Information;Order — ECLI:EU:C:2024:874
Date: 2024-10-04
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-214/24 – 1 
Case C-214/24 
Request for a preliminary ruling 
Date lodged: 
20 March 2024 
Referring court: 
Bundesfinanzhof (Germany) 
Date of the decision to refer: 
12 December 2023 
Applicant and appellant in the appeal on a point of law: 
A 
Defendant and respondent in the appeal on a point of law: 
Hauptzollamt C 
  
[…] 
BUNDESFINANZHOF (FEDERAL FISCAL COURT, GERMANY) 
ORDER 
In the case of 
A 
Applicant and appellant in the appeal on a point of law 
[…] 
v 
Hauptzollamt (Principal Customs Office) C 
Defendant and respondent in the appeal on a point of law 
concerning tobacco duty, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 12. 12. 2023 – CASE C-214/24 
 
2  
the Seventh Chamber 
made the following order on 12 December 2023: 
I. The following questions are hereby referred to the Court of Justice of the 
European Union for a preliminary ruling: 
1. Under Article 7(2)(d) of Council Directive 2008/118/EC of 
16 December 2008 concerning the general arrangements for excise duty and 
repealing Directive 92/12/EEC, can tobacco products which are considered 
to have been released for consumption following irregular importation into 
the territory of the Community be regarded as having been released for 
consumption again in another Member State by virtue of the holding of 
those tobacco products outside a duty suspension arrangement under 
Article 7(2)(b) of Council Directive 2008/118/EC of 16 December 2008 
concerning the general arrangements for excise duty and repealing 
Directive  92/12/EEC, with the result that excise duty becomes chargeable 
more than once pursuant to Article 7(1) of Council Directive 2008/118/EC 
of 16 December 2008 concerning the general arrangements for excise duty 
and repealing Directive 92/12/EEC? 
2. If Question 1 is answered in the affirmative, is Article 33(1) 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 excise duty on manufactured tobacco is levied 
exclusively in the Member State of destination where the manufactured 
tobacco has been unlawfully imported into the territory of the Community 
and transported for commercial purposes through two or more Member 
States to the Member State of destination without a duty suspension 
arrangement having been initiated and without excise duty having been 
paid? 
II. […] Stay of proceedings 
G r o u n d s 
I. 
1 In 2013, criminal investigations were conducted on suspicion of tax fraud against 
various persons, in particular the applicant and appellant in the appeal on a point 
of law (‘the applicant’). According to the Public Prosecutor’s Office, the 
applicant, as the driver of a heavy goods vehicle (HGV), had, in breach of the 
provisions of import legislation, transported cigarettes concealed in a dummy 
shipment from Kaunas, Republic of Lithuania (‘Lithuania’), to the United 
Kingdom of Great Britain and Northern Ireland (‘the United Kingdom’), via the 
Federal Republic of Germany (‘Germany’). The case concerned three journeys, 
made at the beginning and end of October 2013 and the beginning of November 
HAUPTZOLLAMT C 
 
