WRITTEN QUESTION E-2443/01 by Elspeth Attwooll (ELDR) to the Commission. Personal imports of alcohol and tobacco within the EU.
Date: 2001-09-11
Institutions: European Parliament, Provisional data
Subjects: EU law - national law, United Kingdom, alcoholic beverage, excise duty, import, national implementing measure, quantitative restriction, tobacco

18.7.2002

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Official Journal of the European Communities

C 172 E/7

The Commission has transmitted a proposal for a Directive (3) to the European Parliament and the Council
to establish an overall approach to the conditions in which third-country nationals have the freedom to
travel in the territory of the Member States for periods not exceeding three months within a six-month
period.

(1) OJ C 340, 10.11.1997.
(2) OJ L 81, 21.3.2001.
(3) COM(2001) 388 final.

(2002/C 172 E/006)

WRITTEN QUESTION E-2431/01

by Eryl McNally (PSE) to the Commission

(7 September 2001)

Subject: 6th VAT Directive

The 6th VAT Directive provides a reduced rate of VAT for energy saving materials, which is applicable
where individuals pay to have these materials installed in their homes. However, the reduced rate does not
apply when individuals purchase such materials in order to install them in their homes themselves.

Would the Commission please comment on whether consideration is being given to the removal of this
anomaly from the 6th VAT Directive?

Answer given by Mr Bolkestein on behalf of the Commission

(29 October 2001)

The situation under current Community VAT legislation is that category 9 of Annex H of the sixth VAT
Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to
turnover taxes 6 Common system of value added tax: uniform basis of assessment (1) covers the process of
the ‘supply, construction, renovation and alteration of housing provided as part of social policy’. Member
States may therefore allocate a reduced VAT rate of no less than 5 % to these services.

Energy saving materials, once incorporated into this process, are automatically covered by this provision,
as will be all building materials when supplied as a part of a service provided by a building contractor.
Whereas the same goods when bought across the counter by an individual are considered to be supplies of
goods, and therefore the standard rate applies.

As the Honourable Member will know, the new VAT strategy (2) foresees that a review and rationalisation
of the rules and derogations applying to the definition of reduced VAT rates will be considered in the
medium term. Particular attention will be paid to such issues.

(1) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive 2001/41/CE (OJ L 22, 24.1.2001) et corrigendum

(OJ L 26, 27.1.2001).
(2) COM(2000) 348 final.

(2002/C 172 E/007)

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

C 172 E/8

Official Journal of the European Communities

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18.7.2002

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 6 commercial or
private 6 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):

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

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

6 Any document relating to the products;

6 The nature of the products;

6 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.

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Official Journal of the European Communities

C 172 E/9

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.

(2002/C 172 E/008)

WRITTEN QUESTION E-2616/01

by María Sornosa Martínez (PSE) to the Commission

(27 September 2001)

Subject: State of affairs concerning bottling plant in La Gomera (Canaries)

A water-bottling plant in process of construction on the island of La Gomera (Canaries) is meeting with a
broad-based opposition movement, bringing together residents’ associations, farmers’ organisations and
environmental groups, who have complained to local, national and Community institutions on the
grounds that this project will have an irreversible impact on the sites of Community importance of
Tagaluche (identification number ES-7020108) and Lomo del Carretón (ES-7020037). In addition, the
project has not been subjected to the mandatory environmental impact assessment.

The author of
this question addressed an earlier question on La Gomera to the Commission
(E-0859/00 (1)), to which Commissioner Wallström replied on 8 May 2000, pointing out, among other
aspects, the following:

6 the Commission had received a complaint on the matter (99/4875, SG/99, A/10714/2);

6 the Commission was examining the dossier in order to determine the impact of the project on the
above-mentioned sites of Community importance and ascertain whether there was an infringement of
Article 6 of Directive 92/43/EEC (2);

6 the Commission would take the necessary action to ensure compliance with Community law.

However, now that over a year has passed since Commissioner Wallström’s answer, no information on the
state of the dossier has been received by either the complainant organisations or the author of this
question.

Can the Commission state what research and other activity it has carried out in the past year and what
results have been obtained, as well as indicating the stage reached by the works referred to in Complaint
99/4875?

Can the Commission indicate the date by which the Spanish government is obliged to reply to its
inquiries? Should a reply have already been received, can the Commission state its content?

Can the Commission state what measures it has taken to prevent the plant from being constructed in
Tagaluche and ensure compliance with Community law?

Would the Commission be willing to send a delegation to La Gomera to verify the real environmental and
agricultural impact of the construction work for the bottling plant?

(1) OJ C 46 E, 13.2.2001, p. 63.
(2) OJ L 206, 22.7.1992, p. 7.

(2002/C 172 E/009)

WRITTEN QUESTION E-2809/01

by Jean Lambert (Verts/ALE) to the Commission

(10 October 2001)

Subject: Construction of a bottling plant at Taguluche, La Gomera (Canary Islands)

to our question P-0360/00 (1) on the construction of a bottling plant
With respect
in Taguluche,
La Gomera, Canary Islands, the Commission told us on 7 March 2000 that it would take the necessary
measures to ensure conformity with Community law in this case.