Avis juridique important

61989J0338

European Court reports 1991 Page I-02315

Summary

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Agriculture - Common organization of the markets - Export licences which include advance fixing - Exporter unable to fulfil its commitments owing to a strike outside the control of its undertaking but affecting its supplies of raw materials - Application for extension - Difficulty in assessing the risks posed by a strike notice issued prior to the application for the advance fixing - Case of force majeure - Not present

(Commission Regulation No 3183/80, Arts 36 and 37)

Summary

Articles 36 and 37 of Commission Regulation (EEC) No 3183/80 laying down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products must be interpreted as meaning that there is no force majeure where supplies of raw materials to an undertaking which has obtained an advance-fixing certificate are halted owing to a lawful strike in other undertakings if, when the undertaking applied for the certificate, a notice had already been issued that a strike would begin during the period of validity of the certificate, but it was possible that the strike would not take place or would not affect the undertaking in question.

In the particular context of those articles, the concept of force majeure, even though not limited to absolute impossibility, nevertheless implies that the non-performance of the act in question is due to abnormal and unforeseeable circumstances beyond the control of the person invoking force majeure whose consequences could not have been avoided in spite of the exercise of all due care.

Parties

In Case C-338/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the OEstre Landsret for a preliminary ruling in the proceedings pending before that court between

Organisationen Danske Slagterier (Danish Abattoirs' Association), acting as agent for Jaka (Jydske Andelsslagteriers Konservesfabrik AmbA),

Landbrugsministeriet (Ministry of Agriculture),

on the interpretation of Articles 36 and 37 of Commission Regulation (EEC) No 3183/80 of 3 December 1989 laying down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products (Official Journal L 338, p. 1),

THE COURT,

composed of: O. Due, President, G.F. Mancini, T.F. O' Higgins, J.C. Moitinho de Almeida, Presidents of Chambers, C.N. Kakouris, F.A. Schockweiler, F. Grévisse, M. Zuleeg and P.J.G. Kapteyn, Judges,

Advocate General: J. Mischo,

Registrar: V. Di Bucchi, Administrator,

after considering the observations submitted on behalf of

- the Organisationen Danske Slagterier, by Allan Philip, of the Copenhagen Bar,

- the Danish Government, in particular the Landbrugsministeriet, by Joergen Molde, Legal Adviser, acting as Agent, assisted by Ole Fentz, Kammeradvokaten at the Landbrugsministeriet, and by Soeren Skov Knudsen, of the Copenhagen Bar,

- the Commission of the European Communities, by Johannes Foens Buhl, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument from the Organisationen Danske Slagterier, the Danish Government, in particular the Landbrugsministeriet, and the Commission at the hearing on 22 November 1990,

after hearing the Opinion of the Advocate General at the sitting on 22 January 1991,

gives the following

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’).

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:

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. …

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

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:

…

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:

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

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a case-by-case examination;

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:

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

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:

A description of the project, including in particular:

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

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

A description of the aspects of the environment likely to be significantly affected by the project.

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:

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

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

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

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:

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)]

…

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:

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

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

deliberate destruction or taking of eggs from the wild;

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

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

15

Moreover, it is necessary to point out, as the Advocate General has done in paragraphs 23 and 24 of his Opinion, that, in a case such as that before the national court, the trader was in a position to avoid the consequences of the strike by not applying for an export licence including advance fixing of the refund and by obtaining the refunds at the rate in force on the day of exportation.

The argument advanced by the ODS, according to which such a solution would in fact prevent Danish exporters from taking advantage of the possibility of applying for advance fixing of the refunds, has no force. The Court has consistently held (see the judgment in Case 316/86 Hauptzollamt Hamburg-Jonas v Firma P. Kruecken [1988] ECR 2213) that that possibility was introduced to promote legal certainty in transactions which economic operators must be able to carry out on terms known to them and to give the latter a guarantee of equivalence between the world price and the Community price. The purpose of a comprehensive guarantee of that kind is to protect economic operators from unfavourable developments which were unforeseeable at the time the contract was concluded, without, however, allowing them, save in exceptional circumstances, to secure a profit from a favourable trend. Whilst economic operators obtain considerable advantages in that way from the system of advance fixing, it is justified that they should also bear the risks arising from it.

Consequently, a trader who, in view of the particular circumstances of his own undertaking, the market situation or even economic or social events beyond his control, is not in a position to undertake to carry out the planned exportation can be expected to refrain from requesting the advance fixing of the refund. If, on the other hand, he decides to apply for that advantage, he lays himself open, should it not be possible to carry out the exportation, to the consequences laid down in the Community rules and in particular to the loss of the security. The entire scheme of export licences for agricultural products is accordingly based on the assumption that in certain cases producers and traders may be prevented from applying for advance fixing owing to circumstances beyond their control, provided that they are not unusual and unforeseeable.

The answer to the first question submitted by the OEstre Landsret must therefore be that Articles 36 and 37 of Commission Regulation (EEC) No 3183/80 must be interpreted as meaning that there is no force majeure where supplies of raw materials to an undertaking which has obtained an advance-fixing certificate are halted owing to a lawful strike in other undertakings if, when the undertaking applied for the certificate, a notice had already been issued that a strike would begin during the period of validity of the certificate but it was possible that the strike would not take place or would not affect the undertaking in question.

In view of the answer given to the first question, the other questions submitted by the national court are nugatory.

Decision on costs

Costs

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT,

in answer to the question submitted to it by the OEstre Landsret, by order of 8 September 1989, hereby rules:

Articles 36 and 37 of Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance-fixing certificates for agricultural products must be interpreted as meaning that there is no force majeure where supplies of raw materials to an undertaking which has obtained an advance-fixing certificate are halted owing to a lawful strike in other undertakings if, when the undertaking applied for the certificate, a notice had already been issued that a strike would begin during the period of validity of the certificate but it was possible that the strike would not take place or would not affect the undertaking in question.