Provisional text
JUDGMENT OF THE GENERAL COURT (Second Chamber, sitting with five Judges)
20 May 2026 (*)
( References for a preliminary ruling – Taxation – Excise duties – Article 32 of Directive 2008/118/EC – Article 32 of Directive (EU) 2020/262 – Concept of ‘own use’ – Acquisition and transport of goods by a private individual for the purpose of passing them on to another private individual free of charge )
In Joined Cases T‑685/24 [Jelgratz] i and T‑686/24 [Buchgint], (i)
TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg, Germany), made by decisions of 17 July 2024, received at the Court of Justice on 5 December 2024, in the proceedings
A (T‑685/24)
B (T‑686/24)
v
Hauptzollamt,
THE GENERAL COURT (Second Chamber, sitting with five Judges),
composed of S. Papasavvas, President, N. Półtorak, G. Hesse (Rapporteur), D. Petrlík and I. Dimitrakopoulos, Judges,
Advocate General: M. Brkan,
Registrar: V. Di Bucci,
having regard to the transmission of the requests for a preliminary ruling to the General Court by the Court of Justice on 6 January 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,
having regard to the fact that the case concerns the area referred to in point (b) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,
having regard to the written part of the procedure,
after considering the observations submitted on behalf of:
–        the German Government, by J. Möller and N. Scheffel, acting as Agents,
–        the Swedish Government, by H. Eklinder, F.‑L. Göransson, C. Meyer-Seitz and J. Olsson, acting as Agents,
–        the European Commission, by M. Björkland and B. Martenczuk, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 4 February 2026,
gives the following
Judgment
1        These 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        The requests have been made in separate proceedings between A and B, two private individuals, and the Hauptzollamt (Principal Customs Office, Germany) concerning the levying, on cigarettes in respect of A and on heated tobacco in respect of B, of German excise duties on tobacco products.
Legal framework
European Union law
Directive 2008/118
3        Recitals 8 and 31 of Directive 2008/118 stated:
‘(8)      Since it remains necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, it is necessary to make clear at Community level when excise goods are released for consumption and who the person liable to pay the excise duty is.
…
(31)      Member States should be able to provide that goods released for consumption carry tax markings or national identification marks. The use of these markings or marks should not place any obstacle in the way of intra-Community trade.
Since the use of these markings or marks should not give rise to a double taxation burden, it should be made clear that any amount paid or guaranteed to obtain such markings or marks is to be reimbursed, remitted or released by the Member State which issued the marks if excise duty has become chargeable and has been collected in another Member State.
However, in order to prevent any abuse, Member States which issued such markings or marks should be able to make reimbursement, remittance or release conditional on the presentation of evidence that they have been removed or destroyed.’
4        Article 7(1) of Directive 2008/118 provided:
‘Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.’
5        Article 11 of Directive 2008/118 provided:
‘… excise duty on excise goods which have been released for consumption may, at the request of a person concerned, be reimbursed or remitted by the competent authorities of the Member State where those goods were released for consumption in the situations fixed by the Member States and in accordance with the conditions that Member States shall lay down for the purpose of preventing any possible evasion or abuse.
…’
6        Under the heading ‘Movement and taxation of excise goods after release for consumption’, Chapter V of Directive 2008/118 contained Articles 32 to 38 thereof. Under Article 32, which appeared in Section 1, headed ‘Acquisition by private individuals’, of Chapter V of that directive:
‘1.      Excise duty on excise goods acquired by a private individual for his own use, and transported from one Member State to another by him, shall be charged only in the Member State in which the excise goods are acquired.
2.      To determine whether the excise goods referred to in paragraph 1 are intended for the own use of a private individual, Member States shall take account at least of the following:
(a)      the commercial status of the holder of the excise goods and his reasons for holding them;
(b)      the place where the excise goods are located or, if appropriate, the mode of transport used;
(c)      any document relating to the excise goods;
(d)      the nature of the excise goods;
(e)      the quantity of the excise goods.
3.      For the purposes of applying paragraph 2(e), Member States may lay down guide levels, solely as a form of evidence. These guide levels may not be lower than:
(a)      for tobacco products:
–        cigarettes: 800 items,
…’
7        Article 33, which appeared in Section 2, entitled ‘Holding in another Member State’, of Chapter V of Directive 2008/118, provided, inter alia:
‘1.      Without prejudice to Article 36(1), where excise goods which have already been released for consumption in one Member State are held for commercial purposes in another Member State in order to be delivered or used there, they shall be subject to excise duty and excise duty shall become chargeable in that other Member State.
