Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

8 February 2018 (*)

(Failure of a Member State to fulfil obligations — Directive 2008/118/EC — Article 7 — General arrangements for excise duty — Supply of petroleum products, without charging excise duty — Filling stations at the border of the Hellenic Republic with third countries — Chargeability of excise duty — Concept of ‘release for consumption’ of excise goods — Concept of ‘departure from a duty suspension arrangement’)

In Case C–590/16,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 21 November 2016,

European Commission, represented by F. Tomat and A. Kyratsou, acting as Agents,

applicant,

v

Hellenic Republic, represented by E.–M. Mamouna and M. Tassopoulou, acting as Agents,

defendant,

THE COURT (Sixth Chamber),

composed of C.G. Fernlund, President of the Chamber, J.–C. Bonichot (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        By its application, the European Commission requests the Court to declare that by adopting and retaining in force legislation allowing the sale of tax-exempted petroleum products by the filling stations of Katastimata Aforologiton Eidon AE (hereinafter ‘KAE’) at the border posts of Kipoi Evrou (Greece), Kakavia (Greece) and Evzonoi (Greece) which are all situated in regions bordering third countries, namely the Republic of Turkey, the Republic of Albania and the former Yugoslav Republic of Macedonia, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of 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).

 Legal context

 Directive 2008/118

2        Recital 8 of Directive 2008/118 is worded as follows:

‘Since it remains necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, it is necessary to make clear at Community level when excise goods are released for consumption and who the person liable to pay the excise duty is.’

3        Article 1(1) of Directive 2008/118 provides:

‘This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”):

(a)      energy products and electricity covered by Council Directive 2003/96/EC [of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)];

…’

4        Article 2 of that directive provides:

‘Excise goods shall be subject to excise duty at the time of:

(a)      their production, including, where applicable, their extraction, within the territory of the Community;

(b)       their importation into the territory of the Community.’

5        Article 4 of that directive is worded as follows:

‘For the purpose of this Directive as well as its implementing provisions, the following definitions shall apply:

(1)      “authorised warehousekeeper” means a natural or legal person authorised by the competent authorities of a Member State, in the course of his business, to produce, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse;

(2)      “Member State” and “territory of a Member State” means the territory of each Member State of the Community to which the Treaty is applicable, in accordance with Article 299 thereof, with the exception of third territories;

(3)      “Community” and “territory of the Community” means the territories of the Member States as defined in point 2;

...

(5)      “third country” means any State or territory to which the Treaty is not applicable;

...

(7)      “duty suspension arrangement” means a tax arrangement applied to the production, processing, holding or movement of excise goods not covered by a customs suspensive procedure or arrangement, excise duty being suspended;

…

(11)      “tax warehouse” means a place where excise goods are produced, processed, held, received or dispatched under duty suspension arrangements by an authorised warehousekeeper in the course of his business, subject to certain conditions laid down by the competent authorities of the Member State where the tax warehouse is located.’

6        Article 5(1) of that directive states:

‘This Directive and the Directives referred to in Article 1 shall apply to the territory of the Community.’

7        Under Article 7(1) and (2) of Directive 2008/118, in Section 1 of Chapter II of that directive, entitled ‘Time and place of chargeability’:

‘1.      Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.

2.      For the purposes of this Directive, “release for consumption” shall mean any of the following:

(a)      the departure of excise goods, including irregular departure, from a duty suspension arrangement;

...’

8        Article 14 of Directive 2008/118 is worded as follows:

‘1.      Member States may exempt from payment of excise duty excise goods supplied by tax-free shops which are carried away in the personal luggage of travellers to a third territory or to a third country taking a flight or sea-crossing.

...

3.      Member States shall take the measures necessary to ensure that the exemptions provided for in paragraphs 1 and 2 are applied in such a way as to prevent any possible evasion, avoidance or abuse.

4.      Member States which, at 1 July 2008, have tax-free shops situated elsewhere than within an airport or port may, until 1 January 2017, continue to exempt from excise duty excise goods supplied by such shops and carried away in the personal luggage of travellers to a third territory or to a third country.

