ECLI:EU:T:2026:426

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JUDGMENT OF THE GENERAL COURT (Second Chamber, sitting with five Judges)

1 July 2026 (*)

( Reference for a preliminary ruling – Taxation – Excise duties – Article 27(1) and (2) of Directive 92/83/EEC – Article 7(1), Article 7(2)(a), Article 20(2) and Article 30 of Directive 2008/118/EC – Irregularity occurring during the movement of excise goods – Movement of goods under a duty suspension arrangement – Levying of excise duty due to the absence of an accompanying document specific to excise goods )

In Case T‑361/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Finanzgericht Düsseldorf (Fiscal Court, Düsseldorf, Germany), made by decision of 22 April 2025, received at the Court on 13 May 2025, in the proceedings

Brenntag GmbH

Hauptzollamt Duisburg,

THE GENERAL COURT (Second Chamber, sitting with five Judges),

composed of N. Półtorak, President, G. Hesse (Rapporteur), G. Steinfatt, D. Petrlík and I. Dimitrakopoulos, Judges,

Advocate General: M. Brkan,

Registrar: V. Di Bucci,

having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 4 June 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,

having regard to the fact that the case concerns the area referred to in point (b) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,

having regard to the written part of the procedure,

after considering the observations submitted on behalf of:

– Brenntag, by S. Benz and H. Richter, Rechtsanwälte,

– Hauptzollamt Duisburg, by B. Berger, L. Gorschütz, M. Schwenn and H. Tulowitzki, acting as Agents,

– the European Commission, by M. Björkland and C. Vollrath, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 7(1), Article 7(2)(a), Article 20(2) and Article 30 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) and Article 27(1) and (2) of Council Directive 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).

2 The request has been made in proceedings between Brenntag GmbH and the Hauptzollamt Duisburg (Principal Customs Office, Duisburg, Germany) (‘the Customs Office’) concerning the determination of excise duty in respect of alcohol that Brenntag had had supplied to its customers in 2016.

Legal framework

European Union law

Directive 92/83

3 Article 27(1) and (2) of Directive 92/83 provides:

‘1. Member States shall exempt the products covered by this Directive from the harmonised excise duty under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse:

(a) when distributed in the form of alcohol which has been completely denatured in accordance with the requirements of any Member State, such requirements having been duly notified and accepted in accordance with paragraphs 3 and 4 of this Article. This exemption shall be conditional on the application of the provisions of [Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1)] to commercial movements of completely denatured alcohol;

(b) when both denatured in accordance with the requirements of any Member State and used for the manufacture of any product not for human consumption;

(d) when used for the production of medicines defined by [Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products (OJ, English Special Edition: Series I Volume 1965-1966, p. 20)];

(e) when used for the production of flavours for the preparation of foodstuffs and non-alcoholic beverages with an alcohol strength not exceeding 1.2% vol.;

(f) when used directly or as a constituent of semi-finished products for the production of foodstuffs, filled or otherwise, provided that in each case the alcoholic content does not exceed 8.5 litres of pure alcohol per 100 kg of the product for chocolates, and 5 litres of pure alcohol per 100 kg of the product for other products.

2. Member States may exempt the products covered by this Directive from the harmonised excise duty under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse, when used:

(a) as samples for analysis, for necessary production tests, or for scientific purposes;

(b) for scientific research;

(d) in a manufacturing process provided that the final product does not contain alcohol;

(e) in the manufacture of a component product which is not subject to excise duty under this Directive.’

Directive 2008/118

4 Directive 2008/118 was repealed by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4). Nevertheless, it is applicable ratione temporis to the facts of the dispute in the main proceedings.

5 Recital 8 of Directive 2008/118 was worded as follows:

‘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 Community level when excise goods are released for consumption and who the person liable to pay the excise duty is.’

6 Article 4 of Directive 2008/118 stated:

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

1. “authorised warehousekeeper” means a natural or legal person authorised by the competent authorities of a Member State, in the course of his business, to produce, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse;

…

7. “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;

…

11 “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.’

