39In this regard, it should be emphasised that Article 8(1)(a)(ii) of Directive 2008/118 provides, in the case of an irregular departure of excise goods under a duty suspension arrangement, for liability to pay the excise duty on the part of any person who participated in the irregular departure and who, furthermore, was aware or should reasonably have been aware of the irregular nature of the departure. However, the EU legislature did not restate this second condition, which can be regarded as requiring an element of intention, in Article 38(3) of the directive.
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