Opinion of Mr Advocate General Fennelly delivered on 12 November 1998. - Braathens Sverige AB v Riksskatteverket. - Reference for a preliminary ruling: Länsrätten i Dalarnas län - Sweden. - Directive 92/81/EEC - Harmonisation of the structures of excise duties on mineral oils - Mineral oils supplied for use as aviation fuel for purposes other than private pleasure flying - Exemption from the harmonised duty. - Case C-346/97.



European Court reports 1999 Page I-03419



Opinion of the Advocate-General

1 This preliminary reference from a Swedish court concerns the compatibility with the harmonised Community excise-duty regime, in particular the rules concerning mineral oils (i.e. petroleum products), of a tax for environmental purposes on domestic aviation fuel, in view of the requirement exempting from excise duties the use of mineral oils as aviation fuel other than for `private pleasure flying'.

I - Legal and factual background

A - The national provisions and factual background

2 Pursuant to the 1988 års Lag om Miljöskatt på Inrikes Flygtrafik (Law on Environmental Tax on Domestic Aviation, hereinafter `the 1988 Law'), (1) a tax, described in the order for reference as `a new excise duty', was applied in Sweden from 1 March 1989 until 31 December 1996. It was payable only on domestic air navigation.

3 Braathens Sverige AB (formerly known as Transwede Airways AB, hereinafter `the plaintiff') was assessed for tax between January 1995 and June 1996 in accordance with the 1988 Law. As regards the years 1995 and 1996, the tax payable was calculated in accordance with Article 6 of the 1988 Law, as amended by a law which entered into force on 1 January 1991 as well as by a general increase in the rates of carbon dioxide taxes effected by a further amendment which entered into force on 1 January 1993. Under Article 6(1), as amended, the calculation was, in principle, made by reference to data kept by the Luftfartsverket (Swedish Civil Aviation Administration) on the fuel consumption and emissions of hydrocarbons and nitric oxides of the type of aircraft used on an average flight. Under Article 6(2) of the 1988 Law, as amended, the tax was actually charged on each flight, at a rate of SKR 1 per kilogram of aviation fuel consumed, and SKR 12 per kilogram of hydrocarbons and nitric oxides emitted. In the absence of reliable data on emissions of hydrocarbons and nitric oxides for the purposes of Article 6(1), it would appear under Article 7 that the tax charged, at least in so far as it related to such emissions, was to be calculated by reference to the maximum permissible take-off weight of the aircraft in question. The 1988 Law was formally repealed, with effect from 1 January 1997, by Law 1996:1407. (2) Since that date aviation spirit and kerosene have been exempt from energy and carbon tax in Sweden by virtue of the 1994 års Lag om Skatt på Energi (Law on the Taxation of Energy). (3)

B - The Community legislation

4 Article 1(1) of Council Directive 92/12/EEC (4) describes its objective as being to `[lay] down the arrangements for products subject to excise duties and other indirect taxes which are levied directly or indirectly on the consumption of such products, except for value added tax and taxes established by the Community'. Article 1(2) envisages that `the particular provisions relating to the structures and rates of duty on products subject to excise duty shall be set out in specific Directives'. By virtue of Article 3(1), the General Directive applies to `mineral oils', `alcohol and alcoholic beverages' and `manufactured tobacco'.

However, Article 3(2), which is central to the present case, provides that these products `may be subject to other indirect taxes for specific purposes, provided that those taxes comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned'.

5 The `specific directives' envisaged by Article 1(2) of the General Directive that have been adopted in respect of mineral oils are Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (hereinafter `the Mineral Oils Directive') (5) and Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (hereinafter `the Rates Directive'). (6) Under Article 1 of the Mineral Oils Directive Member States are obliged `to impose a harmonised excise duty on mineral oils ...'. The various mineral oils covered are prescribed broadly in Article 2(1) of that directive by reference to numerous codes in the Community's combined customs nomenclature. However, it emerges from Article 2(2) that, unless a specific rate is set out in the Rates Directive, petroleum products `shall be subject to excise duty if intended for use, offered for sale, or used as heating fuel or motor fuel'; in such cases the rate of duty applicable is that which applies to the corresponding fuel in respect of which a specific reference is made in the Rates Directive. It is common case that the petroleum products at issue in the present case were intended for use and used as commercial aviation fuel; in principle, such products are thus subject to the harmonised Community excise-duty arrangements.

