Judgment of the Court (Sixth Chamber) of 13 May 2026. – SWEDISH MATCH – FÓSFOROS DE PORTUGAL, S.A. v Autoridade Tributária e Aduaneira.

1

This request for a preliminary ruling concerns the interpretation of Article 28 et seq. TFEU and of Article 56 et seq. TFEU.

2

The request has been made in proceedings between SWEDISH MATCH – FÓSFOROS DE PORTUGAL, S.A. (‘Swedish Match’) and the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) concerning two adjustment notices which the latter sent to Swedish Match relating to excise duties on tobacco.

3

Article 3(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), as amended by Council Directive 94/74/EC of 22 December 1994 (OJ 1994 L 365, p. 46) (‘Directive 92/12’), provided:

‘This Directive shall apply at Community level to the following products as defined in the relevant Directives:

…

4

Article 21 of that directive provided:

‘1.   Without prejudice to Article 6(1), Member States may require that products released for consumption in their territory shall carry tax markings or national identification marks used for fiscal purposes.

2.   Any Member State which requires the use of tax marking 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 fiscal marks be made available to a tax representative authorised by the tax authority 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 fraud, evasion or abuse, Member States shall ensure that these marks or markings do not create obstacles to the free movement of products subject to excise duty.

…’

5

Under Article 22(1) and (2) of that directive:

‘1.   In appropriate cases, products subject to excise duty which have been released for consumption may, at the request of a trader in the course of his [or her] business, be eligible for reimbursement of excise duty by the tax authorities of the Member State where they were released for consumption when they are not [intended] for consumption in that Member State.

However, Member States may refuse this request for reimbursement where it does not satisfy the correctness criteria they lay down.

2.   In the application of paragraph 1, the following provisions shall apply:

…

6

Directive 92/12 was repealed by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) with effect from 1 April 2010 according to the first subparagraph of Article 47(1) of Directive 2008/118. Nevertheless, in view of the date of the facts of the dispute in the main proceedings, Directive 92/12 remains applicable to that dispute.

7

Paragraphs 21 to 24 of Portaria no 1295/2007, que aprova o novo modelo e as especificações técnicas da estampilha fiscal aplicável aos produtos de tabaco manufacturado destinado a ser introduzido no consumo no território nacional (Ministerial Order No 1295/2007 approving the new model and the technical specifications of the tax marking applicable to manufactured tobacco products intended to be released for consumption in the national territory), of 1 October 2007 (Diário da República, Series 1, No 189, of 1 October 2007), in their version applicable at the material time (‘Ministerial Order No 1295/2007’), provides:

‘21. The destruction of the tax markings shall be the subject of an application to the customs authorities, together with an indication of the place, date and reasons for the destruction. The operation, which must be carried out under the supervision of the customs authorities and in their presence, gives rise to the drawing up of a report indicating, in particular, the type of product, the tax area and the financial year to which the stamps relate, and the corresponding entry in the accounts.

22. Where destruction takes place outside the national territory, the failure to present the tax markings shall be justified by means of an appropriate declaration, issued by the competent authorities of the country of destination of the tax markings, identifying the type of product and the financial year to which they relate.

23. Any destruction of tax markings which takes place during the manufacturing process in production warehouses situated in the national territory may be the subject of a simplified justification procedure.

24. For the purposes of the previous paragraph, the destruction of tax markings up to a limit of 2% of the tax markings used annually during the manufacturing process shall be considered to be automatically justified’.

8

At the time of the facts giving rise to the dispute in the main proceedings, Swedish Match was engaged in the production and sale of manufactured tobacco. That company obtained the tax markings necessary for its business from the Imprensa Nacional – Casa da Moeda, S.A. (National Printing Office – Mint, Portugal) and then sent them to production sites in other Member States for the purpose of affixing them to the packaging of products released for consumption.

9

In 2011, Swedish Match ceased trading and requested the withdrawal of its status as an authorised warehousekeeper and the closure of its tax warehouse. Subsequently, the Portuguese authorities invited Swedish Match to submit to them the tax markings in the final balances for the financial years 2008 and 2009, which that company was unable to do because those markings had been destroyed or rendered unusable during the production process of the manufactured tobacco.

