CELEX: 62007CJ0517
Language: en
Date: 2008-12-18
Title: Judgment of the Court (Third Chamber) of 18 December 2008. # Afton Chemical Ltd v The Commissioners for Her Majesty's Revenue & Customs. # Reference for a preliminary ruling: High Court of Justice (England & Wales), Chancery Division - United Kingdom. # Directive 92/81/EEC - Excise duty on mineral oils - Article 2(2) and (3) and Article 8(1)(a) - Directive 2003/96/EC - Taxation of energy products and electricity - Article 2(2), (3) and (4)(b) - Scope - Fuel additives which are mineral oils or energy products but are not used as motor fuel - National taxation regime. # Case C-517/07.

Case C-517/07
      Afton Chemical Ltd
      v
      Commissioners for Her Majesty’s Revenue and Customs
      (Reference for a preliminary ruling from the Chancery Division of the High Court of Justice of England and Wales)
      (Directive 92/81/EEC – Excise duty on mineral oils – Article 2(2) and (3) and Article 8(1)(a) – Directive 2003/96/EC – Taxation of energy products and electricity – Article 2(2), (3) and (4)(b) – Scope – Fuel additives which are mineral oils or energy products but are not used as motor fuel – National taxation regime)
      Summary of the Judgment
      Tax provisions – Harmonisation of laws – Structures of excise duties on mineral oils – Directive 92/81 – Taxation of energy
            products and electricity – Directive 2003/96 – Scope 
      (Council Directives 92/81, Arts 2(3) and 8(1), and 2003/96, Art. 2(3) and (4))
      Articles 2(3) and 8(1) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, as regards
         the period ending on 31 December 2003, and Article 2(3) and (4) of Directive 2003/96 restructuring the Community framework
         for the taxation of energy products and electricity, as regards the period from 1 January to 31 October 2004, are to be interpreted
         as meaning that fuel additives which are ‘mineral oils’ within the meaning of Article 2(1) of Directive 92/81 or ‘energy products’
         within the meaning of Article 2(1) of Directive 2003/96, but which are not intended for use, offered for sale or used as motor
         fuel, must be made subject to the taxation regime imposed by those directives.
      
      By the expression ‘[i]n addition to the taxable products listed in paragraph 1’, the first sentence of the first subparagraph
         of Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 are intended to enshrine,
         explicitly, the inclusion, in the scope of their provisions, of all products which are intended for use, offered for sale
         or used as motor fuel, or as an additive or extender in motor fuels, including products which are ‘mineral oils’ or ‘energy
         products’ within the meaning of those directives.
      
      Moreover, it is clear from the general scheme and purpose of Directives 92/81 and 2003/96, which are intended to introduce
         a harmonised taxation regime for mineral oils and energy products, that the Community legislature intended to assimilate to
         motor fuels the additives added to them, whatever their nature, simply because they are added to those fuels, in order to
         make them subject to the same taxation regime as motor fuels. Consequently, the first sentence of the first subparagraph of
         Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 are intended to cover any
         product used as an additive, whether or not it is a ‘mineral oil’ or ‘energy product’ within the meaning of those directives.
      
      (see paras 36, 38, 40, 42, 44, operative part)
JUDGMENT OF THE COURT (Third Chamber)
      18 December 2008 (*)
      
      (Directive 92/81/EEC – Excise duty on mineral oils – Article 2(2) and (3) and Article 8(1)(a) – Directive 2003/96/EC – Taxation of energy products and electricity – Article 2(2), (3) and (4)(b) – Scope – Fuel additives which are mineral oils or energy products but are not used as motor fuel – National taxation regime)
      In Case C‑517/07,
      REFERENCE for a preliminary ruling under Article 234 EC from the Chancery Division of the High Court of Justice of England
         and Wales (United Kingdom), made by decision of 6 August 2007, received at the Court on 22 November 2007, in the proceedings
      
