Opinion of the Advocate General — ECLI:EU:C:2014:446
Date: 2014-05-22
Language of the case: Dutch
Subject matter: Taxation
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fourth Chamber), 2 October 2014 1. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity — Directive 2003/96 — Dual use of energy products — Concept — Gas used in the sugar production process — Recycling of a heating fuel — Not included — Product needed for the production process — Included (Council Directive 2003/96, Art. 2(4)(b), as amended by Directive 2004/74) 2. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity — Directive 2003/96 — Scope — Dual use of energy products — Taxation by a Member State of energy products excluded from the scope of the directive — Lawfulness (Council Directive 2003/96, Art. 2(4)(b), as amended by Directive 2004/74] 1. Article 2(4)(b) of Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity, as amended by Directive 2004/74, 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. (see para. 28, operative part 1) 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 restructuring the Community framework for the taxation of energy products and electricity, as amended by Directive 2004/74, in order to levy a tax on energy products excluded from the scope of that directive. (see para. 33, operative part 2)