For the purposes of this Article, “holding for commercial purposes” shall mean the holding of excise goods by a person other than a private individual or by a private individual for reasons other than his own use and transported by him, in accordance with Article 32.
…’
8        Article 34, which appeared in Section 2 of Chapter V of Directive 2008/118, provided:
‘1.      In the situations referred to in Article 33(1), excise goods 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 21(1).
…’
9        Under the first subparagraph of Article 39(3) of Directive 2008/118:
‘Without prejudice to any provisions they may lay down in order to ensure that this Article is implemented properly and to prevent any evasion, avoidance or abuse, Member States shall ensure that tax markings or national identification marks as set out in paragraph 1 do not create obstacles to the free movement of excise goods.’
10      Article 48(1) of Directive 2008/118 stated:
‘Member States shall adopt and publish, not later than 1 January 2010, the laws, regulations and administrative provisions necessary to comply with this Directive with effect from 1 April 2010. …
…’
Directive 2020/262
11      Directive 2008/118 was repealed, with effect from 13 February 2023, by Directive 2020/262. Recitals 7 and 41 of that directive state:
‘(7)      Since it remains necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, it is necessary to make clear at Union level when excise goods are released for consumption and who is liable to pay the excise duty.
…
(41)      Excise duty levels for tobacco products and alcoholic beverages applied by Member States vary due to a number of factors, such as fiscal and public health policy and such divergences in some cases are significant. In this context, 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. Therefore Member States should be able to take appropriate and proportionate measures enabling them to determine whether excise goods transported from the territory of one Member State to the territory of another Member State by a private individual were acquired by that private individual for his or her own use.’
12      Under Article 6(2) of Directive 2020/262:
‘Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.’
13      Under the heading ‘Movement and taxation of excise goods after release for consumption’, Chapter V of Directive 2020/262 contains Articles 32 to 46 thereof. Article 32 of that directive, which appears in Section 1, headed ‘Acquisition by private individuals’, of Chapter V, provides, inter alia:
‘1.      Excise duty on excise goods acquired by a private individual for his or her own use, and transported from the territory of one Member State to the territory of another Member State by this private individual, shall be charged only in the Member State in which the excise goods are acquired.
2.      To determine whether the excise goods referred to in paragraph 1 are intended for the own use of a private individual, Member States shall take account at least of the following:
(a)      the commercial status of the holder of the excise goods and the reasons for holding them;
(b)      the place where the excise goods are located or, if appropriate, the mode of transport used;
(c)      any document relating to the excise goods;
(d)      the nature of the excise goods;
(e)      the quantity of the excise goods.
3.      For the purposes of applying point (e) of paragraph 2, Member States may lay down guide levels, solely as a form of evidence. These guide levels may not be lower than:
(a)      for tobacco products:
–        cigarettes: 800 items,
…
–        smoking tobacco: 1.0 kg;
…’
14      Under Article 33, which appears in Section 2, headed ‘Procedure to be followed for movements of excise goods which have been released for consumption in the territory of one Member State and are moved to the territory of another Member State in order to be delivered there for commercial purposes’, of Chapter V of Directive 2020/262:
‘1.      Where excise goods that have been released for consumption in the territory of one Member State are moved to the territory of another Member State to be delivered there for commercial purposes or used there, they shall be subject to excise duty in the Member State of destination.
…
2.      For the purposes of this Article, excise goods shall be regarded as “delivered for commercial purposes” where they have been released for consumption in the territory of one Member State, have been moved from that Member State to the territory of another Member State and are delivered either to a person other than a private individual or to a private individual if the movement is not covered by Article 32 or Article 44. However, excise goods shall not be regarded as delivered for commercial purposes where they are transported by that private individual for his or her own use, when moved from the territory of the other Member State.
…’
15      Article 35, which appears in Section 2 of Chapter V of Directive 2020/262, provides:
‘1.      A movement of excise goods shall be considered to comply with the requirements under this Section only if it takes place under cover of an electronic simplified administrative document processed in accordance with Article 36.
…’
16      Article 54 of Directive 2020/262 provides:
‘Member States shall allow the receipt of excise goods under the formalities set out in Articles 33, 34 and 35 of Directive [2008/118] until 31 December 2023.
