Proceedings brought by Herbert Handlbauer GmbH

(Reference for a preliminary ruling from the Berufungssenat I der Region Linz bei der Finanzlandesdirektion für Oberösterreich)

(Agriculture – Common organisation of the markets – Beef and veal – Export refunds – Repayment of amounts wrongly paid – Proceedings relating to irregularities – Article 3 of Regulation (EC, Euratom) No 2988/95 – Direct effect – Limitation period – Interruption of the limitation)

Summary of the Judgment

1. Own resources of the European Communities – Regulation on the protection of the Community’s financial interests – Proceedings relating to irregularities – Limitation period – Direct applicability – Condition

(Council Regulation No 2988/95, Arts 1(2) and 3(1))

(Council Regulation No 2988/95, Art. 3(1), first and third subparas)

1.Article 3(1) of Regulation No 2988/95 on the protection of the European Communities’ financial interests, which fixes a limitation period for proceedings at four years from the time when the irregularity is committed, is directly applicable in the Member States, including in the field of export refunds on agricultural products, in the absence of sectoral Community rules providing for a shorter limitation period which may not be less than three years or of national rules providing for a longer limitation period.

(see paras 32, 35, operative part 1)

2.The third subparagraph of Article 3(1) of Regulation No 2988/95 on the protection of the European Communities’ financial interests must be interpreted as meaning that notification of a customs inspection made to the undertaking involved does not constitute an act relating to investigation or legal proceedings which interrupts the limitation period of four years under the first subparagraph of Article 3(1) of the said regulation, unless the transactions to which the suspicion of the existence of irregularities relates are sufficiently precisely defined by the act.

(see para. 43, operative part 2)

JUDGMENT OF THE COURT (Second Chamber) 24 June 2004(1)

(Agriculture – Common organisation of the markets – Beef and veal – Export refunds – Repayment of amounts wrongly paid – Proceedings relating to irregularities – Article 3 of Regulation (EC, Euratom) No 2988/95 – Direct effect – Limitation period – Interruption of the limitation)

In Case C-278/02

REFERENCE to the Court under Article 234 EC by the Berufungssenat I der Region Linz bei der Finanzlandesdirektion für Oberösterreich (Austria) for a preliminary ruling in the proceedings brought by

Herbert Handlbauer GmbH,

on the interpretation of Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1),

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans, President of the Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen (Rapporteur) and N. Colneric, Judges,

Advocate General: A. Tizzano, Registrar: M. Múgica Arzamendi, Principal Administrator,

after considering the written observations submitted on behalf of:

– Herbert Handlbauer GmbH, by L. Harings, Rechtsanwalt,

– the Austrian Government, by H. Dossi, acting as Agent,

– the Commission of the European Communities, by G. Braun and M. Niejahr, acting as Agents,

after hearing the oral observations of Herbert Handlbauer GmbH, represented by L. Harings, of the Austrian Government, represented by J. Bauer and H. Schauer, acting as Agents, of the United Kingdom Government, represented by K. Manji, acting as Agent, assisted by T. Eicke, barrister, and the Commission, represented by M. Niejahr, at the hearing on 4 November 2003,

after hearing the Opinion of the Advocate General at the sitting on 15 January 2004,

gives the following

1.1 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’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

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

ECLI:EU:C:2025:140

(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 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

Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (‘CCD’) (OJ 1992 L 302, p. 1) provides:

‘As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.’

According to Article 221(3):

‘Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. However, where it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due, such communication may, in so far as the provisions in force so allow, be made after the expiry of such three-year period.’

National law

Paragraph 5 of the Ausfuhrerstattungsgesetz (Law on the implementation of export, BGBl. 1994/660, ‘the AEG’) provides for the repayment of refunds wrongly granted. Although it does not make direct provision for a limitation period for such repayment, Paragraph 1(5) thereof refers in that respect to the provisions applicable to customs matters.

In that connection, Paragraph 74(2) of the Zollrechts-Durchführungsgesetz (Customs Law Implementation Law, BGBl. I 1998/13, ‘the ZollR-DG’), in the version in force at the material time, provides:

‘So far as concerns import duties and export duties, the limitation period shall be of three years from the date on which the customs debt was incurred. So far as concerns import duties and export duties wrongly unpaid, that period shall be of 10 years, on condition, however, that the customs authorities, following a financial crime which may only be pursued before a court or appeal board, cannot or cannot accurately identify the debt within three years from the date on which it was incurred. So far as concerns other benefits in kind, the limitation period shall be fixed in accordance with Community law in the field of duties.’

The main proceedings and the questions referred to the Court

On 3 September 1996, Handlbauer exported to Hungary 958 pieces of frozen beef of a total weight of 19 912.35 kg. For that transaction, Handlbauer was granted on 24 September 1996 an advance towards the export refund of ATS 202 769.00. The security agreed for the advance was released on 12 December 1996.

