2008/715/EC: Commission Decision of 11 March 2008 on State aid (Germany) exemption from mineral oil tax for greenhouse undertakings (notified under document number C(2008) 860)
Date: 2008-03-11
Institutions: European Commission
Subjects: Germany, State aid, control of State aid, energy-generating product, glasshouse cultivation, mineral oil, restriction on competition, tax exemption

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Official Journal of the European Union

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COMMISSION DECISION

of 11 March 2008

on State aid (Germany) exemption from mineral oil tax for greenhouse undertakings

(notified under document number C(2008) 860)

(Only the German version is authentic)

(2008/715/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

interested third parties. Germany commented on these by
letter of 14 June 2006, and provided further information
by letter of 12 December 2007.

Having regard to the Treaty
Community, and in particular Article 88(2) thereof,

establishing the European

Having called on interested parties to submit their comments
pursuant to the provision cited above and having regard to their
comments (1),

Whereas:

(1)

(2)

(3)

I. PROCEDURE

By letter of 19 April 2005, registered as received on
20 April 2005, Germany notified a measure granting a
tax refund for greenhouses in 2005 and 2006. The
measure contains a suspensive clause making its imple­
mentation dependent on approval by the Commission.
The State aid case was registered under the number
N 189/05.

The measure is an extension of a non-notified scheme
(2001-2002), which was already the subject of an
itself also non-notified. Both
extension (2003-2004),
entered in the
those non-notified measures were
register
number
NN 36/2005.

non-notified

under

the

aid

of

By letter of 20 October 2005 the Commission opened
the formal
investigation procedure in accordance with
Article 88(2) of the EC Treaty (2). In response Germany
commented by letter of 22 November 2005. The
from
Commission

observations

received

several

(1) OJ C 67, 18.3.2006, p. 23.
(2) See footnote 1.

(4)

(5)

(6)

(7)

II. DESCRIPTION

On 16 August 2001, by means of the Law amending the
Mineral Oil Tax Law, Germany introduced a two-year tax
reduction for fuels (heating oil, natural gas, liquid gas) for
use in greenhouses and covered growing areas. The aid
was granted in the form of a tax refund.

By means of the Law on the further development of the
ecological tax reform of 23 December 2002, the tax
refund, which had originally been granted for
fuels
used between 1 January 2001 and 31 December 2002,
was extended until 31 December 2004.

By means of
the Law on the implementation of the
guidelines of 9 December 2004, Germany intended to
retain that tax refund until the end of 2006 and notified
the extension measure as State aid N 189/05.

The tables in Annex I show the refund rates and financial
impact of
the tax refund in favour of greenhouses,
compared to the rest of the agricultural sector.

(8)

The Commission opened the
procedure for the following reasons:

formal

investigation

(9)

The measure constitutes State aid. The German authori­
ties argued that this case was covered by the exemption
contained in the Council Directives on the taxation of
energy products (Directive 92/81/EEC,
replaced from
2003 by Directive 2003/96/EC). Under those Directives,
Member States could grant tax reductions on mineral oils
used in horticulture.

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(10)

this
The Commission expressed doubts in respect of
view. Under the Directives on energy products, and in
particular Directive 2003/96/EC, the tax measures which
Member States may adopt must be compatible with
Community law and derogating provisions are to apply
without affecting the rules on competition. The measures
must not impair the smooth operation of the internal
market or lead to distortions of competition.

(16) Germany argued that the tax reduction was not selective,
and that it was in the nature of the matter that heating
materials would be used only in covered areas.

(17)

(11) Moreover,

this aid would appear

to have distorted
competition, since a reduced tax burden on energy
products in a highly energy-intensive economic sector
such as greenhouse cultivation had a direct effect on
production costs and hence on competitiveness.

the

special

justification for

In Germany’s view, if there were selectivity, and therefore
aid were being granted, that aid would be justified under
Article 87(3)(c) of the EC Treaty. Germany claimed that
aid under
there was
Article 8(2)(f) of Directive 92/81/EEC and under
its
of Directive
provision, Article
successor
2003/96/EC. Germany was of
the
measure constituted ‘implementation of the authorisation
granted to Member States (…) [by the above-mentioned
Directives] (…)’. In Germany’s view, it would be contra­
dictory for the Commission (which, after all, proposed
to
those Directives)
risk to the
Germany that
common market. According to Germany,
the compe­
tition-law aspects of the Directives in question did not
have priority.

the
the measure posed a

15(3)
the opinion that

counter argument

to put

(12)

It was emphasised that this refund had been granted
selectively since it differentiated between open-air and
greenhouse cultivation within the horticultural sector.

(18)

(13)

The Commission emphasized that tax reductions could
be granted, subject to the rules on competition. At that
stage, there seemed to be no provisions under the State
aid rules which would enable Member States to grant
fiscal aid of that nature.

applicable because

The German Government was of the opinion that point
52 of the Community guidelines on State aid for envi­
ronmental protection (3) was
an
existing tax had been increased significantly. It argued
that the Mineral Oil Tax Law, and the Energy Tax Law
which had taken its place, should be seen as an existing
environmental tax. They stated that the energy tax rates
contained therein had been increased significantly as of
1 April 1999 through the ecological
tax reform (as
shown in the overview in Annex I).

(14)

The Commission at
this
measure constituted operating aid which was incom­
patible with the common market.

stage considered that

that

(19)

The objective of those provisions had been to increase
demand for energy-saving,
resource-efficient products
and drive the development of environmentally friendly
procedures and technologies. The German Government
argued that the legislation relating to the taxation of
energy had thus had a significant effect on environmental
protection.

III. GERMANY’S COMMENTS

(20)

In this context, the German Government made reference
to a study on energy efficiency in greenhouse cultivation
which had been conducted by the Centre for Business
Management in Horticulture at the Institute of Biological
Production Systems at Hannover’s Leibnitz University.

(15) Germany commented both on the matter itself and on

the procedure.

(3) OJ C 37, 3.2.2001, p. 3.

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(21) Higher

In view of this,

taxation on energy,

it was claimed, was a
particular burden on undertakings which heated green­
houses or other covered areas, as the operations of those
undertakings were energy-intensive.
it
was argued, there had been cause to lessen the burden
on those undertakings temporarily by introducing a fiscal
incentive. It was also argued that there had still been a
need for this measure after 31 December 2002 (the date
on which the original tax reduction had been due to
expire). For this reason, the Law on the further develop­
ment of the ecological tax reform extended the validity of
the tax reduction by two years until 31 December 2004.
In light of the particularly difficult competitive situation
in 2005 and 2006 faced by agricultural and forestry
undertakings which heated their greenhouses or covered
areas for the purpose of cultivating plants, it had been
decided to grant the tax reduction for that period also.

