Provisional text

OPINION OF AVOCATE GENERAL

delivered on 2 September 2021 (1)

Case C-326/20

SIA ‘MONO’

Valsts ieņēmumu dienests

(Request for a preliminary ruling from the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia))

( Reference for a preliminary ruling – Directive 2008/118/EC – Article 12 – Excise duty – Exemption from the harmonised duty – Excise goods intended to be used in the context of diplomatic or consular relations – Conditions – Payment made for excise goods by the actual recipients – Payment by non-cash means )

1.By its request for a preliminary ruling, the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia) has referred to the Court two questions regarding the interpretation of Article 12 of Directive 2008/118/EC (2) concerning the general arrangements for excise duty, in the context of proceedings between the company MONO SIA (‘the applicant’) and the Valsts ieņēmumu dienests (National Tax Authority, Latvia, ‘the National Tax Authority’) concerning the exemption from excise duty of goods purchased by members of diplomatic and consular services and by the staff of international organisations established in Latvia.

2.Those questions seek, in essence, to establish whether Article 12 of Directive 2008/118 precludes national legislation under which excise goods intended to be used in the context of diplomatic or consular relations are exempted from excise duty only on the condition, not provided for by EU law, that those goods have been purchased by non-cash means and that payment to the supplier has been made by the actual recipients of the goods.

3.Although it has no precedent, the present case raises an issue which the Court has addressed recently, namely that of restrictions on the use of cash as a means of payment. The Court is accordingly called upon to rule on the compliance of the excise duty exemption arrangements laid down in the Latvian legislation, and specifically on the discretion enjoyed by Member States in implementing such arrangements, particularly with the principle of proportionality.

II. Legal framework

4.Article 34 of the Vienna Convention on Diplomatic Relations, concluded at Vienna on 18 April 1961 (3) (‘the VCDR’), states:

‘A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;

…’

5.Article 36(1) of the VCDR provides:

‘The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

(a) Articles for the official use of the mission;

(b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.’

6.Article 49 of the Vienna Convention on Consular Relations, done at Vienna on 24 April 1963 (4) (‘the VCCR’), entitled ‘Exemption from taxation’, provides in paragraph 1:

‘Consular officers and consular employees and members of their families forming part of their households shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;

…’

7.Article 50 of the VCCR, entitled ‘Exemption from customs duties and inspection’, provides in paragraph 1:

‘The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

(a) articles for the official use of the consular post;

(b) articles for the personal use of a consular officer or members of his family forming part of his household, including articles intended for his establishment. The articles intended for consumption shall not exceed the quantities necessary for direct utilisation by the persons concerned.’

8.Recital 13 of Directive 2008/118 reads as follows:

‘The rules and conditions for the deliveries which are exempt from the payment of excise duty should remain harmonised. For the exempted deliveries to organisations situated in other Member States, use should be made of an exemption certificate.’

9.Article 1(1) of that directive states:

‘This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”):

…

(b) alcohol and alcoholic beverages covered by Directives 92/83/EEC (5) and 92/84/EEC (6);

(c) manufactured tobacco covered by Directives 95/59/EC, (7) 92/79/EEC (8) and 92/80/EEC (9).

10.Article 12 of Directive 2008/118 provides:

‘1. Excise goods shall be exempted from payment of excise duty where they are intended to be used:

(a) in the context of diplomatic or consular relations;

(b) by international organisations recognised as such by the public authorities of the host Member State, and by members of such organisations, within the limits and under the conditions laid down by the international conventions establishing such organisations or by headquarters agreements;

(c) by the armed forces of any State party to the North Atlantic Treaty other than the Member State within which the excise duty is chargeable, for the use of those forces, for the civilian staff accompanying them or for supplying their messes or canteens;

…

11.Article 13 of that directive provides:

‘1. Without prejudice to Article 21(1), excise goods moving under a duty suspension arrangement to a consignee referred to in Article 12(1) shall be accompanied by an exemption certificate.

…’

12.Article 14(3) of that directive reads:

‘Member States shall take the measures necessary to ensure that the exemptions provided for in paragraphs 1 and 2 are applied in such a way as to prevent any possible evasion, avoidance or abuse.’

13.Article 51 of Implementing Regulation (EU) No 282/2011 (10) provides:

‘1. … the [value added tax (VAT)] and/or excise duty exemption certificate set out in Annex II to this Regulation shall, subject to the explanatory notes set out in the Annex to that certificate, serve to confirm that the transaction qualifies for the exemption under Article 151 of Directive 2006/112/EC (11).

…

Member States shall inform the Commission of the contact point designated to identify the services responsible for stamping the certificate and the extent to which they dispense with the requirement to have the certificate stamped. The Commission shall inform the other Member States of the information received from Member States.

3. Where direct exemption is applied in the Member State in which the supply takes place, the supplier shall obtain the certificate referred to in paragraph 1 of this Article from the recipient of the goods or services and retain it as part of his records. If the exemption is granted by means of a refund of the VAT, pursuant to Article 151(2) of Directive [2006/112], the certificate shall be attached to the request for refund submitted to the Member State concerned.’

14.Annex II to Implementing Regulation No 282/2011 sets out the form and content of the VAT and/or excise duty exemption certificate referred to in Article 51 of that implementing regulation.

15.Article 7 of the likums ‘Par akcīzes nodokli’ (Law on Excise Duty) of 30 October 2003 (12) provides:

‘The excise duty shall be due from:

16.Article 20(1) of that law provides:

‘Without prejudice to paragraphs 2, … and 5 … of this article, excise goods shall be exempted from payment of excise duty where they are supplied:

(1) to diplomatic and consular representations;

(2) to diplomatic and consular agents of diplomatic and consular representations, administrative and technical staff and members of the families of the persons referred to in this subparagraph who are not Latvian nationals or permanent residents. …;

(3) to international organisations or their representations recognised as such by the Republic of Latvia, within the limits and under the conditions laid down by the international conventions establishing such organisations or by headquarters agreements;

(4) to staff of international organisations or of the representations of such organisations that have diplomatic status in the territory of the Republic of Latvia who are not Latvian nationals or permanent residents;

…

(6) to the armed forces of any State party to the North Atlantic Treaty other than the Member State within which the excise duty is chargeable, for the use of those forces, for the civilian staff accompanying them or for supplying their messes or canteens;

…

(9) …

(a) to Allied Headquarters recognised in the Republic of Latvia …,

(b) to members of Allied Headquarters or their dependants who are not Latvian nationals or permanent residents.’

