Case C-241/0l: Reference for a preliminary ruling from the Conseil d'État, Judicial Section, by decision of that court of 28 May 2001 in the case of National Farmers' Union against the General Secretariat of the French Government
Date: 2001-09-01
Institutions: Court of Justice
Subjects: agricultural product, animal disease, import, interpretation of the law, live animal

1.9.2001

EN

Official Journal of the European Communities

C 245/7

The Commission claims that the Court should:

1.

declare that by applying Paragraph 4(1) Nr. 2(b) of the
Mineralölsteuergesetz (law on the taxation of mineral
oils) the Federal Republic of Germany has failed to fulfil
its obligations under Council Directive 92/81/EEC of
19 October 1992 on the harmonisation of the structures
of excise duties on mineral oils (1) inasmuch as it fails to
charge excise duty on all mineral oils intended to be used
for heating;

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The action concerns the rule laid down in Paragraph 4(1)
Nr. 2(b) of the German Mineralölsteuergesetz, and in particular
the interpretation given to it in the Decree of the Bundesminis-
ter der Finanzen (Federal Minister of Finances) of 2 February
1998 (III A 1 — V 0355 — 10/97). Under that decree,
‘combustion’ was to be understood as meaning only the
intentional use of the thermal value of a material, i.e. the total
or partial combustion of mineral oil for the production of heat
to be transmitted wholly or partially to another material. That
other material, to which heat is transmitted, must thereby
acquire the character of a new carrier of energy or heat. The
use of the new heat carrier as a means of heating justifies the
conclusion that the mineral oil used to produce that heat
carrier has been heated. In accordance with that interpretation,
there is no ‘heating’ where the material receiving the energy
from the combustion is itself subjected to heat with a view to
the manufacture of a product and it thereby loses its material
characteristics. The same must therefore apply where the
flame comes into direct contact with the material to be
worked/transformed or destroyed. Nor can there be ‘combus-
tion’ where a pilot light is maintained with mineral oil in order
to burn harmful gas emissions or where mineral oil is mixed
in a combustion chamber with emissions that are to be
destroyed and is completely consumed.

According to the Commission, that interpretation infringes
Article 2(2) of Directive 92/81. The words used in that
provision, namely ‘intended for use ... as heating fuel’ must be
interpreted independently and in the light of Community law.
The wording, purpose and system of the directive support the
interpretation that ‘combustion’ must be interpreted in broad
terms and that any consumption of mineral oil for heating
must be regarded as a combustion. In particular, it appears to
be irrelevant whether the heat produced is used indirectly by
means of a heat carrier for the warming of an object, or
directly, in order to initiate or continue a chemical or industrial
process.

(1) OJ L 316, 31.10.1992, p. 12.

Reference for a preliminary ruling from the Conseil
d’E´ tat, Judicial Section, by decision of that court of 28 May
2001 in the case of National Farmers’ Union against the
General Secretariat of the French Government

(Case C-241/0l)

(2001/C 245/13)

Reference has been made to the Court of Justice of the
European Communities by decision of the Conseil d’E´ tat
(French Council of State) Judicial Section, of 28 May 2001,
received at
for a
preliminary ruling in the case of National Farmers’ Union
against the General Secretariat of the French Government on
the following questions:

the Court Registry on 22 June 2001,

(1) whether, having regard to the legislative nature of Com-
mission Decision 98/692/EC of 25 November 1998 (1)
and Commission Decision 99/514/EC of 23 July 1999 (2),
and notwithstanding the expiry of the time limit for
challenging them, a Member State may validly invoke
significant changes in the factual or legal circumstances
occurring after the expiry of that time-limit, where the
changes in question are such as to cast doubt on the
decisions’ validity;

(2) whether, at the date of the decisions taken by the French
authorities, the abovementioned Commission decisions
were valid, having regard to the precautionary principle
laid down in Article 174 of the Treaty establishing the
European Community;

(3) whether a Member State may draw from the provisions
of Article 30 EC (formerly Article 36 of the EC Treaty)
the power to prohibit imports of agricultural products
and live animals, inasmuch as Directives 89/662/EEC (3)
and 90/425/EEC (4) cannot be regarded as harmonising
the measures needed in order to attain the specific
objective of protecting the health and life of humans
provided for by that article.

(1) Commission Decision 98/692/EC of 25 November 1998
amending Decision 98/256/EC as regards certain emergency
measures to protect against bovine spongiform encephalopathy
(OJ L 328 of 4.12.1998, p. 28).

(2) Commission Decision 1999/514/EC of 23 July 1999 setting the
date on which dispatch from the United Kingdom of bovine
products under the date-based export scheme may commence by
virtue of Article 6(5) of Council Decision 98/256/EC (OJ L 195 of
28.7.1999, p. 42).

(3) Council Directive 89/662/EEC of 11 December 1989 concerning
veterinary checks in intra-Community trade with a view to the
completion of the internal market (OJ L 395 of 30.12.1989,
p. 13).

(4) Council Directive 90/425/EEC of 26 June 1990 concerning
veterinary and zootechnical checks applicable in intra- Com-
munity trade in certain live animals and products with a view to
the completion of the internal market (OJ L 224 of 18.8.1990,
p. 29).