H. Hansen jun. & O. C. Balle GmbH & Co. v Hauptzollamt de Flensburg.
Date: 1978-10-10
8ARTICLE 227 ( 1 ) PROVIDES THAT THE TREATY SHALL APPLY TO THE ' ' FRENCH REPUBLIC ' '  IN ITS ENTIRETY .

THE SPECIAL POSITION OF THE FRENCH OVERSEAS DEPARTMENTS IS DEALT WITH IN THE FOLLOWING TERMS BY ARTICLE 227 ( 2 ):
' ' WITH REGARD TO . . . THE FRENCH OVERSEAS DEPARTMENTS , THE GENERAL AND PARTICULAR PROVISIONS OF THIS TREATY RELATING TO :
- THE FREE MOVEMENT OF GOODS ;

- AGRICULTURE , SAVE FOR ARTICLE 40 ( 4 );

- THE LIBERALIZATION OF SERVICES ;

- THE RULES ON COMPETITION ;

- THE PROTECTIVE MEASURES PROVIDED FOR IN ARTICLES 108 , 109 AND 226 ;

- THE INSTITUTIONS ,
SHALL APPLY AS SOON AS THIS TREATY ENTERS INTO FORCE .

THE CONDITIONS UNDER WHICH THE OTHER PROVISIONS OF THIS TREATY ARE TO APPLY SHALL BE DETERMINED , WITHIN TWO YEARS OF THE ENTRY INTO FORCE OF THIS TREATY , BY DECISIONS OF THE COUNCIL , ACTING UNANIMOUSLY ON A PROPOSAL FROM THE COMMISSION .

THE INSTITUTIONS OF THE COMMUNITY WILL , WITHIN THE FRAMEWORK OF THE PROCEDURES PROVIDED FOR IN THIS TREATY , IN PARTICULAR ARTICLE 226 , TAKE CARE THAT THE ECONOMIC AND SOCIAL DEVELOPMENT OF THESE AREAS IS MADE POSSIBLE . ' '
9THE LEGISLATIVE PRACTICE OF THE COMMUNITY SHOWS THAT , EXCEPT FOR A FEW ISOLATED PROVISIONS , THE COUNCIL HAS NOT MADE USE OF THE POWER CONFERRED IN THE SECOND SUBPARAGRAPH OF ARTICLE 227 ( 2 ).

ON THE OTHER HAND , MANY SPECIAL PROVISIONS HAVE SUBSEQUENTLY BEEN ADOPTED IN FAVOUR OF THE FRENCH OVERSEAS DEPARTMENTS IN THE CONTEXT OF LEGISLATION ON THE MOST DIVERSE SUBJECTS , BUT NONE OF THAT LEGISLATION REFERS TO THE TAX PROVISIONS .

THE QUESTION RAISED BY THE NATIONAL COURT IS TO BE ANSWERED IN THE LIGHT OF THESE FACTUAL AND LEGAL CONSIDERATIONS .
10IT FOLLOWS FROM ARTICLE 227 ( 1 ) THAT THE STATUS OF THE FRENCH OVERSEAS DEPARTMENTS WITHIN THE COMMUNITY IS PRIMARILY DEFINED BY REFERENCE TO THE FRENCH CONSTITUTION UNDER WHICH , AS THE FRENCH GOVERNMENT HAS STATED , THE OVERSEAS DEPARTMENTS ARE AN INTEGRAL PART OF THE REPUBLIC .