7 Article 7(1) and (2) of Directive 2008/118 provided:

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

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

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

(b) the holding of excise goods outside a duty suspension arrangement where excise duty has not been levied pursuant to the applicable provisions of Community law and national legislation;

(d) the importation of excise goods, including irregular importation, unless the excise goods are placed, immediately upon importation, under a duty suspension arrangement.’

8 Article 17(1) and (2) of Directive 2008/118 provided as follows:

‘1. Excise goods may be moved under a duty suspension arrangement within the territory of the Community, including where the goods are moved via a third country or a third territory:

(a) from a tax warehouse to:

(i) another tax warehouse;

(ii) a registered consignee;

…

2. By way of derogation from paragraph 1(a)(i) and (ii) and (b) of this Article, and except in the situations referred to in Article 19(3), the Member State of destination may, under the conditions which it lays down, allow excise goods to be moved under a duty suspension arrangement to a place of direct delivery situated on its territory, where that place has been designated by the authorised warehousekeeper in the Member State of destination or by the registered consignee.

That authorised warehousekeeper or that registered consignee shall remain responsible for submitting the report of receipt referred to in Article 24(1).’

9 Under Article 20 of Directive 2008/118:

‘1. The movement of excise goods under a duty suspension arrangement shall begin, in the cases referred to in Article 17(1)(a) of this Directive, when the excise goods leave the tax warehouse of dispatch, and in the cases referred to in its Article 17(1)(b) upon their release for free circulation in accordance with Article 79 of [Council] Regulation (EEC) No 2913/92 [of 12 October 1992 establishing the Community Customs Code (OJ 1991 L 302, p. 1)].

2. The movement of excise goods under a duty suspension arrangement shall end, in the cases referred to in Article 17(1)(a)(i), (ii) and (iv) and Article 17(1)(b), when the consignee has taken delivery of the excise goods and, in the cases referred to in Article 17(1)(a)(iii), when the goods have left the territory of the Community.’

10 Pursuant to Article 21(1) to (3) of Directive 2008/118:

‘1. A movement of excise goods shall be considered to take place under a duty suspension arrangement only if it takes place under cover of an electronic administrative document processed in accordance with paragraphs 2 and 3.

2. For the purposes of paragraph 1 of this Article, the consignor shall submit a draft electronic administrative document to the competent authorities of the Member State of dispatch using the computerised system referred to in Article 1 of Decision No 1152/2003/EC [of the European Parliament and of the Council of 16 June 2003 on computerising the movement and surveillance of excisable products (OJ 2003 L 162, p. 5)] (hereinafter “the computerised system”).

3. The competent authorities of the Member State of dispatch shall carry out an electronic verification of the data in the draft electronic administrative document.

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.’

11 Article 30 of Directive 2008/118 stated:

‘Member States may establish simplified procedures in respect of movements of excise goods under a duty suspension arrangement which take place entirely on their territory, including the possibility to waive the requirement of electronic supervision of such movements.’

German law

12 Paragraph 142 of the Gesetz über das Branntweinmonopol (Branntweinmonopolgesetz – BranntwMonG) (Law on the monopoly on spirits) of 8 April 1922 (RGBl. 1922 I, p. 335, 405), in its consolidated version (BGBl., III, No 612‑7), as amended by Article 1 of the Law of 21 June 2013 (BGBl. 2013 I, p. 1650) (‘the BranntwMonG’) provided, inter alia:

‘(1) “Irregularity” shall mean a situation occurring during a movement under a duty suspension arrangement, with the exception of the cases referred to in Paragraph 143(3), due to which the movement, or a part of the movement, cannot be duly ended.

(2) If irregularities occur during the movement of goods within the meaning of Paragraphs 139 to 141 within the fiscal territory, the goods concerned shall be removed from the duty suspension arrangement.

…’

13 Paragraph 143 of the BranntwMonG provided, inter alia:

‘(1) Excise duty shall become chargeable at the time the goods are released for consumption, unless an exemption from that duty subsequently applies.

(2) Goods shall be released for consumption in the case of:

1. departure from the tax warehouse, unless another duty suspension arrangement subsequently applies; consumption in the tax warehouse is equivalent to a departure;

…

5. an irregularity within the meaning of Paragraph 142 during movement under a duty suspension arrangement.

