61981J0017

1 . PRELIMINARY QUESTIONS - JURISDICTION OF THE NATIONAL COURT - ASCERTAINMENT AND APPRAISAL OF THE FACTS OF THE CASE

( EEC TREATY , ART . 177 )

2 . COMMUNITY LAW - UNIFORM APPLICATION - LEGAL CLASSIFICATION IN COMMUNITY LAW OF A NATIONAL MEASURE - INDEPENDENT CLASSIFICATION

3 . TAX PROVISIONS - INTERNAL TAXATION - DISCRIMINATION BETWEEN DOMESTIC PRODUCTS AND SIMILAR IMPORTED PRODUCTS - PROHIBITION - SCOPE - RELIEF FOR NATIONAL PRODUCTS AT THE EXPENSE OF SIMILAR IMPORTED PRODUCTS - RELIEF PROHIBITED

( EEC TREATY , ART . 95 )

4 . TAX PROVISIONS - INTERNAL TAXATION - SELLING PRICE OF A PRODUCT COVERED BY A NATIONAL MONOPOLY - COMPONENT IN THE NATURE OF TAXATION FORMING PART OF THAT PRICE - TAX ON IMPORTED PRODUCTS - TAX CORRESPONDING TO A NON-TAX COMPONENT IN THE SELLING PRICE OF THE SIMILAR PRODUCT COVERED BY THE MONOPOLY - DISCRIMINATORY TAXATION - RELIEF BY AN EQUAL AMOUNT FOR THE TWO PRODUCTS - CONTINUATION OF DISCRIMINATION

( EEC TREATY , ART . 95 , PARA . 1 )

5 . TAX PROVISIONS - INTERNAL TAXATION - WHETHER DISCRIMINATORY TAXATION MAY COME UNDER A SYSTEM OF STATE AIDS - APPLICATION IN ANY CASE OF THE TAX PROVISIONS OF THE TREATY

( EEC TREATY , ARTS 92 AND 95 )

6 . STATE MONOPOLIES OF A COMMERCIAL CHARACTER - SPECIFIC PROVISIONS OF THE TREATY - MATTERS COVERED - ACTIVITIES INTRINSICALLY CONNECTED WITH THE SPECIFIC FUNCTION OF MONOPOLIES - RELIEF FOR SPIRITS ON WHICH TAX WAS PREVIOUSLY CHARGED - PROVISIONS NOT APPLICABLE

( EEC TREATY , ART . 37 )

7 . INTERNATIONAL AGREEMENTS - ASSOCIATION AGREEMENT BETWEEN THE EEC AND GREECE - PROHIBITION OF DISCRIMINATION IN TAXATION - TAX RELIEF AT THE EXPENSE OF PRODUCTS IMPORTED FROM GREECE - PROHIBITION - DIRECT EFFECT

( EEC TREATY , ART . 95 ; ASSOCIATION AGREEMENT BETWEEN THE EEC AND GREECE OF 9 JULY 1961 , ART . 53 ( 1 ))

1 . IT IS NOT FOR THE COURT OF JUSTICE BUT FOR THE NATIONAL COURT TO ASCERTAIN THE FACTS WHICH HAVE GIVEN RISE TO THE DISPUTE AND TO ESTABLISH THE CONSEQUENCES WHICH THEY HAVE FOR THE JUDGMENT WHICH IT IS REQUIRED TO DELIVER .

2 . THE LEGAL CLASSIFICATION IN COMMUNITY LAW OF A NATIONAL MEASURE DOES NOT DEPEND UPON HOW THAT MEASURE IS VIEWED OR APPRAISED IN THE NATIONAL CONTEXT . THE NEED TO ENSURE THAT THE PROVISIONS OF THE TREATY ARE APPLIED IN A UNIFORM MANNER THROUGHOUT THE COMMUNITY REQUIRES THAT THEY SHOULD BE INTERPRETED INDEPENDENTLY .

3 . ARTICLE 95 OF THE TREATY IS INTENDED TO COVER ALL TAXATION PROCEDURES WHICH CONFLICT WITH THE PRINCIPLE OF EQUALITY OF TREATMENT OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS . ACCORDINGLY THAT PROVISION APPLIES TO MEASURES OF RELIEF WHICH , WITHIN THE FRAMEWORK OF AN INCREASE IN TAXES ON SPIRITS , ACCORD MORE FAVOURABLE TREATMENT TO SIMILAR DOMESTIC PRODUCTS THAN TO IMPORTED PRODUCTS EVEN THOUGH SUCH MEASURES WERE ADOPTED ON THE BASIS OF ADMINISTRATIVE INSTRUCTIONS .

4 . THE TERM ' ' TAXATION ' ' , CONTAINED IN ARTICLE 95 OF THE TREATY , MUST BE REGARDED AS COVERING , IN SO FAR AS THE SELLING PRICE FOR SPIRITS FIXED BY A NATIONAL MONOPOLY IS CONCERNED , ONLY THAT PART OF THE PRICE WHICH THE MONOPOLY IS REQUIRED BY LAW TO REMIT TO THE STATE TREASURY AS A TAX ON SPIRITS , DETERMINED AS TO AMOUNT , TO THE EXCLUSION OF ALL OTHER ELEMENTS OR CHARGES , ECONOMIC OR OTHER , INCLUDED IN THE CALCULATION OF THE MONOPOLY SELLING PRICE .

