Opinion of the Advocate General — ECLI:EU:C:2024:697
Date: 2024-09-05
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
7 March 2023 
Referring court:  
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer:  
10 February 2023 
Appellant:  
X 
Respondent:  
Staatssecretaris van Financiën 
  
Subject matter of the main proceedings 
The main proceedings involve a dispute between X, a boatmaster resident in 
Germany, and the Staatssecretaris van Financiën (State Secretary for Finance), 
concerning an additional assessment to excise duty imposed on X in respect of gas 
oil stored in the bunker tanks of his motor tanker. 
Subject matter and legal basis of the request 
This request under Article 267 TFEU concerns, first of all, the question whether 
the tax exemption for mineral oils subject to excise duty used to propel vessels in 
Community waters can be derogated from for the sole reason that the gas oil in 
question does not contain sufficient identifier. If the answer is in the affirmative, 
the question arises whether the excise duty must be paid by the supplier of the fuel 
or by the boatmaster transporting the gas oil in question. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/23 
 
2  
Questions referred for a preliminary ruling 
1. Must Article 14(1)(c) of Directive 2003/96/EC be interpreted as meaning 
that the tax exemption laid down in that provision applies to energy products 
which are known to be used for the propulsion of vessels in navigating the inland 
waterways of the European Union, even where those energy products (gas oil in 
this case) do not, during that use, contain the required minimum content of the 
marker Solvent Yellow 124, 1 if the tax authorities do not have one or more 
indications that the owner or operator of the vessel or his or her representative on 
board the ship (the boatmaster) is involved in excise evasion, avoidance or abuse 
in respect of the gas oil being held? 
2. If Question 1 is answered in the negative, must Article 7(2) of Directive 
2008/118/EC be interpreted as meaning that, where it is established that the 
bunker tank of an inland waterway vessel exclusively contains gas oil originating 
from a fuel supplier which, with the authorisation of the tax authorities, may 
release that gas oil for consumption exempt from excise duty, the mere fact that 
the gas oil does not contain the required minimum content of the marker Solvent 
Yellow 124 means that the excise duty became chargeable only at the time of that 
earlier release for consumption on the basis of Article 7(2)(a) of that directive? 
3. If Question 2 is answered in the negative and Article 7(2)(b) of Directive 
2008/118/EC is thus also applicable in the case referred to therein, does the EU 
law principle of proportionality preclude excise duty which has become 
chargeable pursuant to Article 7(2)(b) of Directive 2008/118/EC from being 
levied on the boatmaster holding the excise goods, in accordance with 
Article 8(1)(b) of that directive, even if that person had no reason to doubt that the 
gas oil was being supplied exempt from excise duty in accordance with EU and 
national law? 
4. Is it relevant for the answer to Question 3 that the boatmaster does not 
perform his or her duties in an employment relationship but is also the owner of 
the vessel? 
Provisions of EU law relied on 
Article 14(1) of Council Directive 2003/96/EC of 27 October 2003 restructuring 
the Community framework for the taxation of energy products and electricity (‘the 
Energy Taxation Directive’) 
Articles 1 and 3 of Council Directive 95/60/EC of 27 November 1995 on fiscal 
marking of gas oils and kerosene (‘Directive 95/60’) 
 
1 On the basis of Article 1 of Directive 95/60, read in conjunction with Article 3 thereof, and 
Article 1 of Implementing Decision 2011/544. 
ALSEN 
 
 
      
