1 This request for a preliminary ruling concerns the interpretation of Article 8(1)(a)(i) 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), read in conjunction with Article 8(2) thereof.
2 The request has been made in proceedings between, on the one hand, Ecoserv SRL, an insolvent Romanian company represented by an insolvency administrator, namely Transilvania Master Insolv IPURL, and, on the other, Direcția Generală Regională a Finanțelor Publice Cluj (Regional Directorate-General of Public Finances, Cluj, Romania), Administrația Județeană a Finanțelor Publice Bistrița-Năsăud (Provincial Administration of Public Finances, Bistriţa-Năsăud, Romania) and Serviciul Fiscal Orășenesc Năsăud (Tax Office of the Municipality of Năsăud, Romania) (together, ‘the tax authorities’) concerning, inter alia, the validity of a notice of assessment requiring Ecoserv to pay excise duty in respect of a missing quantity of ethyl alcohol, in the total amount of 798495 Romanian lei (RON).
3 Directive 2008/118 was repealed, with effect from 13 February 2023, by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4). However, Directive 2008/118 remains applicable ratione temporis to the facts of the dispute in the main proceedings.
4 Article 4(1) of Directive 2008/118 defined ‘authorised warehousekeeper’ as ‘a natural or legal person authorised by the competent authorities of a Member State, in the course of his business, to produce, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse’.
5 Article 7(1) and (2)(a) of Directive 2008/118 provided: ‘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; …’
6 Article 8(1)(a)(i) and (ii) and (2) of Directive 2008/118 was worded as follows: ‘1. The person liable to pay the excise duty that has become chargeable shall be: (a) in relation to the departure of excise goods from a duty suspension arrangement as referred to in Article 7(2)(a): (i) the authorised warehousekeeper, the registered consignee or any other person releasing the excise goods or on whose behalf the excise goods are released from the duty suspension arrangement and, in the case of irregular departure from the tax warehouse, any other person involved in that departure; (ii) in the case of an irregularity during a movement of excise goods under a duty suspension arrangement as defined in Article 10(1), (2) and (4): the authorised warehousekeeper, the registered consignor or any other person who guaranteed the payment in accordance with Article 18(1) and (2) and any person who participated in the irregular departure and who was aware or who should reasonably have been aware of the irregular nature of the departure; … 2. Where several persons are liable for payment of one excise duty debt, they shall be jointly and severally liable for such debt.’
7 Article 16(1) of Directive 2008/118 provided: ‘The opening and operation of a tax warehouse by an authorised warehousekeeper shall be subject to authorisation by the competent authorities of the Member State where the tax warehouse is situated. Such authorisation shall be subject to the conditions that the authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse.’
8 Article 2066(1) and (2) of Legea nr. 571/2003 privind Codul fiscal (Law No 571/2003 establishing the Tax Code) of 22 December 2003 (Monitorul Oficial al României, Part I, No 927, of 23 December 2003), in the version applicable to the dispute in the main proceedings (‘the Tax Code’), provides: ‘(1) Excise duty shall become chargeable at the time, and in the Member State, of release for consumption. (2) The chargeability conditions and rate of excise duty to be applied shall be those in force on the date on which duty becomes chargeable in the Member State where release for consumption takes place.’
9 As provided in Article 2067(1)(a) and (5) of that code: ‘(1) For the purposes of this chapter, release for consumption shall mean any of the following: (a) the departure of excise goods, including irregular departure, from a duty suspension arrangement; … (5) The total destruction or irretrievable loss of excise goods shall not be deemed to be a release for consumption if it takes place while the goods are placed under a duty suspension arrangement and if: (a) the goods are not available to be used in Romania because of a spillage, rupture, fire, contamination, flood or any other case of force majeure; (b) the goods are not available to be used in Romania because of evaporation or other causes that are the natural result of the production, holding or movement of the goods; (c) destruction is authorised by the competent authority. …’
10 Article 2069(1) of that code provides: ‘(1) The person liable to pay the excise duty that has become chargeable shall be: (a) in relation to the departure of excise goods from a duty suspension arrangement as referred to in Article 2067(1)(a): 1. the authorised warehousekeeper, the registered consignee or any other person releasing the excise goods or on whose behalf the excise goods are released from the duty suspension arrangement and, in the case of irregular departure from the tax warehouse, any other person involved in that departure’.
