Opinion of the Advocate General — ECLI:EU:C:2003:262
Date: 2003-05-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment Tax provisions – Harmonisation of laws – Structures of excise duties on mineral oils – Directive 92/81 – Mineral oils to be subject to excise duty – Mineral oils ‘used as heating fuel’ – Definition – Independent interpretation – Definition including all forms of consumption of mineral oil – National legislation not making all mineral oils falling within that definition subject to excise duties – Failure to fulfil obligations (Council Directive 92/81, Art. 2(2), first sentence) Under the first sentence of Article 2(2) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, mineral oils not referred to in Directive 92/82 are to be subject to excise duty if they are ‘used as heating fuel or motor fuel’. In that respect, the fact that the Community legislature did not define those uses provides no ground for inferring that it intended to leave the definition of those uses to the Member States. Such an eventuality would involve the risk of divergent definitions, which would adversely affect the uniform determination of the chargeable event for the excise duty made by the article in question. It follows that the expression ‘used as heating fuel’ must be interpreted independently. As regards that interpretation, it is clear from the scheme of Directive 92/81 and the objective pursued by the excise duty on mineral oils as a tax on consumption that the expression at issue does not refer only to cases in which the thermal energy produced by the combustion of mineral oil is used for heating purposes, but includes also cases in which the thermal energy thus produced is used for other purposes and therefore refers to all cases where mineral oils are burnt and the thermal energy thus produced is used for heating, whatever the ultimate purpose of that heating may be, including that of transformation or destruction of the substance absorbing the thermal energy during a chemical or industrial process. In all those cases, the mineral oils are used up and must therefore be subject to the excise duty. Accordingly, a Member State has failed to fulfil its obligations under the first sentence of Article 2(2) of Directive 92/81 when its national legislation provides for a restrictive definition, with the effect that cases in which the combustion of the mineral oil coincides, in a homogeneous process, with the transformation or destruction of the substance absorbing the thermal energy produced by the combustion are exempt from the excise duty, and thereby does not make all mineral oils intended for use as heating fuel subject to excise duties. (see paras 45-46, 50, 52, 56-58, operative part)