Official Journal of the European Union EN 23.8.2003 C 200/7
1. Commission Regulation (EEC) No 3665/87 of 27 November
1987 laying down common detailed rules for the application ofthe system of export refunds on agricultural products, asamended by Commission Regulation (EC) No 1829/94 of26 July 1994 imposes no limit on the length of time by which
a time-limit may be extended for the benefit of an exporter
under Article 47(4) of the regulation. It is for the competentnational authorities to set the length of extensions of time inaccordance with the particular circumstances of the case, takingparticular account of the degree of diligence with which the
exporter seeking the extension of time has acted, the nature of
the difficulties confronting the exporter and the amount of timewhich it will reasonably take to overcome those difficulties.
2. Exporters have no right to apply directly to national courts for
an extension of time of a specific duration but do have a legal
right of recourse against decisions taken by competent national
authorities under Article 47(4) of Regulation No 3665/87, asamended by Regulation No 1829/94. The detailed rules andparameters of any such procedure shall be governed by thenational law of the Member States, in accordance with theprinciples of effectiveness and equivalence as defined in Commu-
nity law.
(1) OJ C 44 of 16.2.2002.
Reference for a preliminary ruling by the SozialgerichtStuttgart by order of that Court of 19 March 2003 in the
case of Betriebskrankenkasse der Robert Bosch GmbHagainst Federal Republic of Germany, represented by the
Bundesversicherungsamt
(Case C-193/03)
(2003/C 200/12)
Reference has been made to the Court of Justice of the
European Communities by order of the Sozialgericht Stuttgart(Social Court, Stuttgart) of 19 March 2003, received at theCourt Registry on 9 May 2003, for a preliminary ruling in thecase of Betriebskrankenkasse der Robert Bosch GmbH against
Federal Republic of Germany, represented by the Bundesversi-
cherungsamt on the following question:
Whether Article 34 of Regulation (EEC) No 574/72 (
1)
precludes a practice, in implementation of Paragraph 13(3)SGB V, of flat-rate reimbursement by an insurer of costs formedical treatment in another Community country, on themodel of similar provisions on small amounts.
(1) OJ L 74 of 27.3.1972, p. 1.Action brought on 13 May 2003 by Ireland against the
Commission of the European Communities
(Case C-199/03)
(2003/C 200/13)
An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 13 May 2003 by Ireland, represented by
D. J. O'Hagan, acting as agent, assisted by P. Gallagher SC andP. McGarry, Barrister, with an address for service in Luxem-bourg.
The Applicant claims that the Court should:1. declare the action admissible;
2. annul Commission Decision C(2003)99 reducing assis-
tance granted from the European Social Fund underCommission Decisions C(94)3226 of 29 November 1994
(operational programme for human resources develop-
ment) in the framework of the project 940002IR1;C(94)1972 of 29 July 1994 (operational programme fortourism), in the framework of the project 940001IR1;C(94)2613 of 15 November 1994 (operational programme
for industrial development), in the framework of the
project 940004IR1, approving operational programmesunder objective 1 in Ireland, in whole or in part, or inrespect of such periods or amounts as the Court shoulddetermine;
3. order the Commission to bear the costs of the proceed-
ings.
Pleas in law and main arguments
1. The Applicant submits that it is apparent from the
contested decision that the Commission manifestly failedto properly consider the evidence furnished by Ireland
which unambiguously demonstrated that in fact there was
no overpayment or overfinancing in relation to ESFeligible projects. Because of a mistaken characterisationof the exercise carried out by Ireland to demonstrate thatno such claim of overpayment or overfinancing occurred,and because of its mistaken belief that the evidence
adduced by Ireland somehow would have an impact on
the financial tables, the Commission failed to properlyconsider the evidence and drew incorrect conclusionsfrom certain elements.
Official Journal of the European Union EN 23.8.2003 C 200/8
The Commission's analysis ignored its obligation, before
claiming overpayment or overfinancing had occurred, totake into account the actual costs of the eligible projectsand the actual matching co-funding and the correctexchange calculations from the Irish authorities before
determining whether Ireland breached the 75 % ESF
funding limit.
