CELEX: C2002/233/12
Language: en
Date: 2002-09-28 00:00:00
Title: 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")

C 233/8                  EN                       Official Journal of the European Communities                                          28.9.2002
preliminary ruling in the proceedings pending before that                                     JUDGMENT OF THE COURT
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)                                       (Fifth Chamber)
and (d) of Council Regulation (EEC) No 2408/92 of 23 July
1992 on access for Community air carriers to intra-Com-                                                  11 July 2002
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                  in Case C-210/00 (Reference for a preliminary ruling from
favour of TAP (Transportes Aéreos Portugueses) (OJ 1994                      the Bundesfinanzhof): Käserei Champignon Hofmeister
L 279, p. 29), the Court (Sixth Chamber), composed of:                           GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (1)
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                    (Agriculture — Export refunds — False declaration —
                                                                             Penalty — Validity of point (a) of the first subparagraph of
Administrator, for the Registrar, has given a judgment on
                                                                             Article 11(1) of Regulation (EEC) No 3665/87, as amended
9 July 2002, in which it has ruled:
                                                                             by Regulation (EC) No 2945/94 — Concept of ‘force
                                                                                                            majeure’)
                                                                                                       (2002/C 233/12)
1.    The exercise by a Member State of the rights and powers laid
      down in Article 4 of Council Regulation (EEC) No 2408/92                                  (Language of the case: German)
      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           (Provisional translation; the definitive translation will be published
      regulation to restrict competition until 1 April 1997 in                                  in the European Court Reports)
      cabotage services within its territory.
                                                                             In Case C-210/00: Reference to the Court under Article 234
2.    In a public tender procedure organised in 1995 for the provision       EC, by the Bundesfinanzhof (Germany) for a preliminary ruling
      of scheduled air services on a route subject to public service         in the proceedings pending before that court between Käserei
      obligations imposed on that route under Article 4 of Regulation        Champignon Hofmeister GmbH & Co. KG and Hauptzollamt
      No 2408/92, a Member State was entitled to require air                 Hamburg-Jonas, on the validity of point (a) of the first
      carriers licensed by another Member State which submitted bids         subparagraph of Article 11(1) of Regulation (EEC) No 3665/
      to meet the conditions laid down in Article 3(2) of that               87 of 27 November 1987 laying down common detailed rules
      regulation, provided that the invitation to tender did not             for the application of the system of export refunds on
      continue to have effect beyond 1 April 1997.                           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
3.    Article 1(e) of Commission Decision 94/698/EC of 6 July                subparagraph of Article 11(1) of the same regulation, the
      1994 concerning increase in capital, credit guarantees and tax         Court (Fifth Chamber), composed of: D. A. O. Edward, acting
      exemption in favour of TAP, which makes approval of the aid            for the President of the Fifth Chamber, A. La Pergola and
      for which it provides subject to the condition that the Portuguese     C. W. A. Timmermans (Rapporteur), Judges; C. Stix-Hackl,
      Republic honour its undertaking to apply Article 4 of Regu-            Advocate General; H. A. Rühl, Principal Administrator, for the
      lation No 2408/92 to the autonomous regions of Madeira                 Registrar has given a judgment on 11 July 2002, in which it
      and the Azores with effect from 1 January 1996 at the latest           has ruled:
      and publish the public service obligations for the routes in
      question, does not preclude that Member State from exercising          1.    Examination of the first question referred has not revealed any
      its right under Article 3(2) of that regulation.                             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
( 1) OJ C 192 of 8.7.2000.
                                                                                   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
 ---pagebreak--- 28.9.2002                EN                       Official Journal of the European Communities                                              C 233/9
      in the situation where an exporter completes an application for        education and training to supplement Directive 89/48/EEC
      export refunds in good faith on the basis of incorrect information     (OJ 1992 L 209, p. 25), the Court (Fifth Chamber), composed
      supplied by the manufacturer of the exported goods, and he             of: P. Jann, President of the Chamber, D. A. O. Edward and
      could not have discovered the inaccuracy of the information or         A. La Pergola (Rapporteur), Judges; J. Mischo, Advocate
      could have done so only by means of checks at the factory where        General; H. A. Rühl, Principal Administrator, for the Registrar,
      the goods were manufactured. Fault on the part of a co-                has given a judgment on 11 July 2002, in which it has ruled:
      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.    No provision of Community law, as it presently stands,
                                                                                   precludes a Member State from restricting the exercise of an
( 1) OJ C 233 of 12.8.2000.                                                        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
                  JUDGMENT OF THE COURT                                            —     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
                           (Fifth Chamber)                                               a doctor’s qualification from likewise prohibiting the
                                                                                         organisation in its territory of training in that activity by
                                                                                         unauthorised institutions, provided that that prohibition
                             11 July 2002                                                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
in Case C-294/00 (Reference for a preliminary ruling from                                be exercised in the territory of the Member State in which
the Oberster Gerichtshof): Deutsche Paracelsus Schulen                                   the training is to take place;
      für Naturheilverfahren GmbH v Kurt Gräbner (1)
(Freedom of establishment — Freedom to provide services                            —     a Member State which prohibits in its territory the exercise
— Scope of Directive 92/51/EEC — National legislation                                    of the activity of a Heilpraktiker by persons other than
reserving medical practice, including the activities which                               those with a doctor’s qualification and prohibits training
Heilpraktikers are permitted to pursue in Germany, to                                    in that activity from likewise prohibiting the advertising
qualified doctors — National legislation restricting medical                             of such training offered in its territory if that advertising
training to certain institutions and prohibiting advertising                             concerns training of a kind which is prohibited in that
                          for such training)                                             Member State in accordance with the Treaty.
                           (2002/C 233/13)                                         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
                    (Language of the case: German)                                 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
(Provisional translation; the definitive translation will be published             profession of Heilpraktiker may not be exercised in the first
                    in the European Court Reports)                                 Member State.
In Case C-294/00: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary                   (1 ) OJ C 285 of 7.10.2000.
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