C-325/82

In Case 325/82

COMMISSION O F T H E E U R O P E A N C O M M U N I T I E S , r e p r e s e n t e d by its Legal Adviser, Erich Z i m m e r m a n n , with an address for service in L u x e m b o u r g at the office of O r e s t e M o n t a l t o , a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, applicant,

ν

FEDERAL REPUBLIC OF G E R M A N Y , r e p r e s e n t e d by Arved D e r i n g e r a n d J o c h i m S e d e m u n d , Rechtsanwälte, 14 H e u m a r k t , D - 5 0 0 0 C o l o g n e 1, w i t h an address for service in L u x e m b o u r g at the Embassy of the Federal Republic of G e r m a n y , 20-22 Avenue É m i l e - R e u t e r , defendant,

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APPLICATION for a declaration that the Federal Republic of Germany, by- permitting goods which have not borne turnover tax and excise duties to be sold during short cruises and excursions on the North Sea and the Baltic Sea to passengers who then import them tax-free into the Federal Republic of Germany on their return, has failed to fulfil its obligations under the provisions of Community law governing taxes,

The facts of the case, the course of the Baltic Sea of various goods which are procedure and the conclusions, sub- then imported into the Member States missions and arguments of the parties free of customs duties, agricultural levies, may be summarized as follows: turnover tax and excise duties.

I — Facts The facts which led the Commission to bring this action are similar to those which led the Finanzgericht [Finance 1. — The history of the dispute Court] Hamburg to refer its first question on the matter to the Court for a preliminary ruling; the Court gave This action arises out of the situation judgment on 7 July 1981 (Case 158/80 created by the tax-free sale on board Rewe-Handelsgesellschaft Nord mbH and ships or ferries during cruises or short Rewe-Markt Steffen ν Hauptzollamt Kiel excursions on the North Sea and the [1981] ECR 1805). In that case the

JUDGMENT OF 14. 2. 1984 — CASE 325/82

Flensburg, Itzehoe and Lübeck-West [1984] ECR 721) seeking a ruling on the question whether tax concessions in 2. The Community provisions respect of customs duties, import charges applicable to agricultural products, turnover tax and excise duties provided for in Regulation (EEC) N o 1544/69 of the Council of 23 July 1969, as Directive N o 69/169, as supplemented amended, in Regulation N o 1818/75 of by the Second Council Directive, the Council of 10 July 1975, as 72/230/EEC of 12 June 1972 (Official amended, and in Council Directive Journal, English Special Edition 1972 69/169/EEC of 28 May 1969, as (II), p. 565), by the Third Council amended, also apply to goods which are Directive, 78/1032/EEC of 19 Decem- not in free circulation in the Member ber 1978 (Official Journal 1978, L 366, States or which have not borne any p. 28), by the Fourth Council Directive, turnover tax or excise duty in the 78/1033/EEC of 19 December 1978 Member States or in non-member (Official Journal 1978, L 366, p. 31), by countries and which are purchased by Council Directive 81/933/EEC of 17 passengers either on ferries carrying November 1981 (Official Journal 1981, travellers between a Member State and a L 338, p. 24) and finally by Council non-member country, on ferries carrying Directive 82/443/EEC of 29 June 1982 travellers between Member States, or on (Official Journal 1982, L 206, p. 35) ships sailing from a port in one Member specifies (in Article 1) the exemptions State to a port in another Member State from turnover tax and excise duties where the passengers go ashore and applicable to goods contained in the then, without being charged duty, return personal luggage of travellers coming by land to the Member State in which from non-member countries and (in

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the Member States of the necessary- either in a port of another Member State measures as regards sales at the retail (including international ferry travel, trade stage so that, subject to certain conditions and reservation, turnover tax on goods carried in the personal luggage of travellers leaving a Member State may or in a German port, in which case the be remitted. port of departure and the port of arrival may be the same.

