CELEX: 62008CJ0550
Directive 92/12/EEC
Products subject to excise duty
Importation of raw tobacco not subject to excise duty under the inward processing procedure
Processing into cut tobacco
Movement between Member States
Accompanying document

This reference for a preliminary ruling concerns the interpretation of the first indent of the first subparagraph of Article
5(2) and Article 15(4) 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 products (OJ 1992 L 76, p. 1), in the version in force
at the time of the facts in the main proceedings (‘Directive 92/12’).
The reference has been made in the course of proceedings between British American Tobacco (Germany) GmbH (‘BAT’) and Hauptzollamt
Schweinfurt (Principal Customs Office, Schweinfurt) relating to two decisions of the Hauptzollamt imposing tobacco excise
duties on consignments of cut tobacco sent from Germany to France.

Legal context

Directive 92/12
The 10th and 15th recitals in the preamble to Directive 91/12 are worded as follows:
‘… movement from the territory of one Member State to that of another may not give rise to checks liable to impede free movement
within the Community; … for the purposes of chargeability it is nevertheless necessary to know of the movements of products
subject to excise duty; … provision should therefore be made for an accompanying document for such products;
…
… there is no need for the accompanying document to be used when the products subject to excise duties are moved under a Community
customs procedure other than release for free circulation …’
Article 3(1) Directive 92/12 provides:
‘This Directive shall apply at Community level to the following products as defined in the relevant directives:
…
–        manufactured tobacco.’
Article 4(c) of the Directive defines the concept of ‘suspension arrangement’ in the following terms:
‘
suspension arrangement
: a tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended’.
Article 5 of the Directive provides:
‘1.      The products referred to in Article 3(1) shall be subject to excise duty at the time of their production within the territory
of the Community as defined in Article 2 or of their importation into that territory.
“Importation of a product subject to excise duty” shall mean the entry of that product into the territory of the Community
…
However, where the product is placed under a Community customs procedure on entry into the territory of the Community, importation
shall be deemed to take place when it leaves the Community customs procedure.
2.      Without prejudice to national and Community provisions regarding customs matters, when products subject to excise duty:
–        are coming from, or going to, third countries … and are placed under one of the customs suspensive procedures listed in Article
84(1)(a) of [Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302,
p. 1); “the Community Customs Code”], …
…
the excise duty on them shall be deemed to be suspended.
…’
Article 6(1) of Directive 92/12 defines in the following terms the conditions under which excise duty becomes chargeable:
‘Excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject
to excise duty in accordance with Article 14(3).
Release for consumption of products subject to excise duty shall mean:
(a)      any departure, including irregular departure, from a suspension arrangement;
(b)      any manufacture, including irregular manufacture, of those products outside a suspension arrangement;
(c)      any importation of those products, including irregular importation, where those products have not been placed under a suspension
arrangement.’
Article 15(4) of Directive 92/12 states:
‘… the liability of the authorised warehousekeeper of dispatch and, if the case arises, that of the transporter may only be
discharged by proof that the consignee has taken delivery of the products, in particular by the accompanying document referred
to in Article 18 under the conditions laid down in Article 19.’
Article 18 of Directive 92/12 provides:
‘1.      Notwithstanding the possible use of computerised procedures, all products subject to excise duty moving under duty-suspension
arrangements between Member States … shall be accompanied by a document drawn up by the consignor. This document may be either
an administrative document or a commercial document. The form and content of this document, and the procedure to be followed
where its use is objectively inappropriate, shall be established in accordance with the procedure laid down in Article 24.
…
4.      Paragraph 1 shall not apply when products subject to excise duty move under the conditions referred to in Article 5(2).
…’
Article 19 of Directive 92/12 provides:
‘1.      The tax authorities of the Member States shall be informed by traders of deliveries dispatched or received by means of the
document or a reference to the document specified in Article 18. This document shall be drawn up in quadruplicate: …
…
The Member States of destination may stipulate that the copy to be returned to the consignor for discharge should be certified
or endorsed by its national authorities. Member States applying this provision must inform the Commission, which shall in
turn inform the other Member States thereof.
…
2.      When products subject to excise duty move under the duty-suspension arrangements to an authorised warehousekeeper or to a
registered or non-registered trader, a copy of the accompanying administrative document or a copy of the commercial document,
duly annotated, shall be returned by the consignee to the consignor for discharge, at the latest within 15 days following
the month of receipt by the consignee.
…
3.      The duty-suspension arrangements as defined in Article 4(c) shall be discharged by the placing of the products subject to
excise duty under one of the arrangements referred to in Article 5(2) and subject to the conditions referred to therein, after
the consignor has received the copy to be returned of the accompanying administrative document or a copy of the commercial
document, duly annotated, in which it must be noted that the products have been placed under such an arrangement.
…’