…’

14 Paragraph 152 of the BranntwMonG provided, inter alia, that:

‘(1) Goods shall be exempt from excise duty when they are used for commercial purposes

1. for the manufacture of medicinal products by persons authorised to do so under pharmaceutical legislation, with the exception of pure mixtures of alcohol and water;

2. without denaturation, in the manufacture of vinegar;

3. after denaturation, in the manufacture of products that are neither medicinal products nor foodstuffs;

4. after denaturation, for heating, cleaning or other purposes that are not related to the manufacture of goods;

5. without denaturation, in the manufacture of flavours for flavouring

(a) beverages containing no more than 1.2% by volume of alcohol;

(b) other foodstuffs, with the exception of spirits and other alcoholic beverages;

…’

15 Under Paragraph 26(7) of the Verordnung zur Durchführung des Branntweinmonopolgesetzes (Branntweinsteuerverordnung – BrStV) (Regulation on excise duty on spirits) of 5 October 2009 (BGBl. 2009 I, p. 3262, 3280), as last amended by Article 9 of the Law of 3 December 2015 (BGBl. 2015 I, p. 2178) and repealed with effect from 1 January 2018 (‘the BrStV’):

‘(7) ¹ If, during the movement of goods under a duty suspension arrangement, the consignee is a tax warehousekeeper established in the fiscal territory who subsequently moves the goods under a duty suspension arrangement into another tax warehouse situated in the fiscal territory or to the premises of a user (Paragraph 153(1) of this Regulation) established in the fiscal territory, the Principal Customs Office may, upon request and subject to withdrawal, allow the goods to be deemed to have been received in its tax warehouse and simultaneously to have departed from that warehouse as soon as the consignee has acquired possession of them in the fiscal territory. ² That is without prejudice to the provisions on movements under a duty suspension arrangement.’

16 Paragraph 28 of the BrStV provided, inter alia:

‘(1) ¹ In the case of movements of goods under a duty suspension arrangement to users’ premises (Paragraph 153(1) of this Regulation), the tax warehousekeeper established in the fiscal territory, as consignor, or the registered consignor shall use the accompanying document from the place of import in the fiscal territory. ² Instead of the accompanying document, the consignor may use a commercial document containing all the information contained in the accompanying document. ³ The consignor shall affix to the commercial document the words “accompanying document for the movement of excise goods under a duty suspension arrangement”.

…

(7) ¹ The accompanying documents referred to in subparagraph 1 … shall not be required under the conditions laid down in the first sentence of subparagraph 8, provided that the following goods are being moved:

1. spirits that have been denatured by the means of denaturation referred to in Paragraph 44 and in Paragraph 50(4) and (5);

…

² The goods shall be deemed to have been received at the consignee’s premises as soon as the consignee has acquired possession of them.

(8) ¹ The consignor shall attach to the goods referred to in subparagraph 7 commercial documents bearing:

1. in the case referred to in subparagraph 7(1)(1), the words:

“This spirit is denatured. Reversal of the denaturing or use for human consumption or for the production of alcoholic beverages, as well as unauthorised trade, shall entail consequences under criminal and tax law.”

…’

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

17 Brenntag is a company incorporated under German law whose activity consists in the marketing of industrial and speciality chemicals. The Customs Office granted it, with effect from 21 January 2011, authorisation to store alcohol under a duty suspension arrangement. Under that authorisation, Brenntag is entitled to use the onward transfer mechanism (weiterbefördern) provided for in Paragraph 26(7) of the BrStV. By that mechanism, the goods are transported directly from Brenntag’s suppliers to its customers established within German fiscal territory, without it being required to make a prior physical delivery of those goods to its tax warehouse. In that context, the onward transfer is to be regarded as the fictitious movement of the goods from Brenntag’s tax warehouse to the tax warehouses of its customers or to the premises of commercial users within the meaning of Paragraph 26(7) of the BrStV.