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The exemption for the "kleine that with effect from 1 January 1983 no Transitration" is merely conditional exemption from customs duties or agri- upon the importation of goods on the cultural levies and no tax exemption occasion of what have become known as would be granted any longer on the sale "Stichfahrten" (excursions), that is to say of goods to persons travelling within the a cruise in which the ship returns, after a Community. trip on the high seas, to the port from which it sailed. The exemption is not conditional upon the ship's sailing beyond the maritime customs frontier or (b) On 11 June 1982, the Commission upon its having either called at a foreign delivered a further reasoned opinion to port or remained outside the customs the Government of the Federal Republic territory for at least eight hours. The of Germany concerning the continuation exemption for the "kleine Transitration" of "butter-buying cruises" along the is less than that for the "grosse German coast after Council Regulation Transitration". 1 No 3023/77 of 20 December 1977 had been declared void by the Court in its judgment of 7 July 1981, cited above. 4. The procedure prior to the application to the Court

(a) By letter of 2 February 1982 the By a telex message of 31 March 1982 the Commission requested the Federal Government of the Federal Republic of Republic of Germany, as it did all the Germany informed the Commission that other Member States, to ensure that as it had decided on 24 March 1982: from 1 April 1982, their legal and administrative practices complied with the aforementioned judgment of the Court of Justice in Case 158/80. that the Commission had not yet drawn the necessary conclusions from the By letter of 7 April 1982 the Commission Court's judgment of 7 July 1981 in initiated the procedure under Article 169 relation to goods purchased free of tax of the Treaty in respect of all the in the course of intra-Community travel Member States and delivered a reasoned by air and by ferry; opinion to them all on 11 June 1982.

On 30 August 1982 the German A — Questions put to the Commission Government also informed the Com­ mission that it had decided to termi­ nate, with effect from 1 January 1983, 1. The Commission is requested to the grant of exemption from customs indicate exactly which provisions of the duties and levies in respect of goods German rules it is objecting to in these purchased duty-free in the course of proceedings under Article 169. intra-Community travel by air and sea (and in the course of excursions at sea. 2. The Commission is requested: However, with regard to the abolition of tax exemptions in respect of goods T o state whether this action has been purchased in the course of excursions at brought in respect of laws or regulations, sea, the Government of the Federal on the one hand, or a mere ad­ Republic of Germany stated that it ministrative practice on the part of the continued to take the view that the customs authorities, on the other hand; Commission, by requiring the Federal Republic of Germany alone to stop granting exemptions from turnover tax To produce all factual and legal evidence and excise duties in respect of such in support of its argument to the effect excursions, was not acting in conformity that the highest concession is granted, with the Court's judgment of 7 July 1981 that is to say, the "intra-Community" since, according to the German concession provided for in Article 2 and Government, the problem must be Article 4 (1), Column II of Directive examined in relation to the whole of the 69/169, and not the lower "non-member Community and in relation to all types country" concession provided for in of transport. Article 1 and Article 4 (1), Column I thereof, as is maintained by the Government of the Federal Republic of Germany. II — Written procedure

Documents to be produced by the 3. The Government of the Federal Commission Republic of Germany is requested to state the reasons for which it considers 1. Its proposals for sixth and seventh (p. 5 of its defence) that persons directives amending Directive 69/169, returning from an excursion at sea are submitted to the Council on 11 April granted not the "Community con­ 1983 (Official Journal 1983, C 114, pp. 4 cessions" provided for in Article 2 of and 7), which it was requested to Directive 69/169 but more restrictive produce in Case 278/82, together with concessions, that is to say the "lower the explanatory memorandum sent to the non-member country exemption" pro­ European Parliament. vided for in Article 1 and Article 4 (1), Column I, of the directive, or even lower exemptions. 2. The Commission is also requested to produce, if it exists, an up-to-date edition of its brochure on "Tax concessions granted to individuals on the III — C o n c l u s i o n s of t h e p a r t i e s importations of goods" issued in June 1979. 1. The Commission claims that the Court should: Β — Questions put to the Government of Declare that the Federal Republic of the Federal Republic of Germany Germany, by granting exemption from turnover tax and excise duties, by virtue 1. Does the Federal Republic of of the Einreise-Freimengen-Verordnung Germany agree with the account of [Entry (Duty-free Import) Order] of the German provisions given in the 3 December 1974, as amended by the Commission's application (heading I, Order of 28 September 1982, to paragraph 4) and in the recital of the travellers importing untaxed goods facts in the judgment of 7 July 1981 across the maritime customs frontier on (Case 158/80 [1981] ECR 1805, in the occassion of excursions on the North particular at pp. 1810 and 1811, subject Sea and the Baltic Sea, in contravention to the amendments made by the Third of Council Directive 69/169/EEC, has Order of 28 September 1982)? If it does failed to fulfil its obligations under the not agree with that account, the EEC Treaty and in particular the rules Government of the Federal Republic of on tax exemptions for travellers; Germany is requested to give a detailed account of the relevant German Order the defendant to pay the costs. provisions. 2. The Federal Republic of Germany 2. The Government of the Federal contends that the Court should: Republic of Germany is requested to Declare the Commission's application state whether the German provisions in inadmissible and order it to pay the this field are applied strictly or whether costs; the customs authorities are in practice more flexible. If they are more flexible, In the alternative, stay the proceedings the German Government is invited to until judgment has been given in Case state the exact nature of its practices and 278/82; to produce any internal administrative documents, such as circulars and In the further alternative, dismiss the departmental guidelines, on which the application as unfounded and order the practices are based. Commission to pay the costs.

