62013CC0152_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The present case concerns the interpretation of the term ‘standard fuel tanks’ in the context of the taxation of energy products. This term, which has now been present in EU legislation for a long time, is currently the subject of a proposal for amendment by the European Commission, a proposal which is due primarily to change in the technical and economic context on the market for commercial vehicles. (2) In the present case the Court will have to establish whether that change in context should also affect the interpretation of the definition of that term in its present wording.
Legal framework
2. The legal framework for the present case at the level of EU law consists of the provisions of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity. (3) That directive regulates the taxation of energy products in the European Union. Among other things, it establishes certain exemptions from such taxation.
3. Thus, Article 24 of Directive 2003/96 provides:
‘1. Energy products released for consumption in a Member State, contained in the standard tanks of commercial motor vehicles and intended to be used as fuel by those same vehicles, as well as in special containers, and intended to be used for the operation, during the course of transport, of the systems equipping those same containers shall not be subject to taxation in any other Member State.
2. For the purposes of this Article, “standard tanks” shall mean:
– the tanks permanently fixed by the manufacturer to all motor vehicles of the same type as the vehicle in question and whose permanent fitting enables fuel to be used directly, both [for] the purpose of propulsion and, where appropriate, for the operation, during transport, of refrigeration systems and other systems. Gas tanks fitted to motor vehicles designed for the direct use of gas as a fuel and tanks fitted to the other systems with which the vehicle may be equipped shall also be considered to be standard tanks;
– the tanks permanently fixed by the manufacturer to all containers of the same type as the container in question and whose permanent fitting enables fuel to be used directly for the operation, during transport, of the refrigeration systems and other systems with which special containers are equipped.
“Special container” shall mean any container fitted with specially designed apparatus for refrigeration systems, oxygenation systems, thermal insulation systems or other systems.’
4. The definition of ‘standard tanks’ in the first indent of Article 24(2) of Directive 2003/96 is the subject of the questions referred for a preliminary ruling in the present case.
5.
The relevant German legislation can be found in the Law of 15 July 2006 on energy tax (4) and in the Regulation for implementation of the Law on energy tax of 31 July 2006. (5) The provisions transposing Article 24 of Directive 2003/96 follow the wording of that article fairly closely. As the referring court states, the Bundesfinanzhof (Federal Finance Court) gives a restrictive interpretation to those provisions.
The facts in the main proceedings, the questions referred for a preliminary ruling and the course of the procedure
6. The applicant in the main proceedings, Holger Forstmann Transporte GmbH & Co. KG (‘HFT’), is a road haulage undertaking having its registered office in Germany. For the purposes of its business it acquired a commercial motor vehicle from Daimler AG, a commercial vehicle manufacturer. That vehicle was originally fitted with a fuel tank having a capacity of 780 litres. As the use of the vehicle envisaged by HFT required the installation of special equipment, that task was given to R & S Fahrzeugbau, a coachbuilder. In installing the equipment, the coachbuilder for technical reasons had to move the fuel tank originally fitted by the vehicle manufacturer (‘tank 1’). In the course of fitting-out, the coachbuilder also fitted a second tank with a capacity of 780 litres, which had been obtained beforehand from Hoppe Truck-Tanks GmbH & Co. KG (‘tank 2’). A second tank could equally have been fitted by the vehicle manufacturer, but this would not have made economic sense because that tank would then also have had to be moved for the purposes of the final fitting-out of the vehicle.
7. On 2 December 2009 and 14 February 2011, a driver refuelled the vehicle in question in the Netherlands and then immediately drove it back into Germany. The fuel was used exclusively for the purpose of propulsion of the vehicle.
8. On 28 June 2012, HFT made a declaration to Hauptzollamt (Principal Customs Office) Münster, the defendant in the main proceedings, in respect of the quantities of fuel imported in tank 2. Following that declaration, Hauptzollamt Münster demanded, by notice of 3 July 2012, payment of a sum of EUR 501.22 in energy tax for the fuel imported in tank 2 and, by notice of 19 September 2012, payment of a sum of EUR 291.14 in energy tax for the fuel imported in tank 1. Hauptzollamt Münster took the view that neither tank 1, which had been moved by the coachbuilder, nor tank 2, which had been newly fitted by the coachbuilder, had been permanently fixed by the vehicle manufacturer and that they did not therefore satisfy the definition of ‘standard tanks’ within the meaning of the provisions of German law adopted to transpose Article 24 of Directive 2003/96. The fuel contained in those tanks could not therefore be exempted under those provisions.