17.Article 20(2)(2) of that law provides:

‘The persons referred to in paragraph 1 of this article may receive in the Republic of Latvia excise goods from:

…

(2) tax warehouses situated in the Republic of Latvia on the following conditions:

(a) the consignor of the excise goods shall use the document established in Annex II to [Implementing] Regulation No 282/2011 which certifies that the goods are exempt from duty,

(b) the consignor of the excise goods shall draw up a supporting document in accordance with the legislation on the movement of excise goods,

(c) payment for the excise goods shall be made by non-cash means.’

18.Article 20(5) of that law reads:

‘Excise goods intended to meet the needs of the persons referred to in paragraph 1 of this article that are imported into the territory of the Republic of Latvia for release for free circulation … from countries that are not Member States or from the territory referred to in Article 2(3) of this law shall be exempt from duty on the following conditions:

(1) the consignor of the excise goods shall use the document established in Annex II to [Implementing] Regulation No 282/2011 which certifies that the goods are exempt from duty;

(2) payment for the excise goods shall be made by non-cash means.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

19.The applicant declared to the Latvian customs administration under the excise duty suspension arrangement, for release for free circulation to embassies and consular services of various Member States and the NATO representation to Latvia, excise goods (alcohol and cigarettes) it had purchased from a British company and its Latvian branch (‘the goods at issue’).

20.After purchasing the goods at issue from the British company and its Latvian branch without making a direct payment for them, the applicant sells them to diplomatic and consular missions (13) established in Latvia but without receiving any payment. Once they have received the goods, the missions make a direct payment for them to that British company, which has been assigned a right to payment by the applicant. The assignment agreement also provides for the remuneration which that company must pay to the applicant for acting as an intermediary in the sale of the goods at issue.

21.After carrying out a tax inspection, the National Tax Authority issued a decision requiring the applicant to pay excise duty for the release of the goods at issue, plus fines and late-payment surcharges. The decision stated that, since the diplomatic representations concerned had not paid for those goods by non-cash means, the condition required in order to qualify for the exemption under Article 20(5)(2) of the Law on Excise Duty was not met.

22.The applicant brought an action before the Administratīvā rajona tiesa (District Administrative Court, Latvia) seeking to have the National Tax Authority decision annulled. It claimed, in particular, that the condition required in order to qualify for the exemption under Article 20(5)(2) of the Law on Excise Duty was not decisive, nor was it included as a condition for obtaining an exemption in the international instruments that bind the Republic of Latvia.

23.In a judgment dated 10 June 2019, the Administratīvā rajona tiesa (District Administrative Court) dismissed that action as regards the requirement to pay excise duty.

24.The applicant lodged an appeal against that judgment before the Administratīvā apgabaltiesa (Regional Administrative Court). That court observes that there is no dispute that the applicant declared the goods at issue, under the customs warehousing procedure and the excise duty suspension arrangement, for release for free circulation to diplomatic staff, that it used the certificate provided for in Annex II to Implementing Regulation No 282/2011, that it issued supporting documents in respect of the goods it supplied to diplomatic staff from various States and to the NATO representation in Latvia and that the payment due to it for the goods at issue was made by the British company under an assignment agreement.

25.The Administratīvā apgabaltiesa (Regional Administrative Court) observes, however, that the National Tax Authority claims that the excise duty exemption does not apply because, under Article 20(5)(2) of the Law on Excise Duty, exemption can only apply where payment for the goods at issue is made by non-cash means.

26.Furthermore, it is clear from the position adopted by the National Tax Authority that proof is required not only that the intention is for payment between the parties to the transaction in question to be made by non-cash means, but also that that payment has actually been made by the persons to whom the goods were supplied. According to the National Tax Authority, since, under an assignment agreement, payment for the goods at issue supplied to the embassies and consular services was made to the applicant by the British company and not by the embassies and consular services to which those goods were supplied, it is not possible to trace whether the embassies and consular services in question actually paid by non-cash means when they received those goods.

27.In those circumstances, the Administratīvā apgabaltiesa (Regional Administrative Court) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 12(1) of [Directive 2008/118] be interpreted as meaning that excise goods intended to be used in the context of diplomatic or consular relations are to be exempted from excise duty on the condition that payment for the goods in question is to be made by non-cash means, that payment has actually been made, and that the payment to the supplier was made by the actual recipients of the goods?

(2) Must Article 12(2) of [Directive 2008/118] be interpreted as meaning that Member States may lay down conditions and limitations which, in the context of diplomatic and consular relations, make the exemption from duty for excise goods subject to the requirement that the purchaser of the goods has actually paid for the goods by non-cash means?’

28.Written observations were submitted by the applicant, the Latvian and Spanish Governments and by the European Commission.

29.The parties to the main proceedings and the interveners propose that the questions referred should be answered as follows:

– The applicant considers that Article 12(1) of Directive 2008/118 cannot be interpreted as meaning that excise goods intended to be used in the context of diplomatic or consular relations are to be exempted from excise duty on condition that payment for the goods at issue is to be made by non-cash means, that payment has actually been made to the supplier, and that the payment was made by the actual recipients of the goods. Article 12(2) of that directive cannot be interpreted as allowing a Member State to impose additional, unnecessary bureaucratic restrictions concerning goods exempted from excise duty, which take the form of limiting the means of payment for such goods.

– For its part, the Latvian Government suggests that the Court’s answer should be that Article 12(1) of Directive 2008/118 must be interpreted as meaning that excise goods intended to be used in the context of diplomatic or consular relations are to be exempted from excise duty on the condition that payment for those goods is made by non-cash means, that payment has actually been made to the supplier, and that payment was made by the actual recipients of the goods, and that Article 12(2) of that directive must be interpreted as meaning that Member States may lay down conditions and limitations which, in the context of diplomatic and consular relations, make exemption from excise duty for excise goods subject to the requirement that the purchaser of the goods has actually paid for the goods by non-cash means.

