Proposal for a Council Directive restructuring the Community framework for the taxation of energy products (97/C 139/07) (Text with EEA relevance) COM(97) 30 final - 97/0111(CNS)

(Submitted by the Commission on 17 March 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 99 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas the scope of Directive 92/81/EEC (1) on the harmonization of the structures of excise duties on mineral oils and of Directive 92/82/EEC (2) on the approximation of the rates of excise duties on mineral oils is restricted to mineral oils;

Whereas the absence of Community provisions imposing a minimum rate of taxation on energy products other than mineral oils adversely affects the proper functioning of the internal market;

Whereas, in accordance with Article 130r of the Treaty, environmental protection requirements must be integrated into the definition and implementation of other Community policies;

Whereas, at the Council meeting on energy/environment held in October 1990, the European Union set itself the objective of stabilizing CO2 emissions at 1990 levels by the year 2000;

Whereas, as a party to the United Nations Framework Convention on Climate Change, the European Union has undertaken to take the measures required to stabilize greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous interference with the climate system;

Whereas the taxation of energy products is one of the instruments available for achieving these objectives;

Whereas, in accordance with the guidelines laid down in the Commission White Paper on growth, competitiveness and employment, the introduction of new arrangements should not result in an increase in the overall tax burden in Members States;

Whereas implementation of the principle of tax neutrality will contribute to the restructuring and the modernization of tax systems by encouraging behaviour conducive to greater protection of the environment and increased labour use;

Whereas, however, determination of the arrangements for ensuring tax neutrality is a matter for each Member State;

Whereas energy prices are key parameters of Community energy and transport policies;

Whereas taxation partly determines the price of energy products;

Whereas the proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum levels of taxation to be laid down at Community level for all energy products, including electricity;

Whereas Member States should nevertheless be given the flexibility necessary to define and implement policies appropriate to national circumstances;

Whereas the Member States wish to introduce or retain different types of taxation on energy products;

Whereas, to that end, Member States should be permitted to comply with the Community minimum taxation levels by taking into account the total charge of taxes which they have chosen to apply (excluding VAT);

Whereas the possibility of applying differential national rates of taxation to the same product is also consistent with that objective, provided that Community minimum levels and internal market and competition rules are respected;

Whereas it is necessary to establish different Community minimum levels of taxation according to the use of the energy products;

Whereas energy products used as a motor fuel for certain industrial and commercial purposes and those used as heating fuel are normally taxed at lower levels than those applicable to energy products used as a motor fuel;

Whereas appreciable differences in the national levels of taxation applied by Member States are detrimental to the proper functioning of the internal market;

Whereas the establishment of appropriate Community minimum levels may enable existing differences to be reduced;

Whereas the minimum levels of taxation must reflect the competitive position of the different energy products;

Whereas it would be advisable in this connection to base the calculation of these minimum levels as far as possible on the energy value of the products;

Whereas, however, this method should not be applied to motor fuels and cannot be applied, in respect of other uses, without a transition period;

Whereas the minimum levels of taxation applicable to energy products other than mineral oils must be increased gradually;

Whereas it is necessary, in order to prevent a loss of value in Community minimum levels, to draw up a schedule of biennial increases in these minimum levels and to provide for the Council, not later than 1 January 2001, to lay down new levels for a further period;

Whereas it is necessary to provide for certain compulsory exemptions at Community level;

Whereas Member States should be permitted to apply, if they so wish, certain other exemptions or reduced levels of taxation below the Community minimum levels within their territory, where that would not be detrimental to the proper functioning of the internal market and would not result in any distortions of competition;

Whereas such exemptions or reduced levels of taxation would greatly facilitate the introduction of more efficient transport pricing instruments;

Whereas, in particular, in order to promote the use of alternative energy sources, renewable forms of energy must be able to enjoy preferential treatment;

Whereas it is necessary to provide for a procedure authorizing the introduction by Member States, for a set period, of other exemptions or reduced levels of taxation;

