Judgment;Summary — ECLI:EU:C:2021:382
Date: 2021-05-12
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Environment;External relations;Internal market - Principles;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-87/20 — 1 
Case C-87/20 
Request for a preliminary ruling 
Date lodged: 
19 February 2020 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
15 October 2019 
Appellant in the appeal on a point of law: 
Hauptzollamt B 
Respondent in the appeal on a point of law: 
XY 
  
[…] 
BUNDESFINANZHOF (FEDERAL FINANCE COURT) 
ORDER 
In the case of 
Hauptzollamt (Principal Customs Office) B 
defendant and appellant in the appeal on a point of law 
against 
XY 
applicant and respondent in the appeal on a point of law 
[…] 
concerning confiscation due to lack of an import permit 
EN 
REQUEST FOR A PRELIMINARY RULING OF 15. 10. 2019 — CASE C-87/20 
 
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the Seventh Chamber 
made the following order at the sitting of 15 October 2019: [Or. 2] 
Operative Part 
1. I. The following questions are referred to the Court of Justice of the 
European Union for a preliminary ruling: 
Is Article 57(5)(a) of Regulation No 865/2006, as amended by Regulation 
No 2015/870, to be interpreted as meaning that an importer carrying a total 
of more than 125 grams (g) of caviar of sturgeon species (Acipenseriformes 
spp.) in individually marked containers, for which he presents neither a (re-
)export document nor an import permit, is to be allowed to keep up to 125 g 
of caviar, provided that the import is not for any of the purposes listed in the 
first subparagraph of Article 57(1) of Regulation No 865/2006? 
If that question is to be answered in the affirmative: 
Do specimens introduced into the customs territory of the European Union 
also qualify as personal and household effects within the meaning of 
Article 7(3) of Regulation (EC) No 338/97 where the importer declares at 
the time of introduction that he intends to present the imported items as a 
gift to other persons? 
2. The proceedings are stayed pending the decision of the Court of Justice of 
the European Union on the questions referred for a preliminary ruling. 
G r o u n d s 
I. 
1 In December 2015, the applicant and respondent in the appeal on a point of law 
(‘the applicant’) entered the customs territory of the European Union via the green 
channel, for persons with ‘nothing to declare’, of the airport customs post of the 
defendant and appellant in the appeal on a point of law (‘the Principal Customs 
Office’). She was carrying six 50 g tins of caviar (black Beluga, Latin: Huso 
Huso). The Principal Customs Office confiscated the caviar, as she did not have 
the permits required under Paragraph 51(2) of the Bundesnaturschutzgesetz ([…] 
Federal Law on Nature Conservation, ‘the BNatSchG’ […]). 
2 The action brought subsequently was upheld in part. The Finanzgericht (Finance 
Court) found that sturgeon eggs, including of bred specimens, are indeed covered 
by Annex B to Council Regulation (EC) No 338/97 of 9 December 1996 on the 
protection of species of wild fauna and flora by regulating trade therein, as 
amended by Commission Regulation (EU) No 1320/2014 of 1 December 2014 
amending Council Regulation (EC) No 338/97 on the protection of species [Or. 3] 
of wild fauna and flora by regulating trade therein […], and that an import permit 
HAUPTZOLLAMT B 
 
3 
was therefore required in order to import the caviar, but that none had been 
presented so far. It found that the applicant was, however, able to import two tins 
without a permit, as she intended to use them not for commercial purposes, but to 
present them as a gift to her children or to use them herself. It stated that 
Article 57(5) of Commission Regulation (EC) No 865/2006 of 4 May 2006 laying 
down detailed rules concerning the implementation of Council Regulation (EC) 
No 338/97 on the protection of species of wild fauna and flora by regulating trade 
therein, as amended by Commission Regulation (EU) 2015/870 of 5 June 2015 
amending, as regards the trade in species of wild fauna and flora, Regulation (EC) 
No 865/2006 laying down detailed rules concerning the implementation of 
Council Regulation (EC) No 338/97 […] is a quantitative exemption rule that 
allows non-commercial importers to import small quantities without a permit 
subject to certain conditions; where that limited quantity is exceeded, there is no 
justification for excluding the exemption completely if, on the basis of the 
circumstances of the case in question, there is no evidence of importation for 
commercial purposes. Confiscation was therefore unlawful inasmuch as the 
Principal Customs Office did not allow the applicant to keep two tins of caviar. 
