Judgment;Summary — ECLI:EU:C:2024:353
Date: 2024-04-25
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Energy;Taxation;Value added tax
Procedure: Reference for a preliminary ruling
Origin: Romania

summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the facts on which the questions are based’, ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law’ and ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’. 19 In that regard, it should be noted that the request for a preliminary ruling sets out the facts giving rise to the dispute in the main proceedings, as found by the referring court, and refers to the national provisions liable to apply to that dispute. This is also true of the link that that court establishes between the questions put to the Court and the subject matter of that dispute. Although the link was not set out autonomously in the order for reference, it is apparent from that order as a whole. 20 Moreover, having regard to the presumption of relevance enjoyed by questions relating to EU law, the fact that not all of the provisions of EU law referred to in the order for reference regarding the second question are, as the case may be, applicable to the main proceedings or that that order does not refer to certain provisions of that law which prove necessary to give a useful answer to the referring court, does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions raised (see, to that effect, judgment of 7 March 2024, Roheline Kogukond and Others, C‑234/22, EU:C:2024:211, paragraph 27 and the case-law cited). 21 Having regard to the foregoing considerations, the Court finds that the request for a preliminary ruling meets the requirements of Article 94 of the Rules of Procedure. Consequently, the questions referred for a preliminary ruling are admissible. Substance The first question 22 By its first question, the referring court asks, in essence, whether Directive 2003/96 and the principle of proportionality must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into the tax warehouse of energy products for use as heating fuel in order to be subsequently sold, the absence of notification of that reintroduction to the competent authority and the absence, in the certificates of receipt and cancellation invoices relating to those products, of references to the marking and colouring of those products, result, as a penalty for non-compliance with those conditions, in the application to those products, irrespective of their actual use, of the higher rate of excise duty laid down for gas oil for use as a motor fuel. 23 In that regard, it should be noted that both the general scheme and the purpose of Directive 2003/96 are based on the principle that energy products are taxed in accordance with their actual use, taking into account, in particular, the clear distinction set out in recitals 17 and 18 of that directive between the motor fuels and heating fuels on which that directive is based. In addition, the definition of ‘levels of taxation of energy products’, for the purposes of Article 4(2) of that directive, according to their use as motor fuel or heating fuel, contributes to the proper functioning of the internal market – a purpose set out in, inter alia, recital 3 of the directive – by precluding any distortion of competition between energy products used for the same purposes (see, to that effect, judgments of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, paragraphs 31 to 33, and of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraph 50 and the case-law cited). 24 Moreover, in so far as Directive 2003/96 does not specify any particular control mechanism for the actual use of energy products nor measures to combat tax evasion connected with the use of those products, it is for Member States, as recalled in recital 9 of the directive, to provide for such mechanisms and such measures, including penalties for non-compliance with the conditions set for that purpose, adapted to national contexts, in conformity with EU law and the general principles thereof, including the principle of proportionality. That said, the discretion afforded to the Member States cannot call into question the principle that energy products are taxed according to actual use (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraphs 52 and 53 and the case-law cited). 25 In the present case, it is apparent from the order for reference that, on account of the absence, first, of notification to the competent customs authority of the reintroduction of an energy product intended for use as heating fuel (heating oil) into the tax warehouse and, second, of references in the certificates of receipt and cancellation invoices concerning that product relating to the marking and colouring thereof, the tax authority equated those omissions to storage, transportation and sale of an unmarked and uncoloured energy product and applied to that product, on the basis of national law and as a penalty, the excise duty provided for in respect of gas oil for use as a motor fuel. 26 In its written observations, the Romanian Government maintains that the obligation to notify reintroduction of energy products into the tax warehouse and the obligation to mark and colour those products are intended to prevent tax avoidance and evasion in order to prevent the use of such products from being subject to lower rates of excise duty provided for in respect of heating fuels, while higher rates should be applied where energy products are actually used as a motor fuel. At the hearing, that government also relied on reasons of national fiscal policy in order to justify higher rates of taxation levied on gas oil. 27 Accordingly, it falls to the referring court, which is required, to the greatest extent possible, to interpret national law in conformity with EU law, to determine whether the provisions of national law applicable in the present case may, without it leading to an interpretation contra legem of those provisions (see, to that effect, judgment of 12 May 2021, technoRent International and Others, C‑844/19, EU:C:2021:378, paragraph 54 and the case-law cited), be interpreted in accordance with the general scheme and the purpose of Directive 2003/96, to the effect that the absence of notification of the reintroduction into the tax warehouse of the energy product in the main proceedings, in order to be subsequently sold, and the absence of references in the certificates of receipt and cancellation invoices concerning that product relating to the marking and colouring thereof lead to the application to that product of the excise duty provided for in respect of gas oil for use as a motor fuel only where the energy product in question is indeed intended for use as a motor fuel. Those provisions cannot subject an energy product to taxation which does not correspond to its actual use (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraph 53). 