…’
17      Article 55(1) of Directive 2020/262 states:
‘Member States shall adopt and publish, by 31 December 2021, the laws, regulations and administrative provisions necessary to comply with Articles 2, 3, 6, 12, 16, 17, Articles 19 to 22, Articles 25 to 29, Articles 33 to 46, and Articles 54 and 55 and Article 57. They shall immediately communicate the text of those measures to the [European] Commission.
Subject to Article 54, they shall apply those measures as from 13 February 2023.
…’
18      Article 57 of Directive 2020/262 is worded as follows:
‘This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Articles 1, 4, 5, Articles 7 to 11, Articles 13 to 15, Articles 18, 23, 24, Articles 30 to 32, Articles 47 to 53, Article 56 and Article 58 shall apply from 13 February 2023.’
German law
Law on excise duty on tobacco (TabStG)
19      Under the first sentence of Paragraph 1(1) of the Tabaksteuergesetz (Law on excise duty on tobacco) of 15 July 2009 (BGBl. 2009 I, p. 1870; ‘the TabStG’), in the version of 10 August 2021, applicable from 1 July 2022:
‘Tobacco products, heated tobacco, water pipe tobacco and substitutes for tobacco products are subject to excise duty on tobacco in the fiscal territory.’
20      Paragraph 1(2a) of the TabStG, in the version of 10 August 2021, applicable from 1 January 2022, states that heated tobacco is smoking tobacco in individual portions, intended for consumption by inhalation of an aerosol or smoke produced in a device.
21      Paragraph 22 of the TabStG, in the version of 25 July 2014, applicable from 31 July 2014 to 12 February 2023, stated:
‘(1)      Tobacco products that a private individual acquires for his or her own use in other Member States where they have been released for consumption and transports into the fiscal territory himself or herself (for private purposes) are not subject to excise duty.
(2)      When assessing whether tobacco products are intended for own use in accordance with subparagraph 1, the following criteria must be taken into account:
1.      the commercial status of the holder of the products and the reasons for holding them;
2.      the place where the tobacco products are located or the mode of transport used;
3.      any documents relating to the tobacco products;
4.      quality or quantity of the tobacco products.
(3)      …
(4)      The Bundesministerium der Finanzen [(Federal Ministry of Finance, Germany)] is empowered, in order to secure tax revenue, to define, by regulation not requiring the assent of the Bundesrat [(Federal Council, Germany)], the quantity of tobacco products pursuant to subparagraph 1 for which there is a rebuttable presumption that they are not intended for a private individual’s own use.’
22      Paragraph 22 of the TabStG, in the version of 30 March 2021, applicable from 13 February 2023, provides:
‘(1)      Tobacco products that a private individual acquires for his or her own use in other Member States where they have been released for consumption and transports into the fiscal territory himself or herself (for private purposes) are not subject to excise duty.
(2)      When assessing whether tobacco products are intended for own use in accordance with subparagraph 1, the following criteria must be taken into account:
1.      the commercial status of the holder of the products and the reasons for holding them;
2.      the place where the tobacco products are located or the mode of transport used;
3.      any documents relating to the tobacco products;
4.      quality or quantity of the tobacco products.
(3)      The Bundesministerium der Finanzen [(Federal Ministry of Finance)] is empowered, in order to secure tax revenue, to define, by regulation not requiring the assent of the Bundesrat [(Federal Council)], the quantity of tobacco products pursuant to subparagraph 1 for which there is a rebuttable presumption that they are not intended for a private individual’s own use.’
23      Paragraph 23(1) of the TabStG, in the version of 15 July 2009, applicable from 1 April 2010 to 12 February 2023, provided:
‘If in cases other than those referred to in Paragraph 22(1) and in contravention of Paragraph 17(1) [of the TabStG] tobacco products are transported into or sent to the fiscal territory from another Member State in which they had been released for consumption (for commercial purposes), the excise duty is due upon first possession of the tobacco products for commercial purposes. The person liable for payment of excise duty is the person who supplies or holds the tobacco products and the recipient, as soon as he or she takes possession of them. …’
24      Paragraph 23f(1) of the TabStG, in the version of 30 March 2021, applicable from 13 February 2023, provides:
‘The excise duty arises subject to subparagraph 2
…
4.      if, in cases other than those referred to in Paragraph 22(1) and Paragraph 23(1) and in contravention of Paragraph 17(1) [of the TabStG], tobacco products are transported into or sent to the fiscal territory from another Member State in which they had been released for consumption: upon first possession in the fiscal territory; in all other cases: upon continued possession of tobacco products that have been released for consumption, if the excise duty has not yet been levied in the fiscal territory.’