Whereas it is necessary to introduce a procedure for the regular review of such exemptions or reductions;

Whereas Member States should be authorized to grant tax refunds to firms incurring investment expenditure aimed at improving energy efficiency and those whose energy costs represent a substantial proportion of the value of their sales;

Whereas, for information purposes, provision should be made for the Member States to notify the Commission of certain national measures;

Whereas such notification does not release Member States from the obligation, laid down in Article 93 (3) of the Treaty, to notify certain national measures;

Whereas the scope of Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (3) must be extended to all products and indirect taxes covered by this Directive,

HAS ADOPTED THIS DIRECTIVE:

I. Scope

Article 1

1. Member States shall impose taxation on energy products in accordance with this Directive.

2. When implementing this Directive, Member States shall endeavour to avoid any increase in their overall tax burden. In order to attain this objective Member States shall endeavour, in particular, to reduce at the same time statutory charges on labour.

Article 2

1. For the purposes of this Directive, 'energy products` shall cover the products specified below:

(a) products falling within CN codes 1507 to 1518;

(b) products falling within CN code 2207;

(c) products falling within CN codes 2701 to 2715;

(d) products falling within CN codes 2901 and 2902;

(e) products falling within CN code 2905;

(f) products falling within CN code 3403;

(g) products falling within CN code 3811;

(h) products falling within CN code 3817;

(i) products falling within CN codes 4401 and 4402.

2. This Directive shall also apply to:

(a) electricity falling within CN code 2716;

(b) heat generated during the production of electricity.

3. In addition to the taxable products listed in paragraph 1, any other product intended for use, offered for sale or used as motor or heating fuel, or as an additive or extender in such fuel, shall be taxed as motor or heating fuel respectively.

4. References in this Directive to codes of the combined nomenclature shall be to those of the version in force on 1 October 1996.

Article 3

References in Directive 92/12/EEC to 'mineral oils` and 'excise duty` (in so far as it applies to mineral oils) shall be interpreted as covering all energy products and national indirect taxes referred to respectively in Articles 2 and 4 (3) of this Directive.

II. Levels of taxation

Article 4

1. The levels of taxation which Member States shall apply to the energy products listed in Article 2 may not be less than the minimum levels prescribed in this Directive.

2. Taxable energy products other than those for which a minimum level of taxation is specified in this Directive shall be subject to taxation, according to use, at a level which is not below the minimum level applicable to the equivalent heating fuel or motor fuel.

3. For the purpose of this Directive 'level of taxation` shall mean the total charge levied in respect of all indirect taxes (except VAT) calculated directly or indirectly on the quantity of product consumed.

Article 5

1. Member States may apply differentiated rates of taxation according to the use or quality of a product provided that they respect the minimum levels of taxation set out in this Directive and that they are compatible with Community law.

2. When, for environmental and/or health policy reasons, different standards are established at a Community level for products referred to in this Directive, Member States wishing to apply differential rates of taxation to a product according to the quality of that product shall incorporate criteria established at Community level.

Article 6

As from 1 January 1998, the minimum levels of taxation applicable to motor fuels shall be fixed as follows:

- for petrol: ECU 417 per 1 000 litres at a temperature of 15 °C. Moreover, Member States shall apply to leaded petrol a rate of taxation above that charged on unleaded petrol,

- for gas oil: ECU 310 per 1 000 litres at a temperature of 15 °C,

- for kerosene: ECU 310 per 1 000 litres at a temperature of 15 °C,

- for liquid petroleum gas: ECU 141 per 1 000 kg,

- for natural gas: ECU 2,9 per gigajoule.

Article 7

1. Notwithstanding Article 6 of this Directive, the minimum levels of taxation applicable to the following products used as motor fuel for the purposes set out in paragraph 2 of this Article shall be fixed as follows:

- for gas oil: ECU 32 per 1 000 litres at a temperature of 15 °C,

- for kerosene: ECU 30 per 1 000 litres at a temperature of 15 °C,

- for liquid petroleum gas: ECU 41 per 1 000 kg,

- for natural gas: ECU 0,3 per gigajoule.

