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Language of document : ECLI:EU:C:1997:532

JUDGMENT OF THE COURT

11 November 1997 (1)

[234s(Transitional arrangements for tax-free shops Council Directives 91/680/EECand 92/12/EEC Assessment of validity)[s

In Case C-408/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunalde Commerce, Paris, for a preliminary ruling in the proceedings pending beforethat court between

Eurotunnel SA and Others

and

SeaFrance, formerly Société Nouvelle d'Armement Transmanche SA (SNAT),
interveners:
International Duty Free Confederation (IDFC),
Airport Operators Association Ltd (AOA),
Bretagne Angleterre Irlande SA (BAI), trading as Brittany Ferries,
Passenger Shipping Association Ltd (PSA),

on the validity of the transitional arrangements for tax-free shops under Article 28kof the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonizationof the laws of the Member States relating to turnover taxes Common system ofvalue added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as inserted byArticle 1(22) of Council Directive 91/680/EEC of 16 December 1991 supplementingthe common system of value added tax and amending Directive 77/388/EEC witha view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1), and under Article28 of Council Directive 92/12/EEC of 25 February 1992 on the generalarrangements for products subject to excise duty and on the holding, movement andmonitoring of such products (OJ 1992 L 76, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm(Rapporteur), M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinhode Almeida, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet,G. Hirsch, P. Jann and L. Sevón, Judges,

Advocate General: G. Tesauro,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

Eurotunnel SA and Others, by Jean-Michel Darrois and Philippe Villey, ofthe Paris Bar,
SeaFrance, by Xavier de Roux, Philippe Derouin and Olivier d'Ormesson,of the Paris Bar,
International Duty Free Confederation (IDFC), by Philippe Ruttley,Solicitor,
Airport Operators Association Ltd (AOA), by Pascale Poupelin, of the ParisBar, and David Marks, Solicitor,
Bretagne Angleterre Irlande SA (BAI), by Jean-Michel Payre, of the ParisBar,
Passenger Shipping Association Ltd (PSA), by John Pheasant, Solicitor, andGuy Danet, of the Paris Bar,
the French Government, by Catherine de Salins, Head of Subdirectorate inthe Legal Directorate of the Ministry of Foreign Affairs, and GautierMignot, Foreign Affairs Secretary in that directorate, acting as Agents,
the Spanish Government, by Rosario Silva de Lapuerta, Abogado delEstado, of the State Legal Service responsible for representing the SpanishGovernment before the Court of Justice, acting as Agent,
the European Parliament, by Johann Schoo, Head of Division in its LegalService, and José Luis Rufas Quintana, of its Legal Service, acting asAgents,
the Council of the European Union, by Jean-Paul Jacqué, Director of itsLegal Service, and John Carbery, Legal Adviser, acting as Agents,
the Commission of the European Communities, by Hélène Michard andEnrico Traversa, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Eurotunnel SA and Others, represented byPhilippe Villey and by Petrus Mathijsen, of the Brussels Bar; SeaFrance,represented by Xavier de Roux and Philippe Derouin; Passenger ShippingAssociation Ltd (PSA), represented by Guy Danet; International Duty FreeConfederation (IDFC), represented by John Colahan and Peter Duffy, Solicitors;Airport Operators Association Ltd (AOA), represented by Pascale Poupelin andDavid Marks; Bretagne Angleterre Irlande SA (BAI), represented by Jean-MichelPayre; the French Government, represented by Gautier Mignot; the GreekGovernment, represented by Vasileios Kontolaimos, Assistant Legal Adviser in theState Legal Service, and Dimitra Tsagkaraki, Adviser to the Deputy Minister forForeign Affairs, acting as Agents; the Spanish Government, represented by RosarioSilva de Lapuerta; the Parliament, represented by Johann Schoo and José LuisRufas Quintana; the Council, represented by Jean-Paul Jacqué and John Carbery;and the Commission, represented by Hélène Michard and Enrico Traversa, at thehearing on 14 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 27 May 1997,