– The Spanish Government considers that Member States may, to a large extent, lay down conditions and limitations in respect of the application of the exemptions provided for in Article 12(1) of Directive 2008/118, subject, inter alia, to the principles of legal certainty and proportionality. The requirement that in order to claim exemption the taxable person must show that the goods or services have actually been paid for, and by non-cash means, would appear reasonable in order to ensure that there is no misuse of the exemption, since it provides confirmation that the goods have actually been supplied to the diplomatic or consular recipient. That requirement would prevent any form of abuse or fraud. The Spanish Government therefore proposes that the answer to the questions referred should be that Article 12 of that directive allows Member States, when laying down conditions and limitations in respect of the application of the exemption of excise duty on goods used in the context of diplomatic and consular relations, to make application of that exemption subject to the requirement that the purchaser of the goods has actually paid for them by non-cash means.

– The Commission considers that the answer to the first question referred for a preliminary ruling is to be found in the wording of Article 12(1)(a) of Directive 2008/118, which makes no reference to the conditions mentioned in that question. The only condition laid down in that provision is that the goods must actually be intended for the use stated, which is use in the context of diplomatic or consular relations. Since, according to the Commission, evidence of that intended use may be provided otherwise than by proof of payment by the purchasers to their direct supplier by non-cash means, it proposes that the answer to the first question referred for a preliminary ruling should be that Article 12(1)(a) of that directive must be interpreted as not requiring, in order for the exemption for which it provides to be granted, that payment for the goods in question is to be made by non-cash means, that payment has actually been made to the supplier or that it has been made by the actual recipients of those goods.

– In the Commission’s view, the answer to the second question referred for a preliminary ruling should be that Article 12(2) of Directive 2008/118 precludes national legislation under which, in circumstances such as those in the present case, exemption of excise duty must be refused on the grounds that the purchaser has not actually paid for the excise goods, by non-cash means, without its being possible to prove, on the basis of other evidence, that the conditions for exemption laid down in Article 12(1) of that directive are met.

31.By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 12 of Directive 2008/118 must be interpreted as meaning that it allows Member States, when laying down conditions and limitations regarding the application of the exemption of excise duty on goods used in the context of diplomatic and consular relations, to make application of that exemption subject to additional conditions not laid down by EU law, such as those requiring that the actual recipient of those goods has made direct payment for them to the suppliers by non-cash means.

32.In that regard, I note first of all that the Court has not so far had an opportunity to give a ruling on the interpretation of Article 12 of Directive 2008/118.

33.

It should also be pointed out that, according to the information supplied by the referring court, there is no doubt that, in the dispute in the main proceedings, the goods at issue were supplied to diplomatic and consular representations and that no irregularity, apart from an infringement of the provision of Latvian law at issue, was established by the National Tax Authority. It is apparent from the order for reference that the applicant fully complied, as regards both form and substance, with the requirements under EU law. The referring court therefore asks whether it is possible, in such a situation, for national law to impose conditions and limitations additional to those laid down by EU law, infringement of which would lead to excise duty exemption not being applied.

Before proceeding to a detailed analysis of the questions referred in the present case, it seems to me important to consider the scope of Directive 2008/118, and in particular the provisions concerning exemption of excise duty for diplomatic and consular missions.

I propose, after that, to analyse the arrangements for excise duty exemption laid down in Latvian law with regard to the principle of proportionality and, lastly, their compliance in the light of the case-law of the Court concerning VAT exemption, a field in which the EU legislature has laid down exemption arrangements that are the same as those applying to excise duty.

In interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives of the rules of which it is part. (15)

It should be noted that the purpose of Directive 2008/118 is to lay down general arrangements for excise duty on excise goods within the European Union in order to ensure the free movement of such goods and thus the proper functioning of the EU’s internal market. (16) Among the exceptions to that principle is the exemption provided for in Article 12 of that directive for the benefit of diplomatic and consular missions.

The following preliminary conclusions may be drawn from the key provisions of Directive 2008/118 concerning the exemption arrangements, which are set out in points 10 to 12 of this Opinion.

In the first place, the main objective of the exemption arrangements provided for in Article 12 of Directive 2008/118 is to ensure that recipients falling into one of the categories identified by that provision may qualify under it. Thus, excise goods are exempted from the payment of the corresponding excise duty when they are intended to be used in the context of diplomatic or consular relations. Such an interpretation is also in accordance with Article 36 of the VCDR and Article 50 of the VCCR.

In the second place, although it is acknowledged that Member States have discretion in implementing exemption arrangements, that discretion is limited by the use of the exemption certificate, the purpose of which is to provide a framework for implementing the exemption arrangements and, specifically, to ensure that the objective of Article 12 of Directive 2008/118 is fulfilled, whilst ensuring that the goods at issue are actually used by their recipients.

In the third place, in the context of the powers conferred on Member States, the latter may take the measures necessary to ensure that the exemptions provided for the benefit of diplomatic and consular missions are applied in such a way as to prevent any possible evasion, avoidance or abuse. (17) In that regard, it should be noted that the prevention of such occurrences is a common objective of both EU law and Latvian law.

In the fourth place, as regards the implementation of the excise duty exemption arrangements, Directive 2008/118 gives Member States the choice by means of two different procedures for granting exemptions, either ex post refunding of excise duty or ex ante exemption, in the form of suspension of excise duty for supplies to diplomatic and consular missions, (18) the model which Latvia opted for.

Lastly, apart from the conditions expressly stated in Directive 2008/118 and Implementing Regulation No 282/2011, EU law does not provide any other harmonised conditions for the exemption of excise goods intended to be used in diplomatic and consular relations. In particular, the grant of exemption is not dependent on the methods of payment for the goods or on direct payment by the purchaser to the supplier.

