On January 28, 2016 the Court of Justice of the European Union (CJEU) judged in Case C‑64/15 BP Europa SE versus Hauptzollamt Hamburg-Stadt, (ECLI:EU:C:2016:62).
· Is Article 10(4) of [Directive 2008/118] to be interpreted as meaning that the conditions which it lays down are fulfilled only in the case where the total quantity of goods moving under a duty suspension arrangement has not arrived at their destination, or can that rule, account being taken of Article 10(6) of [Directive 2008/118], also be applied to cases in which only a portion of the excise goods moving under a duty suspension arrangement fails to arrive at the destination?
· Is Article 20(2) of [Directive 2008/118] to be interpreted as meaning that the movement of excise goods under a duty suspension arrangement does not end until the consignee has fully unloaded the means of transport which has arrived at his premises, with the result that a deficit detected during unloading is deemed to have been detected while the movement was still ongoing?
· Does Article 10(2), in conjunction with Article 7(2)(a), of [Directive 2008/118] preclude a national provision under which the competence of the Member State of destination to levy duty (apart from being excluded in the cases provided for in Article 7(4) of [that directive]) is made subject only to the detection of the occurrence of an irregularity and the impossibility of determining the place where that irregularity occurred, or is it also necessary to establish that, by being removed from the duty suspension arrangement, the excise goods have been released for consumption?
· Is Article 7(2)(a) of [Directive 2008/118] to be interpreted as meaning that, where an irregularity as provided for in Article 10(2) of [Directive 2008/118] has been detected, excise goods moved under a duty suspension arrangement which have not arrived at the destination must be assumed to have been released for consumption in all cases in which the proof of total destruction or irretrievable loss of the missing quantity required under Article 7(4) of [Directive 2008/118] cannot be furnished?
The dispute in the main proceedings and the questions referred for a preliminary ruling
· In January 2011, BP Europa dispatched 2.4 million litres of gas oil by ship under Combined Nomenclature code 2710 19 41 from a tax warehouse in the Netherlands to a tax warehouse in Germany. The transport was carried out as a movement of excise goods under a duty suspension arrangement, as provided for in Articles 17 to 31 of Directive 2008/118.
· At the destination, after delivery of the gas oil, the owner of the tax warehouse in Germany found that he had received an amount 4 854 litres less than that stated on the electronic administrative document drawn up for application of the suspensive procedure, that is to say, 0.202% of the declared amount, and notified the customs authorities thereof in his acknowledgement of receipt.
· By decision of 16 January 2012, the customs office of the city of Hamburg levied energy tax of EUR 24.93 on the amount of missing gas oil which exceeded the 0.2% tolerance threshold generally allowed by the Germany authority.
· The Finanzgericht Hamburg (Finance Court, Hamburg) dismissed the action brought by BP Europa against the imposition of that tax. It held that the missing amount of gas oil was due to an irregularity deemed to have occurred in the customs territory and resulting in the release for consumption of that product. The Bundesfinanzhof (Federal Finance Court), seised of an appeal on a point of law, asks whether that legal assessment of the dispute arising from the application of the national law which transposed Directive 2008/118 meets the requirements of that directive, in particular those concerning the conditions for the levying of excise duty and determination of the Member State which is entitled to levy that duty, when only part of the goods in circulation under the duty suspension arrangement failed to arrive at its destination.
· In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
(1) Is Article 10(4) of [Directive 2008/118] to be interpreted as meaning that the conditions which it lays down are fulfilled only in the case where the total quantity of goods moving under a duty suspension arrangement has not arrived at their destination, or can that rule, account being taken of Article 10(6) of [Directive 2008/118], also be applied to cases in which only a portion of the excise goods moving under a duty suspension arrangement fails to arrive at the destination?
(2) Is Article 20(2) of [Directive 2008/118] to be interpreted as meaning that the movement of excise goods under a duty suspension arrangement does not end until the consignee has fully unloaded the means of transport which has arrived at his premises, with the result that a deficit detected during unloading is deemed to have been detected while the movement was still ongoing?
(3) Does Article 10(2), in conjunction with Article 7(2)(a), of [Directive 2008/118] preclude a national provision under which the competence of the Member State of destination to levy duty (apart from being excluded in the cases provided for in Article 7(4) of [that directive]) is made subject only to the detection of the occurrence of an irregularity and the impossibility of determining the place where that irregularity occurred, or is it also necessary to establish that, by being removed from the duty suspension arrangement, the excise goods have been released for consumption?
(4) Is Article 7(2)(a) of [Directive 2008/118] to be interpreted as meaning that, where an irregularity as provided for in Article 10(2) of [Directive 2008/118] has been detected, excise goods moved under a duty suspension arrangement which have not arrived at the destination must be assumed to have been released for consumption in all cases in which the proof of total destruction or irretrievable loss of the missing quantity required under Article 7(4) of [Directive 2008/118] cannot be furnished?
The CJEU ruled as follows:
1. Article 20(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as meaning that the movement of excise goods under a duty suspension arrangement ends, for the purpose of that provision, in a situation such as that in the main proceedings, 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.
2. The combined provisions of Articles 7(2)(a) and 10(2) of Directive 2008/118 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, such as that at issue in the main proceedings, 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, such an omission cannot prevent the application of that national provision to the discovery of shortages, which of necessity entail such a release for consumption.
3. Article 10(4) of Directive 2008/118 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.
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Did you know that in our section CJEU Rulings we have made a selection of rulings of the CJEU? We have organized these rulings based on the subject they relate to (e.g. Freedom of establishment, Free movement of capital, Indirect taxes on the raising of capital, etc).
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