61982J0278

1 . PRELIMINARY RULINGS - REFERENCE TO THE COURT - NEED FOR A PRELIMINARY RULING - ASSESSMENT BY THE NATIONAL COURT

( EEC TREATY , ART . 177 )

2 . COMMON CUSTOMS TARIFF - EXEMPTIONS APPLICABLE TO GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS - GOODS PURCHASED ON BOARD FERRY-BOATS - EXEMPTIONS FROM CUSTOMS DUTIES , AGRICULTURAL LEVIES AND OTHER CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS - CONDITIONS OF APPLICATION - TRANSPORT BETWEEN A NON-MEMBER COUNTRY AND THE COMMUNITY - TRANSPORT BETWEEN MEMBER STATES

TAX PROVISIONS - HARMONIZATION OF LEGISLATION - EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTY - GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS AND PURCHASED ON BOARD FERRY-BOATS - CONDITIONS OF APPLICATION - TRANSPORT BETWEEN A NON-MEMBER COUNTRY AND THE COMMUNITY - TRANSPORT BETWEEN MEMBER STATES

( REGULATION NO 1544/69 OF THE COUNCIL , AS AMENDED BY REGULATION NO 3061/78 , AND REGULATION NO 1818/75 , ART . 1 , AS AMENDED BY REGULATION NO 2780/78 , AND ART . 2 ; COUNCIL DIRECTIVE 69/169 )

1 . IT IS NOT FOR THE COURT TO DECIDE WHETHER OR NOT A REFERENCE FOR A PRELIMINARY RULING IS NECESSARY . IN THE CONTEXT OF THE DIVISION OF JUDICIAL FUNCTIONS BETWEEN NATIONAL COURTS AND TRIBUNALS , ON THE ONE HAND , AND THE COURT OF JUSTICE , ON THE OTHER , UNDER ARTICLE 177 OF THE TREATY , IT IS , IN FACT , FOR THE NATIONAL COURT , WHICH ALONE HAS A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS OF THE PARTIES AND WHICH WILL HAVE TO TAKE RESPONSIBILITY FOR GIVING JUDGMENT IN THE CASE , TO ASSESS , ON THE BASIS OF ITS FULL KNOWLEDGE OF THE CASE , WHETHER THE QUESTIONS OF LAW RAISED IN THE PROCEEDINGS PENDING BEFORE IT ARE MATERIAL AND WHETHER A PRELIMINARY RULING IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT .

2.IN RELATION TO TRANSPORT BY SEA BY FERRY BETWEEN A NON-MEMBER COUNTRY AND A MEMBER STATE :

( A ) EXEMPTIONS FROM CUSTOMS DUTIES , AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS PROVIDED FOR IN REGULATION NO 1544/69 ( AS AMENDED BY REGULATION NO 3061/78 ) AND IN ARTICLE 1 OF REGULATION NO 1818/75 ( AS AMENDED BY REGULATION NO 2780/78 ) APPLY TO GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS COMING FROM A NON-MEMBER COUNTRY , IRRESPECTIVE OF THE ORIGIN OF THE GOODS AND THE PLACE FROM WHICH THEY COME AND THE CUSTOMS DUTIES AND TAXES WHICH THEY HAVE BORNE PRIOR TO THEIR IMPORTATION INTO THE TERRITORY OF THE COMMUNITY .

( B)THE EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES PROVIDED FOR IN COUNCIL DIRECTIVE 69/169 OF 28 MAY 1969 IS GRANTED TO TRAVELLERS WHO ARRIVE IN THE CUSTOMS TERRITORY OF THE COMMUNITY FROM A NON-MEMBER COUNTRY AND THE CIRCUMSTANCES IN WHICH THE GOODS HAVE BEEN ACQUIRED ARE IRRELEVANT TO THE GRANT OF THE EXEMPTION .

IN RELATION TO INTRA-COMMUNITY TRANSPORT BY FERRY

( A)GOODS WHICH HAVE NOT YET BEEN PUT INTO FREE CIRCULATION AND WHICH ARE CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE MAY NOT BENEFIT FROM ANY EXEMPTION FROM CUSTOMS DUTIES ON THEIR IMPORTATION INTO A MEMBER STATE .

( B)DIRECTIVE 69/169 , AS AMENDED , IS TO BE INTERPRETED AS MEANING THAT , IN THE CONTEXT OF INTRA-COMMUNITY TRANSPORT , GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE AND ACQUIRED IN DUTY-FREE SHOPS ON BOARD FERRIES OPERATING REGULAR SERVICES BETWEEN MEMBER STATES BENEFIT , ON IMPORTATION , ON THE ONE HAND , FROM EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES AND , ON THE OTHER HAND , FROM EXEMPTION FROM THE OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , SUBJECT TO THE LIMITS AS TO VALUE AND QUANTITY OF THE EXEMPTIONS GRANTED TO TRAVELLERS COMING FROM A NON-MEMBER COUNTRY .

IN RELATION TO INTRA-COMMUNITY TRANSPORT BY COMBINED SERVICES COMPRISING TRAVEL TO A MEMBER STATE BY FERRY AND RETURN BY LAND ( COACH ) TO THE MEMBER STATE IN WHICH THE JOURNEY BEGAN

( A)GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE MAY NOT BENEFIT FROM ANY EXEMPTION FROM CUSTOMS DUTIES ON THEIR IMPORTATION WHEN THE TRAVELLER RETURNS BY LAND TO THE MEMBER STATE IN WHICH THE JOURNEY BEGAN .

( B)IN PRINCIPLE , GOODS ACQUIRED FREE OF TURNOVER TAX AND EXCISE DUTIES IN THE COURSE OF INTRA-COMMUNITY TRANSPORT BY COMBINED FERRY AND COACH SERVICES ARE TO BENEFIT FROM THE LIMITED EXEMPTIONS GRANTED TO TRAVELLERS FROM A NON-MEMBER COUNTRY . HOWEVER , NO EXEMPTION MAY BE GRANTED IN RESPECT OF SUCH GOODS IN A CASE WHERE THE STAY IN THE MEMBER STATE THROUGH WHICH THE TRAVELLER PASSES IS OF A PURELY TOKEN NATURE AND DOES NOT IN FACT PROVIDE AN OPPORTUNITY OF MAKING PURCHASES .

