The Queen v Commissioners of Customs and Excise, ex parte EMU Tabac SARL, The Man in Black Ltd, John Cunningham.
Date: 1998-04-02
22 It should first be observed that the clear purpose of the Directive is to lay down a number of rules on the holding, movement and monitoring of products subject to excise duty, in particular so as to ensure that chargeability of excise duties is identical in all the Member States.
23 As is apparent from the third, fifth, sixth and eleventh recitals in its preamble, the Directive draws a distinction between, on the one hand, goods held for commercial purposes, in respect of which accompanying documents are required for transportation purposes, and, on the other hand, goods held for personal use.
24 As regards the goods last mentioned, as Article 8 provides that excise duty is payable in the Member State in which they were purchased, no document is required when they are transported to another Member State.
25 For Article 8 to apply, however, a number of conditions must be satisfied. The goods on which excise duty is chargeable must have been acquired by private individuals for their own use and transported by them.
26 Those conditions must make it possible to establish that goods on which duty is chargeable and which are acquired in one State and then transported to another are held for strictly personal purposes.
30 First, it is clear from the case-law of the Court that the Community legal order does not, in principle, aim to define concepts on the basis of one or more national legal systems unless there is express provision to that effect (Case 64/81 Corman [1982] ECR 13, paragraph 8). The text of Article 8 of the Directive does not contain any express reference to national legal systems.
32 Lastly, it should be noted that where the Community legislature intended the Directive to apply in the event of the involvement of a third party it did so by means of an express provision formulated for that purpose. That is the case in Articles 9(3) and 10(1).
33 As far as Article 8 is concerned, it is evident that none of the language versions expressly provides for such involvement and that, on the contrary, the Danish and Greek versions indicate particularly clearly that, for excise duty to be payable in the country of purchase, transportation must be effected personally by the purchaser of the products subject to duty.
36 Furthermore, to discount two language versions, as the applicants in the main proceedings suggest, would run counter to the Court's settled case-law to the effect that the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, in particular, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6). Lastly, all the language versions must, in principle, be recognised as having the same weight and this cannot vary according to the size of the population of the Member States using the language in question.
39 In that connection, it is to be observed that the existence of possible ambiguity in a provision can only be established by reference to the context of that provision (see, inter alia, Case 292/82 Merck [1983] ECR 3781, paragraph 12).
42 On that point, it should be observed that, although Article 6 provides that duty is to become chargeable at the time of release for consumption of goods in a Member State, this does not, however, preclude excise duty from being subsequently levied in another Member State pursuant to Articles 7, 9 or 10, whereupon duty paid in the first State may be reimbursed pursuant to Articles 7(6) or 10(4).
47 In the case in the main proceedings, EMU and MBL are subsidiaries of the same company and as such they can be regarded as forming part of the same economic entity, despite the fact that they are separate legal persons (see Case 170/93 Hydrotherm v Compact [1984] ECR 2999, paragraph 11).
48 In addition, it appears from the order for reference that MBL does not act at the instigation of the private individuals it represents, but solicits from them orders for tobacco and cigarettes which are then placed exclusively with EMU, the vendor. Lastly, MBL and EMU set out in general terms their reciprocal obligations in an agreement made in 1991 which makes clear that the risks inherent in fluctuation of exchange rates are to be borne by MBL and not by the purchasers themselves.
49 Accordingly, although MBL acted as agent for the purchasers under English law, it must be concluded that the goods in question in the main proceedings were dispatched or transported directly or indirectly by the vendor or on his behalf in the sense contemplated by Article 10 of the Directive and that excise duty is chargeable in the United Kingdom.
52 In a case such as that now before the national court, where goods from one Member State are carried to another Member State on the instructions of a trader acting in return for payment who has previously solicited customers in that latter State and has arranged for importation of the goods, it must be held that excise duty is chargeable in that latter Member State.