Provisional text
Judgment (Chamber giving preliminary rulings)
9 July 2025 (*)
( Reference for a preliminary ruling – Taxation – Excise duties – Directive 2008/118/EC – Article 7 – Chargeability of excise duty – Release for consumption – Energy products – Whether excise duty arises – Fictitious supply of excise goods appearing on falsified invoices )
In Case T‑534/24, [Gotek], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Upravni sud u Osijeku (Administrative Court, Osijek, Croatia), made by decision of 30 September 2024, received at the Court of Justice on 8 October 2024, in the proceedings
MK
v
Ministarstvo financija Republike Hrvatske, Samostalni sektor za drugostupanjski upravni postupak,
THE GENERAL COURT (Chamber giving preliminary rulings),
composed of S. Papasavvas, President, N. Półtorak (Rapporteur), M. Sampol Pucurull, G. Steinfatt and D. Petrlík, Judges,
Advocate General: J. Martín y Pérez de Nanclares,
Registrar: V. Di Bucci,
having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 17 October 2024, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,
having regard to the fact that the case concerns the area referred to in point (b) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,
having regard to the written part of the procedure,
after considering the observations submitted on behalf of:
–        the Croatian Government, by G. Vidović Mesarek, acting as Agent,
–        the European Commission, by M. Björkland and A. Koričić, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Articles 7 and 8 of 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. 12).
2        The request has been made in proceedings between MK, a natural person, and the Ministarstvo financija Republike Hrvatske, Samostalni sektor za drugostupanjski upravni postupak (Ministry of Finance of the Republic of Croatia, Department for Second-Instance Administrative Procedure), concerning the recovery of excise duty payable by MK.
Legal framework
European Union law
3        Directive 2008/118 was repealed, with effect from 13 February 2023, by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4), which replaced it. However, in view of the date of the facts at issue in the dispute in the main proceedings, the present reference for a preliminary ruling must be examined in the light of the provisions of Directive 2008/118.
4        Recital 8 of Directive 2008/118 states as follows:
‘Since it remains necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, it is necessary to make clear at Community level when excise goods are released for consumption and who the person liable to pay the excise duty is.’
5        Article 7 of Directive 2008/118 provides:
‘1.      Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.
2.      For the purposes of this Directive, “release for consumption” shall mean any of the following:
(a)      the departure of excise goods, including irregular departure, from a duty suspension arrangement;
(b)      the holding of excise goods outside a duty suspension arrangement where excise duty has not been levied pursuant to the applicable provisions of Community law and national legislation;
(c)      the production of excise goods, including irregular production, outside a duty suspension arrangement;
(d)      the importation of excise goods, including irregular importation, unless the excise goods are placed, immediately upon importation, under a duty suspension arrangement.
…’
6        Article 8 of Directive 2008/118 provides:
‘1.      The person liable to pay the excise duty that has become chargeable shall be:
(a)      in relation to the departure of excise goods from a duty suspension arrangement as referred to in Article 7(2)(a):
(i)      the authorised warehousekeeper, the registered consignee or any other person releasing the excise goods or on whose behalf the excise goods are released from the duty suspension arrangement and, in the case of irregular departure from the tax warehouse, any other person involved in that departure;
(ii)      in the case of an irregularity during a movement of excise goods under a duty suspension arrangement as defined in Article 10(1), (2) and (4): the authorised warehousekeeper, the registered consignor or any other person who guaranteed the payment in accordance with Article 18(1) and (2) and any person who participated in the irregular departure and who was aware or who should reasonably have been aware of the irregular nature of the departure;
(b)      in relation to the holding of excise goods as referred to in Article 7(2)(b): the person holding the excise goods and any other person involved in the holding of the excise goods;
(c)      in relation to the production of excise goods as referred to in Article 7(2)(c): the person producing the excise goods and, in the case of irregular production, any other person involved in their production;
(d)      in relation to the importation of excise goods as referred to in Article 7(2)(d): the person who declares the excise goods or on whose behalf they are declared upon importation and, in the case of irregular importation, any other person involved in the importation.
2.      Where several persons are liable for payment of one excise duty debt, they shall be jointly and severally liable for such debt.’
