Judgment of the Court (Fourth Chamber) of 11 June 2026.#Centro Petroli Roma Srl v Agenzia delle Dogane e dei Monopoli.#Request for a preliminary ruling from the Consiglio di Stato.#Reference for a preliminary ruling – Rule of law – Judicial independence – Article 267 TFEU – Obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Individual liability of judges – Taxation – General arrangements for excise duty – Directive 2008/118/EC – Article 16(1) – Tax warehouse – Opening and operation – Authorisation – Conditions – Fixing by national legislation – Distinction according to the storage capacity of warehouses – Criterion relating to the existence of ‘actual operational and supply needs of the installation’ for all warehouses – Additional criterion relating to the delivery of a minimum quantity of products over a reference period or to the dependence on another tax warehouse for small warehouses – Whether justified – Principle of proportionality.#Case C-386/24.

Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

11 June 2026 (*)

( Reference for a preliminary ruling – Rule of law – Judicial independence – Article 267 TFEU – Obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Individual liability of judges – Taxation – General arrangements for excise duty – Directive 2008/118/EC – Article 16(1) – Tax warehouse – Opening and operation – Authorisation – Conditions – Fixing by national legislation – Distinction according to the storage capacity of warehouses – Criterion relating to the existence of ‘actual operational and supply needs of the installation’ for all warehouses – Additional criterion relating to the delivery of a minimum quantity of products over a reference period or to the dependence on another tax warehouse for small warehouses – Whether justified – Principle of proportionality )

In Case C‑386/24,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 29 May 2024, received at the Court on 30 May 2024, in the proceedings

Centro Petroli Roma Srl

v

Agenzia delle Dogane e dei Monopoli,

interveners:

IP Industrial SpA,

Eni SpA,

THE COURT (Fourth Chamber),

composed of I. Jarukaitis (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fourth Chamber, M. Condinanzi, N. Jääskinen and R. Frendo, Judges,

Advocate General: N. Emiliou,

Registrar: G. Chiapponi, Administrator,

having regard to the written procedure and further to the hearing on 10 July 2025,

after considering the observations submitted on behalf of:

–        Centro Petroli Roma Srl, by G. Corso, G. Pesce and F. Tedeschini, avvocati,

–        the Italian Government, by S. Fiorentino and G. Palmieri, acting as Agents, and by A. Elefante and F. Meloncelli, avvocati dello Stato,

–        the European Commission, by M. Björkland, G. Meeßen, P. Rossi and C. Zois, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 October 2025,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Articles 101 to 106 TFEU, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) (‘the “Services” Directive’) and 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), as amended by Council Directive (EU) 2019/475 of 18 February 2019 (OJ 2019 L 83, p. 42) (‘Directive 2008/118’).

2        The request has been made in proceedings between Centro Petroli Roma Srl, a company incorporated under Italian law, and the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy) (‘the ADM’) concerning the decision by which the ADM suspended the authorisation issued to that company for the operation of a commercial warehouse under the tax warehouse regime.

 Legal context

 European Union law

 The ‘Services’ Directive

3        Recital 29 of the ‘Services’ Directive states:

‘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.’

4        Article 2(3) of that directive provides:

‘This Directive shall not apply to the field of taxation.’

5        Article 9(1) of that directive states:

‘Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:

(a)      the authorisation scheme does not discriminate against the provider in question;

(b)      the need for an authorisation scheme is justified by an overriding reason relating to the public interest;

(c)      the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.’

6        Article 14 of that directive provides:

‘Member States shall not make access to, or the exercise of, a service activity in their territory subject to compliance with any of the following:

…

5)      the case-by-case application of an economic test making the granting of authorisation subject to proof of the existence of an economic need or market demand, an assessment of the potential or current economic effects of the activity or an assessment of the appropriateness of the activity in relation to the economic planning objectives set by the competent authority; this prohibition shall not concern planning requirements which do not pursue economic aims but serve overriding reasons relating to the public interest;

…’

7        Under Article 15(2) of the ‘Services’ Directive:

‘Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:

(a)      quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between providers;

…’

8        The third subparagraph of Article 16(1) of that directive provides:

‘Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles:

…

(b)      necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment;

(c)      proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective.’

 Directive 2008/118

9        Recitals 2, 15 and 16 of Directive 2008/118, which was repealed with effect from 13 February 2023 by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4), stated:

‘(2)      Conditions for charging excise duty on the goods covered by 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)], hereinafter “excise goods”, need to remain harmonised in order to ensure the proper functioning of the internal market.

…

(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 and traders without authorised warehousekeeper status.’

10      Article 4 of Directive 2008/118 provided:

‘For the purpose of this Directive as well as its implementing provisions, the following definitions shall apply:

…

11.      “tax warehouse” means 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.’

