2.

I start by examining the first point raised by the later order. The matter to be determined is whether Article 9 (1) and Articles 12 to 29 of the EEC Treaty allow a Member State to charge customs duties on drugs imported illegally and subsequently destroyed. The court making the reference expresses doubts in this regard on account of the fact that only German law provides for the charging of duties in the type of case described. Should this more severe treatment accorded to drug smugglers in the Federal Republic — and hence this lack of uniformity between the laws of the Member States with regard to a particular aspect of customs law — be regarded as compatible or not with the provisions of the Treaty relating to the customs union? Before answering that question I believe that it would be appropriate to emphasize that the Finanzgericht Hamburg, which took into consideration “goods smuggled into the customs territory of the Community” and requested an interpretation of Community regulations on the determination of the value of goods for customs purposes, had in mind a case of importation from a non-nember country. In the present case the heroin had been imported into Germany across the frontier with the Netherlands, but it clearly originated in a State outside the Community. Consequently the provisions of the EEC Treaty on the customs union which are relevant to the matter before the Court are those governing the position of the Community as against non-member countries, that is to say, Articles 18 to 29 and not Articles 12 to 17, which deal with the elimination of customs duties between Member States. Article 9 (1) provides that “the Community shall be based on a customs union which shall cover all trade in goods and which shall involve... the adoption of a common customs tariff in [Member States'] relations with third countries”. It was recognized at the outset that, in addition to setting up a new system of tariffs (according to the rules laid down in Articles 19 to 26), it was necessary to harmonize customs regulations. That is clear from Article 27, which provides for the approximation, “in so far as may be necessary”, of provisions laid down by law, regulation or administrative action in the Member States and prescribes a short period for that purpose (before the end of the first stage). Under Article 27 the Commission has power to address “all appropriate recommendations” to Member States. As regards this provision, I would observe that it indicates rather vaguely the extent to which the approximation is intended to attain and does not provide for any form of intervention by the Community institutions which is endowed with binding effects. In these circumstances the harmonization directives in the field of customs law have been issued under the general provision contained in Article 100 of the Treaty, whilst the use of regulations has been possible only by having recourse to Article 235. Moreover, the period stipulated in Article 27 expired quite some time ago without the approximation of national provisions having been attained to the extent objectively required. That is proved by the fact that in 1979 the Commission drew up a new “Multiannual programme for the attainment of the customs union” (published in Official Journal C 84 of 31 March 1979), in which it stated inter alia:“The ultimate objective of that customs union is to create the conditions on which the fusion of the national markets into a single market and the elimination of internal frontiers depend. These conditions entail more than the mere establishment of a Common Customs Tariff and a number of basic principles governing the application of such a tariff. They must be given practical effect via the establishment of a complete, uniform and effective body of legislation, designed to ensure the homogeneity of trade arrangements between the Community and non-nember countries and thereby to create the conditions required for goods to be able to move within the Community under the same conditions as within domestic markets”. Subsequently the 1980 programme for the attainment of the customs union (published in Official Journal C 44 of 21 February 1980) announced the Commission's intention to transmit to the Council “proposals containing the basic Community principles which will replace those set out in national legislation in those areas where customs provisions exist only at a national level” (paragraph 3). Given that state of affairs, it is not surprising that 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. In such cases it would be inaccurate to speak of lacunae in Community law, since we are not dealing with a matter which has been assigned in its entirety to the Community legislature but rather with a matter which in part still falls within the scope of national provisions and in respect of which a wider or more comprehensive harmonization of those provisions is awaited. It is therefore possible that certain aspects of customs activities are covered by national rules which differ from State to State, in spite of the risk that that may impede the full attainment of the customs union.