gives the following

Judgment

By judgment of 27 November 1995, received at the Court on 29 December 1995,the Tribunal de Commerce (Commercial Court), Paris, referred to the Court fora preliminary ruling under Article 177 of the EC Treaty three questions on thevalidity of the transitional arrangements for tax-free shops under Article 28k of theSixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of thelaws of the Member States relating to turnover taxes Common system of valueadded tax: uniform basis of assessment (OJ 1977 L 145, p. 1, hereinafter 'the SixthDirective), as inserted by Article 1(22) of Council Directive 91/680/EEC of 16December 1991 supplementing the common system of value added tax andamending Directive 77/388/EEC with a view to the abolition of fiscal frontiers (OJ1991 L 376, p. 1), and under Article 28 of Council Directive 92/12/EEC of 25February 1992 on the general arrangements for products subject to excise duty andon the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).
Those questions were raised in proceedings brought by the French companiesEurotunnel SA and France Manche SA and the English companies Eurotunnel plcand The Channel Tunnel Group Ltd, the joint operators of the Channel Tunnelrailway link (hereinafter 'Eurotunnel), against SeaFrance, a cross-Channelmaritime transport company.
The object of Directive 91/680 is to ensure that the conditions necessary for theelimination of fiscal frontiers within the Community as regards supplies of goodsand services are implemented as from 1 January 1993.
Directive 91/680 was amended by Council Directive 94/4/EC of 14 February 1994amending Directives 69/169/EEC and 77/388/EEC and increasing the level ofallowances for travellers from third countries and the limits on tax-free purchasesin intra-Community travel (OJ 1994 L 60, p. 14). Directive 94/4 increased theallowance for intra-Community travellers from ECU 23 to ECU 90, while theallowance for travellers from third countries was raised to ECU 175.
According to the 13th recital in the preamble to Directive 91/680,

'advantage must be taken of the transitional period of taxation of intra-Communitytrade to take measures necessary to deal with both the social repercussions in thesectors affected and the regional difficulties, in frontier regions in particular, thatmight follow the abolition of the imposition of tax on imports and of the remissionof tax on exports in trade between Member States; ... Member States shouldtherefore be authorized, for a period ending on 30 June 1999, to exempt suppliesof goods carried out within specified limits by duty-free shops in the context of airand sea travel between Member States.
Article 28k of that directive provides:

'The following provisions shall apply until 30 June 1999:

1.    Member States may exempt supplies by tax-free shops of goods to becarried away in the personal luggage of travellers taking intra-Community flightsor sea crossings to other Member States. For the purposes of this Article:

(a)    tax-free shop" shall mean any establishment situated within an airport orport which fulfils the conditions laid down by the competent publicauthorities pursuant, in particular, to paragraph 5;

(b)    traveller to another Member State" shall mean any passenger holding atransport document for air or sea travel stating that the immediatedestination is an airport or port situated in another Member State;

(c)    intra-Community flight or sea crossing" shall mean any transport, by air orsea, starting within the territory of the country as defined in Article 3, wherethe actual place of arrival is situated within another Member State.

Supplies of goods effected by tax-free shops shall include supplies of goods effectedon board aircraft or vessels during intra-Community passenger transport.

This exemption shall also apply to supplies of goods effected by tax-free shops ineither of two Channel Tunnel terminals, for passengers holding valid tickets for thejourney between those two terminals.

