JUDGMENT OF THE COURT (Third Chamber)

19 October 2017 ( *1 )

(Reference for a preliminary ruling — Common organisation of the markets — Protection of animals during transport — Export refunds — Regulation (EU) No 817/2010 — Regulation (EC) No 1/2005 — Obligation to keep up to date a copy of the journey log until the arrival of the animals at the place of the first unloading in the third country of final destination — Recovery of amounts over-paid)

In Case C‑383/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands), made by decision of 4 July 2016, received at the Court on 11 July 2016, in the proceedings

Vion Livestock BV

v

Staatssecretaris van Economische Zaken,

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, J. Malenovský, M. Safjan, D. Šváby (Rapporteur) and M. Vilaras, Judges,

Advocate General: N. Wahl,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 17 May 2017,

after considering the observations submitted on behalf of:

–

Vion Livestock BV, by H.A. Pasveer, advocaat,

–

the Netherlands Government, by M. Bulterman and M. Noort, acting as Agents,

–

the Hungarian Government, by M.Z. Fehér and E. Sebestyén, acting as Agents,

–

the European Commission, by A. Bouquet and B. Eggers, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 June 2017,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Articles 5(4) and 8(2) and Annex II, points 3 and 7 of Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 ( OJ 2005 L 3, p. 1 ) and the interpretation of Articles 3(1) and 4, 5 and 7 of Commission Regulation (EU) No 817/2010 of 16 September 2010 laying down detailed rules pursuant to Council Regulation (EC) No 1234/2007 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport ( OJ 2010 L 245, p. 16 ).

2The request has been made in proceedings between Vion Livestock BV (‘Vion’) and the Staatssecretaris van Economische Zaken (State Secretary for Economic Affairs, Netherlands) (‘the State Secretary’) concerning the recovery of export refunds received by Vion on the occasion of the export of live bovine animals to Lebanon.

Legal context

EU law

Regulation No 1/2005

3According to Recital 11 of Regulation No 1/2005, in order to ensure a consistent and effective application of that regulation across the European Union in the light of the basic principle according to which animals must not be transported in a way likely to cause injury or undue suffering to them, it is appropriate to set out detailed provisions addressing the specific needs arising in relation to the various types of transport.

4Article 1 of Regulation No 1/2005, which defines the scope of that regulation, provides, in paragraph 1:

‘This Regulation shall apply to the transport of live vertebrate animals carried out within the [Union], including the specific checks to be carried out by officials on consignments entering or leaving the customs territory of the [Union].’

5Article 5 of that regulation, entitled ‘Planning obligations for the transport of animals’, provides, in paragraph 4:

‘For long journeys between Member States and with third countries for domestic Equidae other than registered Equidae, and domestic animals of bovine, ovine, caprine and porcine species, transporters and organisers shall comply with the provisions on the journey log set out in Annex II.’

6Article 8 of that regulation, entitled ‘Keepers’, states, in paragraph 2:

‘Keepers shall check all animals arriving at a place of transit or a place of destination and determine if the animals are or have been subject to a long journey between Member States and with third countries. In the case of long journeys for domestic Equidae, other than registered Equidae, and domestic animals of bovine, ovine, caprine and porcine species, keepers shall comply with the provisions on the journey log set out in Annex II.’

7Article 14 of the same regulation, entitled ‘Checks and other measures related to journey log to be carried out by the competent authority before long journeys’, provides, in paragraph 1:

‘In the case of long journeys between Member States and with third countries for [the included species], the competent authority of the place of departure shall:

(a)

carry out appropriate checks to verify that:

(i)

transporters indicated in the journey log have the corresponding valid transporter authorisations, the valid certificates of approval for means of transport for long journeys and valid certificates of competence for drivers and attendants;

(ii)

the journey log submitted by the organiser is realistic and indicates compliance with this Regulation;

(b)

where the outcome of the checks provided for in point (a) is not satisfactory, require the organiser to change the arrangements for the intended long journey so that it complies with this Regulation;

(c)

where the outcome of the checks provided for in point (a) is satisfactory, the competent authority shall stamp the journey log;

…’

8Annex II to Regulation No 1/2005 (‘Journey log’) provides, in points 1 to 3, 7 and 8:

‘1.

