Judgment;Summary — ECLI:EU:T:2025:1063
Date: 2025-11-26
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  T-690/24 – 1 
Case T-690/24 [Kolinsen] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
30 December 2024 
Referring court:  
Gerechtshof’s-Hertogenbosch (Netherlands) 
Date of the decision to refer:  
18 December 2024 
Appellant on appeal, defendant at first instance:  
Inspecteur van de Douane 
Respondent on appeal, applicant at first instance:  
FL 
  
Subject matter of the main proceedings 
Appeal against the levying of excise duty on goods which were moved under a 
duty suspension arrangement and which were missing on arrival at the consignee 
Subject matter and legal basis of the request 
Interpretation of Article 10(2), (4) and (6) of Directive 2008/118, in order to 
establish whether the Member State where the excise duty is levied is to be 
determined in accordance with paragraph 2 of the said Article 10 or in accordance 
with paragraph 4 thereof. For that purpose, it is necessary to determine the 
moment at which an irregularity occurred in the movement of the excise goods 
and, consequently, whether release for consumption took place.  
      
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-690/24 
 
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Question referred for a preliminary ruling 
Is Article 10(2) of Council Directive 2008/118/EC of 16 December 2008 
concerning the general arrangements for excise duty and repealing Directive 
92/12/EEC to be interpreted as meaning that the conditions laid down in that 
provision are fulfilled in a case where the goods moved under the duty suspension 
arrangement have not arrived, or have not arrived in their entirety, at their 
destination, and that shortfall has not been detected until the means of transport 
was unloaded, so that that detection of the shortfall constitutes the irregularity and 
the Member State of arrival therefore has the competence to levy the duty? Or is 
the earlier event, which remains unknown, which led to the shortfall to be 
regarded as the irregularity referred to in Article 10(4) of Directive 2008/118/EC, 
so that the Member State of dispatch has the competence to levy the duty? 
Provisions of European Union law relied on 
Council Directive 2008/118/EC of 16 December 2008 concerning the general 
arrangements for excise duty and repealing Directive 92/12/EEC: Article 7(1), (2) 
and (4), Article 10(2), (4) and (6), Article 17, Article 20, recital 11 
European Union case-law cited  
Judgment of the Court of Justice of 28 January 2016, BP Europa SE (C-64/15, 
ECLI:EU:C:2016:62, operative part of the judgment, points 1 and 3) 
Opinion of Advocate General Pikamäe of 8 October 2020 in the Silcompa case 
(C-95/19, ECLI:EU:C:2020:817) 
Provisions of national law relied on 
Wet op de accijns (Law on Excise Duty), in the version in force in 2019:  
Article 2, paragraphs (1)(a) and (5), the wording of which is identical to that of 
Article 7(2)(a) and (4) of Directive 2008/118  
Article 2b, which transposes Article 20(2) of Directive 2008/118  
Article 2c, paragraph 2, which transposes Article 10(2) of Directive 2008/118, and 
Article 2c, paragraph 7, which transposes Article 10(6) of Directive 2008/118 
Uitvoeringsbesluit accijns (Implementing Decision on Excise Duty) 
Article 3, paragraph 3, according to which the consignee, on receipt of the excise 
goods, must submit a report of receipt within five days 
KOLINSEN 
 
3 
Article 4, according to which the report of receipt constitutes proof that a 
movement of excise goods has ended. 
National case-law cited  
Judgment of the Hoge Raad (Supreme Court of the Netherlands) of 11 November 
2022, ECLI:NL:HR:2022:1611 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2019, FL dispatched two consignments of excise goods (ethyl alcohol) under 
the duty suspension arrangement from Belgium to the Netherlands. On arrival, 
shortfalls were detected in the consignments. FL nevertheless paid excise duty in 
the Netherlands on the consignments in their entirety. Ruling on FL’s objection, 
the inspecteur van de Douane (Customs Inspector) refused to grant a refund for 
these shortfalls. FL then lodged an appeal before the Rechtbank (District Court), 
which upheld the appeal. The Inspector then lodged a further appeal.  
The essential arguments of the parties in the main proceedings 
2 It is not in dispute that irregularities occurred during the movement of the goods 
giving rise to their release for consumption which resulted in excise duty 
becoming chargeable. However, the parties disagree as to whether or not the 
irregularities were detected during the movement of the goods and, therefore, 
whether the Member State where the duty is levied must be determined by 
reference to paragraph 2 or paragraph 4 of Article 10 of Directive 2008/118.  
3 According to the Customs Inspector, the irregularity was detected during the 
movement of the excise goods. In fact, the movement ended only after these 
goods were received and the shortfall was established by the consignee. It follows, 
therefore, that, in respect of the shortfall, the Netherlands has the competence to 
levy the duty under Article 10(2) of Directive 2008/118.  
4 According to FL, the movement of the goods did indeed end for the part received 
by the consignee, but not for the shortfall. The moment at which the shortfall is 
detected is not relevant.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 It is unclear where and under what circumstances the goods disappeared. 
Furthermore, excise duty was levied on one of the consignments in both the 
Member State of departure and the Member State of arrival because, according to 
the Belgian authorities, paragraph 4 of Article 10 of Directive 2008/118 applies, 
and according to the Netherlands authorities, paragraph 2 of that article applies.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-690/24 
 
