Case C‑95/19

Agenzia delle Dogane

Silcompa SpA

(Request for a preliminary ruling from the Corte suprema di cassazione)

Judgment of the Court (Fifth Chamber), 24 February 2021

(Reference for a preliminary ruling – Directive 76/308/EEC – Articles 6 and 8 and Article 12(1) to (3) – Mutual assistance for the recovery of certain claims – Excise duty payable in two Member States for the same transactions – Directive 92/12/EC – Articles 6 and 20 – Release of products for consumption – Falsification of the accompanying administrative document – Offence or irregularity committed in the course of movement of products subject to excise duty under a duty suspension arrangement – Irregular departure of products from a suspension arrangement – ‘Duplication of the tax claim’ relating to the excise duties – Review carried out by the courts of the Member State in which the requested authority is situated – Refusal of the request for assistance made by the competent authorities of another Member State – Conditions)

Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 – Products subject to excise duty – Determination of the Member State in which excise duty is chargeable – Irregular departure from the suspension arrangement in the territory of a Member State – Unlawful marketing of the products in the territory of another Member State – Excise duty chargeable in two Member States in respect of the same transactions – Collection of excise duty by a single Member State

(Council Directive 92/12, Arts 6(1)(a) and 20)

(see paragraphs 59-67, 82, 83)
Approximation of laws – Mutual assistance for the recovery of claims – Directive 76/308 – Jurisdiction of the courts of the Member State in which the requested authority is situated – Products which irregularly departed from the suspension arrangement – Excise duties collected twice on the same transactions relating to the same products – Action contesting the enforcement measures taken in the Member State in which the requested authority is situated – Refusal of the request for recovery of excise duties made by the competent authorities of the State in which the requesting authority is situated – Whether permissible – Conditions

(Council Directives 76/308, Arts 6, 8(1) and 12(1) and (3), and 92/12, Art. 20)

(See paragraphs 70-74, 76-80, 84, operative part)

Résumé

Where a product subject to excise duty, such as alcohol, is exported irregularly within the European Union, the decisions of the authorities of the Member States concerned may not result in the corresponding duties being collected twice

The Member State ‘of export’ which has already collected the excise duties on the basis of the irregular departure of the product from the tax suspension arrangement may refuse to grant a request for recovery made by the Member State ‘of import’

Between 1995 and 1996 Silcompa SpA, a company established in Italy which produces ethyl alcohol, sold ethyl alcohol to Greece under excise duty suspension arrangements. ( 1 )

In 2000, following an inspection, it was established that the accompanying administrative documents (‘AADs’) relating to the consignments of alcohol dispatched by Silcompa had never been received by the Greek customs authorities in order for the official documents to be drawn up and that the stamps of the customs office shown on the AADs were false. Accordingly, the Italian customs authority (‘the Agency’) issued three payment notices for the collection of unpaid excise duties.

In 2004, the Agency was informed by the Greek customs authorities that the deliveries of the products sent by Silcompa to a Greek company should be considered irregular. Accordingly, an adjustment notice, covering both the Italian tax claims and an additional tax adjustment, was issued. The proceedings brought against that notice led to the conclusion, in 2017, of a settlement agreement between the Agency and Silcompa.

In 2005, the Greek customs authorities issued two excise duty payment notices in relation to the same export transactions within the European Union, on account of the unlawful release for consumption in Greek territory of the alcohol shipped by Silcompa. In addition, the Greek tax authorities submitted a request for assistance to the Agency for the recovery of the claims relating to the excise duties in question. The Agency, as the competent requested authority, accordingly notified Silcompa of two amicable payment notices.

The appeal brought by Silcompa, following the dismissal of its action against those payment notices, was upheld by the Commissione tributaria regionale del Lazio (Regional Tax Court, Lazio, Italy). Hearing an appeal on a point of law brought by the Agency, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) decided to refer questions to the Court for a preliminary ruling.

