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Scandic Distilleries SA, by C.F. Costaş, avocat,

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the Romanian Government, by R.H. Radu, I. Bara and R.-I. Munteanu, acting as Agents,

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the Polish Government, by M. Szpunar and B. Majczyna, acting as Agents,

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the Portuguese Government, by L. Inez Fernandes and M. Rebelo, acting as Agents,

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the European Commission, by W. Mölls, L. Keppenne and C. Barslev, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of the provisions of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), as amended by Council Directive 92/108/EEC of 14 December 1992 (OJ 1992 L 390, p. 124) (‘Directive 92/12’).

2

The request has been made in proceedings between Scandic Distilleries SA (‘Scandic’), the applicant in the main proceedings, and the Direcţia Generală de Administrare a Marilor Contribuabili (Directorate-General for the Administration of Large-scale Taxpayers, the ‘Direcţia Generală’) concerning the reimbursement of excise duties after delivery of the products subject to those duties, intended for consumption in a Member State other than Romania.

3

According to the 18th recital in the preamble to Directive 92/12, ‘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’.

4

Article 6(1) of Directive 92/12 provides:

‘Excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject to excise duty …

Release for consumption of products subject to excise duty shall mean:

5

Article 7(1) to (6) of Directive 92/12 provides:

‘1.   In the event of products subject to excise duty and already released for consumption in one Member State being held for commercial purposes in another Member State, the excise duty shall be levied in the Member State in which those products are held.

2.   To that end, without prejudice to Article 6, where products already released for consumption as defined in Article 6 in one Member State are delivered or intended for delivery in another Member State or used in another Member State for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, excise duty shall become chargeable in that other Member State.

3.   Depending on all the circumstances, the duty shall be due from the person making the delivery or holding the products intended for delivery or from the person receiving the products for use in a Member State other than the one where the products have already been released for consumption, or from the relevant trader or body governed by public law.

4.   The products referred to in paragraph 1 shall move between the territories of the various Member States under cover of an accompanying document listing the main data from the document referred to in Article 18(1). The form and content of this document shall be established in accordance with the procedure laid down in Article 24 of this Directive.

5.   The person, trader or body referred to in paragraph 3 must comply with the following requirements:

6.   The excise duty paid in the first Member State referred to in paragraph 1 shall be reimbursed in accordance with Article 22(3).’

6

Article 22 of Directive 92/12 is worded as follows:

‘1.   In appropriate cases, products subject to excise duty which have been released for consumption may, at the request of a trader in the course of his business, be eligible for reimbursement of excise duty by the tax authorities of the Member State where they were released for consumption when they are not indented for consumption in that Member State.

However, Member States may refuse [this] request for reimbursement where it does not satisfy the correctness criteria they lay down.

2.   In the application of paragraph 1, the following provisions shall apply:

3.   In the cases referred to in Article 7, the Member State of departure is required to reimburse the excise duty paid only where the excise duty was previously paid in the Member State of destination in accordance with the procedure laid down in Article 7(5).

However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down.

...

5.   The tax authorities of each Member State shall determine the monitoring procedures and methods applying to reimbursement made in their territory. Member States shall ensure that the reimbursement of excise duty does not exceed the sum actually paid.’

7

Under Article 1926 of the Tax Code relating to the restitution of excise duty on products on which excise duty has been paid:

‘(1)   A trader may, in the course of his activities, request reimbursement of excise duty on products subject to excise duty which have been released for consumption in Romania in the case where those products are intended for consumption in another Member State, subject to the following conditions:

(2)   Excise duty on products subject to excise duty which are marked and released for consumption in Romania can be reimbursed by the competent tax authority in the case where that authority has established that the relevant markings have been destroyed in accordance with the conditions laid down by this law.

(3)   In the cases referred to in Article 1923, the competent tax authority is required to reimburse the excise duty paid only in the case where that duty was paid previously in the Member State of destination, in conformity with the procedure laid down in Article 1923(5).

(4)   In the cases referred to in Article 1928(1), the competent tax authority can, at the request of the seller, reimburse the excise duty paid in the case where the seller has complied with the procedures laid down in Article 1928(4).’