11      Under Article 10 of that directive:

‘1.      Where an irregularity has occurred during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a), the release for consumption shall take place in the Member State where the irregularity occurred.

2.      Where an irregularity has been detected during a movement of excise goods under a duty suspension arrangement, giving rise to their release for consumption in accordance with Article 7(2)(a), and it is not possible to determine where the irregularity occurred, it shall be deemed to have occurred in the Member State in which and at the time when the irregularity was detected.

…’

12      Article 15 of that directive provided:

‘1.      Each Member State shall determine its rules concerning the production, processing and holding of excise goods, subject to this Directive.

2.      The production, processing and holding of excise goods, where the excise duty has not been paid, shall take place in a tax warehouse.’

13      Under Article 16 of Directive 2008/118:

‘1.      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.

2.      An authorised warehousekeeper shall be required to:

(a)      provide, if necessary, a guarantee to cover the risk inherent in the production, processing and holding of excise goods;

…’

14      Article 18(1) of that directive provided:

‘The competent authorities of the Member State of dispatch, under the conditions fixed by them, shall require that the risks inherent in the movement under suspension of excise duty be covered by a guarantee provided by the authorised warehousekeeper of dispatch or the registered consignor.’

 Italian law

15      Article 1(2)(e) of decreto legislativo 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 concerning taxes on production and consumption and related criminal and administrative penalties) of 26 October 1995 (GURI No 279 of 29 November 1995, Ordinary Supplement No 143) (‘Legislative Decree No 504/1995’), in the version applicable to the dispute in the main proceedings, defined a tax warehouse as an installation in which excise goods are produced, processed, held, received or dispatched under suspension of excise duty, pursuant to the conditions laid down by the tax authorities.

16      Under Article 23(1), (3), (4) and (12) of that legislative decree:

‘1.      Tax warehousing arrangements shall be authorised:

(a)      for refineries and other production installations where energy products referred to in Article 21(2) or energy products referred to in Article 21(3) are obtained, where their purpose is carburation and combustion, and excise goods within the meaning of Article 21(4) and (5);

(b)      for petrochemical installations.

…

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 a duty suspension arrangement to EU Member States or exports to countries outside the European Union, amounting to at least 30% of the total withdrawals over a two-year period;

(b)      the warehouse is an extension of a tax warehouse situated in the immediate vicinity belonging to the same group of companies or, if under different ownership, is intended to operate at the service of that warehouse on a permanent basis.

…

12.      The [ADM] shall verify that the conditions laid down in paragraph 4 are still satisfied and, if they cannot be considered to be satisfied, the authorisation referred to in that paragraph is suspended until it has been proven that they were re-established within a one-year time limit, with the authorisation being revoked once that time limit has passed. …’

17      ADM Circular No 14/D of 4 December 2017 contains guidelines for the application of Legislative Decree No 504/1995.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

18      Centro Petroli Roma is engaged in the production, processing and marketing of energy products and the provision of assistance, in tax-related matters, to technological installations for civil and industrial use.

19      On 17 February 2016, it obtained a licence to operate a commercial warehouse under the tax warehouse regime.

20      By Decision No 13042/RU of 25 February 2020 (‘the suspension decision’), the ADM suspended that licence on account of the failure to comply with the conditions laid down in Article 23(4) of Legislative Decree No 504/1995, namely requirements relating to the operational and supply needs of the installation and the minimum quantity of products subject to a reduced excise duty rate over the two-year period referred to in that provision.

21      Centro Petroli Roma brought an action for annulment of that decision and of ADM Circular No 14/D of 4 December 2017 before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy).

22      By judgment of 16 February 2021, that court dismissed the action.

23      Centro Petroli Roma brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy), which is the referring court.

24      That company claimed, inter alia, that Article 23 of Legislative Decree No 504/1995 was incompatible with the ‘Services’ Directive and Directive 2008/118, and with the rules of the FEU Treaty protecting free competition. It therefore asked that Article 23(3) and (4) of that legislative decree be disapplied and, in the alternative, that a request for a preliminary ruling be made to the Court of Justice.

25      By decision of 14 September 2021, the referring court decided to stay the proceedings and to submit a first request to the Court of Justice for a preliminary ruling.

26      In that decision, the referring court stated, first, that, although it considered the national legislation at issue in the dispute before it to be compatible with EU law, it considered it necessary, by a first question, to seek clarification from the Court of Justice on, in essence, the criteria for implementing the doctrine of ‘acte clair’, according to which a national court of last instance is relieved of its obligation to make a reference for a preliminary ruling where the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt.

27      In particular, the referring court expressed doubts as to 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 EU law.

