10 June 2021 (*1)

(Reference for a preliminary ruling – General arrangements for excise duty – Directive 2008/118/EC – Article 33(3) – Goods ‘released for consumption’ in one Member State and held for commercial purposes in another Member State – Person liable to pay the excise duty that has become chargeable in respect of those goods – Person holding the goods intended for delivery in another Member State – Transporter of the goods)

In Case C‑279/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom), made by decision of 19 March 2019, received at the Court on 3 April 2019, in the proceedings

The Commissioners for Her Majesty’s Revenue and Customs

WR,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, N. Piçarra (Rapporteur), D. Šváby, S. Rodin and K. Jürimäe, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–WR, by S. Panesar, Solicitor, and D. Bedenham, Barrister,

–the United Kingdom Government, by S. Brandon, acting as Agent, and by J. Simor QC and E. Mitrophanous, Barrister,

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

–the Netherlands Government, by M.K. Bulterman, J. Langer and J. Hoogveld, acting as Agents,

–the European Commission, initially by R. Lyal and C. Perrin, and subsequently by C. Perrin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 21 January 2021,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 33(3) 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).

2The request has been made in proceedings between The Commissioners for Her Majesty’s Revenue and Customs, United Kingdom, (‘HMRC’) and WR concerning the legality of an assessment addressed to WR relating to the excise duty which became chargeable in respect of the goods which WR had transported to the United Kingdom without those goods being covered by a valid administrative document proving that that movement took place under a duty suspension arrangement.

Legal context

EU law

Recitals 2 and 8 of Directive 2008/118 state:

(2)Conditions for charging excise duty on the goods covered by [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)], hereinafter “excise goods”, need to remain harmonised in order to ensure the proper functioning of the internal market.

…

(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.

Article 1(1)(b) of that directive is worded as follows:

This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods …:

…

alcohol and alcoholic beverages covered by [Council] Directives 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 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)].

Article 4 of that directive provides:

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

…

“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;

…

“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.

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

Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.

For the purposes of this Directive, “release for consumption” shall mean any of the following:

the departure of excise goods, including irregular departure, from a duty suspension arrangement;

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;

…

Article 8 of Directive 2008/118 is worded as follows:

The person liable to pay the excise duty that has become chargeable shall be:

…

in relation to the departure of excise goods from a duty suspension arrangement as referred to in Article 7(2)(a):

…

(ii)in the case of an irregularity during a movement of excise goods under a duty suspension arrangement as defined in Article 10(1), (2) and (4): the authorised warehousekeeper, the registered consignor or any other person who guaranteed the payment in accordance with Article 18(1) and (2) and any person who participated in the irregular departure and who was aware or who should reasonably have been aware of the irregular nature of the departure;

(b)in relation to the holding of excise goods as referred to in Article 7(2)(b): the person holding the excise goods and any other person involved in the holding of the excise goods;

…

Chapter IV of that directive, entitled ‘Movement of excise goods under suspension of excise duty’, contains a Section 1, entitled ‘General provisions’, in which Article 17(1) of the directive provides:

Excise goods may be moved under a duty suspension arrangement within the territory of the [European Union], including where the goods are moved via a third country or a third territory:

from a tax warehouse to:

(i)another tax warehouse;

…

That chapter includes a Section 2, entitled ‘Procedure to be followed on a movement of excise goods under suspension of excise duty’, in which Article 21 of the directive provides:

Where these data are not valid, the consignor shall be informed thereof without delay.

Where these data are valid, the competent authorities of the Member State of dispatch shall assign to the document a unique administrative reference code and shall communicate it to the consignor.

…

Under the heading ‘Movement and taxation of excise goods after release for consumption’, Chapter V of Directive 2008/118 contains a Section 2, entitled ‘Holding in another Member State’, in which Article 33 of the directive provides:

For the purposes of this Article, “holding for commercial purposes” shall mean the holding of excise goods by a person other than a private individual or by a private individual for reasons other than his own use and transported by him, in accordance with Article 32.

