Judgment;Summary — ECLI:EU:C:2022:215
Date: 2022-03-24
Language of the case: Czech
Court formation: Tenth Chamber
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary of the order for reference pursuant to Article 98(1) of the Rules of 
Procedure of the Court of Justice 
Date lodged:  
31 December 2020 
Referring court:  
Nejvyšší správní soud (Supreme Administrative Court, Czech 
Republic) 
Date lodged:  
16 December 2020 
Applicant:  
TanQuid Polska Sp. z o. o. 
Defendant:  
Generální ředitelství cel 
  
Subject matter of the main proceedings 
The subject matter of the main proceedings is an appeal in cassation by the 
Generální ředitelství cel (General Customs Directorate, Czech Republic) 
(‘Defendant’) against the judgment of the Krajský soud v Českých Budějovicích 
(České Budějovice Regional Court, Czech Republic) of 12 September 2018 
(‘Regional Court judgment’), annulling the Defendant’s decisions (‘contested 
decisions’) whereby the Defendant ruled that TanQuid Polska, Sp. z o. o. 
(‘Applicant’), as the operator of a tax warehouse, infringed a suspension 
arrangement (‘arrangement concerned’), and charged it excise duty.  
Questions referred for a preliminary ruling 
1. Are products that are subject to excise duty transported pursuant to a 
suspension arrangement within the meaning of Article 4(c) of Council Directive 
92/12/EEC in a situation where a customs office of one Member State agreed to 
the movement of products under a duty-suspension arrangement from a tax 
EN 
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warehouse to a registered trader established in another Member State, even 
though the conditions for the movement of those products under the duty-
suspension arrangement were objectively not met, it having been established at a 
subsequent stage of the procedure that the registered trader had no knowledge of 
the movement of the products, due to fraud by third parties? 
2. Does the provision of an excise duty guarantee, as provided for by Article 15(3) 
of Council Directive 92/12/EEC, issued for a purpose other than the movement of 
products under a duty-suspension arrangement between a tax warehouse and a 
registered trader established in another Member State preclude the due 
commencement of movement under a duty-suspension arrangement, if the 
provision of the guarantee was recorded in the accompanying documents for the 
movement of the products under the duty-suspension arrangement for the 
registered trader and confirmed by the customs authority of the Member State? 
Provisions of EU law relied on  
Article 4(c), Article 6(1)(a), Article 13(a), Article 15(3) and (4), Article 20(1) of 
Council Directive 92/12/EEC of 25 February 1992 on the general arrangements 
for products subject to excise duty and on the holding, movement and monitoring 
of such products (‘the Directive’). 
Provisions of national law relied on  
Under Paragraphs 25, 26, and 28 of Zákon č. 353/2003 Sb. o spotřebních daních 
(Law No 353/2003 on excise duties; ‘the Law on excise duties’), selected products 
in the arrangement concerned may move between Member States only with an 
accompanying document, and the arrangement is infringed if, among other things, 
the products are not dispatched to the authorised consignee within a set period. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Applicant is a Polish trading company that operates a tax warehouse in 
Poland, from which mineral oils (selected products) subject to excise duty were 
dispatched in December 2009 and January 2010 to an authorised consignee, the 
Czech company EKOL GAS PB, s.r.o. (‘EKOL GAS’). 
2 Evidence has shown, however, that EKOL GAS never traded with the Applicant 
and denied any contact with the Applicant. As a registered trader, EKOL GAS 
therefore had no knowledge of products being transported to it under the 
arrangement concerned.  
3 The competent Czech customs authority established that the information in the 
accompanying documents dated 5 January 2010 was false, and that the 38 
accompanying documents on the basis of which the mineral oils were dispatched 
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from the Applicant’s tax warehouse and which were provided by the Polish 
customs administration were not submitted to the Czech customs authority, 
contrary to the Law on excise duties. The imprints of the stamps of the Czech 
customs authority confirming 35 of the accompanying documents had been 
forged. The imprints of the stamps used for the movement did not correspond to 
the stamps of EKOL GAS.  
