Distance selling compliance, when it comes to excise duties for alcoholic beverages relies also on TJUE and CJUE decisions. Case-law and monopoly are key information to identify possible local burdens.

Case-law : Valev Visnapuu

This case 198/14 begins in 2008 with the sale of excisable goods from Estonia’s for lower prices to Finnish clients through home delivery of alcoholic beverages.

Supplier submitted no declaration of import to Finish customs and excise. This is obviously illegal for a variety of reasons such as excise duties, public health, environmental, retail licenses and deposit-return system for beverages.

Despite the low value of goods, the case is very interesting : it highlights some issues within EU law and doctrine, and even in the interpretation of the TFEU.

CJEU questioned :

Articles 34 TFEU and 110 TFEU

Directive 94/62/EC — Articles 1(1), 7 and 15

Distance selling and transport of alcoholic beverages from another member state

Excise duty on certain beverage packaging

Exemption where packaging is integrated into a deposit and return system

“Article 110 TFEU and Articles 1(1), 7 and 15 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste must be interpreted as not precluding legislation of a member state, such as that at issue in the main proceedings, which imposes an excise duty on certain beverage packaging, but lays down an exemption for packaging integrated into a functioning return system.”

This means the Packaging and Packaging Waste Directive is not exhausted enough, and needs to be assessed to EU primary law and sent to competent authority.

Meaning, the system of a return system is compatible with EU law, and excise duties on packaging may be imposed, and also could be exempt in the absence of clear indications for import goods.
Articles 34 TFEU, 36 TFEU, and 37 TFEU

Requirement of a licence for the retail sale of alcoholic beverages

Monopoly on the retail sale of alcoholic beverages

Justification: Protection of health

“Articles 34 TFEU and 36 TFEU must be interpreted as not precluding legislation of a member state, such as that at issue in the main proceedings, under which a seller established in another member state must hold a retail sale licence in order to import alcoholic beverages with a view to their retail sale to consumers residing in the first member state.”

Also,

“Where that seller, or someone acting on his behalf, transports those beverages, provided that that legislation is appropriate for securing the attainment of the objective pursued, in the present case the protection of health and public policy, that the objective in question could not be achieved with at least an equivalent level of effectiveness by less restrictive methods and that the legislation does not constitute a means of arbitrary discrimination or a disguised restriction on trade between the member states, which it is for the referring court to verify.”

The EU Court of Justice on 12 November 2015 said the prohibition on distance selling of alcoholic beverages from abroad as laid down in Finland’s current Alcohol Act is in agreement with the EU law under certain conditions.

Next, the Helsinki Court of Appeal heard the case in spring 2017 and, since the court’s judgement was appealed against, Finnish Supreme Court authorities amended the Alcohol Act so far:

“The existing Alcohol Act prohibits cross-border distance sales of alcoholic beverages in Finland, but the compatibility of its provisions with EU law is open to interpretation.”

The Judgment of the Court in Case C-198/14 Visnapuu and the judgement handed down by the Supreme Court of Finland on the same case KKO 2018:48 have now clarified that the prohibition of cross-border distance sales of alcoholic beverages under the Finnish Alcohol Act is compatible with EU law.

Existing provisions

The existing provisions would be clarified on the basis of the considerations presented in the aforementioned judgments. At the same time, it would be ensured that individuals may purchase and import all alcoholic beverages, subject to certain procedures.

Supreme Court of Finland: notification Published 24.8.2018  Updated 10.10.2018.

Case-law :  Klas Rosengren and others vs. Riksåklagaren

Case-law C-170/04.

Firstly, the Court (Grand Chamber) ruled:

  1.      A national provision, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol (alkohollagen) of 16 December 1994, under which private individuals are prohibited from importing alcoholic beverages must be assessed in the light of Article 28 EC and not in the light of Article 31 EC.
  2.      A measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol, under which private individuals are prohibited from importing alcoholic beverages amounts to a quantitative restriction on imports within the meaning of Article 28 EC, even though that law requires the holder of the retail sale monopoly, on request, to supply and therefore, if necessary, to import the beverages in question.
  3.      A measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol, under which private individuals are prohibited from importing alcoholic beverages,

–        as it is unsuitable for attaining the objective of limiting alcohol consumption generally, and

–        as it is not proportionate for attaining the objective of protecting young persons against the harmful effects of such consumption, cannot be regarded as being justified under Article 30 EC on grounds of protection of the health and life of humans.

Also, monopoly or restriction must be proportional to the causes they protect (public health), but without unfair restriction of free circulation of goods.

Case-law : Ahokainen and Leppik

Case-law-434/04:

Finally, Articles 28 EC and 30 EC do not preclude a system, such as that laid down by Law No 1143/1994 on alcohol (Alkoholilaki (1143/1994)). This Law makes the importation of undenatured ethyl alcohol of an alcoholic strength of more than 80% subject to obtaining prior authorisation.

In this case-law however, one exception : unless it appears that, in the circumstances of law and of fact which characterise the situation in the member state concerned, the protection of public health and public order against the harm caused by alcohol can be secured by measures having less effect on intra-community trade.

Also, monopoly or restriction must be proportional to the causes they protect (public health), but without unfair restriction of free circulation of goods.

 

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