3 
2013. The cigarettes which were transported to the United Kingdom in November 
2013 were discovered by HM Revenue and Customs in the United Kingdom. 
2 By a judgment which has become final, the applicant was convicted of tax evasion 
in Germany for the journey made in November 2013. Proceedings relating to the 
two journeys made in October 2013 were stayed. 
3 By means of a notice of tobacco duty assessment dated 11 June 2014, the 
defendant and respondent in the appeal on a point of law (‘the Hauptzollamt’) 
imposed on the applicant tobacco duty amounting to EUR … for the three 
aforementioned journeys. The applicant’s objection was unsuccessful. 
4 The Finanzgericht (Fiscal Court) ruled that the tobacco duty was incurred in 
accordance with the first sentence of Paragraph 23(1) of the Tabaksteuergesetz 
(Law on tobacco duty, ‘the TabStG’) as amended on 15 July 2009, as the 
cigarettes were transported from Lithuania via the Republic of Poland (‘Poland’) 
to Germany on 3 October 2013, 24 October 2013 and 7 November 2013 in the 
HGV driven by the applicant. The Finanzgericht was convinced that the applicant 
had transported cigarettes in boilers and/or air-conditioning appliances on the 
three journeys. On account of the discovery, during the journey made at the 
beginning of November 2013, of a total of … cigarettes, untaxed and uncleared by 
customs, in six air-conditioning appliances transported by the applicant, the 
Finanzgericht concluded, in the light of the circumstances of the case, that the 
products loaded during the other two journeys had also contained cigarettes which 
were untaxed and uncleared by customs. The applicant was liable to pay the 
tobacco duty, the court ruled, because, as the driver of the HGV, he had had 
possession of the cigarettes. 
5 Even if Germany was only to be regarded as a Member State of transit, the court 
held that Germany was entitled, under Council Directive 2008/118/EC of 
16 December 2008 concerning the general arrangements for excise duty and 
repealing Directive 92/12/EEC (‘Directive 2008/118’ – Official Journal of the 
European Union 2009, No L 9, 12), to levy tobacco duty in the event of irregular 
transit. According to the Finanzgericht, the Prankl decision of the Court of Justice 
of the European Union (CJEU) of 5 March 2015 – C-175/14, EU:C:2015:142 – 
was not transposable to the new legal situation. The cigarettes were taxable in 
Germany, because they had been released there for consumption and the 
formalities laid down in Article 34 of Directive 2008/118 had not been observed. 
6 The applicant challenges that judgment by his appeal on a point of law and asserts 
that the Finanzgericht infringed Directive 2008/118 and deviated from the Prankl 
decision of 5 March 2015 – C-175/20, EU:C:2015:142. Under the case-law of the 
Court, it was for the authorities of the Member State in which the goods were 
discovered – in this case the United Kingdom – to recover the excise duty, 
whereas the transit Member States and the Member State of departure were not 
competent to do so. The adoption of Directive 2008/118 in place of Council 
Directive 92/12/EEC of 25 February 1992 on the general arrangements for 
REQUEST FOR A PRELIMINARY RULING OF 12. 12. 2023 – CASE C-214/24 
 
4  
products subject to excise duty and on the holding, movement and monitoring of 
such products (‘Directive 92/12’ – Official Journal of the European Communities 
1992, No L 76, 1) was not intended to change that situation. In addition, the 
applicant argues, Lithuania has already issued a notice of assessment in respect of 
the tobacco duty for the three journeys, the result being inadmissible double 
taxation. Moreover, the quantity of taxed cigarettes had not been established, since 
the excise authorities had merely assumed that the journeys made in October 2013 
were similar smuggling operations to the journey made at the beginning of 
November 2013. 
II. 
7 […] 
[…] [Repetition of stay of proceedings and questions referred for a preliminary 
ruling] 
III. 
8 In the view of the Chamber, the outcome of the dispute depends on whether, in the 
event of irregular importation of manufactured tobacco followed by its transport 
outside a suspension arrangement through more than one Member State, liability 
for tobacco duty arises in a Member State of transit such as Germany and, if so, 
whether Germany is entitled to levy the tobacco duty. The key factors in this 
context are the provisions of EU law relating to excise duties, the interpretation of 
which raises doubts: 
9 Applicable EU law: 
10 Recital 8 of Directive 2008/118: 
Since it remains necessary for the proper functioning of the internal market that 
the concept, and conditions for chargeability, of excise duty be the same in all 
Member States, it is necessary to make clear at Community level when excise 
goods are released for consumption and who the person liable to pay the excise 
duty is. 
11 Recital 9 of Directive 2008/118: 
Since excise duty is a tax on the consumption of certain goods, duty should not be 
charged in respect of excise goods which, under certain circumstances, have been 
destroyed or irretrievably lost. 
12 Article 1(1) of Directive 2008/118: 
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’): 
HAUPTZOLLAMT C 
 
