Opinion of the Advocate General — ECLI:EU:C:1998:538
Date: 1998-11-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Excise duties — Directives 92/12 and 
92/81 — Mineral oils exempted from duty — Domestic charges applied, for specific 
purposes, to exempted products — Prohibited — Taxation of aviation fuel for 
purposes other than private pleasure flying — Not permissible 
(Council Directives 92/12, Art. 3(2), and 92/81, Art. 8(1)(b)) 
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SUMMARY — CASE C-346/97 
2. Tax provisions — Harmonisation of laws — Excise duties — Directive 92/81 — 
Mineral oils exempted from duty — Exemption of aviation fuel for purposes other than 
private pleasure flying — Possibility for individuals to rely on the relevant provision 
(Council Directive 92/81, Art. 8(1)(b)) 
1. Article 8(1) of Directive 92/81 on the 
harmonisation of the structures of 
excise duties on mineral oils precludes 
the collection of an environmental 
protection tax levied on domestic com­
mercial aviation and calculated by 
reference to data on fuel consumption 
and emissions of hydrocarbons and 
nitric oxide in the course of an average 
flight by the type of aircraft used. A 
domestic tax of that kind, which is 
levied on the consumption of fuel since 
there is a direct and inseverable link 
between fuel consumption and the 
polluting substances emitted in the 
course of such consumption, is incom­
patible with the harmonised tax system 
introduced by Directive 92/12 on the 
general arrangements for products sub­
ject to excise duty and on the holding, 
movement and monitoring of such 
products, and by Directive 92/81. To 
allow the Member States to levy 
another indirect tax on products 
which, as in this case, must be 
exempted from harmonised excise duty 
under Article 8(l)(b) of Directive 
92/81 would render that provision 
entirely ineffective. 
2. The obligation, imposed by Arti­
cle 8(1 )(b) of Directive 92/81 on the 
harmonisation of the structures of 
excise duties on mineral oils, to exempt 
from the harmonised excise duty 
mineral oils supplied for use as aviation 
fuel for purposes other than private 
pleasure flying is sufficiently clear, 
precise and unconditional to confer 
on individuals the right to rely on it 
in proceedings before national courts in 
order to contest national rules incom­
patible with that obligation. 
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