2. This Article shall apply to the following industrial and commercial purposes:

(a) for agricultural, horticultural or piscicultural works, and in forestry;

(b) for stationary motors;

(c) in respect of plant and machinery used in construction, civil engineering and public works;

(d) for vehicles intended for use off the public roadway or which have not been granted authorization for use mainly on the public highway;

(e) for passenger transport and captive fleets which provide services to public bodies. However, Member States may limit the scope of the reduced level of taxation to local passenger transport.

In the case of the use specified in point (e), this Article shall only apply in respect of LPG and natural gas.

Article 8

As from 1 January 1998, the minimum levels of taxation applicable to heating fuels shall be fixed as follows:

- for gas oil: ECU 21 per 1 000 litres at a temperature of 15 °C,

- for heavy fuel oil falling within CN code 2710 00 74: ECU 18 per 1 000 kg,

- for other heavy fuel oil falling within CN code 2710: ECU 22 per 1 000 kg,

- for kerosene: ECU 7 per 1 000 litres at a temperature of 15 °C,

- for liquid petroleum gas: ECU 10 per 1 000 kg,

- for natural gas: ECU 0,2 per gigajoule,

- for solid energy products: ECU 0,2 per gigajoule.

Article 9

As from 1 January 1998, the minimum level of taxation on electricity and heat generated during its production shall be fixed at ECU 1 per megawatt hour.

Article 10

1. The minimum levels of taxation laid down in this Directive shall be amended on 1 January 2000, to the amounts shown in Annex I.

2. Not later than 1 January 2001, the Council, acting unanimously after consulting the European Parliament, shall fix, on the basis of a report and a proposal from the Commission, the minimum levels of taxation for a further period beginning on 1 January 2002 and shall adopt such other measures as may be appropriate to improve the functioning of the system of taxation of energy products. Until the Council adopts new levels of taxation on the basis of the Commission report and proposal, Member States shall treat the amounts shown in Annex I as target levels of taxation from 2002.

The report by the Commission and the consideration by the Council shall take into account the proper functioning of the internal market, the real value of the levels of taxation, the achievement of environmental policy objectives and the other objectives of the Treaty. It shall also include an analysis of the measures taken by Member States to achieve tax neutrality in implementing this Directive and the Commission's proposal shall take full account of this factor.

Article 11

Member States may express their national levels of taxation in units other than those specified in Articles 6 to 9 of this Directive provided that the corresponding levels of taxation, following conversion into those units, are not below the minimum levels specified in this Directive.

Article 12

1. The value of the ecu in national currencies to be applied to the value of the levels of taxation shall be fixed once a year. The rates to be applied shall be those obtaining on the first working day of October and published in the Official Journal of the European Communities and shall have effect from 1 January of the following calendar year.

2. Member States may maintain the amounts of taxation in force at the time of the annual adjustment provided for in paragraph 1 if the conversion of the amounts of the level of taxation expressed in ecu would result in an increase of less than 5 % or ECU 5, whichever is the lower amount, in the level of taxation expressed in national currency.

III. Exemptions and tax refunds

Article 13

1. In addition to the general provisions set out in Directive 92/12/EEC on exempt uses of taxable products, and without prejudice to other Community provisions, Member States shall exempt the following from taxation under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse:

(a) energy products used for purposes other than as motor fuels or as heating fuels. For the purposes of this Directive, heating fuels shall not include energy products used principally for the purposes of chemical reduction, and in metallurgical and electrolytic processes. Member States shall also exempt electricity used principally for the purposes of chemical reduction, and in metallurgical and electrolytic processes;

(b) energy products used to produce electricity and heat generated during its production. However, Member States may, for reasons of environmental policy, subject these products to taxation without having to respect the minimum levels of taxation laid down in this Directive. In such case, the taxation of these products shall not be taken into account for the purpose of satisfying the minimum level of taxation on electricity laid down in Article 9 of this Directive;

(c) energy products supplied for use as fuels for the purpose of air navigation other than private pleasure-flying for as long as such products are obliged to be exempted under international obligations.

