Opinion of the Advocate General — ECLI:EU:C:2025:775
Date: 2025-10-09
Language of the case: Italian

Summary C-386/24 – 1 
Case C-386/24 
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: 
30 May 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
29 May 2024 
Appellant: 
Centro Petroli Roma Srl 
Respondent: 
Agenzia delle Dogane e dei Monopoli 
  
Subject matter of the main proceedings 
Appeal before the Consiglio di Stato (Council of State, Italy) against the judgment 
by which the Tribunale amministrativo regionale per il Lazio (Regional 
Administrative Court, Lazio) dismissed the action, brought by Centro Petroli 
Roma Srl (‘the appellant’), against provvedimento n. 1304/2020 (Decision 
No 1304/2020) and the circolare (circular) of 4 December 2017 adopted by the 
Agenzia delle dogane e dei monopoli (the Customs and Monopolies Agency, 
Italy; ‘the Agency’). By that decision, the Agency suspended the licence for the 
management of petroleum products under tax warehousing arrangements, issued 
to the appellant, for failure to comply with the requirements laid down in 
Article 23(4) of decreto legislativo n. 504/1995 (Legislative Decree No 504/1995). 
Subject matter and legal basis of the request 
The Court of Justice is asked to rule, pursuant to Article 267 TFEU, on the 
interpretation of Articles 101 to 106 TFEU, and of Directives 2006/123/EC and 
2008/118/EC, in order to be able to determine whether Article 23 of Legislative 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-386/24 
 
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Decree No 504/1995, as amended, which lays down certain quantitative 
requirements for authorisation to manage tax warehousing for energy products, 
complies with those provisions. The referring court also asks whether regulatory 
measures (circulars, regulations or otherwise) adopted by the national authority 
and intended to clarify and supplement the requirements of Article 23 of the 
legislative decree at issue are compatible with the principle of proportionality, in 
the light of the abovementioned European legislation. 
Questions referred for a preliminary ruling 
‘(a) Does the correct interpretation of Articles 101 to 106 TFEU, and of the 
legislative framework set out in Directives 2006/123/EC and 2008/118/EC, 
preclude a national rule, such as that arising from Article 23(3) of Legislative 
Decree No 504 of 16 October 1995, as subsequently amended and supplemented, 
which provides that “3. Management under tax warehousing arrangements may be 
authorised, where there are actual operational and supply needs of the installation, 
for commercial warehouses for liquefied petroleum gas with a capacity of not less 
than 400 cubic metres and for commercial warehouses for other energy products 
with a capacity of not less than 10 000 cubic metres”. 
(b) Does the correct interpretation of Articles 101 to 106 TFEU, and of the 
legislative framework set out in Directives 2006/123/EC and 2008/118/EC, 
preclude a national rule, such as that arising from Article 23(4)(a) and (b) of 
Legislative Decree No 504 of 16 October 1995, as subsequently amended and 
supplemented, which provides that management under tax warehousing 
arrangements may be authorised, in particular, for commercial warehouses for 
liquefied petroleum gas with a capacity of less than 400 cubic metres and for 
commercial warehouses for other energy products with a capacity of less than 
10 000 cubic metres where, in addition to the conditions referred to in point 3, at 
least one of the following conditions is met: 
“(i) the warehouse carries out supplies of products exempt from excise duty or at 
a reduced rate of excise duty or transfers of energy products under duty 
suspension arrangements to EU Member States or to countries outside the 
European Union, of at least 30% of the total extractions in the two-year period 
overall; 
(ii) the warehouse is an extension of a tax warehouse situated in the immediate 
vicinity belonging to the same group of companies or, if under different 
ownership, is intended to operate at the service of that warehouse on a permanent 
basis”. 
(c) Does the correct interpretation and application of the principle of 
proportionality, in conjunction with Articles 101 to 106 TFEU and the legislative 
framework laid down in Directives 2006/123/EC and 2008/118/EC, and, in 
particular, in Article 9, point 5 of Article 14, and Article 15(2) of Directive 
2006/123/EC, preclude regulatory measures (circulars, regulations or otherwise) 
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adopted by the national authority which seek to clarify, by supplementing them, 
the abovementioned conditions laid down in Article 23(4)(a) and (b) of 
Legislative Decree No 504 of 26 October 1995, as subsequently amended and 
supplemented?’ 
Provisions of European Union law relied on 
Articles 101 to 106 TFEU (competition rules applicable to undertakings). 
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and 
in particular Article 9, point 5 of Article 14, and Article 15(2) thereof. 
Council Directive 2008/118/EC of 16 December 2008 concerning the general 
arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, 
p. 174), and in particular Article 16 thereof. 
Provisions of national law relied on 
Decreto legislativo 26 ottobre 1995, n. 504 – Testo unico delle disposizioni 
legislative concernenti le imposte sulla produzione e sui consumi e relative 
sanzioni penali e amministrative (Legislative Decree No 504 of 26 October 1995, 
approving the consolidated text of the provisions on taxes on production and 
consumption and related criminal and administrative penalties): 
For the purposes of Article 1(1)(e), ‘tax warehouse’ means the installation in 
which excise goods are produced, processed, held, received or dispatched, under 
duty suspension arrangements, pursuant to the conditions laid down by the tax 
authorities. 
Article 23 (Tax warehouses for energy products), the text of which is set out in the 
above questions referred for a preliminary ruling, is of particular relevance.  
Succinct presentation of the facts and procedure in the main proceedings  
1 The appellant is a company engaged in production, processing and marketing of 
petroleum products in the energy products sector. It has been operating since 
February 2016 under tax warehousing arrangements pursuant to Article 63 of 
Legislative Decree No 504/1995. 
2 By Decision No 13042/2020, the Customs and Monopolies Agency, Italy, 
suspended the licence issued to the appellant for failure to comply with the 
requirements laid down in Article 23(4) of Legislative Decree No 504/1995, in 
particular on the ground that the company did not fulfil the quantitative criteria 
laid down therein. The appellant challenged that decision, and the circular of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-386/24 
 