...’

9        Article 15(2) of that directive provides:

‘The production, processing and holding of excise goods, where the excise duty has not been paid, shall take place in a tax warehouse.’

10      Article 16 is worded as follows:

‘1.      The opening and operation of a tax warehouse by an authorised warehousekeeper shall be subject to authorisation by the competent authorities of the Member State where the tax warehouse is situated.

Such authorisation shall be subject to the conditions that the authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse.

2.      An authorised warehousekeeper shall be required to:

...

(c)      keep, for each tax warehouse, accounts of stock and movements of excise goods;

...

(e)      consent to all monitoring and stock checks.

The conditions for the guarantee referred to in point (a) shall be set by the competent authorities of the Member State in which the tax warehouse is authorised.’

11      Article 17(1) of Directive 2008/118 provides:

‘Excise goods may be moved under a duty suspension arrangement within the territory of the Community, including where the goods are moved via a third country or a third territory:

(a)      from a tax warehouse to:

(i)      another tax warehouse;

(ii)      a registered consignee;

(iii)      a place where the excise goods leave the territory of the Community, as referred to in Article 25(1);

...’

 Pre-litigation procedure

12      The Commission, having received a complaint, gathered information on the sale, exempt from excise duty, of petroleum products by KAE in filling stations at the border posts of Kipoi Evrou, Kakavia and Evzonoi. Taking the view that the applicable Greek legislation might be contrary to Directive 2008/118, the Commission sought clarifications from the Hellenic Republic.

13      By letter of 19 December 2011, the Hellenic Republic replied that the filling stations concerned, at which third country motorists en route to those countries could purchase fuel, were functioning as a tax warehouse, and engaging, under a simplified procedure, in the exportation of petroleum products in such a way that excise duty was not due.

14      On 29 November 2013, the Commission addressed a letter of formal notice to that Member State, arguing that the sale, exempt from excise duty, of petroleum products failed to have regard to the requirements arising from Directive 2008/118. It confirmed this in a reasoned opinion of 1 September 2014.

15      By letter of 29 December 2014, the Hellenic Republic reiterated its initial view that the sale, exempt from excise duty, of excise goods by KAE at the border posts of Kipoi Evrou, Kakavia and Evzonoi is in accordance with EU law on the ground that the applicable simplified export procedure enables it to ensure that fuels are not consumed within the territory of Greece but rather exported to third countries.

16      As it was not satisfied with the responses provided by the Hellenic Republic, the Commission decided to bring the present action.

 The action

 Arguments of the parties

17      The Commission submits that the Hellenic Republic has infringed its obligation under Article 7(1) of Directive 2008/118 to tax excise goods at the time of their release for consumption.

18      On the basis of the observations that the Hellenic Republic submitted to it during the pre-litigation procedure, the Commission offers the following summary of the facts:

–        KAE operates filling stations which function as tax warehouses at the border posts of Kipoi Evrou, Kakavia and Evzonoi;

–        at those filling stations third-country nationals may purchase excise-exempted fuel to fill up their vehicles registered in third countries before leaving the territory of the European Union by crossing the land border;

–        under a simplified export procedure, the competent customs authorities monitor and certify fuels leaving the EU;

–        the entire procedure, including the sale of tax-exempted petroleum products, is governed by several ministerial orders issued between 2003 and 2005.

19      The Commission considers that, in so far as the filling stations concerned constitute ‘tax warehouses’ within the meaning of Article 4(11) of Directive 2008/118, petroleum products stored there are subject to a duty suspension arrangement, with the result that the collection of the excise duty is suspended. Excise duty becomes chargeable at the moment the fuel tanks of motor vehicles are filled, because the fuel departs, on Greek territory, from the duty suspension arrangement.

20      That interpretation follows from Article 7(2)(a) which provides that ‘the departure of excise goods, including irregular departure, from a duty suspension arrangement’ constitutes a release for consumption. It is apparent from Article 7(1) that the term ‘release for consumption’ denotes the time at which the excise duty becomes chargeable.