      Afton Chemical Limited
      v
      Commissioners for Her Majesty’s Revenue and Customs,
      THE COURT (Third Chamber),
      composed of A. Rosas, President of the Chamber, A. Ó Caoimh (Rapporteur), J.N. Cunha Rodrigues, U. Lõhmus and A. Arabadjiev,
         Judges,
      
      Advocate General: Y. Bot,
      Registrar: R. Şereş, Administrator,
      having regard to the written procedure and further to the hearing on 23 October 2008,
      after considering the observations submitted on behalf of:
      –        Afton Chemical Ltd, by P. Lasok QC and V. Sloane, Barrister, instructed by E. Philpott, Solicitor,
      –        the United Kingdom Government, by I. Rao, acting as Agent, and M. Angiolini, Barrister,
      –        the German Government, by M. Lumma and C. Blaschke, acting as Agents,
      –        the Greek Government, by K. Georgiadis, I. Bakopoulos and V. Karra, acting as Agents,
      –        the Italian Government, by R. Adam, acting as Agent, assisted by P. Gentili, avvocato dello stato,
      –        the Commission of the European Communities, by R. Lyal and W. Mölls, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation of Article 3 of Council Directive 92/12/EEC of 25 February
         1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products
         (OJ 1992 L 76, p. 1), the first subparagraph of Article 2(3) and Article 8(1)(a) of Council Directive 92/81/EEC of 19 October
         1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), as amended by Council
         Directive 94/74/EC of 22 December 1994 (OJ 1994 L 365, p. 46) (‘Directive 92/12’ and ‘Directive 92/81’ respectively), and
         the second subparagraph of Article 2(3) and the first indent of Article 2(4)(b) of Council Directive 2003/96/EC of 27 October
         2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).
      
      2        The reference was made in the context of a dispute between Afton Chemical Limited (‘Afton’) and the Commissioners for Her
         Majesty’s Revenue and Customs (‘the Commissioners’), who are responsible, in the United Kingdom, for the management and collection
         of excise duties and taxes on energy products, concerning the payment of excise duty on motor fuel additives for the period
         from 19 November 2000 to 31 October 2004.
      
       Legal context
       Community legislation
       Directive 92/12
      3        Article 1 of Directive 92/12 states:
      
      ‘1.      This Directive lays 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.
      
      2.      The particular provisions relating to the structures and rates of duty on products subject to excise duty shall be set out
         in specific Directives.’
      
      4        Article 3(1) and (2) and the first paragraph of Article 3(3) of that directive provide:
      
      ‘1.      This Directive shall apply at Community level to the following products as defined in the relevant Directives:
      –        mineral oils,
      …
      2.      The products listed in paragraph 1 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.
      
      3.      Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in
         paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.’
      
       Directives 92/81 and 92/82/EEC
      5        Article 1(1) of Directive 92/81 is in these terms:
      
      ‘Member States shall impose a harmonised excise duty on mineral oils in accordance with this Directive.’
      6        Article 2 of Directive 92/81 provides:
      
      ‘1.      For the purposes of this Directive “mineral oil” shall cover:
      …
      (k)      products falling within [Combined Nomenclature code (‘CN code’)] 3811;
      …
      2.      Mineral oils other than those for which a level of duty is specified in … Directive 92/82/EEC shall be subject to excise duty
         if intended for use, offered for sale or used as heating fuel or motor fuel. The rate of duty to be charged shall be fixed,
         according to use, at the rate for the equivalent heating fuel or motor fuel.
      
      3.      In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as motor
         fuel, or as an additive or extender in motor fuels, shall be taxed as motor fuel. Any other hydrocarbon, except for coal,
         lignite, peat or other similar solid hydrocarbons or natural gas, intended for use, offered for sale or used for heating purposes
         shall be taxed at the rate for the equivalent mineral oil.
      