Regulation on excise duty on tobacco (TabStV)
25      Paragraph 39 of the Tabaksteuerverordnung (Regulation on excise duty on tobacco) of 5 October 2009 (BGBl. 2009 I, p. 3262; ‘the TabStV’), in the version applicable from 1 July 2021 to 28 October 2022, provided:
‘(1)      If more than 800 cigarettes, … are transported into the fiscal territory for private purposes in accordance with Paragraph 22 of the [TabStG], there is a rebuttable presumption that the tobacco products are being transported into the fiscal territory for commercial purposes (Paragraph 23 of the [TabStG]).
(2)      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 [TabStG], regardless of the quantity transported.’
26      Under Paragraph 39 of the TabStV, in the version applicable, as regards subparagraph 1, from 13 February 2023 and, as regards subparagraph 2, from 1 July 2021:
‘(1)      If more than 800 cigarettes, 800 items of heated tobacco, 200 cigars, 400 cigarillos or 1 kilogramme of smoking tobacco are transported into the fiscal territory for private purposes in accordance with Paragraph 22 of the [TabStG], there is a rebuttable presumption that the tobacco products are being supplied into the fiscal territory for commercial purposes (Paragraphs 23 to 23c of the [TabStG]).
(2)      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 [TabStG], regardless of the quantity transported.’
The disputes in the main proceedings and the questions referred for a preliminary ruling
27      A and B, the applicants in the main proceedings, are two private individuals who were checked by German customs officials on their arrival from Poland while they were transporting tobacco products bearing the Polish tax mark.
28      A was checked on 6 August 2022 while he was transporting 800 cigarettes. He stated to the customs officials that he was not a smoker and that he was transporting those cigarettes for an acquaintance. The cigarettes in question were seized and A was required to pay German tobacco excise duty. He stated later, in the course of the complaint procedure, that he had acquired those cigarettes in order to give them as a gift to his father residing in Germany.
29      As regards B, he was checked on 27 April 2023 while he was transporting 400 cigarettes and 200 items of heated tobacco. When questioned by customs officials, he stated that the cigarettes were intended for his personal consumption, whereas the heated tobacco was intended for his daughter’s personal consumption. He was able to retain his cigarettes, on which no excise duty was levied. However, the heated tobacco intended for his daughter was confiscated and he was required to pay German tobacco excise duty.
30      In both cases, the Principal Customs Office took the view that such products were not exempt from German tobacco excise duty where a private individual purchased them and subsequently transported them into the fiscal territory with a view to offering them as gifts within that territory, in accordance with Paragraph 39(2) of the TabStV, applicable from 1 July 2021.
31      Following unsuccessful complaints, the applicants in the main proceedings each brought an action before the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg, Germany), which is the referring court, against their German tobacco excise duty assessments and the seizure of the products at issue.
32      In that context, the referring court asks whether there may be an acquisition of tobacco products for one’s own use for the purposes of Article 32 of Directive 2008/118, applicable to the facts of the dispute in the main proceedings in Case T‑685/24, and of Article 32 of Directive 2020/262, applicable to the facts of the dispute in the main proceedings in Case T‑686/24, where that tobacco was acquired by a private individual with a view to being given to another person, or whether it must be considered that any intention to pass on, even if the passing on is done free of charge, precludes it from being regarded as having been acquired by a private individual for his or her own use. In addition, the referring court has doubts as to what criteria are to be used to define such an acquisition as a gift should it be accepted that such a gift may amount to ‘own use’ within the meaning of those provisions. It asks, in that regard, whether the group of beneficiaries of such a gift may be limited in a standardised manner to a dependent group of close family members or whether gifts to other persons must also be included.
33      In those circumstances, the Finanzgericht Berlin-Brandenburg (Finance Court, Berlin-Brandenburg) decided, in Cases T‑685/24 and T‑686/24, 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 and 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 answer to Question 1 is in the affirmative,
Must [Article 32 of Directive 2008/118 and 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?’
Consideration of the questions referred
The first question
34      By its first question, the referring court asks, in essence, whether Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 must be interpreted as meaning that the concept of a private individual’s ‘own use’ referred to therein does not cover the situation in which the private individual concerned acquires and transports excise goods with a view to transferring them to another private individual free of charge, irrespective of the quantity of those goods.
