(Reference for a preliminary ruling from the Finanzgericht Düsseldorf)

(Agriculture – Additional levy on milk – Article 3(2) of Regulation (EEC) No 536/93 – Annual statement of quantities of milk delivered to the purchaser – Time-limit for notification – Nature of time-limit – Penalties)

Summary of the Judgment

(Commission Regulation No 536/93, Art. 3(2))

(see para. 25)

(see paras 29, 34, operative part)

1 April 2004(1)

In Case C-1/02,

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

and

Hauptzollamt Dortmund,

on the validity of the second subparagraph of Article 3(2) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12), as amended by Commission Regulation (EC) No 1001/98 of 13 May 1998 (OJ 1998 L 142, p. 22),

THE COURT (Sixth Chamber),

composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges,

Advocate General: A. Tizzano,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

– Privat-Molkerei Borgmann GmbH & Co. KG, by S. Büscher, Rechtsanwalt,

– the French Government, by J. Géraud de Bergues and A. Colomb, acting as Agents,

– the Commission of the European Communities, by M. Niejahr, acting as Agent,

after hearing the oral observations of Privat-Molkerei Borgmann GmbH & Co. KG and the Commission, at the hearing on 9 April 2003,

after hearing the Opinion of the Advocate General at the sitting on 3 July 2003,

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

3 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.’

4 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.’

5 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 Borgmann dairy is a privately run dairy. By letter of 10 April 2000, the HZA requested it to send it, by 14 May 2000, by means of the forms enclosed with its letter, the information referred to in the first subparagraph of Article 3(2) of Regulation No 536/93 and in Paragraph 11(3) of the Milchmengen-Garantie-Verordnung (the German regulations on the quantity of milk guaranteed in the milk and milk-product sector, hereinafter ‘the MGV’), in respect of the 12-month period running from 1 April 1999 to 31 March 2000, and drew its attention to the fact that failure to observe the time-limit would result in financial penalties.

11The communication of the Borgmann dairy, dated 11 May 2000 and posted on the same day according to the affidavit sworn by the dairy employees concerned, was, however, not received by the HZA until 16 May 2000.

12In reliance on the second subparagraph of Article 3(2) of Regulation No 536/93, as amended by Regulation No 1001/98, the HZA, by decision of 29 May 2000, imposed on the Borgmann dairy a penalty of DEM 39 311.60 (ECU 20 000) for late submission of the communication.

13It gave as its reasons for the decision that a penalty was to be imposed because of failure to observe the time-limit and that such penalty was to be equal to the amount of the levy due for 0.1% of the quantity actually delivered to the customer/purchaser in the period concerned. Such penalty could not be less than ECU 500 nor greater than ECU 20 000. In view of the information communicated by the Borgmann dairy regarding the quantity of milk delivered, the penalty should have been DEM 55 985.36, reduced to DEM 39 311.60 because of the penalty ceiling of ECU 20 000.

14By decision of 9 July 2001, the HZA rejected the complaint lodged by the Borgmann dairy against the decision of 29 May 2000. On 13 July 2001, the Borgmann dairy brought an action before the Finanzgericht Düsseldorf.

15Placing reliance on the judgment in Molkereigenossenschaft Wiedergeltingen in which the Court held the second subparagraph of Article 3(2) of Regulation No 536/93 to be invalid since it was contrary to the principle of proportionality, the Finanzgericht expresses some doubts as to the lawfulness of the system of penalties provided for by Regulation No 1001/98 which is, in its view, applicable in the main proceedings. The national court also considers it disproportionate. That system is in fact worse for the milk purchaser than the earlier system which was declared invalid by the Court. The Finanzgericht points out that, where a milk purchaser exceeds the time-limit for submitting the communication only slightly, the system nevertheless provides for a penalty of as much as ECU 20 000. For a milk purchaser which does not submit its communication until after 31 May, the penalty is increased considerably compared with the system declared invalid.

16The Finanzgericht takes the view that at least in the case of the Borgmann dairy the period between 15 May and 1 June is too widely drawn. It is disproportionate in that it may entail imposition of the full penalty even where the time-limit is exceeded by a single day, without it being apparent that such delay has had any serious effect on the payment of the levy by the purchaser before 1 September, in accordance with the first subparagraph of Article 3(4) of Regulation No 536/93. Accordingly, the disadvantages for the milk purchaser of the (full) payment of the penalty are clearly disproportionate to the aim pursued by the system.

17The national court submits additional grounds in support of the argument that the system of penalties in question is disproportionate.

