Opinion of Mr Advocate General Saggio delivered on 19 January 1999. - Criminal proceedings against Sami Heinonen. - Reference for a preliminary ruling: Helsingin käräjäoikeus - Finland. - Goods contained in travellers' personal luggage - Travellers arriving from non-member countries - Duty-free allowances - Prohibition on imports linked to minimum period spent abroad. - Case C-394/97.



European Court reports 1999 Page I-03599



Opinion of the Advocate-General

1 By order of 5 November 1997 the Helsingin Käräjäoikeus (Helsinki District Court) (Finland) referred to the Court three questions on the interpretation of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (hereinafter `the Regulation') (1) and Council Directive 69/169/EEC of 28 May 1969 on the harmonisation of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel (hereinafter `the Directive'). (2)

In particular, the national court is asking the Court whether the aforementioned instruments must be interpreted in such a way that a total prohibition on imports of alcoholic drinks, justified on grounds relating to the public interest, with respect to short journeys made to third countries by residents of Finland, is considered to be compatible with them.

Relevant provisions

The provisions of Community law

2 Title XI of the Regulation regulates the reliefs from customs duty which Member States are to grant to goods contained in the personal luggage of travellers coming from a third country. According to Article 45, these goods are to be admitted free of import duties, provided such imports are of a non-commercial nature. Paragraph 2 of this same article explains that `imports of a non-commercial nature' mean imports which are of an occasional nature and which consist exclusively of goods for the personal use of the travellers or their families, or of goods intended as presents. `The nature and quantity of such goods should not be such as might indicate that they are being imported for commercial reasons'.

For certain categories of goods, Article 46 limits the relief according to the quantity of the goods. For all other goods, including those which are the subject of this case (beer), Article 47 imposes instead a limit on their value which is set at ECU 175 by virtue of the amendments made by Regulation No 355/94.

3 The ninth recital of the Regulation has particular importance in this case. It states that `this Regulation does not preclude the application by Member States of import or export prohibitions or restrictions which are justified on grounds of public morality, public policy or public security, protection of health and life of humans, animals or plants, protection of national treasures possessing artistic, historical or archaeological value or protection of industrial or commercial property'.

4 Article 1 of the Directive, as last amended by Directive 94/4/EC, provides for the application of an exemption from national turnover tax and excise duty imposed on imports of goods contained in the personal luggage of travellers coming from third countries, provided such imports are of a non-commercial nature and the total value of these goods does not exceed ECU 175 per traveller.

Article 3 of the Directive contains the same definition for `imports of a non-commercial nature' as that given in the text of the Regulation.

5 According to Article 4 of the Directive, each Member State is to set quantitative limits for exemptions from duty on imports of certain alcoholic drinks. These limits are the same as the aforementioned limits contained in the Regulation. However, like the Regulation, the Directive does not set any quantitative limits on imports of beer, to which the general limit is applied. This is calculated on the value of the goods, as specified in Article 1.

6 With regard to intra-Community travel, Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (3) allows the Member States to lay down maximum quantities beyond which the import of products by private individuals is regarded as `for commercial purposes' (Article 9). With regard to beer, this quantity may not be lower than 110 litres.

7 Mention should next be made of Annex XV, IX, `Taxation', to the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded. (4) This Annex gives the Republic of Finland and the Kingdom of Sweden the power to `maintain quantitative limits for imports of cigarettes and other tobacco products, spirits, wines and beer from other Member States on the conditions stipulated in Article 26 of Council Directive 92/12/EEC'. (5) This limit is 15 litres for beer. The same provision requires Finland and Sweden to `take measures to ensure that imports of beer from third countries are not allowed under more favourable conditions than such imports from other Member States'.

Article 26 of Directive 92/12/EEC has since been replaced by Council Directive 96/99/EC of 30 December 1996. (6) According to the new provision, Finland is authorised to apply derogations from the general arrangements for reliefs from excise duty to the intra-Community trade in alcoholic drinks. In particular, the third subparagraph of the new Article 26(1) provides that, where such goods are imported by persons resident within Finland, the grant of admission without payment of duty may be restricted to travellers who have been absent from their territory for a period of more than 24 hours. As far as is known, Finland has not used this power.

