«(Appeal – Bananas – Imports from ACP States and third countries – Calculation of annual reference quantity allocated to operators – Imports in accordance with interim measures ordered by a national court in interlocutory proceedings – Action for damages)»

Opinion of Advocate General Léger delivered on 26 November 2002

Judgment of the Court, 6 March 2003

Summary of the Judgment

Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Allocation – Determination of reference quantities on the basis of the actual imports of the various operators – Proof that imports have actually taken place – Proof that customs duties applicable were paid – Lack of probative force of proof of payment of customs duties at a level fixed provisionally by a national court in interlocutory proceedings (Commission Regulation No 2362/98, Arts 4 and 5(3), first subpara. (b))

Customs duties determined provisionally in interlocutory proceedings are not necessarily the customs duties which are applicable on the day on which customs import formalities are completed, proof of payment of which operators must, under Article 5(3), first subparagraph under (b), of Regulation No 2362/98, laying down detailed rules for the implementation of Regulation No 404/93 regarding imports of bananas into the Community, provide in order to demonstrate that the quantities of bananas which they wish to have included in the calculation of the annual reference quantity provided for in Article 4 of that regulation have actually been imported.

6 March 2003 (1)

(Appeal – Bananas – Imports from ACP States and third countries – Calculation of annual reference quantity allocated to operators – Imports in accordance with interim measures ordered by a national court in interlocutory proceedings – Action for damages)

In Case C-213/01 P, T. Port GmbH & Co. KG, established in Hamburg (Germany), represented by G. Meier, Rechtsanwalt,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) in Case T-52/99 T. Port v Commission [2001] ECR II-981, seeking to have that judgment set aside in part,

the other party to the proceedings being:

Commission of the European Communities, represented by K.-D. Borchardt and M. Niejahr, acting as Agents, with an address for service in Luxembourg, defendant at first instance,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet, R. Schintgen (Rapporteur) and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J. N. Cunha Rodrigues and A. Rosas, Judges,

Advocate General: P. Léger, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 26 November 2002,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

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

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

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

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

Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

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

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

a case-by-case examination;

thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

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

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

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

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

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

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

ECLI:EU:C:2025:140

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:

The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

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

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

deliberate destruction or taking of eggs from the wild;

deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

For operators established in Austria, Finland or Sweden, proof of the quantities released into free circulation in those Member States in 1994, and in 1995 up to the third quarter thereof, shall be furnished by presenting copies of the relevant customs documents and import permits issued by the competent authorities and duly used.

Article 6(3) of Regulation No 2362/98 provides: Using the information received under paragraph 2, and in light of the total volume of tariff quotas and traditional ACP bananas as referred to in Article 2, the Commission shall, where appropriate, set a single adjustment coefficient to be applied to each operator's provisional reference quantity.

Facts and procedure before the Court of First Instance

The Court of First Instance set out the facts as follows in the judgment under appeal:

[T. Port] is in the business of importing fruit and vegetables. Until the entry into force of Regulation No 2362/98 it was in Category A, and it is a traditional operator for the purposes of that regulation.

By decision of the competent national authorities of 8 December 1998, the applicant's provisional reference quantity for 1999 was established at 13 709 963 kg and that quantity was reduced by 824 833 kg by application of the adjustment coefficient of 0.939837 set by the Commission under Article 6(3) of Regulation No 2362/98. In addition, the national authorities deducted from the quantities sought by the applicant, first, the quantities which it was alleged to have imported in 1994 into Austria, Finland and Sweden, that is to say, 898 692 kg, and, second, the quantity of third-country bananas, fixed at 9 838 861 kg, which it had been authorised to import by the Finanzgericht (Finance Court), Hamburg.

As regards the last-mentioned quantity (the quantity judicially determined), the documents before the Court show that, by interim orders of 19 May and 8, 21 and 28 June 1995, the Finanzgericht Hamburg (Germany) directed the Hauptzollamt Hamburg-Jonas to authorise T. Port to release a total of 9 860 571 kg of bananas for free circulation, on payment of the customs duties of ECU 75 per tonne applying at the time to imports of third-country bananas under the tariff quota, a total of 9 860 571 kg of bananas, although the company concerned did not have the necessary import licences. In its order of 19 May 1995 the Finanzgericht Hamburg also decided to refer four questions to the Court of Justice for a preliminary ruling. The first three questions concerned the interpretation of Article 234 of the EC Treaty (now, after amendment, Article 307 EC), the validity of Commission Regulation (EC) No 478/95 of 1 March 1995 on additional rules for the application of Council Regulation No 404/93 as regards the tariff quota arrangements for imports of bananas into the Community and amending Regulation (EEC) No 1442/93 (OJ 1995 L 49, p. 13), and the direct effect of Articles I, II, III and XIII of the 1994 General Agreement on Tariffs and Trade (GATT 1994), which appears in Annex I A to the Agreement establishing the World Trade Organisation (the WTO Agreement), approved on behalf of the European Community by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). The fourth question concerned the circumstances in which a national court might order interim measures when it entertained doubts as to the applicability of the secondary Community law on which the legal assessment was based. The reference for a preliminary ruling from the Finanzgericht Hamburg was registered as Case C-182/95; it was initially suspended and then removed from the Court register by order of the President of the Court of Justice of 12 March 2001.

