THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in particular Article 99 thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the European Parlament(2),

Having regard to the opinion of the Economic and Social Committee(3),

Whereas the establishment and functioning of the internal market require the free movement of goods, including those subject of excise duties;

Whereas provision should be made to define the territory on which this Directive, as well as the Directive on the rates and structures of duty on products subject to excise duties, are to be applied;

Whereas the concept of products subject to excise duty should be defined; whereas only goods which are treated as such in all the Member States may be the subject of Community provisions; whereas such products may be subject to other indirect taxes for specific purposes; whereas the maintenance or introduction of other indirect taxes must not give rise to border-crossing formalities;

Whereas, in order to ensure the establishment and functioning of the internal market, chargeability of excise duties should be identical in all the Member States;

Whereas any delivery, holding with a view to delivery or supply for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, taking place in a Member State other than that in which the product is released for consumption gives rise to chargeability of the excise duty in that other Member State;

Whereas in the case of products subject to excise duty acquired by private individuals for their own use and transported by them, the duty must be charged in the country where they were acquired;

Whereas to establish that products subject to excise duty are not held for private but for commercial purposes, Member States must take account of a number of criteria;

Whereas products subject to excise duty purchased by persons who are not approved warehousekeepers or registered or non-registered traders and dispatched or transported directly or indirectly by the vendor or on his behalf must be subject to excise duty in the Member State of destination;

Whereas in order to ensure that the tax debt is eventually collected it should be possible for checks to be carried out in production and storage facilities; whereas a system of warehouses, subject to authorization by the competent authorities, should make it possible to carry out such checks;

Whereas movement from the territory of one Member State to that of another may not give rise to checks liable to impede free movement within the Community; whereas for the purposes of chargeability it is nevertheless necessary to know of the movements of products subject to excise duty; whereas provision should therefore be made for an accompanying document for such products;

Whereas the requirements to be complied with by authorized warehousekeepers and traders without authorized warehousekeeper status should be laid down;

Whereas provision should be made, to ensure the collection of taxes at the rates laid down by Member States, for the establishment of a procedure for the movement of such goods unter duty suspension;

Whereas in that respect provision should first be made for each consignment to be easily identified; whereas provision should be made for the tax status of the consignment to be immediately identifiable; whereas it is therefore necessary to provide for an accompanying document capable of meeting these needs, which may be either an administrative or commercial document; whereas the commercial document used must contain the essential elements which appear on the administrative document;

Whereas the procedure by which the tax authorities of the Member States are informed by traders of deliveries dispatched or received by means of an accompanying document should be explained;

Whereas there is no need for the accompanying document to be used when the products subject to excise duties are moved under a Community customs procedure other than release for free circulation or are placed in a free zone or a free warehouse;

Whereas in the context of national provisions, excise duty should, in the event of an offence or irregularity, be collected in principle by the Member State on whose territory the offence or irregularity has been committed, or by the Member State where the offence or irregularity was ascertained, or, in the event of non-presentation in the Member State of destination, by the Member State of departure;

Whereas the Member States may provide that products released for consumption should carry fiscal or national identification marks and whereas the use of these marks should not place any obstacle in the way of intra-Community trade;

Whereas payment of the excise duties in the Member State where the products were released for consumption must give rise to the reimbursement of those duties when the products are not intended for consumption in that Member State;

Whereas, as a result of the abolition of the principle of taxes on imports in relations between Member States, the provisions on exemptions and allowances on imports cease to apply in respect of relations between Member States; whereas these provisions should therefore be abolished and the directives concerned adapted accordingly;

Whereas a Committee on Excise Duties should be set up to examine the Community measures necessary for the implementation of the provisions on excise duties;

Whereas Article 1 (2) of the Regulation concerning the elimination of controls and formalities applicable to the cabin and hold baggage of persons taking an intra-Community flight or making an intra-Community sea-crossing states that its enforcement is without prejudice to controls relating to bans or restrictions laid down by Member States, provided that they are compatible with the three Treaties establishing the European Community; whereas in that context the verifications necessary for the enforcement of the quantitative restrictions referred to in Article 26 must be considered to be such controls and, as such, to be compatible with Community legislation;

Whereas a certain period of time will be required to take the necessary measures to alleviate both the social repercussions in the sectors concerned and regional difficulties, particularly in border regions, which might arise as a result of the abolition of taxes on imports and exemptions on exports in trade between the Member States; whereas to that end the Member States should be authorized, for a period ending on 30 June 1999, to exempt products supplied, within the limits laid down, by tax-free shops in the context of passenger traffic by air or sea between the Member States:

Whereas small wine producers may be exempted from certain requirements under the general arrangements for excise duty;

Whereas, finally, Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and value addes tax(4) should be amended in order to extend its provisions to cover excise duties,

HAS ADOPTED THIS DIRECTIVE: