Avis juridique important

61996J0161

European Court reports 1998 Page I-00281

Summary

1 Community law - Principles - Proportionality - Primary obligation and secondary obligation - Identical penalty - Not permissible

2 Agriculture - Common organisation of the markets - Sugar - Production in excess of the quota (C sugar) - Charge imposed on sugar disposed of on the internal market - Levied where sugar is exported, but customs formalities have not been completed - Principle of proportionality - No breach

(Commission Regulations No 2670/81, Arts 2(2) and 3, and No 3183/80)

In order to establish whether a provision of Community law is in conformity with the principle of proportionality it is necessary to ascertain whether the means which it employs are appropriate and necessary to attain the objective sought. Where Community legislation makes a distinction between a primary obligation, compliance with which is necessary in order to attain the objective sought, and a secondary obligation, essentially of an administrative nature, it cannot, without breaching the principle of proportionality, penalise failure to comply with the secondary obligation as severely as failure to comply with the primary obligation.

Compliance with the customs formalities provided for on the export of sugar produced in excess of the quota (C sugar), like the actual exportation, must be regarded as forming part of the primary obligations under the system in question, in so far as those formalities are not only intended to simplify administrative procedures but are also necessary to the proper functioning of the quota system in the sugar sector. They are not therefore to be classed as secondary obligations of an essentially administrative nature, failure to comply with which cannot be penalised as severely as infringement of a primary obligation without breaching the principle of proportionality.

It is, in consequence, compatible with the principle of proportionality to charge the amount provided for by Article 3 of Regulation No 2670/81, laying down detailed implementing rules in respect of sugar production in excess of the quota, on C sugar, where the sugar in question has unarguably been exported from the Community but the customs formalities have not been completed, with the result that proof of exportation cannot be produced by means of copy No 1 of the export licence bearing the necessary attributions and endorsements, in accordance with Article 2(2) of Regulation No 2670/81, read in conjunction with Regulation No 3183/80, laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products.

Parties

In Case C-161/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Bundesfinanzhof for a preliminary ruling in the proceedings pending before that court between

and

on the validity of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14), read in conjunction with Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 1980 L 338, p. 1),

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, J.C. Moitinho de Almeida (Rapporteur), D.A.O. Edward, P. Jann and L. Sevón, Judges,

Advocate General: P. Léger,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Südzucker Mannheim/Ochsenfurt AG, by Hans-Joachim Prieß, of the Brussels Bar,

- the Commission of the European Communities, by Klaus-Dieter Borchardt, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Südzucker Mannheim/Ochsenfurt AG and the Commission at the hearing on 25 September 1997,

after hearing the Opinion of the Advocate General at the sitting on 6 November 1997,

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:

‘(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.

4. 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:

‘(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

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

15

21At first, the Hauptzollamt considered that Südzucker had complied with its exportation obligations under Community rules; then, following a check, it decided that proof of exportation had not been furnished in the prescribed manner, that is to say in particular by production of an export licence with the required endorsements and attributions (Article 31(1)(b) of Regulation No 3183/80). The Hauptzollamt took the view that while equivalent supporting documents may, in certain circumstances, be produced in place of a copy of Control Copy T No 5, they cannot serve, as proof that the sugar has been exported, in place of an export licence with the required endorsements and attributions. By decision of 9 June 1992, confirmed by decision of 29 September 1993, it therefore demanded retrospective payment of the amount provided for in Article 3(1)(a) of Regulation No 2670/81.

22The action brought against that decision before the Finanzgericht (Finance Court), Baden-Württemberg, was dismissed by judgment of 25 April 1995. Südzucker appealed on a point of law to the Bundesfinanzhof, claiming in particular that the obligation to produce an export licence as proof of export is contrary to the principle of proportionality. It argued that production of a licence was not the appropriate means of proving that the sugar had left the customs territory of the Community; it was not necessary for that purpose, especially where the person concerned held a copy of Control Copy T No 5 or equivalent documentary evidence. Similarly, it claimed that it was contrary to the principle of proportionality to levy the amount provided for in Article 3 of Regulation No 2670/81 where Article 2(2)(a) thereof had not been complied with. In so far as the obligation concerned was a secondary administrative obligation, breach of it should not give rise to penalties as severe as those imposed for failure to fulfil the principal obligation, that is to say, to export the sugar.

