CJEC, March 13, 1979, No 119-78

THE COURT

1 By judgment of 21 april 1978 received at the court on 19 may the tribunal de grande instance, lure, referred a question for a preliminary ruling under article 177 of the eec treaty on the interpretation of articles 10 and 37 and other provisions of the treaty on the free movement of goods.

2 This question has arisen in proceedings which started in 1976 between the plaintiff in the main action and the competent french administrative authority and relates to the plaintiff ' s right to import into france for the purpose of distillation oranges steeped in alcohol coming from italy where they have been in free circulation.

3 When the plaintiff informed the authority that it would import the product for the purpose of distillation, the authority replied that there was nothing to stop the import but no licence would be granted for the distillation since it would be contrary to article 268 of annex ii to the code general des impots.

4 The article, as amended by article 3 of decree n°74-91 of 6 february 1974 (journal officiel de la republique francaise of 8 february 1974) provides ' ' distillation of all imported raw material, with the exception of fresh fruit other than apples, pears or grapes shall be prohibited ' '.

5 Article 268 is part of a set of provisions concerning the commercial monopoly in ethyl alcohol included essentially in the code general des impots (book 1, part 1, title iii, indirect taxation and fiscal monopolies, chapter i, section 1 (alcohol), letter b, economic system (articles 358 to 399) and annex ii (articles 268 to 275) to the code).

6 According to article 358 et seq. Of the code general des impots the effect of the monopoly is that producers of ethyl alcohol established in france or at least in metropolitan france must reserve to the state their production of ethyl alcohol save certain alcohol expressly mentioned in that article.

7 The volume produced is determined by fixed annual quotas allocated, by the minister responsible, to the manufacturers according to their technical capacity.

8 In return for the obligation on the producer to supply it, the monopoly has an obligation to buy the said alcohol at prices periodically fixed by order of the minister for finance.

9 The alcohol bought by the state is resold by it for all uses at fixed official prices.

10 Under article 385 of the code general des impots the import of alcohol from abroad is also reserved to the state.

11 Nevertheless as regards ethyl alcohol usable or consumable without further processing and spirits and spirituous beverages coming from other member states decree n°74-91 of 6 february 1974 in particular, adopted in the context of adjusting the monopoly in implementation of article 37 of the treaty, terminated the import monopoly so that since entry into force of the decree such alcohol, spirits and spirituous beverages may be imported from other member states and marketed in france subject to the payment of certain taxes which are nevertheless not in question in the main action.

12 The prohibition contained in article 268 of annex ii on distilling certain imported raw material must be related to the distinction made in article 358 of the code general des impots between alcohol reserved to the state (monopoly alcohol) and that not so reserved (free alcohol).

13 It appears from a comparison of the two provisions that article 268 prohibits the distillation of imported raw material when it is suitable for the production of alcohol which has to be reserved to the monopoly whereas that which is suitable for the production of alcohol not subject to delivery to the monopoly can be freely used.

14 The plaintiff maintained that the prohibition contained in the said article 268 was incompatible with community law and brought the matter before the tribunal de grande instance, lure, which referred the following question for a preliminary ruling:

' ' Is the prohibition in france on the distillation of spirits from any imported raw material, with the exception of fresh fruit other than apples, pears and grapes (article 268 of annex ii to the code general des impots), compatible with articles 10 and 37 or any other provision of the treaty of rome on the free movement and circulation of products coming from third countries, in particular as regards the distillation of spirits from oranges steeped in alcohol coming from italy?

' '

15 It further appears from the judgment of the national court that criminal proceedings have been taken against the plaintiff in the main action for having disregarded the prohibition in question and that a penalty of ff 17 804 343.19 has been imposed for breach of the economic system for alcohol.

16 Although the court has no jurisdiction under article 177 of the treaty to rule on the compatibility of a national provision with community law, it may nevertheless, having regard to the particulars supplied by the national court, extract from the wording of the question the factors relating to the interpretation of community law.

17 Understood in this way the question comes in substance to asking whether article 37 of the treaty on the one hand and article 30 together with article 10 on the other allow a member state which has a commercial monopoly in alcohol to maintain, or on the contrary prohibit it from maintaining, restrictions on distilling certain raw material suitable for processing into alcohol and imported from other member states when similar raw material, in the present case oranges steeped in alcohol, produced in the territory of the same member state, are not subject to such restrictions.

18 In referring to the provisions of the treaty on ' ' the free movement of goods ' ' the question amounts to asking whether a measure of the kind provided for by the national provision in question constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of article 30 of the treaty.

