delivered on 31 January 2013 (1)

(Reference for a preliminary ruling from the Curtea de Apel Oradea (Romania))

‘Directive 92/12/EEC — Excise duty on products for consumption in another Member State — Refusal to reimburse duty paid in the first Member State — Compatibility with Union law’

1.A Romanian company released for consumption in its own Member State alcoholic products intended for consumption in the Czech Republic. It therefore paid excise duty on those products in Romania. The products were subsequently transported to the Czech Republic, where excise duty was again paid. The company then requested reimbursement of the duty paid in Romania. The request was refused on the ground that it should have been submitted before the goods were dispatched. The company objects that it could not have done so because a complete request had to include documentary proof of the arrival of the products in the Czech Republic.

2.The Curtea de Apel Oradea – Secţia a II-a Civilă, de Contencios Administrativ şi Fiscal (Court of Appeal, Oradea – Second Civil Chamber for administrative and tax matters) wishes to know, essentially, whether application of the Romanian rules giving rise to that refusal is consistent with European Union (EU) law, in particular with Directive 92/12. (2)

3.Directive 92/12 is not the easiest of directives to read. It is marked by frequent cross-references within an overall structure in which it is difficult to distinguish clearly between, in particular, different regimes governing the transport of excisable goods between Member States. (3) For a proper understanding of the issues raised in this case, it is necessary to keep in mind a number of provisions whose interrelationship is not always immediately clear from the text.

4. Article 4 contains the following definitions:

(a)‘(a) authorised warehousekeeper: 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 [a] tax-warehousing arrangement;

(b)tax warehouse: a place where goods subject to excise duty are produced, processed, held, received or dispatched under duty-suspension arrangements by an authorised warehousekeeper in the course of his business, …;

(c)suspension arrangement: a tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended;

(d)registered trader: a natural or legal person without authorised warehousekeeper status, authorised by the competent authorities of a Member State to receive, in the course of his business, products subject to excise duty from another Member State under duty-suspension arrangements. This type of trader may neither hold nor dispatch such products under excise duty-suspension arrangements;

(e)non-registered trader: a natural or legal person without authorised warehousekeeper status, who is entitled, in the course of his business, to receive occasionally products subject to excise duty from another Member State under duty-suspension arrangements. This type of trader may neither hold nor dispatch products under excise duty-suspension arrangements. ...’

5. Article 6(1) lays down the general rule that ‘[e]xcise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject to excise duty …’. Release for consumption of products subject to excise duty means:

(a)‘(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.’

1.‘1. In the event of products subject to excise duty and already released for consumption in one Member State being held for commercial purposes in another Member State, the excise duty shall be levied in the Member State in which those products are held.

2.To that end, without prejudice to Article 6 where products already released for consumption as defined in Article 6 in one Member State are delivered or intended for delivery in another Member State or used in another Member State for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, excise duty shall become chargeable in that other Member State.

3.Depending on all the circumstances, the duty shall be due from the person making the delivery or holding the products intended for delivery or from the person receiving the products for use in a Member State other than the one where the products have already been released for consumption, or from the relevant trader or body governed by public law.

4.The products referred to in paragraph 1 shall move between the territories of the various Member States under cover of an accompanying document listing the main data from the document referred to in Article 18(1). ...

5. The person, trader or body referred to in paragraph 3 must comply with the following requirements:

(a)‘(a) before the goods are dispatched, make a declaration to the tax authorities of the Member State of destination and guarantee the payment of the excise duty;

(b)pay the excise duty of the Member State of destination in accordance with the procedure laid down by that Member State;

(c)consent to any check enabling the administration of the Member State of destination to satisfy itself that the goods have actually been received and that the excise duty to which they are liable has been paid.

7. Article 8 provides:

‘As regards products acquired by private individuals for their own use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the Member State in which they are acquired.’

8. Under Article 9(1):

‘Without prejudice to Articles 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member State are held for commercial purpose[s] in another Member State. In this case, the duty shall be due in the Member State in whose territory the products are and shall become chargeable to the holder of the products.’

Article 10 concerns excisable goods ‘purchased by persons who are not authorised warehousekeepers or registered or non-registered traders and dispatched or transported directly or indirectly by the vendor or on his behalf’ (in other words, essentially, distance sales). Where the transport is between different Member States, excise duty is to be charged in the Member State of destination. Where the goods have already been released for consumption in the first Member State, it is to be reimbursed in accordance with Article 22(4).

