Opinion of the Advocate General — ECLI:EU:C:1997:203
Date: 1997-04-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary docu­
ment. 
(4) The contract for the sale and pur­
chase of the products will be made in 
Luxembourg and tide in those products 
will pass in Luxembourg. The contract 
will be subject to the law of England.' 
(d) The agent deals with transport of the 
goods for the customer, under contracts 
with a transport undertaking: the con­
tract of carriage is signed by the agent as 
agent for the customer. 
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THE QUEEN v COMMISSIONERS OF CUSTOMS 6c EXCISE, EX PARTE EMU TABAC 
(e) Since the sales are to individuals, no cus­
tomer may buy more than 800 cigarettes 
per order. If more cigarettes are 
requested in an order or a large number 
is ordered in a single month, the agent 
sends the customer a printed form refus­
ing to supply the goods, as they must be 
solely for personal use. 
7. According to the order for reference, 
what happens in practice is as follows: 
(a) The individual customer obtains an 
order form for cigarettes, fills it in and 
sends it to the agent, with a cheque for 
the requisite amount. 
(b) Once the cheque has been paid into the 
agent's customer account in London, 
that fact is notified to the agent's office 
in Luxembourg, together with details of 
the customer's name and address. 
(c) An employee of the agent goes to the 
retailer's office (which is in the same 
building) and the latter, having accepted 
the offer, hands over the goods. 
(d) The agent then packages the goods, 
which are collected by the carrier and 
sent to the United Kingdom where they 
are delivered to the customer. 
(e) Finally, the agent pays the retailer and 
the carrier out of a current account to 
which has previously been transferred 
from the agent's account in London a 
sum equivalent to the price of the goods 
and the cost of transport. The remainder 
of what has been paid by the purchaser 
to the agent represents the agent's com­
mission. 
The main proceedings and the preliminary 
questions 
8. The United Kingdom tax administration 
(the Commissioners for Customs and 
Excise) ordered the seizure, in Dover, of a 
quantity of tobacco imported under the sys­
tem described above and required the pay­
ment on those goods of United Kingdom 
excise duty. 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
9. The now appellants applied to the High 
Court of Justice (Queen's Bench Division) 
for a declaration that the United Kingdom 
excise duty was not payable, that the seizure 
of the tobacco was unlawful and that the 
United Kingdom tax administration should 
refrain from seizing tobacco imported under 
the scheme. 
10. Those applications were dismissed by 
the High Court of Justice, whereupon the 
appellants brought the matter before the 
Court of Appeal, which decided to stay the 
proceedings and seek a preliminary ruling 
from the Court of Justice on the following 
questions: 
' 1 . Does Directive 92/12/EEC and in par­
ticular Article 8 have the effect of pre­
cluding the charging of excise duty on 
goods in a Member State A in circum­
stances where: 
(i) the goods were acquired for the use 
of a private individual in Member 
State A; 
(ii) they were acquired in Member State 
B by an agent acting on behalf of 
the private individual; 
(iii) transportation of the goods from 
Member State B to Member State A 
was arranged by the Agent; and 
(iv) the individual did not himself travel 
with the goods from Member State 
B to A. 
2. Where a scheme has been commercially 
devised and marketed whereunder pur­
chases made in Member State B for the 
personal use of a private individual in 
Member State A are made by an agent 
for that individual and those purchases 
are transported from Member State B to 
Member State A as a result of arrange­
ments made by such an agent, does 
Directive 92/12/EEC have the effect of 
precluding the charging of excise duty 
on those purchases in Member State A?' 
The applicable Community provisions 
11. Excise duty is an indirect tax levied on 
certain goods such as tobacco products, alco­
holic beverages and hydrocarbons. The rates 
of duty applied by each Member State are 
different, harmonisation thereof not having 
so far been achieved. 
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THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
12. Products manufactured in, or imported 
into, the Community are subject to excise 
duty. Normally, payment of the tax is 
deferred until the goods are released for con­
sumption. Accordingly, the collection of 
excise duty is in principle a matter for the 
Member State where the goods are con­
sumed. 
13. Before the creation of the single market, 
goods subject to excise duty could be held in 
a warehouse, or move from one warehouse 
to another in various Member States which 
were parties to the suspension arrangement, 2 
subject to border controls. Such controls are 
no longer possible since the advent of the 
single market. 
14. The directive lays down general condi­
tions applicable to products subject to excise 
duty and makes specific provision for the 
holding and movement of them and for the 
controls needed to ensure that tax debts are 
discharged. 
15. Article 6 of the directive provides that, 
as a general rule, the duty becomes charge­
able when the goods are released for 
consumption, 3 the rates of duty in force at 
the material time being applied in the Mem­
ber State of release for consumption. 
16. Article 7 of the directive provides that, 
where products subject to excise duty 
already released for consumption in a Mem­
ber State are 'held' 4 for commercial pur­
poses in another Member State, the excise 
duty is to be levied in that other Member 
State and the tax will be repayable by the 
Member State from which they came. The 
wording of the provision 5 is as follows: 
' 1 . In the event of products subject to excise 
duty and already released for consumption 
in one Member State being held for commer­
cial purposes in another Member State, the 
excise duty shall be levied in the Member 
State in which those products are held. 
