Provisional text
OPINION OF ADVOCATE GENERAL
BRKAN
delivered on 4 February 2026 (1)
Joined Cases T‑685/24 and T‑686/24 [Jelgratz and Buchgint] (i)
A (T‑685/24)
B (T‑686/24)
v
Hauptzollamt
(Requests for a preliminary ruling from the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg (Germany))
( Reference for a preliminary ruling – Excise duty – Directive 2008/118/EC – Directive (EU) 2020/262 – Goods acquired by a private individual and transported from one Member State to another – Goods intended for the private individual’s own use – Concept – National practice excluding from that concept goods acquired for the purpose of passing them on free of charge to another person )
Introduction
1.        The requests for a preliminary ruling concern the interpretation of Article 32 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) and Article 32 of Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4).
2.        These requests have been made in two sets of proceedings between, respectively, A and B and the Hauptzollamt Frankfurt (Oder) (Principal Customs Office, Frankfurt am Oder; ‘the tax authority’) concerning the payment of tax on tobacco in relation to cigarettes and other manufactured tobacco that those persons were transporting from Poland to Germany. The tax, introduced by the Tabaksteuergesetz (Law on excise duty on tobacco), includes excise duty on manufactured tobacco in that Member State.
Legal framework
European Union law
3.        Articles 32 and 33 of Directives 2008/118 and
2020/262 are relevant in the present cases.
National law
4.        According to Paragraph 39(2) of the Tabaksteuerverordnung (Regulation on excise duty on tobacco; ‘the TabStV’), in both the version applicable from 1 July 2021 to 28 October 2022, and in the version applicable as from 29 October 2022:
‘The passing on of tobacco products, even if it is free of charge, is not deemed to be for own use in accordance with Paragraph 22 [of the TabStV], regardless of the quantity transported.’
Main proceedings and questions referred
Case T‑685/24
5.        On 6 August 2022, upon entering Germany by car from Poland, A was subjected to a customs check by the customs authorities. The authorities found that he was transporting 800
cigarettes bearing Polish tax stamps. A stated that he was carrying the cigarettes for an acquaintance and that he himself was a non-smoker. The customs authorities issued A with a tax notice in which the amount of duty on the tobacco was set at EUR 144.17. They seized the cigarettes which, according to A, had a value of EUR 135.83.
6.        In the action brought before the referring court against that tax notice, A claims, inter alia, that he purchased the seized cigarettes for his father, who lives in Germany, and that they must therefore be considered as purchased for his ‘personal use’. In response to that argument, the tax authority submits that, under Paragraph 39 of the TabStV, the cigarettes at issue were brought into Germany for commercial purposes since they were not intended to be smoked by A. Therefore, the cigarettes were not exempt from excise duty.
7.        In those circumstances, the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 32 of [Directive 2008/118] be interpreted as precluding a national interpretation according to which “own use” is excluded, irrespective of the quantity transported, in the event of the acquisition of tobacco products for the purpose of passing them on to another person, even if the passing on is done free of charge?
(2)      If the first question is answered in the affirmative, must Article 32 of [Directive 2008/118] be interpreted as meaning that the concept of “own use”, taking into account the other criteria, in particular the quantity criterion, includes gifts to close relatives but not gifts to other persons?’
Case T‑686/24
8.        On 27 April 2023, B, who had travelled from Poland, was subjected to a customs check at the German border by the customs authorities. B declared that he was carrying two cartons of cigarettes and one carton of heated tobacco (Heets) bearing Polish tax stamps. In particular, B stated that the two cartons of cigarettes were intended for his personal use, whereas the heated tobacco was intended for his daughter. The carton of heated tobacco (Heets) was seized by the customs authorities and a tobacco tax of EUR 28.63 was levied on B.
9.        In the proceedings before the referring court, B contested the measures taken against him. According to the tax authority, the cigarettes are not exempt from the payment of excise duty. Specifically, since B intended to give the carton of Heets to his daughter as a gift, it could not be considered, under Paragraph 39 of the TabStV, as being brought into Germany for B’s ‘own use’.
10.      In those circumstances, the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must Article 32 of [Directive 2020/262] be interpreted as precluding a national interpretation according to which “own use” is excluded, irrespective of the quantity transported, in the event of the acquisition of tobacco products for the purpose of passing them on to another person, even if the passing on is done free of charge?
(2)      If the first question is answered in the affirmative, must Article 32 of [Directive 2020/262] be interpreted as meaning that the concept of “own use”, taking into account the other criteria, in particular the quantity criterion, includes gifts to close relatives but not gifts to other persons?’
11.      The German and Swedish Governments and the Commission submitted observations in the proceedings before the General Court.
Analysis
The first question
12.      By its first question, the referring court asks, in essence, whether Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 preclude national legislation according to which the concept of ‘own use’ does not include the acquisition of manufactured tobacco products by a private individual in one Member State with a view to passing them on free of charge to a third party in another Member State, irrespective of the quantity of products intended to be passed on.