11 Article 20622(2) of the Tax Code provides: ‘In order to obtain authorisation to operate a place as a tax warehouse, the person intending to be the authorised warehousekeeper for that place shall submit a request to the competent authority in the form and in accordance with the procedure laid down by the implementing rules.’
12 Article 49(1)(c) of Legea nr. 207/2015 privind Codul de procedură fiscală (Law No 207/2015 establishing the Code of Tax Procedure) of 20 July 2015 (Monitorul Oficial al României, Part I, No 547, of 23 July 2015), in the version applicable to the dispute in the main proceedings (‘the Code of Tax Procedure’), is worded as follows: ‘(1) A fiscal administrative act shall be void in any of the following situations: … (c) it is vitiated by a serious and manifest error, … where the reasons for its adoption are so significantly flawed that, had they been removed prior to or at the time of adoption of the act, the act would not have been adopted.’
13 Ecoserv, which is engaged, inter alia, in the production of organic basic chemical products, was authorised to produce ethyl alcohol under suspension of excise duty under a technical testing regime that was to run during the period from February to April 2013.
14 On 12 November 2015, an unannounced inspection of Ecoserv was carried out as part of an investigation of economic crimes. On that occasion, the Romanian criminal investigation authorities, in collaboration with the Romanian customs authorities, established that a quantity of 21909 litres of ethyl alcohol was missing from Ecoserv’s business assets, for which Ecoserv’s representatives were unable to offer any explanation.
15 By a notice of assessment of 4 March 2016, the Provincial Administration of Public Finances of Bistrița-Năsăud imposed additional tax obligations on Ecoserv, owing to the missing quantity of ethyl alcohol, in the amount of RON 799655 (approximately EUR 160719) in excise duty, and in the amount of RON 278244 (approximately EUR 55923) in value added tax (VAT) (‘the notice of assessment’). Ecoserv did not contest that notice either administratively or through the courts, but was nevertheless granted permission to pay the balance of those taxes in instalments.
16 By a judgment of 8 August 2019, the Tribunalul Bistrița-Năsăud (Regional Court, Bistriţa-Năsăud, Romania), ruling in criminal proceedings, sentenced the managing director of Ecoserv to, inter alia, two terms of imprisonment for tax evasion and for embezzlement, on the ground that he had sold the quantity of 21909 litres of ethyl alcohol for his own benefit and without recording that amount in Ecoserv’s accounts. With regard to the civil-law aspect of the proceedings that led to that judgment, the Romanian State, represented by the Agenția Națională de Administrare Fiscală (National Agency for Fiscal Administration, Romania), had joined the criminal proceedings as a civil party and had requested that Ecoserv and its managing director be ordered, jointly and severally, to pay compensation for the damage caused to the public finances. However, the Tribunalul Bistrița-Năsăud (Regional Court, Bistriţa-Năsăud) dismissed that claim as unfounded in so far as it related to Ecoserv. It held that the managing director of Ecoserv had acted neither in the name nor in the interests of that company, so that he was solely liable, both criminally and civilly, vis-à-vis the injured parties, as the Curtea de Apel Cluj (Court of Appeal, Cluj, Romania) subsequently confirmed by a judgment of 2 June 2020.
17 On 14 July 2020, Ecoserv applied to the tax authorities for annulment of the notice of assessment, in reliance on the judgment of 8 August 2019 of the Tribunalul Bistrița-Năsăud (Regional Court, Bistriţa-Năsăud). Ecoserv argued that that notice was vitiated by a serious and manifest error. It also sought reimbursement of the sums paid in respect of the additional taxes levied against it. The tax authorities in turn lodged an application with the Tribunalul Bistrița-Năsăud (Regional Court, Bistrița-Năsăud), as a criminal court, opposing enforcement of the part of the judgment delivered by that court on 8 August 2019 that related to civil matters. They argued that clarification was required as to the scope of the operative part of that judgment, in so far as the application for Ecoserv to be held jointly and severally liable had been dismissed, and as to its effect on Ecoserv’s tax obligations.
