Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The problems to be settled in the present action once again arise from the German monopoly in spirits. It should be recalled first of all that, following the judgments delivered by the Court of Justice on 17 February 1976 in Cases 45/75 (Rewe) and 91/75 (Miritz), the Federal Republic, by a Law of 2 May 1976, amended the rules concerning spirits and inter alia liberalized imports, abolishing the monopoly's exclusive right in that field. This produced an immediate increase in imports and a perceptible fall in the selling prices of spirits on the German market. In fact the State monopoly, which was now encountering competition from products freely imported, was obliged to reduce its own selling prices from DM 333 per hectolitre of wine-spirit to DM 183 as from 23 February 1977 and to DM 115 as from 15 June 1977. However, the high purchase prices at which the monopoly purchased spirits were maintained unaltered; this would have led to a serious deficit for the monopoly if the said Law of 2 May 1976 had not made provision for an increase in the tax on the consumption of spirits, increasing it from DM 1500 to DM 1650 per hectolitre. However, consumers of grainspirits not marketed directly by the producer and those of the monopoly's spirits not marketed directly by the producer and those of the monopoly's spirits were exempted from that increase. By the Law of 5 July 1976 the tax on consumption was increased again and fixed at DM 1950 per hectolitre as from 1 January 1977.

2. With regard to Question 1 I have to observe that its wording is such as to give rise to doubts: this is all the more unfortunate in that the whole group of points making up Question 2 is conditional on an affirmative answer to Question 1. In fact, when the Finanzgericht asks whether Article 37 of the EEC Treaty is a lex specialis in relation to Articles 92 and 93 it seems to be advancing the view that the implementation of Article 37 takes precedence over compliance with the provisions of Articles 92 and 93 and may perhaps constitute an exception to them. However, when the Finanzgericht explains that it is referring to State measures which affect the movement of goods between Member States and, where applicable, between Member States and third countries which may contain inter alia an aid and asks whether such measures must also be judged in the light of Article 37 the problem takes on a different aspect: it is in fact assumed that measures of the sort described fall within the scope of Articles 92 and 93 and the doubt expressed is merely as to whether, in connexion with those articles, regard must also be had for Article 37 where the aids are related to a State monopoly of a commercial character. In sum it may confidently be taken the point raised by the Finanzgericht is the relationship between Article 37, on the one hand, and Articles 92 and 93, on the other: it is my view that this point should be treated generally and that thereafter consideration should be given to the various heads which constitute the second question.

3. However, I do not wish to pass over the argument, supported by the Commission, that Article 4 of Regulation No 26 is still in force. In that case due weight must also be attached to observance in the agricultural sector of the provisions of Article 93 (1) and of the first sentence of Article 93 (3) of the Treaty, which are the sole provisions dealing with State aids. It is also necessary to consider the legal status of a national aid granted in breach of the first sentence of Article 93 (3).

4. By Question 2 (a) the German court in substance asks whether the prohibition, imposed on Member States under Article 37, on the adoption on any new measures which are contrary to the prohibition on discrimination between nationals of Member States regarding the conditions under which goods are procured and marketed also applies to measures increasing the tax on consumption which, whilst uniformly applicable to domestic and imported products, is intended indirectly to compensate for the losses of a State monopoly arising from the imbalance between the high purchase prices guaranteed to domestic producers and the low selling prices of the products.

5. It remains to consider the last of the problems of discrimination set out above in the context of Question 2 (a), namely the fact that the tax on consumption on imported products is heavier than on corresponding domestic products, which are favoured by a special system of reductions.

6. The decisions of the Court of Justice already provide an affirmative answer to Question 2 (c). The judgment of 17 February 1976 in Case 45/75 Rewe ([1976] 1 ECR 181) concerning the interpretation of Article 37 of the EEC Treaty, likewise in relation to the German spirits monopoly, stated in paragraph 24 that … the prohibition on all discrimination regarding the conditions under which goods are produced or put into circulation by nationals of the various Member States are procured and marketed constitutes a basic principle which, by its very nature, directly concerns the economic and legal position of those nationals. As a reference to a set of provisions which are actually applied to nationals, this rule is, by its very nature, capable of being directly invoked by those to whom it applies. In the same judgment it was also stated that when the [transitional] period has expired, the duty [embodied in Article 37] is no longer subject to any condition, nor can its performance or effects be subject to the adoption of any measure either by the Community or the Member States, and, by its very nature it is capable of conferring on those concerned individual rights which the national courts must protect.

7. The Finanzgericht Hamburg further asks (Question 2 (d)) whether the sphere of application of Article 37 of the EEC Treaty also extends to measures affecting the importation of goods from third countries and if so subject to what conditions.

8. For all the reasons set out above I conclude by suggesting that the Court should reply with the following ruling to the questions referred to it pursuant to Article 177 of the EEC Treaty by the Finanzgericht Hamburg in its order of 27 March 1978:

1 Translated from the Italian.

2 Translator's note: Mr Capotorti's comments a; this point appear to be based on a discrepancy between the German and Italian versions of the questions submitted by the Finanzgericht.