C-158/80 Rewe v Hauptzollamt Kiel

In Case 158/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the IVth Senate of the Finanzgericht [Finance Court] Hamburg for a preliminary ruling in the action pending before that court between

Legal context and the dispute

1Rewe-Handelsgesellschaft Nord mbH,

2Rewe-Markt Steffen, Kiel,

and

Hauptzollamt [Principal Customs Office] Kiel

on the interpretation of Regulation (EEC) No 1544/69 of the Council of 23 July 1969 on the tariff applicable to goods contained in travellers' personal luggage (Official Journal, English Special Edition 1969 (II), p. 359), Council Directive No 69/169/EEC of 28 may 1968 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel (Official Journal, English Special Edition 1969 (I), p. 232) and the validity of Council Regulation (EEC) No 3023/77 of 20 December 1977 on certain measures to put an end to abuses resulting from the sale of agricultural products on board ship (Official Journal 1977 L 358, p. 2),

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due and A. Chloros, Judges,

Advocate General: F. Capotorti

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts of the case, the course of the procedure and the observations submitted under Article 20 of the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and written procedure

Facts

Various shipping undertakings organize “Butterfahrten” (butter-buying cruises) from ports on the Baltic coast (Schleswig-Holstein). Similar cruises sail from the German North Sea coast. The cruises last eight hours or less. They sail from the maritime customs zone into territorial waters or the high seas outside German territory. Occasionally, after leaving the German customs zone they pay a brief call at Danish ports where the passengers are able to land. During the cruise the passengers on the ships are able to buy goods such as spirits, butter, meat, tobacco, perfume and so on. Within certain limits no tax is charged on the importation of the goods at the German customs frontier. Furthermore as the goods leave the geographical territory of the Community they are subsidized by the Community through the resources of the Agricultural Guidance and Guarantee Fund inasmuch as export refunds and monetary compensation are granted, for example, for butter and meat.

According to the Commission of the European Communities sales of agricultural products on German ships in 1977 amounted to some 14000 tonnes of butter, 4000 tonnes of cheese, 2500 tonnes of meat and 400 tonnes of sugar. However, the shipowners estimate that in 1977 8160 tonnes of butter, 2825 tonnes of cheeese and 1650 tonnes of meat were sold. In 1978 and 1979 an appreciable fall in the sales of agricultural products on board ships was found, following the adoption of Council Regulation (EEC) No 3023/77 of 20 December 1977 on certain measures to put an end to abuses resulting from the sale of agricultural products on board ship (Official Journal 1977, L 358, p. 2). According to certain German sources available to the Commission the following quantities were sold:

According to the Commission's information, in the other Member States exemptions from duty are limited exclusively to ferry traffic. In cases of “special excursions” on the high seas such Member States do not grant any exemption of this nature.

According to these States the quantities sold on the ferry-boats were as follows :

Shipowners, small shipyards and certain coastal resorts have benefited from this situation. On the other hand, as the plaintiffs in the main action contend, the result of such cruises is to take away a large proportion of the custom of the inhabitants of the Baltic coast from local wholesale and retail traders.

The Community provisions

Regulation No 1544/69 grants within certain limits as to quantity and value exemption from customs duty for goods contained in the personal luggage of travellers coming from non-member countries.

Directive No 69/169/EEC, as amended by the Second Council Directive of 12 June 1972 (Official Journal, English Special Edition 1972 (II), p. 565) and by the Third Council Directive of 19 December 1978 (Official Journal 1978, L 366, p. 28) provides for exemption from turnover tax and specific excise duties basically up to the duty-free limits on imports effected by travellers from non-member countries (Article 1).

Regulation No 1818/75 of the Council of 10 July 1975 on the agricultural levies, compensatory amounts and other import charges applicable to agricultural products and to certain goods resulting from their processing, contained in travellers' personal baggage (Official Journal 1975, L 185, p. 3) extended the scope of Regulation No 1544/69 to the levies and other agricultural charges and introduced within the framework of trade between two Member States an exemption from compensatory amounts and other import charges which corresponded as to the limits and conditions of its application to the exemption laid down in Directive No 69/169/EEC (Article 2).

Finally, Council Regulation (EEC) No 3023/77 of 20 December 1977 (Official Journal 1977, L 358, p. 2) empowered the Member States to grant an exemption from import duties for certain agricultural products

“sold or distributed on board ships which have left a Community port and are returning to a Community port without calling at a port outside the customs territory of the Community, where these products

Were, at the time of their exportation from the Community, the subject of export customs formalities with a view to obtaining refunds or other amounts granted on exportation within the framework of the common agricultural policy, or

Were not, at the time of their delivery on board ship, covered by either of the situations provided for in Article 9 (2) of the Treaty.”

(Article 1 (1)).

For the purposes of that regulation “import duties” means customs duties and charges having equivalent effect as well as agricultural levies and other import charges applied under the common agricultural policy (Article 2).

The German provisions

The exemption granted by the German customs authorities on importation is based on the order relating to exemption from import duties of goods in travellers' personal luggage [Reisegepäck-Verordnung] of 3 December 1974 (Bundesgesetzblatt 1974 I, 3377) as last amended by the order of 12 December 1979 (Bundesgesetzblatt I, 2150).

In German law a distinction is drawn between imports from other Member States, which are defined in the same way as in Community law, and “other imports”. The category “other imports” in German law is wider than that of imports from a non-member country in Community law. It also covers the importation of goods purchased by travellers

In connexion with intra-Community air travel, in duty-free shops at the airport of departure (in another Member State) or on board an aircraft during a flight in which the point of departure is situated in another Member State;

In connexion with intra-Community sea travel on board ship where the point of departure for the crossing

Is situated in a port of another Member State (including international traffic by ferries),

Is situated in a German port, and moreover the port of departure and arrival may be the same.

In both cases the imported goods in question may constitute:

Goods from a non-member country which have not yet been cleared through customs and were previously held in a bonded warehouse or in a free port under customs supervision, or

Community goods exempt wholly or in part from turnover taxes or excise duties and agricultural products in free circulation which have qualified for favourable treatment on exportation.

According to paragraph 2 (1) of the order relating to passengers' luggage, goods which passengers import in their personal luggage from time to time and solely for personal use or consumption in the home or as a gift are within certain limits as to quantity and value exempted from import and customs duty. The order draws a distinction between exemption for so-called “major transit” and “minor transit”.

The exemption for major transit is conditional on the ship's crossing the maritime customs border from the high seas and either having left a foreign port or having remained outside the customs territory for at least eight hours (Paragraph 3 (5)).

The exemption for minor transit is merely conditional upon the importation of the goods across the maritime customs border, that is on the so-called “Stichfahrten” [excursions] from German ports into the territorial waters. The exemption is not conditional upon the ship's sailing on the high seas, or upon its having either put into a foreign port or remained outside the customs territory for at least eight hours. The exemption for minor transit is less than that for major transit.

Procedure and preliminary questions

The plaintiffs in the main action, one of whom is a wholesale trader and the other a retailer, instituted proceedings before the Finanzgericht [Finance Court] Hamburg, claiming that the butter-buying cruises are in breach of Community law.

By an order of 5 June the IVth Senate of the Finanzgericht Hamburg requested the Court of Justice to deliver a preliminary ruling on the following questions :

“I — Customs duty

1Is Regulation (EEC) No 1544/69 of the Council of 23 July 1969, as last amended by Council Regulation (EEC) No 3061/78 of 19 December 1978, to be interpreted as meaning that the exemption from customs duties mentioned therein applies only to goods which come from the customs territory of a non-member country and additionally as the case may be to goods which are in free circulation in that country for the purposes of customs law, or is it sufficient for the goods to have originated in Member States and to have been imported by sea across the maritime customs border or the frontier of the national territory of the respective Member State?

2Does Regulation (EEC) No 1544/69 of the Council, as last amended by Council Regulation (EEC) No 3061/78, where appropriate read in conjunction with Article 28 of the EEC Treaty — save in the case of the goods covered by Council Regulation (EEC) No 3023/77 of 20 December 1977 — contain exhaustive rules for the exemption from customs duties of goods in travellers' personal luggage or may Member States independently grant exemption from customs duties going beyond the scope of Regulation (EEC) No 1544/69 save in the case of the goods covered by Regulation (EEC) No 3023/77?

3Does a breach of a Community regulation give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation thereof which are inconsistent with the provisions of that regulation so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued or for the provisions of Community law to be complied with?

4Is Council Regulation (EEC) No 3023/77 invalid because it is in breach of a superior rule of Community law (for example, the principle of equality, the prohibition of discrimination, freedom of competition, the principle of proportionality)?

5If the answer to Question 4 is in the affirmative does a person whose rights are adversely affected by reason of the law or administrative provision of a Member State, or the implementation thereof, based on Council Regulation (EEC) No 3023/77, acquire directly applicable rights so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued?

II — Turnover tax and excise duty

1Is Council Directive No 69/169/EEC of 28 May 1969, as last amended by Council Directive No 78/1032/EEC of 19 December 1978, to be interpreted as meaning that the exemption from turnover tax and excise duty therein provided for applies only to goods in travellers' personal luggage which come from the customs territory of a non-member country (Article 1) or, if they originate in a Member State, from the customs territory of the Community (Article 2) and additionally, as the case may be, to goods which are in free circulation for the purposes of customs law in a non-member country or Member State, or is it sufficient for the goods to have been imported by sea across the maritime customs border or the frontier of the national territory of the respective Member State?

2Does Council Directive No 69/169/EEC, as last amended, contain definitive rules for the exemption from turnover tax and excise duty of goods in travellers' personal luggage or may Member States independently grant goods in travellers' personal luggage exemption from turnover tax and excise duty going beyond the scope of the directive?

3Does Council Directive No 69/169/EEC, as last amended, give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation thereof which are inconsistent with the provisions of that directive, so that he may bring an action before a national court for the application of national measures contravening Community law to be discontinued?”

The Finanzgericht maintains that Regulation No 1544/69 is linked as to its subject-matter to the Convention of 4 June 1954 concerning customs facilities for touring (the New York Tourist Agreement). According to that agreement customs exemption must be granted in respect of tourists' luggage. The agreement defines a tourist as any person who visitis the territory of a contracting State where he is not ordinarily resident (Article 1 (b)). The Finanzgericht therefore considers that there is no doubt that travellers ordinarily resident in the customs territory of the Community, who have set out on a sea voyage and, without entering the customs or national territory of a non-member country, return across the frontier of the national territory of a Member State or, after sailing only in coastal waters, re-cross the maritime customs border, cannot claim exemption from customs duties under Regulation No 1544/69.

The Finanzgericht considers, however, that doubt exists with regard to the goods. The provisions in question do not expressly settle the question whether goods brought back by travellers must also come from the customs territory of the non-member country and possibly also have been in free circulation there under its customs arrangements.

In the opinion of the Finanzgericht Regulation No 1544/69 does not apply either to the “Stichfahrten” (excursions) from ports on the Baltic coast of Germany or to trips on the high seas which do not call at a non-member country or cruises where the contact with Denmark is purely symbolic. The question arises whether, except for the goods covered by Regulation No 3023/77, Regulation No 1544/69 contains definitive rules in respect of tariff exemption for the personal luggage of travellers or whether Member States are free to grant wider exemptions from customs duty on travellers' personal luggage. In the view of the Finanzgericht the fact that Regulation No 1544/69 is based on the provisions of Article 28 of the EEC Treaty shows that the Community treats the grant of such exemptions from duty as a matter coming under the Common Customs Tariff. The Council decides whether to alter or suspend the Common Customs Tariff. Consequently the Member States are debarred from adopting their own rules on the grant of exemptions from customs duty.

According to the case-law of the Bundesverfassungsgericht [Federal Constitutional Court] (judgment of 20 July 1954 1 BvR 459/52 inter alia — a case of investment aid — decisions of the Bundesverfassungsgericht Volume 4, p. 7) and of the Bundesverwaltungsgericht [Federal Administrative Court] (judgment of 30 August 1968, VII C 122/66, decisions of the Bundesverwaltungsgericht, Volume 30, p. 191) laws regulating the economy which are passed to further the interests of individual groups and which alter the economic situation are in breach of the principle of equality if they are not passed in the public interest and if the interests of other persons which merit protection are arbitrarily affected. If there is such a breach of the principle of equality then under German law the person affected has a right of action.