21      In accordance with those provisions, the decisive time for a determination that excise duty is chargeable is the ‘release for consumption’ and not the consumption itself. It follows that the chargeability is not dependant on the distance between a point of sale and the external border of a Member State. Equally, the length of time a product released for consumption remains on the territory of a Member State is of no relevance.

22      According to the Commission, it is clear from recitals 2 and 8 of Directive 2008/118 that the concepts of ‘departure’ and ‘release for consumption’ are to be interpreted in the same way in all Member States to ensure the proper functioning of the internal market.

23      Furthermore, the argument that filling the fuel tanks of vehicles amounts to an ‘export transaction’, once the petroleum products are subject to a ‘customs export arrangement’ by means of a simplified export procedure is irrelevant. The departure of those products from the duty suspension arrangement within the meaning of Article 7(2) of that Directive necessarily constitutes a release for consumption.

24      The Commission argues that Articles 17 to 31 of Directive 2008/118, governing ‘movement of excise goods under suspension of excise duty’, bear out that interpretation. It is only once the conditions established by those articles have been met that excise goods are covered by the duty suspension arrangement. In all other cases, excise duty becomes chargeable at the time such products leave a tax warehouse.

25      The simplified export procedure implemented by the Greek authorities does not meet those conditions as it does not actually fall within the scope of any of the provisions of Directive 2008/118.

26      The Hellenic Republic argues that the reasoned opinion and the application are inconsistent with one another. Whilst in the reasoned opinion it was argued that the excise duties arose when the duty suspension arrangement actually ceased, in the application, the actual consumption is no longer decisive. This is evidenced by the application itself in so far as the Commission refers to both ‘release for consumption’ and ‘actual release for consumption’.

27      As regards the substance, the Hellenic Republic argues that the sale of petroleum products by KAE at filling stations at the border posts of Kipoi Evrou, Kakavia and Evzonoi does not result in the excise duty becoming chargeable in cases since the fuels, at the time they are departing from the duty suspension arrangement, are immediately placed under a ‘customs export arrangement’ through a ‘simplified procedure’. As a result, both the rules of Directive 2008/118 and the degree of harmonisation thereby envisaged are respected.

28      In the context of a ‘customs suspensive arrangement’, the customs authorities are responsible for monitoring tax warehouses and the departure of products from the duty suspension arrangement. They also see to it that export formalities are met, including the simplified export declaration, for the purposes of Articles 282 and 286 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), and they monitor the actual export of fuels outside of the customs territory of the Union, pursuant to Article 161 of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1992 L 302, p. 1). Therefore, the sale of those products, their departure from the duty suspension regime and their export form part of a single procedure.

29      The Hellenic Republic submits that Directive 2008/118 does not preclude a Member State from establishing such a ‘simplified export procedure’ for the following reasons.

30      First, the simplified procedures provided for in Articles 30 and 31 of Directive 2008/118 may be applied mutatis mutandis.

31      Secondly, due to the fact that the ‘export arrangement’ immediately follows the duty suspension arrangement, Article 7(2)(a) of Directive 2008/118 does not apply here. That provision covers only the outright departure of excise goods from a duty suspension arrangement.

32      Thirdly, Article 7 of Directive 2008/118 does not entail full harmonisation, with the result that release for consumption is not the only possible outcome to the departure of a product from a duty suspension arrangement. Article 17(1)(a)(iii) of Directive 2008/118 acknowledges the possibility for Member States to place products previously in a duty suspension arrangement into an export arrangement without excise duty becoming chargeable. Thus the ‘simplified export procedure’ at issue does not affect the harmonisation measures provided for in that directive. Moreover, unlike Regulation No 2913/92 the gaps in that directive mean that Member States have considerable latitude.

33      Fourthly and finally, Article 17(1)(a)(iii) and Article 25 of Directive 2008/118 do not apply, since the petroleum products concerned in the present case leave the customs territory of the Union directly, and are not moved under a duty suspension arrangement. In accordance with Article 269(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), the supply of petroleum products is to take place under the export procedure provided for in that article. It is clear from that provision that ‘Union goods to be taken out of the customs territory of the Union shall be placed under the export procedure’. Therefore, there would be no justification for levying excise duty.

