Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 9 October 2025 (1)
Case C‑386/24
Centro Petroli Roma Srl
v
Agenzia delle Dogane e dei Monopoli,
joined parties:
IP Industrial SpA,
Eni SpA
(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))
( Reference for a preliminary ruling – Third paragraph of Article 267 TFEU – Obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Exceptions to that obligation – Member States’ liability for damage caused to individuals by infringements of EU law – Infringements attributable to a national court – Disciplinary and civil liability of judges – Judicial independence – Directive 2006/123/EC – Directive 2008/118/EC – Tax warehouses – Duty suspension arrangements – Conditions for authorisation )
I. Introduction
1. The present request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy) is actually the second such request made in the proceedings pending before that court. (2)
2. By its questions in the present case, the referring court seeks clarification as to the compatibility with EU law of certain provisions of national law concerning the operation of tax warehouses.
3. However, even if only in passing, the present request for a preliminary ruling also raises another issue, one of a constitutional and systemic nature. That is: Under what conditions is national legislation laying down rules on civil and disciplinary liability of judges for judicial errors, including for failures to comply with EU law, such as a failure to make a reference for a preliminary ruling pursuant to the third paragraph of Article 267 TFEU, compatible with the requirement of judicial independence flowing from EU law?
4. In the present Opinion, I shall discuss both issues.
II. Legal framework
A. European Union law
5. Recital 29 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (3) reads:
‘Given that the Treaty provides specific legal bases for taxation matters and given the Community instruments already adopted in that field, it is necessary to exclude the field of taxation from the scope of this Directive.’
6. Article 2(3) of Directive 2006/123, as regards the scope of the directive, provides that ‘[the] Directive shall not apply to the field of taxation.’
7. Recitals 15 and 16 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (4) – repealed in the meantime (5) but applicable ratione temporis in the main proceedings – read:
‘(15) Since checks need to be carried out in production and storage facilities in order to ensure that the tax debt is collected, it is necessary to retain a system of warehouses, subject to authorisation by the competent authorities, for the purpose of facilitating such checks.
(16) It is also necessary to lay down requirements to be complied with by authorised warehousekeepers …’
8. Article 1 of Directive 2008/118 provided:
‘1. This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”):
(a) energy products and electricity covered by Directive 2003/96/EC [of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)];
…’
9. Point 11 of Article 4 of Directive 2008/118 defined ‘tax warehouse’ as a ‘a place where excise goods are produced, processed, held, received or dispatched under duty suspension arrangements by an authorised warehousekeeper in the course of his business, subject to certain conditions laid down by the competent authorities of the Member State where the tax warehouse is located’.
10. Article 16(1) of Directive 2008/118 provided:
‘The opening and operation of a tax warehouse by an authorised warehousekeeper shall be subject to authorisation by the competent authorities of the Member State where the tax warehouse is situated.
Such authorisation shall be subject to the conditions that the authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse.’
B. National law
11. The national law applicable to the dispute at issue in the main proceedings is decreto legislativo 26 ottobre 1995 n. 504 – Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Legislative Decree No 504 of 26 October 1995 – Consolidated text of the provisions on taxes on production and consumption and related criminal and administrative penalties; ‘the Legislative Decree’), as amended.
12. Article 23 (entitled ‘Tax warehouses for energy products’) of the Legislative Decree lays down, inter alia, the conditions in which the tax warehouse regime is permitted and, for its operation, requires the keepers to obtain a licence. In particular, paragraphs 3 and 4 of that provision are worded as follows:
‘3. Management under tax warehousing arrangements may be authorised, where there are actual operational and supply needs of the installation, for commercial warehouses for liquefied petroleum gas with a capacity of not less than 400 cubic metres and for commercial warehouses for other energy products with a capacity of not less than 10 000 cubic metres.
4. Management under tax warehousing arrangements may also be authorised for commercial warehouses for liquefied petroleum gas with a capacity of less than 400 cubic metres and for commercial warehouses for other energy products with a capacity of less than 10 000 cubic metres where, in addition to the conditions referred to in paragraph 3, at least one of the following conditions is met:
(a) the warehouse carries out supplies of products exempt from excise duty or at a reduced rate of excise duty or transfers of energy products under duty suspension arrangements to EU Member States or to countries outside the European Union of at least 30% of the total extractions in the two-year period overall;
(b) the warehouse is an extension of a tax warehouse situated in the immediate vicinity belonging to the same group of companies or, if it is under different ownership, it is intended to operate at the service of that warehouse on a permanent basis.
13. Pursuant to Article 63 (entitled ‘Operating licences and annual fees’) of the Legislative Decree, the licence required by Article 23 thereof is granted by the Ufficio dell’Agenzia delle dogane (Customs Authority, Italy; ‘the Customs Authority’).
14. According to the referring court, on 4 December 2017 the Customs Authority issued circolare amministrativa n. 14/D (administrative circular No 14/D) to provide interpretative guidance on certain provisions of the Legislative Decree.
15. Finally, in its request for a preliminary ruling, the referring court also refers to Legge 13 aprile 1988, n. 117 – Risarcimento dei danni cagionati nell’esercizio delle funzioni giudiziarie e responsabilità civile dei magistrati (Law No 117 of 13 April 1988 – Compensation for damage caused in the exercise of judicial functions and civil liability of magistrates; ‘Law No 117 of 1988’), as amended.