A person planning a long journey shall prepare, stamp and sign all pages of the journey log in accordance with the provisions of this Annex.

2.The journey log shall comprise the following sections:

Section 1 — Planning;

Section 2 — Place of departure;

Section 3 — Place of destination;

Section 4 — Declaration by transporter;

Section 5 — Specimen anomaly report.

…

3.The organiser shall:

(a)

identify each journey log with a distinguishing number;

(b)

ensure that a signed copy of Section 1 of the journey log, properly completed except as regards the veterinary–certificate numbers, is received within two working days before the time of departure by the competent authority of the place of departure in a manner defined by such authority;

…

(e)

ensure that the journey log accompanies the animals during the journey until the point of destination or, in case of export to a third country, at least until the exit point.

…

7.If animals are exported to a third country, transporters shall give the journey log to the official veterinarian at the exit point.

In the case of export of live bovine animals with refunds, Section 3 of the journey log shall not be required if the agricultural legislation requires a report.

8.The transporter referred to in Section 3 of the journey log shall keep:

(a)

a copy of the completed journey log;

…

Documents referred to in points (a) and (b) shall be made available to the competent authority which granted the transporter’s authorisation and upon request to the competent authority of the place of departure, within one month after it has been completed and shall be kept by the transporter for a period of at least three years from the date of the check.

Documents referred to in point (a) shall be returned to the competent authority of the place of departure within 1 month after the completion of the journey ...’

9The Appendix to Annex II to Regulation No 1/2005 is made up of various sections, each consisting of a standard form. Section 3 of that appendix contains a form entitled ‘Place of destination’. Point 4 of that form specifies the ‘checks [to be] performed’ by the ‘keeper at the place of destination/official veterinarian’ referred to in point 1 of that form. One of those checks — mentioned in point 4.5 of the same form — concerns ‘journey log records and journey time limits’. Moreover, Section 4 of the same appendix includes a form containing a declaration by the transporter to be completed by the driver during the course of the journey. That declaration must indicate, as regards the actual itinerary (resting, transfer or exit points), the various places and addresses, arrival and departure dates and times, length of stops and reasons therefor, any reasons for differences between the actual and proposed itineraries, any other observations and the number of and reason for any injuries or deaths during the transport. That declaration is to be signed by the driver(s) and the transporter.

Regulation No 817/2010

10According to Recital 3 of Regulation No 817/2010, ‘[i]n order to guarantee that the animal welfare standards are maintained, a monitoring system should be introduced comprising compulsory checks at the exit point from the customs territory of the [Union] and after leaving the customs territory of the [Union] where there is a change of means of transport and also at the place of the first unloading in the third country of final destination.’

11Article 1 of Regulation No 817/2010, entitled ‘Scope’ provides, in the first subparagraph:

‘The payment of export refunds for live bovine animals falling within CN code 0102 (hereinafter referred to as the “animals”), pursuant to Article 168 of [Council] Regulation (EC) No 1234/2007 [of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (“the Single CMO Regulation”) ( OJ 2007 L 299, p. 1 )], shall be subject to compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Articles 3 to 9 of Regulation [No 1/2005] and the Annexes referred to therein, and with this Regulation.’

12Article 2 of Regulation No 817/2010, entitled ‘Checks within the customs territory of the [Union]’, states, in paragraph 2:

‘The official veterinarian at the exit point shall verify … for those animals for which an export declaration is accepted whether:

(a)

the requirements laid down in [Regulation No 1/2005] have been complied with from the place of departure … until the exit point;

and

(b)

the transport conditions for the rest of the journey comply with [Regulation No 1/2005] and that the necessary arrangements have been taken to ensure its compliance until the first unloading in the third country of final destination.