18 In 2016, Brenntag acquired alcohol from suppliers established in Belgium, Germany, France and Poland (‘the suppliers’), which it partially resold to customers established in Germany. BCD Chemie GmbH, which belonged to the same group as Brenntag, resold some of the alcohol to customers established in Germany. The alcohol was transferred directly from the suppliers’ tax warehouses to Brenntag’s customers or to BCD Chemie’s customers. The transport orders relating to those deliveries were placed by Brenntag, with the exception of five of those deliveries, for which the transport orders were placed by the suppliers, established in Belgium and in Germany.

19 In each case, the suppliers transmitted draft electronic administrative documents prior to the commencement of the movement of alcohol under a duty suspension arrangement. Those documents generally provided, as regards the consignee, the name and address of Brenntag as well as the excise number assigned to it and, as regards the place of delivery, the number of Brenntag’s tax warehouse and the name and address of its or BCD Chemie’s customer established in Germany. By contrast, in respect of 22 deliveries, the electronic administrative documents stated, as regards the consignee and the place of delivery, the name and address of Brenntag as well as its excise number and the number of its tax warehouse. The competent authorities validated the draft electronic administrative documents submitted by the suppliers by assigning a reference code. After the alcohol had been delivered to its customers or to BCD Chemie’s customers, Brenntag sent acknowledgements of receipt to the Customs Office.

20 Following an audit, the Customs Office charged Brenntag EUR 62 633 047.55 by way of excise duty in respect of the abovementioned transactions carried out in 2016. Brenntag lodged an appeal against that decision.

21 The Customs Office dismissed Brenntag’s appeal. In particular, the Customs Office stated that the taking possession by the consignee, in the present case Brenntag, of alcohol moved under a duty suspension arrangement was to be regarded, in accordance with the first sentence of Paragraph 26(7) of the BrStV, as a fictitious receipt in Brenntag’s tax warehouse, simultaneously resulting in a fictitious departure from that warehouse without excise duty becoming chargeable if another movement under that arrangement subsequently took place. After taking possession of the alcohol, the consignee, namely Brenntag, as the new consignor, should have sent a draft electronic administrative document for the onward transfer of the alcohol, otherwise that movement could not have taken place in German fiscal territory under a duty suspension arrangement. The Customs Office found that, in certain cases, Brenntag had not placed the transport orders. It had not therefore indirectly taken possession of the product, which would have led to an irregularity during the movement under a duty suspension arrangement within the meaning of Paragraph 143(2)(5) of the BranntwMonG and, consequently, to a departure from the duty suspension arrangement. The Customs Office also took the view that, in other cases, the failure to submit draft administrative documents in good time and the late issue of invoices had resulted in alcohol leaving its tax warehouse without the application of another duty suspension arrangement. The alcohol was then deemed to have been released for consumption in accordance with Paragraph 143(2)(1) of the BranntwMonG. According to the Customs Office, the determination of excise duty in those circumstances complies with the principle of proportionality, as the requirements concerning the submission of the documentation necessary for the movement of excise goods constitute a substantive condition for movement under a duty suspension arrangement.

22 Against the decision of the Customs Office rejecting its appeal, Brenntag brought an action before the Finanzgericht Düsseldorf (Fiscal Court, Düsseldorf, Germany), which is the referring court.

23 First, the referring court notes that, in cases where Brenntag did not place transport orders for the movement of alcohol from its suppliers to its customers, excise duty could be regarded as having become chargeable, in accordance with Paragraph 143(2)(5) of the BranntwMonG, due to an irregularity occurring during that movement. Although the movement of alcohol from the suppliers’ tax warehouses to Brenntag’s or BCD Chemie’s customers was covered by an electronic administrative document – the suppliers having made use of such a document – the mechanism provided for in the first sentence of Paragraph 26(7) of the BrStV required Brenntag to take possession of the alcohol in German fiscal territory. However, under German law, it is the person who places the transport order who indirectly takes possession of the goods. Since it did not place the transport orders, Brenntag did not therefore indirectly take possession of the alcohol delivered directly to its customers, with the result that, in accordance with the first sentence of Paragraph 26(7) of the BrStV, no fictitious receipt at its tax warehouse nor any fictitious departure of the alcohol from that warehouse took place.

