C-278/82

REWE v HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

the limited exemptions granted to the Member State through which travellers from a non-member the traveller passes is of a purely country. However, no exemption token nature and does not in fact may be granted in respect of such provide an opportunity of making goods in a case where the stay in 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, Höhndorf,

(2) REWE-MARKT HERBERT KUREIT, Niendorf,

THE COURT

composed of: J. M e r t e n s de W i l m a r s , President, T . K o o p m a n s and Y. G a l m o t (Presidents of C h a m b e r s ) , P . Pescatore, L o r d M a c k e n z i e Stuart, A. O'Keeffe, G. Bosco, O . D u e and U . Everling, J u d g e s ,

Advocate G e n e r a l : S. R o z è s Registrar: H . A. R ü h i , Principal Administrator

gives the following

JUDGMENT

Facts and Issues

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

which provide regular feny services and Finally the Finanzgericht states that the in the course of combined boat and ferry traffic consisting of short trips coach journeys. between the Federal Republic of Germany and Denmark on which purchases may be made free of customs The plaintiffs in the main action are duties and taxes and the combined ship Rewe-Handelsgesellschaft Nord mbH, and coach excursions affect mainly the which is a wholesale dealer in, inter alia, grocery trade along the North Sea and perfumes, coffee, tea, matches and foods Baltic coasts. such as butter, cheese, meats and confectionery as well as spirits, beer, wine and tobacco, and Firma Rewe- Markt Herbert Kureit, which carried on Such operations have the effect of business as a retailer in Niendorf on the depriving local wholesale and retail Bay of Lübeck and deals in the products traders of the benefit of a large pro- supplied by the first plaintiff. The latter's portion of the purchasing power of the customers are predominantly retailers inhabitants of the North Sea and Baltic established along the North Sea and coast areas. Baltic coast areas of Schleswig-Holstein.

Their action is against the Haupt- Β — The Community provisions zollämter responsible for the North Sea and Baltic coast areas and seeks an order directing them to refrain from allowing goods brought back from sea voyages to 1. Regulation No 1544169, as amended clear customs free of duty within certain by Council Regulation (EEC) No limits, contrary to the relevant provisions 3313/81 of 17 November 1981, grants, of Community law. within certain limits as to quantity and value, exemption from duties imposed under the Common Customs Tariff for Those initial claims were extended to goods contained in the personal luggage purchases made free of customs duties of travellers coming from non-member and taxes on ships operating regular countries provided that such import­ routes and ferry-boats. ations do not have a commercial character.

(in Article 1) the exemptions from submitted the following questions to the turnover tax and excise duty applicable Court for a preliminary ruling : to goods contained in travellers' personal luggage coming from non-member countries and secondly (in Article 2) the " 1 . Must Regulation (EEC) No 1544/69 limits in terms of value to such of the Council of 23 July 1969, as exemptions in respect of goods in last amended by Council Regulation travellers' personal luggage coming from (EEC) No 3313/81 of 17 November Member States of the Community; 1981, Regulation No 1818/75 of the thirdly it lays down (in Article 4) Council of 10 July 1975, as amended quantitative limits for the importation, by Council Regulation (EEC) No free of turnover tax and excise duty, of 2780/78 of 27 November 1978, the goods listed therein and finally it and Council Directive 69/169/EEC provides (in Article 6) the rules whereby of 28 May 1969, as last amended Member States may adopt the necessary by Directive 81/933/EEC of 17 measures as regards sales at the retail November 1981, be construed to the trade stage to enable turnover tax on effect that the tax concessions goods carried in the personal luggage of provided for therein in respect of travellers leaving a Member State to be customs duties, import charges remitted under certain conditions and applicable to agricultural products subject to certain reservations. 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 3. Regulation (EEC) No 1818/75 of the turnover taxes or excise duties in the Council of 10 July 1975 (Official Journal Member States or non-member 1975, L 185, p. 3) on the agricultural countries and which are purchased levies, compensatory amounts and other by passengers on ferries carrying import charges applicable to agricultural passenger traffic between a Member products and to certain goods resulting State and a non-member country? from their processing, contained in travellers' personal baggage, extended the scope of Regulation No 1544/69 to levies and other agricultural charges and 2. Must the provisions mentioned in introduced relief from compensatory Question (1) be construed to the amounts and other import charges in the effect that the tax concessions in context of travel between two Member question also apply to goods which States, the grant of which was subject to are not in free circulation in the the same limits and conditions as applied Member States or which have not to the grant of the relief provided for by borne turnover taxes or excise duties Article 2 of Directive 69/169/EEC. in the Member States or non- member countries and which are purchased by passengers on ferries carrying passenger traffic between Member States? C — Procedure and the questions referred to the Court 3. Must the provisions mentioned in Question (1) be construed to the effect that the tax concessions in By order of 4 August 1982 the Fourth question also apply to goods which Chamber of the Finanzgericht Hamburg are not in free circulation in the

