Provisional text

24 March 2022 (*1)

( Reference for a preliminary ruling – Excise duties – Directive 92/12/EC – Article 4 – Movement of products under excise duty suspension – Conditions – Articles 6 and 20 – Release of products for consumption – Falsification of the accompanying administrative document – Offence or irregularity committed in the course of the movement of products subject to excise duty under a duty suspension arrangement – Irregular departure of products from a suspension arrangement – Consignee unaware of the movement – Fraud committed by a third party – Article 13(a) and Article 15(3) – Compulsory guarantee to cover movement – Scope )

In Case C‑711/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic), made by decision of 16 December 2020, received at the Court on 31 December 2020, in the proceedings

THE COURT (Tenth Chamber),

composed of I. Jarukaitis, President of the Chamber, M. Ilešič (Rapporteur) and Z. Csehi, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–the Czech Government, by M. Smolek, O. Serdula and J. Vláčil, acting as Agents,

–the Polish Government, by B. Majczyna, acting as Agent,

–the European Commission, by M. Salyková and C. Perrin, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 4(c) 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), as amended by Council Directive 94/74/EC of 22 December 1994 (OJ 1994 L 365, p. 46) (‘Directive 92/12’), read in conjunction with Articles 13, 15 and 16 thereof.

2The request has been made in proceedings between Generální ředitelství cel (General Customs Directorate, Czech Republic) and TanQuid Polska sp. z o.o. (‘TanQuid’), a company established in Poland, concerning the collection of excise duty on account of a breach of the suspension arrangement for the movement of mineral oils.

Legal context

European Union law

3Directive 92/12 was repealed and replaced, with effect from 1 April 2010, by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and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). However, given the date of the facts in the main proceedings, the present reference for a preliminary ruling must be examined in the light of Directive 92/12.

4The fourth, tenth and thirteenth recitals of Directive 92/12 state:

‘… in order to ensure the establishment and functioning of the internal market, chargeability of excise duties should be identical in all the Member States;

…

… movement from the territory of one Member State to that of another may not give rise to checks liable to impede free movement within the Community; … for the purposes of chargeability it is nevertheless necessary to know of the movements of products subject to excise duty; … provision should therefore be made for an accompanying document for such products;

…

… in that respect provision should first be made for each consignment to be easily identified; … provision should be made for the tax status of the consignment to be immediately identifiable; … it is therefore necessary to provide for an accompanying document capable of meeting these needs, which may be either an administrative or commercial document; … the commercial document used must contain the essential elements which appear on the administrative document’.

5Article 1(1) of that directive provides:

‘This Directive lays down the arrangements for products subject to excise duties and other indirect taxes which are levied directly or indirectly on the consumption of such products, except for value added tax and taxes established by the [European Union].’

6 In accordance with Article 3(1) thereof, that directive is applicable, at EU level, inter alia to mineral oils.

7Article 4 of that directive reads as follows:

‘For the purpose of this Directive, the following definitions shall apply:

(a) <i>authorised warehousekeeper:</i> 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] tax-warehousing arrangement;

(b) <i>tax warehouse:</i> 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, subject to certain conditions laid down by the competent authorities of the Member State where the tax warehouse is located;

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

(d) <i>registered trader:</i> 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;

…’

8The first subparagraph of Article 5(1) of Directive 92/12 provides:

‘The products referred to in Article 3(1) shall be subject to excise duty at the time of their production within the territory of the [European Union] … or of their importation into that territory.’

9Article 6 of that directive provides:

‘1. Excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject to excise duty in accordance with Article 14(3).

Release for consumption of products subject to excise duty shall mean:

(a) any departure, including irregular departure, from a suspension arrangement;

…

10 Under Article 13(a) of Directive 92/12, an authorised warehousekeeper is required to provide a guarantee, if necessary, to cover production, processing and holding and a compulsory guarantee to cover movement, subject to Article 15(3) of that directive, the conditions for which shall be set by the competent authorities of the Member State where the tax warehouse is authorised.

