CELEX: 62001CJ0240
Failure of a Member State to fulfil obligations
Excise duties on mineral oils
Directive 92/81/EEC
Mineral oils used as heating fuel

By application lodged at the Court Registry on 21 June 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by applying Paragraph 4(1)(2)(b) of the Mineralölsteuergesetz (Law on the taxation
of mineral oils) of 21 December  1992 (BGBl. I, p. 2185, as amended in 1993 I, p. 169; ‘the MinöStG’), the Federal Republic
of Germany has failed to fulfil its obligations under Article 2(2) 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) (hereinafter ‘Directive 92/81’) in so far as that Member State has not made all
mineral oils intended for use as heating fuel subject to excise duties.
Relevant provisions
Community legislation
The fourth recital in the preamble to 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) states that ‘in order
to ensure the establishment and functioning of the internal market, the chargeability of excise duties should be identical
in all the Member States’.
Article 1(1) of that directive states that it ‘lays down the arrangements for products subject to excise duties and other
indirect taxes which are levied directly or indirectly on the consumption of such products, except for value added tax and
taxes established by the Community’. Under Article 1(2) of the directive ‘the particular provisions relating to the structures
and rates of duty on products subject to excise duty shall be set out in specific Directives’.
Article 3 of Directive 92/12 provides:
‘1. This Directive shall apply at Community level to the following products as defined in the relevant Directives:
–
mineral oils,
…’
The specific Directives adopted on mineral oils and referred to in Article 1(2) of Directive 92/12 are Directive 92/81 and
Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992
L 316, p. 19), as amended by Directive 94/74 (hereinafter ‘Directive 92/82’).
According to the third recital in the preamble to Directive 92/81, ‘it is important to the proper functioning of the internal
market to determine common definitions for all mineral oil products which shall be subject to the general excise monitoring
system’.
Article 1 of the same directive provides:
‘1. Member States shall impose a harmonised excise duty on mineral oils in accordance with this Directive.
2. Member States shall fix their rates in accordance with Directive 92/82/EEC on the approximation of the rates of excise
duty on mineral oils.’
Article 2(2) of that directive reads as follows:
‘Mineral oils other than those for which a level of duty is specified in Directive 92/82/EEC shall be subject to excise duty
if intended for use, offered for sale or used as heating fuel or motor fuel. The rate of duty to be charged shall be fixed,
according to use, at the rate for the equivalent heating fuel or motor fuel.’
Article 8(1) of Directive 92/81 provides:
‘In addition to the general provisions set out in Directive 92/12/EEC on exempt uses of excisable products, and without prejudice
to other Community provisions, Member States shall exempt the following 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:
…
(d)
mineral oils injected into blast furnaces for the purposes of chemical reduction as an addition to the coke used as the principal
fuel.’
According to the 18th recital in the preamble to Directive 94/74, ‘it is necessary to grant compulsory exemption at Community
level for mineral oils injected into blast furnaces for chemical reduction purposes in order to prevent distortions of competition
arising from different taxation arrangements in Member States’.
National legislation
Paragraph 4 of the MinöStG, entitled ‘Exemptions, definitions’, provides:
‘(1)

Subject to the provisions of Paragraph 12, mineral oil may be used with exemption from tax
...
2.

for purposes other than
(a)

use as motor fuel or the production of motor fuel,
(b)

use as heating fuel (“Verheizen”),
(c)

driving gas turbines;
...’
The application of Paragraph 4(1)(2) of the MinöStG is set out in the circular of 2 February 1998 (III A 1 – V 0355 – 10/97,
published in the Vorschriftensammlung Bundesfinanzverwaltung of 6 February 1998, N 08 98, No 70 (‘the Circular’), which states:
‘Taxes on mineral oils and determination of use as fuel and for other purposes within the meaning of Paragraph 4(1)(2) of
the MinöStG
…
II. The term  “use as heating fuel”
From this idea, the Bundesfinanzhof has defined the term “use as heating fuel” in several judgments and gradually developed
the following principles:
–
The use of mineral oil as heating fuel is the production of thermal energy.
–
Use as heating fuel is the intentional use of the calorific value of a substance, that is to say, the (total or partial) combustion
of mineral oil for the production of heat which is (totally or partially) transferred to another substance; in that case,
the production of heat and the transfer of that heat must not be of merely secondary importance as compared with other purposes
for which the mineral oil is used.