      …
      4.      References in this Directive to codes of the [CN] shall be to those of the version of the [CN] in force on 1 October 1994.’
      7        Article 8(1)(a) of Directive 92/81 states:
      
      ‘In addition to the general provisions set out in Directive 92/12 … on exempt uses of excisable products, 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:
      
      (a)      mineral oils used for purposes other than as motor fuels or as heating fuels’.
      8        Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992
         L 316, p. 19), as amended by Directive 94/74 (‘Directive 92/82’), sets a minimum rate of excise duty for certain mineral oils.
         Article 2 lists the mineral oils covered by Directive 92/82, and products falling within CN code 3811 are not included.
      
       Directive 2003/96
      9        Recitals 1 to 3 in the preamble to Directive 2003/96 are worded as follows:
      
      ‘(1)      The scope of … Directive 92/81 … and of … Directive 92/82 … is restricted to mineral oils.
      (2)      The absence of Community provisions imposing a minimum rate of taxation on electricity and energy products other than mineral
         oils may adversely affect the proper functioning of the internal market.
      
      (3)      The proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum
         levels of taxation to be laid down at Community level for most energy products, including electricity, natural gas and coal.’
      
      10      In addition, recital 22 in the preamble to Directive 2003/96 states:
      
      ‘Energy products should essentially be subject to a Community framework when used as heating fuel or motor fuel. To that extent,
         it is in the nature and the logic of the tax system to exclude from the scope of the framework dual uses and non-fuel uses
         of energy products as well as mineralogical processes. Electricity used in similar ways should be treated on an equal footing.’
      
      11      Article 1 of Directive 2003/96 provides that the Member States are to impose taxation on energy products and electricity in
         accordance with that directive.
      
      12      Article 2 of that directive states:
      
      ‘1.      For the purposes of this Directive, the term “energy products” shall apply to products:
      …
      (f)      falling within CN code 3811;
      …
      3.      When intended for use, offered for sale or used as motor fuel or heating fuel, energy products other than those for which
         a level of taxation is specified in this Directive shall be taxed according to use, at the rate for the equivalent heating
         fuel or motor fuel.
      
      In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as motor
         fuel, or as an additive or extender in motor fuels, shall be taxed at the rate for the equivalent motor fuel.
      
      In addition to the taxable products listed in paragraph 1, any other hydrocarbon, except for peat, intended for use, offered
         for sale or used for heating purposes shall be taxed at the rate for the equivalent energy product.
      
      4.      This Directive shall not apply to:
      …
      (b)      the following uses of energy products and electricity:
      –        energy products used for purposes other than as motor fuels or as heating fuels,
      …
      5.      References in this Directive to [CN] codes … shall be to those of Commission Regulation (EC) No 2031/2001 of 6 August 2001,
         amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs
         Tariff [(OJ 2001 L 279, p. 1)].’
      
      13      Article 3 of Directive 2003/96 states:
      
      ‘References in Directive 92/12 … to “mineral oils” and “excise duty”, insofar as it applies to mineral oils, shall be interpreted
         as covering all energy products, electricity and national indirect taxes referred to respectively in Articles 2 and 4(2) of
         this Directive.’
      
      14      Article 28(1) and (2) of Directive 2003/96 provides: 
      
      ‘1.      Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive
         not later than 31 December 2003. They shall forthwith inform the Commission thereof. 
      
      2.      They shall apply these provisions from 1 January 2004, except the provisions laid down in Articles 16 and 18(1), which may
         be applied by the Member States from 1 January 2003.’
      
      15      Under Article 30 of that directive:
      
      ‘Notwithstanding Article 28(2), Directives 92/81 … and 92/82… shall be repealed as from 31 December 2003.’
       Legislation relating to the CN
      16      According to the versions of the CN referred to in Directives 92/81 and 2003/96, CN code 3811 includes ‘[a]nti-knock preparations,
         oxidation inhibitors, gum inhibitors, viscosity improvers, anti-corrosive preparations and other prepared additives, for mineral
         oils (including gasoline) or for other liquids used for the same purposes as mineral oils’.
      
