1 This request for a preliminary ruling concerns the interpretation 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 BP Europa SE (‘BP Europa’) and the Hauptzollamt Hamburg-Stadt (Customs office of the city of Hamburg) concerning the tax claimed from BP Europa as energy tax on the quantity of gas oil missing on delivery of that product to a tax warehouse in Germany.
3 Directive 2008/118 includes the following recitals: ‘(1) 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)] has been substantially amended several times. Since further amendments are to be made, it should be replaced in the interests of clarity. (2) Conditions for charging excise duty on the goods covered by Directive 92/12/EEC … need to remain harmonised in order to ensure the proper functioning of the internal market. … (8) 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. (9) Since excise duty is a tax on the consumption of certain goods, duty should not be charged in respect of excise goods which, under certain circumstances, have been destroyed or irretrievably lost. …’
4 Under Article 1(1) of Directive 2008/118: ‘This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”): (a) energy products and electricity covered by Directive 2003/96/EC [of the Council of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)]; …’
5 Article 4 of Directive 2008/118 provides: ‘For the purpose of this Directive as well as its implementing provisions, the following definitions shall apply: … 7. “duty suspension arrangement” means a tax arrangement applied to the production, processing, holding or movement of excise goods not covered by a customs suspensive procedure or arrangement, excise duty being suspended; … 11. “tax warehouse” means a place where excise goods are produced, processed, held, received or dispatched under duty suspension arrangements by an authorised warehousekeeper in the course of his business, subject to certain conditions laid down by the competent authorities of the Member State where the tax warehouse is located.’
6 Article 7 of the directive states: ‘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; … 4. The total destruction or irretrievable loss of excise goods under a duty suspension arrangement, as a result of the actual nature of the goods, of unforeseeable circumstances or force majeure, or as a consequence of authorisation by the competent authorities of the Member State, shall not be considered a release for consumption. For the purpose of this Directive, goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods. The total destruction or irretrievable loss of the excise goods in question shall be proven to the satisfaction of the competent authorities of the Member State where the total destruction or irretrievable loss occurred or, when it is not possible to determine where the loss occurred, where it was detected. …’
7 Article 10 of that directive provides: ‘1. Where an irregularity has occurred during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a), the release for consumption shall take place in the Member State where the irregularity occurred. 2. Where an irregularity has been detected during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a), and it is not possible to determine where the irregularity occurred, it shall be deemed to have occurred in the Member State in which and at the time when the irregularity was detected. 3. In the situations referred to in paragraphs 1 and 2, the competent authorities of the Member States where the goods have been or are deemed to have been released for consumption shall inform the competent authorities of the Member State of dispatch. 4. Where excise goods moving under a duty suspension arrangement have not arrived at their destination and no irregularity giving rise to their release for consumption in accordance with Article 7(2)(a) has been detected during the movement, an irregularity shall be deemed to have occurred in the Member State of dispatch and at the time when the movement began, unless, within a period of four months from the start of the movement in accordance with Article 20(1), evidence is provided to the satisfaction of the competent authorities of the Member State of dispatch of the end of the movement in accordance with Article 20(2), or of the place where the irregularity occurred. … 6. For the purposes of this Article, “irregularity” shall mean a situation occurring during a movement of excise goods under a duty suspension arrangement, other than the one referred to in Article 7(4), due to which a movement, or a part of a movement of excise goods, has not ended in accordance with Article 20(2).’
8 By virtue of Article 16(2)(c) and (d) of Directive 2008/118, an authorised warehousekeeper is required to keep, for each tax warehouse, accounts of stock and movements of excise goods and to enter into his tax warehouse and enter in his accounts at the end of their movement all excise goods moving under a duty suspension arrangement.
9 Article 17(1) of the directive provides: ‘Excise goods may be moved under a duty suspension arrangement within the territory of the Community, including where the goods are moved via a third country or a third territory: (a) from a tax warehouse to: (i) another tax warehouse; …’
10 Article 19(2)(c) of that directive provides that a registered consignee must consent to any check enabling the competent authorities of the Member State of destination to satisfy themselves that the goods have actually been received.
11 Under Article 20(2) of Directive 2008/118: ‘The movement of excise goods under a duty suspension arrangement shall end, in the cases referred to in Article 17(1)(a)(i) … when the consignee has taken delivery of the excise goods …’
12 In accordance with Articles 1 and 2 of Directive 2003/96, the Member States are to impose taxation, inter alia, on gas oil under heading 2710 19 41 of the Combined Nomenclature.