The Community Customs Code
The Community Customs Code provides in Article 59(1) that all goods intended to be placed under a customs procedure are to
be covered by a declaration for that customs procedure.
Article 64(1) of the Code provides:
‘Subject to Article 5, a customs declaration may be made by any person who is able to present the goods in question or to
have them presented to the competent customs authority, together with all the documents which are required to be produced
for the application of the rules governing the customs procedure in respect of which the goods were declared.’
According to Article 84(1) of the Community Customs Code:
‘In Articles 85 to 90:
(a)      where the term “procedure” is used, it is understood as applying, in the case of non-Community goods, to the following arrangements:
…
–        inward processing in the form of a system of suspension;
…
(b)      where the term “customs procedure with economic impact” is used, it is understood as applying to the following arrangements:
…
–        inward processing;
…’
Article 85 of the Community Customs Code provides that the use of any customs procedure with economic impact is to be conditional
upon authorisation being issued by the customs authorities. Article 86 of the Code sets out the conditions governing that
authorisation in the following terms:
‘Without prejudice to the additional special conditions governing the procedure in question, the authorisation referred to
in Article 85 … shall be granted only:
–        to persons who offer every guarantee necessary for the proper conduct of the operations; [and]
–        where the customs authorities can supervise and monitor the procedure without having to introduce administrative arrangements
disproportionate to the economic needs involved.’
Article 87 of the Community Customs Code states:
‘1.      The conditions under which the procedure in question is used shall be set out in the authorisation.
2.      The holder of the authorisation shall notify the customs authorities of all factors arising after the authorisation was granted
which may influence its continuation or content.’
Article 88 of the Code provides:
‘The customs authorities may make the placing of goods under a suspensive arrangement conditional upon the provision of security
in order to ensure that any customs debt which may be incurred in respect of those goods will be paid.
…’
According to Article 114 of the Code:
‘1.      Without prejudice to Article 115, the inward processing procedure shall allow the following goods to be used in the customs
territory of the Community in one or more processing operations:
(a)      non-Community goods intended for re-export from the customs territory of the Community in the form of compensating products,
without such goods being subject to import duties or commercial policy measures;
…
2.      The following expressions shall have the following meanings:
(a)      suspension system: the inward processing relief arrangements as provided for in paragraph 1(a);
…
(c)      processing operations:
…
–        the processing of goods,
…
(d)      compensating products: all products resulting from processing operations;
…’

National law
Paragraph 18(3) of the Tabaksteuergesetz (Law on tobacco duty,
Bundesgesetzblatt
, 1992, part I, p. 2150) provides that, where tobacco products have been dispatched under an intra-Community tax transit operation
from a tax warehouse in the fiscal territory to a tax warehouse, an authorised consignee or a customs office at the point
of exit in another Member State, and the consignor does not produce proof, within a period of four months from the date of
commencement of dispatch, that those products arrived at the place of destination, those products will be deemed to have been
removed from the duty-suspension arrangements within the fiscal territory.
Point 1 of the first subparagraph of Paragraph 21 of that Law provides that, where manufactured tobacco products are placed
under a customs procedure, the provisions relating to customs are to apply
mutatis mutandis
to the creation and extinction of liability to duty.
Paragraph 23(2) of the Verordnung zur Durchführung des Tabaksteuergesetzes (Regulation on the implementation of the Tabaksteuergesetz,
Bundesgesetzblatt
1993, part I, p. 1738) states that the abovementioned Paragraph 21 does not apply to inward processing, under customs duty
suspension, for the purpose of manufacturing tobacco products.

