Judgment;Summary — ECLI:EU:C:2025:907
Date: 2025-11-20
Language of the case: Romanian
Court formation: Seventh Chamber
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-570/24 – 1 
Case C-570/24 
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: 
27 August 2024 
Referring court: 
Curtea de Apel Cluj (Romania) 
Date of the decision to refer: 
16 March 2024 
Appellant and applicant at first instance: 
Ecoserv SRL, through Transilvania Master Insolv IPURL, 
insolvency administrator 
Appellants and defendants at first instance: 
Administrația Județeană a Finanțelor Publice Bistrița-Năsăud 
Serviciul Fiscal Orășenesc Năsăud 
Direcția Generală Regională a Finanțelor Publice Cluj 
  
Subject matter of the main proceedings 
Appeal brought in the context of administrative and tax proceedings against the 
judgment of the Tribunalul Bistrița-Năsăud (Regional Court, Bistrița-Năsăud, 
Romania), by which the tax authorities, as a result of a criminal [judicial] decision 
which has become final, have been ordered to issue a decision declaring that the 
notice of assessment imposing additional tax obligations in respect of excise 
duties and VAT on the applicant at first instance (now the appellant) was partially 
null and void, and to annul in part the decisions permitting payment of those 
obligations in instalments 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/24 
 
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Subject matter and legal basis of the request 
On the basis of Article 267 TFEU, interpretation is primarily sought of 
Article 8(1)(a)(i) and Article 8(2) of Council Directive 2008/118/EC of 
16 December 2008 concerning the general arrangements for excise duty and 
repealing Directive 92/12/EEC 
Questions referred for a preliminary ruling 
(1) Does the scope of Article 8(1)(a)(i) of Council Directive 2008/118/EC 
concerning the general arrangements for excise duty and repealing [Directive 
92/12/EEC], read in conjunction with Article 8(2) thereof, concerning the concept 
of a person liable to pay excise duty, also cover a legal person that, in order to 
obtain authorisation as a tax warehousekeeper, has been engaged in the production 
of ethyl alcohol under a technical testing regime subject to the supervision of the 
local customs authority [and] from whose business assets a quantity of 21 909 
litres of ethyl alcohol with an alcoholic strength of 96.16% has been found to be 
missing? 
(2) [Where,] following the issuing of a notice of assessment – by which that 
legal person has been ordered to pay additional excise duty and VAT in respect of 
the quantity of ethyl alcohol missing from the business assets – which has not 
been the subject of an administrative appeal, it has been held in a criminal judicial 
decision which has become final that the only person responsible for causing 
damage to the State budget was the de facto manager (managing director) of that 
company, who, during the period running from February 2013 to June 2013, on 
the basis of the same criminal intention, sold a quantity of 21 909 litres of double-
refined alcohol from the business assets of the company, of which he was an 
employee, for the amount of 219 090 Romanian lei (RON), committing the crime 
of embezzlement under Article 295(1) of the Codul penal (Criminal Code), and 
did not record in the accounts the revenue obtained from the sale of that quantity 
of alcohol, causing damage to the State budget in the amount of RON 915 562.74, 
an act which comprises the constituent elements of the crime of tax evasion under 
Article 9(1)(b) [and] Article 9(2) of [Legea nr. 241 din 15 iulie 2005 pentru 
prevenirea și combaterea evaziunii fiscale (Law No 241 of 15 July 2005 on 
preventing and combating tax evasion)], does … the imposing of those taxes also 
on the legal person by means of Notice of Assessment No F-BN 77 of 4 March 
2016 – a notice that has not been appealed by means of the procedure laid down in 
the Codul de procedură fiscală (Code of Tax Procedure) – constitute a serious and 
manifest error in the application of the harmonised European Union law on excise 
duties and VAT? 
(3) In the context of a tax dispute concerning excise duties and VAT, does 
European Union law preclude a national court from applying the principle of res 
judicata in relation to a criminal judicial decision where the application of that 
principle would constitute an obstacle to the European Union rules on excise 
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duties and VAT – which also provide for the joint and several liability of legal 
persons – being taken into consideration, where those rules have not been 
analysed by the criminal courts in decisions which have become final? 