16. According to paragraph 3-bis of Article 2 of that law, ‘for the purpose of determining cases of manifest infringement of the [national] law and of [EU] law, particular account shall be taken of the degree of clarity and precision of the rules infringed and of the inexcusability and seriousness of the non-compliance. In the event of a manifest infringement of [EU] law, account shall also be taken of the failure to comply with the obligation to make a reference for a preliminary ruling pursuant to Article 267(3) [TFEU], as well as the conflict between the act or measure and the interpretation provided by the Court of Justice of the European Union’.
III. Facts, procedure and the questions referred
17. Centro Petroli Roma (the appellant in the main proceedings; ‘CPR’) is a company engaged in the production, processing and marketing of petroleum products in the energy products sector. It has been operating since February 2016 under tax warehousing arrangements set out in the Legislative Decree.
18. By Decision No 13042/2020, the Customs Authority suspended the licence issued to CPR for its failure to fulfil the quantitative criteria laid down in Article 23(3) of the Legislative Decree. CPR challenged that decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy). That court dismissed the action.
19. CPR brought an appeal against the judgment at first instance before the Consiglio di Stato (Council of State). That court stayed the proceedings and submitted five questions to the Court of Justice for a preliminary ruling. The first two questions concerned the scope of the obligation on national courts of last instance to make a reference for a preliminary ruling (first question) and the interaction between that obligation and national regimes of liability for judicial errors (second question). The third, fourth and fifth questions concerned the interpretation of certain EU provisions which appeared to be applicable to tax warehouses.
20. Those questions were the subject of Case C‑597/21, decided by the Court of Justice with its order in Centro Petroli Roma I. In that order, the Court (i) in response to the first question, provided clarification regarding the scope of the obligation on national courts of last instance to make a reference for a preliminary ruling; (ii) declared the second question manifestly inadmissible since it bore no relation to the dispute at issue in the main proceedings; and (iii) stated that there was no need to answer the remaining three questions, which had been raised only in case the Court had answered the first question in the affirmative (which it did not).
21. In the context of the same national proceedings, at the request of CPR, the Consiglio di Stato (Council of State) now makes a second reference to the Court of Justice for a preliminary ruling. The questions referred in the present proceedings – which coincide with the third, fourth and fifth questions in Case C‑597/21 – are the following:
‘(1) Does the correct interpretation of Articles 101 to 106 TFEU, and of the legislative framework set out in Directives [2006/123] and [2008/118], preclude a national rule, such as that arising from Article 23(3) of [the Legislative Decree], which provides that “3. Management under tax warehousing arrangements may be authorised, where there are actual operational and supply needs of the installation, for commercial warehouses for liquefied petroleum gas with a capacity of not less than 400 cubic metres and for commercial warehouses for other energy products with a capacity of not less than 10 000 cubic metres”[?]
(2) Does the correct interpretation of Articles 101 to 106 TFEU, and of the legislative framework set out in Directives [2006/123] and [2008/118], preclude a national rule, such as that arising from Article 23(4)(a) and (b) of [the Legislative Decree], which provides that management under tax warehousing arrangements may be authorised, in particular, for commercial warehouses for liquefied petroleum gas with a capacity of less than 400 cubic metres and for commercial warehouses for other energy products with a capacity of less than 10 000 cubic metres where, in addition to the conditions referred to in point 3, at least one of the following conditions is met:
“(a) the warehouse carries out supplies of products exempt from excise duty or at a reduced rate of excise duty or transfers of energy products under duty suspension arrangements to EU Member States or to countries outside the European Union … of at least 30% of the total extractions in the two-year period overall;
(b) the warehouse is an extension of a tax warehouse situated in the immediate vicinity belonging to the same group of companies or, if [it is] under different ownership, [it] is intended to operate at the service of that warehouse on a permanent basis”.
(3) Does the correct interpretation and application of the principle of proportionality, in conjunction with Articles 101 to 106 TFEU and the legislative framework laid down in Directives [2006/123] and [2008/118], and, in particular, in Article 9, point 5 of Article 14, and Article 15(2) of Directive [2006/123], preclude regulatory measures (circulars, regulations or otherwise) adopted by the national authority which seek to clarify, by supplementing them, the abovementioned conditions laid down in Article 23(4)(a) and (b) of [the Legislative Decree]?’
22. Written observations have been submitted by CPR, the Italian Government and the European Commission. Those parties also presented oral argument at the hearing held on 10 July 2025.
IV. Analysis
23. By its three questions, which can be examined together, the referring court essentially asks the Court of Justice whether Articles 101 to 106 TFEU and the provisions of Directive 2006/123 and of Directive 2008/118 preclude national measures that set out criteria based on capacity, operational and supply needs, extraction ratios and/or functional relationship between warehouses, in order to authorise management of commercial warehouses dealing with energy products under duty suspension arrangements.
24. Before I deal with the substantive issues that arise from such a question (C), it is appropriate to examine the admissibility of the reference (A) and, subsequently, address a preliminary issue that the referring court discusses in its request for a preliminary ruling (B).
A. Admissibility of the reference
25. There is no doubt, in my view, that the request for a preliminary ruling in the present case is on the whole admissible. Nevertheless, I am of the view that the questions referred are partly inadmissible, namely where they refer to Articles 101 and 106 TFEU.
