Parties
Grounds
Operative part

Parties

In Case C‑207/06,

REFERENCE for a preliminary ruling under Article 234 EC from the Unabhängiger Finanzsenat Salzburg‑Aigen (Austria), made by decision of 4 May 2006, received at the Court on 8 May 2006, in the proceedings

Schwaninger Martin Viehhandel – Viehexport

v

Zollamt Salzburg, Erstattungen,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, J.N. Cunha Rodrigues, J. Klučka (Rapporteur), A. Ó Caoimh and P. Lindh, Judges,

Advocate General: P. Mengozzi,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 22 March 2007,

after considering the observations submitted on behalf of:

– Schwaninger Martin, Viehhandel – Viehexport, by O. Wenzlaff, Rechtsanwalt,

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

– the Belgian Government, by A. Hubert, acting as Agent,

– the Greek Government, by I. Chalkias, acting as Agent,

– the Commission of the European Communities, by J. Schieferer and F. Erlbacher, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 February 2008,

gives the following

Judgment

Grounds

1. This reference for a preliminary ruling concerns the interpretation of Article 1 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), and 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), as amended by Council Directive 95/29/EC of 29 June 1995 (OJ 1995 L 148, p. 52; ‘Directive 91/628’).

2. The reference was made in the context of a dispute between Schwaninger Martin Viehhandel – Viehexport (‘Schwaninger’) and the Zollamt Salzburg, Erstattungen (customs office, Salzburg; ‘the Zollamt’) concerning a refusal to pay an export refund following the transportation of live bovine animals to Albania.

Legal context

3. The second subparagraph of Article 13(9) of Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (OJ, English Special Edition 1968 (I), p. 187), as amended by Council Regulation (EC) No 2634/97 of 18 December 1997 (OJ 1997 L 356, p. 13) (‘Regulation No 805/68’), provides that the payment of export refunds for live animals is subject to compliance with Community legislation concerning animal welfare and, in particular, with that concerning the protection of animals during transport.

Regulation No 615/98

4. Detailed rules for the application of Regulation No 805/68 were laid down by Regulation No 615/98.

5. Article 1 of Regulation No 615/98 provides that the payment of export refunds for live bovine animals is to be subject to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Directive 91/628 and that regulation.

6. Under Article 2 of that regulation, checks are to be carried out on animals at the point of departure from the customs territory of the European Community. An official veterinarian is to verify and certify that the animals are fit for the intended journey in compliance with Directive 91/628, that the means of transport by which the animals are to leave that customs territory complies with that directive and that provisions have been made for the care of the animals during the journey in accordance with the directive.

7. Article 5(1) of Regulation No 615/98 states:

‘1. The exporter shall inform the competent authority of the Member State where the export declaration is accepted about all necessary details of the journey, at the latest when the export declaration is lodged.

At the same time, or at the latest when he becomes aware [thereof], the exporter shall inform the competent authority about any possible change of the means of transport.’

8. Pursuant to Article 5(2) of that regulation, applications for the payment of export refunds must be supplemented by proof that Article 1 of that regulation has been complied with, proof which is to be furnished by the production of the control copy T5 and the report drawn up by a control agency, together with the veterinary certificate.

9. Article 5(3) of Regulation No 615/98 provides, however, that the export refund is not to be paid for animals which have died during transportation or for animals in respect of which the competent authority considers, in the light of the documents referred to in Article 5(2) of the regulation, the reports on the checks referred to in Article 4 thereof and/or all other elements at its disposal concerning compliance with Article 1 of the regulation, that Directive 91/628 has not been complied with.

Directive 91/628

10. In accordance with Article 1(1)(a) thereof, Directive 91/628 applies to the transport of domestic animals of the bovine species.

11. Under Article 2(2) of that directive the following definitions are to apply:

‘…

(b) “transport”, any movement of animals, effected by a means of transport, which involves loading and unloading the animals;

…

(h) “rest period”, a continuous period in the course of a journey during which animals are not being moved by a means of transport;

…’

12. Article 5A point 2(d) of Directive 91/628 states that the Member States are to ensure that the transporter:

‘ensures:

(i) that the original copy of the route plan referred to in (b):

– is duly drawn up and completed by the appropriate persons at the appropriate time,

…

(ii) that the staff in charge of the transport:

– state in the route plan the times and places at which the animals transported have been fed and watered during the journey,

…’

