# EUR-Lex - 52004PC0227 - EN

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# 52004PC0227

**Proposal for a Council Directive amending Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (submitted in application of Article 27 of Directive 92/12/CEE) /* COM/2004/0227 final - CNS 2004/0072 */ **

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Proposal for a COUNCIL DIRECTIVE amending Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (submitted in application of Article 27 of Directive 92/12/CEE)

(presented by the Commission)

EXPLANATORY MEMORANDUM

The report from the Commission to the European Parliament, the Council and the Economic and Social Committee on the application of Articles 7 to 10 of Directive 92/12/EEC [1] concludes that some of the provisions of these Articles should be clarified to ensure unambiguous understanding of the tax rules and procedures set out therein.

[1] Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ L 76, 23.3.1992, p. 1), as last amended by Council Regulation (EC) No 807/2003 of 14 April 2003 (OJ L 122, 16.5.2003, p.36).

The Commission therefore proposes amending the provisions on excisable products already released for consumption in one Member State and then moved to a destination in another. This amendment is based on the same principles as those applied when Directive 1992/12/EEC was adopted, namely:

- that excise duty must be paid in the Member State of destination when excise products are moved for commercial purposes; and

- the general principles governing the single market, i.e. that excise duty on products moved for non-commercial purposes by private individuals should always be paid in the Member State where the goods were acquired.

Comments on the proposed measures

Article 1 - Amendments to Directive 92/12/EEC

1) Amendment of Article 7

a) Amendment of Article 7(1)

The first of the proposed subparagraphs sets out the principle laid down in the current text of Article 7 that where products already released for consumption in one Member State are held for commercial purposes in another, the excise duty should be collected in the Member State in which they are being held. However, the wording is simplified.

A second subparagraph is added to indicate that commercial purposes are considered to be all purposes other than personal use by private individuals. The procedures referred to in paragraphs 4 and 5, second subparagraph, are thus explicitly made applicable to excisable products held by private individuals for purposes other than their personal use, and reimbursement of the excise duty in the Member State of departure is explicitly made possible under paragraph 6. At present the Directive makes no express provision for the procedure to be followed by private individuals wishing to carry out such transactions legitimately. It makes sense for the excise to be charged to the private individual who transports the products or has them transported. In terms of the procedures to follow, these movements should be treated in the same way as the movements referred to in Article 7.

The principle set out in first subparagraph fully applies to all excise products sold in the course of journeys within the Community unless, as provided for in Commission notice 99/08, [2] the products are held on a vessel or aircraft making crossings or flights between two Member States and are not available for sale when the vessel or aircraft is in the territory of one of those Member States. In such cases the goods are not considered to be held for commercial purposes in that Member State. To eliminate all doubt about the existence of this possibility, it should be explicitly indicated in the Directive. To this end a third subparagraph is added to paragraph 1 specifying that products held on board a vessel or aircraft making crossings or flights between two Member States but not available for sale when the vessel or aircraft is in the territory of one of the Member States are not deemed to be held for commercial purposes in that Member State.

[2] Commission notice concerning the VAT and excise rules to be applied from 1 July 1999 by suppliers of goods sold on board ferries and aircraft or in airports to passengers travelling within the European Union: 1999/C 99/08 (OJ C 99. 10.4.1999, p. 20).

b) Amendment of Article 7(2)

Since Article 7(2) only repeats provisions already covered in paragraphs 1 and 3, it is deleted.

c) Amendment of Article 7(3) to (9)

The present wording of paragraph 3 leaves a lot of leeway to Member States regarding the identification of persons from whom excise duty may be due in the Member State of destination. This flexibility causes some Member States difficulty. The expression "depending on the circumstances" gives no definite criteria for establishing whether the excise duty must be paid by the consignor, the consignee, or by some other person (the carrier, for instance).

The proposed paragraph 3 makes a clear distinction between two situations in which excisable products are held for commercial purposes in a Member State other than the one where they are released for consumption and defines clearly and without ambiguity the persons from whom excise duty is due, and who must also complete the formalities set out in paragraph 5, in each situation. To solve the difficulties associated with the formalities to be completed at destination, the person best placed to carry out those formalities should be designated as the excise debtor.

The first subparagraph of paragraph 3 refers to situations in which products are dispatched to the territory of another Member State by a trader not established in that Member State to be offered for sale there. This concerns products which, at the moment of entering the territory of another Member State, have not yet been the subject of a commercial transaction. The non-established trader is designated as the excise debtor in this situation.