IT FOLLOWS THAT A TAX COMPONENT INCLUDED IN THE TAXATION OF IMPORTED SPIRITS AND CORRESPONDING TO A NON-TAX COMPONENT IN THE SELLING PRICE OF SPIRITS MARKETED BY THE FEDERAL MONOPOLY ADMINISTRATION IS DISCRIMINATORY . CONSEQUENTLY IF THE SAME AMOUNT OF RELIEF IS AVAILABLE IN RESPECT OF DIFFERENT TAXES IMPOSED ON IMPORTED SPIRITS ON THE ONE HAND AND ON THE DOMESTIC SPIRITS OF A MONOPOLY ON THE OTHER THE LESS FAVOURABLE TAX TREATMENT OF THE IMPORTED SPIRITS CONTINUES AND THE SAID DISCRIMINATION SUBSISTS .

5 . A MEASURE CARRIED OUT BY MEANS OF DISCRIMINATORY TAXATION , WHICH MAY BE CONSIDERED AT THE SAME TIME AS FORMING PART OF AN AID WITHIN THE MEANING OF ARTICLE 92 OF THE TREATY , SHOULD IN ANY CASE BE GOVERNED BY ARTICLE 95 .

6 . THE RULES CONTAINED IN ARTICLE 37 OF THE TREATY CONCERN ONLY ACTIVITIES INTRINSICALLY CONNECTED WITH THE SPECIFIC BUSINESS OF THE MONOPOLY IN QUESTION . THEY ARE THUS IRRELEVANT TO NATIONAL PROVISIONS WHICH HAVE NO CONNEXION WITH SUCH SPECIFIC BUSINESS , LIKE THOSE CONCERNING RELIEF FOR SPIRITS ON WHICH TAX WAS PREVIOUSLY CHARGED .

7 . ARTICLE 53 ( 1 ) OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE FULFILS , WITHIN THE FRAMEWORK OF THAT AGREEMENT , THE SAME FUNCTION AS THAT OF ARTICLE 95 OF THE TREATY . IT FORMS PART OF A GROUP OF PROVISIONS THE PURPOSE OF WHICH WAS TO PREPARE FOR THE ENTRY OF GREECE INTO THE COMMUNITY BY THE ESTABLISHMENT OF A CUSTOMS UNION , BY THE HARMONIZATION OF AGRICULTURAL POLICIES , BY THE INTRODUCTION OF FREEDOM OF MOVEMENT FOR WORKERS AND BY OTHER MEASURES FOR THE GRADUAL ADJUSTMENT TO THE REQUIREMENTS OF COMMUNITY LAW .

IT ACCORDINGLY FOLLOWS FROM THE WORDING OF ARTICLE 53 ( 1 ), CITED ABOVE , AND FROM THE OBJECTIVE AND NATURE OF THE ASSOCIATION AGREEMENT OF WHICH IT FORMS PART THAT THAT PROVISION PRECLUDES A NATIONAL SYSTEM OF RELIEF FROM PROVIDING MORE FAVOURABLE TAX TREATMENT FOR DOMESTIC SPIRITS THAN FOR THOSE IMPORTED FROM GREECE . IT CONTAINS A CLEAR AND PRECISE OBLIGATION WHICH IS NOT SUBJECT , IN ITS IMPLEMENTATION OR EFFECTS , TO THE ADOPTION OF ANY SUBSEQUENT MEASURE . IN THOSE CIRCUMSTANCES ARTICLE 53 ( 1 ) MUST BE CONSIDERED AS DIRECTLY APPLICABLE FROM THE BEGINNING OF THE THIRD YEAR AFTER THE ENTRY INTO FORCE OF THE AGREEMENT , ON WHICH DATE ALL MEASURES CONFLICTING WITH THAT PROVISION WAS , BY VIRTUE OF ITS THIRD SUBPARAGRAPH , TO BE ABOLISHED .

IN CASE 17/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

PABST & RICHARZ KG , HAVING ITS PLACE OF BUSINESS AT ELSFLETH ,

AND

HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) OLDENBURG ,

OBERFINANZDIREKTION HANNOVER ( PRINCIPAL REVENUE OFFICE , HANOVER ), INTERVENER ,

ON THE INTERPRETATION OF ARTICLES 37 AND 95 OF THE EEC TREATY , ARTICLE 53 ( 1 ) OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE AND OF ARTICLES 92 ET SEQ . OF THE EEC TREATY IN RELATION TO THE APPLICATION OF CERTAIN ADMINISTRATIVE MEASURES CONCERNING THE IMPLEMENTATION OF THE GERMAN LAW OF 8 APRIL 1922 ON THE MONOPOLY IN SPIRITS ( GESETZ UBER DAS BRANNTWEINMONOPOL ),

1 BY ORDER OF 31 OCTOBER 1980 , WHICH WAS RECEIVED AT THE COURT ON 3 FEBRUARY 1981 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS AS TO THE INTERPRETATION OF ARTICLES 37 , 92 , 93 AND 95 OF THE EEC TREATY AND OF ARTICLE 53 ( 1 ) OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE , SIGNED AT ATHENS ON 9 JULY 1961 , AND CONCLUDED AND APPROVED ON BEHALF OF THE COMMUNITY BY THE COUNCIL DECISION OF 25 SEPTEMBER 1981 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , SECOND SERIES , I EXTERNAL RELATIONS ( 1 ), P . 3 ).