13. Chapter VII of the annex to Directive 91/628, which constitutes point 48 of that annex, concerns the watering and feeding intervals, journey times and resting periods. Point 48 states, inter alia:

‘…

2. Journey times for animals belonging to the species referred to in point 1 shall not exceed eight hours.

3. The maximum journey time in point 2 may be extended where the transporting vehicle meets the following additional requirements:

– there is sufficient bedding on the floor of the vehicle,

– the transporting vehicle carries appropriate feed for the animal species transported and for the journey time,

– there is direct access to the animals,

– adequate ventilation is possible which may be adjusted depending on the temperature (inside and outside),

– there are moveable panels for creating separate compartments,

– vehicles are equipped for connection to a water supply during stops.

…

4. The watering and feeding intervals, journey times and rest periods when using road vehicles which meet the requirements in point 3 are defined as follows:

…

(d) All other animals of the species referred to in point 1 must, after 14 hours of travel, be given a rest period of at least one hour sufficient for them in particular to be given liquid and if necessary fed. After this rest period, they may be transported for a further 14 hours.

5. After the journey time laid down, animals must be unloaded, fed and watered and be rested for at least 24 hours.

…

7. (a) Animals must not be transported by sea if the maximum journey time exceeds that laid down in point 2, unless the conditions laid down in points 3 and 4, apart from journey times and rest periods, are met.

(b) In the case of transport by sea on a regular and direct link between two geographical points of the Community by means of vehicles loaded on to vessels without unloading of the animals, the latter must be rested for 12 hours after unloading at the port of destination or in its immediate vicinity unless the journey time at sea is such that the voyage can be included in the general scheme of points 2 to 4.

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

14. On 23 October 2002, Schwaninger declared the export of 33 bovine animals to Albania and applied for an export refund in that respect. The animals were first transported for 14 hours by road from Austria to Italy, where they were unloaded at the port of Trieste. After a rest period of 24 hours, during which they were fed and watered, the animals were reloaded into the lorry which was then loaded onto a roll‑on/roll-off ferry. The crossing from Trieste to Dürres (Albania) lasted 41 and a half hours. Finally, the animals were transported by road in the same lorry, without a break, to Lushnja (Albania), where they arrived the same day and were finally unloaded after travelling for 46 hours in all.

15. The Zollamt pointed out that the route plan which had been submitted by the applicant did not contain any statements from the staff in charge of the transportation in relation to the intervals at which the animals were fed and watered during the journey by sea and it therefore assumed that the animals had neither been fed nor watered for a period of 46 hours. It considered that a subsequent affidavit submitted by the driver of the lorry containing details of the times at which the animals were fed and watered, information which was not entered in the route plan, was irrelevant in this connection. Consequently, the Zollamt decided to reject the application for an export refund.

16. Since the action brought against that refusal was dismissed at first instance, on 9 September 2005, Schwaninger brought an appeal before the referring court claiming that, in the judgment under appeal, the decision to refuse the export refund was based solely on the lack of information in the route plan.

17. Taking the view that the decision in the case turns on the interpretation of certain provisions of Community law, the Unabhängiger Finanzsenat (Independent Finance Tribunal) Salzburg‑Aigen decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Is Article 1 of … Regulation … No 615/98 … to be understood as meaning that [point 48(7)(b)] of the annex to Directive 91/628 … applies analogously in the case of transport by sea on a regular and direct link between a geographical point of the Community and a geographical point in a third country by means of vehicles loaded on to vessels without unloading of the animals?

2. If question one is answered in the affirmative, is [point 48(7)(b)] of the annex to Directive 91/628 … to be understood as meaning that, in the case of transport of bovine animals, the journey time by sea does not comply with the rule in [point 48(4)(d)] if, after 14 hours of travel, the animals are not given a rest period of at least one hour?

3. If question one is answered in the negative, is the then applicable provision in [point 48(7)(a)] of the annex to Directive 91/628 … to be understood as meaning that the journey ti me by sea on a regular and direct link between a geographical point of the Community and a geographical point in a third country by means of vehicles loaded on to vessels without unloading of the animals is immaterial provided that the animals are regularly fed and watered and, in such a case, does a further period of 29 hours of transport by road begin immediately after unloading the lorry at the port of destination?