11 Under Article 15 of that directive:

‘1. … the movement of products subject to excise duty under suspension arrangements must take place between tax warehouses.

…

…

The detailed rules for the guarantee shall be laid down by the Member States. The guarantee shall be valid throughout the [European Union].

…’

12 In accordance with the first subparagraph of Article 16(1) of that directive:

‘Notwithstanding Article 15(1), the consignee may be a professional trader without authorised warehousekeeper status. This trader may, in the course of his business, receive products subject to excise duty from other Member States under duty-suspension arrangements. However, he may neither hold nor dispatch such products under excise duty-suspension arrangements.’

13 Article 16(2) and (3) of Directive 92/12 lays down the requirements with which a trader who is not an authorised warehousekeeper must comply, depending on whether or not he or she is registered with the tax authorities of his or her Member State.

14 Under Article 18(1) of that directive:

‘… 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. This document may be either an administrative document or a commercial document. …’

15 Article 19(1) to (3) of that directive provides:

‘1. The tax authorities of the Member States shall be informed by traders of deliveries dispatched or received by means of the document or a reference to the document specified in Article 18. This document shall be drawn up in quadruplicate:

–one copy to be kept by the consignor,

–one copy for the consignee,

–one copy to be returned to the consignor for discharge,

–one copy for the competent authorities of the Member State of destination.

The competent authorities of each Member State of dispatch may provide for the use of an additional copy of the document for the competent authorities of the Member State of departure.

…

The Member States of destination may stipulate that the copy to be returned to the consignor for discharge should be certified or endorsed by its national authorities. …

…

Notwithstanding the above provisions, Member States of dispatch may provide for a copy of the return copy to be sent immediately to the consignor by fax so that the guarantee may be released quickly. This shall not affect the obligation to return the original pursuant to the first sentence.

…

16 Article 20 of that directive states:

‘1. Where an irregularity or offence has been committed in the course of a movement involving the chargeability of excise duty, the excise duty shall be due in the Member State where the offence or irregularity was committed from the natural or legal person who guaranteed payment of the excise duties in accordance with Article 15(3), without prejudice to the bringing of criminal proceedings.

Where the excise duty is collected in a Member State other than that of departure, the Member State collecting the duty shall inform the competent authorities of the country of departure.

3.Without prejudice to the provision of Article 6(2), when products subject to excise duty do not arrive at their destination and it is not possible to determine where the offence [or] irregularity was committed, that offence or irregularity shall be deemed to have been committed in the Member State of departure, which shall collect the excise duties at the rate in force on the date when the products were dispatched unless within a period of four months from the date of dispatch of the products evidence is produced to the satisfaction of the competent authorities of the correctness of the transaction or of the place where the offence or irregularity was actually committed. Member States shall take the necessary measures to deal with any offence or irregularity and to impose effective penalties.

4.If, before the expiry of a period of three years from the date on which the accompanying document was drawn up, the Member State where the offence or irregularity was actually committed is ascertained, that Member [State] shall collect the excise duty at the rate in force on the date when the goods were dispatched. In this case, as soon as evidence of collection has been provided, the excise duty originally levied shall be refunded.

Regulation No 2719/92

17.Article 1 of Commission Regulation (EEC) No 2719/92 of 11 September 1992 on the accompanying administrative document for the movement under duty-suspension arrangements of products subject to excise duty (OJ 1992 L 276, p. 1), as amended by Commission Regulation (EEC) No 2225/93 of 27 July 1993 (OJ 1993 L 198, p. 5) (‘Regulation No 2719/92’), provides:

‘The document shown in Annex I shall be used as the administrative document accompanying the movement under duty-suspension arrangements of products subject to excise duty within the meaning of Article 3(1) of Directive 92/12/EEC. The instructions concerning completion of the document and the procedures for its use are shown on the reverses of copy 1 of this document.’

18.In accordance with Article 2(1) of that regulation, a commercial document may replace the administrative document provided that it contains the same information required to be shown in the administrative document.