26. In that respect, I agree with the Commission that, in its request for a preliminary ruling, the referring court did not explain – as required under Article 94(c) of the Rules of Procedure of the Court of Justice –the reasons which prompted it to enquire about the interpretation of the Treaty rules on competition between undertakings, and the relationship between those rules and provisions of the Legislative Decree. Nor could the relevant elements of the analysis (for example, relevant product and geographical market, main players active in that market, impact of the legislation in question on that market, and so forth) be extrapolated from the information provided by the referring court and/or the parties which submitted observations in the present proceedings.
27. Consequently, I find it impossible to examine the compatibility of national legislation such as that at issue with Articles 101 to 106 TFEU.
28. In addition, reviewing the admissibility of the reference gives me the opportunity to discuss a preliminary issue – somewhat related to that of admissibility – that the referring court raised only in passing in its request for a preliminary ruling. That is, the compatibility with EU law of a system of civil and disciplinary liability of judges for judicial errors, including a failure to comply with EU law, such as a failure to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU.
B. A preliminary issue: national systems of civil and disciplinary liability of judges for a failure to comply with EU law
29. To understand why the referring court raised that issue only in passing, it may be useful to take a step back and briefly mention what was (1), and what was not (2), dealt with by the Court in its order in Centro Petroli Roma I. Subsequently, I will briefly outline the two strands of case-law which appear to be relevant in this context (3) and (4). Lastly, I shall offer some personal considerations on the matter (5).
1. The question dealt with in the order in Centro Petroli Roma I
30. As explained in point 20 above, the order in Centro Petroli Roma I dealt only with the merits of the first question referred in that case, which concerned the interpretation of the third paragraph of Article 267 TFEU.
31. The referring court had sought clarification with regard to the case-law according to which a national court of last instance is relieved of its obligation to make a reference to the Court in the situation usually referred to as acte clair: when the interpretation of the provision of EU law in question is so obvious as to leave no scope for any reasonable doubt. (6) In that regard, the Court has consistently stated that, before concluding that a situation is indeed one of acte clair, the national court of last instance must be convinced that the matter would be ‘equally obvious to the other courts or tribunals of last instance of the Member States and to the Court of Justice’. (7)
32. The doubts of the referring court concerned, in particular, how a national court of last instance is required to ascertain the fulfilment of that condition. The question was, in a nutshell, whether a national court of last instance is required to establish in detail that the other courts of last instance of the Member States and the Court of Justice would give the same interpretation of the relevant EU provision.
33. In response to those doubts, the Court ruled that a national court of last instance is not required to establish in detail that the courts of last instance in other Member States and the Court of Justice would adopt the same interpretation. (8) Indeed, it is enough that the national court – having duly considered the characteristic features of EU law, the particular difficulties to which the interpretation of EU law gives rise and the risk of divergences in judicial decisions within the European Union – forms the intimate conviction that those other courts would come to the same conclusion. (9)
34. The Court thus made clear that the standard to be applied by national courts of last instance, when deciding whether or not they are required to make a reference in a situation of possible acte clair, is one of ‘reasonable conviction’. Determining the proper interpretation of EU provisions being a pure question of law, the ordinary procedural rules on evidence and burden of proof cannot be considered to be fully applicable in that respect. Put simply, the national court is to decide whether, before it, there are elements which may support an alternative interpretation – that is, an interpretation different from that which appears to that court to be prima facie correct – of the EU provision in question that is plausible enough that it cannot be outright discarded. (10)
35. In that context, it should also be recalled that, as the Court ruled in paragraph 51 of its judgment in Consorzio, if a national court of last instance decides that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, it must provide reasons for its decision.
36. As I sought to explain in my Opinion in KUBERA, the required level of detail of the statement of reasons varies necessarily, depending on the specific circumstances of each case. In my view, it should normally be sufficient for the national court in question to: (i) expressly indicate the exception (among those codified in the CILFIT case-law (11)) relied on; and (ii) provide a concise explanation as to why that exception was considered applicable. However, that does not rule out the possibility that, in some particular cases, a more detailed statement of reasons may be necessary or, conversely, that the reasons for the refusal to make a reference are so obvious that an explicit statement in that regard may be unnecessary. (12)
2. The question not dealt with in the order in Centro Petroli Roma I
37. By contrast, in its order in Centro Petroli Roma I, the Court did not deal with the merits of the second question referred since, as explained, that question was found to be manifestly inadmissible. (13) That is why, in the present request for a preliminary ruling, the referring court – having taken note of the Court’s assessment in that respect – does not put forward any questions in that regard, whilst however adding that the underlying problem remains, in its view, a pressing one.
38. In essence, the referring court’s doubts concern the compatibility with EU law of a national system of civil and disciplinary liability of judges for judicial errors, including in the interpretation and application of EU rules, such as a failure to make a reference under the third paragraph of Article 267 TFEU. The referring court explains that the uncertainties surrounding the proper interaction between the Italian legislation on judges’ liability and the EU rules on judicial independence influence the manner in which it evaluates its obligation pursuant to the third paragraph of Article 267 TFEU. I understand that that court takes the view that a regime of personal liability that is too severe would de facto encourage courts of last instance to make a reference, even in many cases where they consider the scope and meaning of the applicable provisions of EU law to be clear enough/sufficiently clear.
39. The present case appears to be one such case, as the referring court made a reference mainly to avoid any risk of liability, since it considered the EU provisions in question to be, for the purposes of the dispute, actes clairs.
40. Since the issue raised by the referring court is one of a constitutional nature with systemic implications, I find it appropriate to offer some considerations in that regard, in the hope of assisting the referring court and other national courts that may be in a similar position.