Preliminary observations
13.      In order to interpret Article 32 of Directives 2008/118 and 2020/262 for the purpose of answering the first question, several preliminary observations are required.
14.      In the first place, having regard to the particulars of the orders for reference, in terms of timing, Directive 2008/118 is applicable to the circumstances of Case T‑685/24, the events of which took place in August 2022. (2) Directive 2020/262, meanwhile, is applicable to the circumstances of Case T‑686/24, the events of which took place in April 2023. (3) Article 32 of Directive 2020/262, although it does not use exactly the same wording, corresponds, in essence, to Article 32 of Directive 2008/118. (4) Similarly, the relevant provisions of those two directives for the interpretation of the concept of ‘own use’, as well as the objectives pursued by those directives, are substantially similar. Therefore, the two cases may be dealt with jointly.
15.      In the second place, the cases in the main proceedings concern manufactured tobacco products, (5) which are ‘excise goods’ under Article 1(1)(c) of Directives 2008/118 and 2020/262. (6) In the present case, tobacco products released for consumption in one Member State were acquired in that Member State and moved to the territory of another Member State. It follows that the circumstances of the cases in the main proceedings are covered by the provisions of Chapter
V of Directive 2008/118, entitled ‘Movement and taxation of excise goods after release for consumption’, and Chapter
V of Directive 2020/262, also entitled ‘Movement and taxation of excise goods after release for consumption’. In each directive, the chapter in question provides for three separate arrangements: arrangements for acquisition by a private individual, arrangements applicable to goods delivered or held for commercial purposes, and arrangements for distance selling.
16.      Under the arrangements for acquisition by a private individual, excise duty is paid in the Member State of acquisition of the excise goods. To qualify for those arrangements, Article 32(1) of Directives 2008/118 and 2020/262 requires three conditions to be met. First, the excise goods must be acquired by a private individual; second, those goods must be transported from one Member State to another by that private individual; and third, the goods must be acquired for the private individual’s ‘own use’. According to the case-law, those three conditions, which had already been laid down in Article 8 of Directive 92/12/EEC, (7) must make it possible to establish that goods on which duty is chargeable and which are acquired in one State and then transported to another are held for strictly personal purposes. (8)
17.      In the present case, the referring court observes that it is common ground that the first two conditions are met. It thus remains to be established whether the third condition – namely the requirement for the ‘own use’ of the private individual who acquired the excise goods – is also satisfied. This characterisation of goods acquired for ‘own use’ is essential since goods acquired by a private individual for purposes other than own use fall under the arrangements applicable to holding for commercial purposes provided for in Directive 2008/118 or delivery for commercial purposes provided for in Directive 2020/262. (9) According to the first subparagraph of Article 33(1) of Directives 2008/118 and 2020/262, excise goods subject to the arrangements for holding or delivery for commercial purposes are subject to the excise duty of the Member State of destination when they are held or delivered for commercial purposes.
18.      In the third place, in the case which gave rise to the judgment in
Joustra, in interpreting the provisions on the arrangements for acquisition by a private individual, the Court of Justice held that the condition relating to the ‘own use’ of the private individual requires that ‘the products be intended for the personal use of the private individual who has acquired them and that it therefore excludes products acquired by a private individual for the use of other private individuals’. (10) It is important to point out that that interpretation had been made in circumstances in which a private individual had acquired a large quantity of excise goods (wine) (11) in a Member State for his own use and for the use of third parties; the part not intended for his own use was paid for by those third parties.
19.      The circumstances in the judgment in
Joustra differ significantly from the cases in the main proceedings, in which acquisitions were made by a private individual with a view to passing them on free of charge to family members and in which the quantities of tobacco products moved from one Member State to another do not exceed the guide levels provided for in Article 32(3)(a) of Directives 2008/118 and 2020/262. Thus, by its first question, the referring court seeks to ascertain whether the interpretation of the concept of ‘own use’ of the private individual adopted by the Court in the judgment in
Joustra should also be applied in the cases before it.
20.      In order to answer the referring court’s question, it is first necessary to determine whether the concept of ‘own use’ within the meaning of Article 32(1) of Directives 2008/118 and 2020/262 constitutes an autonomous concept of EU law which must be interpreted uniformly throughout all of the Member States.