9. After the objections lodged by HFT had been dismissed by Hauptzollamt Münster, HFT brought an action before the referring court seeking the annulment of those notices.
10. As the referring court states, on the basis of the interpretation of the relevant provisions by the Bundesfinanzhof the action would have to be dismissed. Under that interpretation, tanks fitted by dealers or coachbuilders are not covered by the term ‘standard tanks’. According to the referring court, the Bundesfinanzhof bases it position primarily on the interpretation given by the Court, in Schoonbroodt, (6) to Article 112(1) of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, (7) which has essentially the same wording as Article 24 of Directive 2003/96.
11. The referring court nevertheless wonders whether it would be more appropriate to adopt a broader interpretation of the term ‘standard tanks’ so that it also covers tanks fitted by dealers or coachbuilders, such as, for example, those at issue in the main proceedings. The referring court considers that a broad interpretation of this kind could be based on the approach taken by the Court in Meiland Azewijn . (8)
12. In these circumstances, the Finanzgericht (Finance Court) Düsseldorf (Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Is the term ‘manufacturer’, within the meaning of the first indent of Article 24(2) of [Directive 2003/96], to be interpreted as also including coachbuilders or dealers, when they have fitted the fuel tank as part of a process of producing the vehicle, and the production process was, for technical and/or economic reasons, carried out through division of labour by various independent businesses?
2. If the first question should be answered in the affirmative: What interpretation is to be given, in such cases, to the factual criterion, in the first indent of Article 24(2) of [Directive 2003/96], whereby the vehicles in question must be “of the same type”?’
13. The order for reference was received at the Court on 26 March 2013. Written observations were submitted by HFT, Hauptzollamt Münster, the Czech Republic and the Commission. No hearing was held.
Analysis
14. In the questions referred for a preliminary ruling, the interpretation sought by the referring court concerns the terms ‘manufacturer’ and vehicles ‘of the same type’. However, I consider that it would be more appropriate, as is indeed proposed by the Czech Government, to analyse the definition of ‘standard tanks’ in its entirety, and, more specifically, to consider the interpretation that should be given to that definition in the current economic and technical context in order to ensure the effectiveness of Article 24 of Directive 2003/96.
The origin of the provision in question
15. The definition of standard tanks of commercial vehicles for the purposes of exemption from duties and taxes on fuel contained therein appeared for the first time, if I am not mistaken, in Article 112(2)(c) of Regulation No 918/83. That definition had essentially the same wording as the current definition in Article 24 of Directive 2003/96.
16. That definition is based on the premiss, which was undoubtedly true at the time it was adopted, that commercial vehicle manufacturers offer types of vehicles which are standardised in terms of the majority of their technical characteristics, including the number and type of fuel tanks. At the time, it was easy to identify a specific type of vehicle and to ascertain whether the fuel tank of a given vehicle satisfied the specific characteristics of that type of vehicle. In the context of trade relations with non-member countries, this made it possible to prevent the importation — to the detriment of the fiscal interests of the Member States — of surplus quantities of fuel from countries where its price was much lower than prices on the Community market on account of differences in exchange rate and fiscal policy.
17. The reference to the term ‘standard tanks’ thus defined had the benefit of preventing not only the importation of fuel in portable tanks (which was permitted for passenger vehicles) and various other containers, but also in additional tanks specifically fitted to commercial vehicles for the purpose of importing fuel into the Community customs territory. The existence of checks at external borders made it possible to ensure the effectiveness of those provisions.