2. To that end, without prejudice to Article 
6, where products already released for con­
sumption as defined in Article 6 in one 
2 — The suspension arrangement applies Co the manufacture, 
processing, holding and movement of products subject to 
excise duty, and under it, although the chargeable event has 
occurred, the duty is not yet chargeable. 
3 — According to Article 6, the duty also becomes chargeable 
when it is found that there are losses or differences which 
ought to be subject to excise duty in accordance with Article 
14(3). In any event, release for consumption of goods subject 
to excise duty is deemed to mean: 
(a)any departure, including irregular departure, from a sus­
pension arrangement; 
(b)any manufacture, including irregular manufacture, of the 
products concerned outside a suspension arrangement; 
(c)any importation of those products, including irregular 
importadon, where they have not been placed under a sus­
pension arrangement. 
4 — Footnote 4 relates only to the Spanish version. 
5 — As amended by Council Directive 92/108/EEC of 14 
December 1992 amending Directive 92/12/EEC on the gen­
eral arrangements for products subject to excise duty and on 
the holding, movement and monitoring of products subject 
to excise duty (OJ 1992 L 390, p. 124). 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
Member State are delivered, or intended for 
delivery in another Member State or used in 
another Member State for the purposes of a 
trader carrying out an economic activity 
independently or for the purposes of a body 
governed by public law, excise duty shall 
become chargeable in that other Member 
State. 
3. Depending on all the circumstances, the 
duty shall be due from the person making 
the delivery or holding the products 
intended for delivery or from the person 
receiving the products for use in a Member 
State other than the one where the products 
have already been released for consumption, 
or from the relevant trader or body governed 
by public law. 
4. The products referred to in paragraph 1 
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 
of this Directive. 
5. The person, trader or body referred to in 
paragraph 3 must comply with the following 
requirements: 
(a) before the goods are dispatched, make a 
declaration to the tax authorities of the 
Member State of destination and guaran­
tee the 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 check enabling the 
administration of the Member State of 
destination to satisfy itself that the goods 
have actually been received and that the 
excise duly to which they are liable 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). 
...'. 
17. Article 8 of the directive provides: 
'As regards products acquired by private 
individuals for their own use and transported 
by them, the principle governing the internal 
market lays down that excise duty shall be 
charged in the Member State in which they 
are acquired.' 
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THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
18. Article 9 of the directive lays down rules 
for products subject to excise duty where 
they are intended to be used for commercial 
purposes: 
' 1 . Without prejudice to Articles 6, 7 and 8, 
excise duty shall become chargeable where 
products for consumption in a Member State 
are held for commercial purpose in another 
Member State. 
In this case, the duty shall be due in the 
Member State in whose territory the prod­
ucts are and shall become chargeable to the 
holder of the products. 
2. To establish that the products referred to 
in Article 8 are intended for commercial pur­
poses, Member States must take account, 
inter alia, of the following: 
— the commercial status of the holder of the 
products and his reasons for holding 
them, 
— the place where the products are located 
or, if appropriate, the mode of transport 
used, 
— any document relating to the products, 
— the nature of the products, 
— the quantity of the products. 
For the purposes of applying the content of 
the fifth indent of the first subparagraph, 
Member States may lay down guide levels, 
solely as a form of evidence. These guide lev­
els may not be lower than: 
> 
19. Article 10 of the directive contains spe­
cific provisions for particular kinds of trans­
actions involving the dispatch or transport of 
goods subject to excise duty: 
' 1 . Products subject to excise duty pur­
chased by persons who are not authorised 
warehousekeepers or registered or non-
registered traders and dispatched or trans­
ported directly or indirectly by the vendor 
or on his behalf shall be liable to excise duty 
in the Member State of destination. For the 
purposes of this Article, "Member State of 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
destination" shall mean the Member State of 
arrival of the dispatch or transport. 
2. To that end, the delivery of products sub­
ject to excise duty already released for con­
sumption in a Member State and giving rise 
to the dispatch or transport of those prod­
ucts to a person as referred to in paragraph 1, 
established in another Member State, and 
which are dispatched or transported directly 
or indirectly by the vendor or on his behalf 
shall cause excise duty to be chargeable on 
those products in the Member State of desti­
nation. 
3. The duty of the Member State of destina­
tion shall be chargeable to the vendor at the 
time of delivery. However, Member States 
may adopt provisions stipulating that the 
excise duty shall be payable by a tax repre­
sentative, other than the consignee of the 
products. Such tax representative must be 
established in the Member State of destina­
tion and approved by the tax authorities of 
that Member State. 
The Member State in which the vendor is 
established must ensure that he complies 
with the following requirements: 
— guarantee payment of excise duty under 
the conditions set by the Member State 
of destination prior to dispatch of the 
products and ensure that the excise duty 
is paid following arrival of the products, 
— keep accounts of deliveries of products. 
4. In the case referred to in paragraph 2, the 
excise duty paid in the first Member State 
shall be reimbursed in accordance with 
Article 22(4). 
...". 
