Masterson v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick H. Murphy |
| Judgment Date | 13 May 2002 |
| Neutral Citation | [2002] IEHC 30 |
| Docket Number | [2001 No. 735 |
| Court | High Court |
| Date | 13 May 2002 |
[2002] IEHC 30
THE HIGH COURT
Roderick H. Murphy
BETWEEN
AND
Citations:
HYDROCARBON (HEAVY) OIL REGS 1991 SI 269/1991 REG 12(A)
TREATY OF ROME ART 30
HYDROCARBON (HEAVY) OIL REGS 1991 SI 269/1991 REG 12(A) PARA B
EEC DIR 92/12 ART 21(4)
CUSTOMS CONSOLIDATION ACT 1876 S42
CUSTOMS ACT 1956 S2
HYDROCARBON (HEAVY) OIL REGS 1991 SI 269/1991 REG 12
CUSTOMS ACT 1956 S186
HYDROCARBON (HEAVY) OIL REGS 1991 SI 269/1991 ART 12
EEC DIR 92/12 ART 8
EEC DIR 92/12 ART 9
EEC DIR 92/12 ART 21(1)
EEC DIR 92/12 ART 21(2)
TREATY OF ROME ART 28
TREATY OF ROME ART 90
TREATY OF ROME ART 93
EEC DIR 92/12 ART 10
EEC DIR 92/12 ART 21(4)
PROCUREUR DU ROI V BENOIT & GUSTAVE DASSONVILLE 1974 ECR 837
CJ MEIJER BV V DEPT OF TRADE ECR 1979 1387
REGINA V HENN & DARBY 1979 ECR 3795
CUSTOMS CONSOLIDATION ACT 1876 S186
TREATY OF ROME ART 95
TREATY OF ROME ART 96
TREATY OF ROME ART 97
TREATY OF ROME ART 98
TREATY OF ROME ART 99
EEC DIR 92/12 ART 9(3)
FINANCE ACT 1992 S106
FINANCE ACT 1992 S104(F)
FINANCE ACT 1992 S104(G)
FINANCE ACT 1992 S104(H)
FINANCE ACT 1992 S106(1)
EEC DIR 92/12 ART 21
EUROPEAN UNION CONSOLIDATED TREATIES ART 28
IANNELLI & VOLPI SPA V MERONI 1977 ECR 557
GILLI V ANDRES 1980 ECR 2071
QUEEN V COMMISSIONERS OF CUSTOMS & EXCISE EX PARTE EMU TABAC SARL ECR 1998 1605
FINANCE ACT 1992 S106(4)
EEC DIR 92/12 ART 20
TREATY OF ROME ART 36
TREATY OF ROME ART 90
TREATY OF ROME ART 91
TREATY OF ROME ART 92
TREATY OF ROME ART 94
TREATY OF ROME ART 100
EEC DIR 92/12 REG 12(8)
TREATY OF ROME ART 13
REWE-ZENTRAL AG V BUNDESMONOPOLVERWALTUNG FUR BRANNTWEIN (CASSIS DE DIJON) ECR 1979 649
Synopsis:
CASE STATED
District Court
Revenue - Trade -Importation of kerosene - European law - Whether legislative provision constituted quantitative restriction - Whether provisions constituted obstacles to trade - Customs Consolidation Act, 1876 - Customs Act, 1956 - Hydrocarbon (Heavy) Oil Regulations, 1991 SI 269/1991 - Treaty of Rome Article 30 (2001/735SS - Murphy J - 13/5/2002)
Masterson v DPP - [2002] 3 IR 193
Facts: The applicant had been charged in the District Court with offences relating to the importation of kerosene containing coumarin. A case was stated on the matter to the High Court. It was argued on behalf of the applicant that the kerosene oil had been purchased in Northern Ireland for his own personal use. It was contended that the effect of the Hydrocarbon (Heavy) Oil Regulations, 1991 was to prohibit the importation of kerosene oil containing coumarin and was prima facie a quantitative restriction prohibited under Article 28 of the Treaty of Rome.
Held by Murphy J in answering the case stated in the following manner. The importation of kerosene containing coumarin a marker used by a Member State other than Ireland was prohibited, not for the purpose of trade but for the purpose of administration, supervision and control of taxation. The fact that the applicant was charged with importation did not offend against the wording of Article 30. The Hydrocarbon (Heavy) Oil Regulations, 1991 were unnecessary for the proper administration of excise duty. It was therefore an offence to import kerosene containing coumarin into the State from Northern Ireland.
Judgment of Mr. Justice Roderick H. Murphy dated 13th day of May, 2002.