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4 December 2017, which contains clarifications on the application of the 
abovementioned Article 23, before the Regional Administrative Court, Lazio. 
3 The Regional Administrative Court dismissed the action. The appellant then 
brought an appeal before the Council of State, the referring court, against the 
judgment at first instance. 
4 The Council of State, after having taken a position on the grounds of appeal, 
considering them unfounded, stayed the proceedings and formulated five 
questions for a preliminary ruling. Those questions concerned, first of all, the 
scope of the obligation to make a reference for a preliminary ruling, in the event 
that the national court has no doubts as to the correct interpretation to be given to 
the provisions of EU law, having regard also to the rules on liability existing in 
Italy on the part of courts which decide not to make a reference for a preliminary 
ruling. The other questions concerned the interpretation of EU law more 
specifically in relation to tax warehouses for petroleum products.  
5 Those questions referred for a preliminary ruling were the subject of Case 
C-597/2021, which was decided by the Court of Justice by order of 15 December 
2022. In that order, the Court clarified, in response to the first question concerning 
the interpretation of Article 267 TFEU, the scope of the obligation of national 
courts of last instance to make a reference for a preliminary ruling. In particular, 
the Court stated that the national court may refrain from making a reference for a 
preliminary ruling if it is satisfied that the other courts of last instance of the 
Member States and the Court would share its view. It also declared the second 
question manifestly inadmissible and stated that there was no need to answer the 
third, fourth and fifth questions, which were raised only if the answer to the first 
question was in the affirmative. 
6 In the context of the same national proceedings, at the request of the appellant, the 
Council of State now makes a reference to the Court again for a preliminary 
ruling, referring to it three questions which were not examined by the Court in 
Case C-597/2021. 
The essential arguments of the parties in the main proceedings  
7 The Council of State considers that only the first and third grounds of appeal 
raised by the appellant are relevant for the preliminary ruling and sets them out.  
8 By its first ground of appeal, the company alleges the possible infringement of 
Directive 2006/123 by Article 23 of Legislative Decree No 504/1995, since it 
claims that that directive and the principles of freedom of establishment are 
infringed by the quantitative limit introduced by Article 23(4) of Legislative 
Decree No 504/1995. 
9 By its third ground of appeal, the company alleges the infringement of Article 16 
of Directive 2008/118 on excise duty, since it submits that the limits laid down in 
CENTRO PETROLI ROMA – II 
 
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points (a) and (b) are contrary to the only conditions which, under Article 16 of 
Directive 2008/118, may be imposed by the Member States, that is to say those 
aimed at ‘preventing any possible evasion or abuse’.  
Succinct presentation of the reasoning in the request for a preliminary ruling  
10 The referring court sets out, first of all, preliminary considerations on the nature of 
the reference for a preliminary ruling and on the particular features of the Italian 
national legislation on civil liability of the court for failure to make a mandatory 
reference. 
11 The Council of State then states that, in its view, there is no infringement of EU 
law by the national legislation at issue in the present case; however, it cannot rule 
it out with certainty and therefore cannot apply the acte clair theory. It therefore 
nevertheless considers referring those questions to the Court for a preliminary 
ruling. 
12 As regards the first ground of appeal, it states that the appellant raises reasonable 
interpretative doubts as to the conformity with European law of making the 
obtaining of authorisation to operate under tax warehousing arrangements subject 
to proof of the existence of an economic need or market demand. The referring 
court considers that there is no infringement of the rules of EU law, in so far as the 
‘tax warehouse’ arrangement operates primarily as a tax advantage and, therefore, 
on a level entirely distinct from the ‘commercial’ level. 
13 According to the referring court, warehouses for energy products are authorised 
from a ‘commercial’ point of view within the meaning of Article 25(4) of 
Legislative Decree No 504/1995, on the basis of an operating licence issued by 
customs, and act in the distribution chain under a free market regime. The 
authorisation to act under a ‘tax warehouse’ arrangement, within the meaning of 
Article 23 of Legislative Decree No 504/1995, does not therefore affect the 
freedom to perform the service, but merely the possibility for the undertaking to 
receive, hold and move energy products under suspension of excise duty. 
14 As regards the third ground of appeal, it states that, according to the appellant, it is 
doubtful that the quantitative thresholds imposed by the national legislation as 
conditions in order to be able to benefit from the authorisation provided for in 
Article 16 of Directive 2008/118 are reasonable, proportionate or justified for the 
purpose, provided for in Article 16 of Directive 2008/118, of ‘preventing any 
possible evasion or abuse’. According to the referring court, by contrast, the 
Italian legislation applies objective criteria in order to prevent evasion and abuse: 
it considers that it is objectively true that, in the case of undertakings which are 
the owners of a warehouse of a larger operational size, there is less risk that that 
warehouse does not actually carry on business activities and merely constitutes an 
indirect means of avoiding the payment of excise duties.  
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15 The answer to the questions referred is important. If the Court were to interpret 
the above provisions as meaning that the tax advantage linked to the ‘tax 
warehouse’ cannot be made subject to the existence of quantitative parameters 
(related either to the size of the warehouse or to the percentage of exports 
representing at least 30% of extraction activities carried out in the two-year 
period), as provided for by the national legislation, in Article 23(3) and (4) of 
Legislative Decree No 504/1995, that would entail the unlawfulness of the 
decision issued by the Agency and the implementing circular relating thereto, as 
well as the disapplication of the national legislation in force.