The order making the reference was recorded at the Court Registry on 9 July 1980.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community written observations were lodged by Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen, represented by Gert Meier, Chief Legal Adviser to Rewe-Zentral AG, by the Federal German Government, represented by A. Deringer, Rechtsanwalt, Cologne, and by M. Seidel, Ministerial-rat at the Federal Ministry of Economics, by the Government of the United Kingdom, represented by R. D. Munrow of the Treasury Solicitor's Department, acting as Agent, by the Commission of the European Communities, represented by Jörn Sack, a member of its Legal Department, acting as Agent, and by the Council of the European Communities, represented by Bernhard Schloh, one of its Legal Advisers, acting as Agent.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

The plaintiff's in the main action claim that Regulation No 1544/69 must be interpreted as meaning that the exemption from duty for which it makes provision applies only to goods which come from the customs territory of a non-member country and are in free circulation there under customs law.

The legal basis of Regulation No 1544/69 is Article 28 of the EEC which governs the “autonomous alteration or suspension of duties in the Common Customs Tariff”. Such adjustments under Article 28 of the Treaty concern the free movement of goods, not the movement of persons, between the Community and its Member States on the one hand and non-member countries on the other. Consequently Regulation No 1544/69 concerns the tariff treatment of goods contained in the personal luggage of travellers in conjunction with the establishment of the Common Customs Tariff, that is the free movement of goods between non-member countries and the Community, in order to eliminate obstacles to travel which might arise from the tariff treatment of goods from non-member countries.

The said regulation contains exhaustive rules on the exemption from duty of goods contained in the personal luggage of travellers. On 1 January 1976 power to legislate in matters covered by the Common Customs Tariff passed to the Community. According to Article 28 of the Treaty only the Council may authorize the grant of an exemption from customs duty where Member States are concerned. In so far as such authorizations do not exist the Common Tariff applies uniformly in its entirety throughout the whole of the Community and no power exists to grant exemptions from customs duties by means of unilateral national measures. It follows that in so far as the German order relating to travellers' luggage provides for exemptions from customs duties which are not laid down by decisions of the Council within the framework of the Common Customs Tariff such national measures are void as being in breach of Article 28 of the Treaty.

Since Community regulations apply in national territory the national courts must of their own motion take account of the fact that laws and regulations adopted by the Member States in infringement of such a regulation are invalid (judgment of 17 May 1972 in Case 93/71 Leonesio [1972] ECR 287).

Regulation No 3023/77 is void because it infringes the basic rights to freedom to pursue an occupation and to develop the personality and to equality of treatment. Freedom to pursue an occupation forms part of the right to free choice of employment, which is protected as a basic right in the Community. With regard to the trade of wholesalers and retailers of foodstuffs, such freedom of choice includes the right to determine the range of goods and to fix selling prices. Regulation No 3023/77 infringes that liberty which is protected as a basic right.

In order to be able to compete with the goods sold on the ships operating “butter-buying cruises” goods must be sold at a price much lower than the purchase price. As this is not feasible the exemption contained in Regulation No 3023/77 necessarily means that the plaintiff Rewe-Markt Steffen must cease selling the goods listed in Article 1 (2) of the regulation. Furthermore the quantities which qualify for the exemptions are so large that the plaintiff Rewe-Handelsgesellschaft Nord is compelled to restrict considerably this range of goods.

The fundamental right of developing the personality, that is to say the right of pursuing a trade without interference from the public authorities of the Community, which is capable of causing distortion of competition, is infringed. The actual principle infringed is that of the equality of treatment of goods crossing the customs frontier of the Community. Regulation No 3023/77 confers upon Member States only the right to grant or withhold an exemption from import duties. Thus the Community legislature itself makes possible treatment which is different in the various Member States and which accordingly is not uniform in its application to goods crossing the customs frontier of the Community from non-member countries. Regulation No 3023/77 infringes the fundamental right to equality of treatment since a specified category of national undertakings, shipowners whose vessels take part in butter-buying cruises, obtains favourable treatment.

Directive No 69/169 must be interpreted to mean that the exemption from turnover tax and excise duty for which it makes provision applies only to goods contained in the personal luggage of travellers coming from the customs territory of a non-member country or of a Member State where they are in free circulation for customs purposes.

Directive No 69/169 is directly applicable on the national territory and accordingly all laws and regulations of the Member States which are contrary to the provisions contained in that directive are rendered invalid. The national courts must accordingly of their own motion take account of that invalidity in proceedings instituted by a trader whose rights have thereby been infringed.

The German Government concurs in the view of the Finanzgericht to the effect that the exemption from customs duties provided for by Regulation No 1544/69 may be relied upon only by travellers coming from non-member countries. The same applies to Directive No 69/169. On voyages of the kind referred to, travellers accordingly may not rely upon either the exemption from customs duties laid down in Regulation No 1544/69 or the exemption from turnover tax and excise duty referred to in Directive No 69/169.

However, there is no requirement that, in order to qualify for duty-free importation, the goods should come from a non-member country or indeed that they should have been in free circulation there. On the contrary it is perfectly possible for them to have come from the customs territory of the Community but to have been obtained in a tax-free shop or during a voyage in a ship or flight in an aircraft.

The Community rules on tax and customs exemptions are not exhaustive and the Member States are therefore entitled to enact supplementary provisions. The legal basis for Regulation No 1544/69 is Article 28 of the Treaty which confers upon the Community power to settle all matters relating to the application of the Common Customs Tariff, including power to enact exemptions from customs duties. In so far as the Community has adopted rules the Member States may not adopt measures of their own which are at variance with the Community rules.

Within the framework of customs legislation there are still numerous areas not covered by Community law which accordingly remain subject to rules made by the Member States. The system of customs exemptions is one of those areas, as exhaustive Community legislation in that matter has not yet been adopted.

Directive No 69/169 is based on Article 99 of the Treaty which provides for the gradual harmonization of the legislation of the various Member States concerning turnover taxes, excise duties and other forms of indirect taxation, thereby reserving to the Member States power to legislate in the fields not covered by Community law. Accordingly Article 14 (2), taken in conjunction with Article 14 (1) (d) of the Sixth Directive on the harmonization of turnover taxes (Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, Official Journal 1977, L 145, p. 1), provides that until the entry into force of Community rules, Member States may maintain derogations covering the final importations of goods qualifying for exemption from customs duties otherwise than as provided for in the Common Customs Tariff.

Regulation No 1818/75 is based on Article 43 and 235 of the Treaty. These two articles do not confer exclusive powers on the Community but leave the Member States free to adopt supplementary rules or provisions of their own in so far as Community law has not laid down definitive rules in the matter.

The Community rules now applicable to the importation free of duties, taxes and levies of goods contained in the personal luggage of travellers are not exhaustive, leaving certain omissions which' the Member States are empowered to make good. In both tax law and customs law the Commission submitted in 1972, that is after the adoption of Directive No 69/169 and of Regulation No 1544/69, proposals for the adoption of Community rules which shows that the Commission itself considers that these fields are not yet covered by Community law.

The German Government claims that imports effected in the sphere of the intra-Community movement of travellers simply give rise to the grant of what is known as the “non-member country exemptions” if the traveller has begun his journey in a part of the territory of another Member State in which turnover tax and/or excise duty are not chargeable on goods consumed within that territory and if he is able to establish that the goods transported in his luggage have been acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refund (Articles 2 (4) and 4 (4) of Directive No 69/169). This principle, which applies to the intra-Community movement of travellers from one Member State to another must also apply — perhaps a fortiori — if travellers, on excursions, or cruises to the ports of another Member State, bring back goods acquired duty-free on board during transit in international waters or in the zone situated between the territorial frontier and the maritime customs frontier of the Member State where the voyage terminates. The zone between the maritime frontier of the German territory and the maritime customs frontier under German law does not form part of the zone in which turnover tax and excise duty are imposed; it therefore falls within the definition laid down in the second indent of Article 2 (4) and of the second indent of Article 4 (4) of Directive No 69/169.

The Government of the United Kingdom does not wish to express any views on the question whether the true construction and effect of the regulations and directives in issue in this case are to render incompatible with Community law the various reliefs from the application of the Common Customs Tariff which are permitted by the customs authorities of the Federal Republic of Germany, as complained of by the plaintiffs. The United Kingdom starts from the premise that the regulations containing the Common Customs Tariff and the exceptions to it involved in this case are directly applicable in Member States and capable of conferring rights on individuals which national courts must protect. The problem with which the United Kingdom is concerned is whether they are capable of conferring rights on individuals in the circumstances of the plaintiffs. Their grievance is merely that others have been granted relief beyond what Community law authorizes and their claim is rather intended to ensure that other persons have their obligations enforced.

According to the United Kingdom the failure by a Member State adequately to enforce a particular provision of Communitiy law against other persons within its jurisdiction may in certain cases constitute a certain infringement for which the proper remedy lies in appropriate action in the Community sphere by one of the organs of the Community or by another Member State. It is not an infringement for which Community law as such affords a remedy to the private citizen through an action in his national courts. However much he may be materially prejudiced by it, no right that has been directly conferred on him by Community law has been violated. This is not to say, however, that there can be no circumstances in which he has a remedy in his national courts. It may be that the invalidity of the action (or inaction) of his national authorities which is a consequence of its incompatibility with Community law does give rise, if certain conditions are satisfied, to a right of action on his part and does entitle him to certain remedies. But whether that is so, and what those conditions are, and what those remedies may be, are all matters which are to be decided by the national court in accordance with national law. In the United Kingdom the law relating to the right of a citizen to compel public authorities to act to enforce the law or for a declaratory judgment as to the duty to enforce it depends on his ability to show a special interest in the subject-matter beyond that of the public generally.

With regard to the second part of the order which concerns turnover tax and excise duty, what is at issue is a directive and not directly applicable regulations. Nevertheless the United Kingdom submits that the considerations set out with regard to regulations apply with equal force where the instrument in question is a directive.

It is for the Member States to implement directives choosing their own form and method for doing so. Directives are addressed to Member States and clearly cannot bind individuals directly or a fortiori enable an individual to compel by a private action in the courts of a Member State, the enforcement on other individuals of a law which ex hypothesi does not yet exist.

The Government of the United Kingdom submits that the Court has frequently recognized that directives, if they are sufficiently precise, may be directly effective to enable a citizen to invoke their provisions against a defaulting Member State endeavouring to enforce against him personally inconsistent national measures (judgment of 5 April 1979 in Case 148/78, Pubblico Ministero ν Ratti, [1979] ECR 1629, judgment of 23 November 1977 in Case 38/77, Enka BV. ν Inspecteur der Invoerrechten en Accijnzen, [1977] ECR 2203). That is, however, a very different matter from endeavouring by private action to compel a Member State to remedy its default generally. According to the United Kingdom such a general remedy is available only to the Commission under Article 169 of the Treaty.

The Commission observes that Regulation No 1544/69 does not deal with the origin or status under customs law of goods qualifying for favourable treatment but Article 1 (1) of Regulation No 1544/69, as amended by Regulation No 3061/78 expressly lays down that the exemption from customs duties is restricted to “travellers coming from third countries”. This view is supported by the seventh recital in the preamble to Regulation No 3061/78. Finally, the second recital in the preamble to Regulation No 3023/77 expressly declares that Regulation No 1544/69 does not apply to goods imported following a voyage from a Member State on a ship which has not called at a port within the customs territory of a non-member country. Accordingly the mere fact of leaving the customs territory of the Community which, on the German littoral, usually coincides with the line of the coast, and the subsequent return to the same territory cannot be considered as constituting a voyage to a non-member country.

The Commission raises the question whether it is sufficient for the sovereign territory of a non-member country to have been entered by sea and for the ship by which the return into the customs territory of the Community is effected to have passed through the coastal waters of a country which is not a member of the Community. In that case the Commission considers that, purely theoretically, contact has been made with a non-member country in the course of the voyage but it takes the view that the meaning and the objective of Regulation No 1544/69 require that the exemption from customs should likewise not apply in such circumstances.

If the possibility of making purchases in a non-member country during a voyage does not exist from the outset there is no reason to grant on arrival the exemptions from customs duties laid down by Regulation No 1544/69 as, according to the Commission, such exemptions are granted precisely to permit travellers to import from a non-member country small quantities of travel souvenirs or goods intended to be consumed in the course of the journey or shortly afterwards without paying taxes and without having to comply with complicated formalities. Likewise it does not suffice for a ship to make a symbolic call at the port of a non-member country in the course of which it is impossible to land and to make purchases. Such a case is likewise not covered by Regulation No 1544/69.