3. By a document dated 10 March 1983 Republic of Germany in respect of received at the Court Registry on 14 untaxed goods purchased in the course March 1983, the Commission objected to of "butter-buying cruises", that reference the defendant's request for a stay of contradicts the first reasoned opinion of these proceedings until judgment has 11 June 1982 delivered to all the been given by the Court in Case 278/82. Member States. In the first reasoned opinion the Commission had in fact stated that the Court's judgment in Case 158/80 contained no decision on the IV —· S u b m i s s i o n s a n d a r g u m e n t s question of tax exemptions, the solution of t h e p a r t i e s to which was completely separate from that to the question of customs duties and agricultural levies. A — Admissibility of the Commission's application (c) Thirdly, the Government of the Federal Republic of Germany contends 1. The Government of the Federal that the reasoned opinion delivered to it Republic of Germany maintains that the is inconsistent in so far as it states that second reasoned opinion delivered by tax exemptions granted in respect of the Commission, dated 11 June 1982 transport by sea are always unlawful (Opinion C/82/768), was vitiated by where the travellers have not stayed in a fundamental defects and that, con­ non-member country beforehand. sequently, the Commission's application is inadmissible. If that were true, no tax exemptions whatsoever would exist in relation to (a) First, the Government of the transport by sea within the Community, Federal Republic of Germany considers which is clearly not the case. that the reasoned opinion is insufficiently clear and contains contradictions. Furthermore, the excursions at sea represent only one example of cruises According to its wording it relates to during which the passengers spend no "butter-buying cruises off the German time in a port of a non-member country. coast after Council Regulation (EEC) No 3023/77 was declared invalid by the (d) The Government of the Federal Court of Justice". Republic of Germany maintains, fourthly, that the reasoned opinion is In fact Council Regulation N o 3023/77 insufficiently clear and is arbitrary since relates only to customs duties and in its application the Commission objects charges having equivalent effect and also only to the tax concessions granted in to agricultural levies and other import connection with excursions at sea which charges applied under the Common means that it is separating such Agricultural Policy but not to turnover excursions from the category of cruises tax and excise duties which are the in general in order to subject them to subject of this action. special treatment.

Commission to take action at the same reasoned opinion themselves that the time and using the same means against Commission referred quite clearly to both tax concessions granted in the Directive 69/169/EEC and stated that course of excursions at sea and those the German rules relating to exemption granted in the course of intra- from import duties in respect of goods Community transport by ferry. contained in travellers' personal luggage did not comply with that directive for (e) Fifthly, the Government of the reasons which were explained clearly. Federal Republic of Germany adds that the Commission may have been mistaken Furthermore, the statements made by the with regard to the level of the tax Government of the Federal Republic of exemptions granted by the Federal Germany in its telex messages of 31 Republic of Germany after excursions at March and 30 August 1982 prove that