Member States or which have not concerning Customs Facilities for borne turnover taxes or excise duties Touring, from which it follows that tax in the Member States or non- concessions are intended to facilitate member countries and which are tourist traffic and not the purchase on purchased by passengers on ships board ferries of duty-free goods for the sailing from a port in a Member purpose of importing them. State to the port of another Member- State where the passengers go ashore Yet the Finanzgericht does admit that it and then, without being charged is possible to take the view that the duty in the country in which they purpose of Regulation No 1544/69 is arrive, return by land to the Member not to facilitate tourist traffic but to State in which they began their serve the needs of the customs auth- journey?" orities by enabling them to clear imports through customs swiftly. After concluding that the defendant's objection that the main action is That purpose would not be achieved if inadmissible is unfounded, the Finanz- the customs authorities had to determine gericht states in its order for reference at the time of importation the origin of that the legal position regarding goods the goods in respect of which exemption purchased on ferries or during combined from customs duties was being claimed. ship and coach trips is open to doubt. It also states that in the Federal Republic (ii) With regard to agricultural levies, of Germany goods may be purchased by the Finanzgericht is of the opinion that masters of ships free of customs duties the same considerations apply to the and taxes and that that concession interpretation of Article 1 of Regulation applies inter alia to ships which call at a No 1818/75. foreign port. (iii) With regard to turnover taxes, the Finally, it sets out the following legal Finanzgericht considers that, in order to considerations in its order: interpret Directive 69/169/EEC, it is necessary to refer to the fourth recital in (a) In relation to ferry traffic between a the preamble thereto where it is stated non-member country and a Member that as a general rule goods may only be State obtained in the country from which they come already taxed. (i) With regard to customs duties and agricultural levies, the Finanzgericht, That indicates that the directive has in taking into account the letter, the spirit view goods obtained in the country from and the purpose of Regulation No which they come and not goods obtained 1544/69, considers that the provisions on board ships. could be interpreted to the effect that only goods purchased within the territory of a non-member country may (b) In relation to ¡ntra-Community ferry be imported duty-free within the limits traffic set out in the regulation. (i) With regard to agricultural levies, The Finanzgericht considers that support the Finanzgericht considers that, in order for that interpretation is to be found in to interpret Regulation No 1818/75, it is Article 1 (1) of Regulation No 1544/69 necessary to refer to the considerations and in the relationship which it is which it expounded in relation to ferry possible to establish between that regu- traffic to and from non-member lation and the New York Convention countries.

(ii) With regard to turnover taxes and gericht Köln [Higher Regional Court, excise duties, the Finanzgericht con- Cologne], by the United Kingdom, cludes from the provisions of Article 4 represented by G. Dagtoglou, Treasury (4) of Directive 69/169 that no tax Solicitor's Department, acting as Agent, concession may be granted on goods by Ireland, represented by Louis J. which were obtained free of duty solely Dockery, Chief State Solicitor, acting as in the course of a cruise. Agent, and by the Commission of the European Communities, represented by Furthermore, the preamble to the its Legal Adviser, Erich Zimmerman. directive supports that point of view since all the objectives set out therein are Upon hearing the report of the Judge- unrelated to the right to receive Rapporteur and the views of the concessions in the course of cruises Advocate General, the Court decided to between Member States. In addition, the open the oral procedure without any tax exemption on imports does not serve preparatory inquiry. to avoid double taxation. Nevertheless the Court requested the Nevertheless the Finanzgericht admits Commission to produce, prior to the oral that, if it is correct to interpret that procedure, the recent proposals for directive by analogy, ' the goods directives on exemptions from customs purchased on board might benefit from duties and taxes for goods contained in the tax exemptions intended for travellers' personal luggage and on the travellers from non-member countries. rules relating to sales in shops under customs control. (c) In relation to combined ship and coach excursions, the Finanzgericht states that it is almost certain that goods II — W r i t t e n o b s e r v a t i o n s sub- purchased on board ship may not benefit m i t t e d to t h e C o u r t from any exemption on importation if the goods were cleared without any formality for the purpose of transit A — The admissibility of the questions through another Member State, nor may referred to the Court that other Member State clear the goods free of duty. The plaintiffs in the main action, relying The order for reference was lodged at on the order of the Court made on 28 the Court Registry on 18 October 1982. March 1980 in Joined Cases 24 and 97/80R Commission of the European Communities ν French Republic [1980] In accordance with Article 20 of the ECR 1319, express doubts as to the Protocol on the Statute of the Court of admissibility of the request for a pre­ Justice of the European Communities liminary ruling. written observations were submitted by Rewe-Handelsgesellschaft Nord and Firma Rewe-Markt Herbert Kureit, They consider that the Court has represented by Gert Meier, Senior Legal already, in the aforementioned judgment Adviser to Rewe-Central AG, by the of 7 July 1981 in Case 158/80, given an Government of the Federal Republic of unequivocal ruling that "butter-buying Germany, represented by Deringer, cruises" are incompatible with Com­ Tessin, Hermann and Sedemund, munity law and did so not only in Rechtsanwälte before the Oberlandes- relation to exemptions from customs

Since the conclusions of the parties to Thirdly, the United Kingdom emphasizes the main action in Case 158/80 were the that the abolition of exemption from same as those of the parties to the main turnover tax and excise duty on goods action in this case and since the national sold to intra-Community travellers in court seeks a ruling the subject of which duty-free shops, whether they are at is essentially the same as that of the airports or on aircraft or ships, would judgment of 7 July 1981, the preliminary have serious economic and political ruling sought by the order for reference implications. is not necessary within the meaning of Article 177 of the Treaty.

