Opinion of the Advocate General — ECLI:EU:C:2006:294
Date: 2006-05-04
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Taxation;Free movement of goods;Common customs tariff;Customs Union;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Accession of new Member States – Act of Accession of 2003 – Transitional measures – Tax provisions (Arts 23 EC, 25 EC and 26 EC; Act of Accession of 2003, Art. 24, Annexe XIII, point 6(2); Council Directive 69/169, Arts 4(1)(a) and 5(8)) Section 6(2) of Annexe XIII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the treaties on which the European Union is founded is to be interpreted as not precluding the Republic of Austria from maintaining, on a transitional basis, its legislation containing an exemption from excise duty reduced to 25 cigarettes for cigarettes coming from Slovenia imported into the Republic of Austria in the personal luggage of travellers resident in that Member State and entering it directly via its land border or inland waters. That exemption, which was introduced, prior to the accession of the Republic of Slovenia to the Union, on the basis of Article 5(8) of Directive 69/169 on the harmonisation of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel, according to which Member States retain the power to lower the 200-unit duty-free allowance for cigarettes fixed by Article 4(1)(a) of Directive 69/169 for travel between non-member countries and the Community, was introduced in order to prevent Austrian residents from systematically avoiding payment of excise duty on cigarettes by buying, often on repeated short journeys, cigarettes in non-member countries bordering the Republic of Austria where the tax level and therefore prices are considerably lower than those in force in Austria, and by then importing up to 200 of those cigarettes, exempt from excise duty, on each of those journeys. That specific risk of tax avoidance and impairment of the objective of protecting public health persists after the accession of the Republic of Slovenia to the European Union, since, under Section 6(2) of Annex XIII to the Act of Accession, that new Member State may, even though it is required to raise its rates gradually, postpone the application of the overall minimum excise duty on cigarettes until 31 December 2007. The scope of the measure in question is, moreover, specifically limited to what is necessary to combat such practices. Therefore, that measure can still be based on Article 5(8) of Directive 69/169, read in conjunction with Article 24 of the Act of Accession. Moreover, since that national legislation is justified in the light of one of the measures referred to in Article 24 of the Act of Accession, in this case the transitional measure provided for in Section 6(2) of Annex XIII to that act, the question of the compatibility of that legislation with other provisions of primary law, such as Articles 23 EC, 25 EC and 26 EC, can no longer arise. Therefore, those articles must be interpreted as not prohibiting such national legislation, notwithstanding the fact that, following the last enlargement of the European Union, that reduced exemption no longer applies to any non-member country with the sole exception of the Swiss Samnauntal customs enclave, since imports of cigarettes from non-member countries generally benefit from an exemption for 200 units. (see paras 38, 40, 59-61, 67, 71, 74-75, operative part 1-2)