For the purposes of this Directive 'private pleasure-flying` shall mean the use of an aircraft by its owner or the natural or legal person who enjoys its use either through hire or through any other means, for other than commercial purposes and in particular other than for the carriage of passengers or goods or for the supply of services for consideration or for the purposes of public authorities.

Member States may limit the scope of this exemption to supplies of jet fuel (CN code 2710 00 51);

(d) energy products supplied for use as fuel for the purposes of navigation within Community waters (including fishing), other than private pleasure craft.

For the purposes of this Directive 'private pleasure craft` shall mean any craft used by its owner or the natural or legal person who enjoys its use either through hire or through any other means, for other than commercial purposes and in particular other than for the carriage of passengers or goods or for the supply of services for consideration or for the purposes of public authorities.

2. Member States may limit the scope of the exemptions provided for in paragraph 1 (c) and (d) to international and intra-Community transport. In addition, where a Member State has entered into a bilateral agreement with another Member State, it may also waive the exemptions provided for in paragraphs 1 (c) and (d) of this Article. In such cases, Member States may apply a level of taxation below the minimum level set out in this Directive.

Article 14

1. Without prejudice to other Community provisions, Member States may apply total or partial exemptions or reductions in the level of taxation to:

(a) energy products used under fiscal control in the field of pilot projects for the technological development of more environmentally-friendly products or in relation to fuels from renewable resources;

(b) energy products falling within CN codes 1507 to 1518, 2207 20 00 and 2905 11 00, 4401 and 4402;

(c) forms of energy which are of solar, wind, tidal, geothermal origin or from biomass or waste;

(d) forms of energy which are of hydraulic origin produced in hydroelectric installations with a capacity of less than 10 MW;

(e) heat generated during the production of electricity;

(f) energy products used for the carriage of goods and passengers by rail;

(g) energy products used for navigation on inland waterways other than in private pleasure craft;

(h) natural gas in Member States whose gas market is in the process of actual development for as long as the share of gas in the domestic and industrial market is less than 10 %, and for a period of no more than 10 years after the coming into force of this Directive.

2. Member States shall be free to give effect to the exemptions or reductions in the level of taxation mentioned in this Article by refunding all or part of the amount of taxation paid.

3. The Commission shall report to the Council on the fiscal, economic, agricultural, energy, industrial and environmental aspects of the exemptions or reductions granted in accordance with Article 14 (1) (b) before 1 January 2001 and will make proposals as to whether they should be abolished, modified or extended.

Article 15

1. Member States may refund all or part of the amount of tax paid in relation to investment expenditure incurred by a firm in improving the efficient use of energy up to a limit of 50 % of eligible expenditure incurred.

2. Member States may refund some or all of the amount of tax paid by a firm on any part of its non-transport-related energy costs which exceeds 10 % of its total production costs.

However, when the part of non-transport-related energy costs of a firm exceeds 20 % of its total production costs, Member States shall reimburse the whole of the tax paid by the firm on the part of its non-transport-related energy costs which exceeds 10 % of its total production costs.

The net amount of tax paid by a firm following the refunds provided for in the two preceding subparagraphs shall not be less than 1 % of the value of its sales.

3. Member States may also refund to the producer some or all of the amount of tax paid by the consumer on electricity and heat generated during its production in the case of electricity produced from products specified in Article 14 paragraphs 1 (b), (c) and (d).

Article 16

1. In addition to the provisions set out in the previous Articles, Member States may be authorized to apply, for specific policy reasons and for a specified period, exemptions or levels of taxation below the minimum levels specified in this Directive.

In particular, a Member State may be authorized to apply levels of taxation on motor fuels between 100 % and 60 % of the minimum levels specified in this Directive if it introduces or modifies, on a non-discriminatory basis, specific charging systems for road transport targeting recovery of transport costs, such as infrastructure, congestion and environmental costs.