(22)

The German Government considered the requirements
laid down in point 52 of the Community guidelines to
have been satisfied. Consequently, it was argued that the
provisions of point 51(1)(b) of the Community guidelines
could be used as justification for having granted State aid
in the form of a tax reduction for the period 2001-06.

it had been
to enter into force on 1 January 1999,
decided to include the agricultural and forestry sector
in the tax reduction mechanism for the manufacturing
sector. The introduction of the tax reduction in question
was the result of a separate amendment to the Law on
tax, which had entered into force on
mineral oil
1 January 2001. The
tax
the period 2003-2004) was adopted
reduction (for
under
the
ecological tax reform.

the Law on the further development of

extension of

first

the

(25) Germany argued that it had been led to believe that the
tax reduction in question was lawful during its commu­
nications with the Commission beforehand. Germany
referred in particular
to verbal statements made by
Commission officials during a meeting of the working
group ‘Competition conditions in agriculture’ on 26
and 27 October 1999. In any event, the Commission
had, at the latest, been made aware of the facts of the
case by Germany’s communication of 29 August 2001,
to such an extent that at that juncture the Commission
would have been able to assess the compatibility of the
tax reduction with the common market. Germany
expressly
second
sentence of Article 14(1) of Regulation (EC) No
659/1999 (4). Any recovery of
the aid could not,
Germany argued, be compatible either with the principles
legitimate expectations and legal
of
certainty or with the principles of proper administration.
According to Germany the observations by interested
third parties
expectations were
legitimate.

invoked Article 10(1)

the protection of

showed that

their

and

the

(23)

The German Government argued that, where the tax
reduction affected a Community tax which had been
harmonised in accordance with Directive 92/81/EEC or
Directive 2003/96/EC, the tax reduction was compatible
with the common market, at least in cases where it was
not below the minimum Community tax rate. The same
applied to the tax reduction (i.e. compatibility with the
common market) according to Germany, if a Community
in cases where the
tax was not
reduction was over 20 % of the domestic tax.

involved, at

least

(26)

tax reform,

law introducing the ecological

(24) Germany also stated that, during consultations on the
draft
the
issue had arisen of reducing the burden on agricultural
and forestry undertakings which heated their greenhouses
or covered areas for the purpose of cultivating plants
because those undertakings would have been affected
significantly by higher taxation due to their energy-
intensive operations. Due
time
pressure on passing this legislation through parliament,
and the fact that the legislation had originally beens due

enormous

to the

IV. THIRD PARTY OBSERVATIONS

years

also not

the measures were

forward
The interested third parties essentially put
arguments which Germany had already used. They
argued that
selective
because they were open to all agricultural and forestry
undertakings operating greenhouses and covered areas.
They also argued that Community trade was not
disrupted. The area under glass had been drastically
reduced in the
to
Germany of competing products had increased. In any
case, Germany’s production volumes were hardly
significant, compared to intra-Community trade in vege­
tables. Furthermore, open-air crops and those under glass
were not in direct competition with each other and most
of them could not be substituted for each other. If aid
of
could
it
existed,
be
the EC Treaty since it helped the
Article 87(3)(c) of
development of
aid
the horticultural
enabled the horticultural sector to adjust to increased

concerned and imports

sector. The

on the

justified

basis

(4) OJ L 83, 27.3.1999, p. 1.

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it

of

(partially)

implementing

energy prices and reduced the ‘distortions of competition’
resulting from the significantly lower gross energy prices
in other Member States and adversely affecting under­
takings producing in Germany. It could not be claimed
that the German aid was ‘distorting competition’. On the
compensated for an existing
contrary,
‘distortion
put Germany’s
competition’ which
greenhouse cultivation at a disadvantage. Because they
were limited in time, the measures gave the sector a
powerful incentive to adapt to increasing energy prices
by
rationalisation
energy-saving
measures and making the appropriate investment. As a
result
the measures had to be admissible because
otherwise the intention of Directive 92/81/EEC and
Directive 2003/96/EC would be undermined or inad­
missibly restricted. In the alternative, with reference to
the RSV judgment (5) of the European Court of Justice it
was argued that protecting the legitimate expectations of
the beneficiaries precluded any recovery of the aid, since
the Commission already knew about
aid on
29 August 2001 but did not make it the subject of an
investigation procedure until 20 April 2005 when it
event of
requested information. Moreover,
risked
recovery,
becoming insolvent.

large number of undertakings

in the

and

the

a

it is to be determined whether the
of the EC Treaty,
recipient undertaking has received economic advantage
which it would not have received under normal market
conditions (7) or has been spared costs which it would
normally have had to bear from its own resources (8).

(30)

The measure in the form of tax refunds gives the under­
takings which receive them economic advantages in the
form of a lower tax burden. This saves them costs which,
under normal circumstances, they would have had to
bear from their own resources. The aid is granted from
public funds to certain undertakings, namely agricultural
and forestry undertakings engaged in production using
greenhouses and covered areas.

V. ASSESSMENT OF THE MEASURE

(31)

(27) Under Article 43 of Regulation (EC) No 2200/96 of
28 October 1996 on the common organisation of the
market in fruit and vegetables (6), Articles 87, 88 and 89
of the EC Treaty apply to the production of the goods
specified in the Regulation and to trade in those goods.
The production of, and trade in, fruit and vegetables is
therefore subject
to the Community provisions on
granting State aid.

The aid is not granted to all undertakings and is therefore
the measure constitutes aid
selective.
within the meaning of Article 87(1) of the EC Treaty.

follows that

It

(32)

The tax refund is also likely to distort competition (9) and
to affect trade between Member States (10).

(28) Under Article 87(1) of the EC Treaty, any aid granted by
a Member State or through State resources in any form
whatsoever which distorts or threatens to distort compe­
tition
the
certain
favouring
insofar as it affects
production of certain goods is,
trade between Member States,
to be deemed incom­
patible with the common market.

undertakings

by

or

(33) Germany

a

is

significant producer of greenhouse
products. Trade in these products is also significant, as
the following statistics show.

(29)

The ECJ has ruled that, when considering whether a State
measure constitutes aid within the meaning of Article 87

(5) Case 223/85 Rijn-Schelde-Verolme

(RSV) Maschinefabriken en

Scheepswerven N.V. v Commission [1987] ECR 4617.

(6) OJ L 297, 21.11.1996, p. 1.

(7) Case C-39/94, SFEI and others, [1996] ECR I-3547, paragraph 60.
(8) Case C-301/87,
[1990] ECR I-307,
France v Commission,
paragraph 41.

(9) According to the case law of the ECJ, the improvement of an
undertaking's
aid
generally entails a distortion of competition vis-à-vis competing
undertakings not
(Case C-730/79
[1980] ECR 2671, paragraphs 11 and 12).

competitive position by means of

in receipt of

such support

State

(10) See statistics below (source: Eurostat).

