WRITTEN QUESTION P-3230/02 by Nicholas Clegg (ELDR) to the Commission. Burden of proof on travellers entering the UK with tobacco purchases in excess of UK guideline amounts.
Date: 2002-11-07
Institutions: European Parliament, Provisional data
Subjects: United Kingdom, alcoholic beverage, application of EU law, consumer protection, free movement of goods, intra-EU trade, proof, single market, tobacco, trade restriction

15.1.2004

EN

Official Journal of the European Union

C 11 E/39

The Commission monitors closely the situation of human rights, as indicated in the recently published
2002 Regular Report (1) on Turkey’s progress towards accession to the Union, and will continue to do so
in the future.

As far as Albania is concerned, the Commission, despite following closely the Albanian press, is not aware
of
systematic interference with private correspondence between Albanian citizens. According to
information available to the Commission, sporadic opening of private correspondence cannot be excluded,
but this is mainly the consequence of a deficient Albanian postal service. The Commission will however be
particularly attentive to this issue, and will continue to stress that the respect of human rights and personal
freedoms is indispensable for the strengthening of EU-Albania relations.

(1) COM(2002) 700 final.

(2004/C 11 E/039)

WRITTEN QUESTION P-3216/02

by Nicholas Clegg (ELDR) to the Commission

(7 November 2002)

Subject: UK Government guidelines on tobacco imports by private individuals

Does the Commission regard the increase in UK Government ‘personal use’ guidelines to British travellers
from 800 to 3 200 cigarettes and from 1 kg to 3 kg of hand-rolled tobacco (announced 29 October 2002)
as an adequate response to the problems encountered by cross-Channel shoppers? Does the Commission
agree that guidelines have no binding legal force within the EU single market and that any guidelines of
whatever limit, if interpreted strictly, represent an infringement of free movement laws?

(2004/C 11 E/040)

WRITTEN QUESTION P-3230/02

by Nicholas Clegg (ELDR) to the Commission

(7 November 2002)

Subject: Burden of proof on travellers entering the UK with tobacco purchases in excess of UK guideline

amounts

Does the Commission regard changes to the burden of proof on British travellers suspected of transporting
alcohol and tobacco for commercial ends by the Government on 29 October 2002 as adequate?

Does the Commission agree that maintaining any burden of proof on travellers bringing in more than the
UK Government’s non-binding guideline amounts represents an infringement of the fundamental freedom
to transport goods for personal use within the EU single market?

Joint answer
to Written questions P-3216/02 and P-3230/02
given by Mr Bolkestein on behalf of the Commission

(28 November 2002)

In order to establish the internal market in excise goods (which have always been sensitive to fraud,
particularly in higher taxing Member States), the Community deemed it necessary to provide for a
common excise duty system. This harmonised system entered into force on 1 January 1993.

C 11 E/40

Official Journal of the European Union

EN

15.1.2004

At the heart of this system is a distinction between commercial operations (which, as a principle, attract
excise duties in the Member State of final consumption) and goods acquired by private individuals for their
own use and transported by themselves,
for which excise duties are due in the Member State of
acquisition. This rule on private purchases is set out in Article 8 of Council Directive 92/12 EEC (1). There
is no limit on the quantity of goods that a private individual may acquire and ‘import’ under this article
(with the exception of the time-limited derogations granted to Denmark, Finland and Sweden).

Since different tax rules apply to these two basic categories of operations, the authorities of the Member
States will, when putting the rules of the Directive into practice, be called upon to distinguish between
genuine ‘private imports’ and commercial operations fraudulently disguised as ‘private’. The harmonised
excise system, therefore, provides for a common method which the Member States must apply when
making this distinction. Moving away from the earlier system based on quantitative ‘allowances’, which
was considered incompatible with the principle of free movement of goods, Article 9 of Directive 92/12/
EEC requires Member States to base their determination on all relevant aspects of each individual case
(taking into consideration at least those aspects mentioned in sub-Article 2 of Article 9). One of the
aspects which the Member States are required to take into account is the quantity of the products. For the
application of this criterion, the Member States may lay down ‘guide levels’. However, these levels may
only serve as a form of evidence.

On the specific points raised by the Honourable Member:

(a) The Commission considers the ‘guide levels’ provided for in Article 9, subArticle 2, of Directive 92/
12/EEC to be purely indicative. The harmonised excise duty rules do not allow a Member State to
apply such guide levels as limits on the quantity of products which a private individual may acquire
and transport between Member States under the provisions of Article 8 of Directive 92/12/EEC.

(b) Under the provisions of Article 9 of Directive 92/12/EEC, it is for the authorities of the Member States
to establish whether goods held by a private individual are in fact held not for the individual’s own
use, but for ‘commercial purposes’. The individual holding a large quantity of excise goods may
reasonably be expected to provide an explanation as to how he intends to use those products, but
the goods are held for a non-commercial purpose. The
may not be required to prove that
responsibility for making this determination rests entirely on the authorities of the Member State,
which have to be satisfied, on all the evidence available, of the true purpose of the movement of the
goods.

The Commission would like to add that these aspects of British excise law are at present the subject of
infringement proceedings under Article 226 of
the announced measures
adequately address the points raised by the Commission in these proceedings can not yet be determined,
as the enquiry is still ongoing. The Commission is therefore, at this time, not in a position to comment on
those parts of the Honourable Member’s questions.

the EC Treaty. Whether

(1) 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, OJ L 76, 23.3.1992.

(2004/C 11 E/041)

WRITTEN QUESTION E-3221/02

by Alexandros Alavanos (GUE/NGL) to the Commission

(14 November 2002)

Subject: Obstacles preventing small tobacco growers accessing the market in tobacco products

Some tobacco growers in Greece prefer to market their produce in the form of fine-cut tobacco for rolling
cigarettes, thereby creating a cottage industry for cutting and, possibly, packing raw tobacco.