In order to qualify for the exemption under Regulation No 1544/69 a traveller must have stayed for a certain time in a non-member country and in the course of that stay have had an actual opportunity to purchase goods there. If there is such an opportunity Regulation No 1544/69 must be applicable even where the one and only objective of the voyage is to make purchases in the non-member country.

The Commission maintains that the origin and status of the goods are of no importance and that the only relevant factor is the occasion on which they have been imported. In fact from a practical point or view it is often difficult to determine where the goods have in fact been bought. The simplification of customs formalities for small quantities of goods would be rendered largely illusory if customs officers were required to check where and in what circumstances goods have been acquired.

Furthermore Article 2 (1) of Directive No 69/169, which governs exemptions from taxation in international travel within the Community, specifically emphasizes the fact that the goods in question must be in free circulation and must have been acquired subject to the general rules governing taxation on the domestic market of one of the Member States. It might be concluded from the parallel situation of exemptions in customs matters and those in tax matters that the Community legislature must have been fully aware of the problem of the origin and status of the goods and that it was not its intention to take a decision concerning the origin and status of the goods, but only as to the place of departure of the travellers. It would be absurd not to impose any duty on goods when they are imported from the non-member country of origin and to require, when they are imported through another non-member country, that they should have been placed in free circulation there in accordance with customs law.

The foregoing prompts the Commission to interpret Regulation No 1544/69 to mean that the exemption from duty for which it provides applies only to travellers coming from a non-member country, who may possibly have made a stay there permitting them to purchase goods. The point is not to establish whether the goods brought in on entry to the Community were purchased in that country or indeed whether the arrangements on free circulation of the non-member country in question applied to them.

Regulation No 1544/69 governs exhaustively customs exemptions for goods in the personal luggage of travellers. The Member States are thus prohibited from independently granting exemption from duty in such cases beyond the scope of that regulation.

Article 28 of the Treaty states that the Council is to decide on “any autonomous alteration or suspension of duties in the Common Customs Tariff”. The exemptions from customs duty in connexion with travel, such as is at issue here, also forms part of such alterations or suspensions. The Member States accordingly have no powers in this field. Under Article 113 of the Treaty the Community also has exclusive powers with regard to alterations or suspensions laid down within the framework of treaties concluded with non-member countries. With regard to the exemptions from agricultural levies and other charges provided for under the agricultural policy the Community alone is competent under Article 43 of the Treaty, in conjunction with the organizations of the agricultural markets. There cannot therefore in any case be any national provisions in this field.

As to the fourth question of the Finanzgericht the Commission considers that if Regulation No 3023/77 were to be considered as constituting definitive provisions certain factors would indicate that it was invalid. In fact that regulation affects the uniform nature of the validity of the Common Customs Tariff when imports are effected on the occasion of journeys made by certain means of transport although there is no substantive reason which justifies that permanent exception. The provisions of the Common Customs Tariff must be applicable uniformly at the external frontiers of the customs territory of the Community regardless of the means of transport used by travellers.

Regulation No 3023/77 constitutes discrimination between consumers in breach of Article 40 (3) of the Treaty because it permits the consumers of a Member State who live near the coast to purchase agricultural products at prices which are often based on the prices of the world market whilst other consumers are required to pay the higher prices resulting from the common agricultural policy.

The Court has declared that the general principle of equality of treatment forms an integral part of Community law (judgments of 19 October 1977 in Joined Cases 117/76 and 16/77, Ruckdeschel and Others ν Hauptzollamt Hamburg, [1977] ECR 1753 and in Joined Cases 124/76 and 20/77, S.A. Moulins et Huileries de Pont-à-Mousson and Others ν Office National Interprofessionnel des Céréales [1977] ECR 1795). For that reason the Commission considers that it would be strange to favour certain forms of selling agricultural products (sales on ships) whilst refusing to grant the same advantages in respect of other forms of sale (retail trade on the Continent).

However, Regulation No 3023/77 can constitute only a transitional solution and represents a first step in the definitive elimination of certain abnormal situations which date back to the period before the Common Customs Tariff came fully into force, whilst avoiding adverse economic effects for the persons concerned. The Commission has emphasized this in its declarations in the minutes of the Council when the regulations were adopted by the Council. Accordingly Regulation No 3023/77 is still justified at present as a transitional solution which makes it possible to avoid adverse economic effects for certain persons.

With regard to the third question of the Finanzgericht concerning the rights of individuals the Commission considers that it is drafted in too general terms. It should be limited against the background of the main action, that is to say a reply is necessary only where any rights which may arise for individuals under the customs tariff of the Community are concerned. The Finanzgericht's question amounts in fact to asking whether the provisions of the Common Customs Tariff, and in particular those prescribing the collection of certain customs duties on importation into the Community, make available to traders whose activities are protected by such duties, a right to require the national authorities in fact to apply import duties prescribed in the Common Customs Tariff and whether, if necessary, they may rely on that right in proceedings before the national courts.

The Commission considers that this is the first time the Court of Justice has had to consider so unusual a case in which the plaintiffs request the national authorities to apply tax measures to third parties who, according to the plaintiffs, have hitherto been favoured by the national authorities in breach of Community law. The exceptional nature of the situation is further emphasized by the fact that the adverse effects for the plaintiffs do not stem from the fact that third parties (the travellers) are favoured but indeed indirectly from the fact that the exemptions granted to travellers take the form of competitive advantages for the competitors of the plaintiffs, that is to say the sellers of certain goods on board ship. It is accordingly necessary to consider whether the provisions of the Common Customs Tariff confer personal rights on the plaintiffs. The Commission states that in most cases the Court of Justice has related the question of the personal rights of individuals under Community law to the question of its direct effect. Where a provision of Community law is sufficiently clear and precise and when consequently it does not leave any margin of discretion either to the Community institutions or to the Member States as to its application that provision is regarded by the Court of Justice as having direct effect in the legal systems of the Member States. It follows in general that individuals upon whom such provisions confer rights may rely upon those provisions before the national courts in order to enforce their personal rights flowing from the said provisions (judgment of 17 May 1972 in Case 93/71, Leonesio, [1972] ECR 287, judgment of 19 December 1968 in Case 13/68, Salgoil, [1968] ECR 453 and the judgment of 17 December 1969 in Case 33/70, SACE, [1970] ECR 1213). However, such provisions must in fact have as their objective the protection of the interests of persons or undertakings (judgment of 22 January 1976 in Case 60/75, Russo ν AIMA, [1976] ECR 45).

There is no doubt that the tariffs imposed by the Common Customs Tariff are sufficiently clear and precise and that they consequently have direct effect in the legal systems of the Member States. However, the duties provided for under the Common Customs Tariff are exclusively protective duties which in general shield only the economy or certain sectors of activity within the Community and they were not intended to protect the existence of particular undertakings. Traders in their capacity as individuals or particular undertakings are not protected by customs duties.

In order to recognize that this point of view is correct the Commission considers that it is sufficient to examine the consequences of a procedural nature if a right of such scope were granted to individuals. The recognition of a personal right to have the prescribed customs duties applied would mean that individuals could request a national court, in proceedings concerning failure by the Member States to comply with the Treaty, to give judgment not only in cases directly concerning them but also in cases of entirely general scope. The legal system laid down by the Treaty prescribes that only the Court of Justice has jurisdiction in connexion with an infringement of the Treaty by a Member State and then only on the application of the Commission or of another Member State. That consideration prompts the Commission to refuse to recognize a personal right of the kind referred to in the question.

That does not mean, however, that in such cases individuals do not have any rights. The order for reference shows that the national law fully authorizes a claim that rights have been infringed by unlawful conduct of the authorities in breach of Community law or by invalid national laws. In order to make such a claim individuals do not require a personal right based on Community law. As the Court has already stated, Community law does not require in all cases that complete protection should be available before the national courts (judgment of 6 May 1980 in Case 152/79, Lee ν Minister for Agriculture, [1980] ECR 1495). The principal point is that the effectiveness of Community law must not be fundamentally jeopardized (judgment of 21 January 1976 in Case 60/75, Russo ν ΑΙΜΑ, [1976] ECR 45).

With regard to the fifth question, according to the case-law of the Court of Justice the national authorities are bound to apply a provision of Community law so long as it has not been declared invalid by the Court of Justice (judgment of 13 February 1979 in Case 101/78, Granaria ν Hoofdproduktschap, [1979] ECR 623).

The Commission maintains that in this connexion rights against the national authorities cannot be based on the fundamental rights which are also recognized in Community law since the basic rights in Community law are clearly applicable only against the Community institutions and not against the national authorities even where the latter are carrying out duties which have been entrusted to them by the Community.

With regard to the second part of the order for reference concerning the turnover tax and excise duty the Commission considers that the reply should be that Articles 1 and 2 of Directive No 69/169 are to be interpreted as meaning that the exemption from turnover tax and excise duty therein provided for applies only to goods in the personal luggage of travellers coming from a non-member country or from another Member State perhaps after crossing the high seas but not in the case of entry from the high seas alone. If entry is effected from another Member State, possibly after crossing the high seas or a non-member country, there is an additional condition for granting the exemption, namely that the goods should have been in free circulation in the Member State in pursuance of Articles 9 and 10 of the Treaty and must have been acquired subject to the general rules governing taxation on the domestic market of one of the Member States.

The Commission maintains that Directive No 69/169 contains exhaustive rules on exemptions from turnover tax and excise duty on goods carried in the personal luggage of travellers in international travel. The Member States are not entitled to grant other exemptions of this nature in international traffic. Directive No 69/169 does not provide any right for individuals to require that the authorities of a Member State should collect taxes in cases in which the directive does not provide for any exemption from turnover tax and excise duty. If a Member State does not require travellers, on importing goods into its territory, to pay the taxes normally prescribed there may be a breach of Community law if and in so far as Community law provides that the collection of these taxes is mandatory. Directive No 69/169 and the Sixth Directive on value-added tax impose such an obligation on Member States. Nevertheless private persons do not have a right corresponding to that obligation of the Member States that the taxes shall in fact be collected. In fact the national legal systems do not make provision for a right on the part of individuals to require that other individuals shall in fact pay their taxes, nor does Community law provide any right of this nature.

With regard to Regulation No 1544/69 on customs duties, the Council considers that a distinction must be drawn between the persons who import the goods and the goods imported. With regard to the persons, they must be travellers entering the Community from a non-member country. With regard to the goods imported by travellers coming from a non-member country, Regulation No 1544/69 does not require that they should come from the customs territory of a non-member country or even that they should have been placed in free circulation for customs purposes in that country. It does not matter whether the goods from a Member State or from a non-member country.

Directive No 69/169 is largely identical as to its structure and content with Regulation No 1544/69: in both cases the exemptions in question relate to the movement of travellers across a frontier. The considerations which the Council sets out with regard to Regulation No 1544/69 are accordingly applicable to Directive No 69/169.

On the question whether Regulation No 3023/77 is void because it is in breach of a superior rule of Community law the Council refers to the reply which it gave on 19 July 1978 to Written Question No 1316/77 by Mr Notenboom, a Member of the Assembly, who asked inter alia:

What political, economic and legal justifications can the Council adduce to support the provisions of Regulation (EEC) No 3023/77 ...?”

The Council gave the following reply to that question :

The Council considers that, bearing in mind the aim of putting an end to abuses, it gave due consideration in Regulation (EEC) No 3023/77 to the political, economic and legal aspects of the problems presented and thus endeavoured, in a limited and non-definitive manner:

To take account of the consequences of such measures for economic activity and employment in certain regions of the Community bordering on third countries and subject to competition from the latter in the same sectors of activity;

To avoid unfavourable economic effects both on Community products and on products imported from third countries and released to the market in the Community, and any distortion of competition between traders and discrimination between Community consumers, particularly with regard to agricultural products, of which there is a surplus in the Community;

To establish equal conditions of competition for Community agricultural products and for these same products coming from third countries, when sold on board ship;

To protect the Community's budgetary interests by restricting the granting of the exemptions authorized under the regulation to very small quantities and specific products and by merely making these arrangements optional for the Member States.”