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2001

2002

2003

2004

2005

Vegetables

Import

Value (in thousands of euro)

6 705 483

6 936 685

7 049 757

6 845 103

6 979 459

Quantity (in tonnes)

5 346 123

5 365 972

5 599 183

5 621 769

5 464 528

Export

Value (in thousands of euro)

867 832

985 187

1 030 880

1 045 543

1 122 869

Quantity (in tonnes)

2 227 612

2 243 611

2 133 544

2 164 328

2 345 796

Flowers

Import

Value (in thousands of euro)

3 413 206

3 614 349

3 673 148

3 691 913

3 723 794

Quantity (in tonnes)

1 285 460

1 442 078

1 547 266

1 573 104

1 671 568

Export

Value (in thousands of euro)

405 250

482 993

546 938

526 374

573 022

Quantity (in tonnes)

235 333

326 613

286 080

283 426

355 969

(34) Germany’s greenhouse products are in competition with
the greenhouse products of other Member States. Not
only have Germany and the interested third parties not
it has also been explained that
disputed this, but
greenhouse undertakings were exempted from the tax
precisely in order to improve their competitive position
vis-à-vis Dutch competitors which, according to the same
information,
production
lower gross prices for energy.
conditions because of
Direct competition is therefore involved. An interested
third party’s assertion that greenhouse products were
in direct competition with open-air products is
not
there is compe­
therefore immaterial considering that
tition between German greenhouse products
and
greenhouse products of other Member States, including
Dutch greenhouse products.

enjoy more

favourable

(35)

Consequently, the exemption from taxes otherwise due is
likely to distort competition. The argument that energy
prices are more favourable in other Member States is
unimportant (11). Even if it were true that the starting
this
points differed as regards this production factor,
would not alter the fact that the tax refund granted by
Germany is likely to distort competition.

(36)

The aid is also likely to impair trade between the Member
States. This is shown by the not insignificant trade flows,

(11) Case 173/73 Italy v Commission, [1974] ECR 709, paragraphs

36-40.

as demonstrated above. Even if it were true, as has been
argued, that the area under glass has been drastically
reduced and imports to Germany have increased, that
in no way proves that trade has not been disrupted. It
cannot be ruled out
the measure the
growing area would have been even more drastically
to Germany would have
reduced and/or
increased still
intra-Community trade
with Germany in greenhouse products exists, it is not a
matter of how significant Germany’s production quan­
tities are to be regarded.

further. Since

that without

imports

(37)

(38)

The ban on granting State aid under Article 87(1) of the
EC Treaty does not apply without exception, however.
the
The Commission has examined whether any of
exceptions
to the ban in principle on aid under
Article 87(1) of the EC Treaty apply.

The exceptions provided for in Article 87(2) of the EC
Treaty, which concern aid of a social character granted to
individual consumers, aid to make good the damage
caused by natural disasters or exceptional occurrences
and aid granted to the economy of certain areas of the
Federal Republic of Germany, are irrelevant in the present
context regardless of who the beneficiaries of the scheme
at issue are.

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(39)

The Commission considers that the exceptions provided
for in Article 87(3)(a) of the EC Treaty concerning the
development of certain areas are not applicable to the
scheme at issue because the measure does not comprise
aid to promote the economic development of areas
where the standard of
living is abnormally low or
where there is serious underemployment.

(45) Germany and a number of interested third parties are of
the opinion that a special justification for the aid results
from Article 8(2)(f) of Directive 92/81/EEC and
Article 15(3) of
its successor, Directive 2003/96/EC,
and that this would be permitted under point 3.4 of
the Community guidelines for State aid in the agriculture
sector.

(40) As for the exception provided for in Article 87(3)(b) of
the EC Treaty, it is sufficient to note that the tax scheme
issue is not an important project of common
at
European interest and does not
seek to remedy a
serious disturbance in the German economy. Nor does
it seek to promote culture and heritage conservation
within the meaning of the exception provided for in
Article 87(3)(d) of the EC Treaty.

(41)

The Commission would point out in this connection that
neither the German authorities nor any interested parties
invoked the above-mentioned exceptions in the course of
the investigation procedure.

(42)

The only exception that could be considered is therefore
that contained in Article 87(3)(c), according to which an
aid may be considered compatible with the common
market if it is found to facilitate the development of
certain economic activities or of
certain economic
areas, where such aid does not adversely affect trading
conditions to an extent contrary to the common interest.

(43)

The Community guidelines for State aid in the agriculture
sector (12) apply to the measures at issue here (13).

(44) However, neither those Community guidelines nor any
other rules relating to agriculture provide in respect of
the measures described above for express exemptions
from the ban in principle on aid contained in
Article 87(1) of
the
the EC Treaty.
Commission notes that point 4 of
the Community
guidelines, which relates to investment aid, does not
apply in the present case. The tax refund is not linked
to carrying out investment.

In particular

(12) OJ C 232, 12.8.2000, p. 17.
(13) Commission notice on the determination of the rules applicable for
the assessment of unlawful State aid – OJ C 119, 22.5.2002, p. 22.

(46) Having regard to Directive 2003/96/EC,

it is stated in
recitals (15) and (24) that measures introducing differen­
tiated rates of taxation must be in accordance with the
rules on the internal market and competition in order
not to result in distortions of competition. The fact that
the competition rules must be applied is also confirmed
in Article 26 of Directive 2003/96/EC by pointing out to
Member States that measures such as tax refunds within
the meaning of the Directive might constitute State aid
and in those cases have to be notified pursuant
to
Article 88(3) of the EC Treaty. That Article expressly
states that information provided to the Commission on
the basis of the Directive does not release Member States
from the notification obligation pursuant to Article 88(3)
of the EC Treaty.

(47)

The same applies for the Directive 92/81/EEC, which
states in its recitals (sixth recital) that Member States
may apply on an optional basis certain (…) exemptions
(…) where this does not give rise to distortions of
competition.
the Member
Its Article 8(2) states that
States may ‘without prejudice to other Community
provisions’ apply total or partial
tax exemptions or
reductions. The Commission recalls, at this occasion, its
competence on State aid issues originating directly from
the EC Treaty. Any Community legislation can not
possibly impair the Commission’s competence in this
field.

this

to assert

to which

is possible only subject

(48) Germany asserts that the tax refund is an implementation
of a power granted to Member States by the above-
mentioned Directives,
the Commission
to the
that
responds
above-mentioned conditions. Germany also argues that
it is contradictory for the Commission, which after all
proposed those Directives,
to Germany that
there is a resultant danger to the common market.
Firstly, Germany did not argue that according to the
Commission’s interpretation there was no possibility of
actually applying the said Directives. The Commission
does not, of course, rule out
the possibility of there
being cases which have been conceived on the basis of
the Directives, but which at the same time satisfy the
competition. The Commission
requirements of
would point out
the Directives only allow for
favourable tax treatment at this stage of the approxi­
mation of the fiscal legislation. They do not prescribe it.

fair
that

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(49) Germany disputes that the competition-law aspects of the
Directives in question take priority. However, it follows
from the above-mentioned considerations that
in any
case — i.e. even if competition-law considerations do
not take priority — aid such as the present tax refund
must be examined on the basis of the relevant compe­
tition rules under the EC Treaty. The question of whether
or not
therefore, without signif­
icance (14).

there is priority is,

(50)

(51)

The scope for assessment and discretion accorded to the
Commission by the EC Treaty as regards the application
of the exemptions under Article 87(3) was not and could
not be restricted by the Directives in question in any
way.

