Case C-550/08

British American Tobacco (Germany) GmbH

v

Hauptzollamt Schweinfurt

(Reference for a preliminary ruling from the Finanzgericht München)

(Directive 92/12/EEC – Products subject to excise duty – Importation of raw tobacco not subject to excise duty under the inward processing procedure – Processing into cut tobacco – Movement between Member States – Accompanying document)

Summary of the Judgment

Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 – Manufactured tobacco – Products manufactured from products not subject to excise duty imported into the Community under the inward processing procedure

(Council Directive 92/12, Arts 5(2), first para., first indent, and 18(1))

The first indent of the first subparagraph of Article 5(2) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco) that are manufactured from products not subject to excise duty (such as raw tobacco) imported into the Community under the inward processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that provision, even though they have become products subject to excise duty only by virtue of having been processed within Community territory, with the result that they can move between Member States without the administrative authorities being entitled to insist on production of the administrative or commercial document provided for in Article 18(1) of that directive.

(see paras 36-46, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

17 June 2010 ( )

(Directive 92/12/EEC – Products subject to excise duty – Importation of raw tobacco not subject to excise duty under the inward processing procedure – Processing into cut tobacco – Movement between Member States – Accompanying document)

In Case C‑550/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Finanzgericht München (Germany), made by decision of 13 November 2008, received at the Court on 11 December 2008, in the proceedings

British American Tobacco (Germany) GmbH

v

Hauptzollamt Schweinfurt,

THE COURT (Fourth Chamber),

composed of J.‑C. Bonichot (Rapporteur), President of the Chamber, C. Toader, K. Schiemann, P. Kūris and L. Bay Larsen, Judges,

Advocate General: V. Trstenjak,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 28 January 2010,

after considering the observations submitted on behalf of:

– British American Tobacco (Germany) GmbH, by T. Englert and H.‑M. Pott, Rechtsanwälte,

– Hauptzollamt Schweinfurt, by J. Muhlert, acting as Agent,

– the Czech Government, by M. Smolek, acting as Agent,

– the Polish Government, by M. Dowgielewicz, acting as Agent,

– the European Commission, by W. Mölls and A. Sauka, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the first indent of the first subparagraph of Article 5(2) and Article 15(4) 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 (OJ 1992 L 76, p. 1), in the version in force at the time of the facts in the main proceedings (‘Directive 92/12’).

2 The reference has been made in the course of proceedings between British American Tobacco (Germany) GmbH (‘BAT’) and Hauptzollamt Schweinfurt (Principal Customs Office, Schweinfurt) relating to two decisions of the Hauptzollamt imposing tobacco excise duties on consignments of cut tobacco sent from Germany to France.

Legal context

Directive 92/12

3 The 10th and 15th recitals in the preamble to Directive 91/12 are worded as follows:

‘… movement from the territory of one Member State to that of another may not give rise to checks liable to impede free movement within the Community; … for the purposes of chargeability it is nevertheless necessary to know of the movements of products subject to excise duty; … provision should therefore be made for an accompanying document for such products;

…

… there is no need for the accompanying document to be used when the products subject to excise duties are moved under a Community customs procedure other than release for free circulation …’

4 Article 3(1) Directive 92/12 provides:

‘This Directive shall apply at Community level to the following products as defined in the relevant directives:

…

– manufactured tobacco.’

5 Article 4(c) of the Directive defines the concept of ‘suspension arrangement’ in the following terms:

‘suspension arrangement: a tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended’.

6 Article 5 of the Directive provides:

‘1. The products referred to in Article 3(1) shall be subject to excise duty at the time of their production within the territory of the Community as defined in Article 2 or of their importation into that territory.

“Importation of a product subject to excise duty” shall mean the entry of that product into the territory of the Community …

However, where the product is placed under a Community customs procedure on entry into the territory of the Community, importation shall be deemed to take place when it leaves the Community customs procedure.

