Pfotenhilfe-Ungarn (Judgment) [2015] EUECJ C-301/14 (03 December 2015)

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(Reference for a preliminary ruling — Regulation (EC) No 1/2005 — Article 1(5) — Protection of animals during transport — Transport of stray dogs from one Member State to another by an animal protection association — Concept of ‘economic activity’ — Directive 90/425/EEC — Article 12 — Concept of ‘dealers engaging in intra-Community trade’)

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany), made by decision of 9 April 2014, received at the Court on 24 June 2014, in the proceedings

Ministerium für Energiewende, Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein,

composed of L. Bay Larsen, President of the Third Chamber, acting as President of the Fourth Chamber, J. Malenovský, M. Safjan, A. Prechal (Rapporteur) and K. Jürimäe, Judges,

having regard to the written procedure and further to the hearing on 3 June 2015,

– the Ministerium für Energiewende, Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein, by W. Ewer, Rechtsanwalt,

– the Italian Government, by G. Palmieri, acting as Agent, and F. Urbani Neri, avvocato dello Stato,

after hearing the Opinion of the Advocate General at the sitting on 10 September 2015,

1 This request for a preliminary ruling concerns the interpretation of Article 1(5) 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 Article 12 of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zoo technical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224, p. 29), as amended by Council Directive 92/60/EEC of 30 June 1992 (OJ 1992 L 268, p. 75, ‘Directive 90/425’).

2 The request has been made in proceedings between Pfotenhilfe-Ungarn e.V.(‘Pfotenhilfe-Ungarn’), an association for the protection of animals, and the Ministerium für Energiewende, Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein, (Ministry of Energy Transition, Agriculture, Environment and Rural Areas of the Land Schleswig-Holstein) (‘the Ministry’) concerning the latter’s decision to subject Pfotenhilfe-Ungarn to the notification and registration obligations laid down by the national legislation relating to animal health, following a cross-border transport of dogs by that association.

‘(2) Under Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport [and amending Directives 90/425 and 91/496/EEC (OJ 1991 L 340, p. 17), amended by Regulation (EC) No 806/2003 of 14 April 2003 (OJ 2003 L 122, p. 1, Directive 91/628)], the Council has adopted rules in the field of the transport of animals in order to eliminate technical barriers to trade in live animals and to allow market organisations to operate smoothly, while ensuring a satisfactory level of protection for the animals concerned.

(12) Transport for commercial purposes is not limited to transport where an immediate exchange of money, goods or services takes place. Transport for commercial purposes includes, in particular, transport which directly or indirectly involves or aims at a financial gain.

(21) Registered Equidae, as defined in Article 2(c) of [Council Directive 90/426/EEC of 26 June 1990 on animal health conditions governing the movement and import from third countries of equidae (OJ 1990 L 224, p. 42), amended by Directive 2004/68/EC (OJ 2004 L 139, p. 321)], are frequently transported for non-commercial purposes and such transports must be carried out in line with the overall objectives of this Regulation. Having regard to the nature of such movements, it appears appropriate to derogate from certain provisions where registered Equidae are transported for competition, races, cultural events or breeding.

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

5. This Regulation shall not apply to the transport of animals which does not take place in connection with an economic activity …’

‘Directive 91/628 ... shall be repealed from 5 January 2007. References to the repealed Directive ... shall be construed as references to this Regulation.’