10

Following an investigation and in accordance with paragraph 22 of Ministerial Order No 1295/2007, which provides that, where the destruction takes place outside the national territory, the failure to present the tax markings must be justified by means of an appropriate declaration issued by the competent authorities of the country of destination of the tax markings, which must identify the type of product and the financial year to which those markings relate, the Portuguese authorities concluded that Swedish Match was not in a position to provide sufficient justification for the destruction of the tax markings concerned.

11

According to the information provided by the referring court, if the destruction had taken place in warehouses in Portugal, Swedish Match could have benefited from the simplified justification arrangements provided for in paragraphs 23 and 24 of Ministerial Order No 1295/2007 (‘the simplified justification arrangements’), under which it would have been automatically exempted from providing documentary evidence for the loss up to a limit of 2% of the tax markings used annually during the production process.

12

In July 2011, Swedish Match was served with two adjustment notices in respect of excise duties on tobacco for the financial years 2008 and 2009 amounting, respectively, to EUR 1 151 599.76 and EUR 213 557.03.

13

Since Swedish Match’s actions against those two adjustment notices were dismissed by the court of first instance and the appellate court, that company brought an appeal before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), which is the referring court, claiming, inter alia, that the simplified justification arrangements are incompatible with EU law on account of their territorial limitation.

14

In that regard, the referring court observes that those arrangements, through the rules of evidence which they lay down, favour the destruction of tax markings occurring in the national territory over those that take place in other Member States and indicates that, as a result, it has doubts as to the compatibility of such legislation with the free movement of goods and the freedom to provide services.

15

In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the free movement of goods, laid down in Article 28 TFEU et seq., and the freedom to provide services, laid down in Article 56 TFEU et seq., preclude [arrangements] such as those provided for in paragraphs 22, 23 and 24 of Ministerial Order No 1295/2007 …, in accordance with which the automatic justification of a fixed quantity of 2% of the stamps destroyed during the manufacturing process applies only if the tobacco products are manufactured on Portuguese national territory and does not apply if manufacturing takes place in any other Member State of the European Union?’

16

As a preliminary point, it should be recalled that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court of Justice should, where necessary, reformulate the questions referred to it and consider provisions of EU law which the national court has not referred to in its question (judgment of 30 January 2025, Caronte & Tourist, C‑511/23, EU:C:2025:42, paragraph 35 and the case-law cited). The Court of Justice may also provide guidance to the referring court based on, inter alia, the written observations submitted to it, in order to enable the referring court to give judgment (see, to that effect, judgment of 31 March 2022, CTS Eventim, C‑96/21, EU:C:2022:238, paragraph 20 and the case-law cited).

17

In the present case, the dispute in the main proceedings concerns the adjustment notices in respect of excise duties on tobacco, the amounts of which were calculated taking into account the fact that the destruction of tax markings issued for manufactured tobacco products for the financial years 2008 and 2009 could not be validly justified by the recipient of those tax markings.

18

Article 21(1) of Directive 92/12 expressly provides that Member States may require that products released for consumption in their territory are to carry tax markings, in particular manufactured tobacco, pursuant to the third indent of Article 3(1) of that directive. In accordance with Article 21(2) of that directive, without prejudice to any provisions they may lay down in order to ensure that Article 21 is implemented properly and to prevent any fraud, evasion or abuse, Member States are to ensure that those marks or markings do not create obstacles to the free movement of products subject to excise duty.

19

Article 22(2)(d) of that directive also provides for the possibility to obtain reimbursement of excise duty from the tax authorities of the Member State which issued the tax markings, specifically where the destruction of those marks has been established by the tax authorities of the Member State which issued them.

20

It follows that the question referred for a preliminary ruling, as the Portuguese Government and the European Commission also maintained in their written observations, must be examined in the light of Directive 92/12.

21

In those circumstances, the question referred for a preliminary ruling must be understood as meaning that the referring court asks, in essence, whether the second subparagraph of Article 21(2) of Directive 92/12 must be interpreted as precluding national legislation under which the destruction of tax markings up to a limit of 2% of the volume of markings used annually during the production process of products subject to excise duty is regarded as automatically justified, without the national authorities checking the lawfulness of that destruction, in so far as that legislation applies only where that destruction occurs in a warehouse located in the national territory and not in another Member State.

