Opinion of the Advocate General — ECLI:EU:C:2020:817
Date: 2020-10-08
Language of the case: Italian
Subject matter: Agriculture and Fisheries;European Agricultural Guidance and Guarantee Fund (EAGGF);Taxation;Free movement of goods;Approximation of laws;Customs Union;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-95/19 — 1 
Case C-95/19 
Request for a preliminary ruling 
Date lodged:  
6 February 2019 
Referring court:  
Corte suprema di cassazione (Italy) 
Date of the decision to refer:  
23 May 2018 
Appellant:  
Agenzia delle Dogane 
Respondent and cross-appellant:  
Silcompa SpA 
  
THE ITALIAN REPUBLIC 
In the name of the Italian people 
THE CORTE SUPREMA DI CASSAZIONE 
SEZIONE TRIBUTARIA (Tax Division)  
… 
… 
has made the following 
Interlocutory Order 
in Appeal … No 15953/2011 … brought by the Agenzia delle dogane … 
‒ appellant ‒ 
v 
EN 
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SILCOMPA SpA … 
‒ respondent and cross-appellant ‒ 
against Decision No 45/37/10 of the Commissione tributaria regionale del Lazio 
(Regional Tax Court, Lazio) … 
[Or.2] 
… [national procedure] 
THE FACTS OF THE CASE 
1 Between 1995 and 1996, Silcompa SpA (‘the company’) supplied ethyl alcohol to 
Greece under the duty-suspension arrangements. 
2 In January 2000, the Ufficio Tecnico di Finanza di Reggio Emilia (the Finance 
Office, Regio Emilia) carried out an inspection (implementing the cooperation 
procedure under Article 19 of Directive 92/12/EEC and Article 7 of Legislative 
Decree No 504 of 26 October 1995 (the codified Law on Excise Duties)). It found 
that the administrative documents accompanying Silcompa’s shipments of alcohol 
had never been received by the Greek customs authorities and that the stamps that 
had been affixed were counterfeit. The Agenzia delle Dogane (‘the Customs 
Authority’) therefore issued three assessment notices (Nos 5/2000, 15/2000 and 
18/2000) for the recovery of unpaid excise duty in the sum of EUR 6 296 495.47. 
Silcompa brought an action before the Tribunale di Bologna (District Court, 
Bologna) challenging those assessment notices. The Customs Authority brought 
an appeal against the decision of that court before the Corte d’appello di Bologna 
(Court of Appeal, Bologna), which is still pending. 
3 In January 2005, in relation to the same intra-Community supplies, the Athens 
customs authority issued documents recording an excise duty debt, which were 
based on the premiss that it had been proven that the ethyl alcohol had been 
illegally released for consumption within Greek territory, having been shipped by 
Silcompa to ‘letterbox’ companies. That finding was based, according to the 
parties, on an earlier criminal investigation which had been carried out and had 
resulted in a judgment of the Criminal Court of First Instance of Piraeus (date not 
known) in which it was established that the goods had reached Greek operators 
and had been fraudulently released for consumption. 
4 On 31 January 2005, the Greek financial authorities made a request for assistance, 
pursuant to Article 7 of Directive 76/308/EEC, as [Or.3] amended by Directive 
2001/44/EC, to Italy, for the recovery of the tax debt. 
5 On 13 September 2005, therefore, pursuant to Article 5 of the legislative decree of 
9 April 2003 implementing the abovementioned rules of EU law, the Customs 
Authority served two payment notices (No RP 05/14, in the sum of 
EUR 10 280 291.66, and No RP 05/12, in the sum of EUR 64 218.25), in which it 
AGENZIA DELLE DOGANE 
 
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requested the payment, on an amicable basis and prior to bringing proceedings 
before the court, of the sums set out. Those notices were challenged by the 
company. 
6 That action, which was held inadmissible by the court of first instance, was upheld 
by the Regional Tax Court, Lazio, on the ground of failure to serve the necessary 
preliminary documents and failure to state sufficient reasons for the requests for 
payment. 