The first preliminary question 
20. The national court links its first question 
to Article 8 of the directive, for the applica­
tion of which three cumulative conditions 
must be met in order for products to be sub­
ject to the excise duty in force in the country 
of purchase: 
(a) the products must be acquired by private 
individuals; 
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THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
(b) the products must be acquired by private 
individuals for their own use; 
(c) the products must be transported by the 
private individuals. 
21. In the present case there is no problem 
concerning the second condition, the legal 
aspects of which are clear: both the parties in 
dispute and the national court recognise that 
private individuals resident in the United 
Kingdom acquire tobacco products for their 
personal use, not for commercial purposes. 
N o doubts appear to arise as to the applica­
tion of the criteria laid down in that connec­
tion by Article 9 of the directive. 
22. The same does not apply to the other 
two conditions. The dispute between the 
parties has focused particularly on the 
requirement of transport, 'which raises con­
siderable interpretative difficulties, but in my 
opinion the first condition too must be 
analysed and examined in relation to the 
scheme described by the United Kingdom 
court in its order for reference. 
(i) The meaning of the words 'acquisition by 
private individuals' used in Article 8 of the 
directive 
23. I shall first mention a point which, judg­
ing from the observations of some of the 
parties, does not seem to have been taken 
sufficiently into account: the directive of 
which interpretation is sought is a tax meas­
ure, intended to deal with matters of tax­
ation, and to that end it uses tax-law classifi­
cations. By this I mean that the terms used in 
the directive, on the basis of the correspond­
ing concepts in civil or mercantile law, may 
have a rather independent meaning which 
will not coincide in every respect with that 
of their counterparts in civil or mercantile 
law. 
24. In that light, it is possible that the pri­
vate individual purchaser, as a subject of civil 
or mercantile law, may not be precisely the 
same as the person with which Article 8 of 
the directive is concerned. That applies to a 
specific aspect of the involvement of the pri­
vate individual in the purchase contract 
referred to in the directive, where it envis­
ages the possibility of his acting, in entering 
into the contract or giving effect to it, 
through a third party. 
25. A similar possibility is generally avail­
able in civil law for all types of acts-in-the-
law by virtue of the principle that whoever 
does something for himself may also do it 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
through someone else. However, from the 
taxation point of view, it may be appropriate 
to distinguish between purchases made by 
someone who acts for himself and those by 
someone who acts through an agent or attor­
ney. 
26. Specifically, I consider that the concept 
of a private individual, with whose purchases 
Article 8 of the directive is concerned (I 
repeat, for the sole purpose of regulating the 
territorial chargeability of excise duty), is of 
more limited scope, so that it excludes the 
instrumentality of third parties. There are 
two main reasons for my taking that view. 
27. In the first place, the private individual 
in this case must carry out sequentially a 
number of personal operations in order to 
benefit from the tax provisions in the Mem­
ber State of purchase: as we shall see shortly, 
he must travel to that Member State and 
from there he, personally, must transport the 
goods acquired. It seems to me to follow 
logically from those requirements that the 
purchase, as such, should also be deemed to 
be limited to a purchase made by the buyer 
himself, not through an agent or middleman. 
28. Secondly, the presence of persons other 
than the purchaser, in the intra-Community 
movement of goods subject to excise duty, is 
carefully regulated by the directive. In addi­
tion to action by authorised warehousekeep-
ers, registered and non-registered traders, the 
directive provides for 'a tax representative, 
other than the consignee of the products' 
(Article 10(3)). If it had been intended that 
the purchaser could be replaced, purely and 
simply, by any natural or legal person to 
whom he had granted a power of attorney in 
order to benefit from the rule in Article 8 
when the goods cross the frontier of a Mem­
ber State, that article would have contained a 
specific provision to that effect. 
29. Therefore, Article 8 of the directive pro­
vides only for action by the private indi­
vidual on his own behalf, actively participat­
ing in a number of successive operations 
(travel to another Member State, purchase of 
products subject to excise duty and transport 
to his own country) which he must carry out 
for himself. Transactions which do not fulfil 
those requirements — as they do not in this 
case — cannot benefit from the rule con­
tained in that article. 
30. All this becomes clearer upon analysis — 
an analysis which I shall now undertake — 
of the third precondition for application of 
the rule laid down in Article 8 of the direc­
tive. 
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THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
(ii) The concept of 'products transported', 
according to a literal interpretation of Article 
8 of the directive 
31. The first sentence of Article 8 of the 
directive raises two problems of interpre­
tation relevant here. First, the various language 
versions differ from each other significantly. 
Second, the interpretation of the very term 
'transport' used in that provision is not with­
out difficulties. 
32. The expression used in Article 8 of the 
directive ('products acquired by private indi­
viduals ... and transported by them') has 
been translated in various ways in the vari­
ous languages of the Member States which 
made up the Community when it was 
adopted. 
33. Certain language versions coincide in 
using the expression 'transported by them' 
without any additional words — as in the 
case of the Spanish and English versions. 6 
Others, however, reinforce the pronoun 
'them' with an additional term: that is so in 
the French, 7 Portuguese, 8 Italian, 9 Dutch 10 
and German 1 1 versions. Finally, the Greek 12 
and Danish 13 versions lay even greater stress 
on the personal aspect by using terms 
equivalent to 'transport in person'. 
