EU-onderzoek naar Spaans en Brits beleid inzake in- en uitvoertarieven (en)

The European Commission has decided to send formal requests for information to Spain and the United Kingdom about their application of EU law relating to excise duties and cross-border shopping. The Commission is concerned that the practices of these two Member States may jeopardise the right of all EU citizens to buy goods in other Member States, excise duty paid, and to bring these products home for their own use without any formalities and without having to pay taxes a second time. In the case of Spain, the Commission is concerned that the authorities are imposing unjustified restrictions and requirements on private individuals wishing to leave the country with cigarettes that they have bought there, duty paid. In the case of the United Kingdom, the request concerns the UK policy of seizing goods even for minor offences and follows on two earlier letters (see IP/01/1482 and IP/02/1320). The Commission is concerned that these sanctions may be disproportionate to the gravity of the offence and be an obstacle to the free movement of excise goods in the Internal Market. Both requests take the form of 'letters of formal notice' under the infringement procedures laid down in Article 226 of the EC Treaty. The UK and Spain are asked to reply within two months.

Frits Bolkestein, the European Commissioner for Taxation and Customs Union, said "I recognise and support strongly Member States' efforts to fight excise duty fraud, but this must not be at the expense citizens' rights to take full advantage of the Internal Market."

Spain

The Commission has received complaints from holiday-makers that, as they were about to leave Spain to return home, cigarettes they had purchased excise duty paid in Spain were seized by the authorities. According to these complaints, the goods were seized as the holiday-makers concerned were unable to produce the documents that must accompany commercial consignments. It also appears that the Spanish authorities considered the goods to be held for commercial purposes simply on the basis of their quantity.

The Commission considers it contrary to EU rules on cross-border shopping to assume that all goods in excess of certain quantities are held for commercial purposes and to demand that the private individual holding the goods conforms to the requirements for commercial consignments. In the Commission's view, this would deprive citizens of their Internal Market rights.

This obstacle is just as unacceptable when applied to goods leaving a Member State as it is when applied to people carrying goods into another Member State.

The Commission will analyse whether or not there is a violation of EU law in the light of the information it has requested from the Spanish authorities.

United Kingdom

The Commission understands that under its present sanctions policy, the UK distinguishes between offenders holding goods with a view to selling them for profit, and those who hold goods for reasons that fall outside the notion of "own use", but without seeking to make a profit.

For this latter category of cases, the Commission understands that the policy is to seize the goods, which are not then restored. Any vehicle used for the transport of the goods can also be seized, and may not be returned, or returned only on certain conditions.

The seizure of property is, by its very nature, a severe and intrusive sanction. It may be justified for certain situations but the Commission is concerned that, when applied to minor fiscal offences of a "not for profit" character, it may go further than is strictly necessary and thus become an unacceptable obstacle to the free movement of goods. The Commission takes the view that, for these cases, the purpose of the sanctions could be achieved by lesser means such as the collection of the duties and payment of a penalty linked to the amount of duty due.

Procedure

These requests for information take the form of "letters of formal notice", the first stage of the infringement procedure laid down by Article 226 of the EC Treaty to ensure that all EU Member States uphold the rules agreed at European level. The authorities of the Member States have two months to respond to the letter of formal notice.

In the absence of a satisfactory reply, the Commission may proceed to the second stage of the infringement procedure, a formal request for the Member State to change its practices, in the form of a so-called 'reasoned opinion'. Ultimately, the Commission can refer a Member State to the European Court of Justice for failure to apply EU law properly.

The right to buy tobacco and alcohol abroad

When people buy products subject to excise duty (such as tobacco products and alcoholic beverages) for private use in a Member State and then transport these products to another Member State, the excise duties on those goods must be paid in the Member State where they are bought. In other words, no excise duties should be paid in the Member State to which they are then taken. This includes alcohol and tobacco products for personal consumption, for use as gifts or any other non-commercial use. This is stipulated in Article 8 of Directive 92/12/EEC, agreed unanimously by EU Member States in 1992.

If, on the other hand, the products are held for commercial purposes, the excise duties are payable in the Member State of destination (Articles 7 and 9 of Directive 92/12/EEC). If a person holds goods for commercial purposes without paying the excise duties in the Member State of destination, the latter can impose sanctions.

However, Community law requires any such sanctions to be proportionate to the gravity of the infringements and to go no further than is strictly necessary to achieve their purpose.

The role of guidelines for personal use

Directive 92/12 includes guidelines to assist Member States in determining whether products being taken from one Member State to another are for private use or for commercial purposes. In particular, Member States must take account of the commercial status of the person holding the products and his reasons for holding them, the place where the products are located, the mode of transport used (e.g. lorry), any document relating to the products (e.g. invoice), and the nature and quantity of the products themselves. To assess whether the quantity of goods being transported may indicate that they are for commercial purposes, Member States may lay down guideline levels, solely as a form of evidence. These guideline levels may not be lower than:

• 800 cigarettes

• 400 cigarillos (cigars weighing not more than 3 g each)

• 200 cigars

• 1 kilogramme smoking tobacco

• 10 litres of spirit drinks

• 20 litres of intermediate products (such as fortified wine or sherry)

• 90 litres of wines (including a maximum of 60 litres of sparkling wines)

• 110 litres of beers.

Individual circumstances must be taken into account

In applying these rules, national authorities must take all the relevant circumstances in each particular case into account, and may not, as a general rule, give particular weight to a single factor, such as the quantity of the products.

For example, if the quantities held by a person are more than the guideline levels, the authorities may take into account the fact that a person is occasionally travelling to another EU country to buy alcohol or tobacco products for example for a wedding or a big party.

Equally, if an individual is carrying less than the guideline levels, the authorities may nonetheless take into account the fact that, for example, a particular person has been identified by surveillance operations as being involved in illicit sales of products subject to excise.

The latest information on infringement proceedings concerning all Member States can be found at the following site:

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