In particular such action would have immediate repercussions on the financial Β — Introductory comments made in basis of all those United Kingdom under­ certain observations takings involved in the transport of pass­ engers and freight within the Com­ munity, it would have serious social 1. Introductory comments made by the effects both for transport undertakings United Kingdom and for certain producer industries, it would result in an immediate and relatively large increase in the cost of The United Kingdom states first that it crossing the Channel because an essential will only submit observations on the first source of revenue would have to be

JUDGMENT OF 14. 2. 1984 — CASE 278/82

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

JUDGMENT OF 14. 2. 1984 — CASE 278/82

REWE v HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

tions for goods which enter from 1.3. In the context of the third question : another Member State of the Com- intra-Community travel combining munities or from a German port and ship and coach have not borne customs duty.

TUDGMENT OF 14. 2. 1984 — CASE 278/82

or have such contact in circumstances which do not permit them to disembark (ii) In order to answer the question, the and make purchases, persons who take Government of the Federal Republic of part in combined ship and coach Germany submits observations relating at excursions do disembark at the port of the same time to exemptions from another Member State. customs duties, charges levied on imports The Commission considers that it is of agricultural products, turnover taxes possible to leave open the question and excise duties. whether such passengers have the oppor- tunity to make purchases in that port (iii) The Government of the Federal since the question submitted to the Court Republic of Germany is of the opinion refers only to goods which they have that, in asking the third question, the purchased duty-free on board the ship Finanzgericht assumes that goods which which is providing the excursion. are obtained tax-free on board a ferry- boat operating between ports in several (b) In this connection the Government Member States and which are contained of the Federal Republic of Germany makes in passengers' luggage on leaving the the following preliminary observations ship are cleared through customs in the and, as in relation to the other two port of arrival not in order to put them questions submitted by the Finanz- into free circulation but as a transit

Customs Tariff have not been charged of Germany therefore concludes that: and which are not, from a customs point of view, in free circulation in a Member Goods which ar.e not put into free circu- State within the meaning of Article 10 lation from a customs point of view in a (1) of the Treaty and the directives Member State must be subjected to duty implementing it. there since the exemption cannot be They must be equated with goods falling granted in respect of them; within Article 1 (2) (b) of Council Regu- Goods which have indeed been put into lation (EEC) No 222/77 of 13 De- free circulation from a customs point of cember 1976 (Official Journal 1977, view but which were purchased tax-free,

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

JUDGMENT OF 14. 2. 1984 — CASE 278/82

Fourthly, the fact that the Council 2.2. The other observations submitted to directives which have been adopted in the Court are subdivided by this area are harmonizing measures reference to the questions referred to whose legal basis is Article 99 of the the Court by the Finanzgericht Treaty;

Thirdly, the fourth recital in the Such a ruling would have the effect of preamble to Directive 69/169/EEC encouraging the Community institutions supports such an interpretation since it to accelerate the process of harmon- emphasizes, on the one hand, that a tax ization in that area, which in Ireland's reduction should be granted, because, as view is most desirable. a general rule, goods, whether in a non-

REWE ν HAUPTZOLLÄMTER PLENSBURG, ITZEHOE AND LÜDECK-WEST

Consequently, Directive 69/169/EEC, which derogates from the general rule, They rely on three arguments in support must be interpreted strictly and turnover of that contention. tax and specific excise duties must be charged on goods obtained on board ferry-boats operating between a non- First, they maintain that by virtue of member country and a Member State on Article 2 (1) of Directive 69/169/EEC their importation into that Member an exemption from turnover taxes and State. excise duties applies only to goods which a traveller coming from one of the Member States of the Community has (b) The Government of the Federal acquired subject to the general rules Republic of Germany, the United governing taxation on the domestic Kingdom and the Commission maintain market of one of those States. that, on the contrary, the tax concessions provided by Article 69/169/EEC, as amended, do apply to the goods to That provision lays down an essential which the Finanzgericht refers in its requirement for the application of the order and which have been purchased by tax exemption which cannot be set aside passengers on ferry-boats operating by a mere rule of procedure such as that between a non-member country and a laid down in Article 2 (4) of the Member State. directive.

JUDGMENT OF 14. 2. 1984 — CASE 278/82

quantitative restrictions (tobacco prod- by way of exception, tax-free. ucts, alcoholic drinks, perfumes, coffee, tea), which form a large proportion of Secondly, the plaintiffs in the main the trade carried out on ferry-boats, the action contend that, while it is true that, Community rules do not expressly under certain conditions, Article 2 (4) of provide that they must be acquired the directive grants to travellers coming subject to the general conditions from Member States the tax concessions governing taxation on the domestic provided for in respect of travel to and market of one of the Member States in from non-member countries if they order to be able to benefit from cannot show that the goods were exemptions in the context of intra- acquired subject to the general Community trade. conditions governing taxation on the domestic market of a Member State, that provision should not be taken into Nevertheless it follows from Article 4 (4) consideration in the present case. It does of the directive that that condition also not apply to ferry-boats operating applies to goods liable to high rates of between two Member States and the two tax.

