The Contents of Highlights & Insights on European Taxation, Issue 8 2026

Please find below a selection of articles published this month (August 2026) in Highlights & Insights on European Taxation, plus one freely accessible article.

Highlights & Insights on European Taxation (H&I) is a publication by Wolters Kluwer Nederland BV.

The journal offers extensive information on all recent developments in European Taxation in the area of direct taxation and state aid, VAT, customs and excises, and environmental taxes.

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Year 2026, no. 8      

TABLE OF CONTENTS 

GENERAL TOPICS

– Across Fiduciaria and Others (C-684/24 and C-685/24). Transparency rules on beneficial ownership of trusts are valid. Court of Justice

(comments by Edwin Thomas) (H&I 2026/233)

CUSTOMS AND EXCISE

– Hauptzollamt Munchen (Taxation d’un produit energetique utilise pour des tests de combustion) (T-562/25). Treatment of fuel consumed in industrial testing. General Court

(comments by Giorgio Emanuele Degani) (H&I 2026/222)

– Centro Petroli Roma – II (C-386/24). Conditions for authorising small-capacity tax warehouses under excise duty rules. Court of Justice

(comments by Giorgio Emanuele Degani) (H&I 2026/225)

– Dyrektor Izby Administracji Skarbowej w Łodzi (T-381/25). Excise duty exemption cannot depend solely on customs classification. General Court

(comments by Giorgio Emanuele Degani) (H&I 2026/224)

– Brenntag (T-361/25). Excise duty suspension and direct deliveries. No legal fiction of warehouse receipt and dispatch. General Court

(comments by Giorgio Emanuele Degani) (H&I 2026/223)

FREE ARTICLE

– Centro Petroli Roma – II (C-386/24). Conditions for authorising small-capacity tax warehouses under excise duty rules. Court of Justice

(comments by Giorgio Emanuele Degani) (H&I 2026/225)

Member States may make the authorisation of tax warehouses subject to objective criteria designed to prevent evasion and abuse, provided that such criteria comply with the principle of proportionality and do not go beyond what is necessary to ensure the proper functioning of the harmonised excise regime. This is the core of the judgment of 11 June 2026 in Case C‑386/24, in which the Court of Justice of the European Union (‘CJ’) addresses an issue which, for years, has been at the heart of litigation between operators and the customs administration: the lawfulness of the size-related and operational requirements imposed by the Italian legal system for access to the tax-warehousing regime.

The dispute arises from the suspension of the authorisation granted to a commercial warehouse which the Customs Agency considered no longer compliant with the conditions laid down in Article 23 of the Consolidated Law on Excise Duties. The applicant company challenged the compatibility of those requirements with Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (hereafter: ‘Directive 2008/118’) and with the Services Directive, arguing that the national legislation introduced unjustified restrictions on economic activity. The Council of State, hearing the appeal, considered it necessary to make a reference for a preliminary ruling in order to ascertain whether the Italian criteria – minimum storage capacity, genuine operational needs and, for smaller warehouses, minimum percentages of duty-exempt movements or dependence on another warehouse – were compatible with EU law.

This is, moreover, the second act of a dialogue already initiated with the order made in the same proceedings (order CJ 15 December 2022, C‑597/21, ECLI:EU:C:2022:1010), which clarified the conditions of the acte clair doctrine established as early as Cilfit and Others (CJ 6 October 1982, 283/81 Cilfit and Others, ECLI:EU:C:1982:335) and restated in Consorzio Italian Management and Catania Multiservizi (CJ 6 October 2021, C‑561/19 Consorzio Italian Management and Catania Multiservizi, ECLI:EU:C:2021:799). This is no marginal aspect. The referring court had pointed out that the domestic regime of civil liability of the judiciary, laid down in Article 2(3 bis) of Law No 117/1988, risks inducing courts of last instance to make 'defensive' references for a preliminary ruling, formulated for the sole purpose of shielding their members against possible actions for damages.