IN CASE 278/82

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE FOURTH CHAMBER OF THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

( 1 ) REWE-HANDELSGESELLSCHAFT NORD MBH , HOHNDORF ,

( 2 ) REWE-MARKT HERBERT KUREIT , NIENDORF ,

PLAINTIFFS ,

AND

HAUPTZOLLAMTER ( PRINCIPAL CUSTOMS OFFICES ) FLENSBURG , ITZEHOE AND LUBECK-WEST ,

DEFENDANTS ,

PARTY JOINED TO THE PROCEEDINGS :

FORDE-REEDEREI GMBH , FLENSBURG ,

ON THE INTERPRETATION OF REGULATION ( EEC ) NO 1544/69 OF THE COUNCIL OF 23 JULY 1969 ( AS AMENDED ) ON THE TARIFF APPLICABLE TO GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 359 ), OF REGULATION ( EEC ) NO 1818/75 OF THE COUNCIL OF 10 JULY 1975 ON THE AGRICULTURAL LEVIES , COMPENSATORY AMOUNTS AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND TO CERTAIN GOODS RESULTING FROM THEIR PROCESSING , CONTAINED IN TRAVELLERS ' PERSONAL BAGGAGE ( OFFICIAL JOURNAL 1975 , L 185 , P . 3 ) AND OF COUNCIL DIRECTIVE 69/169/EEC OF 28 MAY 1969 ( AS AMENDED ) 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 ),

1 BY ORDER OF 4 AUGUST 1982 , WHICH WAS RECEIVED AT THE COURT ON 18 OCTOBER 1982 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS RELATING TO THE INTERPRETATION OF REGULATION ( EEC ) NO 1544/69 OF THE COUNCIL OF 23 JULY 1969 ON THE TARIFF APPLICABLE TO GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( II ), P . 359 ), AS AMENDED , 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 , AND OF REGULATION ( EEC ) NO 1818/75 OF THE COUNCIL OF 10 JULY 1975 ON THE AGRICULTURAL LEVIES , COMPENSATORY AMOUNTS AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND TO CERTAIN GOODS RESULTING FROM THEIR PROCESSING , CONTAINED IN TRAVELLERS ' PERSONAL BAGGAGE ( OFFICIAL JOURNAL 1975 , L 185 , P . 3 ), AS AMENDED .

2 THE QUESTIONS AROSE IN THE COURSE OF PROCEEDINGS BETWEEN A WHOLESALER AND A RETAILER ESTABLISHED IN THE FEDERAL REPUBLIC OF GERMANY , ON THE ONE HAND , AND THE HAUPTZOLLAMTER ( PRINCIPAL CUSTOMS OFFICES ) OF THE LAND OF SCHLESWIG-HOLSTEIN RESPONSIBLE FOR THE NORTH-SEA AND BALTIC COAST AREAS . THE ACTION BROUGHT BY THE PLAINTIFFS IN THE MAIN PROCEEDINGS INITIALLY SOUGHT AN ORDER DIRECTING THE HAUPTZOLLAMTER TO REFRAIN FROM CLEARING THROUGH CUSTOMS FREE OF DUTY GOODS BROUGHT BACK FROM SEA VOYAGES BY PASSENGERS IN THEIR PERSONAL LUGGAGE .

3 WHILST THE PROCEEDINGS WERE ORIGINALLY CONCERNED WITH THE SO-CALLED ' ' BUTTER-BUYING CRUISES ' ' , THAT IS TO SAY SHORT SEA CRUISES AND EXCURSIONS WHICH DO NOT INVOLVE A CALL AT A PORT OR ONLY A TOKEN CALL , THEY WERE EXTENDED , IN THE COURSE OF THE HEARING BEFORE THE FINANZGERICHT , TO THE SYSTEM OF CUSTOMS DUTIES AND TAXES APPLICABLE IN RESPECT OF GOODS PURCHASED FREE OF CUSTOMS DUTIES AND TAXES ON SHIPS OPERATING REGULAR ROUTES AND ON FERRIES ON THE IMPORTATION OF SUCH GOODS . IT WAS ALSO BROUGHT TO THE ATTENTION OF THE FINANZGERICHT THAT SHIPS WERE LEAVING PORTS IN THE FEDERAL REPUBLIC OF GERMANY FOR DENMARK WHERE NO ENTRY DUTIES WERE CHARGED ON GOODS ACQUIRED TAX-FREE AND FROM WHERE THE PASSENGERS RETURNED BY COACH TO THE FEDERAL REPUBLIC OF GERMANY WHERE THEY ALSO BENEFITED FROM EXEMPTIONS .

4 IT IS CLEAR FROM THE ORDER FOR REFERENCE THAT THE PLAINTIFFS IN THE MAIN PROCEEDINGS MAINTAINED BEFORE THE FINANZGERICHT THAT SUCH SHORT VOYAGES HAD THE EFFECT OF DEPRIVING LOCAL WHOLESALE AND RETAIL TRADERS OF THE BENEFIT OF A LARGE PROPORTION OF THE PURCHASING POWER OF THE BALTIC COAST AREA IN FAVOUR OF THE SHIPPING UNDERTAKINGS WHICH ORGANIZED THE CRUISES .

5 THE PLAINTIFFS IN THE MAIN PROCEEDINGS THEREFORE REQUESTED THE FINANZGERICHT TO DIRECT THE HAUPTZOLLAMTER IN QUESTION TO REFRAIN FROM CLEARING THROUGH CUSTOMS FREE OF DUTY GOODS IMPORTED IN THE AFOREMENTIONED CIRCUMSTANCES .

6 THE FINANZGERICHT BEFORE WHICH THE DISPUTE WAS BROUGHT REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :

' ' 1 . MUST REGULATION ( EEC ) NO 1544/69 OF THE COUNCIL OF 23 JULY 1969 , AS LAST AMENDED BY COUNCIL REGULATION ( EEC ) NO 3313/81 OF 17 NOVEMBER 1981 , REGULATION NO 1818/75 OF THE COUNCIL OF 10 JULY 1975 , AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 2780/78 OF 27 NOVEMBER 1978 , AND COUNCIL DIRECTIVE 69/169/EEC OF 28 MAY 1969 , AS LAST AMENDED BY DIRECTIVE 81/933/EEC OF 17 NOVEMBER 1981 , BE CONSTRUED TO THE EFFECT THAT THE TAX CONCESSIONS PROVIDED FOR THEREIN IN RESPECT OF CUSTOMS DUTIES , IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS OR GOODS RESULTING FROM THEIR PROCESSING , TURNOVER TAXES AND EXCISE DUTIES ALSO APPLY TO GOODS WHICH ARE NOT IN FREE CIRCULATION IN THE MEMBER STATES OR WHICH HAVE NOT BORNE TURNOVER TAXES OR EXCISE DUTIES IN THE MEMBER STATES OR NON-MEMBER COUNTRIES AND WHICH ARE PURCHASED BY PASSENGERS ON FERRIES CARRYING PASSENGER TRAFFIC BETWEEN A MEMBER STATE AND A NON-MEMBER COUNTRY?

2.MUST THE PROVISIONS MENTIONED IN QUESTION ( 1 ) BE CONSTRUED TO THE EFFECT THAT THE TAX CONCESSIONS IN QUESTION ALSO APPLY TO GOODS WHICH ARE NOT IN FREE CIRCULATION IN THE MEMBER STATES OR WHICH HAVE NOT BORNE TURNOVER TAXES OR EXCISE DUTIES IN THE MEMBER STATES OR NON-MEMBER COUNTRIES AND WHICH ARE PURCHASED BY PASSENGERS ON FERRIES CARRYING PASSENGER TRAFFIC BETWEEN MEMBER STATES?

