Judgment — ECLI:EU:C:2023:641
Date: 2023-09-07
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-323/22 – 1 
Case C-323/22 
Request for a preliminary ruling 
Date lodged: 
13 May 2022 
Referring court: 
Corte suprema di cassazione (Italy) 
Date of the decision to refer: 
6 May 2022 
Appellant: 
KRI SpA, as the successor of SI.LO.NE. – Sistema logistico nord-
est Srl 
Cross-appellant: 
Agenzia delle dogane e dei monopoli 
THE CORTE SUPREMA DI CASSAZIONE 
FIFTH CIVIL CHAMBER 
… 
has made the following  
INTERLOCUTORY ORDER 
in the appeal … brought by 
Shell Italia spa, now KRI spa, as the successor of SI.LO.NE. – Sistema logistico 
nord-est srl, … 
- appellant - 
v 
Agenzia delle dogane e dei monopoli, …; 
- cross-appellant - 
EN 
REQUEST FOR A PRELIMINARY RULING OF 6. 5. 2022 – CASE C-323/22 
 
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Against the judgment of the Commissione tributaria regionale del Friuli-Venezia 
Giulia (Regional Tax Court, Friuli-Venezia Giulia, Italy) No …, filed on 6 July 
2012. 
… 
FACTS OF THE CASE 
1 The company Silone srl (formerly Shell Italia spa, now KRI spa) contested the 
payment notice relating to the recovery of excise duties on petroleum products in 
respect of 161 consignments under a duty suspension arrangement effected 
between 22 August 2005 and 30 June 2006, the consignee being the Slovenian 
company BMP, a registered operator. 
2 The recovery action by the Agenzia delle dogane e dei monopoli (Italian Customs 
and Monopolies Agency) arose from the finding that the certificates referred to on 
the reverse side of the No 3 copies of the AADs (accompanying administrative 
documents) were false, on the basis of information to that effect which the 
Slovenian Customs Authority had provided by way of administrative assistance in 
the field of taxation. 
3 The criminal proceedings initiated in parallel were closed by an order that no 
further action be taken which was made by the judicial authority with territorial 
jurisdiction. 
4 The Commissione tributaria provinciale di Udine (Provincial Tax Court, Udine, 
Italy) upheld the action brought by the company owing the tax; the taxing 
authority lodged an appeal; the Commissione tributaria regionale del Friuli-
Venezia Giulia (Regional Tax Court, Friuli-Venezia Giulia, Italy) allowed the 
appeal, observing in particular that as there was an irregular departure of 
petroleum products (petrol/gas oil) in a suspension arrangement (tax warehouse), 
the warehousekeeper was necessarily liable for the excise duty evaded since the 
unlawful act of a third party (falsification of the customs documents relating to 
transportation in Slovenian territory to the transferee of that nationality) was 
irrelevant for the purposes of extinguishment of that debt as the relevant provision 
of law (Article 4 of Legislative Decree 504/1995; ‘the Consolidated Text on 
Excise Duties’) provided for a tax ‘exemption’ only in the event of the 
‘loss/destruction’ of the product subject to excise duty, and not that of ‘irregular 
removal/departure’, as in the present case; it also stated that the outcome 
(withdrawal) of the connected criminal proceedings was irrelevant. 
5 The company owing the excise duty lodged an appeal on a point of law against 
that decision, putting forward three grounds of appeal; the Italian Customs and 
Monopolies Agency lodged a cross-appeal. … [national proceedings]. 
REASONS FOR THE DECISION 
6 The decision of the tax court of appeal was contested on the following grounds: 
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3 
- by its first plea – pursuant to Article 360, first paragraph, subparagraph 3, of the 
codice di procedura civile (Code of Civil Procedure) – the appellant alleges 
infringement/misapplication of Article 4 of the Consolidated Text on Excise 
Duties, as amended by Article 59 of legge 342/2000 (Law 342/2000), in that the 
Regional Tax Court stated that the specific case at issue could not be subsumed 
under the abstract case referred to, as there is not a situation which can be equated 
with the ‘loss/destruction’ of goods subject to excise but rather an ‘irregular 
removal/departure’ of those goods, and considered irrelevant the withdrawal of 
the criminal proceedings initiated in parallel with the tax proceedings, thus 
infringing in any event the (Italian) constitutional principle of the ability to pay 
tax (Article 53 of the Constitution); 
- by its second plea – pursuant to Article 360, first paragraph, subparagraph 5, of 
the Code of Civil Procedure – the appellant claims there has been a failure to state 
reasons as regards the documents resulting from the parallel criminal proceedings, 
which were closed by an order to take no further action; 
- by its third plea, the applicant alleges, on the one hand – pursuant to Article 360, 
first paragraph, subparagraph 3, of the Code of Civil Procedure – 
infringement/misapplication of Articles 7, 2, 5, and 6 of decreto legislativo 
504/1995 (Legislative Decree 504/1995), in relation to the constitutional 
principles set out in Articles 2, 3, and 53 of the Constitution, in that the Regional 
Tax Court held that the present case had to be considered in terms of the objective 
liability of the tax warehousekeeper, basing its – erroneous – interpretation of 
those provisions of the Consolidated Text on Excise Duties on the above 
provisions of the Constitution; and, on the other hand – pursuant to Article 360, 
first paragraph, subparagraph 5 of the Code of Civil Procedure – failure to state 
reasons as regards the multiple documentary findings relating to the certificates of 
receipt of goods in the context of BMB Project d.o.o. 
