Dual Prod SRL v Direcţia Generală Regională a Finanţelor Publice Cluj-Napoca - Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:234
• Date: 23 March 2023
• Docket Number: C-412/21
• Celex Number: 62021CJ0412
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

23 March 2023 (*)

(Reference for a preliminary ruling – Excise duties – Directive 2008/118/EC – Article 16(1) – Authorisation to operate as a tax warehouse for products subject to excise duty – Successive suspension measures – Whether criminal in nature – Articles 48 and 50 of the Charter of Fundamental Rights of the European Union – Principle of the presumption of innocence – Principle ne bis in idem – Proportionality)

In Case C‑412/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Satu Mare (Regional Court, Satu Mare, Romania), made by decision of 9 June 2021, received at the Court on 6 July 2021, in the proceedings

Dual Prod SRL

v

Direcţia Generală Regională a Finanţelor Publice Cluj-Napoca – Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate,

THE COURT (Fourth Chamber),

composed of C. Lycourgos (Rapporteur), President of the Chamber, L.S. Rossi, J.‑C. Bonichot, S. Rodin and O. Spineanu-Matei, Judges,

Advocate General: A.M. Collins,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Dual Prod SRL, by D. Pătrăuş, A. Şandru and T.D. Vidrean-Căpuşan, avocați,

– the Romanian Government, by E. Gane and A. Wellman, acting as Agents,

– the Italian Government, by G. Palmieri, acting as Agent, and G. Galluzzo, avvocato dello Stato,

– the European Commission, by A. Armenia and J. Jokubauskaitė, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 October 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 16(1) 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), and Article 48(1) and Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings between Dual Prod SRL and the Direcţia Generală Regională a Finanțelor Publice Cluj-Napoca – Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate (Regional Directorate-General of Public Finances of Cluj-Napoca – Regional authority for the authorisation of operators dealing in or producing goods subject to harmonised excise duty, Romania), seeking, inter alia, annulment of the decision by which the latter suspended Dual Prod’s authorisation to operate as a tax warehouse for products subject to excise duty.

Legal context

European Union law

3 Recitals 15 and 16 of Directive 2008/118 stated:

‘(15) Since checks need to be carried out in production and storage facilities in order to ensure that the tax debt is collected, it is necessary to retain a system of warehouses, subject to authorisation by the competent authorities, for the purpose of facilitating such checks.

(16) It is also necessary to lay down requirements to be complied with by authorised warehousekeepers and traders without authorised warehousekeeper status.’

4 Article 1(1) of that directive provided:

‘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 4 of that directive provided:

‘For the purpose of this Directive as well as its implementing provisions, the following definitions shall apply:

1. “authorised warehousekeeper” means 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;

…

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 According to Article 15 of that directive:

‘1. Each Member State shall determine its rules concerning the production, processing and holding of excise goods, subject to this Directive.

2. The production, processing and holding of excise goods, where the excise duty has not been paid, shall take place in a tax warehouse.’

7 Article 16 of Directive 2008/118 was worded as follows:

‘1. 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.

2. An authorised warehousekeeper shall be required to:

…

(b) comply with the requirements laid down by the Member State within whose territory the tax warehouse is situated;

…

(d) 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, except where Article 17(2) applies;

(e) consent to all monitoring and stock checks.

…’

Romanian law

8 Article 364(1)(d) of Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code) of 8 September 2015 (Monitorul Oficial al României, Part I, No 688 of 10 September 2015; ‘the Tax Code’) states:

‘The competent authority shall issue an authorisation to operate as a tax warehouse to an establishment only if the following conditions are met:

…

(d) in the case of a natural person who is to operate as an authorised warehousekeeper, that he or she is not unfit, that he or she has not been finally convicted of or conditionally sentenced for the following criminal offences:

…

12. the criminal offences provided for in this Code.’

9 Article 369(3) of that code states:

‘On a proposal from the supervising bodies, the competent authority may suspend the authorisation to operate as a tax warehouse:

…

(b) for a period of between 1 and 12 months, where it is found that one of the acts referred to in Article 452(1)(b) to (e), (g) and (i) has been committed;

(c) until final judgment has been given in criminal proceedings, where criminal proceedings have been brought in respect of the offences referred to in Article 364(1)(d);

…’

10 Article 452 of that code provides:

‘(1) The following acts constitute criminal offences:

…

(h) the holding by any person outside a tax warehouse or the marketing on the territory of Romania of products that are subject to excise duty and a marking obligation, in accordance with this Title, where those products are unmarked or improperly marked or marked with false markings, beyond the limit of 10 000 cigarettes, 400 cigars of 3 grams, 200 cigars exceeding 3 grams, 1 kilogram of smoking tobacco, 40 litres of ethyl alcohol, 200 litres of spirit drinks, 300 litres of intermediate products, 300 litres of fermented beverages other than beer and wine;

(i) the use of mobile pipes and tubes, elastic hoses or other conduits of similar nature, the use of uncalibrated tanks, and the placement before meters of conduits or taps through which quantities of alcohol or spirits may be extracted without being measured by those meters;

…

(3) After establishing the facts referred to in paragraph 1(b) to (e), (g) and (i), the competent supervisory authority shall order that the activity be stopped and that the facility be sealed in accordance with the technological procedures for closing the facility, and shall send the inspection document to the tax authority that issued the authorisation, together with the proposal to suspend the authorisation to operate as a tax warehouse.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 Dual Prod is a company incorporated under Romanian law that is authorised to operate in the field of the production of alcohol and alcoholic beverages subject to excise duty.

12 On 1 August 2018, a search was carried out at the premises of that company.

13 Following that search, criminal proceedings in rem were initiated for suspected infringements of Article 452(1)(h) and (i) of the Tax Code consisting, first, in the removal and holding outside the tax warehouse of an amount exceeding 40 litres of ethyl alcohol with an alcoholic strength of at least 96% by volume and, secondly, in the installation of a hose at the production plant.

14 By decision of 5 September 2018, the competent administrative authority suspended Dual Prod’s authorisation to operate as a tax warehouse for products subject to excise duty, for a period of 12 months, on the basis of Article 369(3)(b) of the Tax Code. That authority interpreted that provision as allowing such a suspension to be imposed on the basis of mere evidence that criminal offences may have been committed under the legislation governing goods subject to excise duty.

15 On 13 December 2019, the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania), before which Dual Prod brought an action against the decision of 5 September 2018, reduced the length of that suspension to eight months, after holding that the imposition of the maximum suspension period provided for in Article 369(3)(b) of the Tax Code was...