PROCEDURE - Disclosure - European Commission Letter of Formal Notice - Appeal against decision to restore car on payment of restoration fee - Formal Letter opens enquiry into UK's response to bootlegging leading possibly to infraction proceedings against UK - Issue in present appeal is whether UK's policy on restoration of cars used for bootlegging is so disproportionate as to be unreasonable - Application dismissed
LONDON TRIBUNAL CENTRE E00199
MRS DANNATT Appellant
- and -
THE COMMISSIONERS OF CUSTOMS AND EXCISE Respondents
Tribunal: STEPHEN OLIVER QC (Chairman)
Sitting in public in London on 17-21 December 2001
Roderick Cordara QC and Tim Eicke, counsel, instructed by Vincent Curley & Co (Consultants) for the Appellant
Kenneth Parker QC and Tim Ward, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents
© CROWN COPYRIGHT 2002
6. Article 9.1 of 92/12 provides:
"… excise duty shall become chargeable where products for consumption in a Member State are held for commercial purposes in another Member State …"
Under the Directive, this is the only consequence envisaged for failure to fulfil the condition that goods are to be held for the individual's own use.
"… if that condition is not complied with in relation to any excise goods, those goods shall, …, be liable to forfeiture … "
Regulation 5(1) is, it is argued for Mrs Dannatt, applied in such a manner that the Commissioners not only seize the excess quantity of goods but seize all the goods imported despite the fact that, at least on one reading, the presumption must be that all the goods below "guide levels" set out in article 9.2 of the Directive and the Schedule to the Personal Reliefs Order are for personal consumption. It is said that, irrespective of the legality of regulation 5 of the Personal Reliefs Order as a matter of EC law, there can be no explanation for what is described as the "legislative overkill" in the Personal Reliefs Order other than an intention to punish and/or deter.
"The Commission is concerned that the controls currently being applied at UK Ports and Airports, and the sanctions being applied when UK excise duty law is breached, may breach the EU rules which give travellers the right to buy abroad."
At a later stage in that Notice is this passage:
"Member States are also, in principle, free to determine the sanctions applicable when excise duty law is breached. However, these sanctions must conform with the general principles of EU law, in particular with the principle of proportionality. This means that sanctions applied must not be disproportionate to the gravity of the infringements."
STEPHEN OLIVER QC