34. In my opinion, a literal interpretation of 
the provision implies that the person who 
does the transporting must be, specifically, 
the private individual purchaser, and not any 
other person. Even in the absence of the 
more 'radical' language versions, the intrinsic 
meaning of the term 'transported by them' 
or 'transported by themselves' used in the 
remainder of the language versions refers to 
transport carried out — and not merely 
arranged — by the person concerned. 
35. It is true that one person may entrust the 
transport of goods to another or avail him­
self of the services of an agent to do so. But 
such operations go beyond the limits of 
Article 8 of the directive since the private 
individual is not then 'transporting', as 
required by that article, but is 'arranging' or 
'contracting for' the transport or 'entrusting' 
it to another person. 
36. Article 8 does not say 'products trans­
ported on the directions, or on behalf, of pri­
vate individuals'. Nor does it refer to the 
action of 'dispatching', which implies using 
6 — Transportados por elios'. 
7 — Transportés par eux-mèmes'. 
8 — Transportados pelos próprios'. 
9 — Trasportati dai medesimi'. 
10 — 'door hen zelf vervoerde produkten'. 
11 — 'Waren, die Privatpersonen ... sie selbst bef Orden'. 
12 — 'τα οποία μτταφέοουν αυτοπροσώπως'. 
13 — 'Og som de selv medfører'. 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
the services of a third party. However, both 
forms of words are found in other provisions 
of the directive. 
(a) Thus, Article 10(1) of the directive refers 
to 'products ... dispatched or transported 
directly or indirectly by the vendor or 
on his behalf'. 14 The same terms are 
used in Article 10(2). They thus use 
legal formulae that are wider and more 
flexible than that used in Article 8. 
(b) For its part, Article 9(3) provides for 
the hypothesis of 'atypical modes of 
transport by private individuals or on 
their behalf*. 15 By contrast, Article 8 
contains no reference to the latter 
possibility. 
37. It is particularly significant that Article 
8, unlike Article 10, dispensed with the pos­
sibility — provided for and regulated by the 
latter — of having the goods in question 
sent, that is to say forwarded or dispatched 
by private individuals to their own countries: 
on the contrary, it lays down the imperative 
requirement that they be transported by the 
person who acquired them. 
38. The literal wording of the provision thus 
refers to transport operations carried out by 
the private individual and no-one else. This 
implies, in my view, that the private indi­
vidual who buys the products subject to 
duty has travelled to another country and 
carries them with him. 
39; The status of traveller which the private 
individual must possess, if not apparent from 
Article 8, must be inferred as a matter of 
logic. When Article 26 of the directive laid 
down exceptional rules for Denmark (later 
extended to Sweden and Finland in their 
respective Acts of Accession) it created a 
direct link between Article 8 and specified 
quantitative limits enforceable against travel­
lers who go to that country or, if they live 
there, leave it. 
40. Article 26 of the directive, 16 as a tempo­
rary exception to the conditions laid down 
14 — Emphasis added. 
15 — Emphasis added. 
16 — The original wording of Article 26 was as follows: 
'1. Without prejudice to Article 8, until 31 December 1996 
and subject to a review mechanism similar to that laid down 
in Article 28 (2) of Directive 77/388/EEC (OJ 1977 L 145, 
p. 6), Denmark shall be authorised to apply the specific 
arrangements laid down in paragraphs 2 and 3 for spirit 
drinks and manufactured tobaccos within the general 
framework of the approximation of excise duty rates. 
2. Denmark shall be authorised to apply the following 
quantitative restrictions: 
— private travellers entering Denmark shall benefit from 
the allowance in force on 31 December 1992 for ciga­
rettes, cigarillos or smoking tobacco and for spuit 
drinks, 
— travellers resident in Denmark and having been outside 
Denmark for less than the period in force on 31 Decem­
ber 1992 shall benefit from the allowances in force in 
Denmark on 31 December 1992 for cigarettes and spirit 
drinks. 
3. Denmark may collect excise duties and carry out the 
necessary checks with respect to spirit drinks, cigarettes, 
cigarillos and smoking tobacco. 
This article has recently been replaced, as from 1 January 
1977, by the corresponding text of Council Directive 
96/99/EC of 30 December 1996 amending Directive 
92/12/EEC on the general arrangements for products sub­
ject to excise duty and on the holding, movement and 
monitoring of such products (OJ 1997 L 8, p. 12). 
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THE QUEEN y COMMISSIONERS OF CUSTOMS Si EXCISE, EX PARTE EMU TABAC 
by Article 8, allows the Member States to 
which the directive is addressed to apply 
restrictive measures to travellers who bring 
into their territories products subject to 
excise duty acquired by them in another 
Member State. 17 All this, as a matter of 
sound logic, postulates the same interpre­
tation of Article 8 as the one which I advocate, 
namely that the cross-frontier traveller must 
have personally acquired and transported 
those products with him. 
