Opinion of Mr Advocate General Darmon delivered on 11 June 1991. - Commission of the European Communities v Kingdom of Denmark. - Council Directive 69/169/EEC - National legislation inconsistent therewith. - Case C-100/90.



European Court reports 1991 Page I-05089



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. By the present application under Article 169 of the EEC Treaty, the Commission seeks a declaration from the Court that, by extending to all types of fuel the quantitative limit of 10 litres laid down in Article 3(3) of Council Directive 69/169/EEC of 28 May 1969, (1) as amended by Council Directive 78/1033/EEC of 19 December 1978, (2) for the duty-free import of fuel in portable containers, the Kingdom of Denmark has failed to fulfil its obligations.

2. The Community system of exemptions at issue here should be briefly recalled. Directive 69/169 grants exemption from turnover tax and excise duty on imports of goods contained in travellers' personal luggage, provided that such imports are not commercial in character. That system relates to journeys by travellers both between the Member States, pursuant to Article 2 of the directive, and between non-member countries and the Community, pursuant to Article 1. Only the overall value of imported goods covered by the exemption varies according to whether or not the journeys concerned are confined to Community territory. In the case of travel between non-member countries and the Community, that amount is fixed at ECU 45, (3) whilst it is increased to ECU 390 (4) for travel within the Community, although Denmark is authorized to exclude from the exemption goods of a unit value exceeding ECU 340. (5) For travel both between the Member States themselves and between the Community and non-member countries, the directive laid down, for the purposes of obtaining the exemption, two essential conditions: the imports must not be commercial in character, as laid down in Article 3(2) of Directive 69/169, and the goods must form part of personal luggage.

3. Directive 78/1033, known as the Fourth Directive, clarified the concept of personal luggage. It added a third paragraph to Article 3 of Directive 69/169, which provides that "' Personal luggage' shall mean the whole of the luggage which a traveller is in a position to submit to the customs authorities upon his arrival, as well as luggage which he submits later to the same authorities".

4. Following that generic definition, the text provides further clarification, in the following terms: "The definition of 'personal luggage' shall not cover portable containers containing fuel. However, for each means of motor transport a quantity of fuel (the word used in the French version is 'carburante' ) not exceeding 10 litres shall be admitted duty-free in such a container, without prejudice to national provisions governing the possession and transport of fuel". (6)

5. The Commission accuses Denmark of interpreting that text as authorizing it to restrict the exemption to 10 litres in respect not only of motor fuel but also of any fuel contained in such portable containers.

6. It was, according to the Commission, following a steep increase in tax on domestic heating oil which took place in Denmark in 1986 that the Danish authorities made known their interpretation of the Order which implemented, in Danish law, the rule laid down by the directive. Article 4(3) of Order No 422 of 25 September 1985 on the exemption for travellers' luggage provided that "the exemption for importing fuels in portable containers shall be restricted to 10 litres for each motor vehicle", (7) the italicized word being a translation of the word "braendstof" used in the Order. The Danish Ministry of Finance thus took the view that that text had to be interpreted as applying to domestic heating oil and that "the said Order fully complied with the Community legislative provisions". (8) Order No 412 of 13 June 1989 has superseded that Order but the provision at issue here has remained unaltered. (9)

7. Denmark still considers that its interpretation of that text complies with the directive, since the Danish version of the latter uses the word "braendstof", which, as normally used, refers to all inflammable liquids capable of being used to supply energy, for example to power an internal combustion engine or for heating. It also finds support in the English, German and Dutch versions, which use, respectively, the words "fuel", "Kraftstoff" and "brandstof", and claims that these have the same wide meaning as the Danish word "braendstof".

8. The Commission, whilst accepting that the word "braendstof" used in the Danish version corresponds with the words used in the English, German and Dutch versions, points out that the words "carburant" in the French version and "carburante" in the Italian version cover only fuel for internal combustion engines. It adds that although the expressions chosen in the Danish, English, Dutch and German versions suffer from a certain lack of precision, that does not mean that they must be considered incorrect. It also points out that no Member State has relied on the interpretation advocated by Denmark. Following a study of the travaux préparatoires for the directive, the Commission is in no doubt as to the proper interpretation of Article 3(3). That provision was intended to restrict the quantity of motor fuel carried in portable containers.

9. It will be remembered first of all that in the event of divergences in the language versions of a Community text, the Court' s view is that

"when a single decision is addressed to all the Member States the necessity for uniform application and accordingly for uniform interpretation makes it impossible to consider one version of the text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim he seeks to achieve, in the light in particular of the versions in all ... languages". (10)

The Court also stated:

"It cannot, moreover, be accepted that the authors of the decision intended to impose stricter obligations in some Member States than in others." (11)

Accordingly, there can be no question of the Danish authorities taking refuge behind the Danish version and contending that they had had no opportunity to study the French and Italian versions of the directive.

