CELEX: 62002CJ0292
Excise duties
Mineral oils used in agricultural works
Directive 92/81/EEC
Article 8a
Marking in the Member State where released for consumption
Prohibition on marking in the Member State of use
Directive 95/60/EC

This reference for a preliminary ruling concerns the interpretation of Article 8a of Council Directive 92/81/EEC of 19 October
1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), as amended by Council
Directive 94/74/EC of 22 December 1994 (OJ 1994 L 365, p. 46) (‘Directive 92/81’).
The reference was made in the course of proceedings brought by Meiland Azewijn BV against Hauptzollamt (Principal Customs
Office) Duisburg, concerning the payment of customs duties on mineral oil contained in the fuel tank of agricultural machinery
which was filled up in the Netherlands, that machinery subsequently being used in Germany.
Legal framework
Community legislation
Directive 92/12
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), as amended by Council Directive 92/108/EEC of 14 December
1992 (OJ 1992 L 390, p. 124) (‘Directive 92/12’), establishes inter alia the general arrangements governing the conditions
of chargeability of excise duties.
According to Article 7(1) and (2) of Directive 92/12:
‘1. In the event of products subject to excise duty and already released for consumption in one Member State being held for
commercial purposes in another Member State, the excise duty shall be levied in the Member State in which those products are
held.
2. To that end, without prejudice to Article 6, where products already released for consumption as defined in Article 6 in
one Member State are delivered, intended for delivery or used in another Member State for the purposes of a trader carrying
out an economic activity independently or for the purposes of a body governed by public law, excise duty shall become chargeable
in that other Member State.’
Directive 92/81
Directive 92/81 lays down the specific rules governing excise duties on mineral oils.
Article 8(2) of that directive provides:
‘Without prejudice to other Community provisions, Member States may apply total or partial exemptions or reductions in the
rate of duty to mineral oils or to other products intended for the same uses which are used under fiscal control.
…
(f)

exclusively in agricultural and in horticultural works, and in forestry and inland fisheries’.
According to Article 8(8) of Directive 92/81:
‘Member States shall be free to give effect to the exemptions or reductions in the rate of duty set out in paragraph 4 by
refunding the excise duty paid.’
Article 8a of Directive 92/81, inserted by Article 2 of Directive 94/74, provides:
‘1. Mineral oils 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 excise duty in any
other Member State.
2. For the purposes of this Article:
“standard tanks” shall mean:
−
the tanks permanently fixed by the manufacturer to all motor vehicles of the same type as the vehicle in question and whose
permanent fitting enables fuel to be used directly, both for the purpose of propulsion and, where appropriate, for the operation,
during transport, of refrigeration systems and other systems.
Gas tanks fitted to motor vehicles designed for the direct use of gas as a fuel and tanks fitted to the other systems with
which the vehicle may be equipped shall also be considered to be standard tanks,
…’.
Directive 94/74
The 19th recital in the preamble to Directive 94/74 sets out the objectives of Article 8a of Directive 92/81:
‘… it is necessary to specify that mineral oils released for consumption in a Member State, contained in the fuel tanks of
motor vehicles and intended to be used as fuel by such vehicles are exempt from excise duty in other Member States in order
not to impede free movement of individuals and goods and in order to prevent double taxation’.
Directive 95/60
Council Directive 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene (OJ 1995 L 291, p. 46) was adopted
pursuant to Article 9 of Directive 92/81.
The first and third recitals in the preamble to Directive 95/60 state:
‘… the Community measures envisaged by this Directive are not only necessary but also indispensable for the attainment of
the objectives of the internal market; … these objectives cannot be achieved by Member States individually; … furthermore
their attainment at Community level is already provided for in Directive 92/81/EEC, and in particular Article 9 thereof;
…
… the proper functioning of the internal market now requires that common rules be established for fiscal marking of gas oil
and kerosene which have not borne duty at the full rate applicable to such mineral oils used as propellant’.