2 THE DISPUTE IN THE MAIN ACTION CONCERNS THE APPLICATION OF A SYSTEM OF RELIEF , WHICH WAS ESTABLISHED BY THREE CIRCULARS ISSUED BY THE FEDERAL MINISTER OF FINANCE IN ORDER TO TAKE INTO ACCOUNT AN ADJUSTMENT OF THE GERMAN SPIRITS MONOPOLY TO THE REQUIREMENTS OF COMMUNITY LAW TO A QUANTITY OF RAW SPIRIT COMING FROM FRANCE , ITALY AND GREECE WHICH WAS HELD IN A STORAGE TANK ( TANKLAGER ) ON THE REFERENCE DATE FIXED BY THE CIRCULARS .

3 BEFORE THE ADJUSTMENT OF A MONOPOLY A CONSUMPTION TAX CALLED THE MONOPOLY EQUALIZATION DUTY ( MONOPOLAUSGLEICH ) WAS IMPOSED ON ALL SPRITIS IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY IRRESPECTIVE OF WHETHER THEY CAME FROM A MEMBER STATE OR FROM A NON-MEMBER COUNTRY . THAT DUTY WAS COMPOSED OF A FIXED COMPONENT CORRESPONDING TO THE TAX ON SPIRITS ( BRANNTWEINSTEUER ) LEVIED ON DOMESTIC SPIRITS MARKETED BY THE FEDERAL MONOPOLY ADMINISTRATION ( BUNDESMONOPOLVERWALTUNG ) AND A VARIABLE COMPONENT CALLED THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY ( MONOPOLAUSGLEICHSPITZE ) WHICH WAS THE EQUIVALENT OF THE MARGINAL ELEMENT OF THE PRICE ( PREISSPITZE ) CALCULATED IN THE SELLING PRICE OF MONOPOLY SPIRITS . THE AMOUNT OF THE MARGINAL ELEMENT OF THE PRICE WAS OBTAINED BY SUBTRACTING FROM THE MONOPOLY ' S SELLING PRICE THE SUM OF THE TAX ON SPIRITS AND THE BASIC PRICE OF THE SPIRITS FIXED BY THE MONOPOLY ADMINISTRATION . ACCORDING TO THE ORDER MAKING THE REFERENCE THE TAX ON SPIRITS HAS AMOUNTED TO DM 1 500 PER HECTOLITRE OF WINE-SPIRIT SINCE 1972 WHILST THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY AMOUNTED TO DM 80 PER HECTOLITRE OF WINE-SPIRIT ON OR ABOUT 1 JANUARY 1976 .

4 IN ORDER TO RENDER THE MONOPOLY IN SPIRITS COMPATIBLE WITH COMMUNITY LAW THE FEDERAL MONOPOLY ADMINISTRATION NO LONGER EXERCISED , IN COMPLIANCE WITH THE JUDGMENTS OF THE COURT OF 17 FEBRUARY 1976 ( CASE 45/75 , REWE ( 1976 ) ECR 181 AND CASE 91/75 MIRITZ ( 1976 ) ECR 217 ), WITH REGARD TO SPIRITS COMING FROM OTHER MEMBER STATES THE MONOPOLY IN THE IMPORTATION OF SPIRITS WHICH IT HELD UNDER GERMAN LAW . THE REDUCTION IN THE SELLING PRICES OF MONOPOLY SPIRITS WHICH THE MONOPOLY ADMINISTRATION CONSEQUENTLY EFFECTED LED TO A DEFICIT FOR THE MONOPOLY SINCE THE PURCHASE PRICES PAYABLE TO PRODUCERS DELIVERING THEIR PRODUCTS TO THE MONOPOLY WERE MAINTAINED . THAT DEFICIT WAS MET FROM THE STATE BUDGET , AND THIS LED TO AN INCREASE OF 10% IN THE GENERAL RATE OF THE TAX ON SPIRITS . THE RATES OF THE TAX ON SPIRITS AND THAT OF THE MONOPOLY EQUALIZATION DUTY WERE INCREASED BY DM 150 PER 1 HECTOLITRE OF WINE-SPIRIT , RESULTING IN A TOTAL OF DM 1 650 PER HECTOLITRE . AT THE SAME TIME , AND AS A RESULT OF THAT ADJUSTMENT OF THE MONOPOLY , THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY WAS ABOLISHED WITH EFFECT FROM 18 MARCH 1976 .

