Ralph Prankl.
Date: 2015-03-05
20. It should be noted at the outset that the aim of Directive 92/12 is to lay down a number of rules on the holding, movement and monitoring of products subject to excise duty, in particular so as to ensure that chargeability of excise duties is identical in all the Member States. That harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States (judgments in Scandic Distilleries , C‑663/11, EU:C:2013:347, paragraphs 22 and 23, and Gross , C‑165/13, EU:C:2014:2042, paragraph 17).
21. It must also be borne in mind that Article 7(1) and (2) of Directive 92/12 lays down a general rule that where a product subject to excise duty and released for consumption in one Member State is held for commercial purposes in another Member State, the excise duty is to be levied in the latter State. The excise duty is therefore chargeable in the Member State for which the product is intended rather than the State where it is released for consumption (judgment in Meiland Azewijn , C‑292/02, EU:C:2004:499, paragraph 35).
22. The interpretation to the effect that the levying of the excise duty occurs, in general, in one Member State only, namely that for which the product concerned is intended and in which it will be consumed, is moreover borne out by Article 22 of Directive 92/12, which provides, under certain conditions, for the reimbursement of the excise duties paid in another Member State (judgment in Scandic Distilleries , EU:C:2013:347, paragraph 24).
24. However, the Court has held that, if products which are unlawfully introduced into the territory of the European Union are, like the goods at issue in the main proceedings, held for commercial purposes, it is apparent from Article 6(1), in conjunction with Article 7(1), of that directive that the authorities in the Member State in which those products were discovered are competent to collect the excise duty (judgment in Dansk Transport og Logistik , C‑230/08, EU:C:2010:231, paragraph 114, and order in Febetra , C‑333/11, EU:C:2012:134, paragraph 41). In the case in the main proceedings the authorities concerned are the United Kingdom authorities.
25. By contrast, it is only if the products at issue are not held for commercial purposes that the Member State of departure remains competent, pursuant to Article 6 of Directive 92/12, to collect the excise duty, even if the unlawfully introduced products were only discovered subsequently by the authorities in another Member State (see, to that effect, judgment in Dansk Transport og Logistik , EU:C:2010:231, paragraph 115, and order in Febetra , EU:C:2012:134, paragraph 42).
28. The fact that, in paragraph 57 of the judgment in BATIG  (EU:C:2007:788), the Court held that the EU legislature favoured the prevention of abuse and evasion to the detriment of the principle that taxation should occur in only one Member State does not cast doubt on that interpretation. That assessment is part, as is apparent from the first sentence of that paragraph, of the specific factual context of the case which gave rise to that judgment, which concerned the situation of an unlawful departure from a suspension arrangement on account of the theft of products to which tax markings had already been affixed in the Member State of departure and which was characterised by the fact that the Member State which had issued those tax markings was unable to establish that they had been destroyed. Those products thus gave rise to payment of excise duties in both the Member State in which they were released for consumption and the Member State in which they were intended for consumption and of which they already bore the tax markings.