CELEX: 62013CJ0349
Reference for a preliminary ruling
Excise duties
Directives 92/12/EEC and 2008/118/EC
Scope
Mineral oils and energy products
Lubricating oils used for purposes other than as motor fuels or as heating fuels
Not included
Excise duty levied on the consumption of energy products, imposed by a Member State in accordance with the harmonised excise duty arrangements
Concept of ‘formalities connected with the crossing of frontiers’
Article 110 TFEU
Shorter payment deadline in certain cases for intra-Community purchases than for products acquired on the domestic market

This request for a preliminary ruling concerns the interpretation of Article 3(3) 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
) and Article 1(3) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12 (
OJ 2009 L 9, p. 12
).
The request has been made in proceedings between the Minister Finansów (Minister for Finance; ‘the Minister’) and Oil Trading Poland sp. z o.o. (‘OTP’) regarding the imposition of excise duty in Poland on lubricating oils used for purposes other than as motor fuels or as heating fuels.
Legal context
EU law
Article 3 of Directive 92/12 provided:
‘1.   This Directive shall apply at Community level to the following products as defined in the relevant Directives:
—
mineral oils,
…
2.   The products listed in paragraph 1 may be subject to other indirect taxes for specific purposes, provided that those taxes comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned.
3.   Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.
…’
Directive 92/12 was repealed, with effect from 1 April 2010, by Directive 2008/118.
Recitals 4 and 5 in the preamble to Directive 2008/118 state:
‘(4)
Excise goods may be subject to other indirect taxes for specific purposes. …
(5)
In order to ensure free movement, taxation of goods other than excise goods should not give rise to formalities connected with the crossing of frontiers.’
According to Article 1 of that directive:
‘1.   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
)];
…
2.   Member States may levy other indirect taxes on excise goods for specific purposes …
3.   Member States may levy taxes on:
(a)
products other than excise goods;
…
However, the levying of such taxes may not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’
Article 34(2) of that directive provides:
‘The persons referred to in Article 33(3) shall comply with the following requirements:
(a)
before the goods are dispatched, submit a declaration to the competent authorities of the Member State of destination and guarantee payment of the excise duty;
(b)
pay the excise duty of the Member State of destination in accordance with the procedure laid down by that Member State;
(c)
consent to any checks enabling the competent authorities of the Member State of destination to satisfy themselves that the excise goods have actually been received and that the excise duty chargeable on them has been paid.
…’
Article 1 of Directive 2003/96 provides that Member States are to impose taxation on energy products and electricity in accordance with that directive.
Article 2(1), (4) and (5) of that directive is worded as follows:
‘1.   For the purposes of this Directive, the term “energy products” shall apply to products:
…
(b)
falling within CN codes 2701, 2702 and 2704 to 2715;
…
4.   This Directive shall not apply to:
…
(b)
the following uses of energy products and electricity:
—
energy products used for purposes other than as motor fuels or as heating fuels,
…
5.   References in this Directive to codes of the combined nomenclature shall be to those of Commission Regulation (EC) No 2031/2001 of 6 August 2001, amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff [(
OJ 2001 L 279, p. 1
; “the combined nomenclature”)].
…’
Lubricating oils fall within CN codes 2710 19 71 to 2710 19 99 of the combined nomenclature.
Article 20(1) of Directive 2003/96 provides that only the energy products listed in that paragraph are to be subject to the control and movement provisions of Directive 92/12. Lubricating oils falling within CN codes 2710 19 71 to 2710 19 99 do not appear in that list.
Polish law
Article 1(1) of the Law on excise duty (Ustawa o podatku akcyzowym), of 6 December 2008, in the version applicable in the dispute in the main proceedings (Dz. U. 2011, No 108, item 626; ‘the Law on excise duty’) provides:
‘This law sets out the arrangements for the levying of excise duty, hereinafter “excise”, on excise goods and motor cars, the organisation of trade in excise goods and the use of excise labels.’
Pursuant to Article 2(1)(1) of the Law on excise duty and item 27 of Annex 1 to that law laying down the list of excise goods, inter alia energy products falling within CN code 2710 are to be regarded as excise goods.
Article 86(1) of that law states:
‘The following shall be regarded as energy products within the meaning of this law:
…
(2)
products falling within CN codes 2701, 2702 and 2704 to 2715.’