7 The Customs Authority then brought an appeal on a point of law, pleading three 
grounds of appeal. The company has brought a cross-appeal in which it argues, 
inter alia, that the facts alleged against it in the national proceedings are identical 
to those on the basis of which payment has been demanded under the 
arrangements for mutual international cooperation.  
8 ... 
... [Or.4] ... [national procedure of no relevance to the decision of the Court of 
Justice] 
The grounds of the appeal on a point of law 
9 ... [national procedure of no relevance to the decision of the Court of Justice] 
10 ... 
11 ... [the first ground of appeal, held unfounded, and national case-law of no 
relevance to the decision of the Court of Justice]. 
12 The second ground of appeal alleges, pursuant to Article 360(3) of the Code of 
Civil Procedure, infringement of Article 12 of Directive 76/308/EEC and Article 6 
of Legislative Decree No 69 of 2003. The Customs Authority alleges, in 
substance, that, in the field of intra-Community assistance, allegations relating to 
the claim and the instrument permitting enforcement — in this case, alleging 
failure on the part of the Greek authorities to serve the necessary preliminary 
documents — must be made to the national authority with responsibility for the 
claim. 
13 The third ground of appeal alleges, pursuant to Article 360(3) of the Code of Civil 
Procedure, infringement of Article 3 of Law No 212 of 2000, in that the Regional 
Tax Court, Lazio held that the statement of reasons for the requests for payment, 
which made no mention [Or.5] of the parallel procedures initiated in Italy 
concerning the recovery of excise duties in respect of the same transactions, was 
insufficient. 
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14 By its counter-appeal, Silcompa argues, in particular, that the claim relating to the 
same facts on which the Customs Authority separately relies is invalid and, thus, 
that the claim for payment of excise duty has been duplicated. 
15 As regards the third ground of appeal, and with reference to the arguments made 
in the cross-appeal ... [national procedure], this court considers it necessary to deal 
by way of a preliminary ruling with the question of whether, in the proceedings 
challenging the enforcement procedure initiated in the context of mutual 
assistance between Member States for the recovery of excise duties, the court may 
examine the possible ‘duplication of the claim for payment of excise duty’ 
resulting from the initiation by both the applicant State and by the requested State 
of a claim based on the same facts. 
Legal context: European Union law 
16 Of particular relevance are Article 12(3) of Council Directive 76/308/EEC on 
mutual assistance for the recovery of claims relating to certain levies, duties, taxes 
and other measures, as amended by Council Directive 2001/44/EC, and Article 20 
of Council Directive 92/12/EEC on the general arrangements for products subject 
to excise duty and on the holding, movement and monitoring of such products. 
17 Article 12 of Directive No 76/308/EEC, as amended by Council Directive 
No 2001/44/EC, provides: 
‘Article 12 
1. If, in the course of the recovery procedure, the claim and/or the instrument 
permitting its enforcement issued in the Member State in which the applicant 
authority is situated are contested by an interested party, the action [Or.6] shall 
be brought by the latter before the competent body of the Member State in which 
the applicant authority is situated, in accordance with the laws in force there. This 
action must be notified by the applicant authority to the requested authority. The 
party concerned may also notify the requested authority of the action. 
2. As soon as the requested authority has received the notification referred to 
in paragraph 1 either from the applicant authority or from the interested party, it 
shall suspend the enforcement procedure pending the decision of the body 
competent in the matter, unless the applicant authority requests otherwise in 
accordance with the second subparagraph. Should the requested authority deem it 
necessary, and without prejudice to Article 13, that authority may take 
precautionary measures to guarantee recovery in so far as the laws or regulations 
in force in the Member State in which it is situated allow such action for similar 
claims. 
[Notwithstanding the first subparagraph of paragraph 2, the applicant authority 
may in accordance with the law, regulations and administrative practices in force 
in the Member State in which it is situated, request the requested authority to 
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recover a contested claim, in so far as the relevant laws, regulations and 
administrative practices in force in the Member State in which the requested 
authority is situated allow such action. If the result of contestation is subsequently 
favourable to the debtor, the applicant authority shall be liable for the 
reimbursement of any sums recovered, together with any compensation due, in 
accordance with the laws in force in the Member State in which the requested 
authority is situated.] 