4. If question three is answered in the affirmative, is the first indent of Article 5A point 2(d)(ii) of Directive 91/628 … to be understood as meaning that the staff in charge of the transport are required to state in the route plan the times at which the animals transported were fed and watered during the ferry journey and that a pre-typed statement indicating that “during the ferry journey, animals are fed and watered in the evenings and mornings, at midday, and in the evenings and mornings” does not meet the requirements of Directive 91/628, with the effect in law that the failure to state the measures actually taken to care for the animals leads to a loss of the right to an export refund in so far as the proof required cannot be provided by any other means?’

The questions

The first question

18. By its first question, the referring court essentially asks what is the scope of the reference made in Regulation No 615/98 to Directive 91/628 and, in particular, whether, by virtue of that reference, transport by roll‑on/roll-off ferry between a geographical point of the Community and a geographical point in a third country falls within point 48(7)(a) of the annex to that directive or whether it is necessary to apply point 48(7)(b) thereof by analogy.

19. According to the referring court, although point 48(7)(b) of the annex to Directive 91/628 expressly limits its scope to transport by sea between two geographical points of the Community, it is imperative that the scope of that provision may be extended to transport by roll‑on/roll-off ferry, such as the one at issue in the main proceedings, between a point situated within the Community and a point situated in a third country. Such an extension is justified particularly, in the view of that court, by the reference made in Article 1 of Regulation No 615/98 to Directive 91/628, which requires that the provisions of that directive be complied with during the transport of the animals to the first place of unloading in the third country of final destination.

20. It should be pointed out, at the outset, that Article 1 of Regulation No 615/98 provides that, for the application of the second subparagraph of Article 13(9) of Regulation No 805/68, the payment of export refunds for live bovine animals falling within heading 0102 of the Combined Nomenclature is to be subject, inter alia, to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Directive 91/628 (see Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK [2008] ECR I‑0000, paragraph 17).

21. As regards the scope of the general reference made by Article 1 of Regulation No 615/98 to Directive 91/628, the Court has held that the purpose of that article is to ensure, for the application of Article 13(9) of Regulation No 805/68, compliance with the relevant provisions of that directive on the welfare of live animals and, in particular, the protection of animals during transport (see, to that effect, Viamex Agrar Handel and ZVK , paragraph 19).

22. However, the fact that Article 1 of Regulation No 615/98 refers to the provisions of Directive 91/628, establishing the conditions for the payment of refunds, cannot have the effect of modifying the scope of those provisions. The fact that the Community legislature provided for the application of those provisions until the first place of unloading of the animals in the third country of final destination cannot be interpreted as meaning that the legal scheme applicable to a specific means of transport linking two points within the Community is necessarily applicable to the same means of transport between a geographical point situated within the Community and one situated in the third country concerned.

23. Although it is true that Article 1 of Regulation No 615/98 makes the payment of export refunds subject to compliance with the requirements of Directive 91/628, in the various stages of the transportation of animals until the first place of their unloading in the third country of final destination, it must be noted that the requirements laid down in point 48(7)(b) of the annex to that directive expressly refers to intra‑Community transport and can thus not be applied to the same type of transport to a third country.

24. Point 48 of the annex to Directive 91/628 must be interpreted as meaning, first, that point 48(7)(b) applies to transport by roll‑on/roll-off ferry on a regular and direct link between two geographical points of the Community which must, by definition, be in a position to comply with the conditions set out in point 48(7)(b) and, second, that, where that latter provision is not applicable, the requirements laid down in point 48(7)(a) must be complied with.

25. In those circumstances, it must be held that the reference made in Article 1 of Regulation No 615/98 to Directive 91/628 cannot be interpreted as meaning that point 48(7)(b) of the annex to that directive, whose scope is expressly limited to the case of transport by sea on a link between two geographical points of the Community, must be applied to transport by roll‑on/roll‑off ferry on a link between a geographical point of the Community and a geographical point situated in a third country.

26. In the light of the foregoing considerations, the answer to the first question must be that Article 1 of Regulation No 615/98 cannot be interpreted as meaning that point 48(7)(b) of the annex to Directive 91/628 must be applied to the case of transport by sea on a link between a geographical point of the Community and a geographical point in a third country by means of vehicles loaded onto vessels without unloading of the animals.