6 Article 8 of the Mineral Oils Directive provides, inter alia, for various exemptions from the abovementioned obligation to apply excise duties. The relevant provision in the present case is Article 8(1)(b), which is worded as follows:

`1. In addition to the general provisions set out in Directive 92/12/EEC on exempt uses of excisable products, (7) and without prejudice to other Community provisions, Member States shall exempt the following from the harmonised excise duty 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:

...

(b) mineral oils supplied for use as fuels for the purpose of air navigation other than private pleasure flying.

For the purposes of this Directive, "private pleasure flying" shall mean the use of 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 000 51).'

II - The national proceedings

7 The plaintiff unsuccessfully pursued an administrative appeal against the assessments to tax made upon it. It then brought the present proceedings. Due to the uncertainty of their outcome, the Länsrätten I Dalarnas Län (County Administrative Court, Dalarna, hereinafter `the national court') granted a deferment of payment of the disputed tax.

8 The plaintiff submitted before the national court that, viewed as a whole, it was clear that the tax constituted an excise duty on commercial aviation fuel. It submitted that Sweden no longer had the legislative competence to maintain such a tax in force.

9 The Riksskatteverket (National Tax Board), the defendant in the main proceedings, submitted that a distinction should be made between taxes on energy and taxes charged on the ground of environmental pollution. The mere fact that reference is made in the method of calculating the tax due to the quantity of fuel consumed does not render the tax at issue an excise duty on mineral oils.

10 According to the order for reference, the 1988 Law was introduced in order to stimulate the development of environmentally cleaner aircraft engines. However, it was applied only to domestic civil aviation because of Sweden's obligations under, inter alia, the 1944 Chicago Convention pursuant to which the separate national taxation by contracting parties of international air navigation is prohibited. (8) Although the national court accepts that the Mineral Oils Directive requires Member States to exempt from harmonised excise duties mineral oils supplied for commercial use as aviation fuel, it has decided, in the light of the different views canvassed before it regarding the true nature of the impugned tax and the absence of relevant Community case-law, as well as the disputes between the parties both as to the direct effect of the directive and the severability of any parts of the tax found to be incompatible with Community law, to submit the following questions to the Court:

`1. Are the taxation measures described herein, adopted under Law 1988:1567 on environmental tax on domestic air navigation, contrary to Council Directive 92/81/EEC ("the Mineral Oils Directive"), Article 8(1)(b) of which provides that Member States are to exempt from harmonised excise duty mineral oils supplied for use as aviation fuel except for private pleasure flying?

2. If Question 1 is answered in the affirmative, can Article 8(1)(b) of the Mineral Oils Directive be regarded as having direct effect, so that the provision can be relied on by an individual against a State authority before a national court?

3. If the Mineral Oils Directive is to be applied in the present case, can the taxation measures in question be split up into EC compatible and EC incompatible parts, owing to the fact that Swedish environmental tax is calculated partly on the basis of fuel consumption and partly on the basis of emissions of hydrocarbons and nitric oxides?'

III - Analysis

11 Written and oral observations were submitted by the plaintiff and the Commission, while oral observations were also submitted by the Riksskatteverket.

12 It is clear that the fundamental question posed in the present case is whether the application of a national tax such as the impugned Swedish `environmental' tax is incompatible with Article 8(1)(b) of the Mineral Oils Directive. It is only if that question is answered affirmatively that the other two questions arise. As the third question essentially raises the possibility of severing compatible and incompatible elements of the impugned tax, it only arises for consideration if the compatibility of a tax such as the `environmental' tax is at least in part upheld.