cannot apply to such goods. Those more First, the question is a new one and has limited exemptions have been granted by not been settled by either the fifth or the tradition by the Federal Republic of sixth paragraph of the operative part of Germany, as by all the other Member the Court's judgment of 7 July 1981 in States, in the context of intra- Case 158/80. Community passenger traffic by ferry- boat and aircraft. Secondly, untaxed goods in relation to which the tax exemption is not subject to According to the Government of the quantitative restrictions are not exempt Federal Republic of Germany, that from tax in the context of intra- practice is not contrary to the directive Community passenger traffic, within the even if it does not contain express limits as to value laid down in Article 2 provisions in relation to intra- (1) of Directive 69/169/EEC, since they Community trade in untaxed goods.

It follows from the penultimate recital in Failing the harmonization of excise the preamble to the directive that the duties, there is no objective reason to Council took the view that, as a general treat goods purchased in tax-free shops rule, goods imported in the course of and imported from a Member State of intra-Community passenger traffic were the Community less favourably than acquired already taxed in the country those so purchased and imported from a from which they came. The Council non-member country. could not have been unaware of those cases which do not follow the general rule. In fact, Article 6 of the directive, as The Government of the Federal Republic amended, confirms that fact by expressly of Germany is also concerned to reject excluding sales made at airport shops the reservations expressed in connection under customs control and on board with that argument by the Finanzgericht aircraft from the general scheme of tax Hamburg by stating that it is not possible concessions in respect of supplies of to deduce either from the provisions of goods to persons travelling within the the directive or from the preamble Community. thereto that only goods purchased in a "territory" and not on board ship may That exception, which is only of any be exempt from taxes in the context of meaning in connection with a limited tax intra-Community trade. concession in the country of arrival, should also be applied to the case of intra-Community travel effected by Furthermore, it cannot be inferred from ferry-boats. the directive that the tax exemption is set aside completely when the conditions Furthermore, the admission of such laid down by the directive for the grant products tax-free in limited quantities of higher tax-free quantitative limits for (subject to different rules than those fully-taxed goods are not fulfilled in the governing purchases on the domestic context of intra-Community trade. market) is not a unique case in Community law and may be compared in Finally, it is irrelevant, in relation to tax particular to the importation of goods in exemption, whether or not the goods the course of passenger traffic by obtained on board any means of intra- members of the armed forces of a Community travel were already taxed in Member State stationed in another a non-member country. Member State (Article 5 (3) of the directive). (c) The United Kingdom considers that In support of that argument the the answer to be given to this part of the Government of the Federal Republic of question referred to the Court by the Germany states, furthermore, that, Finanzgericht is of the utmost unlike customs duties, excise duties have significance and that the duty-free not, as yet, been the subject of strict facilities granted to travellers have been Community rules. Thus neither the tax recognized in international law for a structures (for the most part) nor the long time prior to the setting-up of the rates of taxation have been harmonized as yet. Community.

No such legislation exists and, indeed, It also follows from the second recital in the continued existence of the regime of the preamble to the directive that a duty-free shops is explicitly recognized further purpose of its adoption was the by Article 6 (2) of Directive 69/169/ greater liberalization of the system of EEC, as amended. taxes on imports in travel between Member States. Such a recital would be inappropriate if the intention of the The United Kingdom's conclusions are directive had been to abolish existing based first on an examination of the duty-free practices for travellers. legislative history of the relevant Community rules, secondly on an analysis of the provisions of Directive 69/169/EEC, as amended, and thirdly, In the second place, the legal basis for on the fact that such an interpretation of Directive 69/169/EEC and the directives the provisions is not inconsistent with the which have amended it is Article 99 of Court's judgment in Case 158/80. the Treaty concerning the harmonization of indirect taxes including turnover taxes and excise duties. That contrasts with (c)1. Legislative history Regulation No 1544/69 of the Council concerning exemptions from customs duties, which was adopted pursuant to Article 28 of the EEC Treaty. (c)1.(a) Preparatory work and the preamble to Directive 69/169/ EEC Consequently, the Court held in its judgment in Case 158/80 that Regu- The first point made by the United lation No 1544/69 set out definitive Kingdom is that when that directive was Community rules in the sphere in which adopted duty-free trade already con- it operated; by contrast, Directive stituted a significant economic activity, 69/169/EEC and the amendments sub- so that, in the absence of an express sequently made to it constitute legislation intention in the preamble thereto or in seeking to harmonize the tax laws of the the text of the directive itself, the Member States. The different scope of purpose of the directive could not have those two articles of the Treaty is, fur- been to eliminate such trade. thermore, implicit in the Court's reasoning.

