L_2006119EN.01001201.xml
| 4.5.2006 | EN | Official Journal of the European Union | L 119/12 |
COMMISSION DECISION
of 7 December 2005
concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy
(notified under document number C(2005) 4436)
(Only the French, English and Italian versions are authentic)
(Text with EEA relevance)
(2006/323/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provision(s) cited above (1) and having regard to their comments,
Whereas:
1. PROCEDURE
| (1) | Ireland exempted heavy fuel used in the production of alumina in the Shannon region from the domestic excise taxes from 1983 onwards. Italy and France granted similar exemptions in respect of fuel used in plants located on Sardinia and in the Gardanne region from 1993 and 1997 respectively. Article 6 of Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (2) established a minimum rate of excise duty on heavy oil, which Member States had to apply from 1 January 1993. However, the Council authorised Ireland to exempt mineral oils used for alumina production in the Shannon region from the excise duty (hereinafter ‘the Irish exemption’) by the following decisions:
| — | Council Decision 92/510/EEC of 19 October 1992 authorizing Member States to continue to apply to certain mineral oils when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8 (4) of Directive 92/81/EEC (3); |
| — | Council Decision 97/425/EC of 30 June 1997 authorizing Member States to apply and to continue to apply to certain mineral oils, when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Directive 92/81/EEC (4); |
| — | Council Decision 1999/880/EC of 17 December 1999 authorising Member States to apply and to continue to apply to certain mineral oils, when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Directive 92/81/EEC (5); |
| — | Council Decision 2001/224/EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (6); | |
| (2) | Decisions 97/425/EC, 1999/880/EC and 2001/224/EC, as well as Council Decision 93/697/EC of 13 December 1993 authorizing certain Member States to apply or to continue to apply to certain mineral oils, when used for specific purposes, reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81/EEC (7), Council Decision 96/273/EC of 22 April 1996 authorizing certain Member States to apply or to continue to apply to certain mineral oils, when used for specific purposes, reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81/EEC (8) and Council Decision 1999/255/EC of 30 March 1999 authorising, in accordance with Directive 92/81/EEC, certain Member States to apply and to continue to apply to certain mineral oils, reduced rates of excise duty or exemptions from excise duty, and amending Decision 97/425/EC (9), authorised similar exemptions in respect of mineral oils used as fuel for alumina production in Sardinia, Italy (hereinafter ‘the Italian exemption’). |
| (3) | Decisions 97/425/EC, 1999/255/EC, 1999/880/EC and 2001/224/EC also authorised exemptions in respect of mineral oil used as fuel for alumina production in the Gardanne region of France (hereinafter ‘the French exemption’). |
| (4) | The fifth recital in the preamble to Decision 2001/224/EC states that ‘this decision shall be without prejudice to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles 87 and 88 of the Treaty. It does not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 of the Treaty’. Decision 1999/880/EC authorises the exemptions until 31 December 2000. Decision 2001/224/EC authorises the exemptions until 31 December 2006. |
| (5) | Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (10) repealed Directive 92/82/EEC as from 31 December 2003. Article 2(4)(b) of Directive 2003/96/EC, states that the Directive does not apply to a number of uses of energy, notably dual use of energy products. The second indent of Article 2(4)(b) states that the use of energy products for chemical reduction and in electrolytic and metallurgical processes is to be regarded as dual use. Hence, as from 31 December 2003, when that Directive became applicable, there has no longer been any minimum excise duty for heavy fuel used in the production of alumina. |
| (6) | As early as 1970, when no alumina was yet produced in Ireland, the Irish Industrial Development Authority and Aughinish Alumina Ltd (hereinafter ‘Aughinish’) discussed the possibility of recovering duties paid on raw materials used for the manufacture of goods that were exported in accordance with the legislation in force at the time. It was agreed that such an exemption would become applicable in the event that Aughinish set up a plant in Ireland. A significant change of legislation took effect as from 1975. Aughinish started making its investment in 1978 and operations started in 1982. The Irish exemption came into effect in 1983. |
| (7) | By letter of 28 January 1983, Ireland informed the Commission of the commitment given to Aughinish and of its planned implementation. By letter of 22 March 1983, the Commission replied, explaining that ‘if the aid is only now about to be implemented, the Commission could regard the letter of 28.1.1983 as a notification in the terms of Article 93(3) [now Article 87(3)] of the Treaty’. Ireland confirmed that this was the case by letter of 6 May 1983. No decision was adopted further to that correspondence. |
| (8) | By letters of 29 May 1998 (D/52247) and 2 June 1998 (D/52261), the Commission requested information from Italy and France respectively in order to verify whether the Italian and French exemptions would fall within the scope of Articles 92 and 93 (now Articles 87 and 88) of the Treaty. The Commission reminded Italy of its request by letter of 16 June 1998 (D/52504). Italy answered by letter of 20 July 1998 (registered on 23 July 1998 under A/35747). Having requested an extension of the delay for reply by letter of 10 July 1998 (registered on 13 July 1998 under A/35402), which was granted by letter of 24 July 1998 (D/53163), France replied by letter of 7 August 1998 (registered on 11 August 1998 under A/36167). |
| (9) | Ireland provided the estimated amounts of aid granted under the tax exemption for the period as from 1995 in the context of its annual reporting to the Commission on all granting of State aid and these amounts are included in the corresponding Annual Surveys on State Aid. The Irish exemption was also mentioned in the European Union's notifications to the World Trade Organisation pursuant to Article XVI:1 of the General Agreement on Tariffs and Trade 1994 and Article 25 of the Agreement on Subsidies and Countervailing Measures for the years 1997, 1998, 1999, 2000, 2001/2002 and 2003/2004 (11). |
| (10) | By letters of 17 July 2000 (D/53854, D/53855 and D/53856), the Commission requested France, Ireland and Italy respectively to notify the exemptions. France replied by letter of 4 September 2000 (registered on 5 September 2000 under A/37220). The Commission reminded Ireland and Italy of its request and asked those Member States, as well as France, for further information by letters of 27 September 2000 (D/54915, D/54911 and D/54914). Ireland answered by letter of 18 October 2000 (registered on 20 October 2000 under A/38674). The Commission reminded Italy and France of its requests by letters of 20 November 2000 (D/55707 and D/55708). Italy answered by letter of 7 December 2000 (registered on 13 December 2000 under A/40512). France answered by letter of 8 December 2000 (registered on 11 December 2000 under A/40419). The cases were registered under NN22/2001 IR, NN 26/2001 IT and NN23/2001 FR respectively. |
| (11) | By decisions C(2001) 3296, C(2001) 3300 and C(2001) 3295 of 30 October 2001 the Commission initiated the procedure laid down in Article 88(2) of the Treaty with respect to the exemptions. These decisions were sent to Ireland, Italy and France by letters of 5 November 2001 (D/291995, D/291999 and D/292000). The decisions were published in the Official Journal of the European Communities on 2 February 2002 (12). The Commission received the following comments from third parties:
| (a) | From Aughinish: letter of 26 February 2002 (registered on 1 March 2002 under A/31598) which referred to an earlier letter of 24 January 2002 and letters of 1 March 2002 (registered on the same day under A/31617, A/31618 and A/31625); |
| (b) | From Eurallumina SpA (hereinafter ‘Eurallumina’), the Italian beneficiary: letters of 28 February 2002 (registered on 28 February 2002 and 4 March 2002 under |
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