4 The mineral oils dispatched from the Applicant’s tax warehouse were not 
accepted by EKOL GAS as the authorised consignee within the designated period 
and at the designated place, but were transported to an unknown person in the 
Czech Republic on the basis of fraudulent actions of third parties passing 
themselves off as EKOL GAS representatives without the knowledge of EKOL 
GAS.  
5 According to the competent Czech customs authority, the Applicant infringed the 
arrangement concerned by moving selected products to the Czech Republic 
without them being duly accepted by the authorised consignee who would then 
declare and pay excise duty on those products. Hence, the competent authority 
assessed a liability to duty totalling CZK 10 207 850 for the Applicant, by 
adjustment notices of 3 March 2016.  
6 The Applicant appealed against the adjustment notices, and the Defendant 
dismissed the appeal by the contested decisions. Those decisions were, however, 
annulled by the Regional Court judgment and the case was referred back. The 
Defendant submitted an appeal in cassation to the referring court against that 
judgment.  
Regional Court judgment 
7 According to the Regional Court, the fundamental condition for movement of the 
mineral oils under the arrangement concerned, according to which the movement 
must be between entities specified by law, was not met. EKOL GAS was, without 
its knowledge, represented by third parties who were not themselves an authorised 
consignee, which corresponds to a situation where the consignee of the selected 
products declared in the accompanying documents lacks the relevant 
authorisation. The situation in the present case does differ from a situation where 
conditions are breached during the – formally and materially – correctly initiated 
movement of mineral oils under the arrangement concerned (for example, by a 
failure to adhere to the set period for the movement of selected products). Hence, 
the situation concerned in the present case must be considered a release for free 
circulation as defined by the Law on excise duties. 
8 The Regional Court pointed to similar conclusions reached by the Polish customs 
administration, which, by its decision of 26 October 2015, deemed BM Reflex, 
Sp. z o. o. (‘BM Reflex’) as the owner of the products moved, rather than the 
Applicant, liable for the excise duty imposed in relation to the dispatch of the 
mineral oils. According to the Polish customs administration, the conditions for 
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movement under the arrangement concerned had not been met, given that (i) the 
accompanying documents did not document the actual course of the transaction 
and (ii) the insurance guarantee provided by J&S ENERGY S.A (‘J&S 
ENERGY’) as the excise duty guarantee applied only to movement between tax 
warehouses and, for that reason, the deliveries were not covered by the excise 
duty guarantee. According to the administration, BM Reflex, not the Applicant, 
was liable to pay the tax. 
Essential arguments of the parties in the main proceedings 
9 The Applicant claims that the factual conditions for the initiation of movement 
under the arrangement concerned had not been met, as it is not possible to 
conclude that the selected products were intended for the consignee declared in 
the accompanying documents, which must not only be formally correct but must 
also correspond to reality. That was not the case in the matter at hand, as the other 
party, that is to say, an authorised consignee, did not objectively exist. The 
consignees were fraudulently acting individuals who did not have authorisation to 
receive the selected products and had intended, from the very start of the 
movement, to stamp the documents concerned fraudulently. Furthermore, no 
guarantee had been provided to secure the excise duty, which is a formal condition 
for the commencement of movement under the arrangement concerned. This 
situation must therefore be viewed as the movement of selected products released 
for free circulation in another Member State.  
10 The Defendant disagrees with the conclusion that the selected products were 
dispatched and transported to the Czech Republic as products released for free 
circulation. The commencement of movement of selected goods under the 
arrangement concerned is not subject to consent or approval by the authorised 
consignee. Consent in the form of a stamp and signature of an authorised person is 
required only for the due completion of the movement under the arrangement 
concerned, which is also why the consignor of the selected products is liable for 
an infringement of the arrangement.  
11 Customs authorities do not review accuracy, but only check whether all boxes of 
the accompanying documents have been completed and whether the dispatching 
tax warehouse and the authorised consignee hold valid authorisations. If that is the 
case and if, at the same time, the guarantee provided for by the Law on excise 
duties is produced, customs authorities issue their consent to the commencement 
of the movement. In a situation where an entity that holds a valid authorisation is 
listed as the consignee, the movement is commenced regardless of whether that 
entity was listed by the consignor in error or intentionally and of whether or not 
the consignee has any knowledge of the movement.  
