Luxembourg, 25/06/2002 (Agence Europe) - A traveller who brings back from abroad 500 kilos of rice in his personal luggage is not necessarily smuggling, explains the European Court of Justice. The Court of Appeal of Western Sweden (Hovratten for Vastra Sverige) will have to take account of this in judging a Swede, Kenny Lyckeskog, initially sentenced for attempted smuggling for having tried, in 1998, to introduce half a tonne of rice bought in Norway.
The Swedish Court of Appeal had asked the Court of Justice to interpret the EC regulation of 1983 on customs exemptions. It had asked it to stipulate the criteria that allow to determine whether goods contained in personal luggage may enter the EU duty free. The Court's reply: the personal usage that a traveller wants to make of the goods he brings back from a trip abroad varies from one person to the next. "It is therefore essential to make a case by case assessment of whether the import is of a commercial nature or not, taking account, if need be, of the lifestyle and habits of each traveller". Kenny Lyckeskog denied having wanted to smuggle. He realised on a trip to Norway that rice was much less expensive there and had bought some for his personal use alone: his wife was of Asian origin, his three under-aged children lived with him and his eldest daughter often came to visit them with her family. All were large rice eaters. They consumed up to 25 kg a month, he stipulated.
A more legal issue
For certain more specialised legal experts and magistrates, this ruling had a certain amount of importance. The question that found an answer in this affair, it seems agitated Scandinavian jurisdictions. The Swedish Court of Appeal asked the European Court of Justice if it had to be regarded as a court ruling at last instance, in which case it was obliged to refer a question for preliminary ruling to the Court.
According to the EC Treaty, a jurisdiction whose decisions cannot be appealed against before a superior jurisdiction - in practice, supreme courts - is obliged to refer to the Court of Justice if it has a problem of interpreting Community law. Lower jurisdictions are not held to do so. The problem arises in legal systems like the Swedish one in which the culprit may only turn to Supreme Court having been authorised by the Supreme Court itself. The latter has then to adopt a "declaration of admissibility" in favour of the culprit who may then turn to it.
The Swedish Court of Appeal thus wanted to know how it had to qualify itself. The European Court answered that, given the mechanisms of Swedish law, it had not to consider itself as being a court ruling at last instance. It could thus send Mr Lyckeskog's case to the Court, but was not obliged to do so. The Supreme Court, for its part, would have been obliged to send the case to the European Court of Justice.