(Reference for a preliminary ruling from the Bundesfinanzhof)

(Article 104(3) of the Rules of Procedure – Agriculture – Common organisation of the markets – Export refunds – Inaccurate declaration – Consequences for the validity of the declaration)

Summary of the Order

Agriculture – Common organisation of the markets – Export refunds – Inaccurate declaration concerning part of the product exported – Amendment of the declaration – Retention of the right to a refund – Product declared not corresponding to the product actually exported – Determination of the applicable refund rate – Similarity between the declared product and the exported product – Immaterial

(Council Regulations Nos 2913/92, Art. 78(3), and 3665/87, Arts 3(5)(a) and 11)

For refunds requested before 1 April 1995, Article 78(3) of Regulation No 2913/92 establishing the Community Customs Code and Article 3(5)(a) of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products must be interpreted as meaning that entitlement to an export refund exists at least at the rate applicable to the product actually exported where it is established during a control by the customs authorities that the declared and exported consignment did not consist entirely of the declared product but included another product to which a lower rate of refund applied and the customs authorities adjusted the declaration in accordance with Article 78(3) of the Community Customs Code.

For the purposes of the decision, it is not material whether the goods which were the subject of the incorrect customs declaration are goods similar to those which were in fact declared.

For refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as amended by Regulation No 2945/94, is applicable in such circumstances.

(see para. 37, operative part 1)

ORDER OF THE COURT (Third Chamber) 30 April 2004(1)

(Article 104(3) of the Rules of Procedure – Agriculture – Common organisation of the markets – Export refunds – Inaccurate declaration – Consequences for the validity of the declaration)

In Case C-446/02,

REFERENCE to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between

and

Gouralnik & Partner GmbH,

on the interpretation of the rules applicable to export refunds,

THE COURT (Third Chamber),

composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges,

Advocate General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass,

after informing the national court that the Court proposes to give its ruling in the form of a reasoned order in accordance with Article 104(3) of its Rules of Procedure, after having requested the parties referred to in Article 23 of the Statute of the Court of Justice to lodge any observations which they might wish to make in that regard, after hearing the Advocate General,

makes the following

Judgment

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.

(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

The question is whether there was no entitlement to a refund at all in respect of the proportion of Kasseler meat in the various consignments determined in accordance with the findings of the customs audit report – as the Hauptzollamt considers – or whether such entitlement must at least be assessed in accordance with the rates of refund applicable to Kasseler meat – as the Finanzgericht stated. The decision turns on whether the requirements of Article 4(1) of Regulation No 3665/87 are fulfilled in respect of the Kasseler meat. Since it appears that the consignments at issue were exported in due time for the purposes of Article 4(1) of Regulation No 3665/87, a decision need be taken only as to whether the proportion of Kasseler meat in the various consignments is covered by the export declaration required in Article 4(1) of Regulation No 3665/87. The national court considers that it is.

According to the Bundesfinanzhof, Article 3(5)(a) of Regulation No 3665/87 requires that the export declaration include a description of the products in accordance with the nomenclature used for refunds. This means that the description must be accurate. However, if the description is inaccurate that does not necessarily mean that the declared consignment is not covered by the export declaration. This is in any event the case where the product actually contained in the consignment does not differ completely from the description in the export declaration. That is so in this case, as the Finanzgericht correctly stated, according to the Bundesfinanzhof. Both the declared boiled hams and the Kasseler meat are pork coming under heading 1602 of the Harmonised System (HS); they differ only as regards the subheadings of the HS to which they are assigned. On any view, the fact that a different rate of refund applies in each of those cases does not justify the conclusion that the export declaration did not relate to the Kasseler meat.

Allowance must made for the fact that the Kasseler meat in the consignments exported was declared incorrectly as boiled hams because in this case the declaration must be adjusted, as provided for in Article 78(3) of the Community Customs Code, carried out by the customs authorities of their own motion, and recovery is sought of the wrongly paid proportion of the refund. The Bundesfinanzhof indicates that this adjustment is not ruled out by the fact that under Article 65(2)(c) of the Community Customs Code no rectification can be permitted after the goods have been released by the customs authorities. Under Article 78(3) of the Code revision and adjustment of the export declaration are possible at any time.

The national court is unable completely to rule out any uncertainty as to whether the view set out above is correct in the light of the judgment in Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 75, to which the Hauptzollamt refers. If the rule set out in paragraph 75 of that judgment were applied to this case, Gouralnik would not be entitled to payment of the export refund at the rate of refund applicable to the Kasseler meat if the false declaration is attributable to it.