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, Articles 4, 7, 8 
and 37 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, Articles 14, 73 and 78 
Case-law of the Court of Justice relied on 
Judgment of 16 July 2020, UR (VAT liability of lawyers) (C-424/19) 
Provisions of national law relied on 
[Legea nr. 571 din 22 decembrie 2003 privind Codul fiscal (Law No 571 of 
22 December 2003 establishing the Tax Code) (‘the Tax Code’)], as amended – 
Articles 126, 128 and 137 concerning taxable transactions and the tax base for 
value added tax; Articles 2062 to 20622 concerning harmonised excise duties 
Article 2069(1)(a)(1) stipulates, in particular, that the person liable for payment of 
the excise duty that has become due, in respect of the departure of excise goods 
from a duty suspension arrangement, is the authorised warehousekeeper, the 
registered consignee or any other person who releases the excise goods from the 
duty suspension arrangement or in whose name those goods are released and, in 
the case of irregular release from the tax warehouse, any other person who 
participated in that release. 
Article 20622 stipulates that, in order to obtain authorisation for a location to 
operate as a tax warehouse, the person intending to be an authorised 
warehousekeeper for that location must submit an application to the competent 
authority, in the manner and form prescribed by the methodological rules. 
[Normele metodologice de aplicare a Legii nr. 571/2003 privind Codul fiscal 
(methodological rules for implementing the Tax Code) (‘the Methodological 
Rules’)], approved by Hotărârea Guvernului nr. 44 din 22 ianuarie 2004 
(Government Decision No 44 of 22 January 2004) – point 84 in application of 
Article 20622. In accordance with paragraphs 8 and 9 of point 84, 
warehousekeepers awaiting authorisation may operate under a technical testing 
regime subject to the supervision of the local customs authority for a maximum 
period of 60 days from the date on which the written authorisation is obtained. 
During the technical testing period, a warehousekeeper awaiting authorisation is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/24 
 
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required to obtain the tariff classification of the finished products and the 
classification in the nomenclature of codes for excise goods from the central 
customs authority. In accordance with paragraph 11 of point 84, during the 
technical testing period, the finished excise goods obtained may not leave the 
location proposed for authorisation as a tax warehouse. 
[Legea nr. 207 din 20 iulie 2015 privind Codul de procedură fiscală (Law 
No 207 of 20 July 2015 establishing the Code of Tax Procedure) (‘the Code of 
Tax Procedure’)], Article 49 on the invalidity of fiscal administrative acts and 
Articles 268, 270, 277 and 281 on administrative complaints 
[Legea nr. 286 din 17 iulie 2009 privind Codul penal (Law No 286 of 17 July 
2009 establishing the Criminal Code) (‘the Criminal Code’)], as amended and 
supplemented, Article 244(1) and Article 295, which regulate the crimes of 
swindling and embezzlement respectively 
[Legea nr. 241 din 15 iulie 2005 pentru prevenirea și combaterea evaziunii 
fiscale (Law No 241 of 15 July 2005 on preventing and combating tax evasion) 
(‘Law No 241/2005’)], as amended, Article 9(1)(b), which regulates the crime of 
tax evasion 
[Legea nr. 135 din 1 iulie 2010 privind Codul de procedură penală (Law 
No 135 of 1 July 2010 establishing the Code of Criminal Procedure) (‘the Code of 
Criminal Procedure’)], Article 598, which regulates opposition to enforcement 
Succinct presentation of the facts and procedure in the main proceedings 
1 During the period running from February 2013 to April 2013, the company 
Ecoserv SRL, the appellant (and applicant at first instance) (‘the applicant 
company’), was authorised to engage in activities associated with the production 
of ethyl alcohol under a technical testing regime, in accordance with Article 20622 
of the Tax Code and point 84 of the Methodological Rules. 
2 Following an unannounced inspection carried out in November 2015 by the 
criminal investigation bodies and the customs authorities, it was found that a 
quantity of 21 909 litres of ethyl alcohol was missing from the company’s 
business assets. 
