C-208/88

1. The Commission has brought before the Court , for broadly similar reasons, two actions against Denmark and Ireland respectively for failure to fulfil their obli­ gations by adopting certain measures with 2. According to Article 2(1) of Directive regard to imports into their territory of beer 69/169, exemption from tax and excise duty purchased by travellers in another Member on imports is to apply to goods contained in State. More specifically, in connection with the personal luggage of travellers from the application of Council Directive Member States of the Community, provided 69 / 169 / EEC of 28 May 1969, ' Ireland that they have been acquired subject to the adopted an administrative measure general rules governing taxation on the restricting the travellers' allowance for beer domestic market of one of the Member imported across the land frontier to a States, that such imports have no maximum of 12 litres per person, imports in commercial character and that the total excess of that quantity being subject to tax, value of the goods does not exceed a whilst Denmark decided by an Order of 9 specified amount per person. That amount, 2 June 1986 of the Ministry of Finance that now standing at ECU 390, was fixed, as I 3 travellers could import duty free only 10 said earlier, at ECU 350 when the litres of beer per person and that quantities contested measures were adopted. I shall in excess of that limit would be taxable. The therefore refer to the latter figure in my Commission has formulated the general Opinion. allegation that those measures, which are very similar in scope, disregard the provisions of Directive 69/169 since that directive provides in principle for a duty-free allowance for goods contained in the personal luggage of travellers from Member States whose value was not to exceed, at the time when Ireland and 3. Under the system established by Denmark decided to act, a limit of Directive 69 / 169 , two types of derogation ECU 350, and beer is not one of the goods from the principle of a duty-free allowance for which specific quantitative limits are laid not exceeding ECU 350 are relevant to these cases.

4. The first type of exemption forms the or of goods intended as presents; the subject-matter of Article 4 of the directive. nature or quantity of such goods must That article lays down quantitative limits for not be such as might indicate that they specific products which are expressly listed, are being imported for commercial namely tobacco products, certain alcoholic reasons'. beverages, perfumes, coffee and tea. With regard, more particularly, to alcoholic beverages those limits apply, since the adoption of Council Directive 72 / 230 / EEC of 12 June 1972, * to distilled beverages and 6. With regard to the exemptions referred spirits, aperitifs with a wine or alcohol base, to in Article 4 of Directive 69/169, that is to sparkling wines, fortified wines and still 5 say the specific quantitative limits, it is clear wines. Article 1(2) of Directive 85 / 348 that beer is not mentioned amongst the supplemented that list by laying down quan­ alcoholic beverages listed. That directive titative limits for tafia, saké or similar therefore imposes no quantitative limit in beverages. It follows from the specific limits respect of beer. It is indisputable, in that thus laid down that, in travel between regard, that the contested Irish and Danish Member States, the aforesaid beverages may measures have the effect, as it were, of be imported duty free up to a limit of 1.5 or supplementing the directive by fixing a three litres, whichever is applicable, whilst quantitative limit for beer. the limit in the case of still wines is five litres.

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OPINION OF MR DARMON — CASE C-208/88

approach would in fact tend purely and 30 December 1982 extended until 31 simply to undermine the directive. The December 1983 the limit of two litres for system established by the directives in beer when the stay abroad was less than 48 general, and by Directive 69/169 in hours, raising it to four litres until 31 particular, excludes any unilateral power of December 1984 and to six litres until 31 amendment by the Member States, even December 1985, no limit being set for beer 10 reasoning by analogy of the kind referred to after that date. by Denmark and Ireland as regards the alleged equivalence in alcoholic volume between 10 or 12 litres of beer and the alcoholic beverages covered by the aforesaid 9. Admittedly, Denmark was able for a time quantitative limits laid down in Article 4. It to benefit from a quantitative limit for beer would render the very concept of a specific although it was not laid down by a quantitative limit utterly meaningless if the directive. However, that derogation was the Member States were entitled to apply a limit result not of a unilateral measure adopted to products other than those expressly by Denmark, but of an express provision of referred to by the directive on the ground the Act of Accession. Article 133 of the Act that there was an analogy between them of of Accession and Annex VII thereto one kind or another. empowered that new Member State to refuse exemption for beer until 31 December 1975 in so far as the quantity was in excess of two litres.

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COMMISSION v DENMARK

country. It therefore seemed all the more to justify the quantitative limits laid down necessary to take steps since, in certain by them in the contested measures. cases, it had been possible to establish that Denmark stated that the Court's judgment the imported beer had been resold. of 12 July 1983 in Commission v United 11 Accordingly, Denmark and Ireland Kingdom on the United Kingdom's tax considered that the fixing of a quantitative arrangements for wine could, in view of the limit of 10 or 12 litres of beer constituted a method of comparison applied as between legitimate method of ensuring compliance wine and beer, provide a basis for the with Article 2(1) of Directive 69/169, argument concerning equivalence in inasmuch as it provides that the exemptions alcoholic strength in the sphere of duty-free are to apply if the imports have no allowances. commercial character, and with Article 3(2) which specifies what is meant by the phrase 'having no commercial character'.

