Judgment — ECLI:EU:C:2007:788
Date: 2007-12-13
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Excise duties
Concepts: Excise duties
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 (Council Directive 92/12, Arts 6(1)(a), and 20(1)) 2. Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 (Council Directive 92/12) 1. The theft of tobacco products circulating under suspension of excise duties constitutes an irregular departure from a suspension arrangement within the meaning of Article 6(1)(a) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, so that the excise duty becomes chargeable in the Member State in which the goods were stolen, in accordance with Article 20(1) of that directive. (see para. 29) 2. Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Regulation No 807/2003, does not preclude the legislation of a Member State which excludes the reimbursement of the amount paid to obtain tax markings issued by that Member State when those markings have been affixed to products subject to excise duty before being released for consumption in that Member State, when those products have been stolen in another Member State, involving the payment of excise duties in that other Member State, and when evidence has not been furnished that the stolen products will not be marketed in the Member State which issued those markings. The possibility of obtaining a refund for the tax markings simply by claiming that the products on which they were affixed have gone missing would also be likely to encourage abuse and evasion. In the situation envisaged by the said legislation, there is a real risk that the stolen products might be marketed in the Member State which issued the tax markings. Since those products carry tax markings of that State, those products may be introduced with ease onto the official market for tobacco products in that State, depriving it of tax receipts to which it is entitled. Even in the absence of any fraud on the part of the economic operator holding the goods, the fact that the excise duty has been paid in another Member State has no bearing on that risk. According to Article 22(1) and (2) of Directive 92/12, when products released for consumption in a first Member State and thus carrying a tax marking of that Member State are intended to be consumed in another Member State and are dispatched to that Member State, it is necessary that the destruction of the tax marks of the first Member State be certified by the tax authorities of that State. By that provision, the Community legislature favoured the prevention of abuse and fraud to the detriment of the principle that taxation should occur in only one Member State. It would be paradoxical if reimbursement of the tax markings affixed to the products subject to excise duty were authorised in the situation envisaged by the legislation at issue, in which no control of the destination of the stolen products is possible, whereas Article 22(2)(d) of Directive 92/12 makes the reimbursement of the excise duty contingent on the finding that the marks proving payment of that duty have been destroyed, in circumstances in which the risk of abuse and fraud is lower. (see paras 46-47, 49, 56-57, 59, operative part)