10. In the present case, the original language versions of the text as amended in 1978 seem to include a narrow variant and a wide variant. It thus seems reasonable to accept, as the Court has done in the past in connection with an action against a Member State for failing to fulfil its obligations, that:

"a comparative examination of the various language versions of the [text] does not enable a conclusion to be reached in favour of any of the arguments put forward and so no legal consequences can be based on the terminology used". (12)

In such cases, the Court recalls that

"in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part". (13)

11. Directive 78/1033, which introduced into Directive 69/169 the provision which is the subject of the divergent interpretations by the two parties, is somewhat laconic as far as that addition is concerned: the sixth recital in its preamble states only that "the term 'personal luggage' should be defined". Examination of the Commission' s Proposal for the Fourth Directive, (14) reveals some differences from the text finally adopted by the Council: the proposal provided for different quantities for travel within the Community (15 litres) and travel involving non-member countries (five litres). Above all, it confined the exemption to fuel "in a reserve tank". (15)

12. As the Commission emphasizes, that clearer formulation of the directive set out in unequivocal terms the purpose of that provision. The idea was to grant an exemption for a small quantity of motor fuel which would get the driver out of difficulty if the fuel in his tank should prove insufficient. Denmark accepts that the proposal established a relationship between the means of propulsion of the vehicle and the fuel imported. However, the proposal itself used in its Danish version the word "braendstof" to which the defendant intends to give the meaning of fuel for the purposes of the directive.

13. To declare that the word "braendstof" has changed its meaning owing to the substitution in the Fourth Directive of the words "of such portable containers" for the expression "reserve tank" used in the proposal does not seem justified. The sole purpose of that substitution was, in my view, to simplify the rule laid down by obviating the need for recourse to a new expression - "reserve tank" - and relying on the term used in the previous sentence, which, at the stage of the proposal for the directive, provided that "' personal luggage' shall not cover portable containers containing fuel".

14. As the Commission has pointed out, a transportable container is treated in the same way as the standard tank. It is regarded as an additional reserve, a kind of vehicle accessory, and not as personal luggage. Thus, the value of the fuel is not included in the general value of the goods imported by the traveller. It is difficult to understand why such a rule should be extended to fuels not used for the operation of vehicles.

15. Finally, reference should be made to Council Directive 83/181/EEC of 28 March 1983, (16) as amended by Directive 88/331/EEC of 13 June 1988. (17) Article 82(1) of that directive is worded as follows:

"1. Subject to Articles 83, 84 and 85, the following shall be exempt on admission:

(a) fuel contained in the standard tanks of:

- private and commercial motor vehicles and motor cycles;

- special containers;

(b) fuel contained in portable tanks carried by private motor vehicles and motor cycles, with a maximum of 10 litres per vehicle and without prejudice to national provisions on the holding and transport of fuel."

That article uses the word "braendstof" in the Danish version and the word fuel in the English version and does not allow any reasonable doubt to remain concerning its interpretation: only motor fuel, that is to say only fuel for internal combustion engines used to propel motor vehicles, is referred to.

16. That provision thus dispels any possible ambiguity regarding the scope of Directive 78/1033: the exemption applicable to a maximum of 10 litres of fuel contained in portable containers in vehicles was intended to supplement the exemption for fuel contained in vehicles' standard tanks. (18)

17. Accordingly, it cannot be claimed that the limit laid down in Article 3(3) of Directive 69/169 is applicable to fuels other than motor fuel. Denmark has thus interpreted that provision too widely.

18. However, Denmark does confine itself to putting forward semantic arguments. It stated in its reply to the Commission' s reasoned opinion that there was really no reason to enter into a legal dispute with the Commission regarding the interpretation of the word "braendstof" and that it was ready to attribute to the word used in Article 3(3) of Directive 69/169 the narrow meaning of motor fuel. However, Denmark takes the view that that interpretation would then entail the consequence that no exemption could be granted for fuel contained in portable containers. That alternative argument may be summarized thus: once it is accepted that Article 3(3) of the directive provides that portable containers containing fuel are not to be considered as personal luggage, then a fortiori containers containing domestic heating oil cannot constitute such luggage. Denmark points out that a portable container containing fuel is less closely linked with the journey than portable containers containing motor fuel - and they do not form part of personal luggage. That, however, is, in Denmark' s view, the solution to which the most common meaning of the words "personal luggage" leads.