Point 3.5 of the Community guidelines reflects the prin­
ciples of State aid policy and the Common Agricultural
Policy. It states that unilateral State aid measures which
are simply intended to improve the financial situation of
producers but which in no way contribute to the deve­
lopment of the sector, and in particular aid which is
granted solely on the basis of price, quantity, unit of
production or unit of
the means of production is
considered to constitute operating aid which is incom­
patible with the common market.

(52) As already stated, the aid in question is not linked to
investment likely to modernise the sector (e.g. through
better heat insulation or investment to increase energy
utilisation). On the contrary, necessary adjustments (such
as the above-mentioned) are likely to be delayed by such
subsidies. The sector therefore remains dependent on this
aid. Development either does not occur at all or takes
place only after a corresponding delay. Contrary to what
some interested third parties argue, not only is there no
incentive effect to undertake the necessary investment,
but
is
the existing incentive of high energy prices
reduced by the
subsidies. The aid in question is
therefore to be classified as operating aid in the sense
referred to above.

(53)

The new Community guidelines for State aid in the agri­
culture and forestry sector 2007-2013 (15) did not enter
into force until 1 January 2007. Point 172 provides for
retroactive applicability in respect of unlawful tax refunds
granted under Directive 2003/96/EC, but only if
the
conditions of that Directive have been met and there
has been no differentiation within the agricultural
sector. The same would apply for unlawful tax refunds
granted under Directive 92/81/EEC. Since the measure in
question applies only in favour of certain agricultural
therefore
undertakings, however, point 172 does not
constitute a basis which would allow the Commission

(14) Case T184/97 BP Chemicals v Commission, [2000] ECR II-3145,

paragraph 59 et seq.

(15) OJ C 319, 27.12.2006, p. 1.

to regard the present tax refunds as compatible with
the common market.

(54) Germany intends to justify the compatibility of the aid
under the environmental guidelines. The Commission has
also considered the application of points 23 and 51 et
seq. of the Community guidelines on State aid for envi­
ronmental protection which in certain circumstances
permit
the granting of operating aid. The agriculture
guidelines of 2000 refer in point 5.6.2 to these environ­
mental guidelines.

(55)

Point 23 of
the environmental guidelines states that
exemptions from or reductions in taxes the effects of
which are conducive to environmental protection to
the benefit of firms in particular categories in order to
avoid placing them in a difficult competitive situation
could be acceptable, provided that such exemptions are
necessary to ensure the adoption or continued application
of taxes to all products.

(56)

The Commission reminds that following point 50 of the
environmental guidelines the tax measures in question
should make,
in general, a significant contribution to
protecting the environment. Care should be taken to
ensure that
the exemptions do not, by their very
nature, undermine the general objectives pursued.

(57) On the basis of the documents (the study) it submitted
subsequently, Germany demonstrated that, notwith­
standing
energy
in
consumption had decreased continuously and energy effi­
ciency had increased in both vegetable and flower culti­
vation in greenhouses.

increase

energy

taxes,

the

(58)

Consequently, the Commission assumes that the under­
takings in question have recognised the need to take
measures to bring about some improvement in respect
of environmental protection.

(59)

The environmental guidelines distinguish between, on the
one hand, new taxes (point 51.1) and, on the other,
existing taxes (points 51.2 and 52).

(60)

The Mineral Oil Tax Law had been in force when it was
amended on 16 August 2001 by the Law Amending the
Mineral Oil Tax Law, which granted the tax refunds.
Therefore,
in the
the environmental
sense of point 51.2 or 52 of
guidelines at
the
amending Law.

it is to be deemed to have ‘existed’

the introduction of

the time of

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(61)

(62)

and (b)

the derogations

Point 51.2 provides for the application of the provisions
in point 51.1 if the following two conditions are satisfied
at the same time: (a) the tax in question must have an
appreciable positive impact in terms of environmental
firms
protection,
concerned must have been decided on when the tax
was adopted or have become necessary as a result of a
significant change in economic conditions that placed the
firms in a particularly difficult competitive situation. In
the latter instance, the amount of the reduction may not
exceed the increase in costs resulting from the change in
economic conditions. Once there is no longer any
increase in costs, the reduction must no longer apply.

the

for

The conditions mentioned under (a) and (b) must be
cumulatively fulfilled in order to apply point 51.1 of
the environmental guidelines. As regards the conditions
under (b) first alternative, which requires that the dero­
gations for the firms concerned must have been decided
on when the tax was adopted, the Commission observes
that all the tax reductions have been granted after the
adoption of the tax law and not at the time of the
adoption. Therefore, the first alternative is not fulfilled.
The second alternative requires not only the proof of a
significant change in economic conditions of the firms
concerned, on the one hand, but also the proof that the
amount of reduction does not exceed the increase in
costs resulting from the change in economic conditions,
on the other. Germany has not provided evidence which
would
these
allow the Commission to consider
conditions fulfilled. Therefore, also the second alternative
of (b) is not fulfilled. Consequently, point 51.2 can not
be applied.

continued existence of
are necessary for
greenhouse undertakings which benefit from them.

the

the

(65) However, point 52 can be applied only to the granted
tax reductions that do not exceed the increase in the
original tax, that is to say the new part of the existing
tax. Point 52 refers to the rules applicable to new taxes.
As a consequence the increase of the tax is assessed by
analogy in the same way as the introduction of a new
tax. This analogy can only be applied for the new part,
meaning the increased part of
the tax. Only this
reasoning ensures
the additional criteria which
have to be applied in the assessment of existing taxes
are not ignored in the case of the assessment of a tax
increase. Based on this assumption the Commission has
established the following facts:

that

(66)

Regarding heating oil, the original tax had been increased
from EUR 40,90/1 000 l to EUR 61,35/1 000 l. The
Commission considers therefore that any reduction of
(namely EUR
the tax going beyond the original
40,90/1 000 l), cannot be justified under the environ­
mental guidelines and is therefore incompatible with
the common market.

level

(63)

The Commission has examined whether point 52 could
be applied. Point 52 lays down that where an existing tax
is increased significantly and where the Member State
concerned takes the view that derogations are needed
for certain firms, the conditions set out in point 51.1
as regards new taxes are applicable by analogy. Therefore
it must be examined whether the taxes were increased
significantly and if the conditions of point 51.1 of the
environmental guidelines are fulfilled.

