1. The reference for a preliminary ruling concerns the interpretation of Articles 7 to 9 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 products (OJ 1992 L 76, p. 1), as amended by Council Directive 92/108/EEC of 14 December 1992 (OJ 1992 L 390, p. 124) (‘the Directive’).
2. This reference has been made in the course of proceedings between the Staatssecretaris van Financiën (State Secretary for Finances) and Mr Joustra concerning the charging in the Netherlands of excise duty on wine acquired by Mr Joustra in France for his own use and that of other private individuals and transported to the Netherlands on his behalf by a transport company established in the Netherlands. Legal context Community legislation
3. The fifth to eighth recitals in the preamble to the Directive state the following: ‘… any delivery, holding with a view to delivery or supply for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, taking place in a Member State other than that in which the product is released for consumption gives rise to chargeability of the excise duty in that other Member State; … in the case of products subject to excise duty acquired by private individuals for their own use and transported by them, the duty must be charged in the country where they were acquired; … to establish that products subject to excise duty are not held for private but for commercial purposes, Member States must take account of a number of criteria; … products subject to excise duty purchased by persons who are not approved warehousekeepers or registered or non-registered traders and dispatched or transported directly or indirectly by the vendor or on his behalf must be subject to excise duty in the Member State of destination’.
4. Articles 1 to 10 of the Directive form Title I thereof (‘General Provisions’).
5. Under Article 3(1), the Directive applies, at Community level, to mineral oils, alcohol and alcoholic beverages and to manufactured tobacco.
6. Article 4 of the Directive contains the following definition: ‘… (e) non-registered trader : a natural or legal person without authorised warehousekeeper status, who is entitled, in the course of his business, to receive occasionally products subject to excise duty from another Member State under duty-suspension arrangements. This type of trader may neither hold nor dispatch products under excise duty suspension arrangements. A non-registered trader must guarantee payment of excise duty to the tax authorities of the Member States of destination prior to the dispatch of the goods.’
7. Article 6(1) of the Directive provides: ‘1. Excise duty shall become chargeable at the time of release for consumption … Release for consumption of products subject to excise duty shall mean: (a) any departure, including irregular departure, from a suspension arrangement; (b) any manufacture, including irregular manufacture, of those products outside a suspension arrangement; (c) any importation of those products, including irregular importation, where those products have not been placed under a suspension arrangement.’
8. Article 7 of the Directive provides: ‘1. In the event of products subject to excise duty and already released for consumption in one Member State being held for commercial purposes in another Member State, the excise duty shall be levied in the Member State in which those products are held. 2. To that end, without prejudice to Article 6, where products already released for consumption as defined in Article 6 in one Member State 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 or for the purposes of a body governed by public law, excise duty shall become chargeable in that other Member State. 3. Depending on all the circumstances, the duty shall be due from the person making the delivery or holding the products intended for delivery or from the person receiving the products for use in a Member State other than the one where the products have already been released for consumption, or from the relevant trader or body governed by public law. 4. The products referred to in paragraph 1 shall move between the territories of the various Member States under cover of an accompanying document listing the main data from the document referred to in Article 18(1). The form and content of this document shall be established in accordance with the procedure laid down in Article 24 of this Directive. 5. The person, trader or body referred to in paragraph 3 must comply with the following requirements: (a) before the goods are dispatched, make a declaration to the tax authorities of the Member State of destination and guarantee the payment of the excise duty; (b) pay the excise duty of the Member State of destination in accordance with the procedure laid down by that Member State; (c) consent to any check enabling the administration of the Member State of destination to satisfy itself that the goods have actually been received and that the excise duty to which they are liable has been paid. 6. The excise duty paid in the first Member State referred to in paragraph 1 shall be reimbursed in accordance with Article 22(3).’