13 Under Paragraph 8 of the Energy Tax Law (Energiesteuergesetz) of 15 July 2006 (BGBl. 2006 I, p. 1534; ‘the EnergieStG’), entitled ‘Chargeability of the tax on release for consumption’: ‘(1) The tax shall become chargeable when the energy products within the meaning of Paragraph 4 are removed from the tax warehouse without being placed into another suspensive procedure or when they were removed with a view to use or consumption with the tax warehouse (release for circulation). If the release for circulation is followed by a tax exemption procedure (Paragraph 24(1)), the tax shall not become chargeable. (1a) No tax shall be payable in the case where the energy products have been totally destroyed or irretrievably lost as a result of their actual nature, unforeseeable circumstances or force majeure. Energy products shall be considered totally destroyed or irretrievably lost when they are rendered unusable as goods. Sufficient proof of the total destruction or irretrievable loss of the excise goods in question shall be given. …’
14 Paragraph 11 of the EnergieStG, entitled ‘Movements from and to other Member States’, provides: ‘(1) Energy products within the meaning of Paragraph 4 may be moved under duty suspension arrangements, including via third countries or third territories, … 2. from tax warehouses in other Member States or by registered consignors from the place of importation in other Member States (a) to tax warehouses … within the tax territory; … (4) … In the cases provided for in subparagraph 1, point 2, a movement under a duty suspension arrangement shall end when delivery is taken of the energy products at the receiving tax warehouse …’
15 Under Paragraph 14 of the EnergieStG, entitled ‘Irregularities occurring during movement’: ‘(1) An “irregularity” shall mean a situation occurring during a movement under a duty suspension arrangement, other than the situations referred to in Paragraph 8(1a), on account of which the movement or part of the movement cannot be properly concluded. … (3) If, during a movement under a duty suspension arrangement from a tax warehouse in another Member State or from a place of importation in another Member State, it is established in the tax territory that an irregularity has occurred and it is not possible to determine where the irregularity occurred, it shall be deemed to have occurred in the tax territory and at the time when it was detected. (4) Where energy products which have been dispatched under a duty suspension arrangement from the tax territory to another Member State (Paragraph 11(1), point 1, Paragraph 13(1)) have not arrived at their destination, and no irregularity has been detected during the movement, the irregularity as provided for in subparagraph 1 shall be deemed to have occurred in the tax territory at the time at which the movement began, unless, within a period of four months from the start of the movement, the consignor provides adequate evidence that the energy products 1. have arrived at their destination and that the movement has been properly concluded, or 2. have failed to arrive at their destination by reason of an irregularity occurring outside the tax territory. …’
16 In January 2011, BP Europa dispatched 2.4 million litres of gas oil by ship under Combined Nomenclature code 2710 19 41 from a tax warehouse in the Netherlands to a tax warehouse in Germany. The transport was carried out as a movement of excise goods under a duty suspension arrangement, as provided for in Articles 17 to 31 of Directive 2008/118.
17 At the destination, after delivery of the gas oil, the owner of the tax warehouse in Germany found that he had received an amount 4854 litres less than that stated on the electronic administrative document drawn up for application of the suspensive procedure, that is to say, 0.202% of the declared amount, and notified the customs authorities thereof in his acknowledgement of receipt.
18 By decision of 16 January 2012, the customs office of the city of Hamburg levied energy tax of EUR 24.93 on the amount of missing gas oil which exceeded the 0.2% tolerance threshold generally allowed by the Germany authority.
19 The Finanzgericht Hamburg (Finance Court, Hamburg) dismissed the action brought by BP Europa against the imposition of that tax. It held that the missing amount of gas oil was due to an irregularity deemed to have occurred in the customs territory and resulting in the release for consumption of that product. The Bundesfinanzhof (Federal Finance Court), seised of an appeal on a point of law, asks whether that legal assessment of the dispute arising from the application of the national law which transposed Directive 2008/118 meets the requirements of that directive, in particular those concerning the conditions for the levying of excise duty and determination of the Member State which is entitled to levy that duty, when only part of the goods in circulation under the duty suspension arrangement failed to arrive at its destination.