8

Point 184 of the implementing rules of the Tax Code, approved by Decision No 44/2004 of the Romanian Government (‘point 184 of the implementing rules’), which relates to Article 1926 of the Tax Code, reads as follows:

‘(1)   The dispatching trader who intends to request reimbursement of the excise duty paid on products intended for consumption in another Member State must, before dispatching the products, file with the territorial tax authority with which he is registered as a taxable person a request for reimbursement, a specimen of which is reproduced in Annex 11, and provide proof that excise duty has been paid on those products.

(2)   Once the consignee has received the products and the excise duty has been paid in the Member State of destination, the dispatching trader must, for the purposes of reimbursement of excise duty, file the documents referred to in Article 1926(1)(c) of the Tax Code with the territorial tax authority with which he is registered as a taxable person.

(3)   The excise duty to be reimbursed shall be relative to the quantities dispatched and actually received.

(4)   Excise duty shall be reimbursed in accordance with the provisions of the Code of Tax Procedure.

(5)   The excise duty on products subject to excise duty which are marked and released for consumption in Romania and intended for consumption in another Member State can be reimbursed by the territorial tax authority only up to an amount corresponding to the amount of excise duty relative to the quantity of products dispatched. The markings must be removed under fiscal control, at the request of the dispatching trader.

(6)   Where he is to receive products subject to excise duty released for consumption in another Member State, a Romanian trader is required, before the goods are dispatched by the supplier, to make a declaration to that effect to the territorial tax authority. On the basis of that declaration, the territorial tax authority shall take note of the transaction to be effected which renders the excise duty payable at the time that the products are received, with the payment date being the first working day immediately following the day on which the products are received.’

9

Scandic, a Romanian company, markets alcoholic products in Romania and other Member States. In February, March, May, June and July 2009, Scandic released for consumption in Romania alcoholic products intended for consumption in the Czech Republic and it paid excise duty on those products in Romania.

10

Between September 2009 and February 2010, Scandic requested reimbursement of that duty from the Direcţia Generală, on the basis of Article 22 of Directive 92/12 and of Article 1926 of the Tax Code. The requests for reimbursement were drawn up pursuant to Article 1926 of the Tax Code and point 184 of the implementing rules. Scandic respected all the requirements laid down in Annex 11 to Title VII of the Tax Code, since it provided information about the name and tax identification code of the consignee, a description of the products dispatched, the date of receipt of the products, the quantity received, and data relating to the payment of excise duty in the Member State of destination.

11

The requests for reimbursement were submitted after the goods had reached the Czech Republic. Scandic explained that the delay was due to the fact that it did not have in its possession all the documents listed in Annex 11 to Title VII of the Tax Code before the arrival of the products at their destination and the payment of the excise duty in the Member State of destination. Scandic stated that it took that approach to avoid the risk of seeing its requests for reimbursement refused on the ground of inadequate proof, even if that meant being reimbursed relatively late the amount that it had paid in advance.

12

According to Scandic, since the information referred to in Annex 11 relates, inter alia, the date of receipt of the products and the quantity received, that information and the relevant documents could clearly be furnished only after the delivery of the products in the Member State of destination. It argues that, therefore, the lodging of the request for reimbursement was possible only after the product at issue had been delivered and received in the Czech Republic. Scandic notes also that it is clear from the request for reimbursement specimen, as provided in Annex 11, that the requests for reimbursement were to be submitted monthly, and not before the products subject to excise duty had been dispatched to another Member State.

13

Given that the Direcţia Generală did not grant its requests for reimbursement, Scandic brought an action before the Tribunalul Bihor (District Court, Bihor) (Romania) requesting that the Direcţia Generală be ordered to reimburse the excise duties at issue and pay the interest on that amount.

14

In its defence, the Direcţia Generală pointed out that all the documents required under Article 1926 of the Tax Code had been submitted. However, it explained that it was refusing to grant the request for reimbursement on the ground that Scandic had not requested reimbursement of the excise duty before the products had been dispatched to another Member State, in accordance with Article 22 of Directive 92/12.

15

As the Tribunalul Bihor dismissed Scandic’s action, the latter brought an appeal against that court’s judgment before the referring court.