18 In that regard, on 17 May 2021, the Curtea de Apel Cluj (Court of Appeal, Cluj), before which an appeal had been brought against the judgment handed down on 7 April 2021 by the Tribunalul Bistrița-Năsăud (Regional Court, Bistrița-Năsăud) in criminal proceedings, ruled that, in terms of civil law, the only person liable for the damage caused to the Romanian State was the managing director of Ecoserv. Consequently, the sums which Ecoserv had paid to the tax authorities before the criminal proceedings that led to that managing director being sentenced had been paid without cause and were subject to recovery.
19 In view of the refusal of the tax authorities to deal with its application for annulment of the notice of assessment, Ecoserv brought an action before the Tribunalul Bistrița-Năsăud (Regional Court, Bistrița-Năsăud).
20 By judgment of 29 October 2021, that court granted Ecoserv’s application in part, on the basis of Article 49(1)(c) of the Code of Tax Procedure. Accordingly, it ordered the tax authorities to annul in part the notice of assessment in so far as it concerned the determination of the additional taxes in the form of customs duty and VAT. In addition, it ordered the tax authorities to repay to Ecoserv the sum which Ecoserv had paid in respect of those additional taxes, together with interest.
21 Both Ecoserv and the tax authorities brought appeals before the Curtea de Apel Cluj (Court of Appeal, Cluj), which is the referring court, against the judgment delivered on 29 October 2021 by the Tribunalul Bistrița-Năsăud (Regional Court, Bistriţa-Năsăud). The referring court states that it is uncertain, in the case of the irregular departure of excise goods, as to who is to be regarded as being the person liable to pay the excise duty, within the meaning of Article 8(1)(a)(i) of Directive 2008/118, read in conjunction with Article 8(2).
22 In those circumstances, the Curtea de Apel Cluj (Court of Appeal, Cluj) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the scope of Article 8(1)(a)(i) of [Directive 2008/118], read in conjunction with Article 8(2) thereof, concerning the concept of a person liable to pay excise duty, also cover a legal person that, in order to obtain authorisation as a tax warehousekeeper, has been engaged in the production of ethyl alcohol under a technical testing regime subject to the supervision of the local customs authority and from whose business assets a quantity of 21909 litres of ethyl alcohol with an alcoholic strength of 96.16% has been found to be missing? (2) Where, following the issuing of a notice of assessment - by which that legal person has been ordered to pay additional excise duty and VAT in respect of the quantity of ethyl alcohol missing from the business assets - which has not been the subject of an administrative appeal, it has been held in a criminal judicial decision which has become final that the only person responsible for causing damage to the State budget was the de facto manager (managing director) of that company, who, during the period running from February 2013 to June 2013, on the basis of the same criminal intention, sold a quantity of 21909 litres of double-refined alcohol from the business assets of the company, of which he was an employee, for the amount of [RON 219090], committing the crime of embezzlement under Article 295(1) of the Codul penal (Criminal Code), and did not record in the accounts the revenue obtained from the sale of that quantity of alcohol, causing damage to the State budget in the amount of RON 915 562.74, an act which comprises the constituent elements of the crime of tax evasion under Article 9(1)(b) and Article 9(2) of [Law No 241/2005], does … the imposing of those taxes also on the legal person by means of Notice of Assessment No F-BN 77 of4 March 2016 - a notice that has not been appealed by means of the procedure laid down in the [Code of Tax Procedure] - constitute a serious and manifest error in the application of the harmonised EU law on excise duties and VAT? (3) In the context of a tax dispute concerning excise duties and VAT, does [EU] law preclude a national court from applying the principle of res judicata in relation to a criminal judicial decision where the application of that principle would constitute an obstacle to the [EU] rules on excise duties and VAT - which also provide for the joint and several liability of legal persons - being taken into consideration, where those rules have not been analysed by the criminal courts in decisions which have become final?’
23 By its first question, the referring court asks, in essence, whether Article 8(1)(a)(i) of Directive 2008/118 must be interpreted as meaning that a legal person which, in order to obtain authorisation as a tax warehousekeeper, has been engaged in the production of ethyl alcohol under suspension of excise duty and from whose business assets a certain quantity of that alcohol has been found to be missing is covered by the concept of ‘person liable’ to pay that duty within the meaning of that provision.