35      As a preliminary point, it should be recalled, first, that, in accordance with Article 48(1) of Directive 2008/118 and Article 57 of Directive 2020/262, Article 32 of Directive 2008/118 was applicable from 1 April 2010 to 12 February 2023. It therefore applies ratione temporis to the facts of the dispute in the main proceedings in Case T‑685/24, given that the border check took place on 6 August 2022. Secondly, Article 32 of Directive 2020/262, which is applicable from 13 February 2023, governs ratione temporis the facts of the dispute in the main proceedings in Case T‑686/24, since the border check was carried out on 27 April 2023.
36      Furthermore, it should be borne in mind that, according to settled case-law, it follows from the requirements of the uniform application of EU law and of the principle of equal treatment that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (see, to that effect, judgment of 10 June 2021, Commissioners for Her Majesty’s Revenue and Customs (Innocent agent), C‑279/19, EU:C:2021:473, paragraph 23 and the case-law cited).
37      Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 contain no express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of ‘own use’. That term must therefore be regarded, for the purpose of applying those directives, as an autonomous concept of EU law that must be interpreted in a uniform manner throughout the Member States.
38      Although the wording of Article 32(1) of Directive 2020/262 is not entirely the same as that of Article 32(1) of Directive 2008/118, the content of those provisions is essentially identical.
39      Under those provisions, where excise goods have been acquired by a private individual for his or her own use, and transported by him or her from one Member State to another, excise duty is chargeable only in the Member State in which those goods were acquired.
40      Thus, for Article 32 of Directive 2008/118 or Article 32 of Directive 2020/262 to apply, three conditions must be satisfied: the products on which excise duty is chargeable must have been (i) acquired by a private individual (ii) for his or her own use and (iii) transported by that private individual himself or herself from one Member State to another (see, by analogy, judgment of 23 November 2006, Joustra, C‑5/05, EU:C:2006:733, paragraph 33 and the case-law cited). In the present case, the first question referred by the referring court concerns only the second of those conditions, the other two being, as is apparent from the requests for a preliminary ruling, satisfied.
41      It is necessary, when interpreting a provision of EU law, to take into account the wording of that provision in its context and the objective that it pursues (judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraph 34; see also, to that effect, judgment of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 28).
42      As regards, in the first place, the literal interpretation of the concept of ‘own use’, within the meaning of Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262, it should be noted that in some language versions of those provisions, such as the versions in Croatian (‘vlastitu uporabu’), English (‘own use’), Greek (‘diki tou chrisi’), Italian (‘uso personale’), Portuguese (‘uso pessoal’), Slovak (‘vlastné použitie’), Slovenian (‘lastno uporabo’) and Spanish (‘uso propio’), that expression clearly refers to personal or own use. By contrast, other language versions of those same provisions are not as clear, in that it cannot be entirely ruled out that they may contain a reference to certain acquisitions of goods made with a view to passing them on to a third party free of charge. That is the case, in particular, with the versions in Czech (‘vlastní potřebu’), Dutch (‘eigen behoeften’), French (‘besoins propres’) and, as indicated by the referring court, German (‘Eigenbedarf’).
43      Thus, the wording of Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 is not sufficient to dispel the ambiguity as to the interpretation to be given to those provisions. In that regard, it is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to its context and the objectives pursued by the rules of which it is part (see judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 37 and the case-law cited).
44      As regards, in the second place, the context of Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262, it must be borne in mind that those directives lay down rules on the holding, movement and monitoring of products subject to excise duty, in particular so as to ensure that chargeability of excise duty is identical in all the Member States (see, by analogy, judgment of 23 November 2006, Joustra, C‑5/05, EU:C:2006:733, paragraph 27 and the case-law cited).
45      In accordance with the objective of harmonising the time at which excise duty becomes chargeable, set out in recital 8 of Directive 2008/118 and recital 7 of Directive 2020/262, those directives provide, in Article 7(1) and Article 6(2) respectively, that excise duty is to become chargeable at the time, and in the Member State, of release for consumption.
46      However, notwithstanding those provisions, it cannot be ruled out that excise duty may subsequently be levied in another Member State. That is, moreover, the purpose of Chapter V of Directives 2008/118 and 2020/262, which governs the movement and taxation of excise goods after they have been released for consumption.