23The Bundesfinanzhof states that its decision depends on whether Südzucker could have been required to pay the amount provided for by Regulation No 2670/81 in respect of C sugar, the export of which had quite genuinely taken place but could not, on account of failure to complete the customs formalities, be proved by production of an export licence with the required attributions and endorsements.

24The Bundesfinanzhof's doubts concerning the validity of the applicable Community legislation relate essentially to the obligation to complete customs formalities on export, failure to fulfil which made it impossible for Südzucker to produce the licence bearing the necessary endorsements by the customs authorities. It considers that, contrary to the argument put forward by Südzucker, Article 26(3) of the basic regulation gave the Commission the power to make proof of export conditional upon compliance with the corresponding customs formalities and production of the export licence. The national court does not see in what way that licence is unsuitable as a - further - means of providing conclusive proof. For the same reasons, that court does not regard as disproportionate in themselves the obligation to prove that the customs export formalities were completed and the obligation to produce the export licence with the necessary attributions and endorsements in order to avoid liability for the amount provided for in Article 3 of Regulation No 2670/81.

25In the Bundesfinanzhof's view, however, it is questionable whether the obligation to pay the amount provided for in that provision, as the consequence of failure to comply with customs formalities on export, is not contrary to the principle of proportionality. In this connection, the national court refers to decisions of the Court (Case 181/84 R v Intervention Board for Sugar ex parte Man (Sugar) [1985] ECR 2889 and Case 21/85 Maas v Bundesanstalt für Landwirtschaftliche Marktordnung [1986] ECR 3537), according to which, where Community legislation makes a distinction between primary obligations, compliance with which is of fundamental importance to the proper functioning of the system concerned and secondary obligations, which are essentially of an administrative nature, infringement of a secondary obligation cannot, without breaching the principle of proportionality, be penalised as severely as failure to comply with a primary obligation.

26According to the Bundesfinanzhof, in this case it is not denied that the primary obligation, to export C sugar, was fulfilled. It is more doubtful whether that primary obligation also includes proof of completion of customs export formalities and production of the licence. If consideration had to be confined exclusively to the economic result, namely exportation, the fact that there was no customs export treatment and that the licence was not produced would not on its own justify charging the amount provided for in Article 3 of Regulation No 2670/81, with the consequence that the contested provision of Community law might prove to be incompatible with the principle of proportionality.

27In the light of those considerations, the Bundesfinanzhof decided to stay proceedings and refer the following question to the Court of Justice for a preliminary ruling:

28Is Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14), read in conjunction with Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 1980 L 338, p. 1), valid, having regard in particular to the Community law principle of proportionality, in so far as its result is that sugar is deemed to have been disposed of on the internal market - that being the basis for levying the charge on sugar production - if it has actually been exported but without completion of the customs formalities, and proof consequently cannot be furnished by means of copy No 1 of the export licence bearing the attributions and endorsements of the customs authorities?

The question

29The national court's question asks, in essence, whether it is compatible with the principle of proportionality to charge the amount provided for by Article 3 of Regulation No 2670/81 on C sugar, where the sugar in question has unarguably been exported from the Community but the customs formalities have not been completed, with the result that proof of exportation cannot be produced by means of copy No 1 of the export licence bearing the necessary attributions and endorsements, in accordance with Article 2(2) of Regulation No 2670/81, read in conjunction with Regulation No 3183/80.

30Südzucker argues that the legal consequences of non-compliance with the obligation to produce the export licence bearing the necessary attributions and endorsements breach the principle of proportionality. The objective of Article 26 of the basic regulation is to ensure that C sugar is actually exported from the Community. Compliance with the obligation to export - which is the primary obligation - is proved by means of Control Copy T No 5 or equivalent documents (Article 2(2)(b) of Regulation No 2670/81). The purpose of producing the export licence (Article 2(2)(a) of Regulation No 2670/81) is to ensure fulfilment of the secondary administrative obligation under Article 13 of the basic regulation, which authorises export transactions only on the basis of those licences. Neither the wording nor the system of the first subparagraph of Article 26(1) supports the conclusion that, in addition to the obligation to export, there is another primary obligation, namely to prove exportation by means of an export licence.