Croatian law
7        Article 7 of the Zakon o trošarinama (Law on Excise Duty) of 21 November 2018 (Narodne novine, br. 106/18), in the version applicable to the dispute in the main proceedings, entitled ‘Calculation of excise duty’, provides as follows:
‘(1)      Unless otherwise provided for in this Law, excise duty shall become chargeable at the time the excise goods are released for consumption in the territory of the Republic of Croatia …’
8        Article 12 of the Law on Excise Duty, entitled ‘Calculation and payment of excise duty in the event of unlawful conduct’, provides:
‘(1)      Excise duty shall also become chargeable where it is established that:
1.      the taxable items have been dealt with unlawfully;
2.      the excise goods have been unlawfully released for consumption in the territory of the Republic of Croatia
…
…
(2)      For the purposes of this Law, the following constitute unlawful conduct: the production, processing, holding, receipt, consignment, importation, introduction, transport, use, sale, purchase or holding of taxable items on which excise duty has not been calculated and paid pursuant to this Law or on which excise duty has not been calculated and paid in full, and any other abuse of rights in moving or disposing of taxable items. Any conduct which is specifically laid down by this Law as being regarded as unlawful shall also be considered to be unlawful conduct. Taxable items shall be considered to have been dealt with unlawfully where the person dealing with the taxable items is unable to prove that they were acquired or held in a lawful manner, or any other actual or legal disposal, and where it is clear from the circumstances of the case that the taxable items have been dealt with unlawfully.
(3)      The obligation to calculate and pay excise duty pursuant to this article shall be determined by a means of a tax assessment notice.
…’
9        Article 124 of the Law on Excise Duty provides:
‘(1)      Any conduct of persons who, in any way, directly or indirectly, are involved in the movement or disposal of taxable items with the following purposes shall be considered to constitute an abuse of rights in moving or disposing of taxable items:
1.      concealing the actual intent or purpose of, or reason for, the movement or disposal of taxable items:
2.      evading the payment of excise duty or other public charges including creating the conditions to make it possible to evade payment of excise duty or other public charges.
(2)      Persons who, in any way, are involved, directly or indirectly, in the movement or disposal of taxable items shall be regarded as abusing the right to move or dispose of taxable objects where they:
1.      conclude fictitious legal arrangements in connection with the movement or disposal of taxable items or participate in the conclusion or implementation of such legal arrangements in any capacity whatsoever;
2.      organise fictitious supplies, receipts, movements or disposals of taxable items or participate directly or indirectly therein;
3.      abuse the Excise Movement and Control System in order to represent fictitious movements or fictitious disposals;
4.      participate directly or indirectly in the falsification of commercial, transport or other documentation in connection with (i) the movement or disposal of taxable items or (ii) the use of such falsified documentation;
5.      make unauthorised or wrongful use of the data of other natural or legal persons with a view to satisfying the conditions for carrying out arrangements, movements or disposals of taxable items, or with a view to creating the conditions for doing so;
6.      through abuse of trust, or fraudulent, false or misleading actions, carry out arrangements, conduct, movements or disposals of taxable items or create the conditions for such arrangements, conduct, movements or disposals of taxable items.
(3)      For the purposes of the present article, disposal of taxable items shall be considered to be any actual or legal disposal, including by performing, exclusively, financial transactions or acts which involve issuing, confirming or certifying any accounting document, the conclusion of a contract or participation in a contractual relationship, or the issuance, confirmation or certification of a shipping or other document in the capacity of buyer, seller, broker, intermediary, transporter, consignee or consignor in relation to taxable items.’
10      Article 125 of the Law on Excise Duty provides as follows:
‘(1)      If the basis for determining whether excise duty is payable is an abuse of rights in moving or disposing of taxable items and if, in that context, it is established that there is a fictitious legal arrangement or a fictitious delivery, receipt, movement or disposal of taxable items, the basis for establishing the excise duty payable is the fictitious legal arrangement or the fictitious supply, receipt, movement or disposal of taxable items. Any person who participates, directly or indirectly, in an abuse of rights in carrying out or implementing a fictitious legal arrangement or a fictitious supply, receipt, movement or disposal of taxable items shall be liable on a joint and several basis for the payment of the excise duty which has become liable.
(2)      Any person in respect of whom it is clear from objective circumstances that that person knew, or must have known, that, by his, her or its actions or failure to act as required, that person was participating in an abuse of rights in moving or disposing of taxable items, shall be liable on a joint and several basis for payment of the excise duty which has become liable.
…’
The main proceedings and the question referred
11      MK is the owner of a craft business governed by Croatian law engaged in wood cutting and ancillary services in the forestry sector.
12      On 1 July 2019, following a tax inspection of MK’s undertaking, the Porezna uprava, Područni ured Virovitica (Tax Office, Virovitica, Croatia) issued a tax assessment notice imposing on MK additional value added tax (VAT) in the amount of 135 603.57 kuna (HRK) (approximately EUR 18 000), plus default interest relating thereto. The tax authorities found that, for the period between 1 October 2016 and 31 December 2017, MK had deducted VAT on the basis of invoices for supplies of petroleum products which had proved to be falsified documents. In particular, it was found that, in fact, no supplies of petroleum products had taken place. MK was therefore denied the right to deduct input VAT.
