Excise duties – Concept of “formalities connected with the crossing of frontiers”







Judge Rapporteur

Advocate General


Reference for a preliminary ruling

Minister Finansów


Oil Trading Poland sp. Z.o.o


10th Ch.

M.C. Vajda




Excise duties — Directives 92/12/EEC and 2008/118/EC — Scope — Mineral oils and energy products — Lubricating oils used for purposes other than as motor fuels or as heating fuels — Not included — Excise duty levied on the consumption of energy products, imposed by a Member State pursuant to its own harmonised excise duty arrangements — Concept of ‘formalities connected with the crossing of frontiers’ — Article 110 TFEU — Shorter payment deadline in certain cases for intra-Community purchases than for products acquired on the domestic market

Significant points

  1. In this case, lubricating oils are products other than ‘excise goods’ within the meaning of Article 1(1) of Directive 2008/118, so that, in accordance with Article 1(3) of that directive, Member States may levy taxes on those products, provided that the levying of such taxes does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers (see, to that effect, in relation to Article 3(1) and (3) of Directive 92/12, judgment in Fendt Italiana, EU:C:2007:411, paragraph 44).
  2. It follows that Article 1(3) of that directive does not preclude, in itself, Member States from imposing on products other than those subject to the harmonised excise duty arrangements a tax governed by rules identical to those relating to those arrangements.
  3. However, in order to comply with the requirements of Article 1(3) of Directive 2008/118, a tax charged on lubricating oils used for purposes other than as motor fuels or as heating fuels must not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.
  4. In that regard, it is clear from the case-law of the Court that, if the purpose of a formality imposed on the importer of a product subject to a national tax is to ensure payment of the debt corresponding to that tax, such a formality is related to the event giving rise to the tax, namely an intra-Community acquisition, and not to the crossing of a frontier in the sense of that provision (see, to that effect, judgments in Brzeziński, EU:C:2007:33, paragraphs 47 and 48, and Kalinchev, EU:C:2010:312, paragraph 27).
  5. According to settled case-law, a system of taxation of a Member State can be considered compatible with Article 110 TFEU only if it is proved to be so structured as to exclude any possibility of imported products being taxed more heavily than domestic products, so that it cannot in any event have discriminatory effect (see judgment in X, C‑437/12, EU:C:2013:857, paragraph 28 and the case-law cited).
  6. Subject to verification by the referring court, it appears that the deadline for payment of the excise duty due for lubricating oils imported under the duty suspension arrangement, beginning from their placing into circulation on the Polish market, is the same as that which is laid down for lubricating oils acquired on that market. Moreover, lubricating oils which are imported may be imported under the excise payment procedure, which results in a shorter deadline for paying the excise.