–
The substance to which the heat is transferred must acquire the character of a new energy or heat source (heating medium).
–
The actual use of the new heat source as a heating medium justifies the conclusion that the mineral oil used to produce that
heat source has been used as heating fuel.
It follows that the decisive factor when determining whether use as heating fuel has taken place is the transfer of heat.
The following are given as examples of heat sources (heating media): hot water and steam (as in the case of space heaters),
heated ambient air, combustion gases (flue gas), boilers, jackets, etc.
III. The term “other purposes”
With regard to the use of mineral oil for energy, it appears from the case-law of the Bundesfinanzhof that there is no use
as heating fuel only in the following cases:
–
The flame comes into direct contact with the substance to be treated, worked or destroyed (contrary to the analysis provided
above). The examples mentioned are singeing off textile fibres,  flame cultivation, use of oxy-hydrogen torches, heating metals
to make them workable, warming roofing felt to make it easier to handle etc.
–
The substance absorbing the combustion energy is itself subjected to heat in order to serve in the manufacture of a product
of a different structure and thereby loses its material structure.
‘Material alteration’ means that constituents of the mineral oil are at least partly incorporated in the product, as in the
production of soot by thermal cracking or in the hardening of steel by cementation. Here too, mineral oil is used at least
partly as a raw material, and a chemical alteration of the molecular structure takes place. A decisive indication of the presence
of such a process may, for example, be the fact that the use of other energy sources, such as coal or electricity, cannot
fulfil the production objective.
–
There is no utilisation of the calorific value of mineral oils used to produce heat where the principal objective is the elimination
of harmful gas emissions by means of their total combustion, and for that purpose a pilot light is fuelled by mineral oil
or mineral oil is mixed together in a combustion chamber with the gases to be eliminated and is completely burnt up.
These cases have in common the fact that the combustion of the mineral oil coincides, in a homogeneous process, with the transformation
or destruction of the substance absorbing the thermal energy. Transmission of the absorbed energy or its transfer to another
substance is impossible.
…’
Pre-litigation procedure
By letter of formal notification of 26 May 1999, the Commission informed the Federal Republic of Germany under Article 226
EC that the interpretation given in the Circular to the use of mineral oils as heating fuel was not, in its view, compatible
with the first sentence of Article 2(2) of Directive 92/81.
By letter of 13 October 1999, the German Government replied claiming that, in the absence of an express definition of the
term ‘use as heating fuel’ in the first sentence of Article 2(2) of Directive 92/81, it was for the Member States to specify
the interpretation to be given to that term. Under German law, the Circular reflected the interpretation given in the case-law
of the Bundesfinanzhof. That interpretation had diverged from the original meaning of the term ‘use as heating fuel’ and from
long-standing administrative practice. Furthermore, the German Government asked the Commission to examine the problem in general
terms, taking into account practice in the Member States in order to reach a clear and common solution.
On 13 March 2000 the Commission delivered a reasoned opinion calling on the Federal Republic of Germany to take the measures
necessary to comply with it within two months of its notification. In the reasoned opinion, the Commission reiterated the
arguments set out in the letter of formal notice, adding that the fact that other Member States gave their own interpretation
to the term ‘use as heating fuel’ did not entitle the Federal Republic of Germany to retain a view which infringed Community
law.
After the Federal Republic of Germany failed, within the period laid down, to take measures to put an end to the breach of
Community law set out in the reasoned opinion, the Commission brought the present action.
The action
Arguments of the parties
The Commission claims that, by applying Paragraph 4(1)(2)(b) of the MinöStG in the way stated in the Circular, the Federal
Republic of Germany is in breach of Article 2(2) of Directive 92/81, as that Member State does not make all mineral oils intended
for use as heating fuel subject to excise duties.
In particular, according to the Circular, the term ‘use as heating fuel’ must be taken to mean exclusively the indirect use
of the energy source in mineral oil, with the aid of a heat source, as a heating medium. By contrast, it is apparent from
the examples cited in point III of the Circular that the direct use of mineral oil to initiate and maintain industrial processes
is not covered by ‘use as heating fuel’, which is contrary to Article 2(2) of Directive 92/81.
Even though Article 2(2) of Directive 92/81 does not contain a formal definition of the term ‘use as heating fuel’, it follows
from the harmonisation objective of the excise duty directives that that expression should be interpreted independently under
Community law. The third recital in Directive 92/81 argues in favour of such an independent interpretation.