The concept of ‘own use’: an autonomous concept of EU law
21.      In the case which gave rise to the judgment in EMU Tabac, the Court of Justice held that the text of Article 8 of Directive 92/12 did not contain any express reference to national legal systems. (12) Therefore, the concepts contained in that provision, namely the concepts of ‘private individuals’, ‘own use’ and ‘transport by them’, constituted autonomous concepts of EU law which, in the absence of an express reference to the law of the Member States for the purpose of determining their meaning and scope, must normally be given an autonomous and uniform interpretation throughout the European Union. (13)
22.      It should be noted that the wording of Article 32(1) of Directives 2008/118 and 2020/262 is, in essence, similar to that of Article 8 of Directive 92/12. Granted, in Directives 2008/118 and 2020/262, the legislature added a second paragraph to Article 32, which was not found in Article 8 of Directive 92/12. According to Article 32(2) of Directives 2008/118 and 2020/262, to determine whether the excise goods referred to in paragraph 1 are intended for the own use of a private individual, Member States must take account at least of the items referred to in Article 32(2)(a) to (e) of Directives 2008/118 and 2020/262. However, the addition of paragraph 2 cannot be considered an express reference to national law such as to prevent the General Court from giving, under Article 32(1) of Directives 2008/118 and 2020/262, an autonomous and uniform definition under EU law. Indeed, Article 32(2) of those directives does not provide that the concept of ‘own use’ is to be determined in accordance with the national legislation of the Member States. That provision only lays down a non-exhaustive list of criteria that Member States must take into account in order to assess whether the acquisition of excise goods falls within the concept of ‘own use’, which is an autonomous concept of EU law.
23.      Evidently, Member States have a certain margin of discretion in determining whether excise goods are intended for the own use of a private individual when applying the criterion provided for in Article 32(2)(e) of Directives 2008/118 and 2020/262 relating to the quantity of excise goods. Indeed, in implementing that quantitative criterion, Article 32(3) provides that Member States may lay down guide levels, solely as a form of evidence, it being specified that, for tobacco products, those levels may not be lower than 800
items for cigarettes and 1.0
kg for smoking tobacco. Given the flexibility allowed by Directives 2008/118 and 2020/262, it follows that the characterisation of an acquisition intended for the own use of a private individual is likely to vary from one Member State to another.
24.      Nevertheless, since Article 32(1) of Directives 2008/118 and 2020/262 contain no express reference to the law of the Member States to determine its meaning and scope, the interpretation of the concept of ‘own use’, as such, cannot vary from one Member State to another. For example, if Member States had a margin of discretion in determining whether or not the acquisition of excise goods by a private individual in one Member State with a view to passing them on free of charge to third parties in another Member State constitutes an acquisition by a private individual for his or her ‘own use’, there would be a risk of divergence in the implementation of that concept that could undermine the requirement for the uniform application of EU law.
Interpretation of the concept of ‘own use’
25.      According to settled case-law, the interpretation of a provision of EU law requires that account be taken not only of its wording and the objectives it pursues, but also of its context, and the provisions of EU law as a whole, since the origins of such a provision may also provide information relevant to its interpretation. (14)
–       Literal interpretation
26.      Some language versions of Article 32(1) of Directives 2008/118 and 2020/262, including the English- (‘own use’), Italian- (‘uso personale’), Spanish- (‘uso propio’), Portuguese- (‘uso pessoal’), Slovenian- (‘lastno uporabo’) and Croatian- (‘vlastitu uporabu’) language versions, imply that the excise goods must be used in a personal capacity by the private individual who acquires them.
27.      Other language versions suggest that the excise goods may be used by a person other than the private individual who acquired them. This is particularly the case for the French- (‘besoins propres’), German- (‘Eigenbedarf’) and Dutch- (‘eigen behoeften’) language versions. To a certain extent, those expressions could mean that ‘own use’ includes certain acquisitions of goods made with a view to passing them on to a third party free of charge.
28.      Thus, the wording of Article 32(1) of Directives 2008/118 and 2020/262 does not make it possible to determine unequivocally whether the concept of ‘own use’ necessarily requires the use of tobacco products by the private individual who acquired them in another Member State.
–       Contextual interpretation
29.      It is necessary to determine whether the context in which the concept of ‘own use’ arises can provide guidance as to whether that concept should be interpreted as including tobacco products acquired by a private individual to be passed on to a third party free of charge.
30.      Where products already released for consumption in one Member State are moved to another Member State, Chapter
V of Directives 2008/118 and 2020/262 provides for three separate arrangements: those applicable to the acquisition by a private individual provided for in Article 32 of Directives 2008/118 and 2020/262, those applicable to the holding or delivery for commercial purposes provided for in Articles 33 and 34 of Directive 2008/118 and Articles 32 to 43 of Directive 2020/262, and those applicable to distance selling provided for in Article 36 of Directive 2008/118 and Article 44 of Directive 2020/262.
31.      On the one hand, the arrangements for holding or delivery for commercial purposes do not apply when the excise goods fall under the arrangements for distance selling.