5 ON THE BASIS OF AN UNDERTAKING GIVEN TO THE FINANCE COMMITTEE OF THE BUNDESTAG THE FEDERAL MINISTER OF FINANCE ADOPTED VARIOUS ADMINISTRATIVE MEASURES IN ORDER TO MAKE IT EASIER FOR PRODUCERS , MANUFACTURERS AND IMPORTERS OF SPIRITIS TO ADAPT TO THE NEW COMMERCIAL AND TAX SITUATION . ACCORDINGLY BY THREE CIRCULARS DATED 23 MARCH , 15 APRIL AND 1 JULY 1976 , THE MINISTER LAID DOWN ADMINISTRATIVE INSTRUCTIONS WHICH CONTAINED MEASURES OF RELIEF .

6 THESE MEASURES APPLIED TO SPIRITS WHICH WERE HELD ON 22 FEBRUARY 1976 IN AN INDIVIDUALLY-OWNED SPIRITS WAREHOUSE ( BRANNTWEINEIGENLAGER ) OR IN A BONDED WAREHOUSE ( ZOLLAGER ). THE RELIEF PROVIDED WAS GRANTED IN PRINCIPLE BY WAY OF A CREDIT AGAINST THE AMOUNTS OF TAX PAYABLE EACH MONTH AS FROM THE MONTH OF APRIL 1976 .

7 ACCORDING TO THE INSTRUCTIONS OF THE MINISTER THE RELIEF COULD AMOUNT TO A MAXIMUM OF DM 150 PER HECTOLITRE . IT WAS MADE UP OF TWO COMPONENTS . FIRST , A RELIEF OF DM 70 PER HECTOLITRE FOR A CERTAIN REFERENCE QUANTITY OF SPIRITS WAS PROVIDED FOR IN ORDER TO COMPENSATE FOR UNJUST HARDSHIP WHICH MIGHT HAVE ARISEN FROM THE INCREASE IN THE RATES OF THE TAXES ON SPIRITS , PARTICULARLY IN THE CASE OF LONGTERM CONTRACTS . THAT RELIEF APPLIED TO THE PART OF NET STOCKS CORRESPONDING TO THE REFERENCE QUANTITY HELD IN INDIVIDUALLY-OWNED SPIRITS WAREHOUSES AND BONDED WAREHOUSES . SECONDLY , A REIMBURSEMENT OF DM 80 PER HECTOLITRE WAS PROVIDED FOR TOTAL STOCKS HELD IN AN INDIVIDUALLY-OWNED SPIRITS WAREHOUSE . THAT REIMBURSEMENT REPRESENTED IN PARTICULAR THE REFUND OF THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY AND THE MARGINAL ELEMENT INCLUDED IN THE SELLING PRICE OF MONOPOLY SPIRITS . THESE MARGINAL ELEMENTS HAD BEEN CHARGED ON THE ENTRY OF THE SPIRITS TO THE WAREHOUSE WHILST THE MONOPOLY EQUALIZATION DUTY AND THE TAX ON SPIRITS WERE NOT CHARGED UNTIL WITHDRAWAL FROM THE WAREHOUSE . THIS CASE CONCERNS ONLY THE REFUND OF DM 80 PER HECTOLITRE .

8 THE OBERFINANZDIREKTION HANNOVER ( PRINCIPAL REVENUE OFFICE , HANOVER ), THE INTERVENER IN THE MAIN ACTION , HAS EXPLAINED THAT THE AMOUNT OF THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY WAS ESSENTIALLY VARIABLE BY REASON OF THE CALCULATION OF THE MARGINAL ELEMENT OF THE PRICE EFFECTED AT THE TIME BY THE FEDERAL MONOPOLY ADMINISTRATION . THE REFUND OF DM 80 MUST CONSEQUENTLY BE CONSIDERED AS A FIXED-RATE REFUND OF THE MARGINAL ELEMENT WHICH WAS CHARGED ON ENTRY TO THE WAREHOUSE .

9 THE QUANTITY OF SPIRITS CONCERNED IN THIS CASE WAS HELD ON THE REFERENCE DATE IN A STORAGE TANK ( TANKLAGER ) OWNED BY THE UNDERTAKING PABST & RICHARZ , THE PLAINTIFF IN THE MAIN ACTION . IT IS COMMON GROUND THAT THAT STORAGE TANK IS NOT INCLUDED AMONG THE WAREHOUSES IN RESPECT OF WHICH THE MINISTERIAL CIRCULARS PRESCRIBE MEASURES ON RELIEF .