According to Article 1(1) of Directive 95/60:
‘Without prejudice to national provisions on fiscal marking, Member States shall apply a fiscal marker in accordance with
the provisions of this Directive to:
−
all gas oil falling within CN code 2710 00 69 which has been released for consumption within the meaning of Article 6 of Directive
92/12/EEC and has been exempt from, or subject to, excise duty at a rate other than that laid down in Article 5(1) of Directive
92/82/EEC’.
Article 3 of Directive 95/60 provides:
‘Member States shall take the necessary steps to ensure that improper use of the marked products is avoided and, in particular,
that the mineral oils in question cannot be used for combustion in the engine of a road-going motor vehicle or kept in its
fuel tank unless such use is permitted in specific cases determined by the competent authorities of the Member States.
Member States shall provide that the use of the mineral oils in question in the cases mentioned in the first subparagraph
is to be considered as an offence under the national law of the Member State concerned. Each Member State shall take the measures
required to give full effect to all the provisions of this Directive and shall, in particular, determine the penalties to
be imposed in the event of failure to comply with the said measures; such penalties shall be commensurate with their purpose
and shall have adequate deterrent effect.’
National legislation
Netherlands legislation
Article 27(3) of the Wet op de accijns (Law on excise duty) of 31 October 1991 (Stbl. 1991, p. 561) provides for a reduced
excise duty for gas oil which is to be used for purposes other than driving road-going motor vehicles, provided that the gas
oil is marked as prescribed.
Article 91(2)(a) of that law prohibits the keeping of marked gas oil in the fuel tank of a motor vehicle, except for ‘motor
vehicles which are not operated on roads’, as provided for in Article 91(3)(a). Article 91(3)(b), moreover, allows for the
possibility of introducing an exception by way of a general administrative measure, for motor vehicles which are not usually
used on public roads.
Article 40 of the Uitvoeringsbesluit accijns (Excise duty implementing regulation) of 20 December 1991 (Stbl. 1991, p. 754),
adopted on the basis of Paragraph 91(3)(b), defines the category of exempt motor vehicles, which includes motor vehicles intended
to be used off-road for agriculture or forestry and which use the public roads only when transferring between work sites.
German legislation
Paragraph 19(2) of the Mineralölsteuergesetz (Law on the taxation of mineral oils) of 21 December 1992 (BGBl. 1992 I, p. 2185,
corrigendum in BGBl. 1993 I, p. 169), as amended by the Gesetz für den Vorrang Erneuerbarer Energien (Law on renewable energy)
of 29 March 2000 (BGBl. I, p. 305) (‘the MinöStG’), provides, by way of derogation from the general rule on the incurring
of liability to duty, that when a mineral oil originating from another Member State is brought into the fiscal territory for
commercial purposes, no duty is payable on the fuel contained inter alia in the standard fuel tanks of means of transport
other than boats, special containers and agricultural and forestry vehicles.
That provision does not, however, preclude a tax debt being incurred in the cases referred to in Paragraph 26(4) to (6) of
the MinöStG.
Paragraph 26(4) of the MinöStG prohibits the use of gas oil marked as fuel for the propulsion of agricultural machinery.
The second sentence of Paragraph 26(5) of the MinöStG provides for an exemption from duty for such marked gas oil, but only
in specific cases which do not include the regular use of gas oil as fuel.
Paragraph 26(6) of the MinöStG provides that marked gas oil used in breach of Paragraph 26(4) is to be subject to duty. The
duty will be charged on at least the quantities corresponding to the capacity of the fuel tank or standard fuel tanks of the
vehicle or machinery. The duty is chargeable immediately.
The dispute in the main proceedings and the questions referred for a preliminary ruling
Since 1991 Bod Giesen VOF, which merged with Meiland Azewijn BV in May 2002 (hereinafter together referred to before and after
the merger as ‘Meiland’), had operated an agricultural-service supply agency employing about 10 people in the Netherlands.
Two thirds of that undertaking’s customers were in the Netherlands and one third in Germany.