32.      On the other hand, as regards the relationship between the arrangements for the acquisition by a private individual and the arrangements for holding for commercial purposes, provided for in Directive 92/12, Advocate General Jacobs, in his Opinion in the case in
Joustra, found that ‘goods acquired for a private individual’s own use and goods held for commercial purposes are mutually exclusive categories’. (15) Similarly, in the case which gave rise to the judgment in Metro Cash & Carry Danmark, the Court of Justice recalled that ‘products which are not held for private purposes must necessarily be regarded as being held for commercial purposes’. (16) That relationship of mutual exclusion between the arrangements for acquisition by a private individual and the arrangements for holding or delivery for commercial purposes is also apparent from the way in which the legislation has developed. According to the second subparagraph of Article 33(1) of Directive 2008/118 and Article 33(2) of Directive 2020/262, the arrangements for holding or delivery for commercial purposes do not apply when the excise goods fall under the arrangements for acquisition by a private individual provided for in Article 32(1) of those directives. Thus, when the goods are acquired by a private individual in a Member State, all goods that are not acquired for his or her ‘own use’ fall under the arrangements for holding or delivery for commercial purposes. The fact that those arrangements refer to commercial purposes does not mean that the passing on by a private individual of excise goods to a third party free of charge would automatically be excluded from the arrangements for holding or delivery for commercial purposes. Indeed, it is only if the passing on to a third party free of charge was regarded as a situation falling under the purchaser’s ‘own use’ that the arrangements for holding or delivery for commercial purposes would not apply.
33.      In that regard, to determine whether the concept of ‘own use’ includes the acquisition by a private individual of excise goods intended to be passed on free of charge to a third party, for the purpose of the contextual interpretation, it seems that no unequivocal conclusion may be drawn on the scope of that concept from the examination of the criteria provided for in Article 32(2) of Directives 2008/112 and 2020/262. Of those criteria – which Member States must use to establish whether excise goods are intended for the ‘own use’ of a private individual – the criteria provided for in Article 32(2)(a) to (d), owing to their general and imprecise nature, do not permit an unequivocal assessment of whether that concept would include a private individual passing on such goods to a third party free of charge. Similarly, as regards the guide levels mentioned in Article 32(3) of those directives, (17) there is no evidence that those levels – which, moreover, are relatively high – take into account the strictly personal use of those goods by the purchaser, or whether they are the levels above which there is a risk that the purchaser will pass those goods on to a third party for consideration.
34.      Since the contextual interpretation is inconclusive, I will examine the origin and development of the arrangements for acquisition by a private individual.
–       Origin and development of the arrangements for acquisition by a private individual
35.      As a preliminary point, it may be noted that, in its proposal that led to the adoption of Directive 92/12, the Commission did not propose the introduction of the arrangements for acquisition by a private individual. (18) In fact, owing to the lack of proper harmonisation of excise rates, the Member States had requested the inclusion of those arrangements in Article 8 of the directive in order to make the movement of excise goods subject to compliance with the three conditions mentioned in point 16
of the present Opinion. (19)
36.      It is clear from the preparatory work for Directives 2008/118 (20) and 2020/262 that, owing to the lack of harmonisation of excise rates, the system of acquisition by a private individual was a major source of concern for the Member States, especially those applying higher rates of excise duty than the rates applied in neighbouring Member States. (21)
37.      In its 2008 proposal, the Commission put forward several major changes to the arrangements for acquisition by a private individual. (22) Although some Member States were keen to adopt a narrow interpretation of the principle of free movement of goods acquired by individuals, (23) the Commission proposed that all excise goods could be sent by one private individual to another private individual without direct or indirect consideration. It therefore follows from that proposal that the Commission was inclined to interpret the concept of ‘own use’ as including purchases made by a private individual with a view to passing them on to a third party free of charge. The Commission also suggested that excise goods, other than tobacco products, could be acquired by a private individual on behalf of another private individual. Furthermore, it suggested removing the option for Member States to apply guide levels. It should be noted that none of the proposals intended to alter the arrangements for acquisition by private individuals were adopted by the legislature in Directive 2008/118. It is possible that, since some Member States were keen to adopt a strict interpretation of those arrangements, the legislature was unwilling to endorse the Commission’s approach whereby the passing on of products free of charge among private individuals might be covered by the concept of ‘own use’.
38.      With regard to the arrangements for the acquisition by a private individual, in the procedure for the adoption of Directive 2020/262, the Commission merely made editorial changes, (24) most of which were adopted by the legislature. It may be noted that, in the procedure leading to the adoption of Directive 2020/262, the Commission opted for a position diametrically opposed to its 2008 proposal, since it considered that the concept of ‘own use’ referred solely to the personal consumption of the purchaser, thus excluding gifts intended for other persons. (25) Thus, although the Commission’s position has evolved over time, it seems that the legislature’s position has remained consistent with regard to the arrangements for the acquisition by a private individual, given that this has not been substantially altered since Directive 92/12.
–       Teleological interpretation
39.      Directives 2008/118 and 2020/262 are intended to establish harmonised general rules for excise duties in order to ensure free movement of the goods concerned and the proper functioning of the internal market. (26) As regards the arrangements for acquisition by private individuals, it is clear from recital 27 of Directive 2008/118 and from recital 40 of Directive 2020/262 that these are intended to implement the principle governing the internal market. In that respect, it should be recalled that, as explained in point 35
of the present Opinion, those arrangements were introduced by the legislature in Directive 92/12 owing to the lack of proper harmonisation of the rates of excise duty, so as to make the movement of excise goods subject to compliance with the three conditions provided for in Article 8 of that directive, reproduced in Article 32(1) of Directives 2008/118 and 2020/262.