24 Secondly, the referring courts observes that, in the other cases, namely those in which Brenntag did not submit, in good time, the documentation required for the fictitious onward transfer of alcohol under a duty suspension arrangement, which extends from the crossing of the German border by lorries to the delivery of the alcohol to its customers or to those of BCD Chemie, excise duty may be regarded as having become chargeable on the ground that an irregularity occurred during the movement within the meaning of Paragraph 143(2)(5) of the BranntwMonG. According to the referring court, such an irregularity would not, however, have occurred during the movement under a duty suspension arrangement if Brenntag had not been required, in accordance with the first sentence of Paragraph 26(7) of the BrStV, to engage in the fiction, into its tax warehouse, of receipt of the alcohol being moved under that regime and of its departure prior to its fictitious onward transfer to its customers and to those of BCD Chemie.

25 The referring court infers from that that the outcome of the dispute depends on whether Article 7(1), Article 7(2)(a), Article 20(2) and Article 30 of Directive 2008/118 must be interpreted as precluding the application of national legislation such as that provided for in the first sentence of Paragraph 26(7) of the BrStV.

26 The referring court also doubts whether a national authority may refuse to grant an exemption from excise duty on the sole ground of an irregular transmission of the documentation required for the movement of excise goods, without verifying whether the substantive conditions relating to the use of a product benefiting from the exemption from that duty were satisfied.

27 In those circumstances the Finanzgericht Düsseldorf (Fiscal Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are Article 7(1)[, Article 7](2)(a), Article 20(2) and Article 30 of [Directive 2008/118] to be interpreted as precluding the application of [national legislation] according to which, during movements of excise goods under suspension of excise duty into a tax warehouse in a Member State that are transferred by the keeper of the tax warehouse under suspension of excise duty to another tax warehouse in the Member State concerned or to the premises of a commercial user in the Member State concerned, the goods are deemed to have been received into the tax warehouse of the tax warehousekeeper and simultaneously to have departed from it as soon as the latter acquired possession of the goods in the Member State concerned, and the tax warehousekeeper must therefore establish a new duty suspension arrangement?

(2) Is Article 27(1) and (2) of [Directive 92/83] to be interpreted as meaning that the principle of proportionality under EU law precludes the refusal of a tax exemption provided for under those provisions because – under the national [legislation] mentioned in question 1 – in the case of a fictitious onward transfer of excise goods under a duty suspension arrangement, no additional draft of an electronic administrative document was transmitted or, in the case of a movement in a Member State into the premises of commercial users, no accompanying document or commercial document was used that contained a statement specifying that the alcohol had been denatured and that elimination of the denaturing, or use for drinking purposes or for the production of alcoholic beverages, as well as unauthorised trade, would entail consequences under criminal and tax law, notwithstanding the fact that the alcohol was used tax-free for commercial purposes, or was received into the tax warehouse of an authorised person?’

Consideration of the questions referred

The first question

28 By its first question, the referring court asks, in essence, whether Article 7(1), Article 7(2)(a), Article 20(2) and Article 30 of Directive 2008/118 must be interpreted as meaning that, in the context of the movement of excise goods under a duty suspension arrangement to an authorised warehousekeeper established in a Member State, where those goods are not transferred to its tax warehouse but are transferred directly from its suppliers to the tax warehouses of its customers located in the Member State concerned, those provisions preclude national legislation that provides for a legal fiction according to which, at the time when the authorised warehousekeeper acquires possession of the goods, without being physically in possession of them (‘indirect’ taking of possession), in the fiscal territory of the Member State in which it is established, those goods are deemed to have been received by it and simultaneously to have departed from its tax warehouse, thereby requiring that a new duty suspension arrangement be established.

29 In order to answer the first question, it should be noted, in the first place, that, by virtue of Article 2 of Directive 2008/118, the products referred to in Article 1 thereof, which include alcohol covered by Directive 92/83, are to be subject to excise duty at the time of their production within the territory of the European Union or their importation into that territory. While the chargeable event for excise duty is thus the production of the goods concerned within or their importation into that territory, pursuant to Article 7(1) of Directive 2008/118, excise duty becomes chargeable only at the time of their release for consumption (judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 21). The departure of such goods, including irregular departure, from a duty suspension arrangement is considered as a release for consumption pursuant to Article 7(2)(a) of Directive 2008/118.