On 20 December 1999, Handlbauer was notified that the External and Undertakings Inspection/Customs of the Hauptzollamt (Principal Customs Office) Linz (Austria) was to carry out a scrutiny of exports in 1996 in the market organisations for beef and veal and for pigmeat. It is apparent from the order for reference that Handlbauer was included among the undertakings to be scrutinised under Regulation No 4045/89 because several irregularities had already been noted in the exports for 1995.

In the course of the scrutiny carried out in 2000 it was ascertained that, in numerous cases, the Community origin of the meat exported in 1996 could not be proved.

Consequently, by decision of 20 January 2001, the Zollamt, pursuant to Paragraph 5 of the AEG in conjunction with Article 11(3) of Regulation No 3665/87, ordered Handlbauer to repay the advance on the refund and imposed upon it a penalty of ATS 101 384.00 in accordance with Article 11(1)(a) of Regulation No 3665/87.

Following dismissal of its administrative appeal against that decision, Handlbauer brought an appeal before the referring court, claiming that the three-year limitation period, mentioned in both Article 221(3) of the CCC and Article 74(2) of the ZollR-DG, had expired. That situation was not affected by Regulation No 2988/95, which merely constitutes a set of general rules for the Member States which is not such as to produce direct effects to the detriment of operators or to constitute a legal basis for the imposition of penalties.

According to Handlbauer, the limitation period began to run on 24 September 1996, when the export refund was granted, or on 12 December 1996, when the security was released. However, the decisions regarding the claim for repayment of the export refund and the corresponding penalty were taken on 20 January 2001.

In reply, the Zollamt referred to Article 3(1) of Regulation No 2988/95 which it claims is directly applicable and provides for a limitation period of four years which may be interrupted by inspections such as those carried out on Handlbauer’s premises.

It is in those circumstances that the Berufungssenat I der Region Linz bei der Finanzlandesdirektion für Oberösterreich decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘1 Is … Regulation … No 2988/95 … directly applicable in the Member States, in particular in the field of organisations of the market (export refunds) where there are irregularities?

Is Article 3(1) of the said regulation, which lays down a limitation period of four years for proceedings concerning irregularities, directly applicable by the customs authorities of the Member States?

2 Is the notification of a customs inspection made to the relevant responsible persons of an undertaking an act relating to investigation or legal proceedings which interrupts the limitation period of four years under Article 3(1) of the said regulation, if the inspection takes place under Regulation (EEC) No 4045/89 because of the generally known risk or the frequency of acts prejudicial to the financial interests of the Community in implementing the common agricultural policy?’

During the course of the proceedings, the Court was informed that, as a result of the entry into force of the Abgaben-Rechtsmittel-Reformgesetz (Law reforming appeal procedures in fiscal matters, BGBl. 2002/97), the Unabhängiger Finanzsenat, Außenstell Klagenfurt (Austria) now has jurisdiction in the case in the main proceedings.

Question 1

By its first question, set out in two parts which should be taken together, the referring court is asking, in essence, whether Article 3(1) of Regulation No 2988/95 is directly applicable in the Member States, including in the field of export refunds for agricultural products, notwithstanding the existence of national customs measures which provide for a shorter limitation period.

By virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application (Case 93/71 Leonesio [1972] ECR 287, paragraph 5).

Some of their provisions may none the less necessitate, for their implementation, the adoption of measures of application by the Member States (C-403/98 Monte Arcosu [2001] ECR I-103, paragraph 26).

However, that is not the case as regards Article 3(1) of Regulation No 2988/95 which, by fixing the limitation period for proceedings at four years as from the time when the irregularity is committed, leaves the Member States no discretion nor does it require them to adopt implementation measures.

The fact that sectoral rules may make provision for a shorter period which may not be less than three years, in accordance with the first subparagraph of Article 3(1) of Regulation No 2988/95, or that, in accordance with the third subparagraph thereof, Member States may apply a period which is longer, is not such as to call in question the immediate applicability of Article 1(1) of the regulation precisely where such derogatory rules are absent in national or Community sectoral legislation.

However, at the material time, no Community sectoral provision in the field of export refunds for agricultural products provided for a shorter limitation period for the repayment of amounts wrongly paid. By the same token, it is apparent from the case-file that there was no Austrian provision of the time which provided for a limitation period longer than four years.

Handlbauer and the Commission take the view, however, that Article 3(1) of Regulation No 2988/95 does not concern the repayment of financial advantages wrongly received. According to Handlbauer, that provision concerns exclusively the fines to be imposed for irregularities, whereas the Commission is of the view that it covers only measures providing for an administrative fine under Article 5 of Regulation No 2988/95.

In that regard, it should be borne in mind that Article 1(1) of Regulation No 2988/95 introduces ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law’ in order, as is clear from the third recital in the preamble to the regulation, to combat ‘fraud against the Communities’ financial interests … for all areas …’.