That opinion is confirmed by the proposal of the Commission for a second directive amending the original directive The United Kingdom considers that, as (Official Journal 1971, C 106, p. 16). the phrase "without prejudice to rules Furthermore, the purpose of Directive . . ." was left in force by the Third 72/230/EEC, as the proposal became on Directive (78/1032/EEC), the preamble adoption, was to make certain to which makes no reference to the amendments to Article 6 of the original position of duty-free sales, that directive directive and, most importantly, to did not amend the regime in force in the introduce an introductory reservation Member States. into the new Article 6 (2): "Without prejudice to rules relating to sales made at airport shops under customs control and on board aircraft . . ." That phrase (c)2. The text of Directive 69/169/EEC, amounts to express legal recognition of as amended the pre-existing regime in the Member States of sales in duty-free shops to travellers. (c)2.(a) The meaning of the intro­ ductory reservation "without prejudice . . ." contained in (c)l.(b) Subsequent proposals Article 6 (2) of the directive

Directive 72/230/EEC was adopted on The United Kingdom considers it 12 June 1972 and on 22 September 1972 necessary to examine the precise purpose the Commission submitted to the of that reservation in order to discover Council a proposal for a third directive whether, even if it preserves the regime (Official Journal 1972, C 113, p. 15) of duty-free sales at airport shops under and, subsequently, on 16 November 1972 customs control and on board aircraft, it a proposal for a Council regulation may be regarded as apt to cover also the (Official Journal 1972, C 134, p. 34), sale of goods free of turnover taxes and which contained provisions concerning excise duties to travellers on board ferry­ duty-free sales at airport shops and on boats operating between two Member board aircraft, ships and hovercraft. States.

Secondly, from a practical point of view That provision permits exemption from there is no distinction between the turnover taxes and excise duties levied different regimes relating to sales in on the importation of goods into a shops under customs control, whether Member State only where the goods they are at hovercraft terminals, at have been acquired subject to the general airports or on board aircraft or ferry- rules governing taxation on the domestic boats. market of one of the Member States and does not allow for any exception to that requirement. The United Kingdom therefore con- cludes that a wide interpretation of the introductory reservation would give effect to the clear intention of the Its purpose is therefore to define the legislation. limits as to value of goods which, having already been taxed, may be exempt from any further taxation when carried in the personal luggage of travellers moving (c)2.(b) The remaining provisions of from one Member State to another. That Directive 69/169/EEC, as is quite a separate matter from the amended regime prevailing in respect of sales in duty-free shops whether they are in the The complete text of the directive, as territory of a Member State or on board amended, confirms the interpretation a means of transport between two that there was never any intention to Member States. override, by means of these Community provisions, the Member States' own rules relating to duty-free sales, so far as Moreover, the original version of that turnover taxes and excise duties were provision did not contain such a concerned. requirement.

Pending complete Community legislation Artide 6 (1), which prohibits remission of in the field, the United Kingdom allows turnover taxes for travellers whose a traveller coming into its territory, even domicile, habitual residence or place of though he comes directly from another work is situated in a Member State and Member State, the "lower third-country who have already benefited from the limits" in respect of exemption from exemptions from tax on the importation turnover taxes and excise duties provided of goods into a Member State pursuant in Article 1 and Column 1 of Article 4 to Articles 2 and 4 of the directive, is (1) of the directive, as amended, unless also to be understood in that context. the traveller is able to establish that the goods in respect of which exemption is claimed were acquired subject to the The reason for the prohibition laid down general rules governing taxation on the by that provision is that such goods domestic market of one of the Member ought already to have been acquired States. subject to the general rules governing taxation on the Member States and Article 6 (1) therefore has a restricted Only in that event is the traveller able to scope, separate from the regime benefit from the higher exemptions prevailing in respect of duty-free sales provided in Article 2 and Column II of authorized by the practice of the Article 4 (1) of the directive. Member States.

The remaining paragraphs of Article 6, (c)3. The scope of the Court's judgment apart from the introductory reservation of 7 July 1981 in Case 158/80 of Article 6 (2), relate only to ordinary retail sales in a Member State and the procedural arrangements for obtaining The United Kingdom considers that the remission of tax. They relate only to interpretation which it is asking the goods which do not benefit from the Court to adopt in the present case is not exemptions contained in Articles 2 (1) or inconsistent with the aforementioned 4 of the directive. judgment.

No such general system of exemptions (d) On this point the Commission has been achieved as yet and, defers to the Court's wisdom specifically, the duty-free regime is still not governed by Community law. (d)1. By way of introduction it submits Thus, pending the introduction of such four observations. law, it is necessary for a Member State seeking to grant exemptions other than those specifically set out in the directives to have regard to the provisions of those First, according to Directive 69/169/ directives and specifically in the present EEC (Article 2 (1)) exemption from case to have regard to the introductory value-added tax and excise duties applies reservation contained in Article 6 (2) of to goods contained in the personal . the directive. luggage of travellers coming from Member States provided, on the one hand, that they fulfil the conditions laid Thirdly, the United Kingdom emphasizes down in Articles 9 and 10 of the Treaty, that although the Court made no that is to say, that they are in free circu- reference in its judgment to the lation in the Member States, and, on the significance of the reservation contained other hand, that they have been acquired in Article 6 (2), the Advocate General subject to the general rules governing did refer to it in his Opinion, stating that taxation on the domestic market of one it had a wide scope. of the Member States.

