Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. The problem of the customs treatment to be accorded to smuggled drugs, which is the common subject-matter of the two cases, 221/81 and 240/81, has recently been examined by the Court, giving rise to the judgment of 5 February 1981 in Case 50/80, Horváth v Hauptzollamt Hamburg-Jonas [1981] ECR 385. In that judgment it was stated that the introduction of the Common Customs Tariff no longer leaves a Member State the power to apply customs duties to drugs which have been smuggled in and destroyed as soon as they were discovered but does leave it full freedom to take criminal proceedings in respect of offences committed, with all the attendant consequences, including fines.

On 26 April 1976 Wilfried Wolf was sentenced by the Landgericht [Regional Court] Düsseldorf to eight years' imprisonment for wilful and continued infringement of the German Law on drugs. The court had found that between July and October 1975 he had been a party to the distribution of 742 grams of heroin and 150 grams of cocaine, having obtained the drugs not only by purchasing them in Germany but also — in one instance — by personally importing them from the Netherlands. On the basis of the facts set out in the abovementioned judgment in criminal proceedings, the Hauptzollamt [Principal Customs Office] Düsseldorf (by a notice dated 3 December 1976, which was subsequently amended) declared that Mr Wolf was liable to duty because he had failed to declare the imported drugs to the customs authorities and had purchased imported goods after the customs debt had arisen but before it was discharged. The value for customs purposes of the goods in question was determined as DM 74200 for the heroin and DM 15000 for the cocaine.

Mr Wolf, after unsuccessfully lodging an objection through administrative channels against the assessment of duty, brought an appeal before the Finanzgericht (Finance Court) Düsseldorf, which by order of 10 June 1981 stayed the proceedings in order to refer the following questions to this Court for a preliminary ruling:

The Landgericht Freiburg sentenced Senta Einberger on 27 July 1977 to one year's imprisonment, likewise for infringement of the German Law on drugs. The offence committed by Mrs Einberger consisted of travelling on several occasions between Spring and Autumn 1974 from the Federal Republic of Germany to Switzerland and selling there, at various times and in quantities varying between 30 and 100 grams, 280 grams of morphine previously imported into the Federal Republic of Germany without authority and without payment of import duties. Having regard to the abovementioned judgment in criminal proceedings, the Hauptzollamt Freiburg issued a notice of assessment against Mrs Einberger on 19 January 1978 for import duties totalling DM 10960.36.

Mrs Einberger, after unsuccessfully lodging an objection through administrative channels, brought a legal action against the Hauptzollamt before the Finanzgericht Baden-Württemberg for annulment of the notice of assessment. By order dated 16 June 1981 the Finanzgericht stayed the proceedings in order to refer to this Court, pursuant to Article 177 of the EEC Treaty, the following question: Since the introduction of the Common Customs Tariff, has a Member State been authorized to charge customs duties on drugs which have been smuggled into and subsequently removed from the customs territory of the Community?

By order of 3 February 1982 the Court ordered that the two cases be joined for the purpose of the oral procedure, in view of their related subject-matter.

2. The questions submitted by the two German courts essentially seek from the Court an interpretation of the Horvath judgment, to which I referred at the beginning of this opinion. The Finanzgericht Düsseldorf, implicitly taking as the point of departure the principle enunciated in the Horvath case — that is to say that customs duties may not be levied on smuggled drugs which have been discovered and destroyed — raised the question whether the mere importation of contraband, without subsequent discovery and destruction, would result in the duties' not being payable if it were provided by law that smuggled drugs, if discovered, must be seized and destroyed. For its part, the Finanzgericht Baden-Württemberg adopted the same approach, raising the question whether the importation of contraband is sufficient to preclude the levying of customs duties even where the drug has subsequently been re-exported from the Community.

