Opinion of the Advocate General — ECLI:EU:C:2007:237
Date: 2007-04-19
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment Tax provisions – Harmonisation of laws – Taxation of energy products and electricity – Directive 2003/96 (Council Directives 92/12, Art. 3(1) and (3), and 2003/96, Art. 2(1)(b) and (4)(b)) Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as not precluding national legislation which provides for the levying of a tax on the consumption of lubricating oils, where they are intended for use, offered for sale or used other than as motor fuels or as heating fuels. Even though lubricating oils used other than as motor fuels or as heating fuels fall within the definition of ‘energy products’ for the purposes of Article 2(1)(b) of Directive 2003/96, they are explicitly excluded from the scope of that directive by the first indent of Article 2(4)(b) thereof and therefore are not covered by the harmonised excise duty arrangements. In those circumstances it should be held that the lubricating oils in question, which are not subject to harmonised excise duty, are products other than those referred to in the first indent of Article 3(1) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, so that, in accordance with the first subparagraph of Article 3(3) thereof, Member States are to retain the right to introduce or maintain taxes which are levied on those products provided that those taxes do not give rise to border-crossing formalities in trade between Member States. (see paras 43-45, operative part)