The second question

27. This question was referred in case the Court were to answer the first question in the affirmative.

28. Given that the first question has been answered in the negative, it is not necessary to answer the second question.

The third question

29. By its third question, the referring court asks whether, pursuant to point 48(7)(a) of the annex to Directive 91/628, the duration of the sea transport between a geographical point of the Community and a geographical point in a third country does not have to be taken into account where, first, the vehicles used for the transport are loaded onto vessels without unloading the animals and, second, those animals are regularly fed and watered and, in such a case, whether a further period of 29 hours of transport by road may begin immediately after unloading those vehicles at the port of destination in the third country.

30. It should be pointed out that, in the absence of specific provisions for transport by roll‑on/roll‑off ferry, such as that at issue in the main proceedings, and since point 48(7)(b) of the annex to Directive 91/628 does not apply to that means of transport, only point 48(7)(a), which lays down the general provisions applicable to transport by sea, determines the conditions in which the transportation of animals in such a roll‑on/roll‑off ferry must take place.

31. As regards the duration of that transport, it is clear from the wording of point 48(7)(a) of the annex to Directive 91/628 that the journey time by sea may exceed eight hours if all the conditions laid down in point 48(3) and (4), apart from journey times and rest periods, are met. It should be noted that, among the conditions to be met are those concerning the intervals at which the animals have to be fed and watered.

32. Consequently, in the case of transport by roll‑on/roll‑off ferry on a link between a geographical point of the Community and a geographical point in a third country, the duration of the transport does not have to be taken into account if the animals are transported in accordance with the conditions laid down in point 48(3) and (4) of the annex to Directive 91/628, apart from journey times and rest periods.

33. As regards the question whether a further period of transport by road in accordance with the conditions laid down in point 48(4)(d) of the annex to Directive 91/628 may begin immediately after unloading the vehicle at the port of destination in the third country, it must be noted that point 48(7)(a) in no way states that a further period of transport by road should be preceded by a rest period for the animals after that vehicle has been unloaded from the vessel.

34. Consequently, if the transport by roll‑on/roll‑off ferry is in conformity with the requirements laid down in point 48(7)(a) and all the conditions laid down in point 48(3) and (4), apart from journey times and rest periods, are met, a further period of transport by road may begin immediately after unloading those vehicles at the port of destination in the third country, in accordance with point 48(4)(d).

35. In the light of the foregoing considerations, the answer to the third question must be that point 48(7)(a) of the annex to Directive 91/628 must be interpreted as meaning that, in the case of sea transport between a geographical point of the Community and a geographical point situated in a third country by means of vehicles loaded onto vessels without unloading the animals, the duration of the transport does not have to be taken into account if the animals are transported in accordance with the conditions laid down in point 48(3) and (4) of the annex to Directive 91/628, apart from journey times and rest periods. If that is the case, a further period of transport by road may begin immediately after unloading the lorry at the port of destination in the third country, in accordance with point 48(4)(d).

The fourth question

36. By its fourth question the referring court essentially asks whether the fact of stating prior to the ferry journey that the animals are fed and watered ‘in the evenings and mornings, at midday, and in the evenings and mornings’ satisfies the requirements of the first indent of Article 5A point 2(d)(ii) of Directive 91/628 and, if that question is to be answered in the negative, whether non‑compliance with that provision may lead to the loss of the right to an export refund.

37. In that regard, it should be pointed out that, in accordance with Article 5A point 2(d)(i) and (ii) of Directive 91/628, the Member States must make sure that the transporter ensures that the original copy of the route plan is duly drawn up and completed by the appropriate persons at the appropriate time and that the staff in charge of the transport state in the route plan the times and places at which the animals transported have been fed and watered during the journey.

38. It is clear from the wording of that provision that, irrespective of the time at which the route plan is drawn up, it must, in order to satisfy the requirements laid down in the first indent of Article 5A point 2(d)(ii) of Directive 91/628, contain statements from the staff in charge of the transport relating to the times and places at which the animals have been fed and watered during the journey.

39. As regards the consequences which non‑compliance with those formalities could entail, the Court has held that, where the competent authority of a Member State considers that Directive 91/628 has not been complied with but that has not led to the death of the animals, the Community legislature grants a certain amount of discretion to that authority to determine whether it is appropriate, as a result of non‑compliance with a provision of that directive, for the export refund to be forfeited, reduced or retained. Such discretion is not unlimited, however, since it is circumscribed by Article 5 of Regulation No 615/98 (see Viamex Agrar Handel and ZVK , paragraphs 38 and 39).

