Fendt Italiana Srl v Agenzia Dogane - Ufficio Dogane di Trento.

• Jurisdiction: European Union
• Celex Number: 62006CC0145
• ECLI: ECLI:EU:C:2007:237
• Docket Number: C-146/06,C-145/06
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 19 April 2007

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 19 April 2007 (1)

Joined Cases C‑145/06 and C‑146/06

Fendt Italiana Srl

v

Agenzia Dogane Ufficio Dogane di Trento

(Preliminary references – Taxation of energy products – Lubricating oils – Non-fuel uses – Effect of exclusion of a product use from the scope of a harmonising directive – Repeals)

1. The present references from the Commissione tributaria provinciale di secondo grado di Trento (Tax Court of Second Instance of Trento) essentially ask the Court whether Directive 2003/96 (2) allows Member States to introduce or maintain their own tax regime on mineral oil products used for non-fuel purposes. The particular products whose taxation is in issue in the main proceedings are lubricating oils.

2. The predecessor to Directive 2003/96, Directive 92/81, (3) provided that Member States should exempt mineral oils used for non-fuel purposes from harmonised excise duty. In an infringement action brought in 2001, the Court held that, by retaining a tax on the consumption of lubricating oils, Italy had failed to meet, inter alia, the exemption requirement under that directive. (4)

3. The Italian legislation in question has not been repealed; but Directive 2003/96 has now repealed and replaced Directive 92/81. The new Directive expressly excludes energy products used for non-fuel purposes from its scope.

Relevant legislation

Directive 92/12

4. Since the 1990s the harmonisation at Community level of the taxation of mineral oils has been regulated by a family of directives. Directive 92/12, (5) which is still in force, may be regarded as the parent directive. It sets out the general arrangements for mineral oils and other products (alcohol, alcoholic beverages and manufactured tobacco) which are ‘subject to excise duties and other indirect taxes which are levied directly or indirectly on the consumption of such products …’. (6)

5. Article 1(2) states that ‘the particular provisions relating to the structures and rates of duty on products subject to excise duty shall be set out in specific Directives’. The specific (or, to continue the family metaphor, daughter) directives for mineral oils were originally Directives 92/81 (establishing structures of taxation) and 92/82 (7) (laying down rates of tax).

6.Article 3 of Directive 92/12 provides as follows:

‘1. This Directive shall apply at Community level to the following products as defined in the relevant Directives:

– mineral oils,

…

2. The products listed in paragraph 1 may be subject to other indirect taxes for specific purposes, provided that those taxes comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned.

3. Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.

...’

Combined Nomenclature

7. Provisions in the daughter directives of Directive 92/12 refer to code numbers of the ‘Combined Nomenclature’ (‘CN’). The CN was initially established by Regulation No 2658/87 (8) in order to create a goods nomenclature to meet various Community requirements. The catalogue of codes relating to the different goods appeared in Annex I to Regulation No 2658/87. Since then, amendments to Annex I have regularly updated the CN. However, lubricating oils such as those whose taxation is in issue in the main proceedings have at all times been classified under code CN 2710.

Directives 92/81 (structures) and 92/82 (rates)

8. Under Article 2(1)(d) of Directive 92/81, the term ‘mineral oil’ covered products falling within CN code 2710 and thus included lubricating oils. Article 2(2) provided that ‘mineral oils other than those for which a level of duty is specified in the rates Directive [92/82] shall be subject to excise duty if intended for use, offered for sale or used as heating fuel or motor fuel …’.

9.Article 8(1)(a) of Directive 92/81 required Member States to exempt ‘mineral oils used for purposes other than as motor fuels or as heating fuels’ from the harmonised excise duty ‘under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse’.

10.Directive 92/82 laid down the minimum rates of excise duty that Member States were required to charge on mineral oils. Article 2(1) listed the mineral oils coming within its scope. Lubricating oils were not amongst them.

Directive 2003/96

11. On 1 January 2004, Directive 2003/96 repealed and replaced both Directives 92/81 and 92/82. (9) At the same time, it extended the harmonisation regime to include, in addition to mineral oils, other energy products and electricity, as part of the process of achieving the Kyoto Protocol objectives. The new directive provided for minimum overall rates of taxation, which it allowed Member States to meet flexibly by means of different levies. This was in recognition of Member States’ desire to introduce or retain different types of taxation on these products. (10)

12. Recital 22 indicates that ‘energy products should essentially be subject to a Community framework when used as heating fuel or motor fuel. To that extent, it is in the nature and the logic of the tax system to exclude from the scope of the framework … non-fuel uses of energy products as well as mineralogical processes. Electricity used in similar ways should be treated on an equal footing’.

13. Article 1 of Directive 2003/96 requires Member States to impose taxation on energy products and electricity in accordance with its provisions.

14.Article 2(1)(b) provides that, for the purposes of Directive 2003/96, the term ‘energy products’ is to apply to products falling within CN codes 2701, 2702 and 2704 to 2715. As indicated above, lubricating oils fall within CN code 2710.

15. However, Article 2(4) expressly provides that Directive 2003/96 is not to apply to, inter alia, ‘(b) the following uses of energy products and electricity:

– energy products used for purposes other than as motor fuels or as heating fuels,

– …’.

16.Article 3 of Directive 2003/96 states that ‘references in Directive 92/12/EEC to “mineral oils” and “excise duty”, insofar as it applies to mineral oils, shall be interpreted as covering all energy products, electricity and national indirect taxes referred to respectively in Articles 2 and 4(2) of this Directive’.

17. Article 14 provides for the compulsory exemption from taxation of, inter alia, uses of energy products as fuel in certain circumstances.

18. Under Article 24, ‘[e]nergy products released for consumption in a Member State, contained in the standard tanks of commercial motor vehicles and intended to be used as fuel by those same vehicles, as well as in special containers, and intended to be used for the operation, during the course of transport, of the systems equipping those same containers shall not be subject to taxation in any other Member State’.

19. Article 30 provides:

‘… Directives 92/81/EEC and 92/82/EEC shall be repealed as from 31 December 2003.

References to the repealed directives shall be construed as references to this Directive.’ (11)

Italian legislation

20. Article 21(2) of Legislative Decree No 504 (12) subjects products falling within CN code 2710 (which includes lubricating oils) used as heating fuel or motor fuel to excise duty fixed at the same rate as that for the equivalent heating fuel or motor fuel.

21. The first paragraph of Article 62 of the same Legislative Decree states that ‘without prejudice to the duty set out in Article 21(2), lubricating oils (CN codes 27 10 00 87 to 27 10 00 98) are subject to a duty on consumption if intended for use, offered for sale or used other than as heating fuel or motor fuel’.

22. In its judgment in Case C-437/01, (13) the Court declared that by maintaining, under those provisions, a tax on the consumption of lubricating oils when those oils were intended for use, offered for sale or used for purposes other than as heating fuel or motor fuel, Italy had failed to fulfil its obligations under Articles 3(2) of Directive 92/12 and 8(1)(a) of Directive 92/81, as amended. The Court stated that...