A restrictive interpretation of that expression may not be inferred from the wording of Directive 92/81. The same is true
of the usual interpretation of the term ‘Verheizen’ used in Paragraph 4(1)(2)(b) of the MinöStG. Mineral oils are always ‘used’
when they are burnt and the heat thus produced is used for heating, whatever the ultimate purpose of that heating may be.
The objective of the excise duty on mineral oils as a tax on consumption also argues in favour of a wide interpretation of
the expression ‘use as heating fuel’, to include all forms of direct or indirect consumption of mineral oils.
Likewise, such an interpretation is apparent from the system established by Directive 92/81. The fact that the Community
legislature exempted the particular case referred to in Article 8(1)(d) of that directive from the harmonised excise duty
clearly shows that it regards the first sentence of Article 2(2) of Directive 92/81 as covering all forms of use of mineral
oils for the production of thermal energy. The adoption of Article 8(1)(d) of Directive 92/81 would have been pointless if
the expression ‘use as heating fuel’ should be given the meaning stated in the Circular.
However, the derogation provided for in Article 8(1)(d) is not such as to justify all the exceptions to the obligation to
levy duty which are provided for in point III of the Circular. Tax exemptions  are to be interpreted strictly since they constitute
exceptions to the general principle of taxation (see, to that effect, in relation to VAT, Case 348/87
Stichting Uitvoering Financiële Acties
[1989] ECR 1737, paragraphs 12 and 13).
The German Government contests the alleged breach of obligations. In its view, the Commission wrongly assumes that the terms
‘burn’ (‘Verbrennen’) and ‘use as heating fuel’ (‘Verheizen’) are analogous.
The terms ‘intended for’, ‘offered for sale’ and ‘used’ in the first sentence of Article 2(2) of Directive 92/81 make clear
the need for a subjective and concrete use of mineral oil by the end user or the trader, that is, the intention to use the
mineral oil to heat (‘heizen’) a third substance. If that subjective element with regard to use is lacking, it cannot be assumed
that the mineral oil has been used as heating fuel, even if other substances are heated up as a consequence of the release
of heat during a combustion process. That is the interpretation which emerges from the case-law of the Bundesfinanzhof and
which was adopted in the second indent of point II of the Circular.
With regard to the use of the thermal energy of mineral oil for the initiation and maintenance of industrial processes, contrary
to what the Commission maintains, only the cases specified in point III of the Circular are not regarded as ‘use as heating
fuel’ and are therefore not subject to excise duties. Apart from those cases, there is no exemption from excise duty.
The third recital in Directive 92/81 does not require a uniform interpretation of all the terms used in the directive. On
the contrary, it merely takes account of the first indent of Article 3(1) of Directive 92/12, under which the term ‘mineral
oils’ would be defined in the relevant directive, namely Directive 92/81. That definition was laid down by Article 2(1) of
Directive 92/81, which lists the products regarded as mineral oils for the purposes of the directive.
If the Community legislature had intended the third recital in Directive 92/81 to have the meaning attributed to it by the
Commission, it would have defined ‘use as heating fuel’ in the directive itself. The fact that it did not do so supports the
view that that term must be defined under national law.
The interpretation argued for by the Commission presupposes that there is full harmonisation in the field of mineral oil taxation,
just as there is in the legislation governing turnover tax. However, it is clear from the actual wording of Directive 92/12
that such a degree of harmonisation was not envisaged with regard to tax on mineral oils.
Further, the need for complete and independent definitions specific to the Community is based, as far as concerns turnover
tax, on the needs of Community financing and the fair allocation of financial burdens between the Member States. By contrast,
the directives on the taxation of mineral oils do not have such a function.
The history of the adoption of Directive 92/81 shows that the aim was merely to effect sufficient coordination to ensure
that, broadly speaking, similar products were taxed in a similar way and that differences attributable to tax in the price
of those products did not encourage fraudulent or artificial purchases. The Member States thereby retained a considerable
margin of discretion, even though that entailed allowing differences in the conditions of competition at national level to
remain.
The German Government considers irrelevant the Commission’s reference to the derogation in Article 8(1)(d) of Directive 92/81.