18. As regards the importation, free of excise duties, of fuel contained in the tanks of commercial vehicles in intra-Community relations, the same definition — already present in the second indent of Article 2 of Council Directive 68/297/EEC of 19 July 1968 on the standardisation of provisions regarding the duty-free admission of fuel contained in the fuel tanks of commercial motor vehicles, (9) as amended by Council Directive 85/347/EEC of 8 July 1985 (10) — was reproduced almost word for word in Article 8a(2) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, (11) inserted by Council Directive 94/74/EC of 22 December 1994. (12)
19. According to the 19th recital in the preamble to Directive 94/74, exemption from excise duty in a Member State of fuel released for consumption in another Member State and contained in the fuel tanks of commercial vehicles is granted ‘in order not to impede free movement of individuals and goods and in order to prevent double taxation’.
20. Directive 92/81 was repealed and replaced by Directive 2003/96 and Article 8a became, without any substantive changes, Article 24 of Directive 2003/96.
The Court’s case-law
Schoonbroodt
21. The Court has already had one opportunity to interpret the definition of ‘standard tanks’ for the purposes of EU legislation, in Schoonbroodt . (13) Although the case giving rise to that judgment, like the present case, concerned the admission free of excise duty, under Belgian legislation, of fuel contained in the tanks of commercial vehicles in the context of intra‑Community relations, the interpretation sought by the referring court related, however, to the term ‘standard tanks’ as defined in Article 112 of Regulation No 918/83, that is to say in the field of reliefs from customs duty. (14)
22. In that judgment, the Court adopted a strict interpretation of the term ‘standard tanks’. In particular, it excluded from the scope of that term tanks permanently fixed by a dealer or a coachbuilder. (15)
23. As grounds for this solution, the Court refe rred to the principles stemming from case-law on reliefs from customs duty, according to which, ‘when adopting provisions granting suspension of customs duties, the Council must take account of the requirements of legal certainty and of the difficulties confronting national customs administrations .... It follows that such provisions are to be interpreted strictly according to their terms and may not therefore be applied, contrary to their wording, to products which they do not mention’. (16)
Meiland Azewijn
24. In Meiland Azewijn (17) the Court ruled on the interpretation of Article 8a of Directive 92/81, the provision subsequently replaced by the provision at issue in the present case. However, that case did not concern the definition of ‘standard tanks’, but the term ‘commercial vehicle’, which is not defined in that article, and the issue whether the fuel contained in the tanks of such vehicles and exempt from excise duty could be used only for the propulsion of the vehicle or whether it could also be used to operate machines and systems fitted to the vehicle, such as agricultural machinery.
25. Although the subject-matter of the interpretation given in Meiland Azewijn (18) is different from that in the present case, some of the solutions arrived at by the Court may be of interest. First, with regard to the term ‘commercial vehicle’, the Court rejected references to the definitions of that term that appear — in the context of the duty-free admission of fuel — in Directive 68/297 and Regulation No 918/83. (19) It preferred to refer to the scheme and purpose of the provision in question, namely to protect freedom of movement for individuals and goods and to prevent double taxation. (20) The Court concluded that Article 8a of Directive 92/81 must be interpreted broadly. (21)
26. Second, with regard to the use of the fuel imported free from excise duty, the Court ruled that the fuel could be used not only for the propulsion of the vehicle but also for other purposes, such as agricultural work. This finding is particularly interesting in view of the wording of the definition of ‘standard tanks’ to be analysed in the present case. That definition expressly provides that the fitting of those tanks must enable ‘fuel to be used directly, both for the purpose of propulsion
and, where appropriate, for the operation, during transport, of refrigeration systems and other systems’. (22) It seems clear that, according to its wording, this definition applies only to fuel used in the context of transport either for the purpose of propulsion or for the operation, during transport, of vehicle systems. The Court therefore clearly departed from the wording of Article 8a.
Legal assessment
27. Having set out the historical background, and the case-law, concerning the definition of ‘standard tanks’ within the meaning of Article 24(2) of Directive 2003/96, I will now assess the interpretation of that provision in the light of the facts in the main proceedings. That assessment will be conducted in two stages, distinguishing between the case of tank 1 and the case of tank 2, as described in point 6 of this Opinion, but will none the less arrive at a joint conclusion.
The case of tank 1
28. It should be remembered that tank 1 was fitted to the vehicle by the manufacturer, before being moved, in the final fitting-out, by a coachbuilder.