…

4. Without prejudice to Article 38, where excise goods which have already been released for consumption in one Member State move within the [European Union] for commercial purposes, they shall not be regarded as held for those purposes until they reach the Member State of destination, provided that they are moving under cover of the formalities set out in Article 34.

…

The law of the United Kingdom

Regulation 13 of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (‘the 2010 Regulations’) provides in paragraphs 1 and 2 as follows:

(a)making the delivery of the goods;

(b)holding the goods intended for delivery; or

(c)to whom the goods are delivered.’

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

On 6 September 2013, a heavy goods vehicle (‘HGV’) driven by WR, a self-employed worker, was stopped on arrival at Dover Docks (United Kingdom) by UK Border Agency (‘UKBA’) officers. The HGV contained goods subject to excise duty, namely 26 pallets of beer (‘the goods at issue’).

WR produced to the UKBA officers a ‘Cargo Movement Requirement’ consignment note, drawn up on the basis of the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956, as amended by the Protocol of 5 July 1978 (‘the CMR note’). It was stated in the CMR note that the goods at issue were covered by an electronic administrative document containing an administrative reference code (‘the ARC’), referred to in Article 21 of Directive 2008/118. That note also stated that the consignor was a tax warehouse in Germany and that the consignee was Seabrook Warehousing Ltd., a tax warehouse in the United Kingdom.

However, after consulting the Excise Movement and Control System (‘the EMCS’), the UKBA officers were able to establish that the ARC stated on the CMR note had already been used for a separate delivery of beer for the same tax warehouse in the United Kingdom. Those officers therefore took the view that the goods at issue were not being moved under a duty suspension arrangement and, consequently, that the excise duty relating to those goods had become chargeable when those goods arrived in the United Kingdom. In those circumstances, the UKBA officers seized the goods at issue and the HGV carrying them.

Subsequently, HMRC, first, issued to WR an assessment to excise duty in the amount of GBP 22779 (approximately EUR 26400), pursuant to Regulation 13(1) and (2) of the 2010 Regulations (‘the contested assessment to excise duty’) and, second, imposed on WR a fine of GBP 4 897.48 (approximately EUR 5700) pursuant to the provisions of Schedule 41 to the Finance Act 2008.

The First-tier Tribunal (Tax Chamber) (United Kingdom) upheld WR’s appeal against the contested assessment to excise duty and the fine. That tribunal held that, even though he knew that the goods at issue were subject to excise duty, WR was not a conspirator in relation to the attempt to smuggle those goods. Since he did not have access to the EMCS, he had no means of verifying whether the ARC stated on the CMR note had already been used. Moreover, nothing in the documents available to him was such as to give rise to doubts in that regard. Furthermore, WR was not the owner of the HGV and had no right to or personal interest in the goods at issue, his sole aim being to collect and deliver those goods, for a fee, in accordance with the instructions received. Only the persons who had organised the smuggling attempt had the de facto and legal right of control over the goods at issue at the time when they were seized. That tribunal also found that WR had informed the person who had instructed him to transport the goods at issue that they had been seized, that the identity of those behind the smuggling attempt had not been ascertained and that HMRC had not attempted to determine the identity of those persons or that of the owner of the HGV.

In those circumstances, that tribunal, in accordance with the case-law of the Court of Appeal (England & Wales) (United Kingdom), held that WR was an ‘innocent agent’ and that, consequently, he could not be regarded as having ‘held’ or ‘delivered’ the goods at issue within the meaning of Regulation 13 of the 2010 Regulations. According to that tribunal, in the absence of actual or constructive knowledge on WR’s part that he was in physical possession of smuggled goods, the imposition of liability on WR would raise serious questions of compatibility with the objectives of the applicable legislation. Accordingly, the First-tier Tribunal (Tax Chamber) annulled both the contested assessment to excise duty and the fine imposed on WR.

The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) dismissed the appeal brought by HMRC against that annulment decision. That tribunal held, in essence, that the status of ‘innocent agent’ has the effect of exempting from all liability persons who do not have actual or constructive knowledge that the goods which they are transporting are goods in respect of which excise duty should have, but has not, been paid. It would thus be contrary both to Directive 2008/118 and to national legislation to make ‘the entirely innocent agent’ liable for payment of the unpaid excise duty.

