Case C-199/03: Action brought on 13 May 2003 by Ireland against the Commission of the European Communities
Date: 2003-08-23
Institutions: Court of Justice
Subjects: EU aid, European Commission, European Social Fund, Ireland, action for annulment (EU)

23.8.2003

EN

Official Journal of the European Union

C 200/7

1.

2.

export

system of

Commission Regulation (EEC) No 3665/87 of 27 November
1987 laying down common detailed rules for the application of
the
refunds on agricultural products, as
amended by Commission Regulation (EC) No 1829/94 of
26 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 competent
national authorities to set the length of extensions of time in
accordance with the particular circumstances of the case, taking
particular 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 time
which it will reasonably take to overcome those difficulties.

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, as
amended by Regulation No 1829/94. The detailed rules and
parameters of any such procedure shall be governed by the
national
in accordance with the
principles of effectiveness and equivalence as defined in Commu-
nity law.

the Member States,

law of

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 and
P. McGarry, Barrister, with an address for service in Luxem-
bourg.

The Applicant claims that the Court should:

1.

declare the action admissible;

(1) OJ C 44 of 16.2.2002.

2.

Reference for a preliminary ruling by the Sozialgericht
Stuttgart by order of that Court of 19 March 2003 in the
case of Betriebskrankenkasse der Robert Bosch GmbH
against Federal Republic of Germany, represented by the
Bundesversicherungsamt

in the framework of

annul Commission Decision C(2003)99 reducing assis-
tance granted from the European Social Fund under
Commission Decisions C(94)3226 of 29 November 1994
(operational programme for human resources develop-
ment)
the project 940002IR1;
C(94)1972 of 29 July 1994 (operational programme for
the project 940001IR1;
tourism),
C(94)2613 of 15 November 1994 (operational programme
for
the
project 940004IR1, approving operational programmes
in whole or in part, or in
under objective 1 in Ireland,
respect of such periods or amounts as the Court should
determine;

industrial development),

in the framework of

in the framework of

(Case C-193/03)

(2003/C 200/12)

3.

order the Commission to bear the costs of the proceed-
ings.

Justice of

Reference has been made to the Court of
the
European Communities by order of the Sozialgericht Stuttgart
(Social Court, Stuttgart) of 19 March 2003, received at the
Court Registry on 9 May 2003, for a preliminary ruling in the
case 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 for
in another Community country, on the
medical
model of similar provisions on small amounts.

treatment

(1) OJ L 74 of 27.3.1972, p. 1.

Pleas in law and main arguments

1.

it

submits

is apparent

The Applicant
from the
that
contested decision that the Commission manifestly failed
to properly consider the evidence furnished by Ireland
which unambiguously demonstrated that in fact there was
no overpayment or overfinancing in relation to ESF
eligible projects. Because of a mistaken characterisation
of the exercise carried out by Ireland to demonstrate that
no such claim of overpayment or overfinancing occurred,
and because of
the evidence
its mistaken belief
adduced by Ireland somehow would have an impact on
the financial
the Commission failed to properly
the evidence and drew incorrect conclusions
consider
from certain elements.

tables,

that

C 200/8

EN

Official Journal of the European Union

23.8.2003

The Commission's analysis ignored its obligation, before
claiming overpayment or overfinancing had occurred, to
take into account the actual costs of the eligible projects
and the actual matching co-funding and the correct
exchange calculations from the Irish authorities before
Ireland breached the 75 % ESF
determining whether
funding limit.

is submitted that

It
the Commission to
the failure of
accept the Applicant's explanations in this case amounts
to a breach of a fundamental rule of law relating to the
operation of the structural funds and the principles iden-
tified by the Commission in the context of the Decision.

It is submitted that the approach adopted by the Commis-
sion is out of all proportion to the result intended to be
achieved having regard to the ongoing efficacy of
the
projects 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 is
innocent of any wrongdoing.

it is submitted that the Commission's approach
legal certainty and

the principles of

Finally,
fails
to respect
legitimate expectations.

2.

3.

4.

Reference for a preliminary ruling by the Oberverwal-
tungsgericht für das Land Nordrhein-Westfalen by order
that Court of 7 May 2003 in the administrative
of
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)

Justice of

the
Reference has been made to the Court of
European Communities by order of
the Oberverwaltungsge-
richt für das Land Nordrhein-Westfalen (Higher Administrative
Court 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 (Higher
Administrative Court for the Land of Nordrhein-Westfalen) on
the following questions:

condition in which it is imported the determining
factor?

3.

4.

that

If the Court of Justice concludes that the product in
in those Member
question is medicinal, but
States where it has hitherto been regarded as a
foodstuff it should continue to be a foodstuff, that
raises 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 those
questions and the observations
thereon and an
answer is requested.

If ‘Lactobact omni FOS’ is a foodstuff (food supple-
ment), is it then a novel food within the meaning of
Regulation (EC) No 258/97 of the European Parlia-
ment and of
the Council of 27 January 1997
concerning novel foods and novel food ingredients
‘the Novel Foods Regulation’)?
(OJ 1997 L43, p. 1,
What is the relationship between the various legal
bases?

B

In the event that — as has been the case hitherto — the
questions (as to classification) posed in section A above
are to be answered not by the Court of Justice but by the
national 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 is
applicable.

In addition the following questions arise:

I

a)

in

of

the

with

Article

to be

Regulation

contested product

conjunction
(3)(d),

Is
classified
according to Article 2, subparagraphs (1) and
2,
(2),
subparagraph
(EC)
No 178/2002 of the European Parliament and
of the Council of 28 January 2002 laying down
the general principles and requirements of food
establishing the European Food Safety
law,
in
Authority
and laying down procedures
‘the
matters of food safety (OJ 2002 L31, p. 1,
Basic Regulation’), or — once the period for
transposition expires on 31 July 2003 —
according to Directive 2002/46/EC of
the
the Council of
European Parliament and of
10 June 2002 on the approximation of
the
laws of
the Member States relating to food
‘the Food
supplements (OJ 2002 L 183, p. 51,
Supplements Directive’), and if so according to
which parts of the directive?

A.

1.

Is the contested product

‘Lactobact omni FOS’

b)

a foodstuff (perhaps in the form of a food supple-
ment) or a medicinal product? Is this finding binding
on all the Member States?

2.

it

Is
that,
relevant when classifying the product
according to the directions for use, it is intended to
is the
be dissolved in water or

in yoghurt? Or

(1) and (2),

subparagraphs

in
If Article 2,
conjunction with Article 2, subparagraph (3)(d),
of
the Basic Regulation applies, the following
question arises: is it the case that it is no longer
the product's main (objective) purpose that is
the decisive factor, but rather that a product
which meets the criteria for both a food and a
legally speaking, always — and
medicine is,
only — a medicinal product? How material for
these purposes is the type of product and how
material the individual product?