Czech law

19.Under Article 25(1)(a) of the Zákon č. 353/2003 Sb., o spotřebních daních (Law No 353/2003 on Excise Duties), in the version applicable to the facts in the main proceedings (‘the Law on Excise Duties’), the movement between Member States of regulated products under duty suspension arrangements is permitted only under cover of an accompanying document, if the regulated products are transported from a tax warehouse in another Member State to a tax warehouse operator, an authorised consignee or a tax representative who has been granted an authorisation for the fiscal territory of the Czech Republic.

20.Under Article 26(1) of the Law on Excise Duties, the movement of regulated products under duty suspension arrangements is permitted only under cover of an accompanying document, unless that law provides otherwise.

21.In accordance with Article 28(1) of the Law on Excise Duties, in principle, there is a breach of the excise duty suspension arrangement during transport if the transport of regulated products to a tax warehouse, an authorised consignee, a place of direct delivery, a place of export, a person referred to in Article 11(1)(d) or (e) or a consignee in accordance with Directive 92/12 in another Member State is not completed within the prescribed period.

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

22.On 5 January 2010, officials from the Celní úřad Náchod (Náchod Customs Office, Czech Republic) inspected three tankers which, according to the accompanying documents produced, were transporting mineral oils from a tax warehouse, located in Polish territory and operated by TanQuid, to EKOL GAS PB s. r. o. (‘EKOL GAS’), a company incorporated under Czech law. During the inspection, they found that the information on those accompanying documents was false. EKOL GAS subsequently denied any commercial contact with TanQuid.

23.In response to a request for information from the Czech customs authorities, the Polish customs authorities sent them 38 accompanying documents with annexes, showing that other quantities of mineral oils had allegedly been dispatched to EKOL GAS.

24.In addition, it was established that those accompanying documents had not been presented to the customs office in order for the accuracy and validity of the data therein to be verified, and that the stamps from the Czech customs office confirming 35 of the accompanying documents were forged.

25.Lastly, it was established on the basis of toll gate records that the mineral oils had been transported to an unknown person and unloaded in Žďár nad Sázavou (Czech Republic). In that regard, the Czech police initiated criminal proceedings for fraudulent acts by third parties, but that investigation was closed for procedural reasons.

26.On 3 March 2016, on the basis of a tax inspection report of 11 January 2016, the Celní úřad pro Jihočeský kraj (Customs Office of the South Bohemian Region, Czech Republic) issued a number of tax assessment notices to collect excise duties for the mineral oils, setting TanQuid’s total tax liability at 10 207 850 Czech koruny (CZK) (approximately EUR 420 000).

27.Since the administrative appeals brought against those tax assessment notices were dismissed by the General Customs Directorate, TanQuid brought an action against the decisions dismissing its appeals before the Krajský soud v Českých Budějovicích (Regional Court, České Budějovice, Czech Republic).

28.By judgment of 12 September 2018, that court annulled the decisions dismissing the appeals on the ground, first, that, because of the fraud committed, the movement of products under excise duty suspension had not taken place in Czech territory and, secondly, that the deliveries at issue in the main proceedings were not covered by a guarantee, since the guarantee provided applied only to movement between tax warehouses. That court regarded the departure of the mineral oils from TanQuid’s tax warehouse as a release for free circulation.

29.The General Customs Directorate brought an appeal on a point of law before the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic).

30.The referring court seeks to ascertain, in essence, whether the formal and substantive conditions for initiating the movement of products under duty suspension arrangements are satisfied where, first, third parties act fraudulently to pass themselves off as the authorised consignee established in another Member State and, secondly, the guarantee provided for that movement did not have the required scope.

31.In the first place, the referring court notes, on the one hand, that, where persons pass themselves off as representing a registered trader (consignee) while not having any valid authorisation to that effect, the registered trader is unaware of the fact that products must be moved to him or her under duty suspension arrangements. Thus, as held by the Krajský soud v Českých Budějovicích (Regional Court, České Budějovice), it could be considered that that situation is similar to a situation in which the consignee of the regulated products in question, as declared in the accompanying documents, does not hold the relevant authorisation. From that point of view, the departure of the mineral oils at issue in the main proceedings from TanQuid’s tax warehouse should be considered a release for free circulation.