8 The Community legislation on commercial imports from third countries and, in particular, the texts of the regulations adopted pursuant to Article 113 of the EC Treaty contain similar provisions to the text of the ninth recital of the Regulation. Article 1(2) of Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries and repealing Regulations (EEC) Nos 1765/82, 1766/82 and 3420/83 (7) specifies that imports of products originating in the third countries referred to in Annex I are to take place freely and so are not to be subject to any quantitative restrictions, without prejudice to the measures which may be taken under Title V and the quantitative quotas referred to in Annex II. Estonia and Russia are included in the third countries listed in Annex I. However, Article 19 of Regulation No 519/94 specifies that it is not to preclude the adoption or application by Member States of prohibitions on imports justified, inter alia, on grounds of public morality, public policy, public security and the protection of health. (8)

The provisions of national law

9 The traditionally restrictive Finnish legislation on imports of alcoholic drinks, consisting of the Alkoholilaki (9) (Law on Alcohol) and the Asetus alkoholijuomista ja väkiviinasta (10) (Decree on alcoholic drinks and spirits), has been subject to various amendments in recent years. With regard to imports for personal use, the legislation in force from 1992 to 1994 allowed the import, free of import duties, of a small quantity of alcoholic drinks only with respect to journeys lasting more than 24 hours. In 1995, following Finland's accession to the European Union, a special provision was adopted on imports from Member States and the limits on the duration of the journey with regard to imports from a non-member country were abolished.

10 In 1996 the legislation was amended again but this time more restrictively. The new Article 10 of the Alkoholilaki, introduced by Law No 287 of 1996, allowed the right of travellers arriving from outside the European Economic Area to import alcoholic drinks for personal use to be limited by decree, on grounds of public order, public security and the protection of health, with respect to journeys of short duration. The Asetus alkoholijuomista ja väkiviinasta was subsequently amended by Decree No 288 of 1996. The new Article 8, in force at the material time in the case in the national proceedings, confirmed the prohibition on the import by residents of Finland of alcoholic drinks into Finland if: (a) they were returning to Finland other than by air transport from outside the European Economic Area, or (b) the journey lasted less than or equal to 20 hours. The new Decree entered into force on 1 May 1996.

11 The amendments to the Finnish legislation were explained and justified, in the documents preparatory to Law No 287 of 1996, in the light of a series of circumstances. It was first and foremost pointed out that the interest of Finnish consumers in products from neighbouring countries such as Russia or Estonia was due to the difference in price between alcoholic drinks in Finland and those in the third countries in question. Secondly, it was stated that the application of the duty-free legislation had caused severe public-order and health problems. A significant increase in crime linked to the consumption of alcohol, violent behaviour and even suicide and cases of drunken driving had been recorded in the frontier areas. In these areas there had also been a spread of `red markets' in which Finnish residents arriving from Russia and Estonia illegally sold alcoholic drinks on the street. In general, following the abolition of the restrictions on the duration of journeys, a significant increase in the consumption of alcohol in relation to previous years was recorded. All these circumstances were considered to be jeopardising the objectives of containing consumption which the Finnish authorities had been trying to achieve by adopting strict protectionist measures. Other arguments, of an economic nature, were also put forward, including the reduction in sales of alcoholic products in East Finland and the fall in tax receipts due to the increase in imports of products free of taxes or duties.

Facts and questions

12 On 14 June 1997 Mr Heinonen, a Finnish national, sailed directly from Helsinki to Tallin (Estonia) and returned in the evening of the same day. The journey lasted about 12 hours in total. On returning to Finland, Mr Heinonen was stopped for a customs check during which he was found to be in possession of 19 0.33 litre cans of beer. The customs authorities issued a notice ordering Mr Heinonen to pay a fine of FIM 721 for unlawfully importing a small quantity of alcoholic drinks into Finland. The quantity of beer in question was also confiscated.

13 On 16 June 1997 Mr Heinonen sent a letter to the Public Prosecutor contesting the customs notice. The Public Prosecutor decided to refer the matter to the Helsingin Käräjäoikeus which he asked to order Mr Heinonen to pay a fine for unlawfully importing alcoholic drinks and to confirm the confiscation of those drinks, pursuant to Articles 82 and 95 of the Alkoholilaki. In his defence, Mr Heinonen argued before the Helsingin Käräjäoikeus that the Finnish provisions were incompatible with Community law, under which he was authorised to import freely the quantity of beverages contained in his personal luggage.