47      Since excise duty is a tax on consumption, the time at which it becomes chargeable must normally be very closely linked with the consumer (see, to that effect, judgment of 2 June 2016, Polihim-SS, C‑355/14, EU:C:2016:403, paragraphs 50 and 51). To that end, Article 33 of Directive 2008/118 and Article 33 of Directive 2020/262 provide, inter alia, that excise goods are to be subject to excise duty in the Member State of destination when they are released for consumption in the territory of one Member State and then moved to the territory of another Member State ‘to be … used there’.
48      By contrast, in the case of goods acquired and transported by a private individual for his or her own use, excise duty is paid in the Member State in which the excise goods were acquired, in accordance with Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262.
49      In the general scheme of Chapter V of those directives, Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 constitute exceptions to the general system of taxation laid down in Article 33 of those directives and must therefore be interpreted strictly. Such an interpretation is consistent with the language versions of those provisions that refer to the concept of personal or own use.
50      As regards, in the third place, the objectives pursued by Directives 2008/118 and 2020/262, it should be noted that, in the scheme of those directives, excise duties constitute a tax on consumption the levying of which by the Member States meets, inter alia, fiscal policy requirements, as well as requirements of the protection of public health, by limiting the consumption of products presenting health risks, such as tobacco or alcoholic beverages. Such concerns have given rise to divergences in the levels of taxation adopted by the various Member States. 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 (judgment of 13 January 2022, MONO, C‑326/20, EU:C:2022:7, paragraph 28).
51      As the Advocate General observes in point 40 of her Opinion, the objectives pursued by Directive 2008/118 include the fight against fraud, tax avoidance and possible abuse, as is apparent from recital 31, Article 11 and the first subparagraph of Article 39(3) of that directive (judgment of 9 June 2022, IMPERIAL TOBACCO BULGARIA, C‑55/21, EU:C:2022:459, paragraph 55). That is also one of the objectives pursued by Directive 2020/262. Recital 41 of that directive states in that regard that, due to persistent, sometimes significant, divergences between the levels of excise duties applied by Member States – in particular for tobacco products – Member States should be able to contain risks concerning tax fraud, avoidance or abuse, as well as risks threatening public policy or the protection of health and life of humans.
52      In order to achieve that objective, Member States must be able, as stated in recital 41 of Directive 2020/262, to contain those risks, by means, inter alia, of appropriate and proportionate measures enabling them to determine whether excise goods transported from one Member State to another by a private individual were acquired by the latter for his or her own use.
53      In that regard, although, in accordance with Article 34 of Directive 2008/118 and Article 35 of Directive 2020/262, the movement of excise goods for commercial purposes is subject to strict digital traceability by means of electronic administrative documents, the transport of those goods by a private individual is characterised by an exemption from all administrative formalities. In order to remedy that lack of documentary follow-up, Article 32(2) of Directive 2008/118 and Article 32(2) of Directive 2020/262 set out factors that the Member States are to take into account in determining whether excise goods acquired and transported by a private individual are intended for that private individual’s own use. Those factors include the quantity of goods transported (namely, for cigarettes, 800 items) and the reasons for holding them.
54      It follows that, in the context of unannounced checks based in particular on the indicative thresholds laid down in Directive 2008/118 and Directive 2020/262, there is, in view of the lack of documentary follow-up and the specific nature of internal border controls, a structural risk of tax evasion as a result of the misuse of the concept of ‘own use’.
55      That is confirmed by the recent study by the Commission referred to by the Advocate General in point 47 of her Opinion, according to which, given the limited risk of private individuals being checked while travelling, it was found that the arrangements provided for in Article 32(1) of Directive 2008/118 and Article 32(1) of Directive 2020/262 were being abused, in particular with regard to the quantities of tobacco moved by private individuals from Member States applying low rates of excise duty to Member States applying higher rates.
56      Therefore, a broad interpretation of the concept of ‘own use’, as covering the passing on of goods free of charge between private individuals, would present a substantial risk of tax avoidance, in so far as certain instances of passing on could give rise to consideration, whether direct or indirect, which the tax authorities would find impossible, or at least extremely difficult, to verify or detect. Thus, a broad definition of the concept of ‘own use’ would create an environment conducive to the circumvention of the arrangements provided for in Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262, thus undermining the objectives referred to in paragraph 51 above.