30 In the second place, under Article 17(1)(a)(i) of Directive 2008/118, excise goods may be moved under a duty suspension arrangement within the territory of the European Union, in particular, from a tax warehouse in one Member State to a tax warehouse in another Member State. It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, although the chargeable event for taxation purposes has already taken place. Consequently, as regards the products subject to excise duty, that arrangement postpones the chargeability of excise duty until one of the conditions of chargeability is met (see judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 22 and the case-law cited).

31 In the third place, by way of derogation from Article 17(1)(a)(i) and (ii) of Directive 2008/118, Article 17(2) of that directive permits Member States, under certain conditions, to allow excise goods to be moved under a duty suspension arrangement to a place of direct delivery situated on their territory. That place, which is separate from the tax warehouse of the consignee, must be designated in advance by the authorised warehousekeeper in the Member State of destination.

32 In that regard, it is apparent from the information provided by the referring court that the Federal Republic of Germany has not made use of the option provided for in Article 17(2) of Directive 2008/118.

33 In the fourth place, Article 20 of Directive 2008/118 determines when the movement of excise goods under a duty suspension arrangement begins and when it ends. Thus, according to Article 20(1) of Directive 2008/118, in the cases referred to in Article 17(1)(a)(i) of that directive, such a movement begins when those goods leave the tax warehouse of dispatch.

34 According to Article 20(2) of Directive 2008/118, in a situation such as that in the main proceedings, where excise goods move under a duty suspension arrangement within the territory of the European Union on the basis of Article 17(1)(a)(i) of that directive, the movement of those goods ends ‘when the consignee has taken delivery of the excise goods’. In that regard, Directive 2008/118 has not defined what is meant by the expression ‘the consignee has taken delivery of the excise goods’. However, the Court of Justice has held, in the light of the wording of that provision, that it was the actual receipt of the goods, as such, by their consignee which was to be taken into account in order to determine the time of their delivery (judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 29).

35 In addition, the Court of Justice has stated that, by specifying when the movement of excise goods under a duty suspension arrangement ends, Article 20(2) of Directive 2008/118 sought to define the time when such goods were deemed to have been released for consumption and to determine, in consequence, the time when the tax on those goods became chargeable (judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 31).

36 As regards the release for consumption and chargeability of excise duty, the expression ‘the departure of excise goods … from a duty suspension arrangement’ in Article 7(2)(a) of Directive 2008/118 refers, as is clear from the case-law, to the physical departure of those goods and not their mere sale, since the chargeability of excise duty, as a tax on consumption, must be very closely linked with the consumer and cannot, therefore, arise as long as the goods in question remain in the tax warehouse of an authorised warehousekeeper (see, to that effect, judgment of 2 June 2016, Polihim-SS, C‑355/14, EU:C:2016:403, paragraphs 48 to 52).

37 It thus follows from the case-law, which makes the chargeability of excise duty subject to the physical departure of the goods from the tax warehouse, that, for the application of Article 20(2) of Directive 2008/118, the movement of excise goods under a duty suspension arrangement can end only at the time of the actual physical receipt of those goods by the consignee relevant to the movement concerned. Accordingly, national legislation that provides for a legal fiction that, at the time when the authorised warehousekeeper takes indirect possession of the excise goods, those goods are deemed to have been received by that warehousekeeper and simultaneously to have departed from its tax warehouse, such as that established in Paragraph 26(7) of the BrStV, cannot have the effect of rendering excise duty chargeable at the time of that fictitious departure, subject to the subsequent application of a new duty suspension arrangement.

38 Lastly, that interpretation is supported by the need to ensure the uniform application of EU law in the Member States. As the Court of Justice has held, it is apparent from recital 8 of Directive 2008/118 that it is 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, and that Directive 2008/118 thus determines, at the European Union level, when excise goods are released for consumption (judgment of 8 February 2018, Commission v Greece, C‑590/16, EU:C:2018:77, paragraph 44). If it is accepted that national legislation provides for a fiction such as that at issue in the main proceedings, a uniform interpretation in all the Member States of the concepts of ‘departure’ and ‘release for consumption’, which determine the time when excise duty becomes chargeable, can no longer be achieved.