All the agricultural machinery utilised by Meiland in the course of its activities was refuelled in the evening, when it was
often not yet known where the machines would be used the next day. Customers might cancel at short notice because of the weather
or sometimes it might be necessary to replace machinery that had broken down.
It was impossible, in point of fact, particularly during the harvest season when the undertaking was working under pressure,
to replace marked gas oil, which could lawfully be used as fuel in the Netherlands, with unmarked gas oil, the only fuel which
could lawfully be used in Germany, because it was too time-consuming to empty or change the tanks. In addition, when fuel
was pumped out, there was a risk of traces of marking remaining. These difficulties were exacerbated by the fact that some
vehicles were in use first in one then in the other of the two Member States on the same day.
Because of the size of its business, it was also impossible for Meiland to keep its agricultural machinery exclusively for
the German market.
On 29 September 2000, in Klein-Netterden (Germany), near the border between Germany and the Netherlands, officials of the
Hauptzollamt Duisburg checked two tractors and one combine harvester which Meiland had supplied to harvest maize. The machines
were running on marked gas oil. Their tanks had capacities of 135, 165 and 850 litres, respectively.
That same day, the Hauptzollamt Duisburg issued an assessment notice charging Meiland with excise duty on mineral oils in
the amount of DEM 851. The duty had been determined on the basis of the capacity of the tanks and the rate applicable at that
time, that is, DEM 740 for 1 000 litres, pursuant to Paragraph 26(6) of the MinöStG.
Meiland objected to that assessment notice on the basis that it was contrary to Community law.
By decision of 18 January 2001, the Hauptzollamt Duisburg dismissed the objection as unfounded on the ground that, on German
fiscal territory, marked gas oil could be used for heating purposes only, pursuant to the MinöStG. The use of marked gas oil
from other Member States to operate agricultural machinery was thus, in principle, prohibited by Paragraph 26(5) of the MinöStG.
Meiland challenged that decision before the Finanzgericht Düsseldorf, arguing that the duty imposed on it in Germany amounted
to double taxation because it did not take account of the duty already paid in the Netherlands.
According to the national court, the German legislation applied in this case is compatible with Article 1 in conjunction with
Article 3 of Directive 95/60, but might be contrary to other provisions of secondary legislation or the EC Treaty, in particular
Article 8a(1) of Directive 92/81.
The Finanzgericht Düsseldorf accordingly decided to stay proceedings and refer the following five questions to the Court for
a preliminary ruling:
‘1.

Is Article 8a(1) of Directive 92/81/EEC to be construed as quite simply exempting mineral oil intended to be used as motor
fuel from excise duty in the Member State to which it is brought in a standard tank of a commercial motor vehicle after it
has been released for consumption in another Member State?
2.

If the answer to the first question should be in the affirmative, is Article 8a(1) of Directive 92/81/EEC directly applicable
in relation to the claimant having regard to the rule in Paragraph 19(2) [of the MinöStG]?
3.

Are the administrative and control procedures for the reduction in excise duty which is possible under Article 8(2)(f) of
Directive 92/81/EEC governed by Article 8(8) of Directive 92/81/EEC without the application of a marker or by Article 1(1)
of Directive 95/60/EC?
4.

If the third question should be answered to the effect that the Member States which exercise the power under Article 8(2)(f)
of Directive 92/81/EEC are obliged, in an instance comparable to the present case, to grant reductions in duty also in the
form of a refund of excise duty, is a reduction in excise duty for agricultural works contrary to the freedom to provide services
if the reduction is linked to a marking procedure under Article 1(1) of Directive 95/60/EC that is not applied in this context
by other Member States, which on the contrary impose excise-duty penalties in the case of markings for which no provision
is made under their legal systems?
5.

If the answer to the fourth question should be in the affirmative, does the breach of the freedom to provide services mean
that liability to pay duty is expunged, or would the claimant, in order to achieve exemption from duty, be obliged to ask
for unmarked mineral oil and apply for a refund of excise duty in the Member State in which it obtains marked gas oil at a
reduced rate of duty?’
