In the second place, the system of liability for risk provided for in Directive 92/12 stops at responsibility for the payment of excise duties. Thus, that directive does not impose a system of joint and several liability such as to render the authorised warehousekeeper liable for payment of the sums corresponding to the financial penalties imposed on the perpetrators of a smuggling offence.

However, it does not follow from Article 20(3) of Directive 92/12, which provides that Member States are required to take the necessary measures to deal with any offence or irregularity and to impose effective penalties, that Member States are required to impose additional criminal liability on the authorised warehousekeeper in respect of any irregularity committed during the release for movement of products subject to excise duty.

Directive 92/12 imposes on the authorised warehousekeeper a system of liability for all risks inherent in the movement of products subject to excise duty under such an arrangement, and that warehousekeeper is, consequently, designated as liable for the payment of excise duties in cases where an irregularity or offence has been committed involving the chargeability of such duties in the course of the movement of those products. That liability is thus strict and is based not on the proven or presumed fault of the warehousekeeper, but on his participation in an economic activity.

It is apparent from the scheme of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Directive 92/108 and, in particular, from Articles 13, 15(3) and (4) and 20(1) thereof that the legislature conferred a central role on the authorised warehousekeeper in the context of the procedure for movement of products subject to excise duty under a suspension arrangement.

Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Directive 92/108, read in the light of the general principles of EU law, in particular the principles of legal certainty and proportionality, must be interpreted as precluding national legislation — which permits, inter alia, the owners of products moving under excise duty suspension arrangements to be declared jointly and severally liable for payment of sums corresponding to the financial penalties imposed in the event of the commission of an offence during the movement of those products under excise duty suspension, where the owners are linked to the perpetrators of the offence by a contractual relationship making them their agents — under which the authorised warehousekeeper is declared jointly and severally liable for payment of those sums, with no possibility for him to escape that liability by providing proof that he had nothing whatsoever to do with the acts of the perpetrators of the offence, even if, under national law, that warehousekeeper was neither the owner of those products at the time when the offence was committed nor linked to the perpetrators of that offence by a contractual relationship making them his agents.

Where the increased liability of the authorised warehousekeeper that did not retain ownership of the smuggled goods and was not linked to the smugglers by a contractual relationship making them its agents is not expressly provided for either by Directive 92/12 or by the provisions of national law, the penalties that could be imposed on such an authorised warehousekeeper under such legislation do not appear sufficiently certain and foreseeable for the interested parties for the view to be taken that they meet the requirements of legal certainty, this, however, being a matter for the national court to verify.

So far as concerns the measures aimed at preventing tax evasion, it has already been held, in relation to value added tax, that the sharing of the risk, following fraud committed by a third party, will not be compatible with the principle of proportionality if a tax regime imposes the entire responsibility for the payment on suppliers, regardless of whether or not they were involved in the fraud committed by the purchaser.

Moreover, national measures which bring about, de facto, a system of strict joint and several liability go beyond what is necessary to preserve the public exchequer’s rights. Imposing responsibility for paying value added tax on a person other than the person liable to pay that tax, even where that person is an authorised tax warehouse-keeper bound by the specific obligations referred to in Directive 92/12, without allowing him to escape liability by providing proof that he had nothing whatsoever to do with the acts of the person liable to pay the tax, must be considered contrary to the principle of proportionality. It would clearly be disproportionate to hold that person unconditionally liable for the shortfall in tax caused by acts of a third party over which he has no influence whatsoever.

Compliance with those same requirements is necessary with regard to a measure such as the attribution to the authorised warehousekeeper of liability for the financial consequences of smuggling offences.

(see paras 46, 47, 49-51, 54, operative part)