A - The scope of the exemption obligation in respect of aviation fuel

(i) The nature of the impugned tax

13 The observations submitted concerning the first question show that two aspects need to be considered. Firstly, there is disagreement as to whether the tax is an environmental tax in name only, as claimed by the plaintiff, which states that it is, in truth, a straightforward tax on consumption of aviation fuel, or whether, as claimed by the Riksskatteverket, it serves a genuine environmental purpose by taxing emissions from aviation engines. Secondly, if the tax is a tax on consumption of aviation fuel, the issue of its compatibility with Article 8(1)(b) of the Mineral Oils Directive needs to be considered in the light of the power of Member States to impose other indirect taxes as recognised by Article 3(2) of the General Directive.

14 It is common case that environmental protection can constitute a `specific objective' capable of justifying the imposition by Member States of an indirect tax pursuant to Article 3(2) of the General Directive. However, the Commission supports the plaintiff by submitting that, by reason of the unavoidable link between the emission of hydrocarbons and nitric oxides and the consumption of aviation fuel, it is the latter that is taxed in this case. The Riksskatteverket argued at the hearing that the use of fuel-consumption data and, in particular, average consumption figures for individual flights to calculate the level of emissions did not detract from the environmental objective of the tax. The repeal of the tax was not merely a response to the Commission's letter of 21 February 1996 but was also a response to a desire to adopt more effective environmental protection measures.

15 Whether the tax serves the `specific objective' of environmental protection, as claimed by the Riksskatteverket, depends on whether the structure of the tax itself and, more particularly, its calculations are designed to encourage the use of less polluting aircraft engines. The first component of the calculation is a charge at a rate of SKR 1 per kilogram of aviation fuel consumed, based, apparently, (pursuant to Article 6(1) of the 1988 Law) on data kept by the Luftfartsverket regarding fuel consumption on an average flight. The second component, SKR 12 per kilogram of hydrocarbons and nitric oxides emitted, is calculated on the basis of data also kept by the Luftfartsverket on such emissions from the type of aircraft in question on an average flight. In the absence of any information before the Court on the nature and extent of these data and, in particular, on the extent to which they enable significant distinctions to be made between more and less polluting engines, only the national court can determine whether the tax is designed genuinely and significantly to advance the environmental purpose of encouraging the use of less polluting aircraft. It seems clear from the order for reference that the tax at issue was calculated on the basis of Article 6(1) and (2) of the 1988 Law and not on the basis of maximum permissible take-off weight of the aircraft in question under Article 7. The burden of establishing the genuine environmental purpose of the tax rests, in my view, on the national authorities.

16 If the 1988 Law is not truly a tax on emissions but, rather, on fuel consumption, it is, prima facie, incompatible with the exemption laid down for aviation fuel by Article 8(1)(b) of the Mineral Oils Directive. Consequently, it is necessary to decide whether Article 3(2) of the General Directive permits Member States to impose such a tax and, in doing so, to consider the scope of the harmonised regime and the notion of excise duties.

(ii) Analysis of the harmonised regime

(a) The notion of an excise duty

17 The General Directive does not define excise duties, but, as we see from Article 1(1), merely `lays down the arrangements for the products subject to excise duties and other indirect taxes ...' (emphasis added). This has led some commentators to describe the approach adopted as one based on a new concept of `general and flexible harmonisation' or on the `smallest common denominator' of possible harmonisation. (9) The wording of Article 1 of the General Directive includes `other indirect taxes' on the products covered by the harmonised regime. The right of Member States to impose (or continue to impose) such indirect taxes or non-harmonised excise duties is governed by Article 3(2) of that directive. The first question referred relates to the extent of that power and its limitations.