14 By order of 5 November 1997 the Helsingin Käräjäoikeus referred the following questions to the Court:

`(1) May the duty-free regulation and the travel directive be interpreted as meaning that national limits laid down by Member States on imports by travellers of beer and other alcoholic drinks, based on grounds referred to in the ninth recital in the preamble to the duty-free directive and in Article 36 of the EC Treaty or on other imperative requirements of the public interest, are compatible with the provisions of the regulation and the directive?

(2) Do facts (a) to (h) set out in point IV(6) of this order for reference constitute grounds such that a Member State's national restrictions based thereon are compatible with the provisions of the duty-free regulation and the travel directive?

(3) May a rule limiting travellers' imports of alcoholic drinks, which in this question also includes beer, on the basis of the duration of the journey be regarded as compatible with the provisions of the duty-free regulation and the travel directive?'

The first question

15 By its first question, the national court is asking the Court, essentially, whether the provisions of the Regulation and the Directive which relate to the import for personal use of goods free of import duties are to be interpreted as allowing Member States to adopt measures of a general nature which, based on non-economic requirements, in certain circumstances restrict the import from third countries of alcoholic drinks for personal use.

16 I believe that a positive answer should be given to this question: it is evident from their wording and their aims that the two acts do not preclude the possibility of Member States adopting measures such as those indicated in this case.

It should first be observed in this respect that the Regulation and the Directive are intended to lay down common rules on, respectively, reliefs from customs duty and tax exemptions for goods imported into the Community. Both of these acts confer on private individuals the right to import into the territory of Member States a specified quantity of goods which is not subject to customs duty or to turnover tax and excise duty, provided that the importation is of a non-commercial nature. These are clearly measures which are aimed, on one hand, at facilitating international travel (11) and, on the other, at facilitating the work of the customs authorities of the Member States. In the preamble to the Regulation it is stated in general terms that a customs duty in accordance with the Common Customs Tariff is not justified `in certain well-defined circumstances, where by virtue of the special conditions under which goods are imported the usual need to protect the economy is absent'. (12) This is also applicable, in the light of the provisions of Title XI of the Regulation, in the case of imports of a non-commercial nature.

17 The tax and customs treatment of the goods in point in this case is therefore regulated by the provisions contained in the Directive and the Regulation which allow travellers arriving from third countries to enjoy an exemption from payment of the respective duties and taxes up to the quantitative limits and values indicated therein. With regard to reliefs from customs duty, the preamble to the Regulation states that the need for common rules, in accordance with the international conventions to which all the Member States are contracting parties, (13) is justified by the requirement for customs union. Specifically, the aim is to `eliminate differences in the aim, scope and conditions for application of the reliefs contained in these conventions, and to enable all those concerned to enjoy the same advantages throughout the Community' (fourth recital).

18 It should be added that, as the Court has frequently had occasion to point out, the Community legislation on reliefs from customs duty and tax exemptions is exhaustive. The Member States may therefore only derogate from the common rules within the limited scope of the competence granted thereto by the Community provisions in question. (14) However, this clarification is to be taken as referring solely to cases where the Member State intends to derogate from the common rules on economic grounds. Thus, for example, in the judgment in Commission v Ireland, the Court confirmed the incompatibility with the Community legislation in question of an Irish provision which distinguished, with regard to the application of the relief, between `genuine' travellers and `fiscal' travellers, the latter being excluded from the application of the relief specified in the Directive. In that case - which, moreover, unlike this case, concerned travel from one Member State to another - the Court did not agree with the view taken by the defendant government which sought to justify measures restricting the application of the relief on the ground that the flow of travellers from Ireland to Northern Ireland, where the lower VAT rate made the purchase of certain goods more advantageous, had caused serious damage to the Irish economy. After confirming that Member States have only the limited power expressly conferred on them to grant reliefs different from those specified in the Directive, the Court stated that `where, on account of the economic (15) situation in a Member State, it becomes necessary to adopt exceptional provisions making the grant of exemptions subject to a period of time spent outside national territory, such provisions may be adopted only in pursuance of a directive derogating from Directive 69/169'. (16)

19 The provisions of the Directive and the Regulation, as interpreted by the Court, do not therefore preclude a Member State from citing non-economic grounds for the adoption, in given circumstances, of measures restrictive of private imports of a non-commercial nature. The power of Member States to adopt measures of this type is not frustrated by the existence of common rules on reliefs from customs duty and tax exemptions, which clearly presuppose the legality of the importation of a given product.