10 ACCORDING TO THE ORDER MAKING THE REFERENCE THE PLAINTIFF IN THE MAIN ACTION PAID THE MARGINAL ELEMENT CONTAINED IN THE MONOPOLY EQUALIZATION DUTY AMOUNTING TO DM 80 PER HECTOLITRE WHEN THE SPIRITS ENTERED THE WAREHOUSE . THE AMOUNT OF THAT MARGINAL ELEMENT WAS REFUNDED TO IT . IT NEVERTHELESS CLAIMED A SUPPLEMENTARY RELIEF OF DM 80 PER HECTOLITRE ON THE GROUND THAT IT WAS CONTRARY TO THE PRINCIPLE OF EQUALITY OF TREATMENT THAT SPIRITS PURCHASED FROM THE FEDERAL MONOPOLY ADMINISTRATION WHICH WERE HELD AT THE REFERENCE DATE IN INDIVIDUALLY-OWNED SPIRITS WAREHOUSES SHOULD HAVE BEEN GRANTED RELIEF FROM DUTY AT THE RATE OF DM 80 PER HECTOLITRE WITHOUT PREVIOUSLY HAVING BEEN LIABLE TO ANY TAX WHATEVER , WHILST SPIRITS HELD IN THE STORAGE TANK DID NOT QUALIFY FOR COMPARABLE RELIEF .

11 IN THE COURSE OF THE PROCEDURE BEFORE THE COURT THE PLAINTIFF IN THE MAIN ACTION GAVE A DIFFERENT DESCRIPTION OF THE FACTS OF THE CASE AND OF THE BASIS OF ITS CLAIM FOR A REFUND . IT ALLEGED , WITHOUT BEING CONTRADICTED BY THE OBERFINANZDIREKTION , THAT IT HAD PAID THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY AMOUNTING TO DM 16.05 PER HECTOLITRE ON THE SPIRITS PLACED IN ITS STORAGE TANK AND THAT THE SAME AMOUNT PER HECTOLITRE WAS REFUNDED TO IT . IT CONSIDERED ON THOSE FACTS THAT THE SYSTEM OF RELIEF ESTABLISHED BY THE MINISTERIAL CIRCULARS HAD NOT BEEN APPLIED TO IT AND THAT WAS THE BASIS OF ITS CLAIM FOR THE RELIEF OF DM 80 PER HECTOLITRE .

12 IT IS , HOWEVER , NOT FOR THE COURT OF JUSTICE BUT FOR THE NATIONAL COURT TO ASCERTAIN THE FACTS WHICH HAVE GIVEN RISE TO THE DISPUTE AND TO ESTABLISH THE CONSEQUENCES WHICH THEY HAVE FOR THE JUDGMENT WHICH IT IS REQUIRED TO DELIVER .

13 THE FINANZGERICHT TOOK AS ITS STARTING POINT THE PREMISE THAT THE PROBLEM TO BE RESOLVED CONCERNS DISCRIMINATION BETWEEN , ON THE ONE HAND , MONOPOLY SPIRITS WHICH QUALIFY FOR THE FIXED REIMBURSEMENT WITHOUT HAVING PREVIOUSLY BEEN SUBJECT TO TAX AND , ON THE OTHER , IMPORTED SPIRITS IN RESPECT OF WHICH THE FIXED REIMBURSEMENT WAS INTENDED TO COMPENSATE FOR THE PREVIOUS PAYMENT OF THE MARGINAL ELEMENT OF THE MONOPOLY EQUALIZATION DUTY . THE FINANZGERICHT INCLINES TO THE VIEW THAT THIS ASPECT OF THE SYSTEM OF RELIEF INFRINGES ARTICLE 95 OF THE EEC TREATY AND , SO FAR AS SPIRITS IMPORTED FROM GREECE ARE CONCERNED , ARTICLE 53(1 ) OF THE ASSOCIATION AGREEMENT WITH GREECE .

14 THE FINANZGERICHT NEVERTHELESS TOOK INTO ACCOUNT THE FACT THAT ACCORDING TO CERTAIN DECISIONS OF GERMAN COURTS THE SYSTEM OF RELIEF MUST BE CLASSIFIED AS A SUBSIDY MEASURE IN VIEW OF ITS CLOSE LINK WITH THE MARKETING OF MONOPOLY SPIRITS , THE DEFICIT OF WHICH IS MADE GOOD OUT OF THE STATE BUDGET . FURTHERMORE THE OBERFINANZDIREKTION CLAIMED THAT ARTICLE 37 OF THE TREATY , WHICH GOVERNS NATIONAL MONOPOLIES SUCH AS THE GERMAN MONOPOLY IN SPIRITS , EXCLUDED THE APPLICATION OF THE PROVISIONS OF ARTICLE 95 .

15 IN ORDER TO BE ENABLED TO RESOLVE THESE PROBLEMS , THE FINANZGERICHT HAS REFERRED TO THE COURT THE FOLLOWING THREE QUESTIONS :

' ' 1 . MUST ARTICLE 95 OF THE EEC TREATY AND ARTICLE 53(1 ) OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN ECONOMIC COMMUNITY AND GREECE AND ARTICLE 37 OF THE EEC TREATY BE CONSTRUED AS MEANING THAT THE CRITERIA LAID DOWN IN THOSE PROVISIONS ARE APPLICABLE TO A MEASURE ADOPTED BY A STATE WHICH IN CONNECTION WITH AN INCREASE IN THE DUTY ON SPIRITS AND THE GRANTING OF AID TO PARTICULAR DOMESTIC PRODUCERS OF SPIRITS PROVIDES FOR RELIEF TO BE GRANTED THROUGH THE TAX ASSESSMENTS IN RESPECT OF SPIRITS WHICH WERE IN STOCK AT THE TIME OF THE SAID MEASURE , BUT ON WHICH DUTY HAS NOT YET BEEN CHARGED , OR DOES THE RELIEF OF THE SAID TYPE FALL TO BE JUDGED IN THE LIGHT OF THE PROVISIONS ON AIDS CONTAINED IN ARTICLE 92 ET SEQ . OF THE EEC TREATY?