18 There is no broadly accepted definition of the notion of an `excise duty'. Excise duties, though much reduced in range in recent years, are most commonly specific indirect taxes on the production, sale or consumption of goods, often luxury goods. (10) Although the distinction between excise duties and turnover taxes is important, since Article 33 of the Sixth VAT Directive prohibits Member States from imposing national turnover taxes `... that between excise duties and other forms of indirect taxation would seem to be of no consequence'. (11) It has been said of excise duties that they `... represent one of the most ancient forms of taxation, perhaps because of the relative ease of assessment and collection [and that] in the past they have been levied on a great variety of products, but the main modern excise duties are those on alcoholic drinks, tobacco products, motor fuels, and motor vehicles'. (12)

19 The national court has described the tax at issue as an excise duty. Given the scope of the products which may be subjected to such taxes and the characteristics of the particular tax at issue, there is no reason to doubt that conclusion.

(b) The compatibility of the tax with Community law

20 At first glance, there would appear to be a conflict between Article 8(1)(b) of the Mineral Oils Directive and Article 3(2) of the General Directive. The latter permits Member States to impose non-harmonised excise duties for specific purposes while the former requires them to exempt the consumption of aviation fuel. However, I am satisfied that the provisions can be reconciled.

21 It is noteworthy that the original Commission proposal was that the products covered by what was to become the General Directive would `... not be subject to any tax other than excise duty and value added tax'. (13) The Council insisted on the retention of a residual power of taxation for Member States, subject, of course, to the need to respect `the tax rules applicable for excise duty'. (14) The crux of the present case is whether the tax rules to which Article 3(2) of the General Directive refers should be held to include the exemption ordained by Article 8(1)(b) of the Mineral Oils Directive.

22 It is clear from the fifth recital in the preamble to the Mineral Oils Directive that the Council intended `to lay down certain obligatory exemptions at Community level', though no reasons are recited. Although Article 2(2) requires that mineral oils used as motor fuel be subject to the harmonised Community rate of duty set out in the Rates Directive, Article 8(1)(b) of the Mineral Oils Directive imposes an exemption for mineral oils used as fuel in commercial aviation. I do not think that the limitation of the obligation of Member States in Article 8(1) to exempt the mineral oils enumerated in points (a) to (c) `from the harmonised excise duty', which was also inserted by the Council, was intended to impose a narrower requirement on Member States than that which had been proposed by the Commission. (15) The Council may well have been influenced by the Chicago Convention in including the mandatory exemption of aviation fuel. It chose, however, to apply the exemption equally to both international and domestic commercial aviation, but, by the last subparagraph of Article 8(1)(b), explicitly permitted Member States to `limit' the scope of the aviation-fuel exemption to certain supplies of jet fuel. The introduction by the Council of this exception, by a contrario reasoning, suggests that no other exemption was envisaged. (16)

23 It is possible, of course, to take a narrow view of the `tax rules' envisaged by Article 3(2) of the General Directive, which Member States must respect when introducing or applying indirect taxes on products enumerated in Article 3(1). These rules are those which concern `determination of the tax base, calculation of the tax, chargeability and monitoring of the tax'. The derogating character of this provision, however, suggests a contrary approach. The General Directive was adopted on the legal basis of Article 99 of the Treaty to serve the interests of the internal market and as part of a scheme whereby specific directives would be adopted relating to the structures and rates of duty (Article 1(2)). (17) The power of Member States to impose other indirect taxes is expressly subjected to the double limitation that any such tax serve a specific purpose and `comply' with the abovementioned `tax rules'. As I have already said, the burden will lie on the Member State to prove that such a tax serves any claimed `specific purpose'. (18) All of these considerations suggest that Article 3(2) should be strictly construed and that, consequently, a broad interpretation be given to the requirement contained in the phrase `tax rules applicable for excise duty'. It is quite clear, in any event, that this requirement must extend to the rules contained in the specific directives, in this case the Mineral Oils Directive.

24 It is true that the exemption under Article 8(1)(b) of the Mineral Oils Directive applies, according to its express terms, only to `the harmonised excise duty' (emphasis added), but I do not think that the Council thereby wished to allow Member States to impose other forms of indirect taxes or excise duties. Both Articles 1(1) and 3(2) of the General Directive show that the directive covers both `excise duties and other indirect taxes'. The use of the term `harmonised excise duty' in Article 8(1)(b) of the Mineral Oils Directive is quite appropriate in context because Article 1(1) of that directive deals with the imposition of `a harmonised excise duty on mineral oils'. The wording of Article 3(2) of the General Directive, on the other hand, subjects any national indirect taxes imposed for specific purposes to `the tax rules applicable for excise duty', i.e., in this case, to Article 8(1)(b) of the Mineral Oils Directive.