29. Hauptzollamt Münster did not grant an exemption from excise duty for the fuel contained in this tank as it considered that the tank did not satisfy the definition of ‘standard tanks’ within the meaning of Directive 2003/96. Hauptzollamt Münster took the view that because the tank in question had been moved by a third party, it had not been fixed to the vehicle by the manufacturer, as is required, in the view of that authority, by Article 24(2) of Directive 2003/96.
30. Hauptzollamt Münster maintains that interpretation in its written observations. It relies primarily on a literal reading of the provision in question, on Schoonbroodt (23) and on the principle of legal certainty. However, I have serious doubts whether these three elements can actually form a basis for the approach taken by the German tax authority.
31. First of all, as regards the wording of the definition contained in the first indent of Article 24(2) of Directive 2003/96, there is no mention of a ‘tank fixed by the manufacturer’ to a specific vehicle. On the contrary, the wording used employs the plural, defining standard tanks as ‘ tanks
permanently fixed by the manufacturer to all
motor vehicles of the same type as the vehicle in question’. (24) As the Commission rightly observes, it is therefore a question of a general category of tanks and not of whether a specific tank has been physically fitted to the vehicle by the manufacturer.
32. The fact that the legislature took such an approach can easily be explained by the purpose of the provision in question, which is to protect freedom of movement for individuals and goods and to prevent double taxation, whilst ensuring the protection of the legitimate fiscal interests of the Member States. From the point of view of that purpose, the relevant factor is not who fitted the tank in question to a specific vehicle, but the function of the tank, namely to permit the propulsion of the vehicle and the operation of its systems in the course of normal use. An interpretation which excludes the tank solely because it was replaced or even merely moved in the course of repair or modification to the vehicle by someone other than the manufacturer is consistent with neither the wording nor the purpose of Article 24 of Directive 2003/96.
33. Nor does such an interpretation follow from Schoonbroodt . That case did not relate to a tank that had been replaced or moved, but to additional tanks added to the vehicles by dealers or coachbuilders to increase their range. (25) The Court therefore held, on the basis of a literal interpretation of the provision at issue, that the tanks were not fixed by the manufacturer ‘to all motor vehicles of the same type as the vehicle in question’, as normally the manufacturer did not actually fit such tanks to its vehicles.
34. It was in that context that the Court ruled that the definition of ‘standard tanks’ used in Article 112(2)(c) of Regulation No 918/83 did not apply to tanks which ‘[had] been permanently fixed by one of the manufacturer’s dealers or by a coachbuilder in order to attain certain financial objectives’. (26) Although a reading of only the operative part of the judgment in Schoonbroodt
might suggest that all tanks fitted by persons other than the manufacturer are excluded from the scope of the definition of ‘standard tanks’, the grounds of that judgment indicate a more qualified conclusion. In particular, I do not consider that the view can be taken, on the basis of that judgment, that tanks fixed by third parties not ‘in order to attain certain financial objectives’, but simply to restore the functions of the vehicle or as part of the modification of those functions are excluded from the definition in question.
35. Lastly, in my opinion, the principle of legal certainty also does not support the view put forward by Hauptzollamt Münster. According to the Court’s settled case-law, the principle of legal certainty — which is one of the general principles of EU law — requires, particularly, that rules of law be clear, precise and predictable in their effects, especially where they may have negative consequences on individuals and undertakings. (27) That principle thus seeks, in cases relating to taxation, to protect, first and foremost, the interests of taxpayers and not those of the tax authorities, by ensuring in particular that the consequences stemming from the application of the law are predictable.
36. As far as the main proceedings are concerned, it should be noted that, although HFT made a declaration to the tax authority, ‘by way of precaution’ as it stresses, in respect of the fuel imported in tank 2, it made no such declaration, even as a precaution, in respect of the fuel imported in tank 1. In my view, this is because HFT could not predict that the fuel imported in tank 1 might not benefit from exemption from excise duty.
