C-240/81
ECLI:EU:C:1982:364
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JUDGMENT OF THE COURT 26 OCTOBER 1982 1
Senta Einberger v Hauptzollamt Freiburg (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg)
( Customs duties — Smuggled drugs)
Case 240/81
Common Customs Tariff— Customs duties — Application to drugs distributed through illegal channels — Not permissible — Penalties for offences — Powers of Member States
No customs debt arises upon the impor This finding is without prejudice to the tation of drugs otherwise than through powers of Member States to take economic channels strictly controlled by criminal proceedings in respect of the competent authorities for use for contraventions of their drugs laws and to medical and scientific purposes, impose appropriate penalties, including regardless of whether the drugs are fines. discovered and destroyed under the control of those authorities or are not detected by them.
In Case 240 / 81
REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht [Finance Court ] Baden-Württemberg for a preliminary ruling in the action pending before that court between
SENTA EINBERGER, Schallstadt-Wolfenweiler ,
and
HAUPTZOLLAMT [ Principal Customs Office] FREIBURG
1 — Language of the Case-German.
JUDGMENT OF 26. 10. 1982 — CASE 240/81
on the interpretation of the Community provisions on the customs union in connection with the unlawful importation of drugs,
THE COURT
composed of: J. Mertens de Wilmars, President, A. O'Keeffe, U. Everling and A. Chloros (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,
Advocate General: F. Capotorti Registrar: H. A. Rühl, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of and autumn of 1974 to Basel in the procedure and the observations Switzerland and there sold to a Mr and submitted pursuant to Article 20 of the Mrs Winiger a total of 280 grams of Protocol on the Statute of the Court of morphine in single lots of between 30 Justice of the EEC may be summarized and 100 grams for a price of between as follows: SFR 150 and 170 per gram. The morphine was unlawfully brought into the Federal Republic of Germany and was then taken to Switzerland by the I — Facts and procedure plaintiff. On the basis of Article 57 (2) of the Customs Law (Zollgesetz), the Haupt- 1. By a final judgment of the Land zollamt Freiburg, the defendant in the gericht [Regional Court] Freiburg of main action, considered that the plaintiff 27 July 1977 Miss Senta Einberger, the should pay import duties on the plaintiff in the main action, was given a quantities of drugs referred to in the suspended sentence of one year's judgment of the Landgericht, because imprisonment for infringement of the she had obtained smuggled goods after Drugs Law (Betäubungsmittelgesetz). the liability to pay customs duty had arisen and before it had been According to the findings of the Land extinguished, whilst she knew, or should gericht, Miss Einberger travelled on a have known, that the goods in question number of occasions between the spring were subject to customs control.
EINBERGER v HAUPTZOLLAMT FREIBURG
Consequently, by notice of assessment The Finanzgericht notes that the of 19 January 1978, the Hauptzollamt statement of grounds of the judgment of claimed payment from the plaintiff of the Court may be understood as meaning import duties in the sum of DM that the Common Customs Tariff 10 960.30 (DM 5 712 customs duty and concerns only the importation of goods DM 5 248.30 turnover tax levied on with a view to their lawful use.
No duty imports). would be chargeable on imports of goods which would be subject to The objection lodged by the plaintiff in confiscation and destruction in the event the main action against the notice of of discovery. However, the grounds of assessment was dismissed and she judgment may also be interpreted as appealed to the Finanzgericht Baden- meaning that it is the actual destruction Württemberg. of the drugs which precludes or nullifies 2. Referring to the judgment of the the subsequent application of the Court of 5 February 1981 in Case 50/80 Common Customs Tariff.