The second subparagraph of paragraph 3 refers to situations in which products are used within another Member State for the purposes of a trader or body governed by public law. In such situations the general rule to apply is that the excise is due from the consignee (trader or body governed by public law to whose use the goods are assigned) established in the Member State of destination. If, in such cases, the foreign vendor has indicated his intention of paying the duty at destination (for example, because he regularly makes deliveries to that Member State under duty-paid arrangements) he can opt to be come the excise debtor instead of the consignee (third subparagraph of paragraph 3).

In view of the removal of the chargeable event for excise currently provided for in Article 9, a fourth subparagraph should be added to Article 7(3) providing that in cases other than those referred to in the first to third subparagraphs, excise is due from the person holding the products for commercial purposes. This provision replaces the second subparagraph of Article 9(1), which is deleted (see also the comments at point 3(a) below).

A final amendment to paragraph 3 concerns the concept of the "trader carrying out an economic activity independently", which the proposed amendment replaces with the concept of "trader", since all traders are concerned by this provision. It therefore suffices to refer to the status of "trader".

In paragraph 4, the words "excluding those in respect of which the non-established trader is identified as the excise debtor" are added. This means that the simplified accompanying document provided for in Commission Regulation (EEC) No 3649/92 of 17 December 1992 [3] need no longer be used in these situations. Use of this document is replaced by the procedure applicable to "distance sales" provided for in Article 10(3) which, while facilitating procedures for paying excise at destination, allows the administrations of the Member States concerned to monitor movements more closely.

[3] OJ L 369, 18.12.1992, p. 17.

Paragraph 5 sets out the obligations of the excise debtors defined in paragraph 3. The first subparagraph, which is new, provides that the formalities to be completed by the trader not established in the Member State of holding are the same as those applicable to the "distance sales" provided for in Article 10(3). The second subparagraph sets out the formalities currently provided for in paragraph 5 while specifying in the first sentence that they now apply only to the situations referred to in the second and fourth subparagraphs of paragraph 3.

The changes to paragraphs 6, 7 and 8 are purely formal.

At present paragraph 9 authorises Member States to introduce simplified procedures by bilateral agreement where products subject to excise duty are moved frequently and regularly from one place in a Member State to another place in the same Member State via the territory of another Member State. Since these simplified procedures have no impact on the general taxation principle referred to in paragraph 1, the wording of paragraph 9 is changed to allow the use of simple administrative agreements to introduce simplified procedures. This should facilitate the conclusion of bilateral agreements between Member States.

2) Amendments to Article 8

At present Article 8 only has one paragraph. The proposal amends this paragraph and adds two new ones.

The proposed first paragraph sets out the principle set out in the current version of Article 8, but the words "the principle governing the internal market lays down that" are deleted, since it is superfluous to refer to a general principle derived directly from the Treaty.

The present wording of Article 8 refers only to the situation in which transport is carried out personally by the person acquiring the excisable products. In the Commission's view it is no longer justifiable to restrict the general principle governing the single market in this way. It therefore proposes, in line with the principle applied to VAT, that all movements of products intended for the personal use of private individuals carried out by or on behalf of a private individual should by virtue of their non-commercial nature be subject to taxation in the Member State only in the Member State of acquisition. To this end the proposed second paragraph clearly states that the principle set out in the first paragraph also applies to products transported by third parties on behalf of private individuals, with the exception of manufactured tobacco. The full application of this principle to manufactured tobacco products would be contrary to the health policy provided for in the Treaty, in particular Article 152, and to the World Health Organisation's Framework Convention on Tobacco Control, [4] which provides for "implementing tax policies and, where appropriate, price policies, on tobacco products so as to contribute to the health objectives aimed at reducing tobacco consumption". Consequently excise duty will continue to be chargeable in the Member State of destination on tobacco products acquired from a foreign vendor and transported on behalf of a private individual.

[4] This convention was adopted by the World Health Assembly on 21 May 2003 and signed by the European Community on 16 June 2003.

The third paragraph states that the principle of taxation in the Member State of acquisition also applies to products dispatched by one private individual to another without any payment, direct or indirect (this applies mainly to gifts). This seems necessary to avoid any doubt as to how to treat these non-commercial movements.

