37 OF THE TREATY , TERMINATED THE IMPORT MONOPOLY SO THAT SINCE ENTRY INTO FORCE OF THE DECREE SUCH ALCOHOL , SPIRITS AND SPIRITUOUS BEVERAGES MAY BE IMPORTED FROM OTHER MEMBER STATES AND MARKETED IN FRANCE SUBJECT TO THE PAYMENT OF CERTAIN TAXES WHICH ARE NEVERTHELESS NOT IN QUESTION IN THE MAIN ACTION .
12THE PROHIBITION CONTAINED IN ARTICLE 268 OF ANNEX II ON DISTILLING CERTAIN IMPORTED RAW MATERIAL MUST BE RELATED TO THE DISTINCTION MADE IN ARTICLE 358 OF THE CODE GENERAL DES IMPOTS BETWEEN ALCOHOL RESERVED TO THE STATE ( MONOPOLY ALCOHOL ) AND THAT NOT SO RESERVED ( FREE ALCOHOL ).
13IT APPEARS FROM A COMPARISON OF THE TWO PROVISIONS THAT ARTICLE 268 PROHIBITS THE DISTILLATION OF IMPORTED RAW MATERIAL WHEN IT IS SUITABLE FOR THE PRODUCTION OF ALCOHOL WHICH HAS TO BE RESERVED TO THE MONOPOLY WHEREAS THAT WHICH IS SUITABLE FOR THE PRODUCTION OF ALCOHOL NOT SUBJECT TO DELIVERY TO THE MONOPOLY CAN BE FREELY USED .
14THE PLAINTIFF MAINTAINED THAT THE PROHIBITION CONTAINED IN THE SAID ARTICLE 268 WAS INCOMPATIBLE WITH COMMUNITY LAW AND BROUGHT THE MATTER BEFORE THE TRIBUNAL DE GRANDE INSTANCE , LURE , WHICH REFERRED THE FOLLOWING QUESTION FOR A PRELIMINARY RULING :
' ' IS THE PROHIBITION IN FRANCE ON THE DISTILLATION OF SPIRITS FROM ANY IMPORTED RAW MATERIAL , WITH THE EXCEPTION OF FRESH FRUIT OTHER THAN APPLES , PEARS AND GRAPES ( ARTICLE 268 OF ANNEX II TO THE CODE GENERAL DES IMPOTS ), COMPATIBLE WITH ARTICLES 10 AND 37 OR ANY OTHER PROVISION OF THE TREATY OF ROME ON THE FREE MOVEMENT AND CIRCULATION OF PRODUCTS COMING FROM THIRD COUNTRIES , IN PARTICULAR AS REGARDS THE DISTILLATION OF SPIRITS FROM ORANGES STEEPED IN ALCOHOL COMING FROM ITALY?
' '
15IT FURTHER APPEARS FROM THE JUDGMENT OF THE NATIONAL COURT THAT CRIMINAL PROCEEDINGS HAVE BEEN TAKEN AGAINST THE PLAINTIFF IN THE MAIN ACTION FOR HAVING DISREGARDED THE PROHIBITION IN QUESTION AND THAT A PENALTY OF FF 17 804 343.19 HAS BEEN IMPOSED FOR BREACH OF THE ECONOMIC SYSTEM FOR ALCOHOL .
16ALTHOUGH THE COURT HAS NO JURISDICTION UNDER ARTICLE 177 OF THE TREATY TO RULE ON THE COMPATIBILITY OF A NATIONAL PROVISION WITH COMMUNITY LAW , IT MAY NEVERTHELESS , HAVING REGARD TO THE PARTICULARS SUPPLIED BY THE NATIONAL COURT , EXTRACT FROM THE WORDING OF THE QUESTION THE FACTORS RELATING TO THE INTERPRETATION OF COMMUNITY LAW .
17UNDERSTOOD IN THIS WAY THE QUESTION COMES IN SUBSTANCE TO ASKING WHETHER ARTICLE 37 OF THE TREATY ON THE ONE HAND AND ARTICLE 30 TOGETHER WITH ARTICLE 10 ON THE OTHER ALLOW A MEMBER STATE WHICH HAS A COMMERCIAL MONOPOLY IN ALCOHOL TO MAINTAIN , OR ON THE CONTRARY PROHIBIT IT FROM MAINTAINING , RESTRICTIONS ON DISTILLING CERTAIN RAW MATERIAL SUITABLE FOR PROCESSING INTO ALCOHOL AND IMPORTED FROM OTHER MEMBER STATES WHEN SIMILAR RAW MATERIAL , IN THE PRESENT CASE ORANGES STEEPED IN ALCOHOL , PRODUCED IN THE TERRITORY OF THE SAME MEMBER STATE , ARE NOT SUBJECT TO SUCH