(67)

Regarding natural gas, the original tax had been increased
from EUR 1,87/MWh to EUR 3,476/MWh (as of 1 April
1999),
and EUR 5,50/MWh (as of 2003). The
Commission considers therefore that any reduction of
the tax going beyond the original
(namely EUR
1,87/1 000 l), cannot be justified under the environmen­
tal guidelines and is therefore incompatible with the
common market.

level

(68)

(64)

The existing taxes were all increased by more than 20 %
(see Annex I). The Commission considers this increase to
be significant within the meaning of point 52 of the
environmental guidelines. The Commission notes that,
according to Germany, the tax reductions in question

from EUR

the original

25,56/1 000

tax had been
Regarding the liquid gas,
to
increased
EUR
kg
and EUR
38,34/1 000 kg (as of 1 April 1999)
60,60/1 000 kg
(as of 2003). The Commission
considers therefore that any reduction of the tax going
beyond the original level (namely EUR 25,56/1 000 kg),
cannot be justified under the environmental guidelines
and is therefore incompatible with the common market.

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(69) With respect to the part of the aid which has not gone
beyond the increase of the tax in 1999, the Commission
has also determined whether the conditions of point
51.1(b) (applicable by analogy in accordance with point
52 of the guidelines) were respected.

(70)

Point 51.1(b) states that exemption decisions covering a
10-year period with no degressivity may be justified in
two cases and specifies two further conditions which
(a) where the reduction concerns a
must be met:
Community tax,
the amount effectively paid by the
firms after the reduction must remain higher than the
Community minimum in order to provide the firms with
an incentive to improve environmental protection;
(b)
where the reduction concerns a domestic tax imposed
in the absence of a Community tax, the firms eligible
for the reduction must nevertheless pay a significant
proportion of the national tax. Alternatively the environ­
mental guidelines require that alternative measures (e.g.
voluntary agreements) are in place, which is not the case
here.

(73)

aid for

years 2001-2003, point 51.1(b), second indent, of the
environmental
2001 Guidelines on State
protection requires benefiting companies
to pay a
significant proportion of the national tax. The reason
for that is to leave them with an incentive to improve
their environmental performance. In the practice of the
Commission, it has become clear that, in general 20 %,
or the Community minimum that applies to energy uses
that do fall within the scope of respective Directives can
be regarded as a significant proportion.

Even if one takes into account the highest national tax
rate applicable in the period in question, namely EUR
in the year 2003, the 20 % threshold only
5,5/MWh,
to EUR 1,1/MWh, and therefore remains
amounts
taxation, namely EUR
under
1,87/MWh.

the original

level of

(71) With regard to the three products concerned, namely
heating oil, natural gas and liquid gas, the original level
of taxation applied before the increase of the tax in 1999
exceeded the Community minima:

(74)

For these reasons, the Commission concludes that, as far
as the tax reductions do not go beyond the original levels
of taxation before the increase in 1999, the conditions
set out in point 51.1 b are fulfilled.

For heating oil, the Community minimum tax rate was
EUR 18,00/1 000 l (16)
for the years 2001-2003 and
EUR 21,00/1 000 l (17)
for the years 2004-2006 and
taxation of
level of
was therefore below the original
EUR 40,90/1 000 l.

(75)

For natural gas, the Community minimum tax rate was
the years 2004-2006 and was
EUR 0,54/MWh for
therefore below the original
taxation of
EUR 1,87/MWh.

level of

(76)

For liquid gas, the Community minimum tax rate was
EUR 0/1 000 kg and was therefore below the original
level of taxation of EUR 25,56/1 000 kg.

the part of

the reduction of

the Commission considers
Regarding heating oil,
the tax
therefore that
which goes beyond the original
rate (namely EUR
40,90/1 000 l) is incompatible, and that the part of the
reduction above the original rate (the reduction from
EUR 61,35/1 000 l to EUR 40,90/1 000 l) is compatible
with the common market.

gas,

the part of

the reduction of

the Commission considers
Regarding natural
the tax,
therefore that
rate (namely EUR
which goes beyond the original
1,87/MWh)
is incompatible, and that the part of the
reduction above the original rate (the reduction from
EUR 3,476/MWh for the years 2001 and 2002 and
EUR 5,5/MWh for the years 2003 to 2006 to EUR
1,87/MWh) is compatible with the common market.

(72) With regard to the (word missing) heating fuels which
were not subject to a Community minimum during the

(77)

(16) Minimum rate of taxation referred to in Article 5(3) of Council
Directive 92/82/EEC of 19 October 1992 on the approximation
on the rates of excise duties on mineral oils.

(17) Minimum rate of taxation referred to in Article 4(1) in conjunction
with Annex I Table C of Council Directive 2003/96/EC of
27 October 2003 restructuring the Community framework for
the taxation of energy products and electricity.

Regarding liquid gas, the Commission considers therefore
that the part of the reduction of the tax which goes
beyond the original rate (namely EUR 25,56/1 000 kg)
is incompatible, and that the part of the reduction above
the original rate (the reduction from EUR 38,34/1 000
kg for the years 2001 and 2002 and EUR 60,60/1 000
kg for the years 2003 to 2006 to EUR) is compatible
with the common market.

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(78)

The Commission notes that the aid granted in the years
2001-2004 was granted in breach of Article 93(2) of the
EC Treaty (now Article 88(2)) without registering it in
time with the Commission and without awaiting the
Commission’s Decision.

argued that there had been specific infringements of the
examination periods as referred to in Article 4(5) of
Regulation (EC) No 659/1999. Furthermore, Germany
did not
apply the procedure provided for under
Article 5(3) of that Regulation.

(79) Germany argues that the Commission knew about the
aid as early as 29 August 2001, but that the Commission
had not initiated proceedings under Article 88(2) of the
EC Treaty until 22 October 2005. In Germany’s opinion
to
this decision is
Article 10(1) of Regulation (EC) No 659/1999 cannot
be reconciled with the principles of proper administra­
tion. Germany therefore argues that the Commission is
no longer authorised to establish the aid’s incompatibility
with the common market.

and with reference

too late

(80) Unlawful aid is not eligible for the short examination
periods specified in Article 4 of Regulation (EC) No
659/1999. The principles of proper
administration
remain applicable, however. The Commission underlines
nevertheless that it reserved its right to examine the aid
under scrutiny in its Decision C(2002) 441 final of
13 February 2002 addressed to Germany.