The first issue which arise is whether the prohibition on importation contained in Regulation 12 (a) of the Hydrocarbon (Heavy) Oil Regulations, 1991 paragraph (a) contravenes Article 30 of the Treaty of Rome. Article 30 prohibits quantitative restrictions on imports and all measures having equivalent effect between member States. A second issue arises as to whether paragraph (b) contravenes Council Directive 92/12/EEC having regard in particular to Article 21 (4) of the said Directive.
By way of consultative case stated by Judge Gerard Haughton this Court is asked if either of the two issues is affirmative, whether it is an offence to import kerosene containing coumarin into the State from Northern Ireland and whether such are prohibited goods as defined for by Section 42 of the Customs Consolidation Act, 1876, as amended by Section 2 of the Customs Act, 1956.
On the 5th November, 1999 the Applicant imported 1000 litres of kerosene containing coumarin, the estimated value of which was £280.00. On the 14th August, 2000 two summonses issued alleging that the Applicant was knowingly concerned in dealing with those goods which were prohibited goods specified in Regulation 12 of the 1991 Regulations, the importation of which was prohibited by Section 42 of the Customs Consolidation Act, 1876 as amended as aforesaid with intent to evade such prohibition contrary to Section 186 of the Customs Consolidation Act as amended.
On the 11th October, 2000 at Belturbet District Court evidence was given by officers of Customs & Excise that when the Applicant was stopped at Clontygrigny, Ballyconnell in the County of Cavan on the 5th November, 1999 at approximately 3.40 pm, there was a tank in a closed trailer being towed by the Applicant's vehicle which contained approximately 1000 litres of kerosene oil which had been purchased at a filling station north of the border in Northern Ireland for a sum of £175.000. The kerosene oil was seized, a sample was taken, labelled, sealed and retained. The Applicant was offered a sealed sample but declined. The car-trailer, tank and contents were subsequently returned to the Applicant on payment of the sum of £250.00 on condition that the kerosene oil was re-exported out of the jurisdiction.
A certificate from the State Laboratory confirmed the analysis of the kerosene oil as containing coumarin was handed into the District Court.
The Applicant said he had purchased the kerosene oil in Northern Ireland for his own personal use. He understood that there had been free movement of trade between the two States. At an adjourned hearing in Monaghan District Court the charge related to dealing in certain prohibited goods was dismissed and the second charge in relation to importing certain goods is the subject of the case stated herein.
Hydrocarbon (Heavy) Oil Regulations, 1991 ( Statutory Instrument No. 269 of 1991) provides as follows:-
Article 12: "A refiner, warehousekeeper or other person shall not -
(a) import any kerosene containing coumarin or
(b) other than with the consent of the Commissioners and subject to such conditions as they may impose, add coumarin to or mix it with any kerosene.
Council Directive 92/12/E. E. C.
Article 8 provides:-
As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the member State in which they are acquired.
Article 9 provides:-
2 9.1 Without prejudice to Articles 6, 7, and 8 excise duty shall become chargeable where products released for consumption in a Member State are held for commercial purpose in another Member State.
In this case, the duty shall be due in the Member State in whose territory the products are and shall become chargeable to the holder of the products.
3 9.2 To establish that the products referred to in Article 8 are intended for commercial purposes, Member States must take account, inter alia of the following:-
• - the commercial status of the holder of the products and his reason for holding them,
• - the places where the products are located, or if appropriate, the mode of transport used,
• - any documents relating to the products,
• - the nature of the products,
• - the quantity of the products,
(lower guidelines are then given which are not material).
3. Member States may also decide that excise duty shall become chargeable in the Member State of consumption on the acquisition of Mineral Oils already released for consumption in another Member State if such products are transported using atypical modes of transport by private individuals or on their behalf. Atypical transport shall mean the transport of fuels other than in the tanks of vehicles or inappropriate reserved fuel canisters and the transport of liquid heating products other than by means of tankers used on behalf of professional traders.
Article 21.1 provides that Member States may require that products released for consumption in their territory shall carry tax markings or national identification marks used for fiscal purposes.
Article 21.2 continues:-
2. "Any Member State which requires the use of tax marking or national identification marks as set out in paragraph 1 shall be required to make them available to authorised warehousekeepers of other Member States. However, each Member State may require that fiscal marks be made available to a tax representative authorised by the Tax Authority of that Member State.
Without prejudice to any provisions they may lay down in order to ensure that this Article is implemented properly and to prevent such fraud, evasion or abuse, Member States should ensure that these marks or markings do not create obstacles in the free movement of products subject to excise duty.
...
4. Mineral Oils may be held, transported or used in Ireland, other than in the running tanks of vehicles permitted to use rebated fuel, only where they comply with that State's control and marking requirements."
(See 12 (a) of 1991 Regulations above at 4.)
Article 28 states simply as follows:-
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