2. A Member State wishing to introduce such a measure shall accordingly inform the Commission and shall also provide the Commission with all relevant or necessary information and an evaluation of the expected effects of the measure.

The Commission shall examine the request, taking into account, inter alia, the proper functioning of the internal market, the need to ensure fair competition and the Community environment, and, where appropriate, transport policies.

3. For authorizations granted pursuant to the first subparagraph of paragraph 1, the following procedure shall be applicable.

The measure may be authorized for a period of three years, with the possibility of renewal, using the procedure set out in Article 24 of Directive 92/12/EEC relating to the holding, movement and monitoring of products subject to excise duty.

If the Commission considers that the exemptions or reductions provided for in paragraph 1 are no longer sustainable, particularly in terms of fair competition or proper functioning of the internal market, or Community policy in the area of protection of the environment, it shall submit appropriate draft measures to the Committee on Excise Duties. Decision on these draft measures shall be taken according to the procedure set out in Article 24 of Directive 92/12/EEC.

In any event, within three years of the entry into force of this Directive and every subsequent three years, the situation with regard to the exemptions or reductions authorized in accordance with paragraph 1 shall be reviewed on the basis of a report by the Commission. It shall be determined, using the procedure set out in Article 24 of Directive 92/12/EEC, whether any or all of them shall be abolished, modified or extended.

4. For authorizations granted pursuant to the second subparagraph of paragraph 1, the following procedure shall be applicable.

The measure may be authorized using the procedure set out in Article 24 of Directive 92/12/EEC relating to the holding, movement and monitoring of products subject to excise duty.

The Commission shall monitor the impact of decisions taken pursuant to the provisions of the second subparagraph of paragraph 1 and present a report on the implementation of such measures every three years. The procedure of Article 24 of Directive 92/12/EEC applies for proposals of the Commission to abolish or modify existing authorizations.

5. Member States shall be free to give effect to the exemptions or reductions in the level of taxation mentioned in this Article by refunding all or part of the amount of taxation paid.

IV. Holding and movement of products

Article 17

1. Only the following energy products shall be subject to the provisions of Titles II to IV of Directive 92/12/EEC:

(a) products falling within CN codes 1507 to 1518 when intended for use or offered for sale as motor fuel;

(b) products falling within CN code 2207 20 00 when intended for use or offered for sale as motor fuel;

(c) products falling within CN codes 2707 10, 2707 20, 2707 30 and 2707 50;

(d) products falling within CN codes 2710 00 11 to 2710 00 78. However, for products falling within CN codes 2710 00 21, 2710 00 25 and 2710 00 59, the control and movement provisions shall only apply to bulk commercial movements;

(e) products falling within CN codes 2711 (except 2711 11 00, 2711 21 00 and 2711 29 00);

(f) products falling within CN code 2901 10;

(g) products falling within CN codes 2902 20, 2902 30, 2902 41 00, 2902 42 00, 2902 43 00 and 2902 44;

(h) products falling within CN code 2905 11 00 when intended for use or offered for sale as motor fuel.

2. If a Member State finds that energy products other than those referred to in paragraph 1 are intended for use, offered for sale or used as heating fuel or motor fuel or are otherwise giving rise to evasion, avoidance or abuse, it shall advise the Commission forthwith. The Commission shall transmit the communication to the other Member States within one month of receipt. A decision as to whether the products in question should be made subject to the control and movement provisions of Directive 92/12/EEC shall then be taken in accordance with the procedure laid down in Article 24 of Directive 92/12/EEC.

3. Member States may, pursuant to bilateral arrangements, dispense with some or all of the control measures set out in Directive 92/12/EEC in respect of some or all of the above products, in so far as they are not covered by Article 6 of this Directive. Such arrangements shall not affect Member States which are not party to them. All such bilateral arrangements shall be notified to the Commission, which shall inform the other Member States.