41. It is true that Article 8 likewise contains 
no express references to the traveller's 'per­
sonal luggage', of which the products pur­
chased should form part. However, that 
omission does not in my view provide a 
basis for arguing that transport may be 
undertaken on behalf of the private indi­
vidual. That expression appears in Article 28 
of the directive only in relation to travellers 
who take a flight or a sea voyage within the 
Community, who may be granted an exemp­
tion from duty. 18 That fact has nothing to 
do with Article 8, under which purchasers 
necessarily have to pay the duty applicable in 
the country of acquisition of the products. 
42. In any event, it must not be forgotten 
that Article 8 of the directive, in referring to 
all products subject to excise duty, allows the 
buyer to transport some of them for himself 
without necessarily including them in 'his 
personal luggage': thus, for example, petrol 
which he has purchased in the country of 
destination and is in his vehicle's tank does 
not form part of his 'personal luggage' in the 
strict sense, but the rule in Article 8 never­
theless continues to apply. This explains 
why, therefore, that article did not include 
the requirement that all the products referred 
to have to be included in travellers' personal 
luggage. 
43. Accordingly, I agree with the position 
taken by all the Member States which inter­
vened in this case, except France, and I differ 
from that taken by the appellants in the main 
proceedings, which on this point coincides 
only partly with the view taken by the Com­
mission and the French Government. 19 
17 — According to the new text of Article 26 of the directive, in 
force as from 1 January 1997, Denmark and Finland are 
authorised to restrict the grant of admission without pay­
ment of other duty to 'persons who have been absent from 
their territory for more than 24 hours'. 
18 — The Member States may grant to such travellers, until 30 
June 1999, exemption from excise duty on products which 
they have bought at particular sales outlets in ports or air­
ports or on board the aircraft or vessel carrying them. The 
exemption applies only to products in quantities not 
exceeding, per person and journey, the limits laid down in 
the Community provisions in force for travel between non-
member countries and the Community. 
19 — The Commission considers that Article 8 may be applied 
even if the goods, acquired personally by the purchaser, are 
not carried by him personally but by a carrier designated 
by him. The French Government for its part considers that 
Article 8 applies both if transport of the dutiable goods is 
effected by the buyer and if it is effected on his behalf (pro­
vided that the seller does not assume responsibility for the 
transport operation). 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
(iii) The concept of 'products transported' in 
Article 8, in the legislative context of the 
directive 
44. Support for the same interpretation of 
the term 'transported by them' can be drawn 
from other considerations concerning the 
internal sense of Article 8 within the legisla­
tive context of the directive. 
45. As is acknowledged in its preamble, the 
directive has to fulfil at the same time two 
imperative requirements: on the one hand, 
'movement from the territory of one Mem­
ber State to that of another may not give rise 
to checks liable to impede free movement 
within the Community'; on the other, each 
State must be assured that it will collect the 
excise duty at the rates approved by it and in 
accordance with the common rules on 
chargeability: accordingly the latter make it 
'necessary to know of the movements of 
products subject to excise duty'. 
46. The system of excise duty in force at 
Community level since 1993 necessitates, in 
addition to minimum rates of charge, harmo­
nised taxation structures and common rules 
on the holding and movement within the 
Community of the products affected. The 
latter may take three specific forms: 
(a) Commercial movement of products 
under the suspension arrangement; fol­
lowing the abolition of frontier controls, 
the principle of taxation at destination 
was maintained by providing for a sys­
tem of detailed information and checks 
in which traders, registered or otherwise, 
and accompanying documents play a key 
role. 
(b) Commercial transactions involving prod­
ucts that have already been taxed, 
accounting for a small proportion of 
intra-Community trade in this kind of 
product, 20 in which the information 
mechanisms, for which the economic 
agents concerned are responsible, and 
control by the Member States, are also 
regulated in detail. 
(c) Cross-frontier purchases by private indi­
viduals, of the kind referred to in Article 
8 of the directive. By contrast with the 
other two systems, this one entails no 
obligation to provide information since 
the intervention of economic agents as 
intermediaries is excluded. 
20 — This is stated in the Commission's report to the Council 
and the European Parliament of 13 September 1995 submit­
ted in accordance with Article 4 of Council Directive 
92/79/EEC of 19 October 1992 on the approximation of 
rates for other products subject to excise duty (COM(95) 
285 Final). 
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THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
47. Within that legislative context, the inclu­
sion of Article 8 must be interpreted in the 
light of the other provisions of the directive 
so as not to negate the effectiveness of the 
remaining articles. 
48. First, Article 9 of the directive, concern­
ing products held for commercial purposes, 
would be rendered largely ineffective if a 
system of purchase and transport of the kind 
at issue in the main proceedings became gen­
eral practice. Within such a system, after 
abolition of internal frontiers, the Member 
States would in practice find it hard to evalu­
ate the combined effect of the factors men­
tioned in that provision to determine 
whether the products were being transported 
on a commercial or a merely private basis. 
For example, they would encounter difficul­
ties in verifying whether or not a given pri­
vate individual, using several agents simul­
taneously or successively, had exceeded the 
levels which in principle imply that his pur­
chases are of a private nature. 
49. The fact that, under the system at issue 
in the main proceedings, the appellant under­
takings refuse to accept orders from private 
individuals which exceed those levels indi­
cates their intention not to engage in fraud, 
but that is not a sufficient argument to ren­
der acceptable the incitement to fraud which, 
objectively, would result from generalisation 
of the system. 
