C-17/81

PABST & RICHARZ v HAUPTZOLLAMT OLDENBURG

5. A measure carried out by means of the harmonization of agricultural discriminatory taxation, which may be policies, by the introduction of considered at the same time as freedom of movement for workers forming part of an aid within the and by other measures for the gradual meaning of Article 92 of the Treaty, adjustment to the requirements of should in any case be governed by- Community law. Article 95. It accordingly follows from the 6. The rules contained in Article 37 of wording of Article 53 (1), cited above, the Treaty concern only activities and from the objective and nature of intrinsically connected with the the Association Agreement of which it specific business of the monopoly in forms part that that provision question. They are thus irrelevant to precludes a national system of relief national provisions which have no from providing more favourable tax connexion with such specific business, treatment for domestic spirits than for like those concerning relief for spirits those imported from Greece. It on which tax was previously charged. contains a clear and precise obligation 7. Article 53 (1) of the Agreement which is not subject, in its establishing an Association between implementation or effects, to the the European Economic Community adoption of any subsequent measure. and Greece fulfils, within the In those circumstances Article 53 (1) framework of that Agreement, the must be considered as directly same function as that of Article 95 of applicable from the beginning of the the Treaty. It forms part of a group of third year after the entry into force of provisions the purpose of which was the Agreement, on which date all to prepare for the entry of Greece measures conflicting with that into the Community by the provision was, by virtue of its third establishment of a customs union, by subparagraph, to be abolished.

on the interpretation of Articles 37 and 95 of the EEC Treaty , Article 53 (1) of the Agreement establishing an Association between the European Economic Community and Greece and of Articles 92 et seq. of the EEC Treaty in relation to the application of certain administrative measures concerning the implementation of the German Law of 8 April 1922 on the Monopoly in Spirits ( Gesetz über das Branntweinmonopol ),

JUDGMENT OF 29. 4. 1982 — CASE 17/81

THE COURT (First Chamber )

composed of: G. Bosco , President of Chamber , A. O'Keeffe and T . Koopmans , Judges ,

Advocate General : S. Rozès Registrar : P . Heim

gives the following

PABST & RICHARZ v HAUPTZOLLAMT OLDENBURG

Around 1 January 1976 the date of 22 February 1976, except for marginal element of the monopoly goods removed from warehouses up to equalization duty (Monopolausgleich 17 March 1976. spitze) amounted to DM 80 per In the order making the reference it is hectolitre of wine-spirit. explained that the spirits held in Pursuant to the 1922 Law the Federal individually-owned warehouses and Monopoly Administration enjoys a bonded warehouses had already been monopoly of the importation or spirits. charged on entry to the warehouse with Nevertheless, as a result of the tax of the marginal element of the spirits judgments of the Court of Justice of 3 surcharge or the marginal element of the February 1976 (Mancherà, Case 59/75 monopoly equalization duty in so far as [1976] ECR 91) and of 17 February they were payable.

The Federal Monopoly Administration warehouse. was obliged by the cheaper importations resulting from this alteration in practice Thus at the time of the increase in the to reduce its prices for the sale of neutral rates of tax the individually-owned spirits spirit, first by DM 150 per hectolitre of warehouses contained domestic spirits wine-spirit and subsequently by other and imported spirits on which the amounts. Nevertheless it maintained the marginal elements of duty had already acquisition prices payable to producers been paid, together with spirits on which delivering spirits to the Federal they had not yet been charged, namely

1 650. At the same time the marginal two procedures. element of the spirits surcharge and of the monopoly equalization duty (Mono- First, spirits stored at the reference date polausgleichspitze) were abolished. were exempted from a fixed sum of DM 80 per hectolitre of wine-spirit in order In order to assist producers, manufac to offset the marginal element of the turers and importers in adapting spirits surcharge and the marginal

element of the monopoly equalization When the product entered the warehouse duty charged on entry to the warehouse. Pabst & Richarz paid the marginal In fact the marginal elements of duty element of the monopoly equalization varied between DM 16.05 and DM 99.54 duty, which amounted to DM 80 per per hectolitre of wine-spirit during the hectolitre of wine-spirit. That duty was period after October 1975. refunded to them under the system of