Article 3(1) of Regulation No 2988/95 fixes a limitation period for proceedings at four years which runs from the time when the irregularity is committed, such irregularity, according to Article 1(2) thereof, being ‘any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities …’.

As the Austrian and United Kingdom Governments observed, such a definition covers intentional irregularities or irregularities arising out of negligence which, in accordance with Article 5 of Regulation No 2988/95, may result in an administrative fine as well as those irregularities which entail nothing more than the withdrawal of the wrongly obtained advantage in accordance with Article 4 thereof.

It follows that Article 3(1) of Regulation No 2988/95 is applicable both to the irregularities referred to in Article 5 and to those referred to in Article 4 thereof which are detrimental to the Communities’ financial interests.

Accordingly, the answer to the first question should be that Article 3(1) of Regulation No 2988/95 is directly applicable in the Member States, including in the field of export refunds on agricultural products, in the absence of sectoral Community rules providing for a shorter limitation period which may not be less than three years or of national rules providing for a longer limitation period.

Question 2

By its second question, the national court is asking, in essence, whether the third subparagraph of Article 3(1) of Regulation No 2988/95 should be interpreted as meaning that notification of a customs inspection made to the undertaking involved constitutes an act relating to investigation or legal proceedings concerning the irregularity which interrupts the limitation period referred to in the first subparagraph of Article 3(1).

According to Handlbauer, the principles of legal certainty and the protection of legitimate expectations require that only acts relating to investigation or legal proceedings which are based on a clear suspicion that an irregularity has been committed can interrupt the limitation period under the third subparagraph of Article 3(1) of Regulation No 2988/95. By contrast, checks within the meaning of Article 8 of Regulation No 2988/95, which include inspections into undertakings carried out under Regulation No 4045/89, cannot have such an effect. At most, they might result in the execution of acts relating to investigation or legal proceedings interrupting the limitation period.

The Austrian Government takes the view that, in this case, the limitation period was, in any event, interrupted, in accordance with the third subparagraph of Article 3(1) of Regulation No 2988/95, by the inspections carried out at Handlbauer’s premises.

The Commission is of the view that notification of an inspection pursuant to Regulation No 4045/89 intended to detect any specific irregularities already constitutes, of itself, an act which interrupts the limitation period. Indeed, the third subparagraph of Article 3(1) of Regulation No 2988/95 does not require that the act relating to an investigation should relate to a specific irregularity since it cannot be ascertained until the inspection is completed.

In that connection, it must be pointed out that, in general, limitation periods fulfil the function of ensuring legal certainty (Case 41/69 ACF Chemiefarma v Commission

[1970] ECR 661, paragraph 19). Such a function would not be fully fulfilled, as the Advocate General points out in paragraph 82 et seq. of his Opinion, if the limitation period referred to in Article 3(1) of Regulation No 2988/95 could be interrupted by any act relating to a general check by the national authorities which bore no relation to any suspicion concerning the existence of irregularities regarding sufficiently precisely circumscribed transactions.

41In the present case, it is clear from the case-file that the notification served on Handlbauer regarding the decision to carry out an inspection under Regulation No 4045/89 related to all its exports in 1996 without distinction in the context of the common organisations of the markets in beef and veal and for pigmeat. Such notification, which contained no mention of any sufficiently defined suspicions concerning the existence of irregularities, could not, as such, interrupt the limitation period for the repayment of the refund granted on 24 September 1996.

42It is for the national court to ascertain whether the subsequent acts carried out by the national authorities in the context of or at the end of the inspection notified on 20 December 1999 concerned one or several specific irregularities surrounding the exports in respect of which the refund in issue was granted and were, consequently, such as to interrupt the limitation period for the repayment of the abovementioned refund.

43In view of the foregoing considerations, the answer to the second question must be that the third subparagraph of Article 3(1) of Regulation No 2988/95 is to be interpreted as meaning that notification of a customs inspection made to the undertaking involved does not constitute an act relating to investigation or legal proceedings which interrupts the limitation period of four years under the first subparagraph of Article 3(1) of the said regulation unless the transactions to which the suspicion of the existence of irregularities relates are sufficiently precisely defined by the act.

Costs

44The costs incurred by the Austrian and United Kingdom Governments 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 action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Berufungssenat I der Region Linz bei der Finanzlandesdirektion für Oberösterreich by order of 11 July 2002, hereby rules:

Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests is directly applicable in the Member States, including in the field of export refunds on agricultural products, in the absence of sectoral Community rules providing for a shorter limitation period which may not be less than three years or of national rules providing for a longer limitation period.

The third subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that notification of a customs inspection made to the undertaking involved does not constitute an act relating to investigation or legal proceedings which interrupts the limitation period of four years under the first subparagraph of Article 3(1) of the said regulation unless the transactions to which the suspicion of the existence of irregularities relates are sufficiently precisely defined by the act.

Delivered in open court in Luxembourg on 24 June 2004.

Registrar

President of the Second Chamber

Language of the case: German.