3.MUST THE PROVISIONS MENTIONED IN QUESTION ( 1 ) BE CONSTRUED TO THE EFFECT THAT THE TAX CONCESSIONS IN QUESTION ALSO APPLY TO GOODS WHICH ARE NOT IN FREE CIRCULATION IN THE MEMBER STATES OR WHICH HAVE NOT BORNE TURNOVER TAXES OR EXCISE DUTIES IN THE MEMBER STATES OR NON-MEMBER COUNTRIES AND WHICH ARE PURCHASED BY PASSENGERS ON SHIPS SAILING FROM A PORT IN A MEMBER STATE TO THE PORT OF ANOTHER MEMBER STATE WHERE THE PASSENGERS GO ASHORE AND THEN , WITHOUT BEING CHARGED DUTY IN THE COUNTRY IN WHICH THEY ARRIVE , RETURN BY LAND TO THE MEMBER STATE IN WHICH THEY BEGAN THEIR JOURNEY?

' '

THE APPLICATION OF ARTICLE 177

7 THE PLAINTIFFS IN THE MAIN ACTION CONSIDER THAT THE COURT , IN ITS JUDGMENT OF 7 JULY 1981 ( CASE 158/80 REWE-HANDELSGESELLSCHAFT NORD MBH AND REWE-MARKT STEFFEN V HAUPTZOLLAMT KIEL ( 1981 ) ECR 1805 ), GIVEN IN RESPONSE TO QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY THE SAME FINANZGERICHT , HAS ALREADY GIVEN AN UNEQUIVOCAL RULING THAT ' ' BUTTER-BUYING CRUISES ' ' ARE INCOMPATIBLE WITH COMMUNITY LAW AS REGARDS BOTH EXEMPTIONS FROM CUSTOMS DUTIES AND EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES . THEY CONTEND THAT THE CONCLUSIONS OF THE PARTIES TO THE MAIN ACTION WHICH GAVE RISE TO THE AFOREMENTIONED JUDGMENT ARE THE SAME AS THOSE OF THE PARTIES TO THE MAIN ACTION IN THIS CASE AND THAT THE FINANZGERICHT IS SEEKING FROM THE COURT A JUDGMENT IN ESSENTIALLY THE SAME TERMS AS THOSE OF THE JUDGMENT OF 7 JULY 1981 . ACCORDINGLY THE PRELIMINARY RULING SOUGHT BY THE ORDER FOR REFERENCE IS NOT NECESSARY WITHIN THE MEANING OF ARTICLE 177 OF THE TREATY .

8 AS HAS ALREADY BEEN HELD , IT IS NOT FOR THE COURT TO DECIDE WHETHER OR NOT A REFERENCE FOR A PRELIMINARY RULING IS NECESSARY . IN THE CONTEXT OF THE DIVISION OF JUDICIAL FUNCTIONS BETWEEN NATIONAL COURTS AND TRIBUNALS , ON THE ONE HAND , AND THE COURT OF JUSTICE , ON THE OTHER , UNDER ARTICLE 177 OF THE TREATY , IT IS , IN FACT , FOR THE NATIONAL COURT , WHICH ALONE HAS A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS OF THE PARTIES AND WHICH WILL HAVE TO TAKE RESPONSIBILITY FOR GIVING JUDGMENT IN THE CASE , TO ASSESS , ON THE BASIS OF ITS FULL KNOWLEDGE OF THE CASE , WHETHER THE QUESTIONS OF LAW RAISED IN THE PROCEEDINGS PENDING BEFORE IT ARE MATERIAL AND WHETHER A PRELIMINARY RULING IS NECESSARY TO ENABLE IT TO GIVE JUDGMENT .

9 IN ANY EVENT , IT SHOULD BE NOTED THAT THE AFOREMENTIONED JUDGMENT OF 7 JULY 1981 CONCERNED THE TARIFF AND TAX TREATMENT OF THE IMPORTATION OF GOODS ACQUIRED ON THE OCCASION OF CRUISES SPECIALLY ORGANIZED IN ORDER TO OBTAIN THE BENEFIT OF EXEMPTIONS ( ' ' BUTTER-BUYING CRUISES ' ' ). IN THIS CASE , ON THE OTHER HAND , THE ORDER FOR REFERENCE RELATES TO THE TARIFF AND TAX TREATMENT OF THE IMPORTATION OF GOODS PURCHASED ON BOARD FERRIES PROVIDING REGULAR SERVICES OR IN THE COURSE OF COMBINED FERRY AND COACH JOURNEYS .

THE REPLIES TO BE GIVEN TO THE DIFFERENT QUESTIONS REFERRED TO THE COURT FOR A PRELIMINARY RULING

10 IT SHOULD BE NOTED FIRST THAT THE QUESTIONS PUT BY THE NATIONAL COURT RELATE TO THREE TYPES OF EXEMPTION WHICH MAY BE APPLICABLE ON THE IMPORTATION OF GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS COMING FROM A NON-MEMBER COUNTRY OR A MEMBER STATE :

1 . EXEMPTIONS FROM CUSTOMS DUTIES PROVIDED FOR IN REGULATION NO 1544/69 OF THE COUNCIL , CITED ABOVE , AS AMENDED ;

2.EXEMPTIONS FROM AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND TO CERTAIN GOODS RESULTING FROM THEIR PROCESSING PROVIDED FOR IN REGULATION NO 1818/75 OF THE COUNCIL OF 10 JULY 1975 , CITED ABOVE , AS AMENDED ;

3.EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES PROVIDED FOR IN COUNCIL DIRECTIVE 69/169 OF 28 MAY 1969 , CITED ABOVE , AS AMENDED .

11 NEVERTHELESS , AS FAR AS TRAVEL BETWEEN NON-MEMBER COUNTRIES AND MEMBER STATES IS CONCERNED , IT IS POSSIBLE TO GIVE A SINGLE REPLY TO THE QUESTIONS CONCERNING CUSTOMS DUTY EXEMPTIONS AND THOSE CONCERNING EXEMPTIONS FROM AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS , REFERRED TO IN ARTICLE 1 OF REGULATION NO 1818/75 . BY VIRTUE OF THAT PROVISION , REGULATION NO 1544/69 WAS EXTENDED TO AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS ENTERING THE COMMUNITY .

12 SIMILARLY , AS FAR AS TRAVEL WITHIN THE COMMUNITY IS CONCERNED , IT IS POSSIBLE TO GIVE A SINGLE REPLY TO THE QUESTIONS CONCERNING EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES , ON THE ONE HAND , AND EXEMPTIONS FROM OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS , REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , ON THE OTHER HAND . BY VIRTUE OF THAT PROVISION , EXEMPTION FROM THE IMPORT CHARGES PROVIDED FOR UNDER THE COMMON AGRICULTURAL POLICY OR UNDER THE SPECIAL ARRANGEMENTS APPLICABLE UNDER ARTICLE 235 OF THE TREATY IS ALLOWED FOR AGRICULTURAL PRODUCTS AND CERTAIN GOODS RESULTING FROM THEIR PROCESSING , CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS COMING FROM A MEMBER STATE . THE LIMITS AND THE CONDITIONS FOR GRANTING THE EXEMPTION ARE THE SAME AS THOSE SET OUT IN DIRECTIVE 69/169 .