3 The Principal Customs Office lodged an appeal on a point of law against that 
judgment. It argued that, if the quantity specified in Article 57(5) of Regulation 
No 865/2006 is exceeded, the full quantity of caviar of sturgeon species 
introduced must be confiscated due to the lack of an import permit, and that, 
furthermore, caviar intended as a gift for third parties ceases to qualify as personal 
or household effects. 
II. 
4 [Stay of proceedings] […] 
5 [Repetition of the questions referred for a preliminary ruling] […] [Or. 4] […] 
6 […] 
7 […] 
III. 
8 The chamber is of the opinion that Regulation No 338/97 and Regulation 
No 865/2006 (each in the amended version referred to above) apply to the case in 
question. There are doubts as to their interpretation which are material to the 
decision in the case in question. 
9 Applicable EU law: 
10 Article 2(b) of Regulation No 338/97: 
For the purposes of this Regulation: ‘Convention’ shall mean the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora (Cites). 
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11 Article 2(j) of Regulation No 338/97: 
For the purposes of this Regulation: ‘personal or household effects’ shall mean 
dead specimens, parts and derivatives thereof, that are the belongings of a private 
individual and that form, or are intended to form, part of his normal goods and 
chattels. 
12 Article 2(t) of Regulation No 338/97: 
For the purposes of this Regulation: ‘specimen’ shall mean any animal or plant, 
whether alive or dead, of the species listed in Annexes A to D, any part or 
derivative thereof, whether or not contained in other goods … 
13 Article 3(2)(a) of Regulation No 338/97: 
Annex B shall contain: (a) [Or. 5] 
14 the species listed in Appendix II to the Convention, other than those listed in 
Annex A, for which the Member States have not entered a reservation. 
15 The first subparagraph of Article 4(2) of Regulation No 338/97: 
The introduction into the Community of specimens of the species listed in Annex 
B shall be subject to completion of the necessary checks and the prior 
presentation, at the border customs office at the point of introduction, of an import 
permit issued by a management authority of the Member State of destination. 
16 The first sentence of Article 7(3) of Regulation No 338/97: 
Personal and household effects 
By way of derogation from Articles 4 and 5, the provisions therein shall not apply 
to dead specimens, parts and derivatives of species listed in Annexes A to D 
which are personal or household effects being introduced into the Community, or 
exported or re-exported therefrom, in compliance with provisions that shall be 
specified by the Commission. 
Annex to Regulation No 338/97: 
 Annex 
A 
Annex B Annex 
C 
Common name 
···     
ACTINOPTERYGII    Fish 
Acipenseriformes     
  ACIPENSERIFORM
ES spp. (II) (Except 
for the species 
included in Annex A) 
 Sturgeons and paddlefish 
…     
 
18 Article 57 of Regulation No 865/2006: 
HAUPTZOLLAMT B 
 
5 
1. The derogation from Article 4 of Regulation (EC) No 338/97 for personal or 
household effects, provided for in Article 7(3) of that Regulation, shall not apply 
to specimens used for commercial gain, sold, displayed for commercial purposes, 
kept for sale, offered for sale or transported for sale. … 
2. … 
3. The first introduction into the Community of personal or household effects, 
including hunting trophies, by a person normally residing in the Community and 
involving specimens of species listed in Annex B to Regulation (EC) No 338/97 
[Or. 6] shall not require the presentation to customs of an import permit, provided 
that the original of a (re-)export document and a copy thereof are presented. 
4. … 
5. By way of derogation from paragraphs 3 and 4, the introduction or re-
introduction into the Community of the following items listed in Annex B to 
Regulation (EC) No 338/97 shall not require the presentation of a (re-)export 
document or an import permit: 
(a) caviar of sturgeon species (Acipenseriformes spp.), up to a maximum of 125 
grams per person, in containers individually marked in accordance with 
Article 66(6); …. 
19 Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (‘CITES’): 
20 Conf. 12.7 (Rev. CoP17) — Conservation of and trade in sturgeons and paddlefish 
… 
The conference of the parties to the convention 
… 
2. Recommends, with regard to regulating trade in sturgeon products, that: 
... 
e) Parties consider the harmonisation of their national legislation related to 
personal exemptions for caviar, to allow for the personal effects exemption under 
Article VII, paragraph 3, of the Convention and consider limiting this exemption 
to no more than 125 grams of caviar per person; 
... 
Conf. 13.7 (Rev. CoP17) — Control of trade in personal and household effects 
... 
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The conference of the parties to the convention 
... 