However, the national court considers that it is evident from the comments in paragraph 75 of the abovementioned judgment that the rule applies only where the declaration has been adjusted neither by the beneficiary nor by the customs authorities. However, since in the main proceedings a revision of the declaration was carried out by the customs authorities, as provided for in Article 78(3) of the Community Customs Code, and the actual composition of the consignments declared for export was established in the course thereof, the national court is uncertain whether, in this case, the complete refusal of export refunds in respect of the Kasseler meat is compatible with Community law. This uncertainty is heightened by the fact that the rule in Article 11 of Regulation No 3665/87 provides for sanctions where the export refund requested by the exporter exceeds that applicable. This rule may also cover cases such as the present, in any event as regards the decision on the refunds of 25 August 1995, without necessarily meaning that the export refund must be refused entirely in respect of the incorrectly declared product.

The Bundesfinanzhof therefore considered it necessary to refer for a preliminary ruling the following questions:

1.Does an entitlement to an export refund exist at least at the rate of refund applicable to the product actually exported where it is established during a control by the customs authorities that the declared and exported consignment did not consist entirely of the declared product but contained a proportion of another product to which a lower rate of refund applied?

2.Does the fact that the product which was incorrectly declared is similar to that actually declared have any bearing on the decision?

3.If Question 2 is answered in the affirmative, in accordance with which criteria must it be determined whether the declaration also covers the incorrectly declared goods?

The questions referred

Observations of the parties

…

The Commission also submits that Article 78 of the Community Customs Code is applicable, that it allows the customs authorities to adjust the declaration in respect of refunds not due, but that, failing any other legal basis, it does not permit them to impose sanctions such as the refusal of all the refund for the products in question.

The Commission also argues that there are considerations of proportionality and maintains that a refusal of the entire refund in a case of an incorrect declaration does not appear to be necessary in order to fulfil the actual intended aim, which is to curb fraud. It considers it preferable to provide for sanctions, as does Regulation No 2945/94, based on the excess received and which increase in proportion to the degree of fault.

That interpretation is in line with the Court’s case-law on the subject of export refunds. …

…

Since it takes the view that the answer to the questions leaves no room for reasonable doubt, the Court, in accordance with Article 104(3) of its Rules of Procedure, informed the national court that it intended to give its decision by reasoned order and invited the persons referred to in Article 23 of the Statute of the Court of Justice to submit any observations which they might wish to make in that regard.

The arguments set out by the national court and repeated in paragraphs 18 to 21 of this order determine the answer which must be given to the questions referred for a preliminary ruling. They are reinforced by the arguments submitted to the Court by the Commission.

Paragraph 75 of the judgment in Case C-54/95 cannot be applied to the facts of the main case here, but must be interpreted in the light of the facts of the case to which it relates. As stated in paragraph 77 of that judgment, the Court held that it would have been possible to take into account refunds disbursed up to the level of the rate for slaughter cattle if the customs declarations relating to the export of pure-bred breeding animals of the bovine species had been rectified post-clearance, on presentation of the documents required by the Community rules for the export of animals for slaughter (veterinary certificates, transport documents and customs documents of the country of import, etc.). It also does not appear that an adjustment of the customs declaration was made in accordance with Article 78 of the Community Customs Code, whereas, according to the national court, the question of such an adjustment arises in the main proceedings in the present case.

The answer to the questions referred for a preliminary ruling must therefore be that:

– for refunds requested before 1 April 1995, Article 78(3) of the Community Customs Code and Article 3(5)(a) of Regulation No 3665/87 must be interpreted as meaning that entitlement to an export refund exists at least at the rate applicable to the product actually exported where it is established during a control by the customs authorities that the declared and exported consignment did not consist entirely of the declared product but included another product to which a lower rate of refund applied and the customs authorities adjusted the declaration in accordance with Article 78(3) of the Community Customs Code;

– for the purposes of the decision, it is not material whether the goods which were the subject of the incorrect customs declaration are goods similar to those which were in fact declared;

– for refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as amended by Regulation No 2945/94, is applicable.

Costs

On those grounds, THE COURT (Third Chamber), in answer to the questions referred to it by the Bundesfinanzhof by order of 29 October 2002, hereby rules:

Luxembourg, 30 April 2004.

Registrar

President of the Third Chamber

1 – Language of the case: German.