37. However, the predictability inherent in the principle of legal certainty requires that the interpretation of the rule of law does not lead to absurd or nonsensical results. That would indeed be the situation in the present case if enjoyment of the exemption from excise duty depended on fortuitous circumstances which are irrelevant from the point of view of the purpose of the provision in question, like the fact that the tank originally fixed by the manufacturer has been replaced or moved after the vehicle was acquired. If such an interpretation were adopted, one operator could benefit from the exemption for fuel imported in the tank of his vehicle, whilst another operator in the same situation would be deprived of that possibility simply because he has made repairs or modifications to his vehicle. Such a result would not only be illogical, but would also create an unjustified difference in treatment that could cause distortions of competition. An interpretation of a rule of law which leads to such a result cannot, in my view, be considered to be consistent with the principle of legal certainty.
38. For these reasons, I consider that the definition of ‘standard tanks’ in Article 24(2) of Directive 2003/96, even interpreted literally, applies to tanks fixed by persons other than the vehicle manufacturer where those persons merely replace or move the tank(s) originally fixed by that manufacturer.
The case of tank 2
39. It should be remembered that tank 2, which has the same capacity as tank 1, was acquired from an independent reseller and fitted to the vehicle by the coachbuilder which had moved tank 1. Tank 2 could equally have been fitted by the manufacturer in the course of the manufacture of the vehicle, but this would not have made economic sense because that tank would then also have had to be moved for the purposes of the final fitting-out of the vehicle.
40. The situation of tank 2 is similar to that of the tanks at issue in Schoonbroodt (28) in so far as it was likewise never fixed to the vehicle by the manufacturer. It would therefore be easy to conclude, on the basis of both a literal interpretation of the definition contained in Article 24(2) of Directive 2003/96 and that judgment, that, unlike tank 1, tank 2 is not covered by that definition. I do believe, however, that it would be better to resist this temptation. An excessively simple solution like this would no longer seem to be tenable in the light both of current economic circumstances and of the purposes of the relevant provision of Directive 2003/96.
41. According to the assertion made by HFT in its written observations, which is confirmed by the Commission in its observations, it is now common for commercial vehicles to be manufactured in several phases, with the manufacturer producing only the chassis and the cab whilst the rest is then fitted out by specialist undertakings. The same principle applies to fuel tanks. Thus, manufacturers do not offer a single type of tank for each type of vehicle, but different tanks according to the envisaged use of the vehicle, the market for which the vehicle is intended or the wishes of the customer. It is also possible, as was the case in the main proceedings, that the tank is fitted not by the manufacturer, but by a third party in a subsequent phase of the manufacture of the vehicle.
42. In these circumstances, it becomes very difficult, or even impossible, to determine whether a given tank actually falls within the category of tanks ‘permanently fixed by the manufacturer to all motor vehicles of the same type as the vehicle in question’, as is apparent from the precise wording of the definition of ‘standard tanks’. It could even be possible that, in the case of a given type of vehicle, no tank satisfies that definition with the result that users of that vehicle are deprived of the enjoyment of the exemption provided for in Article 24 of Directive 2003/96.
43. Hauptzollamt Münster itself does not seem to carry out such an examination, basing its position on the premiss that a tank fixed directly by the manufacturer comes under the definition of ‘standard tanks’, whilst a tank fixed by a third party is not covered by that definition. It is therefore no longer a case of a literal application of Directive 2003/96, but of an approximation. However, such an approximation would inevitably lead to unequal treatment. It would also have the effect of restricting competition, in that it would encourage transport undertakings to source parts from vehicle manufacturers and have them fitted by them rather than by third parties. ‘ Dura lex, sed lex ’, one could say, but I believe that such a difference in treatment cannot be justified either on the basis of a literal interpretation or from the point of view of the purpose of Article 24 of Directive 2003/96.
44. In order to remedy this problem, the Commission proposes verifying, on an individual basis, which types of tanks are offered by the manufacturer for a given type of vehicle and regarding all those types of tanks as covered by the definition in question. This solution does not seem convincing to me. As manufacturers often offer variants of their vehicles, which differ according not only to their envisaged use, but also to the market on which those vehicles are sold, verification of all the options available, even only within the European Union, would require administrative authorities and courts and tribunals to make highly complex factual findings and could lead to divergent results from one Member State to the next. This would run counter to the rationale of Directive 2003/96, which is to harmonise national rules on the taxation of energy products. Furthermore, the Commission proposal does not take account of tanks that may be offered not by vehicle manufacturers, but by third parties. However, as we are in any case departing from a literal interpretation of the provision in question by including tanks offered as an option by manufacturers, it seems even less justified to exclude tanks offered by independent sellers.