25 Consequently, I recommend that the Court hold that a tax such as that at issue in the present case be regarded as constituting an excise duty on fuel whose imposition on aviation fuel used in commercial aviation is incompatible with Article 8(1)(b) of the Mineral Oils Directive.

B - Direct effect

26 As regards the second question, there is, in my view, no doubt that Article 8(1)(b) of the Mineral Oils Directive is capable of being relied upon directly by a taxpayer who asserts that, in violation of that provision, it has been subjected to excise duties. The Court has consistently held that, once the provisions of a directive are sufficiently precise and unconditional, they may be invoked by individuals before national courts. As the plaintiff points out, that provision imposes an unequivocal obligation on Member States not to subject aviation fuel used in commercial aviation to the harmonised excise duty. I do not agree with the view expressed by the Riksskatteverket that the tax-harmonisation objective of the Mineral Oils Directive restricts its capacity to create rights in favour of individuals. The seminal decision in Becker v Finanzamt Münster-Innenstadt (19) concerning the direct effect of the Sixth VAT Directive (20) is applicable equally to fiscal and other harmonising Community directives. Furthermore, the mere fact that the Member States are allowed, in applying the exemption, to determine the `conditions' necessary to ensure its `correct and straightforward application' so as to prevent `any evasion, avoidance or abuse' cannot, as the Commission rightly points out, preclude Article 8(1)(b) from having direct effect. The Court has already consistently held, in respect of the equivalent wording of the introductory sentence of Article 13A and B of the Sixth VAT Directive, that reserving such a power to the Member States `[does] not in any way affect the subject-matter of the exemption conferred'; it cannot thus operate to deprive the taxable person of the right to rely directly upon what are otherwise sufficiently precise and clear provisions of a tax exemption. (21)

27 Consequently, I recommend that the Court answer the second question by declaring Article 8(1)(b) of the Mineral Oils Directive to be capable of being invoked directly against State authorities such as the Riksskatteverket.

C - Severability

28 By its third question the national court asks whether, on the assumption that the Mineral Oils Directive applies to the tax at issue, it may be split into parts that are compatible and incompatible with Community law on the basis that it could be viewed as being based partly on emissions of hydrocarbons and nitric oxides. The third question does not, in my opinion, arise for consideration in the present case, where all relevant component elements in the tax are calculated on the basis of data maintained and kept by the Luftfartsverket regarding fuel consumption and emissions on an average flight.

IV - Conclusion

29 In the light of the foregoing, I recommend that the Court answer the questions referred by the national court as follows:

(1) A national tax affecting domestic aviation and imposing a standard charge in two parts which is calculated by reference, first, to data on fuel consumption and, secondly, to data on emissions of hydrocarbons and nitric oxides, both on an average flight of the type of aircraft used, constitutes an excise duty on the use of aviation fuel, which, in so far as it is applied to aviation other than private pleasure flying, i.e. commercial aviation, is contrary to Article 8(1)(b) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, unless it is shown that those calculations ensure that the tax genuinely and significantly advance an environmental object of encouraging the use of less polluting aircraft;

(2) Article 8(1)(b) of Directive 92/81/EEC is directly effective so that it may be relied upon by an individual against a State authority before a national court.

(1) - Law 1988:1567.

(2) - According to the order for reference, three reasons underlay the abolition of the environmental tax on the use of aviation fuel in domestic transport: the Swedish Government's desire that it be replaced by `a better system of environmental control, for example, increased differentials in the Civil Aviation Administration's landing charges'; the fact that deregulation of inland civil aviation had rendered more difficult the equitable application of the tax; the view taken by the Commission's Directorate-General for tax matters, in a letter of 21 February 1996 to the Swedish Government, to the effect that the tax in question was incompatible with the Mineral Oils Directive.