40.      When it comes to Directive 2008/118, it is apparent from the case-law that the objectives pursued by that directive include combating fraud, tax avoidance and possible abuse. (27) This is also one of the objectives of Directive 2020/262, especially since it is clear from recital 41 of that directive that, because of the continued divergences, which in some cases are significant, between excise duty levels for tobacco products, inter alia, applied by Member States, the Member States should be able to contain risks which are facilitating tax fraud, avoidance or abuse, threatening or undermining public policy or protection of health and life of humans.
41.      As regards tobacco products more specifically, Article 1(1)(c) of Directives 2008/118 and 2020/262 refers to manufactured tobacco products covered by Directive 2011/64. (28) Recital 2 of that directive clearly states that the European Union’s fiscal legislation on tobacco products needs to ensure the proper functioning of the internal market and, at the same time, a high level of protection of human health, as provided for in Article 168 TFEU. Therefore, I am of the opinion that, as Directives 2008/118 and 2020/262 concern tobacco products, they should be regarded as part of the tax legislation applicable to tobacco.
42.      Therefore, the concept of ‘own use’ should be interpreted in the light of the objectives of combating fraud, tax avoidance and possible abuse, as well as of protecting human health.
43.      In the first place, a broad interpretation of the concept of ‘own use’, which would allow a private individual to acquire tobacco products in a Member State applying low rates of excise duty on those products (Member State of acquisition), for the purpose of subsequently passing them on free of charge to a third party residing in another Member State applying higher rates of excise duty (Member State of destination), is likely to encourage tax avoidance, fraud and abuse.
44.      In that regard, the Court of Justice has held that the cigarette market particularly lends itself to the development of unlawful trade. (29) The possibility of benefiting from the arrangements provided for in Article 32(1) of Directives 2008/118 and 2020/262 purely on the basis that the private individual who acquired the tobacco products claims that those products are intended to be passed on free of charge to a third party in the Member State of destination, poses a risk not only of tax avoidance or tax fraud, but also of tax abuse.
45.      On the one hand, particularly for tobacco products that are passed on by a private individual to a third party who is not his or her spouse or a dependent family member, there is a significant risk that direct or indirect consideration will be received for passing on those products. In view of the large quantities of tobacco moved by private individuals from Member States of acquisition applying low rates of excise duty to Member States of destination applying higher rates of excise duty, (30) as the German Government notes in its observations, national authorities are unable to monitor financial flows between the purchasers and recipients of tobacco products. The acquisition by a private individual of tobacco products in a Member State for which he or she receives direct or indirect consideration from a third party in another Member State to whom those products were passed on breaches the conditions laid down in Article 32(1) of Directives 2008/118 and 2020/262, regardless of the quantity of tobacco products passed on. Indeed, such a practice, which can be likened to an acquisition by a private individual of tobacco products ‘on behalf’ of another individual, infringes both the requirement for an acquisition to be for ‘own use’ and the requirement for the products to be transported by the private individual. Such a practice thus amounts to tax avoidance or tax fraud.
46.      On the other hand, it is reasonable to assume that a private individual might pass on tobacco products free of charge to his or her spouse or a dependent family member. However, if their use by the private individual’s spouse and dependent family members were considered part of the individual’s ‘own use’, there would be a significant risk of tax abuse. Indeed, a private individual could rely on such an interpretation to justify the right to move from one Member State to another quantities of cigarettes significantly exceeding the guide levels provided for in Article 32(3) of Directives 2008/118 and 2020/262. The risk of tax abuse is aggravated by the fact that those guide levels are not time limited. Consequently, a private individual with a spouse and two dependent direct descendants could, over a period of several days, move from one Member State to another no fewer than 3 200 cigarettes for his or her ‘own use’. (31) In such a case, assuming that the private individual acquiring the cigarettes is a smoker, he or she could acquire no fewer than 2 400 cigarettes in the Member State of acquisition for use by others in the Member State of destination. Such a practice, given the quantity of tobacco moved from one Member State to another, would be unlawful. Moreover, since it is not possible for the national authorities to ascertain whether the products were actually passed on free of charge to the private individual’s spouse or dependent family member, the risk of tax fraud likewise cannot be ruled out.
47.      Furthermore, private individuals using the arrangements provided for in Article 32(1) of Directives 2008/118 and 2020/262 are not subject to any particular formality when doing so. In a recent study for the Commission, given the limited risk of private individuals being checked while travelling, it was found that those arrangements were being abused, particularly with regard to the quantities of tobacco moved by private individuals from Member States of acquisition applying low rates of excise duty to Member States of destination applying higher rates. (32) Although the estimated quantities are approximate, several figures from the study are worth mentioning. (33) In Germany, for example, purchases made by private individuals in other Member States were estimated, in 2023, at 10.5
billion cigarettes and 4 000 tonnes of fine-cut tobacco. This is equivalent to around 15.9% of domestic cigarette consumption and 16% of domestic consumption of fine-cut tobacco, representing a loss of excise and value added tax (VAT) revenues of approximately EUR 2.8
billion. Similarly, with around 23.4% of domestic cigarette consumption and 65% of domestic consumption of fine-cut tobacco coming from purchases made by private individuals in other Member States, France lost an estimated EUR 4.5
billion in excise and VAT revenues in 2023. In the same year, flows of cigarettes from other Member States represented around 28.6% of domestic consumption in Finland, around 24.8% in the Netherlands, around 23.5% in Denmark and around 22.7% in Ireland, giving rise to a substantial loss of revenue for those Member States.