3. Agrees that parties shall: 
a) … 
b) not require export permits or re-export certificates, for personal or household 
effects which are dead specimens, parts or derivates of Appendix-II species 
except: 
... 
(iv) for the following, where the quantity exceeds the specified limits: 
- caviar of sturgeon species (Acipenseriformes spp.) — up to a 
maximum of 125 grams per person whereby the container has to be 
labelled in accordance [Or. 7] with Resolution Conf. 12.7 (Rev. 
CoP17); 
… 
21 Annex 1 — Guidelines for interpretation of personal and household effects … 
Definition of ‘personal and household effects’ 
8. Specimens must be personally owned or possessed for non-commercial 
purposes. This excludes use for commercial gain, sale, and display for commercial 
purposes, keeping for sale, offering for sale or transport for sale. 
… 
22 Applicable national law: 
23 The first sentence of Paragraph 51(2) of the BNatSchG: 
If, in customs controls, it is determined that import, transit or export of animals or 
plants is being carried out without the prescribed permits or other documents, the 
animals or plants involved shall be confiscated by the customs authority. 
IV. 
24 There is uncertainty as to the correct legal appraisal of the case under EU law. 
25 1. The decision on the appeal on a point of law lodged by the Principal Customs 
Office depends on whether the quantity specified in Article 57(5)(a) of Regulation 
No 865/2006 is an allowance or a quantitative exemption. If it is interpreted as an 
allowance, the Principal Customs Office rightly confiscated the full quantity of six 
HAUPTZOLLAMT B 
 
7 
containers of caviar introduced. However, if it is a quantitative exemption, it 
should have confiscated only four containers of caviar. The applicant should have 
been allowed to keep the remaining two 50 g containers of caviar, provided that 
they qualify as personal or household effects. According to information provided 
by the Principal Customs Office, Article 57(5)(a) of Regulation No 865/2006 is 
interpreted differently in the Member States. 
26 (a) Sturgeon species (Acipenseriformes spp.) are protected under Appendix II to 
CITES (Article 3(2)(a), read in conjunction with Article 2(b), of Regulation 
No 338/97). They are therefore listed in Annex B to Regulation No 338/97. The 
protected specimens include bred animals and their eggs (Article 2(t) of 
Regulation No 338/97). 
27 As a rule, when specimens of the species listed in Annex B are introduced into the 
Community, an import permit issued by a management authority of the Member 
State of destination must be presented at the border customs office at the point of 
introduction in accordance with the first subparagraph of Article 4(2) of 
Regulation No 338/97 [Or. 8]. However, according to the first sentence of 
Article 7(3) of Regulation No 338/97, this does not apply to dead specimens, parts 
and derivatives of species listed in Annexes A to D which are personal or 
household effects being introduced into the Community in compliance with 
provisions to be specified by the Commission. The Commission has, on that basis, 
laid down simplifications in respect of and derogations from the requirement to 
submit documents in Article 57 of Regulation No 865/2006. Thus, 
Article 57(5)(a), read in conjunction with the first subparagraph of Article 57(3), 
of Regulation No 865/2006 provides that caviar of sturgeon species 
(Acipenseriformes spp.) up to a maximum of 125 grams per person, in containers 
individually marked in accordance with Article 66(6) of Regulation No 865/2006, 
may be imported without either an import permit issued by the country of 
destination or a (re-)export document issued by the country of origin within the 
meaning of the first subparagraph of Article 57(3) of Regulation No 865/2006, 
provided that it is imported as personal or household effects by a person normally 
residing in the Community. 
28 However, if the requirements of Article 57(5)(a) of Regulation No 865/2006 are 
not fulfilled and the importer does not have the import permit which is then 
required or, where applicable, an export document issued by the country of origin, 
the customs authority must confiscate the imported caviar in accordance with the 
first sentence of Paragraph 51(2) of the BNatSchG. 
29 (b) Judgment in the case in question depends on whether and to what extent the 
applicant, who had neither an import permit nor an export document, can rely 
upon the derogation from the document requirements in accordance with 
Article 57(5)(a) of Regulation No 865/2006. In particular, the question arises as to 
the legal consequences of importing a total quantity of caviar (in this case 300 g of 
caviar of sturgeon species (Huso Huso)) that exceeds 125 g per person. 
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30 (aa) The referring court tends towards the view that, if the quantity specified in 
Article 57(5)(a) of Regulation No 865/2006 is exceeded, the full quantity 
imported must be confiscated. 