       National legislation
      17      It is apparent from the written observations lodged by Afton, the United Kingdom of Great Britain and Northern Ireland and
         the Commission that Section 6A of the Hydrocarbon Oil Duties Act 1979 is worded as follows:
      
      ‘1.      A duty of excise shall be charged on the setting aside for a chargeable use by any person, or (where it has not already been
         charged under this section) on the chargeable use by any person, of any liquid which is not
      
      (a)      hydrocarbon oil,
      (b)      biodiesel,
      (c)      bioblend,
      (d)      bioethanol, or
      (e)      bioethanol blend.
      2.      In this section “chargeable use” in relation to any substance means the use of that substance –
      (a)      as fuel for any engine, motor or other machinery; or
      (b)      as an additive or extender in any substance so used.’
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      18      Afton makes various additives falling within CN code 3811, which are intended to be added to and mixed with motor fuels, usually
         in quantities of 1 to 1 000 or 1 to 2 000.
      
      19      The decision making the reference states that the additives produced by Afton are not intended for use, offered for sale or
         used as motor fuel. In particular, none of the additives is designed to function as fuel as such, or to power vehicles. Instead,
         they include one or more of the following components: cleaning agent, anti-foam, demulsifier, carrier fluid, solvent, cetane
         and lubricity improver, as well as corrosion inhibitor. They are consumed in the engine as part of the combustion process.
      
      20      Afton appealed to the VAT and Duties Tribunal against the Commissioners’ refusal to repay excise duty paid on those additives
         for the period from 19 November 2000 to 31 October 2004, amounting to GBP 2 825 215.61.
      
      21      By decision of 4 May 2007, the VAT and Duties Tribunal dismissed that appeal on the grounds that the first subparagraph of
         Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 impose a charge on all additives
         in motor fuels, whether produced from mineral oils or from other substances, and that, since those additives are deemed to
         be fuels, they are not exempted by Article 8(1)(a) of Directive 92/81 or the first indent of Article 2(4)(b) of Directive
         2003/96. 
      
      22      In those circumstances, the Chancery Division of the High Court of Justice of England and Wales, hearing the case on appeal,
         decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
      
      ‘1.      Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which
         are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under Article
         2(3) of Directive 92/81 …?
      
      2.      If the answer to the first question is affirmative, do such additives fall within the scope of the exemption under Article
         8(1) of Directive 92/81 …?
      
      3.      Do fuel additives such as those at issue, which are not intended for use, offered for sale or used as motor fuel but which
         are added to motor fuel for purposes other than powering the vehicle in which the fuel is used, fall to be taxed under the
         second paragraph of Article 2(3) of Directive 2003/96 …?
      
      4.      If the answer to the third question is affirmative, are such additives excluded from the scope of Directive 2003/96 … by virtue
         of the first indent of Article [2(4)(b)] of that Directive?
      
      5.      Is the duty imposed by the UK on the above fuel additives precluded by Community law and in particular, by Article 3 of Directive
         92/12 …?’ 
      
       The questions referred 
      23      By its first four questions, which it is appropriate to examine together, the national court asks, in essence, whether, first,
         Articles 2(3) and 8(1) of Directive 92/81 and, second, Article 2(3) and (4) of Directive 2003/96 are to be interpreted as
         meaning that fuel additives, such as those at issue in the main proceedings, which are ‘mineral oils’ within the meaning of
         Article 2(1) of Directive 92/81 or ‘energy products’ within the meaning of Article 2(1) of Directive 2003/96, but which are
         not intended for use, offered for sale or used as motor fuel, must be made subject to the taxation regime imposed by those
         directives.
      
      24      As is stated in the decision making the reference, those questions were raised in proceedings concerning the legality of excise
         duty on fuel additives paid, under the Hydrocarbon Oil Duties Act 1979, in respect of the period from 19 November 2000 to
         31 October 2004.
      
