Opinion of the Advocate General — ECLI:EU:C:2003:654
Date: 2003-12-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Procedure: Action for failure to fulfil obligations - successful
Origin: Finland

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Rates of excise duties on mineral oils — 
Directive 92/82 — National legislation allowing the use of less heavily taxed gas as oil 
motor fuel — Not permissible 
(Council Directive 92/82, Art. 5(1)) 
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SUMMARY — CASE C-185/00 
2. Tax provisions — Harmonisation of laws — Structures of excise duties on mineral 
oils — Directive 92/81 — Rates of excise duties on mineral oils — Directive 
92/82 — National legislation on the use of gas oil — Failure to implement fiscal 
control such as to ensure that gas oil used as motor fuel is taxed at the minimum rate of 
excise duty — Failure to fulfil obligations 
(Council Directives 92/81, Arts 8(2) and (3), and 92/82, Art. 5(1)) 
1. National legislation which, by intro­
ducing for that purpose a surcharge 
and/or a fuel levy chargeable subject to 
prior notification and which are not 
excise duties, allows the use of less 
heavily taxed gas oil as motor fuel 
cannot be regarded as complying with 
Article 5(1) of Directive 92/82 on the 
approximation of the rates of excise 
duties on mineral oils, which requires 
that gas oil used as motor fuel be taxed 
at the minimum rate of excise duty 
provided for in that article. 
(see paras 94-95) 
2. Although Article 5(1) of Directive 
92/82 on the approximation of the 
rates of excise duties on mineral oils 
imposes on Member States the obli­
gation to ensure that mineral oils used 
as motor fuel are taxed at the minimum 
rate of excise duty set down by that 
provision, Article 8(2) and (3) of 
Directive 92/81 on the harmonisation 
of the structures of excise duties on 
mineral oils sets out certain sectors in 
which the use of mineral oils as motor 
fuel may be subject to exemptions or a 
reduced rate of excise duty, provided 
that they are subject to fiscal control. 
A Member State which maintains in 
force legislation on the use of gas oil 
that puts in place a mechanism of fiscal 
control which does not allow the 
objective pursued by those provisions 
to be attained, since that mechanism 
cannot effectively prevent mineral oils 
intended for other purposes and there­
fore less heavily taxed from being used 
as motor fuel or guarantee that gas oil 
used as motor fuel is in fact taxed at the 
minimum rate of excise duty laid down 
by those provisions, fails to fulfil its 
obligations under those provisions. 
(see paras 97, 108-109, 
operative part) 
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