Article 89(1) of that law provides:
‘Excise rates for energy products shall be as follows:
…
(11)
for lubricating oils, other oils falling within CN codes 2710 19 71 to 2710 19 99, with the exception of goods within CN code 2710 19 85 (white oils, liquid paraffin) and plastic lubricants falling within CN code 2710 19 99 — 1180,00 [Polish zlotys (PLN)] per 1000 litres.’
Article 40(6) of that law is thus worded:
‘The excise duty suspension arrangement shall also apply within national territory to excise goods other than those specified in Annex 2 to this law which are subject to an excise rate other than the zero rate, without prejudice to Articles 47(1)(1) and 47(1)(5).’
According to Article 21(1) to (3) of that law:
‘1.   Without being requested to do so by the tax authority, the taxable person shall be obliged:
…
(2)
to calculate the excise duty and pay it to the competent customs chamber
—
for monthly periods, by the 25th day of the month following the month in which the tax liability arose, unless otherwise stated in a specific provision.
2.   In case of application of the duty suspension arrangement, the taxable person, without being requested to do so by the tax administration, shall be obliged:
…
(2)
to calculate the excise and pay it to the competent customs chamber
—
for monthly periods, by the 25th day of the month following the month in which the tax liability arose as a result of termination of the duty suspension arrangement.
3.   Paragraphs 1 and 2 shall not apply:
(1)
where the taxable person is obliged to submit a simplified declaration and to calculate and pay the excise in accordance with Article 78(1)(3);
…’
Article 78(1) and (3) of that law provides:
‘1.   Where the taxable person makes, for the purposes of conducting economic activity within national territory, an intra-Community purchase of excise goods for which excise has been paid within the territory of a Member State, he shall be obliged:
(1)
before importing the excise goods into the national territory, to declare the planned intra-Community purchase to the director of the competent customs office and to guarantee payment of the excise;
(2)
to acknowledge receipt of the excise goods on the simplified accompanying document and to issue and attach to the returned simplified accompanying document a document confirming the lodging of a guarantee or payment of the excise within the national territory;
(3)
without being requested to do so by the tax authority, to submit a simplified declaration conforming to the standard model to the director of the competent customs office and to calculate the excise and pay it, within the national territory, to the competent customs chamber within 10 days from the date on which the tax liability arose;
(4)
to maintain records of intra-Community purchases of excise goods.
…
3.   Paragraphs 1(1), (3) and (4) shall apply
mutatis mutandis
to intra-Community purchases of excise goods which are not defined in Annex 2 to the Law and which are subject within the national territory to an excise rate other than the zero rate.’
The dispute in the main proceedings and the question referred for a preliminary ruling
OTP’s activity involves selling lubricating oils falling within CN codes 2710 19 71 to 2710 19 99 of the combined nomenclature, used for purposes other than as motor fuels or as heating fuels. OTP purchases those lubricating oils in intra-Community transactions and resells them in Poland.
On 10 April 2009, OTP submitted a request for interpretation of Polish tax law, in relation, in particular, to whether those lubricating oils were subject to excise duty. In his written interpretation of 23 April 2010, the director of the Bydgoszcz Tax Chamber, acting on behalf of the Minister, answered that question in the affirmative.
Ruling on an action brought against that interpretation, the Wojewódzki Sąd Administracyjny w Szczecinie (Regional Administrative Court, Szczecin) took the view that lubricating oils used for purposes other than as motor fuels or as heating fuels were not subject to harmonised European Union excise duty arrangements and that the provisions of Polish law subjecting them to excise duty should not be applied.
The Minister appealed on a point of law against that decision to the Naczelny Sąd Administracyjny (Supreme Administrative Court); that court observes that it follows from the judgment in
Fendt Italiana
(C‑145/06 and C‑146/06,
EU:C:2007:411
) that lubricating oils which are not subject to harmonised excise duty are products other than those referred to in the first indent of Article 3(1) of Directive 92/12, so that, in accordance with the first subparagraph of Article 3(3) of that directive, Member States retain the right to introduce or maintain taxes levied on those products, provided that those taxes do not give rise to border-crossing formalities.
Nevertheless, the referring court is of the view that that judgment does not provide any answer to whether a tax on the consumption of such lubricating oils may be levied in accordance with the harmonised excise duty arrangements, that is, by subjecting those products, when undergoing an intra-Community acquisition, to the same obligations and formalities as those imposed on products to which those arrangements apply.