7 The first and third plea (first part) involve, in the view of the Supreme Court of 
Cassation, an assessment of the compatibility [with European Union law] of 
Italian legislation and national case-law, including in relation to the case-law of 
the Court of Justice of the European Union concerning the excise duty 
‘exemption’ (namely extinguishment of the tax debt) in the event of irregular 
release of products under the tax suspension regime, due to the act of a third party 
(in the present case falsification of the documents relating to intra-Community 
movement). 
European Union law 
8 In view of the time of the events to which the proceedings relate (22 August 
2005/30 June 2006), 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 applies. 
9 The following are of particular relevance: 
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- Article 6 ‘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’. 
- Article 14 ‘Authorised warehousekeepers shall be exempt from duty in respect of 
losses occurring under suspension arrangements which are attributable to 
fortuitous events or force majeure and established by the authorised of the 
Member State concerned. They shall also be exempt, under suspension 
arrangements, in respect of losses inherent in the nature of the products during 
production and processing, storage and transport. Each Member State shall lay 
down the conditions under which these exemptions are granted’. 
National law 
10 The provisions of domestic law implementing that directive, in the version 
applicable at that time, are as follows: 
- Article 2, paragraphs 1, 2, and 4, of Legislative Decree 504/1995, which 
provides ‘1. In respect of products subject to excise duty the tax debt shall arise at 
the time of production or importation. 2. Excise duty shall become chargeable at 
the time of release for consumption of the product in Italian territory. Release for 
consumption of products shall also mean: (a) any shortage exceeding that 
permitted or case where the conditions for granting the exemption laid down in 
Article 4 are not satisfied; (b) any departure, including irregular departure, from 
a suspension arrangement; (c) any manufacture or importation, including 
irregular manufacture or importation, which occurs outside a suspension 
arrangement … 4. The keeper of the tax warehouse from which the release for 
consumption occurs and, jointly and severally, the person who guaranteed that 
payment, or the person in respect of whom the conditions for the tax to become 
chargeable are fulfilled, shall be required to pay the excise duty. In respect of 
imported products the person liable for payment of the tax shall be determined in 
accordance with customs legislation’. 
- Article 4(1) of Legislative Decree 504/1995, which provides ‘In the event of the 
loss or destruction of products placed under suspension arrangements a tax 
exemption shall be granted where the person liable proves that the loss or 
destruction of the products occurred as a result of a fortuitous event or force 
majeure. Acts committed by third parties not attributable to the taxable person as 
a result of wilful misconduct or gross negligence, and those attributable to that 
person as a result of ordinary negligence, shall be treated in the same way as a 
fortuitous event or force majeure. If, after the offences committed by third parties 
have occurred, criminal proceedings are instituted, the procedure for charging 
excise duties shall be suspended until an order that no further action be taken or a 
final judgment within the meaning of Article 648 of the Code of Criminal 
KRI 
 
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Procedure has been made. In that case the procedure for charging value added 
tax on the excise duties shall also be suspended. Where the taxable person’s 
involvement in the acts is not demonstrated or the persons actually liable have not 
been identified, or are unknown, a tax exemption shall be grant to the taxable 
person and any recovery shall be made to the person actually liable’. 
- Article 7(1) of Legislative Decree 504/95, which provides ‘In the event of an 
irregularity or offence, in respect of which no provision is made for a tax 
exemption within the meaning of Article 4, which is committed in the course of the 
movement of products under a duty suspension arrangement, the following 
provisions shall apply, subject to the provisions governing prosecution where the 
acts being judged constitute a criminal offence: (a) the excise duty shall be paid 
by the natural or legal person who guaranteed transportation; (a) the excise duty 
shall be levied in Italy if the irregularity or offence was committed in Italian 
territory; (c) if the irregularity relating to the offence is found in Italian territory 
and it is not possible to establish the place where it was actually committed, it 
shall be presumed to have been committed in Italian territory; (d) where the 
goods dispatched from Italian territory do not reach their destination in another 
Member State and it is not possible to establish the place where they were 
released for consumption, the irregularity or offence shall be deemed to have 
committed in Italian territory and the excise duties shall be levied at the rate in 
force on the date of dispatch of the products, save where, within four months from 
the date of dispatch, proof of the regularity of the transaction or proof that the 
irregularity or offence was actually committed outside Italian territory is 
provided’. 