39 In the fifth place, according to Article 30 of Directive 2008/118, Member States may establish simplified procedures in respect of movements of excise goods under a duty suspension arrangement which take place entirely on their territory, including by providing the possibility to waive the requirement of electronic supervision of such movements.

40 First of all, it follows from Article 30 of Directive 2008/118 that the possibility, mentioned in paragraph 39 above, provided for by that directive for Member States is limited to movements of excise goods under a duty suspension arrangement that take place entirely within their territory, which excludes cross-border movements under a duty suspension arrangement for excise goods, from tax warehouses situated in other Member States to customers established in the national territory, such as certain movements at issue in the main proceedings.

41 Next, it should be noted that Article 30 of Directive 2008/118 refers only to the procedural aspects applicable to such movements, with the result that that provision cannot govern the substantive conditions relating to the duty suspension arrangement or to the end of movements carried out under that arrangement, which are governed by Article 17(1) and (2) and Article 20(2) of that directive. Those provisions are, moreover, indissociable from the concepts of ‘release for consumption’ and ‘chargeability of excise duty’ referred to in Article 7 of that directive.

42 Lastly, Article 20(2) of Directive 2008/118, which governs the conditions for the end of movements of excise goods under a duty suspension arrangement, is binding on the Member States, with the result that they cannot derogate from it in their national law.

43 It follows that Article 30 of Directive 2008/118 cannot be interpreted as allowing Member States to provide that the mere indirect taking of possession of excise goods by the authorised warehousekeeper of destination is to end, for the purposes of that directive, the movement to its tax warehouse of excise goods under a duty suspension arrangement and to have a new movement begun under a duty suspension arrangement. Such a conclusion is without prejudice to the assessment, which falls solely within the jurisdiction of the referring court, of the effects that national law attaches to the mechanism provided for in the first sentence of Paragraph 26(7) of the BrStV, provided that those effects do not alter either the beginning or the end of the movement under a duty suspension arrangement within the meaning of Directive 2008/118.

44 In the light of all those considerations, the answer to the first question is that Article 7(1), Article 7(2)(a), Article 20(2) and Article 30 of Directive 2008/118 must be interpreted as meaning that, in the context of the movement of excise goods under a duty suspension arrangement to an authorised warehousekeeper established in a Member State, where those goods are not transferred to its tax warehouse but are transferred directly from its suppliers to the tax warehouses of its customers located in the Member State concerned, those provisions preclude national legislation that provides for a legal fiction according to which, at the time when the authorised warehousekeeper acquires possession of the goods, without being physically in possession of them, in the fiscal territory of the Member State in which it is established, those goods are deemed to have been received by it in its tax warehouse and simultaneously to have departed from its tax warehouse, thereby requiring that a new duty suspension arrangement be established.

The second question

45 By its second question, the referring court asks, in essence, whether Article 27(1) and (2) of Directive 92/83 must be interpreted as meaning that the principle of proportionality precludes the refusal of an exemption from excise duty, provided for by that provision, on the ground that the required documentation, under the law of the Member State concerned, is missing during a movement of excise goods, whether it is a fictitious movement provided for by national legislation such as that referred to in the first question or a movement within the national territory to the premises of commercial users, even though those goods have been used for commercial purposes exempt from excise duty or received into the tax warehouse of an authorised person.

46 As a preliminary point, it should be noted that the duty suspension arrangement, governed by Directive 2008/118, and the exemption from excise duty, provided for in Article 27(1) and (2) of Directive 92/83, are subject to different conditions.

47 While Article 21(1) of Directive 2008/118 reserves the benefit of the duty suspension arrangement solely for movements of excise goods carried out under cover of an electronic administrative document, drawn up in accordance with paragraphs 2 and 3 of that article, the exemption from excise duty is subject to separate conditions for application linked to the characteristics and use of those goods, in accordance with Article 27 of Directive 92/83. Furthermore, the concept of ‘receipt in the tax warehouse of an authorised warehousekeeper’, mentioned by the referring court, is unrelated to the conditions for the application of Article 27 of Directive 92/83.

