Hansen GmbH & Co. v Hauptzollamt Flensburg.
Date: 1979-03-13
8ARTICLE 37 DOES NOT REQUIRE THE TOTAL ABOLITION OF STATE MONOPOLIES OF A COMMERCIAL CHARACTER BUT ONLY THAT THEY BE SO ADJUSTED AS TO ENSURE THAT NO DISCRIMINATION REGARDING THE CONDITIONS UNDER WHICH GOODS ARE PROCURED AND MARKETED EXISTS BETWEEN NATIONALS OF MEMBER STATES .

IT IS FURTHER PROVIDED IN ARTICLE 37 ( 2 ) THAT THE OPERATIONS OF A STATE MONOPOLY SHALL NOT BE EMPLOYED TO RE-ESTABLISH A CUSTOMS BARRIER OR QUANTITATIVE RESTRICTIONS IN INTRA-COMMUNITY TRADE .

ARTICLE 37 REMAINS APPLICABLE WHEREVER , EVEN AFTER THE ADJUSTMENT PRESCRIBED IN THE TREATY , THE EXERCISE BY A STATE MONOPOLY OF ITS EXCLUSIVE RIGHTS ENTAILS A DISCRIMINATION OR RESTRICTION PROHIBITED BY THAT ARTICLE .

IN A CASE SUCH AS THE PRESENT , WHICH CONCERNS AN ACTIVITY SPECIFICALLY CONNECTED WITH THE EXERCISE BY A STATE MONOPOLY OF ITS EXCLUSIVE RIGHT TO PURCHASE , PROCESS AND SELL SPIRITS , THE APPLICATION OF THE PROVISIONS OF ARTICLE 37 CANNOT BE EXCLUDED .

IT THUS APPEARS THAT THE NATIONAL COURT WAS JUSTIFIED IN REQUESTING CLARIFICATION OF THE RELATIONSHIP BETWEEN ARTICLE 37 AND THE PROVISIONS OF THE TREATY CONCERNING OFFICIAL AIDS SINCE THE OPERATIONS OF THE MONOPOLY ARE CLOSELY LINKED WITH THE SUPPORT OF CERTAIN CATEGORIES OF PRODUCER BY MEANS OF PURCHASE PRICES GUARANTEED BY LAW .
9A COMPARISON BETWEEN ARTICLE 37 ON THE ONE HAND AND ARTICLES 92 AND 93 ON THE OTHER SHOWS THAT THOSE PROVISIONS PURSUE THE SAME OBJECTIVE , WHICH IS TO ENSURE THAT THE TWO CATEGORIES OF INTERVENTION ON THE PART OF A MEMBER STATE , NAMELY ACTION BY A STATE MONOPOLY AND THE GRANTING OF AIDS , DO NOT DISTORT THE CONDITIONS OF COMPETITION WITHIN THE COMMON MARKET OR CREATE DISCRIMINATION AGAINST THE PRODUCTS OR TRADE OF OTHER MEMBER STATES .

HOWEVER , THE APPLICATION OF THOSE PROVISIONS PRESUPPOSES DISTINCT CONDITIONS PECULIAR TO THE TWO KINDS OF STATE MEASURE WHICH THEY ARE INTENDED TO GOVERN AND THEY DIFFER FURTHERMORE AS TO THEIR LEGAL CONSEQUENCES , ABOVE ALL IN THAT THE INTERVENTION OF THE COMMISSION PLAYS A LARGE PART IN THE IMPLEMENTATION OF ARTICLES 92 AND 93 WHILST ARTICLE 37 IS INTENDED TO BE DIRECTLY APPLICABLE .

A MEASURE EFFECTED THROUGH THE INTERMEDIARY OF A PUBLIC MONOPOLY WHICH MAY ALSO BE CONSIDERED AS AN AID WITHIN THE MEANING OF ARTICLE 93 IS CONSEQUENTLY GOVERNED BOTH BY THE PROVISIONS OF ARTICLE 37 AND BY THOSE APPLICABLE TO STATE AIDS .

IT FOLLOWS THAT THE OPERATIONS OF A STATE MONOPOLY ARE NOT EXEMPTED FROM THE APPLICATION OF ARTICLE 37 BY REASON OF THE FACT THAT THEY MAY AT THE SAME TIME BE CLASSIFIED AS AN AID WITHIN THE MEANING OF THE TREATY .

IT IS THEREFORE CLEAR THAT IN ALL CASES WHERE THE ARRANGEMENTS FOR MARKETING A PRODUCT SUCH AS SPIRITS ENTAIL THE INTERVENTION OF A PUBLIC MONOPOLY ACTING PURSUANT TO ITS EXCLUSIVE RIGHT THE SPECIFIC PROVISIONS OF ARTICLE 37 ARE APPLICABLE , EVEN IF THE RELATIONSHIP BETWEEN THE MONOPOLY AND PRODUCERS MAY BE IN THE NATURE OF AN AID .
10THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT ARTICLE 37 OF THE TREATY CONSTITUTES IN RELATION TO ARTICLES 92 AND 93 OF THAT TREATY A LEX SPECIALIS IN THE SENSE THAT STATE MEASURES , INHERENT IN THE EXERCISE BY A STATE MONOPOLY OF A COMMERCIAL CHARACTER OF ITS EXCLUSIVE RIGHT MUST , EVEN WHERE THEY ARE LINKED TO THE GRANT OF AN AID TO PRODUCERS SUBJECT TO THE MONOPOLY , BE CONSIDERED IN THE LIGHT OF THE REQUIREMENTS OF ARTICLE 37 .