(Official Journal 1978, C 199, p. 17)

Regulation No 3023/77 is not in breach of the principle of equality or the prohibition of discrimination. First of all with regard to consumers anyone may go on the cruises in question and thus take advantage of the exceptional provisions if the Member State has exercised the power to grant the exemption from import taxes, as in the case of the Federal Republic of Germany. The right to go on such trips is not reserved either in law or in fact to the residents of the coastal regions from which the ships sail. A large number of travellers come from places far from the coast, from all over North Germany. It is clear that all discrimination on ground of nationality in relation to nationals of other Member States (Article 7 of the Treaty) is also excluded.

The Council maintains that the butter-buying cruises do not constitute a breach of the rule of equality in competition. In 1976 the shipowners organizing day-trips in the Baltic commissioned Professor Juergensen of Hamburg to draw up a report on the organization, consequences and analysis of that traffic. That report, which is dated 24 February 1977, was thus drawn up before the adoption of Regulation No 3023/77. It shows that in 1976 an average of 4.5% of the passengers came to the ships on foot, 20.7% by motor-car, 73.6% by motor-coach and 1.2% by train. The report calculated the loss of earnings sustained by retailers in the foodstuffs branch in the “relevant districts and towns” of Schleswig-Holstein, from Flensburg to Lübeck via Kiel, at 0.3% of their turnover or, in the case of tobacco retailers, at 1.1%. According to the report that branch of the trade could afford to bear such losses.

In the opinion of the Council sales on ships affect the retail and wholesale trade in the coastal regions only to a very small degree. That effect is contained “within reasonable limits”. For example, if sales of butter were less, on the other hand the extension of the season in the holiday resorts on the Baltic, the purchasing power of the sailors, who are now employed all the year round, and that of the sales-staff on board the ships and even the fresh food needed for such ships constitute a certain compensation.

Likewise there has been no breach of the principle of proportionality. The means chosen are well adapted to the situation. The exceptional arrangements are applied only to very limited quantities.

Other considerations concerning the economy as a whole militate in favour of the arrangements in question: the day-trips assist in prolonging the tourist season, which furthermore is relatively short, on the German Baltic coast. Such trips counter the tendency of travellers to leave these regions, which do not enjoy such a favourable geographical position; furthermore they play a part in maintaining and creating employment. Without such day-trips most of the ships in question would have to be laid up with the crew laid off for six months in the off-season. It is estimated that the number of persons working throughout the year on board the ships amounts to roughly 1000. To this must be added persons employed by the coach companies, undertakings fitting out the ships and shipyards.

The Council considers that there are probably several questions to consider together, of which sales on board ship is one. It refers to the tax-free shops at airports and the victualling of ships (and international trains).

With regard to the tax-free shops it has not yet been possible to adopt Community rules, despite a number of attempts. It is sufficient to point out that the European Assembly declared, in the course of its sitting on 18 April 1980, in its opinion on the proposal submitted by the Commission to the Council for a Fifth Directive on the harmonization of provisions laid down by law, regulation or administrative action relating to the rules governing turnover tax and excise duty applicable in international travel, that it requested

“the Commission to report to it on the problems connected with tax-free shops and on the desirability of abolishing them in respect of travel between Member States” (Point 8 of the resolution embodying the opinion, Official Journal 1980, C 117, p. 83).

This case concerns a “third party” that is a person who has only a secondary concern whether or not a Member State applies the Community provisions in favour of the person directly concerned; there may be a reaction affecting a third party, which is why the Finanzgericht submits the question whether protection will be afforded by the courts.

The Council suggests that the Court of Justice should reply in the negative to the questions concerning the protection of legal rights. The Treaty provides sufficient remedies for the protection of legal rights. The possibility of submitting a question for a preliminary ruling under Article 177 of the Treaty is sufficient in this connexion. Furthermore the provisions of the second paragraph of Article 173, the third paragraph of Article 175 and Article 184 of the Treaty show that an individual has only a limited right to challenge generally-applicable provisions of Community law. None of this implies any reduction in legal protection since the means available under national law, in conjunction with Article 177 of the Treaty, together with the claim for damages provided for under the second paragraph of Article 215 provide remedies which remain fully available.

III — Oral procedure

Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen, Kiel, represented by Gert Meier, Chief Legal Adviser to Rewe-Zentral AG, the Government of the Federal Republic of Germany, represented by A. Deringer, Rechtsanwalt, Cologne, the French Government, represented by H. Marty-Gauquié, acting as Agent, the Commission of the European Communities, represented by Jörn Sack, a member of its Legal Department, acting as Agent, and by the Council of the European Communities, represented by Bernhard Schloh, its Legal Adviser, acting as Agent, presented oral argument at the sitting on 4 February 1981.

The Advocate General delivered his opinion at the sitting on 18 March 1981.

Decision

1By an order of 5 June 1980, which was received at the Court on 9 July 1980, the Finanzgericht [Finance Court] Hamburg referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions as to the interpretation of Regulation (EEC) No 1544/69 of the Council of 23 July 1969 on the tariff applicable to goods contained in travellers' personal luggage (Official Journal, English Special Edition 1969 (II), p. 359), Council Directive No 69/169/EEC of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel (Official Journal, English Special Edition 1969 (I), p. 232) and the validity of Council Regulation (EEC) No 3023/77 of 20 December 1977 on certain measures to put an end to abuses resulting from the sale of agricultural products on board ship (Official Journal, L 358, p. 2).

2These questions were submitted in the course of proceedings between a wholesaler and a retailer established in the Federal Republic of Germany on the one hand and the Hauptzollamt [Principal Customs Office] Kiel, on the other, and raised the issue whether the “butter-buying cruises” run by various shipping companies from ports on the Baltic coast are in breach of Community law.

3The “butter-buying cruises” cross the maritime customs zone into the territorial waters or on to the high seas outside German territory. During the cruise passengers on the ships have the opportunity to buy goods such as spirits, butter, meat, tobacco, perfume and other products. Within certain limits no tax is charged on the importation of the goods at the German frontier. The “butter-buying cruises” are of considerable commercial importance to the undertakings which organize them.

4The first plaintiff in the main action is a wholesaler whose head office is near Kiel in the Federal Republic of Germany. It markets, inter alia, the same products as those sold during the cruises. Its customers, one of whom is the second plaintiff in the main action, are retailers established in the region of the Baltic coast.

5The order for reference shows that the applicants argued before the Finanzgericht that the effect of these cruises is to withdraw a large part of the purchasing power of the inhabitants of the Baltic coast from the local retail and wholesale businesses and to redistribute it amongst the shipping companies which arrange such cruises. The fact that these undertakings are able to sell goods tax-free or subsidized gives them a considerable competitive advantage which leads to distortion of competition.

6The plaintiffs originally asked the Finanzgericht to declare that the defendant must stop permitting the goods concerned to clear customs free of tax. They subsequently requested the Finanzgericht to order the defendant not to apply to passengers, when they cross the customs frontier, the exemption in respect of goods acquired by them tax-free or subsidized on “butter-buying cruises”.

7The Finanzgericht, before which the dispute was brought, submitted the following questions to the Court of Justice for a preliminary ruling:

“Customs duty

1Is Regulation (EEC) No 1544/69 of the Council of 23 July 1969, as last amended by Council Regulation (EEC) No 3061/78 of 19 December 1978, to be interpreted as meaning that the exemption from customs duties mentioned therein applies only to goods which come from the customs territory of a non-member country and additionally as the case may be to goods which are in free circulation in that country for the purposes of customs law, or is it sufficient for the goods to have originated in Member States and to have been imported by sea across the maritime customs border or the frontier of the national territory of the respective Member State?

2Does Regulation (EEC) No 1544/69 of the Council, as last amended by Council Regulation (EEC) No 3061/78, where appropriate read in conjunction with Article 28 of the EEC Treaty — save in the case of the goods covered by Council Regulation (EEC) No 3023/77 of 20 December 1977 — contain exhaustive rules for the exemption from customs duties of goods in travellers' personal luggage or may Member States independently grant exemption from customs duties going beyond the scope of Regulation (EEC) No 1544/69 save in the case of the goods covered by Regulation (EEC) No 3023/77?

3Does a breach of a Community regulation give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation thereof which are inconsistent with the provisions of that regulation so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued or for the provisions of Community law to be complied with?

4Is Council Regulation (EEC) No 3023/77 invalid because it is in breach of a superior rule of Community law (for example, the principle of equality, the prohibition of discrimination, freedom of competition, the principle of proportionality) ?

5If the answer to Question 4 is in the affirmative, does a person whose rights are adversely affected by reason of the law or administrative provision of a Member State, or the implementation thereof, based on Council Regulation (EEC) No 3023/77, acquire directly applicable rights so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued?

Turnover tax and excise duty

6Is Council Directive No 69/169/EEC of 28 May 1979, as last amended by Council Directive No 78/1032/EEC of 19 December 1978, to be interpreted as meaning that the exemption from turnover tax and excise duty therein provided for applies only to goods in travellers' personal luggage which come from the customs territory of a non-member country (Article 1) or, if they originate in a Member State, from the customs territory of the Community (Article 2) and additionally, as the case may be, to goods which are in free circulation for the purposes of customs law in a non-member country or Member State, or is it sufficient for the goods to have been imported by sea across the maritime customs border or the frontier of the national territory of the respective Member State?

7Does Council Directive No 69/169/EEC, as last amended, contain definitive rules for the exemption from turnover tax and excise duty of goods in travellers' personal luggage or may Member States independently grant goods in travellers' personal luggage exemption from turnover tax and excise duty going beyond the scope of the directive?

8Does Council Directive No 69/169/EEC, as last amended, give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation thereof which are inconsistent with the provisions of that directive, so that he may bring an action before a national court for the application of national measures contravening Community law to be discontinued?”

I — Customs duty

First question (interpretation of Regulation No 1544/69 — exemptions from customs duty)

8Regulation No 1544/69, as last amended by Regulation No 3061/78 (Official Journal 1978, L 366, p. 3) lays down the tariff treatment applicable to goods contained in travellers' personal luggage.

9The objective of Regulation No 1544/69 is, according to the recitals in the preamble thereto, to simplify the work of the customs authorities by avoiding the complex problems raised by reason of the volume of traffic between non-member countries and the Community and the variety of goods imported by travellers. With that aim in view the regulation lays down that a limited exemption is to be granted in respect of goods contained in travellers' personal baggage if the imported goods have no commercial character.

10Regulation No 1544/69, as amended by Regulation No 3061/78, is silent as to the origin of the goods which qualify for the exemption from customs duties. Article 1 provides that goods contained in travellers' personal luggage shall be exempt from common customs duties if the imported goods have no commercial character. The second subparagraph of Article 1 (1) states that “personal luggage” means the whole of the luggage which a traveller is in a position to submit to the customs authorities upon his arrival, as well as luggage which he submits later to the same authorities, subject to proof that such luggage was registered as accompanied luggage, at the time of his departure, with the company which has been responsible for conveying him.

11The regulation concerns small quantities of goods which are of little dutiable value. The objective of the regulation, which is to simplify the clearance through customs of goods contained in travellers' personal luggage coming from non-member countries, would not be attained if the customs authorities were obliged to determine, at the time of importation, the origin of the goods for which exemption from customs duties is claimed.

12In consequence it must be declared that Regulation No 1544/69 applies to the luggage of travellers coming from non-member countries irrespective of the origin of the goods or the place from which they come and of the customs duties and taxes which they have borne prior to their importation into the territory of the Community.

13It should furthermore be observed that the seventh recital in the preamble to the amending regulation states that “... in order to prevent possible false interpretation, it must be expressly stated that relief from common customs duty is available only to travellers coming from a third country”. That recital shows clearly the intention of the Council to avoid abuses. It is thus impossible to consider as a traveller coming from a non-member country, who is capable of qualifying for the exemption from common customs duty, a person who, during a cruise departing from a port of a Member State, does not call at a non-member country or makes only a token call there and does not remain there for an appreciable period, that is to say, a period during which he has in fact an opportunity of making purchases.

14The reply to the first question should accordingly be that the exemption provided for by Regulation No 1544/69, as last amended by Regulation No 3061/78, applies only to goods contained in the personal luggage of travellers coming from a non-member country. That exemption applies irrespective of the origin of the goods or the place from which they come and of the customs duties and taxes which they have borne prior to their importation into the territory of the Community. However, it is impossible to consider as a traveller coming from a non-member country, within the meaning of the regulation, a person who, during a cruise departing from a port of a Member State, does not call at a non-member country or makes only a token call there and does not remain there for an appreciable period, that is to say, a period during which he has in fact an opportunity of making purchases.