28      Secondly, the referring court had noted that, under the provisions governing civil liability of Italian supreme courts, the liability of the magistrates of which the court of last instance is composed may be incurred in the event of a breach of the obligation to make a reference, on the basis of paragraph 3bis of Article 2 of legge n. 117 – Risarcimento dei danni cagionati nell’esercizio delle funzioni giudiziarie e responsabilità civile dei magistrati (Law No 117 on the compensation for damage caused in the exercise of judicial functions and civil liability of magistrates) of 13 April 1988 (GURI No 88 of 15 April 1988, p. 3), in the version applicable to the dispute in the main proceedings (‘Law No 117/1988’). That provision provides that, for the purpose of determining cases of manifest infringement of EU law by an act or measure, particular account is to be taken of the failure to comply with the obligation to make a reference for a preliminary ruling, as well as the conflict between the act or measure and the interpretation provided by the Court of Justice.

29      It follows that, in order to prevent their members from being exposed to an action for damages, Italian courts of last instance are systematically required to make a reference, including where they consider that the interpretation of EU law is so obvious as to leave no scope for reasonable doubt.

30      Uncertain whether such a system of liability of judges is compatible with EU law, the referring court had also asked the Court whether Article 267 TFEU, read in the light of the principle of judicial independence and the principle that proceedings must be concluded within a reasonable time, must be interpreted as precluding a national supreme court that rejected a request that it make a reference for a preliminary ruling from being subject to civil and disciplinary proceedings.

31      Thirdly, in the event that the Court should hold that a court of last instance can be relieved of its obligation to make a reference only on the condition that it has established in detail that the other courts of last instance of the Member States and the Court of Justice would give the same interpretation of EU law, the referring court had referred to the Court of Justice a question for a preliminary ruling on the interpretation of the ‘Services’ Directive and Directive 2008/118, and Articles 101 to 106 TFEU, as suggested by the applicant in the case before the referring court.

32      By its order of 15 December 2022, Centro Petroli Roma (C‑597/21, EU:C:2022:1010), the Court of Justice ruled, in response to the first question, that Article 267 TFEU must be interpreted as meaning that a national court or tribunal of last instance may refrain from submitting to the Court of Justice a question on the interpretation of EU law and may take upon itself the responsibility for resolving that question where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and that this must be assessed on the basis of the specific characteristics of EU law, the particular difficulties that its interpretation presents and the risk of divergences in case-law within the European Union.

33      The Court specified, in that connection, that that national court or tribunal is not required to establish in detail that the other courts or tribunals of last instance of the Member States and the Court would give the same interpretation of EU law, but must have satisfied itself, following an assessment which takes account of those factors, that the matter would be equally obvious to those other national courts or tribunals and to the Court.

34      In paragraphs 63 to 65 of that order, the Court held that the second question, referred to in paragraph 30 above, was manifestly inadmissible, since it was apparent that it bore no relation to the subject matter of the dispute before the referring court.

35      In paragraph 66 of that order, the Court noted that the third question, referred to in paragraph 31 above, was raised only in the event that the first question was answered in the affirmative and concluded, in the light of the response given to the first question, that there was no need to answer that third question.

36      Following that order, the referring court, which notes that the applicant in the dispute before it reiterated its request for a preliminary ruling, considers that certain grounds remain which led it to ask the Court of Justice whether EU law precludes a national provision such as Article 23 of Legislative Decree No 504/1995.

37      Furthermore, as regards the question concerning the system of liability of judges established by Law No 117/1988, that court considers it appropriate to submit the answer it plans to give to that question for consideration by the Court of Justice, so that the Court of Justice may provide an answer, even if indirectly. The referring court notes, to that end, that it considers an answer to that question to be essential to ensure the proper functioning of the system of cooperation between the national courts and the Court of Justice, embodied by the preliminary ruling mechanism.

38      In that connection, it observes that the statistical data reveal that the number of preliminary references made by it has always been higher than that of references made by the supreme administrative courts of other Member States and speak to a certain reflexiveness in its practice of making a reference for a preliminary ruling, including where there is an ‘acte clair’.

39      That situation stems, in part, from Law No 117/1988 which, by providing that, in order to assess the liability of judges in the event that they manifestly infringe EU law, failure to comply with the obligation to make a reference for a preliminary ruling must be taken into account, is capable of influencing those judges, by encouraging them – so as to protect themselves against the risk of potential liability – to refer questions for a preliminary ruling, even if they are manifestly inadmissible.

40      The referring court considers that the judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799), provides useful guidance for the interpretation of the compatibility of that system of liability of judges with EU law. The referring court states that it was noted, in that judgment, that the preliminary reference procedure constitutes an instrument of co-operation between courts, not a means of redress available to the parties, and that it cannot deprive national courts of their independence by compelling them to submit a request for a preliminary ruling. However, that does not eliminate the obligation on national courts of last instance to examine the request for a preliminary ruling submitted by those parties with all the requisite attention and, as the case may be, to set out the circumstances justifying its decision to refrain from making such a reference, stating the reasons for its decision in that connection.