3 In order to tax the value corresponding to those missing business assets, the 
Administrația Județeană a Finanțelor Publice Bistrița-Năsăud (Provincial 
Administration of Public Finances, Bistrița-Năsăud, Romania) [(‘the AJFP 
Bistrița-Năsăud’)] issued Notice of Assessment No 77 of 4 March 2016 (‘the 
contested notice of assessment’) and imposed additional tax obligations on the 
applicant company in the total amount of RON 1 292 693. Those tax obligations 
included RON 15 100 in corporate income tax, RON 278 244 in VAT, 
RON 799 655 in excise duty on ethyl alcohol and RON 199 694 in contributions 
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for the financing of healthcare costs for the national production of alcoholic 
beverages. 
4 The applicant company did not contest the decision either administratively or 
through the courts and obtained permission to pay those obligations in 
instalments. 
5 At the same time, criminal proceedings were initiated against Mr HZ, an 
employee and managing director of the applicant company, who was sentenced to 
a term of imprisonment of one year for committing the crime of swindling under 
Article 244(1) of the Criminal Code, a term of imprisonment of three years for 
committing the crime of embezzlement under Article 295 of the Criminal Code 
and a term of imprisonment of seven years and three months for committing the 
crime of tax evasion under Law No 241/2005. The charge against Mr HZ was that, 
on the basis of the same criminal intention, during the period running from 
February 2013 to June 2013, he (i) had misled the applicant company’s 
representative as to the existence – among the company’s business assets – of a 
stock of 21 909 litres of ethyl alcohol (an act that constitutes swindling), (ii) had 
sold that quantity of alcohol, obtaining an amount of RON 219 000 in return (an 
act which comprises the constituent elements of the crime of embezzlement), and 
(iii) had not recorded in the accounts the revenue obtained from that sale (an act 
that constitutes tax evasion). 
6 On the civil side, in the criminal trial the Romanian State, acting through the 
Agenția Națională de Administrare Fiscală (National Agency for Fiscal 
Administration, Romania), joined a civil action to the criminal proceedings and 
requested that the accused be ordered, jointly and severally with the applicant 
company, as a civilly liable party, to pay compensation for the damage caused to 
the local budget in the amount of RON 1 292 693. 
7 In that judgment, the criminal court ordered the accused to pay part of the sum 
claimed, in accordance with the financial expert’s report in the case file, but 
dismissed the claim against the applicant company as unfounded. The court of 
first instance held that the accused, a natural person, had acted neither in the name 
nor in the interests of the company but had instead acted in his own interest, being 
the sole beneficiary of the 21 909 litres of alcohol, or its equivalent value, such 
that he was solely liable, both criminally and civilly, vis-à-vis the persons who 
had suffered damage. 
8 That judgment became final after being upheld by the appeal court, which, in 
terms of the civil case, also held that the accused had never held the position of 
officially appointed director of the applicant company or any office within the 
company – even implicitly – that might have authorised him to commit the 
offences. 
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9 Following the outcome of the criminal proceedings, the applicant company 
requested that the tax authorities annul the contested notice of assessment and 
refund to it the amounts paid on the basis of that notice. 
10 At this point, the tax authority brought an application to oppose enforcement 
before the criminal court that had delivered the judgment handing down the 
conviction and requested clarification on the section of the operative part of that 
criminal judgment relating to the civil law issue. The tax authority asked for 
clarification as to whether the dismissal of the claim against the civilly liable party 
had legal and tax consequences with regard to the exclusion of the company’s tax 
liability. The authority argued that the contested notice of assessment had not been 
appealed by the company and that, on the date when the application to oppose 
enforcement was filed, it had not been annulled, amended or revoked, and that it 
continued to enjoy the presumption of legality or veracity. 