the months after April 1976. comparable relief. In fact, unlike the According to the order making the refund granted in respect of "monopoly" reference the Federal German Govern spirits, the tax relief for such spirits does ment failed to inform the Commission, in not compensate a corresponding prior accordance with Article 93 (3) of the charge imposed in the form of the EEC Treaty, of the system of relief. marginal element of the spirits surcharge According to the information supplied by or the marginal element of the monopoly the Monopoly Administration relief equalization duty and spirits bought granted on the basis of the above- from the Federal Monopoly Adminis mentioned circulars represented a total tration thus qualify for more favourable figure of some DM 72 000 000 and tax treatment, up to an amount of DM affected some 800 proprietors of 80 per hectolitre of wine-spirit. individually-owned spirits warehouses The Hauptzollamt on the other hand and an unknown number of proprietors considers that Pabst & Richarz has of bonded warehouses. obtained sufficient relief through the refund of the marginal element of the

came from Member States of the EEC 1. Must Article 95 of the EEC Treaty (France and Italy) and from Greece. and Article 53 (1) of the Agreement

establishing an Association between receive subsidies in the same way as the European Economic Community other importers or domestic producers and Greece and Article 37 of the EEC of spirits or dealers in spirits? Treaty be construed as meaning that the criteria laid down in those provisions are applicable to a measure adopted by a State which in 4. In the statement of the reasons on connection with an increase in the which the order making the reference is duty on spirits and the granting of aid based the Finanzgericht explains that in to particular domestic producers of formulating the preliminar)· questions it spirits provides for relief to be granted proceeded on the basis of the following through the tax assessments in respect legal considerations: of spirits which were in stock at the time of the said measure, but on which duty had not yet been charged, The national court considers that the or does relief of the said type fall to system of relief constitutes an equitable be judged in the light of the tax measure within the meaning of provisions on aids contained in Article Article 131 of the German Revenue 92 et seq. of the EEC Treaty? Code (Reichsabgabenordnung). The Finanzgericht, in a judgment of 31 October 1980 (IV 51/77 N), decided 2. If the provisions of Article 37 and/or that the system of relief was not in Article 95 of the EEC Treaty and accordance with that provision because it Article 53 (1) of the Association did not constitute intervention by the Agreement are applicable: administration in individual cases but a general provision exceeding the lawful powers of the administration. Never­ theless, in a decision of 1 April 1980 Are those provisions to be construed (VIII R 17/78) the Bundesfinanzhof as meaning that they confer upon [Federal Finance Court] classified the importers a legal right to demand that system of relief in accordance with imported spirits from other Member German law as a subsidy. States be relieved of duty in the same way as domestic spirits on the basis of general administrative instructions, irrespectively of whether under The Finanzgericht furthermore considers national law the relief is classifiable as that the question how the system of relief a subsidy or as a tax concession and must be classified in German law is regardless of whether under national irrelevant to the application of the law the relief is lawful or unlawful? provisions of Community law which have been invoked. Even if the measures in question are purely administrative the system of relief is in breach of Article 95 3. If the provisions on aids are of the EEC Treaty or Article 53 of the applicable: Association Agreement with Greece in so far as the tax on proprietors of individually-owned spirits warehouses Does the principle of equality, who held in such warehouses spirits generally applicable in Community coming from the Federal Monopoly law, confer upon importers of goods a Administrations was reduced by an legal right to demand that importers amount of DM 80 per hectolitre of of spirits from other Member States wine-spirit whilst Pabst & Richarz did

Finally the Finanzgericht explains that With regard to the facts Pabst & Richarz, the third question concerns the case, the plaintiff in the main action, remarks which in its view is improbable, where that the order making the reference the prohibition of tax discrimination is contains an error in the description of not affected by the system of relief. The the sequence of the system of relief. It court furthermore inclines to the view explains that with regard to stocks held that in so far as the system of relief in individually-owned spirits warehouses constitutes an aid it is contrary to on 17 March 1976 the circular of 15 Community law because the Commission April 1976, which is the relevant was not informed of it. document in the main action, provides for: 5. The order of the Finanzgericht of 31 October 1980, making the reference (a) Compensation of DM 150 per to the Court, was received at the Court hectolitre of wine-spirit for the Registry on 3 February 1981. reference quantity, which corre­ sponds to the average sales for two months and In accordance with Article 20 of the Protocol on the Statute of the Court of (b) Compensation of DM 80 per Justice of the EEC written observations hectolitre of wine-spirit for the part were lodged by Pabst & Richarz KG, the of the stock exceeding the reference plaintiff in the main action, represented quantity. by P. Müller-Kemler, Rechtsanwalt, Hanover, by the Oberfinanzdirektion Hannover, the intervener in the main With regard to stocks in bonded action, represented by Mr Schäfer, warehouses, only compensation of DM acting as Agent, and by the Commission 70 per hectolitre of wine-spirit was of the European Communities, provided for the reference quantity.