In order to understand how the excise duty exemption arrangements and the parameters for their implementation operate, it is necessary, first, to consider the content of the exemption certificate. Next, my analysis will consider the role of national law and its interaction with EU law in the implementation of the excise duty exemption arrangements.

(a) The exemption certificate

I recall at the outset that the exemption certificate is a document the form and content of which is laid down by the Commission, and that Member States are required to comply with it in order to ensure the proper operation of the excise duty exemption arrangements. (19) It is to be concluded from this that the EU legislature intended to harmonise those arrangements through the use of that certificate.

The content of the exemption certificate may be summarised as follows: the certificate contains the identity and contact details of the person qualifying for exemption – an organisation (diplomatic or consular representation) or its agent (20) – , a detailed description of the goods or services concerned, the quantity or number of the latter, their value per unit and total value and the currency used, (21) the express declaration by the person qualifying for exemption that those goods or services are intended for one of the official uses provided for in Article 12 of Directive 2008/118 or for personal use by a member of a diplomatic or consular mission, (22) the stamp, dated and signed, of that organisation in the case of an application for exemption for personal use, (23) and the stamp, dated and signed by the competent authorities of the host Member State, certifying that the transaction meets, totally or up to a specified quantity, the conditions for exemption from excise duty. (24)

I note, in the first place, that the exemption certificate describes in detail the different steps to be taken by all those involved in the exemption process, that is to say, the taxable person, the authorities of the host Member State and the organisation qualifying for exemption of the Member State concerned.

It should therefore be pointed out that, in principle, the content of the exemption certificate is certified both by the organisation or individual qualifying for exemption, namely the diplomatic and consular missions of the Member State concerned (or their officials), and by the authorities of the host Member State.

Thus, in that exemption certificate, diplomatic or consular missions qualifying for exemption declare in particular: (a) that the goods are intended for one of the official uses provided for or for personal use; (b) that the goods or services comply with the exemption conditions and restrictions in the host Member State, and (c) that the information has been furnished in good faith. In order to certify that the abovementioned information is correct, a representative of the organisation concerned appends a signature together with the stamp or seal of the diplomatic or consular mission where exemption has been granted for the personal use of a member of the organisation qualifying for exemption.

As regards the host Member State, in principle the content of the exemption certificate is also certified by the competent authorities of that State. Such certification may be carried out by one or more authorities depending on the Member State concerned. I note, in that regard, that, in a number of Member States, two authorities are involved in that process. (25) Thus, as a first step, the Ministry of Foreign Affairs (26) or the Ministry of Defence (27) certifies that the organisation in question is entitled to the exemption by reason of its status. Once that certification has been obtained, the organisation holding the right to exemption submits the exemption certificate to the supplier and proceeds with the purchase of the exempted goods, giving the supplier a copy of the certificate. As a further step, a second authority of the host Member State, in most cases the tax authority or the customs service, may optionally check that the transaction complies with the rules regarding exemption from excise duty or VAT.

If the goods or services are intended for official use, however, the host Member State may, under such conditions as it may lay down, dispense with the obligation on diplomatic or consular representations to seek prior authorisation from the competent authorities of that Member State for use of that exemption certificate. (28) In such cases, that certificate may be used without certification by the host Member State and without bearing the stamp of the competent authorities of that Member State. Thus, it might be envisaged that, on reciprocal grounds in the context of diplomatic relations between one Member State and another, the decision may be taken to make it easier for diplomatic and consular missions to purchase excise goods by granting them that dispensation, although it may be withdrawn in the event of abuse.

Nonetheless, even where the competent authority of the host Member State decides not to append its stamp in a case of excise duty exemption for official use, that does not, in principle, dispense with the requirement for the diplomatic or consular mission qualifying for such exemption to confirm that the information included is correct and to certify the content of the exemption certificate by means of a signature or an official seal.

Lastly, as regards the taxable person (or supplier of the exempted goods), it is stated in the explanatory notes to Annex II to Implementing Regulation No 282/2011 on the exemption certificate that the certificate serves as a supporting document for the tax exemption of supplies of goods to diplomatic and consular missions. Moreover, the taxable person/warehousekeeper is required to keep that certificate as part of his or her records, (29) in accordance with the legal provisions applicable in his or her Member State. (30)

(b) The role of national law in the implementation of excise duty exemption arrangements

It should be noted first of all that Article 12(2) of Directive 2008/118 provides that the exemptions referred to in the first paragraph of that article are to be ‘subject to conditions and limitations laid down by the host Member State’.

The Latvian Government considers therefore that the requirement that payment must be made by non-cash means, in addition to the formality of the exemption certificate, is justified, in particular in view of the discretion afforded to Member States by the wording of the abovementioned provision and of the possibility which that provision gives them to lay down conditions and limitations in respect of exemption of excise duty.

That position is shared by the Spanish Government, which considers that, if the interpretation is accepted that the exemption applies automatically in the context of the supply of goods or services to a diplomatic or consular representation, Article 12(2) of Directive 2008/118, which provides that Member States may lay down conditions and limitations in respect of such exemption, would become meaningless.

I must make clear from the outset that I do not share the position held by the Latvian and Spanish Governments.

In the first place, it seems obvious that, in a harmonised area of EU law such as the general arrangements for excise duty, the discretion afforded to Member States is limited and must be exercised in accordance with EU law.

In the second place, even if one adopts a narrow interpretation of Article 12(2) of Directive 2008/118, that provision does not deprive Member States of the opportunity to lay down a number of parameters for the application of excise duty exemption.

The main point to note that it is for the national legislature to choose the method of exemption it intends to apply, namely whether it will be ex ante and directly through the suspension of excise duty or ex post through the refunding of excise duty.

Furthermore, the discretion afforded to Member States in the implementation of excise duty exemption arrangements is clearly illustrated by the different approaches adopted by those Member States in laying down the parameters for such arrangements. There are thus distinctions to be found regarding the designation of the authorities of the host Member States competent to certify both the eligibility of those entitled to exemption and the validity of the transactions carried out, (31) the requirements concerning certification of the content by the diplomatic mission concerned, (32) the amount on which the exemption is available, (33) the period during which the exemption is valid or the time limit for obtaining a refund, (34) guidance concerning the use of the goods concerned (35) or the number of copies of the exemption certificate to be issued. (36)

In the light of the above, I consider that an interpretation focused on the main objective of the excise duty exemption arrangements, which is to ensure that the intended users referred to in Article 12 of Directive 2008/118 obtain that exemption, does not deprive Member States of the opportunity to lay down a certain number of important parameters for the implementation of those arrangements.

