1. By order of 20 October 2000, received at the Court on 26 October 2000, the Tribunale di Trento (District Court, Trento) referred to the Court for a preliminary ruling under Article 234 EC three questions on the interpretation of Article 20(2) and (3) 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, "the Directive" ).
2. Those questions were raised in proceedings between Distillerie Fratelli Cipriani ( "Cipriani" ) and the Ministero delle Finanze (Ministry of Finance) concerning various notices served by the Ministry on Cipriani for the payment of excise duty on certain consignments of alcohol moving under the duty-suspension arrangements. The relevant provisions
3. In accordance with its Article 3(1), the Directive is applicable to alcohol and alcoholic beverages.
4. Under Article 4(a) of the Directive, an "authorised warehousekeeper" means a natural or legal person authorised by the competent authorities of a Member State to produce, process, hold, receive and dispatch products subject to excise duty in the course of his business, excise duty being suspended under tax-warehousing arrangement.
5. According to Article 4(c) of the Directive, "suspension arrangement" means a tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended.
6. Under Article 5(1) of the Directive, the products referred to in Article 3(1) are to be subject to excise duty at the time of their production within the territory of the Community or of their importation into that territory.
7. Article 6 of the Directive provides: "1. 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. 2. The chargeability conditions and rate of excise duty to be adopted shall be those in force on the date on which duty becomes chargeable in the Member State where release for consumption takes place or shortages are recorded. Excise duty shall be levied and collected according to the procedure laid down by each Member State, it being understood that Member States shall apply the same procedures for levying and collection to national products and to those from other Member States. "
8. Under Article 13(a) of the Directive, an authorised warehousekeeper is required to provide a guarantee, if necessary, to cover production, processing and holding and a compulsory guarantee to cover movement, the conditions for which shall be set by the tax authorities of the Member States where the tax warehouse is authorised.
9. In accordance with Article 15(3): "The risks inherent in intra-Community movement shall be covered by the guarantee provided by the authorised warehousekeeper of dispatch, as provided for in Article 13, or if need be, by a guarantee jointly and severally binding both the consignor and the transporter. If appropriate, Member States may require the consignee to provide a guarantee. The detailed rules for the guarantee shall be laid down by the Member States. The guarantee must be valid throughout the Community. "
10. By virtue of Article 18(1) of the Directive, notwithstanding the possible use of computerised procedures, all products subject to excise duty moving under duty-suspension arrangements between Member States are to 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 are to be established in accordance with the procedure laid down in Article 24 of the Directive.
11. Article 19(4) of the Directive provides that, where the products subject to excise duty which are moving under the duty-suspension arrangement as defined in Article 4(c) are exported, this arrangement is to be discharged by an attestation drawn up by the customs office of departure from the Community confirming that the product has indeed left the Community. That office must send back to the consignor the certified copy of the accompanying document intended for him.
12. In accordance with Article 19(5), if there is no discharge, the consignor is to inform the tax authorities of his Member State within a time-limit to be fixed by those tax authorities. The time-limit may not, however, exceed three months from the date of dispatch of the goods.
13. Article 20 of the Directive provides: "(1) Where an irregularity or offence has been committed in the course of a movement involving the chargeability of excise duty, the excise duty shall be due in the Member State where the offence or irregularity was committed from the natural or legal person who guaranteed payment of the excise duties in accordance with Article 15(3), without prejudice to the bringing of criminal proceedings. Where the excise duty is collected in a Member State other than that of departure, the Member State collecting the duty shall inform the competent authorities of the country of departure. (2) When, in the course of movement, an offence or irregularity has been detected without it being possible to determine where it was committed, it shall be deemed to have been committed in the Member State where it was detected. (3) Without prejudice to the provision of Article 6(2), when products subject to excise duty do not arrive at their destination and it is not possible to determine where the offence or irregularity was committed, that offence or irregularity shall be deemed to have been committed in the Member State of departure, which shall collect the excise duties at the rate in force on the date when the products were dispatched unless within a period of four months of the date of dispatch of the products evidence is provided which is considered satisfactory by the competent authorities of the correctness of the transaction or of the place where the offence or irregularity was actually committed. (4) If, before the expiry of a period of three years from the date on which the accompanying document was drawn up, the Member State where the offence or irregularity was actually committed is ascertained, that Member State shall collect the excise duty at the rate in force on the date when the goods were dispatched. In this case, as soon as evidence of collection has been provided, the excise duty originally levied shall be refunded. "
14. The Directive was transposed into Italian law by Legislative Decree No 504 of 26 October 1995 (Consolidated Law on production and consumption taxes and related criminal and administrative penalties, GURI No 279 of 29 November 1995, Ordinary Supplement No 143, p. 5), Article 7 of which corresponds to Article 20 of the Directive. The dispute in the main proceedings and the questions referred
15. Cipriani has been active in the alcohol distilling business for several years.
16. As an authorised warehousekeeper of dispatch within the meaning of Article 15(3) of the Directive, between December 1996 and November 1997 Cipriani performed various operations involving the movement under duty-suspension arrangements of alcohol products intended for export to non-member countries via one or more Member States.