5 
… 
13 Article 7 of Directive 2008/118: 
1. Excise duty shall become chargeable at the time, and in the Member State, 
of release for consumption. 
2. For the purposes of this Directive, ‘release for consumption’ shall mean any 
of the following: 
(a) … 
(b) the holding of excise goods outside a duty suspension arrangement where 
excise duty has not been levied pursuant to the applicable provisions of 
Community law and national legislation; 
(c) … 
(d) the importation of excise goods, including irregular importation, unless the 
excise goods are placed, immediately upon importation, under a duty suspension 
arrangement. 
… 
14 Article 9 of Directive 2008/118: 
The chargeability conditions and rate of excise duty to be applied shall be those in 
force on the date on which duty becomes chargeable in the Member State where 
release for consumption takes place. 
Excise duty shall be levied and collected and, where appropriate, reimbursed or 
remitted according to the procedure laid down by each Member State. … 
15 Article 33 of Directive 2008/118: 
1. Without prejudice to Article 36(1), where excise goods which have already 
been released for consumption in one Member State are held for commercial 
purposes in another Member State in order to be delivered or used there, they shall 
be subject to excise duty and excise duty shall become chargeable in that other 
Member State. … 
2. … 
3. … 
4. Without prejudice to Article 38, where excise goods which have already 
been released for consumption in one Member State move within the Community 
for commercial purposes, they shall not be regarded as held for those purposes 
REQUEST FOR A PRELIMINARY RULING OF 12. 12. 2023 – CASE C-214/24 
 
6  
until they reach the Member State of destination, provided that they are moving 
under cover of the formalities set out in Article 34. 
5. … 
6. The excise duty shall, upon request, be reimbursed or remitted in the 
Member State where the release for consumption took place where the competent 
authorities of the other Member State find that excise duty has become chargeable 
and has been collected in that Member State. 
16 Article 38 of Directive 2008/118: 
1. Where an irregularity has occurred during a movement of excise goods 
under Article 33(1) or Article 36(1), in a Member State other than the Member 
State in which they were released for consumption, they shall be subject to excise 
duty and excise duty shall be chargeable in the Member State where the 
irregularity occurred. 
2. … 
3. … 
The competent authorities of the Member State in which the excise goods were 
released for consumption shall, upon request, reimburse or remit the excise duty 
where it was levied in the Member State where the irregularity occurred or was 
detected. … 
4. For the purposes of this Article, ‘irregularity’ shall mean a situation 
occurring during a movement of excise goods under Article 33(1) or Article 36(1), 
not covered by Article 37 due to which a movement, or a part of a movement, of 
excise goods has not duly ended. 
17 Applicable national law: 
18 Paragraph 23(1) of the TabStG: 
Where, contrary to Paragraph 17(1), manufactured tobacco released for 
consumption in another Member State is transported into the fiscal territory in 
cases other than those referred to in Paragraph 22(1) or dispatched to that territory 
(for commercial purposes), the duty shall become chargeable when the 
manufactured tobacco is first held for commercial purposes. The person liable to 
pay the duty is the person who supplies or holds the manufactured tobacco and the 
consignee, as soon as he takes possession of it. … 
IV. 
19 There are doubts as to the interpretation of Article 7 and Article 33 of 
Directive 2008/118. It is also unclear whether the Court’s Prankl judgment of 
5 March 2015 – C-175/14, EU:C:2015:142 – which was based on Directive 92/12, 
HAUPTZOLLAMT C 
 
