EN Official Journal of the European Union CE 88/146

(2004/C 88 E/0155)

WRITTEN QUESTION E-3449/03

by Peter Skinner (PSE) to the Commission

(20 November 2003)

Subject: Smokes Direct, Spain

A company named Smokes Direct is operating in Malaga, Spain, offering consumers cigarettes without having to pay any further duty or VAT. A complaint has been made by one of my constituents after purchasing such cigarettes which were then seized by HMCE upon entry into the UK due to non-payment of duty. Smokes Direct advertise stating that they can act as agents on behalf of the consumer to purchase and courier the cigarettes to a third party, who is not involved in payment in any way, therefore requiring no further duty to be paid. The cigarettes would then be classed as a gift between the third party and the consumer so Smokes Direct, as an agent, are acting on behalf of the buyer in assisting in the delivery of a ‘gift’.

After referring my constituent to Council Directive 92/12/EEC (1) it remains unclear as to whether Smokes Direct, a profit-making organisation, can advertise themselves as being able to act as agents and not vendors and the technicalities of what classes as a ‘gift’ in such circumstances. Can the Commission therefore investigate the actions of this company and confirm whether or not this practice is legal?

Answer given by Mr Bolkestein on behalf of the Commission

(18 December 2003)

The Commission informs the Honourable Member that the position regarding the intra-Community movement of cigarettes and other excise products subject to Union harmonised rules is contained in 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.

Transactions of the type described as being operated by Smokes Direct are known as distance selling and are covered by Article 10 of the Directive. Briefly, it provides that where a private individual purchases excise goods that are dispatched or transported directly or indirectly by the vendor or on his behalf, excise duty is due in the Member State of destination, i.e. the Member State to which the goods are dispatched. Furthermore, the excise duty is chargeable to the vendor at the time of delivery, who may claim reimbursement of the duty previously paid in the Member State of dispatch. The position regarding ‘agents’ in transactions of this kind is subject to Community case law C-296/95 (2), and does not affect the above position.

As, within the Internal Market, the scope for the Member State of destination to ensure respect of these provisions is limited, responsibility for ensuring that vendors comply with the requirements set down in Article 10 rests to a large extent with the Member State in which the vendor is established, as provided for in paragraph 3 of that Article.

The sale of tobacco products, particularly through the internet, to individuals in other Member States by companies falsely claiming that excise duty is not due in the Member State of destination is a growing problem within the Union and is being actively investigated by the Commission's European Anti-Fraud Office and by the appropriate authorities in the Member States, with a view to developing measures to combat this type of fraud.

So far as gifts are concerned, it is the Commission's view that they are not subject to payment of the excise duty in the Member State of destination, providing the gift is sent by a private individual in one Member State to a private individual in another Member State, that it is intended for the personal use of the individual, that it is of an occasional nature and that it is not subject to payment of any kind. The transactions operated by Smokes Direct do not meet these requirements and cannot, therefore, be treated as gifts.

Finally, the Commission would point out that it will soon present a review of Articles 7 to 10 of Directive 92/12/EEC which will, amongst others, clarify the issues raised by the Honourable Member.

(1) OJ L 76, 23.3.1992, p. 1.

(2) Judgement of the Court of 2 April 1998 — European Court reports 1998 Page I-01605.