Judgment of the Court (Fifth Chamber) 11 July 2002 in Case C-210/00 (Reference for a preliminary ruling from the Bundesfinanzhof): Käserei Champignon Hofmeister GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (Agriculture — Export refunds — False declaration — Penalty — Validity of point (a) of the first subparagraph of Article 11(1) of Regulation (EEC) No 3665/87, as amended by Regulation (EC) No 2945/94 — Concept of "force majeure")
Date: 2002-09-28
Institutions: Court of Justice
Subjects: Germany, agricultural product, export refund, interpretation of the law

C 233/8

EN

Official Journal of the European Communities

28.9.2002

preliminary ruling in the proceedings pending before that
court between Flightline Ltd and Secretário de Estado dos
Transportes e Communicações, Transportes Aéreos Portugue-
ses SA (TAP), on the interpretation of Articles 3(2) and 4(1)(a)
and (d) of Council Regulation (EEC) No 2408/92 of 23 July
1992 on access for Community air carriers to intra-Com-
munity air routes (OJ 1992 L 240, p. 8) and Article 1(e) of
Commission Decision 94/698/EC of 6 July 1994 concerning
increase in capital, credit guarantees and tax exemption in
favour of TAP (Transportes Aéreos Portugueses) (OJ 1994
L 279, p. 29), the Court (Sixth Chamber), composed of:
F. Macken (Rapporteur), President of the Chamber, C. Gul-
mann, R. Schintgen, V. Skouris and J. N. Cunha Rodríguez,
Judges; S. Alber, Advocate General; H. A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
9 July 2002, in which it has ruled:

1.

2.

The exercise by a Member State of the rights and powers laid
down in Article 4 of Council Regulation (EEC) No 2408/92
of 23 July 1992 on access for Community air carriers to intra-
Community air routes does not presuppose or mean that that
Member State must waive its right under Article 3(2) of that
regulation to restrict competition until 1 April 1997 in
cabotage services within its territory.

In a public tender procedure organised in 1995 for the provision
of scheduled air services on a route subject to public service
obligations imposed on that route under Article 4 of Regulation
No 2408/92, a Member State was entitled to require air
carriers licensed by another Member State which submitted bids
to meet the conditions laid down in Article 3(2) of that
regulation, provided that the invitation to tender did not
continue to have effect beyond 1 April 1997.

3. Article 1(e) of Commission Decision 94/698/EC of 6 July
1994 concerning increase in capital, credit guarantees and tax
exemption in favour of TAP, which makes approval of the aid
for which it provides subject to the condition that the Portuguese
Republic honour its undertaking to apply Article 4 of Regu-
lation No 2408/92 to the autonomous regions of Madeira
and the Azores with effect from 1 January 1996 at the latest
and publish the public service obligations for the routes in
question, does not preclude that Member State from exercising
its right under Article 3(2) of that regulation.

( 1) OJ C 192 of 8.7.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

11 July 2002

in Case C-210/00 (Reference for a preliminary ruling from
the Bundesfinanzhof): Käserei Champignon Hofmeister
GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (1)

(Agriculture — Export refunds — False declaration —
Penalty — Validity of point (a) of the first subparagraph of
Article 11(1) of Regulation (EEC) No 3665/87, as amended
by Regulation (EC) No 2945/94 — Concept of ‘force
majeure’)

(2002/C 233/12)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(a) of

In Case C-210/00: Reference to the Court under Article 234
EC, by the Bundesfinanzhof (Germany) for a preliminary ruling
in the proceedings pending before that court between Käserei
Champignon Hofmeister GmbH & Co. KG and Hauptzollamt
the first
Hamburg-Jonas, on the validity of point
subparagraph of Article 11(1) of Regulation (EEC) No 3665/
87 of 27 November 1987 laying down common detailed rules
for the application of
the system of export refunds on
agricultural products (OJ 1987 L 351, p. 1), as amended by
Commission Regulation (EC) No 2945/94 of 2 December
1994 (OJ 1994 L 310, p. 57), and on the interpretation of the
concept of ‘force majeure’
in the first indent of the third
subparagraph of Article 11(1) of the same regulation, the
Court (Fifth Chamber), composed of: D. A. O. Edward, acting
for the President of the Fifth Chamber, A. La Pergola and
C. W. A. Timmermans (Rapporteur), Judges; C. Stix-Hackl,
Advocate General; H. A. Rühl, Principal Administrator, for the
Registrar has given a judgment on 11 July 2002, in which it
has ruled:

1.