9. Under Article 8 of the Directive: ‘As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired.’
10. Article 9 of the Directive provides: ‘1. Without prejudice to Articles 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for commercial purposes in another Member State. In this case, the duty shall be due in the Member State in whose territory the products are and shall become chargeable to the holder of the products. 2. To establish that the products referred to in Article 8 are intended for commercial purposes, Member States must take account, inter alia, of the following: - 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. For the purposes of applying the content of the fifth indent of the first subparagraph, Member States may lay down guide levels, solely as a form of evidence. These guide levels may not be lower than: … (b) Alcoholic beverages … wines (including a maximum of 60 l of sparkling wines) 90 l … 3. Member States may also provide that excise duty shall become chargeable in the Member State of consumption on the acquisition of mineral oils already released for consumption in another Member State if such products are transported using atypical modes of transport by private individuals or on their behalf. …’
11. Article 10 of the Directive provides: ‘1. Products subject to excise duty purchased by persons who are not authorised warehousekeepers or registered or non-registered traders and dispatched or transported directly or indirectly by the vendor or on his behalf shall be liable to excise duty in the Member State of destination. For the purposes of this Article, “Member State of destination” shall mean the Member State of arrival of the dispatch or transport. 2. To that end, the delivery of products subject to excise duty already released for consumption in a Member State and giving rise to the dispatch or transport of those products to a person as referred to in paragraph 1, established in another Member State, and which are dispatched or transported directly or indirectly by the vendor or on his behalf shall cause excise duty to be chargeable on those products in the Member State of destination. 3. The duty of the Member State of destination shall be chargeable to the vendor at the time of delivery. However, Member States may adopt provisions stipulating that the excise duty shall be payable by a tax representative, other than the consignee of the products. Such tax representative must be established in the Member State of destination and approved by the tax authorities of that Member State. The Member State in which the vendor is established must ensure that he complies with the following requirements: - guarantee payment of excise duty under the conditions set by the Member State of destination prior to dispatch of the products and ensure that the excise duty is paid following arrival of the products, - keep accounts of deliveries of products. 4. In the case referred to in paragraph 2, the excise duty paid in the first Member State shall be reimbursed in accordance with Article 22(4). …’
12. Transactions made by non-registered traders are covered by specific provisions set out, in particular, in Articles 16 to 19 of Title III of the Directive (‘Movement of goods’).
13. According to Article 22(1) and (3) in Title IV of the Directive (‘Reimbursement’): ‘1. In appropriate cases, products subject to excise duty which have been released for consumption may, at the request of a trader in the course of his business, be eligible for reimbursement of excise duty by the tax authorities of the Member State where they were released for consumption when they are not intended for consumption in that Member State. However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down. … 3. In the cases referred to in Article 7, the Member State of departure is required to reimburse the excise duty paid only where the excise duty was previously paid in the Member State of destination in accordance with the procedure laid down in Article 7(5). However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down.’ National legislation
14. Article 2c of the Netherlands Law on excise duty (Wet op de accijns) of 31 October 1991 (Stb. 1991, p. 561, ‘the Law on excise duty’) provides: ‘1. No excise duty is payable where a natural person other than a trader transports a product which is subject to excise duty from a Member State to the Netherlands for his own consumption. 2. Without prejudice to paragraph 1, the holding by a natural person for purposes other than his own consumption of a product subject to excise duty which has been released for consumption in another Member State or imported, and on which no excise duty has been levied in the Netherlands, shall be treated in the same way as a release for consumption. 3. If the quantity of products exceeds a ceiling fixed by ministerial order, the products shall be deemed to be held for purposes other than that of personal consumption unless there is evidence to the contrary.’