41      According to the referring court, inasmuch as it follows from that judgment and from the case-law of the European Court of Human Rights that it is sufficient, in order to rule out a finding of breach of EU law, that reasons are given for the refusal to make a reference for a preliminary ruling, Law No 117/1988 could be interpreted as meaning that the liability of judges for a failure to make a reference for a preliminary ruling should be incurred only in the event of a breach of the obligation to state reasons for such a refusal. The opposite solution, which consists in allowing the civil liability of judges of last instance to be incurred on account of the lack of an automatic referral to the Court of Justice following a question for preliminary ruling being proposed by one of the parties to the proceedings, is incompatible with EU law and puts the independence of national courts at risk.

42      As regards the substantive questions concerning the compatibility of the national legislation at issue before it with EU law, the referring court states that, in its view, Legislative Decree No 504/1995 infringes neither the ‘Services’ Directive nor Articles 101 to 106 TFEU. The tax warehouse regime, inasmuch as it allows undertakings only to receive, hold and move energy products under suspension of excise duty, constitutes primarily a tax advantage. Since that regime does not operate on a ‘commercial’ level, there is no impact on the freedom to provide services. Furthermore, the ‘Services’ Directive does not regulate the tax aspects of the provision of services.

43      The referring court considers that that national legislation is also not contrary to Directive 2008/118, since it lays down objective criteria and aims to prevent evasion and abuse. The risk that the undertaking benefitting from the tax warehouse regime does not actually engage in an economic activity and uses the warehouse as a simple expedient to evade the payment of excise duty is lower if that warehouse is of a large operational size.

44      In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does the correct interpretation of Articles 101 to 106 TFEU, and of the legislative framework set out in [the “Services” Directive and Directive 2008/118], preclude a national rule, such as that arising from Article 23(3) of [Legislative Decree No 504/1995], which provides that … 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 [the “Services” Directive and Directive 2008/118], preclude a national rule, such as that arising from Article 23(4)(a) and (b) of [Legislative Decree No 504/1995], 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 [of that article], at least one of the following conditions is met:

–        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 [exports] to countries outside the European Union … [amounting to] at least 30% of the total [withdrawals over a two-year period];

–        the warehouse is an extension of a tax warehouse situated in the immediate vicinity belonging to the same group of companies or, if under different ownership, 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 [the “Services” Directive and Directive 2008/118], and, in particular, in Article 9, point 5 of Article 14, and Article 15(2) of [the “Services” Directive], 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 [Legislative Decree No 504/1995]?’

 Admissibility

 Admissibility of the request for a preliminary ruling in its entirety

45      The Italian Government submits that the request for a preliminary ruling is inadmissible in its entirety, on the ground that the referring court has no reasonable doubt as to the interpretation of EU law and is convinced that the national legislation at issue in the main proceedings is compatible therewith.

46      However, it should be noted that, contrary to what that government argues, that court considers that there remains ‘reasonable doubt’ as to the interpretation of EU law provisions in relation to the national legislation at issue in the main proceedings, even if that ‘reasonable doubt’ arises in a context where the referring court justifies the reference to the Court of Justice principally by the fact that it fears that the personal liability of the judges of which it is composed will be called into question by the applicant in the main proceedings, on the basis of paragraph 3bis of Article 2 of Law No 117/1988, in the event that the referring court refuses that applicant’s request that it make a reference for a preliminary ruling.

47      In that particular context, it is useful to bear in mind at the outset that the establishment of a system of liability of judges for damages resulting from a judicial error they made or from a system of disciplinary liability of judges falls within the organisation of justice and, therefore, within the Member States’ competence, subject to compliance with EU law and, accordingly, with requirements of EU law, in particular the independence of the courts called upon to rule on questions concerning the application or interpretation of EU law, in order to ensure the effective judicial protection of individuals required under the second subparagraph of Article 19(1) TEU (see, to that effect, judgments of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 229 and 230, and of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 136).

48      To recognise a principle of personal liability of judges for judicial decisions entails a risk that judicial independence will be interfered with in that such recognition may influence the decision-making of those having the task of adjudicating (see, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 232).

49      In order to preserve that independence, it is necessary that that liability arises only in completely exceptional cases of serious and totally inexcusable forms of conduct on the part of judges, consisting, for example, in violating deliberately and in bad faith, or as a result of particularly serious and gross negligence, national and EU law, or acting arbitrarily or denying justice, and that it is circumscribed by objective and verifiable criteria, arising from requirements relating to the good administration of justice, and by safeguards designed to avoid any risk of external pressure on the content of judicial decisions (see, to that effect, judgments of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraphs 238 and 240; of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 83; and of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraphs 126 and 127 and the case-law cited).