16

Considering that an interpretation of the provisions of Directive 92/12 is necessary for its decision, the Curtea de Apel Oradea (Court of Appeal, Oradea) (Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

17

It should first be observed that Directive 92/12 was repealed by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12). However, according to the first subparagraph of Article 48(1) of Directive 2008/118, Member States need to comply with that directive only with effect from 1 April 2010. Therefore, the dispute in the main proceedings is governed by the provisions of Directive 92/12.

18

The Romanian Government submits that the first question is not admissible, as such, on the grounds that it takes issue with an evidentiary finding, namely that Directive 92/12 precludes a national practice to refuse a request for reimbursement of the excise duty even though all the conditions set out in the national legislation, adopted to implement that directive, the transposition of which is not in dispute, have been fulfilled.

19

The Romanian Government submits that the factual circumstances of the case are different and points out that the question of law that has to be answered in order to enable judgment to be given in the main proceedings is to be found in the other questions referred for a preliminary ruling.

20

Given that it is appropriate to examine all the questions referred together and provide a single answer in response to them, there is no need to consider the admissibility of the first question.

21

By its questions, the referring court asks essentially whether Directive 92/12 must be interpreted as meaning that, when products, which are subject to excise duty that has been paid and which have been released for consumption in one Member State, are transported to another Member State where those products are subject to excise duty, a request for reimbursement of the excise duty paid in the Member State of departure may be refused on the sole ground that that request was not lodged before those goods were dispatched.

22

The purpose of Directive 92/12 is to lay down a number of rules on the holding, movement and monitoring of products subject to excise duty, in particular so as to ensure that chargeability of excise duties is identical in all the Member States (see Case C-5/05 Joustra [2006] ECR I-11075, paragraph 27 and the case-law cited).

23

That harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States (see, to that effect, Case C-392/05 Alevizos [2007] ECR I-3505, paragraph 38).

24

In order to ensure that the levying of the excise duty occurs in one Member State only, namely the one in which the products are consumed, Article 22 of Directive 92/12 provides, under certain conditions, for the reimbursement of the excise duties paid in another Member State.

25

It is clear from the provisions of Article 22(1) to (3) of Directive 92/12 that those provisions establish two distinct reimbursement schemes.

26

That distinction is apparent from the wording of Article 22(1) and (2) of Directive 92/12, on the one hand, and the wording of Article 22(3) thereof, on the other hand.

27

The reimbursement scheme set out in Article 22(1) and (2) of Directive 92/12 applies to situations in which the products subject to excise duty in a Member State, where the excise duty has been paid, are transported under suspension arrangements to another Member State where the products are also subject to excise duty, without it being necessary that the excise duty have been paid in that latter Member State already. By contrast, in situations falling within Article 22(3), excise duty is reimbursed only where it is paid in both the Member State of departure and in the Member State of destination.

28

It seems reasonable for the European Union legislature to have provided for stricter requirements in situations where the reimbursement is requested before the excise duty has been paid in the Member State of destination. One such requirement is that the request for reimbursement must be lodged before the goods concerned have been dispatched. The other requirement set out in Article 22(2)(b) of Directive 92/12 is that movement of the goods must take place in accordance with the provisions of Title III of that directive, namely that those goods must be under suspension arrangements.

29

By contrast, Article 22(3) of Directive 92/12 imposes no obligation as to when the request for reimbursement must be lodged. In addition, the goods are not subject to the obligation to circulate under suspension arrangements, but only to the obligation to be accompanied by a document referred to in Article 7(4) thereof.

30

The fact that Article 22(1) and (2) of Directive 92/12, on the one hand, and Article 22(3) thereof, on the other hand, provide for two different schemes is also evident from the fact that the second subparagraphs of Article 22(1) and (3) contain the same provision, which states that, ‘[h]owever, Member States may refuse [this] request for reimbursement where it does not satisfy the correctness criteria they lay down’. Such repetition would not be necessary if Article 22(1) to (3) were describing one single reimbursement scheme.