11.Title III of Directive 92/12 is entitled ‘Movement of goods’ and comprises Articles 15 to 21. Those articles lay down provisions governing the movement of excisable goods under duty-suspension arrangements, between tax warehouses or from a tax warehouse to a trader authorised to receive such products under those arrangements. They provide in particular for guarantees, controls and documentation, and for liability and chargeability in the event of irregularities. Article 18(1), states, inter alia: ‘… all products subject to excise duty moving under duty-suspension arrangements between Member States … shall be accompanied by a document drawn up by the consignor’.

Article 22 provides:

‘1. In appropriate cases, products subject to excise duty which have been released for consumption may, at the request of a trader in the course of his business, be eligible for reimbursement of excise duty by the tax authorities of the Member State where they were released for consumption when they are not intended for consumption in that Member State.

However, Member States may refuse [this] request for reimbursement where it does not satisfy the correctness criteria [ (5) ] they lay down.

(a) before dispatch of the goods, the consignor must make a request for reimbursement from the competent authorities of his Member State and provide proof that the excise duty has been paid. However, the competent authorities may not refuse reimbursement on the sole grounds of non-presentation of the document prepared by the same authorities certifying that the initial payment had been made;

(b) movement of the goods referred to in (a) shall take place in accordance with the provisions of Title III;

(c) the consignor shall submit to the competent authorities of his Member State the returned copy of the document referred to in (b) [ (6) ] duly annotated by the consignee which must either be accompanied by a document certifying that the excise duty has been secured in the Member State of consumption or have the following details added:

— the address of the office concerned of the tax authorities in the Member State of destination,

— the date of acceptance of the declaration by this office together with the reference or registration number of that declaration;

(d) products subject to excise duty and released for consumption in a Member State and thus bearing a tax marking or an identification mark of that Member State may be eligible for reimbursement of the excise duty due from the tax authorities of the Member States which issued the tax markings or identification marks, provided that the tax authorities of the Member State which issued them has established that such markings or marks have been destroyed.

However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down.

4. In the cases referred to in Article 10 the Member State of departure must, at the vendor’s request, reimburse the excise duty paid where the vendor has followed the procedures laid down in Article 10(3).

However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down.

Where the vendor is an authorised warehousekeeper, Member States may stipulate that the reimbursement procedure be simplified.

5. The tax authorities of each Member State shall determine the monitoring procedures and methods applying to reimbursement made in their territory. Member States shall ensure that the reimbursement of excise duty does not exceed the sum actually paid.’

Relevant Romanian legislation

13.In Title VII of the Romanian Tax Code (‘the Tax Code’), Article 1926 (1) (entitled ‘Reimbursement of excise duty on products on which excise duty has been paid’), in the version applicable at the material time in the main proceedings, provided:

‘A trader may, in the course of his activities, request reimbursement of excise duty on products subject to excise duty which have been released for consumption in Romania in the case where those products are intended for consumption in another Member State, subject to the following conditions:

(a) before the goods are dispatched, the dispatching trader must submit a request for reimbursement to the competent tax authority and provide proof that excise duty has been paid;

(b) the delivery of the products to the Member State of destination must take place in accordance with Article 1924; [ (7) ]

(c) the dispatching trader must submit to the competent tax authorities a return copy of the document referred to in Article 1925, [ (8) ] certified by the consignee, which must be accompanied by a document certifying that excise duty has been paid in the Member State of destination. Similarly, the dispatching trader must indicate the address of the office of the competent tax authorities of the Member State of destination and the date of acceptance of the consignee’s declaration by that office, together with the reference or registration number of that declaration.’

14.Point 184 of the implementing rules relating to Article 1926 (1) of the Tax Code provided, at the relevant time:

‘(1) The dispatching trader who intends to request reimbursement of the excise duty paid on products intended for consumption in another Member State must, before dispatching the products, file with the territorial tax authority with which he is registered as a taxable person a request for reimbursement, a specimen of which is reproduced in Annex 11, and provide proof that excise duty has been paid on those products. [ (9) ]

(2) Once the consignee has received the products and the excise duty has been paid in the Member State of destination, the dispatching trader must, for the purposes of reimbursement of excise duty, file with the territorial tax authority with which he is registered as a taxable person the documents referred to in Article 1926 (1)(c) of the Tax Code. [ (10) ]

(3) The excise duty to be reimbursed shall be relative to the quantities dispatched and actually received.