In conclusion the United Kingdom considers that the answer to be given to Secondly, according to the Finanzgericht this part of the question referred to the those conditions are not fulfilled because Court by the Finanzgericht is as follows : the goods sold on ferries are either

Thirdly, the question referred to the (d)3.(a) Arguments submitted by the Court by the Finanzgericht raises a new Commission in support of the legal problem which was not considered contention that the reser- in the Court's judgment in Case 158/80, vation contained in Article 6 which, as regards intra-Community (2) should be given a narrow traffic, related only to the situations interpretation referred to in the special provisions of Article 2 (4) of the directive. First, the Commission contends that, since Article 2 (1) of the directive That is not the position in the present requires that the goods in question must case since the Finanzgericht's question fulfil the conditions laid down in Article does not state whether the journey was 9 and 10 of the Treaty, that is to say via the territory of a non-member they must be in free circulation in the country or whether the ship called at a Member States, it is appropriate to refei- part of the territory of a Member State to its submission in relation to customs where the general rules governing exemptions which may be granted in taxation are not applied. respect of intra-Community traffic. Thus, fourthly, the question to which the Court must reply in order to rule on the Secondly, the Commission considers that legality of the tax-free sale of goods on Directive 69/169/EEC amounts to a ferries operating between Member States derogation from the provisions of and of the tax-free importation of such Community law relating to value-added goods into the Member State which is tax. According to the Sixth Directive on the country of destination is whether or value-added tax, the matter is governed not that exception falls within Directive by the principle of the country of 69/169/EEC. destination, that is to say that the goods are exempt, at the time of their expor- tation from a Member State, from the (d)2. The Commission is of the opinion value-added tax which is charged there that, if it is confirmed that the reser- and are liable, at the time of their impor- vation contained in Article 6 (2) in tation into another Member State, to the respect of duty-free shops does contain a value-added tax levied in that country. derogation, from the general principle of the directive, it would be possible to Directive 69/169/EEC derogates from envisage the extension of that dero- that principle by laying clown the gation, by analogy, to the sale of goods principle, in the context of intra- on which taxes have been remitted on Community passenger traffic, that board ferry-boats, since that reservation turnover taxes are levied by the country was introduced in 1972, that is to say at from which the goods come. a time when there was practically no ferry-boat traffic between the Member States of the Community of Six. Goods on which the taxes charged by a Member State have been paid must be allowed to be transported into another (d)3. However, according to the Member State in travellers' luggage Commission, the essential question is without any formality.

Thirdly, the Commission states that the Fifthly, the Commission refers to the significance of the introductory reser- proposal for a third directive and for a vation contained in Article 6 (2) in regulation which it submitted to the favour of sales in duty-free shops lies in Council on 22 September 1972 and 6 the fact that such sales escape from the November 1972, the purpose of which prohibition of the remission of excise was to permit the sale of goods free of duties in the context of traffic to and customs duties and taxes only to from non-member countries (the second travellers with a ticket for travel to a sentence of Article 6 (2) and from the non-member country. need to comply with the formalities laid down in Article 6 (4) (ex post facto After several years of fruitless discussion, remission or obtaining the endorsement during which the Member States of the customs authority). expressed different viewpoints, those proposals were finally withdrawn. It is in that sense that the reservation is to be understood. Nevertheless, the Commission recognizes that the wording In conclusion on this point, the of that reservation, which is somewhat Commission is of the opinion that such unfortunate from a semantic point of an interpretation of the reservation view, may lead to the impression, with contained in Article 6 (2) of the directive regard to the rules relating to excise is based primarily on its context, which duties (that is to say the absolute consists of provisions granting remission prohibition of remission of tax on expor- of tax, in the context of passenger tation), that any remission is therefore transport, in respect of goods exported prohibited for tax-free shops just as it is to non-member countries and in respect for the remainder of the retail trade. of goods within the Community in so far as they are not covered by the exemptions provided for by the directive. Fourthly, the Commission emphasizes that such an interpretation of the reser- vation contained in Article 6 (2) means If the Court accepts such an interpret- that the absolute prohibition of remission ation, then having regard to the wording of tax in relation to intra-Community of the sixth paragraph of the operative traffic in respect of goods contained in part of its judgment of 7 July 1981 in the luggage of travellers who benefit Case 158/80, it may be concluded that from tax exemptions also applies to sales the Member States have no power to in duty-free shops at airports and on permit the tax-free sale of goods in the board aircraft. course of intra-Community travel except