1 . THE FIRST QUESTION : TRANSPORT BY SEA BETWEEN A NON-MEMBER COUNTRY AND A MEMBER STATE

13 THE FINANZGERICHT ' S FIRST QUESTION ASKS , IN SUBSTANCE , WHETHER , IN THE CASE OF PASSENGER TRANSPORT BETWEEN A NON-MEMBER COUNTRY AND A MEMBER STATE , GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE WHICH HAVE NOT BEEN PUT INTO FREE CIRCULATION AND ON WHICH TURNOVER TAX AND EXCISE DUTY HAVE NOT BEEN LEVIED , MAY BENEFIT ON THEIR IMPORTATION INTO THE MEMBER STATE FROM THE EXEMPTIONS FROM CUSTOMS DUTIES , AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS , ON THE ONE HAND , AND FROM TURNOVER TAX AND EXCISE DUTIES , ON THE OTHER HAND , PROVIDED FOR IN THE AFOREMENTIONED REGULATIONS AND DIRECTIVES .

( A ) EXEMPTION FROM CUSTOMS DUTIES , AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS

14 THE COURT HAS ALREADY RULED , IN RELATION TO SUCH EXEMPTIONS , IN ITS JUDGMENT OF 7 JULY 1981 , CITED ABOVE , THAT REGULATION NO 1544/69 APPLIES TO THE LUGGAGE OF TRAVELLERS COMING FROM A NON-MEMBER COUNTRY ' ' IRRESPECTIVE OF THE ORIGIN OF THE GOODS OR THE PLACE FROM WHICH THEY COME AND OF THE CUSTOMS DUTIES AND TAXES WHICH THEY HAVE BORNE PRIOR TO THEIR IMPORTATION INTO THE TERRITORY OF THE COMMUNITY ' ' .

15 THE FINANZGERICHT , WHICH CONSIDERS THAT THAT RULING RELATES ONLY TO GOODS COMING FROM A NON-MEMBER COUNTRY , ONCE AGAIN SEEKS AN INTERPRETATION OF ARTICLE 1 OF REGULATION NO 1544/69 AND ARTICLE 1 OF REGULATION NO 1818/75 WITH REGARD TO GOODS ACQUIRED ON BOARD FERRIES ENGAGED IN PASSENGER TRANSPORT BETWEEN A NON-MEMBER COUNTRY AND A MEMBER STATE , ON THE GROUND , ACCORDING TO THE ORDER FOR REFERENCE , THAT THE FERRIES MAY OBTAIN SUPPLIES IN THE COMMUNITY , IN PARTICULAR IN THE FEDERAL REPUBLIC OF GERMANY , OF GOODS WHICH HAVE BORNE NEITHER CUSTOMS DUTIES , NOR TAXES , NOR EXCISE DUTIES . IN THE FINANZGERICHT ' S VIEW , THE WORDING , SPIRIT AND PURPOSE OF REGULATION NO 1544/69 LEND SOME SUPPORT TO INTERPRETING THE ABOVE-MENTIONED PROVISIONS AS MEANING THAT IT IS POSSIBLE TO IMPORT TAX-FREE , WITHIN THE LIMITS LAID DOWN THEREIN , ONLY GOODS PURCHASED IN THE TERRITORY OF A NON-MEMBER COUNTRY .

16 IN THAT RESPECT IT MUST BE EMPHASIZED THAT , AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 7 JULY 1981 , CITED ABOVE , THE OBJECTIVE OF REGULATION NO 1544/69 IS TO SIMPLIFY THE CLEARANCE THROUGH CUSTOMS OF GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE COMING FROM NON-MEMBER COUNTRIES ; THAT OBJECTIVE WOULD NOT BE ATTAINED IF THE CUSTOMS AUTHORITIES WERE OBLIGED TO DETERMINE , AT THE TIME OF IMPORTATION , THE ORIGIN OF THE GOODS FOR WHICH EXEMPTION FROM CUSTOMS DUTIES IS CLAIMED . THAT REASONING APPLIES EQUALLY TO THE SITUATION DESCRIBED BY THE NATIONAL COURT IN THIS CASE . THERE IS THEREFORE NOTHING IN THAT SITUATION WHICH CALLS FOR ANY CHANGE IN THE REPLY GIVEN IN THE JUDGMENT OF 7 JULY 1981 .

17 THE REPLY TO BE GIVEN TO THE FIRST PART OF THE QUESTION SHOULD THEREFORE BE THAT , IN RELATION TO TRANSPORT BY SEA BY FERRY BETWEEN NON-MEMBER COUNTRIES AND MEMBER STATES , THE EXEMPTIONS PROVIDED FOR IN REGULATION NO 1544/69 ( AS AMENDED BY REGULATION NO 3061/78 ) AND IN ARTICLE 1 OF REGULATION NO 1818/75 ( AS AMENDED BY REGULATION NO 2780/78 ) APPLY TO GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS WHO ENTER THE TERRITORY OF THE COMMUNITY FROM A NON-MEMBER COUNTRY , IRRESPECTIVE OF THE ORIGIN OF THE GOODS AND THE PLACE FROM WHICH THEY COME AND OF THE CUSTOMS DUTIES AND TAXES WHICH THEY HAVE BORNE PRIOR TO THEIR IMPORTATION INTO THE TERRITORY OF THE COMMUNITY .

( B ) EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES

18 THE COURT HAS ALREADY STATED IN REPLY TO THIS QUESTION IN ITS JUDGMENT OF 7 JULY 1981 , CITED ABOVE , THAT THE EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES PROVIDED FOR BY DIRECTIVE 69/169 , CITED ABOVE , MAY BE GRANTED ONLY TO TRAVELLERS WHO ARRIVE IN THE CUSTOMS TERRITORY OF THE COMMUNITY FROM A NON-MEMBER COUNTRY AND THAT , IN SUCH A CASE , ' ' THE CIRCUMSTANCES IN WHICH THE GOODS HAVE BEEN ACQUIRED ARE IRRELEVANT TO THE GRANT OF THE EXEMPTION ' ' .

19 THE FINANZGERICHT ALSO REFERS TO THE CIRCUMSTANCES DESCRIBED ABOVE IN WHICH FERRY OPERATORS MAY OBTAIN THEIR SUPPLIES AND CONSIDERS THAT THE EXEMPTION PROVIDED FOR IN DIRECTIVE 69/169 APPLIES ONLY TO GOODS WHICH HAVE BEEN ACQUIRED IN THE COUNTRY FROM WHICH THEY COME AND NOT THOSE ACQUIRED ON BOARD A FERRY .

20 NEVERTHELESS , THE REASONING SET OUT ABOVE IN RESPECT OF CUSTOMS DUTIES MAY ALSO BE APPLIED TO EXEMPTIONS FROM TAX . THE COURT SEES NO REASON THEREFORE NOT TO APPLY THE ANSWER PREVIOUSLY GIVEN TO THAT QUESTION TO GOODS PURCHASED ON BOARD A FERRY .