The objective of these measures was to vantages arising from economic circum­ cancel out the increase in the tax on stances. stocks already sold at prices in which the increase had not yet been taken into It considers furthermore that the account. question of the lawfulness of the system of relief in German law may remain open. The relevant point in this case is Nevertheless, with regard to purchasers the fact that the plaintiff's competitors and processors of monopoly spirits the have in fact been able to obtain tax increase was cancelled out entirely economic advantages as the result of the from the point of view of costs. In fact relief. their stock corresponding to the reference quantity qualified for relief up to the tax increase of DM 150 whilst, in With regard to the applicability of respect of future transactions, the tax Articles 37 and 95 of the EEC Treaty, increase was entirely compensated by the the plaintiff in the main action considers reduction of DM 150 in the price of the that the preliminary question put by the monopoly spirits. Thus they were only Finanzgericht is principally intended to affected by an increase in taxation of establish whether the reduction in some DM 70 for the quantities held in national taxation granted in respect of a stock on 17 March 1976 which exceeded domestic product must also be extended the reference quantities. to a similar product coming from a Member State. The question accordingly concerns the interpretation of the first Apart from these quantities the sum of paragraph of Article 95 ot the EEC the accounting heads "purchases of Treaty and Article 37 of the Treaty is monopoly spirits" and "tax on spirits" not applicable. In fact this case does not thus remain identical for purchasers of concern "an activity specifically monopoly spirits and accordingly their connected with the exercise by a State selling prices may also remain unaltered. monopoly of its exclusive right ... within the meaning of the said judgment of the Court of 13 March 1979 (Hansen v The plaintiff in the main action Hauptzollamt Flensburg) but an equitable accordingly considers that the system of tax measure intended partially and relief constitutes a classic case of an temporarily to cancel out the equitable tax measure taken to consequences of the increase in a compensate for an unjust economic consumption tax. consequence of a tax measure which itself is lawful. This is also indicated by For the purposes of the application of the recitals in the preamble to the Article 95 of the Treaty the form of the circulars in which reference is made to tax is irrelevant. the "hardships which may result from the altered state of the market ... when selling takes place". In fact even if the partial exemption from tax for domestic products is limited both as to its duration and amount it must be In this connection it states that the aids extended on the same conditions to or subsidies are not intended to similar imported products. There can be compensate for the inequitable no doubt that in this case the products in consequences of legal measures or to question are similar. The exemption is alleviate particular cases of hardship not justified by reasons concerning the caused by the law but to remedy disad­ individual position of a party liable to

the tax but by the incidence of the tax on on the Spirits Monopoly in conjunction all persons liable to it. with Article 46 of the Customs Code the amount owed in respect of monopoly Article 95 indicates that, with regard to equalization duty, including the marginal liability to tax, the importer of an element thereof, is payable only on imported product may not be treated less removal from the warehouse. The favourably than the person liable to the marginal element of the monopoly tax on the similar domestic product. equalization duty was no longer payable on products removed from the The plaintiff in the main action warehouse after 23 February' 1976. emphasizes that, with regard to its stock of spirits, it has already paid tax prior to Furthermore, in order to counter the 17 March 1976 and thereafter it became temporary difficulties arising from the liabie to the full increase in the tax on increase in the tax and from the spirits whilst relief of at least DM 80 per alteration of the conditions of hectolitre of wine-spirit was granted in competition an indemnity of DM 70 per respect of stocks of similar domestic hectolitre of wine-spirit was granted both products held in warehouses. on stocks held in individually-owned spirits warehouses and on these held in With regard to the stock of raw spirit bonded warehouses, in both cases up to coming from Greece Article 53 (1) of the a reference quantity.

warehouse. Flensburg v Andresen, which is at present pending before the Court of Justice) with On the other hand stocks held in bonded regard to the nature of the charge arising warehouses did not obtain that relief for monopoly spirits from the selling because they had not been liable to the price fixed by the Federal Monopoly prior charges. In this respect the Administration. appraisal of the facts put forward by the Finanzgericht is mistaken. In fact, in In this connection the Oberfinanz accordance with Article 154 of the Law direktion observes that the Finanz-

gericht, by presenting the case as one Finally the Oberfinanzdirektion con concerning a tax credit, and thus placing siders that examination of the problem it within the field of tax law, risks from the point of view of Article 92 of avoiding the problem rather as happened the EEC Treaty brings about the same in the said Case 91/78 (Hansen v Haupt- result since that article is based on the zollamt Flensburg). It emphasizes that the same basic notions as Articles 37 and 95 tax credit provided for is merely a matter of the Treaty (cf. the judgment of the of administrative convenience and not an Court of 10 October 1978, Hansen v essential requirement of the system.