13      In addition, in the administrative procedure which preceded the dispute in the main proceedings, the officials of the customs authorities carried out a review of the payment of excise duty payable by MK, in accordance, inter alia, with the provisions of the Law on Excise Duty. It was thereby established that, during the period under review, 36 invoices issued in 2016 and 119 invoices issued in 2017 for the purchase of Eurodiesel fuel submitted by MK were falsified invoices and that the supplies concerned had not taken place. In that context, the customs authorities concluded that MK had committed an abuse of rights in moving excise goods, namely petroleum products, in a quantity of 63 435.23 litres, as provided for in Article 124(2) of the Law on Excise Duty. Accordingly, by a tax assessment notice dated 22 October 2019, the customs authorities set the excise duty on energy products payable by MK, for the period from 10 October 2016 to 31 December 2017, at HRK 226 837.09 (approximately EUR 30 125).
14      By administrative decision dated 31 March 2022, the Ministry of Finance of the Republic of Croatia, Department for Second-Instance Administrative Procedure, rejected MK’s complaint in relation to the tax assessment notice dated 22 October 2019. MK then brought an action against that decision rejecting his complaint before the referring court, the Upravni sud u Osijeku (Administrative Court, Osijek, Croatia).
15      First, the referring court indicates that, by a judgment of the Općinski sud u Virovitici (Municipal Court, Virovitica, Croatia) dated 19 March 2019, MK was sentenced to a suspended term of imprisonment, and a civil penalty was imposed
requiring payment of an amount corresponding to his tax debt,
for forgery of documents and tax or customs fraud.
16      The referring court also indicates that, irrespective of the imposition of excise duty, on 21 April 2021, the customs authorities imposed on MK a fine of HRK 45 000 (approximately EUR 6 000), pursuant to the provisions of the Law on Excise Duty and on account of the administrative offence committed, namely the abuse of rights in the movement of excise goods.
17      Next, the referring court states that the provisions of the Law on Excise Duty, as interpreted by the courts and national authorities, establish excise duty on energy products irrespective of the general rules relating to when excise duty arises and, in particular, whether there has been a movement of excise goods.
18      Lastly, having stated that MK indicates that the petrol products at issue in the main proceedings never existed, the referring court recalls that excise duty constitutes a tax on the consumption of a specific item. It expresses doubts regarding the consistency with EU law of national legislation, as interpreted by national authorities, consisting of establishing excise duty in a situation such as that at issue in the main proceedings, in which there has undoubtedly been no movement in relation to excise goods and in which falsified invoices were issued for the purpose of unlawfully exercising the right to deduct input VAT.
19      In those circumstances, the Upravni sud u Osijeku (Administrative Court, Osijek) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must [Directive 2008/118], in particular Articles 7 and 8 thereof, … be interpreted as precluding national practice (and legislation) which provides for an obligation to pay excise duty on energy products where the excise goods have not been [released into circulation] and an excise duty liability has been established in respect of goods stated in falsified invoices for the purchase of energy products which, precisely because they have been falsified, do not give rise to the right to deduct input VAT because there are fictitious supplies of energy products, as has also been finally established in criminal proceedings?’
Consideration of the question referred
20      As a preliminary point, it must be stated that, as formulated, the referring court’s question concerns the interpretation of both Article 7 of Directive 2008/118 and Article 8 of that directive, since Article 8 thereof concerns the determination of ‘the person liable to pay the excise duty that has become chargeable’. It is not apparent from the order for reference that the referring court intends to ask the General Court about the issue of the determination of the person liable to pay the excise duty that has become chargeable. Therefore it is only Article 7 of Directive 2008/118 which must be interpreted in order to provide a useful answer to the question submitted to the Court.
21      In those circumstances, it must be held that, by its single question, the referring court is, in essence, asking whether Article 7 of Directive 2008/118 must be interpreted as precluding national legislation, as interpreted by the national authorities, which provides that excise duty is chargeable on the basis of a fictitious supply of excise goods appearing on falsified invoices.
22      In that regard, it should be recalled that Article 7(1) of Directive 2008/118 provides that ‘excise duty shall become chargeable at the time, and in the Member State, of release for consumption’. Article 7(2) of that directive defines ‘release for consumption’ in terms of four situations.
23      In addition, it is apparent from recital 8 of Directive 2008/118 that it is necessary for the proper functioning of the internal market that the concept, and conditions for ‘chargeability, of excise duty’ be the same in all Member States.
