When importing goods into the UK from a country which is not within the European Union a traveller is able to take advantage of what is commonly known as the ‘duty free allowance’ that is they are permitted to import certain quantities of dutiable goods without having to pay duty on those goods. The current thresholds were established in Section of EU Council Directive 2007/74/EC (20 December 2007). The UK applies the higher threshold(s) for tobacco products which are:
- 200 cigarettes
- 100 cigarillos
- 50 cigars
- 250 grams smoking tobacco
Where a person imports more than a threshold, or more than a total threshold through a combination of tobacco products, duty will become payable.
The rule applied to the transportation of tobacco products within the EU is different, with any inter-EU traveller being granted relief from all import duties so long as the goods in question (for the purposes of this article tobacco products) are for personal use. This relief was notably transcribed into UK law by The Excise Duties (Personal Reliefs) Order 1992 (at Article 4) following the inception of the single market. It continues to subsist today in the same form under the current regulations.
As the Director of Border Revenue has a duty to seek the condemnation of goods improperly imported i.e. which are, insofar as individual tobacco importations are concerned, goods not intended for personal use by the importee the Government issued guidance to assist border officers and the Courts when they try to establish whether an importation of tobacco might be for commercial purposes or not. Lower duty rates in other EU states has long been a driver of cross-channel trips by individuals to purchase significant quantities of tobacco (and other dutiable goods) at a cheaper price. This is permitted. The main issue is the abuse of that duty relief by smugglers who seek to profit from the duty differences between EU states by importing tobacco products for sale, or other commercial purposes.
As part of the guidance it issued to help border officers distinguish between private and commercial importations the government created a list of indicative guidelines as permitted under EU law. Those guidelines are currently:
- 200 cigars
- 400 cigarillos
- 800 cigarettes
- 1kg smoking tobacco
Though it should be noted they were subject to some change between 2002 and 2011. Often in forfeiture proceedings the questions arises as to the legal status of the guidelines, and importees contesting forfeiture will seek to raise concerns that the indicative guidelines are not legal thresholds akin to the duty free allowances from outside the EU. They are correct but it should be noted that the indicative guidelines are not meaningless. They flow from Article 32(3) of EU Council Directive 2008/118/EC (16 December 2008). Article 32 sets out considerations that should be applied when assessing whether an importation is for personal or commercial use and Article 32(3) states that ‘member states may lay down guide levels, solely as a form of evidence’. There is a floor below which the indicative guidelines may not be set and the UK currently adheres to those minimum levels. Article 32(3) therefore makes clear that the indicative levels are not simply a working guideline for border officers beyond which they should seek to raise further questions of importees (though they do function for that purpose), they are also of evidentiary value. This was accepted by the Commissioners of Customs and Excise in the February 2004 tribunal case of Geoffrey Richard Wade v The Commissioners of Customs and Excise [MAN/03/8136] when Mr Puzey for the Commissioners noted that holding ‘goods in excess of the minimum indicative level did not give rise to a persuasive presumption that the goods were held for a commercial purpose but was to be used solely as a form of evidence’.
It should also be noted that Regulation 13(4) of The Excise Goods (Holding, Movement and Duty Point) Regulations 2010 sets out the matters to which and officer or Court must have regard when determining when goods have been imported for personal or commercial use. Regulation 13(4)(h) re-states the indicative guidelines as a matter which must be considered.
It is clear, therefore, that a breach of the indicative guidelines does not mandate condemnation or create in and of itself a ground upon which it can be presumed that the goods were for commercial purposes. Border officers and the Courts will have to continue taking into account the further factors noted in the domestic regulations and EU Directives as well as the facts of each individual case. The indicative guidelines can be used as evidence however, and a breach of them constitutes a form of evidence which should be considered by both officers and the Courts. They should not be treated as a guideline which can be simply dismissed.