50. Secondly, the rules on distance sales con­
tained in Article 10, observing the principle 
of taxation in the country of destination and 
not that of purchase, would in all probability 
be systematically evaded in sales between 
countries with widely differing tax rates, 
where logically there is an incentive to buy 
products in the country which levies the 
least tax. 
51. In fact, the Article 10 rules expressly 
mention only distance sales of products 'dis­
patched or transported directly or indirectly 
by the vendor or on his behalf'. For the 
appellants, the scope of that rule does not 
extend to a mechanism such as that at issue 
in the main proceedings since there it is the 
buyers and not the sellers 'who contract, 
through an agent, for the transport service. 
52. If that interpretation were allowed, there 
would be a lacuna in the directive regarding 
distance purchases since, although the system 
used by EMU Tabac may not conform with 
Article 10, interpreted literally, it does not 
thereby cease to be, economically and legally, 
a distance purchase. The most appropriate 
legal way of supplying that lacuna is 
recourse to analogy: application to the cir­
cumstances of this case of the legal provision 
applicable to the most similar situation. 
I -1621 
OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
53. As I see it, the legal concept closest to 
the 'distance purchasing' carried out, 'in the 
comfort of their armchairs', by United King­
dom residents is, precisely, the 'distance sell­
ing' governed by Article 10 of the directive, 
from both the economic and the legal points 
of view. 
54. Therefore, if it is the case that the Com­
munity legislature wished to adhere to the 
principle of taxation at destination for the 
distance sales provided for in Article 10, the 
same principle must be deemed to apply to 
the distance purchases at issue in the main 
proceedings, with the result that distant pur­
chasers must pay the excise duty of the Sate 
in which they receive their tobacco products 
and not that of the State from which they 
were dispatched. 
55. The principle of taxation at the point of 
origin (more properly, in the country of 
acquisition) in Article 8 of the directive does 
not therefore apply in such cases. Its scope is 
cut down to purchases made by private indi­
viduals followed by personal transport of the 
products acquired, in all cases for the per­
sonal use of the purchaser. 
56. The analogy is not invalidated by the 
fact that Article 10 requires the transport to 
be carried out, directly or indirectly, by the 
seller or on his behalf. It would be sufficient, 
in order to sidestep all the complex obliga­
tions 21 imposed by Article 10 on sellers, for 
the latter to agree with their customers (or 
with their agents, as occurs in this case) cer­
tain conditions concerning transport, per­
haps even with guarantees or assurances 
from the seller. 
57. Finally, I have already referred to the 
rules in the directive on the involvement of 
persons other than the buyer in the case of 
dispatches from a distance of products sub­
ject to excise duty (authorised warehouse-
keepers, registered or non-registered traders 
and tax representatives other than the con­
signees of the products). The involvement of 
the latter — whose characteristic function 
coincides with that of the agent — does not 
exclude the rule of taxation at destination in 
the case of distance sales. For the reasons 
given earlier, that same conclusion must 
apply to the distance purchases at issue in 
the main proceedings. 
(iv) The arguments against the proposed 
interpretation of the term 'products trans­
ported' 
58. The appellants have put forward a num­
ber of arguments in support of a different 
view from the one I have just set out. First, 
21 — The seller must guarantee payment of the excise duty under 
the conditions laid down by the Member State of destina­
tion before despatch of the products; it must satisfy itself 
that the duty is paid after the products arrive and keep 
records of deliveries. 
I - 1 6 2 2 
THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
they rely on the general rule that can be 
inferred from Article 6 of the directive and 
on the allusion to the 'principle governing 
the internal market' mentioned in Article 8 
of the directive. Secondly, they state that to 
interpret that article in the manner that I 
have just advocated would give rise to 
double taxation and would render Article 10 
of the directive superfluous. 
59. It is true that Article 6 of the directive 
provides that the duty becomes chargeable at 
the time of release for consumption of the 
products. But its legal force is neither greater 
nor lesser than that of the remaining articles 
of the directive. Specifically, it does not sup­
port any inference that the rule of taxation in 
the country of acquisition is to take prece­
dence over the rule of taxation in the coun­
try of destination in the case of intra-
Community movements of such products. 
Rather, an analysis of the directive points to 
precisely the opposite conclusion. 
60. Of the three systems of intra-
Community movement of products subject 
to excise duty to which I referred earlier 
(namely, commercial movement of products 
under the suspension arrangement, commer­
cial transactions involving products that have 
already been taxed and purchases by private 
individuals for their own use) the first two 
are subject to the rule of taxation at desti­
nation. 
61. Both when products are being moved 
under the suspension arrangement and when 
they are moved outside that arrangement, in 
the context of intra-Community commercial 
transactions — such as, for example, distance 
sales — they are subject to duty at their des­
tination. 
62. The rule of taxation at the point of ori­
gin is therefore of much more limited scope 
than the appellants claim. It applies to the 
purchase of goods which are not subse­
quently going to move between the various 
Member States and, under Article 8 of the 
directive, also to products acquired by pri­
vate individuals and transported by them, 
not by way of trade. 
