security, as provided for by Article 33(5) of Regulation No 3665/87.

The national court also asks whether, in the circumstances set out in the order for reference, Regulation No 3665/87 may be interpreted as precluding forfeiture of the guarantee on account of the disproportionate effect for the exporter, or for some other reason.

On that point, it should be noted that, as the Court of Justice emphasized in its judgment in <i>Hauptzollamt Hamburg-Jonas</i> v <i>Dimex</i> (Case 89/83 [1984] ECR 2815, paragraph 8), the system of differentiated export refunds is intended to gain or to maintain access for Community exports to the markets of the non-member countries concerned, the reason for differentiated refunds being the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part.

In paragraph 9 of <i>Dimex</i>, the Court also observed that it would go against the purpose of the system of differentiated refunds, were it sufficient, in order to qualify for payment of the refund at a higher rate, for the goods simply to be unloaded, without reaching the market of the territory of destination.

Since actual access to the market of destination is in principle conditional on the completion of customs formalities for the release of the goods into free circulation in the country of destination, the fact that the consignment did not reach that destination and, owing to <i>force majeure</i>, had to be exported to other countries rules out the possibility of its being regarded, for the purposes of payment of the differentiated refund, as having been imported within the meaning of Article 5(1) of Regulation No 3665/87.

On any other construction of the regulation, the exporter would qualify for a refund at a higher rate than that applicable to the countries into which the goods were actually imported, an outcome which clearly runs counter to Article 33(5) of Regulation No 3665/87.

The answer to the first question must therefore be that Article 33(5) of Regulation No 3665/87 is to be interpreted as meaning that where, owing to <i>force majeure</i>, goods do not reach their intended country of destination but are exported to other non-member countries which qualify for a lower export refund or none at all, the security forfeited is to be equal to the difference between the amount of the refund paid in advance and that of the refund actually due.

Question 2

The second question asks whether Regulation No 3665/87 is invalid in so far as it does not allow the security to be reimbursed in full in cases of <i>force majeure</i> .

On that point, the plaintiffs observe that the prohibition on reimbursement of the security is contrary to the principle of proportionality and frustrates legitimate expectations.

As regards the alleged breach of the principle of proportionality, it should be borne in mind that the purpose of the system of differentiated refunds is to gain or to maintain access for Community exports to the markets of the non-member countries concerned, the reason for differentiated refunds being the desire to take account of the particular characteristics of each import market in which the Community wishes to play a part (see the judgment in <i>Dimex</i>, cited above, paragraph 8). It is essential for that purpose that products in respect of which a subsidy is granted in the form of a refund actually reach their destination so that they can be marketed there.

It follows that forfeiture of a part of the security equal to the difference between the amount of the refund paid in advance and the amount of the refund actually due, without any penalty being imposed, is commensurate with the objective pursued by the legislature.

As regards the alleged breach of the principle of the protection of legitimate expectations, it should first of all be noted that Article 33(5) of Regulation No 3665/87 provides that where, as a result of <i>force majeure</i>, the amount of the refund is smaller than the amount paid in advance, the security forfeited is to be equal to the difference between the amount of the refund advanced and that of the refund actually due.

Furthermore, Article 33(2)(b) of Regulation No 3665/87 provides that release in full of the security is to be subject to the production of proof that the products concerned confer entitlement to a refund equal to or higher than the amount determined in accordance with Article 29(3) of the regulation.

Moreover, as the Advocate General observed in point 7 of his Opinion, the fifth recital in the preamble to Regulation No 565/80 expressly states that a security is to be lodged in order to guarantee the reimbursement of a sum not less than the amount paid where it is subsequently established that there was no right to the export refund or that the products or goods were not actually exported from the Community within the time-limits laid down.

It follows that those provisions cannot give rise to any legitimate expectation other than entitlement to a refund subject to the conditions laid down.

The plaintiffs also argue that the protection of legitimate expectations entails reimbursement of the security in cases such as this where the goods failed to reach their destination specifically as a result of the adoption of a Community measure.

There is no need to consider whether the protection of legitimate expectations has that effect since, according to the order for reference, the Turkish authorities refused to allow the goods to cross their territory because of the trade embargo imposed by the UN; consequently, in the present case, the failure of the goods to reach their destination cannot be attributed to any action on the part of the Community institutions.

The answer to the second question must therefore be that consideration of Regulation No 3665/87 has not disclosed any factor capable of affecting its validity.

Question 3

By its third question the national court asks essentially whether Regulation No 2340/90 may be interpreted as extending to goods already dispatched and in transit to Iraq and, if so, whether it is wholly or partly invalid, having regard to the treatment which it accords to goods in transit in the circumstances set out in the order for reference.

In paragraph 35, the Court observed that if, according to the order for reference, the goods failed to reach their destination, it was because of the measures adopted by the Turkish authorities, who refused to allow transit on account of the trade embargo imposed by the UN.

Accordingly, the question of the validity of Regulation No 2340/90 bears no relation to the actual facts of the case or to the purpose of the action. It is established case-law (see, most recently, Case C-415/93 <i>Union Royale Belge des Sociétés de Football Association and Others</i> v <i>Bosman and Others</i> [1995] ECR I-0000, paragraph 61) that in such cases the Court cannot rule on the question submitted by the national court. Consequently, there is no need to reply to the third question.

Costs

The costs incurred by Ireland, the United Kingdom, the Council of the European Union and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the High Court of Ireland by order of 25 July 1994, hereby rules:

Article 33(5) 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, as amended by Commission Regulation (EEC) No 354/90 of 9 February 1990, is to be interpreted as meaning that where, owing to force majeure, goods do not reach their intended country of destination but are exported to other non-member countries which qualify for a lower export refund or none at all, the security forfeited is to be equal to the difference between the amount of the refund paid in advance and that of the refund actually due.

Consideration of Regulation No 3665/87 has not disclosed any factor capable of affecting its validity.

Delivered in open court in Luxembourg on 28 March 1996.

Kakouris

Hirsch

Mancini

Schockweiler

Kapteyn

Registrar

President of the Sixth Chamber

* Language of the case: English.

ECLI:EU:C:2025:140

Language of the case: English.