48 It follows from the second question, read in the light of the findings of fact in the order for reference, that the referring court considers that the national legislation at issue in the main proceedings makes the exemption of alcohol subject to the regular transmission of the documentation required for the movement of excise goods, and in particular of the electronic administrative document referred to in Article 21(1) of Directive 2008/118, and of any document provided for by the law of the Member State concerned, such as an accompanying document or a commercial document containing a reference to the denaturation of the alcohol.

49 Irrespective of the fact that, in accordance with the answer to the first question, such a document cannot be required for the fictitious movements referred to in that question, it must be borne in mind that Member States, when exercising their power to lay down the conditions to which the exemptions provided for in Article 27(1) and (2) of Directive 92/83 are subject, must observe the general principles of law which form part of the legal order of the European Union, including, inter alia, the principle of proportionality (see, by analogy, judgment of 27 June 2018, Turbogás, C‑90/17, EU:C:2018:498, paragraph 43).

50 In the event of the absence or irregular transmission of the documentation required for the movement of excise goods at the time of their movement, a Member State cannot refuse the exemption provided for in Article 27(1) and (2) of Directive 92/83 if, in the light of the information available to the competent authorities, the substantive conditions relating to its application are satisfied (see, by analogy, judgment of 27 June 2018, Turbogás, C‑90/17, EU:C:2018:498, paragraph 44).

51 It would be otherwise only if the operator concerned intentionally participated in evasion, avoidance or abuse, or if the absence or, as the case may be, the late or incorrect nature of the documentation that must accompany the excise goods at the time of their movement prevented the production of conclusive evidence that the alcohol had been used for exempt purposes (see, by analogy, judgment of 13 March 2025, Alsen, C‑137/23, EU:C:2025:179, paragraph 68), which it is for the referring court to ascertain.

52 In the present case, the referring court, first, does not indicate any specific evidence capable of arousing suspicions as to the existence of tax evasion, avoidance or fraud and, secondly, appears to take the view that the goods at issue were actually used for exempt purposes.

53 In the light of all the foregoing considerations, the answer to the second question is that Article 27(1) and (2) of Directive 92/83 must be interpreted as precluding national legislation under which exemption from excise duty is refused on the sole ground that the documentation required for the movement of excise goods is missing or was drawn up or transmitted out of time if, first, it is established that those goods were used for exempt purposes and, secondly, there is no evidence capable of arousing suspicions as to the existence of tax evasion, avoidance or fraud.

Costs

54 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the General Court, other than the costs of those parties, are not recoverable.

On those grounds,

THE GENERAL COURT (Second Chamber, sitting with five Judges),

hereby rules:

1. Article 7(1), Article 7(2)(a), Article 20(2) and Article 30 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, in the context of the movement of excise goods under a duty suspension arrangement to an authorised warehousekeeper established in a Member State, where those goods are not transferred to its tax warehouse but are transferred directly from its suppliers to the tax warehouses of its customers located in the Member State concerned, those provisions preclude national legislation that provides for a legal fiction according to which, at the time when the authorised warehousekeeper acquires possession of the goods, without being physically in possession of them, in the fiscal territory of the Member State in which it is established, those goods are deemed to have been received by it in its tax warehouse and simultaneously to have departed from its tax warehouse, thereby requiring that a new duty suspension arrangement be established.

2. Article 27(1) and (2) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages

must be interpreted as precluding national legislation under which exemption from excise duty is refused on the sole ground that the documentation required for the movement of excise goods is missing or was drawn up or transmitted out of time if, first, it is established that those goods were used for exempt purposes and, secondly, there is no evidence capable of arousing suspicions as to the existence of tax evasion, avoidance or fraud.

Półtorak

Hesse

Steinfatt

Petrlík

Dimitrakopoulos

Delivered in open court in Luxembourg on 1 July 2026.

[Signatures]

* Language of the case: German.

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