With its request for a preliminary ruling, the German Bundesgerichtshof (Federal Court of Justice) submitted a request to the European Court of Justice regarding the interpretation of Regulation No 834/2007, which, in Article 27, obliges Member States to set up a system of controls and, in Article 28(2), allows them to exempt certain types of retailers from that control system. The question that the referring court asks, in essence, is whether online retailers can also benefit from such an exemption.
On 8 June 2017 the Advocate General of the European delivered its opinion to the court.
In sum the Advocate Generale is of the view, that the fact that a product is sold to the final consumer without the intervention of a third party is a sufficient ground to identify the sale as a ‘direct’ sale within the meaning of Article 28(2) of Regulation No 834/2007 and thus the online retailer does not need a certification. If, however, the operator who sells products directly to the final consumer is shown to produce, prepare, store other than in connection with the point of sale or import such products from a third country, he cannot qualify for the possibility of exemption under Article 28(2) of Regulation No 834/2007. The expression ‘other than in connection with the point of sale’ does not restrict the storage to the physical location where the sale occurs but requires storage to be ancillary to the sale and not to go beyond what is reasonably required to perform the sale. To come under the exemption, it does not matter whether or where the products are stored by the seller, nor who is present at the place of storage or sale (Case C‑289/16).
The ruling of the European Court of Justice is still outstanding.