Relevant national case-law 
11 In its most recent case-law, the Supreme Court of Cassation, interpreting the 
abovementioned provisions [of European Union law] and domestic law, has held 
that the removal of a product by a third party (theft or robbery) and without the 
involvement of the taxable person in the acts does not in itself release him from 
payment of the tax, which is exempted only where the product is dispersed or 
destroyed, with the burden of proof on the person owing the tax …; in even 
stricter terms it has been stated that theft/robbery can never have the effect of 
exempting the taxable person since that ground for extinguishing the tax debt 
relates to certain cases of shortages and not to irregular release from the 
suspension arrangement, which is precisely caused by those unlawful acts of third 
parties … 
12 This line of interpretation is based, on the one hand, on the consideration that the 
chargeable event is the release for consumption, as an indication of 
manufacturers’ or importers’ ability to pay tax …, and on the other, on the 
statement that it is only in the event of destruction or dispersal that release for 
consumption is prevented, whereas removal merely renders the goods unavailable 
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to the person concerned as a result of the dispossession, but does not prevent them 
from entering the market. 
13 … [references to previous case-law which is no longer applicable] 
14 However, it should be noted that, in a specific case similar to the present (common 
element: falsification of customs documents), it has also been held more recently 
that, pursuant to the [European Union] case-law principle of proportionality, the 
authorised warehousekeeper of the product subject to excise duty is not liable as 
guarantor of its payment if he proves and it has been officially established that the 
irregular release of the product was due to an unlawful act of a third party which 
he had nothing whatsoever to do with him. 
Relevant case-law of the Court of Justice of the European Union 
15 With regard to Directive No 92/12 the Court of Justice ruled that the liability of 
the authorised warehousekeeper is ‘objective and based not on the proven or 
presumed fault of the warehousekeeper, but on his participation in an economic 
activity …’ (Court of Justice, 24 February 2021, Case C-95/19, Silcompa, 
paragraph 52). 
16 That ruling is based on the rationale that the EU legislature gave a central role to 
that undertaking (see, to that effect, Court of Justice, 2 June 2016, Case C-81/15, 
Kapnoviomichania Karelia, paragraphs 31 and 32) which therefore, in the context 
of the movement of products subject to excise duty and placed under a suspension 
arrangement, bears liability for all the risks inherent in that movement, and thus a 
liability which is objective (see judgment in Silcompa, cit., paragraph 52). 
17 However, in relation to the joint and several liability of the 
warehousekeeper/guarantor for payment of sums corresponding to the financial 
penalties imposed in the event of irregular departure of goods subject to excise 
duty, the judgment in Case C-81/15, Kapnoviomichania Karelia, also stated that it 
is contrary to the general principles of EU law, in particular the principles of legal 
certainty and proportionality, for national legislation not to permit the 
warehousekeeper/guarantor to prove, for the purposes of exemption, that he had 
nothing whatsoever to do with the unlawful act (paragraph 54 and the operative 
part). 
18 Furthermore, the judgment of 12 December 2002, in Case C-395/00, Distillerie 
Fratelli Cipriani spa (also concerning a case of fraud by falsification of the 
stamps affixed to the AAD), by declaring the invalidity of Article 20(3) of 
Council Directive 92/12/EEC of 25 February 1992, which laid down a time limit 
of four months for the authorised warehousekeeper to prove the correctness of a 
transaction in the face of objections by the tax authority, implicitly presupposes 
that such a defence potentially has the effect of actually releasing the authorised 
warehousekeeper from its related liability as guarantor. 
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19 Again by its judgment of 21 February 2008, C-271/06, Netto Supermarkt GmbH 
& Co, the Court of Justice – albeit in the field of VAT – on the basis of its settled 
case-law (paragraph 18) noted that national implementation of [EU] directives 
must always respect the general principles of EU law, and, in particular, those of 
legal certainty, proportionality and protection of legitimate expectations, and 
therefore specifically held that observance of those principles means that a taxable 
person who, in carrying out exempt transactions (exportation), was in no position 
to recognise that, despite the requirement to exercise ‘due commercial care’, the 
conditions for exemption were not met, ‘because the export proofs provided by 
the purchaser had been forged’, is not liable to pay that tax (paragraphs 27 to 29 
and the operative part). 