3. Where it is the enforcement measures taken in the Member State in which 
the requested authority is situated that are being contested the action shall be 
brought before the competent body of that Member State in accordance with its 
laws and regulations. 
4. Where the competent body before which the action has been brought in 
accordance with paragraph 1 is a judicial or administrative tribunal, the decision 
of that tribunal, in so far as it is favourable to the applicant authority and permits 
recovery of the claim in the Member State in which the applicant authority is 
situated shall constitute the “instrument permitting enforcement” within the 
meaning of Articles 6, 7 and 8 and the recovery of the claim shall proceed on the 
basis of that decision. 
… [Or.7] … ’ 
18 Article 20 of Directive 92/12/EEC, in the version in force at the relevant time, 
(now repealed and replaced by Article 10 of Directive 2008/118/EC of 
16 December 2008) provides: 
‘Article 20 
1. Where an irregularity or offence has been committed in the course of a 
movement involving the chargeability of excise duty, the excise duty shall be due 
in the Member State where the offence or irregularity was committed from the 
natural or legal person who guaranteed payment of the excise duties in 
accordance with Article 15(3), without prejudice to the bringing of criminal 
proceedings. 
Where the excise duty is collected in a Member State other than that of departure, 
the Member State collecting the duty shall inform the competent authorities of the 
country of departure. 
2. When, in the course of movement, an offence or irregularity has been 
detected without it being possible to determine where it was committed, it shall be 
deemed to have been committed in the Member State where it was detected. 
3. Without prejudice to the provision of Article 6(2), when products subject to 
excise duty do not arrive at their destination and it is not possible to determine 
where the offence or irregularity was committed, that offence or irregularity shall 
be deemed to have been committed in the Member State of departure, which shall 
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collect the excise duties at the rate in force on the date when [Or.8] the products 
were dispatched unless within a period of four months from the date of dispatch of 
the products evidence is produced to the satisfaction of the competent authorities 
of the correctness of the transaction or of the place where the offence or 
irregularity was actually committed. 
4. If, before the expiry of a period of three years from the date on which the 
accompanying document was drawn up, the Member State where the offence or 
irregularity was actually committed is ascertained, that Member States shall 
collect the excise duty at the rate in force on the date when the goods were 
dispatched. In this case, as soon as evidence of collection has been provided, the 
excise duty originally levied shall be refunded.’ 
Legal context: Italian law 
19 Of particular relevance are Articles 5 and 6 of Legislative Decree No 69 of 2003. 
20 Article 5 provides: 
‘Art. 5 
Assistance for the recovery of claims 
1. At the request of the applicant authority, the Ministero dell’economia e delle 
finanze shall, on the basis of the instruments permitting enforcement which it has 
received, take steps to recover claims as referred to in Article 1 arising in the 
Member State in which the applicant authority is situated, in accordance with 
current legislation governing the recovery of similar claims arising within the 
national territory. The instruments permitting enforcement, which shall have 
direct and immediate effect, shall be included in the lists of debtors and of sums 
owed referred to in Presidential Decree No 602 of 29 September 1973. 
2. The applicant authority may make a request for recovery only if: 
(a) the claim and/or the instrument permitting its enforcement are not contested 
in the Member State in which the applicant authority is situated, unless an 
intention has been clearly expressed to proceed in any event with the recovery of 
the claim in the event that it is contested; 
[Or.9] 
(b) it has initiated, in the Member State in which it is situated, the recovery 
procedure and the measures taken will not result in the payment of the claim in 
full. 
