Background
Centro Petroli Roma Srl held a licence to operate a commercial energy-product warehouse under Italy’s tax warehouse (duty-suspension) regime. In February 2020 the Agenzia delle Dogane e dei Monopoli (ADM) suspended that licence because the company no longer satisfied the conditions imposed by Article 23(4) of Legislative Decree No 504/1995: specifically, the requirement that all warehouses demonstrate “actual operational and supply needs,” and, for small warehouses (below 10 000 m³ capacity for non-LPG products), the additional requirement that either at least 30% of total withdrawals over two years consist of exempt or reduced-rate supplies or cross-border movements, or that the warehouse operate as a permanent adjunct to a neighbouring tax warehouse.
Centro Petroli Roma challenged the suspension before the Tribunale amministrativo regionale per il Lazio, which dismissed the action. On appeal the Consiglio di Stato (Italy’s highest administrative court and the referring court) submitted a first set of preliminary questions in 2021 (Case C‑597/21). In its December 2022 order the Court resolved the acte clair question — holding that a court of last instance need not show in detail that every other supreme court would reach the same interpretation, only that the matter would be equally obvious to them — but declined to answer the substantive questions. Following that order, the Consiglio di Stato submitted a fresh reference raising three questions: whether Articles 101–106 TFEU, the Services Directive (2006/123/EC), and Directive 2008/118/EC preclude the large-warehouse criterion (Article 23(3)), the small-warehouse criteria (Article 23(4)(a)–(b)), and implementing circulars that amplify those criteria.
A further thread ran through the proceedings: the Consiglio di Stato flagged that Article 2 § 3 bis of Law No 117/1988 — which treats a judge’s failure to make a preliminary reference as a factor in assessing manifestly unlawful conduct — was inducing Italian courts of last instance to refer even where no genuine doubt existed, so as to shield individual judges from civil liability. The referring court asked the Court of Justice to address the compatibility of that regime with judicial independence guarantees.
The Court’s Holding
On judicial independence and judge liability, the Court reiterated that personal liability of judges must arise only in wholly exceptional cases involving deliberate bad faith, particularly serious and gross negligence, arbitrariness, or denial of justice, and must be circumscribed by objective, verifiable criteria. It followed from Article 267 TFEU, read with Article 47 of the Charter and the settled Cilfit/Consorzio Italian Management line of authority, that a court of last instance satisfies its obligation by properly stating reasons why one of the three Cilfit exceptions (irrelevance, prior interpretation, acte clair) applies. In such circumstances, the individual liability of judges cannot be incurred solely because they declined a party’s request to make a preliminary reference. A system that systematically exposes judges to liability — and thereby compels reflexive referrals even where EU law is clear — is incompatible with judicial independence.
On the substantive questions, the Court first confirmed that the Services Directive is entirely inapplicable: Recital 29 and Article 2(3) explicitly exclude taxation from its scope, and the tax warehouse regime is, at its core, a tax-advantaged holding arrangement rather than a commercial service subject to the internal-market services framework. Questions under Articles 14 and 15 of the Services Directive therefore fell away. The competition-law questions under Articles 101–106 TFEU were found inadmissible for lack of a sufficient connection to state action capable of engaging those provisions in the manner the referring court suggested. The operative framework was accordingly Directive 2008/118, Article 16(1), which authorises Member States to impose conditions on tax warehouse licences “for the purposes of preventing any possible evasion or abuse.”
Applying that provision together with the principle of proportionality, the Court held that Italian law’s distinction between large and small commercial warehouses — and the additional criteria imposed on small warehouses — pursue the legitimate aim of ensuring that the duty-suspension privilege is not abused by entities lacking genuine operational activity. The “actual operational and supply needs” criterion applicable to all warehouses, and the supplementary thresholds (minimum qualifying deliveries or structural dependence on a proximate warehouse) applicable to small warehouses, are suitable to that end and do not exceed what is necessary; Member States retain a wide margin of discretion under Article 16(1) to calibrate such conditions. Administrative circulars that clarify, without substantively extending, those statutory criteria do not introduce fresh disproportionate requirements and are therefore also compatible with EU law.
Key Takeaways
- A court of last instance fulfils its Article 267 TFEU duty by giving adequate reasons for invoking an acte clair or other Cilfit exception; individual judges cannot face civil liability merely for properly reasoned refusals to refer.
- The Services Directive (2006/123/EC) has no purchase over national tax warehouse regimes — its blanket exclusion of taxation (Article 2(3)) is unqualified.
- Directive 2008/118, Article 16(1) grants Member States broad discretion to condition tax warehouse authorisations on evidence of genuine operational need and minimum trading thresholds, provided the criteria are objectively justified by anti-evasion or anti-abuse aims and are proportionate.
- Size-based distinctions in warehouse licensing (large vs. small capacity thresholds) are permissible where they track the realistic risk that smaller installations may be used as empty shells to exploit the duty-suspension privilege.
- Implementing circulars that elaborate on statutory criteria without substantively widening them do not independently breach EU proportionality requirements.
Why It Matters
For practitioners advising on excise-duty planning and logistics across the EU, the judgment confirms that Member States may impose demanding eligibility criteria for tax warehouse status — including minimum throughput requirements and dependency conditions — without infringing EU harmonisation rules, as long as those criteria serve genuine anti-evasion objectives. Operators of smaller commercial energy depots, in particular, should expect national authorities to scrutinise whether their actual trading volumes and operational structures justify the duty-suspension privilege, and administrative guidance expanding on statutory thresholds will receive deference provided it stays within the statute’s bounds.
The judicial independence strand of the ruling carries systemic significance for the EU’s preliminary reference mechanism. By making clear that properly reasoned acte clair decisions cannot ground individual judge liability under national law, the Court pushes back against Member State regimes — Italy’s being the explicit example — that have the practical effect of flooding the Court of Justice with references on settled questions. The ruling reaffirms that Article 267 TFEU is an instrument of judicial cooperation, not a mechanism that parties can weaponise to expose individual judges to personal financial risk.