2.IF THE PROVISIONS OF ARTICLE 37 AND/OR ARTICLE 95 OF THE EEC TREATY AND ARTICLE 53(1 ) OF THE ASSOCIATION AGREEMENT ARE APPLICABLE :

ARE THOSE PROVISIONS TO BE CONSTRUED AS MEANING THAT THEY CONFER UPON IMPORTERS A LEGAL RIGHT TO DEMAND THAT SPIRITS IMPORTED FROM OTHER MEMBER STATES BE RELIEVED OF DUTY IN THE SAME WAY AS DOMESTIC SPIRITS ON THE BASIS OF GENERAL ADMINISTRATIVE INSTRUCTIONS , IRRESPECTIVE OF WHETHER UNDER NATIONAL LAW THE RELIEF IS CLASSIFIABLE AS A SUBSIDY OR AS A TAX CONCESSION AND REGARDLESS OF WHETHER UNDER NATIONAL LAW THE RELIEF IS LAWFUL OR UNLAWFUL?

3.IF THE PROVISIONS ON AIDS ARE APPLICABLE :

DOES THE PRINCIPLE OF EQUALITY , GENERALLY APPLICABLE IN COMMUNITY LAW , CONFER UPON IMPORTERS OF GOODS A LEGAL RIGHT TO DEMAND THAT IMPORTERS OF SPIRITS FROM OTHER MEMBER STATES RECEIVE SUBSIDIES IN THE SAME WAY AS OTHER IMPORTERS OR DOMESTIC PRODUCERS OF SPIRITS OR DEALERS IN SPIRITS?

' '

16 THE FIRST TWO QUESTIONS , WHICH CONCERN THE CLASSIFICATION FOR THE PURPOSES OF COMMUNITY LAW OF A SYSTEM OF RELIEF OF THE KIND FORMING THE SUBJECT-MATTER OF THE DISPUTE IN THE MAIN ACTION , SHOULD BE CONSIDERED TOGETHER .

17 THESE QUESTIONS ARE ESSENTIALLY DESIGNED TO ASCERTAIN WHETHER A SYSTEM OF RELIEF , WHICH WAS INTRODUCED ON THE BASIS OF ADMINISTRATIVE INSTRUCTIONS IN CONNECTION WITH AN ALTERATION IN THE TAX ON SPIRITS FOLLOWING AN ADJUSTMENT OF THE NATIONAL MONOPOLY IN SPIRITS , MUST BE JUDGED ON THE BASIS OF ARTICLE 95 OF THE ASSOCIATION AGREEMENT WITH GREECE OR WHETHER THAT IS PRECLUDED BY AN APPLICATION OF ARTICLE 37 OF OF ARTICLES 92 AND 93 OF THE TREATY , AND , IN THE FORMER CASE , WHETHER THE IMPORTER MAY RELY UPON THE PROVISIONS IN QUESTION BEFORE A NATIONAL COURT .

18 AS THE COMMISSION HAS RIGHTLY SUBMITTED , THE LEGAL CLASSIFICATION IN COMMUNITY LAW OF A NATIONAL MEASURE DOES NOT DEPEND UPON HOW THAT MEASURE IS VIEWED OR APPRAISED IN THE NATIONAL CONTEXT . THE NEED TO ENSURE THAT THE PROVISIONS OF THE TREATY ARE APPLIED IN A UNIFORM MANNER THROUGHOUT THE COMMUNITY REQUIRES THAT THEY SHOULD BE INTERPRETED INDEPENDENTLY .

19 ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT ARTICLE 95 IS INTENDED TO COVER ALL TAXATION PROCEDURES WHICH CONFLICT WITH THE PRINCIPLE OF EQUALITY OF TREATMENT OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS . ACCORDINGLY THAT PROVISION APPLIES TO MEASURES OF RELIEF WHICH , WITHIN THE FRAMEWORK OF AN INCREASE IN TAXES ON SPIRITS , ACCORD MORE FAVOURABLE TREATMENT TO SIMILAR DOMESTIC PRODUCTS THAN TO IMPORTED PRODUCTS EVEN THOUGH SUCH MEASURES WERE ADOPTED ON THE BASIS OF ADMINISTRATIVE INSTRUCTIONS .