The official veterinarian who has conducted the checks shall complete a report in accordance with the model set out in Annex I to this Regulation certifying whether the results of the checks performed in accordance with the first subparagraph are satisfactory or not satisfactory.

The veterinarian authority responsible for the exit point shall keep that report for at least three years. A copy of the report shall be sent to the paying agency.’

13Article 3 of Regulation No 817/2010, entitled ‘Checks in third countries’, provides:

‘1. After leaving the customs territory of the [Union], the exporter shall ensure that the animals shall be subject to a check at:

(a)

any place where there is a change of means of transport except where such change was not planned and is due to exceptional and unforeseen circumstances;

(b)

the place of the first unloading in the third country of final destination.

2. An international control and supervisory agency, approved and controlled for this purpose by a Member State … or an official agency of a Member State shall be responsible for carrying out the checks provided for in paragraph 1.

…

A report of each check carried out pursuant to paragraph 1 shall be completed in accordance with the models set out in Annexes III and IV to this Regulation by the veterinarian who carried out the check.’

14Article 4 of that regulation, entitled ‘Procedure for payment of export refunds’, provides:

‘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.

…

2. Applications for the payment of export refunds … shall be supplemented … by:

(a)

the document referred to in Article 2(3) of this Regulation duly completed;

and

(b)

the reports provided for in the third subparagraph of Article 3(2) of this Regulation.

3. Where the checks referred to in Article 3(1) could not be carried out due to circumstances beyond the control of the exporter, the competent authority, on a reasoned request from the exporter, may accept other documents which prove to its satisfaction that [Regulation No 1/2005] has been complied with.’

15Article 5 of that regulation, entitled ‘Non-payment of export refunds’, provides, in paragraph 1:

‘The total sum of the export refund per animal calculated in accordance with the second subparagraph shall not be paid for:

(a)

animals which have died during transport, except as provided in paragraph 2;

…

(c)

animals for which, in the light of the documents referred to in Article 4(2) and/or all other elements at its disposal concerning compliance with this Regulation, the competent authority considers that Articles 3 to 9 of [Regulation No 1/2005] and the Annexes referred to therein have not been complied with.

…’

16Article 7 of Regulation No 817/2010, entitled ‘Recovery of amounts over-paid’, provides:

‘Where it is established after payment of the refund that Regulation [No 1/2005] has not been complied with, the relevant part of the refund, including where appropriate the penalty pursuant to Article 6 of this Regulation, shall be considered to have been paid unduly and shall be recovered in accordance with Article 49 of [Commission] Regulation (EC) No 612/2009 [of 7 July 2009 on laying down common detailed rules for the application of the system of export refunds on agricultural products ( OJ 2009 L 186, p. 1 )].’

17Annex IV to Regulation No 817/2010 contains a model check report at the place of the first unloading in the third country of final destination. One of the boxes used in relation to the ‘checks performed’ concerns ‘route plan records’.

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

18Towards the end of 2010, Vion exported 36 live bovine animals to Lebanon. Those animals were first transported by truck from Woerden (Netherlands) to Koper (Slovenia), from where they were loaded onto a vessel adapted for transporting livestock. The animals then left EU territory, by sea, arriving in Beirut (Lebanon).

19According to the referring court, it was in Koper that the transporter handed over the journey log to the official veterinarian of the exit point of the Union, meaning that the original version of that log could not be kept up to date until Beirut.

20In accordance with Regulation No 1/2005, Vion had submitted to the competent Netherlands authority, prior to the journey, a journey log specifying — pursuant to Section 1 thereof, entitled ‘Planning’ — that the total journey time was to be seven days, that the place of departure was Woerden and that the place of destination was Beirut. That transport was to commence on9 September 2010, with no departure time being stipulated, and to be completed on 16 September 2010. Last, it was indicated that the animals would rest in Munich (Germany) and be loaded onto the vessel at Koper.