(4) Excise duty shall be reimbursed in accordance with the provisions of the Code of Tax Procedure.

15.The information to be provided in the specimen form in Annex 11, referred to in point 184 (1) of the implementing rules, included the date of reception of the products, the quantity received, the date on which excise duty was paid in the Member State of destination and the number of the document attesting that payment.

16.In the Code of Tax Procedure referred to in point 184 (4) of the implementing rules, Article 135 lays down the general rule that a taxpayer’s right to claim compensation or refund in respect of tax claims is barred after five years from 1 January following the year in which the right to compensation or refund arose.

Facts, procedure and questions referred

17.SC Scandic Distilleries SA (‘Scandic’) is a Romanian producer of distilled alcoholic products, which it markets in Romania and other Member States. In February, March, May, June and July 2009, it released for consumption in Romania alcoholic products intended for consumption in the Czech Republic and paid excise duty of RON 203060 (roughly EUR 45 000) on those products in Romania. Between September 2009 and February 2010, Scandic requested the relevant Romanian tax authority, pursuant to Article 22 of Directive 92/12 and Article 1926 of the Romanian Tax Code, to reimburse that duty, the products having been dispatched to the Czech Republic, where excise duty had also been paid.

In each case, Scandic provided the information required in the specimen form. It also submitted documents certifying the accuracy of that information.

The requests for reimbursement were all lodged after the goods had reached the Czech Republic. Scandic explained that the information required on the specimen form included the date of receipt of the products and the quantity received. It could not provide that information or the necessary substantiating documents before the goods were dispatched. Furthermore, it was clear from the form that requests for reimbursement were to be submitted monthly and not before the products subject to excise duty had begun to circulate in the Member State of destination. Despite the possible delay, Scandic wished to be sure to avoid refusal on the ground of inadequate proof.

The tax authority did not respond to the three requests for reimbursement or to the notification sent by Scandic on 7 May 2010 as a necessary preliminary to the institution of judicial proceedings.

Scandic therefore brought proceedings seeking an order that the tax authority reimburse the excise duty of RON 203060, with interest. The tax authority retorted that, although Scandic had submitted all the documents required under Article 1926 of the Tax Code, it had not requested reimbursement before the products had been dispatched to another Member State.

Scandic’s action was dismissed at first instance and is now on appeal before the referring court, which asks:

1.‘1.

Does the refusal of the Romanian tax authorities to grant a request for reimbursement of excise duty constitute an infringement of European Union law (Articles 7 and 22 of Directive 92/12/EEC, and the preamble thereto) in the case where:

(a)the trader requesting reimbursement of excise duty furnished proof that all the technical conditions laid down in Romanian law governing the admissibility of requests for reimbursement were satisfied, and in particular those relating to: (i) proof of payment of excise duty in Romania; and (ii) proof that the products subject to excise duty were dispatched to another Member State;

(b)according to the requirements of Romanian tax law (Article 1926 of the Tax Code, point 184 of the implementing rules referred to in Government Decision No 44/2004, and Annex 11 to Title VII of the Tax Code), certain documents which had to accompany the request for reimbursement could be furnished only after the products subject to excise duty had been delivered in another Member State;

(c)Romanian tax law (point 184(4) of the implementing rules, which refers to Article 135 of the Code of Tax Procedure) provides for a general period of five years for each request for refund/reimbursement?

Must [Article 22(2)(a) (11)] of Directive 92/12/EEC be interpreted as meaning that failure by a trader to request reimbursement of excise duty in the Member State in which that excise duty was paid, before the products subject to excise duty were delivered in the other Member State where the products are intended for consumption, entails forfeiture of the trader’s right to obtain reimbursement of the excise duty paid?

If the answer to Question 2 is in the affirmative, does the decision on the forfeiture of the trader’s right to obtain reimbursement of excise duty, which involves double taxation of the same products subject to excise duty (in the Member State in which the products subject to excise duty are initially released for consumption and in the Member State in which the products are intended for consumption), comply with the principle of fiscal neutrality?

If the answer to Question 2 is in the affirmative, can the extremely brief period between the date of payment of the excise duty on the products released for consumption in one Member State and the date of dispatch of the products subject to excise duty to another Member State in which they are intended for consumption be regarded as complying with the principles of equivalence and effectiveness? Is it relevant, in that regard, that the general period during which the refund/reimbursement of a tax, duty or charge can be requested in the Member State in question is significantly longer?’