11 That application to oppose enforcement was rejected on the ground that the 
operative part of the criminal judgment that was the subject of the request for 
clarification makes it absolutely clear that, under civil law, the only person liable 
for damages is the accused natural person. Thus, the sums paid by the applicant 
company are not at issue and are subject to recovery, according to administrative 
(and not judicial) procedures that fall within the enforcement phase of the 
judgment and are within the remit of the tax authority (Articles 49 and 50 of the 
Code of Tax Procedure). 
12 In that context, the applicant company brought an action before the Tribunalul 
Bistrița-Năsăud (District Court, Bistrița-Năsăud) in order to obtain the annulment 
of the contested notice of assessment and of the decisions permitting payment in 
instalments. 
13 That court held that through the abovementioned judgments of the criminal courts, 
the applicant company had been exonerated in respect of its tax obligations, with 
the authority of res judicata, and the contested notice of assessment was therefore 
the result of a serious and manifest error. The determination of the tax obligations 
was based on a situation that was not created through the conduct of the taxpayer 
and cannot be imputed to it, as the error was occasioned by the fact that the tax 
authority determined the additional obligations before the conclusion of the 
criminal proceedings to which that tax authority had itself joined a civil action. In 
accordance with Article 277(4) of the Code of Tax Procedure, the final judgment 
by which the court hearing the criminal proceedings gives its decision on the civil 
action may be relied on against the authorities with competence to decide on the 
case, having regard to the sums that have prompted the State to join a civil action 
to those criminal proceedings. 
14 Accordingly, the Tribunalul Bistrița-Năsăud (District Court, Bistrița-Năsăud) 
granted the application in part and ordered the AJFP Bistrița-Năsăud, one of the 
defendants at first instance, to issue a decision declaring the contested notice of 
assessment to be partially invalid, in particular with regard to the determination of 
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tax obligations totalling RON 1 267 200. That court also ordered the Serviciul 
Fiscal Orășenesc Năsăud (Tax Office of the Municipality of Năsăud, Romania), 
another defendant at first instance to annul in part the decisions permitting 
payment of those obligations in instalments and to order the repayment to the 
applicant company of the amount paid by it to discharge its tax obligations, with 
interest. 
15 The referring court, the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania), is 
now hearing the appeals brought by both the applicant company and the defendant 
tax authorities. 
The essential arguments of the parties in the main proceedings 
The applicant company argues, in essence, that there is no need to submit a 
request for a preliminary ruling to the Court of Justice, because the issue 
concerned is an issue of national law regarding the enforcement of judicial 
decisions. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The referring court, being called upon to give judgment as the court of last 
instance, has decided of its own motion to submit a request to the Court of Justice 
for a preliminary ruling on the interpretation of Directive 2008/118, with a view to 
establishing whether the applicant company has the status of a person liable to pay 
excise duty for the purposes of Article 8(1)(a)(i) of that directive in the case of the 
irregular departure of excise goods from the location where that person has carried 
out the activity of producing ethyl alcohol under a technical testing regime subject 
to the supervision of the local customs authority. 
17 The appeal court may not re-examine the factual tax situation considered by the 
court of first instance or the facts that have been established by the criminal courts 
and that have the authority of res judicata. It may only examine a reclassification 
of those factors in the light of European Union law, which takes precedence over 
conflicting provisions of national law. 
18 With regard to the first question, the referring court is seeking clarification 
from the Court of Justice on the applicant company’s own tax liability. 
19 The referring court has stated that the tax authorities concluded that the quantity 
of ethyl alcohol missing from the applicant company’s business assets constituted 
an irregular departure from a suspension arrangement. 
20 It follows from the provisions of Article 20622 of the Tax Code and point 84 of the 
Methodological Rules (which relates to that article of the Tax Code) that a person 
intending to be an authorised warehousekeeper has a number of obligations of its 
own as a taxable entity in its legal relationship with the competent customs 
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authority, which also include prohibiting the departure of the finished excise 
goods from the location proposed for authorisation as a tax warehouse. 
21 In that context, the view accepted by the criminal courts and by the administrative 
and tax court of first instance, according to which the only person liable is the 
former director of the applicant company, may not be decisive, given that 
Article 8(2) of Directive 2008/118 provides for joint and several liability where 
several persons are liable for payment of a single excise debt. 