The principle of proportionality requires Member States to employ means which, whilst enabling them effectively to attain the objective pursued by their domestic laws, do not go beyond what is necessary and are the least detrimental to the objectives and the principles laid down by the relevant EU legislation. (37)

The case-law of the Court states in that regard that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (38)

It is therefore necessary, first, to consider the legitimate objective pursued by the Latvian legislature when adopting Article 20(5)(2) of the Law on Excise Duty, in order to examine whether the former is justified and proportionate.

Second, it is necessary to consider whether that legislation is appropriate for attaining the objective pursued and whether it goes beyond what is necessary to attain that objective.

It is important to note that excise duty exemption arrangements have been harmonised at European Union level through Directive 2008/118. As regards its implementation, that harmonisation is demonstrated by the framework for the exemption arrangements provided by the exemption certificate. Thus, it is in that well-defined context, that the proportionality of Article 20(5)(2) of the Law on Excise Duty must be examined in order to answer the questions referred for a preliminary ruling.

In the light of the above, I consider that, if there was no such harmonisation and no resulting requirement for a system of uniform exemption under it, measures such as those provided for by Latvian law might be justified and proportionate, both in the light of the objectives pursued by the national law and by the more considerable discretion afforded to a Member State.

It is apparent from the order for reference and the written observations of the Latvian Government that the condition requiring payment by non-cash means stems from a desire to ensure that exemption is granted, rightly, to those entitled to excise duty exemption and to combat more effectively tax evasion and tax fraud.

It must be observed that the Member States have a legitimate interest in taking appropriate steps to protect their financial interests (39) and that the prevention of tax evasion and abuse is an objective pursued by Directive 2008/118, as is clear from Article 11 and the first paragraph of Article 39(3) of that directive. (40)

I therefore consider that, on the face of it, the objective pursued by the Latvian legislature might appear to be justified in the particular case of certain excise goods, such as cigarettes and alcohol, which, illegally imported, represent a significant share of excise goods marketed.

However, I would point out that in exercising the powers conferred on them by EU law, the Member States must observe the general principles of law, including, in particular, the principle of proportionality. (41)

It is therefore appropriate to consider now the arguments put forward by the two governments to justify the restriction imposed by Latvian law.

The Latvian and Spanish Governments consider that the use of cash as a means of payment in economic transactions makes it considerably easier to commit fraud and abuse and that, therefore, the restrictions imposed by Latvian law are legitimate and proportionate.

According to the Spanish Government, similar types of restrictions, which are laid down for legitimate purposes such as the prevention of tax fraud, are not unknown to EU law itself. In that regard, the Spanish Government refers to the Hessischer Rundfunk judgment (42) and the Opinion of Advocate General Richard de la Tour in ECOTEX BULGARIA. (43)

Although it has been acknowledged that, in some individual cases, restrictions on the use of cash as a means of payment might be legitimate, I take the view that the case-law cited by the Spanish Government cannot be transposed to the present case, since both the facts and the legal rules applicable are considerably different from those in the judgment of 26 January 2021, Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2021:63).

I note that, in the Joined Cases Hessischer Rundfunk (C‑422/19 and C‑423/19), the Court, sitting as the Grand Chamber, ruled that, in principle, a Member State in the Euro zone may oblige its administration to accept cash payments, but that that possibility may also be restricted on public interest grounds provided such restrictions are proportionate to the public interest objective pursued. Thus, the Court stated that such a restriction may inter alia be justified where payment in cash is likely to give rise to unreasonable expense for the administration due to the very high number of licence fee payers. The Court therefore found that it was for the referring court to ascertain whether such a restriction was proportionate to the objective of actually recovering the radio and television licence fee, (44) in particular in the light of the fact that the lawful alternative means of payment may not be readily accessible to everyone liable to pay it. (45)

I would make clear at the outset that the review of proportionality referred to in the judgment of 26 January 2021, Hessischer Rundfunk (C‑422/19 and C‑423/19, EU:C:2021:63), was in a different context from the one in the present case. The public interest objective pursued in the abovementioned case was to ensure there would be no unreasonable expense for the administration because of cash payments. However, no such risk arises in the case in the main proceedings in which the objective pursued by the Latvian legislation is to prevent abuse and fraud in matters of payment and excise duty exemption.

In ECOTEX BULGARIA (C‑544/19), a case pending before the Court, the latter is called upon to rule on the compliance with EU law of national tax legislation prohibiting physical and legal persons from making on national territory a payment in cash where the value of that payment is equal to or above a set threshold and requiring taxpayers to use non-cash means of payment subject to a possible penalty.

Although I agree with Advocate General Richard de la Tour’s analysis in ECOTEX BULGARIA, (46) I consider that the conclusions drawn from that analysis cannot be transposed to the case in the main proceedings. First, unlike the Latvian legislation, the Bulgarian legislation at issue in that case does not come within a field that has been harmonised by EU law. Second, the legal context and the objectives pursued by the Bulgarian legislation differ considerably from those in the case of the Latvian legislation. The Bulgarian legislation is designed to combat tax evasion resulting from situations in which substantial liquid assets are not registered in accounting records, thus escaping taxation and the payment of social security contributions. (47) Thus, the Bulgarian legislature requires the use of means of payment ensuring the traceability of financial transactions in respect of which no other evidence or means of verification would exist. In the case in the main proceedings, however, EU law provides a specific mechanism for implementing the excise duty exemption arrangements, through the exemption certificate, which is such that it constitutes evidence showing, in principle, not only the completion of a commercial transaction but also its traceability in order to avoid any form of abuse or fraud.