2. It is submitted that the failure of the Commission to
accept the Applicant's explanations in this case amounts
to a breach of a fundamental rule of law relating to theoperation of the structural funds and the principles iden-tified by the Commission in the context of the Decision.
3. It is submitted that the approach adopted by the Commis-
sion is out of all proportion to the result intended to beachieved having regard to the ongoing efficacy of theprojects in issue and the nature of the project beneficiary.
Such an approach effectively amounts to the imposition
of a penalty in circumstances where the beneficiary isinnocent of any wrongdoing.
4. Finally, it is submitted that the Commission's approach
fails to respect the principles of legal certainty andlegitimate expectations.
Reference for a preliminary ruling by the Oberverwal-tungsgericht für das Land Nordrhein-Westfalen by orderof that Court of 7 May 2003 in the administrative
proceedings between HLH Warenvertriebs GmbH and
Bundesrepublik Deutschland; Intervener: The representa-tive of the public interest at the Oberverwaltungsgericht
für das Land Nordrhein-Westfalen
(Case C-211/03)
(2003/C 200/14)
Reference has been made to the Court of Justice of the
European Communities by order of the Oberverwaltungsge-
richt für das Land Nordrhein-Westfalen (Higher AdministrativeCourt for the Land of Nordrhein-Westfalen) of 7 May 2003,
received at the Court Registry on 15 May 2003, for a preli-minary ruling in the administrative proceedings between HLH
Warenvertriebs GmbH and Bundesrepublik Deutschland; Inter-
vener: The representative of the public interest at the Oberver-waltungsgericht für das Land Nordrhein-Westfalen (HigherAdministrative Court for the Land of Nordrhein-Westfalen) on
the following questions:
A. 1. Is the contested product
‘Lactobact omni FOS ’
a foodstuff (perhaps in the form of a food supple-
ment) or a medicinal product? Is this finding bindingon all the Member States?
2. Is it relevant when classifying the product that,
according to the directions for use, it is intended tobe dissolved in water or in yoghurt? Or is thecondition in which it is imported the determining
factor?
3. If the Court of Justice concludes that the product in
question is medicinal, but that in those MemberStates where it has hitherto been regarded as afoodstuff it should continue to be a foodstuff, thatraises problems for the referring Chamber such as
those underlying the questions in B VI, in conjunc-
tion with those in B III. Reference is made to thosequestions and the observations thereon and ananswer is requested.
4. If ‘Lactobact omni FOS ’is a foodstuff (food supple-
ment), is it then a novel food within the meaning ofRegulation (EC) No 258/97 of the European Parlia-ment and of the Council of 27 January 1997
concerning novel foods and novel food ingredients
(OJ 1997 L43, p. 1, ‘the Novel Foods Regulation ’)?
What is the relationship between the various legalbases?
B In the event that —as has been the case hitherto —the
questions (as to classification) posed in section A aboveare to be answered not by the Court of Justice but by thenational courts, guidance is none the less sought on how
correctly to resolve the questions in A 2 from a Commu-
nity law standpoint, in so far as Community law isapplicable.
In addition the following questions arise:
I a) Is the contested product to be classified
according to Article 2, subparagraphs (1) and
(2), in conjunction with Article 2,subparagraph (3)(d), of Regulation (EC)No 178/2002 of the European Parliament andof the Council of 28 January 2002 laying downthe general principles and requirements of food
law, establishing the European Food Safety
Authority and laying down procedures inmatters of food safety (OJ 2002 L31, p. 1, ‘the
Basic Regulation ’), or —once the period for
transposition expires on 31 July 2003 —
according to Directive 2002/46/EC of the
European Parliament and of the Council of10 June 2002 on the approximation of thelaws of the Member States relating to foodsupplements (OJ 2002 L 183, p. 51, ‘the Food
Supplements Directive ’), and if so according to
which parts of the directive?
b) If Article 2, subparagraphs (1) and (2), in
conjunction with Article 2, subparagraph (3)(d),
of the Basic Regulation applies, the followingquestion arises: is it the case that it is no longerthe product's main (objective) purpose that isthe decisive factor, but rather that a productwhich meets the criteria for both a food and a
medicine is, legally speaking, always —and
only —a medicinal product? How material for
these purposes is the type of product and howmaterial the individual product?