40. In addition, the Court has held that it is for the competent authority to assess whether a failure to comply with a provision of Directive 91/628 has had an impact on animal welfare, whether such a failure can, where appropriate, be remedied and whether it must result in the export refund being forfeited, reduced or retained (see Viamex Agrar Handel and ZVK , paragraph 44).

41. In accordance with that approach, the competent authority may therefore, if it considers that the documents submitted by the exporter as a whole are not such as to prove that Directive 91/628 has been complied with, decide not to grant the export refund.

42. However, in order to adopt such a decision, the Court has held that the competent authority is required, pursuant to Article 5(3) of Regulation No 615/98, to base itself on objective and specific elements relating to the welfare of the animals which are capable of establishing that the documents attached by the exporter to its export refund application do not prove compliance with the provisions of Directive 91/628 during transportation, and it is for the exporter to show, where appropriate, that the elements relied on by the competent authority to substantiate its finding of non‑compliance with that regulation and that directive are not relevant (see Case C-96/06 Viamex Agrar Handel [2008] EC I‑0000, paragraph 41).

43. In any event, the competent authority is required to justify its decision by stating the reasons why it considers the evidence presented by the exporter does not enable it to be concluded that Directive 91/628 was complied with. For that purpose, the authority is required, in particular, to make an objective assessment of the documents presented to it and to show the pertinence of the elements it has relied on in order to establish that the documentation attached to the export refund application was not sufficient to show compliance with the relevant provisions of that directive ( Viamex Agrar Handel , paragraph 42).

44. However, although it is true that a statement that the animals are fed and watered ‘in the evenings and mornings, at midday, and in the evenings and mornings’ during transportation by sea does not correspond exactly to the requirements of the first indent of Article 5A point 2(d)(ii) of Directive 91/628, none the less it cannot be inferred from such a statement that the animals have not been fed or watered.

45. A statement typed prior to the ferry journey, according to which the animals are fed and watered at sufficiently identifiable intervals, may satisfy the requirements of Directive 91/628 provided that it is established that the animals were in fact fed and watered as stated.

46. It is the task of the referring court to assess, in the main proceedings, whether, in the light of the documents submitted by the exporter as a whole, among which are the route plan and the affidavit referred to in paragraph 15 above, the animals were transported in accordance with the requirements of Directive 91/628.

47. In the light of the foregoing considerations, the answer to the fourth question must be that a route plan containing a pre-typed statement indicating that during the ferry journey animals are fed and watered ‘in the evenings and mornings, at midday, and in the evenings and mornings’ may satisfy the requirements of Directive 91/628 provided that it is established that the animals were in fact fed and watered as stated. If the competent authority considers, in the light of all the documents submitted by the exporter, that the requirements of that directive have not been complied with, it is for that authority to assess whether that non‑compliance had an effect on the welfare of the animals, whether such non‑compliance may, where appropriate, be remedied and whether it must result in the export refund being forfeited, reduced or retained.

Costs

48. 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Third Chamber) hereby rules:

1. Article 1 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 cannot be interpreted as meaning that point 48(7)(b) of the annex to 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, must be applied to the case of transport by sea on a link between a geographical point of the European Community and a geographical point in a third country by means of vehicles loaded onto vessels without unloading of the animals.

2. Point 48(7)(a) of the annex to Directive 91/628, as amended by Directive 95/29, must be interpreted as meaning that, in the case of transport by sea between a geographical point of the European Community and a geographical point situated in a third country by means of vehicles loaded onto vessels without unloading the animals, the duration of the transport does not have to be taken into account if the animals are transported in accordance with the conditions laid down in point 48(3) and (4) of the annex to Directive 91/628, apart from journey times and rest periods. If that is the case, a further period of transport by road may begin immediately after unloading the lorry at the port of destination in the third country, in accordance with point 48(4)(d).

3. A route plan containing a pre-typed statement indicating that during the ferry journey animals are fed and watered ‘in the evenings and mornings, at midday, and in the evenings and mornings’ may satisfy the requirements of Directive 91/628, as amended by Directive 95/29, provided that it is established that the animals were in fact fed and watered as stated. If the competent authority considers, in the light of all the documents submitted by the exporter, that the requirements of that directive have not been complied with, it is for that authority to assess whether that non‑compliance had an effect on the welfare of the animals, whether such non‑compliance may, where appropriate, be remedied and whether it must result in the export refund being forfeited, reduced or retained.