48.      Therefore, in the light of the objective of combating tax avoidance and tax fraud or abuse, the concept of ‘own use’ cannot, in my view, include the acquisition of tobacco products in a Member State by a private individual with a view to passing them on free of charge to a third party, irrespective of the quantity of tobacco acquired.
49.      In the second place, it should be recalled that, according to the case-law, the objective of the protection of health takes precedence over economic considerations, the importance of that objective being such as to justify even substantial negative economic consequences. (34) As regards the risks to human health arising from tobacco consumption, the Court of Justice has already held that exposure to tobacco smoke is a cause of death, disease and disability. (35) The Court has further held that, as regards tobacco products, fiscal legislation is an important and effective instrument for discouraging consumption of those products and, therefore, for the protection of public health. (36)
50.      Still, a broad interpretation of the concept of ‘own use’ which goes beyond the strictly personal use of tobacco products by a private individual, who acquired them in a Member State of acquisition applying low rates of excise duty and transported them to a Member State of destination applying higher rates of excise duty, poses a significant risk to the effectiveness of the tax policy relating to tobacco products of the Member State of destination and thus its policy of protecting public health.
51.      In particular, when a private individual frequently travels to a Member State of acquisition applying low rates of excise duty on tobacco products and makes regular purchases there in quantities below the guide levels for those products, not for strictly personal use, but, for example, for the use of his or her spouse residing in a Member State applying higher rates of excise duty, the passing on of those products free of charge to that spouse undermines the fiscal policy of the Member State of destination. The effect of that practice is that the spouse of the private individual regularly using products from the Member State of acquisition is not encouraged by the tobacco prices in the Member State of destination to cut down on the consumption of those products or to quit altogether.
52.      Accordingly, in the light of the objective of protecting human health, the concept of ‘own use’ cannot be interpreted as including acquisitions of tobacco products made in a Member State by a private individual with a view to passing them on to a third party free of charge, regardless of the quantity intended to be passed on.
53.      It follows from the foregoing considerations that the concept of ‘own use’ must be interpreted as meaning that such use is limited to acquisitions of tobacco products for the strictly personal use of the purchaser, since those products cannot be passed on to a third party, regardless of the quantity of tobacco products intended to be passed on.
54.      Admittedly, as the referring court points out, in the case which gave rise to the judgment in Hauptzollamt B (Sturgeon caviar), (37) the Court of Justice interpreted the concept of ‘personal or household item’ within the meaning of Article 2(j) of Regulation No 338/97 (38) as including products intended to be offered as a gift to a third party, provided that there is no evidence of a commercial purpose. However, the objective of that regulation is not to combat fraud, tax avoidance and possible abuse, nor is it to protect human health, unlike Directives 2008/118 and 2020/262.
55.      Thus, when a private individual declares, during a check carried out by the national authorities, that he or she has acquired tobacco products in one Member State with a view to passing them on to a third party free of charge in another Member State, that recognition by the private individual that those acquisitions, regardless of their quantity, are not intended for strictly personal use is sufficient for those authorities to refuse the application of Article 32(1) of Directives 2008/118 and 2020/262.
56.      As the legislation currently stands, the interpretation of the concept of ‘own use’ within the meaning of Article 32(1) of Directives 2008/118 and 2020/262 is also intended to apply to the alcoholic beverages referred to in Article 1(1)(b) of those directives. As the Swedish Government notes in its observations, that interpretation of the concept of ‘own use’ has the effect of preventing a private individual from offering as a gift bottles of alcoholic beverages acquired in a Member State other than that in which they are intended to be offered if he or she does not use the arrangements for distance selling or the procedure required for the arrangements for delivery for commercial purposes of Directive 2020/262. In that respect, however, it is sufficient to note that, if Article 32(1) of Directive 2020/262 failed to address that point, it would be for the EU legislature, where appropriate, to remedy the shortcoming by adopting the necessary measures to amend that provision in order to expressly provide for the possibility of using the system of acquisition by a private individual to offer bottles of wine as gifts. Such a possibility seems conceivable given that, having regard, inter alia, to the effects on human health, EU legislation on alcoholic beverages is less stringent than that applicable to tobacco products. (39)
57.      Having regard to all of the foregoing, the answer to the first question must be that Article 32(1) of Directives 2008/118 and 2020/262 does not preclude national legislation according to which the concept of ‘own use’ does not include the acquisition of tobacco products by a private individual in one Member State with a view to passing them on to a third party free of charge in another Member State, irrespective of the quantity of those products intended to be passed on.