Written observations have been submitted by Scandic, by Poland, Portugal and Romania and by the European Commission. No hearing has been requested or held.

Assessment

Romania suggests that the first question referred is inadmissible because it asks, in substance, whether Directive 92/12 allows a tax authority to refuse a request for a refund when all the conditions laid down for a refund in the national legislation are met. However, it continues, the legal issue which the referring court wished to raise is covered by the other three questions. In those circumstances, I think it unnecessary to address the question of admissibility.

Rather, I agree with the approach taken by the Commission and the Polish and Portuguese Governments that the four questions should be addressed together. There is, essentially, a single issue. Excise duty is paid in one Member State on goods which are subsequently dispatched to another Member State where they are intended for consumption and in which excise duty is also paid. The consignor requests reimbursement of duty in the first Member State after the goods have arrived, and after duty has been paid, in the Member State of destination. The request is refused on the ground that it was not made before the goods were dispatched. Is such a refusal consistent with Articles 7 and 22 of Directive 92/12 – read if need be in the light of the EU principles of fiscal neutrality and (in particular if a much longer period is provided for as a general rule for requesting reimbursement of duty) of equivalence and effectiveness?

The three Member States propose an affirmative, and Scandic and the Commission a negative, answer to that question. Underlying their detailed arguments are two different approaches. The first is concerned with preventing fraud, the second with avoiding double taxation (that is to say, with ensuring fiscal neutrality in the sense in which that phrase is used by the referring court).

I would stress that both of those aims are fundamental to the correct implementation of Directive 92/12. Nor is there, in principle, any conflict between them. They have in common the concern to ensure that each taxpayer pays, and each Member State’s treasury receives, neither more nor less than what is due within a single market. Not only should it therefore be possible to interpret the directive (and any national legislation correctly implementing it) in such a way as to ensure the achievement of both aims, but such an interpretation must, in my view, be favoured wherever possible over any other which would benefit one aim to the detriment of the other.

With more specific regard to the wording of Directive 92/12, the three Member States stress the conditions laid down in Article 22(2), and in particular the requirement in the first sentence of subparagraph (a) that ‘before dispatch of the goods, the consignor must make a request for reimbursement from the competent authorities of his Member State and provide proof that the excise duty has been paid’. It is thus assumed in their observations (and in those of Scandic) that that requirement (which appears to have been almost literally transposed in Article 1926(1)(a) of the Romanian Tax Code) necessarily applies to the operations at issue in the main proceedings.

The Commission, however, bases its submissions on a different analysis of Article 22 of Directive 92/12. Paragraph 2 of that article, it says, relates only to the movement of excisable goods under a duty-suspension arrangement. Where duty-paid goods are transported between Member States, reimbursement is governed by paragraph 3. It seems clear, the Commission notes, that the products at issue in the main proceedings were not transported under a duty-suspension arrangement. Consequently, the applicable requirements are those in Articles 22(3) and 7(5), not those in Article 22(2).

It must be acknowledged at the outset that the Commission’s analysis is not the most obvious from the structure and wording of Article 22 of Directive 92/12. Paragraph 1, on its wording, appears to apply to all situations in which excisable goods were released for consumption in a Member State but not intended for consumption there, and in which it is appropriate to reimburse the duty paid in that State. Paragraph 2 then lays down provisions which are to apply ‘in the application of paragraph 1’. Paragraphs 3 and 4 do not appear to derogate from paragraph 2 or to deal with situations not covered by paragraph 1. Rather, for two subcategories of the overall category in Article 22(1), namely the cases referred to in, respectively, Articles 7 and 10, they seem to add further conditions to those set out in those articles.

None the less, it seems to me that, on careful examination of the text, the Commission’s analysis is the only one which can be correct if the directive is to be interpreted in a coherent and workable manner.

Excisable goods, even when held for commercial purposes, cannot always be transported between Member States under a duty-suspension arrangement. Only authorised warehousekeepers may dispatch goods under such an arrangement, and only authorised warehousekeepers, registered or non-registered traders may receive them. Business needs may plausibly mean that goods on which duty has been paid in one Member State must later be transported for commercial purposes to another. It is clear, moreover, that reimbursement of excise duty already paid in the Member State of dispatch is not confined to duty-suspension arrangements. However, it is a condition of Article 22(2) that the goods be transported in accordance with Title III and, consequently, under a duty-suspension arrangement. Reimbursement in other situations – such as the transport of duty-paid goods – cannot, therefore, be governed by that paragraph.