(81)

the

From the date cited by Germany (29 August 2001) until
investigation procedure
formal
the opening of
(20 October 2005) the Commission addressed at least
three requests for information to Germany and held a
meeting with representatives from Germany. Also, it was
not until during this period that the Commission learnt
of the two extensions of the tax refund, by two years in
each case. During the same period Germany addressed no
less than five communications with additional
infor­
mation to the Commission. The mere fact that during
the period in question Germany sent
five communi­
it was also
cations to the Commission proves that
Germany’s view that the information had not been suf­
ficiently complete to allow the Commission to take a
decision on this case. Citing the RSV judgment does
not alter that fact. The case underlying that judgment
is different.
the Commission not only
already had detailed knowledge of the aid (which is not
so in the present case), but had even already taken a
decision on the basic measure. Even taking into
account the relevant ECJ case law, there is therefore no
question of the Commission having failed to take action.
Article 10(1) of Regulation (EC) No 659/1999 has not
been infringed.

In that case,

(82)

Regarding the notified part of the aid (ex number N
189/2005) neither Germany nor interested third parties

(83)

Therefore,
concrete
659/1999 must be discarded.

the arguments of Germany concerning the
the Regulation (EC) No
application of

(84)

out

that,

points

pursuant

The Commission
to
Article 14(1) of 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
Treaty (18), any unlawful aid found to be incompatible
with the common market granted under the scheme at
issue must be recovered.

(85) Article 14(1) provides as follows: ‘The Commission shall
not require recovery of the aid if this would be contrary
law.’ The
to a
Commission is required to take into consideration on
its own initiative exceptional circumstances that provide
such justification (19).

general principle of Community

(86)

It should be examined whether, in this case, any general
principle of Community law, such as the principle of
legal certainty, could be
legitimate expectations or of
applied in order to preclude recovery from the benefi­
ciaries of the unlawful and incompatible aid.

(87)

The protection of
legitimate expectations is a general
principle protected under Community law. For legitimate
expectations to arise, previous assurances provided by the
Commission administration regarding the legality of a
certain measure are required. Therefore, there must be
an act or conduct on the part of the Community admi­
nistration capable of having given rise to such an expec­
tation (20).

(18) OJ L 83, 27.3.1999, p. 1.
(19) Case 223/85 Rijn-Schelde-Verolme (RSV) Machinefabrieken en

Scheepswerven NV v. Commission, [1987] ECR 4617.

(20) Case C-265/85 Van den Bergh en Jurgens v Commission, [1987]
ECR 1155, paragraph 44; case C-152/88 Sofrimport v Commission,
[1990] ECR I-2477, paragraph 26; case T-290/97 Mehibas Dordt­
[2000] ECR II-15, paragraph 59; case
selaan v Commission,
T-223/00 Kyowa Hakko Kogyo v. Commission,
[2003] ECR
II-2553, paragraph 51.

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(88) According to the case-law, the principle of legal certainty
is breached when the circumstances of uncertainty and
lack of clarity led to the creation of an equivocal
situation which the Commission should have clarified
before it could take any action to order recover (21).

(93)

From the considerations formulated in this decision it is
clear that the recovery of the subsidies in question can
not possibly be waived on grounds of legal certainty.

(89) Germany has not specifically demonstrated why recovery
in itself should not be compatible with proper adminis­
tration. Under Article 14 of Council Regulation (EC) No
659/1999 of 22 March 1999, aid deemed to be unlawful
and incompatible with the common market must be
recovered as a matter of principle.

(94)

The tax refunds granted must, in principle, be recovered
in full where they have been deemed to constitute aid
which is incompatible with the common market.

(90)

(91)

(92)

The only exception to that are cases in which recovery
would infringe general principles of Community law. No
such infringement
is apparent. Furthermore, and in
particular, any legitimate expectation on the part of
founded nor worthy of
Germany was neither well
founded because the aid
protection.
It was not well
therefore
had not been notified. Germany could not
have legitimate expectations in the existence of
that
aid. This applies all the more so because by the above-
mentioned letter of 13 February 2002 the Commission
drew Germany’s attention to the possibility that the aid
might be checked. According to established ECJ case law,
a prudent businessman could and should have asked the
German authorities whether the aid had been notified
and could have therefore found out that there was a
risk of possible demand for recovery (22).
If he delib­
erately or as a result of negligence failed to ask this,
his legitimate expectations are not worthy of protection.

In response to Germany’s objection that, as a result of
statements by Commission officials, Germany
verbal
gained the impression that the aid was compatible with
the common market, the Commission points out that it
the College,
alone, under
is
responsibility of
the
authorised to take such decisions.
It also notes that
there is no Commission document from which it could
be concluded that the aid in question is compatible with
the common market.

In response to the objection that in the event of possible
recovery a large number of undertakings would be
the Commission reiterates
threatened with insolvency,
that recovery of part of the aid is necessary in order to
enable restoration of the status quo ante, i.e. a situation
without distorted competition. If this means that indi­
vidual undertakings are not viable, then that is only a
competition taking place under market-
result of
economy conditions.

(21) Case T-308/00 Salzgitter AG v Commission, not yet reported in the

ECR, paragraph 180.

(22) Deufil Gmbh & Co. KG v Commission [1987] ECR 901.

(95)

The decision concerns the tax refund in question and
must,
including recovery, be effected without delay in
accordance with Article 14 of Council Regulation (EC)
No 659/1999 of 22 March 1999 laying down detailed
rules for the application of Article 93 of the EC Treaty.

take

to recover

concerned must

(96) Under Article 14(1) of Council Regulation (EC) No
659/1999, where negative decisions are taken in cases
of unlawful aid, the Commission is to decide that the
all necessary
Member State
measures
the aid from the beneficiary.
Germany must therefore take all necessary measures to
recover
the incompatible aid
granted. Germany must call upon the beneficiaries
concerned to pay back the aid within two months
this decision. The aid to be
following publication of
recovered includes
interest, calculated in accordance
with Commission Regulation (EC) No 794/2004 of
21 April 2004 implementing Council Regulation (EC)
No 659/1999.

from the beneficiaries

(97) Nevertheless, any individual aid granted under
the time of grant,

this
scheme which satisfies, at
the
conditions laid down by the Commission Regulations
adopted on the basis of Council Regulation (EC) No
994/98 or by any other approved aid scheme is
compatible with the common market to the amount of
the admissible intensities.

(98)

Furthermore,
that very small amounts of aid granted subject
certain conditions do not
the Treaty.

the Commission’s experience has shown
to
fall under Article 87(1) of

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(99) Under Regulation (EC) No 1860/2004 (23), aid not
exceeding EUR 3 000 per beneficiary over three years
(this amount including the ‘de minimis’ aid granted to
trade between
any one enterprise) does not affect
threaten to
Member States and does not distort or
distort competition and therefore does not fall under
Article 87(1) of the Treaty.

would not constitute State aid if it complied with the
provisions of Regulation (EC) No 1860/2004 at
the
time it was granted, and that a tax reduction up to the
maximum amount of EUR 7 500 would not constitute
State aid if it complied with the provisions of Regulation
(EC) No 1535/2007 at the time it was granted.