3) Amendments to Article 9

a) Amendment of the first subparagraph of Article 9(1)

The first subparagraph of Article 9(1) provides that excise becomes chargeable where products released for consumption in one Member State are held for commercial purposes in another in circumstances other than those provided for in Articles 6, 7 and 8. It is proposed to delete this provision, which simply repeats the chargeable event already provided for in Article 7(1), with the sole difference that the person from whom excise duty is due is the holder of the products instead of the excise debtors identified in the situations referred to in Article 7. To cover the situations currently referred to in Article 9, a subparagraph has been added to Article 7(3) stipulating that in cases other than those for which the person from whom excise duty is due is explicitly designated, that person shall be the holder of the products. This may in particular concern goods held by private individuals for purposes other than their personal use, or products held by a trader or body governed by public law that has not met the requirements set out in the proposed Article 7(5).

b) Amendment of Article 9(2)

In the first sentence of paragraph 2, the reference to Article 8 is deleted since this provision is intended to set criteria to be taken into account by the competent authorities of Member States in all situations in which goods are held in their territories and there are doubts as to whether they are held for commercial purposes or for the personal use of private individuals.

The second subparagraph of paragraph 2 is no longer included in the proposal. This subparagraph allows Member States to provide guide levels, solely as a form of evidence, for establishing that the products referred to in Article 8 are intended for commercial purposes. In any case an administration can never use these guide levels on their own as evidence that excisable products are being held for commercial purposes. Neither may they ever be interpreted as tax-free "thresholds" since, if the administration of the Member State carrying out checks wants to classify a consignment as commercial, whether it falls short of these levels or exceeds them, it must have solid facts to hand on which to base such a conclusion. The guide levels should therefore be seen simply as guidelines given to officers by their administration, which may recommend that checks should not be carried out on private individuals unless these are carrying in excess of a given amount of excisable products. However, as such recommendations lie solely within the jurisdiction of the Member States, they should not be included in the enacting terms of the Directive.

c) Amendment of Article 9(3)

Article 9(3) is deleted. The Commission is not convinced of the need to retain a tax provision allowing Member States to derogate from the general principle of free movement applicable to movements carried out by private individuals. Although there may be a safety problem associated with the transport of mineral oils, a provision derogating from that general principle would not provide a satisfactory legal solution to the problem. Any stricter national or Community rules that may be applied to the transport of mineral oil must be kept completely separate from the principle of the taxation to be applied to such movement. If there is a failure to comply with certain safety standards, an offence should be recorded, but should have no impact on excise duties.

4) Amendments to Article 10

The wording of paragraph 1 does not clearly identify the movements it concerns. The original intention of the legislator, which was to introduce procedures applicable to sales made by foreign vendors who take responsibility, directly or indirectly, for the transport of products to private individuals established in another Member State ("distance sales") is not sufficiently highlighted. In order to make clear that this provision refers to distance sales to private individuals, the words "purchased by persons who are not authorised warehouse keepers or registered or non-registered traders" are replaced by the words "purchased by persons acting in their capacity as private individuals".

Paragraph 2, which repeats the provisions of paragraph 1, is deleted. It is replaced by a provision, currently set out in paragraph 3, specifying that the excise duty becomes chargeable at the time of delivery of the products.

Paragraph 3 sets out the obligations of the traders carrying out the transactions referred to in paragraph 1. The report states that traders generally consider the current payment procedure rather unsatisfactory. Their main difficulties are:

- the procedures with which they have to comply are not harmonised; each Member State decides independently what procedures to impose for lodging guarantees and paying excise duty;

- it is difficult to comply with the procedure which requires a guarantee to be lodged before the corresponding products are dispatched, since in practice this would mean a vendor having to travel physically to the Member State of destination before dispatching the products;

- appointing a tax representative, which most Member States require, places an additional financial burden on vendors, which they consider disproportionate to the sales made; and

- the very concept of tax representative is interpreted very differently in different Member States so that the representative's obligations are also likely to vary.

Since all this is perceived as restrictive and cumbersome, particularly by small and medium-sized businesses, the procedure provided for in paragraph 3 is replaced by a simplified procedure. This facilitates the payment of excise duty in the Member State of destination while allowing that Member State's administration to monitor movements more closely. The right of the Member State of destination to require the appointment of a tax representative has not been retained.