31

Moreover, the existence of those two distinct schemes is explained and highlighted in the Proposal for a Council Directive of 7 November 1990 on the general arrangements for products subject to excise duty and on the holding and movement of such products [COM(90) 431 final], submitted by the Commission of the European Communities and which led to the adoption of Directive 92/12, which states, in the part dealing with the commentary on the articles, that the first type of reimbursement procedure provides the possibility to any sender to enter or put goods, subject to excise duty, into suspension arrangements, thereby allowing for reimbursement of the excise duty in the first Member State before the excise duty is paid in a second Member State. It goes on to say that, when that first type of procedure is not applicable, a second type of procedure provides for a reimbursement after the payment of the excise duty in the second Member State, which, although amounting to a financial constraint, makes it possible to avoid releasing the goods from or returning them to suspension arrangements.

32

In the Explanatory Memorandum to that proposal for a directive, point 16 states that the two distinct procedures for reimbursement make it possible to avoid double taxation resulting from products being released for consumption twice in two different Member States. It goes on to say that, as a result, the payment of duties to the Member State of actual consumption is ensured and traders other than authorised ones are not excluded from intra-Community trade in products subject to excise duties.

33

It appears that the Romanian legislation did not take that distinction into account. Article 1926(1) of the Tax Code, in essence, reproduces the reimbursement conditions set out in Article 22(1) and (2)(a), (b) and (c) of Directive 92/12, but differs from Article 22 in so far as Article 1926(1)(c) provides that the request for reimbursement must be accompanied by a document certifying that excise duty has been paid in the Member State of destination, while Article 22(2)(c) of Directive 92/12 does not require that such a condition be fulfilled.

34

It is, however, for the national court to identify the provisions of national law which transpose a European Union directive and, if necessary, the provisions of that directive applicable to the specific facts of the case brought before it.

35

Where the excise duty has already been paid in the Member State of destination, which seems to be the case in the main proceedings, it is Article 22(3) of Directive 92/12 which is applicable and which specifies that reimbursement is subject to one condition, namely that the excise duty has been paid in the Member State of destination. That means that the trader is not required to lodge the request for reimbursement before the goods concerned have been dispatched.

36

In such a situation, the proviso according to which a Member State may refuse a request for reimbursement where it does not satisfy the correctness criteria that the Member State lays down cannot apply in cases where the request for reimbursement has not been lodged before the goods concerned have been dispatched. The concept of ‘correctness criteria’ may not be interpreted in such a way which would allow for the imposition of a condition laid down by Directive 92/12 solely in relation to a different request for reimbursement scenario and which would therefore contravene the first subparagraph of Article 22(3) thereof.

37

By contrast, where the request for reimbursement has been lodged before the excise duty in the Member State of destination has been paid, Article 22(1) and (2) of Directive 92/12 would apply, meaning that the Member State of departure may require that the request for reimbursement be lodged before the goods concerned have been dispatched. In this case, an important condition explicitly laid down in Article 22(2)(a) thereof would be at issue, the failure to comply with which could result in the reimbursement being refused.

38

It is apparent from the scheme of Article 22(1) and (2) of Directive 92/12 that a two-stage procedure is provided for therein. After the initial request is introduced, the trader must have the opportunity to lodge the documents referred to in Article 22(2)(c) thereof.

39

In light of the above, the answer to the questions referred is that Article 22(1) to (3) of Directive 92/12 must be interpreted as meaning that, when products, which are subject to excise duty that has been paid and which have been released for consumption in one Member State, are transported to another Member State where those products are subject to excise duty, which has also been paid, a request for reimbursement of the excise duty paid in the Member State of departure may not be refused on the sole ground that that request was not made before those goods were dispatched, but must be assessed on the basis of Article 22(3) of Directive 92/12. By contrast, if the excise duty has not been paid in the Member State of destination such a request may be refused on the basis of Article 22(1) and (2) of the directive.

40

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 22(1) to (3) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 92/108/EEC of 14 December 1992, must be interpreted as meaning that, when products, which are subject to excise duty that has been paid and which have been released for consumption in one Member State, are transported to another Member State where those products are subject to excise duty, which has also been paid, a request for reimbursement of the excise duty paid in the Member State of departure may not be refused on the sole ground that that request was not made before those goods were dispatched, but must be assessed on the basis of Article 22(3) of Directive 92/12. By contrast, if the excise duty has not been paid in the Member State of destination such a request may be refused on the basis of Article 22(1) and (2) of the directive.