      25      In that regard, it must be recalled that, so far as concerns the period ending on 31 December 2003, the Member States were
         obliged, under Article 1(1) of Directive 92/81, to impose on ‘mineral oils’ within the meaning thereof a harmonised excise
         duty. From 1 January 2004, the Member States were thenceforth obliged, under Article 1 of Directive 2003/96, which repealed
         Directive 92/81, to tax ‘energy products’ within the meaning of Directive 2003/96, which is intended to impose, as stated
         in recitals 2 and 3 of its preamble, minimum levels of taxation at Community level for most of those energy products rather
         than for mineral oils alone (see, to that effect, Joined Cases C‑145/06 and C‑146/06 Fendt Italiana [2007] ECR I‑5869, paragraph 32).
      
      26      Under Article 2(1)(k), read in conjunction with Article 2(4), of Directive 92/81, and Article 2(1)(f), read in conjunction
         with Article 2(5), of Directive 2003/96, products, such as the fuel additives at issue in the main proceedings, which fall
         within CN code 3811, are ‘mineral oils’ or ‘energy products’, as the case may be, within the meaning of those directives.
      
      27      Under Article 2(2) of Directive 92/81 and the first subparagraph of Article 2(3) of Directive 2003/96, mineral oils and energy
         products for which, like the fuel additives at issue in the main proceedings, a level of taxation is not laid down, either
         by Directive 92/82 as regards the former, or by Directive 2003/96 as regards the latter, must, if they are intended for use,
         offered for sale or used as heating fuel or motor fuel, be taxed according to their use at the rate for the equivalent heating
         fuel or motor fuel.
      
      28      In this case, it is common ground, as recited in the first and third questions referred by the national court, that the additives
         at issue in the main proceedings, while they are intended to be added to motor fuels and, consequently, to be used in them,
         they are not intended for use, offered for sale or used as motor fuel. Accordingly, such additives are not within the charge
         imposed under Article 2(2) of Directive 92/81 or the first subparagraph of Article 2(3) of Directive 2003/96.
      
      29      However, in the terms of the first sentence of the first subparagraph of Article 2(3) of Directive 92/81 and of the second
         subparagraph of Article 2(3) of Directive 2003/96, ‘[i]n addition to the taxable products listed in paragraph 1, any product
         intended for use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels’ is to be taxed at
         the rate for the equivalent motor fuel.
      
      30      Afton submits that the additives at issue in the main proceedings are not, however, charged to duty under those provisions.
         According to Afton, it is apparent from their clear wording, in particular from the expression ‘in addition to the taxable
         products listed in paragraph 1’, that those provisions are residual and apply only to additional products which are not ‘mineral
         oils’ or ‘energy products’ listed respectively in Article 2(1) of those directives. Those provisions thus cover other products.
         An alternative interpretation, to the effect that those provisions include products already listed in Article 2(1), ignores
         the use of the prepositional phrase ‘in addition to’ and is incorrect because it would have the effect of requiring all products
         intended to be used as additives to be taxed, although that could have been achieved by a much simpler provision omitting
         the above introductory expression. Such an interpretation would also mean that those directives twice require mineral oils
         and energy products intended for use as motor fuel to be taxed. It would, moreover, be consistent with the objective pursued
         by the Community legislation if mineral oils and energy products were taxed only where they are used as motor fuel or heating
         fuel.
      
      31      However, in the light of all the terms of the relevant provisions of Directives 92/81 and 2003/96 and of the general scheme
         and purpose of those directives, that construction cannot be upheld.
      
      32      As regards, first, the wording of those provisions, it must indeed be admitted, as the Commission itself acknowledged at the
         hearing in reply to the Court’s questions, that the wording of Article 2 of Directive 92/81 and Directive 2003/96 could be
         clearer and more precise, as provisions instituting a taxation regime intended, after transposition into national law, to
         impose obligations on individuals. In particular, since Article 2(2) of Directive 92/81 and the first subparagraph of Article
         2(3) of Directive 2003/96 provide for the taxation of mineral oils and energy products, the taxation of fuel additives which,
         as in the main proceedings, match those descriptions, should, logically, be covered in those provisions. Yet, as follows from
         paragraph 28 of the present judgment, that is not the case.
      
