Proportionality and the transport of live animals for sale beyond the borders of the EC underpin a joint request for a preliminary ruling under art.234 EC, when on this occasion two claims were brought before the Finanzgericht (Fiscal Court) Hamburg by livestock exporters refused export refunds on grounds that the manner in which they were transported breached Community law.
In the first claim it was found that while art.1 of Regulation 615/98/EC determines the criteria in which a business can claim export cost refunds, it was applied in conjunction with art.3(1) of Directive 91/628/EEC, which outlined animal travel-time limitations and further governance of their physical wellbeing through nutrition and hydration.
Upon submission of their paperwork the Hauptzollamt Kiel (Customs Office) discovered that contrary to the prescribed rest periods set out under art.48(5) of Chapter VII of the Annexe to Directive 91/628/EEC the animals had been given insufficient treatment to meet the terms set, while the claimants contested they had been acting under instruction of the official veterinarian at the outset of the journey.
In the second claim it was found that while advanced reimbursement of export costs had been granted prior to the animals exportation, the subsequent paperwork revealed how the latter half of the drive had exceeded the fourteen-hour threshold found in the same Annexe of Directive 91/628/EEC and thereby rendered them void of any refund and the Customs Office seeking recovery of payment with interest.
When presented with the material facts the Finanzgericht asked the European Court of Justice:
1. Did the power of Regulation 615/98/EC enable jurisdiction over the terms of Directive 91/628/EEC?
2. If so, was it tantamount to a violation of the principle of proportionality inasmuch as the terms of a Directive must override any subsidiary limitations (i.e. refusal of export costs in lieu of a breach)?
Having examined the case history behind both concerns it was agreed by the Court that while Regulation 615/98/EC ran parallel to the Directive, its purpose was purely animal protection and the enforcement of Member State conformity, while it was also agreed that this caveat served legal certainty and so complimented the Directive’s objectives.
In relation to the matter of Community law ‘proportionality’ it was held that while the terms of Regulation 615/98/EC conferred a right to deny export cost refunds, it was executed with the express intention that national courts and legislature applied discretion when determining a claimant’s right to recover costs where no animal had been harmed, thus the Court urged the parties to remember that:
“[W]hen there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.”