41. Nevertheless, the current proceedings are obviously not the proper forum to assess the compatibility with EU law of a system of liability of judges such as that established by the Italian legislature through Law No 117 of 1988, as amended. (14)
42. I will, thus, limit the discussion to some considerations of a general nature, focusing especially on the types of judicial error that could give rise to (what I will refer to as) the ‘personal liability’ of the judges, without undermining judicial independence. With that term, I refer to both civil and disciplinary liability. Although the two types of liability are, naturally, to some extent different, it is my view that, from an EU law viewpoint, a number of principles applicable to both can be identified. By contrast, I shall not discuss criminal liability here, since that kind of liability is not covered by the national provisions in question and, at any rate, that kind of liability appears to raise different issues.
43. To set the scene, I shall first make a distinction between two areas of liability for judicial errors: Member States’ liability and personal liability of judges. Those were the subjects of two strands of case-law, which are naturally closely related.
3. Member States’ liability
44. It is settled case-law that the principle of State liability for loss and harm caused to individuals as a result of a breach of EU law is inherent in the system established by the EU Treaties. That principle applies to any case of infringement of EU law by a Member State, irrespective of the body of the Member State whose action or omission is the cause of that infringement. (15)
45. It is also well established that such an infringement entitles individuals to reparation if three conditions are met: (i) the rule of EU law infringed must be intended to confer rights on them; (ii) the breach of that rule must be sufficiently serious; and (iii) there must be a direct causal link between that breach and the loss or damage sustained by the individuals. (16) Those conditions have been established by EU law and, as such, Member States cannot interfere with them, where that could lead to an exclusion of liability in situations where it would otherwise be triggered. (17)
46. In a series of cases dating back to the early 2000s, the Court made clear that those principles apply also to failures committed by national judicial authorities, including those stemming from decisions of courts adjudicating at last instance. (18)
47. In that context, the Court has also provided clarification with regard to the second condition referred to above, relating to the sufficiently serious breach of EU law, which implies that any infringement of an EU rule does not necessarily trigger a Member State’s liability. In particular, as regards failures attributable to national courts of last instance, the Court has indicated that such condition means that ‘[State] liability can be incurred only in the exceptional case where the court has manifestly infringed the applicable law’. (19)
48. The Court ruled, in that regard, that to establish whether a breach is ‘sufficiently serious’, it is necessary to take account of all the factors which characterise the situation brought before the national court. Among such factors, according to the Court, are: (i) the degree of clarity and precision of the rule infringed; (ii) the scope of the assessment that the infringed rule allows to national authorities; (iii) whether the infringement and the damage caused were intentional or involuntary; (iv) whether any error of law was excusable or inexcusable; (v) the fact that the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law; and (vi) (where appropriate) non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU. (20)
49. I read the case-law as meaning that a mere failure to make a reference under the third paragraph of Article 267 TFEU by a national court of last instance cannot, by itself, give rise to State liability. As the Court has consistently stated, ‘the system of direct cooperation between the Court of Justice and the national courts, established by Article 267 TFEU, is completely independent of any initiative by the parties’ and ‘[the parties cannot oblige the national courts] to make a reference for a preliminary ruling … The system established by Article 267 TFEU therefore does not constitute a means of redress available to the parties to a case pending before a national court or tribunal.’(21)
50. mply, the third paragraph of Article 267 TFEU is not a provision intended to confer rights on individuals and, as such, a breach thereof cannot alone trigger Member State liability. Moreover, it is hard to imagine how a mere refusal to make a reference could cause loss and damage for a party to the dispute, where the relevant provisions of EU law are correctly interpreted.
51. Nevertheless, where a national court of last instance interprets a provision of EU law wrongly, the fact that it may have been in breach of the obligation to make a reference to the Court in relation to that provision is a factor that should be taken into account when evaluating the seriousness of the breach.
52. Lastly, it may be useful to emphasise that the principle of State liability, inherent in the system of remedies established by the EU Treaties, does not involve the personal liability of the judges, but that of the Member States. In so far as it is the State that may be liable for judicial decisions contrary to EU law, and any compensation to the individuals concerned is paid from the national budget, such a system of liability does not entail any particular risk that the independence of the national courts may be called into question. (22)
4. Personal liability of judges
53. By contrast, the establishment of systems of personal liability of judges for judicial errors falls within the Member States’ competence to regulate the organisation of justice. (23) Member States have broad discretion in establishing such a system. (24) In fact, a variety of such systems exists both in the European Union and beyond, providing for different degrees of immunity from civil and/or disciplinary liability for acts carried out in the exercise of judicial functions. (25)
54. The Court has already had the opportunity to examine the compatibility of certain national systems of personal liability of judges with EU law in a number of cases referred to it in recent years.
55. In that regard, the Court has recognised that the existence of systems of personal liability of judges for judicial errors may contribute to enhancing the accountability and effectiveness of the judicial system. However, the Court has also warned that, in exercising their competence in this field, Member States must ensure compliance with EU law. In particular, it found it to be essential that any such system be designed in a way that preserves the independence of the courts called upon to rule on questions concerning the application or interpretation of EU law. (26)
56. At this juncture, I hardly need to emphasise the importance of the requirement, within the EU legal system, that courts interpreting and applying EU law be independent. (27) That requirement arises, in particular, from Article 2 TEU, Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). It is also implicit in Article 267 TFEU.