Examination of the first question referred has not revealed any
factors capable of calling into question the validity of point (a)
of the first subparagraph of Article 11(1) of Commission
Regulation (EEC) No 3665/87 of 27 November 1987 laying
down common detailed rules for the application of the system
of export refunds on agricultural products, as amended by
Commission Regulation (EC) No 2945/94 of 2 December
1994, in so far as it penalises an exporter who, without fault
on his part, applies for an export refund which exceeds that to
which he is entitled.

2. On a proper interpretation of the first indent of the third
subparagraph of Article 11(1) of Regulation No 3665/87, as
amended by Regulation No 2945/94, there is no force majeure

28.9.2002

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Official Journal of the European Communities

C 233/9

in the situation where an exporter completes an application for
export refunds in good faith on the basis of incorrect information
supplied by the manufacturer of the exported goods, and he
could not have discovered the inaccuracy of the information or
could have done so only by means of checks at the factory where
the goods were manufactured. Fault on the part of a co-
contractor is an ordinary commercial risk and cannot be
regarded as unforeseeable in the context of commercial trans-
actions, the exporter having various means at his disposal to
protect himself against such an eventuality.

( 1) OJ C 233 of 12.8.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

11 July 2002

in Case C-294/00 (Reference for a preliminary ruling from
the Oberster Gerichtshof): Deutsche Paracelsus Schulen
für Naturheilverfahren GmbH v Kurt Gräbner (1)

education and training to supplement Directive 89/48/EEC
(OJ 1992 L 209, p. 25), the Court (Fifth Chamber), composed
of: P. Jann, President of the Chamber, D. A. O. Edward and
A. La Pergola (Rapporteur),
J. Mischo, Advocate
General; H. A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 11 July 2002, in which it has ruled:

Judges;

1. No provision of Community law, as it presently stands,
precludes a Member State from restricting the exercise of an
activity such as that of a Heilpraktiker within the meaning of
the German legislation to holders of a doctor’s qualification.

2. Articles 52 and 59 of the EC Treaty (now, after amendment,

Articles 43 EC and 49 EC) do not preclude

— a Member State which prohibits in its territory the exercise
of the activity of a Heilpraktiker within the meaning of
the German legislation by persons other than those with
a doctor’s qualification from likewise prohibiting the
organisation in its territory of training in that activity by
unauthorised institutions, provided that that prohibition
is applied in such a way that it covers only training of a
kind liable to create confusion in the minds of the public
as to whether the profession of Heilpraktiker may lawfully
be exercised in the territory of the Member State in which
the training is to take place;

(Freedom of establishment — Freedom to provide services
— Scope of Directive 92/51/EEC — National legislation
reserving medical practice, including the activities which
Heilpraktikers are permitted to pursue in Germany, to
qualified doctors — National legislation restricting medical
training to certain institutions and prohibiting advertising
for such training)

— a Member State which prohibits in its territory the exercise
of the activity of a Heilpraktiker by persons other than
those with a doctor’s qualification and prohibits training
in that activity from likewise prohibiting the advertising
of such training offered in its territory if that advertising
concerns training of a kind which is prohibited in that
Member State in accordance with the Treaty.

(2002/C 233/13)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

However, Article 59 of the Treaty precludes a Member State
which prohibits in its territory the exercise of the profession of
Heilpraktiker and training in the activity of a Heilpraktiker
from likewise prohibiting the advertising of such training offered
in a different Member State, if that advertising states where the
training is to take place and mentions the fact that the
profession of Heilpraktiker may not be exercised in the first
Member State.

In Case C-294/00: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Deutsche Paracelsus Schulen für Naturheilverfahren GmbH
and Kurt Gräbner, on the interpretation of Articles 52 and 59
of the EC Treaty (now, after amendment, Articles 43 and 49
EC) and of Council Directive 92/51/EEC of 18 June 1992 on a
second general system for the recognition of professional

(1) OJ C 285 of 7.10.2000.