2. Without prejudice to national and Community provisions regarding customs matters, when products subject to excise duty:

– are coming from, or going to, third countries … and are placed under one of the customs suspensive procedures listed in Article 84(1)(a) of [Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1); “the Community Customs Code”], …

…

the excise duty on them shall be deemed to be suspended.

…’

7 Article 6(1) of Directive 92/12 defines in the following terms the conditions under which excise duty becomes chargeable:

‘Excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject to excise duty in accordance with Article 14(3).

Release for consumption of products subject to excise duty shall mean:

(a) any departure, including irregular departure, from a suspension arrangement;

(b) any manufacture, including irregular manufacture, of those products outside a suspension arrangement;

(c) any importation of those products, including irregular importation, where those products have not been placed under a suspension arrangement.’

8 Article 15(4) of Directive 92/12 states:

‘… the liability of the authorised warehousekeeper of dispatch and, if the case arises, that of the transporter may only be discharged by proof that the consignee has taken delivery of the products, in particular by the accompanying document referred to in Article 18 under the conditions laid down in Article 19.’

9 Article 18 of Directive 92/12 provides:

‘1. Notwithstanding the possible use of computerised procedures, all products subject to excise duty moving under duty-suspension arrangements between Member States … shall be accompanied by a document drawn up by the consignor. This document may be either an administrative document or a commercial document. The form and content of this document, and the procedure to be followed where its use is objectively inappropriate, shall be established in accordance with the procedure laid down in Article 24.

…

4. Paragraph 1 shall not apply when products subject to excise duty move under the conditions referred to in Article 5(2).

…’

10 Article 19 of Directive 92/12 provides:

‘1. The tax authorities of the Member States shall be informed by traders of deliveries dispatched or received by means of the document or a reference to the document specified in Article 18. This document shall be drawn up in quadruplicate: …

…

The Member States of destination may stipulate that the copy to be returned to the consignor for discharge should be certified or endorsed by its national authorities. Member States applying this provision must inform the Commission, which shall in turn inform the other Member States thereof.

…

2. When products subject to excise duty move under the duty-suspension arrangements to an authorised warehousekeeper or to a registered or non-registered trader, a copy of the accompanying administrative document or a copy of the commercial document, duly annotated, shall be returned by the consignee to the consignor for discharge, at the latest within 15 days following the month of receipt by the consignee.

…

3. The duty-suspension arrangements as defined in Article 4(c) shall be discharged by the placing of the products subject to excise duty under one of the arrangements referred to in Article 5(2) and subject to the conditions referred to therein, after the consignor has received the copy to be returned of the accompanying administrative document or a copy of the commercial document, duly annotated, in which it must be noted that the products have been placed under such an arrangement.

…’

The Community Customs Code

11 The Community Customs Code provides in Article 59(1) that all goods intended to be placed under a customs procedure are to be covered by a declaration for that customs procedure.

12 Article 64(1) of the Code provides:

‘Subject to Article 5, a customs declaration may be made by any person who is able to present the goods in question or to have them presented to the competent customs authority, together with all the documents which are required to be produced for the application of the rules governing the customs procedure in respect of which the goods were declared.’

13 According to Article 84(1) of the Community Customs Code:

‘In Articles 85 to 90:

(a) where the term “procedure” is used, it is understood as applying, in the case of non-Community goods, to the following arrangements:

…

– inward processing in the form of a system of suspension;

…

(b) where the term “customs procedure with economic impact” is used, it is understood as applying to the following arrangements:

…

– inward processing;

…’

14 Article 85 of the Community Customs Code provides that the use of any customs procedure with economic impact is to be conditional upon authorisation being issued by the customs authorities. Article 86 of the Code sets out the conditions governing that authorisation in the following terms:

‘Without prejudice to the additional special conditions governing the procedure in question, the authorisation referred to in Article 85 … shall be granted only:

– to persons who offer every guarantee necessary for the proper conduct of the operations; [and]

– where the customs authorities can supervise and monitor the procedure without having to introduce administrative arrangements disproportionate to the economic needs involved.’

15 Article 87 of the Community Customs Code states:

‘1. The conditions under which the procedure in question is used shall be set out in the authorisation.

