Judgment of the Court of Justice Fifth Chamber, 13 March 2025, Alsen, C-137/23

• Date: 13 March 2025
• Year: 2025

22

On that issue, the Court found that, admittedly, in its analysis of selectivity, the Commission explicitly

decided only the question whether t he difference in treatment between buyers on t he wholesale

market, depending on whether or not they were eligible for an exemption, gave rise to a selective

advantage, but did not determine whether such an advantage arose on account of buyers on the

retail market bein g exclu ded from eligibilit y for t he exempt ion.

However, it was clear that buyers on the wholesale and retail markets were not in a co mparable

situation in terms of the way in which the reduction in wholesale market prices and the payment of

the co ntribution w as intended to be reflect ed in the price o f electricity, since t hey purchas e electricity

on two different markets for which pricing does not follow the same logic. Consequently, the

Commission was not required explicitly to decide whether the fact that the scope of t he exemption

from the contribution is limit ed solely to buyers on the wholesale market constituted a selective

advantage.

Since none of the applicants’ pleas were upheld, the Court concludes that they had not demonstrated

that th e Commission should have identified t he existence of serious difficult ies requiring the initiation

of t he formal invest igation p rocedure, and d ismissed th e action.

VI. FISCAL PROVISIONS: EXC ISE DUT IES

Judgment of the Court of Justi ce (Fifth Chamber), 13 March 2025, Alsen, C-137/23

Link to the full text of the judgment

Reference for a preliminary ruling – Taxation – Excise duties – Directiv e 2003/96/EC – Taxation of energy

products and electrici ty – Exemption of energy products used as fuel – Ar tic le 14(1)(c) – Navigation within

EU waters – Arti cle 15(1)(f) – Navigation on inland waterways – Directive 95/60/EC – F iscal marking of gas

oils and kerosene – Gas oil, to which fiscal marking has not been applied in accordance with EU law,

intended for use for the propulsion of a vessel – Refusal to apply the exemption from payment of excise

duty – Principle of proportionality

Hearing a reference for a preliminary ruling, t he Court int erprets Directiv e 2003/96, 24 read in

conjunction with Directive 95/60, 25 and specifies the conditions under which a Member State may

refuse the b enefit of an exempt ion from excise du ty for gas o il supplied for use as fuel for n avigation

for commercial purposes on EU inland waterways. It examines, more specifically , whether national

legislation may refuse the benefit of the exemption from excise duty on the ground that fiscal

marking has not been applied to that gas oil in accordance with the requirements of EU law, even

though, first, it is established that that gas oil is used for the abovementioned purpose and, second,

there is no evidence capable of giv ing rise to suspicions of tax evasion, avoidance or abuse. It

considers su ch legislat ion to be inc ompatib le with EU law.

X, who resides in Germany, is the owner of a motor tanker which he uses to transport mineral oils on

behalf of third parties by inland waterway within the European Union in return for payment (‘the

tanker’). The tanker is fitted with two bunker tanks used to hold fuel intended for its propulsion.

In 2016, during an inspection carried out while the tanker was on the Amsterdam-Rhine Canal, in the

Netherlands, inspectors took samples of the gas oil stored in the bunker tanks; an analysis of those

samples indicated, in particular, the presence of a quantity of ‘Solvent Yellow 124’ marker in that gas

24 Council D irective 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity

(OJ 2003 L 283, p. 51), as amend ed b y Council D irectiv e 2004/75/EC of 29 Ap ril 2004 (OJ 200 4 L 157, p. 100, and corrigendum OJ 2004 L 195,

p. 31).

25 Coun cil Direct ive 95/60/EC of 27 November 1995 on f iscal markin g of gas oils an d ker osene ( OJ 1995 L 291, p. 46).