Opinion of the Advocate General — ECLI:EU:C:2002:209
Date: 2002-03-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
Tax provisions — Harmonisation of laws — Excise duty — Directive 92/12 — Prod­
ucts moving under duty-suspension arrangements intended for export to non-member 
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SUMMARY — CASE C-395/00 
countries but not arriving at their destination — Offence deemed to have been committed 
in the Member State of departure — Possibility of the operator who has guaranteed the 
payment of excise duty's providing evidence to the contrary — Subject to a time-limit of 
four months from the date of dispatch — Not permissible if insufficient to safeguard 
rights of defence — Relative invalidity of the corresponding provision 
(Council Directive 92/12, Art. 20(3)) 
Where, in connection with the rules laid 
down by Directive 92/12 on the general 
arrangements for products subject to excise 
duty and on the holding, movement and 
monitoring of such products, products 
subject to excise duty and moving under 
duty-suspension arrangements do not 
arrive at their destination and it is imposs­
ible to determine where the offence or 
irregularity was committed, Article 20(3) 
of the Directive provides, on the one hand, 
that the offence or irregularity is deemed to 
have been committed in the Member State 
of departure, which is therefore entitled to 
collect the excise duty and, on the other, 
that within a period of four months of the 
date of dispatch of the products, the 
persons concerned may provide evidence 
of the correctness of the transaction or of 
the place where the offence or irregularity 
was actually committed. 
That provision is invalid in so far as the 
period of four months is relied on against a 
trader who has guaranteed the payment of 
excise duty but was not in a position to 
know, at the appropriate time, that an 
offence, consisting of failure to discharge 
the duty-suspension arrangement, had been 
committed. 
In such circumstances, the application of 
that period of four months from the date of 
dispatch of the products at issue does not 
satisfy the principle of respect for the rights 
of defence. 
(see paras 47-48, 53-54, operative part) 
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