2. The holder of the authorisation shall notify the customs authorities of all factors arising after the authorisation was granted which may influence its continuation or content.’

16 Article 88 of the Code provides:

‘The customs authorities may make the placing of goods under a suspensive arrangement conditional upon the provision of security in order to ensure that any customs debt which may be incurred in respect of those goods will be paid.

…’

17 According to Article 114 of the Code:

‘1. Without prejudice to Article 115, the inward processing procedure shall allow the following goods to be used in the customs territory of the Community in one or more processing operations:

(a) non-Community goods intended for re-export from the customs territory of the Community in the form of compensating products, without such goods being subject to import duties or commercial policy measures;

…

2. The following expressions shall have the following meanings:

(a) suspension system: the inward processing relief arrangements as provided for in paragraph 1(a);

…

(c) processing operations:

…

– the processing of goods,

…

(d) compensating products: all products resulting from processing operations;

…’

National law

18 Paragraph 18(3) of the Tabaksteuergesetz (Law on tobacco duty, Bundesgesetzblatt, 1992, part I, p. 2150) provides that, where tobacco products have been dispatched under an intra-Community tax transit operation from a tax warehouse in the fiscal territory to a tax warehouse, an authorised consignee or a customs office at the point of exit in another Member State, and the consignor does not produce proof, within a period of four months from the date of commencement of dispatch, that those products arrived at the place of destination, those products will be deemed to have been removed from the duty-suspension arrangements within the fiscal territory.

19 Point 1 of the first subparagraph of Paragraph 21 of that Law provides that, where manufactured tobacco products are placed under a customs procedure, the provisions relating to customs are to apply mutatis mutandis to the creation and extinction of liability to duty.

20 Paragraph 23(2) of the Verordnung zur Durchführung des Tabaksteuergesetzes (Regulation on the implementation of the Tabaksteuergesetz, Bundesgesetzblatt 1993, part I, p. 1738) states that the abovementioned Paragraph 21 does not apply to inward processing, under customs duty suspension, for the purpose of manufacturing tobacco products.

The dispute in the main proceedings and the questions referred

21 Under an inward processing procedure in the form of a system of suspension, BAT imports raw tobacco from non-member countries into Germany, where it processes it into cut tobacco.

22 In respect of that raw tobacco, which is a product not subject to excise duty, BAT has, with effect from 1 July 2002, benefited from a single authorisation, granted by the United Kingdom customs authorities, to implement an inward processing procedure in the form of a system of suspension valid for all Member States. That authorisation permits it, for consignments of cut tobacco sent from Germany to other Member States, to use its delivery notes (‘IPR-Delivery Document’) in place of the accompanying document required in principle, pursuant to Article 18(1) of Directive 92/12, for the movement between Member States of goods subject to excise duty under a suspension procedure.

23 During January and April 2003, BAT dispatched consignments of cut tobacco from its manufacturing plant in Germany to a tax warehouse of a company established in France. That latter company certified receipt on the abovementioned delivery notes, which indicated that they were also being used as accompanying documents.

24 By decisions of 27 May 2003 and 20 August 2003, the German Hauptzollamt sought payment from BAT of excise duty totalling EUR 144 550 in respect of those consignments of tobacco on the ground that, as it had not provided the accompanying document certified by the French customs authorities, BAT had failed to demonstrate that those consignments had arrived in the tax warehouse in France.

25 After its complaints had been rejected, BAT challenged those decisions in an action brought before the Finanzgericht München (Finance Court, Munich).

26 The national court takes the view that resolution of the dispute before it requires it, first of all, to ascertain whether the products at issue are in circulation under the conditions referred to in the first indent of the first subparagraph of Article 5(2) of Directive 92/12 since, in that situation, Article 18(4) of that directive permits, by way of derogation, such products to move between the Member States without an accompanying document. The national court wishes to ascertain, in particular, whether products subject to excise duty, such as those in the main proceedings, which were manufactured in a Member State under inward processing arrangements from products which were not subject to excise duty when they were imported into the Community under that customs procedure can be regarded as products subject to excise duty coming from third countries within the meaning of the first indent of the first subparagraph of Article 5(2) of Directive 92/12.

