CELEX: C2003/200/13
Language: en
Date: 2003-08-23 00:00:00
Title: Case C-199/03: Action brought on 13 May 2003 by Ireland against the Commission of the European Communities

23.8.2003                EN                           Official Journal of the European Union                                         C 200/7
1.    Commission Regulation (EEC) No 3665/87 of 27 November                   Action brought on 13 May 2003 by Ireland against the
      1987 laying down common detailed rules for the application of                     Commission of the European Communities
      the system of export 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
                                                                                                       (Case C-199/03)
      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                                 (2003/C 200/13)
      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.
                                                                              An action against the Commission of the European Commu-
                                                                              nities was brought before the Court of Justice of the European
2.    Exporters have no right to apply directly to national courts for        Communities on 13 May 2003 by Ireland, represented by
      an extension of time of a specific duration but do have a legal         D. J. O'Hagan, acting as agent, assisted by P. Gallagher SC and
      right of recourse against decisions taken by competent national         P. McGarry, Barrister, with an address for service in Luxem-
      authorities under Article 47(4) of Regulation No 3665/87, as            bourg.
      amended by Regulation No 1829/94. The detailed rules and
      parameters of any such procedure shall be governed by the
      national law of the Member States, in accordance with the               The Applicant claims that the Court should:
      principles of effectiveness and equivalence as defined in Commu-
      nity law.
                                                                              1.    declare the action admissible;
(1) OJ C 44 of 16.2.2002.
                                                                              2.    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) in the framework of the project 940002IR1;
                                                                                    C(94)1972 of 29 July 1994 (operational programme for
                                                                                    tourism), in the framework of the project 940001IR1;
                                                                                    C(94)2613 of 15 November 1994 (operational programme
Reference for a preliminary ruling by the Sozialgericht                             for industrial development), in the framework of the
Stuttgart by order of that Court of 19 March 2003 in the                            project 940004IR1, approving operational programmes
case of Betriebskrankenkasse der Robert Bosch GmbH                                  under objective 1 in Ireland, in whole or in part, or in
against Federal Republic of Germany, represented by the                             respect of such periods or amounts as the Court should
                       Bundesversicherungsamt                                       determine;
                             (Case C-193/03)
                                                                              3.    order the Commission to bear the costs of the proceed-
                                                                                    ings.
                             (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 the                   Pleas in law and main arguments
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:                                        1.    The Applicant submits that it is apparent from the
                                                                                    contested decision that the Commission manifestly failed
                                                                                    to properly consider the evidence furnished by Ireland
Whether Article 34 of Regulation (EEC) No 574/72 (1)                                which unambiguously demonstrated that in fact there was
precludes a practice, in implementation of Paragraph 13(3)                          no overpayment or overfinancing in relation to ESF
SGB V, of flat-rate reimbursement by an insurer of costs for                        eligible projects. Because of a mistaken characterisation
medical treatment in another Community country, on the                              of the exercise carried out by Ireland to demonstrate that
model of similar provisions on small amounts.                                       no 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
(1) OJ L 74 of 27.3.1972, p. 1.                                                     the financial tables, the Commission failed to properly
                                                                                    consider the evidence and drew incorrect conclusions
                                                                                    from certain elements.
 ---pagebreak--- C 200/8               EN                        Official Journal of the European Union                                           23.8.2003
     The Commission's analysis ignored its obligation, before                    condition in which it is imported the determining
     claiming overpayment or overfinancing had occurred, to                      factor?
     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                3.   If the Court of Justice concludes that the product in
     determining whether Ireland breached the 75 % ESF                           question is medicinal, but that in those Member
     funding limit.                                                              States where it has hitherto been regarded as a
                                                                                 foodstuff it should continue to be a foodstuff, that
2.   It is submitted that the failure of the Commission to                       raises problems for the referring Chamber such as
     accept the Applicant's explanations in this case amounts                    those underlying the questions in B VI, in conjunc-
     to a breach of a fundamental rule of law relating to the                    tion with those in B III. Reference is made to those
     operation of the structural funds and the principles iden-                  questions and the observations thereon and an
     tified by the Commission in the context of the Decision.                    answer is requested.