50      In that context, according to settled case-law, a national court or tribunal of last instance cannot be relieved of the obligation laid down in the third paragraph of Article 267 TFEU unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (judgments of 6 October 1982, Cilfit, 283/81, EU:C:1982:335, paragraph 21, and of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraph 33) (‘the three Cilfit exceptions’).

51      National courts of last instance must therefore take upon themselves, independently and with all the requisite attention, the responsibility for determining whether they are under an obligation to refer to the Court the question of EU law which has been raised before them or whether, on the contrary, they may be relieved of that obligation in so far as one of the three Cilfit exceptions is applicable (judgment of 24 March 2026, Remling, C‑767/23, EU:C:2026:243, paragraph 22 and the case-law cited).

52      In that regard, it follows from the system established by Article 267 TFEU, read in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, that, if a national court or tribunal of last instance considers that one of the three Cilfit exceptions applies and takes the view, therefore, that it is relieved of its obligation to make a reference to the Court under the third paragraph of Article 267 TFEU, the statement of reasons for its decision must show either that the question of EU law raised is irrelevant for the resolution of the dispute before it, or that the interpretation of the EU law provision concerned is based on the Court’s case-law or, in the absence of such case-law, that the interpretation of EU law was so obvious to the national court or tribunal of last instance as to leave no scope for any reasonable doubt (judgments of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraph 51, and of 24 March 2026, Remling, C‑767/23, EU:C:2026:243, paragraph 23).

53      As regards the acte clair exception, which is specifically mentioned by the referring court, the obligation to state reasons referred to in the preceding paragraph of the present judgment requires that it be demonstrated that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt, since the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties that its interpretation presents and the risk of divergences in case-law within the European Union. A national court or tribunal of last instance must indicate, in the light of those factors, why it is convinced that the matter would be equally obvious to the other national courts or tribunals of last instance and to the Court of Justice. That national court or tribunal is not, however, required to establish in detail that those other national courts and tribunals and the Court of Justice would arrive at the same interpretation (judgment of 24 March 2026, Remling, C‑767/23, EU:C:2026:243, paragraph 37).

54      It follows that, in the completely exceptional cases identified by the case-law cited in paragraph 49 above, the individual liability of judges of a national court of last instance, which complied with the obligation to state reasons described in the preceding paragraph of the present judgment, cannot be incurred solely because those judges did not grant a request to make a reference for a preliminary ruling which the parties submitted to them.

55      In that context, it should be borne in mind that a national court is in no way prevented from referring a question for a preliminary ruling to the Court, the answer to which leaves no scope for reasonable doubt. Accordingly, even if that were the case, the request for a preliminary ruling containing such a question does not thereby become inadmissible (judgments of 18 June 2024, Bundesrepublik Deutschland (Effect of a decision granting refugee status), C‑753/22, EU:C:2024:524, paragraph 46 and the case-law cited, and of 1 August 2025, Voore Mets and Lemeks Põlva, C‑784/23, EU:C:2025:609, paragraph 32).

56      In any case, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Thus, where the questions referred concern the interpretation or the validity of a rule of EU law, the Court is, in principle, bound to give a ruling (see judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 8, and of 5 February 2026, Fidenato, C‑364/24 and C‑393/24, EU:C:2026:67, paragraph 28). It follows that questions relating to EU law enjoy a presumption of relevance. The refusal of the Court to rule on a question referred for a preliminary ruling by a national court is possible only where it is quite obvious that the ruling sought by a national court on the interpretation or validity of a rule of EU law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (see judgments of 13 July 2000, Idéal tourisme, C‑36/99, EU:C:2000:405, paragraph 20, and of 5 February 2026, Fidenato, C‑364/24 and C‑393/24, EU:C:2026:67, paragraph 29).

57      In the present case, the referring court indicated in a precise manner the reasons why it considers that the response to the questions referred for a preliminary ruling is necessary in order to resolve the dispute before it. Accordingly, it is not apparent that the interpretation sought bears no relation to the actual facts of the main action or its purpose.

58      Accordingly, the plea of inadmissibility raised by the Italian Government cannot be upheld.

 Admissibility of the questions referred in so far as they relate to the interpretation of EU competition law

59      The European Commission submits that the questions submitted by the referring court are inadmissible in so far as they relate to the interpretation of Articles 101 to 106 TFEU, in respect of which the referring court did not supply the factual or legal material indicating how the national legislation at issue in the main proceedings infringes EU competition rules.

60      It should be noted that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice of which the national court is presumed to be aware (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 21). Those requirements are, furthermore, recalled in paragraphs 13, 15 and 16 of the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2019 C 380, p. 1), which now appear in paragraphs 13, 15 and 16 of the new version of the recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C, C/2024/6008).

61      Accordingly, it is particularly essential, as is stated in Article 94(c) of the Rules of Procedure, that the reference for a preliminary ruling itself contain a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 22).