Examination of the questions referred for a preliminary ruling
Preliminary observation
The last three questions were referred to cover the eventuality of a negative answer to either of the first two questions.
They relate in particular to the provisions of secondary law governing the marking of mineral oil and seek to clarify whether
priority is to be given to some of the provisions of Directives 95/60 and 92/81 when the implementing rules adopted by the
Member States lead to contradictory situations and give rise to impairment of the freedom to provide services. They also relate
to the consequences for the parties concerned with regard to the payment of excise duties demanded or refund of duties paid.
The first question
By its first question, the national court essentially asks whether Article 8a(1) of Directive 92/81 is to be construed as
prohibiting Member States from charging duty on mineral oil contained in the standard tank of a commercial motor vehicle and
used as fuel when that mineral oil has been lawfully released for consumption in another Member State.
It should be borne in mind that Article 7(1) and (2) of Directive 92/12 lays down a general rule that where a product subject
to excise duty and released for consumption in one Member State is held for commercial purposes in another Member State, the
excise duty is to be levied in that other Member State. The excise duty is therefore chargeable in the Member State where
the product is to be used rather than the State where it is released for consumption.
Directive 92/81, however, lays down a specific rule applicable to excise duties on mineral oils. Article 8a(1) of that directive
provides that mineral oils 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 are not to be subject to excise duty in any other Member State.
It follows that, if such a vehicle is moved and used in another Member State, the place where the excise duty is chargeable
is the Member State where the mineral oil is released for consumption rather than the State where the vehicle containing it
is used.
Nevertheless the remarks made in particular by the national court and the Hauptzollamt Duisburg indicate a certain doubt on
their part as to the exact scope of application of Article 8a of Directive 92/81.
Their doubts relate to three points: the first concerns the meaning of ‘commercial motor vehicle’; the second concerns the
use of fuel in the Member State to which the vehicle has been brought; and the third concerns possible inconsistencies arising
from the fact that the Member States have adopted different approaches to implementing the rule laid down in Article 8a and
other rules under secondary legislation.
Turning to the first point, relating to the meaning of the term ‘commercial motor vehicle’, it must be ascertained whether
that term encompasses certain agricultural machinery. Referring to the definition of ‘commercial motor vehicles’ in other
texts of secondary legislation, the Hauptzollamt Duisburg maintains that only road vehicles transporting persons and goods
are covered and that the machinery in question in the main proceedings, that is to say, two tractors and a combine harvester,
are, accordingly, not covered. The relevant legislative texts are, more specifically, Council Directive 68/297/EEC of 19 July
1968 on the standardisation of provisions regarding the duty-free admission of fuel contained in the fuel tanks of commercial
motor vehicles (OJ, English Special Edition 1968 (II), p. 313) and Council Regulation (EEC) No 918/83 of 28 March 1983 setting
up a Community system of reliefs from customs duty (OJ 1983 L 105, p. 1).
The Court finds that while Article 8a does not contain a definition of ‘commercial motor vehicle’, it does not follow that
the definitions contained in other texts of secondary legislation are relevant. As the Advocate General stated in paragraph
44 of his Opinion, the two definitions invoked by the Hauptzollamt Duisburg are not co-terminous and the texts in which they
are found pursue objectives which are different from that of Directive 92/81. In those circumstances, it is not necessary
to refer to those texts to determine the meaning of the term ‘commercial motor vehicle’, but rather it is appropriate to refer
to the scheme and purpose of the provision in which it is found.
It is apparent from the wording of Article 8a of Directive 92/81, in the light of the objectives thereof as set out in the
19th recital in the preamble to Directive 94/74, namely to protect freedom of movement for individuals and goods and to prevent
double taxation, that that provision must be interpreted broadly.
It follows that the restrictive interpretation of the term ‘commercial motor vehicle’ suggested by the Hauptzollamt Duisburg
cannot be accepted. On the contrary, that article must be construed as extending to agricultural machinery using mineral oils
as fuel.