20 Moreover, this power is expressly recognised in the ninth recital in the preamble to the Regulation, in which it is stated that `this Regulation does not preclude the application by Member States of import or export prohibitions or restrictions which are justified on grounds of public morality, public policy or public security [or] protection of health'. (17) A provision of identical content is to be found in Regulation No 2913/92 establishing a Community Customs Code. (18) It follows that the harmonisation of customs rules, including those on reliefs, does not preclude Member States, in accordance with their international obligations, (19) from adopting measures restrictive of imports of alcoholic drinks where those measures are justified by non-economic requirements.

21 I therefore propose that the Court give the following answer to the first question: the duty-free regulation and the international travel directive must be interpreted as meaning that they do not preclude national measures limiting non-commercial imports of alcoholic drinks from third countries, provided that those measures are justified by non-economic requirements.

The second question

22 By its second question, the national court is asking the Court whether the grounds indicated in the Finnish legislation can be such as to justify the restrictive measures adopted on imports of alcoholic drinks by travellers arriving from third countries.

23 It should be observed in this respect that, in the documents preparatory to the Finnish law, non-economic requirements, such as the protection of public order, public morality and health, were put forward in justification of these restrictive measures. As pointed out by the Finnish Government, the restrictive measures were adopted in order to tackle the serious disruptions of public order caused by the increased consumption of alcohol which in turn resulted from the extreme ease with which, under the previous legislation, residents of Finland could obtain alcoholic drinks at lower prices in neighbouring countries. Social and health requirements and requirements involving the protection of public morality were also cited, easy access to alcoholic products having caused a significant increase in consumption with significant consequences for human health. Finally, an increase in the number of suicides had been recorded. The Finnish Government points out how all these circumstances risked jeopardising the attainment of the objective pursued by the Finnish legislation on this subject, namely the prevention of excessive consumption of alcohol. Traditionally, that objective has been pursued by means of measures aimed at reducing the availability of alcoholic drinks through the application of high tax rates contained in a high consumer price.

24 It therefore falls to be determined whether the requirements cited by Finland to justify the restrictive measures adopted with respect to imports of alcohol for personal use, intended to protect public order, public morality and health, are in conformity with the aforementioned Community provisions. In this respect, while accepting that the specific objectives of the Community customs and tax provisions are not equivalent to those set out in the legislation on the movement of goods in the internal market, I believe that, for our purposes, reference can usefully be made to the case-law of the Court on the interpretation of Article 36 of the EC Treaty. (20)

25 It should therefore first be observed that the Court has made it clear on many occasions that `the health and life of humans rank foremost among the property or interests protected by Article 36 of the Treaty and it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to ensure'. (21) In its judgment in Henn and Darby, the Court ruled that `in principle, it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory', (22) while complying, obviously, with the principles of necessity and proportionality of the measures with regard to the requirements to be protected. (23)

26 With regard, more specifically, to national measures as part of the campaign against alcoholism, the Court has recently made it clear that the protection of human health against the harmful effects of alcohol `is indisputably one of the grounds which may justify derogation from Article 30 of the Treaty'. (24) There is therefore no doubt that measures aimed at limiting the consumption of alcohol fall, in principle, within the sphere of the requirements specified in Article 36 or the Community provisions on imports of products of a non-commercial nature from third countries.

27 I consider therefore the second question can be answered to the effect that the protection of public order, morality and health are sufficient grounds to justify restrictions on imports of alcoholic drinks for personal use from third countries.

The third question

28 By its third question, the national court is asking the Court whether the Regulation and the Directive allow Member States to adopt legislation which, based on grounds relating to the public interest, prohibits imports of alcoholic drinks for personal use from third countries following a journey lasting no more than 20 hours. The point which specifically falls for consideration is whether the measures introduced by Finland respond to criteria of necessity and proportionality with regard to the objectives established.

29 It should first be noted in this respect that, in the opinion of the Finnish Government, the measures in question were in fact essential as it was impossible to find a remedy for the serious problems mentioned above by means of measures less restrictive than the prohibition on imports of alcohol with respect to journeys of short duration. The Finnish Government also observes that it is not by chance that the problems in question arose immediately after the repeal of the previous provisions under which imports of alcoholic drinks from third countries were permitted, and benefited from relief, only in the case of journeys lasting more than 20 hours. Accordingly, the Finnish Government emphasises the relationship of cause and effect between the restrictive measures adopted subsequently and points to an appreciable change for the better in the negative situation linked to the consumption of alcohol.