7 
is transposable to Directive 2008/118 and whether that judgment may also be 
applied where the manufactured tobacco enters the Member State of destination 
but is not discovered there by the excise authorities. 
20 1. Under German law as applicable in the year at issue – 2013 – liability for the 
tobacco duty arose in Germany and lies with the applicant. 
21 By virtue of the fact that the manufactured tobacco was transported from 
Lithuania, where it had already been released for consumption as a result of its 
irregular importation within the meaning of Article 7(2)(d) of Directive 2008/118, 
to Germany via Poland without the use of an accompanying document prescribed 
by Article 34 of Directive 2008/118 and that they were held there for commercial 
purposes, liability for tobacco duty was incurred in Germany pursuant to the first 
sentence of Paragraph 23(1) of the TabStG. 
22 Under the second sentence of Paragraph 23(1) of the TabStG, the applicant is 
liable to pay tax because he was in possession of the manufactured tobacco. 
According to the jurisprudence of the referring court (cf. the Chamber’s judgment 
of 10 October 2007 – VII R 49/06, BFHE 218, 469, paragraph 19 et seq.), the 
driver of an articulated lorry is in possession of the goods carried, including any 
goods of which he or she is not aware. In the present case, the cigarettes were in 
the boilers and/or air-conditioning appliances transported by the applicant in the 
articulated lorry which he was driving. Whether or not the applicant was aware of 
the concealed cigarettes has no bearing on his liability for excise duty. 
23 2. However, the referring court is uncertain whether, in the present case, EU law 
permits liability for duty to arise in Germany, since the cigarettes had already been 
released for consumption in Lithuania and Poland before entering Germany. This 
would mean that the excise duty would become chargeable in more than one 
Member State. 
24 (a) Under Article 7(1) of Directive 2008/118, excise duty becomes chargeable at 
the time, and in the Member State, of release for consumption. 
25 Article 7(2) of Directive 2008/118 lists various processes for which release for 
consumption is deemed to have taken place. For example, under Article 7(2)(b) of 
Directive 2008/118, the holding of excise goods outside a duty suspension 
arrangement is to be regarded as release for consumption where excise duty has 
not been levied pursuant to the applicable provisions of Community law and 
national legislation. Similarly, under Article 7(2)(d) of Directive 2008/118, the 
importation of excise goods, including irregular importation, is to be regarded as 
release for consumption. In those cases, it must therefore be assumed that excise 
duty becomes chargeable under Article 7(1) of Directive 2008/118. 
26 However, Article 7(2) of Directive 2008/118 does not specify whether excise duty 
may be assumed to have become chargeable more than once where more than one 
of the processes referred to in that provision are carried out successively. 
REQUEST FOR A PRELIMINARY RULING OF 12. 12. 2023 – CASE C-214/24 
 
8  
27 (b) In the present case, the cigarettes were imported into the territory of the 
Community in Lithuania, with the result that they are deemed to have been 
released for consumption there under Article 7(2)(d) of Directive 2008/118 and 
excise duty has become chargeable there under Article 7(1) of Directive 2008/118. 
28 A duty suspension arrangement which would have prevented the release for 
consumption of manufactured tobacco had not been initiated because, under 
Article 21 of Directive 2008/118, a tax suspension arrangement presupposes the 
use of an electronic administrative document, which had not been processed in the 
present case. 
29 Since the manufactured tobacco was then transported to Germany (via Poland) 
and the applicant, as the driver of the HGV, held them outside a duty suspension 
arrangement, the conditions of Article 7(2)(b) of Directive 2008/118 are also 
satisfied. The Finanzgericht did not establish that the excise duty had already been 
levied in Lithuania. Manufactured tobacco is therefore deemed, under the 
aforesaid provision, to have been released for consumption in Germany. 
30 That reading of Article 7(2) of Directive 2008/118 would ultimately mean, in the 
present case, that the excise duty was chargeable more than once and that the 
same manufactured tobacco may be taxed in more than one Member State. 
31 (c) The referring court harbours doubts about that outcome for various reasons. 
32 (aa) First of all, on the basis of the actual wording of Article 7(1) of 
Directive 2008/118, it seems doubtful whether manufactured tobacco already 
deemed to have been released for consumption (following importation, for 
example) may be deemed to have been released for consumption again, (for 
example through being held outside a duty suspension arrangement). The 
expression ‘release for consumption’ (in German ‘Überführung in den 
steuerrechtlich freien Verkehr’, in French ‘mise à la consommation’) describes a 
change which, once it has taken place, cannot take place again. Consequently, if 
manufactured tobacco is already released for consumption, the question arises as 
to how it may again be placed in that legal situation, for example on the ground 
that it is held outside a duty suspension arrangement. The contradiction is all the 
more evident where the importation and subsequent holding take place in the same 
Member State and the excise duty would thus become chargeable twice in one 
Member State. 
33 That said, the notional release for consumption under Article 7(2)(b) of 
Directive 2008/118 presupposes that no excise duty has yet been levied on the 
manufactured tobacco. This likewise suggests that the EU legislature intended the 
excise duty to become chargeable only once. 
34 (bb) That outcome could also be dictated by Article 9 of Directive 2008/118, 
which stipulates that the chargeability of excise duty is governed by the law of the 
Member State where release for consumption takes place. This indicates that the 
tax can be collected only once or only in one Member State. 
HAUPTZOLLAMT C 
 