45. HFT proposes having recourse to Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (29) in order to interpret the notion of a type of vehicle for the purposes of Article 24 of Directive 2003/96. However, aside from the question whether it is good practice to use a subsequent legal act adopted in a certain area of law to interpret an earlier act in a different area, I do not consider that Directive 2007/46 can really be useful in this instance. The number, type and capacity of fuel tanks are not among the common characteristics of a ‘vehicle type’ set out in part B of Annex II to that directive. In other words, vehicles of the same ‘type’ for the purposes of Directive 2007/46 may have different tanks, which brings us full circle as regards the interpretation of ‘standard tanks’ as defined in Directive 2003/96.
46. Instead, I propose that ‘standard tanks’ as defined in Article 24 of Directive 2003/96 be interpreted with reference to the scheme and purpose of that provision, similarly to what the Court did in Meiland Azewijn . (30) That purpose is, I would reiterate, to protect free movement of individuals and goods and to prevent double taxation. (31) To that end, the legislature did not provide for an exemption from excise duty in the strict sense, but merely for an adjustment under which, by way of exception to the general rule, the energy product in the form of fuel contained in the tanks of commercial vehicles is taxed not in the Member State in which it will be used, but in the Member State where it has been released for consumption. The obligation to declare the quantity of fuel contained in the vehicle’s tanks whenever an internal border is crossed and the need subsequently, in order to avoid double taxation, to claim the remission of excise duty in the Member State where the fuel was purchased would constitute a significant obstacle in road transport between Member States and thus a barrier to trade within the internal market. The legislature adopted Article 24 of Directive 2003/96 to remedy this problem.
47. From the point of view of this purpose, what is relevant is not the origin of the fuel tank, but whether that fuel is used for the propulsion of the vehicle or, possibly, to operate systems fitted to that vehicle. The tank must therefore be fitted so as to enable fuel to be supplied directly to the vehicle. On the other hand, the person who fitted it and its origin are immaterial. It is therefore manifestly contrary to the purpose of Directive 2003/96 to make the grant of the exemption subject to a factor which, from the point of view of that purpose, is entirely irrelevant.
48. This analysis is borne out by the second sentence of the first indent of Article 24(2) of Directive 2003/96, according to which ‘[g]as tanks fitted to motor vehicles … shall also be considered to be standard tanks’. Such gas tanks are not normally fixed by manufacturers, less still ‘to all motor vehicles of the same type’, as usually motor vehicles are originally intended to be propelled not by gas, but by an oil-derived fuel. The gas tanks are therefore fitted by specialist undertakings independent of the manufacturers.
49. These words, which were already present in Regulation No 918/83, reflect the legislature’s intention to make the definition of ‘standard tanks’ flexible so as not to exclude, in an unjustified manner, certain taxpayers from enjoyment of the exemption. At a time when petrol or diesel tanks were normally fitted as standard, that flexibility could be limited to gas tanks. In the current economic context of the phased construction of vehicles, it would not be sufficient. Consequently, although Directive 2003/96 expressly provides for the exemption of gas contained in tanks fixed by third parties, I cannot see any reason for asserting that petrol or diesel contained in such tanks are not to benefit from the same exemption. Once again, such an assertion would be based on factors which are entirely irrelevant having regard to the purposes of the provision in question.
50. As regards the prevention of possible abuse, I consider that the risk of such abuse is not connected with the origin of the fuel tanks. Using fuel obtained in one Member State in crossing into another Member State does not constitute abuse. Purchasing fuel in a Member State where its price is lower in order to use it in another Member State is also not abuse where the proximity of the border makes such an operation economically viable. It is a natural economic mechanism that is inherent in the internal market. There might possibly be abuse where fuel imported in the tank of a vehicle is used for purposes other than the propulsion of that vehicle or the operation of systems fitted to it. However, such abuse is also possible using only the tanks fixed by the manufacturer. The Member States must therefore combat these abuses by means other than making the grant of the exemption subject to the origin of the tank.
