Court of Justice of the European Communities (including Court of First Instance Decisions)

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Tax provisions - Harmonization of legislation - Exemption from turnover tax and excise duty - Goods contained in travellers' personal luggage - Residual powers of Member States - Scope - Establishment of a quantitative limit for beer - Not permissible
( Council Directive 69/169, Art . 4(1 ) )

In the field of exemption from turnover tax and excise duty for goods contained in travellers' personal luggage, Member States are left with only the restricted power specifically given to them by Directive 69/169, as later supplemented and amended . That directive does not provide for the possibility of laying down quantitative limits for goods which, like beer, are not expressly included in the list set out in Article 4(1 ) of the directive . Accordingly, a Member State may not extend that list by establishing for beer a 10-litre limit, beyond which, by virtue of an irrebuttable presumption, any importation is regarded as having a commercial character .

In Case C-208/88,
Commission of the European Communities, represented by Johannes F ns Buhl, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,
applicant,
v
Kingdom of Denmark, represented by J rgen Molde, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the office of Denmark' s acting chargé d' affaires, Suzanne Rubow, Ministerial Adviser, at the Danish Embassy, 11 B boulevard Joseph-II,
defendant,
APPLICATION for a declaration that, by introducing and maintaining in force an allowance limited to 10 litres for beer imported in a traveller' s personal luggage, contrary to the provisions of Council Directive 69/169/EEC of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel ( Official Journal, English Special Edition 1969 ( I ), p . 232 ), as amended, the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty,
THE COURT,
composed of : O . Due, President, G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias ( Presidents of Chambers ), F . A . Schockweiler and F . Grévisse, Judges,
Advocate General : M . Darmon
Registrar : H . A . Ruehl, Principal Administrator,
having regard to the Report for the Hearing,
after hearing the arguments put forward by the parties' representatives at the hearing on 23 May 1990,
after hearing the Opinion of the Advocate General delivered at the sitting on 3 July 1990
gives the following
Judgment

1 By application lodged at the Court Registry on 28 July 1988, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by introducing and maintaining in force an allowance limited to 10 litres for beer imported in a traveller' s personal luggage, contrary to the provisions of Council Directive 69/169/EEC of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel, as amended by Council Directive 87/198/EEC of 16 March 1987 ( Official Journal 1987 L 78, p . 53 ), the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty .
2 The Commission considers that the contested allowance, introduced by Order No 365 of 9 June 1986 of the Ministry of Finance ( Lovtidende A 1986, p . 1126 ) is contrary to Articles 2(1 ) and 3(2 ) of the aforesaid directive on the ground that imports of more than 10 litres of beer cannot be regarded as automatically having a commercial character .
3 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
4 It should be borne in mind that, in accordance with Directive 69/169, as amended, goods such as beer, which are not referred to in Article 4(1 ), and which are not therefore subject to quantitative limits, may, in travel between Member States, be imported free from turnover tax and excise duty on imports "provided that they ... have no commercial character and that the total value of the goods does not exceed ECU 390 per person" ( Article 2(1 ) ). Imports are to be regarded as having no commercial character if they consist exclusively of goods for the personal or family use of the travellers, or of goods intended as presents; the nature or quantity of such goods must not be such as to indicate that they are being imported for commercial reasons ( Article 3(2)(b ) ).
5 The Danish Government argues, in substance, that where the limit set by the contested measure is exceeded, that raises a presumption that the imports have a commercial character which, in accordance with Article 3(2 ) of the directive, precludes the benefit of the exemption . It maintains that it was necessary to establish that presumption on account of the numerous abuses by travellers who imported large quantities of beer free of duty ( up to 500 litres per vehicle ) for subsequent retail sale and of the resultant difficulty of checking case by case, in an entirely objective manner and in conditions of legal certainty, whether or not each importation had a commercial character .
6 The Danish Government further maintains that the volume of alcohol in 10 litres of beer corresponds to that contained in 4 litres of wine, which is the maximum quantity qualifying for exemption from duty under Article 4(1 ) of the directive, as amended by Directive 87/198 referred to above, and that consequently the contested measure was adopted in conformity with the provisions of the directive .
7 It should be pointed out that, as the Court has consistently held ( see, most recently, the judgment in Case C-158/88 Commission v Ireland [1990] ECR I-2367, paragraph 7 ), in the area in question Member States are left with only the restricted power given to them by the actual provisions of the directive in question . No provision is made in those directives for laying down quantitative limits for goods not expressly referred to in Article 4(1 ) of Directive 69/169 .
8 A quantitative limit of that kind may not be introduced except under a directive amending Directive 69/169, as was the case, in particular, when Council Directive 85/348/EEC of 8 July 1985 ( Official Journal 1985 L 183, p . 24 ) was adopted, which added tafia, saké and other similar beverages to the list of goods subject to quantitative limits, or by means of a protective measure provided for by the Treaty .
9 In that regard, it must be pointed out that the contested measure raises an irrebuttable presumption that an importation has a commercial character where it exceeds 10 litres of beer, which is tantamount to adding to the wording of Article 4 of the directive goods not referred to therein .
10 It must therefore be held that, by introducing and maintaining in force an allowance limited to 10 litres for beer imported in travellers' personal luggage, contrary to the provisions of Council Directive 69/169 of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel, as amended by Council Directive 87/198 of 16 March 1987, the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty .

Costs
11 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Kingdom of Denmark has failed in its submissions, it must be ordered to pay the costs .

On those grounds,
THE COURT
hereby :
( 1 ) Declares that, by introducing and maintaining in force an allowance limited to 10 litres for beer imported in travellers' personal luggage, contrary to the provisions of Council Directive 69/169/EEC of 28 May 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to exemption from turnover tax and excise duty on imports in international travel, as amended by Council Directive 87/198/EEC of 16 March 1987, the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty;
( 2 ) Orders the Kingdom of Denmark to pay the costs .