Paragraph 4 no longer refers to paragraph 2, but to paragraph 1 because of the proposed amendments to paragraphs 1 and 2.

In paragraph 5 the words "subject to Community law" and "compatible with the Treaty" have been deleted as superfluous, since Community law and the Treaty apply in any event.

5) Insertion of Articles 10a, 10b and 10c

The fact that the Directive contains no Community provisions on losses and offences occurring whilst excisable products already released for consumption in a Member State are being moved within the Community constitutes a legal loophole. The absence of provisions on how to determine the Member State in which excise duty is due in this case could cause conflict of interest between Member States and, in some cases, lead to double taxation. What is more, it could lead to different traders in comparable situations being treated entirely differently in different Member States and, therefore, to distortion of competition between traders. Such losses and offences should therefore be made subject to a regime similar to that for losses and offences detected in connection with the excise suspension arrangements (see Articles 14 and 20 of the Directive).

Article 10a(1) and (2) provide for a tax exemption in the Member State of destination for losses which occur whilst excisable products already released for consumption in one Member State are moved within the Community for commercial purposes. The conditions subject to which this is granted are laid down independently by each Member State, the amount depending on whether the losses are attributable to fortuitous events or force majeure and whether they are typical of the type of product transported. Paragraph 3 covers the tax treatment of losses, other than those deemed to be due to an offence or irregularity, that are not eligible for the exemption from excise duty granted for the type of loss covered in paragraphs 1 and 2.

Article 10b covers the tax treatment of excisable products in connection with which an offence or irregularity has occurred whilst they were being moved within the Community. In particular, the paragraph lays down where and by whom excise duty is payable in the different situations that can be envisaged. The provisions of this Article are similar to those for excisable products moving under the suspension arrangements (see Article 20 of Directive 92/12/EEC).

To avoid double taxation, Article 10c provides that the Member State of departure is to reimburse the excise duty initially levied once evidence is provided of recovery of the excise duty in another Member State in the cases referred to in Article 10a(3) and Article 10b, paragraphs 1 to 4. It also provides that in these cases the guarantee lodged in the Member State of destination under Article 7(5)(a) and Article 10(3)(b) is to be released.

6) Amendment of Article 27

This provides that application of the amendments made by this Directive should be evaluated and examined by the Council on the basis of a Commission report before 1 January 2010.

2004/0072 (CNS)

Proposal for a COUNCIL DIRECTIVE amending Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 93 thereof,

Having regard to the proposal from the Commission, [5]

[5] OJ C [...] of [...], p. [...].

Having regard to opinion of the European Parliament, [6]

[6] OJ C [...] of [...], p. [...].

Having regard to the opinion of the European Economic and Social Committee, [7]

[7] OJ C [...] of [...], p. [...].

Whereas:

(1) Article 27 of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products [8] provides that before 1 January 1997 the Council is to re-examine the provisions of Articles 7 to 10 with a view to adopting any necessary amendments. These Articles lay down the provisions applicable to movements within the Community, whether commercial or private, of products on which excise duties have already been paid in a Member State. However, at that date the volume of products already released for consumption in a Member State being moved within the Community was relatively insignificant and so Member States had not yet gathered sufficient experience to evaluate the relevance of Articles 7 to 10 of Directive 92/12/EEC.

[8] OJ L 76 of 23.3.1992, p.1, as last amended by Council Regulation (EC) No 807/2003 of 14 April 2003 (OJ L 122, 16.5.2003, p. 36).

(2) Since then, however, although the figures for intra-Community movements of tax-paid products remain relatively low, more and more traders and private individuals are trying to interpret Articles 7 to 10 of Directive 92/12/EEC in such a way as to legitimise trade practices involving payment of excise duty in the Member State where the products are acquired. Also, the increase in the volume of commercial transactions conducted via the Internet and the abolition of duty-free sales to persons travelling within the Community have resulted in more use being made of these provisions. On the basis of the conclusions of a further survey of the national administrations and traders involved, launched in January 2002, the Commission drew up a report on the application of Articles 7 to 10 of Directive 92/12/EEC.

(3) The report concluded that some of these provisions needed to be revised and others clarified to allow the taxation and procedural rules in Articles 7 to 10 of Directive 92/12/EEC to be understood unequivocally.

(4) The concept of "commercial purposes" should be defined as "purposes other than personal use by private individuals" to make clear that the principle of charging excise duties on products already released for consumption in one Member State but held for commercial purposes in another, as well as the associated procedures, apply fully to products held by private individuals for purposes other than their personal use.