3. It seems to me that a careful analysis must be made of the Horvath judgment, not merely because the courts which submitted the questions took it into consideration, but because it clearly represents the fundamental point of reference. I shall confine myself to pointing out, in that respect, that the decision contained in that judgment is a considered decision the grounds of which are adequately stated — the fact that it differs from my opinion of 27 November 1980 [1981] ECR 399) does not induce me to re-expound the view which I thought preferable but rather to endeavour to understand and to clarify fully the reasoning underlying the view adopted by the Court.

4. The fact that that is the real meaning of the Horváth judgment is confirmed by the rules referred to in it and by the manner in which they are interpreted. Paragraph 13 of the decision refers to Article 18 of the EEC Treaty, that is to say to the rule which is at the beginning of the section devoted to the Setting up of the Common Customs Tariff, in which the Member States declare their readiness to contribute to the development of international trade and the lowering of barriers to trade by entering into agreements designed, on a basis of reciprocity and mutual advantage, to reduce customs duties below the general level of which they could avail themselves as a result of the establishment of a customs union between them. In that respect the Court observes: Since Article 18 of the EEC Treaty indicates that the setting up of the Common Customs Tariff is seen as a contribution to the develppment of international trade and the lowering of barriers to trade, it cannot relate to the importation of narcotics which are intended for unlawful use and are withdrawn from circulation as soon as they are discovered. To the same effect, reference might also be made — as was indeed made by the representative of the Commission during the oral procedure — to Article 29 of the EEC Treaty which mentions, among the general criteria by which the Commission should be guided in carrying out its tasks in connection with the Common Customs Tariff, a number of factors which are certainly incompatible with the application of the tariff to drugs intended for unlawful purposes: the need to promote trade between Member States and third countries (subparagraph (a)); the developments in conditions of competition within the Community (subparagraph (b)); the requirements of the Community as regards the supply of raw materials and semi-finished goods (subparagraph (c)); and the need to avoid serious disturbances in the economies of the Member States and to ensure rational development of production and an expansion of consumption within the Community (subparagraph (d)).

5. In the course of these proceedings mention has also been made, in support of the interpretation of the Common Customs Tariff upheld in the Horváth judgment, of the consideration that it is very difficult to prove what quantity of drugs has been smuggled when it has not been possible physically to locate and confiscate them; in consequence, it is impossible to determine the total value for customs purposes of the smuggled goods in order to determine the duty to be levied on them. I do not however think that such an argument is relevant or that it is necessary. In the first place, I doubt whether reasons of mere practical expediency should be used as a basis to establish the scope of a legal provision; it has been seen that the scope of such provisions is based rather on a matter of principle, namely the function attributed to the Common Customs Tariff in the context of economic integration within the Community. Moreover, the difficulties of proof referred to do not appear to constitute an insurmountable obstacle to the levying of duties. In cases where the quantity of the goods imported cannot be reliably established, the customs authorities often have recourse to inductive methods of assessment.

6. It is therefore essentially on the basis of the reasoning set out in the Horvath judgment (supplemented by further argument to the same effect, to which I have drawn attention) that the present two cases may be settled. The Court will be acting in a manner consistent with the views which it has expressed in the past if it holds that the import of smuggled drugs is not subject to customs duties, regardless of whether the drugs are discovered and destroyed or re-exported.

7. In view of all the foregoing considerations, I propose that the Court, in answer to the first question submitted by the Finanzgericht Düsseldorf by order of 10 June 1981 in Case 221/81, Wolf v Hauptzollamt Düsseldorf, should rule as follows: The provisions of the EEC Treaty relating to the customs union (Article 9 (1) and Articles 18 to 29) must be interpreted as meaning that after the introduction of the Common Customs Tariff a Member State is no longer authorized to levy customs duties on drugs in so far as the import and marketing thereof are prohibited. It is to be noted that the Finanzgericht's second question was submitted in the alternative in the event of a negative reply to the main question. Therefore, since the reply which I suggest is affirmative, there is no need to consider the second question.

1 Translated from the Italian.