Judgment of the Court (First Chamber) of 14 April 2005 in Case C-385/03: Reference for a preliminary ruling from the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v Käserei Champignon Hofmeister GmbH & Co. KG (Export refunds — Misdeclaration — Meaning of ‘request’ — Sanction — Requirements)
Date: 2005-06-11
Institutions: Court of Justice
Subjects: export, export refund, fraud, information, interpretation of the law

C 143/10

EN

Official Journal of the European Union

11.6.2005

(Rapporteur), President of

Timmermans
the Chamber, C.
Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges; F.G.
Jacobs, Advocate General, H. von Holstein, Deputy Registrar,
gave a judgment on 21 April 2005, the operative part of
which is as follows:

JUDGMENT OF THE COURT

(First Chamber)

of 14 April 2005

i

(lag

Lotteries

Law on

om ändring

1. National provisions such as the Law on Lotteries (lotterilagen
(1994:1000)), in the version resulting from the law amending
lotterilagen
the
(1996:1168)), which entail a prohibition on the organisation of
games of chance using certain gaming machines are liable to
constitute a technical regulation within the meaning of Article
1(9) of Council Directive 83/189/EEC of 28 March 1983 laying
down a procedure for the provision of information in the field of
technical standards and regulations, as amended by Directive
94/10/EC of the European Parliament and the Council of 23
March 1994, where it is established that the scope of the prohibi-
tion at issue leaves no room for any use which can reasonably be
expected of the product concerned other than a purely marginal
one or, if that is not the case, where it is established that that
prohibition may significantly influence the composition or nature
of the product or its marketing.

2. Redefining in national

the

legislation a service connected with the
design of a product, in particular that of operating certain gaming
machines, as
law (1996:1168) amending the Law on
Lotteries did, can constitute a technical regulation which must be
notified under Directive 83/189, as amended by Directive 94/10,
replace,
if
without adding new or additional specifications, existing technical
regulations which, if adopted after the entry into force of Directive
83/189 in the Member State concerned, have been duly notified
to the Commission of the European Communities.

that new legislation does not merely reproduce or

3. The replacement of a licence requirement by a prohibition in
national law may be a significant factor with regard to the obliga-
tion to notify provided for by Directive 83/189, as amended by
Directive 94/10.

The greater or lesser value of the product or service or the size of
the market for the product or service are factors which are not rele-
vant as regards the obligation to notify provided for by that direc-
tive.

(1) OJ C 213 of 06.09.2003.

in Case C-385/03: Reference for a preliminary ruling from
the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v
Käserei Champignon Hofmeister GmbH & Co. KG (1)

(Export refunds — Misdeclaration — Meaning of ‘request’
— Sanction — Requirements)

(2005/C 143/11)

(Language of the case: German)

received at

In Case C-385/03: reference for a preliminary ruling under
Article 234 EC from the Bundesfinanzhof (Germany), made by
decision of 30 July 2003,
the Court on 12
September 2003,
in the proceedings between Hauptzollamt
Hamburg-Jonas and Käserei Champignon Hofmeister GmbH &
Co. KG — the Court (First Chamber), composed of P. Jann,
President of the Chamber, N. Colneric, J.N. Cunha Rodrigues, E.
Juhász (Rapporteur) and E. Levits, Judges; C. Stix-Hackl, Advo-
cate General; K. Sztranc, Administrator, for the Registrar, gave
a judgment on 14 April 2005, the operative part of which is as
follows:

The first and second subparagraphs 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 Regu-
lation (EC) No 2945/94 of 2 December 1994, are to be interpreted
as meaning that wrong information contained in a document referred
to in Article 3(5) of that regulation, that is, the export declaration or
another document used for export, and capable of leading to a refund
in excess of the refund applicable, gives rise to the imposition of the
sanction prescribed by Article 11. That rule applies even if, in connec-
tion with the application for payment referred to in Article 47 of that
regulation, it is expressly stated that payment of the export refund is
not sought for certain products covered by that document.

(1) OJ C 275 of 15.11.2003.