The second question
58.      In view of the answer that I propose to give to the first question, there is no need, in my opinion, to answer the second question.
Conclusion
59.      In light of the foregoing, I propose that the General Court answer the questions referred by the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg, Germany) for a preliminary ruling as follows:
(1)      Article 32(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, and Article 32(1) of Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty
must be interpreted as not precluding national legislation according to which the concept of ‘own use’ does not include the acquisition of manufactured tobacco products by a private individual in one Member State with a view to passing them on to a third party free of charge in another Member State, irrespective of the quantity of those products intended to be passed on.
(2)      There is no need to answer the second question referred for a preliminary ruling.
Ms Brkan
Delivered in open court in Luxembourg on
4 February 2026.
[Signatures]
1      Original language: French.
i      The names of the present cases are fictitious names. They do not correspond to the real names of any of the parties to the proceedings.
2      Article 47 of Directive 2008/118 repealed Directive 92/12/EEC with effect from 1 April 2010.
3      Article 56 of Directive 2020/262 repealed Directive 2008/118 with effect from 13 February 2023.
4      There are two minor differences between Articles 32 of Directives 2008/118 and 2020/262. The expression ‘by him’ in the 2008 directive is replaced by the expression ‘by this private individual’ in the 2020 directive. The word order in Article 32(3) is also inverted.
5      In this Opinion, when the expression ‘tobacco products’ is used, it means ‘manufactured tobacco products’ as defined in Article 2 of Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (OJ 2011 L 176, p. 24).
6      The products at issue in Case T‑686/24 are pieces of ‘heated tobacco’. In the case which gave rise to the judgment in
f6 Cigarettenfabrik, the Court of Justice held, subject to the checks which it is for the national court to carry out, that such tobacco products fell within the scope of Directive 2008/118 as ‘smoking tobacco’ within the meaning of Article 5 of Directive 2011/64 (judgment of 14 March 2024, f6 Cigarettenfabrik,
C‑336/22, EU:C:2024:226, paragraphs 29 to 34).
7      The Court of Justice has held that Articles 32 to 34 of Directive 2008/118 do not substantially amend Articles 7 to 9 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 (OJ 1992 L 76, p. 1), but reproduce the content of those articles while clarifying them (see, to that effect, judgment of 18 July 2013, Metro Cash & Carry Danmark,
C‑315/12, EU:C:2013:503, paragraph 42), such that the case-law relating to Directive 92/12 is also applicable to Directive 2008/118 (judgment of 9 June 2022, IMPERIAL TOBACCO BULGARIA,
C‑55/21, EU:C:2022:459, paragraph 37).
8      Judgments of 2 April 1998, EMU Tabac and Others (C‑296/95, EU:C:1998:152, paragraph 26), and of 23 November 2006, Joustra (C‑5/05, EU:C:2006:733, paragraph 33).
9      On the relationship between the arrangements for the acquisition by a private individual and the arrangements for holding or delivery for commercial purposes, see point 32
of the present Opinion.
10      Judgment of 23 November 2006, Joustra (C‑5/05, EU:C:2006:733, paragraph 35).
11      The total quantity of wine acquired by the private individual in the judgment in
Joustra significantly exceeded the guide levels provided for in the second subparagraph of Article 9(2) of Directive 92/12.
12      Judgment of 2 April 1998, EMU Tabac and Others (C‑296/95, EU:C:1998:152, paragraph 30).
13      See, to that effect, judgment of 7 August 2018, Bichat and Others (C‑61/17, C‑62/17 and C‑72/17, EU:C:2018:653, paragraph 29 and the case-law cited).
14      Judgments of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 47), and of 11 November 2025, Denmark v Parliament and Council (Adequate minimum wages) (C‑19/23, EU:C:2025:865, paragraph 106).
15      Opinion of Advocate General Jacobs in Joustra (C‑5/05, EU:C:2005:737, paragraph 62).
16      Judgment of 18 July 2013, Metro Cash & Carry Danmark (C‑315/12, EU:C:2013:503, paragraph 45).
17      The guide levels in Article 32(3) of Directives 2008/118 and 2020/262 are intended to implement the criterion regarding the quantity of excise goods, provided for in Article 32(2)(e). These are levels at which Member States may make a rebuttable presumption that goods acquired by a private individual are not intended for his or her ‘own use’.
18      Proposal for a Council directive on the general arrangements for products subject to excise duty and on the holding and movement of such products (COM(90) 431 final) (OJ 1990 C 322, p. 1).
19      See, to that effect, Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Articles 7 to 10 of Directive 92/12/EEC, of 2 April 2004, COM(2004) 227 final, accompanied by a proposal to amend Directive 92/12 (‘the 2004 Commission report’), especially paragraph 3.4.2.