Article 1 of Commission Implementing Decision 2011/544/EU of 16 September 
2011 on establishing a common fiscal marker for gas oils and kerosene 
(‘Implementing Decision 2011/544’) 
Articles 7(2) and 8(1) of Council Directive 2008/118/EC of 16 December 2008 
concerning the general arrangements for excise duty and repealing Directive 
92/12/EEC (‘the Excise Duty Directive’) 
Provisions of national law relied on 
Articles 1a(3) and 2(1) and Articles 51(1)(b) and 66(1)(a) of the Wet op de accijns 
(Law on excise duty; ‘the Wet’)  
Article 13(2) of the Uitvoeringsregeling accijns (Regulation implementing excise 
duty) 
Article 20(2) of the Uitvoeringsbesluit (Decree implementing excise duty) 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 7 June 2016, X’s tanker was in the Netherlands on the Amsterdam-Rhine 
Canal when inspectors from the tax and customs administration) came on board to 
perform a check on whether excise duties were being levied correctly. The 
inspectors found that the tanker’s bunker tanks, that is to say, the fuel tanks used 
to propel the vessel, contained 10 900 litres of red-coloured gas oil. 
2 Laboratory tests revealed inter alia that the quantity of Solvent Yellow 124 
(‘Solvent Yellow’) in the gas oil in question was 5 grams per 1 000 litres and 4.4 
grams per 1 000 litres, respectively. This content is lower than the minimum 
content of 6 grams per 1 000 litres of Solvent Yellow which, under national 
provisions, 2 must be added as identifier to semi-heavy oil and gas oil so that those 
oils may be released, exempt from excise duty, for use as fuel for the propulsion 
of vessels. For that reason, the tax inspector imposed an additional excise duty 
assessment on X, despite the fact that X had presented fuel receipts showing that 
the diesel oil had been recently supplied to him at two bunker stations (filling 
stations for vessels) of fuel suppliers. The tax inspector is of the view that X, as 
the owner and boatmaster of the tanker, was holding the gas oil within the 
meaning of Article 2(1)(b) of the Wet op de accijns (Law on excise duty; ‘the 
Wet’), while that gas oil was not subject to excise duty in accordance with the 
applicable EU and national legislation. 
 
2 Article 1a(3) and Article 66(1)(a) of the Wet, read in conjunction with Article 13(2) of the 
Regulation implementing excise duty and Article 20(2) of the Decree implementing excise duty. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/23 
 
4  
Essential arguments of the parties in the main proceedings 
3 The Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden, 
Netherlands; ‘the Gerechtshof’) ruled, at second instance, that an additional 
assessment had been correctly imposed on X. 
4 In that regard, the Gerechtshof took as its starting point that, according to 
Article 51(1)(b) of the Wet voor het naheffen van accijns (Law on imposing an 
additional excise duty assessment), on account of the chargeable event as defined 
in Article 2(1)(b) of the Wet, it is not a requirement that the person concerned 
knew or should have known that no excise duty was levied on the excise goods. 
The Gerechtshof then ruled that the gas oil found in the bunker tanks is a good 
subject to excise duty, that that gas oil was not, at the time of the inspection, 
subject to an excise duty suspension arrangement and that X had taken actual 
possession of that gas oil. According to the Gerechtshof, X has not plausibly 
shown that excise duty had already been levied on the gas oil. 
5 X argued before the Gerechtshof that subsequent assessment should not take place 
because the gas oil found in the bunker tanks was used for the purpose for which 
the exemption provided for in Article 66(1)(a) of the Wet was introduced, namely 
the propulsion of a vessel, and that, consequently, the State was not adversely 
affected. 
6 The Gerechtshof rejected that argument. In the Gerechtshof’s view, the gas oil did 
not satisfy the relevant condition for the application of that exemption, namely 
that the prescribed quantity of Solvent Yellow be added to it as an identifier. The 
Member States have the power to impose conditions to combat evasion, avoidance 
and abuse. According to the Gerechtshof, the requirement of the presence of 
sufficient marker is proportionate, since the addition of a marker facilitates the 
monitoring of the use of mineral oils and is a suitable way to deter evasion, 
avoidance and abuse. The judgment of the Court of Justice of the European Union 
of 13 July 2017, Vakarų Baltijos laivq statykla, C-151/16, EU:C:2017:537 (‘the 
Vakarų judgment’) cannot, according to the Gerechtshof, lead to a different 
conclusion. That judgment concerned the exemption provided for in 
Article 14(1)(c) of the Energy Taxation Directive, a tax exemption which was 
transposed into Netherlands law in Article 66(1)(a) of the Wet. Unlike in that 
judgment, the issue in X’s case is not the breach of purely formal conditions for 
the application of an exemption, but breach of the conditions for identification 
specific to the excise good. According to the Gerechtshof, those conditions are 
essential in order to ensure the correct and straightforward application of the 
exemption provided for in Article 66(1)(a) of the Wet and to prevent evasion, 
avoidance and abuse. 
7 In his appeal, X submits, first of all, that the fact that gas oil stored in the bunker 
tanks of an inland waterway vessel does not contain the prescribed quantity of 
Solvent Yellow does not justify, in the circumstances of this case, imposing excise 
duty on the boatmaster. Next, X submits that, if it is held that excise duty is due on 
ALSEN 
 
