Reference for a preliminary ruling from the Højesteret (Denmark)¸ lodged on 29 June 2012 – Metro Cash & Carry Danmark ApS v Skatteministeriet
Language of the case: Danish
Referring court Højesteret
Parties to the main proceedings
Appellant: Metro Cash & Carry Danmark ApS
Respondent: Skatteministeriet Questions referred
(1) Are Directive 92/12 2 and Regulation No 3649/92 to be interpreted as meaning that a trader in a Member State who¸ in circumstances such as those arising in the main proceedings¸ sells goods subject to excise duty which have been released for consumption in that Member State and which are supplied at the vendor’s place of business to a purchaser who is resident in another Member State¸ without the vendor assisting in the provision or arrangement of transport¸ must carry out
(i) a check to determine whether the purchase of the goods which are subject to duty is made with a view to their importation into that second Member State and
(ii) a check to determine whether the goods are to be imported for private or commercial use?
(2) If Question 1 is answered in the affirmative¸ must the trader¸ at the time of the sale of goods subject to excise duty in circumstances such as those arising in the main proceedings¸ when carrying out the checks referred to¸ apply rules of presumption as to the purchaser’s intention with regard to the goods purchased?
(3) If Question 1 is answered in the affirmative¸ are Directive 92/12 and Regulation No 3649/92 to be interpreted as meaning that a vendor¸ as referred to in Question 1¸ in circumstances such as those arising in the main proceedings¸ must refuse to accede to a purchaser’s wish to purchase goods subject to excise duty if the purchaser does not offer to present copy 1 of the simplified accompanying document referred to in Article 4 of Regulation No 3649/92¸ if the intention in making the purchase is to use the dutiable goods for commercial purposes in the purchaser’s home country? An answer to this question is also requested in the event that rules of presumption¸ as referred to in Question 2¸ are to be applied.
(4) Do the entry into force of Directive 2008/118 and the repeal of Directive 92/12 give rise to a change in the legal position as regards the implications of Directive 92/12 in relation to the answers to Questions 1 to 3?
(5) Is the phrase ’products acquired by private individuals for their own use’ in Article 8 of Directive 92/12 (see Article 32(1) of Directive 2008/118) to be interpreted as meaning that it covers¸ or can cover¸ purchases of goods subject to excise duty in circumstances such as those arising in the main proceedings? If the answer to that question is in the negative¸ must the purchases then come under Article 7 of Directive 92/12 and/or Article 33 of Directive 2008/118?