20      As regards the movement of excise goods after release for consumption, the proposal for a directive concerning the general arrangements for excise duty of 26 February 2008, COM(2008) 78 final/2, (‘the 2008 Commission proposal’), especially p. 11, refers to the 2004 Commission report mentioned in footnote 19 of the present Opinion.
21      For the procedure leading to the adoption of Directive 2008/118, see inter alia, 2004 Commission report, especially paragraph 3.4.1.3. For the procedure leading to the adoption of Directive 2020/262, see, inter alia, General Secretariat of the Council, Document FISC
161, ECOFIN
279, IA
92, of 8 March 2019, paragraphs 6 to 8.
22      See 2008 Commission proposal, especially p. 33.
23      See 2004 Commission report, especially paragraph 3.4.2 under the heading ‘Non-commercial movements referred to at paragraph 3.4.1.2’.
24      Proposal for a Council Directive laying down the general arrangements for excise duty of 25 May 2018, COM(2018) 346 final, especially pp. 50 and 51.
25      The Commission’s position is set out in a statement annexed to the minutes of the Council meeting of 10 December 2019. However, it may be recalled that, according to the case-law, declarations made in the course of preparatory work leading to the adoption of a directive cannot be used for the purpose of interpreting that directive where no reference is made to the content of the declaration in the wording of the provision in question, and, moreover, such declarations have no legal significance (see, to that effect, judgment of 17 December 2020, WEG Tevesstraße,
C‑449/19, EU:C:2020:1038, paragraph 44).
26      See, to that effect and by analogy, judgment of 13 January 2022, MONO (C‑326/20, EU:C:2022:7, paragraph 28).
27      See, to that effect, judgments of 29 June 2017, Commission v Portugal (C‑126/15, EU:C:2017:504, paragraph 59); of 10 June 2021, Commissioners for Her Majesty’s Revenue and Customs (Innocent agent) (C‑279/19, EU:C:2021:473, paragraph 31); and of 9 June 2022, IMPERIAL TOBACCO BULGARIA (C‑55/21, EU:C:2022:459, paragraph 55).
28      Article 1(1)(c) of Directive 2008/118 refers to Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40), Council Directive 92/79/EEC of 19 October 1992 on the approximation of taxes on cigarettes (OJ 1992 L 316, p. 8) and Council Directive 92/80/EEC of 19 October 1992 on the approximation of taxes on manufactured tobacco other than cigarettes (OJ 1992 L 316, p. 10), which, in accordance with the first paragraph of Article 21 of Directive 2011/64, were repealed by that directive. The second paragraph of Article 21 of Directive 2011/64 states that references to the repealed directives are to be construed as references to Directive 2011/64.
29      Judgment of 13 December 2007, BATIG (C‑374/06, EU:C:2007:788, paragraph 34 and the case-law cited).
30      See point 47
of the present Opinion.
31      On the first day, for example, the private individual could move 800
cigarettes on the basis that they are for strictly personal use. Two days later, he or she could move an additional 800
cigarettes for the use of his spouse, followed a few days later by another 800
cigarettes for a first dependent child and, several days after that, a further 800
cigarettes for the use of his second dependent child.
32      European Commission, Directorate-General for Taxation and Customs Union, Study on the impact analysis of a review of tobacco taxation rules, update with recent market and regulatory developments: final report, Vol. 1, June 2025, especially pp. 20 and 21.
33      European Commission, Directorate-General for Taxation and Customs Union, Study on the impact analysis of a review of tobacco taxation rules, update with recent market and regulatory developments: final report, Vol. 2, June 2025, especially pp. 44 to 49. It is important to point out that the estimates in Volume 2 of the study confirm a trend previously observed in other studies mentioned on pages 22 to 26 of that volume.
34      See, to that effect, judgment of 24 February 2022, Agenzia delle dogane e dei monopoli and Ministero dell'Economia e delle Finanze (C‑452/20, EU:C:2022:111, paragraph 50 and the case-law cited).
35      See, to that effect, judgment of 4 May 2016, Philip Morris Brands and Others (C‑547/14, EU:C:2016:325, paragraph 152).
36      See, to that effect, judgment of 5 October 2006, Valeško (C‑140/05, EU:C:2006:647, paragraph 58), and of 29 June 2017, Commission v Portugal (C‑126/15, EU:C:2017:504, paragraph 67).
37      Judgment of 12 May 2021, Hauptzollamt B (Sturgeon caviar) (C‑87/20, EU:C:2021:382, paragraph 37).
38      Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1).
39      Council Directive 92/83/EEC of 19 October 1992 on the harmonization of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21) and Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (OJ 1992 L 316, p. 29), do not seem to expressly pursue the objective of the protection of human health. Evidence of the less stringent nature of the legislation on alcoholic beverages can be found in Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1). Indeed, while Article 9(1)(d) of that directive prohibits all forms of audiovisual commercial communications for cigarettes and other tobacco products, Article 9(1)(e) provides that such communications for alcoholic beverages must not be aimed specifically at minors and must not encourage immoderate consumption of such beverages.