The fact that the action quantities of goods. brought in respect of the Federal Republic of Germany's failure to fulfil its (2) The Commission takes the view obligations relates solely to tax that the defendant's arguments are not exemptions granted on the occasion of sufficient to show that the application is excursions at sea has no bearing on the inadmissible. admissibility of the action. Finally, the Commission was not mistaken with The objection of inadmissibility is regard to the extent of the tax justified only if the defendant can show exemptions granted by the Federal that the Commission's complaint that it Republic of Germany on the occasion of has acted in breach of the Treaty was the excursions at sea. expressed in an insufficiently clear manner, Ín fact and in law, in the letter of 7 April 1982 which initiatied the Β — Substance procedure under Article 169 of the

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(a) It takes the view that there is no turnover tax and excise duty for goods doubt that the granting of such contained in travellers' personal exemptions is contrary to Community luggage", supports the contention. law. (ii) Whilst it is true that Directive Contrary to Article 2 of Directive 69/169 does not provide for the 69/169/EEC, goods sold in the course application of an exemption from of the excursions at sea have not been turnover tax and excise duties on goods acquired subject to the general rules imported following excursions at sea, it governing taxation on the domestic is not possible to infer therefrom, as does market of one of the Member States. the defendant, that the directive is not applicable since the imports in question According to the aforementioned judg­ are effected neither within the frame­ ment of the Court in Case 158/80, work of travel to and from member Directive 69/169/EEC, together with the countries nor within the framework of subsequent directives amending it and intra-Community travel. extending its scope, introduced a complete system of exemptions in respect The purpose of the directive is the of goods contained in travellers' personal "harmonization of provisions laid clown luggage and consequently in this field by law, regulation or administrative the Member States are left with only the action relating to exemption from restricted power given to them in the turnover tax and excise duty on imports directives to grant exemptions. in international travel" and the German In this case the Federal Republic of Order on Tax Exemptions of 3 Germany is granting an exemption which December 1974 makes the grant of such is not provided for in the directive and exemptions conditional on the entry into which it is therefore not empowered to the national territory being effected grant. across the maritime customs frontier.

sea are to be treated in the same way as country and the Community (Article 1 short sea-crossings by ferry between the and Article 4 (1), Column I of the ports of different Member States. directive) nor in the course of travel between Member States (Article 2 and According to the Commission it is an Article 4 (1), Column II of the directive). open question whether the two situations are to be treated in the same way. The Moreover, the Commission itself makes question whether the grant of tax a distinction between excursions at sea or exemptions on the occasion of ferry "butter-buying cruises", on the one crossings is compatible with Community hand, and travel within the Community, law is the subject of the reference to the on the other hand. Consequently tax Court for a preliminary ruling made in exemption granted under national law in Case 278/82, which is pending before respect of purchases of goods which are the Court at the moment. However the untaxed but which are in free circulation result of that case has no effect on this and which are made on the occasion of one. excursions at sea cannot infringe the directive since they fall outside its scope For that reason it is not justified, in the of application. Commission's opinion, to join the two cases. (b) According to the Government of According to the Commission, the Court the Federal Republic of Germany, even if clearly held in the aforementioned Case the Court were to regard excursions at 158/80 that tax exemptions granted in sea as "travel", it would be necessary the course of excursions at sea are to consider to what extent such incompatible with Community law and "excursions" differ from "short cruises" that conclusion will not be put in doubt by ferry between the ports of different by the judgment given in Case 278/82. Member States, in the course of which it is possible to make tax-free purchases on 2. The Government of the Federal board. Republic of Germany maintains, on the contrary, that the action against it for Both types of travel by boat ought to be failure to fulfil its obligations, the treated in the same way with regard to subject-matter of which must, moreover, the rules governing tax exemptions. be limited to the question whether tax Indeed, in the German Government's exemptions granted in respect of untaxed opinion, tax exemptions granted in the goods, acquired on excursions at sea and context of excursions at sea may well put into free circulation, are compatible even be less open to objection than those with Community law according to the granted in the context of travel by relevant customs duty provisions, is aircraft or by ferry within the unfounded for two reasons. Community since they affect the interests of only one Member State, that is to say, (a) It follows from the Court's the Federal Republic of Germany in this judgment in the aforementioned Case case. 158/80 that Directive 69/169 contains exhaustive rules governing exemption Therefore the principle that, in such from turnover tax and excise duties cases, there is no absolute duty to apply which do not cover the importation of the rules of Community law strictly may untaxed goods acquired on excursions at be inferred, by analogy, from an exami- sea. nation of the various Community rules.