62      In the present case, the referring court seeks an interpretation of Articles 101 to 106 TFEU by merely stating that the question of the interpretation of the principles of EU competition law is relevant and that the suspension decision could be illegal inasmuch as it undermines those principles. It does not provide any concrete explanation as to the relevance of Articles 101 to 106 TFEU to the resolution of the dispute in the main proceedings and does not explain the link it establishes between those articles and the national legislation at issue in the main proceedings.

63      It follows that the questions referred for a preliminary ruling are inadmissible in so far as they relate to the interpretation of those articles.

 Admissibility of the second question referred

64      The Italian Government considers that the second question referred for a preliminary ruling is inadmissible inasmuch as it relates to the compliance of Article 23(4)(b) of Legislative Decree No 504/1995 with EU law. The question referred in that connection is not necessary for the resolution of the dispute in the main proceedings since the referring court has expressly found that the suspension decision was adopted as a result of failure to comply with the quantitative criteria provided for in Article 23(3) and (4)(a) of Legislative Decree No 504/1995.

65      In that connection, it should be recalled that, according to the settled case-law referred to in paragraph 56 above, the Court of Justice may refuse a request submitted by a national court only where it is quite obvious that the ruling sought by a national court on the interpretation or validity of a rule of EU law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

66      In the present case, while the referring court indicated that the suspension decision was based on the failure, by the applicant in the main proceedings, to comply with the quantitative criteria set out in Article 23(3) and (4)(a) of Legislative Decree No 504/1995, it should be noted that the condition provided for in Article 23(4)(a) and that provided for in Article 23(4)(b) of that legislative decree are alternative conditions. It is not apparent from the request for a preliminary ruling that, under national procedural rules, the applicant in the main proceedings is not allowed to challenge the suspension decision before the referring court by relying on the fact that it satisfied the condition provided for in Article 23(4)(b) of that legislative decree.

67      In those circumstances, having regard to the information available to the Court, it is not obvious that the interpretation of EU law sought in that second question, in so far as it refers to Article 23(4)(b) of Legislative Decree No 504/1995, bears no relation to the actual facts or purpose of the main action.

68      In the light of all the foregoing considerations, it must be held that the second question referred is admissible.

 Consideration of the questions referred

69      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 9(1), Article 14(5), Article 15(2)(a) and the third paragraph of Article 16(1) of the ‘Services’ Directive and Article 16(1) of Directive 2008/118 must be interpreted as precluding national legislation, supplemented as the case may be by implementing measures, which makes the authorisation to manage commercial warehouses for liquefied petroleum gas with a capacity of less than 400 cubic metres and commercial warehouses for other energy products with a capacity of less than 10 000 cubic metres under the tax warehouse regime subject to the existence of ‘actual operational and supply needs of the installation’ and to the alternative condition that either (i) the warehouse in question carries out supplies of products exempt from excise duty or at a reduced rate of excise duty, transfers of energy products under duty suspension arrangements to Member States or exports to third countries amounting to at least 30% of the total withdrawals over a two-year period or (ii) the warehouse in question 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 the latter warehouse on a permanent basis.

70      Since the referring court has referred in its questions both to the ‘Services’ Directive and to Directive 2008/118, it must be stated, as a preliminary point, that only the second of those two directives is applicable to the dispute in the main proceedings.

71      Under Article 2(3) of the ‘Services’ Directive, that directive does not apply to the field of taxation. As is apparent from recital 29 of that directive, that exception is explained by the fact that the FEU Treaty provides specific legal bases for taxation matters and that, given the instruments of EU law already adopted in that field, it is necessary to exclude the field of taxation from the scope of that directive (see, to that effect, judgment of 22 December 2022, Airbnb Ireland and Airbnb Payments UK, C‑83/21, EU:C:2022:1018, paragraph 27).

72      In the present case, it is common ground that the national legislation at issue in the main proceedings sets the conditions under which the management of a warehouse under a duty suspension arrangement may be authorised by the ADM. Accordingly, that legislation implements Article 16(1) of Directive 2008/118, which provides that the opening and operation of a tax warehouse by an authorised warehousekeeper is to be subject to authorisation by the competent authorities of the Member State where the tax warehouse is situated. It should be recalled that that directive was adopted on the basis of Article 93 EC, now Article 113 TFEU. That first provision, which appeared in Chapter 2, entitled ‘Tax provisions’, of Title VI of the EC Treaty, conferred on the Council of the European Union the power to adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation in so far as that harmonisation was necessary to ensure the establishment and functioning of the internal market.

73      Given that the national legislation at issue in the main proceedings therefore comes under the field of taxation, it follows that the ‘Services’ Directive is not applicable to the dispute in the main proceedings, so there is no need to adjudicate on the interpretation of the provisions of that directive referred to by the referring court.