21 ACCORDINGLY THE REPLY TO BE GIVEN TO THE SECOND PART OF THE QUESTION SHOULD BE THAT , IN RELATION TO TRANSPORT BY SEA BY FERRY BETWEEN NON-MEMBER COUNTRIES AND MEMBER STATES , THE EXEMPTION PROVIDED FOR IN COUNCIL DIRECTIVE 69/169 OF 28 MAY 1969 IS GRANTED TO TRAVELLERS WHO ARRIVE IN THE CUSTOMS TERRITORY OF THE COMMUNITY FROM A NON-MEMBER COUNTRY AND THE CIRCUMSTANCES IN WHICH THE GOODS HAVE BEEN ACQUIRED ARE IRRELEVANT TO THE GRANT OF THE EXEMPTION .

2 . THE SECOND QUESTION : INTRA-COMMUNITY TRANSPORT BY FERRY

22 THE FINANZGERICHT ' S SECOND QUESTION ASKS , IN SUBSTANCE , WHETHER , IN THE CASE OF INTRA-COMMUNITY TRANSPORT BY FERRY , GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE WHICH HAVE NOT BEEN PUT INTO FREE CIRCULATION OR BORNE TURNOVER TAX OR EXCISE DUTIES MAY BENEFIT , ON THEIR IMPORTATION INTO THE STATE TO WHICH THE TRAVELLERS ARE GOING , FROM EXEMPTIONS FROM :

CUSTOMS DUTIES ;

TURNOVER TAX AND EXCISE DUTIES ;

OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 .

( A ) EXEMPTIONS FROM CUSTOMS DUTIES

23 THE QUESTION REFERRED TO THE COURT BY THE FINANZGERICHT IS DEVOID OF PURPOSE IN RELATION TO GOODS WHICH HAVE ALREADY BEEN PUT INTO FREE CIRCULATION WITHIN THE MEANING OF ARTICLE 10 OF THE TREATY SINCE NO CUSTOMS DUTIES ARE LEVIED IN THE CONTEXT OF THE INTRA-COMMUNITY TRANSPORTATION OF GOODS .

24 NEVERTHELESS , IN THE CASE WHERE GOODS COMING FROM A NON-MEMBER COUNTRY AND NOT PUT INTO FREE CIRCULATION WITHIN THE MEANING OF ARTICLE 10 OF THE TREATY ARE SOLD TO TRAVELLERS IN THE COURSE OF INTRA-COMMUNITY TRANSPORT BY FERRY , IT MUST BE RECALLED THAT THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 7 JULY 1981 , CITED ABOVE , THAT REGULATION NO 1544/69 CONTAINS EXHAUSTIVE RULES ON THE EXEMPTION OF GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS AND THAT THE EXEMPTION MAY BE APPLIED ONLY IN RESPECT OF GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS COMING FROM NON-MEMBER COUNTRIES . THOSE RULES DO NOT LEAVE MEMBER STATES ANY POWER TO GRANT , IN THE FIELD COVERED BY THE REGULATION , ANY EXEMPTION WIDER THAN THOSE PROVIDED FOR IN THE REGULATION .

25 IT FOLLOWS THAT , IN THE CASE OF INTRA-COMMUNITY TRAVEL BY FERRY , NO EXEMPTION FROM CUSTOMS DUTIES MAY BE APPLIED IN RESPECT OF GOODS WHICH HAVE NOT YET BEEN PUT INTO FREE CIRCULATION AND WHICH ARE CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE , ON THEIR IMPORTATION INTO A MEMBER STATE .

( B ) EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES , ON THE ONE HAND , AND EXEMPTIONS FROM OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , ON THE OTHER HAND

26 ARTICLE 2 ( 1 ) OF DIRECTIVE 69/169 , AS AMENDED , GRANTS AN EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES ON IMPORTS IN RESPECT OF GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS COMING FROM OTHER MEMBER STATES SUBJECT TO A LIMIT FIXED BY REFERENCE TO THE VALUE OF THE GOODS . HOWEVER , THAT EXEMPTION IS GRANTED ONLY IF THREE CONDITIONS ARE SATISFIED : THE GOODS IN QUESTION MUST FULFIL THE CONDITIONS LAID DOWN IN ARTICLES 9 AND 10 OF THE TREATY , THAT IS TO SAY , THEY MUST ALREADY BE IN FREE CIRCULATION ; THEY MUST HAVE BEEN ACQUIRED SUBJECT TO THE GENERAL RULES GOVERNING TAXATION ON THE DOMESTIC MARKET OF ONE OF THE MEMBER STATES ; AND FINALLY SUCH IMPORTS MUST HAVE NO COMMERCIAL CHARACTER .

27 IN THEIR WRITTEN OBSERVATIONS SOME MEMBER STATES MAINTAINED THAT THE AFOREMENTIONED REQUIREMENTS LAID DOWN IN ARTICLE 2 OF DIRECTIVE 69/169 DO NOT APPLY IN THE CONTEXT OF INTRA-COMMUNITY TRANSPORT BY FERRY AND PUT FORWARD THREE ARGUMENTS IN SUPPORT OF THAT CONTENTION .

28 FIRST , IRELAND AND THE UNITED KINGDOM MAINTAINED THAT THE AFOREMENTIONED REQUIREMENTS OF DIRECTIVE 69/169 DID NOT APPLY ON ACCOUNT OF THE EXISTENCE OF PRIOR INTERNATIONAL OBLIGATIONS AND IN PARTICULAR THE PROVISIONS OF THE CONVENTION CONCERNING CUSTOMS FACILITIES FOR TOURING , SIGNED AT NEW YORK ON 4 JUNE 1954 , TO WHICH ALL THE MEMBER STATES ARE PARTIES ( UNITED NATIONS TREATY SERIES , VOLUME 276 , 1957 , P . 230 ).

29 THAT ARGUMENT CANNOT BE ACCEPTED . THE COURT HAS HELD , IN ITS JUDGMENT OF 27 FEBRUARY 1962 ( CASE 10/61 , COMMISSION V GOVERNMENT OF THE ITALIAN REPUBLIC , ( 1962 ) ECR 1 ), THAT ' ' THE EEC TREATY . . . TAKES PRECEDENCE OVER AGREEMENTS CONCLUDED BETWEEN MEMBER STATES BEFORE ITS ENTRY INTO FORCE ' ' . IT IS CLEAR THAT THE SAME EFFECT MUST BE ATTRIBUTED TO SECONDARY COMMUNITY LAW : DIRECTIVE 69/169/EEC COULD THEREFORE , IN ANY EVENT , VALIDLY SET ASIDE THE PROVISIONS OF THE NEW YORK CONVENTION WITH REGARD TO TRAVEL BY SEA BETWEEN MEMBER STATES .

30 SECONDLY , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , IRELAND AND THE UNITED KINGDOM CONTEND THAT THE MEMBER STATES RETAINED THE POWER , AT THEIR DISCRETION , TO GRANT CONCESSIONS IN RESPECT OF GOODS SOLD IN DUTY-FREE SHOPS OR ON BOARD FERRIES SINCE NO COMMUNITY RULES GOVERNED THE MATTER YET .

