Proceedings brought by

(Reference for a preliminary ruling from the Korkein hallinto-oikeus)

(Agriculture – System of export refunds on agricultural products – Regulation (EC) No 800/1999 – Article 5 – Lodging the export declaration – Transmission by fax)

Judgment of the Court (Third Chamber), 18 October 2007

Summary of the Judgment

Agriculture – Common organisation of the markets – Export refunds

(Commission Regulation No 800/1999, Art. 5)

Article 5 of Regulation No 800/1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Regulation No 90/2001, must be interpreted as not precluding the competent customs authorities from accepting an export declaration for agricultural products which was transmitted by fax, where that transmission took place before loading for export transport, where the declaration transmitted contains all the information necessary to enable physical checks to be carried out on the goods exported and the export operation concerned is not vitiated by any fraud or attempted fraud. Such is the case where the goods covered by the export declaration transmitted by fax have arrived in the third country of destination and the original declaration subsequently transmitted is identical to the declaration transmitted by fax. It is for the national court to ascertain whether those conditions are satisfied in the main proceedings.

(see para. 26, operative part)

18 October 2007 (*)

(Agriculture – System of export refunds on agricultural products – Regulation (EC) No 800/1999 – Article 5 – Lodging the export declaration – Transmission by fax)

In Case C‑464/06,

REFERENCE for a preliminary ruling under Article 234 EC, by the Korkein hallinto-oikeus (Finland), made by decision of 16 November 2006, received at the Court on 20 November 2006, in the proceedings

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J. Klučka, A. Ó Caoimh (Rapporteur), P. Lindh and A. Arabadjiev, Judges,

Advocate General: V. Trstenjak,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–Avena Nordic Grain Oy, by K. Viljanen, Director,

–the Finnish Government, by J. Heliskoski, acting as Agent,

–the Commission of the European Communities, by P. Aalto and F. Clotuche-Duvieusart, 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 Article 5 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11), as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001 (OJ 2001 L 14, p. 22) (‘Regulation No 800/1999’).

2The reference was made in the course of proceedings brought by Avena Nordic Grain Oy (‘ANG’) against a decision of the Maa-ja metsätalousministeriö (Ministry of Agriculture and Forestry) (‘the Ministry’), the authority which in Finland manages aid financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), concerning the refusal to pay an export refund.

Legal context

Community legislation

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

In accordance with Paragraph 9 of the Law on electronic communication in the activities of public authorities (Laki sähköisestä asioinnista viranomaistoiminnassa (13/2003)) and Paragraph 18 of the Law on electronic signatures (Laki sähköisistä allekirjoituksista (14/2003)), administrative procedures may be initiated electronically.

However, the Ministry of Agriculture and Forestry Regulation on the implementation of the system of export refunds, of securities, and of import and export licences and advance fixing certificates for agricultural products (maataloustuotteiden vientituki- ja vakuus- sekä tuonti-, vienti- ja ennakkovahvistustodistusjärjestämän täytäntöönpanosta annettu maa- ja metsätalousministeriön asetus (1363/2002)) lays down in Paragraph 4 the requirement to transmit to the competent customs office referred to in Article 5(7), first subparagraph, (a) of Regulation No 800/1999 the original export declaration form.

The dispute in the main proceedings and the question referred for a preliminary ruling

9On 14 June 2003, ANG exported two consignments of oats from Vaasa (Finland) to Canada. It is clear from the order for reference that the export declaration concerning those consignments was sent to the competent customs office before loading solely by fax, and that the original of that declaration was not sent until loading had taken place. According to the order for reference, it is not disputed that the original document is identical to the version sent by fax, that the use of that method of transmission was due to a misunderstanding between ANG’s forwarding agent and the competent customs authorities which arose during a conversation concerning loading, that the customs authorities had every opportunity to undertake the checks required, that the consignments concerned arrived at their port of destination, and that there is no evidence that ANG attempted to abuse the refund procedure or to act fraudulently.

10On being questioned by the Ministry as regards the payment of a refund in such circumstances, the Commission of the European Communities indicated, by letters dated 23 May and 30 July 2004, that, in its opinion, ANG is not entitled to obtain such a refund for the operation at issue in the main proceedings.

11By decision of 2 September 2004, the Ministry therefore refused payment of the refund requested by ANG for those consignments on the ground that the original of the export declaration was not available to the customs authorities prior to the time the check on the cargo was to have taken place.

12ANG brought an action against that decision before the Korkein hallinto‑oikeus (Supreme Administrative Court). According to that court, it is clear from the judgments in Case C-27/94 Netherlands v Commission [1998] ECR I-5581 and Case C-278/98 Netherlands v Commission

[2001] ECR I-1501 that the original of the export declaration must be transmitted in advance, and that a declaration sent by fax cannot, as a general rule, be regarded as satisfactory. If the customs check revealed inaccuracies the operator concerned might make another declaration giving the correct information. However, the Korkein hallinto-oikeus points out that in the main proceedings the export declaration transmitted by fax before loading is identical to the original export declaration transmitted subsequently and that the national authorities have no suspicions regarding the existence of potentially fraudulent conduct since the transmission by fax arose from a misunderstanding concerning advice given by the competent customs authorities. Therefore, if the main proceedings were determined in the light of national law, it is unlikely that ANG would be refused payment of the refund. Furthermore, the principles of proportionality and good administration, which constitute general principles of Community law, may have a bearing on the case in the main proceedings.

13In those circumstances, the Korkein hallinto‑oikeus decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 5 of [Regulation No 800/1999] to be interpreted, in the light of the principles of proportionality and good administration, as meaning that the competent national authority may accept an export declaration lodged by fax prior to loading in circumstances in which the authority has no concerns whatever that any fraudulent practices may have occurred, the defect in lodging the export declaration was the result of an error which arose in connection with the advice given by the authority, and the authority has been able to confirm that the original signed export declaration which was lodged subsequently was identical to the declaration lodged by fax?’