...
The object of Directive 92/12 is to ensure that the conditions applicable to themovement of goods subject to excise duty within the internal market without fiscalfrontiers are implemented as from 1 January 1993.
The 23rd recital in the preamble to Directive 92/12 is drafted in terms virtuallyidentical to those of the 13th recital in the preamble to Directive 91/680. The sameis true of the drafting of Article 28 of Directive 92/12 and Article 1(22) of Directive91/680 inserting the new Article 28k in the Sixth Directive (hereinafter 'Articles 28and 28k).
By Law No 92-677 of 17 July 1992 implementing Directives 91/680 and 92/12(Journal Officiel de la République Française (JORF) of 19 July 1992, p. 9700), theFrench Republic made use of the possibility of granting exemptions provided forin Articles 28 and 28k, reproducing those provisions word for word. Until 30 June1999 it exempts supplies by tax-free shops situated within an airport, port orChannel Tunnel terminal from value added tax (Article 17 II of Law No 92-677)and excise duty (Article 59 of Law No 92-677), within the limits laid down byArticles 28 and 28k. Decree No 93-1139 of 30 September 1993 (JORF of 3 October1993, p. 13769) was adopted pursuant to Articles 17 and 59 of Law No 92-677.
It appears from the national court's judgment that Eurotunnel's case is that, since22 December 1994, SeaFrance has been guilty of unfair competition by sellinggoods free of tax and excise duty on board its vessels, thus enabling it to offsettransport charges at below cost prices. Since it considered that such a practiceproceeded from the authorization in both Article 28k of the Sixth Directive, asinserted by Article 1(22) of Directive 91/680, and Article 28 of Directive 92/12,Eurotunnel challenged the validity of those provisions before the Tribunal deCommerce, which considered it appropriate to make a reference to the Court.
Before putting its questions the national court first granted leave to theInternational Duty Free Confederation (hereinafter 'IDFC), the AirportOperators Association ('AOA), Bretagne Angleterre Irlande SA ('BAI) and thePassenger Shipping Association Ltd ('PSA) to intervene in support of the formof order sought by SeaFrance.
The national court then noted that the sale at a loss of services, as opposed togoods, was not prohibited in France. It therefore considered that in its actionalleging unfair competition, it was open to Eurotunnel only to contest the validityof the Council directives on which SeaFrance relied in offering goods for sale tax-free.
The court observed, finally, that Eurotunnel had also made an application to theHigh Court of Justice on 30 June 1994 for leave to apply for judicial review of thelawfulness of the measures by which the United Kingdom had transposed Articles28 and 28k.
It appears from the documents in the main proceedings that, by judgment of 17February 1995, the High Court dismissed Eurotunnel's application principally onthe grounds, first, that Eurotunnel had not made its application for leave promptlyand, second, that if leave were granted substantial hardship would be caused notonly to the objectors but also to many other persons in the United Kingdom andthroughout the Community. Eurotunnel did not appeal against that decision of theHigh Court. However, the High Court allowed Eurotunnel to make a freshapplication concerning the sale of tax-free goods during short trips known as'booze cruises, which in Eurotunnel's view did not constitute genuine intra-Community journeys. Eurotunnel did not take up that possibility.
In those circumstances the Tribunal de Commerce, Paris, stayed proceedings andreferred the following questions to the Court for a preliminary ruling:

'1.    Given the fact that Eurotunnel has not brought an action pursuant toArticle 173 for the annulment of those parts of Council Directives 91/680and 92/12 relating to taxation (value added tax and excise duty) on cross-Channel links and that an application brought by Eurotunnel in the HighCourt of Justice was dismissed by decision of 17 February 1995, will anapplication for their annulment brought by Eurotunnel lie pursuant toArticle 177 of the Treaty?

2.    If so, did the Council adopt those directives lawfully?

    In the alternative, does Directive 94/4 cover a possible annulment of thosetwo directives?

3.    In the event of annulment, must the fact that SNAT (Société Nouvelled'Armement Transmanche) SA applied the fiscal laws adopted pursuant tothose directives be imputed to it as a fault? If so, as from what date wasthe fault committed?
By those three questions the Tribunal de Commerce seeks to know, essentially,whether Eurotunnel may challenge the validity of Articles 28 and 28k in the contextof a preliminary ruling procedure, even though it has not brought an action forannulment pursuant to Article 173 of the EC Treaty against those provisions. If so,it asks whether those provisions were lawfully adopted by the Council. Finally, ifthey are invalid, the Court is asked to state the consequences of a declaration ofinvalidity of Articles 28 and 28k with respect to SeaFrance.