3. The request shall include: 
AGENZIA DELLE DOGANE 
 
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(a) the name or company name, the address or registered office, and any other 
relevant information relating to the identification of the natural or legal persons 
concerned and/or of third parties holding their assets; 
(b)  the name, address and any other relevant information relating to the 
identification of the applicant authority; 
(c)  a reference to the instrument permitting enforcement on the basis of which 
recovery is sought, issued in the Member State in which the applicant authority is 
situated; 
(d) the nature and the amount of the claim, including the principal, the interest, 
and any penalties, fines and costs payable, indicated in the currencies of the 
Member States in which both the applicant authority and the requested authority 
are situated; 
(e) the date of notification of the instrument permitting enforcement to the 
addressee by the applicant authority and/or by the requested authority; 
(f) an indication of the date from which and the period during which recovery 
is possible under the provisions in force in the applicant Member State; 
(g) a declaration that the claim and the instrument permitting enforcement are 
not contested in the applicant State, or of the intention, in the event that the claim 
is contested, to recover the claim. In any event, the request must contain a 
declaration that the recovery procedure has been initiated in the applicant 
Member State but will not result in the payment of the claim in full; 
(h) any other relevant information. 
4. As soon as any relevant information relating to the matter which gave rise to 
the request for recovery comes to the knowledge of the applicant authority it shall 
forward that information to the requested authority. 
[Or.10] 
5.  The request for recovery of a claim shall be accompanied by the original or 
a certified copy of the instrument permitting enforcement issued in the other 
Member State and by such other documents as may be regarded as useful for the 
purposes of recovering the claim. The request, the instrument permitting 
enforcement and any other documents shall be accompanied by translations into 
Italian. 
6. With regard to payment of the sums due, after the applicant authority has 
been heard, the debtor may be granted a further period within which to pay or be 
allowed to pay by instalments, within the limits and subject to the conditions laid 
down by current national provisions. Interest for late payment shall apply in 
accordance with current national provisions, and shall accrue as from the date of 
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receipt of the instrument permitting recovery. Any sums received by way of 
interest accruing on delayed payment or payments made by way of instalments, or 
late payment interest, shall be passed to the applicant authority. 
7. The Ministero dell’economia e delle finanze shall recover the claim from the 
debtor and retain any costs linked to recovery which apply to similar claims under 
national law. 
8. With regard to the recovery of claims as referred to in this decree, the 
provisions of Presidential Decree No 602 of 29 September 1973, as amended, and 
of Legislative Decree No 46 of 26 February 1999, as amended, shall apply in so 
far as they are compatible. 
9. Where recovery poses a specific problem, entails a very large amount by 
way of costs or relates to the fight against organised crime, the applicant 
authority and the requested authority may agree reimbursement arrangements 
specific to the case in question. 
10. The Ministero dell’economia e delle finanze shall inform the applicant 
authority of the steps taken following the request for recovery of a claim.’ 
21 Article 6 provides: 
‘Art. 6 
[Or.11] 
Action contesting a claim 
1. A person who wishes to contest a claim or an instrument permitting its 
enforcement issued in the applicant Member State shall apply to the competent 
authority in that State, in accordance with the current law of that State. In such a 
case, the Ministero dell’economia e delle finanze, upon receiving notification of 
the contested claim from the applicant authority or from the person concerned, 
shall, unless the applicant authority requests otherwise, suspend the enforcement 
procedure until the competent authority has given its decision. In the event that 
the procedure for the recovery of the contested claim is nevertheless proceeded 
with following the request of the applicant authority, and the outcome of the 
dispute is favourable to the debtor, the applicant authority shall be liable for the 
reimbursement of any sums recovered, together with any other sums due in 
accordance with Italian law. If a court rules on the dispute in favour of the 
applicant authority and permits the recovery of the claim in the same State, the 
enforcement procedure shall recommence on the basis of that court’s decision. 
2. A person who wishes to contest measures in the enforcement procedure shall 
apply to the competent authority, in accordance with national law. 
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3. The Member State in which the applicant authority is situated shall remain 
liable to the Member State in which the requested authority is situated for any 
costs and any losses incurred as a result of actions held to be unfounded, as far as 
either the substance of the claim or the validity of the instrument issued by the 
applicant authority are concerned.’ 
Relevant national case-law 
22 In so far as concerns national case-law, this court has found no relevant rulings. 
23 The Corte di cassazione, in particular, has always maintained a clear distinction 
between disputes which [Or.12] relate to the validity of a claim or the instrument 
permitting enforcement (examination of which falls within the jurisdiction of the 
applicant State) and those which relate to enforcement measures, which fall within 
the jurisdiction of the requested State ... [national case-law]. 