13. The quantity chosen by Ireland, namely directive. 12 litres, constitutes the maximum quantity which a traveller is able to carry in the right conditions, namely a carton of 24 500 ml cans of beer weighing 12.6 kilos in all. In the case of Denmark, the limit of 10 litres, corresponding to a crate containing 30 33 cl 15. The various arguments put forward by bottles of beer, normally constitutes the the two defendants prompt the observation largest quantity purchased by a Danish that they have given an answer which is family on a single occasion. Furthermore, insufficient for legal purposes to meet the two defendant States refer to a certain, ultimately legitimate, concerns.

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OPINION OF MR DARMON — CASE C-208/88

That is not the case where the fixing by a Member State of a quantitative 16. As the Court demonstrated in its limit of 10 or 12 litres for beer excludes the n judgment of 14 February 1984 in Rewe II, exemption altogether in respect of any compliance with Directive 69/169 means importation of larger quantities, regardless that the authorities of the Member States of their true character. Where that limit is are not to extend the benefit of the imposed by legislative means, it raises an exemption to operations which do not fulfil irrebuttable presumption that the the pre-conditions for it. Accordingly, it importation has a commercial character. seems to me that those authorities not only can but must ensure that the exemption is not granted in respect of imports of beer which have a commercial character.

17. In my view, it is contrary to the and practical difficulty of which was rightly directive to exclude a priori, by laying down emphasized by the defendant States? In fact, a quantitative limit, exemption from duty in it seems that the customs authorities of the respect of any importation in excess of that Member States are quite capable of orga limit, thereby dispensing with the obligation nizing some degree of appropriate verifi to verify whether it has a commercial cation. As the Commission acknowledged at

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COMMISSION v DENMARK

a commercial character, without barring a have a commercial character, laid down by traveller altogether from furnishing proof to Article 2(1) of Directive 69/169, or the contrary. The issue here is the difference concerning the abuse of the right to which exists between laying down a duty-free allowances, cannot justify the mandatory rule, which precludes imposition by legislative means of a quanti­ consideration of specific situations, and tative limit for beer of 10 or 12 litres which laying down, for instance by means of restricts the scope of the allowances internal administrative regulations, a quanti­ provided for by the directive. The directive tative criterion which permits a presumption leaves to the Member States the possibility to be raised without, however, preventing it of ensuring its application within a from being rebutted. The implementation of reasonable framework without laying the the latter procedure would not seem to be in authorities concerned open to any opera­ any way incompatible with Article 7a of the tional difficulties, and Denmark and Ireland 3 directive 1 in so far as the possibility for were under no obligation whatever, in order travellers 'to confirm tacitly or by a simple to achieve that result, to add by means of oral declaration that they are complying internal rules further quantitative limits to with the authorized limits and conditions those laid down by the directive. for the duty-free entitlements' 14 may be deemed to be set aside once the limit is reached which in practice raises a simple presumption that an importation has a commercial character. Moreover, the Commission's Agent has informed the Court 20. Finally, let me state in response to an that, provided the quantitative limit viewed argument put forward by Ireland and in those terms corresponds to a level that is Denmark that the fact that the Commission reasonable and is not excessively low, the did not propose any exemption for beer to national authorities may be exacting as the Council, although it did so for tafia and regards the proof they require to be saké, did not in any way authorize a adduced in order to rebut the presumption Member State to take the place of the of a commercial character. Community institutions.

temporary, with the approaching realization way of a protective measure when the of the large internal market it must be borne conditions laid down in Articles 108 and in mind, as the Court stated, moreover, in 109 of the Treaty are satisfied. The its aforesaid judgment of 12 June 1990, that Community institutions, which are duly where, on account of the economic situation mindful of the aim of harmonization, must in a Member State, it becomes necessary to not, however, exclude recourse to similar adopt provisions restricting the scope of derogations where very serious problems are Directive 69/169, such provisions may be encountered by a Member State. But a adopted only in pursuance of a directive Member State may not, under the system derogating from Directive 69/169, as was established by the European Economic done in the case of imports of beer into Community, unilaterally derogate from Denmark until 31 December 1984, or by Directive 69/169.

22. In the light of those observations, therefore, I suggest that in Cases C-208/88 and C-367/88 the Court should:

(i) declare that Denmark and Ireland have failed to fulfil the obligations referred to by the Commission;

(ii) order those Member States to pay the costs.

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