20 IT SHOULD FURTHER BE RECALLED THAT THE COURT , IN ITS JUDGMENT OF 25 NOVEMBER 1981 ( CASE 4/81 ANDRESEN ( 1981 ) ECR 2835 ) DECIDED THAT THE TERM ' ' TAXATION ' ' CONTAINED IN ARTICLE 95 OF THE TREATY MUST BE REGARDED AS COVERING , IN SO FAR AS THE SELLING PRICE FOR SPIRITS FIXED BY A NATIONAL MONOPOLY IS CONCERNED , ONLY THAT PART OF THE PRICE WHICH THE MONOPOLY IS REQUIRED BY LAW TO REMIT TO THE STATE TREASURY AS A TAX ON SPIRITS , DETERMINED AS TO AMOUNT , TO THE EXCLUSION OF ALL OTHER ELEMENTS OR CHARGES , ECONOMIC OR OTHER , INCLUDED IN THE CALCULATION OF THE MONOPOLY SELLING PRICE .

21 IT FOLLOWS THAT A TAX COMPONENT INCLUDED IN THE TAXATION OF IMPORTED SPIRITS AND CORRESPONDING TO A NON-TAX COMPONENT IN THE SELLING PRICE OF SPIRITS MARKETED BY THE FEDERAL MONOPOLY ADMINISTRATION IS DISCRIMINATORY . CONSEQUENTLY IF THE SAME AMOUNT OF RELIEF IS AVAILABLE IN RESPECT OF DIFFERENT TAXES IMPOSED ON IMPORTED SPIRITS ON THE ONE HAND AND ON THE DOMESTIC SPIRITS OF A MONOPOLY ON THE OTHER THE LESS FAVOURABLE TAX TREATMENT OF THE IMPORTED SPIRITS CONTINUES AND THE SAID DISCRIMINATION SUBSISTS .

22 IN THOSE CIRCUMSTANCES IT IS IRRELEVANT TO ESTABLISH WHETHER SUCH MEASURES OF RELIEF MAY ALSO BE CONSIDERED AS AID WITHIN THE MEANING OF ARTICLES 92 AND 93 OF THE TREATY . IT IS CLEAR FROM THE CASE-LAW OF THE COURT AND IN PARTICULAR FROM THE JUDGMENT OF 21 MAY 1980 ( CASE 73/79 COMMISSION V ITALY ( 1980 ) ECR 1547 ) THAT A MEASURE CARRIED OUT BY MEANS OF DISCRIMINATORY TAXATION , WHICH MAY BE CONSIDERED AT THE SAME TIME AS FORMING PART OF AN AID WITHIN THE MEANING OF ARTICLE 92 , SHOULD IN ANY CASE BE GOVERNED BY ARTICLE 95 .

23 LIKEWISE THE FACT THAT THE MEASURES OF RELIEF ARE LINKED TO THE ADJUSTMENT OF THE NATIONAL MONOPOLY IN SPIRITS DOES NOT LEAD TO A DIFFERENT CONCLUSION . AS THE COURT HAS STATED IN ITS JUDGMENT OF 13 MARCH 1979 ( CASE 86/78 PEUREUX ( 1979 ) ECR 897 ) THE RULES CONTAINED IN ARTICLE 37 OF THE TREATY CONCERN ONLY ACTIVITIES INTRINSICALLY CONNECTED WITH THE SPECIFIC BUSINESS OF THE MONOPOLY IN QUESTION . THEY ARE THUS IRRELEVANT TO NATIONAL PROVISIONS WHICH HAVE NO CONNECTION WITH SUCH SPECIFIC BUSINESS , LIKE THOSE CONCERNING RELIEF FOR SPIRITS ON WHICH TAX WAS PREVIOUSLY CHARGED .

24 IT FOLLOWS FROM THE FOREGOING THAT ARTICLE 95 OF THE EEC TREATY APPLIES TO A NATIONAL SYSTEM OF RELIEF WHICH ACCORDS , ON THE BASIS OF ADMINISTRATIVE INSTRUCTIONS , LESS FAVOURABLE TREATMENT TO SPIRITS COMING FROM OTHER MEMBER STATES THAN TO SIMILAR DOMESTIC PRODUCTS . SINCE ARTICLE 95 IS DIRECTLY APPLICABLE THE IMPORTER OF SPIRITS COMING FROM OTHER MEMBER STATES MAY RELY UPON IT BEFORE THE NATIONAL COURTS .

25 ARTICLE 53 ( 1 ) OF THE ASSOCIATION AGREEMENT WITH GREECE IS WORDED AS FOLLOWS :

' ' NEITHER CONTRACTING PARTY SHALL IMPOSE , DIRECTLY OR INDIRECTLY , ON THE PRODUCTS OF THE OTHER CONTRACTING PARTY ANY INTERNAL TAXATION OF ANY KIND IN EXCESS OF THAT IMPOSED DIRECTLY OR INDIRECTLY ON SIMILAR DOMESTIC PRODUCTS .

NEITHER CONTRACTING PARTY SHALL IMPOSE ON THE PRODUCTS OF THE OTHER CONTRACTING PARTY ANY INTERNAL TAXATION OF SUCH A NATURE AS TO AFFORD INDIRECT PROTECTION TO OTHER PRODUCTS .