Article 22(3) of Directive 92/12 concerns reimbursement in the cases referred to in Article 7. That article makes no mention of duty-suspension arrangements (it is concerned with duty-paid goods), and paragraphs 5 and 6 thereof outline a procedure under which such reimbursement can take place only once duty has been paid in the Member State of destination. (12) For that to be possible, the goods must thus have been transported with duty paid and – far from there being any suspension of duty – there must be a period, however short, during which duty has been paid in both Member States. Article 22(4) concerns reimbursement in the cases referred to in Article 10, in which the recipient is neither an authorised warehousekeeper nor a registered or non-registered trader. Such cases thus cannot, by definition, involve a duty-suspension arrangement.

By contrast, Article 22(1) and (5) are general in reference, and do not concern restrictively any one of the specific situations to which Article 22(2), (3) and (4) relate.

I am therefore of the view that, in Article 22 of Directive 92/12:

paragraph 1 introduces the whole article and refers generally to all cases in which excisable goods have been released for consumption in a Member State but are not intended for consumption there, and in which it is appropriate to reimburse the duty paid in that State; (13)

paragraph 2, despite its literal wording referring back to paragraph 1, in fact concerns only such of those cases as involve movement of excisable goods under a duty-suspension arrangement, because it requires goods to be transported in accordance with the provisions of Title III;

paragraph 3 concerns specifically such of the cases covered by paragraph 1 as are referred to in Article 7, namely, those which do not involve movement under a duty-suspension arrangement, but excluding those referred to in Article 10;

paragraph 4 concerns specifically such of the cases covered by paragraph 1 as are referred to in Article 10, namely, excisable goods purchased by persons who are not authorised warehousekeepers or registered or non-registered traders and dispatched or transported directly or indirectly by the vendor or on his behalf;

paragraph 5 is again a general provision relating to all the situations governed by the article as a whole.

That being so, and since the situation described in the order for reference is not one in which goods have been transported under a duty-suspension arrangement, the conditions laid down in Article 22(2) of Directive 92/12 should not apply to the reimbursement claimed in the main proceedings. The national court will have to determine whether Article 22(3) or (4) applies. It seems from the documents produced by Scandic with its observations that the consignee in the Czech Republic was a trader and thus that the case is unlikely to fall within Article 10 or, therefore, Article 22(4). That leaves Article 22(3).

Article 22(3) of Directive 92/12 requires reimbursement of excise duty paid in the Member State of dispatch only where duty has first been paid in the Member State of destination in accordance with the procedure laid down in Article 7(5). That procedure requires the person from whom duty is due in the latter Member State: (a) before the goods are dispatched, to make a declaration to the tax authorities of that Member State and guarantee the payment of the duty there; (b) to pay that duty in accordance with the procedure laid down by the Member State in question; and (c) to consent to any check enabling the administration of that Member State to satisfy itself that the goods have actually been received and duty has been paid on them. It does not require the person who paid duty in the Member State of dispatch to request reimbursement of that duty before the goods are dispatched. On the contrary: it would at first sight seem more logical for the trader to lodge his request for reimbursement only once he is in a position to satisfy the administrative authorities of the Member State of dispatch that appropriate duty has indeed been paid in the Member State of destination.

Can Article 22(3) none the less be read so as to permit Member States to require traders to request reimbursement before the goods are dispatched? It certainly allows them to refuse requests for reimbursement which do not satisfy ‘the correctness criteria they lay down’. Moreover, Article 22(5) provides that Member States are to ‘determine the monitoring procedures and methods applying to reimbursement made in their territory’.

In my view, nothing in Article 7 or Article 22(3) of Directive 92/12 specifically prevents a Member State from laying down, in cases to which those provisions apply, a procedure under which the initial request for reimbursement is to be lodged before the goods have been dispatched. At that stage, however, the request must necessarily be of a preliminary or provisional nature: in the cases concerned by Articles 7 and 22(3), reimbursement cannot occur until it is established that the goods have been received and excise duty has been paid in the Member State of destination. Only once those supplementary conditions have been fulfilled can the request become final and can the tax authority in the Member State of dispatch take action on it. And, self-evidently, that will only occur after the goods in question have been dispatched.

