WRITTEN QUESTION E-2443/01

by Elspeth Attwooll (ELDR) to the Commission

(11 September 2001)

Subject: Personal imports of alcohol and tobacco within the EU

Directive 92/12/EEC(1), as amended, states that individuals may bring goods upon which excise duty has been paid in another EU Member State into a second

EU Member State without being liable to pay excise duty, provided the goods are intended for personal and not commercial use. Article 9 of the Directive sets down amounts for both tobacco and alcohol products which may be used by Member States as guide levels to determine whether imports of goods are indeed for commercial or personal use.

The UK implementing legislation requires individuals importing amounts of goods above these limits to satisfy officials that the goods are not to be used for commercial purposes, failing which the goods may be confiscated. Travellers complain that UK officials impose these limits arbitrarily. Does the Commission think that, by placing the onus of proof on the traveller and by threatening sanctions of confiscation and imprisonment, the UK has faithfully implemented the provisions of Directive 92/12/EEC and the rules on free movement?

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

Answer given by Mr Bolkestein on behalf of the Commission

(29 October 2001)

Under Article 8 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 produtcs, the excise duty on products which are acquired by private individuals for their own use and transported by them shall be charged in the Member State in which the goods are acquired. If, on the other hand, products acquired in a Member State are held for commercial purposes in another Member State, the excise duty is levied in the Member State in which the products are held.

In the case of private individuals returning to a Member State with excisable goods acquired in another Member State, the excise duty treatment of the goods therefore depends on the purpose commercial or private for which the goods are held. In Article 9(2) of Directive 92/12/EEC, instructions are given on how to proceed when establishing this purpose.

The Member States' authorities must base their determination on all relevant aspects in the particular case, and at least all the criteria enumerated in Article 9(2):

- The commercial status of the holder of the products and his reasons for holding them;

- The place where the products are located or, if appropriate, the mode of transport used;

- Any document relating to the products;

- The nature of the products;

- The quantity of the products.

As concerns the last criterion, the quantity of the products, the Member States may choose to lay down certain guide levels, which may not be lower than the levels fixed in Article 9(2) of Directive 92/12/EEC. These levels may serve solely as a form of evidence. Member States which choose to avail themselves of the possibility to lay down guide levels are free to determine how this rule should be incorporated into their national law.

However, in the Commission's view, the principle remains that the Member States' authorities must establish, taking into account all the criteria of Article 9(2), whether the goods are held for commercial purposes or private use. They may not base their determination exclusively on a single criterion, be it the quantity of the products or any other aspect, and then, in effect, leave it to the individual to prove that the products are held for another purpose.

As concerns the sanctions applied in the event of an infringement of excise duty law, the Member States are, in the absence of harmonised Community rules, in principle free to determine their own system of sanctions. These must however respect the general principles of Community law, and in particular the principle of proportionality. This means that the sanctions must not go beyond what is necessary to achieve their objectives.

The Commission is at present looking into complaints concerning the way the United Kingdom has transposed certain aspects of Directive 92/12/EEC into national law. The Commission is awaiting the outcome of this investigation to determine whether, in its view, the United Kingdom has faithfully implemented the Directive.