31 THAT ARGUMENT MUST ALSO BE REJECTED . IN FACT , AS THE COURT HAS STATED IN ITS JUDGMENT OF 7 JULY 1981 , CITED ABOVE : ' ' IN ADOPTING DIRECTIVE 69/169 , AND THE SECOND AND THIRD DIRECTIVES OF 12 JUNE 1972 AND 10 DECEMBER 1978 RESPECTIVELY WHICH SUPPLEMENT IT , THE COUNCIL INTENDED GRADUALLY TO ESTABLISH A COMPLETE SYSTEM OF EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTY FOR GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE . CONSEQUENTLY IN THIS FIELD THE MEMBER STATES ARE LEFT WITH ONLY THE RESTRICTED POWER GIVEN TO THEM BY THE DIRECTIVES TO GRANT EXEMPTIONS OTHER THAN THOSE SPECIFIED IN THE DIRECTIVES . ' ' IT FOLLOWS THAT THE COMMUNITY RULES ARE EXHAUSTIVE IN THE MATTER AND THAT THE MEMBER STATES RETAIN ONLY THE RESTRICTED POWER GIVEN TO THEM BY THE PROVISIONS OF THE AFOREMENTIONED DIRECTIVES THEMSELVES .

32 THIRDLY , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , IRELAND AND THE UNITED KINGDOM RELIED , IN SUPPORT OF THEIR CONTENTION THAT ARTICLE 2 OF DIRECTIVE 69/169 IS NOT APPLICABLE , ON THE FIRST SENTENCE OF ARTICLE 6 ( 2 ) THEREOF , WHICH STATES THAT : ' ' WITHOUT PREJUDICE TO RULES RELATING TO SALES MADE AT AIRPORT SHOPS UNDER CUSTOMS CONTROL AND ON BOARD AIRCRAFT , MEMBER STATES SHALL TAKE THE NECESSARY STEPS WITH REGARD TO SALES AT THE RETAIL STAGE TO PERMIT . . . THE REMISSION OF TURNOVER TAX ON DELIVERIES OF GOODS CARRIED IN THE PERSONAL LUGGAGE OF TRAVELLERS LEAVING A MEMBER STATE . ' ' THEY CONSIDER THAT THAT PROVISION GIVES THE MEMBER STATES POWERS THAT ARE ADMITTEDLY LIMITED BUT STILL SUFFICIENT TO GRANT EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES IN RESPECT OF GOODS SOLD IN DUTY-FREE SHOPS ON BOARD FERRIES PROVIDING REGULAR SERVICES BETWEEN MEMBER STATES AND IMPORTED IN TRAVELLERS ' PERSONAL LUGGAGE .

33 IN THAT RESPECT IT SHOULD BE OBSERVED THAT THE AFOREMENTIONED ARTICLE 6 GOVERNS ONLY THE REMISSION OF TAX IN RESPECT OF GOODS CARRIED IN THE LUGGAGE OF TRAVELLERS LEAVING A MEMBER STATE AND THAT THE RESERVATION IN THE FIRST SENTENCE OF ARTICLE 6 ( 2 ) IS INTENDED ONLY TO PERMIT DUTY-FREE SALES AT AIRPORTS AND ON BOARD AIRCRAFT TO CONTINUE FOR THE BENEFIT OF TRAVELLERS LEAVING A MEMBER STATE AS A DEROGATION FROM THE GENERAL SCHEME OF REMISSION OF TAX ESTABLISHED BY THE OTHER PROVISIONS OF ARTICLE 6 .

34 IT IS CLEAR BOTH FROM THE SUBJECT-MATTER OF THE PROCEEDINGS BEFORE THE FINANZGERICHT AND FROM THE WORDING OF THE QUESTION REFERRED TO THE COURT , THAT THE COURT IS CALLED UPON TO CONSIDER NOT THE VALIDITY OF THE DUTY-FREE SALES CONCESSION TO TRAVELLERS LEAVING A MEMBER STATE BUT THE VALIDITY OF THE EXEMPTIONS GRANTED UNDER ARTICLES 1 TO 5 OF DIRECTIVE 69/169 TO TRAVELLERS ENTERING A MEMBER STATE .

35 ACCORDINGLY NO ASSISTANCE CAN BE DERIVED IN THIS CASE FROM ANY PART OF ARTICLE 6 OF DIRECTIVE 69/169 FOR THE PURPOSES OF ANSWERING THE QUESTION CONCERNING THE EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES TO BE GRANTED IN RESPECT OF GOODS CONTAINED IN THE LUGGAGE OF TRAVELLERS ENTERING A MEMBER STATE .

36 HOWEVER , IT IS NOT POSSIBLE TO CONCLUDE FROM THIS , AS DO THE PLAINTIFFS IN THE MAIN PROCEEDINGS , THAT , SINCE THE GOODS IN QUESTION HAVE NOT , ACCORDING , TO THE HYPOTHESIS DESCRIBED IN THE FINANZGERICHT ' S QUESTION ITSELF , BEEN PUT INTO FREE CIRCULATION AND HAVE NOT BEEN ACQUIRED SUBJECT TO THE GENERAL RULES GOVERNING TAXATION ON THE DOMESTIC MARKET OF ONE OF THE MEMBER STATES , NO EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES CAN BE GRANTED ON THEIR IMPORTATION .

37 WITH REGARD TO INTRA-COMMUNITY TRAVEL , ARTICLE 2 ( 4 ) OF DIRECTIVE 69/169 , AS AMENDED BY THE THIRD COUNCIL DIRECTIVE , 78/1032 OF 19 DECEMBER 1978 , PROVIDES THAT WHERE THE JOURNEY FROM ONE MEMBER STATE TO ANOTHER INVOLVES TRANSIT THROUGH THE TERRITORY OF A NON-MEMBER COUNTRY OR WHERE IT BEGINS IN A PART OF THE TERRITORY OF ANOTHER MEMBER STATE IN WHICH THE TAXES TO WHICH THE DIRECTIVE RELATES ARE NOT CHARGEABLE ON GOODS CONSUMED WITHIN THAT TERRITORY , THE TRAVELLER MUST BE ABLE TO ESTABLISH THAT THE GOODS TRANSPORTED IN HIS LUGGAGE HAVE BEEN ACQUIRED SUBJECT TO THE GENERAL CONDITIONS GOVERNING TAXATION ON THE DOMESTIC MARKET OF A MEMBER STATE AND DO NOT QUALIFY FOR ANY REFUNDING OF TURNOVER TAX OR EXCISE DUTY . IF THE TRAVELLER IS UNABLE TO FURNISH SUCH PROOF HE IS NEVERTHELESS ENTITLED TO THE MORE RESTRICTED EXEMPTION ( EXPRESSED IN TERMS OF VALUE ) PROVIDED FOR IN RESPECT OF PASSENGER TRANSPORT BETWEEN NON-MEMBER COUNTRIES AND THE COMMUNITY .

38 ARTICLE 4 ( 4 ) OF THE DIRECTIVE CONTAINS AN ANALOGOUS PROVISION WITH REGARD TO EXEMPTIONS FOR GOODS EXPRESSED IN QUANTITATIVE TERMS .