18In those circumstances, the Finanzgericht Düsseldorf decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘Does the system of penalties laid down in the second subparagraph of Article 3(2) of Regulation No 536/93, as amended pursuant to Regulation No 1001/98, contravene the principle of proportionality in cases where the time-limit is exceeded only marginally and moreover without fault?’

19With a view to arriving at an interpretation of Community law which will be useful to the national court, it must be stated that the question referred for a preliminary ruling rests on, among others, the premiss that, in the main proceedings, the Borgmann dairy did not observe the time-limit laid down in the first subparagraph of Article 3(2) of Regulation No 536/93.

20That premiss assumes that the time-limit set refers to the date by which the requisite information must be received rather than that by which it must be sent. In the first case, the information must have been received by the competent authority before 15 May. In the second, it must have been sent before that date.

21It is therefore necessary to determine first of all the nature of the time-limit concerned, since the question as to whether there has been any breach of the principle of proportionality where the time-limit has been exceeded slightly does not arise, with regard to the circumstances of the present case, unless the time-limit provided for is the time-limit for receipt.

22The wording of the various language versions of the first subparagraph of Article 3(2) of Regulation No 536/93 does not provide any clear indication in favour of one or other interpretation of the time-limit.

23As the Advocate General stated in point 44 of his Opinion, in the majority of the language versions, the purchaser is to ‘transmit’ or ‘communicate’ to the competent national authority, before 15 May each year, a summary of the statements drawn up for each milk producer. Such wording implies, rather, that the information must be sent before the deadline.

24However, the Greek (‘κοινοποιεί’), Dutch (‘bezorgt’) and Finnish (‘antaa tiedoksi’) versions of the provision in question suggest that rather the information must be received before the deadline.

25Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see Case C-437/97 EKW and Wein & Co [2000] ECR I-1157, paragraph 42).

26In that connection, it follows from the fifth recital in the preamble to Regulation No 536/93 that the regulation aims to lay down strict requirements as regards notification and payment deadlines.

27However, although the 15 May deadline must be observed for the smooth operation of the scheme so as to ensure the punctual payment of the sums owed, it cannot be concluded that observance of that deadline is absolutely indispensable to its smooth operation, since a slight delay would not jeopardise payment of the additional levy on milk before 1 September (see Molkereigenossenschaft Wiedergeltingen, cited above, paragraph 41).

28At the hearing, the Commission stated that it did not object to 15 May being regarded as the date before which the information must be sent. Indeed, it takes the view that the period between 15 May and 1 September is sufficient time in which to avoid insurmountable practical problems.

29Accordingly, neither the general scheme nor the purpose of the legislation at issue precludes the deadline in question from being understood as a deadline for dispatch so that, in some circumstances, the information to be transmitted may not be received by the competent authority of the Member State until several days after 15 May.

30Furthermore, where it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the EC Treaty and the general principles of Community law (Case C-98/91 Herbrink [1994] ECR I-223, paragraph 9) and, more specifically, with the principle of legal certainty.

31That principle requires in particular that rules such as those before the Court, which may lead to the imposition of charges on the economic operators concerned, must be clear and precise, so that they can know unequivocally what their rights and obligations are and take steps accordingly (Case C‑236/02 Slob [2004] ECR I-0000, paragraph 37).

32In a situation such as that obtaining in the main proceedings, where a provision of secondary legislation is open to diverging interpretations and where none of the interpretations under consideration compromises the objectives pursued by that provision, it must be held that the time-limit laid down in the first subparagraph of Article 3(2) of Regulation No 536/93 must be understood as a time-limit for dispatch.

33In those circumstances, since the Borgmann dairy complied with that requirement in the main proceedings, as is clear from the order for reference, there is no need to answer the question referred by the national court in the terms in which it was submitted to the Court.

34The answer to be given to the national court must therefore be that Article 3(2) of Regulation No 536/93, as amended by Regulation No 1001/98, must be interpreted as meaning that milk purchasers comply with the time-limit laid down in that provision where they send the requisite information to the competent authority before 15 May of the relevant year.

Costs

35The costs incurred by the French Government and by the Commission, 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 question referred to it by the Finanzgericht Düsseldorf by order of 19 December 2001, hereby rules:

Article 3(2) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products, as amended by Commission Regulation (EC) No 1001/98 of 13 May 1998, must be interpreted as meaning that milk purchasers comply with the time-limit laid down in that provision where they send the requisite information to the competent authority before 15 May of the relevant year.

ECLI:EU:C:2025:140

15

Registrar

President

—

1Language of the case: German.