The documents before the Court also show that after the Bundesfinanzhof (Germany) set aside those orders of the Finanzgericht Hamburg by decision of 22 August 1995, the Hauptzollamt Hamburg-Jonas, by decisions of 29 August and 1 September 1995, fixed the customs duty payable by T. Port at ECU 850 per tonne, which was the rate set at that time for imports outside the customs quota. Upon application by T. Port, the Finanzgericht Hamburg, by orders of 22 and 27 September 1995, decided that those decisions of the Hauptzollamt Hamburg-Jonas had to be temporarily suspended and that the suspension was not to be subject to the provision of security. By the same orders it referred three questions to the Court of Justice for a preliminary ruling that were identical in wording to those which it referred in Case C-182/95. That reference for a preliminary ruling gave rise to the judgment in Joined Cases C-364/95 and C-365/95 T. Port [1998] ECR I-1023.

It was in those circumstances that T. Port, by application lodged on 19 February 1999, brought an action for damages under Article 178 in conjunction with the second paragraph of Article 215 of the EC Treaty (now, after amendment, Articles 235 EC and the second paragraph of Article 288 EC) seeking compensation from the Commission for the loss the latter had occasioned to the appellant by causing the national authorities to reduce, first, its reference quantity by applying the adjustment coefficient and, second, the quantities the applicant had applied for by the quantities imported in 1994 into Austria, Finland and Sweden and by the quantity judicially determined.

In support of its action T. Port put forward a number of pleas, alleging that by its conduct the Commission had infringed, in the first place, GATT 1994 and the Agreement on Import Licensing Procedures and the General Agreement on Trade in Services (GATS), contained in Annexes 1A and 1B respectively to the WTO Agreement, secondly, the principle of equal treatment and, thirdly, the principles of protection of property and of legitimate expectations and the principle of proportionality.

[T. Port] explains that the Finanzgericht Hamburg ruled by interim order that importation of the amount judicially determined should be approved without a licence provided the normal import duty was paid. The applicant had paid that duty.

It observes that under Article 5(3) of Regulation No 2362/98 operators who, although they do not hold the import licence for the transaction concerned, furnish proof that they have paid the relevant customs duties are to be deemed to be the importers. The applicant considers it has furnished such proof, although it has no import licences, by means of the interim order of the Finanzgericht Hamburg mentioned above. It argues that, according to the principle of equal treatment, imports on the basis of an interim order of a national court should give rise to the same rights as those under licences.

It is apparent from the judgment under appeal that the Commission challenged T. Port's argument on the following grounds:

[The Commission] explains in this connection that amounts judicially determined may be allocated as reference quantities provided the import duties have actually been paid and the imports have actually taken place during the reference period, namely, in this case, between 1994 and 1996.

The applicant's customs debt in respect of the amount judicially determined was, it is true, established by a decision of the competent national authority, but the Finanzgericht Hamburg ordered the suspension of the payment of that debt without stipulating that any security should be provided. It is not possible therefore to regard the customs debt as having been paid.

Furthermore, the Commission notes that the quantity of bananas at issue was imported by the applicant without a licence and, hence, outside the tariff quota, which means that the full rate under the common customs tariff applies to them. So long as that customs duty remains unpaid it is not possible to take that quantity of bananas into account in calculating the reference quantity.

The judgment under appeal

In the judgment under appeal the Court of First Instance began by rejecting a plea of inadmissibility raised by the Commission and T. Port's plea alleging infringement of GATT 1994 and the other agreements referred to in paragraph 7 of this judgment. As regards the plea alleging infringement of the principle of equal treatment, the Court of First Instance, after rejecting certain arguments, in paragraph 88 of the judgment under appeal rejected the arguments concerning the reduction in the quantities applied for by the quantity judicially determined, as follows: Lastly, with regard to the applicant's contention that it could have a quantity of bananas determined by an interim order of the Finanzgericht Hamburg taken into account, suffice it to say that the Commission is entitled to require all imports which may be taken into account as reference quantities to be genuine imports. The quantity referred to by the applicant was imported outside the tariff quota and was therefore subject to the full rate under the common customs tariff. The payment of the relevant customs duties was then suspended by the interim order of the Finanzgericht Hamburg. In those circumstances, the applicant cannot ask for that quantity to be taken into account in determining its reference quantity. It is for the applicant to establish that the customs duties in question have actually been paid, which it has failed to do. In that connection, it should be added that the Commission stated at the hearing, and was not contradicted on this point, that it informed the competent German authorities that it would be necessary to take that quantity into account if the abovementioned duties are paid.