21Similarly, although the bovine animals were to be transported to Lebanon, Section 3 of the journey log at issue in the main proceedings, entitled ‘Place of destination’, mentioned Koper and Slovenia as being the place and Member State of destination. The ‘declaration by the transporter’, contained in Section 4 of that journey log, showed that the animals arrived in Koper at 10:50 a.m. on 10 September 2010 and that that time and date corresponded to the time and date of arrival at the place of destination. That journey log, however, contains no information relating to the conduct of the transport between the departure of the vessel from Koper and arrival at Beirut.

22The animals were unloaded between 11:15 a.m. and 1:30 p.m. on 22 September 2010 and underwent an inspection carried out by an independent veterinarian established in Beirut, in accordance with Article 3(2) of Regulation No 817/2010.

23On the basis of the report dated the same day and signed by that veterinarian, Control Union Nederland, a company acting on behalf of Vion, certified, on 12 October 2010, that the provisions of Regulations Nos 1/2005 and 817/2010 had been complied with.

24By a decision of 4 February 2014, however, the State Secretary ordered Vion to repay export refunds of the amount of EUR 5 292.92 that it had paid it, as well as a 10% increase and interest amounting to EUR 577.40. The State Secretary criticised Vion’s transporter for having filled in Section 4 of the journey log until only the point of exit from EU territory and not until the animals’ final destination. Thus, according to that transporter’s declaration, the journey was supposed to end in Koper and not to continue on until Beirut.

25The State Secretary having rejected its complaint by a decision of 18 June 2014, Vion lodged an appeal before the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands).

26Vion and the State Secretary are in disagreement as to whether the obligation to keep a journey log when transporting animals over a long duration applies only until the point of exit from EU territory or whether, more broadly, it applies to the final destination, and therefore until the animals’ arrival in the third country concerned.

27In that regard, the referring court considers itself confronted with a serious difficulty of interpretation of EU law, given the divergences, in its view, between the requirements of Articles 4, 5 and 7 of Regulation No 817/2010, on the one hand, and of Article 5(4) of Regulation No 1/2005 and of point 3 of Annex II to that regulation, on the other. Neither Vion’s position nor the one advanced by the State Secretary appear, in the view of that court, to be devoid of relevance.

28In the light of the wording of points 3 and 7 of Annex II to Regulation No 1/2005, the referring court, like Vion, doubts whether the organiser or transporter could keep the journey log until the final point of destination of the journey, namely until the third country concerned. The referring court is convinced, however, that it is only on the basis of the journey log that the veterinarian of the place of the first unloading in the third country of final destination could actually ensure that Regulation No 1/2005 has been complied with.

29The obligation to give the journey log to the official veterinarian at the exit point of the Union, arising from point 7 of Annex II to Regulation No 1/2005, would thus prevent the exporter from producing evidence to show, to the veterinarian of the place of the first unloading in the third country of final destination, that he has indeed complied with Articles 3 to 9 of that regulation, and with the annexes thereto.

30The referring court notes, however, that the position advanced by the State Secretary is based also on solid arguments. In particular, Recital 11 of Regulation No 1/2005, in so far as it states that animals must not be transported in a way likely to cause injury or undue suffering to them, is capable of covering the entirety of the journey to a third country.

31In addition, a number of provisions of Regulation No 817/2010 make the payment of export refunds subject to compliance with Regulation No 1/2005, compliance which must be verified by the veterinarian of the place of the first unloading in the third country of final destination. In order to be effective, such checks would presuppose that the journey log was held until arrival in that third country. According to the referring court, any other solution would have the effect of preventing the part of the transport that took place within the territory of the third country from being checked by means of the journey log.

32In those circumstances, the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1)

Are Articles 5(4) and 8(2) of [Regulation No 1/2005], read in conjunction with the provisions regarding the journey log in Annex II to that regulation, to be interpreted as meaning that they impose an obligation on the organiser of the transport and/or on the keeper of the animals, when transporting animals to a third country, to keep the journey log up to the place of destination in that third country?