9 
35 (cc) Furthermore, multiple taxation of the same excise goods is not consistent with 
the spirit and purpose of Directive 2008/118. The purpose of Directive 2008/118, 
according to its Article 1(1), is to lay down general arrangements in relation to 
excise duty which is levied directly or indirectly on the consumption of the certain 
goods (see also recital 9 of Directive 2008/118 and the Court’s judgment of 
21 December 2023 in CDIL – C-96/22, paragraph 53). However, an article can 
only be consumed once. That is also suggested by recital 8 of Directive 2008/118, 
which, in connection with the chargeability of excise duty, focuses on the time of 
release for consumption and on the need for uniform conditions for the 
chargeability of excise duty. In that recital, the EU legislature uses the singular 
when referring to the chargeability of excise duty (in German 
‘Verbrauchsteueranspruch’), which is a further argument against the multiple 
chargeability of excise duty. 
36 3. In any event, even if, under EU law, excise duty were chargeable in Germany in 
spite of the cigarettes having previously been released for consumption in other 
Member States and Germany being only a Member State of transit, the referring 
court doubts whether Germany is entitled to levy the chargeable tobacco duty, for 
in all three cases at issue, the cigarettes were transported to the United Kingdom, 
which, at the material time, still belonged to the territory of the Community within 
the meaning of Article 5(1) of Directive 2008/118, read in conjunction with 
Article 4, points 2 and 3, thereof, so that they were neither consumed in Germany 
nor had they remained there. 
37 (a) In its Prankl judgment of 5 March 2015 – C-175/14, EU:C:2015:142, 
paragraph 21 – the Court held, with regard to Directive 92/12 on the general 
arrangements for products subject to excise duty, which was applicable at that 
time, that Article 7(1) and (2) of Directive 92/12 laid down the general rule that a 
product subject to excise duty, released for consumption in one Member State and 
held for commercial purposes in another Member State, was taxed in the latter 
State. The excise duty is therefore chargeable in the Member State for which the 
product is intended rather than the State where it is released for consumption (cf. 
also the judgment of the Court of 9 September 2004 in Meiland Azewijn – 
C-292/02, EU:C:2004:499, paragraph 35). In this context, the Court also recalled 
that harmonisation of excise duties makes it possible, in principle, to avoid double 
taxation in relations between Member States and that excise duty is levied in a 
single Member State, namely the Member State of destination and consumption of 
the goods (judgment of the Court of 5 March 2015 in Prankl – C-175/14, 
EU:C:2015:142, paragraphs 20 and 22). In addition, the Court clarified that the 
transit Member States and the Member State of departure are not competent to 
levy excise duty where such products have been discovered by the authorities of 
another Member State in whose territory they are held for commercial purposes 
(judgment of the Court of 5 March 2015 in Prankl – C-175/14, EU:C:2015:142, 
paragraph 26; see also the earlier judgment of the Court of 29 April 2010 in Dansk 
Transport og Logistik – C-230/08, EU:C:2010:231, paragraph 114). 
REQUEST FOR A PRELIMINARY RULING OF 12. 12. 2023 – CASE C-214/24 
 