The referring court dismissed the appeal brought by HMRC against the judgment of the Upper Tribunal (Tax and Chancery Chamber) as regards the fine imposed on WR, but has doubts as to whether, in the light of Directive 2008/118, that tribunal was correct in upholding the annulment of the contested assessment to excise duty.

In those circumstances, the Court of Appeal (England & Wales) (Civil Division) (United Kingdom) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Is a person … who is in physical possession of excise goods at a point when those goods become chargeable to excise duty in Member State B liable for that excise duty pursuant to Article 33(3) of Directive [2008/118] in circumstances where that person:

(a)had no legal or beneficial interest in the excise goods;

(b)was transporting the excise goods, for a fee, on behalf of others between Member State A and Member State B; and

(c)knew that the goods he was in possession of were excise goods but did not know and did not have reason to suspect that the goods had become chargeable to excise duty in Member State B at or prior to the time that they became so chargeable?

Consideration of the questions referred

By its questions, which it is appropriate to answer together, the referring court asks, in essence, whether Article 33(3) of Directive 2008/118 must be interpreted as meaning that a person who transports, on behalf of others, excise goods to another Member State, and who is in physical possession of those goods at the moment when they have become chargeable to the corresponding excise duty, is liable for that excise duty, under that provision, even if that person has no right to or interest in those goods and is not aware that they are subject to excise duty or, if so aware, is not aware that they have become chargeable to the corresponding excise duty.

Under Article 33(1) of Directive 2008/118, where excise goods which have already been released for consumption in one Member State are held for commercial purposes – that is to say, by a person other than a private individual or by a private individual for reasons other than his own use and transported by him – in another Member State in order to be delivered or used there, excise duty is to become chargeable in that other Member State. Under Article 33(3), ‘the person making the delivery or holding the goods intended for delivery, or to whom the goods are delivered in the other Member State’, is to be liable to pay the excise duty.

Directive 2008/118 does not define the concept of a person who ‘holds’ the goods subject to excise duty, within the meaning of Article 33(3) of that directive, nor does it make any reference to the law of the Member States for the purpose of defining that concept. In accordance with settled case-law, it follows from the requirements of the uniform application of EU law and of the principle of equal treatment that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must be determined according to the usual meaning of those terms in everyday language, taking into account the context in which they are used and the objectives pursued by the legislation of which they form part (see, to that effect, judgments of 9 July 2020, Santen, C‑673/18, EU:C:2020:531, paragraph 41, and of 16 July 2020, AFMB, C‑610/18, EU:C:2020:565, paragraph 50 and the case-law cited).

The concept of a person who ‘holds’ goods refers, in everyday language, to a person who is in physical possession of those goods. In that regard, the question whether the person concerned has a right to or any interest in the goods which that person holds is irrelevant.

Moreover, there is nothing in the wording of Article 33(3) of Directive 2008/118 to indicate that the status of person liable to pay the excise duty, as being ‘the person holding the goods intended for delivery’, depends on ascertaining whether that person is aware or should reasonably have been aware that the excise duty is chargeable under that provision.

That literal interpretation is borne out by the general scheme of Directive 2008/118.

Thus, under Article 7(1) and 7(2)(b) of that directive, excise duty is to become chargeable at the time, and in the Member State, of ‘release for consumption’. The concept of ‘release for consumption’ is defined as the holding of excise goods outside a duty suspension arrangement, without excise duty having been levied. In such a case, the person liable to pay the excise duty is, in accordance with Article 8(1)(b) of that directive, ‘the person holding [those] … goods and any other person involved in the holding of the excise goods’.

However, like Article 33(3) of Directive 2008/118, Article 8(1)(b) of that directive does not contain any express definition of the concept of ‘holding’ and does not require the person concerned to be the holder of a right or to have any interest in relation to the goods which that person holds, or that that person be aware or that he should reasonably have been aware that the excise duty is chargeable under that provision.

ECLI:EU:C:2025:140

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