32.However, on the other hand, the referring court states that it is the authorised warehousekeeper who commences the movement of products under excise duty suspension, as it is the authorised warehousekeeper who completes part A of the accompanying administrative document. In addition, in so far as the authorised warehousekeeper is objectively liable for all offences and irregularities committed in the course of movement, he or she is liable for the excise duty at the place where the offence or irregularity occurred, since the consignee is involved only at the end of the operation. The consignee’s cooperation is therefore not required in order for movement to commence.

33.Thus, the question whether or not the consignee of the products is aware of the operation is irrelevant as regards the commencement of the movement of products under duty suspension arrangements. Similarly, the subsequent finding that third parties unlawfully passed themselves off as representing a registered trader is irrelevant. In that context, the customs authorities are required only to check whether the movement has taken place between authorised traders and whether an excise duty guarantee has been provided.

34.In the second place, the referring court is uncertain as to the nature and purpose of the guarantee provided to secure the payment of excise duty on the movement of products under excise duty suspension. It takes the view that, in so far as the provision of the guarantee is indicated on the accompanying documents for the purpose of the movement of products under duty suspension arrangements to a named authorised consignee, the customs authorities of another Member State cannot review the reason for the guarantee or carry out a substantive assessment of the authenticity of the information given in the accompanying documents.

35.In the present case, the guarantee, which was provided strictly for movement of products between tax warehouses, referred, as a type of tax obligation which it covered, to the departure from the warehouse of products subject to excise duty under duty suspension arrangements. Furthermore, that guarantee was provided in order to secure the movement of regulated products, under duty suspension arrangements, from TanQuid’s tax warehouse to EKOL GAS, a registered trader.

36.In those circumstances, the Nejvyšší správní soud (Supreme Administrative Court) has decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are products that are subject to excise duty transported pursuant to a suspension arrangement within the meaning of Article 4(c) of [Directive 92/12] in a situation where a customs office of one Member State agreed to the movement of products under a duty-suspension arrangement from a tax warehouse to a registered trader established in another Member State, even though the conditions for the movement of those products under the duty-suspension arrangement were objectively not met, it having been established at a subsequent stage of the procedure that the registered trader had no knowledge of the movement of the products, due to fraud by third parties?

(2) Does the provision of an excise duty guarantee, as provided for by Article 15(3) of [Directive 92/12], issued for a purpose other than the movement of products under a duty-suspension arrangement between a tax warehouse and a registered trader established in another Member State preclude the due commencement of movement under a duty-suspension arrangement, if the provision of the guarantee was recorded in the accompanying documents for the movement of the products under the duty-suspension arrangement for the registered trader and confirmed by the customs authority of the Member State?’

The questions referred for a preliminary ruling

37.By its two questions, which should be examined together, the referring court asks, in essence, whether Directive 92/12 must be interpreted as meaning that the dispatch, by an authorised warehousekeeper, of products subject to excise duty, under cover of an accompanying document and a compulsory guarantee, constitutes a movement of products under excise duty suspension for the purpose of Article 4(c) of that directive in a situation where, due to fraudulent conduct on the part of third parties, the consignee indicated in that accompanying document and in that guarantee is unaware that those products have been dispatched to him or her.

38.Furthermore, that court also seeks to ascertain whether the fact that the compulsory guarantee provided by the authorised warehousekeeper for the purpose of that dispatch specifies the name of the authorised consignee, but not the fact that it is a registered trader for the purpose of the application of Article 15 or Article 16 of Directive 92/12, affects the lawfulness of such a movement.