10  
38 It is true that neither Article 7(1) and (2) of Directive 92/12 nor Article 9(1) of 
Directive 92/12 expressly excludes the levying of excise duty on smuggled goods 
in a Member State through which the goods have transited, even if they are no 
longer in the territory of that State and have arrived in the Member State of 
destination. According to the Court, however, where goods unlawfully introduced 
into the territory of the European Union are there for commercial purposes, it 
follows from Article 6(1) of Directive 92/12, read in conjunction with Article 7(1) 
of that directive, that the authorities of the Member State in which those goods 
were discovered are competent to levy the excise duty (judgments of 29 April 
2010 in Dansk Transport og Logistik – C-230/08, EU:C:2010:231, paragraph 114, 
and of 5 March 2015 in Prankl – C-175/14, EU:C:2015:142, paragraphs 23-24, 
and the Court’s order of 8 March 2012 in Febetra – C-333/11, EU:C:2012:134, 
paragraph 41). 
39 To sum up, where excise goods have been held for commercial purposes in 
another Member State and have been discovered by the competent authorities of 
that Member State, both the transit Member States and the Member State of 
departure are not or are no longer competent to levy the excise duty. It is only in 
the event of entry for private purposes into another Member State that the fiscal 
competence of the transit Member States remains. 
40 (b) That legal situation has not been essentially altered since the entry into force of 
Directive 2008/118, which is applicable to the present dispute. Even if excise duty 
has become chargeable in Germany under the provisions of Article 7(1) of 
Directive 2008/118, read in conjunction with Article 7(2) of that directive, there 
are therefore doubts as to whether Germany is competent to levy the excise duty 
or whether the power to levy duty under Article 33(1) of Directive 2008/118 was 
transferred to the Member State of destination, namely the United Kingdom, at 
least in so far as the goods were discovered there when the third delivery was 
made. 
41 (aa) According to the findings of the Finanzgericht, the cigarettes were transported 
to and held in the United Kingdom for commercial purposes.(Article 33(1) of 
Directive 2008/118). During the journey made at the beginning of November 
2013, untaxed and uncleared cigarettes, concealed in boilers and/or air-
conditioning appliances, were discovered in a search conducted by Her Majesty’s 
Revenue and Customs (HMRC). Given the circumstances of the case, it is the 
conviction of the Finanzgericht that the same purpose had been served by the two 
journeys made in October 2013. There was no acquisition by a private individual 
within the meaning of Article 32 of Directive 2008/118, in which case 
competence to levy the excise duty would remain with the Member State in which 
the excise goods were acquired, because the applicant did not acquire the 
cigarettes for his own use. Furthermore, it must be held that the cigarettes were 
also intended to be delivered or used in the United Kingdom, since the HGV was 
unloaded there in each case after its arrival. The conditions of Article 33(1) of 
Directive 2008/118 are therefore satisfied in the present case. Accordingly, the 
HAUPTZOLLAMT C 
 
11 
UK authorities would be responsible for levying the tobacco duty in the present 
case. 
42 (bb) In the view of the referring court, it is not apparent from Article 33(4) of 
Directive 2008/118 that Germany is competent to levy excise duty. Under that 
provision, without prejudice to Article 38 of Directive 2008/118, where excise 
goods which have already been released for consumption in one Member State 
move within the Community for commercial purposes, they are not to be regarded 
as held for those purposes until they reach the Member State of destination, 
provided that they are moving under cover of the formalities set out in Article 34 
of Directive 2008/118. Consequently, there is no commercial use if and as long as 
the goods move under cover of an accompanying document within the meaning of 
Article 34 of Directive 2008/118, which was not the case in the present dispute. 
The EU legislature therefore provided in Article 33(4) of Directive 2008/118 for 
an exception in cases where there is no commercial purpose and so competence to 
levy excise duty is not transferred to the Member State of destination in 
accordance with Article 33(1) of Directive 2008/118. 
43 However, unlike the Hauptzollamt, the referring court sees no reason to conclude 
that Article 33(4) of Directive 2008/118 also contains a rule governing the 
competence of a Member State of transit – Germany in the present case – to levy 
excise duty in the event that no accompanying document has been used. On the 
contrary, if the goods were transported without the accompanying document 
referred to above, the purpose of the transport remains commercial, and so the 
principle laid down in Article 33(1) of Directive 2008/118 continues to apply, 
whereby excise duty is levied in the Member State of destination. That 
notwithstanding, Article 33(4) of Directive 2008/118 refers only to the condition 
of commercial purposes within the meaning of Article 33(1) of 
Directive 2008/118, whereas the second condition, that products must be intended 
for delivery or use in the Member State of destination, is not referred to in 
Article 33(4) of Directive 2008/118. That is a further argument in favour of there 
being no rule assigning competence in Article 33(4) of Directive 2008/118. 
44 (c) In the view of the referring court, it is also not apparent from Article 38(1) of 
Directive 2008/118 that Germany is competent to levy excise duty. 
45 Under that provision, where, during a movement of goods subject to excise duty 
under Article 33(1) of Directive 2008/118, an irregularity has been committed in a 
Member State other than that in which the excise goods were released for 
consumption, the goods are subject to excise duty, which is chargeable in the 
Member State where the irregularity occurred. 
46 In the present case, the manufactured tobacco had already been released for 
consumption following irregular importation into Lithuania. It is not clear from 
Article 38(1) of Directive 2008/118, however, whether onward transport without a 
simplified accompanying document still constitutes an irregularity in the Member 
States which are subsequently entered during the movement. In that 
REQUEST FOR A PRELIMINARY RULING OF 12. 12. 2023 – CASE C-214/24 
 
