Brussels, 27/11/2006 (Agence Europe) - In a preliminary ruling on “Staatssecretaris van Financiën/Joustra” (C-5/05), the European Court of Justice (ECJ) stated on 24 November that a private individual cannot order from a distance and deliver the goods subject to excise duty themselves from another Member State without paying the excise duty in the importing Member States. To benefit from a derogation, it is imperative to go to the Member States where the purchase is made and pay the excise and then transport or send the merchandise in question.
A Dutch citizen whose official residency was in the Netherlands had ordered a home delivery of wine from France. The Dutch tax authorities imposed excise duty of €906.20 on the goods. The Dutch purchaser protested against paying this excise and went to the ECJ under directive 92/12/EEC on the general system applying to products subject to excise (mineral oils, alcohol, alcoholic drinks, manufactured tobacco). According to the Court, the directive “requires that the products in question are personally transported by the private individual who acquired them”. Such a decision does not oblige the purchaser to personally accompany the merchandise, indicated a spokesperson for Laszlo Kovacs, Commissioner for taxation, who personally considers the Court's interpretation as being “restrictive”. The Commission considers that this interpretation constitutes a regressions to the situation prevailing before entry into force of the directive for private individuals sending post to each other.
The Dutch purchaser who made the command in his name was acting on behalf of the “Circle des amis vin” of which he is a member. The quantities in question, although not exceeding the authorised 90 litres per person (60 litres of which were sparkling wine), were in total well above the individual threshold. The Court recognised that Mr Joustra had not been acting in a professional capacity or with a profit motive. However, it considered that the merchandise ought to be subject to excise in the Netherlands.
The Court does not believe that this interpretation jeopardises the exoneration of excise for small deliveries from one private citizen to another. On the other hand, it said in a press release that if the directive contains an ambiguity on this point, it is up to the Community legislator, if necessary, to rectify the matter. The Commission's spokesperson pointed out that a legislative proposal had been on the Council table since 2004, which would rectify existing legal loopholes. This proposal clarifies European legislation and makes it comply more favourably with the principle governing the internal market according to which products subject to excise acquired by private individuals for their own use should be taxed exclusively in the Member States where the purchase is made (EUROPE 8680). (mb/cd)