19. That argument does not seem to me to be well founded. The proposal for the Fourth Directive drafted by the Commission clearly established that "the term 'personal luggage' should be defined" (19) and the "working out of [such a] definition" was expressly approved by the Economic and Social Committee. (20) In that respect, the Council, when adopting the first subparagraph of Article 3(3) of the directive, finally laid down that:

"' Personal luggage' shall mean the whole of the luggage which a traveller is in a position to submit to the customs authorities upon his arrival, as well as luggage which he submits later to the same authorities, subject to proof that such luggage was registered as accompanied luggage, at the time of his departure, with the company which has been responsible for conveying him."

20. It follows that if a traveller is in a position to submit goods which he declares as accompanied luggage, they come within the definition of personal luggage. However, there is no provision to the effect that it must also be ascertained whether the products in question are more or less closely linked with the journey or, again, whether they constitute personal luggage according to the ordinary meaning of that term. There is no doubt, as has been seen, that the directive provides that portable containers containing fuel do not constitute personal luggage. Although, as regards motor fuel, it is understandable that a portable container must be in some way regarded as an accessory of the vehicle itself and not as personal luggage, there are no grounds whatsoever for extending that solution beyond that particular case. Taken to its limit, the Danish argument could lead to its being declared that any portable container, whatever its contents, could not constitute personal luggage within the meaning of the directive. Moreover, fuels, whether or not contained in portable containers, seem to me to come within the scope of personal luggage. There is thus no need to exclude them a priori from that concept.

21. Without doubt, it is necessary to ensure before applying a general exemption, on the one hand, that the imports have no commercial character (a condition which is not disputed in the case in point), and, on the other, that the product in question is not covered by a specific provision of the directive such as those which apply, for example, to perfumes or alcoholic beverages. (21) In that respect, no special provision has been laid down with regard to fuels.

22. I have already expressed the view that it would render the very concept of a specific quantitative limit utterly meaningless if the Member States were entitled to apply a limit to products other than those expressly referred to by the directive on the ground that there was an analogy between them of one kind or another. (22)

23. The Court has confirmed, on the basis of consistent case-law, that

"in the area in question Member States are left with only the restricted power given to them by the actual provisions of the directives in question". (23)

The Court then declared that

"no provision is made in those directives for laying down quantitative limits for goods not expressly referred to in Article 4(1) of Directive 69/169". (24)

24. Consequently, I invite the Court to declare that, by applying to all types of fuel other than motor fuel the quantitative limit of 10 litres laid down by Directive 78/1033/EEC for the exempt importation of fuel contained in portable containers, the Kingdom of Denmark has failed to fulfil its obligations. Denmark should be ordered to pay the costs.

(*) Original language: French.

(1) - On the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel (OJ, English Special Edition 1969 (I), p. 232).

(2) - OJ 1978 L 366, p. 31.

(3) - Article 1 of Council Directive 81/933/EEC of 17 November 1981 amending Directive 69/169 (OJ 1981 L 338, p. 24).

(4) - Article 1 of Council Directive 88/664/EEC of 21 December 1988 amending for the ninth time Directive 69/169 (OJ 1988 L 382, p. 41).

(5) - Article 1 of Council Directive 89/194/EEC of 13 March 1989 amending Directive 69/169 (OJ 1989 L 73, p. 47).

(6) - Emphasis added.

(7) - Written reply from the Commission to a question put by the Court.

(8) - Extract from the debates of the Danish Parliament of 27 January 1987 annexed to the Danish Government' s reply.

(9) - See note 8.

(10) - Judgment of 12 November 1969 in Case 29/69 Stauder [1969] ECR 419, paragraph 3.

(11) - Ibidem, paragraph 4.

(12) - Judgment of 28 March 1985 in Case 100/84 Commission v United Kingdom [1985] ECR 1169, paragraph 16.

(13) - Ibidem, paragraph 17; see also, concerning a preliminary reference, the judgment of 27 October 1977 in Case 30/77 Bouchereau [1977] ECR 1999, paragraph 14.

(14) - OJ 1978 C 213, p. 9.

(15) - Second subparagraph of Article 1(2) of the proposal (emphasis added).

(16) - Determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods (OJ 1983 L 105, p. 38).

(17) - OJ 1988 L 151, p. 79.

(18) - These terms are defined in Article 82(2)(c).

(19) - Eighth recital in the preamble to the proposed directive, reference given in note 14, supra.

(20) - OJ 1978 C 105, p. 3.

(21) - Article 4 of Directive 69/169, last amended by Directive 85/348/EEC of 8 July 1985 (OJ 1985 L 183, p. 24).

(22) - Opinion in judgments of 6 December 1990 in Case C-208/88 Commission v Denmark [1990] ECR I-4445 and Case C-367/88 Commission v Ireland [1990] ECR I-4465).

(23) - Judgments of 6 December 1990, supra, paragraph 7; judgment of 12 June 1990 in Case C-158/88 Commission v Ireland [1990] ECR I-2367, paragraph 7.

(24) - Judgments of 6 December 1990, supra, paragraph 7.