57      Conversely, a strict interpretation of the concept of ‘own use’, coupled with customs monitoring of the repeated transport of goods by a private individual, is likely to contribute effectively to the fight against tax avoidance. In such a situation, the customs authorities are in a position to combat fraud by relying in particular on the declarations of the private individual and by assessing whether the total quantities transported over a given period are compatible with what can reasonably be considered personal use.
58      Accordingly, the need to prevent and combat tax avoidance and fraudulent or abusive tax practices militates in favour of a strict interpretation of the concept of ‘own use’ laid down in Article 32(1) of Directive 2008/118 and Article 32(1) of Directive 2020/262 excluding, inter alia, the situation in which a private individual acquires and transports excise goods with a view to passing them on to another private individual free of charge, irrespective of the quantity of those goods intended to be passed on.
59      That is all the more so since a broad interpretation of the concept of ‘own use’, which would also cover the passing on to other individuals, would risk undermining the fiscal and public health policies of the Member States by allowing the end consumer to evade the tax burden intended to discourage the consumption of the goods concerned. As the Advocate General points out in point 49 of her Opinion, the Court of Justice has already held that, as regards tobacco products, excise duties were an important and effective instrument for discouraging consumption of those products and, therefore, for the protection of public health (see judgment of 29 June 2017, Commission v Portugal, C‑126/15, EU:C:2017:504, paragraph 67 and the case-law cited).
60      In those circumstances, the concept of ‘own use’ must be interpreted as being limited to the acquisition and transport of excise goods, such as tobacco products, intended for strictly personal use by the private individual who acquired them.
61      That interpretation cannot be called into question by the case-law of the Court of Justice, mentioned by the referring court, relating to the concept of ‘personal or household effects’ within the meaning of Article 7(3) of 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), as amended by Commission Regulation (EU) No 1320/2014 of 1 December 2014 (OJ 2014 L 361, p. 1).
62      In the judgment of 12 May 2021, Hauptzollamt B (Sturgeon caviar) (C‑87/20, EU:C:2021:382), the Court of Justice held that it was apparent both from the context of Regulation No 338/97 and from the objectives pursued by that regulation that a dead specimen, part of a specimen or a product derived therefrom, such as sturgeon caviar, could not be classified as a ‘personal or household effect’ where the importer was pursuing a commercial purpose, whereas that classification was allowed if the caviar was held on a personal basis and for non-commercial purposes, irrespective of whether or not it was intended for a third party.
63      However, the words ‘personal or household effects’ referred to in paragraph 61 above do not correspond to the expression ‘own use’, which appears in Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262. Furthermore, as the Advocate General observes in point 54 of her Opinion, Regulation No 338/97 does not pursue the objective of combating fraud, tax avoidance and possible abuse pursued by Directives 2008/118 and 2020/262, but is intended to ensure the fullest possible protection for species of wild fauna and flora through controls on trade in such species, in compliance with the objectives, principles and provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed in Washington, D.C. (United States) on 3 March 1973 (United Nations Treaty Series, Vol. 993,
No I‑14537) (judgment of 12 May 2021, Hauptzollamt B (Sturgeon caviar), C‑87/20, EU:C:2021:382, paragraph 34).
64      In the light of the foregoing, the answer to the first question is that Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 must be interpreted as meaning that the concept of a private individual’s ‘own use’ does not cover the situation in which the private individual concerned acquires and transports excise goods with a view to passing them on to another private individual free of charge, irrespective of the quantity of those goods intended to be passed on.
The second question
65      By its second question, the referring court asks, in essence, whether Article 32 of Directive 2008/118 and Article 32 of Directive 2020/262 must be interpreted as meaning that the concept of ‘own use’ applies to gifts to close relatives but not gifts to other persons.
66      However, since that question is raised only in the case where the first question is answered in the affirmative, there is no need to answer it.
Costs
67      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds,
THE GENERAL COURT (Second Chamber, sitting with five Judges)
hereby rules:
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 and Article 32 of Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty
must be interpreted as meaning that the concept of a private individual’s ‘own use’ does not cover the situation in which the private individual concerned acquires and transports excise goods with a view to passing them on to another private individual free of charge, irrespective of the quantity of those goods intended to be passed on.
Papasavvas
Półtorak
Hesse
Petrlík
Dimitrakopoulos
Delivered in open court in Luxembourg on 20 May 2026.
[Signatures]
*      Language of the case: German.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.