On September 26, 2024, the ECJ issued the AG Opinion in the case C-596/23 (Pohjanri).
Context: Reference for a preliminary ruling – Excise duty – Directive 2008/118/EC – Article 36 – Online purchase of excise goods in another Member State – Goods dispatched or transported directly or indirectly by the vendor or on the vendor’s behalf – Transport by a transport company recommended by the vendor – National rules treating the vendor as liable to pay the excise duty chargeable in the Member State of destination )
Facts
- Online Alcohol Sales: Company B UG sold alcoholic beverages through a website accessible in Finnish, delivering from Germany to Finland.
- Customs Seizure: On April 20, 2020, Finnish customs seized a consignment of alcoholic beverages sent by B UG to a private individual in Finland, questioning compliance with excise duty laws.
- Transport Arrangement: The purchaser explained that after ordering on B UG’s site, they were directed to select a transport company (X, Y, or Z) and paid the transport fee directly to the chosen company.
- Tax Authority Actions: Finnish tax authorities imposed taxes and penalties on B UG, claiming it acted as a distance seller by indirectly dispatching the goods, and thus was responsible for excise duty.
- Legal Dispute: B UG contested the tax decision, leading to a case in the Administrative Court of Helsinki, which sought clarification on whether B UG’s involvement in transport arrangements made it liable for excise duty under EU law.
Questions
- (1) Does [Directive 2008/118], in particular Article 36 thereof concerning distance selling, preclude an interpretation of national law according to which a vendor of excise goods established in another Member State is regarded as involved in the transport of the goods to the Member State of destination and liable for excise duty in the Member State of destination from distance sales solely because the vendor, on its website, directs the purchaser to use a particular transport company?
- (2) Did the vendor of excise goods dispatch or transport goods to another Member State directly or indirectly within the meaning of Article 36(1) of [Directive 2008/118] and was it subject to duty from distance sales within the meaning of the directive if the vendor’s website recommended particular transport companies and gave information on the transport costs arising for the purchaser and the transport costs were charged by a transport company to which the information on the goods to be transported had been transmitted without the intervention of the purchaser? Is the fact that the purchaser concluded a separate contract for the carriage of the goods with the transport company mentioned on the vendor’s website of relevance to the assessment of that question?
AG Opinion
Article 36(1) 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 excise goods must be considered to be ‘dispatched or transported to another Member State directly or indirectly by the vendor or on his behalf’, so that the vendor is liable for excise duty in that other Member State, in particular where the vendor acts in such a way as to guide the purchaser’s choice of the company responsible for dispatch and/or transport of the goods concerned, which it is for the national court to verify, taking into account all the facts of the dispute in the main proceedings.
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