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Netherlands law 
6 Under Netherlands legislation, the movement of excise goods under a duty 
suspension arrangement ends at the time that the consignee has taken delivery of 
the goods. The consignee must send a report of receipt within five days, which 
constitutes proof that a movement of excise goods has ended.  
7 In an earlier, comparable case, where goods had been dispatched from the 
Netherlands to Italy and they had not all arrived, the Supreme Court of the 
Netherlands, in its judgment of 11 November 2022, confirmed that the 
Netherlands had the competence to levy the duty because the irregularities had not 
been detected during the movement of the excise goods. The irregularities were 
therefore deemed to have taken place in the Member State of dispatch.  
European Union law 
8 Paragraphs 2 and 4 of Article 10 of Directive 2008/118 determine which Member 
State has the competence to levy excise duty depending on whether or not an 
irregularity giving rise to release for consumption has been detected during the 
movement of the excise goods.  
9 It follows from the case-law of the Court of Justice that if an irregularity is 
detected during the movement of the excise goods, it leads to the removal of the 
excise goods from a duty suspension arrangement and, consequently, to release 
for consumption in accordance with Article 7(2)(a) of Directive 2008/118. The 
referring court observes that, under that Directive, the time at which the shortfall 
is detected is not decisive for determining the time of chargeability, but it is 
relevant for determining which Member State is competent to levy the excise 
duty.  
10 In its judgment of 28 January 2016, BP Europa SE, C-64/15, the Court held, in 
relation to Article 10 of Directive 2008/118, that the movement of excise goods 
under a duty suspension arrangement ends when the consignee of those goods, 
after unloading in full, detects a shortfall in the delivery. Furthermore, in that 
judgment, the Court held that Article 10(4) of Directive 2008/118 also applies 
where only a part of those goods failed to arrive at its destination.  
11 The referring court infers from this that the movement ends only after the 
consignment in question has been unloaded in full. Where the irregularity is 
detected during unloading, it would mean that the irregularity in the present case 
was detected while the movement was still ongoing. It follows therefore that the 
Netherlands has the competence to levy the duty under Article 10(2) of Directive 
2008/118.  
KOLINSEN 
 
5 
Does the detection of a shortfall constitute an irregularity within the meaning of 
Article 10(6) of Directive 2008/118? 
12 However, the referring court considers that recital 11 of Directive 2008/118 
supports the view that the detection of a shortfall during unloading does not 
constitute an irregularity within the meaning of Article 10(6) of Directive 
2008/118. If it did, Article 10(4) of Directive 2008/118 would no longer have any 
meaning. Indeed, a shortfall, which will always be detected at the latest when the 
consignment is unloaded, would then always be regarded as an irregularity 
detected during the movement of the excise goods within the meaning of 
Article 10(2) of Directive 2008/118.  
13 In addition, the referring court sees in the wording of that recital indications of the 
competence of the Member State of departure to levy duty under Article 10(4) of 
Directive 2008/118.  
14 Furthermore, the question is whether the detection of a shortfall on arrival can be 
classified as an irregularity, since the cause of the irregular termination of the 
movement does not lie in that detection, but in the unknown circumstance which 
occurred before that detection (see, in that regard, the Court’s judgment of 
28 January 2016, BP Europa SE, paragraph 43). If that circumstance did not come 
to light during the movement of the excise goods, the Member State competent to 
levy duty must be determined in accordance with Article 10(4) of Directive 
2008/118.  
15 Finally, according to Advocate General Pikamäe’s Opinion of 8 October 2020 in 
the Silcompa case, the double imposition of excise duty by more than one Member 
State on the same products does not comply with the general scheme of Directive 
92/12, which was replaced by Directive 2008/118.  
Question referred for a preliminary ruling 
16 The referring court is unable to derive an unequivocal answer from EU law or the 
case-law of the Court to the question whether the detection of a shortfall 
constitutes an irregularity within the meaning of Article 10(2) of Directive 
2008/118 or Article 10(4) thereof.  
17 An argument in support of the application of Article 10(2) of Directive 
2008/118 – in other words: that the detection of a shortfall constitutes an 
irregularity within the meaning of Article 10(6) of Directive 2008/118 – is that the 
detection of a shortfall concerns a situation of destruction or loss other than that 
referred to in Article 7(4) of Directive 2008/118.  
18 An argument against the application of Article 10(2) of Directive 2008/118 – in 
other words: that the detection of a shortfall does not constitute an irregularity 
within the meaning of Article 10(6) of Directive 2008/118 – is that an earlier 
irregularity has already taken place, namely, the unknown event which led to the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-690/24 
 
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shortfall, and an irregularity can be detected in respect of a single shortfall. This 
interpretation is also in line with recital 11 of Directive 2008/118.