57. It is obvious that the recognition of the principle of personal liability of judges for judicial errors entails certain risks with regard to the judges’ independence and impartiality. (28) Ill-designed liability systems may threaten – or, at the very least, raise in the eyes of the public a suspicion that they may threaten – the equanimity and integrity of judicial decision-making. The mere prospect of having disciplinary investigations initiated at the request of members of the government or of the judicial hierarchy, or of a legal action by disgruntled litigants of means, may, in certain cases, even unconsciously, exert a degree of pressure on those who have the task of adjudicating in a civil or administrative dispute, or in a criminal case. (29) Such proceedings may, in fact, entail serious consequences for the lives and careers of the members of the judiciary subjected to them. (30) Ill-designed systems of personal liability could, therefore, give rise to risks of bias in, and/or have a chilling effect on, the exercise of judicial functions.(31)
58. That is why the Court has held that, ‘although … the guarantee of independence does not require judges to be given absolute immunity from acts performed in the exercise of their judicial duties, their personal liability can nonetheless be incurred for damage caused in the performance of their duties only in exceptional cases, in which serious individual culpability on their part has been established’. (32) It follows that ‘a decision [which] contains a judicial error cannot, in itself, suffice to render the judge concerned personally liable’. (33)
59. Moreover, the Court has considered other elements of the national systems of personal liability of judges to be necessary to ensure compliance with the principle of judicial independence. In particular, the Court has held that such systems must provide for ‘rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, rules which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, especially the rights of the defence, and rules which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions’. (34)
60. It is against that background that I shall now make a few comments, which could, hopefully, assist the referring court in dealing with the key issue discussed in its request for a preliminary ruling: when a judicial error could trigger the personal lability of the judges for their (erroneous) decisions, without undermining judicial independence.
5. Some considerations on the personal liability of judges and judicial independence
61. First of all, I wish to make clear that, to my mind, it is impossible to envisage a test that could serve to draw a clear line between judicial errors that could trigger the personal liability of the judges without threatening judicial independence and those that, on the contrary, could be problematic from that angle. In my view, it is only possible to provide some guiding principles that could apply to both civil and disciplinary liability.
62. A number of those principles can be extracted from the Court’s case-law discussed above. I refer not only to the case-law concerning judges’ personal liability, but also that concerning Member States’ liability. Indeed, given their similar subject matter, some of the principles enunciated in the Court’s decisions on State liability may, in my view, be applicable by analogy when it comes to judges’ personal liability.
63. However, I am of the view that, in general, personal liability should be harder to trigger than Member States’ liability. Indeed, the Court has declared that, whereas forms of State liability do not generally raise any issue with respect to the requirement of judicial independence, it could be otherwise with systems of personal liability. Such systems, when ill-conceived, could potentially undermine judicial independence. That is why, with respect to systems of personal liability, the Court has pointed out that such liability could arise only in ‘very’ or ‘entirely’ exceptional cases. (35)
64. This is, naturally, valid also with regard to the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court, set out in the third paragraph of Article 267 TFEU. In that regard, I can, thus, only partly agree with the position expressed by Advocate General Ćapeta (36) that a failure to make a reference could never give rise to any personal liability of judges, provided they have duly explained the reasons for their refusal to do so. I am now going to explain what I mean by that.
65. There are two obligations arising under the third paragraph of Article 267 TFEU: one of a more substantive nature (to make a reference to the Court when an issue of interpretation of EU law has been raised, and the CILFIT exceptions do not apply), and one of a more procedural nature (to explain the reasons for a refusal to make a reference). (37) Although inextricably linked, they remain distinct obligations.
66. I see no plausible reason why only the infringement of one of them could give rise to liability. That is a fortiori so, since it is clearly the obligation to make a reference that is the main and more important obligation of the two, due to its impact on both the dispute at issue and the unity and consistency of the EU legal order. The obligation to state reasons is ancillary to, and instrumental in ensuring compliance with, that main obligation.
67. As the Court has stated, safeguarding the independence of the courts cannot have the effect ‘of totally excluding the possibility that the disciplinary liability of a judge may, in certain very exceptional cases, be triggered as a result of judicial decisions adopted by that judge. Such a requirement of independence is clearly not intended to support any serious and totally inexcusable forms of conduct on the part of judges, which would consist, for example, in violating deliberately and in bad faith, or as a result of particularly serious and gross negligence, the national and EU law with which they are supposed to ensure compliance, or acting arbitrarily or denying justice, when they are called upon … to rule in disputes which are brought before them by individuals’. (38)
68. These considerations appear relevant to, in principle, any obligation under EU rules. Accordingly, it cannot be excluded that a failure to make a reference to the Court, because of an egregious error in the interpretation and application of the third paragraph of Article 267 TFEU, (39) could legitimately give rise to the personal liability of the judges responsible for such a breach. (40)
69. However, it seems to me to be necessary, at this point, to distinguish civil liability from disciplinary liability. In case of civil liability, it is my view that a breach of the obligation to make a reference should lead to such liability only where the EU provision in respect of which the national court should have made a reference has been wrongly interpreted, thus causing damage or loss to the complainant. As explained in point 50 above, if the relevant EU provisions are correctly applied there can be no loss and damage for the parties to the dispute.
70. Conversely, in case of disciplinary liability, I see no reason to exclude the possibility that a breach of the obligation to make a reference could justify, in extraordinary circumstances, disciplinary measures regardless of the damage caused to the parties to a dispute. That may be the case, in particular, where a refusal to make a reference is not a rare or even an isolated case, but forms part of a pattern of misconduct. In that case, the adverse consequences flowing from the breach affect the effectiveness of the mechanism of cooperation established by Article 267 TFEU.
