Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

The Finanzgericht [Finance Court] Hamburg, has made a reference to the Court for a preliminary ruling on the interpretation of Articles 37, 92 et seq. and 95 of the EEC Treaty and of the provision, corresponding to the lastmentioned article, contained in the Agreement of 1961 establishing an association between the EEC and Greece.

The facts are as follows:

The dispute is between Pabst & Richarz KG, an importer of spirits produced from wine (Branntwein aus Wein) and the Federal Finance Administration.

1. The dispute arises from the transitional measures adopted by the competent authorities of the Federal Republic of Germany following the judgments of the Court of February 1976 in which the Court ruled in substance that prohibitions on imports and taxes on imports in favour of national monopolies and the component, known as the Monopolausgleichspitze [marginal element of the monopoly equalization duty], of the tax applied to imported spirits (judgment of 17 February 1976, in Case 45/75 Rewe [1976] ECR 181) were contrary to the Treaty.

2. It was in those circumstances that the Federal Minister of Finance organized, by circulars of 23 March, 15 April and 1 July 1976 a system of tax relief for spirits which at a reference date, 22 February, were held in individually-owned spirits warehouses and in bonded warehouses (Zollager) subject to deferment of duty (unter Steueraufschub) except for goods removed from warehouses up to 17 March 1976. It was the order of 15 April which established the system with which the main action is concerned (unchallenged observation by Pabst, p. 4).

3. The undertaking Pabst & Richarz KG runs an establishment distilling spirits from wine. It has an individually-owned spirits warehouse (which is not the subject of the main action) and a storage tank, a so-called Tanklager which is under customs supervision. At the reference date the raw spirit in the storage tank amounted to 13278 hectolitres of wine-spirit. That spirit came from Member States of the EEC (France and Italy) and from Greece. When the product entered the warehouse Pabst & Richarz paid the marginal element of the monopoly equalization duty amounting, according to the order making the reference, to DM 80 per hectolitre of wine-spirit. That tax was refunded to it.

In its first question the Finanzgericht asks the Court whether a measure adopted by a State which in connection with an increase in the duty on spirits and the granting of aid to particular domestic producers of spirits provides relief to be granted through the tax assessments in respect of spirits which were in stock at the time of the said measure, but on which duty had not been charged must be considered as a tax measure for the purposes of Article 95 of the Treaty and of Article 53 (1) of the Association Agreement with Greece or a measure concerning Article 37 of the Treaty on State monopolies of a commercial character or on the other hand as a measure of aid for the purposes of Articles 92 et seq. of the Treaty.

The question thus concerns first and foremost the choice between the Community provisions on State aids and Articles 37 and 95 which, as the judgment of the Court of 10 October 1978, Hansen, (Case 148/77, [1978] ECR 1807, paragraph 13 of the decision) indicates, are both founded on the same principle, the elimination of all discrimination in trade between Member States. Nevertheless, I shall also consider the question of the relation between Anieles 37 and 95 since none of the pames to this action has argued in favour of the provisions concerning aids but are, on the other hand, at odds with each other in regard to the choice to be made between Article 95 and Article 37.

1. According to the order making the reference it is an important matter for German law to establish whether the relief in question constitutes a tax measure or an aid. The Finanzgericht considers, by taking account in particular of the objective pursued by the system of relief, that it constitutes in German law a measure designed to achieve equity in taxation. On the other hand according to an interlocutory decision of the Bundesfinanzhof [Federal Finance Court] of 1 April 1980 (VIII R 17/78) that system must instead be classified as a subsidy.

2. With regard to Community law none of the parties to these proceedings has maintained that the relief in question must be considered as an aid for the purposes of Article 92 of the Treaty.

3. In those circumstances, having regard to the case-law of the Court on the relation between Article 95 of the Treaty and Articles 92 to 94, it is likewise unnecessary to determine whether the measure in question may also be classified as an aid.

4. With regard to Articles 37 and 95 their respective scope was delimited inter alia by the judgment of the Court of 13 March 1979 in the Peureux case which states that the rules contained in Article 37 concern only activities intrinsically connected with the specific business of the monopoly and are irrelevant to national provisions which have no connection with such specific business (Case 86/78. [1979] ECR 913. paragraph 35 of the decision).

In its second question the Finanzgericht asks the Court essentially whether these provisions have direct effect, as it is inclined to think, regardless of the classification and even of the lawfulness of the measure of relief at issue under national law. It puts the same question to the Court with regard to Article 37 of the Treaty.

1. First of all the independence of Community law generally precludes the direct effect of a provision of Community law from depending upon considerations of national law.

2. Accordingly only the question of the direct effect of Article 53(1) of the Agreement establishing an association between the EEC and Greece calls for the attention of the Court.

3. These two conditions appear to me to be fulfilled in this case.

4. The spirit and general plan of the Athens Agreement also satisfied the second condition.

In view of my reply to the first question I shall examine only as a subsidiary issue the question whether Community law, by virtue of the general principle of equality, confers upon an importer the right, in respect or spirits imported from other Member States, to qualify for subsidies in the same way as spirits produced or distributed domestically.

I consider that the reply to that question can only be in the negative.

According to the judgment of the Court of 11 March 1977 in Case 78/76 Steinike & Weinlig v Germany [1977] ECR 595 the right to challenge the compatibility of an aid with Community law before national courts and to ask them to decide as to any compatibility which may be the main issue in actions before them or may arise as a subsidiary issue (first sentence of paragraph 10 of the decision [1977] ECR 609) may be granted to individuals only where the provisions of Article 92 have been applied by the general provisions provided for in Article 94 or by specific decisions under Article 93(2) (second sentence of paragraph 10 of the decision, [1977] ECR 609).

Apart from that case it is clear from the role accorded to the Commission and to the Council by Articles 93 and 94 in considering the compatibility with the Treaty of aid granted by States (judgment in the Steinike & Weinlig case, paragraphs 6 to 9 of the decision [1977] ECR p. 608 and 609) that the individuals concerned have no right to obtain through a national court an aid granted to their competitors.

In conclusion I suggest that the following reply should be given to the questions put to the Court by the Finanzgericht.

1 Translated from the French.

2 3 February 1976, Manghera, Case 59/75 [1976] ECR 91

3 17 February 1976. Miritz. Case 91/75 [1976] ECR 217