Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The monopoly in spirits in the Federal Republic of Germany (which is based on the Law of 8 April 1922 as last amended by the Law of 2 March 1974) has already led to the submission of a number of requests to the Court of Justice for preliminary rulings, principally concerning the interpretation of Article 37 of the EEC Treaty. I refer to the judgment of 16 December 1970 in Case 13/70, Cinzano ([1970] ECR 1089), that of 17 February 1976 in Case 45/75, RE WE ([1976] ÉCR 181) and that of 17 February 1976 in Case 91/75, Miritz ([1976] ECR 217).

2. I feel that a thorough analysis of the problems concerned in the first and second questions may be facilitated by a different approach. Let us accept as our point of departure that Article 37, inasmuch as it is included in the tide of the EEC Treaty concerning the free movement of goods, certainly applies to the French overseas departments within the meaning of Article 227 (2) of the Treaty. Having established that point, I consider that it must first be sealed whether a case of tax discrimination related to the existence of a commercial monopoly comes within the particular scope of Article 37 (1) after the end of the transitional period. Secondly we must consider whether a case of this nature may be regarded as falling under Anide 95 even if the alleged tax discrimination concerns goods imported from French overseas departments rather than from Member States. Thirdly it must be established whether, for the purposes of Anides 37 and 95, products imported from Member States or from French overseas departments must receive the more favourable tax treatment accorded to domestic products even if, for special reasons, such treatment is limited to a restricted number of cases.

3. The application of Article 95 to the present case, which concerns goods imponed from a French overseas department seems questionable in that the said first subparagraph of Anide 227 (2) does not include the tax provisions (Chapter 2 of Title I of Pan Three of the Treaty) in its list of the provisions of the Treaty applicable to such departments whilst it does contain the entire title on the free movement of goods, including the chapter immediately preceding the chapter on tax provisions (competition rules).

4. We must now consider in the light of the principle of non-discrimination in tax matters which is to be inferred from Articles 95 and 37 of the Treaty of Rome whether it is possible to impose on goods imported into the Community from French overseas departments excise duties, in connexion with a monopoly, which are heavier than the minimum rate of the same duty imposed on corresponding domestic products or their substitutes where the minimum rate is applied only to a small percentage of domestic production and is granted for special reasons of a social nature.

5. I shall now tum to consider the third question whereby the German court asks whether tax arrangements which are relaxed for national products can be classified as State aids referred to in Articles 92 to 94 of the EEC Treaty or by what criteria such aids are to be distinguished from internal taxation whose compatibility whith the Treaty must be assessed in the light of the principles embodied in Article 95 and where appropriate, with regard to monopolies, in Article 37.

6. In the fourth question the German court assumes that the taxation imposed on goods imponed from Member States and from the French overseas departments may not exceed the minimum rates imposed upon identical, similar or interchangeable domestic products and proceeds to consider the case of importations from countries outside the Community, asking whether the concept of a charge having an effen equivalent to customs dudes (Article 9 of the EEC Treaty) also coven excise duties on products imported from third countries where such dudes are heavier than those imposed on identical, similar or interchangeable goods coming from Member States or from the abovementioned territories.

I accordingly consider that, in the present sute of Community law, the Member States may apply to products coming from non-member countries a system of internal taxation which is of a discriminatory nature in the sense which has been described above.

7. In view of the negative answer to the fourth question I shall not deal with the fifth which was submitted in case an affirmative answer was given to the fourth.

1 Translated from the Italian