Avis juridique important

61997J0041

European Court reports 1998 Page I-03527

Summary

1 Agriculture - Common organisation of the markets - Milk and milk products - Import levies - Specific levies on `Kashkaval' cheese - Definition - Cheese made exclusively from sheep's milk (Commission Regulation No 1767/82)

2 Agriculture - Common organisation of the markets - Milk and milk products - Import levies - Specific levies provided for in Regulation No 1767/82 - Conditions for applying - Production of an IMA 1 certificate - Certificate not in compliance with the instructions set out in the annexes to the regulation - Excluded from the preferential system (Commission Regulation No 1767/82)

Parties

In Case C-41/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Hof van Beroep, Antwerp, Belgium, for a preliminary ruling in the proceedings pending before that court between

Foodic BV (a company in liquidation) and Peter Nyssen, Internationaal Expeditiebedrijf Verhaert NV, and A. Maas & Co. NV and Jozef Picavet,

on the interpretation of Commission Regulation (EEC) No 1767/82 of 1 July 1982 laying down detailed rules for applying specific import levies on certain milk products (OJ 1982 L 196, p. 1),

(Third Chamber),

composed of: C. Gulmann, President of the Chamber, J.C. Moitinho de Almeida (Rapporteur) and J.-P. Puissochet, Judges,

Advocate General: J. Mischo,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Belgian State, by Erik Vervaeke, of the Antwerp Bar,

- A. Maas & Co. NV and Mr Picavet, by Jan Tritsmans and Koen Maenhout, of the Antwerp Bar, and

- the Commission of the European Communities, by Thomas van Rijn, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of A. Maas & Co. NV and Mr Picavet and of the Commission at the hearing on 15 January 1998,

after hearing the Opinion of the Advocate General at the sitting on 19 February 1998,

gives the following

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

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

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

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

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

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

4 Article 2(1) of that directive provides:

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

5 Under Article 3(1) of that directive:

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

…

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

…’

Article 4 of Directive 2011/92 provides:

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

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

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

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

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

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

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

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

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

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

‘1. A description of the project, including in particular:

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

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

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

27That conclusion cannot be affected by the fact, to which Maas and Picavet refer, that Annex I to Regulation No 1767/82 draws no distinction according to whether the Kashkaval is made from cows' milk or sheep's milk. That annex must be read in conjunction with Annex III to the same regulation, which indicates the raw material to be used for most of the cheeses concerned, listed under their description in Annex I.

28Furthermore, the intention of the Community legislature to grant the preferential rate of levy only for Kashkaval made from sheep's milk is also apparent from Regulation (EEC) No 2307/70 of the Council of 10 November 1970 amending, as regards certain cheeses, Regulation (EEC) No 823/68 determining the groups of products and the special provisions for calculating levies on milk and milk products (OJ, English Special Edition 1970 (III), p. 758), which introduces an autonomous preferential rate of levy for Kashkaval cheese. The third recital in the preamble to that regulation specifies `the sheep cheeses known as "Kashkaval"'.

29With regard, finally, to the argument drawn by Maas and Picavet from the amendment to the description of `Kashkaval' made by Regulation No 1225/90 by the addition of the words `cheese of sheep's milk', it need merely be pointed out that such an additional specification, which was introduced following difficulties arising in the description of that cheese when the IMA 1 certificate is drawn up, still does not change the rules applicable to Kashkaval as previously contained in the provisions of Regulation No 1767/82, read in conjunction with Annexes I and III thereto.

30The answer to the first question must therefore be that the Kashkaval cheese referred to in Regulation No 1767/82 is Kashkaval cheese made exclusively from sheep's milk.

The second question

31In its second question, the national court asks, first, whether an IMA 1 certificate completed in a manner contrary to the instructions set out in the annexes to Regulation No 1767/82 satisfies the requirements of that regulation and, second, whether it is impossible for products imported under such a certificate to benefit from the preferential rate provided for in that regulation.

32First of all, it must be pointed out that with regard to the first part of that question the national court refers to Article 2 of Regulation No 1767/82, whereas that article concerns only the material aspects of the IMA 1 certificate. The question raised can thus relate only to the requirements laid down in Article 1 of Regulation No 1767/82.

33Maas and Picavet observe that Article 5 of Regulation No 1767/82 provides that a certificate is to be valid only if duly completed and authenticated by an issuing agency listed in Annex IV, that requirement having been complied with in the present case, since the certificates were authenticated by the competent Hungarian issuing agency.

34As has been pointed out in paragraphs 24 to 26 above, indication on the IMA 1 certificate of the information listed in Annex III - in particular, for Kashkaval cheese, the indication `exclusively home-produced sheep's milk' - is a prerequisite for the validity of that certificate, which, by virtue of Article 5(1) of Regulation No 1767/82, is valid only if it is duly completed.

35With regard to the second part of the question, Maas and Picavet submit that Regulation No 1767/82 does not lay down any express penalty in cases where the IMA 1 certificate has been incorrectly completed by the competent foreign agency, and consider that traders should not suffer the consequences of the fact that a detail on the certificate is not in compliance with the requirements of Annex III to that regulation, a fact which should thus not entail loss of entitlement to pay import levies at the reduced rate.

36In that regard, it must be recalled that Article 1(2) of Regulation No 1767/82 provides that the products listed in Annex I are to qualify for the preferential rate of levy only if the conditions laid down in the regulation are complied with. It is stated, moreover, in the second recital in the preamble that `admission to tariff headings is no longer the sole factor to be considered for the purposes of applying the specific levy'.

37The answer to the second question must therefore be that an IMA 1 certificate completed in a manner contrary to the instructions set out in the annexes to Regulation No 1767/82 does not satisfy the requirements of that regulation, and that products imported under such a certificate may thus not benefit from the preferential rate provided for in that regulation.

Decision on costs

Costs

38The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

(Third Chamber),

in answer to the questions referred to it by the Hof van Beroep, Antwerp, by judgment of 27 January 1997, hereby rules: