Staatssecretaris van Financiën v B. F. Joustra.
Date: 2006-11-23
27. As the Court has already pointed out, the 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 ( EMU Tabac and Others , paragraph 22; Case C-325/99 Van de Water  [2001] ECR I-2729, paragraph 39; and Case C-395/00 Cipriani  [2002] ECR I-11877, paragraph 41).
28. In this respect, as is apparent inter alia from the fifth and sixth recitals in its preamble, the Directive draws a distinction between, on the one hand, products held for commercial purposes, in respect of which accompanying documents are required for transportation purposes, and, on the other hand, products held for private purposes, in respect of which no document is required (see, to that effect, EMU Tabac and Others , paragraphs 23 and 24).
29. Consequently, and as is apparent from the seventh recital in the preamble to the Directive, for the application of the Directive, products which are not held for private purposes must necessarily be regarded as being held for commercial purposes.
30. As regards products held for commercial purposes, although Article 6 of the Directive provides that excise duty is to become chargeable when goods are released for consumption in a Member State, this does not 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 Article 7(6) or Article 10(4) of the Directive (see, to that effect, EMU Tabac and Others , paragraph 42).
31. By contrast, as regards products held for private purposes, Article 8 of the Directive provides that excise duty is payable in the Member State in which they were purchased (see, to that effect, EMU Tabac and Others , paragraph 24).
33. The Court has already held that, for Article 8 of the Directive to apply, a number of conditions must be satisfied. Thus, the products on which excise duty is chargeable must have been acquired by ‘private individuals’ for ‘their own use’ and transported ‘by them’. Those conditions should make it possible to establish that products on which excise duty is chargeable and which are acquired in one Member State and then transported to another Member State are held for strictly personal purposes (see, to that effect, EMU Tabac and Others , paragraphs 25 and 26).
37. So far as concerns the second of the conditions, it is also apparent from the words ‘transported by them’ in Article 8 of the Directive that, for that provision to apply, the products in question must have been transported personally by the private individual who purchased them (see, to that effect, EMU Tabac and Others , paragraph 33).
39. In that regard, it must be borne in mind that, as the Court held in paragraph 32 of EMU Tabac and Others , where the Community legislature intended the Directive to apply in the event of the involvement of a third party in the transport of the products, it did so by means of an express provision formulated for that purpose. That is the case in Articles 9(3) and 10(1) of the Directive.
40. Furthermore, in paragraph 33 of EMU Tabac and Others , the Court also found that none of the language versions of Article 8 of the Directive 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 Member State of acquisition, transportation must be effected personally by the purchaser of the products subject to excise duty.
42. It is true that, as the Commission has submitted, in paragraph 48 of EMU Tabac and Others  the Court pointed out that the purchase and transport of products subject to excise duty were, in that case, effected by an agent which was not acting at the instigation of the private individuals, but solicited from them orders for the purpose of placing them exclusively with the vendor, with which it formed one and the same economic entity. However, that consideration only led the Court to find that the products at issue in that case had been dispatched or transported directly or indirectly by the vendor or on his behalf within the meaning of Article 10 of the Directive. By contrast, that consideration is irrelevant as regards the application of Article 8 of the Directive.
49. As is apparent from paragraph 42 of this judgment, Article 10 of the Directive, which relates to acquisitions made by private individuals which are dispatched or transported directly or indirectly by the vendor or on his behalf, cannot, however, apply wher e, as in the case in the main proceedings, the transport is initiated, not by the vendor, but by the private individual who has purchased the products subject to excise duty ( EMU Tabac and Others , paragraphs 48 and 49).
51. By contrast, Article 7 of the Directive is capable of applying to the case in the main proceedings since, under paragraph 2 thereof, that provision covers the situation in which products are delivered or intended for delivery in another Member State or used in another Member State for the purposes of a trader carrying out an economic activity independently. That is true of a private individual who, as in the present case, is not acting with a view to profit, since the transport of the products subject to excise duty is carried out by a trader acting on his behalf (see, to that effect, EMU Tabac and Others , paragraph 52).  As is apparent from paragraph 29 of this judgment, the Directive is based on the idea that products which are not held for private purposes must necessarily be regarded as being held for commercial purposes.