The Court, referring to the contemporaneous judgment in Remling (CJ 24 March 2026, C‑767/23 Remling, ECLI:EU:C:2026:243), reiterated that the individual liability of judges may arise only in wholly exceptional cases of serious and totally inexcusable conduct, in accordance with Euro Box Promotion and Others (CJ 21 December 2021, joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19 Euro Box Promotion and Others, ECLI:EU:C:2021:1034) and RS (CJ 22 February 2022, C‑430/21 RS, ECLI:EU:C:2022:99), and that a court of last instance which duly states the reasons for declining to make a reference, bringing its decision within one of the three Cilfit exceptions, cannot incur liability on that ground alone. At the same time, nothing prevents a national court from referring a question the answer to which leaves no scope for reasonable doubt, without the request thereby becoming inadmissible, as clarified in Bundesrepublik Deutschland (CJ 18 June 2024, C‑753/22 Bundesrepublik Deutschland, ECLI:EU:C:2024:524). What emerges is a reading of Law No 117/1988 consistent with judicial independence, which should defuse the automatic recourse to precautionary references highlighted by the Council of State itself.

On the substance, the Court, reconstructing the EU legislative framework, reaffirms that the tax-warehousing regime is not a 'commercial' institution but an instrument functional to the collection of excise duty. Directive 2008/118 – adopted on the basis of Article 93 EC, now Article 113 TFEU, and thus squarely within the tax field – allows Member States to make the opening and operation of tax warehouses subject to conditions laid down by the national authorities, provided that they are designed to prevent evasion or abuse. To that end, the Court relies on recital 15 of the Directive, which refers to the need for controls in premises where excise goods are produced and held, and on Article 16, which confers on Member States a broad but not unlimited regulatory power. The system is, after all, coherent: the production, processing and holding of goods under duty suspension may take place only in a tax warehouse (Article 15(2)); the inherent risks are covered by guarantees (Articles 16(2) and 18(1)); and irregularities in movement are specifically governed by Article 10. The prevention of evasion and abuse constitutes, against that background, an objective common to EU law and to national legal systems, as previously affirmed in Commission v Portugal (CJ 29 June 2017, C‑126/15 Commission v Portugal, ECLI:EU:C:2017:504) and Vinal (CJ 14 September 2023, C‑820/21 Vinal, ECLI:EU:C:2023:667), the latter delivered precisely on the revocation of a licence to operate a tax warehouse and thus the closest precedent to the present case.

The judgment further clarifies that the Italian requirements do not amount to a restriction on the freedom to provide services, since the tax field is excluded from the scope of the Services Directive under Article 2(3) thereof, read in the light of recital 29, in accordance with Airbnb Ireland and Airbnb Payments UK (CJ 22 December 2022, C‑83/21 Airbnb Ireland and Airbnb Payments UK, ECLI:EU:C:2022:1018). As regards the competition-law aspects, the Court does not address the merits: the questions concerning Articles 101 to 106 TFEU are declared inadmissible for failure to state reasons as to their connection with the dispute, pursuant to Article 94 of the Rules of Procedure, in line with the standards already set out in Consorzio Italian Management and Catania Multiservizi (Case C‑152/17). It nevertheless remains implicit in the structure of the decision that the national criteria do not discriminate between operators and pursue a legitimate objective of general interest, namely the protection of the public revenue: the size of the warehouse may be a relevant indicator for assessing the soundness of the business and its capacity to ensure a non-abusive use of the suspension arrangement.