51. An objection could be raised to my proposed interpretation on the ground that in Schoonbroodt (32) the Court did not take into consideration the objectives which led the Community legislature to adopt Article 8a of Directive 92/81, accepting a narrow interpretation of the definition of ‘standard tanks’. It should nevertheless be borne in mind that, in that judgment, the Court was not interpreting the provision of a directive concerning the taxation of energy products within the internal market, but, by virtue of Belgian legislation, (33) a provision of a regulation on customs matters, namely Regulation No 918/83. In its judgment the Court admittedly stated that ‘there is no significant difference, in the context of the main proceedings, between the definitions of the term “standard tanks” used in the various provisions which may prove to be relevant’. (34) The fact remains, however, that the Court’s line of argument is based on settled case-law in customs matters (35) and not on the purpose of a provision adopted in the context of the internal market. Contrary to the view put forward by Advocate General Jacobs in his Opinion in Schoonbroodt, (36) I think that it is possible, in interpreting a provision of a directive relating to the internal market, to take into account considerations other than those taken into account in interpreting a provision of a regulation on customs matters even if the wording of those provisions is essentially identical. In particular, it should be borne in mind that, whilst the provisions of regulations are directly applicable, those of directives are binding only as to the result to be achieved. In interpreting the provision of a directive, greater regard must therefore be had to the aim pursued than to its precise wording. This does not in any way prejudge the interpretation of the same definition in the regulation on customs matters.
52. It should also be noted that the argument relating to the practice of phased construction of vehicles had already been raised in Schoonbroodt . The Court responded by stating that it was for the EU legislature to draw the appropriate conclusions. (37) The legislature has in fact drawn the appropriate conclusions as, in its proposal, (38) the Commission proposed an amendment to the definition of ‘standard tanks’ within the meaning of Article 24(2) of Directive 2003/96 in order to take account of the changes in the way commercial vehicles are manufactured. (39) According to the Commission proposal, that definition should cover ‘the tanks permanently fixed to a motor vehicle by the manufacturer or by a third party’ which comply with technical requirements and enable fuel to be supplied directly to the vehicle. (40)
53. The Commission proposal has not yet been adopted, but I take the view that the interpretation of the provision at issue in its present wording should be along the same lines. In addition, I do not concur with the a contrario
argument put forward by Hauptzollamt Münster to the effect that the amendment proposed by the Commission means that the present wording of the provision has a different legal content, so that it cannot be interpreted in conformity with that proposal. The Commission’s intention is not to modify the effects of Article 24 of Directive 2003/96, but specifically to maintain those effects by adapting the wording of that provision to the economic reality. It is thus perfectly possible to attain that objective henceforth by adopting an interpretation of the definition of ‘standard tanks’ in conformity with the current requirements of the motor vehicle market.
Overall assessment
54. As I have already stated in point 14 of this Opinion, I consider that a joint answer should be given to the two questions referred by the Finanzgericht Düsseldorf in order to give a coherent interpretation of the definition of the term ‘standard tanks’ within the meaning of Article 24(2) of Directive 2003/96. That definition should be understood as covering all tanks permanently fixed to commercial vehicles which supply fuel directly to those vehicles. It goes without saying that those tanks must comply with all technical requirements.
55. I acknowledge that this solution may seem risky in that it departs both from the precise wording of the provision in question and from the only judgment in which the Court has interpreted that provision. Nevertheless, this appears to me to be the only interpretation that can ensure the effectiveness of Article 24 of Directive 2003/96, its uniform application throughout the European Union and legal certainty for taxpayers.
Conclusion
56. In the light of the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Finanzgericht Düsseldorf as follows:
The first indent of Article 24(2) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must interpreted to the effect that the term ‘standard tanks’ covers all tanks permanently fixed to commercial vehicles which supply fuel directly to those vehicles.
(1) .
(2)
–	Proposal for a Council directive amending Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity of 13 April 2011 (COM(2011) 169 final) (OJ 2011 C 189, p. 5; ‘the Commission proposal’).
(3)
–	OJ 2003 L 283, p. 51.
(4)
–	Energiesteuergesetz (BGBl. I, 2006, p. 1534), as amended by Article 1 of the Law of 17 July 2009 (BGBl. I, 2009, p. 1979).