20 In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 10(4) of [Directive 2008/118] to be interpreted as meaning that the conditions which it lays down are fulfilled only in the case where the total quantity of goods moving under a duty suspension arrangement has not arrived at their destination, or can that rule, account being taken of Article 10(6) of [Directive 2008/118], also be applied to cases in which only a portion of the excise goods moving under a duty suspension arrangement fails to arrive at the destination? (2) Is Article 20(2) of [Directive 2008/118] to be interpreted as meaning that the movement of excise goods under a duty suspension arrangement does not end until the consignee has fully unloaded the means of transport which has arrived at his premises, with the result that a deficit detected during unloading is deemed to have been detected while the movement was still ongoing? (3) Does Article 10(2), in conjunction with Article 7(2)(a), of [Directive 2008/118] preclude a national provision under which the competence of the Member State of destination to levy duty (apart from being excluded in the cases provided for in Article 7(4) of [that directive]) is made subject only to the detection of the occurrence of an irregularity and the impossibility of determining the place where that irregularity occurred, or is it also necessary to establish that, by being removed from the duty suspension arrangement, the excise goods have been released for consumption? (4) Is Article 7(2)(a) of [Directive 2008/118] to be interpreted as meaning that, where an irregularity as provided for in Article 10(2) of [Directive 2008/118] has been detected, excise goods moved under a duty suspension arrangement which have not arrived at the destination must be assumed to have been released for consumption in all cases in which the proof of total destruction or irretrievable loss of the missing quantity required under Article 7(4) of [Directive 2008/118] cannot be furnished?’
21 By virtue of Article 2 of Directive 2008/118, the goods referred to in Article 1 thereof, which include energy products covered by Directive 2003/96, are to be subject to excise duty at the time of their production within the territory of the EU or their importation into that territory. While the chargeable event for excise duty is thus the production of the goods concerned within or their importation into that territory, pursuant to Article 7(1) of Directive 2008/118, excise duty becomes chargeable only at the time of their release for consumption.
22 Under Article 17(1)(a)(i) of Directive 2008/118, excise goods may be moved under a duty suspension arrangement within the territory of the EU, in particular, as in the main proceedings, from a tax warehouse in one Member State to a tax warehouse in another Member State. 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 (see, to that effect, judgment in Cipriani, C‑395/00, EU:C:2002:751, paragraph 42). Consequently, as regards the products subject to excise duty, that arrangement postpones the chargeability of excise duty until one of the conditions of chargeability is met (see, to that effect, judgment in Dansk Transport og Logistik, C‑230/08, EU:C:2010:231, paragraph 78).
23 The departure of such goods, including irregular departure, from a duty suspension arrangement is considered as a release for consumption pursuant to Article 7(2)(a) of Directive 2008/118.
24 Although, under Article 6(1) thereof, Directive 92/12 provided that excise duty became chargeable not only at the time of release for consumption of the goods concerned, but also ‘when shortages [were] recorded’, Directive 2008/118 does not include that requirement for chargeability as regards shortages.
25 By its questions, the referring court asks, in essence, which are the chargeability rules to which, on application of Directive 2008/118, goods moving under a duty suspension arrangement are subject when it is found, on delivery, that there are shortages compared to the quantities at the point of despatch.
26 Since, by virtue of Article 7(2)(a) thereof, Directive 2008/118 links the chargeability of the excise duty, in respect of goods under a duty suspension arrangement, to the departure from that arrangement, it is appropriate first to answer the second question, which concerns the provisions of Article 20(2) of Directive 2008/118, under which the movement of those goods ends when the consignee takes delivery of them.
27 By its second question, the referring court asks, in essence, whether Article 20(2) of Directive 2008/118 must be interpreted as meaning that the movement of excise goods under a duty suspension arrangement ends, for the purpose of that provision, in a situation such as that in the main proceedings, when the consignee of those goods has found, on unloading in full from the means of transport carrying the goods in question, that there were shortages of the goods in comparison with the amount which should have been delivered to him.
28 Since Directive 2008/118 does not define what is to be understood by the expression ‘the consignee takes delivery of the excise goods’, it must be borne in mind, in accordance with the settled case-law of the Court, that, when interpreting a provision of EU law, account must be taken of its wording, its context and its aims (see, inter alia, judgment in Spain v Parliament and Council, C‑44/14, EU:C:2015:554, paragraph 44).
29 As regards, firstly, the wording of Article 20(2) of Directive 2008/118, it must be noted that it refers to the goods themselves without making any reference to the means by which they are transported. It is therefore the actual receipt of the goods, as such, by their consignee which must be taken into account in order to determine the time of their delivery and not the mere transport to the consignee of their content, whatever that may be.