The dispute in the main proceedings and the questions referred
Under an inward processing procedure in the form of a system of suspension, BAT imports raw tobacco from non-member countries
into Germany, where it processes it into cut tobacco.
In respect of that raw tobacco, which is a product not subject to excise duty, BAT has, with effect from 1 July 2002, benefited
from a single authorisation, granted by the United Kingdom customs authorities, to implement an inward processing procedure
in the form of a system of suspension valid for all Member States. That authorisation permits it, for consignments of cut
tobacco sent from Germany to other Member States, to use its delivery notes (‘IPR-Delivery Document’) in place of the accompanying
document required in principle, pursuant to Article 18(1) of Directive 92/12, for the movement between Member States of goods
subject to excise duty under a suspension procedure.
During January and April 2003, BAT dispatched consignments of cut tobacco from its manufacturing plant in Germany to a tax
warehouse of a company established in France. That latter company certified receipt on the abovementioned delivery notes,
which indicated that they were also being used as accompanying documents.
By decisions of 27 May 2003 and 20 August 2003, the German Hauptzollamt sought payment from BAT of excise duty totalling EUR
144 550 in respect of those consignments of tobacco on the ground that, as it had not provided the accompanying document certified
by the French customs authorities, BAT had failed to demonstrate that those consignments had arrived in the tax warehouse
in France.
After its complaints had been rejected, BAT challenged those decisions in an action brought before the Finanzgericht München
(Finance Court, Munich).
The national court takes the view that resolution of the dispute before it requires it, first of all, to ascertain whether
the products at issue are in circulation under the conditions referred to in the first indent of the first subparagraph of
Article 5(2) of Directive 92/12 since, in that situation, Article 18(4) of that directive permits, by way of derogation, such
products to move between the Member States without an accompanying document. The national court wishes to ascertain, in particular,
whether products subject to excise duty, such as those in the main proceedings, which were manufactured in a Member State
under inward processing arrangements from products which were not subject to excise duty when they were imported into the
Community under that customs procedure can be regarded as products subject to excise duty coming from third countries within
the meaning of the first indent of the first subparagraph of Article 5(2) of Directive 92/12.
The national court also wishes to establish whether, if the Court should take the view that the conditions referred to in
the first indent of the first subparagraph of Article 5(2) of Directive 92/12 are not satisfied, Article 15(4) of that directive
must be interpreted as meaning that proof that the consignee has taken delivery of the goods subject to excise duty may also
be provided otherwise than by means of the accompanying document.
In that context, the Finanzgericht München decided to stay the proceedings and to refer the following questions to the Court
for a preliminary ruling:
‘1.      Must the first indent of the first subparagraph of Article 5(2) of [Directive 92/12] be interpreted as meaning that non-Community
goods subject to excise duty which have been placed under an inward processing procedure within the terms of Article 84(1)(a)
of [the Community Customs Code] are to be deemed to be subject to duty-suspension arrangements even if they are produced,
under an inward processing procedure, from goods which are not subject to excise duty only after the importation of those
goods and therefore, in accordance with the 15th recital in the preamble to Directive 92/12 …, when they are being moved there
is no need for the accompanying document referred to in Article 18(1) of Directive 92/12 … to be used?
2.      If the first question is to be answered in the negative: must Article 15(4) of Directive 92/12 … be interpreted as meaning
that proof that the consignee has taken delivery of the goods may also be provided otherwise than by means of the accompanying
document referred to in Article 18 of Directive 92/12 …?’