22 To ensure the full effectiveness of European Union law – in the present case, 
Directives 2008/118 and 2006/112 – the referring court raises the issue of the 
relevance and interpretation of Article 8(1)(a)(i) of Directive 2008/118 in the 
context of the tax regime under which a person intending to be an authorised tax 
warehousekeeper operates. That issue is all the more important because the 
criminal courts have not analysed the impact in this case of Directive 2008/118, 
which has been transposed into national law. 
23 On the other hand, the referring court questions whether, in order to establish the 
liability of the person seeking authorisation as a tax warehousekeeper, in 
accordance with Article 8(1)(a)(i) of Directive 2008/118, in the context of the tax 
regime under which that person operates, it is sufficient to establish negligence on 
the part of the representatives of the company (the officially appointed directors or 
the de facto managers) who did not take all the steps in relation to good 
management necessary to ensure that, during the technical testing period, the 
finished excise goods obtained did not leave the location proposed for 
authorisation as a tax warehouse and were not sold on the ‘black market’. 
24 The referring court observes in that context that it follows both from the 
provisions of Article 37 of Directive 2008/118 and from the provisions of the 
Romanian Tax Code that the total destruction or irretrievable loss of excise goods 
is not deemed to be release for consumption if it takes place as a result of 
unforeseeable circumstances or force majeure or when the destruction is 
authorised by the competent authority. If Article 8(1)(a)(i) of Directive 2008/118 
is interpreted in the opposite sense, where no unforeseeable circumstances or force 
majeure are pleaded or the destruction is not authorised by the competent 
authority, it would appear that there is an automatic obligation on the part of the 
warehousekeeper to pay excise duty on the irregular departure of the excise goods 
from the tax warehouse or, as in the present case, from the location proposed for 
use as a tax warehouse. 
25 Lastly, the answer given in relation to the interpretation of Article 8(1)(a)(i) of 
Directive 2008/118, read in conjunction with Article 8(2) of that directive, also 
affects the question as to whether additional VAT is payable in respect of the 
missing business assets and in respect of the sale of the alcohol, since the tax base 
for VAT includes taxes, duties, levies and charges, and thus also harmonised 
excise duties. 
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26 As regards the second question referred, it should be noted that this question is 
raised in the alternative to the first question and starts from the premiss that the 
contested notice of assessment was lawfully issued in the light of European Union 
law. 
27 In such a situation, the question arises as to whether there is a situation of 
invalidity under Article 49(1)(c) of the Code of Tax Procedure, according to 
which a fiscal administrative act is void if it is vitiated by a serious and manifest 
error, that is to say, when the grounds on which it was adopted are vitiated by such 
a serious defect that, if they had been removed before or at the time when the act 
was adopted, that act would not have been adopted. 
28 The question essentially seeks to clarify whether, in the light of the subsequent 
elements established in the criminal proceedings, the notice of assessment – which 
has not been the subject of an administrative appeal – should be annulled on the 
ground that it is vitiated by a serious and manifest error. On this point, it is 
necessary to provide the referring court with guidance to enable the interpretation 
of the concept of ‘serious and manifest error’, which, in this context, is not merely 
a concept of national law, but relates to aspects of harmonised European Union 
law, such as the chargeability and the chargeable event for excise duty and VAT 
and, in particular, the conditions determining the scope of the persons liable to pay 
those taxes. 
29 The referring court notes the following points of fact and law: first, the notice of 
assessment has not been the subject of an appeal and it is apparent from the tax 
audit report, on which the notice of assessment was based, that the applicant 
company’s legal representative indicated agreement in writing with the findings 
contained in that report. Second, the loss of excise goods occurred in the course of 
the applicant company’s normal business, and the applicant company did not 
claim the existence of unforeseeable circumstances or force majeure or the fact 
that the destruction was authorised by the competent authority. 