31From that point of view, Südzucker points out that it is indisputable that it has fulfilled its obligation to export and that it has produced the necessary supporting documents. In accordance with the Man (Sugar) and Maas judgments cited above, failure to fulfil the secondary obligation to produce an export licence cannot be penalised in the same way as breach of the primary obligation to export C sugar from the Community.

32It should be noted that in order to establish whether a provision of Community law is in conformity with the principle of proportionality it is necessary to ascertain whether the means which it employs are appropriate and necessary to attain the objective sought. Where Community legislation makes a distinction between a primary obligation, compliance with which is necessary in order to attain the objective sought, and a secondary obligation, essentially of an administrative nature, it cannot, without breaching the principle of proportionality, penalise failure to comply with the secondary obligation as severely as failure to comply with the primary obligation (see Man (Sugar), paragraph 20, and Maas, paragraph 15).

33It is common ground that in the case in the main proceedings the obligation to export imposed on manufacturers of C sugar by Article 26 of the basic regulation is a primary obligation within the meaning of the case-law referred to.

34The contested obligation to produce copy No 1 of the export licence bearing the attributions and endorsements of the customs authorities, on pain of liability to pay the amount levied on production of C sugar, is inseparable from the primary obligation to export.

35Contrary to Südzucker's argument, the obligation to prove that the requirements relating to the export of C sugar have been complied with by production of the export licence bearing the attributions and endorsements made when the customs formalities were completed, in addition to production of Control Copy T No 5 and of a statement by the manufacturer of the sugar concerned, is essential to the proper functioning of the quota system established by the basic regulation, which is intended to stabilise the sugar market through support measures favouring the production of sugar within the A and B quotas which must be financed by the producers themselves.

36So the proper functioning of the quota system, in addition to the prerequisite that C sugar has physically left the territory of the Community, requires reliable evidence to be available to the competent authorities, enabling them to ensure that the amount is paid by those producers who have produced sugar in excess of the quota which has not been exported by 1 January following the end of the marketing year in question.

37Contrary to what Südzucker claims, proof that C sugar has been exported, by means of Control Copy T No 5 or documentary evidence recognised as equivalent for the purposes of Article 31 of Regulation No 3183/80, is not sufficient to prove that all the requirements relating to the export of C sugar have been satisfied.

38In the first place, it says nothing about the producer of sugar exported out of the Community and does not make it possible to ascertain whether the sugar was actually exported from the Member State on whose territory it was produced. Nor is it possible to tell from Control Copy T No 5 whether the C sugar was exported before 1 January following the end of the marketing year in question, as required by the applicable legislation. Finally, it is not possible to attribute the quantities of sugar exported on Control Copy T No 5, whereas it is such attribution which proves that the producer has fulfilled his obligation to export in order to ensure the proper functioning of the quota system.

39In addition, to allow other evidence, such as shipment certificates, when the products in question have already been exported, would make it quite impossible for the competent customs authorities to check whether the information given in those documents was accurate and would entail excessive administrative work for the Member States responsible for evaluating that evidence (see, to that effect, Case 15/83 Denkavit Nederland v Hoofdproduktschap voor Akkerbouwprodukschap [1984] ECR 2171, paragraph 30).

40It follows that the Commission could legitimately consider that production of the export licence bearing the required attributions and endorsements is necessary in order to ensure compliance with the requirements relating to the export of C sugar.

41In those circumstances, compliance with the customs formalities provided for on the export of C sugar, like the actual exportation, must be regarded as forming part of the primary obligations under the system in question, in so far as those formalities are not only intended to simplify administrative procedures but are also necessary to the proper functioning of the quota system in the sugar sector. They are not therefore to be classed as secondary obligations of an essentially administrative nature, failure to comply with which cannot be penalised as severely as infringement of a primary obligation without breaching the principle of proportionality.

42Consequently, the answer to be given to the national court must be that consideration of the question referred has not revealed any factor of such a kind as to affect the validity of Regulation No 2670/81, read in conjunction with Regulation No 3183/80.

Costs

45The costs incurred by the Commission of the European Communities, 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 action pending before the referring court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber), in answer to the question referred to it by the Bundesfinanzhof by order of 19 March 1996, hereby rules:

Consideration of the question referred has not revealed any factor of such a kind as to affect the validity of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota, read in conjunction with Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products.