It seems from Romania’s observations in the present case that the Romanian authorities interpret their national legislation as a two-stage procedure. Scandic appears to have interpreted it differently, considering that a completed request could be lodged only at the second stage and that an incomplete request lodged before dispatch of the goods would probably not have been registered by the tax authority. (14) This Court cannot, of course, say which interpretation is correct but it seems to me that neither would be inconsistent with Articles 7 and 22 of Directive 92/12 – provided, of course, that (i) the request is treated as valid once it has been completed and (ii) the relevant provisions are sufficiently clear to ensure that whatever procedure is applied complies with the requirements of legal certainty.

The difficulty in the present case lies, however, not with the procedure for lodging a request as such but with the refusal of a request which, although substantively complete in all respects, did not formally comply with that procedure. Can such a refusal be justified on the ground of a failure to satisfy the ‘correctness criteria’ laid down by the Member State?

I agree with the Commission that in the present case such a result would be disproportionate and inconsistent with the provisions of Directive 92/12 as a whole. Whatever ‘correctness criteria’ a Member State lays down must seek to ensure that the scheme of the directive is respected, in particular with regard to guaranteeing fiscal neutrality, as well as preventing fraud or evasion of duty.

Romania in its observations states that the relevant ‘correctness criteria’ comprise all the provisions of Article 1926 of the Tax Code and point 184 of the implementing rules.

I cannot agree, however, that all those provisions (which, in conformity with Article 22(5) of the directive, lay down the procedure for requesting reimbursement) constitute ‘correctness criteria’ within the meaning of Article 22(3). A distinction must be drawn between failure to comply with procedural rules imposed for reasons of administrative expediency, which may no doubt give rise to a proportionate penalty, and failure to satisfy ‘correctness criteria’, which can entail refusal of the request for reimbursement. Such refusal, involving as it does an exception to the Member State’s obligation to reimburse duty pursuant to Articles 7(6) and 22(3), can be justified only where there is a plausible risk that duty will not be correctly collected in the final event. No such risk is apparent where a consignor has fulfilled all the requirements of Articles 7(5) and 22(3). A requirement involving advance lodging of a provisional request for reimbursement may be justified for administrative reasons but failure to comply with it cannot, on its own, justify a refusal of reimbursement.

I add that both procedural rules and correctness criteria must be framed with sufficient clarity to satisfy the requirements of legal certainty. If procedural rules are opaque or ambiguous, it is not appropriate to penalise a trader who has respected the substance of the correctness criteria for failing to respect them. Still less does such a procedural flaw justify a refusal of reimbursement.

The above considerations are, in my view, sufficient to give a satisfactory answer to the questions referred. However, the national court refers also to the principles of equivalence and effectiveness, and I shall address them briefly.

The Court has consistently held that, in the absence of relevant EU rules, it is for each Member State to lay down detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that they are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not render in practice impossible or excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness). (15)

As regards the principle of equivalence, Romania states in its observations that the general five-year prescriptive period in Article 135 of the Tax Procedure Code applies to the completion (including all supporting documentation) of all claims, derived from national and EU law alike, but that further procedural time-limits, specific to each tax, may apply to the introduction of the initial claim in either category. Scandic – which appears to consider that it would not have been allowed to complete its claim at a later stage – points out that, in commercial transactions, success is often contingent on being able to complete a transaction and dispatch goods quickly. Having to lodge a request for reimbursement of excise duty before the goods are dispatched might act as a hindrance. Scandic notes that there is no equivalent as regards reimbursement of, for example, VAT, the most closely comparable tax. Greater detail than that has not been provided to the Court. It falls therefore to the national court to determine whether, in particular as regards time-limits, the rules surrounding claims for reimbursement of excise duty, the right to which is derived from EU law, are in fact less favourable than those applicable to claims for reimbursement of purely national taxes, based on national law alone. If they are, the principle of equivalence will have been infringed.