Relevant case-law of the Court of Justice 
24 The Court of Justice interpreted the scope of Article 12(2) of [Directive 
76/308/EEC] in its judgment of 10 January 2010, C-233/08, Milan Kyrian. 
25 In that judgment, the Court, interpreting the directive as a whole, identified the 
general limit in terms public policy on the provision of cooperation (paragraph 42: 
‘it cannot be ruled out that, exceptionally, the bodies of the Member State in 
which the requested authority is situated will be authorised to review whether the 
enforcement of the instrument is liable, in particular, to be contrary to the public 
policy of that last mentioned State’) and also held that, ‘in the framework of the 
mutual assistance introduced pursuant to Directive 76/308, in order for the 
addressee of an instrument permitting enforcement to be placed in a position to 
enforce his rights, he must receive the notification of that instrument in an official 
language of the Member State in which the requested authority is situated’, it 
being for the national court, in order to ensure compliance with that right, ‘to 
apply national law while taking care to ensure the full effectiveness of Community 
law’. 
26 The findings in that case appear to relate solely to the ‘enforcement measures’ 
referred to Article 12(3). 
[Or.13] 
27 By contrast, in its recent judgment of 26 April 2018, C-34/17, Eamonn Donnellan, 
the Court of Justice seems to have acknowledged, in the light of the exceptional 
and particular nature of the situation at issue in that case, that it is possible for the 
requested authority to refuse assistance with recovery on the basis of the fact that 
proper notification of the claim was not given by the authority of the applicant 
State. 
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28 The decision in that case concerned the collection, through mutual assistance, of a 
fine in a situation governed by Council Directive 2010/24/EU of 16 March 2010, 
Article 14 of which, moreover, attributes jurisdiction in relation to disputes in 
substantially the same way as [Directive 76/308/EEC]. 
29 In that decision, the Court based its examination of the point at issue on its 
propensity to ‘lead to a refusal of assistance with the recovery by’ the requested 
authority. 
30 Lastly, with reference to the concept of the occurrence of an irregularity during 
the movement of excise goods, the Court of Justice seems, in its judgment of 
28 January 2016, C-64/15, BP Europa (which concerned, in particular, Article 10 
of Directive 2008/118/EC, which replaced Directive 92/12/EEC), to have ascribed 
a general, overarching character to that concept (see paragraph 42: ‘for the 
purposes of Article 10 of Directive 2008/118, paragraph 6 of that article defines 
the “irregularity” to which it refers as a situation which arises during a movement 
of excise goods under a duty suspension arrangement, other than the one referred 
to in Article 7(4) of that directive’, which is to say total destruction or irretrievable 
loss as a result of the actual nature of the goods, ‘due to which a movement or a 
part of a movement of excise goods has not ended in accordance with 
Article 20(2) of that directive’.) 
[Or.14] 
The grounds for the request for a preliminary ruling 
31 The request for a preliminary ruling concerns the interpretation of Article 12(3) of 
Council Directive 76/308/EEC on mutual assistance for the recovery of claims 
relating to certain levies, duties, taxes and other measures, as amended by Council 
Directive 2001/44/EC, in conjunction with Article 20 of Council Directive 
92/12/EEC on the general arrangements for products subject to excise duty and on 
the holding, movement and monitoring of such products. 
32 In the context of the procedure for mutual assistance for the recovery of claims 
referred to in the directive mentioned (concerning, in this case, excise duties), the 
rules on the attribution of jurisdiction among the Member States concerned 
provide, under Article 12 of Directive 76/308/EEC, that the dispute must be 
brought in the State to which the request for assistance is made where it relates to 
an enforcement measure and before the authority of the applicant State where it 
concerns the claim or the instrument permitting its enforcement. 
33 Article 20 of Directive 92/12/EEC lays down a set of criteria for the identification 
of the Member State which has jurisdiction to collect the excise duty in the event 
of an irregularity or offence. Necessarily, that must be just one Member State. 