12 If goods are removed from the arrangement concerned pursuant to Article 15(4) of 
the Directive, even though an official document is subsequently fraudulently 
confirmed, the consequences of the removal from the arrangement concerned are 
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borne by the dispatching tax warehouse, which is, in such cases, obliged to 
provide a guarantee before commencement of the movement, as it is liable for the 
delivery of the selected products throughout their movement and until they are 
duly accepted by the authorised consignee specified in the accompanying 
documents.  
Analysis of the questions referred  
13 In general terms, the referring court points to the goal of the Directive – to avoid 
double taxation and disruption of free movement within the European Union, and 
refers to EU case-law, according to which goods should be taxed at the point of 
their final consumption and the chargeability of excise duties should be identical 
in all Member States, in order to ensure the establishment and functioning of the 
internal market . 1  
14 If, in this case, the conditions for the commencement of movement under the 
arrangement concerned were not met, the products were, by the fact of their 
removal from storage, released for domestic consumption, 2 and hence should 
have been taxed in Poland. If the conditions were met, transport arrangements 
between Member States would have been initiated and the authorised warehouse 
keeper would have been obliged to pay tax in the Czech Republic only once 
infringement of the arrangements was discovered subsequently.  
15 Given that the possibility of selected products escaping the supervision of the tax 
authorities is greater during the movement of those products under the 
arrangement concerned, the arrangement is subject to three conditions: (i) the 
movement must take place between authorised entities (authorised warehouse 
keeper and a registered trader); (ii) the products must be moved with an 
accompanying document (see recitals of the Directive); and (iii) a guarantee must 
be provided pursuant to Article 13(a) of the Directive.  
16 In this case, the authorised warehouse keeper held a permit to operate a tax 
warehouse and itself set the conditions of carriage when it listed EKOL GAS, that 
is to say, a registered trader, as the consignee. According to the referring court, 
transport is initiated by an authorised warehouse keeper, as that is the entity which 
completes part A of the accompanying document.  
17 According to the judgment of the Court of Justice of 2 July 2016, 
Kapnoviomichania Karelia, C-81/15, EU:C:2016:398, the authorised warehouse 
keeper is objectively liable for all movement infringements under the arrangement 
concerned at the place where the procedural infringement or irregularity occurred. 
 
1 Judgments of the Court of Justice of 30 May 2013, Scandic Distilleries, C-663/11, 
EU:C:2013:347, paragraphs 22 and 23, and of 18 December 2007, Pipeline Méditerranée et 
Rhône, C-314/06, EU:C:2007:817, paragraph 22.  
2 See Article 6(1)(a) in conjunction with Article 4(c) of the Directive.  
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This liability ceases only upon proof that the registered trader has taken delivery 
of the products (Article 15(4) of the Directive). The consignee then completes part 
C of the accompanying document, which requires its signature and stamp. Hence, 
the consignee is involved only at the very end of the operation, as is apparent from 
Article 19(2) of the Directive. Its cooperation is not required in order for 
movement to commence.  
18 Customs authorities examine whether movement is taking place between 
authorised entities and whether a guarantee has been provided to secure the tax, 
that is to say, only compliance with formal requirements, which transfers to the 
authorised warehouse keeper the responsibility for ensuring that the registered 
trader (the consignee) does indeed take delivery of the goods at a later stage.  3 
They then give consent to the commencement of the movement. The arrangement 
concerned thus allows for supervision of the importation of taxable products 
without imposing obstacles in the form of substantive document checks by 
customs authorities, which accords with the objective and purpose of the 
Directive.  
19 The fact that customs authorities examine only the formal aspects of the accuracy 
of the data also follows from more recent EU legislation 4 and from Polish law . 5 
The commencement of movement under a duty-suspension arrangement cannot be 
affected by a subsequent finding that third parties wrongfully passed themselves 
off as representing a registered trader. Release for domestic consumption can only 
take place if conditions for commencing movement have not been met, but such 
conditions cannot include the consent of the registered trader.  