Second question (interpretation of Regulation No 1544/69 — exemptions from customs duties)

15Article 3 (b) of the Treaty provides that the activities of the Community are to include inter alia the establishment of a Common Customs Tariff. Article 9 of the Treaty states the Community is to be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries. Article 28 of the Treaty provides that any autonomous alteration or suspension of duties in the Common Customs Tariff is to be decided by the Council.

16These provisions show clearly that it is for the Council to decide, on the conditions fixed by the Treaty, the exemptions for which, in given circumstances, certain products may qualify by way of derogation from the Common Customs Tariff. It follows that, at any rate from the time when the Council enacts in a given field rules for the uniform application of exemptions, such as those contained in Regulation No 1544/69 the Member States do not retain any power to grant in that field an exemption wider than those determined by the Community rules.

17The reply to the second question should accordingly be that Regulation No 1544/69 of the Council of 23 July 1969 contains exhaustive rules on the exemption from customs duty of goods contained in the personal luggage of travellers coming from non-member countries and those rules do not leave Member States any power to grant, in the field covered by the regulation, any exemption wider than those provided for by the regulation.

Fourth question (validity of Regulation No 3023/77 — exemptions from agricultural levies)

18The fourth question inquires whether Council Regulation No 3023/77 is invalid inasmuch as it is in breach of a superior rule of Community law (for example, the principle of equality, the prohibition of discrimination, freedom of competition and the principle of proportionality).

19Before the Court considers the regulation in the light of these criteria it is however necessary to consider whether the regulation complies with the requirements of Article 190 of the Treaty which provides that regulations shall state the reasons on which they are based.

20Regulation No 1818/75 of the Council of 10 July 1975 (Official Journal, L 185, p. 3) extended the exemptions to be granted under Regulation No 1544/69 to agricultural levies and other import charges provided for under the common agricultural policy or under arrangements laid down under Article 235 of the Treaty and which apply only to certain goods resulting from the processing of agricultural products when contained in the personal baggage of travellers entering the Community.

21Since the Council found that that extension of the exemptions had given rise to abuses it adopted on 20 December 1977 Regulation No 3023/77 “on certain measures to put an end to abuses resulting from the sale of agricultural products on board ship”. The recitals in the preamble to the regulation recall first of all that Regulation No 1544/69 (exemptions from customs duties properly so called) does not apply to goods imported following a voyage from a Member State on a ship which has not called at a port within the customs territory of a non-member country. The recitals then state that experience has shown that Community agricultural products which have benefited from export refunds and agricultural products coming from third countries have been sold or distributed on board ships which have left a Community port and are returning to a Community port without calling at a port outside the customs territory of the Community, with a view to their introduction into the Community free of levies under Regulations (EEC) Nos 1544/69 and 1818/75.

22These recitals show that the Council considered that the introduction into the customs territory of the Community free of customs duties and agricultural levies, of goods acquired by travellers in the circumstances referred to in these recitals was not in accordance with the objective of the regulations in question. Since the objective of granting export refunds was to permit agricultural products of Community origin to compete with the products of non-member countries on markets outside the Community, it would be incompatible with the Community system of export refunds to grant such refunds for exports which were not intended for the market of a non-member country but for reimportation into the Community free of the levies normally charged on the importation of agricultural products. Such transactions would be likely to cause a clear loss for agricultural guidance and guarantee funds and to distort competition on the domestic market.

23In the fifth recital in the preamble to Regulation No 3023/77 the Council nevertheless states the following:

“... the legal situation in this connexion should be clarified; ... to this end Member States should be authorized to grant exemptions for the products listed in Annex II to the Treaty sold or distributed on board ships under the above conditions for very limited quantities beyond which these products may no longer be introduced into the Community unless proper import duties are paid.”

24Accordingly the regulation authorizes the Member States to grant an exemption from import duties in respect of certain quantities of products specified in Article 1 (2) of the regulation in the circumstances described in the recitals.

25Article 190 of the Treaty provides that “regulations, directives and decisions of the Council and of the Commission shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty”. That article requires that such measures should contain a statement of the reasons which led the institution to adopt them, so as to make possible a review by the Court and so that the Member States and the nationals concerned may have knowledge of the conditions under which the Community institutions have applied the Treaty.

26The statement of the reasons on which Regulation No 3023/77 was based does not fulfil that requirement. It does not in fact provide any explanation of the reason for which the Council, on finding that Regulation No 1544/69, contrary to a practice which had developed, should not be applied in the circumstances set out above, considered it necessary to establish a special system of exemptions applicable to that type of situation. Such a contradiction in the statement of reasons is all the more serious inasmuch as it concerns a provision empowering the Member States to grant exemptions, albeit on a small scale, from import duties, which constitute an essential part of the common agricultural policy. In those circumstances the statement of reasons does not provide any legal justification for the contested provisions of the regulation and accordingly it does not appear necessary to consider their basis in order to establish whether they are compatible with the rules of the common market.

27It is therefore sufficient to find that Regulation No 3023/77 does not contain a statement of the reasons on which it is based as required by Article 190 of the Treaty and is accordingly not valid.

II — Turnover tax and excise duty

Sixth and seventh questions (interpretation of Directive No 69/169 — exemptions from VAT and excise duty)

28Directive No 69/169, as supplemented by the Second Council Directive of 12 June 1972 (Official Journal, English Special Edition 1972 (II), p. 565) and by the Third Council Directive of 19 December 1978 (Official Journal, L 366, p. 28) on the harmonization of provisions laid down by law, regulation or administrative action relating to the rules governing turnover tax and excise duty applicable in international travel, provides that an exemption from those taxes levied on importation is applicable, within the framework of travel between non-member countries and the Community, to goods contained in the personal luggage of travellers and not exceeding certain limits as to value.

29The same directive also makes provision for exemption from the same taxes levied on importation and applicable to goods contained in the personal luggage of travellers coming from Member States of the Community, within certain limits as to value, provided that they fulfil the conditions laid down in Articles 9 and 10 of the Treaty and have been acquired subject to the general rules governing taxation on the domestic market of one of the Member States.

30In Article 4 of the same directive it is provided that, without prejudice to national provisions applicable to travellers whose residence is outside Europe, each Member State is required to set the quantitative limits therein mentioned for exemptions from turnover tax and excise duty of certain goods listed therein (tobacco products, alcoholic beverages, perfumes and toilet waters, coffee and tea). The limits applicable in travel between non-member countries and the Community are not so high as those applicable in travel between Member States.

31That directive also permits Member States to set lower limits as to value or quantity for the exemption of goods imported by frontier workers and certain other persons.

32It contains in addition provisions governing the remission of tax by the Member States in respect of goods contained in the personal luggage of travellers leaving a Member State.

33The recitals to the two directives which supplemented Directive No 69/169 show that the Council adopted them in implementation of the Resolution of the Council and of the Representatives of the Governments of the Member States of 22 March 1971 which provides for a gradual widening of tax exemption granted to individuals when crossing intra-Community frontiers. The Council considered it desirable as a first step that certain common rules applicable to persons residing in the Community should be laid down relating to standard cases of remission of tax at the retail trade stage.

34In the case of travel between non-member countries and the Community the actual wording of the directive shows that the exemption may be granted only to travellers who arrive in the customs territory of the Community from a non-member country and that in this case the circumstances in which the goods have been acquired are irrelevant to the grant of the exemption.

35With regard to intra-Community travel Article 2 (4) of the Third Directive amends Directive No 69/169 by adding a provision to the effect that where the travel from one Member State to another involves transit through the territory of a non-member country or begins in a part of the territory of another Member State in which the taxes referred to in the directive are not chargeable on goods consumed within that territory, the traveller must be able to establish that the goods transported in his luggage have been acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refund of turnover tax and/or excise duty. If the traveller is unable to provide the aforementioned proof he may enjoy only the more restricted exemption provided for in the case of travel between non-member countries and the Community.

36Both the recitals to and the provisions of the directives in question show that the Council intended gradually to establish a complete system of exemptions from turnover tax and excise duty for goods contained in travellers' personal luggage and that consequently in this field the Member States are left with only the restricted power given to them in the directives to grant exemptions other than those specified in the directives.

37The reply to the sixth question must accordingly be that:

In the case of travel between non-member countries and the Community the exemption provided for in Directive No 69/169 may be granted only to travellers who arrive in the customs territory of the Community from a non-member country and in this case the circumstances in which the goods have been acquired are irrelevant to the grant of the exemptions;

In the case of travel within the Community, where the journey from one Member State to another involves transit through the territory of a non-member country or begins in a part of the territory of the other Member State in which the taxes to which the directive refers are not chargeable on goods which are consumed within that territory, the traveller must be able to establish that the goods transported in his luggage were acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refund of turnover tax and/or excise duty. If the traveller is unable to provide the aforementioned proof he may enjoy only the more restricted exemption provided for in the case of travel between non-member countries and the Community.

38The reply to the seventh question must be that in adopting the directives the Council intended gradually to establish a complete system of exemptions from turnover tax and excise duty for goods contained in travellers' personal luggage and consequently in this field the Member States are left with only the restricted power given to them by the directives to grant exemptions other than those specified in the directives.

Third, fifth and eighth questions (remedies conferred upon persons by the regulations and the directives in question)

39These three questions concern the question whether a person whose interests are adversely affected either by national legislation incompatible with Community law or by the application of an unlawful Community measure may take action before the national courts in order to have measures contrary to Community law declared inoperative.

40In its order the Finanzgericht states that, according to the case-law of the Bundesverfassungsgericht [Federal Constitutional Court] and of the Bundesverwaltungsgericht [Federal Administrative Court], laws controlling the economy which are passed to further the interests of individual groups and which alter the situation with regard to competition are in breach of the principle of equality if they are not required in the public interest and if the interests of other persons which merit protection are arbitrarily prejudiced. In such a case under German law the person affected has a right of action. Placed in that context, the questions raised by the national court are intended in substance to establish whether that right of action may be exercised in similar conditions within the framework of the Community legal system in particular in the sense that if the economic interests of a person to whom Community law applies are adversely affected by the non-application of a Community provision to a third party, either through the action of a Member State or of the Community authorities that person may institute proceedings before the courts of a Member State in order to compel the national authorities to apply the provisions in question or to refrain from infringing them.

41It should be remarked first of all that under Article 189 of the Treaty a regulation “shall be binding in its entirety and directly applicable in all Member States”. A directive “shall be binding, as to the result to be achieved”, but leaves to the national authorities the choice of form and methods. According to the case-law of the Court the binding effect of a directive implies that a national authority may not apply to an individual a national legislative or administrative measure which is not in accordance with a provision of the directive which has all the characteristics necessary to render possible its application by the court.

42It follows from these considerations that a person may rely before the national courts on his rights under the regulation.

43Likewise, a national authority may not apply to a person legislative or administrative measures which are not in accordance with an unconditional and sufficiently clear obligation imposed by the directive.

44With regard to the right of a trader to request the courts to require the authorities of a Member State to compel a third party to comply with obligations arising from Community rules in a given legal situation in which that trader is not involved but is economically adversely affected by the failure to observe Community law, it must be remarked first of all that, although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. On the other hand the system of legal protection established by the Treaty, as set out in Article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply were it a question of ensuring observance of national law.

45With regard more particularly to Regulation No 3023/77, it should be noted that that regulation in itself does not confer any exemption. It merely conferred upon the national authorities power to grant a restricted exemption. It accordingly follows from the fact that the regulation is invalid that national measures taken on the basis thereof are not in accordance with Community law.

46The reply to the third, fifth and eighth questions should accordingly be as follows :

“The system of legal protection established by the Treaty, as set out in Article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available before the national courts for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring observance of national law.”

Costs

47The costs incurred by the Government of the Federal Republic of Germany, by the Government of the French Republic, by the Government of the United Kingdom, by the Council of the European Communities and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT,

in answer to the questions referred to it by the Finanzgericht Hamburg, by order of 5 June 1980, hereby rules:

1The exemption provided for by Regulation No 1544/69, as last amended by Regulation No 3061/78, applies only to goods contained in the personal luggage of travellers coming from a non-member country. That exemption applies irrespective of the origin of the goods or the place from which they come and of the customs duties and taxes which they have borne prior to their importation into the territory of the Community. However, it is impossible to consider as a traveller coming from a non-member country, within the meaning of the regulation, a person who, during a cruise departing from a port of a Member State, does not call at a non-member country or who makes only a token call there and does not remain there for an appreciable period, that is to say, a period during which he has in fact an opportunity of making purchases.