(5) The principle of charging excise duty applies fully to excisable products held on board a vessel or aircraft making crossings or flights between two Member States for sale during journeys within the Community unless, as provided in Commission notice 1999/C 99/08, [9] the products are not available for sale when the vessel or aircraft is in the territory of one of those two Member States. In that case the goods are not considered to be held for commercial purposes in that Member State. To eliminate all doubt about the existence of this possibility, it should be explicitly provided for in the Directive.

[9] Commission notice concerning the VAT and excise rules to be applied from 1 July 1999 by suppliers of goods sold on board ferries and aircraft or in airports to passengers travelling within the European Union - 1999/C 99/08(OJ C 99, 10.4.1999, p.20).

(6) Article 7 distinguishes different situations in which excisable products already released for circulation in one Member State are held for commercial purposes in another, but does not clearly identify the person from whom excise duty is due in the Member State of destination in each of these situations. An unambiguous definition should therefore be given of the person from whom excise duty is due and the requirements to be met in the Member State of destination in each of the situations referred to.

(7) In these situations the obligations of persons not established in the Member State of holding but liable for excise duty should be simplified and at the same time provision should be made for the Member States concerned to supervise the movements more effectively.

(8) The concept of "trader carrying out an economic activity independently" should be replaced by the concept of "trader", since all categories of trader are concerned.

(9) In view of the difficulties encountered by Member States wishing to introduce simplified procedures by means of bilateral conventions on the basis of Article 7(9), in particular in the case of sales on board an aircraft or vessel during travel within the Community, the use of simple administrative agreements to introduce such simplified procedures should be allowed.

(10) Article 8 sets out the principle governing the single market whereby in the case of products acquired by private individuals for their own use and transported by them, excise is to be charged in the Member State in which the products are acquired. This principle should be extended to apply to products for the personal use of a private individual transported by a third party on behalf of the private individual, since such transactions are purely private. For health protection reasons this principle should not however be extended to cover manufactured tobacco transported on behalf of a private individual.

(11) It should be specified that the principle set out in Article 8 also applies to products sent by one private individual to another without any payment, direct or indirect (this applies mainly to gifts), to clear up any doubts as to how such non-commercial movements are to be treated.

(12) Article 9(1) should be deleted, since it simply repeats the chargeable event already provided for in Article 7(1), with the sole difference that the excise debtor is the holder of the products instead of the debtors identified in the situations referred to in Article 7. To cover the situations currently referred to in Article 9, a subparagraph should be added to Article 7(3) stipulating that in cases other than those for which the person from whom excise duty is due is explicitly designated, that person shall be the holder of the products.

(13) The provision allowing Member States to lay down guide levels to establish whether products are held for commercial purposes or for the personal use of private individuals should be deleted. In any case an administration can never use these guide levels on their own as evidence that excisable products are being held for commercial purposes. They should therefore only be included in inspection instructions given by a national administration to its officers.

(14) Article 9(3) should be deleted since it is not appropriate to retain a tax provision allowing Member States to derogate from the principle laid down in Article 8 in respect of the transport of mineral oils for safety reasons.

(15) It should be specified that the situation covered by Article 10 ("distance sales") refers only to movements to persons acting in their capacity as private individuals, since movements to traders or bodies governed by public law are explicitly covered by Article 7. For these "distance sales" a procedure should also be introduced for the payment of excise in the Member State of destination that reconciles traders' legitimate calls for simplification with the need to increase the possibilities of monitoring this type of transaction.

(16) The fact that the Directive contains no common provisions on losses and offences occurring whilst excisable products already released for consumption in a Member State are being moved within the Community constitutes a legal loophole which may lead to conflicts of interest between Member States and in some cases lead to double taxation. Such losses and offences should therefore be made subject to a regime similar to that for losses and offences detected in connection with the excise suspension arrangements.

(17) The application of amendments made by this Directive should be evaluated and examined by the Council on the basis of a Commission report before 1 January 2010.

(18) Directive 92/12/EEC should be amended accordingly,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 92/12/EEC is amended as follows:

1) Article 7 is amended as follows:

a) paragraph 1 is replaced by the following:

"1. Where products subject to excise duty and already released for consumption in one Member State are held for commercial purposes in another Member State, the excise duty shall be levied in that other Member State.

