CONTAINED IN THE MONOPOLY EQUALIZATION DUTY ) ON IMPORTED SPIRITS PURSUANT TO THE TAX LEGISLATION IN FORCE IN THE FEDERAL REPUBLIC OF GERMANY DURING THE PERIOD PRIOR TO THE ADOPTION OF THE LAW OF 2 MAY 1976 AMENDING THE LAW ON THE SPIRITS MONOPOLY .
2 IT EMERGES FROM THE ORDER FOR REFERENCE AND FROM THE DOCUMENTS BEFORE THE COURT THAT ON 12 JANUARY 1976 THE RESPONDENT IN THE MAIN PROCEEDINGS REQUESTED CUSTOMS CLEARANCE FOR HOME USE FOR A CONSIGNMENT OF BLENDED SPIRIT FROM BELGIUM CONSISTING OF 90% NEUTRAL SPIRIT , COMPARABLE TO GERMAN MONOPOLY SPIRIT , AND 10% SPIRIT DERIVED FROM WINE . IT SHOULD BE NOTED THAT AT THE PRESENT STAGE OF THE PROCEEDINGS THE TAX IMPOSED ON THE LATTER CONSTITUENT IS NOT AT ISSUE AND THAT THE DISPUTE IS CONFINED TO THE TAX CHARGED ON THE CONSTITUENT CORRESPONDING TO DOMESTIC MONOPOLY SPIRIT .
3 IT MUST BE RECALLED THAT AT THE TIME WHEN THE PRODUCT IN QUESTION WAS IMPORTED , IMPORTED SPIRITS WERE SUBJECT TO A TAX REFERRED TO AS THE ' ' MONOPOLAUSGLEICH ' ' ( MONOPOLY EQUALIZATION DUTY ), WHICH WAS COMPOSED OF TWO ELEMENTS , NAMELY , THE EQUIVALENT OF THE TAX ON SPIRITS AMOUNTING TO DM 1 500 PER HECTOLITRE AND THE MONOPOLAUSGLEICHSPITZE AMOUNTING TO DM 80 PER HECTOLITRE . THE LATTER ELEMENT OF THE TAX CHARGE WAS THE EQUIVALENT , IN THE CALCULATION OF THE SELLING PRICE OF MONOPOLY SPIRIT , OF THE PREISSPITZE ( PRICE MARGIN ), WHICH WAS OBTAINED BY DEDUCTING FROM THE MONOPOLY ' S SELLING PRICE OF DM 1 833 PER HECTOLITRE THE AMOUNT OF THE TAX ON SPIRITS AND THE ' ' BASIC PRICE ' ' OF THE SPIRIT FIXED BY THE ADMINISTRATION AT DM 253 PER HECTOLITRE .
4 ANDRESEN CONTESTS THE COMPATIBILITY WITH ARTICLE 95 OF THE TREATY OF LEVYING THE MONOPOLAUSGLEICHSPITZE ON IMPORTED SPIRITS ON THE GROUND THAT THAT CHARGE WAS THE EQUIVALENT OF AN ELEMENT INCLUDED IN THE CALCULATION OF THE MONOPOLY ' S SELLING PRICE , NAMELY THE PREISSPITZE , WHICH IN FACT WAS NOT OF A FISCAL NATURE BUT REPRESENTED THE MONOPOLY ' S ADMINISTRATIVE COSTS AND OTHER ECONOMIC CHARGES .
5 ANDRESEN SUCCESSFULLY BROUGHT AN ACTION BEFORE THE FINANZGERICHT ( FINANCE COURT ) HAMBURG , AS IS CLEAR FROM THE JUDGMENT GIVEN BY THAT COURT ON 26 JANUARY 1978 . IN THE GROUNDS OF THAT JUDGMENT , THE FINANZGERICHT HELD THAT THERE WAS NO RELATIONSHIP BETWEEN THE MONOPOLAUSGLEICHSPITZE , WHICH WAS UNQUESTIONABLY OF A FISCAL NATURE , AND THE AMOUNT BY WHICH THE MONOPOLY ' S SELLING PRICE EXCEEDED THE SUM OF THE BASIC PRICE AND THE TAX ON SPIRITS . ACCORDING TO THE FINANZGERICHT , ALTHOUGH THAT AMOUNT IS FIXED BY AUTHORITY , IT IN FACT REPRESENTS ECONOMIC CHARGES BORNE BY THE MONOPOLY WHICH , AS SUCH , CANNOT BE OFFSET BY A TAX ON IMPORTED SPIRITS .
6 THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) LODGED AN APPEAL AGAINST THAT JUDGMENT BEFORE THE BUNDESFINANZHOF CLAIMING IN SUBSTANCE THAT