Case C‑355/14

‘Polihim-SS’ EOOD

v

Nachalnik na Mitnitsa Svishtov

(Request for a preliminary ruling

from the Аdministrativen sad Pleven)

‛Reference for a preliminary ruling — Indirect taxation — Excise duties — Directive 2008/118/EC — Chargeability of excise duties — Article 7(2) — Concept of ‘departure of excise goods from a duty suspension arrangement’ — Taxation of energy products and electricity — Directive 2003/96/EC — Article 14(1)(a) — Use of energy products to produce electricity — Purchase and resale by an intermediate purchaser of energy products located in a tax warehouse — Direct delivery of energy products to an operator for the production of electricity — Indication of the intermediate purchaser as the ‘consignee’ of the products in the tax documents — Infringement of the requirements of national law as regards exemption from excise duty — Refusal of exemption — Proof of the use of the products in circumstances permitting exemption from excise duty — Proportionality’

Summary — Judgment of the Court (Ninth Chamber), 2 June 2016

1. EU law — Interpretation — Methods — Literal, systematic and teleological interpretation

2. Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Chargeability of excise duties — Release for consumption — Concept — Goods held by an authorised warehousekeeper in a tax warehouse — Excise duty becoming chargeable at the time the goods are physically removed from the warehouse

   (Council Directives 92/12 and 2008/118, Art. 7(1) and (2))

3. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity and excise duty — Directives 2003/96 and 2008/118 — Exemption of energy products used to produce or maintain the ability to produce electricity — Conditions — Observance of the principle of proportionality

   (Council Directives 2003/96, Art. 14(1)(a) and 2008/118, Art. 7]

1.  See the text of the decision.

   (see para. 45)

2.  Article 7(2) of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as meaning that the sale of excise goods held by an authorised warehousekeeper in a tax warehouse does not bring about their release for consumption until the time at which those goods are physically removed from that tax warehouse. Since excise duty is, as is recalled in recital 9 to Directive 2008/118, a tax levied on consumption and not on sale, the time at which it becomes chargeable must be very closely linked with the consumer.

   In that regard, Article 7(1) of Directive 2008/118 defines the time at which excise duty becomes chargeable as the time of release for consumption of the excise goods. Furthermore, it is clear from Article 7(2)(a) of that directive that ‘release for consumption’ is to be understood, in particular, as ‘the departure of excise goods, including irregular departure, from a duty suspension arrangement’. Accordingly, the departure of excise goods from a duty suspension arrangement means the physical departure of those goods from the tax warehouse and not their sale.

   Such an interpretation corresponds to the objectives pursued by that directive. Since excise duty is a tax levied on consumption and not on sale, the time at which it becomes chargeable must be very closely linked with the consumer. Accordingly, so long as the goods in question remain in the tax warehouse of an authorised warehousekeeper, there can be no consumption, even if those goods have been sold by that authorised warehousekeeper.

   Furthermore, the reference, in particular, to the possibility of an irregular departure of excise goods from a duty suspension arrangement cannot be understood other than as meaning the physical removal of goods from such an arrangement.

   Finally, insofar as that excise goods under a duty suspension arrangement are held by an authorised warehousekeeper in a tax warehouse, excise duties are not chargeable so long as the goods concerned are held by that warehousekeeper in such a warehouse.

   (see paras 46-55, operative part 1)

3.  Article 14(1)(a) of Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity, read in conjunction with Article 7 of Directive 2008/118 concerning the general arrangements for excise duty, must be interpreted as precluding a refusal by the national authorities to exempt from excise duty energy products which, after having been sold by an authorised warehousekeeper to an intermediate purchaser, are sold on by that purchaser to an end-user who satisfies all the requirements under national law to benefit from an exemption of excise duty on those products and to whom those products are delivered directly by that authorised warehousekeeper from his tax warehouse, on the sole ground that the intermediate purchaser, declared by that warehousekeeper as the consignee of those products, does not have the status of end-user authorised under national law to receive energy products exempt from excise duty.

   Although the fact of making exemption from excise duty subject to the declaration, on the tax documents, of a consignee satisfying the conditions laid down in national law to receive exempt energy products must be regarded as enabling the objective of facilitating monitoring of the application of exemptions from excise duty by reducing the risk of a use of the products which does not give entitlement to an exemption to be achieved, such a refusal by the national authorities, without it being checked whether the basic requirements necessary for those products to be used for purposes giving entitlement to exemption are met at the time of their removal from the tax warehouse, goes beyond what is necessary to ensure the correct and straightforward application of those exemptions and to prevent any evasion, avoidance or abuse.

   (see paras 58, 62, 63, operative part 2)