71. In any event, I repeat, once again, that both forms of liability can be triggered only in very exceptional cases.
72. For example, the fact that the Court may have established one such failure in the context of a procedure brought under Article 258 or Article 259 TFEU (41) is not decisive in that regard. Indeed, any failure to comply with EU law – regardless of how manifest it is and its degree of gravity – can be the subject of infringement proceedings. (42)
73. The same applies, mutatis mutandis, with regard to the situations in which the Court is asked by a national court to consider whether, in a given set of circumstances, the third paragraph of Article 267 TFEU should be construed as meaning that a national court of last instance would be obliged to make a reference to the Court. (43) Unless specifically asked to rule on the seriousness of the breach for the purposes of (the State’s or judges’ personal) liability, the Court would respond by simply clarifying the scope of the obligation to make a reference, in the light of the elements of law and fact which the referring court has brought to its attention.
74. Furthermore, such liability cannot arise from the mere fact that, in subsequent case-law, the Court has adopted a different interpretation of the EU rule in question compared with that of the national court, which had considered that rule to be an acte clair (or acte éclairé). In my view, ex post facto elements should be used with great caution in this context. As in any other legal system, EU case-law is continuously evolving as the courts of the European Union (Court of Justice of the European Union and national courts) give new decisions applying the existing rules to new sets of circumstances. This phenomenon of evolution is probably even more significant in the European Union, which has been conceived, from the beginning, as a dynamic polity.
75. To my mind, four parameters may be crucial in establishing a judicial error that – because of its very exceptional nature – could potentially trigger personal liability, without that comprising judicial independence. From the vantage point of a reasonable and prudent judge, the judicial error – in casu, the failure to make a reference – must be (i) manifest (clear and obvious, not open to discussion); (ii) consequential (having a significant impact on either the outcome of the main proceedings or the effectiveness of the mechanism of cooperation); (iii) inexcusable (in the absence of any factors which could have reasonably led to an error); and (iv) the result of a deliberate choice of the judges to disregard the law, or of gross negligence on their part.
76. These conclusions seem to me to be broadly in line with both international standards and the case-law of the Corte costituzionale (Constitutional Court).(44)
77. A national system of personal liability of judges for failure to comply with EU law, including failure to make a reference under the third paragraph of Article 267 TFEU, which could be triggered for lesser failures, could, in my view, compromise the equanimity and integrity of judicial decision-making, thereby affecting the independence of judges.
78. In addition, such a system could undermine the effectiveness of the system of judicial cooperation and dialogue between the national courts and the Court of Justice established by Article 267 TFEU. (45) The Court has consistently held that rules of national law cannot have the effect of preventing a national court from exercising its discretion to make a reference or, where appropriate, complying with that obligation. The combination of those elements (discretion and obligation, depending on the circumstances) is, as the Court has held, an ‘inherent part’ of that system of cooperation and dialogue. (46)
79. In my view, similar considerations apply to rules of national law that, de facto, deprive national courts of last instance of the latitude granted to them by Article 267 TFEU in assessing whether an issue of interpretation of EU law has been properly ‘raised’ before them. The question whether any of the CILFIT exceptions applies in a given case requires the court in question to carry out a nuanced assessment. (47) A number of elements have to be taken into account in order to determine whether the obligation set out in the third paragraph of Article 267 TFEU is triggered, and it is in principle for the national court to do so, acting independently and with all due diligence. (48)
80. National law cannot have the effect of restricting the national court’s latitude under Article 267 TFEU, with the effect that certain situations in which there is no obligation to make a reference are treated, in practice, as situations in which a reference has to be made. (49) Under such circumstances, numerous references for a preliminary ruling would be made, when there would be no real need for it. That would unnecessarily delay the resolution of the disputes in question and increase the workload of the Court of Justice, which might, in turn, affect the effective and timely treatment of the other cases pending before it. It would also lend itself to abuses of procedure from unscrupulous litigants.
81. In the light of the above, I take the view that national systems of civil and disciplinary liability of judges for judicial errors – including for failures to comply with the requirement of judicial independence flowing from EU law, such as a failure to make a reference for a preliminary ruling pursuant to the third paragraph of Article 267 TFEU – are compatible with EU law where they are limited to very exceptional situations. Such situations are those in which a judicial error is manifest, consequential and inexcusable, resulting from a deliberate choice of a judge to disregard the law or of gross negligence on his or her part.
C. Consideration of the questions referred
82. By its three questions, the referring court seeks the proper interpretation of three sets of EU rules, asking the Court whether national legislation such as the Legislative Decree is compatible with (i) Articles 101 to 106 TFEU; (ii) the provisions of Directive 2006/123; and (iii) the provisions of Directive 2008/118.
83. I have explained in points 25 to 27 above that the questions are inadmissible as regards Articles 101 to 106 TFEU. Below, I will deal with the interpretation of the other two sets of provisions.
1. Directive 2006/123
84. Directive 2006/123 – often referred to as ‘the services directive’ – ‘establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services’ (Article 1(1) thereof), by removing barriers hindering the development of a services market within the European Union, with a view to strengthening the internal market whilst promoting balanced and sustainable economic and social progress (recitals 1 and 5).