17. Those products were dispatched under cover of the accompanying administrative documents ( "AADs" ) provided for in Article 18(1) of the Directive.
18. The Italian tax authorities asked the German authorities to investigate a number of AADs under the arrangements for administrative cooperation in matters of excise duties. As a result of those investigations, it came to light that the stamps affixed to those AADs attesting to the products' having left the territory of the Community had been falsified.
19. Since that amounted to an irregularity for the purposes of the Directive and of the applicable national provisions, the Ufficio Tecnico di Finanza di Trento ( "the Finance Office" , Trento) by notice served on Cipriani on 16 March 1998 demanded that the latter which, as authorised warehousekeeper of dispatch, was required to guarantee the payment of excise duties where an irregularity was found to have been committed, should pay the sum of ITL 6 448 296 by way of excise duties on 20 consignments of neutral alcohol of molasses moving under the duty-suspension arrangements.
20. On 6 April 1998 two other notices were served on Cipriani, demanding payment of ITL 19 044 116 432 and ITL 947 034 352, respectively, by way of excise duty on two further consignments of neutral alcohol of molasses, also moving under the duty-suspension arrangements.
21. Those notices were served after the expiry of the period of four months from the date on which the products were dispatched, set in Article 20(3) of the Directive.
22. It is apparent from the documents in the case in the main proceedings that it was not until the notices demanding payment of excise duty were served by the Italian tax authorities that Cipriani became, or could have become, aware of the falsification of the stamp affixed to the AADs.
23. By summons served on the Ministry of Finance on 30 March 1998, Cipriani brought an action before the national court, arguing, first, that no excise duty was payable because there was no proof that the products had been released for consumption in Italy, second, that the national provision implementing Article 20 of the Directive was not applicable because the excise duties may be demanded only if its liability for the offence or irregularity has been established and, lastly, that the Italian authorities were not entitled to recover the tax, since they had not produced evidence that they had been unable to establish the actual destination of the products.
24. On the same grounds Cipriani also contested the two notices demanding payment served on 6 April 1998.
25. The Ministry of Finance maintains, first, that the fraudulent approval of the AADs was tantamount to release of the products for consumption in Italy, since it was an improper discharge from the duty-suspension arrangements, thus making duty payable.
26. Second, it contends that the obligation to make payment of those duties falls on Cipriani as authorised warehousekeeper and that the Member State of departure, in this case the Italian Republic, has the power to demand the payment of such duties.
27. In addition, the Ministry of Finance argues that the burden of proving the correctness of the transaction or proving where the goods were released for consumption falls upon the consignor, which entitles the Italian Republic to recover the excise duties at the end of the four-month period provided for by Article 20(3) of the Directive, it being the State of departure and the State in which the irregularity or offence is deemed to have been committed. Once that period had expired, the consignor could no longer provide that evidence in order to challenge the power of the Member State concerned to collect those duties.