In that regard, the referring court states that lubricating oils used for purposes other than as motor fuels or as heating fuels and originating from another Member State may be acquired under two arrangements in Poland. First, under Article 40(6) of the Law on excise duty, they may be subject to the duty suspension arrangement, which requires compliance with strict administrative formalities such as, inter alia, the granting of registered consignee status and product warehousing. According to the referring court, the opening and operation of a tax warehouse entails obligations involving significant costs; in practice, it is often impossible for smaller undertakings making intra-Community purchases of lubricating oils to perform such obligations, and the use of tax warehouse services provided by another operator also involves additional costs. Those undertakings are therefore at a disadvantage compared to ones operating in the domestic lubricating oils market.
Secondly, in accordance with Article 78(3) of the Law on excise duty, during an intra-Community acquisition of those products under the duty-paid excise procedure, they are subject to the obligations set out in Article 78(1) of that law. Referring to the judgments in
Brzeziński
(C‑313/05,
EU:C:2007:33
) and
Kalinchev
(C‑2/09,
EU:C:2010:312
), the referring court questions whether the obligations of declaring the intra-Community purchase and guaranteeing payment of the excise duty before import are to be regarded as formalities connected with the crossing of frontiers for the purposes of Article 3(3) of Directive 92/12 and the second subparagraph of Article 1(3) of Directive 2008/118. It has doubts as to whether it should be considered that those obligations aim to ensure payment of the excise duty, in so far as that aim may be achieved through compliance with other obligations laid down in Article 78(1) of the Law on excise duty, namely the obligations of submitting a simplified declaration, calculating the excise duty and paying it within 10 days from when the tax obligation arose and of maintaining records of intra-Community acquisitions of excise goods.
The referring court also notes that, pursuant to Articles 21(1)(2) and 78(1)(3) of the Law on excise duty, the deadlines for paying the excise duty differ according to whether the lubricating oils are acquired on the domestic market or are subject to an intra-Community acquisition under the duty-paid excise procedure; such a difference may be contrary to Article 110 TFEU.
In those circumstances, the Naczelny Sąd Administracyjny decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must Article 3(3) of Directive 92/12 — now corresponding to the first subparagraph, point (a), and the second subparagraph of Article 1(3) of Directive 2008/118 — be interpreted as not precluding a Member State from imposing excise duty on lubricating oils falling within CN codes 2710 19 71 to 2710 19 99 used for purposes other than as motor fuels or heating fuels, in accordance with the rules of the harmonised excise duty arrangements, levied on the consumption of energy products?’
Consideration of the question referred for a preliminary ruling
By its question, the referring court is essentially asking whether Article 3(3) of Directive 92/12 and Article 1(3) of Directive 2008/118 must be interpreted as precluding products which do not fall within the scope of those directives, such as lubricating oils used for purposes other than as motor fuels or as heating fuels, from being made subject to a tax governed by rules identical to those relating to the harmonised excise duty arrangements set out in those directives.
As a preliminary matter, it should be recalled that the dispute in the main proceedings concerns a question of interpretation of national law asked by OTP while Directive 92/12 was still in force, whereas the Minister’s answer to that question came after the repeal of that directive, on 1 April 2010, by Directive 2008/118. Since that answer can be applied to transactions carried out both before and after the entry into force of Directive 2008/118, the two directives must be deemed to apply
ratione temporis
for the purposes of the dispute in question. That is all the more true since Article 1(3) of Directive 2008/118 corresponds to Article 3(3) of Directive 92/12.
The levying of a tax governed by rules identical to those relating to the harmonised excise duty arrangements on products not subject to those arrangements
As the referring court and all of the interested parties which submitted observations to the Court have noted, it follows from paragraph 43 of the judgment in
Fendt Italiana
(
EU:C:2007:411
) that, even though lubricating oils used for purposes other than as motor fuels or as heating fuels fall within the definition of ‘energy products’ for the purposes of Article 2(1)(b) of Directive 2003/96, they are explicitly excluded from the scope of that directive by the first indent of Article 2(4)(b). Therefore, pursuant to Article 1(1)(a) of Directive 2008/118, those lubricating oils are not covered by the harmonised excise duty arrangements set out in the latter directive.
In those circumstances, it should be held that those lubricating oils are products other than ‘excise goods’ within the meaning of Article 1(1) of Directive 2008/118, so that, in accordance with Article 1(3) of that directive, Member States may levy taxes on those products, provided that the levying of such taxes does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers (see, to that effect, in relation to Article 3(1) and (3) of Directive 92/12, judgment in
Fendt Italiana
,
EU:C:2007:411
, paragraph 44).