6 The second to sixth recitals in the preamble to Directive 90/425 are worded as follows:

‘Whereas the harmonious operation of the common organisation of the market in animals and products of animal origin implies the dismantling of zoo technical and veterinary barriers to the development of intra-Community trade in the animals and products concerned; whereas, in this respect, the free movement of animals and agricultural products is a fundamental feature of the common organisation of markets and should facilitate the rational development of agricultural production and the optimum use of the factors of production;

Whereas, in the veterinary field, frontiers are currently being used for carrying out checks aimed at safeguarding public health and animal health;

Whereas the ultimate aim is to ensure that veterinary checks are carried out at the place of dispatch only; whereas the attainment of this objective implies the harmonisation of the basic requirements relating to the safeguarding of animal health;

Whereas, with a view to the completion of the internal market, pending the attainment of this objective, emphasis should be placed on the checks to be carried out at the place of dispatch and in organising those that could be carried out at the place of destination; whereas such a solution would entail the suspension of veterinary checks at the Community’s internal frontiers and whereas, in this context, there is good reason for retaining a health certificate or an identification document, as provided for in Community rules;

‘Member States shall ensure that the veterinary checks to be carried out on live animals and products which are covered by the Directives listed in Annex A or on those referred to in the first paragraph of Article 21 and which are intended for trade are no longer carried out, without prejudice to Article 7, at frontiers but are carried out in accordance with this Directive.

This Directive shall not apply to veterinary checks on movements between Member States of pets accompanied by and under the responsibility of a natural person, where such movements are not the subject of a commercial transaction.’

(3) “trade” shall mean trade between Member States within the meaning of Article 9 (2) of the [EEC] Treaty;

‘Member States shall ensure that all dealers engaging in intra-Community trade in the animals and/or products covered by Article 1:

(a) are required, at the request of the competent authority, to register beforehand in an official register;

(b) keep a record of deliveries and, for the consignees referred to in Article 5 (1)(b)(iii), of the subsequent destination of the animals and products.

The said record shall be preserved for a period to be determined by the competent national authority so that it can be presented to the competent authority on request.’

10 Annex A to Directive 90/425 lists, in particular, the directives which provide for veterinary checks to be carried out on live animals and which must be carried out in accordance with the provisions of that directive. The legislation cited includes Directive 91/628.

11 Regulation (EC) No 998/2003 of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC (OJ 2003 L 146, p. 1) was repealed by Regulation (EU) No 576/2013 of the European Parliament and of the Council of 12 June 2013 on the non-commercial movement of pet animals (OJ 2013 L 178, p. 1). However, taking account of the date of the facts in the main proceedings, it is Regulation No 998/2003 which is applicable to them. Article 1 of that regulation provided as follows:

‘This Regulation lays down the animal health requirements applicable to the non-commercial movement of pet animals and the rules applying to checks on such movement.’

‘This Regulation applies to the movement between Member States or from third countries of pet animals of the species listed in Annex I.’

(a) “pet animals” means animals of the species listed in Annex I which are accompanying their owners or a natural person responsible for such animals on behalf of the owner during their movement and are not intended to be sold or transferred to another owner;

14 Among the animal species mentioned in Part A of Annex 1 to Regulation No 998/2003 is dogs.

15 Paragraph 4 of the Order on Protection against Animal Diseases in the Internal Market (Binnenmarkt-Tierseuchenschutzverordnung) (‘the Order on Protection against Animal Diseases’), which is intended to transpose, inter alia, Article 12(a) of Directive 90/425, provides as follows:

1. to move within or import into the Community animals or any of the goods referred to in Annex 1; or

2. to transport domesticated cloven-hoofed animals as part of movements within or imports into the Community shall notify his intention to do so to the competent authority before engaging in that activity. This shall not apply to firms that require authorisation in accordance with Paragraph 15(1) or (3) or Paragraph 14 of the Fischseuchen-Verordnung (Regulation on Fish Diseases) or to firms which have been registered or approved in another Member State on account of an activity as provided for in the first sentence. The competent authority shall enter firms so notified in a register and issue them with a registration number.’