12  
understanding, a movement without an accompanying document would constitute 
a continuous irregularity. 
47 However, the referring court understands Article 38 of Directive 2008/118 as 
covering only discrete irregularities. Accordingly, Article 38(4) of 
Directive 2008/118 also defines an irregularity as a discrete event, namely a 
situation due to which a movement of excise goods has not duly ended. 
48 4. The question of which Member State is competent to levy excise duty in a case 
such as the present one has not been entirely settled by the existing case-law of the 
Court. 
49 (a) The Court, it is true, has already found that Articles 32 to 34 of 
Directive 2008/118 do not substantially amend Articles 7 to 9 of Directive 92/12 
but reproduce the content of those articles while clarifying it (judgment of 18 July 
2013 in Metro Cash & Carry Danmark – C-315/12, EU:C:2013:503, 
paragraph 42). 
50 However, it is not clear from the Court’s Prankl judgment of 5 March 2015 – 
C-175/14, EU:C:2015:142 – how to assess the competence of Member States of 
transit to levy excise duty if the cigarettes have been transported to another 
Member State but were not discovered there. The Court might perhaps be 
understood to the effect that all that matters for a transfer of competence to levy 
duty to the Member State of destination is whether the manufactured tobacco 
actually arrived there, regardless of whether or not it is discovered there by the 
competent authorities. Although the facts of the case in the main proceedings and 
the question referred for a preliminary ruling covered both situations, the Court’s 
ruling expressly related only to products discovered in the Member State of 
destination, so that, from the referring court’s point of view, the question of 
competence to levy excise duty on undiscovered products has not yet been 
conclusively clarified. 
51 (b) The question of the competence of a Member State of transit to levy duty is 
also not resolved by the Court’s other existing case-law. In its Schenker judgment 
of 8 September 2016 – C-409/14, EU:C:2016:643 – the Court had to rule on a 
different set of facts. In that case, an incorrect combined nomenclature heading 
was indicated in the accompanying documents for consignments of manufactured 
tobacco (paragraph 59). Furthermore, the manufactured tobacco was still under a 
customs suspensive procedure or arrangement, for which reason it had not yet 
been released for consumption (paragraph 127). 
52 The Court’s judgment of 3 July 2014 in Gross – C-165/13, EU:C:2014:2042 – 
concerned the question of the tax liability of a receiver of contraband excise goods 
and likewise does not answer the question of the competence of transit Member 
States to levy excise duty. 
53 5. For information only, the referring court takes the liberty to refer to the 
judgment of the Austrian Verwaltungsgerichtshof (Supreme Administrative 
HAUPTZOLLAMT C 
 
13 
Court) of 5 May 2021 – Ra 2018/16/0129 – which related to the movement of 
excise goods (beer) immediately after the opening of two duty suspension 
arrangements for two separate direct deliveries to the final customer 
(paragraph 34). In the case of such immediate delivery, the 
Verwaltungsgerichtshof found that the Member State of departure was not 
competent to levy the excise duty (paragraph 41). In the dispute before the 
referring court, however, no duty suspension arrangement has been initiated in 
any Member State, which means that the decision referred to here cannot be 
transposed to the present case.