Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In the proceedings for a preliminary ruling to which this Opinion relates the Court is called upon to decide whether Community law allows turnover tax to be levied on a narcotic substance imported by way of contraband which cannot be lawfully marketed and is liable to be confiscated and destroyed by the national authorities.

2. A preliminary remark is called for: the legislation which the Finanzgericht asks this Court to interpret was not in force at the material time. In 1974 the applicable legislation was the second Council Directive of 11 April 1967 concerning the structure and procedures for application of the common system of value added tax (Official Journal, English Special Edition 1967, p. 16), which was later superseded by the Sixth Directive. For the present purposes, however, the two directives in fact contain practically identical provisions. What the parties have said (and what I shall say) with respect to one is valid also with respect to the other.

3. The Government of the Federal Republic of Germany suggests that the Court should rule that the levying of the tax in question is compatible with Article 2 (b) of the Second Directive. That provision, argues the German Government, draws no distinction between legal and illegal imports, and moreover there are no provisions exempting the latter from the tax. Is there a lacuna? Certainly not. The directive is inspired by the principle that taxes must be fair and that very principle prohibits more favourable tax treatment for unlawful acts. That is confirmed by the objectives of the tax: it is intended to ensure that all goods bear the same burden, regardless of their origin and the channels through which they are distributed, in order to achieve neutrality in competition in international trade and full equalization at the frontier and to give effect to the principle, which generally applies in the field of indirect taxation, according to which indirect taxes are levied in the State of destination.

4. Let me say immediately that I am not convinced by the German Government's argument. This Court has set out certain principles regarding the illegal importation of drugs to which I subscribe entirely and which I consider applicable to the present case. There is no doubt that this case displays a number of special features, but they are not so special as to justify a departure from previous decisions.

5. I believe, as I said earlier, that the Court's judgment will be consistent with those statements only if, as suggested by the plaintiff in the main proceedings, the Commission, and the French Government, it is held that the unlawful importation of narcotic drugs is similarly not subject to turnover tax.

6. In view of all the foregoing considerations, I propose that the Court reply as follows' to the question submitted by the Finanzgericht Baden-Württemberg by order of 29 October 1982:

1 Translated from the Italian.