The question referred for a preliminary ruling

14By its question, the national court asks whether Article 5 of Regulation No 800/1999 precludes the competent customs authorities from accepting an export declaration for agricultural products which was transmitted only by fax before those products were loaded, where that conduct did not arise from fraudulent intent, since the transmission of only a fax was the result of an error concerning advice given by the customs authorities, and the original declaration transmitted after loading is identical to the declaration transmitted by fax.

According to Article 5(7), first subparagraph, (a) of Regulation No 800/1999, all exporters of agricultural products are required to lodge an export declaration in respect of the products for which they claim a refund. As is clear from the third and fourth subparagraphs of Article 5(7), where that declaration is accepted, loading operations may be authorised by the competent customs authorities, which must have had the opportunity, as is also apparent from the fourth and sixth recitals in the preamble to Regulation No 800/1999 and from Article 2 of Regulation No 386/90 and Article 5 of Regulation No 2090/2002, to make physical checks of the agricultural products concerned in order to ascertain whether they correspond to the declaration at the time of loading.

According to Article 5(4) of Regulation No 800/1999, the export declaration must include all the relevant information necessary to establish entitlement to the refund and to determine its amount (see, to that effect, Case C-309/04 Fleisch-Winter [2005] ECR I-10349, paragraph 31, and Case C-27/05 Elfering Export [2006] ECR I-3681, paragraph 26).

Furthermore, under Article 5(5) of Regulation No 800/1999, at the time of acceptance of the declaration by the competent customs authorities, the products are to be placed under customs control until they leave the customs territory of the Community.

The overall effect of those provisions, even though they do not specifically state the form in which the export declaration must be lodged, is that, first, the declaration must be made in writing in order, in particular, for it to be possible to check whether the information given by the exporter corresponds to the goods presented for export and, second, it must be submitted before the goods have left the customs territory of the Community (see Case C-54/91 Commission v Germany [1993] ECR I-3399, paragraph 22 and Case C-27/94 Netherlands v Commission, paragraph 25).

Lodging an export declaration, which is capable of forming the legal basis of a refund (Fleisch-Winter, paragraph 41), therefore constitutes an essential formality in the context of the cooperation established in that regard between the exporter and the competent customs authorities, which enables the latter to have available all the information necessary in order to carry out suitable physical checks on the goods concerned before loading, so as to exclude any risk of irregularities and abuse in the field of export refunds, in accordance with the sixty-third recital in the preamble to Regulation No 800/1999 (see, to that effect, Elfering Export, paragraph 31, and, as regards 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), Case C‑385/03 Käserei Champignon Hofmeister [2005] ECR I-2997, paragraphs 27 and 28).

As all the interested parties which have submitted observations to the Court have stated, the fact that a declaration is transmitted by fax involves lodging a written document which, provided that it was transmitted before the goods concerned were loaded and it contains all the information necessary for checking them, in no way prevents those checks from being carried out by the competent customs authorities.

It is true that the exporter should not be able to adapt his request for refund according to the result of any check which might take place (Käserei Champignon Hofmeister, paragraph 28).

Thus, it has already been held that the competent customs authorities cannot accept retrospectively an export declaration submitted after export has taken place for the purpose of obtaining refunds (see, to that effect, Case C-101/99 British Sugar [2002] ECR I-205, paragraphs 68 and 73). Similarly, nor can they carry out checks on the basis of information communicated by fax rather than on the basis of the original of the payment declarations seeking pre-financing of refunds, if this results in a risk of unlawful payment of subsidies in that the trader might, after an inaccuracy had been found during a customs check made on the basis of that fax, lodge another declaration containing the correct information (Case C-278/98 Netherlands v Commission, paragraph 70).

However, such a risk is excluded where the export operation is not vitiated by any fraud or attempted fraud on the part of the exporter, since the goods covered by the export declaration transmitted by fax have arrived in the third country of destination and the original of the declaration which was sent after loading is identical to the declaration transmitted by fax.

In such circumstances, the transmission of an export declaration by fax has no real effect on the correct functioning of the system of refunds.

It is for the national court to ascertain whether the conditions laid down in paragraph 23 of this judgment are satisfied in the main proceedings, in the light of the information in the file before it.

Therefore, the answer to the question referred for a preliminary ruling must be that Article 5 of Regulation No 800/1999 must be interpreted as not precluding the competent customs authorities from accepting an export declaration for agricultural products which was transmitted by fax, where that transmission took place before loading for export transport, where the declaration transmitted contains all the information necessary to enable physical checks to be carried out on the goods exported and the export operation concerned is not vitiated by any fraud or attempted fraud. Such is the case where the goods covered by the export declaration transmitted by fax have arrived in the third country of destination and the original declaration subsequently transmitted is identical to the declaration transmitted by fax. It is for the national court to ascertain whether those conditions are satisfied in the main proceedings.

Costs

27Since 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 (Third Chamber) hereby rules:

Article 5 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001, must be interpreted as not precluding the competent customs authorities from accepting an export declaration for agricultural products which was transmitted by fax, where that transmission took place before loading for export transport, where the declaration transmitted contains all the information necessary to enable physical checks to be carried out on the goods exported and the export operation concerned is not vitiated by any fraud or attempted fraud. Such is the case where the goods covered by the export declaration transmitted by fax have arrived in the third country of destination and the original declaration subsequently transmitted is identical to the declaration transmitted by fax. It is for the national court to ascertain whether those conditions are satisfied in the main proceedings.

[Signatures]

*

Language of the case: Finnish.