27 The national court also wishes to establish whether, if the Court should take the view that the conditions referred to in the first indent of the first subparagraph of Article 5(2) of Directive 92/12 are not satisfied, Article 15(4) of that directive must be interpreted as meaning that proof that the consignee has taken delivery of the goods subject to excise duty may also be provided otherwise than by means of the accompanying document.

28 In that context, the Finanzgericht München decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Must the first indent of the first subparagraph of Article 5(2) of [Directive 92/12] be interpreted as meaning that non-Community goods subject to excise duty which have been placed under an inward processing procedure within the terms of Article 84(1)(a) of [the Community Customs Code] are to be deemed to be subject to duty-suspension arrangements even if they are produced, under an inward processing procedure, from goods which are not subject to excise duty only after the importation of those goods and therefore, in accordance with the 15th recital in the preamble to Directive 92/12 …, when they are being moved there is no need for the accompanying document referred to in Article 18(1) of Directive 92/12 … to be used?

2. If the first question is to be answered in the negative: must Article 15(4) of Directive 92/12 … be interpreted as meaning that proof that the consignee has taken delivery of the goods may also be provided otherwise than by means of the accompanying document referred to in Article 18 of Directive 92/12 …?’

Consideration of the questions referred

The first question

29 By its first question, the national court asks, in essence, whether the first indent of the first subparagraph of Article 5(2) of Directive 92/12 must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco) which are manufactured from products not subject to excise duty (such as raw tobacco) and imported into the Community under the inward-processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that provision, even though they have become products subject to excise duty only by virtue of having been processed within Community territory, with the result that they can move between Member States without the administrative authorities being entitled to insist on production of the administrative or commercial document provided for in Article 18(1) of Directive 92/12.

30 It should be borne in mind that Article 18(1) of Directive 92/12 provides that all products subject to excise duty moving under duty-suspension arrangements between Member States must be accompanied by an accompanying document.

31 Article 18(4), however, sets aside that obligation when the products are in circulation under the conditions referred to in the first indent of the first subparagraph of Article 5(2) of that directive.

32 The first indent of the first subparagraph of Article 5(2) of Directive 92/12 refers to, inter alia, cases where products subject to excise duty are coming from, or going to, third countries and are placed under one of the customs suspensive procedures listed in Article 84(1)(a) of the Community Customs Code. In those circumstances, the first indent of the first subparagraph of Article 5(2) provides that the excise duty on those products is deemed to be suspended.

33 In the case in the main proceedings, it is common ground, first, that the products at issue in those proceedings are manufactured tobacco products, which are subject to excise duty pursuant to Article 3 of Directive 92/12, and, second, that they are in circulation under the inward processing procedure in the form of the system of suspension referred to in the third indent of Article 84(1)(a) of the Community Customs Code.

34 By contrast, the first question referred by the national court involves an assessment as to whether products such as those at issue in the main proceedings must be regarded as products subject to excise duty coming from, or going to, third countries, within the meaning of the first indent of the first subparagraph of Article 5(2) of Directive 92/12, even though they enter into the category of products subject to excise duty only because they have been processed in a Member State.

35 In that regard, it must be borne in mind that, according to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C‑19/08 Petrosian and Others [2009] ECR I‑495, paragraph 34).

36 In the present case, the wording of the first indent of the first subparagraph of Article 5(2) of Directive 92/12 provides no useful assistance in answering the question referred, with the result that that provision must be interpreted having regard to its context and in the light of the objective pursued by that directive, in particular by Article 18(4) thereof, which, in the case where the conditions laid down in the first indent of the first subparagraph of Article 5(2) are fulfilled, sets aside the obligation relating to the accompanying document.