2Regulation No 1544/69 of the Council of 23 July 1969 contains exhaustive rules on the exemption from customs duty of goods contained in the personal luggage of travellers coming from non-3402936oceedings are, in sorestricted005member countries and those rules do not leave Member States any power to grant, in the field covered by the regulation, any exemption wider than those provided for by the regulation.

3Council Regulation No 3023/77 of 20 December 1977 on certain measures to put an end to abuses resulting from the sale of agricultural products on board ship does not contain an adequate statement of the reasons on which it is based and is accordingly not valid.

4In the case of travel between non-member countries and the Community, the exemption provided for in Council Directive No 69/169 of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel may be granted only to travellers who arrive in the customs territory of the Community from a non-member country and in this case the circum-, stances in which the goods have been acquired are irrelevant to the grant of the exemptions.

5In the case of travel within the Community, where the journey from one Member State to another involves transit through the territory of a non-member country or begins in a part of the territory of the other Member State in which the taxes to which the directive refers are not chargeable on goods which are consumed within that territory, the traveller must be able to establish that the goods transported in his luggage were acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refund of turnover tax and/or excise duty. If the traveller is unable to provide the aforementioned proof he may enjoy only the more restricted exemption provided for in the case of travel between non-member countries and the Community.

6In adopting Directive No 69/169, and the Second and Third Directives of 12 June 1972 and of 10 December 1978 respectively which supplement it, the Council intended gradually to establish a complete system of exemptions from turnover tax and excise duty for goods contained in travellers' personal luggage. Consequently in this field the Member States are left with only the restricted power given to them by the directives to grant exemptions other than those specified in the directives.

7The system of legal protection established by the Treaty, as set out in Article 177 in particular, implies that is must be possible for every type of action provided for by national law to be available before the national courts for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring observance of national law.

Signatures

Mertens de Wilmars

Pescatore

Mackenzie Stuart

Koopmans

O'Keeffe

Bosco

Touffait

Due

Chloros

Delivered in open court in Luxembourg on 7 July 1981.3402939e left wiare, in sorestricted8,0085

A. Van Houtte

Registrar

J. Mertens de Wilmars

President

OPINION OF MR ADVOCATE GENERAL CAPOTORTI

DELIVERED ON 18 MARCH 1981 ¹

Mr President,

Members of the Court,

1By an order of 5 June 1980 the Finanzgericht [Finance Court] Hamburg referred to the Court of Justice numerous preliminary questions, eight to be precise, which stem from an action involving somewhat unusual facts. In order to summarize them it is necessary to explain that certain shipping companies in the Federal Republic of Germany, above all in Flensburg and Hamburg, organize very short cruises (generally lasting a few hours) leaving from and returning to German ports on the Baltic Sea or the North Sea. They have acquired the nickname of “butter-buying cruises” because their essential, or indeed only, attraction is to afford passengers the opportunity of acquiring certain goods free of customs duties, indirect taxes or any other charges.

The ships in fact have on board various kinds of foodstuffs (such as butter, cheese and meat) and other products (spirits, tobacco, coffee, tea, perfumes and so on) coming from the Community or from non-member countries. In order to fulfil the German requirements for exemption from customs and excise duties it is sufficient for such ships to pass beyond the maritime customs frontier and then return to the port of departure without making a call abroad; but sometimes, on rare occasions, they proceed to the high seas outside the territorial waters of the Federal Republic and make a very short call at a Danish port since passengers are thus afforded increased exemptions from customs and excise duties. It should be recalled in this connexion that the order of 3 December 1974, entitled the “Reisegepäck-Verordnung”, makes provision for exemption in respect of “major transit” when a ship comes from the high seas or from a foreign port or has at any rate remained outside the customs territory for at least eight hours, whilst a reduced exemption is granted in respect of “minor transit” where short trips are made in the coastal waters beyond the customs frontier. Apart from this the particularly attractive prices of the agricultural products purchased on board ship are also influenced by the fact that when such products leave the customs territory of the Community they qualify for subsidies from the European Agricultural Guidance and Guarantee Fund through the granting of export refunds and monetary compensatory amounts.

These operations are on a large scale. According to the information provided by the court which submitted the reference, in the year 1979 in the area covered by the defendant customs office alone butter-buying cruises were made by 32 ships and some 1850000 passengers. That explains the origin of the main action, which was brought by the two Rewe undertakings which run businesses on the Baltic coast of Schleswig-Holstein and market, the one as a wholesaler, the other as a retailer, the same kind of products as those sold in the course of the above-mentioned cruises. Since the undertakings in question considered that they suffered unfair competition from the shipping companies, which attracted from ordinary businesses a considerable proportion of the customers resident in the Baltic littoral, they instituted proceedings before the Finanzgericht Hamburg against the Principal Customs Office, Kiel, in order to put a stop to the dutyfree importations effected in the manner described above. According to the plaintiffs the customs and tax exemptions for which the butter-buying cruises qualify are in breach of Community law; accordingly, they seek an injunction restraining the customs office from applying such exemptions or, in the alternative, a declaration that it may not grant them.

In the course of those proceedings the German court decided to request the Court of Justice to deliver a ruling under Article 177 of the EEC Treaty on a number of different questions. First of all, it requests an interpretation of the Community provisions on exemptions from customs duties, turnover tax and other indirect taxes in order to clarify the conditions to which the exemptions are subject (Question 1 of Group I and Group II). Secondly, it wishes to establish whether these provisions leave any margin of discretion to the Member States (Question 2 of Groups I and II). Thirdly, it raises the problem of the legal position (and in particular the possibility of seeking redress through the courts) of persons who are adversely affected by national provisions which infringe a regulation or directive (Question 3 of Groups I and II). Finally, the German court asks whether Regulation No 3023/77 is invalid (Question 4 of Group I) and, if the reply is in the affirmative, is wishes to know what rights are enjoyed by individuals adversely affected by national provisions based on the invalid regulation (Question 5 of Group I).

I propose to broach the questions in the order indicated above which appears to make them easier to deal with even though the court submitting the reference preferred to draw a distinction between all the questions concerning the exemption from customs duty (Group I) and those which, on the other hand, concern the exemption from turnover tax and excise duty (Group II). I shall discuss the content of the relevant Community provisions as the problems concerning them arise.

2The first question in Group I is worded as follows:

“Is Regulation (EEC) No 1544/69 of the Council of 23 July 1969, as last amended by Council Regulation (EEC) No 3061/78 of 19 December 1978, to be interpreted as meaning that the exemption from customs duties mentioned therein applies only to goods which come from the customs territory of a non-member country and additionally as the case may be to goods which are in free circulation in that country for the purposes of customs law, or is it sufficient for the goods to have originated in Member States and to have been imported by sea across the maritime customs border or the frontier of the national territory of the respective Member State?”

It may be seen that the alternatives put forward by the court submitting the reference are based on the origin of the goods which qualify for the exemption from customs duty. This approach must, however, be rejected as there is no basis for it in Regulation No 1544/69. That regulation concerns the tariff applicable to goods contained in travellers' personal luggage and is designed to meet the need for “Community arrangements for relief from duty covering passenger traffic between third countries and the Community” (penultimate recital in the preamble); however the regulation is not concerned at all with the origin of the goods. The relevant factor for the application of these provisions is that the traveller should enter the Community from a non-member country; furthermore, the exempt goods must form part of his personal luggage, they must have no commercial character and their total value must remain within certain limits (see Article 1 (1) of the regulation; a quantitative limit is nevertheless fixed for certain products). Moreover, the literal interpretation accords with that arrived at through taking account of the objective of the provisions in question: the establishment of the customs exemption is not in fact intended to render easier the movement of goods between non-member countries and the Community but only to facilitate the journeys of travellers by simplifying the work of the customs authorities. Accordingly, the fact that the relief from customs duty disregards the origin of the goods and the place where they were acquired is perfectly in accordance with the objective of Regulation No 1544/69.

In the amendment to Article 1 (1) of that regulation by Council Regulation No 3061/78 care was taken to specify that relief is available only to “travellers coming from third countries”; that clarification was provided in order “to prevent possible false interpretation”, as is stated in the last recital in the preamble to Regulation No 3061/78. There is accordingly no doubt that the exemption provided for in Regulations Nos 1544/69 and 3061/78 does not apply to travellers coming from Member States of the Community. That is confirmed in any case by the Council's declaration in the second recital in the preamble to Regulation No 3023/77 of 20 December 1977 that Regulation No 1544/69 “does not apply to goods imported following a voyage from a Member State on a ship which has not called at a port within the customs territory of a third country”.

3The first question of the second group closely parallels the question which I have just considered, but is concerned with the different matter of exemption — from turnover tax and excise duty. It asks :

“Is Council Directive No 69/169/EEC of 28 May 1969, as last amended by Council Directive No 78/1032/EEC of 19 December 1978, to be interpreted as meaning that the exemption from turnover tax and excise duty therein provided for applies only to goods in travellers' personal luggage which come from the customs territory of a non-member country (Article 1) or, if they originate in a Member State, from the customs territory of the Community (Article 2) and additionally, as the case may be, to goods which are in free circulation for the purposes of customs law in a non-member country or Member State, or is it sufficient for the goods to have been imported by sea across the maritime customs border or the frontier of the national territory of the respective Member State?”

The objective of Directive No 69/169 is, as its title indicates, to harmonize the provisions laid down by law, regulation or administrative action relating to exemptions from turnover tax and excise duty on imports in international travel. Unlike the provisions of Regulation No 1544/69, the expression “international travel” covers both travellers coming from non-member countries and those coming from other Member States; it should in fact be stated that, amongst the objectives of the directive, emphasis is placed above all on the need for greater liberalization of the system of taxes on imports in travel between Member States (second and third recitals in the preamble). However, subject to that exception, the general approach in the directive is the same as that which is to be found in the regulation adopted two months later (Regulation No 1544/69), that is to say, the origin of the goods is not taken into consideration at all and the criteria for granting the exemption are the origin of the travellers, the fact that the goods are contained in their personal luggage, the non-commercial character of the importation and the limited value (or quantity) of the imported goods. Accordingly, since the origin of the goods or the place from which they come are not to be taken into consideration, the exemption provided by that directive is not available to passengers on cruises which depart from, and return to, ports of the same Member State and do not touch the territory of other Member States or non-member countries.

It is scarcely necessary to add that the sort of travel involved in the cruises “without port of call” certainly cannot be considered to fall within the term “travel between Member States” contained in Article 2 of Directive No 69/169. The wording is too precise to be stretched so far. Besides, the result would be contrary to one of the basic premises on which the exemption in question is founded, namely that as a general rule goods purchased in one Member State have already borne tax and the exemption from such tax on importation into another State “avoids double taxation without leading to an absence of taxation” (fourth recital in the preamble to the directive).

Further support for that point of view is provided by Article 2 (4), which was added to the original text of the article by Council Directive No 78/1032 of 19 December 1978. It provides that, where the travel from one Member State to another involves transit through the territory of a non-member country or begins in a part of the territory of another Member State in which the taxes referred to in the directive are not chargeable on goods consumed within that territory, “the traveller must be able to establish that the goods transported in his luggage have been acquired subject to the general conditions governing taxation on the domestic market of a Member State and do not qualify for any refunding of turnover tax and/or duty”, failing which Article 1 applies. Accordingly, if the traveller is unable to furnish the above-mentioned proof he may qualify, after 1 January 1979, only for the more limited exemption laid down for travel between non-member countries and the Community. In any case, even to qualify for the reduced exemption, the traveller must have come from another Member State, which condition clearly is not satisfied in the case of cruises consisting of a short sea voyage beyond the customs frontier without a call at a foreign port.

4In the second question of the first group the Finanzgericht Hamburg asks :

“Does Regulation (EEC) No 1544/69 of the Council, as last amended by Council Regulation (EEC) No 3061/78, where appropriate read in conjunction with Article 28 of the EEC Treaty — save in the case of the goods covered by Council Regulation (EEC) No 3023/77 of 20 December 1977 — contain exhaustive rules for the exemption from customs duties of goods in travellers' personal luggage or may Member States independently grant exemption from customs duties going beyond the scope of Regulation (EEC) No 1544/69 save in the case of the goods covered by Regulation (EEC) No 3023/77?”