24      Article 7 of Directive 2008/118 defines, at EU level, the time at which excise goods are released for consumption. As the Court of Justice has held, that harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States (see, to that effect, judgment of 18 April 2024, Girelli Alcool, C‑509/22, EU:C:2024:341, paragraph 41; see also, by analogy, judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 44 and the case-law cited).
25      Moreover, the concept of ‘release for consumption’, which determines the time when excise duty becomes chargeable, should be interpreted in a uniform manner in all Member States (see, to that effect, judgment of 8 February 2018, Commission v Greece, C‑590/16, EU:C:2018:77, paragraph 45).
26      As the referring court states, the dispute in the main proceedings arises in the context of fictitious supplies of excise goods appearing on falsified invoices. On the basis of the information provided by the referring court, it must be held that, in the dispute in the main proceedings, excise duty was not imposed on account of a release of goods from a duty suspension arrangement, the holding of goods outside a duty suspension arrangement, production outside a duty suspension arrangement, or an importation, which are the situations for release for consumption laid down in Article 7(2) of Directive 2008/118, referred to at paragraph 22 above. The goods also cannot be subject to tax on account of an irregular release, production or importation of excise goods falling within the release for consumption situations laid down in Article 7(2) of Directive 2008/118.
27      As is apparent from the information provided by the referring court, in the dispute in the main proceedings, excise duty was imposed on account of an abuse of rights as provided for in Article 124 of the Law on Excise Duty, namely, in the present case, the recording in the accounts of economic events on the basis of falsified invoices, even though the energy products subject to excise duty were neither released into circulation nor supplied.
28      In that regard, it must be recalled that, as stated at paragraph 22 above, Article 7(2) of Directive 2008/118 sets out the situations in which a product subject to excise duty may be ‘released for consumption’. Indeed, it is apparent from the wording of that provision that those situations form an exhaustive list. Outside those situations, it cannot therefore be concluded that such a product has been released for consumption. That interpretation also follows from the need, referred to in paragraphs 24 and 25 above, to interpret the concept of ‘release for consumption’ in a uniform manner in all Member States.
29      It is clear that the situation referred to in paragraph 27 above does not correspond to any of the situations mentioned in Article 7(2) of Directive 2008/118 and cannot be regarded as a release for consumption within the meaning of that provision.
30      Furthermore, the referring court states that the national legislation at issue in the main proceedings was justified, inter alia, by the protection of the tax interests of the Republic of Croatia, in order to prevent certain excise duty regimes being abused and significant tax evasion.
31      In that regard, it should be recalled that the Member States have a legitimate interest in taking appropriate steps to protect their financial interests and that the prevention of possible tax evasion, avoidance and abuse is an objective pursued by Directive 2008/118 (see, to that effect, judgment of 29 June 2017, Commission v Portugal, C‑126/15, EU:C:2017:504, paragraph 59).
32      It nevertheless remains the case that the regulatory power of Member States to adopt measures such as those referred to in paragraph 31 above cannot be exercised so as to infringe the provisions of Directive 2008/118 and, in particular, of Article 7(1) and (2) thereof, otherwise the objective of harmonisation pursued by the EU legislature and reflected, in particular, in recital 8 of that directive, would be undermined (judgment of 21 December 2023, CDIL, C‑96/22, EU:C:2023:1025, paragraph 68).
33      In that context, the Croatian Government argues that the provisions of Articles 124 and 125 of the Law on Excise Duty are intended to prevent the use of energy products which have been obtained illegally. As regards that argument, it is sufficient to state that, as is apparent from paragraphs 26 and 27 above, the taxation to which the question asked by the referring court refers did not concern energy products obtained illegally.
34      In the light of the foregoing considerations, the answer to the question raised is that Article 7 of Directive 2008/118 must be interpreted as precluding national legislation, as interpreted by the national authorities, which provides that excise duty is chargeable on the basis of a fictitious supply of excise goods appearing on falsified invoices.
Costs
35      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the General Court, other than the costs of those parties, are not recoverable.
On those grounds,
THE GENERAL COURT (Chamber giving preliminary rulings)
hereby rules:
Article 7 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC
must be interpreted as precluding national legislation, as interpreted by the national authorities, which provides that excise duty is chargeable on the basis of a fictitious supply of excise goods appearing on falsified invoices.
Papasavvas
Półtorak
Sampol Pucurull
Steinfatt
Petrlík
Delivered in open court in Luxembourg on 9 July 2025.
[Signatures]
*      Language of the case: Croatian.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.