As regards the principle of effectiveness, it seems to me that compliance with a two-stage procedure clearly set out in national legislation is not in itself likely to give rise to excessive difficulty, provided that (i) an initial ‘pro forma’ request can be made without such difficulty within the possibly brief period between the receipt of an order for goods that have already been released for consumption and subsequent dispatch of those goods to another Member State and that (ii) any relevant supporting documentation may be supplied later. Provided those conditions are met, even if failure to comply with the time-limit for the initial request were to entail loss of the right to reimbursement conferred by EU law, the procedure would not appear to be such as to render the exercise of that right in practice impossible or excessively difficult. If, however, the procedure in question were to lead to a systematic refusal of reimbursement whenever a request was not lodged before dispatch of the goods and accompanied by documents which could not be obtained until after their arrival, or if the time required to complete the necessary formalities for lodging a preliminary request for reimbursement were so long as to hinder the prompt dispatch of goods ordered, then clearly it would become in practice impossible or excessively difficult to exercise the right to reimbursement. The correct interpretation of the national legislation is again a matter for the national court.

Conclusion

In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Curtea de Apel Oradea – Secţia a II-a Civilă, de Contencios Administrativ şi Fiscal – to the following effect:

In circumstances where

excise duty is paid in one Member State

on goods which are subsequently dispatched to another Member State where they are intended for consumption,

outside a duty-suspension arrangement and

in circumstances other than those referred to in Article 10 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, where

excise duty is also paid in the Member State of destination, and where

the requirements in Article 7(4) and (5) of that directive are fulfilled,

it is not compatible with that directive, and in particular with Articles 7 and 22 thereof, for the tax authority of the Member State of dispatch to refuse reimbursement of the excise duty paid in that State on the sole ground that the request was not submitted before the goods were dispatched.

—

(1) Original language: English.

(2) 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), as amended. Directive 92/12 has now been repealed and replaced by 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).

(3) In its report to the European Parliament, the Council and the European Economic and Social Committee on the application of Articles 7 to 10 of Directive 92/12/EEC (COM(2004) 227 final), the Commission stated that ‘the current wording of Articles 7 to 10 was the outcome of long and complex discussion in the Council. However, it has to be accepted that the resulting legislative structure was less than congruous.

There are three provisions which apply to one particular situation, namely to excisable products held for commercial purposes in a Member State other than where the products were purchased, and all three provisions have the same aim, i.e. to ensure that excise duty is paid in the other Member State. What is more, none of the three provisions clearly establishes its scope. As a result, certain types of movement may be covered by several different provisions each requiring the completion of different formalities.’

(4) The remainder of Article 7 (paragraphs 7 to 9) concerns products released for consumption in one Member State and transported to another destination in the same Member State, via the territory of another Member State. The present proceedings do not concern that situation.

(5) The term ‘correctness criteria’, which seems unusual in English, appears to be a translation of the French ‘critères de régularité’. It is not defined in the directive.

(6) Article 22(2)(b) originally read ‘movement of the goods referred to in (a) shall take place under cover of the document specified in Article 18(1)’ (see point 11 above). It seems that Article 22(2)(c) was never amended to take account of the change in wording of Article 22(2)(b).

(7) Essentially, that means that they are subject to certain checks and declarations, and must be sent under cover of a simplified accompanying document.

(8) The document referred to in footnote 7 above.

(9) This is the version cited by the referring court, which appears to have been introduced in 2008. The applicant in the main proceedings cites a slightly different version, which appears to date from 2006: ‘The consigning trader must, before dispatching the products, inform the territorial tax authority of his intention to request reimbursement of excise duty for the products which are to be dispatched for consumption in another Member State, and provide proof that excise duty has been paid on those products.’

(10) Again, the applicant in the main proceedings cites a slightly different version: ‘… the consigning trader must submit the request for reimbursement, a specimen of which is provided in Annex 11, to the local tax authority. The request for reimbursement must be accompanied by the documents specified in the Tax Code.’

(11) The order for reference mentions Article 22(1)(a), which does not exist. It is clear from the context that Article 22(2)(a) is intended.

(12) See also Case C-5/05 Joustra [2006] ECR I-11075, in particular at paragraph 52.

(13) That is to say, all cases in which duty is subsequently paid in the Member State in which the goods are intended, and ultimately released, for consumption – excluding, therefore, cases in which products are acquired by private individuals for their own use and transported by them, when duty is chargeable only in the Member State of acquisition.

(14) See point 19 above: Scandic claims that it is clear from the specimen form for requests for reimbursement that such requests cannot be submitted before the products subject to excise duty have been released for circulation in the Member State of destination.

(15) See, most recently, Case C-603/10 Pelati [2012] ECR, paragraph 23 and case-law cited.