74      Accordingly, it is in the light of Directive 2008/118 alone that the questions referred for a preliminary ruling should be examined.

75      It follows from Article 15(1) of that directive that it is for each Member State to determine its rules concerning the production, processing and holding of excise goods, subject to that directive. Article 15(2) indicates, moreover, that the production, processing and holding of excise goods, where the excise duty has not been paid, is to take place in a tax warehouse.

76      As regards the authorisation arrangements for such a warehouse, Article 16(1) of Directive 2008/118 states, (i) in its first subparagraph, that the opening and operation of a tax warehouse by an authorised warehousekeeper is to be subject to authorisation by the competent authorities of the Member State where the tax warehouse is situated, and, (ii) in its second subparagraph, that such authorisation is to be subject to ‘the conditions that the authorities are entitled to lay down for the purposes of preventing any possible evasion or abuse’.

77      In that connection, it is apparent from settled case-law that, within the scope of Directive 2008/118, the purpose of which is to establish a harmonised general system of excise duties, the prevention of evasion and abuse is in general terms an objective common to both EU law and the laws of Member States. First, those Member States have a legitimate interest in taking appropriate steps to protect their financial interests, and second, the prevention of possible tax evasion, avoidance and abuse is an objective pursued by that directive, as recitals 15 and 16 and Article 16 thereof confirm (see, to that effect, judgments of 29 June 2017, Commission v Portugal, C‑126/15, EU:C:2017:504, paragraph 59, and of 14 September 2023, Vinal, C‑820/21, EU:C:2023:667, paragraph 31 and the case-law cited).

78      It is therefore apparent from the provisions of Directive 2008/118 referred to in paragraphs 75 and 76 above that the power to authorise the opening and operation of a tax warehouse and to set the conditions for the operation of that warehouse lies with the competent authorities of the Member State in which that warehouse is located and that that power is exercised without any limitations other than that, provided for in the second paragraph of Article 16(1) of Directive 2008/118 concerning the objective of preventing evasion or abuse.

79      In the context of the general arrangements for excise duty, the importance of that objective is emphasised by recital 15 of Directive 2008/118 which expressly states that the tax warehouse regime is aimed at ‘facilitating … checks’ in order to ensure the collection of the tax debt, and by the provisions of that directive which are intended to prevent any irregularities and their financial consequences and to penalise those irregularities. Accordingly, among those provisions, Article 16(2)(a) and Article 18(1) of that directive require a guarantee to cover the risks inherent in the production, processing and holding of excise goods and in the movement of goods under a duty suspension arrangement, while Article 10 of that directive determines the consequences of an irregularity occurring during a movement of excise goods under a duty suspension arrangement.

80      Consequently, Directive 2008/118, and, in particular, Article 16(1) thereof, leaves Member States a margin of discretion in determining the conditions for authorisation and operation of a tax warehouse, in so far as the measures they adopt have the objective of preventing evasion and abuse.

81      However, as the Advocate General noted, in essence, in points 99 and 100 of his Opinion, Member States must, in the exercise of the powers conferred on them by Directive 2008/118, not only ensure the effectiveness of that directive which, as recital 2 thereof in particular states, aims to ensure the proper functioning of the internal market by harmonising conditions for charging excise duty on goods, but also comply with the general principles of EU law, including, inter alia, the principle of proportionality.

82      That principle means that Member States must employ means which, whilst enabling them effectively to attain the objective pursued by their domestic laws, do not exceed the limits of what is necessary and are the least detrimental to the other objectives and the principles laid down by the relevant EU legislation. The case-law of the Court states in that regard that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 29 June 2017, Commission v Portugal, C‑126/15, EU:C:2017:504, paragraph 64 and the case-law cited).

83      Even though it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such legislation satisfies the conditions stemming from the principle of proportionality, the Court, which is called on to provide answers of use to that court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the court in question to give judgment (see, to that effect, judgment of 13 November 2025, Familienstiftung, C‑142/24, EU:C:2025:873, paragraph 73 and the case-law cited).

84      In the present case, as regards, first of all, the criterion relating to the ‘actual operational and supply needs of the installation’ provided for in Article 23(3) of Legislative Decree No 504/1995, it follows from the explanations provided by the Italian Government at the hearing that that criterion has the goal of verifying whether the economic activity exercised in the warehouse concerned is genuine, by checking the validity of the supply needs taking into account, in particular, the geographical situation of that warehouse, its storage capacity and the existence of a genuine market need.

85      Next, as regards the quantitative threshold provided for in Article 23(4)(a) of that legislative decree, which requires that at least 30% of withdrawals from the warehouse be in the form of supplies under exemption arrangements or subject to a reduced rate of excise duty, transfers to another Member State under suspension of excise duty or exports to a third country, the Italian Government claimed in its written observations and at the hearing that it is an expression of the requirement of actual operational needs and that it is an objective, reasonable and non-discriminatory criterion intended to show the functional link between the duty suspension arrangement and the effective functioning of the warehouse. Failure to reach that threshold is, accordingly, an indication that there is no need to operate the installation concerned under the tax warehouse regime.