37 It must be pointed out in that regard that the 10th recital in the preamble to Directive 92/12 states that, although the objective pursued by the Directive is to prevent movement of a product from one Member State to another giving rise to checks liable to impede free movement within the Community, it is nevertheless necessary, for the purposes of chargeability, to be aware of the movements of products subject to excise duty, and that those purposes justify the requirement of an accompanying document for such products. However, the 15th recital states that such a requirement is no longer justified when those products are moving under a Community customs procedure such as inward processing in the form of a system of suspension.

38 Directive 92/12 is thus intended to limit the requirement relating to the accompanying document to those cases alone in which that formality is genuinely necessary in order to ensure supervision of the movements of products subject to excise duty and compliance with the rules under which such duty is chargeable.

39 It follows that Directive 91/12, through the reference in Article 18(4) to the first indent of the first subparagraph of Article 5(2), exempted the consignor from the requirement relating to the accompanying document in the case where products subject to excise duty are under a Community customs procedure and where that procedure, under its own rules, permits supervision of the movement of the products at issue equivalent to that of an accompanying document in such a way as to ensure compliance with the rules relating to payment of excise duty.

40 Under those circumstances, in order to determine whether products such as those at issue in the main proceedings come within the scope of the first indent of the first subparagraph of Article 5(2) of Directive 91/12 and may therefore move without the appropriate accompanying document for products subject to excise duty, it is necessary to establish whether the legal rules applicable to products of non-Community origin which are not subject to excise duty and which are imported into the Community under an inward processing procedure in the form of a system of suspension ensure, with respect to the movement of such products, supervision equivalent to that which results from the requirement of an accompanying document in the case where the processing which those products have undergone within Community territory has brought them within the category of products subject to excise duty.

41 In that regard, it must be pointed out that the obligations arising from the inward processing procedure in the form of a system of suspension, designed to ensure supervision of products under that customs procedure, apply in an identical manner irrespective of whether the products concerned were already subject to excise duty at the time when they were imported into the Community under that procedure or became subject to such duty only after they had been manufactured in the Community from products which were not subject to excise duty and which were imported into the European Union under that procedure.

42 That is true, in particular, with regard to the obligations referred to in Articles 59 and 64 of the Community Customs Code, which require a declaration for the purpose of placing goods under a customs procedure, acceptance of which gives rise to customs supervision.

43 The same is true of the obligations referred to in Articles 85 to 88 of the Customs Code, which require an authorisation for the use of any customs procedure with economic impact and allow the competent authorities to lay down, in that authorisation, all relevant conditions for correct implementation of that procedure, particularly with regard to the ‘proper conduct of the operations’, the supervision and monitoring of that procedure and the provision of securities.

44 Consequently, the view must be taken that the first indent of the first subparagraph of Article 5(2) of Directive 92/12 applies not only to products coming from third countries which are subject to excise duty but also to products such as those at issue in the main proceedings, which are manufactured from non-Community products that are not subject to excise duty and are imported into the Community under an inward processing procedure in the form of a system of suspension.

45 Under those circumstances, there is no need to determine whether such products must also be regarded as products going to third countries, within the meaning of the first indent of the first subparagraph of Article 5(2) of Directive 92/12.

46 In the light of the foregoing, the answer to the first question is that the first indent of the first subparagraph of Article 5(2) of Directive 92/12 must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco) which are manufactured from products not subject to excise duty (such as raw tobacco) and imported into the Community under the inward-processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that provision, even though they have become products subject to excise duty only by virtue of having been processed within Community territory, with the result that they can move between Member States without the administrative authorities being entitled to insist on production of the administrative and commercial document provided for in Article 18(1) of that directive.

The second question

47 In view of the answer to the first question, there is no need to answer the second question.

Costs

48 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

The first indent of the first subparagraph of Article 5(2) 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 must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco) which are manufactured from products not subject to excise duty (such as raw tobacco) and imported into the Community under the inward-processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that provision, even though they have become products subject to excise duty only by virtue of having been processed within Community territory, with the result that they can move between Member States without the administrative authorities being entitled to insist on production of the administrative or commercial document provided for in Article 18(1) of that directive.

[Signatures]