61988J0367

++++

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 12-litre limit, beyond which, by virtue of an irrebuttable presumption, any importation is regarded as having a commercial character .

In Case C-367/88,

Commission of the European Communities, initially represented by D . Grant Lawrence, and subsequently by Johannes F ns Buhl, Legal Adviser, acting as Agents, 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

Ireland, represented by Louis Dockery, Chief State Solicitor, acting as Agent, assisted by James O' Reilly, Senior Counsel, of the Bar of Ireland, with an address for service in Luxembourg at the Irish Embassy, 28 route d' Arlon,

defendant,

APPLICATION for a declaration that, by introducing and maintaining in force an allowance limited to 12 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 ( Official Journal, English Special Edition 1969 ( I ), p . 232 ), as amended, Ireland 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 10 December 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 12 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 85/348/EEC of 8 July 1985 ( Official Journal 1985 L 183, p . 24 ), Ireland has failed to fulfil its obligations under the EEC Treaty .

2 The Commission considers that the contested allowance, introduced by the "Notice by the Revenue Commissioners, customs control on cross-border traffic" issued in November 1984, is contrary to Articles 2(1 ) and 3(2 ) of the aforesaid directive on the ground that the importation of more than 12 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/EEC, 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 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 Ireland contends that the importation of alcoholic beverages similar to those listed in Article 4(1)(b ) of the directive, which are subject to quantitative restrictions, must be subjected to the same restrictions . In that regard, it considers that the quantitative limits fixed by the aforesaid provision at 1.5 litres for spirits having a standard alcoholic strength, at three litres for fortified wines having an alcoholic strength of 15 and at five litres for still wines, are equivalent in volume to 13.3, 10 and 13.3 litres of beer respectively .

6 Ireland also contends that the contested measure was necessary on account of the numerous abuses by travellers importing large quantities of beer free of duty ( up to 120 litres per car ) for subsequent sale by retail, and in view of the difficulty of verifying case by case whether or not the imports had a commercial character given the impossibility of establishing with certainty whether travellers were telling the truth when justifying themselves .

7 It should be pointed out that, as the Court has consistently held ( see, most recently, the judgment of 12 June 1990 in Case C-158/88 Commission v Ireland [1990] ECR I-2367, paragraph 7 ), in the area in question Member States are left only with the restricted power given to them by the actual provisions of the directives 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 Directive 85/348 was adopted, or by means of a protective measure provided for by the Treaty .

9 In that regard, it must be emphasized that, in its judgment in Case C-208/88 Commission v Denmark [1990] ECR I-4445 ), the Court held that an irrebuttable presumption that an importation has a commercial character, where it exceeds a given number of litres of beer, is tantamount to adding to the wording of Article 4 of the directive goods not referred to therein . The same holds true where such an irrebuttable presumption applies, by virtue of the abovementioned Notice, only in dealings between travellers and the public authorities since the obligation on the former to institute proceedings in the courts in order to establish that an importation has no commercial character leads in practice to the same result . In view of the nature of the disputes in question, recourse to judicial proceedings serves no practical purpose .

10 It must therefore be held that, by introducing and maintaining in force an allowance limited to 12 litres for beer imported in travellers' personal luggage, contrary to Articles 2(1 ) and 3(2 ) 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 85/348 of 8 July 1985, Ireland 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 Ireland 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 12 litres for beer imported in travellers' personal luggage, contrary to Articles 2(1 ) and 3(2 ) 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 85/348/EEC of 8 July 1985, Ireland has failed to fulfil its obligations under the EEC Treaty .

( 2 ) Orders Ireland to pay the costs .