As I had occasion to remark in my opinion of 27 November 1980 in Case 50/80, Horvath, certain customs matters continue to be governed in the individual Member States by national provisions which have not been harmonized with those in force in the other Member States. The reason for this is that the field in question does not require to be governed in its entirety by Community provisions but falls in part within the scope of the national legal systems, which have yet to be completely harmonized. Nevertheless, these general considerations are not sufficient to supply an answer to the question posed by the German court; in this case indeed the subject-matter is clearly defined, namely exemption from customs duties, and is governed by provisions directly enacted by the Community legislature through Regulation No 1544/69.

The manner in which the question is phrased would appear to suggest that the German court took the view that, if the abovementioned regulation does not lay down exhaustive rules governing the exemption from customs duties of goods contained in the personal luggage of travellers, the Member States may take action in the area not covered by the Community provisions. In my opinion, that view must be corrected. It must be assumed in the first place that customs duties are governed by the Common Customs Tariff (Articles 3 (b), 9 (1) and 23 (3) of the EEC Treaty), which is applied, as the Court is aware, to all imports to the Community, and that any grant of exemption from customs duties constitutes a restriction on the effective scope of the tariff. If those assumptions are accepted it is clear that measures by individual Member States which are intended to extend the scope of the exemptions from customs duties arising from Community provisions are not permissible.

In fact, after the end of the transitional period, apart from the possibility of enacting exceptional protective measures for one or other Member State (where special circumstances justify them), the sole means of altering the application of the duties of the Common Customs Tariff is the procedure laid down by Article 28 of the EEC Treaty, the same provision on which Regulation No 1544/69 in based. According to that article, “any autonomous alteration or suspension of duties in the Common Customs Tariff shall be decided unanimously by the Council” (or by a qualified majority where the alterations or suspensions do not exceed 20 % of the rate in the case of any one duty and do not remain in force for more than six months). Concessions such as those granted by Regulation No 1544/69 to travellers coming from non-member countries constitute exemptions from the duties charged under the Common Customs Tariff; furthermore, it should be borne in mind that according to the Court the powers conferred upon the institutions by Article 28 (and by other provisions on the customs union) must be construed broadly in order to allow those institutions to regulate external trade coherently (judgment of 12 July 1973 in Case 8/73 Massey-Ferguson [1973] ECR 897, paragraph 4 of the decision). Finally, I would observe that any alteration or suspension of the duties of the Common Customs Tariff adopted under Article 28 takes effect directly in all Member States, thereby upholding the principle that the Common Customs Tariff must be applied uniformly throughout the Community. It would not be consistent with that principle to hold that individual Member States are empowered to introduce or maintain exemptions from the customs duties on their own initiative.

5In the second question of the second group the Finanzgericht Hamburg asks: “Does Council Directive No 69/169/EEC, as last amended, contain definitive rules for the exemption from turnover tax and excise duty of goods in travellers' personal luggage or may Member States independently grant goods in travellers' personal luggage exemption from turnover tax and excise duty going beyond the scope of the directive?”

Although this problem is clearly similar to the one I have just examined, the point made in the order for reference, namely that different criteria should apply, appears to me justified. In fact, whilst exemptions from customs duties are directly governed by Community provisions, the powers of the Community in the field of internal taxation are confined to issuing directives intended to harmonize national laws. In the field of taxation, therefore, the Member States may in principle enact autonomous measures, provided that their content is not incompatible with the Treaty and with Community directives.

In considering the scope of Directive No 69/169 I have already had occasion to explain that that directive does not deal with the case of persons who embark at a port of a Member State and return there after a short voyage beyond the maritime customs frontier. Consequently, the question must be raised whether there is a conflict between the objective of that directive, or its content, and national provisions which extend the tax exemptions to passengers on “cruises” of the type described.

The two principal objectives of the directive are, as its preamble shows, the greater liberalization of the system of taxes on imports in travel between Member States in such a way as to proceed towards the creation of conditions similar to those of a domestic market (third recital) and to reduce taxes on imports in respect of travel between non-member countries and the Community (last recital). It seems to me that neither of these objectives is jeopardized by exemptions granted unilaterally by one Member State in favour of persons who, in the course of a cruise without any port of call, do not travel either between Member States or between the Community and non-member countries. It is scarcely necessary to add, parenthetically, that Member States continue to be under a duty to apply the provisions of the directive in all cases where such cruises call at ports in other Member States or in non-member countries.

With regard to the arguments which may be founded on the content of the directive, it must be borne in mind that that directive makes express provision for a number of cases in which the Member States are empowered to enact provisions which supplement, or derogate from, the general rules of the directive (I refer inter alia to Articles 2 (2), 4 (1), 5 (2) and (3) and Article 6 (2) and (3)). According to the Commission, this shows by implication that no independent power is left to the Member States to enact legislation in the field of tax exemptions. It appears to me, however, that in the cases mentioned there is conferred upon the Member States a discretion to alter the application of the general provisions of the directive in relation to certain situations or particular categories of travellers, provided always that they fall within the class of situations and persons to whom the directive applies. But the question under consideration concerns the power of Member States to introduce tax exemptions in regard to situations and persons who do not come within the scope of the directive at all.

Amongst the provisions of the directive which I referred to particular attention should be paid to Article 6 (2), as amended by Directive No 78/1032 of 18 December 1978. That paragraph enjoins the Member States to take the necessary steps to permit, in specified cases, the remission of turnover tax on deliveries of goods carried in the personal luggage of travellers; however, it begins by creating an exception with regard to the provisions relating to sales made at airport shops under customs control and on board aircraft (that is to say, such provisions must remain unaffected). This raises the question whether it is correct to infer from that reservation, which has a wide scope, that the Council intended to consider exhaustive the provisions on tax exemptions for travellers contained in the directive, so that, in the absence of other express reservations, the Member States may not be deemed to be empowered to grant such exemptions outside the terms of the directive. I consider that the reply must be in the negative. Even the reservation in question is clearly connected with the matter specifically governed by Article 6; the case in question, on the other hand, as I must repeat, concerns a field which is not dealt with in the directive and in which legislative action by a Member State does not imply a breach of the Community provisions.

These considerations lead me to take the view that, since tax exemptions in favour of passengers on cruises without a port of call are not contrary to Community law, they fall within the discretion of the national legislature.

6In the third question of the first group the German court asks :

“Does a breach of a Community regulation give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation thereof which are inconsistent with the provisions of that regulation so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued or for the provisions of Community law to be complied with?”

This question, as it is worded, appears to be tautologous. If indeed it is accepted that persons enjoy rights under a Community regulation and such rights are adversely affected by the law or administrative action of a Member State which is contrary to the regulation, there is no doubt that such persons are entitled to protect their rights by taking action to enforce the regulation in the national courts (the regulation must take precedence over conflicting national provisions). Nevertheless, it is necessary to have regard to the facts of the case brought before the Finanzgericht Hamburg and to clarify the meaning of the question in the light of those facts. In substance, then, the point to be settled is whether, when a Member State has granted exemptions from customs duties which according to Community law it was not entitled to grant and has thereby infringed the regulation on the Common Customs Tariff, traders who suffer loss through the effects of such exemptions may apply to the national courts for an injunction restraining the customs authorities from applying the internal provisions concerning exemptions or, in the alternative, requiring them to comply with the provisions of the Common Customs Tariff.

In its observations the Commission referred to the judgment of 22 January 1976 in Case 60/75 Russo ν ΑΙΜΑ ([1976] ECR 45) in support of the proposition that a Community provision may be relied upon by individuals only when the purpose of that provision is to protect their interests. However, the judgment in question concerned a case in which a producer of cereals instituted proceedings before the national courts on the ground that there had been a breach of Community law by the Azienda di Stato per gli Interventi sul Mercato Agricolo [the Italian intervention agency] in order to justify a claim for damages aginst that body. In its decision the Court held that the Community provisions conferred a right upon individual producers and ruled that, if damage is caused by an infringement of Community law on the part of the State, “it will be for the State, as regards the injured party, to take the consequences upon itself in the context of the provisions of national law relating to the liability of the State”.

In the present case the plaintiffs are not claiming damages for the loss incurred by them as a result of the exemptions granted to importers of goods sold during the butter-buying cruises, but are merely asking that the normal provisions of the Common Customs Tariff should be applied to such importations; that is to say, they are merely requesting the proper application of Community law. The question which we are now considering concerns, as I have said, the right of traders who have suffered loss through the practical effects of the exemptions to request the courts to order the customs authorities to discontinue such exemptions (or to comply with the Common Customs Tariff).

In my view, in order to resolve that problem it is necessary to proceed on the basis of two considerations of a general nature. The first concerns the relationship between a legal rule, a personal right and an interest in the application of the rule. Of course every legal rule provides for a particular type of situation and a legal relationship arises between the persons who in fact come to be in that situation; one of those persons, within the framework of binding legal relations, acquires a personal right. Naturally, that applies also to provisions of Community law created by regulations; thus, as regards the Common Customs Tariff, the right to invoke it arises out of a specific importation or exportation and the person entitled is the person who effects that operation. There is accordingly no doubt that every importer is entitled to the proper application of the tariff by the customs authority, as regards himself and that that right arises out of his act of importation. It is another matter to speak of the rights of importers as a class to demand compliance with the tariff; if the matter is put in these terms it remains at a general and hypothetical level and does not extend to identification of a specific right, that is to say to the creation of a specific legal relationship. It is yet another matter to speak of an interest in the proper application of a provision, for example, the interest of traders in seeing that customs duties are properly applied in relation to imported goods which compete with those produced or distributed by them. In fact every legal provision does of course by its nature reflect collective interests, even beyond the classes of persons to whom it applies; thus persons who have an interest in the enforcement of a particular provision are much more numerous than those who have a right, or who may be able to claim a right, under that provision.

The second consideration concerns the procedural aspect of the question. In order to be entitled to institute proceedings before the courts (for example for an injunction requiring another person to fulfil certain obligations) the plaintiff must be personally entitled to the right which the proceedings are specifically intended to uphold. In fact, court proceedings are not employed to provide general and hypothetical confirmation of the content of a rule but to apply it within the framework of a particular relationship. Accordingly, a person who merely has an interest in the enforcement of a rule, or more precisely, a person who does not stand in a specific legal relationship based on the rule, is not entitled to rely upon that rule before the courts.

These general considerations must now be applied to the problem raised by the Finanzgericht Hamburg. I observe first of all that the unlawful grant of exemptions from customs duties by a Member State involves, or at any rate appears to involve, a twofold breach of Community law: on the one hand, there is an infringement of the rule which precludes the State from legislating in a field reserved to the Community legislature; on the other hand, there is a failure to apply the Common Customs Tariff. The first infringement fails to observe the division of powers between the Community and the Member States; the right to have that division observed belongs to the Community, and as far as procedure is concerned, to the Commission. The second infringement is merely a consequence of the first; in fact there has been no specific case of the improper application of the tariff to an importer (for example, the application of a customs duty at variance with the Common Customs Tariff), but the scope of the Tariff has been unlawfully restricted by a legislative measure in breach of the duty of ¡the State to apply the customs duties fixed by the Community to imported products. From this point of view also, the right to demand that the Common Customs Tariff be applied in full belongs, in my opinion, to the Community and not to one or other private individual who happens to be a member of a class having an interest in the enforcement of the tariff.

In conclusion, the proposition may be advanced that it is sufficient not to confuse, on the one hand, the personal right which arises in the context of a specific relationship on the conditions laid down in the provision in question and, on the other hand, the interest of third parties that the provision should be observed. Only the holder of the right, as opposed to a person who has an interest of the latter class, is entitled to bring legal proceedings in order to ensure that the provision is applied in relation to his particular situation. Any other view would entail allowing a kind of azione popolare [civil action serving as a test case on a matter affecting public interests] on the basis of directly applicable Community provisions; but that would be contrary to the legal traditions common to the Member States and would, moreover, threaten to give rise to serious practical difficulties in the administration of justice (one has only to think of the number of persons who might have some kind of interest in the proper application of certain Community provisions!).

