Defining the scope of duties

An early Appeal Court date and a House of Lords sequel look likely in a bid to achieve a definitive ruling on the interpretation and application of Common Market personal import provisions.

The case focus is a recent High Court judgment regarding the Customs and Excise stance over interpretation of personal import concessions which allow Common Market citizens to buy goods in one country at one duty charge then return to their home country without having to pay any excess.

The Customs and Excise argues that for Common Market citizens to take advantage of these provisions they must go to the country in question and purchase the goods in person.

And with the help of a top legal team it has challenged a scheme organised by Emu Tabac SARL of Luxembourg, The Man In Black, of Sussex House, Horsham, West Sussex, and Man in Black director John Cunningham, of Lewisham Way, London SE14, were behind the scheme. Orders for

tobacco products from UK customers were secured by The Man In Black which went to Luxembourg and purchased the products from Emu at prices lower than they would cost in the UK. The goods were then packaged by the company and dispatched to the UK.

It is argued that under EC law UK duty was not payable because the purchases were effectively being made by UK nationals and the fact they had not actually gone abroad to make the purchase did not prevent them benefiting from Luxembourg's lower duty rates.

Neil Hart, a partner in Horsham-based Thomas Eggar Verrall Bowles, the firm which masterminded the schemes and which represents the companies behind it, calls the case a 'David and Goliath battle'.

On one side are the big battalions of the Customs and Excise, with Imperial Tobacco Company as an intervener with virtually limitless resources. On the other side are the companies Hart represents which, although they have solid financial backing, are not of the same stature as their opponents.

However, the scheme was one which had always been viewed as a target for legal challenge, says Hart. The fact such a challenge was anticipated from the start was a help – much of the case's ground work had been done by Hart and Robert Venables QC, who represented the companies in the High Court, when they first drew up the scheme.

Hart stresses there is no question of any attempt to hide the scheme from Customs and Excise. It was told of the plans and invited to meetings to discuss them from the outset.

In the end it was the companies themselves, rather than the Customs and Excise, which were forced to take the court initiative as a result of the seizure of tobacco products they were bringing into the UK. They sought judicial review of the Customs and Excise stance.

Hart makes it clear that importing cheap tobacco products is just the tip of the iceberg. If the scheme is sanctioned, as he believes it must be, then it could pave the way for a wide range of other items such as alcohol, perfume and jewellery to be brought in under the same provisions. And it would not stop with goods being brought into the UK from Europe. It would also pave the way for similar systems to be set up

between other Common Market countries.

Hart says the logistics of the case were fairly straightforward with the advantage that there were no facts at issue. It was purely a question of interpreting the law.

One problem that did arise, however, was the linguistic interpretation of provisions not initially written in English. In addition, it was also necessary to look at the thinking of the lawyers who had drafted the European regulations in the first place.

"It was a rather strange thing to be dealing with the law in a different language in this way," says Hart.

Appeal Court moves are now under way and it is hoped the hearing will be expedited and heard in the near future.