39.As a preliminary point, it should be noted that Directive 92/12 seeks to establish a certain number of rules regarding the holding, movement and monitoring of products subject to excise duty, such as the mineral oils referred to in Article 3(1) of that directive, in particular, in order, as is apparent inter alia from the fourth recital thereof, to ensure that the chargeability of excise duty is identical in all the Member States. That harmonisation makes it possible, in principle, to avoid double taxation in relations between Member States (judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 44 and the case-law cited).

40.Products subject to excise duty become taxable for the purposes of Directive 92/12, in accordance with Article 5(1) thereof, upon their being produced within the territory of the European Union or imported into that territory (judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 46 and the case-law cited).

41.By contrast, pursuant to Article 6(1) of Directive 92/12, excise duty becomes chargeable, inter alia, at the time of release for consumption of products subject to excise duty. Under point (a) of the second subparagraph of Article 6(1) of that directive, that concept also covers any departure, including irregular departure, from a duty suspension arrangement, defined in Article 4(c) of that directive (judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 47 and the case-law cited).

42.It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, despite the fact that the chargeable event for taxation purposes has already taken place. Consequently, as regards the products subject to excise duty, that arrangement postpones the chargeability of excise duty until one of the conditions of chargeability, such as the one described in the preceding paragraph, is met (judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 49 and the case-law cited).

43.In view of the central role which the EU legislature gives to the warehousekeeper in the context of the duty suspension arrangement in accordance with Directive 92/12, that warehousekeeper is, in principle, liable for all the risks inherent in that arrangement, including where an offence or an irregularity involving the chargeability of excise duty has been committed in the course of the movement of those products. That liability is, moreover, objective and based not on the proven or presumed fault of the warehousekeeper, but on his or her participation in an economic activity (see, to that effect, judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 52 and the case-law cited).

44.Consequently, under the scheme of Directive 92/12, there is no potential for the liability of the authorised warehousekeeper of dispatch to be replaced by that of the owner of the products subject to excise duty.

45.

As regards, more specifically, the movement of products subject to excise duty under duty suspension arrangements, Directive 92/12 lays down a number of conditions which must be satisfied when those products are dispatched so that, during that movement, the authorised warehousekeeper of dispatch may continue to benefit from that arrangement.

46In the first place, under Article 15(1) of Directive 92/12, the movement of products subject to excise duty under duty suspension arrangements must take place, in principle, between tax warehouses as defined in Article 4(b) of that directive and operated by authorised warehousekeepers, within the meaning of Article 4(a) thereof.

47In accordance with Article 16(1) and (2) of that directive, the consignee of such products may, by way of derogation, be a registered trader, that trader being defined in Article 4(d) of that directive as 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 or her business, products subject to excise duty from another Member State under excise duty suspension.

48Where an offence or an irregularity involving the chargeability of excise duty has been committed or detected in the course of the movement of those products, including in the event of fraud, the authorised warehousekeeper is liable for the payment of excise duties (see, to that effect, judgment of 24 February 2021, Silcompa, C‑95/19, EU:C:2021:128, paragraph 52 and the case-law cited).

49Under Article 15(4) of Directive 92/12, the liability of the authorised warehousekeeper of dispatch may be discharged only by proof that the consignee has taken delivery of the products, in particular by the accompanying document referred to in Article 18 of that directive and under the conditions laid down in Article 19 thereof.

50Where, as appears to be the case here, the products subject to excise duty were dispatched by the authorised warehousekeeper primarily on the basis of fraud committed by third parties, it may be the case that the commencement of the movement of products under duty suspension arrangements coincides with the commission of an irregularity or offence involving the release for consumption of those products and the chargeability of excise duty.

51Where an irregularity or offence has been committed in the course of movement involving the chargeability of excise duty, Article 20(1) of Directive 92/12 designates, primarily, the Member State where the offence or irregularity was committed as the Member State in which the excise duty is due.

52Nevertheless, the Member State in which that offence or irregularity is detected may become competent, under Article 20(2) of Directive 92/12, to recover the excise duty, even if that offence or irregularity was not committed in that Member State, if it is not possible to determine where it was committed.