34      Moreover, the simplified export procedure ensures that the petroleum products are not consumed on Greek territory but rather exported to a third country. For reasons of common sense, the fact that the vehicles must travel a short distance between filling stations and the actual borders should not call that conclusion into question.

35      That distance would be easily accounted for by the remaining fuel in the fuel tanks of the vehicles before re-fuelling and it would thus be disproportionate to charge excise duty. In addition, as is apparent from paragraphs 25 to 33 of the judgment of 14 November 1985, Neumann (299/84, EU:C:1985:463), in the present case the application of the rules of Directive 2008/118 would be disproportionate by virtue of their general nature and if the Union legislator had legislated for this specific case, it would have done so on the basis of fairness.

 Findings of the Court

 Admissibility

36      In claiming that the reasoned opinion and the application are not consistent with one another, the Hellenic Republic seeks to prove that the present action is inadmissible.

37      It is clear, as the Commission contends, from the letter of formal notice, from the reasoned opinion and from the application that the Commission classified the fuelling of vehicles at filling stations operating as tax warehouses as a ‘departure’ of excise goods from a duty suspension arrangement within the meaning of Directive 2008/118. The use of the term ‘actual’ cannot be considered to create any confusion in this respect.

38      The Hellenic Republic was thus perfectly capable of grasping the purport of the infringements of EU law complained of and its plea of inadmissibility should be rejected.

 Substance

39      The Hellenic Republic claims that the sale of petroleum products by KAE at filling stations at the border posts of Kipoi Evrou, Kakavia and Evzonoi does not result in the excise duty becoming chargeable since the fuels, at the moment they depart from the duty suspension arrangement, are immediately placed under a ‘customs export arrangement’.

40      It should be recalled that it is apparent from Article 7(1) of Directive 2008/118 that excise duty becomes chargeable at the time of release for consumption and in the Member State where this occurs. In accordance with Article 7(2)(a) of Directive 2008/118, ‘release for consumption’ is to be understood as the departure of excise goods, including irregular departure, from a duty suspension arrangement.

41      Under Article 17(1)(a)(i) of Directive 2008/118, excise goods may be moved under a duty suspension arrangement within the territory of the European Union, inter alia, from a tax warehouse in one Member State to a tax warehouse in another Member State. It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, although the chargeable event for taxation purposes has already taken place. Consequently, as regards the excise goods, that arrangement postpones the chargeability of excise duty until one of the conditions of chargeability is met (see, to that effect, judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 22).

42      The departure of such goods, including irregular departure, from that arrangement is considered as a ‘release for consumption’ pursuant to Article 7(2)(a) of Directive 2008/118 (judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 23).

43      Furthermore, the Court has already held that ‘release for consumption’ within the meaning of Article 7 of Directive 2008/118 occurs at the time excise goods physically leave a duty suspension arrangement (see, to that effect, judgment of 2 June 2016, Polihim-SS, C‑355/14, EU:C:2016:403, paragraphs 53 and 55).

44      As the Commission has pointed out, it is apparent from recital 8 of Directive 2008/118 that it is necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, and that Directive 2008/118 thus determines, at the European Union level, when excise goods are released for consumption.

45      It follows that the concepts of ‘departure’ and ‘release for consumption’ which determine the time excise duty becomes chargeable should be interpreted in a uniform manner in all Member States.

46      In the present case, it is not in dispute that the petroleum products concerned are excise goods. Their departure from the duty suspension arrangement at the time vehicles are re-fuelled on the territory of the Hellenic Republic results in their release for consumption. Since, in accordance with Article 7(1), excise duty becomes chargeable at that precise time, the Greek legislation allowing the supply of those products without levying excise duty is contrary to that provision.

47      The placing of excise goods, after their departure from a duty suspension arrangement, under a ‘customs export arrangement’ as described by the Hellenic Republic, does not alter that finding.