85. Article 2 of Directive 2006/123, which concerns the ‘scope’ of the directive, provides that it ‘appl[ies] to services supplied by providers established in a Member State’ (paragraph 1). It then lists some activities to which, by way of exception, the directive does not apply (paragraph 2), and lastly provides that the directive ‘shall not apply to the field of taxation’ (paragraph 3). (50)
86. Recital 29 of Directive 2006/123 explains the rationale of that exclusion: ‘given that the Treaty provides specific legal bases for taxation matters and given the [EU] instruments already adopted in that field, it is necessary to exclude the field of taxation from the scope of [that] Directive’.
87. In its judgment in Airbnb Ireland and Airbnb Payments UK, the Court has, in the light of those elements, ruled that the expression ‘field of taxation’ must be interpreted broadly, encompassing ‘not only all areas of taxation, but also all aspects of taxation’. (51)
88. In the light of the above, it must be considered that the national provisions contested by CPR concern the ‘field of taxation’ for the purposes of Article 2(3) of Directive 2006/123. They lay down the conditions under which a tax advantage is granted to certain economic operators (warehousekeepers). That advantage consists – according to point 1 of Article 4 of Directive 2008/118 – in the authorisation ‘to produce, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse’. (52)
89. In fact, the Legislative Decree represents a measure of implementation of Directive 2008/118, a piece of legislation adopted under what was then Article 93 EC (now, Article 113 TFEU), which permits the adoption of ‘provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation’. By contrast, Directive 2006/123 was adopted on the basis of what were then Article 47(2) and Article 55 EC (now, Article 53(2) and Article 62 TFEU), legal bases concerned with the free movement of services.
90. Thus, given that Directive 2006/123 is not applicable in casu, it cannot be interpreted as precluding provisions such as those set out in the Legislative Decree.
2. Directive 2008/118
91. Article 16(1) of Directive 2008/118 provides that ‘the opening and operation of a tax warehouse by an authorised warehousekeeper shall be subject to authorisation by the competent authorities of the Member State where the tax warehouse is situated.’ That provision also adds that ‘such authorisation shall be subject to the conditions that the authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse.’ (53)
92. Recital 15 of Directive 2008/118 explains that ‘since checks need to be carried out in production and storage facilities in order to ensure that the tax debt is collected, it is necessary to retain a system of warehouses, subject to authorisation by the competent authorities, for the purpose of facilitating such checks.’ Recital 16 of the same directive adds that ‘it is also necessary to lay down requirements to be complied with by authorised warehousekeepers …’ (54)
93. Those provisions make clear, therefore, that the authorisation system is instrumental for the prevention of evasion, abuse and fraud. The objective of such a system is, in fact, to ‘ensure that the [warehousekeeper] is sufficiently reliable for the purposes of the tax suspension procedure’. (55) As the Court has stated on many occasions, ‘within the scope of Directive 2008/118, the prevention of evasion and abuse is in general terms an objective common to both EU law and the laws of the Member States … as recitals 15 and 16 and Article 16 thereof confirm’. (56)
94. It is actually the sole objective of the system in question. (57) Hence, Member States cannot pursue other objectives, unrelated to that of preventing tax evasion and abuse, through the authorisation system under that directive.
95. However, provided that the conditions laid down in national law for granting the authorisation are designed to further that objective, Member States enjoy broad discretion in that regard. Indeed, Directive 2008/118 does not include any rule or guiding principle on this matter. As indicated in Commission Recommendation 2000/789/EC of 29 November 2000 setting out guidelines for the authorisation of warehousekeepers under Council Directive 92/12/EEC in relation to products subject to excise duty, (58) Member States have used diverse criteria for that purpose.
96. At the hearing, the Italian Government explained that, in its experience, fraud is more frequently perpetrated by newly established small-scale companies – often set up through ‘straw men’ – which are quickly dissolved when the unlawful conduct is discovered by the public authorities. That is why Italian legislation relies mainly on criteria which ensure a minimum capacity or relevant commercial activity for the warehouse, or its connection with existing warehouses with a proven track record of real activities. That government added that the ‘mushrooming’ of small warehouses would make the monitoring of their activities difficult and costly for the public authorities.
97. Against that background, I see nothing in Directive 2008/118 that could preclude, as a matter of principle, national legislation from making the required authorisation subject to the fulfilment of criteria based on capacity, operational and supply needs, extraction ratios and/or functional relationship between warehouses. In so far as the factual background provided by the Italian Government is confirmed – which is for the referring court to verify – there is no information in the case file to suggest that, in choosing the aforementioned criteria, the Italian authorities have exceeded the margin of discretion granted to them by Article 16(1) of Directive 2008/118.
98. As I have explained, Member States enjoyed a wide margin of discretion in this context. Recital 15 of Directive 2008/118 made clear that facilitating checks is among the aims pursued by the authorisation scheme. In addition, Recommendation 2000/789 invited Member States to ‘apply strict criteria when granting authorisation’. (59)
99. Nevertheless, one should not lose sight of the fact that the ultimate objective of Directive 2008/118 was to ensure the proper functioning of the internal market by harmonising conditions for charging excise duty on goods. (60) It stands to reason, then, that the relevant national measures should strive – as correctly indicated in Article 2(1) of Recommendation 2000/789 – to achieve a balance between facilitating trade and enabling effective control.