22

In that regard, it is apparent from the case-law of the Court that, in the absence of provisions relating to the disappearance of tax markings, Directive 92/12 leaves it to the Member States to determine the consequences of such disappearance and, in that context, does not, in principle, preclude the Member States from laying down national rules which, in the event that the tax markings disappear, place the financial responsibility for the loss of those markings on their purchaser (see, to that effect, judgment of 15 June 2006, Heintz van Landewijck, C‑494/04, EU:C:2006:407, paragraphs 41 and 44).

23

As the Commission stated in its written observations, the view must also be taken that, in the absence of specific rules relating to proof of destruction of tax markings, Directive 92/12, in principle, also allows the Member State that issued the tax markings to lay down the detailed rules under which an economic operator is required to justify the destruction of the tax markings issued to it, if necessary by establishing an evidence mechanism such as the simplified justification arrangements.

24

However, as has been pointed out in paragraph 18 above, it follows from the second subparagraph of Article 21(2) of Directive 92/12 that the detailed rules laid down by the Member State concerned in exercising the option referred to in the preceding paragraph of the present judgment must not create an obstacle to the free movement of excise goods.

25

In the present case, it is apparent from the documents before the Court that the Portuguese authorities considered that Swedish Match was unable to justify, in accordance with the applicable national legislation, the destruction of tax markings during the production process in other Member States of the products concerned, whereas, if that destruction had occurred during the production process taking place on Portuguese territory, the simplified justification arrangements would have enabled it to benefit from a ground of automatic justification for that destruction up to a limit of 2% of the total number of tax markings consumed annually.

26

Such legislation constitutes a barrier to the free movement of goods subject to excise duty, since the relaxation of the burden of proof which it makes provision for applies only to the losses of goods that are manufactured on Portuguese territory and, accordingly, it is liable to discourage an economic operator from obtaining supplies of goods in other Member States in order to market them in its national territory (see, to that effect, judgments of 7 May 1985, Commission v France, 18/84, EU:C:1985:175, paragraph 16, and of 28 April 1998, Decker, C‑120/95, EU:C:1998:167, paragraph 36).

27

As regards a possible justification for that restriction, the second subparagraph of Article 21(2) of Directive 92/12 expressly provides for the possibility for Member States to adopt national provisions on tax markings with a view to preventing any fraud, evasion or abuse.

28

Furthermore, in accordance with settled case-law on free movement, the objective of preventing tax evasion and avoidance and of guaranteeing the effectiveness of fiscal supervision may justify national measures hindering trade within the European Union, subject to those measures being appropriate for securing the achievement of the objective pursued and not going beyond what is necessary to attain that objective (see, to that effect, judgments of 27 January 2022, Commission v Spain (Obligation to provide tax information), C‑788/19, EU:C:2022:55, paragraphs 22 and 24 and the case-law cited, and of 21 December 2023, CDIL, C‑96/22, EU:C:2023:1025, paragraphs 36 and 38 and the case-law cited). In that context, a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner (judgment of 29 July 2024, BP France, C‑624/22, EU:C:2024:640, paragraph 73 and the case-law cited).

29

In the present case, the Portuguese Government submitted, in its written observations, that the territorial limitation laid down in the simplified justification arrangements is intended to guarantee the effective payment of excise duty and to combat fraudulent practices. A more stringent level of control is necessary in cross-border situations where there is a higher risk of tax evasion. The Portuguese authorities are not in a position to exercise direct control over the destruction of tax markings which occurred outside the national territory.

30

It is for the referring court to assess whether, having regard to paragraphs 27 and 28 above, that limitation is appropriate for securing the achievement of the objective of preventing any fraud, evasion or abuse and does not go beyond what is necessary to attain that objective. The Court may nevertheless provide it with useful guidance to assist it in that assessment (see, to that effect, judgment of 19 November 2020, B S and C A (Marketing of cannabidiol (CBD)), C‑663/18, EU:C:2020:938, paragraph 93).

31

In that regard, contrary to what the Portuguese Government maintained in its written observations, that limitation does not appear to be justified merely because the competent national authorities are not in a position to verify the lawfulness of the destruction of tax markings occurring in the territory of other Member States.

32

By way of derogation from paragraph 21 of Ministerial Order No 1295/2007, the simplified justification arrangements have the effect that, up to the limit of 2% referred to in paragraph 11 above, the destruction of tax markings occurring on national territory is automatically exempt from any checks by the Portuguese tax authorities, whether by their presence on the spot or by the production of supporting documents. In such a situation, the Portuguese legislature therefore waived any administrative oversight of the lawfulness of those destructions, provided that they did not exceed that limit.

