Judgment summary
This reference for a preliminary ruling from the Consiglio di Stato (Council of State, Italy) concerned Centro Petroli Roma Srl and a decision by the Agenzia delle Dogane e dei Monopoli (ADM) suspending the company's licence to operate a commercial warehouse under the tax warehouse regime for excise goods (paras 1-2, 19-20).
The ADM suspended the licence on the ground that Centro Petroli Roma failed to satisfy conditions in Article 23(4) of Legislative Decree No 504/1995, concerning operational and supply needs and a minimum quantity of products subject to a reduced excise duty rate over a two-year period (para 20).
The referring court had previously made a first reference (C-597/21), in which the Court of Justice, by order of 15 December 2022, addressed the acte clair doctrine and the obligation on courts of last instance to refer questions under Article 267 TFEU (paras 25-35). Following that order, the Consiglio di Stato made a further reference, asking whether Articles 101 to 106 TFEU, the 'Services' Directive and Directive 2008/118/EC precluded the Italian legislation, and also raising, in its reasoning, the compatibility with EU law of Italian judicial liability rules under Law No 117/1988 (paras 36-44).
The Court held that the questions were inadmissible as regards Articles 101 to 106 TFEU because the referring court had not explained the relevance of those articles to the dispute (paras 59-63). The Court found the 'Services' Directive inapplicable because the national legislation fell within the field of taxation, excluded from that directive's scope by Article 2(3) (paras 70-73).
Examining the questions solely under Article 16(1) of Directive 2008/118, the Court held that Member States have a margin of discretion to set conditions for the authorisation and operation of tax warehouses, provided those conditions pursue the objective of preventing evasion or abuse, and provided the principle of proportionality is observed (paras 78-82, 92).
Background
Centro Petroli Roma Srl, an Italian company engaged in the production, processing and marketing of energy products, obtained on 17 February 2016 a licence to operate a commercial warehouse under the tax warehouse regime (paras 18-19).
By Decision No 13042/RU of 25 February 2020, the ADM suspended that licence for failure to comply with the conditions in Article 23(4) of Legislative Decree No 504/1995, relating to the operational and supply needs of the installation and the minimum quantity of products subject to a reduced excise duty rate over a two-year period (para 20).
Centro Petroli Roma challenged the suspension decision and ADM Circular No 14/D of 4 December 2017 before the Tribunale amministrativo regionale per il Lazio, which dismissed the action on 16 February 2021 (paras 21-22). The company then appealed to the Consiglio di Stato, arguing that Article 23 of Legislative Decree No 504/1995 was incompatible with the 'Services' Directive, Directive 2008/118 and FEU Treaty competition rules, and asked that the relevant provisions be disapplied or that a reference be made to the Court of Justice (paras 23-24).
Core dispute
The core question was whether Article 23(3) and (4) of Legislative Decree No 504/1995, which conditions authorisation to operate smaller commercial warehouses under the tax warehouse regime on 'actual operational and supply needs of the installation' plus either a 30% minimum quantity/export threshold or a dependency relationship with another tax warehouse, is compatible with Articles 101 to 106 TFEU, the 'Services' Directive and Directive 2008/118/EC, in particular Article 16(1) of the latter (paras 44, 69).
The referring court also raised, in the context of admissibility, doubts about the compatibility with EU law of the Italian system of civil liability of judges under Law No 117/1988, insofar as failure to make a reference for a preliminary ruling could be taken into account in assessing manifest infringement of EU law by a court of last instance (paras 28-30, 36-41, 46).
Court findings
The Court found that the questions referred were inadmissible in so far as they related to Articles 101 to 106 TFEU, because the referring court had not provided concrete explanation of the relevance of those articles to the dispute or the link between them and the national legislation, as required by Article 94(c) of the Rules of Procedure (paras 59-63).
The Court found that the 'Services' Directive did not apply to the dispute, since under Article 2(3) that directive does not apply to the field of taxation, and the national legislation at issue implemented Article 16(1) of Directive 2008/118, itself adopted on the basis of Article 93 EC (now Article 113 TFEU), a taxation legal basis (paras 70-73).
As to the plea of inadmissibility raised by the Italian Government concerning the request as a whole, the Court held that the referring court had indicated in a precise manner the reasons why an answer was necessary to resolve the dispute, so the plea could not be upheld; the Court also recalled that the establishment of a system of judicial liability falls within Member States' competence subject to EU law, that such liability must arise only in completely exceptional cases of serious and totally inexcusable conduct, and that individual liability of judges of a court of last instance which complied with the obligation to state reasons cannot be incurred solely because they did not grant a request for a reference (paras 45-58).
On the second question, the Court rejected the Italian Government's objection that it was inadmissible as unnecessary, since Article 23(4)(a) and (b) of the legislative decree are alternative conditions and it was not shown that the applicant could not rely on subparagraph (b) before the referring court (paras 64-68).
On the substance, the Court held that Article 16(1) of Directive 2008/118 leaves Member States a margin of discretion to determine conditions for authorisation and operation of a tax warehouse, provided the measures pursue the objective of preventing evasion and abuse, and provided the general principle of proportionality is respected (paras 78-82). It found the criteria at issue (actual operational and supply needs, 30% threshold, dependency relationship) appropriate in principle to attain that objective, but noted that the imprecision of the 'actual operational and supply needs' criterion leaves a wide margin of discretion to customs authorities, and it is for the referring court to verify that this criterion is not used to refuse authorisation on grounds unrelated to the warehousekeeper's reliability or the economic reality of the storage activity (paras 87-89). The Court left it to the referring court to assess necessity and proportionality in the strict sense (paras 90-91).
Outcome
The Court ruled that Article 16(1) of Directive 2008/118/EC, as amended by Directive (EU) 2019/475, must be interpreted as not precluding national legislation, supplemented as the case may be by implementing measures, which makes authorisation to manage commercial warehouses for liquefied petroleum gas with a capacity of less than 400 cubic metres and commercial warehouses for other energy products with a capacity of less than 10 000 cubic metres under the tax warehouse regime subject to the existence of 'actual operational and supply needs of the installation' and to the alternative condition of either the 30% withdrawal threshold or the dependency relationship with another tax warehouse, provided that the principle of proportionality is observed (para 92 and operative part).
The decision on costs was left to the referring court, as the proceedings constituted a step in the action pending before it (para 93).
Major issues / areas of contention
- Whether Article 16(1) of Directive 2008/118/EC precludes national legislation conditioning tax warehouse authorisation for smaller commercial warehouses on 'actual operational and supply needs of the installation'.
- Whether the additional alternative criteria of a 30% minimum quantity/export threshold or a dependency relationship with another tax warehouse under Article 23(4)(a) and (b) of Legislative Decree No 504/1995 are compatible with Directive 2008/118/EC.
- Whether the 'Services' Directive applies to national tax warehouse authorisation rules, given its exclusion of taxation matters under Article 2(3).
- Whether the questions referred concerning Articles 101 to 106 TFEU were admissible given the lack of explanation of their relevance to the dispute.
- Whether the Italian system of civil liability of judges under Law No 117/1988, which takes into account failure to make a preliminary reference, is compatible with Article 267 TFEU and judicial independence.
- Whether the referring court, as a court of last instance, could rely on the acte clair exception without being required to establish in detail that other courts and the Court of Justice would reach the same interpretation.
- Whether the second question referred, concerning Article 23(4)(b) of the legislative decree, was admissible given that the suspension decision was expressly based on other provisions.