After also rejecting the plea alleging infringement of the principles of protection of property, of the protection of legitimate expectations and of proportionality, the Court of First Instance found, in paragraph 106 of the judgment under appeal, that T. Port had failed to establish the existence of unlawful conduct for which the Community may incur non-contractual liability and that therefore the application had to be dismissed. Consequently, it ordered T. Port to bear its own costs and pay those of the Commission, as applied for by the latter.

The appeal

The Commission contends that the Court should dismiss the appeal as manifestly unfounded and order T. Port to pay all the costs in both cases.

Arguments of the parties

Secondly, T. Port contends that the quantity judicially determined must be regarded as having been imported under the tariff quota even though, following importation and payment of the customs duties, the ground on which the Finanzgericht Hamburg granted the interim measures sought proved to be unfounded. T. Port maintains in that regard that in its interim orders the Finanzgericht Hamburg complied with the limits which the case-law of the Court of Justice imposes on national courts in the ordering of interim measures and referred relevant questions to the Court for a preliminary ruling concerning Community law. It contends that the interim legal protection that national courts are authorised to grant to individuals would amount to nothing if those individuals could not confidently rely on the fact that the import transactions and the payment of customs duties determined by the customs authority have created a definitive factual framework.

The Commission maintains that a national court must, even in interlocutory proceedings, take into account the incontestable rules of Community law and cannot replace them with particular, provisional rules. In deciding, provisionally, that bananas imported outside the tariff quota were subject only to the quota customs duty, the Finanzgericht Hamburg infringed the unambiguous provisions of Article 5(2) and (3) of Regulation No 2362/98, which require production of the relevant import licences in order for that customs duty to apply.

The Commission contends that T. Port's argument that facts which occurred after the date of import are immaterial as regards determining the rate of the applicable customs duty would, were it valid, mean that any interim order made by a national court, even if it were unlawful, would make it possible to circumvent Community law. T. Port cannot rely in the present case on the case-law of the Court of Justice authorising national courts to order interim measures in case of doubt as to the validity of the Community law on which a national measure is based because the interim orders of the Finanzgericht Hamburg do not meet the prerequisites specified in that case-law.

Findings of the Court

In order to assess the merits of T. Port's arguments, it is sufficient to observe that it is clear from paragraphs 4 and 5 of this judgment that the importation of the quantity judicially determined on payment of customs duties of ECU 75 per tonne applying at the time to imports of third-country bananas under the tariff quota was authorised only as a temporary measure by the interim orders of the Finanzgericht Hamburg, which were based on doubts which that court entertained as to the validity of the relevant Community legislation, in the light in particular of GATT 1994.

In order to assess the merits of T. Port's arguments, it is sufficient to observe that it is clear from paragraphs 4 and 5 of this judgment that the importation of the quantity judicially determined on payment of customs duties of ECU 75 per tonne applying at the time to imports of third-country bananas under the tariff quota was authorised only as a temporary measure by the interim orders of the Finanzgericht Hamburg, which were based on doubts which that court entertained as to the validity of the relevant Community legislation, in the light in particular of GATT 1994.

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15

Interim measures ordered in interlocutory proceedings are granted only pending the final decision in the main proceedings, and without prejudice to that decision. Moreover, interim measures may themselves be challenged, and may be set aside or varied pending that decision, as was, moreover, the case in this instance, since the orders of the Finanzgericht Hamburg authorising the release of the quantity judicially determined for free circulation on payment of customs duties of ECU 75 per tonne were set aside by the Bundesfinanzhof.

It follows that, contrary to what T. Port contends, customs duties determined provisionally in interlocutory proceedings are not necessarily the customs duties which are applicable on the day on which customs import formalities are completed and proof of payment of which operators must, under Article 5(3), first subparagraph under (b), of Regulation No 2362/98, provide in order to demonstrate that the quantities of bananas which they wish to have included in the calculation of the reference quantity provided for in Article 4 of that regulation have actually been imported.

It also follows that the interim legal protection which national courts are authorised to grant to individuals in accordance with the case-law of the Court of Justice must not have the effect of creating a definitive factual framework which cannot be challenged subsequently.

In those circumstances, it must be concluded that T. Port's arguments are unfounded and that its appeal must be dismissed.

Costs

Under Article 69(2) of the Rules of Procedure, applicable to appeals under Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs to be awarded against T. Port and the latter has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

hereby:

1.Dismisses the appeal;

2.Orders T. Port GmbH & Co. KG to pay the costs.

Delivered in open court in Luxembourg on 6 March 2003.

Registrar

President of the Chamber

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Language of the case: French.