Procedimento penal entablado contra Giorgio Domingo Banchero.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 14 December 1995

Avis juridique important

|

61993J0387

Judgment of the Court of 14 December 1995. - Criminal proceedings against Giorgio Domingo Banchero. - Reference for a preliminary ruling: Pretura circondariale di Genova - Italy. - Articles 5, 30, 37, 85, 86, 90, 92 and 95 of the EEC Treaty. - Case C-387/93.

European Court reports 1995 Page I-04663

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

++++

1. Preliminary rulings ° Reference to the Court ° Need for a preliminary ruling and relevance of the questions raised ° Assessment by the national court ° Questions submitted without specifying the factual context

(EEC Treaty, Art. 177)

2. State monopolies of a commercial character ° Article 37 of the Treaty ° Scope ° National system for the distribution of manufactured tobacco products

(EEC Treaty, Art. 37)

3. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° National system for the distribution of manufactured tobacco products regulating the detailed arrangements for retail sale in a non-discriminatory manner ° Article 30 of the Treaty not applicable

(EEC Treaty, Art. 30)

4. Competition ° Public undertakings and undertakings to which Member States grant special or exclusive rights ° National system for the distribution of manufactured tobacco products ° Issue of operating licences to retail traders conferred on an undertaking with exclusive rights ° Dominant position ° Not abused ° Permissible

(EEC Treaty, Arts 5, 86 and 90(1))

5. Free movement of goods ° Quantitative restrictions ° Measures having equivalent effect ° National system for the distribution of manufactured tobacco products ° Penalties involving confiscation of products obtained outside authorized channels and without payment of excise duty ° Community law not applicable

(EEC Treaty, Art. 30)

Summary

1. It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. However, it is not possible to reply to questions or parts of questions concerning the interpretation of provisions where the national court has not explained the factual circumstances which prompt it to apply those provisions and with regard to which the Court is therefore not in a position to provide a useful interpretation.

2. Article 37 of the Treaty has no relevance with regard to national legislation which reserves the retail sale of manufactured tobacco products to distributors authorized by the State, provided that the State does not intervene in the operation of tobacco outlets so as to control or influence the procurement choices of retailers in order to ensure an outlet for tobacco products produced by the national tobacco monopoly or to encourage or discourage certain types of imports from other Member States. That article does not apply to national provisions which do not concern the exercise by a public monopoly of its exclusive right but apply in a general manner to the production and marketing of goods, whether or not they are covered by the monopoly in question.

3. National legislation which reserves the retail sale of manufactured tobacco products, irrespective of their origin, to authorized distributors but does not thereby bar access to the national market for products from other Member States or does not impede such access more than it impedes access for domestic products within the distribution network does not fall within the scope of Article 30 of the Treaty, in so far as that legislation does not relate to the characteristics of the products but concerns solely the arrangements for their retail sale and the obligation to operate through a system of authorized retailers applies without distinction as to the origin of the products and does not affect the marketing of goods from other Member States differently from that of domestic products.

4. Articles 5, 90 and 86 of the Treaty do not preclude national legislation from reserving the retail sale of manufactured tobacco products to distributors who have been authorized by the State in so far as the undertaking with exclusive rights which issues operating licences to retail traders does not abuse, in particular to the detriment of consumers, the dominant position which it may enjoy on the market for the distribution of the goods in question. The mere fact that a Member State creates a dominant position by the granting of an exclusive right within the meaning of Article 90(1) is not as such incompatible with Article 86 of the Treaty. The prohibitions contained in those two provisions will be contravened only if, in merely exercising the exclusive right granted to it, the undertaking in question cannot avoid abusing its dominant position.

Furthermore, so far as authorized retailers are concerned, they cannot be regarded as undertakings having the kind of rights referred to in Article 90(1) of the Treaty, nor, a fortiori, can it be argued that the legislation in question establishes, in favour of such retailers, a contiguous series of territorially limited monopolies creating over the national territory a dominant position within the meaning of Article 86 of the Treaty, provided that those retailers satisfy at the same time consumer needs and do not enjoy any particular advantages over one another.

5. Article 30 of the Treaty does not preclude national legislation from penalizing as a smuggling offence the unlawful possession by a consumer of manufactured tobacco products from other Member States on which excise duty in accord with Community law has not been paid, where the retail sale of those products is, like the retail sale of identical domestic products, reserved to distributors authorized by the State.

The severity of such penalties is not a matter for assessment under Community law in so far as they do not hinder in any way the importation of manufactured tobacco products from other Member States but merely tend to dissuade consumers from obtaining supplies of tobacco products, on which the abovementioned duties have not been paid, through unauthorized traders who are themselves acting in breach of the legislation in question.

Parties

In Case C-387/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura Circondariale di Genova (Italy) for a preliminary ruling in the criminal proceedings before that court against

Giorgio Domingo Banchero

on the interpretation of Articles 5, 30, 37, 85, 86, 90, 92 and 95 of the EEC Treaty,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, D.A.O. Edward, J.-P. Puissochet (Rapporteur) and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, P.J.G. Kapteyn, C. Gulmann, J.L. Murray and P. Jann, Judges,

Advocate General: M.B. Elmer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° Mr Banchero, by Giuseppe Conte and Giuseppe Michele Giacomini, of the Bar of Genoa,

° the Spanish Government, by Alberto José Navarro González, Director General for Legal, Institutional and Community Coordination, and Miguel Bravo-Ferrer Delgado, Abogado del Estado, acting as Agents,

° the French Government, by Catherine de Salins, Deputy Director, and Jean-Marc Belorgey, Head of Service, Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agents,

° the Commission of the European Communities, by Enrico Traversa and Anders Christian Jessen, of its Legal Service, acting as Agents, assisted by Alberto Dal Ferro, of the Vicenza Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Banchero, represented by Giuseppe Conte and Giuseppe Michele Giacomini; the Spanish Government, represented by Miguel Bravo-Ferrer Delgado; the French Government, represented by Jean-Marc Belorgey; the Italian Government, represented by Ivo-Maria Braguglia, Avvocato dello Stato, acting as Agent; and of the Commission, represented by Enrico Traversa, at the hearing on 5 April 1995,

after hearing the Opinion of the Advocate General at the sitting on 20 June 1995,

gives the following

Judgment

Grounds

1 By order of 30 July 1993, received at the Court on 11 August 1993, the Pretura Circondariale di Genova (District Magistrate' s Court, Genoa) referred for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Articles 5, 30, 37, 85, 86, 90, 92 and 95 of the EEC Treaty.

2 Those questions have arisen in the course of criminal proceedings brought by the Italian authorities against Mr Banchero for the unlawful possession of manufactured tobacco products of foreign origin.

3 According to the documents on the case-file, since the entry into force of Law No 724 of 10 December 1975 concerning the importation and marketing of manufactured tobacco products and amending the rules on contraband in foreign tobacco products, which amended Article 341 of the Testo Unico delle Disposizione Legislative in Materia Dogonale (Single Text on Customs Legislation) adopted by Decree No 43 of the President of the Republic of 23 January 1973, smuggling offences involving tobacco products of foreign origin come exclusively under the criminal-law provisions of Italian customs legislation set out in that decree.

4 Article 25(2) of the abovementioned decree requires a person in possession of foreign goods subject to customs duty to demonstrate that they have been lawfully acquired. If he refuses or is unable to do so, or if the proof he offers is unacceptable, he will be treated as being guilty of smuggling, unless he is in...