39 THE AFOREMENTIONED PROVISIONS , AND IN PARTICULAR THE SECOND INDENTS OF ARTICLES 2 ( 4 ) AND 4 ( 4 ), SHOW THAT THE EXEMPTIONS , LIMITED AS TO VALUE AND QUANTITY , PROVIDED FOR IN ARTICLES 1 ( 1 ) AND 4 ( 1 ) OF THE DIRECTIVE DO NOT RELATE EXCLUSIVELY TO TRAVELLERS COMING FROM NON-MEMBER COUNTRIES BUT ALSO APPLY , SUBJECT TO CERTAIN SPECIAL CONDITIONS , TO TRAVELLERS COMING FROM MEMBER STATES OF THE COMMUNITY , EVEN WHERE IT HAS NOT BEEN ESTABLISHED THAT THE REQUIREMENT ON WHICH THE GRANT OF THE PREFERENTIAL EXEMPTION IN RESPECT OF TRANSPORT BETWEEN MEMBER STATES DEPENDS , NAMELY THAT THE GOODS HAVE BEEN ACQUIRED SUBJECT TO THE GENERAL RULES GOVERNING TAXATION ON THE DOMESTIC MARKET OF ONE OF THE MEMBER STATES , IS SATISFIED .

40 IN THOSE CIRCUMSTANCES IS APPEARS THAT THE LIMITED EXEMPTIONS MUST APPLY IN RESPECT OF GOODS SOLD IN DUTY-FREE SHOPS ON BOARD FERRIES OPERATING REGULAR SERVICES BETWEEN MEMBER STATES . HOWEVER , THE WIDER EXEMPTIONS PROVIDED FOR IN ARTICLES 2 ( 1 ) AND 4 ( 1 ) OF THE DIRECTIVE MAY NOT BE GRANTED UNLESS ALL THE REQUIREMENTS LAID DOWN IN ARTICLE 2 ( 1 ) ARE SATISFIED .

41 FOR ALL THOSE REASONS , THE REPLY TO THE SECOND PART OF THE SECOND QUESTION SHOULD BE THAT DIRECTIVE 69/169 , AS AMENDED , IS TO BE INTERPRETED AS MEANING THAT , IN THE CONTEXT OF INTRA-COMMUNITY TRANSPORT , GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE AND ACQUIRED IN DUTY-FREE SHOPS ON BOARD FERRIES OPERATING REGULAR SERVICES BETWEEN MEMBER STATES BENEFIT , ON IMPORTATION , ON THE ONE HAND , FROM EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES AND , ON THE OTHER HAND , FROM EXEMPTION FROM THE OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , SUBJECT TO THE LIMITS AS TO VALUE AND QUANTITY OF THE EXEMPTIONS GRANTED TO TRAVELLERS COMING FROM A NON-MEMBER COUNTRY .

3 . THE THIRD QUESTION : INTRA-COMMUNITY TRANSPORT BY COMBINED FERRY AND COACH SERVICES

42 THE SITUATION POSTULATED IN THE FINANZGERICHT ' S THIRD QUESTION CONCERNS SHIPS SAILING FROM A PORT IN ONE MEMBER STATE ( IN THIS CASE THE FEDERAL REPUBLIC OF GERMANY ) TO A PORT IN ANOTHER MEMBER STATE ( IN THIS CASE DENMARK ) ON BOARD WHICH TRAVELLERS PURCHASE FREE OF CUSTOMS DUTIES , TURNOVER TAX AND EXCISE DUTY GOODS WHICH ARE NOT IN FREE CIRCULATION AND WHICH HAVE NOT BEEN CHARGED TO ANY TURNOVER TAX OR EXCISE DUTIES ; THE TRAVELLERS DISEMBARK IN THE PORT OF THE LATTER MEMBER STATE AND RETURN BY LAND TO THE MEMBER STATE OF DEPARTURE .

43 THIS QUESTION ASKS , IN SUBSTANCE , WHETHER SUCH GOODS ACQUIRED IN THE COURSE OF SUCH JOURNEYS MAY BENEFIT , ON THEIR IMPORTATION INTO THE MEMBER STATE IN WHICH THE JOURNEY BEGINS AND ENDS , FROM EXEMPTION FROM CUSTOMS DUTIES , ON THE ONE HAND , AND FROM EXEMPTION FROM TURNOVER TAX , EXCISE DUTIES AND OTHER CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , ON THE OTHER HAND .

( A ) EXEMPTIONS FROM CUSTOMS DUTIES

44 THE SITUATION ENVISAGED BY THE FINANZGERICHT IS MERELY A SPECIFIC INSTANCE OF INTRA-COMMUNITY PASSENGER TRANSPORT AND IT MUST BE HELD , FOR THE REASONS ALREADY GIVEN UNDER HEADING 2 ( A ) ABOVE , THAT NO EXEMPTION MAY BE GRANTED .

( B ) EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES , ON THE ONE HAND , AND EXEMPTIONS FROM THE OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , ON THE OTHER HAND .

45 THE COURT NOTES THAT IT IS CLEAR BOTH FROM THE AIMS OF DIRECTIVE 69/169 AND FROM THE TERMS OF ARTICLE 2 ( 1 ) THEREOF ITSELF THAT THE CONCESSIONS PROVIDED FOR IN THAT DIRECTIVE IN RELATION TO TAX EXEMPTIONS FOR GOODS CONTAINED IN THE PERSONAL LUGGAGE OF PERSONS TRAVELLING WITHIN THE COMMUNITY , ARE LIMITED TO TRAVELLERS ' ' COMING FROM MEMBER STATES OF THE COMMUNITY ' ' , THAT IS TO SAY , TRAVELLERS WHO GO FROM ONE MEMBER STATE TO ANOTHER AFTER HAVING IN FACT HAD AN OPPORTUNITY TO MAKE PURCHASES IN THE MEMBER STATE OF DEPARTURE .

46 IT FOLLOWS THAT A PERSON WHO , DURING A CRUISE DEPARTING FROM A PORT OF A MEMBER STATE , DOES NOT CALL AT ANOTHER MEMBER STATE OR MAKES ONLY A TOKEN CALL THERE AND DOES NOT REMAIN THERE FOR A PERIOD DURING WHICH HE IN FACT HAS AN OPPORTUNITY OF MAKING PURCHASES CANNOT BE REGARDED AS A TRAVELLER WITHIN THE MEANING OF THAT PROVISION .

47 CONSEQUENTLY , IF , AS IS GENERALLY THE CASE , INTRA-COMMUNITY TRAVEL BY COMBINED SHIP AND COACH SERVICES , IS ORGANIZED IN SUCH A MANNER THAT TRAVELLERS MAY ACTUALLY MAKE PURCHASES IN THE MEMBER STATE WHERE THEY DISEMBARK PRIOR TO RETURNING BY LAND , IT IS POSSIBLE TO REGARD THE PASSENGERS AS TRAVELLERS WITHIN THE MEANING OF DIRECTIVE 69/169 , AS AMENDED . THE SAME SOLUTION SHOULD THEREFORE BE ADOPTED AS THAT SET OUT ABOVE IN RELATION TO INTRA-COMMUNITY TRANSPORT ON REGULAR SERVICES , THAT IS TO SAY AN EXEMPTION , LIMITED AS TO VALUE AND QUANTITY , CORRESPONDING TO THE EXEMPTION GRANTED TO TRAVELLERS COMING FROM A NON-MEMBER COUNTRY , MAY BE GRANTED EVEN IF THE GOODS IN QUESTION WERE NOT ACQUIRED SUBJECT TO THE GENERAL RULES GOVERNING TAXATION ON THE DOMESTIC MARKET OF ONE OF THE MEMBER STATES .