monopoly. The system in question must need to be delivered to the Monopoly, accordingly be appraised in accordance an adaptation to the new situation by with the criterion contained in Article 37 making provision for (1) and (2) and, in so far as imports from Greece are concerned, in accordance (a) relief amounting to DM 80 per with Article 31 of the Agreement hectolitre of wine-spirit in order to between the EEC and Greece. cancel out, for old stock, the marginal element of the monopoly According to the judgment of the Court equalization duty or the marginal of 13 March 1979 in the above- element of the spirits surcharge; mentioned Case 91/78 the price-policy (b) relief on old stock up to a reference of a commercial monopoly protected by quantity in order to compensate for the State only has a discriminator)' effect the total amount of the increase in where the selling prices are abnormally the tax on spirits, that is DM 150 per low in relation to the prices before of hectolitre of wine-spirit. spirits of comparable quality imported from other Member States.

case. the Member States. It considers that the reimbursement of In addition, with regard to the raw the charge previously imposed in the spirits coming from Greece. the form of the marginal element of the prohibition of discrimination contained spirits surcharge or the marginal element in Article 31 of the Agreement between of the monopoly equalization duty the EEC and Greece is of no effect, constitutes a tax measure covered by having regard to paragraphs ( 1 )and (6) Article 95 of the EEC Treaty.

JUDGMENT OF 29. 4. 1982 — CASE 17/81

The general grant of the relief of DM 80 marginal element of monopoly thus brought about a greater reduction in equalization duty. the consumption tax on monopoly spirits, in respect of which there were no Furthermore it refers to the wealth of prior charges, than that affecting spirits case-law of the Court on Article 95 in which did not require to be delivered to order to argue that that provision the Monopoly Administration or requires the abolition of discrimination imported spirits. by the repeal of the unlawful measure and recovery of the relief granted or by granting to imported products the same The Commission states that, even if the advantage as that enjoyed by domestic national measure in question might at the products, the choice between these same time be considered as an aid within methods being at the discretion of the the meaning of Articles 92 et seq. of the national courts. EEC Treaty it could not fall outside the scope of Article 95 of the Treaty (cf. the judgment of the Court of 21 Mav 1980, The Commission shares the view of the Commission v Italy, Case 73 / 79' [1980] Finanzgericht that Article 53 (1) of the ECR 1533). Agreement between the EEC and Greece must be considered as directly applicable.

It then refers to the judgment of the Finally the Commission considers that, in Court of 10 October 1978 in Case the light of its foregoing observations, it 148/77 (Hansen v Hauptzollamt is unnecessary to reply to the third Flensburg), as a basis for its argument question on the interpretation of Articles that, with regard to national provisions 92 et seq. on aids. Nevertheless it favouring certain types of spirits or remarks as a subsidiary point that it was certain categories of producers with not informed in accordance with Article regard to the charging of the 93 (3) of the Treaty of the relief consumption duty on spirits, the measures in dispute. Accordingly the application of Article 95 of the Treaty plaintiff in the main action may not rely takes precedence over that of Article 37 before the national court on rights of the Treaty. conferred by Community legislation which concern the granting of an aid.

dorf, for the Commission of the supervision, owned by the plaintiff in the European Communities. main action, was in a special position with regard to the legislation on the In the course of the hearing the parties monopoly in spirits. That position was clarified certain aspects of the case. explained by traditional German The Oberfinanzdirektion Hannover, the distilling and warehousing practices. In intervener in the main action, pointed the case of storage tanks the data used to out that the question whether or not the fix the amount of the charge to tax were marginal element of the price, payable established before the raw spirit, which before spirits coming from the Federal has already undergone initial processing, Monopoly Administration entered a enters the warehouses but the taxation, warehouse, as a component of the and accordingly the collection of the monopoly price, constituted a tax, marginal element of the monopoly formed the subject-matter of Case 4 / 81 , equalization duty, was effected later on Andresen, which was pending before the the basis of the final distillation. Court of Justice. The finding in the In this connection the representative of order making the reference that Papst & Richarz KG, the plaintiff in the monopoly spirits held in individually- main action, explained that, pursuant to owned spirits warehouses have not yet an order of 26 February 1976 the been taxed was thus open to doubt. marginal element of the monopoly The system of relief also provided for equalization duty amounting to DM compensation for this marginal element 16.05 per hectolitre of wine-spirit, and paid on monopoly spirits. Since October not the amount of DM 80 stated in the 1975 the marginal element has varied order making the reference, was charged between DM 16.05 and DM 104.60 per on the spirits held in the storage tank. hectolitre of wine-spirit. The undertaking paid the corresponding amount which was subsequently Comparable relief was not provided for refunded to it as a result of a special stocks held in bonded warehouses since claim outside the framework of the the latter were not liable to a marginal system of relief. element on entry to the warehouse. The Advocate General delivered her The Oberfinanzdirektion then explained opinion at the sitting on 28 January that the storage tank under customs 1982.