I note that, according to the Court’s established case-law, national legislation is appropriate for ensuring attainment of the aim pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. (48)

The question is therefore whether and to what extent the exemption certificate on its own ensures that both the objectives of Latvian law and the objective referred to in Article 12 of Directive 2008/118, namely exemption of the recipients concerned whilst ensuring the absence of fraud and abuse, are met. I note at the outset that, if the answer to that question is in the affirmative, in my view, any national legislation imposing additional conditions and formalities for the receipt of goods subject to excise duty by the recipients concerned is likely to be unjustified and disproportionate. However, if that certificate does not ensure a legitimate and non-abusive application of the excise duty exemption arrangements – and in particular ensure that the goods at issue are received by the actual intended recipients – additional measures such as those provided for in Latvian law, might be justified and proportionate.

I note that a specific question concerning precisely that issue was put to all the parties. (49)

In their answers to that question, the applicant and the Commission state that the exemption certificate contains all the information required to ensure that the purchasers of the goods at issue are in fact the persons referred to in Article 12 of Directive 2008/118.

However, it must be observed that, in their respective answers, neither the Latvian Government nor the Spanish Government explained how the requirement of payment by non-cash means provided additional information that would not be available to the tax authorities on the basis of the exemption certificate. Those governments consider that payment by non-cash means would enable the tax administration to prove in another way that the supplier has carried out the transaction for the benefit of a particular recipient, which is generally the payer. Thus, the person making the payment is clearly identified (by his or her name, and the number of his or her bank account or bank card) and it is confirmed that that person is the recipient of the goods and has made the payment directly to the supplier.

The fact remains, however, that that information already appears on the exemption certificate and can be identified clearly and unambiguously. (50) Thus, the data concerning the identity of the purchaser and the total price of the goods already appear on that certificate, together with the quantity of goods purchased and the type and individual price of each of the goods, none of which can be determined by a simple payment receipt. Consequently, like the Commission, I take the view that information providing proof of payment might, in the present case, make it possible to confirm the accuracy of the information appearing on that certificate, through a comparison of the two sources of information, but it does not provide any additional information.

I therefore consider that, by its content alone, the exemption certificate is, on the face of it, sufficient to enable compliance with the exemption conditions laid down in Article 12 of Directive 2008/118 and the objectives pursued by that directive to be checked.

This leads me on to examine, next, whether, in the context of the implementation of the excise duty exemption arrangements and bearing in mind the discretion afforded to the Member States, the additional measures adopted by the Latvian legislature might possibly be justified.

89.According to the Latvian Government, those additional measures are justified in particular because of the method of exemption that the Latvian legislature chose. That government observes that, unlike the refunding of excise duty, which enables the tax administration to ensure that the duty has been refunded to diplomatic and consular missions, where exemption of that duty is applied the tax authorities might not have the same opportunity to carry out checks.

90.I consider that the following observations should be made on the answer provided by the Latvian Government.

91.First, the Latvian Government appears to acknowledge not only that it is possible for Member States to opt for different systems of exemption, but also that if Latvia had chosen the excise duty refund model that would have allowed it, in principle, to ensure that the exemption arrangements were properly applied without the need for additional measures. I consider that this acknowledgement constitutes, on the face of it, important evidence that the Latvian legislation might be unjustified.

92.I note, moreover, that, under Article 51(3) of Implementing Regulation No 282/2011, even if the exemption is granted in the form of a refund this is done on the basis of the same exemption certificate, and that the certificate is to be attached to the request for refund submitted to the Member State concerned, without any additional formality. (51) It appears therefore, as regards exemption, that it is to be carried out under an arrangement for suspension or refunding of excise duty, the form and content of the exemption certificate remaining unchanged, whilst retaining the same probative value.

93.Although it seems clear that where excise duty is refunded the host Member State has a greater degree of control, since refunding assumes, in principle, that the identity of the recipient of the funds is checked before it takes place, in its answer to the written questions the Latvian Government did not provide any evidence to show that, in the case of suspension of excise duty, the exemption certificate would not allow the necessary monitoring to take place in order to ensure that the exemption arrangements were properly applied and to ensure the absence of fraud and abuse, thereby justifying additional measures such as those put in place by the Latvian legislature.

94.Second, the arguments put forward by the Latvian Government in order to justify the additional measures are based on Article 72 of Ministru kabineta noteikumi Nr 908 ‘Kārtība, kādā piemēro pievienotās vērtības nodokļa 0 procentu likmi preču piegādēm un pakalpojumiem, kas sniegti diplomātiskajām un konsulārajām pārstāvniecībām, starptautiskajām organizācijām, Eiropas Savienības institūcijām un Ziemeļatlantijas līguma organizācijai (NATO), un kārtība, kādā atmaksā akcīzes nodokli par Latvijas Republikā iegādātajām akcīzes precēm un piemēro akcīzes nodokļa atbrīvojumu’ (Cabinet Regulation No 908 Procedures for the application of the zero per cent Value Added Tax rate to supply of goods and services provided to diplomatic and consular missions, international organisations, European Union institutions and the North Atlantic Treaty Organisation (NATO), and procedures for the refund of excise duty for excisable goods purchased in the Republic of Latvia and application of the exemption from excise duty) (52) authorising diplomatic and consular missions to use the exemption certificate without prior approval of the Latvian tax authorities for a period not exceeding 36 months. (53)

95.However, the Latvian Government does not explain how that option offered by the national law would specifically undermine the application of the exemption arrangements, by increasing the risk of fraud or abuse, for example. Nor does that government manage to explain why, in that case, the exemption certificate on its own would be insufficient for the conditions laid down by Latvian law to be met. I would point out in that regard that, as explained in point 52 of this Opinion, the fact that a Member State dispenses the recipient from the requirement to have the certificate stamped by its competent authorities does not mean that the diplomatic or consular mission qualifying for the exemption is not required to complete the certificate and certify its content.

96.It must also be noted that if the Latvian Government considers that such a dispensation from approval might undermine the proper operation of the exemption arrangements, that government may at any time decide to withdraw that measure, under Article 51(2) of Implementing Regulation No 282/2011, which provides that the dispensation may be withdrawn in the case of abuse.