63. The directive thus sought to strike a bal­
ance between the two rules (one requiring 
taxation at origin and the other taxation at 
destination) which cannot simply be frus­
trated by declaring that the first rule is to be 
of general application, extending to cases 
outside the sphere within which the Com­
munity legislature sought to confine it. 
64. As regards the 'principle governing the 
internal market' referred to in Article 8 as 
the reason for making the excise duty 
chargeable in the country of acquisition, its 
importance as a means of interpretation is 
much less than the appellants suggest. 
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OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
65. The internal market is characterised by 
the abolition between the Member States of 
barriers to the free movement of goods, per­
sons, services and capital. It involves an area 
without internal frontiers, in which that free 
movement is guaranteed in accordance with 
the Treaty (Article 7a of the EC Treaty). 
66. However, I consider that principle to be 
compatible with a taxation system which in 
specific cases requires excise duty — or even 
other taxes, such as VAT — to be paid at the 
destination of the goods, not at the point of 
origin, where the transactions take place 
within the Community. Needless to say, the 
opposite approach (taxation at origin) is also 
perfectly compatible with the internal mar­
ket and also displays the advantages of sim­
plicity and certainty. 
67. In reality, the obstacle to the free move­
ment of goods, and thus to attainment of the 
internal market, would arise either from the 
existence of other discriminatory internal 
taxes and charges having an effect equivalent 
to import customs duties (both of which, in 
this case are ruled out), or from double taxa­
tion of the products subject to excise duty. 
Specifically in order to obviate the latter, the 
directive contains detailed provisions as to 
the chargeability of the duty, providing in 
some cases for reimbursement of duty 
already paid (Article 22). 
68. In the case of Article 8, double taxation 
is avoided — and the 'principle governing 
the internal market' is complied with, facili­
tating intra-Community movement of goods 
without frontier controls — simply by 
applying the rule of taxation at origin, albeit 
subject to certain requirements which I have 
already mentioned. I do not consider that the 
essence of that principle, as a criterion for 
interpretation of the rule, calls for the limits 
of Article 8 to be extended in the way con­
tended for by the appellants. 
69. The appellants assert, however, that the 
interpretation of Article 8 which I advocate 
would, in certain circumstances, give rise to a 
clear case of double taxation, since they have 
to pay the excise duty on the same products 
first in Luxembourg, when buying them, and 
then in the United Kingdom when receiving 
them. 
70. I cannot accept that argument. The 
scheme of the directive is based on the prin­
ciple of a single payment of duty, to such an 
extent that a whole section (Title IV) is 
devoted specifically to 'reimbursement' of 
sums already paid, in cases of intra-
Community trade, in order to avoid double 
payment of tax on the same products. 
71. Article 22(1) of the directive provides: 
'In appropriate cases, products subject to 
I - 1624 
THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
excise duty which have been released for 
consumption may, at the request of a trader 
in the course of his business, be eligible for 
reimbursement of excise duty by the tax 
authorities of the Member State where they 
were released for consumption when they 
are not intended for consumption in that 
Member State.' And paragraphs 3 and 4 of 
that article deal more particularly with the 
conditions for reimbursement in the cases 
referred to in Articles 7 and 10. 
72. In my opinion, those legislative provi­
sions are sufficient to avoid double taxation 
of the same products, since the reimburse­
ment procedure would apply to the appel­
lants' case, with the result that they would be 
required to pay only the duty chargeable in 
the United Kingdom. 
73. Even if it is conceded that the directive 
contains a legal lacuna concerning 'distance 
purchases' of the kind at issue in the main 
proceedings, regarding which, in theory, the 
seller takes neither direct nor indirect 
responsibility for transport, recourse to anal­
ogy, as a means of fleshing out the legal 
order, would enable the principle of reim­
bursement of duty already paid at origin to 
be applied to such circumstances, since only 
the duty chargeable in the country of desti­
nation would be reimbursed. 
74. Finally, the parties' argument that Article 
10 of the directive would become pointless if 
Article 8 were interpreted in the manner that 
I advocate, also seems to me to be 
unfounded. 
75. In my opinion, Article 10 is useful not 
only in order to confirm the rule that dis­
tance sales should be taxable at destination 
but also to determine the obligations of the 
seller and thereby facilitate monitoring of the 
exaction of duty in the relevant Member 
State. 
76. The appellants are in part right to state 
that, if Article 8 is interpreted as I propose, 
Article 10 adds nothing of substance to 
determination of the country which is to 
levy the duty. Indeed, whilst the rule in 
Article 8 (taxation at origin) is limited to 
goods bought by private individuals and 
transported by them, distance sales, a. sensu 
contrario, do not follow the same rule. And 
that is precisely what Article 10 provides. 
77. That conclusion does not mean, how­
ever, that Article 10 is superfluous or redun­
dant. The express provision for distance 
sales, as an economic phenomenon particu­
larly suited to some products subject to 
excise duty, and the need to add detail to the 
applicable legal rules, are sufficient reasons 
I -1625 
OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
for the Community legislature to have cho­
sen to include that article in the directive. 
78. In short, I consider that the answer to 
the first preliminary question must uphold 
the chargeability of excise duty in the Mem­
ber State of destination in the circumstances 
outlined by the national court. 