"Commercial purposes" shall be deemed to be all purposes other than personal use by private individuals.

However, products which are held on board a vessel or aircraft making crossings or flights between two Member States but which are not available for sale when the vessel or aircraft is in the territory of one of the Member States are not deemed to be held for commercial purposes in that Member State."

b) paragraph 2 is deleted;

c) paragraphs 3 and 9 are replaced by the following:

"3. In the situations referred to in paragraph 1, where products are held by a trader not established in the Member State of holding (hereinafter "non-established trader") with a view to their sale, the excise duty shall be due from that trader.

Where the products used within another Member State for the purposes of a trader or body subject to public law, the excise duty shall be due from the trader or body subject to public law.

However, where the products are delivered to a non-established trader, that trader may pay the excise duty instead of the debtors identified in the second subparagraph.

In all other cases the excise duty is due from the person holding the products for commercial purposes.

4. The products referred to in paragraph 1, excluding those in respect of which the non-established trader is identified as the excise debtor, shall move between the territories of the various Member States under cover of an accompanying document listing the main data from the document referred to in Article 18 (1).

The form and content of this document shall be established in accordance with the procedure laid down in Article 24(3) and (4).

5. Non-established traders shall comply with the requirements set out in Article 10(3).

The traders and bodies governed by public law referred to in the second subparagraph of paragraph 3, and the persons from whom excise duty is due under the fourth subparagraph of paragraph 3 must:

a) before the goods are dispatched, submit a declaration to the tax authorities of the Member State of destination and guarantee payment of the excise duty;

b) pay the excise duty of the Member State of destination in accordance with the procedure laid down by that Member State;

c) consent to any checks enabling the administration of the Member State of destination to satisfy itself that the products have actually been received and that the excise duty chargeable on them has been paid.

6. The excise duty paid in the first Member State referred to in paragraph 1 shall be reimbursed in accordance with Article 22(3).

7. Where products already released for consumption in a Member State are to be moved to a place of destination in that Member State via the territory of another Member State and using an appropriate itinerary, such movement shall take place under cover of the accompanying document referred to in paragraph 4.

8. In the cases referred to in paragraph 7, the following requirements shall apply:

a) the consignor shall, before the goods are dispatched, make a declaration to the tax authorities of the place of departure responsible for carrying out excise-duty checks;

b) the consignee shall attest to having received the goods in accordance with the rules laid down by the tax authorities responsible for carrying out excise-duty checks in the place of destination;

c) the consignor and the consignee shall consent to any checks enabling their respective tax authorities to satisfy themselves that the goods have actually been received.

9. Where products subject to excise duty are moved frequently and regularly under the conditions specified in paragraph 7, Member States may, by means of bilateral administrative agreements, authorise a simplified procedure in derogation from paragraphs 7 and 8."

2) Article 8 is replaced by the following:

"Article 8

Excise duty on products acquired by private individuals for personal use and transported from one Member State to another by them shall be charged in the Member State in which the products are acquired.

As regards products other than manufactured tobaccos acquired by private individuals, the provisions of the first subparagraph shall also apply in cases where the products are transported on their behalf.

Taxation in the Member State of acquisition also applies to products dispatched by one private individual to another without any payment, direct or indirect.

3) Article 9 is amended as follows:

a) paragraph 1 is deleted;

b) paragraph 2 is replaced by the following:

"2. To determine whether the products referred to in Article 8 are intended for commercial purposes, Member States shall take account of the following:

a) the commercial status of the holder of the products and his reasons for holding them;

b) the place where the products are located or, if appropriate, the mode of transport used;

c) any document relating to the products;

d) the nature of the products;

e) the quantity of the products."

c) Paragraph 3 is deleted.

4) Article 10 is replaced by the following:

"Article 10

1. Products already released for consumption which are purchased by persons acting in their capacity as private individuals and which are dispatched or transported directly or indirectly by the vendor or on his behalf are subject to excise duty in the Member State of destination.

'Member State of destination' shall mean the Member State of arrival of the consignment or of transport.