48 ON THE OTHER HAND , IF SUCH COMBINED TRANSPORT IS ORGANIZED , EXCEPTIONALLY , IN SUCH A MANNER THAT TRAVELLERS ARE UNABLE TO MAKE PURCHASES DURING THEIR STAY IN THE MEMBER STATE THROUGH WHICH THEY PASS , THEY CANNOT BE REGARDED AS TRAVELLERS WITHIN THE MEANING OF DIRECTIVE 69/169 AND THE GOODS ACQUIRED DURING SUCH CROSSINGS CANNOT BENEFIT FROM ANY TAX EXEMPTION .

49 IT FOLLOWS FROM THE FOREGOING THAT THE REPLY TO BE GIVEN TO THE RELEVANT PART OF THE THIRD QUESTION SHOULD BE THAT , IN PRINCIPLE , GOODS ACQUIRED FREE OF TURNOVER TAX AND EXCISE DUTIES IN THE COURSE OF INTRA-COMMUNITY TRANSPORT BY COMBINED FERRY AND COACH SERVICES ARE TO BENEFIT FROM THE LIMITED EXEMPTIONS GRANTED TO TRAVELLERS COMING FROM NON-MEMBER COUNTRIES . HOWEVER , NO EXEMPTION MAY BE GRANTED IN RESPECT OF SUCH GOODS IN A CASE WHERE THE STAY IN THE MEMBER STATE THROUGH WHICH THE TRAVELLER PASSES IS OF A PURELY TOKEN NATURE AND DOES NOT IN FACT PROVIDE AN OPPORTUNITY OF MAKING PURCHASES .

COSTS

50 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , BY IRELAND , BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 4 AUGUST 1982 , HEREBY RULES :

COMMUNITY LAW GOVERNING EXEMPTIONS FROM CUSTOMS DUTIES , TURNOVER TAX , EXCISE DUTIES AND AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS , APPLICABLE TO GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE , MUST BE INTERPRETED AS FOLLOWS :

1 . IN RELATION TO TRANSPORT BY SEA BY FERRY BETWEEN A NON-MEMBER COUNTRY AND A MEMBER STATE

( A ) EXEMPTIONS FROM CUSTOMS DUTIES , AGRICULTURAL LEVIES AND OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS

THE EXEMPTIONS PROVIDED FOR IN REGULATION NO 1544/69 ( AS AMENDED BY REGULATION NO 3061/78 ) AND IN ARTICLE 1 OF REGULATION NO 1818/75 ( AS AMENDED BY REGULATION NO 2780/78 ) APPLY TO GOODS CONTAINED IN THE PERSONAL LUGGAGE OF TRAVELLERS COMING FROM A NON-MEMBER COUNTRY , IRRESPECTIVE OF THE ORIGIN OF THE GOODS AND THE PLACE FROM WHICH THEY COME AND THE CUSTOMS DUTIES AND TAXES WHICH THEY HAVE BORNE PRIOR TO THEIR IMPORTATION INTO THE TERRITORY OF THE COMMUNITY .

( B ) EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES

THE EXEMPTION PROVIDED FOR IN COUNCIL DIRECTIVE 69/169 OF 28 MAY 1969 IS GRANTED TO TRAVELLERS WHO ARRIVE IN THE CUSTOMS TERRITORY OF THE COMMUNITY FROM A NON-MEMBER COUNTRY AND THE CIRCUMSTANCES IN WHICH THE GOODS HAVE BEEN ACQUIRED ARE IRRELEVANT TO THE GRANT OF THE EXEMPTION .

2 . IN RELATION TO INTRA-COMMUNITY TRANSPORT BY FERRY

( A ) EXEMPTIONS FROM CUSTOMS DUTIES

GOODS WHICH HAVE NOT YET BEEN PUT INTO FREE CIRCULATION AND WHICH ARE CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE MAY NOT BENEFIT FROM ANY EXEMPTION FROM CUSTOMS DUTIES ON THEIR IMPORTATION INTO A MEMBER STATE .

( B ) EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES , ON THE ONE HAND , AND EXEMPTIONS FROM OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , ON THE OTHER HAND

DIRECTIVE 69/169 , AS AMENDED , IS TO BE INTERPRETED AS MEANING THAT , IN THE CONTEXT OF INTRA-COMMUNITY TRANSPORT , GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE AND ACQUIRED IN DUTY-FREE SHOPS ON BOARD FERRIES OPERATING REGULAR SERVICES BETWEEN MEMBER STATES BENEFIT , ON IMPORTATION , ON THE ONE HAND , FROM EXEMPTION FROM TURNOVER TAX AND EXCISE DUTIES AND , ON THE OTHER HAND , FROM EXEMPTION FROM THE OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , SUBJECT TO THE LIMITS AS TO VALUE AND QUANTITY OF THE EXEMPTIONS GRANTED TO TRAVELLERS COMING FROM A NON-MEMBER COUNTRY .

3 . IN RELATION TO INTRA-COMMUNITY TRANSPORT BY COMBINED SERVICES COMPRISING TRAVEL TO A MEMBER STATE BY FERRY AND RETURN BY LAND ( COACH ) TO THE MEMBER STATE IN WHICH THE JOURNEY BEGAN

( A ) EXEMPTIONS FROM CUSTOMS DUTIES

GOODS CONTAINED IN TRAVELLERS ' PERSONAL LUGGAGE MAY NOT BENEFIT FROM ANY EXEMPTION FROM CUSTOMS DUTIES ON THEIR IMPORTATION WHEN THE TRAVELLER RETURNS BY LAND TO THE MEMBER STATE IN WHICH THE JOURNEY BEGAN .

( B ) EXEMPTIONS FROM TURNOVER TAX AND EXCISE DUTIES , ON THE ONE HAND , AND EXEMPTIONS FROM OTHER IMPORT CHARGES APPLICABLE TO AGRICULTURAL PRODUCTS AND REFERRED TO IN ARTICLE 2 OF REGULATION NO 1818/75 , ON THE OTHER HAND

IN PRINCIPLE , GOODS ACQUIRED FREE OF TURNOVER TAX AND EXCISE DUTIES IN THE COURSE OF INTRA-COMMUNITY TRANSPORT BY COMBINED FERRY AND COACH SERVICES ARE TO BENEFIT FROM THE LIMITED EXEMPTIONS GRANTED TO TRAVELLERS COMING FROM A NON-MEMBER COUNTRY . HOWEVER , NO EXEMPTION MAY BE GRANTED IN RESPECT OF SUCH GOODS IN A CASE WHERE THE STAY IN THE MEMBER STATE THROUGH WHICH THE TRAVELLER PASSES IS OF A PURELY TOKEN NATURE AND DOES NOT IN FACT PROVIDE AN OPPORTUNITY OF MAKING PURCHASES .