86      As regards, lastly, the criterion based on the existence of a relationship of dependency on another tax warehouse, provided for in Article 23(4)(b) of Legislative Decree No 504/1995, it allows, according to the Italian Government, the authorisation of management under the tax warehouse regime to a warehouse which is the ‘satellite’ of a primary warehouse having itself demonstrated its storage capacity, which ensures the effective deployment of monitoring activities.

87      As regards, in the first place, the suitability of national legislation such as that at issue in the main proceedings for achieving its objective, it must be stated that both the criterion relating to ‘actual operational and supply needs’ provided for in Article 23(3) of Legislative Decree No 504/1995, and the alternative criteria of the quantitative threshold of 30% of withdrawals or the relationship of dependency between warehouses, provided for in Article 23(4)(a) and (b) of that legislative decree, are intended to allow competent customs authorities to verify whether the economic activity exercised by the warehouse is genuine. Accordingly, those criteria appear appropriate for attaining the objective pursued by Directive 2008/118 of combating evasion and abuse.

88      However, it should be noted that the relative lack of precision of the criterion relating to the existence of ‘actual operational and supply needs of the installation’, provided for in Article 23(3) of Legislative Decree No 504/1995, leaves a wide margin of discretion to the customs authorities. Therefore, as the Advocate General noted, in essence, in points 104 and 105 of his Opinion, the referring court must verify in particular that the elements taken into account by those authorities to determine whether that criterion is satisfied in reality allow those authorities to refuse the authorisation in question on the basis of considerations other than those relating to the reliability of the warehousekeeper and to the economic reality of his or her storage activity of goods under suspension of excise duty.

89      In that connection, inasmuch as the Italian Government indicated at the hearing that the assessment of supply needs was carried out while taking into account, inter alia, the geographical location of the warehouse in under-served areas, it is, in particular, for the referring court to verify that the criterion referred to in the preceding paragraph of the present judgment is actually aimed at verifying the reality of the operational activity of the warehouse for which a management authorisation under the tax warehouse regime is sought.

90      In the second place, as regards the necessity of national legislation such as that at issue in the main proceedings in the light of the objective of combating evasion and abuse, it will be for the referring court to verify whether the measures provided for by that legislation have been limited to what is strictly necessary and whether there are less restrictive but equally effective means of achieving that objective.

91      In the third place, as regards the proportionality, in the strict sense, of national legislation such as that at issue in the main proceedings, it will be for the referring court to verify whether that legislation is disproportionate to the intended objective, having regard to the impact that that legislation may have on the access of operators to the tax warehouse regime, which, by allowing, as provided for in Article 15(2) of Directive 2008/118, the production, processing and holding of goods under suspension of excise duty, contributes to facilitating the circulation of excise goods within the European Union.

92      Accordingly, the answer to the questions raised is that Article 16(1) of Directive 2008/118 must be interpreted as not precluding national legislation, supplemented as the case may be by implementing measures, which makes the authorisation to manage commercial warehouses for liquefied petroleum gas with a capacity of less than 400 cubic metres and commercial warehouses for other energy products with a capacity of less than 10 000 cubic metres under the tax warehouse regime subject to the existence of ‘actual operational and supply needs of the installation’ and to the alternative condition that either (i) the warehouse in question carries out supplies of products exempt from excise duty or at a reduced rate of excise duty, transfers of energy products under duty suspension arrangements to Member States or exports to third countries amounting to at least 30% of the total withdrawals over a two-year period or (ii) the warehouse in question 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 the latter warehouse on a permanent basis, provided that the principle of proportionality is observed.

 Costs

93      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 (Fourth Chamber) hereby rules:

Article 16(1) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, as amended by Council Directive (EU) 2019/475 of 18 February 2019,

must be interpreted as not precluding national legislation, supplemented as the case may be by implementing measures, which makes the authorisation to manage commercial warehouses for liquefied petroleum gas with a capacity of less than 400 cubic metres and commercial warehouses for other energy products with a capacity of less than 10 000 cubic metres under the tax warehouse regime subject to the existence of ‘actual operational and supply needs of the installation’ and to the alternative condition that either (i) the warehouse in question carries out supplies of products exempt from excise duty or at a reduced rate of excise duty, transfers of energy products under duty suspension arrangements to Member States or exports to third countries amounting to at least 30% of the total withdrawals over a two-year period or (ii) the warehouse in question 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 the latter warehouse on a permanent basis, provided that the principle of proportionality is observed.

[Signatures]

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*      Language of the case: Italian.