2. In the case referred to in paragraph 1, the excise duty becomes chargeable at the time of delivery of the products.

3. The excise duty in the Member State of destination is chargeable to the vendor.

The vendor must:

a) register his identity with the tax authorities of his Member State, as certified by a document whose form and content shall be laid down in accordance with the procedure set out in Article 24 (3) and (4);

b) before dispatching the products, lodge a guarantee covering payment of the excise duty with the "central" tax office designated by the Member State of destination;

c) for control purposes, indicate the identification number referred to in the third subparagraph on the commercial documents accompanying the consignments of excisable products;

d) at the end of a given period, to be determined by each Member State, send the central office with which his identity is registered a document setting out the quantities of products he delivered during that period.

The Member State of destination shall define the conditions for calculating the guarantee referred to in point b) of the first subparagraph. When lodging the guarantee, the vendor shall produce the identifying document referred to in paragraph (a) of the first subparagraph. The Member State of destination shall then allocate the vendor an identification number.

The form and content of the document referred to in point d) of the first subparagraph shall be established in accordance with the procedure laid down in Article 24(3) and (4). The document shall be endorsed by the tax authorities of the Member State of departure and, where appropriate, shall be accompanied by the administrative and commercial documents required by the Member State of destination. The excise duty shall be paid in accordance with the procedure laid down by the Member State of destination.

4. In the case referred to in paragraph 1, the excise duty paid in the first Member State shall be reimbursed in accordance with Article 22 (4).

5. Member States may lay down specific rules for applying paragraphs 1 to 4 to products subject to excise duty that are covered by special national distribution arrangements."

5) The following Articles 10a, 10b and 10c are inserted:

"Article 10a

1. Persons from whom excise duty is due under Article 7(3) or Article 10(3) shall be exempt from duty in the Member State of destination in respect of losses attributable to fortuitous events or force majeure that occur in the course of movements of products and are established by the authorities of the each Member State.

They shall also be exempt from duty in the Member State of destination in respect of losses inherent in the nature of the products during transport. Each Member State shall lay down the conditions under which these exemptions are granted.

2. The losses referred to in paragraph 1 shall be established according to the applicable rules of the Member State of destination.

The guarantee lodged pursuant to Article 7(5)(a) and Article 10(3)(b) shall be totally or partially released.

3. Without prejudice to Article 10b(1), the duty on shortages other than the losses referred to in paragraph 1 of this Article shall be levied on the basis of the rates applicable in the Member States concerned at the time the losses, duly established by the competent authorities, occurred, or if necessary at the time the shortage was recorded.

Article 10b

1. Where an irregularity or offence on which excise duty is chargeable has been committed in the course of a movement which comes under Article 7(4) or Article 10(1), the duty shall be due in the Member State where the offence or irregularity was committed from the person who guaranteed payment of the duty in accordance with Article 7(5)(a) or Article 10(3)(b).

Where the excise duty is collected in a Member State other than that of departure, the Member State collecting the duty shall inform the competent authorities of the Member State of departure.

2. When, in the course of a movement of products carried out in accordance with Article 7(4) or Article 10(1), an offence or irregularity has been detected without it being possible to determine where it was committed, the offence or irregularity shall be deemed to have been committed in the Member State where it was detected.

3. When the products do not arrive at their destination and it is not possible to determine where the offence or irregularity was committed, it shall be deemed to have been committed in the Member State of departure.

4. If, before the expiry of a period of three years from the date on which the accompanying document referred to in Article 7(4) or the commercial document referred to in Article 10(3)(c) was drawn up, the Member State where the offence or irregularity was committed is ascertained, that Member State shall collect the excise duty at the rate in force on the date when the goods were dispatched.

5. Member States shall take the necessary measures to deal with any offence or irregularity and to impose effective penalties.

Article 10c

In the cases referred to in Article 10a(3) and Article 10b(1) to (4), once evidence is provided of recovery of the excise duty in a Member State other than that of departure, the excise duty initially levied shall be reimbursed and the guarantee lodged pursuant to Article 7(5)(a) and Article 10(3)(b) shall be released.

6) Article 27 is replaced by the following:

"On the basis of a report from the Commission, the Council shall re-examine the provisions of Articles 7 to 10c before 1 January 2010 and in accordance with Article 93 of the Treaty shall adopt any necessary amendments."

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [...] at the latest. They shall send the Commission forthwith the text of those provisions and a correlation table between those provisions and this Directive.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such a reference shall be decided by the Member State.

2. Member States shall communicate to the Commission the text of the main provisions of domestic law which they adopt in the field governed by this Directive.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

Done at Brussels, [...]

For the Council

The President