Moreover, Horvath [1981] ECR 385, the Finanz there is no special provision in gericht Baden-Württemberg, by order of Community law defining the circum 16 June 1981, requested the Court to stances in which annulment or preclusion give a ruling on the following question: occurs. Should liability to pay duty lapse only when prohibition and destruction "Since the introduction of the Common coincide, then the question arises Customs Tariff has a Member State been whether taking the goods outside the authorized to charge customs duties on customs territory is to be regarded as drugs which have been smuggled into
equivalent to destruction. and subsequently removed from the customs territory of the Community? " 3. In the statement of grounds of the 4. The order making the reference was order making the reference, the Finanz received at the Court Registry on gericht mentions that in the judgment of 4 September 1981. 5 February 1981 cited above the Court held that "the introduction of the Pursuant to Article 20 of the Protocol on Common Customs Tariff no longer the Statute of the Court of Justice of leaves a Member State the power to the EEC, written observations were apply customs duties to drugs which submitted by Miss Senta Einberger, the have been smuggled in and destroyed as plaintiff in the main action, represented soon as they were discovered but does by Rainer Endriss, Rechtsanwalt, leave it full freedom to take criminal Freiburg, and by the Commission of the proceedings in respect of offences European Communities, represented by committed, with all the attendant its Legal Adviser, Rolf Wägenbaur, consequences, including fines". acting as Agent. The Hauptzollamt claimed that that judgment was not applicable to the By order of 3 February 1982 the Court present case because the morphine had decided to join Cases 221/81 and not been destroyed. However, the 240/81 for the purpose of the oral Finanzgericht wishes to know whether it procedure. is only the destruction of the drug which renders the Common Customs Tariff By order of 1 April 1982 the Court (First inapplicable and accordingly precludes Chamber) decided, pursuant to Article any liability to pay customs duties or 104 (3) of the Rules of Procedure, to whether that result is in fact already grant, as legal aid, assistance for the brought about by the prohibition on purpose of facilitating the representation importing or marketing the drug. of the plaintiff in the main action.
JUDGMENT OF 26. 10. 1982 — CASE 240/81
On hearing the report of the Judge- proved, but they are not levied in the Rapporteur and the views of the event of confiscation and destruction. Advocate General, the Court decided to open the oral procedure without any In Italy, the illegal importation of drugs preparatory inquiry. However, it invited gives rise to liability to pay customs the Commission to provide the Court duties, except in the case of re-export or with a description of the laws and regu destruction by official order. lations and custom practices governing, in each of the Member States, The illegal importation of drugs does not give rise to any liability to pay customs On the one hand, the illegal importation duties in Greece or Luxembourg, where of drugs the use and marketing of which drugs which are discovered are confis are strictly forbidden within their cated and destroyed. In Luxembourg, territory; and, however, liability to pay customs duties arises if the drugs have been consumed. On the other hand, the illegal impor tation of products the marketing of Finally, the illegal importation of drugs which is not prohibited as such within does not give rise to the levying of duties national territory but which are or have in Denmark, France or the United been smuggled into that territory. Kingdom. However, in France, in those cases where illegally imported drugs are not destroyed by official order but are The information collected by the sold, for example to approved lab Commission from the Member States oratories, duties are levied upon such may be summarized as follows : sale. In the United Kingdom, duties are not levied in any case, regardless of The illegal importation of drugs the use whether the offending importer sold, and marketing of which are strictly consumed or re-exported the drugs. prohibited gives rise to liability to pay customs duties and the levying of import The illegal importation of products the duties in Belgium, Such imports give rise marketing of which is not per se to liability to pay customs duties in the prohibited gives rise to liability to pay Federal Republic of Germany, Ireland customs duties in all the Member States, and the Netherlands. except in Greece where illegally imported goods are confiscated.
However, in the Federal Republic of Germany, since the judgment of the However, import duties are not levied in Court of 5 February 1981 in Case 50/80 Denmark in those cases where the party cited above, import duties are not levied liable to duty is unknown and the after discovery of the drugs in the event products are destroyed or sold. of their destruction, and there is moreover a presumption that they have In Ireland, import duties are regarded as been destroyed. In Ireland, the liability having been paid where a smuggled to pay customs duties is regarded as product is returned to the person extinguished by reason of the fact that concerned against payment of a sum unlawfully imported drugs are determined by arrangement and in cases confiscated and destroyed. In the where the product is confiscated and Netherlands, import duties are levied subsequently sold; on the other hand, the where the drugs have been consumed liability to pay customs duties is regarded and the illegal importation can be as extinguished if the products are
EINBERGER v HAUPTZOLLAMT FREIBURG
destroyed by official order or re The plaintiff in the main action considers exported. that the question whether or not customs duties may be levied must not be left to the random possibility of discovery or In Luxembourg, products smuggled into destruction or export of the goods or the the country are as a rule confiscated and happening of any or all of those events. sold. Import duties are levied upon the In fact, those circumstances have no sale if the products are sold with a view importance as far as the situation giving to consumption within the country; rise to the levying of customs duty is duties are also levied where the products concerned. in question have been consumed. The Commission of the European Communities considers that the decisive In the United Kingdom, duties are not criterion to be inferred from the Horvath levied when the products are confiscated judgment cited above regarding the unless they are returned to the importer applicability of the Common Customs or sold by official order. On the other Tariff is whether or not the goods in hand, duties are levied in the case of sale question are of a kind capable of being or re-export by the importer. absorbed into circulation. In the case of drugs, such as heroin and cocaine, importation and marketing are prohibited in all the Member States. The II — Summary of the written fact that the products must be seized and observations submitted to taken out of circulation is merely the the Court legal consequence to be inferred from the prohibition of putting them into circulation.