15. Article 3a of Decree No WW 91/440 implementing the Law on excise duty (Uitvoeringsregeling accijns) of 20 December 1991 (Stcrt. 1991, No 252) provides: ‘The quantities referred to in Article 2c(3) of the Law shall be: … b. 90 litres in respect of wine; …’ The dispute in the main proceedings and the questions referred for a preliminary ruling
16. Mr Joustra and some 70 other private individuals formed a group called the ‘Cercle des Amis du Vin’ (‘the circle’).
17. Each year, on behalf of the circle, Mr Joustra orders wine in France for his own use and that of the other members of the group. On his instructions, that wine is then collected by a Netherlands transport company which transports it to the Netherlands and delivers it to Mr Joustra’s home. The wine is stored there for a few days before being delivered to the other members of the circle on the basis of their respective shares of the quantity purchased. Mr Joustra pays for the wine and the transport and each member of the group then reimburses him for the cost of the quantity of wine delivered to that member and a share of the transport costs calculated in proportion to that quantity. It is common ground that Mr Joustra does not engage in that activity on a commercial basis or with a view to making a profit.
18. It is apparent from the order for reference that the wine ordered by Mr Joustra was released for consumption in France and that excise duty was paid in that Member State. Furthermore, it is common ground that the quantity of wine delivered to each member of the circle did not exceed 90 litres, of which no more than 60 litres was sparkling wine.
19. On 2 December 1997, Mr Joustra declared to the Netherlands tax authorities, which had previously granted to him, at his own request, the status of a non-registered trader, that he had received 13.68 hectolitres of red and white wine and 1.44 hectolitres of sparkling wine. Those authorities levied excise duty of EUR 906.20 (NLG 1 997) on that wine. Mr Joustra disputed liability for that excise duty before the Inspecteur van de Belastingsdienst - Douane te Roosendaal (Tax and Customs Inspectorate, Roosendaal Office, ‘the Inspectorate’). However, his objection was rejected.
20. By decision of 28 November 2002, the Gerechtshof te ’s-Hertogenbosch (Regional Court of Appeal, ’s-Hertogenbosch), to which Mr Joustra appealed against the decision of the Inspectorate dismissing his objection, upheld his application and ordered reimbursement to him of the sum paid in respect of excise duty. According to that court, as it was accepted that Mr Joustra was not holding the wine stored at his home for commercial purposes, the inference had to be drawn that he was not holding it for any purpose other than that of his own consumption within the meaning of Article 2c(2) of the Law on excise duty, which transposed Article 9 of the Directive into national law, and that, therefore, he was not required to pay the excise duty in question.
21. The Staatssecretaris van Financiën and Mr Joustra brought an appeal in cassation and a cross-appeal respectively against the decision of the Gerechtshof te ’s‑Hertogenbosch before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).
22. In his appeal, the Staatssecretaris van Financiën maintains that the Gerechtshof te ’s-Hertogenbosch relied on a misinterpretation of the term ‘held for commercial purposes’ in Articles 7 and 9 of the Directive. In his opinion, only products which are held by private individuals for their own use and which they have themselves transported fall outside the scope of that term. In his cross-appeal, Mr Joustra submits that the charging of excise duty on the wine in question is covered by Article 8 of the Directive. The words ‘transported by them’ in that provision do not prevent it from being interpreted as meaning that the charging of excise duty in the Member State of destination is precluded where an individual himself purchases, in another Member State, products subject to excise duty and arranges for those products to be transported, under his instructions and on his account, to the Member State of destination by a third party.
23. The Hoge Raad points out that the situation that has given rise to the case in the main proceedings does not appear to be covered by either Article 8 of the Directive or Articles 7 and 9 thereof, unless Article 8 is to be recognised as having a broader scope than was attributed to it by the Court in Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, in particular in paragraphs 33 and 37, or the term ‘held for commercial purposes’ in Articles 7 and 9 of the Directive is construed in such a way as to cover also the situation in which the person to whom the products subject to excise duty have been delivered for the purpose of subsequent distribution among the purchasers carries out his activities without thereby acting on a commercial basis or with a view to making a profit. However, the Hoge Raad observes that EMU Tabac and Others concerned a case in which an agent, operating on a commercial basis, acted in the purchase of products subject to excise duty and also organised their transport, on behalf of the vendor, to the Member State of destination. That is not true of the present case. Therefore the question that arises is whether, regard being had to the principle governing the internal market, as set out in particular in Articles 14 EC and 93 EC, the ruling of the Court in that judgment is capable of being applied to the case in the main proceedings.