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

16 Pfotenhilfe-Ungarn is a registered association recognised as a charity for the purposes of national tax law whose purpose is both to promote animal protection and actively to protect them. Among other things, it advertises, via its website, stray dogs in need of re-homing which, for the most part, have been kept at the facilities of animal protection associations in Hungary. When a person wishes to adopt a dog Pfotenhilfe-Ungarn concludes a ‘protection contract’ with him, by which that person undertakes to take responsible care of the animal and to pay a fee which is usually EUR 270. After the contract has been concluded, the dogs concerned are transported to Germany by members of Pfotenhife-Ungarn, where they are handed over to the persons who have agreed to adopt them. However, there is no transfer of ownership to those persons and, in the event of a breach of the ‘protection contract’, Pfotenhilfe-Ungarn may exercise the right to withdraw from the contract. The applicant re-homed over 2 000 dogs in this way between 2007 and 2012.

17 On 29 December 2009, Pfotenhilfe-Ungarn transported a group of 39 dogs from Hungary to Germany. Since there were doubts about the health and vaccination status of one of the dogs transported, the Ministry a sent circular, ordering the local veterinary authorities to check all the animals from that consignment.

18 In that connection, the Ministry took the view that Pfotenhilfe-Ungarn could not rely on the animal health conditions applicable to the non-commercial transport of pet animals provided for by Regulation No 998/2003, on the ground that the transport and re-homing of animals that it organises is an economic activity. Accordingly, it is the provisions of Regulation No 1/2005 which are applicable, so that Pfotenhilfe-Ungarn is required to comply with the notification and registration obligations laid down by the national rules on animal health, and in particular by Paragraph 4 of the Order on Protection against Animal Diseases.

19 The appeal brought by Pfotenhilfe-Ungarn against the Ministry’s decision was dismissed by the Verwaltungsgericht (Adminstrative Court). The Oberverwaltungsgericht (Higher Administrative Court) also dismissed Pfotenhilfe-Ungarn’s appeal against that judgment. Pfotenhilfe-Ungarn then brought an appeal on a point of law against that judgment before the referring court, namely the Bundesverwaltungsgericht (Federal Administrative Court).

20 The referring court asks, first, whether the application of Regulation No 1/2005 to the dispute before it is excluded since, under Article 1(5) thereof, that regulation ‘does not apply, inter alia, to the transport of animals which does not take place in connection with an economic activity’. More specifically, the referring court is unsure as to the scope to be given to the concept of ‘economic activity’ in that provision, and as to the relevance of the existence of profit or a commercial motive in that regard, in particular in the light of recitals 12 and 21 of that regulation.

21 Second, the referring court wishes to know in what circumstances a person may be classified as ‘[a dealer] engaging in intra-Community trade’ within the meaning of Article 12 of Directive 90/435 (‘Unternehmer’ in the German language version of that directive). According to the referring court, there is no doubt that Pfotenhilfe-Ungarn conducts inter-Community trade within the meaning of that provision. However, it is uncertain as to whether that association may be classified as an ‘undertaking’ (‘Unternehmen’ in the German language version), since the case-law of the Court of Justice requires the pursuit of economic activity in that regard.

22 In those circumstances, the Bundesverwaltungsgericht (Federal Adminstrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is there a transport of animals which does not take place in connection with an economic activity within the meaning of Article 1(5) of Regulation (EC) No 1/2005 where that transport is effected by an animal protection association recognised as charitable and serves to place stray dogs with third parties for a remuneration (‘Schutzgebühr’ “fee”) which:

(a) is less than the costs which the association incurs in connection with the animal, the transport and the placing, or just covers these; or

(b) is greater than those costs but the profit serves to finance the outstanding costs of placing other stray animals and the costs connected with stray animals or other animal protection projects?

2. Is an animal protection association recognised as charitable to be regarded as a dealer engaging in intra-Community trade within the meaning of Article 12 of Directive 90/425 where it transports stray dogs to Germany and re-homes them with third parties for a remuneration (“fee”) which:

(a) is less than the costs which the association incurs in connection with the animal, the transport and the placing, or just covers these; or

(b) is greater than those costs but the profit serves to finance the outstanding costs of re-homing other stray animals and the costs connected with stray animals or other animal protection projects?’

