Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (recast)

Where excise goods already released for consumption in the territory of a Member State are moved to a place of destination in the territory of that Member State via the territory of another Member State, the following requirements shall apply:

Where excise goods are moved frequently and regularly under the conditions specified in paragraph 1, the Member States concerned may, by agreement, under conditions determined by them, simplify the requirements specified in paragraph 1.

The Commission shall adopt delegated acts in accordance with Article 51 establishing the structure and content of the electronic administrative documents exchanged through the computerised system for the purposes of Articles 36 and 37,  and of fallback documents referred to in Articles 38, 39 and 40 in the context of movement of excise goods under this Section.

The Commission shall adopt implementing acts establishing the rules and procedures to be followed for the exchange of the electronic administrative documents through the computerised system for the purposes of Articles 36 and 37 and the rules and procedures for the use of the fallback documents referred to in Articles 38, 39 and 40 in the context of movement of excise goods under this Section. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52.

Excise goods already released for consumption in the territory of one Member State, that are purchased by a person, other than an authorised warehousekeeper, a registered consignee or a certified consignee, who is established in another Member State and who does not carry out an independent economic activity, and that are dispatched or transported to the territory of another Member State directly or indirectly by a consignor who carries out an independent economic activity or on his or her behalf shall be subject to excise duty in the Member State of destination.

In the case referred to in paragraph 1, the excise duty shall become chargeable in the Member State of destination at the time of delivery of the excise goods. The chargeability conditions and rate of excise duty to be applied shall be those in force on the date on which duty becomes chargeable.

The person liable to pay the excise duty in the Member State of destination shall be the consignor.

The consignor or tax representative shall comply with the following requirements:

In the case referred to in paragraph 1, the excise duty levied in the first Member State shall be reimbursed, at the request of the consignor, where the consignor or tax representative has followed the procedures laid down in paragraph 4.

Member States may lay down specific rules for applying paragraphs 1 to 5 to excise goods that are covered by special national distribution arrangements.

In the situations referred to in Article 33(1) and Article 44(1), in the event of the total destruction or irretrievable loss of the excise goods during their transport in the territory of a Member State other than the Member State in which they were released for consumption, as a result of unforeseeable circumstances, or force majeure, or as a consequence of an authorisation to destroy the goods by the competent authorities of that Member State, the excise duty shall not be chargeable in that Member State.

In the event of partial loss due to the nature of the goods that occurs during their transport in the territory of a Member State other than the Member State in which they were released for consumption, excise duty shall not be chargeable in that Member State where the amount of loss falls within the common partial loss threshold for those excise goods  set out in accordance with Article 6(10), unless a Member State has reasonable cause to suspect fraud or irregularity.

The total destruction or irretrievable loss, total or partial, of the excise goods as referred to in paragraph 1 shall be proven to the satisfaction of the competent authorities of the Member State where the total destruction or irretrievable loss, total or partial, occurred or, when it is not possible to determine where the loss occurred, where it was detected.

Where an irregularity has occurred during a movement of excise goods under Article 33(1) or Article 44(1), in the territory of a Member State other than the territory of the Member State in which they were released for consumption, they shall be subject to excise duty and excise duty shall be chargeable in the Member State where the irregularity occurred.

Where an irregularity has been detected during a movement of excise goods under Article 33(1) or Article 44(1), in the territory of a Member State other than the territory of the Member State in which they were released for consumption, and it is not possible to determine where the irregularity occurred, the irregularity shall be deemed to have occurred and the excise duty shall be chargeable in the Member State where the irregularity was detected.

The excise duty shall be due from the person who guaranteed payment thereof in accordance with point (a) of Article 35(2) or point (a) of Article 44(4) and from any person who participated in the irregularity. Where several persons are liable for payment of the same excise duty, they shall be jointly and severally liable for such debt.

For the purposes of this Article, ‘irregularity’ means a situation occurring during a movement of excise goods under Article 33(1) or Article 44(1), not covered by Article 45 due to which a movement, or a part of a movement, of excise goods has not duly ended.

Any lack of registration or certification of one or all persons involved in the movement contrary to Article 33(1) or point (a) of Article 44(4) or any lack of respect of the provisions under Article 35(1) shall be deemed to be an irregularity. Paragraphs 1 to 4 shall apply accordingly, unless the consignee is liable to pay the excise duty according to the last sentence of Article 44(3).

Without prejudice to Article 6(2), Member States may require that excise goods carry tax markings or national identification marks used for fiscal purposes at the time when they are released for consumption in their territory, or, in the cases provided for in Article 33(1) and Article 44(1), when they enter their territory.

Any Member State which requires the use of tax markings or national identification marks as set out in paragraph 1 shall be required to make them available to authorised warehousekeepers of the other Member States. However, each Member State may require that these markings or marks be made available to a tax representative authorised by the competent authorities of that Member State.

Without prejudice to any provisions they may lay down in order to ensure that this Article is implemented properly and to prevent any evasion, avoidance or abuse, Member States shall ensure that tax markings or national identification marks as set out in paragraph 1 do not create obstacles to the free movement of excise goods.

Tax markings or national identification marks as set out in paragraph 1 shall be valid in the Member State which issued them. However, there may be mutual recognition of these markings or marks between Member States.

Member States may exempt small wine producers from the requirements of Articles 14 to 31 and from the other requirements relating to movement and monitoring. Where these small producers themselves carry out intra-Union transactions, they shall inform their relevant authorities and comply with the requirements laid down by Commission Delegated Regulation (EU) 2018/273 ([^E0003]).

Where small wine producers are exempt from requirements in accordance with paragraph 1, the consignee shall, by means of the document required by Delegated Regulation (EU) 2018/273 or by a reference to it, inform the competent authorities of the Member State of destination of the wine deliveries received.

For the purposes of this Article, ‘small producer’ means a producer who produces on average less than 1 000 hl of wine per wine year, based on the average annual production over at least three consecutive wine years, in accordance with Article 2(3) of the Delegated Regulation (EU) 2018/273.

The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

The power to adopt the delegated acts referred to in Article 6(10), Article 29(1) and Article 43(1) shall be conferred on the Commission for an indeterminate period of time from 20 February 2020.

The delegation of power referred to in Article 6(10), Article 29(1) and Article 43(1) may be revoked at any time by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

A delegated act adopted pursuant to Article 6(10), Article 29(1) and Article 43(1) shall enter into force only if no objection has been expressed by the Council within a period of two months of notification of that act to the Council or if, before the expiry of that period, the Council have informed the Commission that it will not object. That period shall be extended by two months at the initiative of the Council.

The Commission shall be assisted by the Committee on Excise Duty. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Member States shall adopt and publish, by 31 December 2021, the laws, regulations and administrative provisions necessary to comply with Articles 2, 3, 6, 12, 16, 17, Articles 19 to 22, Articles 25 to 29, Articles 33 to 46, and Articles 54 and 55 and Article 57. They shall immediately communicate the text of those measures to the Commission.

Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.