V. Chargeable event and chargeability

Article 18

1. In addition to the general provisions defining the chargeable event and the provisions for payment set out in Directive 92/12/EEC, the amount of taxation on energy products shall also become due on the occurrence of one of the chargeable events mentioned in Article 2 (3) of this Directive.

2. For the purposes of this Directive, the word 'production` in Article 5 (1) of Directive 92/12/EEC shall be deemed to include 'extraction`, when appropriate.

3. The consumption of energy products within the curtilage of an establishment producing energy products falling within CN codes 2707, 2709 to 2715, 2901, 2902 38 11 and 3817 shall not be considered a chargeable event giving rise to taxation as long as the consumption is for the purpose of such production.

4. Member States may also provide that taxation on energy products shall become due when it is established that a final use condition laid down in national rules for the purpose of a reduced level of taxation or exemption is not or is no longer fulfilled.

5. For the purpose of applying Article 6 of Directive 92/12/EEC and in relation to electricity, Member States may treat any step in the electricity distribution process as release for consumption.

Article 19

On a change in one or more rates of taxation, stocks of energy products already released for consumption may be subject to an increase in or a reduction of the taxation.

Article 20

Member States may refund the amounts of taxation already paid on contaminated or accidentally mixed energy products sent back to a tax warehouse for recycling.

Article 21

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 and fuel to be used in the systems equipping special containers transported by those same vehicles shall not be subject to taxation in any other Member State.

2. For the purposes of this Article, 'standard tanks` shall mean: fixed fuel tanks, directly connected to the engine and/or auxiliary equipment which comply with the technical requirements (in so far as they relate to fuel tanks) of ECE Regulation 34 as amended or of Directive 70/221/EEC. The total capacity of the fixed tanks shall not exceed 1 500 litres per transport unit and the capacity of tanks fitted to a trailer shall not exceed 500 litres. Auxiliary tanks on tractor units shall be deemed to be directly connected even if the fuel has to pass through the normal running tank. Auxiliary tanks on trailers may only supply equipment on trailers. Fuel may also be carried in portable fuel containers but fuel carried in such containers is limited to a maximum of 60 litres per vehicle.

'Special container` shall mean any container fitted with specially designed apparatus for refrigeration systems, oxygenation systems, thermal insulation systems or other systems.

VI. Final provisions

Article 22

1. Member States shall inform the Commission of the levels of taxation which they apply to the products listed in Article 2 of this Directive on the first of January each year and following each change in national law. In particular, Member States shall inform the Commission of the measures they have taken and the conditions they have applied in their efforts to ensure tax neutrality as defined in Article 1 (2).

2. Where the levels of taxation applied by the Member States are expressed in units of measurement other than those specified for each product in Articles 6 to 9, Member States shall also notify the corresponding levels of taxation following conversion into these units.

Article 23

1. Member States shall inform the Commission of measures taken pursuant to Articles 5, 7 (2) (e), 13 (2), 14 and 15 of this Directive.

2. Measures such as tax exemptions, tax reductions, tax differentiation and refunds of tax foreseen within the meaning of this Directive might constitute State aid and in those cases have to be notified to the Commission pursuant to Article 93 (3) of the Treaty.

Information provided to the Commission on the basis of this Directive does not free Member States from the notification obligation pursuant to Article 93 (3) of the Treaty.

3. The obligation to inform the Commission pursuant to paragraph 1 of this Article of measures taken pursuant to Article 5 of this Directive does not free Member States from any notification obligations arising pursuant to the provisions of Directive 83/189/EEC.

Article 24

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 31 December 1997. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.

Article 25

Directives 92/81/EEC and 92/82/EEC are hereby repealed.

Article 26

This Directive is addressed to the Member States.

(1) Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils (OJ No L 316, 31. 10. 1992, p. 12).

(2) Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ No L 316, 31. 10. 1992, p. 19).

(3) Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ No L 76, 23. 3. 1992, p. 1).

ANNEX I

MINIMUM LEVELS OF TAXATION ON 1 JANUARY 1998, 1 JANUARY 2000 AND 1 JANUARY 2002

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