23 By its first question, the referring court asks essentially whether the concept of ‘economic activity’ within the meaning of Article 1(5) of Regulation No 1/2005 must be interpreted as meaning that it covers an activity such as that at issue in the main proceedings, concerning the transport of stray dogs from one Member State to another by a charitable association, in order to give those dogs to the persons who have agreed to adopt them by payment of a sum which in principle covers the costs incurred for that purpose by the association.

24 In that connection, it should be noted at the outset that Regulation No 1/2005 does not define the scope of the concept of ‘economic activity’. In the absence of a definition of such as concept of EU law, it must be interpreted inter alia, in the light of its context and the objectives pursued by the EU legislature (see, to that effect, judgment in Szatmari Malom, C‑135/13, EU:C:2013:327, paragraph 31 and the case-law cited).

25 As regards, first, the context in which that concept appears, it must be observed that, according to Article 1(5) of Regulation No 1/2005, the latter ‘shall not apply to the transport of animals which does not take place in connection with an economic activity’. That provision does not distinguish economic activities seeking to make a profit from those which are not for profit.

26 However, recital 12 in the preamble to Regulation No 1/2005 states that transport for commercial purposes is not limited to transport where an immediate exchange of money, goods or services takes place, but includes, in particular, transport which directly or indirectly involves or aims at a financial gain. However, contrary to the arguments of Pfotenhilfe-Ungarn in its written submissions, it cannot be inferred from that recital that an economic activity requires the existence of or the intention to make a profit.

27 It follows from recital 21 in the preamble to that regulation that it is conceivable that even transports which are not for profit may, in certain cases, be regarded as being an economic activity within the meaning of Article 1(5) of Regulation No 1/2005. As that recital states, equidae are in fact frequently transported for non-commercial reasons, in particular, in order to participate in races or cultural events. Those transports, although they are non-commercial must, in principle, be carried out in accordance with the provisions of that regulation.

29 The legal basis for that regulation is Article 37 EC (now Article 43 TFEU) and it therefore falls within internal market policy. According to the Court’s settled case-law, the importation of goods or the provision of services for remuneration are to be regarded as ‘economic activities’ within the meaning of the Treaty (see to that effect, judgments in Schindler, C‑275/92, EU:C:1994:119, paragraph 19; Meca-Medina and Majcen v Commission, C‑519/04 P, EU:C:2006:492, paragraphs 22 and 23; and Olympic Lyonnais, C‑325/08, EU:C:2010:143, paragraphs 27 and 28). The decisive factor which enables an activity to be regarded as having an economic character, is the fact that the activity must not be provided for nothing (see, to that effect, judgment in Jundt, C‑281/06, EU:C:2007:816, paragraph 32).

30 However, for an activity to be classified as economic, it is not necessary that it is carried out for profit (see to that effect, judgments in Smits and Peerbooms, C‑157/99, EU:C:2001:404, paragraphs 50 and 52, and Jundt, C‑281/06, EU:C:2007:815, paragraph 33).

31 It follows that an activity, such as that at issue in the main proceedings, involving the frequent transport of a large number of dogs, by a charitable association in order to bring those animals to persons who adopt them on the basis of a contract providing, inter alia, for the payment of a sum of money to that association, is performed in connection with an economic activity, within the meaning of Article 1(5) of Regulation No 1/2005, even if that association does not seek to make a profit or make a profit.

32 That finding is not called into question by the fact that full ownership of the dogs is not transferred to the persons with whom they are placed. In any event, activities such as those of Pfotenhilfe-Ungarn may be regarded as a supply of services to those persons and, therefore, as ‘economic activities’ within the meaning of Article 1(5) of Regulation No 1/2005.

33 Second, that interpretation is confirmed by the objectives pursued by Regulation No 1/2005, namely the protection of animals during transport, which is the main objective of that regulation, the elimination of technical barriers to trade in live animals and the smooth operation of market organisations, set out in recital 2 in the preamble thereto (see, to that effect, judgment in Danske Svineproducenter, C‑316/10, EU:C:2011:863, paragraph 44).