30 As regards, secondly, the context of which the provisions at issue of Directive 2008/118 form part, it must be noted that Article 20 of that directive is part of Chapter IV thereof, entitled ‘Movement of excise goods under suspension of excise duty’. That chapter includes the provisions of Article 19(2)(c) of that directive, in accordance with which the consignee must consent to any check enabling the competent authorities of the Member State of destination to satisfy themselves that the goods in question have actually been received. The EU legislature thus intended to make the actual receipt of the goods the element determining the conditions under which the movement of those goods under a duty suspension arrangement must be assessed at the time of their delivery. No other provision of that chapter calls for a different interpretation.
31 Thirdly, by specifying when the movement of excise goods under a duty suspension arrangement ends, the provisions of Article 20(2) of Directive 2008/118 seek to define the time when such goods are deemed, as stated in paragraph 23 of the present judgment, to have been released for consumption and to determine, in consequence, the time when the tax on those goods becomes chargeable.
32 Furthermore, since excise duty is a tax on consumption, as stated in recital 9 of Directive 2008/118, based on the amount of goods offered for consumption, the point at which the duty becomes chargeable must be fixed in such a manner that the amount of goods concerned can be measured precisely. In the light of that objective, Article 20(2) of that directive, by stating that the movement of excise goods under a duty suspension arrangement ends when the consignee has taken delivery of those goods, must be interpreted as meaning that that taking of delivery must be regarded as occurring when the consignee is in a position to know precisely what quantity of goods he has actually received.
33 If delivery of the goods were considered to have been complete once the excise goods’ transport arrived at the destination without the consignee being able still to measure the amount actually delivered, the duty would become chargeable at that point in disregard of the requirements connected with the very nature of the duty at issue, which presupposes, as stated in the preceding paragraph, exact knowledge of the amount of goods released for consumption. That is why, in a situation such as that in the main proceedings, delivery of the goods at issue cannot be regarded as complete until the means of transport containing those goods has been fully unloaded.
34 Moreover, by requiring the warehousekeeper, under Article 16(2)(d) of Directive 2008/118, to enter into his tax warehouse and enter in his accounts at the end of their movement all excise goods moving under a duty suspension arrangement and thus having those physical and accounting operations coincide with the end of the movement, the EU legislature intended to place that end at a time when the goods in question had actually been received by the warehousekeeper and when their amount could be measured accurately with a view to their entry into the warehouse’s records.
35 In those circumstances, the answer to the second question is that Article 20(2) of Directive 2008/118 must be interpreted as meaning that the movement of excise goods under a duty suspension arrangement ends, for the purpose of that provision, in a situation such as that in the main proceedings, when the consignee of those goods has found, on unloading in full from the means of transport carrying the goods in question, that there were shortages of the goods in comparison with the amount which should have been delivered to him.
36 By its third and fourth questions, which it is appropriate to consider next and together, the referring court asks, in essence, whether the combined provisions of Articles 7(2)(a) and 10(2) of Directive 2008/118 must be interpreted as meaning that the situations which they govern are outside that referred to in Article 7(4) of that directive and as precluding a provision of national law which, transposing Article 10(2) of that directive, does not make its application subject to the condition that the excise goods have been released for consumption by their removal from the duty suspension arrangement.
37 In accordance with Article 10(2) of Directive 2008/118, where an irregularity has been detected during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a) of that directive, and it is not possible to determine where the irregularity occurred, it is to be deemed to have occurred in the Member State in which and at the time when the irregularity was detected.
38 It follows from those provisions that they refer to a situation where an irregularity, found during a movement of excise goods under a duty suspension arrangement, has given rise to the release for consumption of those goods by their removal from that arrangement.
39 Accordingly, a national provision transposing Article 10(2) of Directive 2008/118 cannot, in principle, provide that such an irregularity is deemed to have occurred in the Member State in which and at the time when the irregularity was detected, without making that presumption subject to the condition that that irregularity gave rise to the release for consumption of the goods in question.
40 It is not in dispute that Paragraph 14 of the EnergieStG, which makes that transposition, does not refer to such a condition.
41 However, the Court has consistently held that, when national courts apply domestic law, they are bound to interpret it, to the fullest extent possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with EU law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them (see, inter alia, judgment in Dominguez, C‑282/10, EU:C:2012:33, paragraph 24).
42 In that regard, it must be borne in mind that, for the purposes of Article 10 of Directive 2008/118, paragraph 6 of that article defines the ‘irregularity’ to which it refers as a situation which arises during a movement of excise goods under a duty suspension arrangement, other than the one referred to in Article 7(4) of that directive, due to which a movement or a part of a movement of excise goods has not ended in accordance with Article 20(2) of that directive.