Admissibility of the questions
The first point to be addressed is the argument of SeaFrance and the intervenersin the main proceedings that the questions are inadmissible and that the Courtshould therefore not answer them. They claim that the proceedings in the nationalcourt are artificial and that the questions referred are of no relevance to thedecision in those proceedings.
They contend, as does the French Government, that SeaFrance cannot incurliability, even in the event of a declaration that the Community directives areinvalid, since it merely complied with national laws and regulations adoptedpursuant to those directives. Only the Council, as author of Articles 28 and 28k,could on any view incur liability. In the absence of any fault on the part ofSeaFrance, the action alleging unfair competition pending in the national court isdevoid of purpose and the questions referred are therefore immaterial. SeaFranceand the interveners submit, finally, that in any event the real subject-matter ofEurotunnel's action relates to the validity of Articles 28 and 28k, not to any awardof damages against SeaFrance.
It is to be remembered that when a question on the validity of a measure adoptedby the Community institutions is raised before a national court, it is for that courtto decide whether a decision on the matter is necessary to enable it to givejudgment and consequently whether it should request the Court to rule on thatquestion. Accordingly, where the national court's questions relate to the validity ofa provision of Community law, the Court is obliged in principle to give a ruling.
However, the Court has observed that, in order to determine whether it hasjurisdiction, it is necessary to examine the circumstances in which the case has beenreferred to it by the national court. The spirit of cooperation which must prevailin preliminary ruling proceedings requires the national court for its part to haveregard to the function entrusted to the Court of Justice, which is to contribute tothe administration of justice in the Member States and not to give opinions ongeneral or hypothetical questions (see, in particular, Case C-412/93 Leclerc-Siplecv TF1 Publicité and M6 Publicité [1995] ECR I-179, paragraph 12).
It is with that function in mind that the Court has taken the view that it is unableto rule on a question referred by a national court where it is manifest that theinterpretation or the assessment of the validity of Community law sought by thatcourt bears no relation to the true nature of the main action or its purpose, orwhere the problem is hypothetical and the Court does not have before it the factualor legal material necessary to give a useful answer to the questions submitted to it(see, in particular, Case C-415/93 Union Royale Belge des Sociétés de FootballAssociation and Others v Bosman and Others [1995] ECR I-4921, paragraph 61, andC-105/94 Celestini v Saar-Sektkellerei Faber [1997] ECR I-2971, paragraph 22).
With respect to the true nature of the main proceedings, it is to be observed thatEurotunnel is asking the national court to find that SeaFrance is guilty of unfaircompetition by exercising its right under national rules to sell goods tax-free on itscross-Channel services even though those national rules are based on Communitydirectives which, in Eurotunnel's view, are unlawful. SeaFrance, on the otherhand, contests all Eurotunnel's arguments before the national court. It is thusapparent that there is in fact a genuine dispute between the parties to the mainproceedings.
With respect to the argument that the questions referred are of no relevance to thedecision to be given in the main proceedings, it is indeed the case that the nationalcourt has not provided enough information to enable the Court to see clearly whateffect any declaration that Articles 28 and 28k were unlawful might have on theoutcome of the action alleging unfair competition, in particular on Eurotunnel'sclaim for damages against SeaFrance.
However, it is sufficient for present purposes that if the directives were unlawfulthe national court could, at the very least, order SeaFrance to refrain in futurefrom effecting tax-free sales, as Eurotunnel requests.
It follows from all the foregoing that the Court must answer the questions.