(5)
–	Energiesteuer-Durchführungsverordnung (BGBl. I, 2006, p. 1753), as amended by Article 6 of the Regulation of 5 October 2009 (BGBl. I, 2009, p. 3262).
(6)
–	C‑247/97, EU:C:1998:586.
(7)
–	OJ 1983 L 105, p. 1.
(8)
–	C‑292/02, EU:C:2004:499.
(9)
–	OJ English Special Edition (1968) II, p. 313.
(10)
–	OJ 1985 L 183, p. 22.
(11)
–	OJ 1992 L 316, p. 12.
(12)
–	OJ 1994 L 365, p. 46.
(13)
–	EU:C:1998:586.
(14)
–	Schoonbroodt
(EU:C:1998:586, paragraphs 18 and 20). Although that case concerned provisions of Regulation No 918/83 as amended by Council Regulation (EEC) No 1315/88 of 3 May 1988 (OJ 1988 L 123, p. 2), that amendment did not substantively affect the definition of standard tanks fixed to vehicles.
(15)
–	Schoonbroodt
(EU:C:1998:586, operative part).
(16)
–	Schoonbroodt
(EU:C:1998:586, paragraph 23). See also the Opinion in Schoonbroodt
(C‑247/97, EU:C:1998:323, points 38, 41 and 42), in which Advocate General Jacobs develops reasoning based on the settled case-law relating to customs duties.
(17)
–	EU:C:2004:499.
(18)
–	EU:C:2004:499.
(19)
–	The case concerned fuel contained in the tanks of agricultural machinery, whereas Directive 68/297 and Regulation No 918/83 defined ‘commercial vehicle’ as being designed for transporting persons or goods.
(20)
–	Meiland Azewijn
(EU:C:2004:499, paragraphs 39 to 41). The Court referred to the purpose of Article 8a of Directive 92/81, as mentioned in the 19th recital in the preamble to Directive 94/74.
(21)
–	Meiland Azewijn
(EU:C:2004:499, paragraph 41).
(22)
–	Emphasis added.
(23)
–	EU:C:1998:586.
(24)
–	Emphasis added. Other language versions of Directive 2003/96 use similar wording — ‘die vom Hersteller für alle Kraftfahrzeuge desselben Typs fest eingebauten Behälter’ in German, ‘zbiorniki trwale zamontowane przez wytwórcę we wszystkich pojazdach silnikowych tego samego rodzaju jak dany pojazd’ in Polish, and ‘les réservoirs fixés à demeure par le constructeur sur tous les véhicules à moteur du même type que le véhicule concerné’ in French.
(25)
–	Schoonbroodt
(EU:C:1998:586, paragraphs 7, 12 and 19).
(26)
–	Schoonbroodt
(EU:C:1998:586, operative part).
(27)
–	See, inter alia, Förster
(C‑158/07, EU:C:2008:630, paragraph 67).
(28)
–	EU:C:1998:586.
(29)
–	OJ 2007 L 263, p. 1.
(30)
–	EU:C:2004:499. See points 24 to 26 of this Opinion.
(31)
–	19th recital in the preamble to Directive 94/74, which inserted Article 8a of Directive 92/81, now Article 24 of Directive 2003/96.
(32)
–	EU:C:1998:586.
(33)
–	See point 21 of this Opinion.
(34)
–	Schoonbroodt
(EU:C:1998:586, paragraph 20).
(35)
–	See point 23 of this Opinion.
(36)
–	See the Opinion in Schoonbroodt
(EU:C:1998:323, point 45).
(37)
–	Schoonbroodt
(EU:C:1998:586, paragraph 27).
(38)
–	See footnote 2 of this Opinion.
(39)
–	According to recital 26 in the preamble to the Commission proposal: ‘In order to ensure free movement whilst at the same time respecting security requirements applicable to commercial motor vehicles …, the definition of standard tanks of such vehicles in Article 24 of Directive [2003/96] should be updated
so as to reflect the fact that fuel tanks are not exclusively fitted to commercial vehicles by their manufacturer’ (emphasis added).
(40)
–	Article 1(18) of the Commission proposal.