<\/p>\n\n\n\n
The GC addressed, in a judgment (judgment of 9 July 2025 \u2013 T-534\/24 (\u201cGotek\u201d)), the imposition of excise duty in relation to non-existent goods and rejected the imposition of the tax.<\/p>\n\n\n\n
I. The facts <\/strong> The entrepreneur challenged the assessment of excise duty and argued that there had been no movement of goods at all. In proceedings challenging the assessment of excise duty, the administrative court hearing the case had doubts as to the compatibility of the Croatian provisions with EU law and referred the following question to the CJEU for a preliminary ruling:<\/p>\n\n\n\n \u201cMust [Directive 2008\/118], in particular Articles 7 and 8 thereof, \u2026 be interpreted as precluding national practice (and legislation) which provides for an obligation to pay excise duty on energy products where the excise goods have not been [released into circulation] and an excise duty liability has been established in respect of goods stated in falsified invoices for the purchase of energy products which, precisely because they have been falsified, do not give rise to the right to deduct input VAT because there are fictitious supplies of energy products, as has also been finally established in criminal proceedings<\/em>?\u201d<\/p>\n\n\n\n Simply put: Does excise duty also arise where goods were never supplied and were merely purported to exist on forged invoices?<\/p>\n\n\n\n II. The decision<\/strong> III. Commentary<\/strong> The motives behind this conduct in the present case may remain open. In any event, the GC drew the appropriate conclusion from the non-existence of the goods.<\/p>\n\n\n\n By Heiko Panke<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" The GC addressed, in a judgment (judgment of 9 July 2025 \u2013 T-534\/24 (\u201cGotek\u201d)), the imposition of excise duty in relation to non-existent…<\/p>\n","protected":false},"author":6,"featured_media":884,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ghostkit_customizer_options":"","ghostkit_custom_css":"","ghostkit_custom_js_head":"","ghostkit_custom_js_foot":"","ghostkit_typography":"","_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[16],"tags":[],"class_list":["type-post","entry","has-post-thumbnail","last-post"],"_links":{"self":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts\/3500","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/comments?post=3500"}],"version-history":[{"count":2,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts\/3500\/revisions"}],"predecessor-version":[{"id":3502,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts\/3500\/revisions\/3502"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/media\/884"}],"wp:attachment":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/media?parent=3500"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/categories?post=3500"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/tags?post=3500"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
In 2016\/2017, a Croatian entrepreneur recorded numerous invoices for alleged purchases of diesel fuel. The purported supplies behind these transactions never took place and the invoices were forged. On the basis of these documents, the entrepreneur unlawfully deducted input VAT, and the Croatian customs administration additionally assessed excise duty on the \u201cfictitiously\u201d supplied quantities of more than 63,000 litres of diesel. The basis for this was the Croatian excise duty legislation, which also assumes an excise duty liability in cases of \u201cabusive conduct\u201d (such as forged invoices or sham supplies). The company was denied the deduction of input VAT from the forged invoices. The entrepreneur was also held criminally liable.<\/p>\n\n\n\n
The GC ruled on the request for a preliminary ruling in favour of the entrepreneur.
A situation in which excise duties were imposed under national law on the grounds of abuse of rights, even though the excise goods concerned had neither been released for consumption nor supplied, did not correspond to any of the cases referred to in Article 7(2) of Directive 2008\/118\/EC. It could not be regarded as a release for consumption within the meaning of that provision.
Article 7 of Directive 2008\/118\/EC was also to be interpreted as precluding national legislation, as interpreted by the national authorities, under which excise duty liability arises on the basis of a fictitious supply of excise goods documented by forged invoices.
It therefore followed, in the view of the GC, that no excise duty liability arose where the goods had in fact never been produced, supplied or possessed.
The GC emphasised that even the legitimate objective of combating tax fraud and abuse could not justify going beyond the limits of the Directive. Although Member States were permitted to take criminal or administrative action against fraud, they could not impose excise duty on non-existent goods.
The GC therefore replied to the referring court that Article 7 of Directive 2008\/118\/EC was to be interpreted as precluding national provisions under which an excise duty liability arose solely on the basis of fictitious supplies documented by forged invoices.<\/p>\n\n\n\n
The GC’s decision consequently demonstrates that, ultimately, excise duty can only be imposed where a good actually existed that could give rise to a tax liability. Any other approach would mean that tax would have to be imposed on non-existent goods, even though excise duty law is fundamentally based on the physical existence of goods.
In practice, however, the decision is likely to concern only a relatively small number of cases, since in the present case the entrepreneur had merely fabricated the supplies in order, presumably, to \u201cdraw\u201d input VAT from the corresponding invoices. The fact that the goods concerned were subject to excise duty was presumably only a secondary issue that also had to be addressed. More commonly, attempts are made to use high-value goods to generate a substantial input VAT surplus within a short period of time and thereby obtain a large input VAT refund.<\/p>\n\n\n\n