OPINION OF MR MAYRAS — CASE 7/78 REGINA v THOMPSON

Mr President,

Members of the Court,

I —. Thanks to the very comprehensive report for the hearing presented by the Judge-Rapporteur Your Lordships undoubtedly have in mind the facts giving rise to this reference for a preliminary ruling by the Court of Appeal (Criminal Division) and also the wording of the questions referred to Your Lordships by that court.

II —. The answer to the first question determines the outcome of the dispute. By this question the Court of Appeal requests you to classify the coins in question, Krugerrands and English silver coins, under Community law: in short it would like to know whether they are goods or capital. If under Community law they are goods they fall within the provisions of Chapter 2 of Title I of Part two relating to the elimination of quantitative restrictions between Member States and measures having equivalent effect, which hinder the free movement of goods, both on imports (Article 30) and also on exports (Article 34), unless the provisions of Article 36 of the Treaty are applicable to them.

III —. If the coins in question are in fact goods the second question referred by the national court is whether certain of the provisions of Article 36 afford justification for the restrictions in this case. Although for reasons which I will give later the answer to this question does not appear to be necessary for the determination of the appeal, I submit the following observations on this aspect of the matter:

IV —. Nevertheless these considerations do not dispose of the problem. Although some gold and silver coins are in certain respects goods which can in some, if not all of the Member States, perfectly legally be the subject-matter of banking transactions, subject to payment of any VAT which may be chargeable, they are goods of a very special kind which, as I am going to explain, could and can be assimilated to capital by reason of the circumstances and conditions of and methods used in the transactions of which they are the subject-matter.

V —. It is advisable now to return to the implications of Articles 67 and 71. The latter provides that:

In these circumstances it does not seem to me to be necessary to answer the last question referred to the Court and I submit that Your Lordships should declare that:

1 Translated from the French.