24. In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Must Article 8 of [the Directive] be construed as meaning that excise duty may not be levied other than in the Member State of acquisition in the case where an individual purchases goods subject to excise duty personally and for his own use in one Member State and has them transported by a transport undertaking to another Member State? 2. Must Article 8 of [the Directive] be construed as meaning that excise duty may not be levied other than in the Member State of acquisition where, as in the present case, individuals arrange for goods subject to excise duty to be purchased in one Member State by another individual who is acting neither in a business capacity nor with a view to making a profit and who arranges for the goods to be transported on behalf of the purchasers by a transport undertaking to another Member State? 3. If the answer to (one of) those questions should be in the negative: must Articles 7 and 9 of [the Directive] be construed as meaning that, if an individual arranges for goods subject to excise duty which have been released for consumption in one Member State to be transported by a third party operating on his behalf to another Member State, where they are intended for his own personal requirements and for the personal requirements of others whom that individual also represents, that individual holds in that other Member State those goods subject to excise duty, that is to say, both those intended for his own use and those intended for the use of those other individuals, for commercial purposes within the terms of Articles 7 and 9 of the Directive, even if he is not acting commercially or with a view to making a profit? 4. If the answer to Question 3 should be in the negative, does it follow from any other provision of the Directive that the individual referred to in Question 3 owes excise duty in the other Member State?’ The questions referred for a preliminary ruling
25. By its questions, which must be examined together, the Hoge Raad asks, in essence, whether the Directive must be interpreted as meaning that, where a private individual like Mr Joustra, who is not operating commercially or with a view to making a profit, purchases in one Member State, for his own requirements and for those of other individuals, products subject to excise duty, in this case wine, which have been released for consumption in that Member State, and then arranges for them to be transported on his behalf by a transport company established in another Member State, excise duty is also payable in that latter State.
26. In that regard, even though some of the documents in the case suggest that Mr Joustra had the status of a non-registered trader, it is clear from the wording of the questions referred to the Court that those questions presuppose that he did not have such a status. The questions must therefore be examined solely within the context of the general provisions set out in the Directive, in particular Articles 6 to 10 thereof, and not in the light of the specific provisions laid down by the Directive in regard to non-registered traders.
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).
32. In the present case, with a view to establishing whether excise duty may also be charged in the Member State of destination, it is therefore first of all necessary to examine whether the circumstances described by the Hoge Raad in its questions are capable of coming within the scope of Article 8 of the Directive. The applicability of Article 8 of the Directive
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).
34. Since it is not disputed in the main proceedings that the products subject to excise duty were acquired by a private individual, it is necessary to examine whether the two other conditions laid down in Article 8 of the Directive have also been met.
35. As regards the first of those conditions, it is clear from the actual terms in which Article 8 of the Directive is couched that it requires that the products be intended for the personal use of the private individual who has acquired them and that it therefore excludes products acquired by a private individual for the use of other private individuals. The latter products cannot be considered to be held for strictly personal purposes by the private individual who has acquired them.
36. It follows that where, as in the main proceedings, products subject to excise duty have been acquired by a private individual not only for his own use, but also for the use of other private individuals, only the products acquired for that private individual’s own use are capable of coming within the scope of Article 8 of the Directive.
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).
38. However, the Commission of the European Communities submits that, in order to safeguard, in a case such as that in the main proceedings, the principle governing the internal market, referred to in Article 8 of the Directive, that condition should not be interpreted as necessarily implying that the private individual must himself accompany the products which are subject to excise duty. That condition is intended only to establish that products subject to excise duty are held for strictly personal purposes. Where a private individual takes the initiative to have products subject to excise duty transported by a third party and arranges that transport as if he were carrying it out himself, like Mr Joustra in the main proceedings, it also remains possible to ascertain that the products are held for strictly personal purposes. This case is thus different to that which gave rise to the judgment in EMU Tabac and Others . Furthermore, in the event of abuse, the Member States may refuse to apply Article 8 of the Directive.