31 That view is supported by the objectives of CITES and of Regulation No 338/97 
and Regulation No 865/2006 of protecting endangered species of fauna and flora 
(see recitals 1 and 2 of Regulation No 338/97), as it is a simple and effective way 
of enforcing compliance with the rules. Moreover, that interpretation reinforces 
the principle that documents are required as a rule and ensures that derogations 
from that rule actually [Or. 9] apply only where small quantities are imported. If 
the benefit is granted only where the maximum quantity is complied with or 
where the necessary documents are presented, it is possible to decide at the time 
of introduction, without obtaining further evidence, whether the goods are to be 
allowed through. Otherwise, evidence of importation for non-commercial 
purposes would have to be obtained in order to be able to decide whether a person 
who has failed to comply with the rules should be allowed to keep part of the 
goods nonetheless. If, where the quantity of caviar imported exceeds 125 g, part of 
the goods were allowed to pass without any documents being presented, imports 
of larger quantities of caviar might ultimately profit from the simplification at 
least in part. 
32 A narrow interpretation of Article 57(5)(a) of Regulation No 865/2006 in the 
sense of an allowance is supported by the fact that Article 57(5)(a) of Regulation 
No 865/2006 does not provide for duty to be paid on quantities of caviar 
introduced in excess of the permissible quantity of 125 g. In the opinion of the 
referring court, that would also conflict with the objectives of the aforesaid legal 
bases. If it is an allowance, a person importing more than 125 g of caviar would 
have no prospect from the outset of being allowed to keep at least part of the 
quantity without presenting the necessary documents. 
33 The fact that the quantity of 125 g applies ‘per person’ also suggests that the 
imported goods cannot be apportioned between goods that do not require 
documents and goods that do require documents and must therefore be 
confiscated. This situation cannot therefore be compared to a batch consignment 
containing parcels for several individual consignees, which the Court of Justice of 
the European Union has allowed to be treated as consignments of negligible value 
if each parcel has an individual value of less than EUR 22 (see [judgment of 
2 July 2009, Har Vaessen Douane Service, C-7/08, EU:C:2009:417] […] on 
Article 27 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a 
Community system of reliefs from customs duty […], as amended by Council 
Regulation (EEC) No 3357/91 of 7 November 1991 amending Regulation (EEC) 
No 918/83 setting up a Community system of reliefs from customs duty). 
34 A narrow interpretation of Article 57(5)(a) of Regulation No 865/2006 in the 
sense of an allowance is further supported by point 2(e) of Resolution 12.7 and 
point 3(b)(iv) of Resolution 13.7 of the CITES conference of parties (‘CoP’) [Or. 
10] ‘limiting this exemption to no more than 125 grams of caviar per person’. 
HAUPTZOLLAMT B 
 
9 
35 (bb) However, it might also be possible to interpret Article 57(5)(a) of Regulation 
No 865/2006 as meaning that a person who imports too large a quantity can be 
allowed to keep at least 125 g of caviar as a quantitative exemption. According to 
information provided by the Principal Customs Office, Article 57(5)(a) of 
Regulation No 865/2006 is interpreted and applied differently in the Member 
States, thereby exacerbating the doubts of the referring court. 
36 It does not follow unequivocally either from the wording of that provision or from 
Resolutions 12.7 and 13.7 of the CoP that, if the quantity of caviar imported 
exceeds 125 g, documents are automatically required for the full quantity. 
Formulations similar to that of Article 57(5)(a) of Regulation No 865/2006 are to 
be found, for example, in Article 23(2) of Regulation (EC) No 1186/2009 
(‘Regulation No 1186/2009’) on consignments of negligible value (‘goods of 
negligible value’ means goods the intrinsic value of which does not exceed a total 
of EUR 150 per consignment) and in Article 27 of Regulation No 1186/2009 on 
quantitative restrictions on consignments from one private individual to another 
(‘maximum quantities’). However, the quantities stipulated in those regulations 
are treated as quantitative exemptions which the importer is always allowed to 
keep. 
37 At the same time, were it to be interpreted as an allowance, Article 57(5)(a) of 
Regulation No 865/2006 would be a punitive provision, which does not follow at 
any rate from the wording of the provision. Article 57(5)(a) of Regulation 
No 865/2006 simply states that no documents are required in order to import a 
certain quantity of caviar. That notwithstanding, infringements of provisions to 
protect species can, if necessary, be punished under criminal law. 
38 Furthermore, CITES and Article 57(5)(a) of Regulation No 865/2006 obviously 
consider that importing up to 125 g of caviar does not put the survival of sturgeon 
species at risk. That quantity is complied with both if a maximum of just 125 g of 
caviar is imported from the outset and if persons who import in excess of that 
quantity are allowed to keep 125 g of caviar. 