(100) Under Article 5 of Regulation (EC) No 1860/2004 the
same applies to aid granted before its entry into force,
the requirements of Articles 1 and 3
provided that
thereof are fulfilled.

(101) On 1 January 2008, Regulation (EC) No 1860/2004 has
been replaced by Regulation (EC) No 1535/2007 of
20 December 2007 on the application of Articles 87
and 88 of the EC Treaty to the de minimis aid in the
sector of agricultural production (24), which increases the
amount of de minimis aid to EUR 7 500 per beneficiary
over any period of three fiscal years, irrespective of the
form of the aid or the objective pursued, within the
limits of a maximum amount per Member State corre­
sponding to 0,6 % of the value of the annual production.

(102) Article 6(1) of that Regulation states that ‘this Regulation
shall apply to aid granted before 1 January 2008 to
undertakings in the sector of agricultural production,
the conditions laid
provided that such aid fulfils all
down in Articles 1 to 4, except
the reference
requirement clearly set out
in this Regulation in the
first subparagraph of Article 4(1)’.

for

VI. CONCLUSIONS

(105) The State aid granted to agricultural and forestry under­
takings for heating greenhouses or covered areas for crop
production under the Law amending the Mineral Oil Tax
Law and the Law on the further development of the ecological
into effect by the Federal
tax reform, unlawfully put
Republic of Germany in breach of Article 88(3) of the
Treaty, or which it intends to grant to them under the
Guidelines Implementation Law, is hereby deemed to be
incompatible with the common market to the extent
mentioned in points 75 to 77 of the present decision,
and must be recovered for the relevant period, where
granted.

(106)

for

heating

undertakings

for crop production under

In all other respects, the State aid which the Federal
Republic of Germany has granted to agricultural and
or
forestry
covered areas
the Law
amending the Mineral Oil Tax Law and the Law on the
further development of the ecological tax reform or which it
intends to grant to them under the Guidelines Implemen­
tation Law, is hereby deemed to be compatible with the
common market,

greenhouses

(103) Article 6(2) of the same Regulation states that ‘any de
minimis aid granted between 1 January 2005 and six
months after entry into force of this Regulation, which
fulfils the conditions of Regulation (EC) No 1860/2004
applicable to the sector of agricultural production until
the date of entry into force of this Regulation, shall be
deemed not to meet all the criteria of Article 87(1) of the
Treaty and shall therefore be exempt from the notifi­
cation requirement of Article 88(3) of the Treaty’.

HAS ADOPTED THIS DECISION:

Article 1

(104) Against this background, the Commission considers that
a tax reduction up to a maximum amount of EUR 3 000

(23) OJ L 325, 28.10.2004, p. 4.
(24) OJ L 337, 21.12.2007, p. 35.

The State aid scheme applied or intended to be applied by
Germany to agricultural and forestry undertakings for heating
greenhouses or covered areas for crop production under the
Law amending the Mineral Oil Tax Law, the Law on the further
development of the ecological tax reform and the Guidelines Imple­
mentation Law is incompatible with the common market with
respect to the part of the reduction of the tax, which goes
for heating
beyond the original rate of EUR 40,90/1 000 l
fuel,
of
and
for
1,87/MWh
EUR 25,56/1 000 kg for liquid fuel.

natural

EUR

gas,

of

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Article 2

Article 5

The State aid scheme applied or intended to be applied by
Germany to agricultural and forestry undertakings for heating
greenhouses or covered areas for crop production under the
Law amending the Mineral Oil Tax Law, the Law on the further
development of the ecological tax reform and the Guidelines Imple­
mentation Law is compatible with the common market in all
other respects.

Germany shall keep the Commission informed of
to implement

1.
progress of
the national proceedings
Decision until those proceedings have been completed.

the
this

2. Within two months from notification of this Decision,
Germany shall submit the following information:

Article 3

Germany shall withdraw the part of the scheme referred to in
Article 1.

Article 4

(a)

the list of beneficiaries that have received aid under the
scheme referred to in Article 1 and the total amount of
aid received by each of them under the scheme;

(b) the total amount (principal and recovery interest) to be

recovered from each beneficiary;

Germany shall take all necessary measures to recover from

1.
the beneficiaries the aid referred to in Article 1.

(c) a detailed description of the measures already taken and

planned to comply with this Decision;

The aid to be recovered shall

include interest from the
2.
date on which the aid became available to the beneficiaries
until the date on which it is actually recovered.

(d) documents demonstrating that the beneficiaries have been

ordered to repay the aid.

Interest shall be calculated in accordance with Chapter V of
Commission Regulation (EC) No 794/2004.

Germany shall cancel all payment of outstanding aid
the

3.
referred to in Article 1 with effect
present decision.

from the date of

Recovery

shall be

4.
accordance with the procedures of national
these allow the immediate and effective execution of
Decision.

effected without delay

and in
law, provided
this

following notification of
the request of

this
3. Within two months
the Commission
Decision, Germany shall at
submit a report detailing the measures taken or planned to
comply with this Decision. That
report shall also provide
detailed information on the amounts of aid and recovery
interest already repaid by each beneficiary.

Article 6

This Decision is addressed to the Federal Republic of Germany.

Done at Brussels, 11 March 2008.

Germany shall ensure that this Decision is implemented

5.
within four months of the date of its notification.

For the Commission

Mariann FISCHER BOEL
Member of the Commission

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ANNEX I

ENERGY TAXATION

Heating oil

Year

Standard rate of
taxation

Reduction pursuant to s. 25(3a) first
sentence, No 1,2 in conjunction with s. 25(4)
of the Mineral Oil Tax Law
since 1 August 2006: s. 54(2)(1) in
conjunction with s. 54(3) of the Energy
Taxation Law

Reduction pursuant to s. 25(3a) first
sentence, No 1,4 of the Mineral Oil Tax Law
since 1 August 2006: s. 58(2)(1) of the Energy
Taxation Law
C 39/2005

Net taxation

EU minimum
tax

in EUR/1 000 l

until 31.3.1999

40,90 (1)

as of 1.4.1999

61,35 (2)

2000

2001

2002

2003

2004

2005

2006

61,35 (2)

61,35 (2)

61,35

61,35

61,35

61,35

61,35

16,36

16,36

8,18

8,18

8,18

8,18

40,90

40,90

40,90

40,90

40,90

40,90

4,09 (3)

18,00 (5)

4,09 (3)

18,00 (5)

12,27 (4)

18,00 (5)

12,27 (4)

21,00 (6)

12,27 (4)

21,00 (6)

12,27 (4)

21,00 (6)

(1) Until 31 March 1999, the standard rate of taxation on heating oil (HEL) was DM 80,00/1 000 litres. Figures have been provided in euro to facilitate comparison

(exchange rate: EUR 1 = DM 1,95583).