As to the second point concerning the use of fuel in the Member State to which the vehicle has been brought, this relates
more specifically to the issue of whether the rule laid down in Article 8a(1) of Directive 92/81 applies only where the mineral
oil serving as fuel is used exclusively to move the vehicle and bring it into another Member State or whether it also applies
when the mineral oil serves for other purposes as well, such as the performance of agricultural work, in that other Member
State.
As stated by the Advocate General in paragraphs 36 and 37 of his Opinion, the interpretation advocated by the Hauptzollamt
Duisburg to the effect that the fuel may be used only to propel a commercial agricultural vehicle and bring it into another
Member State, any other function in that State being excluded, is unduly restrictive and clearly runs counter to the objectives
referred to in paragraph 41 above.
Accordingly, the Court finds that the rule laid down in Article 8a(1) of Directive 92/81 is not limited to instances where
the vehicle is simply brought into another Member State, but also applies where the fuel is used for other purposes such as
agricultural works.
The third point relates to whether a broad interpretation of Article 8a is possible even where such an interpretation clashes
in practice with the implementation of other provisions of that directive and of Directive 95/60.
Thus, in its order for reference, the Finanzgericht Düsseldorf refers to the fact that, under Netherlands legislation, gas
oil used in agricultural machinery benefits from a reduction in excise duties and there is a mandatory requirement that it
be marked, whereas under German legislation, since gas oil used for the same purposes is subject to an excise duty refund
system, marking thereof is expressly prohibited.
The Court notes that the different choices made by the Federal Republic of Germany and the Kingdom of the Netherlands on the
basis of Directive 92/81 and Directive 95/60 lead to a situation where marked mineral oil is lawfully sold in the Netherlands
for the purposes of use as fuel in agricultural machinery, whereas in Germany it is prohibited to use that product for such
purposes if it is marked and any unlawful use thereof is penalised by the levying of excise duties.
That difference may be explained by the fact that the Kingdom of the Netherlands, acting pursuant to Article 8(2)(f) of Directive
92/81, in its initial version, has chosen to reduce the rate of excise duties on the mineral oils in question and to monitor
the use made thereof by means of marking, in accordance with Article 1 of Directive 95/60. By contrast, since the Federal
Republic of Germany, acting pursuant to Articles 8(2)(f) and 8(8) of Directive 92/81, has provided for an excise duty refund
system, the mineral oil in question does not qualify for any specific reduction when it is released for consumption and it
is not therefore necessary to mark it. On the contrary, because the Federal Republic of Germany operates a refund system,
it must ensure that the mineral oil has not been purchased at a reduced rate of duty. To that end it prohibits the use of
marked mineral oil, a sign that it has been purchased at a reduced rate of excise duty, and provides for penalties on the
basis of Article 3 of Directive 95/60.
In order to resolve inconsistencies arising from the measures taken to transpose secondary legislation, inter alia in a situation
such as that at issue in the main proceedings where the undertaking in question, Meiland, is prohibited from using, in Germany,
as fuel in the tanks of its agricultural machinery marked mineral oil which it purchased lawfully in the Netherlands, it is
necessary to interpret the provisions of Directive 95/60 pertaining to marking procedures and monitoring in light of the objectives
of that directive and of Directive 92/81 and having regard to the scheme of the provisions of those directives.
Directive 95/60, relating to fiscal marking, was adopted pursuant to Article 9 of Directive 92/81. Far from being inconsistent
with the objective of Directive 92/81, the objective of Directive 95/60, as evidenced by the first and third recitals in the
preamble thereto, is to complement the former by contributing to the achievement and proper functioning of the internal market.
Article 3 of Directive 95/60 thus provides that Member States are to take the necessary steps to ensure that improper use
of marked products is avoided and, in particular, that marked mineral oils are not used for combustion in the engine of a
road-going motor vehicle. However, no prohibition or any penalty attaching thereto can be issued if use of such products is
permitted in specific cases determined by the competent authorities of the Member States.