20 The Court of Justice has not yet dealt in its case-law with fraud in relation to the 
arrangement concerned. Certain similarities can be found in the case giving rise to 
the judgment of 12 December 2002, Cipriani, C-395/00, EU:C:2002:751. In that 
case, stamps of customs authorities confirming that goods had left the European 
Union at the beginning of their movement had been forged. In the Applicant’s 
case, however, the stamps of the registered trader were forged, and only at the 
point when movement of the goods was to be completed. Furthermore, in the case 
referred to above, there was no specific registered trader or authorised warehouse 
keeper in another Member State to which the goods were to be delivered. It 
concerned only the movement of products intended for export to countries outside 
 
3 The Court of Justice has ruled that  a taxable person can legitimately be required to satisfy 
himself that the transaction which he is effecting does not result in his participation in tax 
evasion (judgment of 21 February 2008, Netto Supermarkt, C-271/06, EU:C:2008:105, 
paragraph 24) and applied that conclusion with respect to excise duty and the Directive in the 
abovementioned judgment in C-81/15.  
4 See Article 20 of Council Directive 2008/118/EC of 16 December 2008.  
5 Articles 41 and 41a of the Law on excuse duties of 6 December 2008, Dz. U. 2009 Nr 3, poz. 
11. 
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the European Union via one or more Member States. Furthermore, the core of the 
dispute – the rights of the defence - was different. 
21 Another issue faced by the referring court is the nature and purpose of the 
guarantee 6 paid to secure the excise duty. The guarantee was provided by the 
Polish company J&S ENERGY. It is evident that the guarantee was provided in 
order to secure movement of selected products, under the arrangement concerned, 
from the Applicant’s tax warehouse to EKOL GAS. The Applicant has, however, 
questioned the purpose of the guarantee, claiming that no guarantee had been 
provided for movement of the products under the arrangement concerned, 
pursuant to Article 15(3) of the Directive, given that the guarantee was only 
provided for movement between tax warehouses, but not also for movement to a 
registered trader.  
22 The tax security is valid in all EU Member States through which the products are 
moved (see Article 15(3) of the Directive). That is why the referring court is of the 
opinion that the customs authorities of another Member State cannot review the 
reason for the security or the authenticity of information listed in the 
accompanying documents.  
23 On the basis of the information stated in the accompanying documents and the 
guarantee accepted in the present case, the Polish customs authorities authorised 
the movement of the products under the arrangement concerned to the registered 
trader, thereby declaring that all of the abovementioned conditions of that 
arrangement had been complied with. Thus, they gave the Applicant and the 
Czech customs authorities confidence that the guarantee had been duly paid and 
the conditions of the arrangement concerned duly met. Later in the proceedings 
(following judicial review by the Polish administrative courts), however, the 
Polish customs authorities suspended the excise duty assessment procedure with 
regard to the Applicant, as, according to them, the conditions of the arrangement 
concerned had not been met; among other things, a guarantee to secure the 
movement of the goods to a registered trader had not been provided.  
24 When the goods reached the Czech Republic, however, a guarantee had been 
lodged and the national customs authorities, in accordance with the principles of 
legal certainty and faith in due process by the Polish authorities, assumed that it 
was correct. Hence, the Polish customs authorities created a situation not foreseen 
by the Directive or by the Law on excise duties. It is the view of the referring 
court that to approve the steps taken by the Polish customs authorities and 
attribute them to the parties to the original proceedings would be to deny the 
principle of the rule of law. If the Czech customs authorities were to deem the 
movement under the arrangement concerned not to have been duly commenced in 
view of an incorrectly lodged guarantee, they would defy the objectives of the 
Directive and the EU principles of sincere cooperation and legal certainty.  
 
6 See recital 19 of the abovementioned Directive 2008/118.  
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25 Thus, in the case of both of the questions referred, the conditions laid down by EU 
case-law for not referring a question to the Court of Justice for a preliminary 
ruling have not been met.