«(Directive 92/12/EEC – Article 20 – Export to non-member countries of products under duty-suspension arrangements – Products having to be considered not to have arrived at their destination by reason of the falsification of the accompanying document – Place of the offence or irregularity unknown – Determination of the Member State in which excise duty is chargeable)»

Tax provisions – Harmonisation of laws – Excise duty – Directive 92/12 – Products moving under duty-suspension arrangements intended for export to non-member countries but not arriving at their destination – Offence deemed to have been committed in the Member State of departure – Possibility of the operator who has guaranteed the payment of excise duty's providing evidence to the contrary – Subject to a time-limit of four months from the date of dispatch – Not permissible if insufficient to safeguard rights of defence – Relative invalidity of the corresponding provision (Council Directive 92/12, Art. 20(3)) Where, in connection with the rules laid down by Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, products subject to excise duty and moving under duty-suspension arrangements do not arrive at their destination and it is impossible to determine where the offence or irregularity was committed, Article 20(3) of the Directive provides, on the one hand, that the offence or irregularity is deemed to have been committed in the Member State of departure, which is therefore entitled to collect the excise duty and, on the other, that within a period of four months of the date of dispatch of the products, the persons concerned may provide evidence of the correctness of the transaction or of the place where the offence or irregularity was actually committed.That provision is invalid in so far as the period of four months is relied on against a trader who has guaranteed the payment of excise duty but was not in a position to know, at the appropriate time, that an offence, consisting of failure to discharge the duty-suspension arrangement, had been committed.In such circumstances, the application of that period of four months from the date of dispatch of the products at issue does not satisfy the principle of respect for the rights of defence.see paras 47-48, 53-54, operative part

JUDGMENT OF THE COURT 12 December 2002 (1)

((Directive 92/12/EEC – Article 20 – Export to non-member countries of products under duty-suspension arrangements – Products having to be considered not to have arrived at their destination by reason of the falsification of the accompanying document – Place of the offence or irregularity unknown – Determination of the Member State in which excise duty is chargeable))

In Case C-395/00,

REFERENCE to the Court under Article 234 EC by the Tribunale di Trento (Italy) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 20(2) and (3) 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),

THE COURT,,

composed of: J.-P. Puissochet, President of the Sixth Chamber, acting for the President, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris, F. Macken (Rapporteur) and N. Colneric, Judges,

Advocate General: J. Mischo,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Distillerie Fratelli Cipriani SpA and the Commission at the hearing on 29 January 2002,

after hearing the Opinion of the Advocate General at the sitting on 21 March 2002,

gives the following

Release for consumption of products subject to excise duty shall mean:

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the questions referred to it by the Tribunale di Trento by order of 20 October 2000, hereby rules:

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

Delivered in open court in Luxembourg on 12 December 2002.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President