HOWEVER , IN ORDER TO MAKE DUE ALLOWANCE FOR THE SPECIAL GEOGRAPHIC , ECONOMIC AND SOCIAL SITUATION OF THOSE DEPARTMENTS , ARTICLE 227 ( 2 ) MADE PROVISION FOR THE TREATY TO BE APPLIED BY STAGES , AND IN ADDITION IT MADE AVAILABLE THE WIDEST POWERS FOR THE ADOPTION OF SPECIAL PROVISIONS COMMENSURATE TO THE SPECIFIC REQUIREMENTS OF THOSE PARTS OF THE FRENCH TERRITORIES .
16AT THE PRESENT STAGE OF ITS DEVELOPMENT AND IN THE ABSENCE OF ANY UNIFICATION OR HARMONIZATION OF THE RELEVANT PROVISIONS , COMMUNITY LAW DOES NOT PROHIBIT MEMBER STATES FROM GRANTING TAX ADVANTAGES , IN THE FORM OF EXEMPTION FROM OR REDUCTION OF DUTIES , TO CERTAIN TYPES OF SPIRITS OR TO CERTAIN CLASSES OF PRODUCERS .

INDEED , TAX ADVANTAGES OF THIS KIND MAY SERVE LEGITIMATE ECONOMIC OR SOCIAL PURPOSES , SUCH AS THE USE OF CERTAIN RAW MATERIALS BY THE DISTILLING INDUSTRY , THE CONTINUED PRODUCTION OF PARTICULAR SPIRITS OF HIGH QUALITY , OR THE CONTINUANCE OF CERTAIN CLASSES OF UNDERTAKINGS SUCH AS AGRICULTURAL DISTILLERIES .
22IN THIS CONNEXION IT MUST BE POINTED OUT , FIRST , THAT THE PURPOSE OF ARTICLE 9 OF THE TREATY IS ONLY TO PROHIBIT CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES IN TRADE ' ' BETWEEN MEMBER STATES ' ' , SO THAT THAT PROVISION DOES NOT CONCERN THE IMPORTATION OF PRODUCTS FROM NON-MEMBER COUNTRIES , AND , SECONDLY , THAT SAVE IN EXCEPTIONAL CIRCUMSTANCES ONE AND THE SAME CHARGE TO TAX CANNOT BE CLASSIFIED BOTH AS INTERNAL TAXATION AND AS A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ( JUDGMENT OF 18 JUNE 1975 IN CASE 94/74 IGAV ( 1975 ) ECR 699 , AND JUDGMENT OF 2 MARCH 1977 IN CASE 78/76 STEINIKE ( 1977 ) ECR 595 ).

IN THE LIGHT OF THESE OBSERVATIONS , THE QUESTIONS ASKED BY THE NATIONAL COURT MUST BE TAKEN AS ASKING IN FACT WHETHER , IN TRADE WITH NON-MEMBER COUNTRIES , THERE IS ANY RULE PROHIBITING FISCAL DISCRIMINATION ANALOGOUS TO THAT LAID DOWN IN ARTICLE 95 OF THE TREATY .
23FOR TRADE WITH NON-MEMBER COUNTRIES , AND AS FAR AS INTERNAL TAXATION IS CONCERNED , THE TREATY ITSELF DOES NOT INCLUDE ANY RULE SIMILAR TO THAT LAID DOWN IN ARTICLE 95 , WHICH APPLIES ONLY TO PRODUCTS COMING FROM THE MEMBER STATES .

ACCORDINGLY - SUBJECT TO THE PROVISIONS OF REGULATIONS OF WHICH THE APPLICATION IS NOT AT ISSUE HERE - THE ANSWER TO THE QUESTION RAISED BY THE NATIONAL COURT DEPENDS UPON THE STATE OF RELATIONS UNDER TREATIES , WHETHER MULTILATERAL OR BILATERAL , BETWEEN THE COMMUNITY AND THE VARIOUS NON- MEMBER COUNTRIES FALLING TO BE CONSIDERED .
24THEREFORE THE ANSWER TO QUESTIONS 4 AND 5 SHOULD BE THAT THE EEC TREATY DOES NOT INCLUDE ANY PROVISION PROHIBITING DISCRIMINATION IN THE APPLICATION OF INTERNAL TAXATION TO PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES , SUBJECT HOWEVER TO ANY TREATY PROVISIONS WHICH MAY BE IN FORCE BETWEEN THE COMMUNITY AND THE COUNTRY OF ORIGIN OF A GIVEN PRODUCT .