3.   It is submitted that the approach adopted by the Commis-
     sion is out of all proportion to the result intended to be             4.   If ‘Lactobact omni FOS’ is a foodstuff (food supple-
     achieved having regard to the ongoing efficacy of the                       ment), is it then a novel food within the meaning of
     projects in issue and the nature of the project beneficiary.                Regulation (EC) No 258/97 of the European Parlia-
     Such an approach effectively amounts to the imposition                      ment and of the Council of 27 January 1997
     of a penalty in circumstances where the beneficiary is                      concerning novel foods and novel food ingredients
     innocent of any wrongdoing.                                                 (OJ 1997 L43, p. 1, ‘the Novel Foods Regulation’)?
                                                                                 What is the relationship between the various legal
4.   Finally, it is submitted that the Commission's approach                     bases?
     fails to respect the principles of legal certainty and
     legitimate expectations.
                                                                        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.
Reference for a preliminary ruling by the Oberverwal-
tungsgericht für das Land Nordrhein-Westfalen by order
of that Court of 7 May 2003 in the administrative                           In addition the following questions arise:
proceedings between HLH Warenvertriebs GmbH and
Bundesrepublik Deutschland; Intervener: The representa-
tive of the public interest at the Oberverwaltungsgericht                   I    a)    Is the contested product to be classified
               für das Land Nordrhein-Westfalen                                        according to Article 2, subparagraphs (1) and
                                                                                       (2),   in    conjunction       with     Article   2,
                         (Case C-211/03)                                               subparagraph (3)(d), of Regulation (EC)
                                                                                       No 178/2002 of the European Parliament and
                         (2003/C 200/14)                                               of the Council of 28 January 2002 laying down
                                                                                       the general principles and requirements of food
                                                                                       law, establishing the European Food Safety
                                                                                       Authority and laying down procedures in
Reference has been made to the Court of Justice of the                                 matters of food safety (OJ 2002 L31, p. 1, ‘the
European Communities by order of the Oberverwaltungsge-                                Basic Regulation’), or — once the period for
richt für das Land Nordrhein-Westfalen (Higher Administrative                          transposition expires on 31 July 2003 —
Court for the Land of Nordrhein-Westfalen) of 7 May 2003,                              according to Directive 2002/46/EC of the
received at the Court Registry on 15 May 2003, for a preli-                            European Parliament and of the Council of
minary ruling in the administrative proceedings between HLH                            10 June 2002 on the approximation of the
Warenvertriebs GmbH and Bundesrepublik Deutschland; Inter-                             laws of the Member States relating to food
vener: The representative of the public interest at the Oberver-                       supplements (OJ 2002 L 183, p. 51, ‘the Food
waltungsgericht für das Land Nordrhein-Westfalen (Higher                               Supplements Directive’), and if so according to
Administrative Court for the Land of Nordrhein-Westfalen) on                           which parts of the directive?
the following questions:
A.   1.    Is the contested product                                              b)    If Article 2, subparagraphs (1) and (2), in
                                                                                       conjunction with Article 2, subparagraph (3)(d),
           ‘Lactobact omni FOS’                                                        of the Basic Regulation applies, the following
                                                                                       question arises: is it the case that it is no longer
           a foodstuff (perhaps in the form of a food supple-                          the product's main (objective) purpose that is
           ment) or a medicinal product? Is this finding binding                       the decisive factor, but rather that a product
           on all the Member States?                                                   which meets the criteria for both a food and a
                                                                                       medicine is, legally speaking, always — and
     2.    Is it relevant when classifying the product that,                           only — a medicinal product? How material for
           according to the directions for use, it is intended to                      these purposes is the type of product and how
           be dissolved in water or in yoghurt? Or is the                              material the individual product?