(3) - Law 1994:1776.

(4) - 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 (hereinafter `the General Directive'); OJ 1992 L 76, p. 1.

(5) - OJ 1992 L 316, p. 12.

(6) - OJ 1992 L 316, p. 19.

(7) - Title V of the General Directive, comprising Article 23, deals with `Exemptions'. It provides for various specific exemptions from the payment of excise duty where products otherwise subject to it are, for instance, delivered `in the context of diplomatic or consular relations'. However, none of the exemptions is relevant in the present case.

(8) - Convention on International Civil Aviation (hereinafter `the Chicago Convention'), signed at Chicago on 7 December 1944; United Nations Treaty Series, Vol. 15, p. 296; see Article 24(a).

(9) - See Terra & Wattel, European Tax Law (Deventer, 1993), p. 145, who cite the comments of Stubbe, `Die Harmonisierung der besonderen Verbrauchssteuern in der Europäischen Gemeinschaft', ZfZV 1993, at p. 170.

(10) - In theory special taxes on services, such as theatre or cinema performances (see Case C-109/90 Giant v Overijse [1991] ECR I-1385), could be regarded as being excise duties but the notion of an excise duty has traditionally been associated with taxes on goods.

(11) - See Easson, Taxation in the European Community (London, 1993), p. 144.

(12) - See Farmer & Lyal, EC Tax Law (Oxford, 1994), p. 225. The diversity of such taxes, ranging from special taxes, inter alia, on coffee and light bulbs in Germany, salmon in Denmark and bananas in Italy, is illustrated by Sterdyniak a.o., Vers une Fiscalité Européenne (Paris, 1991), p. 238.

(13) - Proposal for a Council directive on the general arrangements for products subject to excise duty and on the holding and movement of such products, at Article 3(2); OJ 1990 C 322, p. 1.

(14) - See Article 3(2) which is quoted more fully in paragraph 4 above. The Council went beyond the amendment suggested by the European Parliament, which proposed that the Member States would `... retain the right to introduce taxes other than excise duty and value added tax ... provided that in trade between the Member States such taxes do not give rise to taxes on entry to national territory nor to remission of tax on exit, nor to frontier controls' (emphasis added); see OJ 1991 C 183, p. 123.

(15) - Article 8(1) of the Commission's Proposal for a Council directive on the harmonisation of the structures of excise duties on mineral oils (OJ 1990 C 322, p. 18), in describing the obligation of the Member States to exempt the products in question, did not expressly mention the excise duties thereby envisaged.

(16) - Additional support for this view may be drawn from Article 8(4) of the Mineral Oils Directive. It contains a general provision pursuant to which the Council may authorise Member States to introduce exemptions in addition to those envisaged by Article 8(1) to (3); see most recently Council Decision 96/418/EC of 27 June 1996 authorising a Member State, in accordance with Article 8(4) of Directive 92/81/EEC, to introduce or continue to apply exemptions from, or reductions in, excise duties on certain mineral oils used for specific purposes; OJ 1996 L 172, p. 22.

(17) - In Case C-408/95 Eurotunnel and Others v SeaFrance [1997] ECR I-6315, the Court described the `object' of the General Directive as being `to ensure that the conditions applicable to the movement of goods subject to excise duty within the internal market without fiscal frontiers are implemented as from 1 January 1993' (paragraph 7).

(18) - See paragraph 15 above.

(19) - Case 8/81 [1982] ECR 53 (hereinafter `Becker'), paragraph 25.

(20) - Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment; OJ 1977 L 145, p. 1.

(21) - See Becker, loc. cit., paragraphs 32 to 34, at paragraph 32. For more recent case-law to the same effect, see Case C-10/92 Balocchi v Ministero delle Finanze [1993] ECR I-5105 and Case C-62/93 BP Supergas v Greek State [1995] ECR I-1883.