Judgments nº C-141/15 of Court of Justice, March 09, 2017

Issuing Organization:Court of Justice
Decision Number:C-141/15
Resolution Date:March 09, 2017
 
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(Reference for a preliminary ruling - Regulation (EC) No 543/2008 - Article 15(1) - Article 16 - Frozen or quick-frozen chickens - Maximum limit for water content - Obsolescence of that limit - Practical measures for checks - Counter-analysis - Regulation No 612/2009 - Article 28 - Export refunds on agricultural products - Conditions for granting - Sound and fair marketable quality - Products marketable in normal conditions)

In Case C-141/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal administratif de Rennes (Administrative Court, Rennes, France) made by decision of 20 March 2015, received at the Court on 25 March 2015, in the proceedings

Doux SA, in administration,

v

Établissement national des produits de l’agriculture et de la mer (FranceAgriMer),

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, E. Juhász (Rapporteur), C. Vajda, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: E. Sharpston,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 3 March 2016,

after considering the observations submitted on behalf of:

- Doux SA, by J. Vogel, M. Leroy and M. Lantourne, lawyers,

- the French Government, by D. Colas and R. Coesme and by C. Candat and A. Daly, acting as Agents,

- the European Commission, by B. Schima and A. Lewis and by K. Skelly, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 September 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the provisions of Commission Regulation (EC) No 543/2008 of 16 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing standards for poultrymeat (OJ 2008 L 157, p. 46), as amended by Commission Implementing Regulation (EU) No 1239/2012 of 19 December 2012 (OJ 2012 L 350, p. 63) and 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), as amended by Commission Regulation (EU) No 173/2011 of 23 February 2011 (OJ 2011 L 49, p. 16).

2 The request has been made in proceedings between Doux SA, in administration, represented by Maitre Sophie Gautier and the SCP Valliot-Le Guenevé-Abittbol, acting as court appointed administrators and the Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) concerning the grant of refunds for export outside the European Union of batches of frozen and quick-frozen chickens.

Legal background

3 Article 15(1) of Regulation No 543/2008 provides as follows:

‘Without prejudice to Article 16(5) and Article 17(3), frozen and quick-frozen chickens may be marketed by way of business or trade within the [Union] only if the water content does not exceed the technically unavoidable values determined by the method of analysis described in Annex VI (drip method) or that in Annex VII (chemical method).’

4 Article 16 of that regulation provides:

‘1. Regular checks in accordance with Annex IX on the water absorbed or checks in accordance with Annex VI shall be carried out in the slaughterhouses at least once each working period of eight hours.

Where these checks reveal that the amount of water absorbed is greater than the total water content permitted under the terms of this Regulation, account being taken of the water absorbed by the carcases during the stages of processing which are not subject to checking, and where, in any case, the amount of water absorbed is greater than the levels referred to in point 10 of Annex IX, or in point 7 of Annex VI, the necessary technical adjustments shall be made immediately by the slaughterhouse to the process.

  1. In all cases referred to in the second subparagraph of paragraph 1 and in any case at least once every two months, checks on water content referred to in Article 15(1) shall be carried out, by sampling, on frozen and quick-frozen chickens from each slaughterhouse in accordance with Annex VI or VII, to be chosen by the competent authority of the Member State. These checks shall not be conducted for carcases in respect of which proof is provided to the satisfaction of the competent authority that they are intended exclusively for export.

  2. The checks referred to in paragraphs 1 and 2 shall be carried out by or under the responsibility of the competent authorities. The competent authorities may, in specific cases, apply the provisions of paragraph 1, and in particular of points 1 and 10 of Annex IX, and of paragraph 2 more stringently in respect of a given slaughterhouse, where this proves necessary to ensure compliance with the total water content permitted under this Regulation.

    They shall, in all cases where a batch of frozen or quick-frozen chickens was deemed not to comply with this Regulation, resume testing at the minimum frequency of checks referred to in paragraph 2 only after three successive checks according to Annex VI or VII, to be carried out by sampling from three different days of production within a maximum of four weeks, have shown negative results. The costs of these checks shall be paid by the slaughterhouse concerned.

  3. Where, in the case of air chilling, the results of checks referred to in paragraphs 1 and 2 show compliance with the criteria laid down in Annexes VI to IX during a period of six months, the frequency of the checks referred to in paragraph 1 may be reduced to once every month. Any failure to comply with the criteria laid down in these Annexes shall result in reinstatement of checks as referred to in paragraph 1.

  4. If the result of the checks referred to in paragraph 2 is in excess of the admissible limits, the batch concerned shall be deemed not to comply with this Regulation. In that event, however, the slaughterhouse concerned may request that a counter-analysis be carried out in the reference laboratory of the Member State, using a method to be chosen by the competent authority of the Member State. The costs of this counter-analysis shall be borne by the holder of the batch.

  5. Where the batch in question is deemed after such counter-analysis not to comply with this Regulation, the competent authority shall take the appropriate measures aimed at allowing it to be marketed as such within the [Union] only on condition that both individual and bulk packaging of the carcases concerned shall be marked by the slaughterhouse under the supervision of the competent authority with a tape or label bearing, in red capital letters, at least one of the indications set out in Annex X.

    The batch referred to in the first subparagraph shall remain under the supervision of the competent authority until it is dealt with in accordance with this paragraph or otherwise disposed of. If it is certified to the competent authority that the batch referred to in the first subparagraph is to be exported, the competent authority shall take all necessary measures to prevent the batch in question from being marketed within the [Union].

    The indications provided for in the first subparagraph shall be marked in a conspicuous place so as to be easily visible, clearly legible and indelible. They shall not in any way be hidden, obscured or interrupted by other written or pictorial matter. The letters shall be at least 1 cm high on the individual packaging and 2 cm on bulk packaging.’

    5 Article 18(2) of Regulation No 543/2008 provides:

    ‘The Member States shall adopt the practical measures for the checks provided for in Articles 15, 16 and 17 at all stages of marketing, including checks on imports from third countries at the time of customs clearance in accordance with Annexes VI and VII. They shall inform the other Member States and the Commission of these measures. Any changes to the measures shall be communicated immediately to the other Member States and to the Commission.’

    6 Annex VI of that regulation, entitled ‘Determination of thaw loss (Drip test)’, provides in point 7 thereof, headed ‘Evaluation of result’:

    ‘If the average water loss on thawing...

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