100. The need to pursue a balanced approach in that regard also arises from the principle of proportionality. It is, in fact, settled case-law that, when transposing or implementing EU law, Member States have to comply with the general principles of EU law, including proportionality, of course. Accordingly, Member States must employ means which, whilst enabling them to attain effectively the objective pursued by their domestic laws, do not need to go beyond what is necessary and are the least detrimental to the other objectives and principles laid down by the relevant EU legislation. Consequently, when there is a choice between a range of appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (61)
101. More specifically, the assessment of proportionality encompasses a review of three cumulative criteria, namely whether the measures adopted are (i) ‘appropriate’, (ii) ‘necessary’ and (iii) ‘proportionate sensu stricto’. (62)
102. In the present case, given the technical nature of the subject matter, the assessment of the proportionality of the contested provisions is by no means straightforward. Accordingly, that task is best left to the appreciation of the referring court. Nevertheless, with a view to providing that court with some useful guidance, I shall now offer some considerations on how that assessment should be carried out, in the light of the specific features of the contested provisions.
103. First of all the referring court should check whether the measure is appropriate. That is, whether it can contribute to the achievement of the objective pursued, reflecting a genuine concern to attain it in a consistent and systematic manner.
104. In the present case, this may require the referring court to verify, first, that the criteria employed have genuinely been conceived to pursue the objective of combating tax evasion and abuse (by preventing the situations in which fraud typically occurs and by facilitating controls ex post). In this context, the referring court should, in my view, ensure that criteria formulated in a vague manner and/or leaving wide discretion to the customs authority (such as that relating to the ‘actual operational and supply needs of the installation’) are interpreted and applied in a correct manner.
105. This means that the elements taken into account by that authority, to verify whether those conditions are satisfied, pertain only to the reliability of the warehousekeeper and not to considerations of a different kind, such as of a commercial or economic nature. For example, the authorities could not make the granting of a licence subject to their own evaluation of whether there is market demand for additional warehouses, or whether the area selected for the installation is sufficiently ‘covered’ by other warehouses.
106. The appropriateness of the measure also presupposes that the criteria set out in the Legislative Decree (in terms of types of parameter, amounts at which those parameters are set, and so forth) can make a meaningful contribution to the objective pursued, in casu preventing tax evasion and abuse. That is, are those criteria adequate to identify the situations that give rise more frequently to fraud and abuse, bearing in mind the resources that the State can reasonably deploy for ex ante and ex post controls?
107. Secondly, in respect of the requirement that the measure be ‘necessary’, the referring court should ascertain (i) whether equally effective measures existed which were less restrictive and (ii) whether that measure does not go beyond what is required to achieve the objective in question.
108. In practice, that means, most of all, that it is necessary to consider whether it was feasible for the Italian authorities to adopt alternative less stringent conditions, (63) which would have attained the appropriate level of protection against tax evasion and fraud.
109. Thirdly, proportionality sensu stricto entails an assessment of the disadvantages caused by a given measure and whether such disadvantages are proportionate to the aims pursued. That means, in particular, focusing on whether the measure in question strikes a fair balance between the interests at stake, that is, the interest pursued by the State with the measure in question (preventing tax evasion and abuse), and that of the persons adversely affected (the undertakings which find it difficult or even impossible to prove their reliability).
110. In the light of the arguments put forward by CPR, it seems to me that, in the present case, it will be crucial to verify that the Italian legislature has not set ‘the bar’ too high, so that only (or mainly) large groups can actually benefit from the fiscal advantage in question. Smaller companies and independent operators should also be able to demonstrate their reliability without having to undergo excessive, unnecessary or unreasonably lengthy and costly administrative procedures.
111. In this context, it is naturally important to verify not only that the criteria set out in the Legislative Decree are adequate ‘on paper’, but also that they are applied by the customs authorities in an equitable and non-discriminatory fashion. Any difference in the treatment between different operators – both in the law itself and in its daily application – should be reasonable, and linked to an objective difference concerning the level of risk in each situation to the effective collection of excise duties.
112. In this context, I would add that the fact that the administrative authorities (in casu, the customs agency) adopt non-binding acts (such as a ‘circolare amministrativa’ (64)) intended to provide guidance to their staff ‘on the ground’ in relation to the proper interpretation of the relevant national legislation does not appear to be problematic per se. In that regard, there are two points which should, nonetheless, be made. First, even though they are non-binding, it is crucial that those acts are consistent with EU law. Otherwise, they might be misleading for the authorities responsible for granting the licence, resulting in a potential breach of the relevant EU rules. Second, to the extent that such acts have a material impact on how the conditions laid down in the national legislation are applied, it may be necessary, on grounds of legal certainty, to make those acts accessible to the undertakings affected.
113. In the light of the abovementioned considerations, it seems to me that Article 16 of Directive 2008/118 does not preclude national measures that set out criteria based on capacity, operational and supply needs, extraction ratios and/or functional relationship between warehouses, in order to authorise management of commercial warehouses dealing with energy products under duty suspension arrangements, subject to the principle of proportionality, the observance of which it is for the referring court to verify.
V. Conclusion
114. In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows:
(1) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market
– does not preclude national measures that set out criteria based on capacity, operational and supply needs, extraction ratios and/or functional relationship between warehouses, to authorise management of commercial warehouses dealing with energy products under duty suspension arrangements; and
(2) Article 16 of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC
– does not preclude national measures that set out criteria based on capacity, operational and supply needs, extraction ratios and/or functional relationship between warehouses, in order to authorise management of commercial warehouses dealing with energy products under duty suspension arrangements, subject to the principle of proportionality.