The conclusion at which I have arrived does not, however, rule out the possibility that persons having an interest in the enforcement of a regulation may be able to claim rights under the national legal system applicable to them where the action of the administrative authorities at variance with Community law is subject to an appraisal the basis of which includes provisions or principles of national law, provided that under such provisions or principles the persons in question are considered to have rights which may be enforced in the courts. The most obvious example is the right to damages for the loss resulting from an unlawful act of the administrative authorities: the matter dealt with in the above-mentioned judgment in the Russo ν ΑΙΜΑ case. However, there is nothing to preclude the view that, where there are provisions of national legislation at variance with Community law or with personal rights guaranteed by the constitution (where, for example, a national constitution extends protection of the right to equal treatment to persons engaged in economic activity), a private individual may rely upon such rights in order to have the provisions discontinued and thereby ensure, indirectly, that Community law is complied with.

7The third question of the second group closely parallels the question which has just been considered. It asks :

“Does Council Directive No 69/169/EEC, as last amended, give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation there of which are inconsistent with the provisions of that directive, so that he may bring an action before a national court for the application of national measures contravening Community law to be discontinued?”

It seems to me superfluous to repeat the general considerations which prompted me to draw a distinction between the rights of persons to whom a provision is intended to apply and the mere interest of third parties in having that provision enforced. I shall therefore simply observe that if it is conceded in principle that a directive may directly create rights for the benefit of individuals the situation is the same as that regarding the effects of a regulation, which by its nature is directly applicable. The solution accordingly cannot differ.

Nevertheless it appears to me appropriate to add two specific remarks. First, it must be borne in mind that the provisions of a directive are not usually of such a nature as to create rights for the benefit of individuals; such an effect may be recognized only as an exception and with regard to certain provisions of directives which display specific characteristics. With regard to Directive No 69/169 an examination into that point was neither carried out nor requested; it is furthermore clear that the reply given to the preceding question removes the need for such an examination. Secondly, the opinion which I have expressed with regard to the second question of the second group means that Member States are not in breach of Directive No 69/169 in granting independently tax exemptions in excess of those provided for in that directive. Consequently, the assumption contained in the question under discussion (that is to say, that a Member State has laid down provisions by law or administrative action which are inconsistent with the provisions of the said directive) has already been shown to be unfounded.

8In the fourth question of the first group the Finanzgericht Hamburg asks :

“Is Council Regulation (EEC) No 3023/77 invalid because it is in breach of a superior rule of Community law (for example, the principle of equality, the prohibition of discrimination, freedom of competition, the principle of proportionality)?”

It should first of all be made clear that Regulation No 3023/77, which was adopted by the Council on 20 December 1977, concerned “certain measures to put an end to abuses resulting from the sale of agricultural products on board ship”. As is stated in the preamble, the scope of the relief from duty introduced by Regulation No 1544/69 for passengers from non-member countries was subsequently extended by Regulation No 1818/75 of 10 July 1975 to agricultural levies and other import charges provided for under the Common Agricultural Policy (or under special arrangements applicable to certain goods resulting from the processing of agricultural products). No exemption was applicable to goods imported following a voyage from a Member State on a ship which did not call at a port within the customs territory of a non-member country: that is stated in the second recital in the preamble to Regulation No 3023/77, which I had occasion to mention when I was dealing with the first question. In practice, however, exempt sales were in fact effected on ships which did not call at a port of the kind indicated above and such sales included Community agricultural products coming from non-member countries: the fourth recital in the preamble establishes the existence of this state of affairs.

In view of these abuses the Council considered that “the legal situation in this connexion should be clarified” and to that end considered it appropriate that “Member States should be authorized to grant exemptions for the products listed in Annex II to the Treaty sold or distributed on board ships under the above conditions for very limited quantities beyond which these products may no longer be introduced into the Community unless the proper import duties are paid” (last recital in the preamble to Regulation No 3023/77). In other words the Council contented itself with restricting the abuse and legalizing it. Accordingly, pursuant to Article 1 of that regulation, Member States are empowered to authorize exemption from import duties (including both customs duties and agricultural levies) for small quantities of products such as butter, cheese, meat, wine and other items listed in Annex II to the Treaty, sold or distributed on board ships in the course of cruises without a port of call.

It appears to me that there are various grounds for upholding the argument that Regulation No 3023/77 is invalid. First, the Council could not have been unaware that the exemptions granted to customers on the so-called “butter-buying cruises” conferred on the organizers of such cruises a considerable competitive advantage over businesses selling the same products on land in the area near the ports from which the ships sailed. The ships used for the “butter-buying cruises” are in fact simply floating markets in which certain goods may be bought much more cheaply than in normal commercial operations. In this connexion I would point out that, in addition to the advantage conferred by the exemption from customs duties, agricultural levies and other import charges (Article 1 (1) and Article 2 of the regulation), where the goods in question were of Community origin they qualified until 31 December 1980 for Community export subsidies in the form of refunds and monetary compensatory amounts (first indent of Article 1 (1)). In the course of these proceedings we have heard that the grant of such subsidies for the “butter-buying cruises” was abolished as from 1 January 1981. This shows that the Community executive itself considered it excessive to maintain in force in their entirety the exceptionally favourable conditions which Regulation No 3023/77 created for the organizers of the floating markets. On the other hand, since the situation to which the national court refers concerns a time when those conditions had not yet been amended, our consideration of the entire range of advantages obtained under Regulation No 3023/77 by the shipowners operating the “butter-buying cruises” must have regard to all the aspects which have been described.

That leads me to the view that the Council acted in breach of the general principle that there should be no discrimination between undertakings when, by its measures of 20 December 1977, it granted to a class of them a privileged position for which there was no objective justification. The fact that the direct beneficiaries of Regulation No 3023/77 were the people who took advantage of the “butter-buying cruises” (the passengers) does not, in my view, rule out consideration of the actual effects which operated in favour of the organizers; in fact, the interests of the latter were necessarily affected by measures concerning (as is stated) the sale of agricultural products on board ship. It is scarcely necessary to add that, although the regulation was intended “to put an end to abuses” — and restricted the quantity of products which might be bought free of duty — the advantageous arrangements were not abolished but on the contrary were recognized by the Community; such recognition was in breach of the principle of non-discrimination.

A second ground of invalidity may be discerned, in my view, by comparing the apparent objectives of Regulation No 3023/77 with its real purpose. According to the last recital in the preamble (quoted above) and the title of the regulation, its objective was to clarify the legal situation and put an end to abuses. I must nevertheless observe that the solution arrived at in order to eliminate the abuse is, to say the least, peculiar: to confer upon it, albeit to a limited extent, a veneer of lawfulness. Furthermore, Regulations Nos 1544/69 and 1818/75, the improper application of which at national level gave rise to the abuses complained of, were intended to facilitate matters for travellers coming from non-member countries and at the same time to simplify customs formalities. These objectives are clearly foreign to Regulation No 3023/77.

The endeavour to ascertain a Community interest justifying the exemptions granted for the butter-buying cruises prompts a query as to what provision of Community law Regulation No 3023/77 is based on. At the beginning of the preamble reference is made to the EEC Treaty, although no particular article is specified. It might be thought that, like Regulation No 1544/69, the regulation now under consideration was adopted on the basis of Article 28 which, as I have noted above, confers upon the Council the task of deciding upon “any autonomous alteration or suspension of duties in the Common Customs Tariff”. There is, however, reason to doubt that, because the regulation does not derogate from the Common Customs Tariff in a general and uniform manner but merely grants Member States a power to derogate which, since it may or may not be exercised, is ultimately at variance with the requirement that the Tariff should be uniform. Thus by this approach also it is difficult to identify a basis for the measure in question in objectives related to the interests of the Community.

In fact, the information available points to the conclusion that the abuses mentioned in the fourth recital in the preamble to the regulation occurred in one Member State only: the Federal Republic of Germany. If that is borne in mind, it becomes apparent that the power to grant exemptions which the regulation formally conferred on all Member States fulfilled the sole purpose of permitting the continuation of a trade which is of specific interest to the Federal Republic (probably because it constitutes a source of employment amonst other reasons). Seen from this point of view the regulation must be considered a kind of disguised protective measure. That this is really so is, moreover, shown with greater clarity by the draft submitted by the Commission (and subsequently modified by the Council) in which the period for the exercise of the power granted to Member States was limited to six months.

From these circumstances as a whole I deduce that, in adopting Regulation No 3023/77, the Council exercised its legislative powers for purposes which were other than those apparent and which in any case cannot be traced to any objective of interest to the Community. The measure must accordingly be considered to be vitiated by misuse of powers.

In my view a third and final ground of invalidity consists in the absence of an adequate statement of the reasons on which the regulation was based. I have already indicated the contradictory, and in any case insufficient, nature of the last recital, which, ultimately, is all that the statement of reasons amounts to. I must further emphasize that, since the measure fell outside the objectives pursued by Regulation No 1544/69 and fractured the uniformity of the Common Customs Tariff, it required a particularly thorough and convincing statement of the reasons on which it was based. There is, however, no trace of that. It therefore appears to me that the obligation laid down by Article 190 was clearly not discharged.

9The fifth question of the first group is dependent on an affirmative reply to the previous question. Thus it presupposes that the Court will declare Regulation No 3023/77 invalid; in that case the court trying the main action wishes to have a reply to the following question:

“If the answer to Question 4 is in the affirmative does a person whose rights are adversely, affected by reason of the law or administrative provision of a Member State, or the implementation thereof, based on Council Regulation (EEC) No 3023/77, acquire directly applicable rights so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued?”

Despite the apparent similarity to the third question of the first group the problem with which we are here confronted is different. The problem is not in fact to clarify the legal position of individuals where a regulation has been infringed by conflicting measures adopted by a Member State; it concerns instead the position of persons who have been adversely affected by an invalid regulation and raises the question whether such persons may bring an action before the courts for a declaration that the national measures adopted on the basis of that regulation (or, to be more precise, in exercise of a discretion conferred by the regulation) are inapplicable.

In my view, the decisive factor resides not only in the invalidity of Regulation No 3023/77 but in the fact that such invalidity is a consequence of the breach of the principle of non-discrimination between competing undertakings. Since that principle is specifically concerned with the protection of private individuals, persons who have suffered discrimination at the hands of the Community legislature should, in my opinion, be considered entitled to rely before the courts on their right to equal treatment with competitors in order to have such equality restored through the setting aside of the national measures improperly authorized by the Community institutions. That implies, of course, that the right of private individuals not to suffer discrimination should be understood in a wide sense, as a reflexion of the duty of the Community authorities which is constantly incumbent on them and which requires them to give consideration to the practical economic effects of all of their measures. However, it is unnecessary for me to dwell upon this point since I have already discussed it in my analysis of the factors vitiating Regulation No 3023/77.

Conclusion

10On the basis of the arguments which are set out above, I therefore propose that the Court should reply to the questions submitted by the Finanzgericht Hamburg by order of 5 June 1980 with the following ruling:

1The exemption from customs duties provided for by Regulation No 1544/69 of the Council of 23 July 1969 (as last amended by Council Regulation No 3061/78 of 19 December 1978) applies to goods contained in the personal luggage of travellers coming from non-member countries irrespective of the origin of the goods or the place from which they come.

2The tax exemptions provided for by Council Directive No 69/169/EEC of 28 May 1969 (as last amended by Directive No 78/1032/EEC of 19 December 1978) apply to goods in the personal luggage of travellers coming from a non-member country or from another Member State of the Community irrespective of the origin of the goods or the place from which they come.

3Only the Community, and on its behalf the Council, may decide upon derogations, suspensions or alterations of the import duties laid down in the Common Customs Tariff. Consequently, there can be no question of any independent power of the Member States to grant exemptions in this field.

4Directive No 69/169/EEC does not prevent Member States from independently granting advantageous tax treatment in respect of goods contained in the personal luggage of travellers who return to the Member State of their departure after making a cruise beyond its maritime customs frontier without calling at the ports of other States.

5A person who has a right under a provision in a Community regulation may bring legal proceedings in order to ensure that that provision is applied in relation to him. Third parties who merely have an interest as members of a class in seeing the provisions of a regulations observed are not so entitled. The same criteria apply with regard to the directly applicable provisions of a Community directive.

6Council Regulation No 3023/77 of 20 December 1977 is invalid on the grounds of breach of the principles of non-discrimination, misuse of powers and failure to provide a sufficient statement of the reasons on which it is based.

7Undertakings which have suffered discrimination in relation to their competitors through the effects of a Community measure which is subsequently declared invalid as being contrary to the principle of nondiscrimination are entitled to rely before the courts on tneir right to equal treatment in order to have the national provisions adopted on the basis of that measure discontinued.

¹ Translated from the Italian.