It takes the view that, in that particular case, part of the mineral oil is also used as heating fuel. Therefore, a provision
was necessary to clarify that particular case in the light of the interpretation of the term ‘heating fuel’ given in German
law.
Findings of the Court
In order to give a ruling on the action, it is necessary to determine first whether the expression ‘used as heating fuel’
in the first sentence of Article 2(2) of Directive 92/81 is to be interpreted independently or if the definition falls within
the competence of the Member States, as the German Government maintains.
For the purposes of deciding that question, the objective and scope of the harmonisation carried out by the directives on
excise duties on mineral oils must be taken into consideration.
Directives 92/12, 92/81 and 94/74 were all adopted on the basis of Article 99 of the EC Treaty (now Article 93 EC). That provision
empowers the Council to harmonise national legislation concerning, inter alia, excise duties, to the extent necessary to ensure
the establishment and functioning of the internal market.
The first and fourth recitals in Directive 92/12 state that the establishment and functioning of the internal market also
require the free movement of goods, including those subject to excise duties and that, for that purpose, chargeability of
excise duties should be identical in all the Member States.
The fifth and sixth recitals in Directive 92/81 state that it is necessary to lay down certain obligatory exemptions at Community
level and that it is appropriate to permit Member States to apply on an optional basis certain other exemptions where this
does not give rise to distortions of competition.
Finally, according to the 18th recital to Directive 94/74, it is necessary to grant compulsory exemption at Community level
for mineral oils injected into blast furnaces for chemical reduction purposes in order to prevent distortions of competition
arising from different taxation arrangements in Member States.
It is clear from the above that the objective of those three directives is to ensure the free movement of mineral oils in
the internal market, and to avoid distortions of competition which could stem from different structures of excise duties.
That being the case, the harmonisation achieved at present is no more than partial (see, to that effect, Case C-434/97
Commission
v
France
[2000] ECR I-1129, paragraph 17).
However, the partial nature of that harmonisation does not necessarily mean that it falls within the competence of the Member
States to define the terms used in Directive 92/81.  It all depends on whether the terms concerned relate to a sector which
has already been harmonised.
In that respect, the third recital in Directive 92/81 states that it is important to the proper functioning of the internal
market to determine common definitions for all mineral oil products which are to be subject to the general excise monitoring
system. The fourth recital in that directive specifies that it is useful to base such definitions on those in the Combined
Nomenclature.
Article 2(1) of Directive 92/81 thus defines the mineral oils to which that directive applies by reference to the codes used
in the Combined Nomenclature. In addition, in Article 2(2) it is stated that mineral oils are to be subject to excise duty
if intended for use, offered for sale or used as heating fuel or motor fuel.
The legislature thus established, at Community level and in a uniform manner, the uses of mineral oils which give rise to
the levy of excise duty and which thus constitute the chargeable event. In so doing, it sought to avoid situations in which
mineral oils subject to excise duty vary from one Member State to another according to their use, which would be such as to
give rise to distortions of competition in intra-Community trade, the very distortions which the system of Community harmonisation
seeks to counter (see paragraph 39 of this judgment).
In those circumstances, the fact that the Community legislature did not define the uses referred to in Article 2(2) provides
no ground for inferring that it intended to leave the definition of those uses to the Member States, as the German Government
maintains. Such an eventuality would involve the risk of divergent definitions, which would adversely affect the uniform determination
of the chargeable event for the excise duty made by that article.
Accordingly, the expression ‘used as heating fuel’ in the first sentence of Article 2(2) of Directive 92/81 must be interpreted
independently.
It must also be determined whether the German Government’s interpretation of the term ‘used as heating fuel’ in Paragraph
4(1)(2)(b) of the MinöStG according to the Circular infringes the first sentence of Article 2(2) of Directive 92/81.
According to the Circular, ‘use as heating fuel’ means only the intentional use of the calorific value of a substance, that
is to say, the total or partial combustion of mineral oil for the production of heat which is totally or partially transferred
to another substance, which acquires the character of a new energy or heat source. The actual use of the new heat source as
a heating medium justifies the conclusion that the mineral oil used to produce that heat source has been used as fuel. On
the other hand, when the combustion of the mineral oil coincides, in a homogeneous process, with the transformation or destruction
of the substance absorbing the thermal energy which is produced by the combustion, the mineral oil is used, according to the
Circular, not as a heating fuel but for other purposes, and must not therefore be subject to the excise duty.
