Opinion of the Advocate General — ECLI:EU:C:2018:93
Date: 2018-02-22
Language of the case: Danish
Subject matter: Energy;Taxation
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Denmark

Summary — Judgment of the Court (First Chamber), 6 June 2018 Tax provisions — Harmonisation of laws — Taxation of energy products and electricity — Exemption of energy products consumed within the curtilage of the establishment that has produced them — Scope — Energy products used for purposes other than as motor fuels or as heating fuels — Not included (Council Directive 2003/96, recital 22 and Arts 2(1) and (4)(b) and 21(3)) Article 21(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that the consumption of energy products, within the curtilage of an establishment that has produced them, for the purpose of producing other energy products does not fall within the exception, laid down in that provision, concerning the chargeable event giving rise to taxation where, in a situation such as that at issue in the main proceedings, the energy products produced by virtue of the main activity of that establishment are used for purposes other than as motor fuels or as heating fuels. However, as is apparent from recital 22 of Directive 2003/96, the EU legislature considered that energy products should essentially be subject to a framework common to the Member States when used as heating fuel or motor fuel and that it is therefore in the nature and the logic of the tax system to exclude from the scope of the framework, in particular, energy products used for purposes other than as motor fuel or heating fuel. Thus, even though such products fall within the definition of ‘energy products’ for the purposes of Article 2(1) of Directive 2003/96, they are excluded from the scope of that directive by the first indent of Article 2(4)(b) thereof if they are not intended to be used as motor fuel or heating fuel (see, to that effect, judgment of 5 July 2007, Fendt Italiana, C‑145/06 and C‑146/06, EU:C:2007:411, paragraphs 35 and 43). (see paras 24, 37, operative part)