No waiver of excise duties is provided in case of an irregular delivery to another Member States even if the transportation documents have proven to be falsified by third parties and the authorised warehousekeeper, practicing due care, may not have been aware of the fraud.
The European Court of Justice held in a number of decisions that authorised warehousekeepers are strictly liable for any irregularities relating to excise products. The most recent judgement in case C-323/22. has just confirmed the established practice.
The plaintiff dispatched 196 consignments of mineral oils (diesel oil and petrol) from Italy with a Slovenian destination. The Slovenian and the Italian authorities however established that only 35 of those consignments had in fact been delivered into Slovenian territory whereas the remaining 161 consignments were accompanied by false documents. In the criminal procedure, initiated by the authorities, the court found that the accompanying documents were falsified by third parties and the plaintiff’s participation in the offence is not proved.
The Italian authorities referred to the harmonized rules on excise duties and established that the 161 consignments concerned with the irregularity are deemed to be entered into free circulation in Italy and levied excise duty thereon. The plaintiff challenged the decision on the ground that the ‘loss’ of consignments are resulting from a force majeure for which tax-exemption is provided. The European Cour of Justice did not accept this interpretation highlighting that only the physical disappearance of a product in the course of its production, processing, storage or movement constitutes a ‘loss’ within the meaning of the Excise Directive, whereas the irregular transportation of excise products may not fall under this category. Therefore, the authorised warehousekeeper may not refer to force majeure in the case of irregular departure even if the transportation documents have been falsified by third parties and the authorised warehousekeeper, practicing due care, may not have been aware of that fraudulent behaviour.