OTP disputes the compatibility of the Polish legislation at issue in the main proceedings with Article 1(3) of Directive 2008/118, in so far as that legislation subjects lubricating oils used for purposes other than as motor fuels or as heating fuels to a tax governed by rules identical to those relating to the harmonised excise duty arrangements, as provided for by that directive.
In that regard, it should be emphasised, as follows from paragraph 31 above, that Article 1(3) of Directive 2008/118 subjects the possibility for Member States to levy taxes on products other than those subject to the harmonised excise duty arrangements to the sole condition that the levying of such taxes does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. Therefore, unlike Article 1(2) of Directive 2008/118, read in the light of recital 4 in its preamble, which applies to harmonised excise goods, Article 1(3) does not provide that the taxes in question must be taxes other than the harmonised excise duty or that they must be for specific purposes.
It follows that Article 1(3) of that directive does not preclude, in itself, Member States from imposing on products other than those subject to the harmonised excise duty arrangements a tax governed by rules identical to those relating to those arrangements.
That finding is not invalidated by Article 20(1) of Directive 2003/96, relied on by OTP, which provides that only the energy products listed in that paragraph are to be subject to the control and movement provisions of Directive 2008/118. The fact that that list does not refer to lubricating oils used for purposes other than as motor fuels or as heating fuels, which are excluded from the scope of Directive 2003/96, has no bearing on the interpretation of Article 1(3) of Directive 2008/118.
The prohibition of formalities connected with the crossing of frontiers
However, as has already been recalled, in order to comply with the requirements of Article 1(3) of Directive 2008/118, a tax charged on lubricating oils used for purposes other than as motor fuels or as heating fuels must not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.
In that regard, it is clear from the case-law of the Court that, if the purpose of a formality imposed on the importer of a product subject to a national tax is to ensure payment of the debt corresponding to that tax, such a formality is related to the event giving rise to the tax, namely an intra-Community acquisition, and not to the crossing of a frontier in the sense of that provision (see, to that effect, judgments in
Brzeziński
,
EU:C:2007:33
, paragraphs 47 and 48, and
Kalinchev
,
EU:C:2010:312
, paragraph 27).
With regard, in the first place, to the duty suspension arrangement which, in accordance with Article 40(6) of the Law on excise duty, applies to lubricating oils used for purposes other than as motor fuels or as heating fuels, it appears that the requirements relating to that arrangement apply both to products imported from another Member State and to those acquired on the domestic Polish market, which however is for the referring court to verify. By reason of that fact alone, as the European Commission stated, such requirements cannot be regarded as formalities connected with the crossing of a frontier.
As regards, in the second place, the duty-paid excise procedure, the referring court asks whether the obligations set out in Article 78(1)(1) of the Law on excise duty, namely the obligations of declaring the planned intra-Community purchase and guaranteeing payment of the excise duty before importing the products in question, constitute formalities connected with the crossing of a frontier.
In that connection, it must be stated that, according to the very terms of that provision, the obligations it sets must be met before the products in question cross the Polish border. In addition, it is clear that the guarantee of payment of the excise aims to ensure its payment and is therefore connected with the event giving rise to the excise duty, within the meaning of the case-law cited in paragraph 37 above.
Moreover, the obligations referred to in Article 78(1)(1) of the Law on excise duty correspond to the requirements with which, as regards products subject to the harmonised excise duty arrangements, the persons liable for excise duty must comply in accordance with the first paragraph, point (a), of Article 34(2) of Directive 2008/118. It must be inferred that the EU legislature did not regard those requirements as formalities connected with the crossing of frontiers.
Furthermore, it follows from the request for a preliminary ruling that the referring court takes the view that the obligations of submitting a simplified declaration, calculating the excise duty and paying it within 10 days from when the tax obligation arose, and of maintaining records of intra-Community acquisitions of excise goods, as provided for in Article 78(1)(3) and (1)(4) of the Law on excise duty, aim to ensure payment of the excise duty due. However, that does not mean that the obligations listed in Article 78(1)(1) do not have the same aim.
Accordingly, obligations such as those set out in Article 78(1)(3) and (1)(4) of the Law on excise duty cannot be regarded as formalities connected with the crossing of frontiers in trade between Member States, prohibited under the second subparagraph of Article 1(3) of Directive 2008/118.