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.
41. Consequently, and having regard to the wording of Article 8 of the Directive, which does not exhibit any ambiguity, the Court has already held, in paragraphs 37 and 40 of EMU Tabac and Others , that that provision is not applicable where the purchase and/or transportation of products subject to excise duty is effected through an agent, as the Community legislature did not at any point intend that provision to apply in the event of such involvement.
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.
43. Furthermore, whether or not the transport is initiated by the private individual, the very fact that products subject to excise duty are transported to another Member State by a transport company, which facilitates the transport of quantities of products significantly exceeding those required for his own use by the individual who has acquired them, is sufficient to show that they are not held for strictly personal purposes as required by Article 8 of the Directive. In that regard, it must also be pointed out that, under Article 9(2) of the Directive, both the mode of transport used and the quantities transported are relevant factors for establishing that the products referred to in Article 8 of the Directive are held for commercial purposes and therefore not for personal purposes.
44. That interpretation is all the more compelling because, if Article 8 of the Directive were also applicable where the transport is not carried out personally by the private individual, the effect of that, for the competent authorities of the Member States, would be an increased risk of fraud as the transport of products covered by that provision requires no documentation.
45. However, the Commission submits that such an interpretation of Article 8 would be a retrograde step for the citizens of the European Union as against the situation which prevailed before the Directive entered into force in so far as, under the legislation applicable at that time, the personal effects transported in the course of a removal to another Member State and small consignments which were not of a commercial nature from one private individual to another were exempt from excise duty in the Member State of importation.
46. In that regard, however, it is sufficient to state that, although, as the Commission in fact admits, Article 8 of the Directive contains a lacuna in this regard, it is for the Community legislature to remedy it, if necessary, by adopting the measures required in order to amend that provision. This is, moreover, confirmed by the fact that a proposed amendment to the Directive has in fact been submitted by the Commission to the Council of the European Union for the purpose, inter alia, of extending the benefit of Article 8 thereof to products transported on behalf of private individuals.
47. It follows that, as stated by all the governments which submitted observations, Article 8 of the Directive does not apply where, as in the main proceedings, the products subject to excise duty acquired in one Member State by a private individual for his own use have been transported to another Member State, not by that individual, but by a transport company acting on his behalf. The applicability of Articles 7, 9 and 10 of the Directive
48. As Article 8 of the Directive does not apply to a situation such as that at issue in the main proceedings, that situation may therefore come within the scope of Articles 7, 9 or 10 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).
50. As regards Article 9 of the Directive, it is apparent from paragraph 2 thereof that that provision applies to products covered by Article 8 of the Directive, that is to say, products acquired by a private individual for his own use and transported by him. Therefore, since it follows from the above that Article 8 of the Directive does not apply to the situation at issue in the main proceedings, Article 9 thereof is not, as such, applicable to that situation either.
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.
52. Where excise duty is levied under Article 7 of the Directive in the Member State in which the products are being held for commercial purposes, although they have already been released for consumption in another Member State, Article 7(6) of the Directive provides that the excise duty paid in that other State is to be reimbursed in accordance with Article 22(3) of the Directive.
53. Consequently, the answer to the questions referred for a preliminary ruling is that the Directive must be construed as meaning that where, as in the case in the main proceedings, a private individual who is not operating commercially or with a view to making a profit acquires in one Member State, for his own personal requirements and those of other private individuals, products subject to excise duty which have been released for consumption in that Member State and arranges for them to be transported to another Member State on his behalf by a transport company established in that other State, Article 7 of the Directive, and not Article 8 thereof, is applicable, with the result that excise duty is also to be levied in that other State. Under Article 7(6) of the Directive, the excise duty paid in the first Member State is, in such a case, to be reimbursed in accordance with Article 22(3) of the Directive. Costs
54. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.