where the directive provides for dero- the reservation contained in Article 6 (2) gations. Of necessity that conclusion had a very wide scope. Moreover, he would apply to duty-free sales of goods raised the question whether that reser- on ferry-boats operating between vation could not also be interpreted to Member States. include the supply of tax-free goods in whatever form to travellers in the context of intra-Community travel. (d)3.(b) Arguments submitted by the Commission in support of the Finally, the Commission points out that contention that the scope of the abolition of tax concessions granted the introductory reservation in relation to duty-free shops would have contained in Article 6 (2) major economic consequences and should be given a wide in- would result in a significant increase in terpretation the price of flights and ferry-boat journeys. First, the Commission contends that a strict interpretation, as outlined above, The Commission concludes that it is does not accord with the purpose of the quite possible that by including the reser- reservation. vation in Article 6 (2) the Community legislature intended to confirm the The possibility of a remission of excise existing practice in the Member States duties is, in fact, of far greater economic until Community rules were adopted in importance to duty-free shops than the matter. exemption from value-added tax. If the Court decides that the reservation The special status which is intended to constitutes a general derogation from the be conferred on tax-free shops by the scheme of the directive, it would follow reservation contained in Article 6 (2) that the sale of tax-free goods in tax-free would therefore be deprived of its shops would be lawful within the limits essential purpose if such shops were laid down by the directive (shops under subject to the prohibition of remission of customs control at airports and sales on excise duties. board aircraft). Such reasoning may also be applied to tax-free sales on board Secondly, the actual wording of the ferry-boats in relation to the exemptions introductory reservation contained in provided by the directive. Article 6 (2) is not inconsistent with such an interpretation since in 1972, when that provision was inserted into the 2.2.3. In relation to the third question: directive, there were no Community combined ship and coach travel rules governing sales in airport shops within the Community under customs control or sales on board aircraft; the rules referred to in the (a) The observations of the plaintiffs in reservation must therefore be those the main action are summarized under applied by each Member State. the heading (C) 1.3.(a).

the question whether, in the context of D — Proposed replies submitted to the combined ship and coach travel within Court the Community, exemption from turnover taxes and excise duties is compatible with Community law. 1. The plaintiffs in the main action propose that the following reply be given to the questions referred to the Court by First, such an answer is clearly necessary the Finanzgericht: if the Court considers that the reser- vation contained in Article 6 (2) does not constitute a general derogation from the "Regulations Nos 1544/69 and 1818/75 scheme of Directive 69/169/EEC. of the Council of 10 July 1975 and Council Directive 69/169/EEC, as last amended in each case, are to be In that event, what is prohibited in the construed to the effect that the tax case of ferry-boats operating between concessions provided for therein in Member States must equally be respect of customs duty, import charges prohibited in the case of ships carrying applicable to agricultural products or passengers participating in excursions goods resulting from the processing involving combined sea and land thereof, turnover taxes and excise duties journeys. do not apply to goods which are purchased on ferry-boats and which are not in free circulation in the Member Secondly, even if the Court considers States or which have not been subject that the reservation contained in Article to turnover tax or excise duties in 6 (2) does constitute a derogation from the Member States or non-member the general scheme of the directive, the countries, regardless of whether the Commission takes the view that the ferry-boats operate between a Member reservation cannot apply to combined State and a non-member country or excursions. Unlike tax-free sales in tax- between Member States." free shops at airports or on board aircraft and ferry-boats which give pass- engers the opportunity during a flight or 2. The Government of the Federal crossing to acquire goods on which tax Republic of Germany proposes that the has been remitted, the main purpose of following reply be given to the questions combined excursions, as that of "butter- referred to the Court by the Finanz- buying cruises", is not to make a journey gericht: but to be able, in return for a modest outlay in respect of travel costs, to acquire on board tax-free goods and to 1. The first question: import them into the country from which "Regulation No 1544/69 of the Council they departed without having to pay the of 23 July 1969 and Council Directive relevant taxes. 69/169/EEC of 28 May 1969, as amended at the relevant time, are to be construed to the effect that the The purposes of the operation is exemptions from customs duties and therefore to circumvent the tax taxes applicable to goods contained in provisions of Community law. the personal luggage of travellers coming from a non-member country also apply, subject to other requirements, to Thus no tax concession should be products purchased on board ferry-boats allowed in such a situation. carrying passengers between a Member

State and a non-member country. In that "Council Regulation No 1544/69 of 23 respect it is irrelevant whether or not the July 1969, as amended by Council Regu- goods have been subject to duties lation No 3313/81 of 17 November imposed under the Common Customs 1981, Council Regulation No 1818/75 Tariff, agricultural charges or charges of 10 July 1975, as amended by Council having equivalent effect governed by- Directive 2780/78 of 27 November 1978 Community law, turnover taxes or excise and Council Directive 69/169 of 28 May duties imposed by a Member State or 1969, as last amended by Directive duties imposed by a non-member 81/933 of 17 November 1981, are to be country or whether or not the goods interpreted as meaning that the specified have benefited from any assistance for exemptions from customs duties, agri- their exportation under the common cultural levies, turnover taxes and excise agricultural policy." duties are also valid for goods which are not in free circulation in the Member States or which have not borne turnover tax or excise duty in the Member States or in third countries which have been purchased by travellers on ferries 2. The second and third questions: operating between a Member State and a third country." "Council Directive 69/169/EEC of 28 May 1969, as amended at the relevant time, permits the tax concessions applicable to goods contained in the personal luggage of travellers coming from a non-member country to be With regard to the second question: granted where the goods have been purchased on board ferry-boats carrying passengers between Member States, are "The provisions mentioned in Question imported in travellers' personal luggage 2 should be construed to the effect that and have been put into free circulation goods which are not in free circulation in for customs purposes in a Member State Member States which are purchased by but have borne the turnover taxes or passengers on ferries carrying passenger excise duties of a Member State. The traffic on journeys between Member same will apply to products which have States may not benefit from exemption received customs clearance and have from customs duties and levies on agri- been put into free circulation not in the cultural products. Member State in one of whose ports the journey ends but solely in another Member State. It is irrelevant whether or not the goods have borne the duties imposed by a non-member country." Where such goods are in free circulation and all customs duties and levies on agri- cultural produce have been paid, Member States may continue the practice of granting exemptions from turnover 3. The United Kingdom proposes that taxes and excise duties in relation to the the following reply be given to the importation of goods sold to passengers question referred to the Court by the on ferries carrying passengers between Finanzgericht: Member States."