34 Having regard to those objectives, the concept of economic activity cannot be interpreted restrictively. Limiting the scope of Regulation No 1/2005 to economic activities performed for profit, as the Advocate General observed in point 53 of her Opinion, risks jeopardising that regulation’s main objective, as set out in the preceding paragraph of this judgment.

35 It follows that the concept of ‘economic activity’ within the meaning of Article 1(5) of Regulation No 1/2005, must be interpreted as meaning that it covers an activity, such as that at issue in the main proceedings, relating to the transport of stray dogs from one Member State to another by a charitable association in order to hand over those dogs to persons who have undertaken to adopt them after payment by those persons of a sum covering, in principle, the costs incurred for that purpose by that association.

36 By its second question, the referring court asks whether the concept of ‘dealers engaging in inter-Community trade’ within the meaning of Article 12 of Directive 90/425 must be interpreted as meaning that it refers to a charitable association which transports stray dogs from one Member State to another with the aim of handing over those dogs to persons who have agreed to adopt them after payment of a sum covering, in principle, the costs incurred for that purpose by that association.

37 It must be determined, first, whether Directive 90/425 applies to a case such as that at issue in the main proceedings.

38 According to Article 1, fourth paragraph, that directive does not apply to veterinary checks on movements between Member States of pets accompanied by and under the responsibility of a natural person, where such movements are not the subject of a commercial transaction. Those movements are governed by Regulation No 998/2003, in so far as the animals which are accompanying their owners or a natural person responsible for them on behalf of the owner during their movement and are not intended to be sold or transferred to another owner.

39 In that connection it must be stated that the derogation laid down by Article 1, fourth paragraph, of Directive 90/425 states that the pet must be accompanied by a natural person responsible for the animal during its movement. Transport under the responsibility of a legal person is not, therefore, taken into consideration for the purpose of that derogation. The national court must make the necessary checks in that regard.

40 In any event, that derogation concerns only movements between Member States of pets which are non-commercial in nature. Although a recognised charity such as Pfotenhilfe-Ungarn is a not-for-profit and non-commercial association, there is, as the Advocate General noted, in point 57 of her Opinion, a certain degree of substitution between the activity which consists in placing dogs with persons who have committed themselves to adopting them after the payment of a certain amount and selling dogs in a pet shop. The first type of activity cannot, therefore, be regarded as devoid of any commercial character within the remaining of Article 1, fourth paragraph, of Directive 90/425.

41 Consequently, the dispute in the main proceedings falls within the scope of Directive 90/425.

42 Thus, secondly, it must be determined whether a recognised charitable association such as Pfotenhilfe-Ungarn may be regarded as a dealer ‘engaging in inter-Community trade’ of the animals within the meaning of Article 12 of Directive 90/425.

43 It is apparent from the order for reference that the referring court, by referring to the German version of the concept of ‘dealer’ (‘Unternehmer’) asks whether that concept means the same as the concept ‘undertaking ‘ (‘Unternehmen’), so that, according to that court, only persons pursuing economic activities may be classified as ‘dealers’.

44 It is true that certain language versions of Directive 90/425 use a term suggesting the pursuit of an economic activity as the Advocate General observed, in point 62 of her Opinion, a profit motive, in particular ‘Unternehmer’, ‘dealers’, ‘handelaars’ and ‘handlare’, respectively in the German, English, Dutch and Swedish-language versions, which use the terms. None the less, other language versions of that directive, such as, in particular, the Spanish (‘agentes’), Danish (‘erhvervsdrivende’), French (‘opérateurs’), Italian (‘operatori’), Portuguese (‘operadores’) and Romanian (‘operatorii’) language versions use a term which is more neutral and general in scope.