53Consequently, the dispatch by an authorised warehousekeeper of products subject to excise duty may constitute a movement of products under excise duty suspension, for the purpose of Article 4(c) of Directive 92/12, notwithstanding the fact that, as a result of fraudulent conduct on the part of third parties, the presumed consignee is unaware that those products have been dispatched to him or her, as long as that fact or another irregularity or offence has not been established by the competent authorities of a Member State concerned.

54In the second place, the first subparagraph of Article 15(3) of Directive 92/12 provides that the risks inherent in intra-EU movement are normally covered by the compulsory guarantee provided by the authorised warehousekeeper of dispatch, as provided for in Article 13 of that directive, or, if need be, by a guarantee jointly and severally binding both the consignor and the transporter. It is clear from a combined reading of Article 13(a) and the third subparagraph of Article 15(3) of that directive that the conditions and detailed rules for that guarantee are to be laid down by the competent authorities of the Member States where the tax warehouse is authorised and that the guarantee must be valid throughout the European Union.

55In addition, that guarantee must cover the period between the time of departure from the tax warehouse and the time of discharge, and may be released, in accordance with Article 19(2) of that directive, only when a copy of the accompanying administrative document or a copy of the commercial document, duly annotated, is returned by the consignee to the consignor for discharge.

56The first subparagraph of Article 15(3) of Directive 92/12 provides that the competent authorities of the Member States may allow the transporter or owner of the products to provide a guarantee in place of the one provided by the authorised warehousekeeper of dispatch and that, if appropriate, Member States may also require the consignee to provide a guarantee.

57Furthermore, it is apparent from the model of the accompanying administrative document, set out in Annex I to Regulation No 2719/92, that the ‘party or parties responsible for arranging the guarantee’ must be indicated in box 10 of that document, entitled ‘Guarantee’, by entering ‘consignor’, ‘transporter’ or ‘consignee’ in that box, as appropriate in accordance with Article 15(3) of Directive 92/12. No additional, more detailed information is required.

58On the other hand, it does not follow from Directive 92/12 that the competent authorities of the Member State of departure must verify the content of the guarantee before the movement of products under excise duty suspension commences, or that, in that context, those authorities must approve that movement, since those steps may substantially impede the free movement of goods subject to excise duty within the European Union.

59Accordingly, the checks to be carried out by the competent authorities of the Member State of departure must be limited to establishing the formal existence of such a guarantee.

60It is true that failure to comply with conditions or detailed rules laid down by the Member States or their competent authorities may constitute an irregularity or offence within the meaning of Article 20 of Directive 92/12.

61The fact remains, however, that, with the exception of the conditions, referred to in paragraphs 54 and 55 above, according to which the guarantee must cover the risks inherent in intra-EU movement and have a certain territorial and temporal scope, there are no other requirements in relation to the guarantee which must be fulfilled in order to be validly permitted to move products under duty suspension arrangements provided for by Directive 92/12.

62Consequently, any inaccuracies in the guarantee, such as the fact that the name of the consignee (a registered trader) has been correctly stated, but that the terms of that guarantee refer only to movement between tax warehouses, for the purpose of Article 15 of Directive 92/12, cannot have any bearing on the existence of a movement between an authorised warehousekeeper and a registered trader, for the purpose of Article 16 of that directive.

63In the third place, Article 18(1) of Directive 92/12 provides that all products subject to excise duty moving under duty suspension arrangements between Member States must be accompanied by a document drawn up by the consignor, which may be either an administrative document or a commercial document, the form and content of which are established by Regulation No 2719/92.

64The first subparagraph of Article 19(1) of Directive 92/12 states that the tax authorities of the Member States are to be informed by traders of deliveries dispatched or received by means of that document or a reference thereto, and states that that document is to be drawn up in quadruplicate, namely one copy to be kept by the consignor, one copy for the consignee, one copy to be returned to the consignor for discharge and one copy for the competent authorities of the Member State of destination.