The Court ruled that, in the context of an action disputing enforcement measures taken in the Member State in which the requested authority is situated, the competent body of that Member State may refuse to grant the request to recover excise duties submitted by the competent authority of another Member State in respect of goods which irregularly departed from a suspension arrangement, where that request is based on the facts relating to the same export transactions which are already subject to excise duty recovery in the Member State in which the requested authority is situated. ( 2 )

Findings of the Court

The Court notes that the unlawful marketing in Greece of alcohol shipped by Silcompa may constitute an offence or irregularity in respect of the products in question or a consequence of the offence or irregularity previously committed in Italy. In relation to that determination, which is a matter for the referring court, there are two possibilities.

The first possibility is that there were a number offences or irregularities committed in the territory of several Member States and two or more of those States consider that they have the right to levy the excise duties. In that respect, where there is an irregular departure from the suspension arrangement in one Member State, followed by an actual release for consumption of products subject to excise duty in another Member State, the latter State may not also levy excise duty in so far as regards the same export transactions. That release for consumption may take place only once. It follows that, although several successive offences or irregularities may occur in different Member States, only the offence or irregularity which caused the products in the course of movement to leave the excise duty suspension arrangement must be taken into account for the purposes of recovering those duties, in so far as that offence or irregularity released the products for consumption. ( 3 )

The second possibility is that the authorities of one Member State relied on one of the presumptions provided for the purpose of determining where the offence or irregularity was committed ( 4 ) and the authorities of another Member State ascertain that the offence or irregularity was actually committed in their Member State. ( 5 ) In such a situation, those authorities are to apply the corrective mechanism allowing that Member State to collect the excise duty within three years from the date on which the AAD was drawn up. ( 6 ) Once that period has passed, only the Member State which relied on one of those presumptions may legitimately collect the excise duty.

As regards the rules concerning mutual assistance for the recovery of claims relating to excise duties, the Court highlights, first, the division of powers between the authorities of the Member State in which the applicant authority is situated, which apply their national law to the claim and the instrument permitting its enforcement, and the authorities of the Member State in which the requested authority is situated, which apply their national law to the enforcement measures. ( 7 ) In accordance with the principle of mutual trust, the instrument permitting enforcement is to be directly recognised and automatically treated as an instrument permitting enforcement of a claim of the Member State in which the requested authority is situated. It follows that the authorities of the latter Member State cannot call into question the assessment of the requesting Member State’s authorities relating to the place where the irregularity or offence was committed, since that assessment falls within its sole jurisdiction. Next, the Court declares that the instrument permitting enforcement cannot be enforced in the Member State in which the requested authority is situated if such enforcement results in the double levying of excise duties on the same transactions relating to the same products. Consequently, it is necessary to allow the competent body of the same Member State to refuse to enforce that instrument in order to avoid the coexistence of two final decisions relating to the taxation of the same products, based, as regards one, on their unlawful departure from the suspension arrangement and, as regards the other, on their subsequent release for consumption. Lastly, the Court concludes that that interpretation cannot be called into question by its case-law, according to which the EU legislature has not established prevention of double taxation as an absolute principle, ( 8 ) since it forms part of the specific factual context of the case giving rise to that judgment, which concerned the situation of an unlawful departure from the suspension arrangement on account of the theft of products to which tax markings had already been affixed in the ‘Member State of departure’, those tax markings having an intrinsic value which distinguish them from straightforward documents representing the payment of a sum of money to the tax authorities in the Member State in which those markings were issued.

( 1 ) Under that tax arrangement, excise duty on excise goods is not yet payable, despite the fact that the chargeable event for taxation purposes has already occurred. That arrangement postpones the chargeability of excise duty until one of the conditions of chargeability is met.

( 2 ) Article 6(2) and Article 20 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 goods (OJ 1992 L 76, p. 1).

( 3 ) Articles 6 and 20 of Directive 92/12.

( 4 ) Article 20(2) and (3) of Directive 92/12.

( 5 ) Under Article 20(2) and (3) of Directive 92/12, those presumptions are provided for in two situations: the first concerns the situation in which it is not possible to establish the place where the offence or irregularity was committed and the second is where the products subject to excise duty do not arrive at their destination and it is not possible to establish where the offence or irregularity occurred.

( 6 ) Article 18(1) and Article 19(1) of Directive 92/12.

( 7 ) Article 12(1) and (3) of Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (OJ 1976 L 73, p. 18).

( 8 ) Judgment of the Court of 13 December 2007, BATIG (C‑374/06, EU:C:2007:788, paragraph 55).