30 I believe that, in principle, it is the responsibility of the national court, in the light of the elements of fact or law available to it, to decide whether the measures specifically adopted by Finland are capable of putting a halt to the trends described above or whether less restrictive measures could guarantee a similar result. The determination of the question whether the measures adopted are proportionate and effective is made on the basis of assessments of a factual nature which clearly cannot be made by this Court, whose function is, instead, to provide the national court with all such assistance as may enable it to make that assessment.

31 It is therefore the task of the national court to verify the reliability of the data cited by the Finnish Government which demonstrate an appreciable increase in the consumption of alcohol - and therefore in the problems of public order and health which this entails - following the repeal of the previous provisions. It is also the responsibility of the national court to verify the results of the new measures, that is to say, whether those measures have been able, even if only partially, to put a halt to the disruptions of public order and damage to public health cited by the Finnish Government.

32 That said, however, it should be pointed out that the Community provisions in question, even in the light of the interpretation offered by the Court in the context of Article 36 of the EC Treaty, seem to allow the Member States a certain margin of discretion in assessing which measures are capable of guaranteeing concrete results in the campaign against alcoholism. In determining the question of proportionality, due account must be taken of the specific nature of the social contexts in which the measures are applied and the importance which the individual Member State attributes to objectives that are legitimate under Community law, such as the reduction of the consumption of alcoholic drinks.

33 It should next be noted that the Finnish Government explained at the hearing that the provisions adopted, to the extent to which they involve the application of the restrictive measures to the duration of the journey, are to be regarded as provisional and exceptional measures. The Finnish Government has pointed out that it is planned to abandon these measures gradually once this appears to be possible without causing, yet again, serious damage to public order and health. Finally, the Finnish Government observes that negotiations with the Commission are in progress in order to establish a more effective system of border controls.

34 Although this context is in principle favourable to national measures designed to prevent the excessive consumption of alcohol, doubts remain, however, with regard to the solution actually adopted. The Finnish Government has not explained why, rather than totally prohibiting imports of alcoholic products purchased for personal use and imported into Finland following a journey lasting no more than 20 hours, it has not taken the simpler step of suspending the application of the system of reliefs to those goods, thus applying to them the customs and excise duties prescribed in the relevant Community or national provisions. In other words, alcoholic drinks purchased in third countries at prices significantly lower than those charged in Finland could have been excluded from relief and be subject to tax and customs arrangements which would have made their purchase no more advantageous than purchases made in Finland. Moreover, a measure of this type, less drastic in nature, could act as an effective deterrent, without, in principle, excluding imports of alcoholic drinks from third countries following a journey lasting no more than 20 hours.

35 This type of solution also seems to be more in line with the Community provisions which, in accordance with international obligations, provide for the liberalisation of imports from third countries. (25) This solution has a precedent in the aforementioned Directive 92/12/EEC, as amended by Directive 96/99/EC, under which the Republic of Finland retains the power to refuse relief to alcoholic drinks imported by travellers, resident in Finland and arriving from other Member States, who have spent a period of less than 24 hours outside Finland. This provision therefore does not preclude the import of the products in question but allows them to be refused relief from customs duties. (26)

36 In the light of the foregoing I propose that the Court give the following answers to the questions of the Helsingin Käräjäoikeus:

(1) The duty-free regulation and the international travel directive must be interpreted as meaning that they do not preclude national measures limiting non-commercial imports of alcoholic drinks from third countries, provided that those measures are justified by requirements of a non-economic nature.

(2) The duty-free regulation and the international travel directive must be interpreted as meaning that national measures which, in order to protect public health from the damage caused by alcohol and to prevent crime linked to the consumption of alcohol, restrict imports of alcoholic drinks for personal use from third countries are compatible with them.

(3) It is for the national court to determine whether the measures adopted by the Republic of Finland, in particular those which prohibit imports of alcoholic products from third countries for personal use according to the duration of the journey, are necessary and proportionate with regard to the objectives of protecting health, public morality and public order; in particular, it is for the national court to determine whether those objectives could not be attained by limiting admission to relief of the personal goods of travellers arriving from third countries.