The Commission claims that mineral oils are always used as heating fuel within the meaning of the first sentence of Article
2(2) of Directive 92/81 when they are burnt and the heat thus produced is used for heating, whatever the ultimate purpose
of that heating may be.
In order to give a ruling on the dispute between the parties, the scheme of Directive 92/81 and the objective pursued by the
excise duty on mineral oils as a tax on consumption must be taken into consideration.
First, in respect of the scheme of that directive, Article 8(1)(d) of the directive provides for a specific obligatory exemption
for mineral oils injected into blast furnaces for the purposes of chemical reduction as an addition to the coke used as the
principal fuel.
That exemption, inserted by Article 2(4) of Directive 94/74, shows that, according to the Community legislature, the expression
‘used as heating fuel’ in the first sentence of Article 2(2) of Directive 92/81 does not refer only to cases in which the
thermal energy produced by the combustion of mineral oil is used for heating purposes, in accordance with the meaning of that
term in the Circular, but includes also cases in which the thermal energy thus produced is used for other purposes. There
would be no need to introduce that exemption if the case it refers to was not covered at the outset by the first sentence
of Article 2(2) of Directive 92/81, because mineral oil for the purposes of chemical reduction was not used as heating fuel.
The German Government contends however that, according to the interpretation of the term ‘combustion’ in the Circular, part
of the mineral oil is used as heating fuel where mineral oils are injected into blast furnaces in order to accelerate chemical
reduction. Consequently, a provision clarifying that particular case is necessary.
As the Advocate General noted in point 62 of his Opinion, it is significant that the Community legislature did not merely
restrict the scope of the first sentence of Article 2(2) of Directive 92/81, but by instituting the exemption at issue instead
inserted an express derogation from the basic rule of taxability enshrined in that provision. From the point of view of legislative
methodology, such an approach is adopted where the situation covered by the derogation is, in principle, covered by the basic
rule, and not in order to clarify that rule. Further, even if the Community legislature had wished to provide ‘clarification’
by adopting the exemption at issue, it is common ground that Article 8(1) of Directive 92/81 does not cover the uses of mineral
oils which, under point 3 of the Circular, must not be subject to excise duty.
Accordingly, the argument advanced by the German Government cannot call in question the observation made at paragraph 52 of
this judgment.
Next, as the Commission has claimed, the objective of the excise duty on mineral oils as a tax on consumption militates in
favour of interpreting the expression ‘used as heating fuel’ in the first sentence of Article 2(2) of Directive 92/81 as relating
to all cases where mineral oils are burnt and the thermal energy thus produced is used for heating, whatever the ultimate
purpose of that heating may be, including that of transformation or destruction of the substance absorbing the thermal energy
during a chemical or industrial process.  In all those cases, the mineral oils are used up and must therefore be subject to
the excise duty.
In the Circular, the corresponding term ‘used as heating fuel’ referred to in Paragraph 4(1)(2)(b) of the MinöStG is defined
restrictively, with the effect that the cases referred to in point III of the Circular, when the combustion of the mineral
oil coincides, in a homogeneous process, with the transformation or destruction of the substance absorbing the thermal energy
produced by the combustion, are exempt from the excise duty, whereas those cases fall within the first sentence of Article
2(2) of Directive 92/81. The Federal Republic of Germany has thus infringed that provision of the directive.
It must therefore be held that, by applying Article 4(1)(2)(b) of the MinöStG, the Federal Republic of Germany has failed
to fulfil its obligations under the first sentence of Article 2(2) of Directive 92/81 inasmuch as it has not made all mineral
oils intended for use as heating fuel subject to excise duties.
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been
applied for in the successful party’s pleadings. Since the Commission has so applied and the Federal Republic of Germany has
been unsuccessful, the latter must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Declares that, by applying Article 4(1)(2)(b) of the Mineralölsteuergesetz (Law on the taxation of mineral oils), the Federal
Republic of Germany has failed to fulfil its obligations under the first sentence of Article 2(2) 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, inasmuch as it has not made all mineral oils intended for use as heating fuel subject to excise
duties.
Orders the Federal Republic of Germany to pay the costs.
Skouris
Cunha Rodrigues
Puissochet
Schintgen
Macken
Delivered in open court in Luxembourg on 29 April 2004.
R. Grass
V. Skouris
Registrar
President
–
Language of the case: German.