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URL: http://www.bailii.org/eu/cases/EUECJ/1982/R24081.html
Cite as: [1982] EUECJ R-240/81

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61981J0240
Judgment of the Court of 26 October 1982.
Senta Einberger v Hauptzollamt Freiburg.
Reference for a preliminary ruling: Finanzgericht Baden-Württemberg - Germany.
Customs duties - Smuggled drugs.
Case 240/81.
European Court reports 1982 Page 03699
Spanish special edition 1982 Page 01141
Swedish special edition VI Page 00549
Finnish special edition VI Page 00573

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 IMPORTATION OF DRUGS OTHERWISE THAN THROUGH ECONOMIC CHANNELS STRICTLY CONTROLLED BY THE COMPETENT AUTHORITIES FOR USE FOR MEDICAL AND SCIENTIFIC PURPOSES , REGARDLESS OF WHETHER THE DRUGS ARE DISCOVERED AND DESTROYED UNDER THE CONTROL OF THOSE AUTHORITIES OR ARE NOT DETECTED BY THEM .

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 .

IN CASE 240/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) BADEN-WURTTEMBERG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
SENTA EINBERGER , SCHALLSTADT-WOLFENWEILER ,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) FREIBURG

ON THE INTERPRETATION OF THE COMMUNITY PROVISIONS ON THE CUSTOMS UNION IN CONNECTION WITH THE UNLAWFUL IMPORTATION OF DRUGS ,

1 BY ORDER OF 16 JUNE 1981 , RECEIVED AT THE COURT ON 4 SEPTEMBER 1981 , THE FINANZGERICHT ( FINANCE COURT ) BADEN-WURTTEMBERG 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 BETAUBUNGSMITTELGESETZ ( 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 JUDGMENT OF 5 FEBRUARY 1981 IN CASE 50/80 HORVATH ( 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 HORVATH JUDGMENT CITED ABOVE , DRUGS SUCH AS MORPHINE , HEROIN AND COCAINE DISPLAY SPECIAL FEATURES IN SO FAR AS THEIR HARM 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 IMPORTATION 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 AUTHORITIES .

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 . THE INTRODUCTION OF THE COMMON CUSTOMS TARIFF , PROVIDED FOR IN SUBPARAGRAPH ( 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 CIRCUMSTANCES , 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 .

18 IN THE LIGHT OF THIS ANSWER , IT IS UNNECESSARY TO DEAL WITH THE OTHER PROBLEMS RAISED BY THE NATIONAL COURT .

COSTS
19 THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS 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- WURTTEMBERG 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 AUTHORITIES FOR USE FOR MEDICAL AND SCIENTIFIC PURPOSES .