 
      
the gas oil in question, it must first be ascertained whether the fuel suppliers have 
fulfilled all the conditions for the supply of that gas oil exempt from excise duty. 
If that is not the case, the excise duty due may not be levied on the boatmaster but 
must be levied on the fuel suppliers. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 According to the Hoge Raad der Nederlanden (Supreme Court of the 
Netherlands), it is an established fact that X used the gas oil in question to power 
his vessel and that there is no evidence of involvement in excise evasion, 
avoidance or abuse. 
9 By laying down the condition that Solvent Yellow must be added to the gas oil in 
question before it is released for consumption, the Netherlands fulfils its 
obligation under Directive 95/60. Under the first indent of Article 1(1) of that 
directive, Member States are to apply a marking system for tax purposes to, inter 
alia, gas oil released for consumption which is exempt from excise duty or is 
subject to a reduced rate of excite duty. Article 1 of Implementing Decision 
2011/544 provides, first, that Solvent Yellow is a common marker and, second, 
that the Member States must set the marker content at least at 6 milligrams but not 
more than 9 milligrams per litre of mineral oil. 
10 Unlike with the Lithuanian legislation referred to in the Vakarų judgment, the 
relevant national legislation in the present case is thus linked to EU legislation 
which seeks to prevent the unlawful use of fuels not covered by the standard 
excise rate for fuels applied by the Member States. According to the Hoge Raad, 
the question is whether the obligation arising from Directive 95/60 to add 
sufficient Solvent Yellow is to be regarded as a formal requirement within the 
meaning of the Vakarų judgment, which is not related to actual use within the 
meaning of Article 14(1)(c) of the Energy Taxation Directive. In that case, that 
obligation must be disregarded for the purpose of assessing the right to an 
exemption from excise duty provided for in that provision. 
11 On the one hand, it can be argued that a minimum Solvent Yellow content is, for 
the purposes of the exemption provided for in Article 14(1)(c) of the Energy 
Taxation Directive, a substantive condition which can under no circumstances be 
ignored, as it gives the fuels in question a unique characteristic which is related 
exclusively to the use for which the excise duty exemption was created. The 
addition of identifiers and colorants enables the tax authorities to check, in a 
simple and effective manner, whether mineral oils are being used lawfully, in 
accordance with the purpose of an exemption or a reduced rate of excise duty. 
Monitoring lawful use cannot be limited to the time when the supplier – with the 
authorisation of the tax authorities – releases excise goods for consumption under 
an exemption or at a reduced rate. In order to ensure the effective enforcement of 
an exemption provision such as that at issue in the present case, it must be 
possible to extend such monitoring to the subsequent phase: that of the users of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/23 
 
6  
those excise goods. Thus, the addition of markers should help to prevent the 
unauthorised use of marked mineral oils. Under that approach, the mere fact that 
the gas oil contained in the bunker tank of an inland waterway vessel does not 
contain the minimum content of Solvent Yellow would mean that the exemption 
provided for in Article 14(1)(c) of the Energy Taxation Directive could never be 
successfully relied on, even if it has been established that the gas oil is used for 
purposes for which the exemption was introduced. 
12 On the other hand, it can be argued that the actual use of the gas oil is decisive in 
all cases where the tax authorities have not found that the boatmaster is involved 
in excise evasion, avoidance or abuse in respect of the gas oil held. 3 It is worth 
noting that it cannot be ruled out at the outset that the cause of the Solvent Yellow 
content being lower than is required by law is related, for example, to errors made 
when that marker was added to mineral oils. Under that approach, the fact that the 
condition that gas oil must contain a minimum content of Solvent Yellow is not 
met does not affect the right to the exemption from excise duty, even if that 
condition is based on EU rules. That approach is, according to the Hoge Raad der 
Nederlanden (Supreme Court of the Netherlands), supported by the principle of 
proportionality as a general principle of EU law. Once it is certain that the mineral 
oils are being used for the purpose covered by the exemption and that no loss of 
tax revenue has been established, the refusal of the exemption goes beyond what 
is necessary to prevent the unjustified use of mineral oils which have been 
released under the exemption. 
13 In view of the doubts that exist on this point, the Hoge Raad refers Question 1 
above to the Court of Justice. 
14 If it follows from the answer to Question 1 that the exemption from excise duty is 
not applicable in the present case, the question arises whether Article 7(2) of the 
Excise Duty Directive must be interpreted as meaning that, if the gas oil found in 
the bunker tank of an inland waterway vessel does not contain any gas oil other 
than that from a fuel supplier which, with the authorisation of the tax authorities, 
could release it for consumption free of excise duty, the mere fact that the gas oil 
does not comply with the legal requirement for a minimum content of Solvent 
Yellow renders an excise duty chargeable under Article 7(2)(b) of that directive. 
15 According to the Hoge Raad, neither the judgment of 5 April 2001, van de Water 
(C-325/99, EU:C:2001:201) nor the subsequent case-law of the Court of Justice 
provides sufficient guidance to answer that question. For that reason, the Hoge 
Raad refers Question 2 above to the Court of Justice. 
16 Finally, if it follows from the answer to Question 2 that, in the present case, excise 
duty is chargeable, the authorised warehousekeeper, the registered consignee or 
 