travel by f e r r y within the Community, allowance (kleine Transitration) in the Government of the Federal Republic frontier-zone travel] and in respect of of Germany refers to the arguments alcoholic beverages, coffee and tea are which it put forward in the afore­ also subject, on the crossing of the mentioned Case 278/82, the judgment in maritime customs frontier, to the which could, in its opinion, anticipate requirement that the ship must come that in this case. from the high seas and either have last sailed from a foreign port or have remained outside the customs area for at V — R e p l i e s of t h e p a r t i e s t o t h e least eight hours." q u e s t i o n s p u t by t h e C o u r t The Commission concludes from that that if those requirements are satisfied, a A — The Commission's replies traveller is, on his return from an excursion at sea, eligible for the major Question 1 transit allowance (grosse Transitration), The Commission states that its action is which is also granted in respect of goods directed against Paragraph 2 (2) in imported from a non-member country. It conjunction with the second sentence of is of the opinion that the importation Paragraph 3 (5) of the Order on Tax of goods tax-free permitted by the Exemptions of 3 December 1974 (BGBl. aforementioned German provisions, is 1974 I, p. 3377), as amended by the not intended by Directive 69/169 as Third Order Amending the Order on amended. Since the directive contains a Tax Exemptions of 28 September 1982 complete system of rules, the Federal (BGBl. 1982 I, pp. 1378 et seq.). Republic of Germany is prohibited from adopting such provisions. Paragraph 2 of the aforementioned Order lays down, in respect of certain Question 2 goods, the limits as to value and quantity The Commission states that its action is within which such goods may be directed against legislative provisions imported by travellers free of import and not against a mere administrative duties. The Order draws a distinction practice of the customs authorities. between "imports of goods in free circu­ lation in a Member State of the The Commission states that it did not European Communities', (subparagraph maintain in its application that the 1) and "other imports" (subparagraph 2). quantities admitted tax-free into the "Other imports" cover both imports Federal Republic of Germany in from a non-member country and imports connection with excursions at sea were on the occasion of "excursions at sea" those permitted in intra-Community ("entry across the maritime customs travel. frontier"). It stresses that the concessions granted in The Commission emphasizes that that the case of excursions at sea are plainly follows from the second sentence of those granted to travellers coining from a Paragraph 3 (5) of the Order which non-member country and that the provides as follows: Commission and the Federal Republic of Germany are in agreement on that point. "Where a person enters the territory by boat . . . tax exemptions in respect of Question 3 tobacco products, in so far as they exceed the quantities referred to in the In the Commission's opinion there is no first sentence of subparagraph (4) hereof need to consider in this case whether the [that is to say the minor transit sale of tax-free goods on board ship and