(1) - OJ 1983 L 105, p. 1. Regulation as amended by Council Regulation (EC) No 355/94 of 14 February 1994 (OJ 1994 L 46, p. 5).

(2) - OJ, English Special Edition 1969 (I), p. 232. Directive as last amended by Council Directive 78/1033/EEC of 19 December 1978 (OJ 1978 L 366, p. 31) and Council Directive 94/4/EC of 14 February 1994 (OJ 1994 L 60, p. 14).

(3) - OJ 1992 L 76, p. 1.

(4) - OJ 1994 C 241, p. 21, p. 339.

(5) - Article 26 of Directive 92/12/EC gives this same power to Denmark, subject to a review mechanism.

(6) - OJ 1997 L 8, p. 12.

(7) - OJ 1994 L 67, p. 89.

(8) - The same wording also appears in Article 24 of Council Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports and repealing Regulation (EC) No 518/94 (OJ 1994 L 349, p. 53). That regulation, which contains the general arrangements for imports of products from third countries, does not apply to imports from the countries listed in Annex I to Regulation No 519/94.

(9) - Law No 459/68, last amended by Law No 287/96.

(10) - Decree No 644 of 1968, last amended by Decree No 288 of 1996.

(11) - See, in this respect, the fifth recital of the Directive.

(12) - See the second recital of the Regulation.

(13) - Convention on the facilitation of tourism traffic, signed in New York on 4 June 1954 (U.N.T.S., vol. 276, p. 230), in particular Article 3 thereof.

(14) - Case 158/80 Rewe I [1981] ECR 1805, paragraph 36; Case 278/82 Rewe II [1984] ECR 721, paragraph 31; Case C-158/88 Commission v Ireland [1990] ECR I-2367, paragraph 7.

(15) - The emphasis is mine.

(16) - Aforementioned judgment, at paragraph 9.

(17) - A provision of the same kind is contained in the text of Article 58(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 (OJ 1992 L 302, p. 1) establishing the Community Customs Code. These provisions are modelled on the text of Article XX - `General Exceptions' - of the General Agreement on Tariffs and Trade 1994 which specifies that `subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health'. The aforementioned New York Convention on the facilitation of tourism traffic must also be noted, as this specifies in Article 9 (official French text) that `chacun des États contractants reconnaît que les prohibitions qu'il impose à l'importation ou à l'exportation des objets visés par la présente Convention ne doivent s'appliquer que dans la mesure où ces prohibitions sont basées sur des considérations qui n'ont pas un caractère économique, telles que des considérations de moralité publique, de sécurité publique, d'hygiène ou de santé publique, ou d'ordre vétérinaire ou phytopathologique'.

(18) - Aforementioned Article 58(2).

(19) - See Article XX of the General Agreement on Tariffs and Trade and Article 3 of the New York Convention, cited above.

(20) - As noted, this provision allows Member States to adopt or maintain in force prohibitions or restrictions on imports, exports or goods in transit between the Member States if these measures are justified, inter alia, on grounds of public morality, public policy, public security or the protection of health.

(21) - Case C-320/93 Ortscheit [1994] ECR I-5243, paragraph 16. See also Case 104/75 De Peijper [1976] ECR 613, paragraph 15. Article 129 of the EC Treaty (now, after amendment, Article 152 EC), on `Public Health', specifies, in paragraph 1, that `the Community shall contribute towards ensuring a high level of human health protection by encouraging cooperation between the Member States and, if necessary, lending support to their action' (first subparagraph) and that `health protection requirements shall form a constituent part of the Community's other policies' (third subparagraph).

(22) - Case 34/79 Henn and Darby [1979] ECR 3795, paragraph 15.

(23) - For all these aspects, see Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía [1991] ECR I-4151, paragraph 16.

(24) - Case C-189/95 Franzén [1997] ECR I-5909, paragraph 76.

(25) - See in particular the aforementioned Article 1 of Regulation No 519/94 on common rules for imports from certain third countries including Estonia and Russia.

(26) - The fifth recital of Directive 96/99/EC is significant as it states that the derogations granted to Sweden and Finland `were accorded because in a Europe without frontiers where excise rates vary widely, an immediate total removal of excise limitations would have caused an unacceptable diversion of trade and revenue and distortion of competition in the Member States concerned, which have traditionally applied high excise duties to the products concerned both as an important source of revenue and for health and social reasons'.