The decisive point is proportionality. The Court observed that the Italian legislation distinguishes between large and small warehouses, imposing additional conditions on the latter for access to the regime. Far from being arbitrary, that differentiation responds to the need to prevent warehouses of limited capacity from being used as mere 'shells of convenience' for fictitious or marginal movements, with the ensuing risk of evasion. The provision of minimum thresholds of duty-exempt movements, or the structural connection with a principal warehouse, are regarded as measures appropriate to the objective pursued. It is worth emphasising, moreover, that the two requirements of paragraph 4 are alternative, not cumulative: a circumstance on which the Court relies at the admissibility stage, since a warehouse which does not reach the quantitative threshold may still access the regime as an 'offshoot' of a neighbouring tax warehouse belonging to the same group or permanently dedicated to serving the principal warehouse. The assessment of appropriateness is, however, the only one the Court carries out itself. The assessments of necessity and proportionality stricto sensu are left to the referring court, in line with the usual allocation of tasks in preliminary-ruling proceedings, in which the Court confines itself to providing the national court with guidance drawn from the case file enabling it to give judgment, as recently recalled in Familienstiftung (CJ 13 November 2025, C‑142/24 Familienstiftung, ECLI:EU:C:2025:873). It will be, therefore, for the Council of State to ascertain that no less restrictive but equally effective means exist and that the disadvantages caused are not disproportionate to the aims pursued, having regard to the impact of the rules on access to a regime which facilitates the intra-EU movement of excise goods. It is the Court itself which notes the relative imprecision of the criterion of 'genuine operational and supply needs of the facility', which leaves the customs authorities a margin of discretion so broad as to require verification that a refusal is not based on considerations unrelated to the reliability of the warehouse keeper and to the economic reality of the storage activity.

Herein lies the least persuasive aspect of the ruling. The operative part is a 'yes, but': compatibility is affirmed 'provided that the principle of proportionality is observed', so that the matter is reopened before the national court and the certainty which operators were awaiting remains, in part, deferred. The decision-making technique is understandable, but it cannot be overlooked that the most delicate limbs of the test – necessity and proportionality stricto sensu – remain undecided, with the risk that the same legislative framework will receive divergent applications before the courts adjudicating on the merits. Nor does the Court dwell on the rigidity of the threshold of 30 per cent of releases over the two-year period: a purely quantitative and retrospective parameter, which measures the operator's deservingness against historical data and risks penalising sound undertakings exposed to market fluctuations unrelated to their reliability. A substance-oriented reading of the excise system – the same that has led the Court, in other contexts, to give precedence to the economic function of transactions over their formal characterisation, as in Koppers Denmark (Case C‑49/17) – might have suggested allowing the operator to demonstrate by other means the genuineness of its activity, without remaining captive to a percentage-based automatism. Seen in this light, the final reference to proportionality also sounds like a warning: the threshold is lawful in the abstract, but its application cannot be turned into an irrebuttable presumption of abuse.

The decision is also significant because it confirms the lawfulness of a legislative framework which, in recent years, has generated substantial litigation, above all in relation to the suspension or revocation of authorisations. The administration may periodically verify the continued fulfilment of the requirements and suspend the authorisation where they cease to be met, provided that the operator has a reasonable period – in this instance, one year – to restore them, upon the expiry of which revocation is lawful. In practical terms, the judgment places a heightened duty to state reasons upon the Customs Agency: decisions refusing or suspending authorisations will have to explain, in concrete terms, why the activity of the warehouse does not display the economic reality justifying the suspension arrangement, and may not stop at the mere deviation from the quantitative parameter. Symmetrically, operators in pending proceedings will be able to urge the courts adjudicating on the merits to conduct a full review of the proportionality of the measure, relying on the passages of the judgment which confine administrative discretion within the perimeter of the warehouse keeper’s reliability.

In conclusion, the judgment strengthens the technical discretion of the Member States in the regulation of tax warehouses, provided that it is exercised within the bounds of proportionality and non-discrimination. After all, the suspension arrangement is a tax advantage which presupposes a genuine, structured and verifiable economic activity. The ruling confirms the lawfulness of the controls and criteria adopted but requires them to be applied consistently and transparently, avoiding excessively formalistic interpretations liable to upset the balance between the protection of the public revenue and the freedom to conduct business.

Dr Giorgio Emanuele Degani