Only paragraph 4 of Article 20 seems to address (in conjunction with paragraph 3) 
the situation of double collection, which must be resolved, again by reference to 
the place where the offence was actually committed, with the reimbursement of 
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the duty originally paid, once evidence of collection of the duty actually due has 
been provided. 
34 In the situation at issue in the present case, both the Italian financial authorities 
and the Greek financial authorities have concluded, on the basis of their separate 
and independent findings, that the place where the offence was committed was 
their own State. 
35 Moreover, in Italy, the respective claims are still pending, albeit they are 
formulated differently: the claim made by the Customs Authority, which has taken 
the view that the offence was committed in Italy; [Or.15] the enforcement claim, 
initiated by the Greek financial authorities, which have requested the cooperation 
of the Italian State in the recovery of the excise duties, on the premiss that the 
offence was committed in Greece. 
36 It is worth pointing out in this connection that, as the parties have argued, the 
Greek finding seems to be based on a criminal judgment, while the finding of the 
Italian customs authorities is based on the falsification of the customs 
documentation. 
37 Furthermore, the customs claims are clearly ‘alternative’ claims, in the sense that, 
even applying the criteria laid down in Article 20 of Directive 92/12/EEC, the 
offence can have been committed only in one place, and so there can only be one 
fiscal liability. 
38 Against that background, there is a risk that Silcompa will be obliged to pay the 
same sums (excise duties and penalties) twice. Given their scale, that would mean 
a significant financial burden, in addition, of course, to the duplication of 
litigation costs. 
39 ... [national procedure]. 
40 Next, it is indeed the case that Article 20(4) of Directive 92/12/EEC provides, on 
certain conditions, that, if the place where the offence was committed is 
subsequently established, the excise duty initially levied (by a different State) 
must be refunded. However, it must not be forgotten that the place where the 
offence was committed must be established ‘before the expiry of a period of three 
years from the date on which the accompanying document was drawn up’, and in 
the present case that period has already expired. 
41 This therefore gives rise to the question whether, even in the proceedings 
concerning the enforcement measures for the collection of the excise duty [Or.16] 
consequent upon the request for assistance, the court may examine, at least in the 
particular circumstances of this case (where the same claim is advanced both by 
the applicant State and by the requested State and where, at the same time, 
proceedings are pending in the requested State both on the national claim and on 
the collection of duties for the other State), whether the conditions laid down in 
Article 20 of Directive 92/12/EEC are met. 
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42 Indeed, the matter to be verified is not one that would appear to seek to invalidate 
or call into question the claim or the foreign instrument permitting enforcement 
that has been challenged, but one that concerns the premiss for, and the lawful 
basis of the request for assistance, and thus of all the enforcement measures. 
The question referred for a preliminary ruling 
In conclusion, since no appeal lies against the decisions of this court, and since no 
specific solution has been found in Community case-law, the court proposes to 
stay the present proceedings and refer to the Court of Justice of the European 
Union the following question for a preliminary ruling, pursuant to Article 267 of 
the Treaty on the Functioning of the European Union: 
‘Is Article 12(3) of Council Directive 76/308/EEC on mutual assistance for the 
recovery of claims relating to certain levies, duties, taxes and other measures, as 
amended by Council Directive 2001/44/EC, read in conjunction with Article 20 of 
Council Directive 92/12/EEC on the general arrangements for products subject to 
excise duty and on the holding, movement and monitoring of such products, to be 
interpreted as meaning that, in proceedings brought against enforcement measures 
for the collection of excise duty, the court may examine (and if so within what 
limits) the question of the place (of actual release for consumption) where the 
irregularity or offence was actually committed where, as in the present case, the 
same claim, based on the same [Or.17] export transactions, is made, 
independently, against the taxable person by both the applicant State and the 
requested State and, in the requested State, proceedings are pending, 
contemporaneously, both in respect of the national claim and the action for the 
collection of duties for the other State, and would the court’s finding in that regard 
invalidate the request for assistance and consequently all the enforcement 
measures?’ 
... [national procedure, the staying of the national proceedings, delivery of the 
case-file to the Registry of the Court] 23 May 2018