33

There is nothing in the documents before the Court to suggest that Portuguese law provides for alternative fiscal supervision mechanisms which guarantee, directly or indirectly, the lawfulness of the destruction of tax markings occurring in the national territory within that limit. In the absence of such mechanisms, the Portuguese Government’s argument that it is necessary to refuse the benefit of the simplified justification arrangements where destruction takes place in other Member States in order to ensure, in a consistent and systematic manner, a sufficiently effective level of fiscal supervision is irrelevant.

34

In addition, the Portuguese Government stated that the limit of 2% of tax markings consumed annually during the production process laid down by the simplified justification arrangements covers ‘foreseeable losses’ of tax markings during the production of products subject to excise duty. In order to justify the territorial limitation of that system and stricter supervision in the event of greater loss, that government treats cases of ‘abnormal’ losses, that is to say, those exceeding that limit, as cases of loss occurring outside the national territory.

35

As is apparent from settled case-law, the prevention of tax evasion can be accepted as justification only if the national legislation concerned is aimed at preventing conduct involving the creation of arrangements that do not reflect economic reality, the aim of which is to circumvent tax legislation (see, to that effect, judgments of 11 October 2007, ELISA, C‑451/05, EU:C:2007:594, paragraph 91 and the case-law cited, and of 13 March 2025, John Cockerill, C‑135/24, EU:C:2025:176, paragraph 47 and the case-law cited). The imposition of a general national tax measure automatically excluding a category of taxpayers from the tax advantage, without the tax authorities being obliged to provide even prima facie evidence of unlawful conduct, would go further than is necessary for preventing any fraud, evasion or abuse (see, to that effect, judgment of 4 October 2024, Staatssecretaris van Financiën (Interest in respect of an intra-group loan), C‑585/22, EU:C:2024:822, paragraph 68 and the case-law cited).

36

Consequently, a national tax measure that constitutes an obstacle to the free movement of excise goods cannot be justified on the basis of a general presumption of fraud, evasion and abuse based solely on the fact that the tax markings relate to products manufactured in another Member State (see, to that effect, judgments of 20 December 2017, Deister Holding and Juhler Holding, C‑504/16 and C‑613/16, EU:C:2017:1009, paragraph 61 and the case-law cited, and of 20 September 2018, EV, C‑685/16, EU:C:2018:743, paragraph 96 and the case-law cited).

37

In those circumstances, on the basis of the documents before the Court and subject to verification by the referring court, the territorial limitation of the simplified justification arrangements appears neither appropriate for securing the attainment, in a consistent and systematic manner, of the objective of preventing any fraud, evasion or abuse, referred to in the second subparagraph of Article 21(2) of Directive 92/12, nor necessary in order to attain that objective.

38

It should be noted that there is no need to examine whether the provisions of the FEU Treaty relating to the free movement of goods and the freedom to provide services, referred to by the referring court, preclude national legislation such as that at issue in the main proceedings. Where a matter is harmonised at EU level, national measures relating thereto must be assessed in the light of the provisions of that harmonising measure and not of those of the FEU Treaty (judgment of 19 October 2017, Air Berlin, C‑573/16, EU:C:2017:772, paragraph 28 and the case-law cited).

39

In the light of the foregoing, the answer to the question referred for a preliminary ruling is that the second subparagraph of Article 21(2) of Directive 92/12 must be interpreted as precluding national legislation under which the destruction of tax markings up to a limit of 2% of the volume of markings used annually during the production process of products subject to excise duty is regarded as automatically justified, without the national authorities checking the lawfulness of that destruction, in so far as that legislation applies only where that destruction occurs in a warehouse located in the national territory and not in another Member State.

40

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

The second subparagraph of Article 21(2) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 94/74/EC of 22 December 1994,

must be interpreted as precluding national legislation under which the destruction of tax markings up to a limit of 2% of the volume of markings used annually during the production process of products subject to excise duty is regarded as automatically justified, without the national authorities checking the lawfulness of that destruction, in so far as that legislation applies only where that destruction occurs in a warehouse located in the national territory and not in another Member State.