Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The reference for a preliminary ruling in relation to which the present opinion is delivered concerns the customs provisions applicable to a smuggled narcotic substance which cannot be lawfully traded and which is liable to be confiscated and destroyed by national authorities. The substance is in fact heroin. The issue is whether Community law permits the charging of customs duties on goods of that nature and, if so, under which rules and according to which criteria the value for customs purposes must be determined.

2. I start by examining the first point raised by the later order. The matter to be determined is whether Article 9 (1) and Articles 12 to 29 of the EEC Treaty allow a Member State to charge customs duties on drugs imported illegally and subsequently destroyed. The court making the reference expresses doubts in this regard on account of the fact that only German law provides for the charging of duties in the type of case described. Should this more severe treatment accorded to drug smugglers in the Federal Republic — and hence this lack of uniformity between the laws of the Member States with regard to a particular aspect of customs law — be regarded as compatible or not with the provisions of the Treaty relating to the customs union?

3. One matter in which harmonization of the laws of Member States has not yet been attained is the circumstances in which customs debts may be extinguished. On 25 June 1979 the Council issued Directive 79/623/EEC on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt, which seeks amongst other things to unify to a certain extent the rules governing the extinction of customs debts. However, the period granted to Member States for compliance with the obligations laid down will not expire until 1 January 1982. In relation to the issue with which we are dealing it is interesting to mention the ninth recital in the preamble to the directive, which states inter alia that it is necessary to specify in what circumstances the customs debt may be deemed not to have arisen or to be extinguished and which adopts the idea that the reasons for this extinction must be based on the recorded fact that the goods have not been used for the economic purpose which justified the application of import or export duties. In accordance with this principle, the circumstances which are stated to entail the extinction of the customs debt on importation include the destruction, on the order of the authorities and before their release from customs supervision, of the goods entered for release into free circulation (Article 9 (2) (a)).

4. In the final part of the question under consideration the German court asks whether the charging of customs duty in one Member State on the importation of goods which were seized and subsequently destroyed by order of the authorities is contrary to Article 7 of the Treaty. That article, of course, prohibits any discrimination on grounds of nationality. It is beyond discussion that the case in point discloses no such discrimination between importers from the point of view of the Member State which charges duty in spite of ordering the destruction of the goods. What is in issue is the different treatment of importers according to the Member State in which customs clearance is performed. That however has nothing to do with the rule contained in Article 7.

5. I now turn to consideration of the questions raised in the first order of the Finanzgericht Hamburg, which concern first of all the issue of the applicability of the Community provisions on value for customs purposes to goods smuggled into the customs territory of the Community and secondly the detailed rules for the determination of that value in relation to such goods.

6. Once it has been established that Regulation No 803/68 is applicable in principle to goods illegally imported into the customs territory of the Community, it remains to be seen whether the time and place of the importation may be determined by reference to the provisions of that Regulation.

7. The final question raised by the German court concerns the ascertainment of the persons who are bound to provide the national customs authorities with the information required in order to determine the value of the goods for customs purposes. Commission Regulation No 375/69 of 27 February 1969 and Commission Regulation No 1343/75 of 26 May 1975 provide that the importer must furnish the customs authorities with a declaration of particulars relating to the value of the goods for customs purposes and supply those authorities with a copy of the relevant invoice, again for the purpose of determining that value. The German court asks whether those provisions apply in relation to someone who acquires, within the customs territory of the Community, goods brought there illegally — with the result that a person acquiring the goods from the importer or from a subsequent dealer has to furnish the authorities with particulars of the price paid — or whether, in accordance with the principles laid down in Regulation No 803/68, the national authorities are obliged to determine the value for customs purposes on the basis of the price paid by the first purchaser residing in the territory of the Community.

8. In view of all the considerations which I have set out above I propose that the Court should reply to the questions submitted by the Finanzgericht Hamburg by orders of 15 January and 8 July 1980 as follows:

1 Translated from the Italian.