4. Ireland proposes that the following compatibility with Community law, the reply be given to the questions referred reply to the question depends, in the to the Court by the Finanzgericht: Commission's opinion, on the interpret- ation of Article 6 (2) of Directive No "Duty-free shops on regular ferry routes 69/169/EEC and in relation to such in intra-Community travel are outside interpretation the Commission defers to the scope of application of Directive the Court's wisdom." 69/169/EEC, as amended, simply because the Community institutions have not succeeded in adopting the relevant 3.: "With regard to combined sea and measures as yet." land excursions and exemption from customs duties and agricultural levies in that context, the Commission refers to its 5. The Commission proposes that the observations on the second question. following reply be given to the questions referred to the Court by the Finanz- gericht: The Commission replies in the negative to the question whether exemption from 1.: "The provisions of Community law turnover tax and excise duty is concerning the tax concessions to be compatible with Community law." granted in respect of goods contained in travellers' luggage (Regulation No 1544/69 of the Council, Regulation No 1818/75 of the Council and Council Directive 69/169/EEC) are to be con- III — Oral p r o c e d u r e strued to the effect that tax concessions in respect of customs duties, import charges applicable to agricultural At the sitting of 20 September 1983 oral products or certain products resulting argument was presented by Rewe-Han- from the processing thereof, turnover delsgesellschaft Nord mbH and Firma taxes and excise duties also apply to Rewe-Markt Herbert Kureit, represented goods which are not in free circulation in by Gert Meier, the Senior Legal Adviser the Member States or on which the of Rewe-Central AG; by the Federal turnover taxes or excise duties applicable Republic of Germany, represented by in the Member States have not been paid Arved Deringer, acting as Agent, assisted and which have been purchased by pass- by Frank Olbertz, Expert; by Förde- engers on ferries carrying traffic between Reederei GmbH, represented by Walter a Member State and a non-member Seuffert, Rechtsanwalt; by the United country." Kingdom, represented by G. Dagtoglou and John Laws, acting as Agents; by 2.: "The provisions mentioned in Ireland, represented by James O'Riley, Question 1 must be construed to the acting as Agent; by the Government of effect that, in relation to passenger the French Republic, represented by traffic between Member States, the sale Gérard Boivineau, acting as Agent; and of goods free of customs duties and agri- by the Commission of the European cultural levies to travellers on board Communities, represented by Erich ferries and the importation of those Zimmermann, acting as Agent. goods tax-free into the State where the journey ends are unlawful. The Advocate General delivered her With regard to exemptions from value- opinion at the sitting on 9 November aded tax and excise duties and their 1983.

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.

JUDGMENT OF 14. 2. 1984 — CASE 278/82

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 Hauptzollämter 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:

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

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?"

T h e a p p l i c a t i o n of A r t i c l e 177

7 The plaintiffs in the main action consider that the Court, in its judgment of 7 July 1981 (Case 158/80 Rewe-Handelsgesellscbaft Nord mbH and Rewe- Markt Steffen ν 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.

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 N o 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.

1 1 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 N o 1544/69 was extended to agricultural levies and other import charges applicable to goods contained in the personal luggage of travellers entering the Community.

1 2 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 Regu- lation N o 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

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

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.

JUDGMENT OF 14. 2. 1984 — CASE 278/82

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 N o 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 N o 1544/69 (as amended by Regulation N o 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".

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.

27 In their written observations some M e m b e r States maintained that the aforementioned requirements laid d o w n in Article 2 of Directive 6 9 / 1 6 9 d o 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 U n i t e d K i n g d o m maintained that the aforementioned requirements of Directive 6 9 / 1 6 9 did n o t apply o n a c c o u n t of the existence of prior international obligations and in particular the provisions of the C o n v e n t i o n concerning Customs Facilities for T o u r i n g , signed at N e w Y o r k

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

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 ν 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.

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 Finanz- gericht 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

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 ¡aid down in Article 2 (1) are satisfied.

JUDGMENT OF 14. 2. 1984 — CASE 278/82

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 N o 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.

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, i n t r a - C o m m u n i t y travel by combined ship and coach services, is organized in such a m a n n e r that travellers m a y actually make purchases in the M e m b e r State w h e r e they disembark prior to returning by land, it is possible to regard the passengers as travellers within the meaning of Directive 6 9 / 1 6 9 , as amended. T h e same solution should therefore be adopted as that set out above in relation to i n t r a - C o m m u n i t y 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 n o n - m e m b e r country, may be granted even if the goods in question w e r e not acquired subject to the general rules governing taxation on the domestic m a r k e t of one of the M e m b e r 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.

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

REWE ν HAUPTZOLLÄMTER FLENSBURG, ITZEHOE AND LÜBECK-WEST

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.

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 import- ation, 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.

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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