Communication from the Commission to the Council concerning a request by France in accordance with the procedure laid down in Article 8(4) of Council Directive 92/81/EEC for authorisation to apply a differentiated rate of excise duty to diesel fuel used by commercial vehicles
Date: 2003-03-18
Institutions: European Commission
Subjects: France, State aid, commercial vehicle, control of State aid, derogation from EU law, diesel fuel, excise duty, transport company

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 18.3.2003
COM(2003) 122 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL

concerning a request by France in accordance with the procedure laid down in Article
8(4) of Council Directive 92/81/EEC for authorisation to apply a differentiated rate of
excise duty to diesel fuel used by commercial vehicles

1. 

PRESENTATION OF THE REQUEST

Council Decision 2001/224/EC of 12 March 20011 authorised France to apply a differentiated
rate of excise duty to diesel fuel used by commercial vehicles, in accordance with Article 8(4)
of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of
excise  duties  on  mineral  oils.2  This  authorisation  applied  from  1  January  2001  to
31 December 2002.

By  letter  dated  8  November  2002,  the  French  authorities  notified  the  Commission,  in
accordance  with  Article  8(4)  of 
to  extend,  until
31 December 2008, 
the  validity  of  Article 2  of  Council  Decision  2001/224/EC  of
12 March 2001 authorising France to apply a differentiated rate of excise duty  to diesel fuel
used by commercial vehicles.

the  Directive,  of 

their  wish 

Considering  that  it  had  not  received  all  relevant  or  necessary  information,  the  Commission
asked the French authorities, by letter dated 5 December 2002, a number of questions aimed
at  clarifying  certain  aspects  of  the  proposal  measures.  France  answered  these  questions  on
3 January 2003.

The other Member States were notified of the French request on 23 January 2003.

The measure grants road hauliers established in the Community partial reimbursement of the
excise  duty  on  diesel  fuel,  within  the  limits  of  a  six-monthly  quota,  in  respect  of  diesel
purchased  in  France.  The  vehicles  eligible  are  commercial  vehicles  used  for  road  haulage,
registered in a Community Member State, with a gross laden weight of more than 7.5 tonnes.
Reimbursement is permitted within a maximum quota of 20 000 litres per six-month period.
For the period 2003/2004, the amount of the reimbursement granted will be fixed at EUR 21.3
per thousand litres of diesel fuel.

Both French and Community enterprises have received refunds.

This request does not concern diesel fuel consumed by passenger vehicles.

The  French  authorities  believe  this  measure  to  be  fully  compatible  with  the  proposal  for  a
directive on diesel fuel, which is intended to harmonise the tax on "professional" diesel.

2. 

EVALUATION BY THE COMMISSION

Under  Article  8(4)  of  Council  Directive  92/81/EEC,  the  Council,  acting  unanimously  on  a
proposal  from  the  Commission,  may  authorise  any  Member  State  to  introduce  further
exemptions or reductions of excise duties for specific policy considerations.

On  15  November  2000  the  Commission  approved  a  proposal  for  a  Council  decision
authorising  France  to  extend  for  a  two-year  period,  with  no  possibility  of  renewal  beyond
31 December  2002,  the  derogation  concerning  reductions  in  excise  duty  on  diesel  fuel

1

2

OJ L 84, 23.3.2001.
OJ L 316, 31.10.1992, p. 12. Directive last amended by Directive 94/74/EC (OJ L 365, 31.12.1994, p.
46).

2

                                                
consumed  by  commercial  vehicles  and  road  transport  operators,  without  prejudice  to  the
application of the rules on State aids.3

Article  2  of  Council  Decision  2001/224/EC  of  12 March 2001  authorised  France  to  apply,
until 31 December 2002, a reduced rate of excise duty on diesel used in commercial vehicles,
provided  that  the  rates  respect  the  obligations  laid  down  in  Directive  92/82/EEC,4  and  in
particular  the  minimum  rates  laid  down  in  Article  5  thereof.  In  the  Council  minutes
concerning the Decision, the Commission made an entry to the effect that it did not consider
tax measures in favour of the road transport sector, and in particular their  extension, wholly
consistent with the objectives of Community environment, transport and energy policies and
would not therefore propse that derogations for road transport operators be extended beyond
2002.

On 3 May 2002 the Council declared, at France's request, the measures to refund excise duties
to  road  transport  operators  compatible  with  the  common  market.5  Referring  to  Article  2  of
Decision  2001/224/EC,  the  Council  confined  the  validity  of  its  compatibility  decision  to
31 December 2002.

Furthermore,  the  French  authorities  have  yet  to  notify  the  Commission  of  the  aid  plans
associated with the request under examination. However, the Commission considers that these
plans have to be examined in the light of Articles 87 and 88 of the EC Treaty to decide what
sort  of  State  aid  is  involved  and  whether  it  is  compatible  with  the  common  market.  The
Commission considers that the adoption of  the  directive on the taxation of energy products,
though not releasing France from its obligation to notify the Commission of the planned aid,
could  alter  the  way  in  which  the  compatibility  of  the  State  aids  contained  in  the  measure
planned  by  the  French  authorities  is  examined,  compared  with  the  way  in  which  the
Commission examined the system of reductions of excise duty on diesel oil applied by France
in the period 2000-2002.

Discussions  are  continuing  in  the  Council  on  the  taxation  of  energy  products.  The
Presidency's  latest  draft  compromise  (Doc.  15354/1/02  -  Fisc  311  Rev  1  Cor  1  of
13 February 2003) would allow France to extend the differentiated taxation of diesel fuel used
by commercial vehicles to 1 January 2005. However, the directive in question has  yet to be
adopted by the Council.

3

4

5

COM(2000) 678 final.
OJ L 316, 31.10.1992, p. 19. Directive last amended by Directive 94/74/EC (OJ L 365, 31.12.1994, p.
46).
Council  Decision  2002/363/EC  of  3  May  2002  on  the  granting  of  aid  by  the  French  Government  for
road transport undertakings (OJ L 131, 16.5.2002, p. 15).

3

                                                
3. 

CONCLUSION

The Commission is unable to propose to the Council a decision authorising France to apply a
differentiated  rate  of excise duty to diesel fuel used by  commercial  vehicles.  It  requests  the
Council to examine the follow-up to be given to France's request in accordance with the third
subparagraph of Article 8(4) of Directive 92/81/EEC.

Lastly, the  Commission  points out that Council Regulation  (EC)  No  659/1999  of  22  March
1999 laying down detailed rules for the application of Article 93 (now Article 88) of the EC
Treaty6 requires any plans to grant new aid to be notified to the Commission in sufficient time
by the Member State concerned. Moreover, notifiable aid may not be put into effect before the
Commission has taken, or is deemed to have taken, a decision authorising such aid.

6

OJ L 83, 27.3.1999, p.1.

4