(2) As of 1 April 1999, the standard rate of taxation on heating oil (HEL) was DM 120,00/1 000 litres. Figures have been provided in euro to facilitate comparison (exchange

rate: EUR 1 = DM 1,95583).

(3) For the sake of simplicity, the net taxation figure does not take account of the tax ‘floor’ (deductible) of EUR 409 provided for by s. 25(4) of the Mineral Oil Tax Law. The

actual net taxation figure depends on the amount consumed.

(4) For the sake of simplicity, the net taxation figure does not take account of the tax ‘floor’ (deductible) of EUR 205 provided for by s. 25(4) of the Mineral Oil Tax Law (as

of 1 August 2006: s. 54(3) of the Energy Tax Law). The actual net taxation figure depends on the amount consumed.

(5) Minimum rate of taxation referred to in Article 5(3) of Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral

oils.

(6) Minimum rate of taxation referred to in Article 4(1) in conjunction with Annex I Table C of Council Directive 2003/96/EC of 27 October 2003 restructuring the

Community framework for the taxation of energy products and electricity.

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Natural gas

Year

Standard rate of
taxation

Reduction pursuant to s. 25(3a) first
sentence, No 3,2 in conjunction with s. 25(4)
of the Mineral Oil Tax Law
since 1 August 2006: s. 54(2)(2) in
conjunction with s. 54(3) of the Energy
Taxation Law

Reduction pursuant to s. 25(3a) first
sentence, No 3,4 of the Mineral Oil Tax Law
since 1 August 2006: s. 58(2)(2) of the Energy
Taxation Law
C 39/2005

Net taxation

EU minimum
tax

in EUR/MWh

until 31.3.1999

1,87 (1)

as of 1.4.1999

3,476 (2)

2000

2001

3,476 (2)

3,476 (2)

2002

3,476

2003

2004

2005

2006

5,50

5,50

5,50

5,50

1,308

1,308

1,464

1,464

1,464

1,464

1,84 (3)

1,84 (3)

3,00

3,00

3,00

3,00

0,328 (4)

0,328 (4)

1,036 (5)

not
harmonised

not
harmonised

not
harmonised

1,036 (5)

0,54 (6) (7)

1,036 (5)

0,54 (6) (7)

1,036 (5)

0,54 (6) (7)

(1) Until 31 March 1999, the standard rate of taxation on natural gas was DM 3,60/MWh. Figures have been provided in euro to facilitate comparison (exchange rate:

EUR 1 = DM 1,95583).

(2) From 1 April 1999 until 31 December 2001, the standard rate of taxation on natural gas was DM 6,80/MWh. Figures have been provided in euro to facilitate comparison

(exchange rate: EUR 1 = DM 1,95583).

(3) Amount of tax reduction pursuant to s. 25(3a)(3.4) of the Mineral Oil Tax Law of 1 August 2002 (Federal Law Gazette Part I, p. 2778).
(4) For the sake of simplicity, the net taxation figure does not take account of the tax ‘floor’ (deductible) of EUR 409 provided for by s. 25(4) of the Mineral Oil Tax Law. The

actual net taxation figure depends on the amount consumed.

(5) For the sake of simplicity, the net taxation figure does not take account of the tax ‘floor’ (deductible) of EUR 205 provided for by s. 25(4) of the Mineral Oil Tax Law. The

actual net taxation figure depends on the amount consumed.

(6) Minimum rate of taxation referred to in Article 4(1) in conjunction with Annex I Table C of Council Directive 2003/96/EC of 27 October 2003 restructuring the

Community framework for the taxation of energy products and electricity.

(7) Converted into MWh (Table C: 0,15/0,30 euro/gigajoule based on gross calorific value).

5.9.2008

EN

Official Journal of the European Union

L 238/25

Liquid gas

Year

Standard rate of
taxation

Reduction pursuant to s. 25(3a) first
sentence, No 4,2 in conjunction with s. 25(4)
of the Mineral Oil Tax Law
since 1 August 2006: s. 54(2)(3) in
conjunction with s. 54(3) of the Energy
Taxation Law

Reduction pursuant to s. 25(3a) first
sentence, No 4,4 of the Mineral Oil Tax Law
since 1 August 2006: s. 58(2)(3) of the Energy
Taxation Law
C 39/2005

Net taxation

EU minimum
tax

in EUR/1 000 kg

until 31.3.1999

25,56 (1)

as of 1.4.1999

38,34 (2)

2000

2001

2002

2003

2004

2005

2006

38,34 (2)

38,34 (2)

38,34

60,60

60,60

60,60

60,60

10,22

10,22

14,02

14,02

14,02

14,02

25,56

25,56

38,90

38,90

38,90

38,90

2,56 (3)

0,00 (5)

2,56 (3)

0,00 (5)

7,68 (4)

0,00 (5)

7,68 (4)

0,00 (6)

7,68 (4)

0,00 (6)

7,68 (4)

0,00 (6)

(1) Until 31 March 1999, the standard rate of taxation on liquid gas was DM 50,00/1 000 kg. Figures have been provided in euro to facilitate comparison (exchange rate:

EUR 1 = DM 1,95583).

(2) From 1 April 1999 until 31 December 2001, the standard rate of taxation on liquid gas was DM 75,00/1 000 kg. Figures have been provided in euro to facilitate

comparison (exchange rate: EUR 1 = DM 1,95583).

(3) For the sake of simplicity, the net taxation figure does not take account of the tax ‘floor’ (deductible) of EUR 409 provided for by s. 25(4) of the Mineral Oil Tax Law. The

actual net taxation figure depends on the amount consumed.

(4) For the sake of simplicity, the net taxation figure does not take account of the tax ‘floor’ (deductible) of EUR 205 provided for by s. 25(4) of the Mineral Oil Tax Law. The

actual net taxation figure depends on the amount consumed.

(5) Minimum rate of taxation referred to in Article 6(3) of Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral

oils.

(6) Minimum rate of taxation referred to in Article 4(1) in conjunction with Annex I Table C of Council Directive 2003/96/EC of 27 October 2003 restructuring the

Community framework for the taxation of energy products and electricity.

L 238/26

EN

Official Journal of the European Union

5.9.2008

ANNEX II

Information about the amounts of aid received, to be recovered and already recovered

Identity of the beneficiary

Total amount of aid
received under the
scheme (°)

Total amount of aid to be
recovered (°)
(principal)

Total amount of aid already recovered (°)

Principal

Recovery interest

(°) National currency in millions.