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 - Exclusion from the concept of personal luggage of portable containers containing motor fuel - Scope - Distinction between fuel in general and motor fuel
(Council Directive 69/169, as amended by Directive 78/1033, Art. 3(3) )

The restriction laid down in the second subparagraph of Article 3(3) of Directive 69/169 on exemption from turnover tax and excise duty on imports in international travel, as amended by Directive 78/1033, which excludes from the concept of personal luggage portable containers containing motor fuel, whilst allowing the duty-free importation of a quantity not exceeding 10 litres, must be interpreted as referring to motor fuel, that is fuel for internal combustion engines, and not to fuels in general. Accordingly, a Member State which limits to 10 litres the quantity of fuel which travellers may import free of duty in portable containers in a motor vehicle, even when that fuel is of a type other than motor fuel, is in breach of its obligations under the Treaty.

In Case C-100/90,
Commission of the European Communities, represented by its Legal Adviser, Johannes Foens Buhl, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Kingdom of Denmark, represented by Joergen Molde, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent, with an address for service at the Danish Embassy, 11 B Boulevard Joseph II,
defendant,
APPLICATION for a declaration that, by limiting to 10 litres the quantity of fuel that travellers may import into Denmark free of turnover tax and excise duty in portable containers in a motor vehicle, even where the fuel is of a type other than motor fuel, 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 by the Fourth Council Directive (78/1033/EEC) of 19 December 1978 (Official Journal 1978 L 366, p. 31), the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty,
THE COURT,
composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F. Grévisse and P.J.G. Kapteyn (Presidents of Chambers), C.N. Kakouris, J.C. Moitinho de Almeida, M. Díez de Velasco and M. Zuleeg, Judges,
Advocate General: M. Darmon,
Registrar: H.A. Ruehl, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 25 April 1991,
after hearing the Opinion of the Advocate General at the sitting on 11 June 1991,
gives the following
Judgment

