THEM AND US
Nicholas Farrell on a court case which
hinges on what 'them' means in each of the European Union's 11 languages
A STRANGE legal suit comes before the European Court of Justice in Luxembourg on Tuesday which shows that it is not dif- ferent currencies which make a mockery of the European Union but different lan- guages. The case, HM Customs & Excise v. The Man in Black Ltd (a tobacco compa- ny), concerns the meaning of a word in each of the EU's 11 languages. That word is 'them', and on it depends the fate of bil- lions of pounds of duty on cigarettes and alcohol.
In addition to the duty at stake, the lawyers' fees for attempting to define `them', as the case trundled through the British courts on its way to Luxembourg, are close to £1 million. Even Oxbridge lan- guage dons have been wheeled in at £5,000 a time to give their opinion on 'them', so far all to no avail. The British judges adjudged themselves unable to judge on `them'. So now the matter goes before the 11 Euro judges in Luxembourg — who all speak different languages.
Despite the apparent absurdity of all this, very big money is at stake. The own- ers of The Man in Black thought they had found a way to sell their cheap 'Death' cigarettes in Britain by avoiding duty. Cus- toms put a stop to it in 1995. The company went for judicial review, which is where `them' .comes in. If the European Court decides that 'them' means one thing, HM Customs & Excise can breathe a sigh of relief and hang on to all the £85 billion duty it gets each year from cigarette sales. But if the court decides 'them' means something else, the company stands to make a fortune. For a start, it will sue the Government for the £10 billion in trade it has lost since Customs & Excise forced it to stop the scheme — and begin trading again. Others will set up similar schemes. Billions of pounds of revenue will be lost.
Under the company's scheme, smokers bought their cigarettes in Luxembourg by mail order; it then brought them here on behalf of the smoker. The idea was to exploit the single-market laws on the free movement of goods and people within the EU; the same laws that allow us to bring back from, say, Calais unlimited amounts of cigarettes and alcohol and avoid British duty as long as they are for our own per- sonal consumption. As the company was not selling the cigarettes itself, merely transporting them, it argued that it was acting as an agent for the smoker and so neither it nor the smoker was liable for duty except in Luxembourg.
It is the same idea as when a couple are on holiday in France and the smoking hus- band buys a large quantity of cigarettes but then has to return to Britain on his own for a crucial business meeting, leaving the cigarettes behind. His non-smoking wife then brings the cigarettes back for him. She is, in effect, acting as his agent.
The 'Death' cigarette scheme was, says the company, a simple extension of the Calais booze run. Nor was it mere clever- dick nonsense doomed to failure. A lead- ing tax counsel, Robert Venables QC, helped draft the scheme. But clearly if it was allowed to operate the floodgates would open not just in the cigarette mar- ket but also the alcohol market, which is where 'them' comes into it.
The relevant EU directive on cross- border shopping is Article 8 of the EU's 1992 Council Directive 92/12/EEC. This states: 'As regards products acquired by private individuals for their own use and transported by them the principle govern- ing the internal market lays down that excise duty shall be charged in the mem- ber state in which they are acquired.'
So if you buy cigarettes in France for your own use and bring them into Britain you only pay French duty, not British on top. But Customs & Excise argued that `transported by them' means `by them per- sonally' — which the smoker was most definitely not doing in this case. The first `Have you got anything of Princess Diana's?' judge to have a bash at what 'them' means was Mr Justice Popplewell in the High Court in 1995.
He had the help of translations. In the French translation the directive states `transportes par eux-memes' (`transported by themselves'); in the German 'und die sie selbst befordern' (`and those who transport them themselves'); in the Italian `trasportati dai medesimi' (`transported by themselves'); in the Danish 'og som de say medforer' (`and personally transported by them'); in the Swedish 'och transporterats av dem sjaiva' (`transported by the individ- uals themselves'); in the Greek `kai to opoia metapheroun autoprosopos' (`they personally carry with them'); in the Spanish Iransportados por ellos' (`transported by them'), so subtly different from the Por- tuguese `transportados pelos prOprios (transported by themselves) — and so on. In his judgment Judge Popplewell agreed that what the English 'them' meant was indeed unclear and did not necessarily mean `by them personally', but said that such modest familiarity with French, Ger- man and Greek as I have' inclined him to agree with Customs & Excise and he ruled in their favour. Then the matter went to the Appeal Court. Unlike Judge Pop- plewell, the three Appeal Court judges felt, unable to rule one way or the other: 'them was not, in their words, 'acte claire'. So they allowed the tobacco company to refer the matter to the European Court of Justice. The two key words are the English and the French. So what then is the difference in meaning, if any, between 'them' and `eux-memes'? On the face of it, 'eux- memes' does seem to mean 'them person- ally' while the English 'them' seems far less specific. This is what Customs & Excise argued. The Appeal Court judges were inclined to agree, even though they did not rule. They accepted that if it were just a question of the English 'them' the tobaceo company might be right, but probably not If `eux-memes' were the test. Let the Euro- pean Court of Justice decide, they said. One of the dons asked by the tobacco company to give his opinion of what Article 8 means in 'ordinary language' was Dr Nicholas Cronk, French tutor and fellow of St Edmund Hall, Oxford. He said in his affidavit to the Appeal Court, 'It seems to me that the emphatic "par eux-mernes, merely stresses the fact that the individual who acquires the product is the same Per- son who causes it to be transported; it does not imply that the individual transports in person the product. In order to convey this last sense, French would normally use an adverbial phrase such as "en personne". If the judges ignore the views of dons, such as Dr Cronk and rule that 'them' and `eux-memes' mean different things, they will then have to decide which word most accurately reflects the intentions of the politicians and bureaucrats who drew UP Article 8 in the first place. On such trifles hangs the fate of billions.
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