# C_2014421EN.01000302.xml

| 24.11.2014 | EN | Official Journal of the European Union | C 421/3 |
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24.11.2014

EN

Official Journal of the European Union

C 421/3

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Judgment of the Court (Fourth Chamber) of 2 October 2014 (request for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch — Netherlands) — X v Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

(Case C-426/12) (1)

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((Reference for a preliminary ruling - Directive 2003/96/EC - Taxation of energy products and electricity - Article 2(4)(b) - Dual use of energy products - Concept))

2014/C 421/04

Language of the case: Dutch

Referring court

Referring court

Gerechtshof te ’s-Hertogenbosch

Parties to the main proceedings

Parties to the main proceedings

Appellant: X

Appellant:

Respondent: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

Respondent:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 2(4)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/74/EC of 29 April 2004, must be interpreted as meaning that the fact of using, firstly, coal as a heating fuel in the sugar production process and, secondly, carbon dioxide generated by the combustion of that energy product to produce chemical fertilizers does not constitute ‘dual use’ of that energy product within the meaning of that provision.
  However, the fact of using, firstly, coal as a heating fuel in the sugar production process and, secondly, carbon dioxide generated by the combustion of that energy product for the purposes of the same production process does constitute such ‘dual use’ if it is established that the sugar production process cannot be completed without using the carbon dioxide generated by the combustion of the coal. |
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1.

Article 2(4)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/74/EC of 29 April 2004, must be interpreted as meaning that the fact of using, firstly, coal as a heating fuel in the sugar production process and, secondly, carbon dioxide generated by the combustion of that energy product to produce chemical fertilizers does not constitute ‘dual use’ of that energy product within the meaning of that provision.

However, the fact of using, firstly, coal as a heating fuel in the sugar production process and, secondly, carbon dioxide generated by the combustion of that energy product for the purposes of the same production process does constitute such ‘dual use’ if it is established that the sugar production process cannot be completed without using the carbon dioxide generated by the combustion of the coal.

| 2. | A Member State is entitled to apply, in its national law, a more restrictive scope of the concept of ‘dual use’ than that which it has under the second indent of Article 2(4)(b) of Directive 2003/96, as amended by Directive 2004/74, in order to levy a tax on energy products excluded from the scope of that directive. |
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2.

A Member State is entitled to apply, in its national law, a more restrictive scope of the concept of ‘dual use’ than that which it has under the second indent of Article 2(4)(b) of Directive 2003/96, as amended by Directive 2004/74, in order to levy a tax on energy products excluded from the scope of that directive.

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(1)  OJ C 399, 22.12.2012.

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