3 See, inter alia, judgments of the Court of Justice of 22 December 2022, Quadrant Amroq 
Beverages, C-332/21, EU:C:2022:1031, and of 9 December 2010, Repertoire Culinaire, 
C-163/09, EU:C:2010:752. 
ALSEN 
 
 
      
any other person releasing the excise goods from the duty suspension arrangement 
or on whose behalf the excise goods are released from the duty suspension 
arrangement or, in the case of irregular departure from the tax warehouse, any 
other person involved in that departure, is liable to pay the excise duty which has 
become chargeable, in accordance with Article 8(1)(a)(i) of the Excise Duty 
Directive. A situation where the authorised warehousekeeper releases products 
subject to excise duty for consumption and has relied, at the time of the 
declaration to the tax authorities, on an exemption from which it subsequently 
appears that not all the conditions were satisfied at the time of release for 
consumption, cannot be equated with irregular departure. In that case, X cannot 
therefore be regarded as having participated in the departure within the meaning 
of Article 8(1)(a)(i) of the Excise Duty Directive. X cannot then be liable to pay 
excise duty under the Excise Duty Directive. He must be regarded as having 
received the gas oil in question, even though he did not know and had no 
reasonable grounds to know that the oil contained an insufficient level of Solvent 
Yellow. 
17 If it follows from the answer to Question 2 that excise duty is due in any event by 
reason of the holding referred to in Article 7(2)(b) of the Excise Duty Directive, it 
follows from Article 8(1)(b) of the Excise Duty Directive that the person holding 
the excise goods may be designated as liable to pay the excise duty which has 
become chargeable. It follows from the case-law of the Court of Justice that, in the 
light of the wording of Article 8(1)(b) of the Excise Duty Directive, EU law does 
not require that the person designated therein as liable for excise duty know or 
should reasonably have known that excise duty is payable under Article 7(2)(b) of 
the Excise Duty Directive. 4 
18 The question nevertheless arises whether the EU law principle of proportionality 
precludes the tax inspector from levying the excise duty due on the gas oil of X 
under Article 8(1)(b) of the Excise Duty Directive, and not instead from the fuel 
supplier under Article 8(1)(a)(i) of the Excise Duty Directive. Where the 
boatmaster of an inland waterway vessel has purchased gas oil from a fuel 
supplier which, with authorisation of the tax authorities, sells and supplies gas oil 
exempt from excise duty, and that boatmaster had no reason to doubt that the gas 
oil was being supplied exempt from excise duty in accordance with the provisions 
of EU and national law, it may be considered disproportionate to impose on him 
the excise duty which has become chargeable. It should be borne in mind that 
when gas oil is supplied, it cannot be discerned with the naked eye whether 
Solvent Yellow has been added. In those circumstances, it stands to reason that 
the supplier is required to pay the excise duty, pursuant to Article 8(1)(a)(i) of the 
Excise Duty Directive, read in conjunction with Article 7(2)(a) thereof. The 
payment of the excise duty must remain at its risk, precisely because, as an 
authorised warehousekeeper, it plays a central role in the procedure for the 
 
4 See judgment of 10 June 2021, Commissioners for Her Majesty’s Revenue and Customs 
(Innocent actor), C-279/19, EU:C:2021:473, paragraphs 28 to30. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-137/23 
 
8  
movement of excise goods. In practice, it is also generally not difficult for the tax 
and customs administration) to collect the excise duty still due from the fuel 
supplier. While it is true that the person who has paid the excise duty under the 
Excise Duty Directive has the possibility of bringing a recourse action against 
another person liable to pay that excise duty, 5 successfully exercising such a right 
of recourse may be an excessively long and costly procedure for a boatmaster. 
19 In view of what has been considered above, it is uncertain whether the question 
set out in paragraph 18 should be answered in the affirmative. The Hoge Raad 
therefore refers Questions 3 and 4, formulated above, to the Court of Justice. 
 
5  See judgment of 10 June 2021, Commissioners for Her Majesty’s Revenue and Customs 
(Innocent actor), C-279/19, EU:C:2021:473, paragraph 33 and the case-law cited.