30 June 2011 (*1)

(Directive 91/628/EEC – Point 48(5) of Chapter VII of the Annex – Regulation (EC) No 615/98 – Article 5(3) – Export refunds – Protection of bovine animals during rail transport – Conditions for payment of export refunds for bovine animals – Compliance with Directive 91/628/EEC – Principle of proportionality)

In Case C‑485/09,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Finanzgericht Hamburg (Germany), made by decision of 27 October 2009, received at the Court on 1 December 2009, in the proceedings

Hauptzollamt Hamburg-Jonas,

THE COURT (Sixth Chamber),

composed of A. Rosas, acting as President of the Sixth Chamber, U. Lõhmus (Rapporteur) and P. Lindh, Judges,

Advocate General: P. Mengozzi,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 30 November 2010,

after considering the observations submitted on behalf of:

–Viamex Agrar Handels GmbH, by K. Landry, Rechtsanwalt,

–the European Commission, by F. Wilman and B. Schima, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This reference for a preliminary ruling concerns the interpretation of point 48(5) of Chapter VII of the Annex to Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17), as amended by Council Directive 95/29/EC of 29 June 1995 (OJ 1995 L 148, p. 52; ‘Directive 91/628’), and Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport (OJ 1998 L 82, p. 19).

2The reference has been made in proceedings between Viamex Agrar Handels GmbH (‘Viamex’) and the Hauptzollamt Hamburg-Jonas (Principal Customs Office, Hamburg‑Jonas) concerning refunds in respect of the export of live bovine animals to Egypt.

Legal context

European Union law

Recitals 7 to 9 of Directive 91/628 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.

ECLI:EU:C:2011:140

(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 91/628 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) 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:

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 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:

(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.

ECLI:EU:C:2011:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

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:

‘(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)]

…

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

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

Moreover, the national court seeks to ascertain whether, in situations such as that in the main proceedings, it is under an obligation to examine whether the competent national authority has applied Article 5(3) of Regulation No 615/98 in a manner consistent with the principle of proportionality. In that regard, it considers that it is apparent from the case-law of the Court that certain breaches, in particular those which have not resulted in the death of animals, do not automatically lead to loss of entitlement to an export refund, so the competent authority must decide whether the refund should be retained, reduced or forfeited in order to comply with that principle.

19It was in those circumstances that the Finanzgericht Hamburg decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

(1) Does point 48(5) of Chapter VII of the Annex to Directive 91/628 … apply to rail transport?

(2) In situations in which the breach of Directive 91/628 has not resulted in the death of the animals, are courts generally under an obligation to examine whether the competent authority of the Member State applied Article 5(3) of [Regulation No 615/98] in a manner consistent with the principle of proportionality?

Consideration of the questions referred

The first question

20By its first question the national court asks the Court, in essence, whether point 48(5) of Chapter VII of the Annex to Directive 91/628 applies to rail transport.

21Viamex adopts a systematic interpretation of that chapter and claims that point 48(5) thereof does not apply to rail transport. In its view, according to that way of interpreting the chapter, paragraphs 2 to 5 of point 48 refer to transport by road, paragraphs 6 and 7 to transport by rail and sea, respectively, and paragraphs 8 and 9 to any means of transport.

22It should be stated in that regard that point 48(5) of Chapter VII of the Annex to Directive 91/628 provides in general terms that, after the journey time laid down, animals must be unloaded, fed and watered and be rested for at least 24 hours.

23There is nothing in that paragraph 5 or in any other provision of Directive 91/628 to imply that the European Union legislature sought to restrict the scope of that paragraph solely to road transport.

24It is apparent from the wording of the various paragraphs of point 48 of Chapter VII of the Annex to Directive 91/628 that those paragraphs where the scope is limited to one particular means of transport contain an express reference to that effect. Thus, it is clear from the wording of paragraphs 4, 6 and 7 of point 48 that they apply to road, rail and sea transport, respectively. Since point 48(5) contains no such express reference it must be considered to apply to all means of transport.

25In those circumstances, it must be held that point 48(5) of Chapter VII of the Annex to the directive applies also to rail transport.

26First, that interpretation is confirmed by the scheme of the provisions of Directive 91/628. It follows from the definitions of the terms ‘transport’ and ‘rest period’ given in Article 2(2) of that directive that periods between the time when animals are loaded on to and unloaded from a means of transport are all necessarily periods of either ‘transport’ or ‘rest’. However, since it is not disputed that the rules on maximum journey time, laid down in paragraphs 2 and 3 of point 48 of Chapter VII of the Annex to Directive 91/628, apply inter alia to rail transport, it must be held that the rules relating to the rest period after a period of transport also apply to that means of transport.

27Secondly, that interpretation is supported by the objective of Directive 91/628, which, according to the ninth recital in the preamble, is to ensure more effective protection of animals during transport.

28In the light of the above considerations, the answer to the first question must be that point 48(5) of Chapter VII of the Annex to Directive 91/628 applies inter alia to rail transport.