outside the German customs territory is applied strictly by the customs authorities compatible with Community law. What which have no- margin of discretion. is important is that the importation Controls are effected by random checks. of goods tax-free infringes Directive 69/169. Question 3 Therefore, in its application, the Commission limits itself to objecting to The Government of the Federal Republic the importation of goods free of tax and of Germany contends that Article 2 (1) duty and not to their sale free of tax and of Directive 69/169 makes the appli- duty on board ship. cation of tax exemptions in the context of intra-Community travel conditional Question 4 on the goods' being acquired subject to the general rules governing taxation on The Commission produced all the the domestic market of one of the documents requested. Member States. That requirement is not satisfied where the goods are acquired in Β — The replies given by the Federal "duty-free" shops. In that connection it . Republic of Germany is irrelevant whether the goods are purchased free of tax at an airport, on Question 1 board an aircraft or ferry, or on the occasion of excursions at sea. All those The Government of the Federal Republic cases are comparable to purchases made of Germany states that it agrees with the in a non-member country in respect of account of the provisions of German law which it is irrelevant, as the Court stated given by the Commission in its ap­ in its judgment of 7 July 1981 (Case plication and in the recital of the facts in 158/80 Rewe-Handelsgesellschafi Nord the judgment of 7 July 1981 (Case mbH and Rewe-Markt Steffen ν Haupt­ 158/80 Rewe-Handelsgesellschafi Nord zollamt Kiel [1981] ECR 1805, mbH and Rewe-Markt Steffen ν Haupt­ paragraphs 1 and 4 of the headnote), zollamt Kiel [1981] ECR 1805) subject to whether or not the goods in question the amendments made by the Third were charged to tax. Order of 28 September 1982. It draws attention first to the fact that the terms "große Transitration" and That was the fundamental factor which "kleine Transitration" do not appear in led the Federal Government not to grant, the German legal provisions and in connection with excursions at sea as secondly to the fact that since 1966 it is with other tax-free purchases made in no longer possible for travellers on short the course of intra-Community sea and excursions ("Stichfahrten") on ships air travel, exemptions in excess of those which remain outside the customs granted in respect of travellers coming territory for less than eight hours to from non-member countries. import alcoholic beverages, coffee and tea free of tax and that tobacco products may be imported free of tax only subject The Government of the Federal Republic to the limits in force in respect of of Germany also draws attention to the frontier-zone traffic. fact that the Commission, in its new proposal for a Seventh Council Directive Question 2 amending Directive 69/169, is apparently prompted by the same considerations The Government of the Federal Republic (Article 1 (1), (2) and (3) (b) of the of Germany states that the provisions are proposal).

3 By letter of 7 April 1982 the Commission drew the attention of the auth- orities of the Federal Republic of Germany to the effects of the Court's aforementioned judgment of 7 July 1981 with regard to customs duties and other charges on agricultural products and also with regard to turnover tax and excise duties. Since the Government of the Federal Republic of Germany failed to reply to that letter by the prescribed date, the Commission delivered a reasoned opinion to the Federal Republic of Germany on 11 June 1982, which began with the statement that the Federal Republic of Germany, by

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unlawfully granting exemptions from customs duties and agricultural levies and also from turnover tax and excise duties to travellers importing goods across the maritime frontier who have not disembarked in another country, has failed to fulfil its obligations under the Treaty.

4 By telex message of 30 August 1982 the Permanent Representative of the Federal Republic of Germany informed the Commission that the Federal Republic had decided to terminate, with effect from 1 January 1983, the grant of exemption from customs duties and agricultural levies in respect of goods which were not in free circulation and which were acquired in the course of intra-Community air and sea travel and in the course of excursions at sea. By Verordnung [Order] of 28 September 1982 (BGBl. 1982 I, p. 1377) the Verordnung über die Eingangsabgabenfreiheit von Waren im persönlichen Gepäck der Reisenden [Order on Tax Exemptions on the Importation of Goods contained in Travellers' Personal Luggage] of 3 September 1974 (BGBl. 1974 I, p. 3377) was amended accordingly.

9 As the Commission rightly contends, the objection of inadmissibility is not well founded since the Court takes the view that the complaint that the Treaty had been infringed finally made by the Commission in its application was expressed in a sufficiently clear manner, in fact and in law, both in the letter of 7 April 1982 which initiated the procedure under Article 169 and in Reasoned Opinion 82 C/768, delivered on 11 June 1982. The defendant therefore had notice of the complaint made against it and was accordingly able to present its defence in full knowledge of the issues.

10 The Government of the Federal Republic of Germany maintains, secondly, that the Commission could not require the Federal Republic of Germany alone, and not all of the Member States, to abolish exemptions from turnover tax and excise duties granted on the return from excursions at sea.

1 1 That argument, too, is not well founded. As the Court has already held (judgment of 25. 9. 1979 in Case 232/78 Commission ν French Republic [1979] ECR 2729) a Member State cannot, in any circumstances, plead the principle of reciprocity and rely on a possible infringement of the Treaty by another Member State in order to justify its own default. Nor, therefore, can a Member State rely on the principle of reciprocity to contest the admissibility of an action brought against it for failure to fulfil its obligations.