(2)

Are Articles 5 and 7 of [Regulation No 817/2010], read in conjunction with Article 4 of that regulation, to be interpreted as meaning that the export refunds must be recovered if the journey log was not kept up to the place of destination in the third country, for the reason that the transporter discharged the obligation laid down in point 7 of Annex II to Regulation No 1/2005 to give the journey log to the official veterinarian at the exit point?

(3)

Are Articles 5 and 7 of Regulation No 817/2010, read in conjunction with Article 4 of that regulation, to be interpreted as meaning that the export refunds must be recovered if the exporter is unable to prove compliance with the provisions of Regulation No 1/2005, in a situation where the veterinarian, in the context of the checks which he is required to carry out in the third country pursuant to Article 3(1) of Regulation No 817/2010, is unable to verify whether or not the route plan data (the journey log) are satisfactory, that is to say, whether or not they are in compliance with the provisions of Regulation No 1/2005 (and is consequently also unable to declare that the outcome of those checks is satisfactory), inasmuch as the transporter has given the journey log to the official veterinarian at the exit point?’

Consideration of the questions referred

33By its questions, which it is appropriate to examine together, the referring court asks, essentially, whether Article 7 of Regulation No 817/2010, read in conjunction with Articles 3(1) and (2) and 2(2) of that regulation, and with points 3, 7 and 8 of Annex II to Regulation No 1/2005, must be interpreted as meaning that repayment of export refunds under Regulation No 817/2010 may be required where the transporter of bovine animals has not kept the journey log provided for in Annex II to Regulation No 1/2005 up to date until the place of the first unloading in the third country of final destination.

34It is appropriate to point out, as a preliminary point, that neither Regulation No 817/2010 nor Regulation No 1/2005 expressly mentions the documents that must be provided by a transporter who exports bovine animals to a third country so as to qualify for export refunds.

36In that regard, it must be pointed out, first, that, as follows from Article 7 of Regulation No 817/2010, where it is established after payment of the refund that Regulation No 1/2005 has not been complied with, the relevant part of the refund will be considered to have been paid unduly. It must therefore be recovered, as must any penalty imposed on the exporter or the transporter. Therefore, repayment of export refunds is conditional upon disregard by the exporter or the transporter of the obligations arising from Regulation No 1/2005.

37Article 1 of Regulation No 817/2010, however, makes the payment of export refunds conditional upon compliance, during the transport of the animals to the first place of unloading in the third country of final destination, with Articles 3 to 9 of Regulation No 1/2005 and the annexes referred to therein, and with the former regulation’s own provisions. Their repayment must, therefore, be brought about by an infringement of those same Articles 3 to 9 of Regulation No 1/2005.

38Second, Regulation No 817/2010 requires, in accordance with Recital 3 thereof, in order to guarantee that the animal welfare standards are maintained, a monitoring system comprising compulsory checks not only at the exit point from the customs territory of the Union, but also up to the place of the first unloading in the third country of final destination. In accordance with, inter alia, Article 3(1)(b) of that regulation, checks must be carried out at the place of the first unloading in the third country of final destination, which checks must, pursuant to the second subparagraph of Article 3(2) of that regulation, lead to the preparation of a report, based on the model referred to in paragraph 17 of the present judgment. As that model confirms, the objective of those checks is essentially to establish whether the provisions of Regulation No 1/2005 have been complied with, including during the part of the journey between the exit point of the Union and the place of the first unloading in the third country of final destination.

39To the extent that one of the elements to be examined during those checks is the ‘route plan records’ — which, as the Advocate General noted in point 47 of his Opinion, correspond to the journey log — the performance of the checks mentioned in the preceding paragraph of the present judgment necessitates the submission to the company responsible for carrying out those checks of the information provided for that purpose.