28 In any event, even assuming that the provisions of national law in question can be subject to an interpretation in conformity with the general scheme and the purpose of Directive 2003/96, to the effect that those provisions comply with the principle that energy products must be taxed according to their actual use, it must be assessed whether the penalty at issue complies with the principle of proportionality. That principle, as a general principle of EU law, requires Member States to employ means which, while enabling them effectively to attain the objective pursued by national legislation, cause the least possible detriment to the principles laid down by the EU legislation in question (judgment of 22 December 2022, Shell Deutschland Oil, C‑553/21, EU:C:2022:1030, paragraph 32) and precludes provisions and practices of national law which go beyond what is necessary to prevent tax evasion or avoidance regarding excise duty (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraph 58). 29 It is for the national courts to take into account, inter alia, the nature and degree of seriousness of the infringement which that penalty seeks to sanction and also the means of establishing its amount (see, to that effect, judgment of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, paragraph 40). 30 In that regard, it must be noted that the application to an energy product such as that in the main proceedings the higher rate of excise duty levied on gas oil for use as a motor fuel as a penalty for non-compliance with the formal conditions set out in paragraph 25 of the present judgment – and which leads, according to the referring court, to a rate of excise duty 21 times higher being levied on that energy product – without allowing the economic operator concerned to prove actual use of that product, goes beyond what is necessary to prevent tax evasion or avoidance. 31 Having regard to all the foregoing considerations, the answer to the first question is that Directive 2003/96 and the principle of proportionality must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into a tax warehouse of energy products to be used as heating fuel in order to be subsequently sold, the absence of notification of that reintroduction to the competent authority and the absence, in the certificates of receipt and cancellation invoices relating to those products, of references to the marking and colouring of those products, result in, as a penalty for non-compliance with those conditions, the application to those products, irrespective of their actual use, of the higher rate of excise duty laid down for gas oil for use as a motor fuel. The second question 32 By its second question, the referring court asks, in essence, whether Article 2(1)(a), Article 63 and Article 78(1)(a) of Directive 2006/112 must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into the tax warehouse of energy products for use as heating fuel, VAT is due on the amount set by the tax authority as additional excise duty on account of the application to those products of the rate of excise duty provided for in respect of gas oil for use as a motor fuel. 33 Under Article 2(1)(a) of Directive 2006/112, the supply of goods for consideration within the territory of a Member State by a taxable person acting as such is to be subject to VAT. 34 Under Article 63 of that directive, VAT is to become chargeable when the goods or services are supplied, that is, when the transaction in question takes place, regardless of whether the consideration due for that transaction has already been paid (judgment of 28 October 2021, X-Beteiligungsgesellschaft (VAT – Successive payments), C‑324/20, EU:C:2021:880, paragraph 54 and the case-law cited). 35 According to point (a) of the first paragraph of Article 78 of that directive, taxes, duties, levies and charges, excluding the VAT itself, are to be included in the taxable amount. In order for those taxes, duties, levies and charges to be included in the taxable amount for VAT, even though they do not represent any added value and do not constitute financial consideration for the supply of goods, they must have a direct link with that supply. The question whether the chargeable event for those taxes, duties, levies and charges coincides with that for VAT is a decisive factor for the purposes of establishing the existence of such a link (see, to that effect, judgments of 22 December 2010, Commission v Austria, C‑433/09, EU:C:2010:817, paragraph 34, and of 11 June 2015, Lisboagás GDL, C‑256/14, EU:C:2015:387, paragraph 29 and the case-law cited). 36 In the present case, while point (a) of the first paragraph of Article 78 of Directive 2006/112 requires the additional excise duty applied to Bitulpetrolium to be prima facie included in the taxable amount for VAT, that inclusion may materialise only if that additional amount, similarly to the excise duty to which it is added, complies, inter alia, with the principle that energy products must be taxed according to their actual use, which flows from the general scheme and the purpose of Directive 2003/96. In those circumstances, under Article 2(1)(a) and Article 63 of Directive 2006/112, the additional VAT calculated on that additional excise duty is not due and will become payable only in the event of a taxable transaction consisting in a supply of the energy product in question for the purposes of its use as a motor fuel. 37 Having regard to all the foregoing considerations, the answer to the second question is that Article 2(1)(a), Article 63 and Article 78(1)(a) of Directive 2006/112 must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into the tax warehouse of energy products for use as heating fuel, VAT is due on the amount set by the tax authority as additional excise duty on account of the application to those products of the excise duty provided for in respect of gas oil for use as a motor fuel, unless a taxable transaction consisting in a supply of the energy product in question for the purposes of its use as a motor fuel is carried out. Costs 38 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Eighth Chamber) hereby rules: 1. Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity and the principle of proportionality must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into a tax warehouse of energy products to be used as heating fuel in order to be subsequently sold, the absence of notification of that reintroduction to the competent authority and the absence, in the certificates of receipt and cancellation invoices relating to those products, of references to the marking and colouring of those products, result in, as a penalty for non-compliance with those conditions, the application to those products, irrespective of their actual use, of the higher rate of excise duty laid down for gas oil for use as a motor fuel. 2. Article 2(1)(a), Article 63 and Article 78(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into the tax warehouse of energy products for use as heating fuel, value added tax is due on the amount set by the tax authority as additional excise duty on account of the application to those products of the excise duty provided for in respect of gas oil for use as a motor fuel, unless a taxable transaction consisting in a supply of the energy product in question for the purposes of its use as a motor fuel is carried out. [Signatures] * Language of the case: Romanian.