20 The Court of Justice of the European Union has ruled to substantially the same 
effect in a similar case relating to the VAT exemption on importation to another 
Member State, pursuant to Article 143(1)(d), of Directive 2006/112, as amended 
by Directive 2009/69, stating that such tax treatment must in any event be 
reserved to ‘… an importer acting in good faith … where the conditions for the 
exemption of the subsequent intra-Community supply are not satisfied, because of 
tax evasion on the part of the purchaser, unless it is shown that the importer knew 
or ought to have known that the transaction was involved in tax evasion 
committed by the purchaser and did not take all reasonable steps in his power to 
avoid participation in the evasion’ (judgment of 20 June 2018, C-108/2017, 
Enteco Baiti UAB, paragraph 100 and paragraph 4 of the operative part; for the 
grounds and case-law references of the Court of Justice, see paragraph 97). 
The reasons for the reference for a preliminary ruling 
21 The [EU] and domestic legislative and case-law context set out above makes the 
Supreme Court of Cassation uncertain as to the interpretation of the exact scope of 
the provisions relating to the ‘exemption’ from excise duty in the event of the 
loss/destruction of the product released irregularly, particularly as regards the 
possibility of ‘evidence in exoneration’ from the authorised warehousekeeper 
guaranteeing payment of the tax and thus, ultimately, the scope of the concepts of 
‘fortuitous event’ and ‘force majeure’, especially as regards the case of an 
unlawful act by a third party, which could give rise to a legitimate and good faith 
expectation on the part of that authorised warehousekeeper (the rules specifically 
and directly involved: first sentence of Article 14 of Directive 92/12/EEC; 
Article 4(1) of Legislative Decree 504/1995). 
22 On the one hand, the case-law of the Court of Justice and of the Supreme Court of 
Cassation appear would appear to establish the complete irrelevance of the 
fraudulent act of a third party for the purposes of exemption from the tax liability 
at issue; on the other hand, other [EU] and national case-law on lawfulness 
suggests that, on the contrary, it does provide an exemption from tax liability in 
cases of fraud by counterfeiting customs documents where it is found that the 
guarantor warehousekeeper had nothing whatsoever to do with it and could thus 
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rely in good faith on the lawfulness of the movement of the product under a duty 
suspension arrangement. 
23 Those uncertainties cannot, however, be regarded as dispelled by the judgment of 
24 March 2022, C-711/20, TanQuid Polska sp. z.o.o., of the Court of Justice. 
It should first be noted that the specific case addressed in that ruling is – 
substantially – different from that under consideration by the Supreme Court of 
Cassation. In the first case, the ‘formal’ consignee of the mineral oils moving 
under the duty suspension arrangement (a company incorporated under Czech 
law, stated in the prescribed transport documents) denied ever having received 
them, whereas, in the second case exactly the opposite occurred, so much so that, 
as has been said, the ‘formal’ consignee of the products even returned the third 
copy of the transport document, thereby creating precisely an expectation in the 
tax warehousekeeper that the products had reached their intended destination. 
Therefore, in the two cases the counterfeiting of customs stamps clearly has 
different relevance. 
The stated continuation with the judgment in Silcompa, contained in the 
aforementioned recent judgment of the Court of Justice (see paragraphs 43 and 44 
to 48) must therefore be viewed in the different factual context covered by that 
judgment and is also significantly tempered by the further consideration that ‘… 
the liability of the authorised warehousekeeper of dispatch 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 of that 
directive (Directive 92/12 – editor’s note), on the conditions laid down in 
Article 19 thereof’. This finding of the Court of Justice therefore does not dispel 
the uncertainty as to the interpretation of EU law in relation to the case before the 
Supreme Court of Cassation. 
The question referred for a preliminary ruling 
24 As the court of last instance, and in the light of the uncertainty as to the 
interpretation set out above, the Supreme Court of Cassation therefore intends, 
after the proceedings have been stayed, to refer the following question to the 
Court of Justice of the European Union, pursuant to Article 267 TFEU: 
‘Must the first sentence of Article 14 of Council Directive 92/12/EEC of 
25 February 1992 be interpreted as meaning that in the event of irregular 
departure of the product subject to excise duty, the liability of the 
warehousekeeper guaranteeing payment of the duty is objective, with there being 
no possibility of exemption from that liability and from payment of the sums 
corresponding to the related financial penalties, even where that departure results 
from an unlawful act attributable – exclusively – to a third party, or can it be 
interpreted as meaning that the exemption from the tax and from the 
corresponding penalties is to be granted – as a fortuitous event or force majeure – 
to the guarantor warehousekeeper who not only has nothing whatsoever to do 
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with the unlawful act of the third party but also had a legitimate and good faith 
expectation that the movement of the product under the duty suspension 
arrangement was regular?’  
… 
… 
… Rome, 7 December 2021 
… 
[procedural formalities]