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European Commission - Press release

Taxation: Commission requests Spain to modify its rules on excise duties

Brussels, 26 April 2012 - The European Commission has today formally requested Spain to modify its rules on excise duties to bring them into line with EU legislation.

Under EU rules, all movement of excise goods under duty suspension within the EU must be accompanied by an electronic administrative document giving details about the goods, including information about their journey time. The Spanish rules impose a 10 % penalty on the excise duties of goods and a minimum fine of 600 euros if:

  • the time estimated by the operator for the transport of the excise goods is shorter than the time ultimately employed;

  • the time difference is discovered by the tax authorities during the movement of the excise goods;

The Commission has taken the view that an estimated journey time for the excise goods shorter than the real one is unrelated to any fraudulent intention and does not prevent the excise duty movement control system from fulfilling its task. For this reason, the Commission finds that the Spanish penalty rules are disproportionate.

The Commission has officially asked Spain to amend its legislation within two months. This request took the form of a ‘reasoned opinion’, which constitutes the second stage of infringement proceedings. In the absence of a satisfactory response within this time-limit, the Commission may refer Spain to the EU Court of Justice.

Background

A movement of excise goods under duty suspension in the EU needs to be accompanied by an electronic administrative document. A movement of excise goods can refer for example to moving goods from a tax warehouse in one Member State to a tax warehouse in another Member State. Duty suspension is a temporary exclusion from paying excise duties. Goods that haven not been submitted to excise duties yet have to remain in an authorised "tax" warehouse for fiscal reasons.

One of the elements in the electronic administrative document is the "journey time". This entails that the operator must provide in the document the normal period of time necessary for the transport of the excise goods, taking into account the means of transport and the distance covered.

The rationale of this element consists in setting a reasonable journey time between dispatch and arrival of the goods, so that the authorities' attention will be drawn to excessive travel times or travel times which exceed the estimated ones, as a situation in which the risk of fraud and evasion could be higher than otherwise.

If the estimated journey time is exceeded, the Excise Movement Control System (EMCS) will inform the excise authorities at dispatch and destination. The excise authority at dispatch would then ask the authorized warehouse keeper to investigate the problem. Therefore a fraudster will always tend to include in the electronic administrative document a journey time longer than the one ultimately employed, in order to avoid the system to fulfil its role of alerting about possible risks. By contrast, a journey time shorter than the real one is disconnected from any fraudulent intention on the side of the operator and any danger of fraud or evasion.

A penalty imposed on the mere grounds that the estimated journey time is shorter than the one ultimately employed does not reflect the purpose and rationale of the EMCS system. The penalty applies precisely in case the journey time has been underestimated, which is a case where the EMCS system can perfectly fulfil its role of alerting the authorities to possible risks. This confirms that a penalty of the size in question, namely 10% of the duties on the goods with a minimum fine of €600, is not in line with the principle of proportionality. Member States decide on penalties as sanctions are not provided for under the EMCS rules but the Commission can intervene if EU principles are breached.

For the press releases issued on infringement proceedings in the area of taxation or customs see:

http://ec.europa.eu/taxation_customs/common/infringements/infringement_cases/index_en.htm

For more information on EU infringement procedures, see MEMO/12/279

For the most up-to-date general information on the infringement proceedings initiated against Member States, see:

http://ec.europa.eu/eu_law/infringements/infringements_en.htm

Contacts :

Emer Traynor (+32 2 292 15 48)

Natasja Bohez Rubiano (+32 2 296 64 70)


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