43 The finding of shortages on delivery of excise goods under a duty suspension arrangement reveals a situation which is, of necessity, in the past where the missing goods did not form part of that delivery and the movement of which did not, accordingly, end in accordance with Article 20(2) of Directive 2008/118. In consequence, that situation constitutes an irregularity within the meaning of Article 10(6) of that directive. An irregularity of that type of necessity gives rise to a removal from the duty suspension arrangement and, as a result, a release for consumption as presumed under Article 7(2)(a) of that directive.
44 In that context, if a national provision transposing Article 10(2) of Directive 2008/118, such as Paragraph 14 of the EnergieStG, does not state that its application is subject to the condition that the irregularity give rise to the release for consumption of the goods concerned, such an omission cannot prevent the application of that national provision to the discovery of shortages, which of necessity entail such a release for consumption.
45 Furthermore, it must be noted that the irregularity governed by Article 10(2) of Directive 2008/118 concerns a situation, as recalled in paragraph 42 of this judgment, other than that covered by Article 7(4) of that directive, that is to say, ‘the total destruction or irretrievable loss of excise goods’.
46 Accordingly, if proof is provided of such total destruction or irretrievable loss of excise goods under a duty suspension arrangement, in that situation, there cannot be a release for consumption within the meaning of Article 7(2)(a) of Directive 2008/118, nor, as a result, can Article 10(2) of that directive apply. Thus, situations governed by those provisions are indeed outside those covered by Article 7(4) of that directive.
47 Having regard to the foregoing considerations, the answer to the third and fourth questions is that the combined provisions of Articles 7(2)(a) and 10(2) of Directive 2008/118 must be interpreted as meaning that: - the situations which they govern are outside that referred to in Article 7(4) of that directive and - the fact that a provision of national law transposing Article 10(2) of Directive 2008/118, such as that at issue in the main proceedings, does not expressly state that the irregularity governed by that provision of the directive must have given rise to the release for consumption of the goods concerned, such an omission cannot prevent the application of that national provision to the discovery of shortages, which of necessity entail such a release for consumption.
48 By its first question, which it is appropriate to examine last, the referring court asks, in essence, whether Article 10(4) of Directive 2008/118 must be interpreted as meaning that it applies not only when the total amount of goods moving under a duty suspension arrangement has not arrived at its destination, but also to cases where only part of those goods failed to arrive.
49 It must be borne in mind that, in accordance with that provision, when excise goods moving under a duty suspension arrangement have not arrived at their destination and no irregularity giving rise to their release for consumption in accordance with Article 7(2)(a) of Directive 2008/118 has been detected during the movement, an irregularity is deemed to have occurred in the Member State of dispatch and at the time when the movement began.
50 Thus, the very wording of Article 10(4) of Directive 2008/118 in no way reserves the application of that provision to the sole case where the total amount of the goods moving under a duty suspension arrangement failed to arrive at the destination.
51 Neither the context nor the aim of that provision can lead to a different scope being conferred on it.
52 On the one hand, like the provisions in Article 10(1) and (2) of Directive 2008/118, those of Article 10(4) govern cases where irregularities have occurred during a movement of excise goods under a duty suspension arrangement. As has been recalled in paragraph 42 of the present judgment, Article 10(6), for the purposes of that article, defines the ‘irregularity’ which it covers as a situation due to which a movement, or a part of a movement of excise goods, has not ended in accordance with Article 20(2) of that directive. Article 10(4) of Directive 2008/118 thus falls within a context in which the EU legislature intended to cover all situations of irregularity, including, accordingly, those affecting only a part of the movement.
53 On the other, the provisions of Article 10 of Directive 2008/118 have the aim of laying down the rules for the determination of the Member State in which the excise goods under a duty suspension arrangement must be regarded as having been released for consumption as a result of irregularities which occurred during a movement. In the light of that aim, there is no reason to take the view that the EU legislature, by adopting Article 10(4) which covers the situation where an irregularity, although occurring during a movement, was not, however, detected during that movement, intended to reserve the application of the arrangement laid down in that paragraph to the sole situation where the total amount of goods moving under a duty suspension arrangement failed to arrive at its destination.
54 Having regard to the foregoing considerations, the answer to the first question is that Article 10(4) of Directive 2008/118 must be interpreted as meaning that it applies not only where the total amount of goods moving under a duty suspension arrangement failed to arrive at its destination, but also where only a part of those goods failed to arrive at its destination.
55 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.