28. Taking the view that resolution of the dispute before it called for interpretation of Article 20(2) and (3) of the Directive, the Tribunale di Trento decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: "1. Where products destined for export via one or more Member States are moved under the suspension arrangement defined in Article 4(c) of Council Directive 92/12/EEC of 25 February 1992 but fail to reach their destination, and it is impossible to ascertain where the irregularity occurred or where the offence took place, is Article 20(3) of that directive to be interpreted as meaning that the Member State of departure may collect the excise duties only if the party that has guaranteed payment has been promptly put in a position to ascertain that there has been no discharge from the suspension arrangement, in such a way as to enable that party to provide, within the four-month period following the date of dispatch of the products, satisfactory evidence of the correctness of the transaction or of the place where the irregularity in fact occurred or where the offence was in fact committed? 2. In the event that Question 1 is answered in the affirmative, does the same interpretation also hold good, in the same circumstances, where the Member State of departure is also the Member State where the offence was committed or where the irregularity occurred, or, in such a case, does the presumption set out in Article 20(2) of Directive 92/12/EEC apply? If that presumption applies, may evidence be furnished of the correctness of the transaction or of the place where the irregularity in fact occurred or where the offence was in fact committed, and is such evidence subject to the time-limit laid down in Article 20(3)? 3. In the event that Question 1 is answered in the negative, is Article 20(3) of Council Directive 92/12/EEC of 25 February 1992 to be interpreted, in the same circumstances, as meaning that a party that has guaranteed payment of excise duty and has not been promptly put in a position to ascertain that there has been no discharge from the suspension arrangement is entitled to furnish evidence of the correctness of the transaction or of the place where the irregularity in fact occurred or where the offence was in fact committed even after the expiry of the four-month period following the date of dispatch of the products? " The first and third questions
29. By its first and third questions, which it is appropriate to consider together, the national court in substance asks whether, on a proper construction of Article 20(3), the period of four months allowed by that provision for evidence to be provided of the correctness of the transaction or of the place where the irregularity or offence was actually committed may be relied on against a trader who has guaranteed the payment of the excise duties but was not in a position to know, at the appropriate time, that the duty-suspension arrangements had not been discharged. Observations submitted to the Court
30. Cipriani maintains that the period of four months provided for by Article 20(3) of the Directive cannot begin to run until the moment when the person concerned has, or could have, become aware of the offence or irregularity and not from the time when the products subject to excise duty were dispatched. If it were otherwise, that person would be deprived of the right to defend himself where irregularities are discovered after that period has expired.
31. According to Cipriani, either the period within which it can put forward its grounds of defence is still running, or the act served on it is vitiated inasmuch as it does not refer to that period.
32. The Portuguese Government observes that the system of intra-Community movement of products under duty-suspension arrangements laid down by the Directive provides for the risks inherent in that movement to be covered by the guarantee provided by the authorised warehousekeeper of dispatch or, if the case arises, by a guarantee jointly and severally binding on both the consignor and the transporter. Under Article 15(4) of the Directive, the liability of those two persons may be discharged only by proof that the consignee has taken delivery of the products, in particular by means of the accompanying document, subject to the conditions laid down in Article 19 of the Directive.
33. The Portuguese Government recognises, however, that it would have been difficult for the trader concerned in the main proceedings to observe the period of four months prescribed by Article 20(3) of the Directive, since it was only after that period expired that it was possible to conclude that the movement operations were irregular because the stamp used to attest that the goods had left the territory of the Community had been falsified.
34. Since, where irregularity is detected, the State may at any moment recover the excise duty at issue, provided that the extinctive time-limits for demanding payment have not expired, the Portuguese Government takes the view that the period of four months fixed by Article 20(3) of the Directive is not a mandatory time-limit for the recovery of excise duties.
35. The Commission observes that the wording of Article 20(3) of the Directive makes it clear that the national tax authorities are in no way bound to notify the consignor of failure to produce the goods subject to excise duty at their place of destination. In consequence, the period of four months which the consignor is allowed in order to provide evidence of the correctness of the transaction or of the place where the irregularity was committed cannot begin to run from the date of a notification not provided for by the Directive, but the starting-point of that period must rather be fixed at the date on which the goods were dispatched, as Article 20(3) of the Directive expressly states.
36. The Commission none the less acknowledges that, in the real commercial world, a period of four months from the dispatch of goods subject to excise duty would frequently be too short for irregularities in their movement to be uncovered and a time-limit which, in practice, has nearly always expired before the trader has been placed in a position effectively to make his views known can hardly, in its submission, be described as "reasonable" .
37. The Commission recalls the existence of the general principle of respect for the rights of defence in relation to measures taken by the Community institutions and, therefore, in relation to a taxation measure taken by national tax authorities pursuant to a provision of Community law such as Article 20(3) of the Directive.
38. Accordingly, the Commission takes the view that where the consignor knows, or is informed, in one way or another, of some irregularity or offence committed while products subject to excise duty are in movement, there is no reason not to give a literal interpretation to Article 20(3) of the Directive by making the period of four months start to run from the date on which the products are dispatched.
39. On the other hand, in the case of a consignor who, in utter good faith and without being in any way at fault, did not know and could not have known of the irregularity discovered while the products subject to excise duty were in movement, the period of four months starts to run only as from the date on which that consignor actually learned of the irregularity or offence.
40. According to the Commission, only that interpretation of Article 20(3) of the Directive is in keeping with the general principle of respect for the rights of defence and the effectiveness of that provision. Findings of the Court
41. It must be observed that the purpose of the Directive is to lay down a number of rules on the holding, movement and monitoring of products subject to excise duty (Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, paragraph 22).
