Official Journal of the European Union

C 116/3

(Case C-96/06)

(Regulation (EC) No 615/98 - Directive 91/628/EEC - Export refunds - Refusal - Non-compliance with Directive 91/628/EEC - Adverse effect on animal welfare - Burden of proof - Lack of evidence)

(2008/C 116/05)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Viamex Agrar Handels GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 5(3) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport (OJ 1998 L 82, p. 19) — Possibility for competent authority to refuse to grant export refunds where it considers, ‘in the light of … all other elements at its disposal’, that the provisions of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17) have not been complied with — Burden of proof — Refusal of refunds because of the use of a ship included in a list of ships not complying with the requirements of Directive 91/628/EEC (‘negative list’) in the absence of indications that the wellbeing of the animals was actually affected

Operative part of the judgment

1.Despite the documents produced by the exporter in accordance with Article 5(2) of Commission Regulation (EC) No 615/98 of 18 March 1998 laying down specific detailed rules of application for the export refund arrangements as regards the welfare of live bovine animals during transport, the competent authority may consider, pursuant to Article 5(3) of that regulation, that Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, has not been complied with. However, the competent authority can arrive at that conclusion only if it bases itself on the documents referred to in Article 5 of Regulation No 615/98, on the reports referred to in Article 4 of that regulation concerning animal health, or on any other objective element with implications for the welfare of the animals such as to call into question the documents presented by the exporter, it being for the latter to show, if appropriate, that the elements relied on by the competent authority in substantiation of its finding of non compliance with Directive 91/628, as amended by Directive 95/29, are irrelevant.

2.Pursuant to Article 5(3) of Regulation No 615/98, the competent authority may refuse the export refund for failure to comply with the provisions of Directive 91/628, as amended by Directive 95/29, concerning animal health, even in the absence of evidence showing that the welfare of the animals transported was, in fact, adversely affected.

(<span class="super">1</span>) OJ C 96, 22.4.2006.