39 2. If the answer to Question 1 is in the affirmative, judgment on the appeal on a 
point of law further depends on whether the imported species qualify as personal 
or household effects within the meaning of Article 7(3) of Regulation No 338/97 
even where the importer declares at the time of introduction that he intends [Or. 
11] to present the imported goods as a gift to other persons. If that is so, the 
applicant in this case should be allowed to keep two 50g tins of caviar. 
40 The wording of Article 2(j) of Regulation No 338/97, which refers to the goods 
and chattels of ‘that’ person (das Hab und Gut ‘dieser’  Person) (in English, ‘part 
of his normal goods and chattels’; in French, ‘partie de ses biens et effets 
normaux’), suggests that a species qualifies as personal or household effects only 
if it is intended for the importer in person. 
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41 Nonetheless, the referring court considers that a specimen introduced may also 
qualify as personal effects if the importer intends to present the imported items to 
other persons (as travel souvenirs), provided there is no evidence of any 
commercial intention. 
42 Article 2(j) of Regulation No 338/97 distinguishes between ‘household effects’ 
and ‘personal effects’. Household effects might be regarded as effects that belong 
to the personal domain of a private individual and are intended to remain 
permanently in his household, whereas ‘personal effects’ would appear to be 
effects which serve or are intended to serve personal needs. Use or consumption 
by that person is not a condition in either Article 2(j) of Regulation No 338/97 or 
in Article 57(5)(a) of Regulation No 865/2006. Nor does Article 57(5)(a) of 
Regulation (EEC) No 865/2006 mention the importer’s private intentions. Thus, 
the term ‘personal effects’ would not necessarily appear to depend upon the 
importer keeping the species. 
43 The chamber has ruled, in connection with the exemption enacted in Article 8 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 […] and the corresponding national rule adopted in 
Paragraph 20(1) of the Tabaksteuergesetz (Law on Tobacco Tax), in the version in 
force in 2007, that products subject to excise duty are acquired for the 
requirements of the private purchaser even if they are to be presented as a gift to 
another private individual with whom he has a close personal connection. 
Accordingly, a person who, of his own volition, purchases gifts for family 
members is also covering his own requirements. That is because he is incurring 
expenditure that has not been commissioned and for which no reimbursement of 
expenses from third parties can be expected […] [Or. 12] […]. 
44 By those standards, the referring court in the case in question regards two 50 g tins 
of the caviar imported by the applicant as the applicant’s personal effects, even if 
she intended to present that part of the total quantity imported as gifts to her 
children and declared this at the time of introduction. There is no evidence in this 
case of commercial purpose within the meaning of Article 57(1) of Regulation 
No 865/2006. 
45 Nor does that outcome conflict with point 8 of Annex 1 to Resolution 13.7 of the 
CoP, which states that specimens must be personally owned or possessed for non-
commercial purposes. Whereas the first alternative assumes that the importer does 
not give away the specimens and keeps them himself, the second alternative 
(‘possessed for non-commercial purposes’) is more broadly worded, as the 
personal purpose is not bound up with personal possession. 
46 Aside from these legal considerations, the referring court considers that it would 
also be questionable from a practical point of view to refuse the derogation from 
the need to present documents enacted in Article 57(5)(a) of Regulation 
No 865/2006 simply on the ground of the stated intention to present the caviar as a 
HAUPTZOLLAMT B 
 
11 
gift. Any such interpretation raises the question as to how the importer’s 
intentions are to be reliably verified during customs clearance procedures. 
Ultimately, an importer who declares his intention to present the goods as a gift 
would be disadvantaged compared to an importer who states that he wishes to 
keep the caviar himself or who says nothing at all, as he would be denied the 
derogation from the need to present documents. Furthermore, an intention initially 
declared during customs clearance may be abandoned following the introduction 
of the goods. Finally, it is unclear why it should be possible to import 125 g of 
caviar without any documents being presented if the importer consumes the caviar 
himself or invites friends or relatives to partake, whereas documents need to be 
presented if the importer wishes to present the imported caviar as a gift to those 
persons. 
47 The referring court’s doubts as to the interpretation of Article 57(5)(a) of 
Regulation No 865/2006 are exacerbated by the fact that, according to the 
Principal Customs Office, the question of whether goods carried as gifts can be 
treated as personal or household effects is answered differently by the Member 
States.