# C_2020010EN.01000501.xml

| 13.1.2020 | EN | Official Journal of the European Union | C 10/5 |
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13.1.2020

EN

Official Journal of the European Union

C 10/5

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Judgment of the Court (Fifth Chamber) of 7 November 2019 (Request for a preliminary ruling from the Curtea de Apel București — Romania) — SC Petrotel-Lukoil SA v Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili, Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor

(Case C-68/18) (1)

(Reference for a preliminary ruling - Taxation of energy products and electricity - Directive 2003/96/EC - Article 21(3) - No chargeable event giving rise to taxation - Consumption of energy products on a site that produces such products - Article 2(3) - Obligation to obtain a classification for energy products in order to determine the level of excise duty - Tax rate applicable to those products - Principle of proportionality)

(2020/C 10/06)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: SC Petrotel-Lukoil SA

Defendant: Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili, Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor

Operative part of the judgment

| 1. | Article 21(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as precluding national provisions or national practices which provide for the taxation of energy products consumed in the combined heat and power plant of the establishment in which they were produced, provided that that consumption concerns the production of energy products by generating the thermal energy necessary for the technological process of producing those products. That interpretation does not affect the application, in principle, of Article 14(1)(a) of that directive to the proportion of energy products consumed for the purpose of producing electricity; |
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1.

Article 21(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as precluding national provisions or national practices which provide for the taxation of energy products consumed in the combined heat and power plant of the establishment in which they were produced, provided that that consumption concerns the production of energy products by generating the thermal energy necessary for the technological process of producing those products. That interpretation does not affect the application, in principle, of Article 14(1)(a) of that directive to the proportion of energy products consumed for the purpose of producing electricity;

| 2. | Article 2(3) of Directive 2003/96 and the principle of proportionality must be interpreted as precluding national provisions or national practices which, in the absence of a request made to the competent tax authorities for the purpose of classification in relation to excise duties for energy products whose level of taxation has not been determined by that directive, provide for the application of the excise duty rate laid down for gas oil and the maintenance of that rate, even though a classification decision was obtained subsequently in which those products were treated as heating oil. |
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2.

Article 2(3) of Directive 2003/96 and the principle of proportionality must be interpreted as precluding national provisions or national practices which, in the absence of a request made to the competent tax authorities for the purpose of classification in relation to excise duties for energy products whose level of taxation has not been determined by that directive, provide for the application of the excise duty rate laid down for gas oil and the maintenance of that rate, even though a classification decision was obtained subsequently in which those products were treated as heating oil.

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(1)  OJ C 152, 30.4.2018.

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