3 Before the adjustment of a monopoly a consumption tax called the monopoly equalization duty (Monopolausgleich) was imposed on all spritis imported into the Federal Republic of Germany irrespective of whether they came from a Member State or from a non-member country. That duty was composed of a fixed component corresponding to the tax on spirits (Brannt­ weinsteuer) levied on domestic spirits marketed by the Federal Monopoly Administration [Bundesmonopolverwaltung] and a variable component called the marginal element of the monopoly equalization duty (Monopol­ ausgleichspitze) which was the equivalent of the marginal element of the price (Preisspitze) calculated in the selling price of monopoly spirits. The amount of the marginal element of the price was obtained by subtracting from the monopoly's selling price the sum of the tax on spirits and the basic price of the spirits fixed by the Monopoly Administration. According to the order making the reference the tax on spirits has amounted to DM 1 500 per hectolitre of wine-spirit since 1972 whilst the marginal element of the monopoly equalization duty amounted to DM 80 per hectolitre of wine- spirit on or about 1 January 1976.

6 These measures applied to spirits which were held on 22 February 1976 in an individually-owned spirits warehouse (Branntweineigenlager) or in a bonded warehouse (Zollager). The relief provided was granted in principle by way of a credit against the amounts of tax payable each month as from the month of April 1976.

7 According to the instructions of the Minister the relief could amount to a maximum of DM 150 per hectolitre. It was made up of two components. First, a relief of DM 70 per hectolitre for a certain reference quantity of spirits was provided for in order to compensate for unjust hardship which might have arisen from the increase in the rates of the taxes on spirits, parti­ cularly in the case of longterm contracts. That relief applied to the part of net stock? corresponding to the reference quantity held in individually- owned spirits warehouses and bonded warehouses. Secondly, a reimbursement of DM 80 per hectolitre was provided for total stocks held in an individually-owned spirits warehouse. That reimbursement represented in particular the refund of the marginal element of the monopoly equalization duty and the marginal element included in the selling price of monopoly spirits. These marginal elements had been charged on the entry of the spirits to the warehouse whilst the monopoly equalization duty and the tax on spirits were not charged until withdrawal from the warehouse. This case concerns only the refund of DM 80 per hectolitre.

8 The Oberfinanzdirektion Hannover [Principal Revenue Office, Hanover], the intervener in the main action, has explained that the amount of the marginal element of the monopoly equalization duty was essentially variable by reason of the calculation of the marginal element of the price effected at the time by the Federal Monopoly Administration. The refund of DM 80 must consequently be considered as a fixed-rate refund of the marginal element which was charged on entry to the warehouse.

12 It is, however, not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver.

13 The Finanzgericht took as its starting point the premise that the problem to be resolved concerns discrimination between, on the one hand, monopoly spirits which qualify for the fixed reimbursement without having previously been subject to tax and, on the other, imported spirits in respect of which the fixed reimbursement was intended to compensate for the previous payment of the marginal element of the monopoly equalization duty. The Finanz­ gericht inclines to the view that this aspect of the system of relief infringes Article 95 of the EEC Treaty and, so far as spirits imported from Greece are concerned, Article 53(1) of the Association Agreement with Greece.

PABST & RICHARZ v HAUPTZOLLAMT OLDENBURG

M The Finanzgericht nevertheless took into account the fact that according to certain decisions of German courts the system of relief must be classified as a subsidy measure in view of its close link with the marketing of monopoly spirits, the deficit of which is made good out of the State budget. Fur­ thermore the Oberfinanzdirektion claimed that Article 37 of the Treaty, which governs national monopolies such as the German monopoly in spirits, excluded the application of the provisions of Anicie 95.

is In order to be enabled to resolve these problems, the Finanzgericht has referred to the Court the following three questions:

of spirits from other Member States receive subsidies in the same way as other importers or domestic producers of spirits or dealers in spirits?"