97.Third and lastly, I note, that the Latvian Government justifies the measures taken on grounds of the need to ensure more effective verification by the customs authorities. In that connection, it is argued that, because of the impossibility of carrying out monitoring in respect of diplomatic and consular missions, such checks may only be carried out in respect of traders liable to pay excise duty or responsible for applying exemption of that duty, in particular where dispensation from the abovementioned prior authorisation has been granted.

98.I note nonetheless that both EU law and Latvian law provide that exemption certificates must be drawn up in duplicate and one copy must be kept by the consignor as part of his or her records. That rule enables the Latvian authorities to carry out effective checks, from the point when the exemption certificate in question bears official certification of the purchase until actual use by the diplomatic and consular missions concerned.

99.I also note that, under EU law, the Latvian Government has several ways in which it may adapt its excise duty exemption arrangements, including the one referred to in point 96 of this Opinion, which involves withdrawing certain facilities granted to diplomatic and consular missions if that government suspects any risk of abuse or fraud. In that regard, I should point out that neither the Latvian tax authorities nor the referring court have claimed the existence of any abuse or fraud on the part of the applicant. Accordingly, as the referring court states, the National Tax Authority casts no doubt either on the fact that the goods at issue were actually supplied to embassies and consular services or the fact that the other conditions laid down by Directive 2008/118 and the Law on Excise Duty were complied with.

100.Lastly, it should be pointed out that the same exemption certificate is also used in the context of the arrangements for VAT exemption provided for in Article 151(2) of Directive 2006/112.

101.According to the Court’s well-established case-law in matters of VAT, a national measure which, in essence, makes the right of exemption subject to compliance with formal obligations, without any account being taken of the substantive requirements and, in particular, without any consideration being given as to whether those requirements have been satisfied, goes further than is necessary to ensure the correct levying and collection of the tax. (54)

102.Like the Commission, I note that that case-law has also been applied by the Court with regard to the exemption of energy products from excise duty. (55) According to the Court, formal requirements cannot prevent the grant of exemption unless non-compliance with such formal requirements would effectively prevent the production of conclusive evidence that the substantive requirements have been satisfied. (56)

103.In addition, I note that, according to the settled case-law of the Court, in the sphere of VAT, an abusive practice can be found to exist only if two conditions are satisfied, namely, first, the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of Directive 2006/112 and the national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions and, second, it is apparent from a number of objective factors that the essential aim of the transactions concerned is solely to obtain that tax advantage. (57) If such reasoning with regard to excise duty is transposed to the case in the main proceedings, it is clear, on the basis of the description of the facts contained in the order for reference, that the actual recipients of the goods at issue were diplomatic and consular missions and that, as a result, the taxable person/warehousekeeper does not appear to have derived any advantage from those transactions.

104.In the light of the above, I consider that that well-established case-law of the Court regarding VAT exemption should be applied by analogy in the case in the main proceedings in order to ensure the uniform application of EU law and the effectiveness of Directive 2008/118.

105.In those circumstances, and subject to the verifications which it is for the referring court to carry out to ensure that the exemption certificate used in the case in the main proceedings contains both the information needed in order to permit effective checks by the Latvian authorities and the certification of the content of the exemption certificate by the diplomatic or consular missions concerned, it would appear to me that national legislation such as that at issue in the main proceedings goes beyond what is necessary to ensure the prevention of abuse or fraud concerning excise duty.

106.In the light of the above considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia) as follows:

(1) Article 12(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as meaning that it does not require, in order for the exemption for which it provides to be granted, that payment for excise goods intended to be used in the context of diplomatic or consular relations is to be made by non-cash means, that payment has actually been made to the supplier and that it has been made by the actual recipients of those goods, in so far as evidence of the intended use of those goods in the context of diplomatic or consular relations may be established, inter alia, on the basis of the exemption certificate.

(2) Article 12(2) of Directive 2008/118 precludes national legislation under which excise duty exemption must be refused on the grounds that the purchaser has not actually paid for the excise goods by non-cash means, without its being possible to prove, inter alia on the basis of the exemption certificate, that the conditions for exemption laid down in Article 12(1) of that directive are met.

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1 Original language: French.

2 Council Directive of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

3 United Nations Treaty Series, Vol. 500, p. 95.

4 United Nations Treaty Series, Vol. 596, p. 261.

5 Council Directive of 19 October 1992 on the harmonisation of the structures of excise duty on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21).

6 Council Directive of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (OJ 1992 L 316, p. 29).

7 Council Directive of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40).

8 Council Directive of 19 October 1992 on the approximation of taxes on cigarettes (OJ 1992 L 316, p. 8).

9 Council Directive of 19 October 1992 on the approximation of taxes on manufactured tobacco other than cigarettes (OJ 1992 L 316, p. 10).

10 Council Implementing Regulation of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ 2011 L 77, p. 1).

11 Council Directive of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

12 Latvijas Vēstnesis, 2003, No 161.

13 The term ‘diplomatic and consular missions’ used in this Opinion covers diplomatic and consular representations, international organisations and military missions located in a Member State.

14 See, to that effect, point 83 of this Opinion.

15 See judgment of 26 March 2015, Litaksa (C‑556/13, EU:C:2015:202, paragraph 23 and the case-law cited).

16 See recitals 2, 8 and 10 of Directive 2008/118.

17 See, to that effect, Article 14(3) of Directive 2008/118.

18 See, to that effect, Article 12(2) of Directive 2008/118.

19 See, to that effect, Article 13(2) of Directive 2008/118 and Article 51 of Implementing Regulation No 282/2011.

20 See, to that effect, Annex II to Implementing Regulation No 282/2011, box 1 of the exemption certificate and explanatory notes.

21 See, to that effect, Annex II to Implementing Regulation No 282/2011, box 5 of the exemption certificate and explanatory notes.

22 See, to that effect, Annex II to Implementing Regulation No 282/2011, box 3 of the exemption certificate and explanatory notes.

23 See, to that effect, Annex II to Implementing Regulation No 282/2011, box 4 of the exemption certificate and explanatory notes.