40The ‘declaration by [the] transporter’, which comprises Section 4 of the journey log, must be completed by the driver and signed by the driver and the transporter. That declaration must indicate, as regards the actual itinerary (resting, transfer or exit points), the various places and addresses, arrival and departure dates and times, length of stops and reasons therefor, any reasons for differences between the actual and proposed itineraries, any other observations and the number of and reason for any injuries or deaths during the transport.

41That interpretation is capable of preserving the effectiveness of Article 14(1) of Regulation No 1/2005, which must be interpreted as meaning that, in order for transport involving a long journey for animals concerned which commences on the territory of the European Union and continues outside that territory to be authorised by the competent authority of the place of departure, the organiser of the journey must submit a journey log which is realistic and indicates that the provisions of that regulation will be complied with, including for the stages of the journey which are to take place in the territory of third countries (judgment of 23 April 2015, Zuchtvieh-Export, C‑424/13 , EU:C:2015:259 , paragraph 56 ).

42Thus, in order to guarantee both the usefulness of those ex-ante checks carried out by the competent authority of the place of departure and the effectiveness of animal welfare, it is essential to require that that journey log be filled in throughout the journey, including the part of the journey between the exit point of the Union and the place of the first unloading in the third country of final destination.

43Third, it does indeed follow from point 7 of Annex II to Regulation No 1/2005 that, if animals covered by that regulation are exported to a third country, transporters must give the journey log to the official veterinarian at the exit point of the Union.

44Point 8 of Annex II to Regulation No 1/2005, however, shows that the regulation provides for the use of copies of the journey log. Such is also the case for the second sentence of the third subparagraph of Article 2(2) of Regulation No 817/2010.

45Furthermore, if point 3(e) of Annex II to Regulation No 1/2005 provides that, in case of export to a third country, the organiser must ensure that the journey log accompanies the animals during the journey at least until the exit point of the Union, that suggests that the organiser must continue to fill in a copy of that log until the place of the first unloading in the third country of final destination.

46Accordingly, the link which Regulation No 817/2010 establishes with Regulation No 1/2005 permits the inference that the copy of the journey log must perform the same function during transport to the place of the first unloading in the third country of final destination as the original version of the log during transport to the exit point of the Union.

47Given that it is for the person who is claiming the export refunds to prove that he has complied with the conditions arising under Articles 3 to 9 of Regulation No 1/2005 and the annexes mentioned therein, as well as with the provisions of Regulation No 817/2010, it follows from the foregoing that it is for him to complete a copy of the journey log until the checks of the animals by the veterinarian of the place of the first unloading in the third country of final destination and to permit the latter to verify whether he has satisfied the obligations laid down regarding the keeping of the journey log.

48It follows that Article 3(1) of Regulation No 817/2010 presupposes that the transporter will fill in a copy of the journey log until the arrival of the animals concerned at the place of the first unloading in the third country of final destination.

49In those circumstances, the answer to the questions referred is that Article 7 of Regulation No 817/2010, read in conjunction with Articles 3(1) and (2) and 2(2) of that regulation, and with points 3, 7 and 8 of Annex II to Regulation No 1/2005, must be interpreted as meaning that repayment of export refunds under Regulation No 817/2010 may be required where the transporter of bovine animals has not kept a copy of the journey log provided for in Annex II to Regulation No 1/2005 up to date until the place of the first unloading in the third country of final destination.

Costs

50Since 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.

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

Article 7 of Commission Regulation (EU) No 817/2010 of 16 September 2010 laying down detailed rules pursuant to Council Regulation (EC) No 1234/2007 as regards requirements for the granting of export refunds related to the welfare of live bovine animals during transport, read in conjunction with Articles 3(1) and (2) and 2(2) of Regulation No 817/2010, and with points 3, 7 and 8 of Annex II to Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97, must be interpreted as meaning that repayment of export refunds under Regulation No 817/2010 may be required where the transporter of bovine animals has not kept a copy of the journey log provided for in Annex II to Regulation No 1/2005 up to date until the place of the first unloading in the third country of final destination.

[Signatures]

( *1 ) Language of the case: Dutch.