16 The first two questions, which concern the classification for the purposes of Community law of a system of relief of the kind forming the subject-matter of the dispute in the main action, should be considered together.

17 These questions are essentially designed to ascertain whether a system of relief, which was introduced on the basis of administrative instructions in connection with an alteration in the tax on spirits following an adjustment of the national monopoly in spirits, must be judged on the basis of Article 95 of the Association Agreement with Greece or whether that is precluded by an application of Article 37 of of Articles 92 and 93 of the Treaty, and, in the former case, whether the importer may rely upon the provisions in question before a national court.

18 As the Commission has rightly submitted, the legal classification in Community law of a national measure does not depend upon how that measure is viewed or appraised in the national context. The need to ensure that the provisions of the Treaty are applied in a uniform manner throughout the Community requires that they should be interpreted independently.

19 According to a consistent line of decisions of the Court Article 95 is intended to cover all taxation procedures which conflict with the principle of equality of treatment of domestic products and imported products. Accordingly that provision applies to measures of relief which, within the framework of an increase in taxes on spirits, accord more favourable treatment to similar domestic products than to imported products even though such measures were adopted on the basis of administrative instructions.

23 Likewise the fact that the measures of relief are linked to the adjustment of the national monopoly in spirits does not lead to a different conclusion. As the Court has stated in its judgment of 13 March 1979 (Case 86/78 Peureux [1979] ECR 897) the rules contained in Article 37 of the Treaty concern only activities intrinsically connected with the specific business of the monopoly in question. They are thus irrelevant to national provisions which have no connection with such specific business, like those concerning relief for spirits on which tax was previously charged.

24 It follows from the foregoing that Article 95 of the EEC Treaty applies to a national system of relief which accords, on the basis of administrative in­ structions, less favourable treatment to spirits coming from other Member States than to similar domestic products. Since Article 95 is directly applicable the importer of spirits coming from other Member States may rely upon it before the national courts.

JUDGMENT OF 29. 4. 1982 — CASE 17/81

25 Article 53 (1) of the Association Agreement with Greece is worded as follows:

"Neither Contracting Party shall impose, directly or indirectly, on the products of the other Contracting Party any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Neither Contracting Party shall impose on the products of the other Contracting Party any internal taxation of such a nature as to afford indirect protection to other products.

PABST & RICHARZ v HAUPTZOLLAMT OLDENBURG

court on the first subparagraph of Article 53 (1) of the Association Agreement with Greece against the application of national measures of tax relief for spirits, intruduced on the basis of administrative instructions in connection with an alteration in the taxes on spirits following the adjustment of the national monopoly in spirits if such measures have the effect of according less favourable treatment to such spirits than to similar domestic products.

29 In view of that reply it is unnecessary to consider the third question which concerns the detailed rules for the application of Articles 92 and 93 of the Treaty.

Costs

30 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,

Delivered in open court in Luxembourg on 29 April 1982.

For the Registrar

A. W. H. Meig G. Bosco Legal Secretary President of the First Chamber

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 28 JANUARY 1982 1

Mr President, Wein) and the Federal Finance Members of the Court, Administration.

The Finanzgericht [Finance Court] Hamburg, has made a reference to the 1. The dispute arises from the Court for a preliminary ruling on the transitional measures adopted by the interpretation of Articles 37, 92 et seq. competent authorities of the Federal and 95 of the EEC Treaty and of the Republic of Germany following the provision, corresponding to the last- judgments of the Court of February 1976 mentioned article, contained in the in which the Court ruled in substance Agreement of 1961 establishing an that prohibitions on imports 1 and taxes 2 association between the EEC and on imports in favour of national Greece. monopolies and the component, known as the Monopolausgleichspitze [marginal The facts are as follows: element of the monopoly equalization duty], of the tax applied to imported I — The dispute is between Pabst & spirits (judgment of 17 February 1976, in Richarz KG, an importer of spirits Case 45/75 Rewe [1976] ECR 181) were produced from wine (Branntwein aus contrary to the Treaty. 1 — 3 February 1976, Manghrra, Case 59/75 [1976] ECR 91 1 — Translated from the French. 2 — 17 February 1976. Miritz. Case 91/75[1976] ECR 217