Miss Einberger, the plaintiff in the main That point of view is confirmed by the action, claims that the important factor fact that the other grounds stated by the relevant to the answer to be given to the Court in relation to drugs smuggled into question submitted lies in paragraph 11 a country and destroyed upon discovery of the judgment of the Court of 5 remain valid where, because of the February 1981 in Case 50/80 Horvath circumstances, destruction is out of the [1981] ECR 385, according to which ad question. valorem customs duty cannot be determined for goods which are such a kind that they may not be put into circu The Commission also refers in particular lation in any Member State but must on to the recitals in the preamble to Council the contrary be seized and taken out of Directive 79/623 of 25 June 1979 on the circulation by the competent authorities harmonization of provisions laid down as soon as they are discovered. by law, regulation or administrative action relating to customs debt (Official Journal 1979, L 179, p. 31), and draws That view shows that, in the case of the attention to the essentially economic importation of drugs curculation of nature of import and export duties. which is prohibited, the factor giving rise Moreover, Article 2 of that directive to the levy of duties is already lacking. provides that a customs debt arises in the The view that there exists at the outset a normal case of customs clearance and in factor giving rise to customs duties, the restrictively listed cases of failure to which disappears only later in certain comply with customs requirements in the circumstances, is therefore erroneous. narrow sense, such as infringement of
JUDGMENT OF 26. 10. 1982 — CASE 240/81
Community provisions regarding cus III — Oral procedure toms procedures or the removal of goods liable to import duty from the customs supervision involved in the temporary At the sitting on 25 May 1982 oral storage of goods. On the other hand, argument was presented by Miss there is no provision in the directive Einberger, the plaintiff in the main giving rise to any liability to pay customs proceedings, represented by Rainer duties in a case where there is an Endriss, Rechtsanwalt, Freiburg, by the absolute prohibition on importation. Government of the French Republic, represented for the purposes of the oral The Commission therefore proposes that procedure by Alexandre Carnelutti, the question should be answered in the Secretary for Foreign Affairs, acting as negative. It emphasizes however that its Agent, and by the Commission of the analysis applies solely to the case of European Communities, represented by drugs the circulation of which is strictly its Legal Adviser, Rolf Wägenbaur, prohibited. Consequently, its conclusion acting as Agent, assisted by Ursula is without prejudice to the more general Baumann, an expert in the Commission's case of the import of goods in breach of Customs Union Department. a prohibition on importation, such as for example the importation of handguns in The Advocate General delivered his baggage. opinion at the sitting on 30 June 1982.
Decision
1 By order of 16 June 1981, received at the Court on 4 September 1981, the Finanzgericht [Finance Court] Baden-Württemberg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the application of the Common Customs Tariff to smuggled drugs.
2 The dispute in the main proceedings concerns the determination of the customs duties applicable to quantities of morphine which, having been illegally imported into the Federal Republic of Germany, were sold in Switzerland in contravention of the Betäubungsmittelgesetz [German Drugs Law] by the plaintiff in the main proceedings. For those offences she was given a suspended sentence of one year's imprisonment by a German criminal court.
3 The Finanzgericht has raised the question whether the morphine is subject to customs duties under Community law. It points out in that respect that, in its
EINBERGER v HAUPTZOLLAMT FREIBURG
judgment of 5 February 1981 in Case 50/80 Horváth [1981] ECR 385, the Court stated that the introduction of the Common Customs Tariff no longer left a Member State the power to apply customs duties to drugs which had been smuggled in and destroyed as soon as they had been discovered but did leave it full freedom to take criminal proceedings in respect of offences committed.
4 As regards the facts of the case, the Finanzgericht ascertained that the morphine was not manufactured in the Federal Republic of Germany and that the quantity of that product sold by the plaintiff in the main proceedings had been smuggled into German territory in order to be illegally exported to a third country. The Finanzgericht refers to the above-mentioned judgment of the Court and asks whether it is not the prohibition of the importation and marketing of drugs, rather than their destruction, which prevents the application of customs duties and whether, in such circumstances, it is not appropriate to conclude that no customs debt can arise. Only if the Court does not accept that conclusion does the question arise whether removal of the unlawful drugs from the customs territory must be assimilated to destruction of them.