24 In order to answer the first question, it is necessary to determine whether a legal person seeking to become an authorised warehousekeeper may be recognised, through the application of Article 8(1)(a)(i) of Directive 2008/118, as being liable to pay the customs duty on excise goods that are subject to a duty suspension arrangement where those goods have been irregularly removed from the business assets managed by that person.
25 Article 8(1)(a)(i) of Directive 2008/118 determines the person or persons liable to pay excise duty on excise goods on their departure from a suspension arrangement, where that duty has become chargeable. Thus, it designates as the persons liable the authorised warehousekeeper, the registered consignee or any other person releasing such goods or on whose behalf the goods are released from the duty suspension arrangement and, in the case of irregular departure from the tax warehouse, any other person involved in that departure.
26 In the present case, it is necessary to determine whether that provision applies when a legal person is not yet an officially authorised warehousekeeper but certain facts serve to demonstrate that, like Ecoserv in the case in the main proceedings, it was de facto acting as such.
27 In that regard, it must be recalled that, according to Article 4(1) of Directive 2008/118, an authorised warehousekeeper is ‘a natural or legal person authorised by the competent authorities of a Member State, in the course of his business, to produce, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse’.
28 In the present case, it is apparent from the file available to the Court that Ecoserv had been authorised to carry on activities related to the production of ethyl alcohol in the context of a technical testing regime subject to the supervision of the Romanian customs authority, which means that its business assets included certain quantities of alcohol under the duty suspension arrangement. Such a situation may amount to the operation of a tax warehouse by an authorised warehousekeeper within the meaning of Article 16 of Directive 2008/118, provided that the legal person carrying on the activity of alcohol production under a special arrangement was authorised to do so by the competent national authorities and the goods concerned are subject to a duty suspension arrangement. In the light of those circumstances, that legal person may be regarded as being in a situation comparable to that of an authorised warehousekeeper and must, therefore, fulfil the obligations arising from that situation vis-à-vis the tax authorities.
29 In that regard, it is irrelevant that that legal person, as in the case of Ecoserv in the main proceedings, did not bring about the irregular departure of the quantity of alcohol placed under the duty suspension arrangement, that departure being attributable to a person employed by or representing it, such as Ecoserv’s managing director.
30 The Court has previously held that, where an offence or an irregularity involving the chargeability of excise duty had been committed or detected in the course of the movement of excise goods, including in the event of fraud committed by a third party, the authorised warehousekeeper was liable for the payment of excise duties (see, by analogy, judgment of 24 March 2022, TanQuid Polska, C‑711/20, EU:C:2022:215, paragraph 48 and the case-law cited).
31 The Court has previously ruled on a situation in which what was at issue was the provision 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) that preceded Article 8(1)(a)(ii) of Directive 2008/118. It held, in essence, that the authorised warehousekeeper played a central role in the context of the procedure for movement of products subject to excise duty under a suspension arrangement. In the event of an irregularity or offence in the course of the movement of those products involving the chargeability of excise duties, the authorised warehousekeeper was, in any event, to be designated as liable for the payment of those duties. On that basis, that warehousekeeper’s liability must be considered objective and is based not on its proven or presumed fault, but on its participation in an economic activity (see, by analogy, judgment of 7 September 2023, KRI, C‑323/22, EU:C:2023:641, paragraphs 55 and 56 and the case-law cited).
32 Accordingly, it must be held that where a legal person such as Ecoserv in the case in the main proceedings is in a situation comparable to that of an authorised warehousekeeper, that legal person is required to fulfil obligations like those to which such an authorised warehousekeeper is subject, including in the event of the irregular departure of goods from a duty suspension arrangement, such as that referred to in Article 8(1)(a)(i) of Directive 2008/118.
33 Indeed, the chargeability of customs duty arises directly from the departure of the goods from such a suspension arrangement, and the legal person acting as authorised warehousekeeper is liable, therefore, to pay the duty.
34 Consequently, the answer to the first question is that Article 8(1)(a)(i) of Directive 2008/118 must be interpreted as meaning that a legal person which, in order to obtain authorisation as a tax warehousekeeper, has been engaged in the production of ethyl alcohol under suspension of excise duty and from whose business assets a certain quantity of that alcohol has been found to be missing is covered by the concept of ‘person liable’ to pay that duty within the meaning of that provision.