24 See, to that effect, Annex II to Implementing Regulation No 282/2011, box 6 of the exemption certificate and explanatory notes.

25 See, for example, the exemption certificate used in France, available at: https://www.diplomatie.gouv.fr/IMG/pdf/Certificat_d_exoneration_de_la_TVA_et_des_droits_d_accises_f1_cle41f1f4.pdf.

26 In most Member States, the Protocol Department of the Ministry of Foreign Affairs is responsible for this task.

27 In cases where exemption concerns a military mission stationed in the host Member State.

28 See, to that effect, Article 51(2) of Implementing Regulation No 282/2011 and point 7 of the explanatory notes to Annex II to that implementing regulation.

29 See, to that effect, Article 51(3) of Implementing Regulation No 282/2011.

30 It is also stated in the explanatory notes to Annex II to Implementing Regulation No 282/2011 that the exemption certificate is to be drawn up in duplicate; one copy is to be kept by the consignor whilst the second copy must accompany the movement of the goods subject to excise duty.

31 See, to that effect, point 50 of this Opinion.

32 Some Member States require the exemption certificate to contain both the signature of the Head of Mission (or of the person to whom the Head of Mission has delegated the appropriate power) and the presence of the seal of the diplomatic representation. See, for example, the Lithuanian excise duty exemption arrangement (https://urm.lt/default/en/value-added-tax-and-excise-duty-exemptions).

33 The minimum purchase giving entitlement to exemption from excise duty or VAT may vary depending on the goods concerned between the various Member States. For example, it has been set at EUR 80 per transaction in the case of the Republic of Finland (https://www.vero.fi/en/detailed-guidance/guidance/48591/exemptions-from-excise-duties-diplomatic-missions-diplomats-consuls-international-organisations-and-institutions-of-the-european-union/), between EUR 120 and EUR 240 per transaction in the case of the Grand Duchy of Luxembourg (see, to that effect, Article 2 and Article 4(1) of the Grand-Ducal Regulation of 7 February 2013 on the duty-free allowances and VAT exemptions granted to diplomatic missions and consular posts, and to diplomatic agents, consular officials and chancery agents (<i>Mémorial</i> A 2013, No 24, ‘the Grand-Ducal regulation’)), and at EUR 250 per transaction in the case of the Hellenic Republic (see, to that effect, Article 3(h) of Ministerial Decision POL.1268/30.12.2011 as amended by Ministerial Decision A 1144/25.06.2021 (FEK B’ 2821/30-06-2021)).

34 See, for example, in Hungarian law, Paragraph 7(1) of the egyes, az általános forgalmi adót és a jövedéki adót érintő kiváltságok, kedvezmények és mentességek érvényesítésének végrehajtásáról szóló 11/2010. (III. 31.) PM rendelet (Decree of the Minister of Finance No 11/2010 (III. 31) concerning the implementation of certain privileges, facilities and immunities relating to value added tax and excise duty) which states that an application for a refund of excise duty must be submitted between 1 January and 30 September of the year following the purchase of the goods in respect of which exemption from VAT or excise duty is applied for.

35 By way of example, the Finnish arrangements lay down specific guidance regarding the use of alcohol purchased for official purposes by diplomatic and consular missions. The consumption of alcohol must take place at the premises of those bodies and may only be offered free of charge to a specified group of guests invited by an ambassador or another member of the diplomatic or consular mission (see, to that effect: https://www.vero.fi/en/detailed-guidance/guidance/48591/exemptions-from-excise-duties-diplomatic-missions-diplomats-consuls-international-organisations-and-institutions-of-the-european-union/).

36 The number of copies may therefore vary between three for the Grand Duchy of Luxembourg (see to that effect Article 7(1) of the Grand-Ducal regulation) and four for the French Republic (see, to that effect, exemption certificate issued by the French Government: https://www.diplomatie.gouv.fr/IMG/pdf/Certificat_d_exoneration_de_la_TVA_et_des_droits_d_accises_f1_cle41f1f4.pdf).

37 See judgments of 18 December 1997, <i>Molenheide and Others</i> (C‑286/94, C‑340/95, C‑401/95 and C‑47/96, EU:C:1997:623, paragraph 46), and of 22 October 2015, <i>Impresa Edilux and SICEF </i> (C‑425/14, EU:C:2015:721, paragraph 29 and the case-law cited).

38 See judgment of 29 June 2017, <i>Commission</i> v <i>Portugal</i> (C‑126/15, EU:C:2017:504, paragraph 64 and the case-law cited).

39 See judgment of 10 July 2008, <i>Sosnowska</i> (C‑25/07, EU:C:2008:395, paragraph 22 and the case-law cited).

40 See judgment of 29 June 2017, <i>Commission</i> v <i>Portugal</i> (C‑126/15, EU:C:2017:504, paragraph 59).

41 See judgment of 29 June 2017, <i>Commission</i> v <i>Portugal</i> (C‑126/15, EU:C:2017:504, paragraph 62).

42 See judgment of 26 January 2021 (C‑422/19 and C‑423/19, EU:C:2021:63).

43 C‑544/19, EU:C:2020:931.

44 See judgment of 26 January 2021 (CEU:C:2021:63, paragraphs 72 to 76).

45 See judgment of 26 January 2021, <i>Hessischer Rundfunk</i> (C‑422/19 and C‑423/19, EU:C:2021:63, paragraph 77).

46 Opinion of Advocate General Richard de la Tour in <i>ECOTEX BULGARIA</i> (C‑544/19, EU:C:2020:931.

47 See point 83 of the Opinion of Advocate General Richard de la Tour in <i>ECOTEX BULGARIA</i> (C‑544/19, EU:C:2020:931).

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54See judgment of 27 September 2007, Collée (C‑146/05, EU:C:2007:549, paragraph 29).

55See judgment of 2 June 2016, Polihim-SS (C‑355/14, EU:C:2016:403, paragraph 62).

56See judgment of 27 September 2007, Collée (C‑146/05, EU:C:2007:549, paragraph 31).

57See judgment of 10 July 2019, Kuršu zeme (C‑273/18, EU:C:2019:588, paragraph 35 and the case-law cited).