The second preliminary question 
79. Both the appellants and the intervener in 
support of the United Kingdom tax adminis­
tration consider that no answer will be 
needed to the second question if the inter­
pretation of Article 8 which I set out above 
is adopted. 
80. For my part, although essentially agree­
ing with that view, I see no problem in giv­
ing an express answer to the national court, 
confirming that the circumstances set out in 
the second question represent no obstacle — 
quite the contrary — to excise duty being 
levied in the State to which the products are 
sent. 
81. The terms of the second question are 
very similar to those of the first since the 
Court of Appeal raises the same problem, in 
relation to the same factual situation (pur­
chase in State B for the personal use of a pri­
vate individual resident in State A, through 
an agent who acts for the private individual 
and organises transport of the goods 
bought). The only difference is that in the 
second preliminary question it is expressly 
stated that the scheme was 'commercially 
devised and marketed'. 
82. In my view, the answer that I suggest to 
the first preliminary question a fortiori 
extends to the case described in the second 
question. The existence of a scheme like the 
one described by the national court cannot 
preclude the chargeability of excise duty in 
the State of destination when the products 
have neither been bought by private indi­
viduals as such nor transported by them to 
that State but have been dispatched using a 
complex commercial mechanism. 
83. The directive clearly distinguishes opera­
tions in which only private individuals take 
part from those which, involving as they do 
economic agents, are of a commercial nature. 
The reference to 'private individuals' appears 
only in Article 8 of the directive (and, 
derivatively, in Article 9(3)), emphasising 
that they are acting in a merely private 
I - 1626 
THE QUEEN v COMMISSIONERS OF CUSTOMS & EXCISE, EX PARTE EMU TABAC 
capacity, that is to say neither commercially 
nor professionally. 
84. In contrast, cases in which there is an 
economic agent acting as such, and in any 
event involving himself in the intra-
Community movement of goods subject to 
excise duty, fall outside the scope of Article 8 
of the directive. 
85. On the basis of that distinction, a system 
for the distribution of tobacco products in 
which one or more economic agents play a 
decisive role at the various stages, receiving 
orders, accepting or rejecting them, giving 
effect to such orders, physically receiving the 
products and arranging for them to be trans­
ported to the home address in another Mem­
ber State of the customer who has previously 
made payment is, in my opinion, a clear 
example of a commercial operation which 
has nothing to do with the purchases by pri­
vate individual covered by Article 8 of the 
directive. 
86. At the heart of that operation, moreover, 
the action of a commercial service undertak­
ing, which acts as agent for the purchaser, 
cannot be stripped of its inherent features: 
the undertaking plays a commercial role in 
the operations of purchase, transport and 
delivery of the products subject to excise 
duty which move from one Member State to 
another. The fact that such operations are 
preceded by a contract signed with the cus­
tomer (the end consumer) does not deprive 
them of their commercial nature, on the basis 
of which, for example, the company could be 
sued in the event of breach of contract. 
87. Finally, the peculiar characteristics of 
this case are such that any court would be 
entitled to reject the claims of a plaintiff by 
construing the tax provisions according to 
the interpretative criteria least conducive to 
tax evasion. 
88. From that standpoint, having regard to 
the connections between the seller and the 
agent, which are fellow subsidiaries of the 
same company, it is even possible that the 
national court, whose legal system enables it 
to 'lift the veil of incorporation' in order to 
obviate any abuse of the law, will choose to 
apply Article 10 to the case before it, taking 
the view that it is the selling company itself 
which, by means of an entrepreneurial sub­
terfuge, in reality 'indirectly' transports the 
goods to their destination. The expression 
'indirectly', when used in relation to trans­
port, as it is in the said Article 10 of the 
directive, is very flexible and allows such a 
conclusion. 
89. In the same way, if it were necessary to 
do so as a last resort, the national court 
could decline to apply the rule contended for 
I - 1627 
OPINION OF MR RUIZ-JARABO COLOMER — CASE C-296/95 
by the appellants (taxation at origin) on the 
basis that to apply it to the present case 
would clearly run counter to the spirit and 
purpose of the directive and would be inimi­
cal to the effectiveness of other provisions of 
it. By so doing it would merely be applying 
the general legal principle prohibiting acts in 
fraud of the law. 
Conclusion 
90. In view of the foregoing, I propose that the Court of Justice reply as follows to 
the questions referred to it by the Court of Appeal: 
(1) Council Directive 92/12/EEC of 25 February 1992 on the general arrange­
ments for products subject to excise duty and on the holding, movement and 
monitoring of such products, and in particular Article 8 thereof, does not pre­
clude the charging of such duty on goods in a Member State A in circum­
stances where: 
(a) a private individual resident in State A acquires those goods for his own 
use; 
(b) the purchase is made in State B, from which the goods are transported to 
State A; 
(c) both operations involve an agent who acts in the name or on behalf of the 
private individual and arranges for transport of the products; 
(d) the individual does not himself travel with the goods from Member State 
B to Member State A. 
(2) The same conclusion applies where purchases displaying the same characteris­
tics take place under a scheme commercially devised and adopted for commer­
cial purposes by one or more economic agents. 
I-1628