THE CONTRACTING PARTIES SHALL , NOT LATER THAN THE BEGINNING OF THE THIRD YEAR AFTER THE ENTRY INTO FORCE OF THIS AGREEMENT , REPEAL ANY PROVISION EXISTING AT THE DATE OF ITS ENTRY INTO FORCE WHICH CONFLICTS WITH THE ABOVE RULES . ' '

26 THAT PROVISION , THE WORDING OF WHICH IS SIMILAR TO THAT OF ARTICLE 95 OF THE TREATY , FULFILS , WITHIN THE FRAMEWORK OF THE ASSOCIATION BETWEEN THE COMMUNITY AND GREECE , THE SAME FUNCTION AS THAT OF ARTICLE 95 . IT FORMS PART OF A GROUP OF PROVISIONS THE PURPOSE OF WHICH WAS TO PREPARE FOR THE ENTRY OF GREECE INTO THE COMMUNITY BY THE ESTABLISHMENT OF A CUSTOMS UNION , BY THE HARMONIZATION OF AGRICULTURAL POLICIES , BY THE INTRODUCTION OF FREEDOM OF MOVEMENT FOR WORKERS AND BY OTHER MEASURES FOR THE GRADUAL ADJUSTMENT TO THE REQUIREMENTS OF COMMUNITY LAW .

27 IT ACCORDINGLY FOLLOWS FROM THE WORDING OF ARTICLE 53 ( 1 ), CITED ABOVE , AND FROM THE OBJECTIVE AND NATURE OF THE ASSOCIATION AGREEMENT OF WHICH IT FORMS PART THAT THAT PROVISION PRECLUDES A NATIONAL SYSTEM OF RELIEF FROM PROVIDING MORE FAVOURABLE TAX TREATMENT FOR DOMESTIC SPIRITS THAN FOR THOSE IMPORTED FROM GREECE . IT CONTAINS A CLEAR AND PRECISE OBLIGATION WHICH IS NOT SUBJECT , IN ITS IMPLEMENTATION OR EFFECTS , TO THE ADOPTION OF ANY SUBSEQUENT MEASURE . IN THOSE CIRCUMSTANCES ARTICLE 53 ( 1 ) MUST BE CONSIDERED AS DIRECTLY APPLICABLE FROM THE BEGINNING OF THE THIRD YEAR AFTER THE ENTRY INTO FORCE OF THE AGREEMENT , ON WHICH DATE ALL MEASURES CONFLICTING WITH THAT PROVISION WAS , BY VIRTUE OF ITS THIRD SUBPARAGRAPH , TO BE ABOLISHED .

28 ACCORDINGLY THE REPLY TO THE FIRST AND SECOND QUESTIONS MUST BE THAT AN IMPORTER OF SPIRITS FROM OTHER MEMBER STATES MAY RELY BEFORE A NATIONAL COURT ON THE FIRST SUBPARAGRAPH OF ARTICLE 53 ( 1 ) OF THE ASSOCIATION AGREEMENT WITH GREECE AGAINST THE APPLICATION OF NATIONAL MEASURES OF TAX RELIEF FOR SPIRITS , INTRUDUCED ON THE BASIS OF ADMINISTRATIVE INSTRUCTIONS IN CONNECTION WITH AN ALTERATION IN THE TAXES ON SPIRITS FOLLOWING THE ADJUSTMENT OF THE NATIONAL MONOPOLY IN SPIRITS IF SUCH MEASURES HAVE THE EFFECT OF ACCORDING LESS FAVOURABLE TREATMENT TO SUCH SPIRITS THAN TO SIMILAR DOMESTIC PRODUCTS .

29 IN VIEW OF THAT REPLY IT IS UNNECESSARY TO CONSIDER THE THIRD QUESTION WHICH CONCERNS THE DETAILED RULES FOR THE APPLICATION OF ARTICLES 92 AND 93 OF THE TREATY .

COSTS

30 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 31 OCTOBER 1981 , HEREBY RULES :

AN IMPORTER OF SPIRITS COMING FROM OTHER MEMBER STATES OR FROM GREECE MAY RELY BEFORE A NATIONAL COURT ON THE PROVISIONS OF ARTICLE 95 OF THE TREATY OR OF THE FIRST SUBPARAGRAPH OF ARTICLE 53 ( 1 ) OF THE ASSOCIATION AGREEMENT WITH GREECE AGAINST THE APPLICATION OF NATIONAL MEASURES OF TAX RELIEF FOR SPIRITS , INTRODUCED ON THE BASIS OF ADMINISTRATIVE INSTRUCTIONS IN CONNECTION WITH AN ALTERATION IN THE TAXES ON SPIRITS FOLLOWING THE ADJUSTMENT OF THE NATIONAL MONOPOLY IN SPIRITS IF SUCH MEASURES HAVE THE EFFECT OF ACCORDING LESS FAVOURABLE TREATMENT TO SUCH SPIRITS THAN TO SIMILAR DOMESTIC PRODUCTS .