Question 1
By its first question the national court essentially asks whether a natural or legalperson, such as Eurotunnel, may challenge before a national court the validity ofprovisions in directives, such as Articles 28 and 28k, even though that person hasnot brought an action for annulment of those provisions pursuant to Article 173 ofthe Treaty and even though a court of another Member State has already givenjudgment in separate proceedings.
With respect to the first part of the question, the national court is uncertainwhether, in the light of Case C-188/92 TWD Textilwerke Deggendorf v Germany[1994] ECR I-833, Eurotunnel may, by the plea of illegality, challenge before thatcourt the validity of Articles 28 and 28k, when it did not bring an action forannulment of those provisions within the time-limit provided for in Article 173 ofthe Treaty.
It should be noted that the judgment in TWD Textilwerke Deggendorf concerned acompany which, unquestionably, was entitled and had been informed that it wasentitled to bring an action for annulment of the Community act whose validity itwas challenging by a plea of illegality before a national court.
On this point, in the case of Community directives whose contested provisions areaddressed in general terms to Member States and not to natural or legal persons,it is not obvious that an action by Eurotunnel challenging Articles 28 and 28k underArticle 173 of the Treaty would have been admissible (see, with respect to aregulation, Case C-241/95 R v Intervention Board for Agricultural Produce, ex parteAccrington Beef and Others [1996] I-6699, paragraph 15).
In any event, Eurotunnel cannot be directly concerned by Articles 28 and 28k. Theexemption arrangements introduced by those provisions constitute no more thanan option open to Member States. It follows that Articles 28 and 28k are notdirectly applicable to the operators concerned, namely passenger transporters andtravellers.
With respect to the second part of the question, suffice it to state that it is not forthis Court, in the procedure provided for in Article 177 of the Treaty, to assess theneed for a preliminary ruling by reference to the judgment, on a similar question,given in separate proceedings by a court of another Member State.
The answer to Question 1 must therefore be that a natural or legal person maychallenge before a national court the validity of provisions in directives, such asArticles 28 and 28k, even though that person has not brought an action forannulment of those provisions pursuant to Article 173 of the Treaty and eventhough a court of another Member State has already given judgment in separateproceedings.

Question 2
Eurotunnel submits that the national court's second question relates not only towhether the Parliament was properly consulted but also to whether all the othergrounds of invalidity put forward in the originating application are such as to affectthe validity of Articles 28 and 28k. Those other pleas relate to failure to statereasons, breach of Articles 7a, 92, 93 and 99 of the EC Treaty, misuse of power bythe Council and breach of the principles of protection of legitimate expectations,legal certainty, proportionality and equal treatment.
In this respect, the reasoning of the judgment making the reference and thewording of the second question make it clear that the only grounds of invalidityraised by the national court relate to the possibility that the procedure wherebyArticles 28 and 28k were adopted may have been irregular by reason of the allegedlack of a proposal from the Commission and failure to consult the Parliamentagain. That is further confirmed by the alternative question put by the nationalcourt as to how the lawfulness of Articles 28 and 28k may be affected by the factthat the rights of the Parliament were duly respected in the adoption of Directive94/4.

The lack of a proposal from the Commission
Eurotunnel and the Parliament submit that Articles 28 and 28k were not thesubject of a proposal of the Commission, contrary to Article 99 of the EEC Treaty.
The Council argues that the amendments it made to the proposals for Directives91/680 and 92/12 remained within the scope of those directives as defined in theoriginal proposals from the Commission.
As to that point, by virtue of its power to amend under, at that time, Article 149(1)of the EEC Treaty (now Article 189a(1) of the EC Treaty), the Council couldamend the proposal from the Commission provided it acted unanimously, thatrequirement being imposed in any case by the legal basis of those two directives,namely Article 99 of the Treaty.
Moreover, the maintenance for a limited period of the system of exemption fromvalue added tax and excise duty of supplies of goods by tax-free shops,notwithstanding the Commission's opposition to that maintenance in the context ofintra-Community travel, falls fully within the scope of Directives 91/680 and 92/12,which are intended to ensure that the conditions necessary for the movement ofgoods and services subject to value added tax or excise duty within an internalmarket without fiscal frontiers are implemented as from 1 January 1993.
Consequently, to the extent that the Council's amendments to the proposals forDirectives 91/680 and 92/12 remained within the scope of those directives asdefined in the original proposals from the Commission, the Council did not exceedits power to make amendments under Article 149 of the Treaty.

