Opinion of Advocate General Collins delivered on 28 September 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:720
• Date: 28 September 2023
• Celex Number: 62022CC0509
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 28 September 2023(1)

Case C‑509/22

Agenzia delle Dogane e dei Monopoli

v

Girelli Alcool Srl

(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))

(Reference for a preliminary ruling – Taxation – Excise duties – Directive 2008/118/EC – Article 7(4) – Chargeability of excise duties – Release of products for consumption – Exemption in the event of total destruction or irretrievable loss of excise goods under a duty suspension arrangement – Unforeseeable circumstances – Authorisation by the competent authorities of the Member State – Irretrievable loss resulting from a non-serious fault committed by an employee of the authorised warehousekeeper)

Introduction

1. This request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy) arises in the context of a refusal by the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy) (‘the Customs Agency’) to grant Girelli Alcool Srl (‘Girelli’), an Italian company with an authorised ethyl alcohol warehouse and a denaturation and packaging plant, an exemption from excise duty for a quantity of pure ethyl alcohol that was irretrievably lost due to an error attributable to one of Girelli’s employees.

2. The referring court seeks guidance on the interpretation of Article 7(4) of Directive 2008/118/EC. (2) It asks whether the concept of ‘unforeseeable circumstances’ should be interpreted in the same way as that of ‘force majeure’ and whether it covers a situation where the irretrievable loss of excise goods is the result of negligence or a non-serious fault by an employee of an authorised warehousekeeper. It also questions the compatibility with that provision of national legislation which, for the purposes of obtaining an exemption from excise duty, equates a non-serious fault with unforeseeable circumstances and force majeure. Finally, the referring court inquires as to the scope of the authorisation that the competent authorities of Member States may grant under that provision.

Legal framework

European Union law

3. According to recitals 8 and 9 of Directive 2008/118:

‘(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 [EU] 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. Article 1(1) of that directive provides:

‘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”):

…

(b) alcohol and alcoholic beverages covered by [Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21)] and [Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (OJ 1992 L 316, p. 29)];

…’

5. Article 2 of Directive 2008/118 states:

‘Excise goods shall be subject to excise duty at the time of:

(a) their production … within the territory of the [European Union];

(b) their importation into the territory of the [European Union].’

6. Chapter II of that directive, entitled ‘Chargeability, reimbursement, exemption’, contains Section 1, entitled ‘Time and place of chargeability’, in which Article 7 provides:

‘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;

(b) the holding of excise goods outside a duty suspension arrangement where excise duty has not been levied pursuant to the applicable provisions of [EU] law and national legislation;

(c) the production of excise goods, including irregular production, outside a duty suspension arrangement;

(d) the importation of excise goods, including irregular importation, unless the excise goods are placed, immediately upon importation, under 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.

5. Each Member State shall lay down its own rules and conditions under which the losses referred to in paragraph 4 are determined.’

National law

7. Under Article 2(2) of decreto legislativo n. 504 – Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Legislative Decree No 504, consolidated text of legislative provisions relating to duties on production and consumption and related criminal and administrative penalties) of 26 October 1995, (3) as amended by decreto legislativo n. 48 – Attuazione della direttiva 2008/118/CE relativa al regime generale delle accise e che abroga la direttiva 92/12/CEE (Legislative Decree No 48 implementing Directive 2008/118/EC concerning the general arrangements for excise duty and repealing Directive 92/12/EEC) of 29 March 2010, (4) ‘excise duty shall be chargeable at the time when the product is released for consumption in the territory of the State’.

8. Article 4(1) of Decree No 504/1995 reads as follows:

‘In case of irretrievable loss or total destruction of goods under a duty suspension arrangement, relief shall be granted where the person liable to pay the duty proves, in a manner deemed satisfactory by the tax authority, that the loss or destruction of the goods occurred as a result of unforeseeable circumstances or force majeure. With the exception of manufactured tobacco, facts constituting non-serious fault which are attributable to third parties or to the person liable to pay the duty himself [or herself] shall be treated as unforeseeable circumstances and force majeure.’

9. Article 4(5) of Decree No 504/1995 provides that ‘goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods’.

The facts of the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

10. On 26 March 2014, while a tank was being filled in Girelli’s ethyl alcohol denaturation plant in the presence of a Customs Agency official, pure ethyl alcohol leaked through a valve in the tank that one of Girelli’s employees had inadvertently left open and spilled onto the floor. Part of the product was recovered, the rest was irretrievably lost.

11. On 31 March 2014, Girelli applied to the Customs Agency, pursuant to Article 4(1) of Decree No 504/1995, for exemption from excise duty in respect of the quantity of pure ethyl alcohol that had been accidentally lost.

12. On 5 June 2014, the Customs Agency rejected that application on the ground that the loss was due to the carelessness and fault of an employee of Girelli, and not to unforeseeable circumstances or force majeure.

13. On 25 July 2014, Girelli submitted observations to the Customs Agency, in which it disputed the chargeability of excise duty on the quantity of pure ethyl alcohol lost.

14. On 3 October 2014, the Customs Agency rejected those observations. It issued a notice for the payment of excise duty in the amount of EUR 17 476.24, against which Girelli brought an action before the Commissione tributaria provinciale di Milano (Provincial Tax Court, Milan, Italy). Girelli submitted, inter alia, that there was no chargeable event for the excise duty, since, having been irretrievably lost, the pure ethyl alcohol had not been released for consumption. It also contended that the harmful event was attributable to unforeseeable circumstances or, in the alternative, to a ‘non-serious fault’ since it was caused by an employee’s inattention.

15. The Commissione tributaria provinciale di Milano (Provincial Tax Court, Milan) upheld Girelli’s action. It took the view that the loss was due to ‘an unquestionable lack of diligence, which cannot, however, be described as “serious”’.

16. The Customs Agency brought an appeal against that decision before the Commissione tributaria regionale della Lombardia (Regional Tax Court, Lombardy, Italy), which decided that the exemption should be granted since the loss of pure ethyl alcohol was irretrievable and due to unforeseeable circumstances.

17. The Customs Agency brought an appeal on a point of law against the latter decision before the referring court, arguing, in essence, that, in holding that the negligent conduct of Girelli’s employee came within the concept of ‘unforeseeable circumstances’ and that, in any event, that employee’s fault was ‘non-serious’, the Commissione tributaria regionale della Lombardia (Regional Tax Court, Lombardy) had infringed Article 4 of Decree No 504/1995.

18. The referring court observes that its case-law takes two...