30 In those circumstances, the question arises as to whether the conviction of the de 
facto manager (managing director) of that company for committing the crimes of 
embezzlement and tax evasion that caused damage to the public budget in the 
amount of RON 915 562.74 in excise duties and VAT contains elements that 
demonstrate a serious and manifest error in the application of the harmonised 
European Union law on excise duties and VAT, given that those taxes have also 
been imposed on the legal person by means of the contested notice of assessment. 
31 The referring court cites the criminal court’s findings that ‘the accused (a natural 
person) is the active subject of the crime of tax evasion, the objective elements of 
that crime also being present, in that, in his capacity as director, he did not record 
in the accounts the revenue obtained, thereby causing damage to the State budget’. 
In that context, the referring court states that it can be inferred from this statement 
that the accused natural person also acted – from the point of view of the tax 
system – as an officer of the company, which had a mandatory obligation to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-570/24 
 
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record in that company’s accounts the revenue obtained from the sale of the excise 
goods. The referring court questions the relevance of that element for the purpose 
of determining whether there has been a manifest and serious error in the 
application of European Union law. 
32 As regards the last question, the referring court proceeds on the basis of the 
findings of the criminal court whereby, in essence, the fact that the applicant 
company was exempted, by a final judgment, from payment of tax obligations 
constitutes a serious and obvious defect in the contested fiscal administrative act. 
33 That court observes, first, that, according to the Code of Tax Procedure 
(Article 281), only the competent administrative court may assess the lawfulness 
and validity of a fiscal administrative act, such as the notice of assessment in the 
present case, and not the criminal courts. 
34 Second, the premiss on which the referring court bases that question is the 
situation where the notice of assessment was issued in accordance with the rules 
of Union law in relation to excise duties and VAT and the circumstances 
established in the criminal proceedings do not constitute a serious and manifest 
error in the application of the harmonised Union law on excise duties and VAT. 
35 Third, the referring court has observed that the criminal courts did not even 
analyse the rules on joint and several liability of legal persons in the Tax Code and 
the Methodological Rules implementing that code, in particular in the field of 
excise duties, which have been transposed from Union law. Indeed, it notes that 
the criminal courts did not analyse the tax regime under which the applicant 
company operated as an applicant for authorisation as an authorised 
warehousekeeper and the consequences of its failure to fulfil its obligations 
resulting from its having become subject to that regime by submitting the 
application for authorisation. 
36 Given that the applicant company did not challenge the notice of assessment 
within the 45-day deadline laid down in the Code of Tax Procedure and that it 
agreed with the findings contained in the tax audit report, the issue arises as to the 
extent to which the applicant company can invoke the principle of legal certainty 
to its advantage, to the detriment of the effective application of the rules of Union 
law. It is apparent from the information provided by the tax authorities to the 
referring court that the applicant company paid both the excise duty and the 
additional VAT as determined in the notice of assessment. On the other hand, the 
former director, who was ordered in the criminal proceedings to cover alone the 
damage to the public budget, has been bankrupt since 2021, and no amount has 
been recovered in respect of the damages of RON 1 116 896 assessed in the 
criminal proceedings. 
37 The referring court questions whether the applicant company, as an applicant for 
authorisation as an authorised warehousekeeper, was itself principally liable for 
payment of excise duty in the event of the irregular departure of excise goods 
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from the location where it carried out the business of producing alcohol under a 
technical testing regime subject to the supervision of the customs authorities. An 
interpretation – from a tax point of view – of Directive 2008/118 and of the 
domestic law transposing it that excludes the ‘guarantee’ from the applicant 
company to fulfil its tax obligations would jeopardise the collection of those two 
taxes for the national budget and could harm the financial interests of the Union, 
as indeed has happened in the present case, through the loss of tax revenue. 
38 Lastly, the referring court also refers, mutatis mutandis, to the judgment of 16 July 
2020, UR (VAT liability of lawyers) (C-424/19), in which it was held that if the 
principle of res judicata were to be applied in that manner, this would constitute 
an obstacle to the European Union rules on VAT being taken into consideration in 
tax disputes where criminal judicial decisions that have become final are not based 
on an interpretation of the European Union rules on excise duties and VAT.