The requirement for the Parliament to be consulted again
Eurotunnel and the Parliament submit that Articles 28 and 28k as adopted makesubstantial changes to the Commission's proposals which do not correspond to whatthe Parliament wished.
With respect to Article 28k of the Sixth Directive, the Parliament submits that theamendments introduced by the Council involve substantial changes, bothquantitatively and qualitatively, compared to the texts submitted to it forconsultation. Furthermore, it claims that it never proposed such derogatingarrangements.
With respect to Article 28 of Directive 92/12, the Parliament submits that theversion finally adopted by the Council diverges from the sense of its amendmentsNos 25 and 38, in that, first, the date is different (the amendment provided for adate of 31 December 1995, the directive 30 June 1999) and, second, theamendment does not expressly mention the Channel Tunnel, but only 'ports and'airports.
SeaFrance, IDFC, AOA, BAI, the Spanish and French Governments, the Counciland the Commission submit that the adoption of Directives 91/680 and 92/12 wasnot tainted by any procedural defect. The differences between the text on which theParliament gave its opinion and that definitively adopted were not essential, andthe two directives, taken as a whole, remained substantially identical to theCommission's original proposals which were submitted to the Parliament.
In any event, SeaFrance, IDFC, AOA, BAI and the Spanish and FrenchGovernments and the Council consider that there was no need for freshconsultation, in that the amendments to the directives corresponded to theParliament's wish to maintain the system of tax-free shops. The Parliament thus didnot have to be consulted again.
It is to be remembered that due consultation of the Parliament in the casesprovided for by the Treaty constitutes an essential formal requirement, breach ofwhich renders the measure concerned void. Effective participation of theParliament in the Community's legislative process, in accordance with theprocedures laid down by the Treaty, represents an essential factor in theinstitutional balance intended by the Treaty. This function reflects the fundamentaldemocratic principle that the people should take part in the exercise of powerthrough the intermediary of a representative assembly (see, in particular, CaseC-392/95 Parliament v Council [1997] ECR I-3213, paragraph 14).
It is settled law that the requirement to consult the European Parliament in thelegislative procedure, in the cases provided for by the Treaty, means that it mustbe consulted again whenever the text finally adopted, taken as a whole, differs inessence from the text on which the Parliament has already been consulted, exceptin cases in which the amendments substantially correspond to the wishes of theParliament itself (Parliament v Council, cited above, paragraph 15).
With respect, first, to Article 28k of the Sixth Directive, that provision derives fromthe Commission's original proposal of 7 August 1987 (OJ 1987 C 252, p. 2),amended on two occasions on 17 May 1990 (OJ 1990 C 176, p. 8) and 2 May 1991(OJ 1991 C 131, p. 3). In its original proposal submitted to the Parliament, whichwas not amended on this point by the two other proposals, the Commissionproposed that Council Directive 69/169/EEC of 28 May 1969 on the harmonizationof provisions laid down by law, regulation or administrative action relating toexemption from turnover tax and excise duty on imports in international travel (OJ,English Special Edition 1969 (I), p. 232) should cease to apply on 31 December1992 in respect of intra-Community trade relations.
According to the explanatory statement in the report of the Parliament'sCommittee on Economic and Monetary Affairs and Industrial Policy on theproposal for a directive amending the Sixth Directive (Fuchs Report, A3-0271/90),presented on 7 November 1990, the situation of the businesses and employeesengaged in tax-free sales had to be considered in order to determine whetherspecific measures were necessary.
The Parliament, on 20 November 1990, proposed amendments Nos 6 and 31,reading respectively as follows:

'Whereas the transitional period must be used to take measures to offset the socialrepercussions in the professions concerned and to prevent regional problemsarising, notably in intra-Community frontier regions, as a result of the abolition offiscal frontiers (recital 4f);

'Whereas the economic and social implications of the completion of the internalmarket for tax-free sales will be determined through a report undertaken by theCommission and presented to the Council and the European Parliament (recital4g).
In its amended proposal of 2 May 1991, the Commission proposed the addition ofthe following ninth recital:

'Whereas the transitional period must be used to take measures to offset the socialrepercussions in the occupations concerned and to prevent regional problemsarising, notably in trans-frontier regions, from the abolition of tax frontiers.
With respect, finally, to the procedure by which Article 28 of Directive 92/12 wasadopted, the Commission's proposal, presented on 27 September 1990 (OJ 1990C 322, p. 1), did not contain any provision relating to the possibility for travellerswithin the Community to purchase goods free of excise duty.
It appears from the explanatory statement in the report of the Parliament'sCommittee on Economic and Monetary Affairs and Industrial Policy on theproposal for an 'excise duty directive (Patterson Report, A3-0137/91), presentedon 27 May 1991, that since no report was available on the situation of thebusinesses and employees engaged in tax-free sales, the amendment adopted thenwas without prejudice to the final formulation.
The Parliament proposed on 12 June 1991 that Article 18 should be amended byadding the following wording:

'The provisions of this directive shall not in any way affect existing agreements onthe sale of products subject to excise duty in duty-free shops at ports and airports,and on board aircraft in flight or vessels at sea up to 31 December 1995.
The Commission made the last amendments to its proposal on 24 January 1992(OJ 1992 C 45, p. 10), but without taking the Parliament's proposal into account.
It must therefore be considered whether the amendments referred to byEurotunnel and the Parliament go to the essence of the measures considered as awhole.
The purpose of the Commission's proposals for Directives 91/680 and 92/12presented to the Parliament was to adjust the systems of value added tax and exciseduty to the existence of an internal market, defined as an area without internalfrontiers.
The object of Articles 28 and 28k is to permit a pre-existing system to bemaintained if the Member States so wish. Those articles must therefore beinterpreted as optional exceptions of limited scope. The possibility of tax-free salesis reserved for certain categories of traders and is limited in extent (ECU 90) andtime (30 June 1999).
It follows that the changes made by Articles 28 and 28k are not such as to affectthe intrinsic tenor of the provisions introduced by Directives 91/680 and 92/12 andthus cannot be classed as changes in the essence of the measures.
In any event, the Parliament not only had an opportunity to express its opinion onthe question of tax-free sales, it recommended that they should be maintained.
Thus in its opinion on Directive 91/680 the Parliament had proposed amendmentsNos 6 and 31, which are entirely compatible with the tenor of the final text of thedirective. That text recommended that advantage should be taken of thetransitional period to take into consideration the social repercussions and theregional difficulties which might follow, especially in trans-frontier regions, from theabolition of fiscal frontiers.
In its opinion on Directive 92/12, the Parliament expressly proposed that thederogating arrangements in force for sales free of excise duty should temporarilybe maintained until 31 December 1995.
Consequently, by deciding to maintain tax-free sales until 30 June 1999 in order todeal with the social repercussions in that sector, the Council responded in substanceto the wishes of the Parliament.
In those circumstances, it was not necessary for the Parliament to be consultedagain on Articles 28 and 28k.
It follows from all the foregoing that consideration of the questions raised has notdisclosed any factor of such a kind as to affect the validity of Articles 28 or 28k.
In view of that answer, there is no need to answer the second part of Question 2on the subsequent adoption of Directive 94/4, nor is there any need to answerQuestion 3.

Costs
The costs incurred by the French, Greek and Spanish Governments and by theEuropean Parliament, the Council of the European Union and the Commission ofthe European Communities, which have submitted observations to the Court, arenot recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the action pending before the national court, the decision oncosts is a matter for that court.

On those grounds,
THE COURT,
in answer to the questions referred to it by the Tribunal de Commerce, Paris, byjudgment of 27 November 1995, hereby rules:
1. A natural or legal person may challenge before a national court the validityof provisions in directives, such as Article 1(22) of Council Directive91/680/EEC of 16 December 1991 supplementing the common system ofvalue added tax and amending Directive 77/388/EEC with a view to theabolition of fiscal frontiers and Article 28 of Council Directive 92/12/EECof 25 February 1992 on the general arrangements for products subject toexcise duty and on the holding, movement and monitoring of such products,even though that person has not brought an action for annulment of thoseprovisions pursuant to Article 173 of the EC Treaty and even though acourt of another Member State has already given judgment in separateproceedings.
2. Consideration of the questions has not disclosed any factor of such a kindas to affect the validity of Article 1(22) of Directive 91/680 or Article 28 ofDirective 92/12.

Rodríguez IglesiasGulmann

Ragnemalm

Wathelet Mancini
Moitinho de AlmeidaKapteyn

Murray

Edward Puissochet
HirschJann

Sevón

Delivered in open court in Luxembourg on 11 November 1997.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: French.