45 That being said, the concept of ‘dealer’ is not a separate condition, the relevant criterion for the applicability of Article 12 of Directive 90/425 being the activities pursued by the dealer, namely ‘intra-Community trade’.

46 As regards the latter concept, it is clear from Article 2(3) of Directive 90/425 that it concerns trade between Member States within the meaning of Article 28(1) TFEU. According to the latter provision, which is to be found in Title II on the free movement of goods, the customs union covers all trade in goods.

47 The Court has consistently held that ‘goods’ for the purposes of that provision means goods which can be valued in money and which are capable, as such, of forming the subject of commercial transactions (see, to that effect, judgment in Commission v Italy, 7/66, EU:C:1968:51, p. 428). That definition includes animals (see, to that effect, judgment in Commission v Belgium, C‑100/08, EU;C:2009:537, paragraph 83). As the Advocate General noted in point 63 of her Opinion, the provisions of the FEU Treaty on free movement of goods apply irrespective of whether the goods concerned are being transported across national frontiers for the purposes of sale or resale, or rather for personal use or consumption (see, to that effect, judgment in Schumacher, 215/87, EU:C:1989:111, paragraph 23).

48 Accordingly, the fact that the activity pursued by the dealer is for profit is not decisive in order for it to be classified as ‘intra-Community trade’ within the meaning of Article 12 of Directive 90/425.

49 Finally, according to recitals 2 to 4 thereto, that directive is designed to establish the internal market, dismantling the barriers to the development of intra-Community trade in animals by limiting, in particular, veterinary checks to the place of dispatch, which implies the harmonisation of the basic requirements relating to the safeguarding of animal health.

50 Thus, Article 12 of Directive 90/425 must be interpreted as meaning that all dealers engaging in intra-Community trade in animals concerned are required, at the request of the competent authority, to register beforehand in an official register; to keep a record of deliveries in the light of that objective. The official register of dealers and the register of deliveries enable the competent authorities, both in the Member State of origin and the Member State of destination, to carry out regular veterinary checks and random veterinary checks necessary in order to achieve the objectives of that directive.

51 In a situation such as that at issue in the main proceedings, in which a large number of stray dogs, which, as Pfotenhilfe-Ungarn and the European Commission observed at the hearing before the Court, are not generally in such good health as other dogs, are transported together from one Member State to another, the objective pursued by Directive 80/425, of dismantling barriers to the development of inter-Community trade in animals and the harmonisation of the rules on the protection of public and animal health could not be attained if Article 12 of that directive did not apply to such a situation.

52 Therefore, the answer to the second question is that the concept of ‘dealers engaging in intra-Community trade’ within the meaning of Article 12 of Directive 90/425, must be interpreted as meaning that it covers inter alia, to a charitable association which transports stray dogs from one Member State to another in order to give those dogs to persons who have agreed to adopt them after they have paid a sum covering in principle the costs incurred for that purpose by that association.

53 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.

1. The concept of ‘economic activity’ within the meaning of Article 1(5) 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, must be interpreted as meaning that it covers an activity, such as that at issue in the main proceedings, relating to the transport of stray dogs from one Member State to another by a charitable association in order to hand over those dogs to persons who have undertaken to adopt them after payment by those persons of a sum covering, in principle, the costs incurred for that purpose by that association.

2. The concept of ‘dealers engaging in intra-Community trade’ within the meaning of Article 12 of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zoo technical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market, as amended by Council Directive 92/60/EEC of 30 June 1992, must be interpreted as meaning that it covers inter alia, a charitable association which transports stray dogs from one Member State to another in order to give those dogs to persons who have agreed to adopt them after they have paid a sum covering in principle the costs incurred for that purpose by that association.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Pfotenhilfe-Ungarn (Judgment) [2015] EUECJ C-301/14 (03 December 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C30114.html Cite as: ECLI:EU:C:2015:793, EU:C:2015:793, [2015] EUECJ C-301/14

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