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12 Thirdly, the argument put forward by the Government of the Federal Republic of Germany according to which the fact that the Commission treated excursions at sea differently from sea-crossings made by ships operating a regular service is in breach of the principle that comparable factual situations must be treated in the same way, cannot be adduced in support of an objection of inadmissibility. That argument relates to the substance of the case and can have no relevance whatsoever to the admissibility of the action. Its relevance must be considered when the Court examines the substance of the case.

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permitted by the aforementioned German provisions, is not provided for by Directive 69/169, as amended. Consequently, since that directive was held by the Court in its aforementioned judgment of 7 July 1981 to be a complete system of rules, the Federal Republic of Germany had no power to adopt such provisions.

18 Finally, the Commission points out that its action is directed solely against the importation into the Federal Republic of Germany free of turnover tax and excise duties of goods acquired in the course of excursions at sea and not against the actual principle of selling goods free of tax on board ships involved in such excursions.

19 In reply to the Commission's argument, the Government of the Federal Republic of Germany merely maintained, in the first place, that the import­ ation of goods on return from an excursion at sea was outside the ambit of Directive 69/169 and, in the second place, that even if it was within the ambit of the directive, it was necessary, by virtue of the principle of equality of treatment, to consider to what extent such excursions differ from regular crossings by ferry between the ports of different Member States.

20 First, according to the Government of the Federal Republic of Germany, Directive 69/169 contains provisions on exemption from turnover tax and excise duties in international travel which do not cover imports of goods acquired free of tax on the occasion of excursions at sea. Such imports are effected neither in the course of travel from a non-member country (Article 1 and Article 4 (1), Column I of the directive) nor in the course of intra- Community travel (Article 2 and Article 4 (1), Column II of the directive).

25 As the C o u r t has held in its j u d g m e n t of 14 February 1984 (Case 2 7 8 / 8 2 Rewe-Handelsgesellschafi Nord mbH and Rewe-Markt Herbert Küreit ν Hauptzollämter Flensburg, Itzehoe and Lübeck-West, cited above), it is clear b o t h from the aims of Directive 6 9 / 1 6 9 and from the terms of Article 2 (1) thereof itself that the concessions provided for in that directive in relation to tax exemptions for g o o d s contained in the personal luggage of persons travelling within the C o m m u n i t y are limited to travellers " c o m i n g from M e m b e r States", t h a t is to say, travellers w h o g o from one M e m b e r State to a n o t h e r after having in fact had an o p p o r t u n i t y to m a k e purchases in the M e m b e r State of d e p a r t u r e .

26 It follows that a person who, on the occasion of a cruise departing from a port in one Member State, does not call at another Member State cannot be regarded as a traveller, within the meaning of the aforementioned provisions,

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and that, consequent, in such a situation, no exemption from turnover tax and excise duties may be granted.

27 The aforementioned second sentence of Paragraph 3 (5) of the German Order on Tax Exemptions of 3 December 1974, as amended, allows travellers to enjoy an exemption from turnover tax and excise duties in respect of goods acquired free of tax on board cruise ships when they return to the Federal Republic of Germany after a mere excursion at sea which did not involve any call at a port.

28 It should therefore be declared that, by granting exemptions from turnover tax and excise duties in respect of the importation of goods contained in travellers' personal luggage and acquired free of tax on board ships entering the customs territory across the maritime frontier without their having in fact previously called at a port in another Member State or in a non-member country, the rules in question infringe Directive 69/169, as amended.

1. Declares that the Federal Republic of Germany, by granting exemptions from turnover tax and excise duties in respect of the importation of goods contained in travellers' personal luggage and acquired free of tax on board ships entering the customs territory

OPINION OF MRS ROZÈS — CASE 325/82

across the maritime frontier without having in fact previously called at a port in another Member State or in a non-member country, has failed to fulfil its obligations under the EEC Treaty.

2. Orders the defendant to pay the costs.

Mertens de Wilmars Koopmans Galmot Pescatore

Mackenzie Stuart O'Keeffe Bosco Due Everling