As stated by the Advocate General in paragraph 40 of his Opinion, a use permitted by a Member State in accordance with Community
law, such as the use of marked mineral oil provided for by the Netherlands legislation, cannot be considered improper within
the meaning of Article 3 of Directive 95/60 by another Member State.
It follows that a Member State such as the Federal Republic of Germany cannot, on the basis of its own rules, prohibit the
use of mineral oil marked as fuel in the standard tank of a commercial motor vehicle from another Member State, such as the
Kingdom of the Netherlands, which allows such a practice.
In the light of the foregoing, the answer to the first question must be that Article 8a(1) of Directive 92/81 is to be interpreted
as prohibiting Member States from subjecting to excise duty mineral oil, whether marked or unmarked, contained in the standard
tank of a commercial motor vehicle, such as agricultural machinery, and used as fuel not only to move the vehicle but also
in order to utilise it for other purposes such as agricultural work, when that mineral oil has been lawfully released for
consumption in another Member State.
The second question
By its second question, the national court is asking essentially whether Article 8a(1) of Directive 92/81 has direct effect,
so that it may be relied on by individuals such as Meiland in proceedings before national courts against national rules that
run counter to it.
It is clear from the case-law of the Court that wherever the provisions of a directive appear, as far as their subject-matter
is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures
adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive
or in so far as the provisions define rights which individuals are able to assert against the State (Case C‑346/97
Braathens
[1999] ECR I-3419, paragraph 29).
In
Braathens
, cited above, the Court considered whether Article 8(1)(b) of Directive 92/81 has direct effect. That article provides that
Member States are to exempt from the harmonised excise duty, under conditions which they are to lay down for the purpose of
ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse,
mineral oils supplied for use as fuels for the purpose of air navigation other than private pleasure flying.
The Court found, in paragraph 30 of its judgment, that, although Directive 92/81 allows the Member States a varying degree
of latitude in implementing certain of the provisions thereof, individuals may not for that reason be denied the right to
rely on any provisions which, owing to their particular subject-matter, are capable of being severed from the general body
of provisions and applied as such.
The Court held that Article 8(1)(b) of Directive 92/81 constitutes such a provision and that the obligation to exempt from
the harmonised excise duty the fuel used for the purpose of air navigation other than private pleasure flying is sufficiently
clear, precise and unconditional to confer on individuals the right to rely on it in proceedings before national courts with
a view to contesting national rules that are incompatible with it (see
Braathens
, cited above, paragraphs 31 and 32).
It must be held that Article 8a(1) of Directive 92/81 also imposes on the Member States a clear, precise and unconditional
obligation in the form of a prohibition on subjecting to excise duty certain mineral oils released for consumption in another
Member State. The corollary to that prohibition is the right of individuals not to be required to pay excise duty when they
use the mineral oil as fuel in the standard tank of their commercial motor vehicle in order to operate the vehicle, when that
oil has been released for consumption in another Member State.
Accordingly, the answer to the second question must be that the prohibition in Article 8a(1) of Directive 92/81 may be relied
on by individuals in proceedings before national courts in order to contest national rules that are incompatible with that
prohibition.
In the light of the answers to the first two questions, it is not necessary to answer the three other questions referred by
the national court.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (First Chamber) rules as follows:
1.
Article 8a(1) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on
mineral oils, as amended by Council Directive 94/74/EC of 22 December 1994, is to be interpreted as prohibiting Member States
from subjecting to excise duty mineral oil, whether marked or unmarked, contained in the standard tank of a commercial motor
vehicle, such as agricultural machinery, and used as fuel not only to move the vehicle but also in order to utilise it for
other purposes, such as agricultural work, when that mineral oil has been lawfully released for consumption in another Member
State.
2.
The prohibition in Article 8a(1) of Directive 92/81 as amended may be relied on by individuals in proceedings before national
courts in order to contest national rules that are incompatible with that prohibition.
Signatures.
–
Language of the case: German.