Case C‑64/15

BP Europa SE

v

Hauptzollamt Hamburg-Stadt

(Request for a preliminary ruling from the Bundesfinanzhof)

‛Reference for a preliminary ruling — Taxation — General arrangements for excise duty — Directive 2008/118/EC — Occurrence of an irregularity during a movement of excise goods — Movement of goods under a duty suspension arrangement — Goods missing on delivery — Levying of excise duty in the absence of proof of destruction or loss of the goods’

Summary — Judgment of the Court (Sixth Chamber), 28 January 2016

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

2. Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Movement of excise goods under a duty suspension arrangement — End of that movement — Actual receipt by the consignee of the goods in question

   (Council Directive 2008/118, Art. 20(2))

3. Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Irregularity during a movement of excise goods under a duty suspension arrangement — Difference between an irregularity found during a movement of excise goods and the total destruction or irretrievable loss of those goods

   (Council Directive 2008/118, Arts 7(2)(a) and 4, and 10(2))

4. Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Irregularity during a movement of excise goods under a duty suspension arrangement — Irregularity concerning only part of those goods — Applicability of Article 10(4) of that directive

   (Council Directive 2008/118, Art. 10(4))

1.  See the text of the decision.

   (see para. 28)

2.  Article 20(2) of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12 must be interpreted as meaning that the movement of excise goods under a duty suspension arrangement ends, for the purpose of that provision, when the consignee of those goods has found, on unloading in full from the means of transport carrying the goods in question, that there were shortages of the goods in comparison with the amount which should have been delivered to him.

   The wording of Article 20(2) of Directive 2008/118 refers to the goods themselves and not at all the means of transport by which they have been carried. It is therefore the actual receipt of the goods, as such, by their consignee which must be taken into account in order to determine the time of their delivery and not the mere transport to the consignee of their content, whatever that may be.

   Article 20(2) of that directive forms part of Chapter IV thereof, entitled ‘Movement of excise goods under suspension of excise duty’. That chapter includes the provisions of Article 19(2)(c) of that directive, in accordance with which the consignee must consent to any check enabling the competent authorities of the Member State of destination to satisfy themselves that the goods in question have actually been received. The EU legislature thus intended to make the actual receipt of the goods the element determining the conditions under which the movement of those goods under a duty suspension arrangement must be assessed at the time of their delivery. There is no other provision of that chapter which calls for a different interpretation.

   Furthermore, the provisions of Article 20(2) of Directive 2008/118, by stating when the movement of excise goods under a duty suspension arrangement ends, seeks to define the time at which those goods are deemed to have been released for consumption and to determine, in consequence, the point at which duty on those goods becomes chargeable.

   Moreover, since excise duty is a tax on consumption, as stated in recital 9 of Directive 2008/118, based on the amount of goods offered for consumption, the point at which the duty becomes chargeable must be fixed in such a manner that the amount of goods concerned can be measured precisely.

   (see paras 29-32, 35, operative part 1)

3.  The combined provisions of Articles 7(2)(a) and 10(2) of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12 must be interpreted as meaning that. the situations which they govern are outside that referred to in Article 7(4) of that directive and the fact that a provision of national law transposing Article 10(2) of Directive 2008/118 does not expressly state that the irregularity governed by that provision of the directive must have given rise to the release for consumption of the goods concerned cannot prevent the application of that national provision to the discovery of shortages, which of necessity entail such a release for consumption.

   Articles 10(2) and 7(2)(a) of Directive 2008/118 cover cases where an irregularity detected during a movement of excise goods under a duty suspension arrangement gives rise to their release for consumption by removal from that arrangement. Accordingly, a national provision transposing Article 10(2) of Directive 2008/118 cannot, in principle, provide that such an irregularity is deemed to have occurred in the Member State in which and at the time when the irregularity was detected, without making that presumption subject to the condition that that irregularity gave rise to the release for consumption of the goods in question.

   The finding of shortages on delivery of excise goods under a duty suspension arrangement reveals a situation which is, of necessity, in the past where the missing goods did not form part of that delivery and the movement of which did not, accordingly, end in accordance with Article 20(2) of Directive 2008/118. In consequence, that situation constitutes an irregularity within the meaning of Article 10(6) of that directive. An irregularity of that type of necessity gives rise to a removal from the duty suspension arrangement and, as a result, a release for consumption as presumed under Article 7(2)(a) of that directive.

   Furthermore, the irregularity governed by Article 10(2) of Directive 2008/118 concerns a situation other than that covered by Article 7(4) of that directive, that is to say, ‘the total destruction or irretrievable loss of excise goods’. Accordingly, if proof is provided of such total destruction or irretrievable loss of excise goods under a duty suspension arrangement, in that situation, there cannot be a release for consumption within the meaning of Article 7(2)(a) of Directive 2008/118, nor, as a result, can Article 10(2) of that directive apply. Thus, situations governed by those provisions are indeed outside those covered by Article 7(4) of that directive.

   (see paras 38, 39, 43, 45-47, operative part 2)

4.  Article 10(4) of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12 must be interpreted as meaning that it applies not only where the total amount of goods moving under a duty suspension arrangement failed to arrive at its destination, but also where only a part of those goods failed to arrive at its destination.

   Thus, the very wording of Article 10(4) of Directive 2008/118 in no way reserves the application of that provision to the sole case where the total amount of the goods moving under a duty suspension arrangement failed to arrive at the destination. Article 10(4) of Directive 2008/118 falls within a context in which the EU legislature intended to cover all situations of irregularity, including, accordingly, those affecting only a part of the movement.

   (see paras 50, 52, 54, operative part 3)