19 In referring to article 10 of the treaty the national court appears to be seeking elucidation on the question whether the fact that the oranges steeped in alcohol originate in a third country and are in free circulation in italy has a bearing on the way the case is decided.

20 Finally, referring to article 37 of the treaty, the court asks whether in the event of measures such as those contained in article 268 of annex ii having to be regarded as measures having an effect equivalent to quantitative restrictions on imports, they may nevertheless be regarded as permissible in the context of a commercial monopoly adjusted in accordance with the obligation imposed on member states by the said article 37.

21 It is appropriate to reply to the question in the order followed above.

Article 30 of the treaty

22 In prohibiting between member states measures having an effect equivalent to quantitative restrictions on imports article 30 of the treaty covers all trading rules of member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade.

23 Obstacles to intra-community trade resulting from differences between the provisions of national laws which have not yet been harmonized in relation to the marketing and use of certain products constitute, in principle, measures having an effect equivalent to quantitative restrictions unless those provisions apply without discrimination to products imported from other member states and to those produced or manufactured in the national territory.

Article 10 of the treaty

24 Article 10 (1) provides ' ' products coming from a third country shall be considered to be in free circulation in a member state if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that member state, and if they have not benefited from a total or partial drawback of such duties or charges ' '.

25 Article 9 (2) lays down that the provisions of the treaty on the elimination of quantitative restrictions between member states (part two, title i, chapter 2 of the treaty) shall apply to products coming from third countries which are in free circulation in a member state.

26 It follows that the prohibition of measures having an effect equivalent to quantitative restrictions in intra-community trade has the same scope as regards products imported from another member state after being in free circulation there as for those originating in the same member state.

Article 37 of the treaty

27 Article 37 of the treaty is a specific provision aiming not at the abolition but the adjustment of state monopolies of a commercial character on the one hand so as to ensure that when the transitional period has ended no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of member states (article 37 (1)) and on the other hand to ensure respect for the obligation on member states to refrain in the management and adjustment of a commercial monopoly from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the articles dealing with the abolition of customs duties and quantitative restrictions between member states (article 37 (2)).

28 The rules contained in article 37 (1) and (2) concern only activities intrinsically connected with the specific business of the monopoly and are irrelevant to national provisions which have no connexion with such specific business.

29 The question raised relates to a commercial monopoly specifically concerned with the obligation on national producers of certain alcohol to maintain production of such alcohol within the limits of annual quotas fixed by the public authority and to deliver their production only to the monopoly with the corresponding obligation on the monopoly to buy the said products at officially fixed prices.

30 It follows from the national character of the commercial monopolies referred to in article 37 and the possibility of maintaining them after adjustment in accordance with the same provision that the fact that the obligation to deliver to the monopoly and the corresponding obligation on it to purchase concerns only national alcohol cannot be regarded as discrimination within the meaning of article 37 (1) nor as a quantitative restriction within the meaning of article 37 (2). However the prohibition on any discrimination between the nationals of member states regarding the conditions under which goods are procured and marketed prevents a distinction from being made between the same kind of nationally produced alcohol according to whether it has been obtained from the distillation of national raw material or on the contrary by the distillation of raw material originating in another member state.

31 This is all the more so when as a result of the system governing the monopoly the authorities of the member state are entitled to fix annually the quantities of alcohol which may be produced and which must be delivered to the monopoly.

32 The appropriate answer to the question raised by the national court is therefore:

(a) A national provision prohibiting the distillation, for the purpose of manufacturing products reserved to a national commercial monopoly, of raw materials coming from other member states constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of article 30 of the treaty and a discrimination regarding the conditions under which goods are procured and marketed within the meaning of article 37 (1) of the treaty, where the prohibition does not apply to identical raw materials produced within the national territory.

(b) There are no grounds for drawing a distinction between products duly put into free circulation in another member state after having been imported from a third country and products originating in that member state.

Costs

33 The costs incurred by the commission of the european communities which has submitted observations to the court are not recoverable.

34 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the tribunal de grande instance, lure, by judgment of 21 april 1978, hereby rules:

1. A national provision prohibiting the distillation, for the purpose of manufacturing products reserved to a national commercial monopoly, of raw materials coming from other member states constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of article 30 of the treaty and a discrimination regarding the conditions under which goods are procured and marketed within the meaning of article 37 (1) of the treaty, where the prohibition does not apply to identical raw materials produced within the national territory.

2. There are no grounds for drawing a distinction between products duly put into free circulation in another member state after having been imported from a third country and products originating in that member state.