Consideration of the questions referred
The first question
By its first question, the national court asks, in essence, whether the first indent of the first subparagraph of Article
5(2) of Directive 92/12 must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco)
which are manufactured from products not subject to excise duty (such as raw tobacco) and imported into the Community under
the inward-processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that
provision, even though they have become products subject to excise duty only by virtue of having been processed within Community
territory, with the result that they can move between Member States without the administrative authorities being entitled
to insist on production of the administrative or commercial document provided for in Article 18(1) of Directive 92/12.
It should be borne in mind that Article 18(1) of Directive 92/12 provides that all products subject to excise duty moving
under duty-suspension arrangements between Member States must be accompanied by an accompanying document.
Article 18(4), however, sets aside that obligation when the products are in circulation under the conditions referred to in
the first indent of the first subparagraph of Article 5(2) of that directive.
The first indent of the first subparagraph of Article 5(2) of Directive 92/12 refers to, inter alia, cases where products
subject to excise duty are coming from, or going to, third countries and are placed under one of the customs suspensive procedures
listed in Article 84(1)(a) of the Community Customs Code. In those circumstances, the first indent of the first subparagraph
of Article 5(2) provides that the excise duty on those products is deemed to be suspended.
In the case in the main proceedings, it is common ground, first, that the products at issue in those proceedings are manufactured
tobacco products, which are subject to excise duty pursuant to Article 3 of Directive 92/12, and, second, that they are in
circulation under the inward processing procedure in the form of the system of suspension referred to in the third indent
of Article 84(1)(a) of the Community Customs Code.
By contrast, the first question referred by the national court involves an assessment as to whether products such as those
at issue in the main proceedings must be regarded as products subject to excise duty coming from, or going to, third countries,
within the meaning of the first indent of the first subparagraph of Article 5(2) of Directive 92/12, even though they enter
into the category of products subject to excise duty only because they have been processed in a Member State.
In that regard, it must be borne in mind that, according to settled case-law, in interpreting a provision of Community law
it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the
rules of which it is part (see, inter alia, Case C‑19/08
Petrosian and Others
[2009] ECR I‑495, paragraph 34).
In the present case, the wording of the first indent of the first subparagraph of Article 5(2) of Directive 92/12 provides
no useful assistance in answering the question referred, with the result that that provision must be interpreted having regard
to its context and in the light of the objective pursued by that directive, in particular by Article 18(4) thereof, which,
in the case where the conditions laid down in the first indent of the first subparagraph of Article 5(2) are fulfilled, sets
aside the obligation relating to the accompanying document.
It must be pointed out in that regard that the 10th recital in the preamble to Directive 92/12 states that, although the objective
pursued by the Directive is to prevent movement of a product from one Member State to another giving rise to checks liable
to impede free movement within the Community, it is nevertheless necessary, for the purposes of chargeability, to be aware
of the movements of products subject to excise duty, and that those purposes justify the requirement of an accompanying document
for such products. However, the 15th recital states that such a requirement is no longer justified when those products are
moving under a Community customs procedure such as inward processing in the form of a system of suspension.
Directive 92/12 is thus intended to limit the requirement relating to the accompanying document to those cases alone in which
that formality is genuinely necessary in order to ensure supervision of the movements of products subject to excise duty and
compliance with the rules under which such duty is chargeable.
It follows that Directive 91/12, through the reference in Article 18(4) to the first indent of the first subparagraph of Article
5(2), exempted the consignor from the requirement relating to the accompanying document in the case where products subject
to excise duty are under a Community customs procedure and where that procedure, under its own rules, permits supervision
of the movement of the products at issue equivalent to that of an accompanying document in such a way as to ensure compliance
with the rules relating to payment of excise duty.
Under those circumstances, in order to determine whether products such as those at issue in the main proceedings come within
the scope of the first indent of the first subparagraph of Article 5(2) of Directive 91/12 and may therefore move without
the appropriate accompanying document for products subject to excise duty, it is necessary to establish whether the legal
rules applicable to products of non-Community origin which are not subject to excise duty and which are imported into the
Community under an inward processing procedure in the form of a system of suspension ensure, with respect to the movement
of such products, supervision equivalent to that which results from the requirement of an accompanying document in the case
where the processing which those products have undergone within Community territory has brought them within the category of
products subject to excise duty.
In that regard, it must be pointed out that the obligations arising from the inward processing procedure in the form of a
system of suspension, designed to ensure supervision of products under that customs procedure, apply in an identical manner
irrespective of whether the products concerned were already subject to excise duty at the time when they were imported into
the Community under that procedure or became subject to such duty only after they had been manufactured in the Community from
products which were not subject to excise duty and which were imported into the European Union under that procedure.
That is true, in particular, with regard to the obligations referred to in Articles 59 and 64 of the Community Customs Code,
which require a declaration for the purpose of placing goods under a customs procedure, acceptance of which gives rise to
customs supervision.
The same is true of the obligations referred to in Articles 85 to 88 of the Customs Code, which require an authorisation for
the use of any customs procedure with economic impact and allow the competent authorities to lay down, in that authorisation,
all relevant conditions for correct implementation of that procedure, particularly with regard to the ‘proper conduct of the
operations’, the supervision and monitoring of that procedure and the provision of securities.
Consequently, the view must be taken that the first indent of the first subparagraph of Article 5(2) of Directive 92/12 applies
not only to products coming from third countries which are subject to excise duty but also to products such as those at issue
in the main proceedings, which are manufactured from non-Community products that are not subject to excise duty and are imported
into the Community under an inward processing procedure in the form of a system of suspension.
Under those circumstances, there is no need to determine whether such products must also be regarded as products going to
third countries, within the meaning of the first indent of the first subparagraph of Article 5(2) of Directive 92/12.
In the light of the foregoing, the answer to the first question is that the first indent of the first subparagraph of Article
5(2) of Directive 92/12 must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco)
which are manufactured from products not subject to excise duty (such as raw tobacco) and imported into the Community under
the inward-processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that
provision, even though they have become products subject to excise duty only by virtue of having been processed within Community
territory, with the result that they can move between Member States without the administrative authorities being entitled
to insist on production of the administrative and commercial document provided for in Article 18(1) of that directive.
The second question
In view of the answer to the first question, there is no need to answer the second question.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
The first indent of the first subparagraph of Article 5(2) 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 products must be interpreted
as meaning that products subject to excise duty (such as manufactured tobacco) which are manufactured from products not subject
to excise duty (such as raw tobacco) and imported into the Community under the inward-processing procedure are to be deemed
to be subject to duty-suspension arrangements, within the meaning of that provision, even though they have become products
subject to excise duty only by virtue of having been processed within Community territory, with the result that they can move
between Member States without the administrative authorities being entitled to insist on production of the administrative
or commercial document provided for in Article 18(1) of that directive.
[Signatures]
*
Language of the case: German.