5 Having regard to those considerations, the national court submitted the following question for a preliminary ruling:
"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?"
6 The national court rightly states that the first question which must be answered is whether the unlawful importation into the Community of illegally marketed drugs gives rise to a customs debt. The Court will examine that question first.
7 So phrased, the question does not concern the problem of the unlawful importation of products in general but that of the unlawful importation of drugs.
8 As the Court pointed out in the Horváth judgment cited above, drugs such as morphine, heroin and cocaine display special features in so far as their harm-
JUDGMENT OF 26. 10. 1982 — CASE 240/81
fulness is generally recognized and their importation and marketing are prohibited in all the Member States, except in trade which is strictly controlled and limited to authorized use for pharmaceutical and medical purposes.
9 This legal position is in conformity with the Single Convention on Narcotic Drugs, 1961, (United Nations Treaty Series 520, No 7515), to which all the Member States are now parties. In the preamble to that Convention the parties state that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind; they declare that they are conscious of their duty to prevent and combat that evil, whilst recognizing that the medical use of narcotic drugs is indispensable for the relief of pain and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes. Pursuant to Article 4 of the Convention the parties are to take all the measures necessary to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.
10 As a result, drugs which are not confined within channels of distribution strictly controlled by the competent authorities for use for medical and scientific purposes are subject, by definition, to a total prohibition of impor tation and distribution in all the Member States.
11 In practice, as soon as such drugs are discovered they are seized and destroyed in accordance with the national drugs laws, except in a number of rare cases where the product seized lends itself to medical or scientific use and is released into controlled channels of distribution, whereupon it becomes subject to customs duties.
12 On the other hand, drugs distributed through illegal channels are not subject to customs duties when they remain within such channels, regardless of whether they are discovered and destroyed or are not detected by the auth orities.
13 A customs debt cannot therefore arise upon the importation of drugs which may not be marketed and integrated into the economy of the Community.
EINBERGER v HAUPTZOLLAMT FREIBURG
The introduction of the Common Customs Tariff, provided for in sub paragraph (b) of Article 3 of the Treaty, falls within the scope of the objectives assigned to the Community in Article 2 and the guide-lines laid down in Article 29 for the operation of the customs union. Imports of drugs into the Community, which can give rise only to repressive measures, fall wholly outside those objectives and guide-lines.
14 That view is confirmed by the provisions of Regulation (EEC) No 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes (Official Journal, English Special Edition 1968 (I), p. 170) and by those of Council Directive 79/623/EEC of 25 June 1979 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt (Official Journal, 1979, L 179, p. 31). The preamble to that directive states specifically that the moment when the customs debt arises must be defined in the light of the economic nature of the duties on imports and in terms of the conditions under which the goods subject to import duties are integrated into the economy of the Community. In such circum stances, no customs debt can arise when drugs are imported through illegal channels of distribution, since they must be seized and destroyed upon discovery instead of being put into circulation.
15 Moreover, there is no justification for making a distinction in that regard between drugs which have not been discovered and those which are destroyed under the control of the competent authorities, since if such a distinction were made the application of customs duties would be subject to the chance of discovery.
16 It is apparent from the foregoing that no customs debt arises upon the importation of drugs otherwise than through economic channels strictly controlled by the competent authorities for use for medical and scientific purposes.
17 This finding is without prejudice to the powers of Member States to take criminal proceedings in respect of contraventions of their drugs laws and to impose appropriate penalties, including fines.
is In the light of this answer, it is unnecessary to deal with the other problems raised by the national court.
OPINION OF MRS ROZÈS — CASE 240/81
Costs
19 The costs incurred by the Government of the French Republic and the Commission of the European Communities, which have submitted obser vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings 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,
THE COURT,
in answer to the question referred to it by the Finanzgericht Baden- Württemberg by order of 16 June 1981, hereby rules:
No customs debt arises upon the importation of drugs otherwise than through economic channels strictly controlled by the competent auth- orities for use for medical and scientific purposes.
Mertens de "Wilmars O'Keeffe Everling Chloros
Pescatore Mackenzie Stuart Bosco Koopmans Due
Delivered in open court in Luxembourg on 26 October 1982.
P. Heim J. Mertens de Wilmars Registrar President
OPINION OF MRS ADVOCATE GENERAL ROZÈS
(see case 221/81, p. 3692)