1 By application lodged at the Court Registry on 11 April 1990, the Commission of the European Communities brought an action under Article 169 of the EEC treaty for a declaration that, by limiting to 10 litres the quantity of fuel which travellers may import into Denmark free of turnover tax and excise duty in portable containers in a motor vehicle, even where the fuel is of a type other than motor fuel, 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 by the Fourth Council Directive (78/1033/EEC) of 19 December 1978 (Official Journal 1978 L 366, p. 31) (hereinafter referred to as "the directive"), the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty.
2 The Commission takes the view that the contested restriction, which was introduced into Danish law by Order No 422 of 25 September 1985 of the Ministry of Taxation and Excise (Lovtidende A, 1985, p. 1397), the latter having been superseded by Ministerial Order No 412 of 13 June 1989 (Lovtidende A, 1989, p. 1379) and most recently amended by Ministerial Order No 688 of 6 November 1989 (Lovtidende A, 1989, p. 585), is contrary to Articles 1(1), 2(1) and 3(3) of the Directive, as amended, since the restriction laid down in the second subparagraph of Article 3(3) concerns only motor fuel, that is, fuel for internal combustion engines.
3 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the pleas in law 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 Pursuant to Articles 1(1) and 2(1) of the directive, exemption from turnover tax and excise duty on imports is applicable to goods contained in the personal luggage of travellers either from non-member countries or from Member States of the Community, when certain conditions are satisfied.
5 Pursuant to Article 3(3) of the Directive, as amended:
"' Personal luggage' shall mean the whole of the luggage which a traveller is in a position to submit to the customs authorities upon his arrival, as well as luggage which he submits later to the same authorities, subject to proof that such luggage was registered as accompanied luggage, at the time of his departure, with the company which has been responsible for conveying him.
The definition of 'personal luggage' shall not cover portable containers containing fuel. However, for each means of motor transport a quantity of fuel not exceeding 10 litres shall be admitted duty-free in such a container, without prejudice to national provisions governing the possession and transport of fuel."
6 The Danish Government contends that the limitation laid down in the second subparagraph of Article 3(3) concerns fuels in general and not only motor fuel. In support of that view, it relies on the fact that several language versions of the provision in question, including the Danish version, use a term describing fuels in general.
7 It should be observed that in several language versions of the abovementioned provision, the word used refers to motor fuel, whilst other versions use a more generic term. Thus the German, English, Danish, Greek, Dutch, Portuguese, Spanish and Italian versions use, respectively, the words "Kraftstoff", "Fuel", "braendstof", "*******", "brandstof", "combustível", "carburante" and "carburante".
8 In the light of that divergence, it is necessary, in order to interpret the provision at issue, to establish its purpose.
9 According to the Commission, the reason for the introduction of the restriction in question was that numerous motorists claimed, at the risk of jeopardizing road safety, the benefit of the exemptions available under Articles 1 and 2 of the Directive in respect of motor fuel contained in portable containers carried in their vehicles. It was against that background that the Commission, in its proposal for a Fourth Council Directive amending Directive 69/169 (Official Journal 1978 C 213, p. 9), imposed a restriction on the quantities of motor fuel which could be carried free of tax in reserve tanks. The Council, in replacing that term by the term "portable containers", did not intend to extend the restriction to all types of fuel carried but merely to include all motor fuels, including those of a type other than that used in the vehicle in question.
10 In that respect, if the purpose of the provision was to ensure road safety, it is difficult to understand why the restriction in question was imposed on a type of motor fuel such as diesel oil, which is not inflammable. Moreover, as the Danish Government pointed out at the hearing, such a purpose likewise could not explain why the Commission had proposed different limits in respect of imports from non-member countries and those from another Member State, namely 5 and 15 litres respectively.
11 In the absence of any factor allowing the specific purpose of the provision at issue to be determined, it seems that the measures laid down by the Directive constitute, as is apparent from the third recital in the preamble thereto, a further step towards the reciprocal opening of the markets of the Member States and the creation of conditions similar to those of a domestic market and that, accordingly, the Directive, being intended to achieve a fundamental freedom, must, in case of doubt, be interpreted in the manner most conducive to that freedom.
12 It follows that the second subparagraph of Article 3(3) of the Directive, as amended, refers only to motor fuels.
13 The Danish Government contends, in the alternative, that, if such an interpretation were accepted, no exemption under the Directive could be applicable to other fuels. Since the abovementioned Article excludes portable containers containing motor fuel from the concept of personal luggage, there is all the more reason for excluding other fuels since they have no connection with the journey.
14 In that respect it should be observed that the term of personal luggage, as used in the first subparagraph of Article 3(3) of the Directive, as amended, is an objective concept, which is wider than the meaning of the term in everyday usage. It refers to the luggage which a traveller is in a position to submit to the customs authorities upon his arrival, as well as luggage which he submits later to the same authorities under the conditions set out in that provision. It is true that, according to the second subparagraph of Article 3(3), the definition of "personal luggage" does not cover portable containers containing fuel. However, that provision, which restricts the meaning of the term personal luggage, must be interpreted strictly.
15 It follows that fuel other than motor fuel which a traveller is in a position to submit to the customs authorities come within the scope of "personal luggage" as used in the abovementioned provision.
16 It follows from all the foregoing considerations that by limiting to 10 litres the quantity of fuel which travellers may import into Denmark free of turnover tax and excise duty in portable containers in a motor vehicle, even where the fuel is of a type other than motor fuel, is 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 the Fourth Council Directive (78/1033/EEC) of 19 December 1978, the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty.

Costs
17 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 limiting to 10 litres the quantity of fuel which travellers may import into Denmark free of turnover tax and excise duty in portable containers in a motor vehicle, even where the fuel is of a type other than motor fuel, 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 the Fourth Council Directive (78/1033/EEC) of 19 December 1978, the Kingdom of Denmark has failed to fulfil its obligations under the EEC Treaty;
2. Orders the Kingdom of Denmark to pay the costs.