42. The suspension arrangement defined in Article 4(c) of the Directive is the tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended. It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, although the chargeable event for taxation purposes has already taken place.
43. By virtue of Article 6(1) of the Directive, excise duty on products subject to it, such as alcohol, becomes chargeable in particular when they are released for consumption. The term "release for consumption" covers not only any manufacture or importation of products subject to excise duty outside a suspension arrangement but also any departure, including irregular departure, from such an arrangement (Case C-325/99 van de Water [2001] ECR I-2729, paragraph 35).
44. Where products subject to excise duty which are moving under the duty-suspension arrangement are exported, Article 19(4) of the Directive makes it clear that the arrangement is discharged by the attestation drawn up by the customs office of departure from the Community that the products have indeed left the Community. That office must send back to the consignor the certified copy of the AAD intended for him.
45. It is apparent from the order for reference that the offence at issue in the main proceedings consists of the failure to discharge the duty-suspension arrangement in accordance with Article 19(4) of the Directive, the AAD which Cipriani received pursuant to that provision on products for export having been falsified by the affixing of a false stamp.
46. The national authorities being required to ensure that the duty, once chargeable, is in fact collected (see Van de Water , cited above, paragraph 41), the purpose of Article 20 of the Directive is in particular to determine the Member State entitled to collect the excise duty on the products where, in the course of a movement, an offence or infringement has been committed.
47. Where products subject to excise duty do not arrive at their destination and it is impossible to determine where the offence or irregularity was committed, Article 20(3) of the Directive provides, in particular, that the offence or irregularity is deemed to have been committed in the Member State of departure, which is therefore entitled to collect the excise duty.
48. However, according to that provision in the Directive, within a period of four months of the date of dispatch of the products the persons concerned may provide evidence, to the satisfaction of the competent authorities, of the correctness of the transaction or of the place where the offence or irregularity was actually committed.
49. As a general rule, a consignor becomes aware of an offence or irregularity when the certified copy of the AAD provided for by Article 19(4) of the Directive is not sent back to him by the customs office of departure from the Community. If there is no discharge in accordance with that provision, the consignor is required, under Article 19(5), to inform the tax authorities of his Member State.
50. However, where a consignor such as the one concerned in the case in the main proceedings has received the certified copy of the AAD and is not, and could not be, aware of its falsification until served with notices for the payment of the excise duties by the national tax authorities, which were served after the expiry of the period prescribed by Article 20(3) of the Directive, it must be established whether the application of that period is in keeping with the general principles of Community law, such as respect for the rights of the defence. As the Commission has rightly observed, the purpose of that period is to afford the consignor or, as the case may be, the person who guaranteed payment of the excise duties in accordance with Article 15(3) of the Directive a certain measure of protection when the procedure for recovering those duties is set in motion.
51. Respect for the rights of defence, as the Court has frequently held, is in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person and, in particular, in proceedings which may lead to the imposition of penalties, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views (Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraph 21, and Case C-462/98 P Mediocurso v Commission [2000] ECR I-7183, paragraph 36).
52. It is obvious that the period of four months allowed by Article 20(3) of the Directive for providing evidence of the correctness of the transaction or of the place where the offence or irregularity was actually committed cannot be considered to be reasonable if it has already expired when the consignor learns, or could have learned, that an irregularity or offence has been committed.
53. In such circumstances, the application of that period of four months from the date of dispatch of the products at issue does not satisfy the principle of respect for the rights of defence since it is impossible for the trader who guaranteed payment of the excise duties to be informed in good time of the fact that the duty-suspension arrangement has not been discharged. Accordingly, contrary to what is required by that principle, he is unable to make his views known effectively or, more particularly, to provide evidence of the correctness of the transaction or of the place where the offence or irregularity was actually committed.
54. Having regard to all the foregoing considerations, the answer to the first and third questions must be that Article 20(3) of the Directive is invalid in so far as the period prescribed therein of four months for evidence to be provided of the correctness of the transaction or of the place where the irregularity or offence was actually committed may be relied on against a trader who has guaranteed the payment of excise duty but was not in a position to know, at the appropriate time, that the duty-suspension arrangement had not been discharged. The second question
55. In light of the answer given to the first and third questions and, especially, the fact that the case in the main proceedings concerns products which did not arrive at their destination within the meaning of Article 20(3) of the Directive, there is no need to reply to the second question on the interpretation of Article 20(2).