48      It is clear, first, from the scheme of Directive 2008/118, and from the provisions concerning the definition and operation of tax warehouses and suspension arrangements, such as Article 4(7) and (11), Article 15(2) and Articles 16 and 17, that an excise good which is held outside a suspension arrangement must at some point and in some way have been released for consumption within the meaning of Article 7(1) of Directive 2008/118 (see, by analogy, judgment of 5 April 2001, Van de Water, C‑325/99, EU:C:2001:201, paragraph 34).

49      Accordingly, since the re-fuelling of vehicles such as those at issue in the present case must be characterised as a ‘departure’ and, consequently, as a ‘release for consumption’ within the meaning of Article 7 of Directive 2008/118, the fact that the fuels are subsequently or even concurrently placed under a ‘customs export procedure’ has no bearing on the chargeability of the excise duty (see, by analogy, judgment of 29 April 2010, Dansk Transport og Logistik, C‑230/08, EU:C:2010:231, paragraphs 80 and 81).

50      In the light of those considerations, there is no need to examine the Hellenic Republic’s line of argument seeking to prove that its ‘customs export procedure’ is in accordance with Regulation No 2913/92, Regulation No 2454/93 and Regulation No 952/2013.

51      It is also not in dispute that the national legislation relating to the implementation of the sale of the petroleum products concerned does not fulfil the requirements of Directive 2008/118 which allow either the sale of excise goods to be exempted from excise duty or the export of such products under a duty suspension arrangement.

52      As regards, in particular, Article 14 of Directive 2008/118, the Hellenic Republic does not dispute that the option provided therein to exempt from payment of excise duty excise goods supplied by tax-free shops and carried away in the personal luggage of travellers to a third territory or to a third country does not apply here.

53      Nor does the Hellenic Republic dispute that Articles 17 to 31 of Directive 2008/118 which govern the ‘movement of excise goods under suspension of excise duty’ do not apply in the present case.

54      It accepts, in particular, that the conditions laid down in Article 17(1)(a)(iii) of that Directive, which provides that ‘excise goods may be moved under a duty suspension arrangement within the territory of the Community ... from a tax warehouse to a place where the excise goods leave the territory of the Community, as referred to in Article 25(1)’, has not been met.

55      Neither is it disputed that ‘the customs export procedure’ established by the Hellenic Republic is not covered by Articles 30 and 31 of Directive 2008/118 since they govern only the simplified procedures for the movements of excise goods under a duty suspension arrangement which take place on the territory of a single Member State or on the territories of two or more Member States.

56      The argument that the principle of proportionality requires an interpretation of Directive 2008/118 that allows the sale of tax-exempted petroleum products in the circumstances of this case should be dismissed as unfounded. Such an interpretation would authorise, praeter legem, a derogation from Article 7 of Directive 2008/118 and would thwart the goal of harmonisation of the conditions for charging excise duty, the significance of which for the proper functioning of the internal market was recalled in paragraphs 44 and 45 above.

57      Having regard to all of the foregoing considerations, it must be held that the Commission’s action is well founded.

58      It must therefore be held that, by adopting and retaining in force legislation allowing the sale of tax-exempted petroleum products by the filling stations of KAE at the border posts of Kipoi Evrou, Kakavia and Evzonoi which are all situated in regions bordering third countries, namely the Republic of Turkey, the Republic of Albania and the former Yugoslav Republic of Macedonia, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of Directive 2008/118.

 Costs

59      Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission applied for costs and the Hellenic Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby:

1.      Declares that, by adopting and retaining in force legislation allowing the sale of tax-exempted petroleum products by the filling stations of Katastimata Aforologiton Eidon AE at the border posts of Kipoi Evrou (Greece), Kakavia (Greece) and Evzonoi (Greece) which are all situated in regions bordering third countries, namely the Republic of Turkey, the Republic of Albania and the former Yugoslav Republic of Macedonia, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC;

2.      Orders The Hellenic Republic to pay the costs.

[Signatures]

*      Language of the case: Greek.

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