Compliance with Article 110 TFEU
While the referring court does not ask any specific question regarding the interpretation of Article 110 TFEU, it does query, in the reasoning of the order for reference, the conformity with that article of the excise duty payment deadlines provided for by various provisions of the Law on excise duty.
According to settled case-law of the Court, the fact that the referring court’s question refers to certain provisions of EU law does not mean that the Court may not provide the national court with all the guidance on points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to those points in its question. It is, in this regard, for the Court to extract from all the information provided by the referring court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, inter alia, judgment in
Ville d’Ottignies-Louvain-la-Neuve and Others
, C‑225/13,
EU:C:2014:245
, paragraph 30 and the case-law cited). Consequently, it should be assessed whether Article 110 TFEU precludes those payment deadlines from being imposed.
According to settled case-law, a system of taxation of a Member State can be considered compatible with Article 110 TFEU only if it is proved to be so structured as to exclude any possibility of imported products being taxed more heavily than domestic products, so that it cannot in any event have discriminatory effect (see judgment in
X
, C‑437/12,
EU:C:2013:857
, paragraph 28 and the case-law cited).
In that regard, the first paragraph of Article 110 TFEU is infringed where the tax charged on the imported product and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (see, to that effect, judgments in
Bobie Getränkevertrieb
, 127/75,
EU:C:1976:95
, paragraph 3, and
Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten
, C‑221/06,
EU:C:2007:657
, paragraph 49 and the case-law cited).
As the Court has already made clear, such is the case where the deadlines for payment of a tax charged on domestic production are longer than those applied to products imported from other Member States. Such a benefit reserved to domestic production involves a difference in treatment to the detriment of imported products, which is contrary to the prohibition laid down in Article 110 TFEU (see, to that effect, judgment in
Grundig Italiana
, C‑68/96,
EU:C:1998:299
, paragraph 23 and the case-law cited).
The order for reference appears to indicate that lubricating oils used for purposes other than as motor fuels or as heating fuels which are acquired within national territory are compulsorily subject to the duty suspension arrangement; that indication was corroborated, in particular, by the Polish Government at the hearing but is nevertheless for the national court to verify. Pursuant to Article 21(2) of the Law on excise duty, the taxable person is obliged to pay the excise relating to those products by the 25th day of the month following the month in which the tax liability arose as a result of termination of that arrangement. That payment deadline also applies in respect of lubricating oils imported from another Member State which are subject to the duty suspension arrangement. However, the deadline for payment of excise duty for products imported under the duty-paid excise procedure is, pursuant to Articles 21(3)(1) and 78(1)(3) and 78(3) of that law, 10 days from the date on which the tax liability arose.
Subject to verification by the referring court, it therefore appears that the deadline for payment of the excise duty due for lubricating oils imported under the duty suspension arrangement, beginning from their placing into circulation on the Polish market, is the same as that which is laid down for lubricating oils acquired on that market. Moreover, lubricating oils which are imported may be imported under the duty-paid excise procedure, which results in a shorter deadline for paying the excise.
It follows that, in relation to the duty suspension arrangement, which appears compulsorily to cover the acquisition of lubricating oils on the domestic market, there is no difference in treatment to the detriment of imported lubricating oils in respect of the deadline for payment of the excise duty due. The fact that, solely for imported products, it is also possible to use the duty-paid excise procedure with a shorter payment deadline cannot alter the non-discriminatory nature of legislation such as that at issue in the main proceedings.
Having regard to all the foregoing considerations, the answer to the question asked is that Article 3(3) of Directive 92/12 and Article 1(3) of Directive 2008/118 must be interpreted as not precluding products which do not fall within the scope of those directives, such as lubricating oils used for purposes other than as motor fuels or as heating fuels, from being made subject to a tax governed by rules identical to those relating to the harmonised excise duty arrangements set out in those directives, where the imposition of such a tax on those products does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.
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 (Tenth Chamber) hereby rules:

Article 3(3) 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 and Article 1(3) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12 must be interpreted as not precluding products which do not fall within the scope of those directives, such as lubricating oils used for purposes other than as motor fuels or as heating fuels, from being made subject to a tax governed by rules identical to those relating to the harmonised excise duty arrangements set out in those directives, where the imposition of such a tax on those products does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.

[Signatures]
(
*1
)	Language of the case: Polish.