65Article 19(2) of that directive provides that, when products subject to excise duty move under duty suspension arrangements to an authorised warehousekeeper or to a registered or non-registered trader, a copy of the accompanying administrative document or a copy of the commercial document, duly annotated, is to be returned by the consignee to the consignor for discharge, at the latest within 15 days following the month of receipt by the consignee.

66In that context, in accordance with the fourth subparagraph of Article 19(1) of that directive, the Member State of destination may stipulate that the copy to be returned to the consignor for discharge should be certified or endorsed by its own authorities, an option which the Czech Republic appears to have used, as is apparent from paragraph 24 above.

67It is clear, however, that Directive 92/12 does not require such a formality on the part of the competent authorities of the Member State of departure in order for the movement of products under excise duty suspension to commence. As is apparent from the tenth and thirteenth recitals of that directive, the accompanying document is required only to make it possible to know of the movements of products subject to excise duty and easily identify each consignment in order to be able immediately to determine its tax status.

68In this regard, in accordance with the second subparagraph of Article 19(1) of that directive, the competent authorities of each Member State of dispatch may provide for the use of an additional copy of the document for the competent authorities of the Member State of departure, but are not obliged to do so.

69Therefore, even where the formality referred to in paragraph 66 above is required by the competent authorities of the Member State of departure, where appropriate under national law, it may at most be used to prevent or detect any irregularities or offences at an early stage of the procedure for the movement of products subject to excise duty under duty suspension arrangements. By contrast, a failure by the competent authorities of the Member State of departure to detect an irregularity or offence at that stage has no bearing on the liability of the authorised warehousekeeper of dispatch, as described in paragraphs 43 and 48 above, even if, subsequently, inaccuracies appear in the accompanying document certified or endorsed by them.

70In any event, a requirement to carry out more thorough checks at that stage, in order to establish the accuracy of the information given in the accompanying document, would run counter to one of the objectives of Directive 92/12, which is to contribute to the free movement of goods subject to excise duty, since those thorough checks would be likely to impede such movement.

71Consequently, in order for there to be movement within the meaning of that directive, it is sufficient, in principle, for the authorised warehousekeeper of dispatch to have completed the necessary formalities for drawing up an accompanying document and to have provided the compulsory guarantee, and for the products subject to excise duty to have been dispatched from the tax warehouse, even if only formally, to an authorised person for the purpose of Articles 15 and 16 of that directive.

72In those circumstances, the answer to the questions referred is that Directive 92/12 must be interpreted as meaning that the dispatch, by an authorised warehousekeeper, of products subject to excise duty, under cover of an accompanying document and a compulsory guarantee, constitutes movement of products under excise duty suspension, for the purpose of Article 4(c) thereof, notwithstanding the fact that, as a result of fraudulent conduct on the part of third parties, the consignee indicated in that accompanying document and in that guarantee is unaware that those products have been dispatched to him or her, as long as that fact or another irregularity or offence has not been established by the competent authorities of the Member State concerned. The fact that the compulsory guarantee provided by the authorised warehousekeeper for the purpose of such dispatch specifies the name of the authorised consignee, but not his or her status as a registered trader, does not affect the lawfulness of such movement.

Costs

73Since 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.

On those grounds, the Court (Tenth Chamber) hereby rules:

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, as amended by Council Directive 94/74/EC of 22 December 1994, must be interpreted as meaning that the dispatch, by an authorised warehousekeeper, of products subject to excise duty, under cover of an accompanying document and a compulsory guarantee, constitutes movement of products under excise duty suspension, for the purpose of Article 4(c) thereof, notwithstanding the fact that, as a result of fraudulent conduct on the part of third parties, the consignee indicated in that accompanying document and in that guarantee is unaware that those products have been dispatched to him or her, as long as that fact or another irregularity or offence has not been established by the competent authorities of the Member State concerned.

The fact that the compulsory guarantee provided by the authorised warehousekeeper for the purpose of such dispatch specifies the name of the authorised consignee, but not his or her status as a registered trader, does not affect the lawfulness of such movement.

[Signatures]

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Language of the case: Czech.