The second question

29By its second question the national court asks in essence whether, in situations in which the breach of Directive 91/628 has not resulted in the death of the animals being transported, the competent authorities and courts of the Member States, when carrying out their checks or review, are required to apply Article 5(3) of Regulation No 615/98 in a manner consistent with the principle of proportionality.

30As a preliminary point, it should be noted that the Court held in paragraph 38 of Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handels and ZVK [2008] ECR I‑69, in proceedings between the same parties, that the competent authorities of the Member States can determine the amount of export refunds only in the two clearly distinct situations set out in Article 5(3) of Regulation No 615/98. In the first situation, where the death of animals is attributable to failure to comply with Directive 91/628, the European Union legislature does not confer any discretion upon the competent authority, since it expressly provides that the refund is not to be paid. On the other hand, in the second situation, where that authority considers that that directive has not been complied with, but that failure has not resulted in the death of animals, the European Union legislature confers a certain degree of discretion upon the competent 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.

31With regard to that second situation, 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 (see, to that effect, Viamex Agrar Handels and ZVK, paragraph 44, and Case C‑96/06 Viamex Agrar Handels [2008] ECR I‑1413, paragraph 51).

32In that regard, the Court has held that non-compliance with Directive 91/628 which may result in a reduction in or forfeiture of export refunds relates only to the provisions of that directive which have an impact on the welfare of animals, that is to say, their physical condition and/or their health, and does not relate to the provisions of that directive which, in principle, have no such impact (Viamex Agrar Handels and ZVK, paragraph 42).

33The Court has also held that it is for the competent authority to assess whether a failure to comply with a provision of Directive 91/628 can be remedied and whether such failure must result in the export refund being forfeited, reduced or retained. It is also for that authority to decide whether the export refund must be reduced on a pro rata basis according to the number of animals which may, in its view, have suffered as a result of non-compliance with Directive 91/628 or whether that refund should not be paid since the failure to comply with a provision of that directive has inevitably had an impact on the welfare of all the animals (see, to that effect, Viamex Agrar Handels and ZVK, paragraph 44, and Viamex Agrar Handels, paragraph 51).

34Viamex considers that it is clear from the case-law cited above that the effect of the application of the principle of proportionality is that the competent authorities and courts of the Member States must introduce a system of graded penalties making the grant of export refunds conditional upon no actual harm being done to the welfare of the animals during transport.

35That line of argument cannot be accepted.

36The Court held in paragraph 47 of Viamex Agrar Handels that the wording of Article 5(3) of Regulation No 615/98 clearly shows that the European Union legislature made the payment of export refunds conditional upon compliance with Directive 91/628, regardless of any proof of actual and specific injury suffered by the animals during their transportation.

37In this respect, the welfare of the animals is liable to be endangered and can no longer be guaranteed once the provisions of Directive 91/628 concerning their health are no longer complied with. Also, in practice, it is not always possible for the competent authority to ascertain that the animals have actually suffered, or been injured, as a result of non‑compliance with those provisions (see, to that effect, Viamex Agrar Handels, paragraphs 48 and 49).

38It follows from the case-law cited in paragraphs 32 and 33 and in paragraphs 36 and 37 above that examination by the competent authority should, in the first place, ascertain whether the provision of Directive 91/628 which has not been complied with concerns the welfare of the animals. If that is the case, it is necessary, in the second place, to determine whether such non-compliance concerned the welfare of all the animals being transported or only a limited number of those for which an export refund has been applied for. In the third place, the competent authority should check whether the non-compliance established can be remedied. It is on the basis of that evidence that that authority will decide whether non-compliance with a provision of Directive 91/628 must result in the export refund being forfeited, reduced or retained.

39In the event that that authority reaches the conclusion that the breach of the provisions of Directive 91/628 does concern the welfare of all the animals being transported, it is required to refuse the export refund without the need for evidence that the animals suffered actual and specific injury whilst being transported.

40However, if the breach of the provisions of Directive 91/628 has had an impact on only some of the animals, the competent authority must decide whether the export refund must be reduced on a pro rata basis according to the number of animals which may have been affected by that breach. In any event, the refund is not granted for animals in respect of which the provisions of Directive 91/628 have not been complied with.

41The answer to the second question must therefore be that, in situations in which the breach of Directive 91/628 has not resulted in the death of the animals being transported, the competent authorities and courts of the Member States, when carrying out their checks or review, are required to apply Article 5(3) of Regulation No 615/98 in a manner consistent with the principle of proportionality, by refusing to pay the export refund for animals in respect of which the provisions of that directive concerning their welfare have not been complied with.

Costs

42Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

Point 48(5) of Chapter VII of the Annex to Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, applies inter alia to rail transport.

In situations in which the breach of Directive 91/628, as amended by Directive 95/29, has not resulted in the death of the animals being transported, the competent authorities and courts of the Member States, when carrying out their checks or review, are required to apply Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport in a manner consistent with the principle of proportionality, by refusing to pay the export refund for animals in respect of which the provisions of that directive concerning their welfare have not been complied with.

[Signatures]

*

Language of the case: German.