35 By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 8(1)(a)(i) and (2) of Directive 2008/118 must be interpreted as meaning that, for the purposes of determining the person or persons liable to pay the excise duty that has become chargeable within the meaning of those provisions, a national court is bound by the civil-law element of the operative part of a judgment of a criminal court by which a natural person, who is an employee or manager of a legal person, has been definitively held solely liable for the damage caused to the State budget on account of the misappropriation of a quantity of alcohol stored with that legal person under a duty suspension arrangement.
36 At the outset, it must be recalled that the scenario in which several persons are jointly and severally liable in respect of one excise duty debt is expressly provided for in Article 8(2) of Directive 2008/118, in so far as those persons are liable for payment of such a debt.
37 Likewise, under Article 8(1)(a)(i) of Directive 2008/118, ‘in the case of irregular departure [of excise goods] from the tax warehouse’, any natural person deemed to be ‘[an]other person involved in that departure’ may be required - as a person jointly and severally liable to pay the excise duty that has become chargeable - to pay that duty alongside the legal person that he or she represents, whether as manager, managing director or employee.
38 It is true that, unlike other language versions, the French-language version of Article 8(1)(a)(i) of Directive 2008/118 uses the disjunctive conjunction ou (‘or’) in order to designate as a person liable ‘any other person involved in that departure’. Nevertheless, the principle of joint and several liability for payment of customs duty can be inferred both from the general scheme of that directive, including Article 8(2) thereof, and from the purpose of that directive.
39 In that regard, it must be observed that the liability of the authorised warehousekeeper is objective and relates to its participation in an economic activity. The fact that a person other than that warehousekeeper, such as the managing director of Ecoserv in this instance, was able to act for his own benefit and to the detriment of that warehousekeeper affects only the criminal aspect of the matter, and not the fiscal aspect (see, to that effect, judgment of 17 October 2019, Comida paralela 12, C‑579/18, EU:C:2019:875, paragraph 41).
40 The chargeability of customs duties arises directly from the departure of the excise goods from the duty suspension arrangement, and, in such cases, the legal person acting as authorised warehousekeeper is liable for payment of those duties.
41 Furthermore, in the light of the purpose of Directive 2008/118, the interpretation of Article 8 of that directive according to which a legal person may be jointly and severally liable to pay excise duty together with, inter alia, other persons involved in an irregular departure of excise goods from a duty suspension arrangement is also confirmed by the travaux préparatoires of that directive. The initial draft of the directive limited the list of persons who, in the event of irregular introduction of goods into a Member State, would be liable for the excise duty to those who had guaranteed the payment of such duty. However, the Council of the European Union wished to extend this list so as to include ‘any person who participated in the irregularity’, as Article 38(3) of Directive 2008/118 provides. The intention of the EU legislature was thus to lay down a broad definition as to the persons potentially liable to pay excise duty in cases of irregularity so as to ensure, as far as possible, that such duty was collected (judgment of 17 October 2019, Comida paralela 12, C‑579/18, EU:C:2019:875, paragraph 37).
42 In addition, the fact that a judgment handed down by a criminal court recognised that, in terms of civil law, liability for the damage sustained by the State budget lay exclusively with a natural person representing a legal person that was acting as authorised warehousekeeper cannot have any effect on the determination of the person liable to pay the excise duty. It must be noted that the authority of res judicata attaching to such a judgment cannot, given that the subject matter is not the same, preclude the adoption and implementation of a decision imposing excise duty in accordance with the relevant EU law (see, by analogy, judgment of 16 July 2020, UR (VAT liability of lawyers), C‑424/19, EU:C:2020:581, paragraph 34).
43 Consequently, the answer to the second and third questions is that Article 8(1)(a)(i) and (2) of Directive 2008/118 must be interpreted as meaning that, for the purposes of determining the person or persons liable to pay the excise duty that has become chargeable within the meaning of those provisions, a national court is not bound by the civil-law element of the operative part of a judgment of a criminal court by which a natural person, who is an employee or manager of a legal person, has been definitively held solely liable for the damage caused to the State budget on account of the misappropriation of a quantity of alcohol stored with that legal person under a duty suspension arrangement.
44 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.