      33      However, it is sufficiently clear from the wording of the first sentence of the first subparagraph of Article 2(3) of Directive
         92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 that fuel additives such as those at issue in the main
         proceedings are covered by the taxation regime imposed by those provisions.
      
      34      Indeed, contrary to Afton’s submission, the expression ‘[i]n addition to the taxable products listed in paragraph 1’ introducing
         each of those provisions cannot be understood as excluding from their scope products which are, respectively, ‘mineral oils’
         or ‘energy products’ within the meaning of Article 2(1) of those directives. 
      
      35      On the contrary, the prepositional phrase ‘in addition to’ is not, in its ordinary meaning, used to exclude but rather, to
         include. That purpose is clear from a number of the language versions of the first sentence of the first subparagraph of Article
         2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 (see, in addition to the English
         version, for example, the German (‘[n]eben’), Spanish (‘[a]demás’), Italian (‘[o]ltre’), Dutch (‘[n]aast’), Portuguese (‘[p]ara
         além’) and French (‘[o]utre’) versions). 
      
      36      It follows that, by the expression ‘[i]n addition to the taxable products listed in paragraph 1’, the first sentence of the
         first subparagraph of Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 are
         intended to enshrine, explicitly, the inclusion, in the scope of their provisions, of all products which are intended for
         use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels, including products which are ‘mineral
         oils’ or ‘energy products’ within the meaning of those directives.
      
      37      Such an interpretation based on the wording of Article 2 of those directives cannot be put in doubt by the fact that it leads,
         as regards mineral oils and energy products intended for use, offered for sale or used as motor fuel, to the repetition of
         the requirement for taxation already arising from Article 2(2) of Directive 92/81 and the first subparagraph of Article 2(3)
         of Directive 2003/96. In fact, such partial repetition in the provisions of those directives, regrettable as it may be, is
         explained by the residual nature of the first sentence of the first subparagraph of Article 2(3) of Directive 92/81 and the
         second subparagraph of Article 2(3) of Directive 2003/96, which are intended to make products of a different nature subject
         to the requirement for taxation.
      
      38      So far as concerns, secondly, the general scheme and purpose of Directives 92/81 and 2003/96, they are intended, according
         to Article 1 thereof, to introduce a harmonised taxation regime for mineral oils and energy products.
      
      39      The exclusion of fuel additives such as those at issue in the main proceedings from the scope of the first sentence of the
         first subparagraph of Article 2(3) of Directive 92/81 and the second subparagraph of Article 2(3) of Directive 2003/96 would
         lead to an inconsistent, even absurd, result, according to which those additives, which are mineral oils or energy products,
         would not be subject to the requirement for taxation imposed by those provisions, whereas it is not disputed that fuel additives
         which are not mineral oils or energy products are subject to that requirement under those provisions.
      
      40      In actual fact, it is apparent, on the contrary, that the Community legislature intended to assimilate to motor fuels the
         additives added to them, whatever their nature, simply because they are added to those fuels, in order to make them subject
         to the same taxation regime as motor fuels.
      
      41      In that regard, it is necessary also to point out, as did the Italian and United Kingdom Governments, that once an additive
         is added to motor fuel, it is no longer possible, without undertaking a detailed chemical analysis, to distinguish the motor
         fuel itself from the additive or extender mixed with it. In those circumstances, if, as Afton submits, fuel additives did
         not have to be taxed as motor fuel, there would be a risk of abuse since checks would, to say the least, be made difficult
         as, in each individual case, it would be necessary to analyse the content of the mixture in order to ascertain the ratio of
         motor fuel to additive contained in that mixture. 
      
      42      Consequently, it follows from the wording of the first sentence of the first subparagraph of Article 2(3) of Directive 92/81
         and the second subparagraph of Article 2(3) of Directive 2003/96 and from the general scheme and purpose of those two directives
         that, as all the governments which submitted written observations to the Court as well as the Commission argued, those provisions
         are intended to cover any product used as an additive, whether or not it is a ‘mineral oil’ or ‘energy product’ within the
         meaning of those directives.
      
      43      That conclusion cannot be undetermined by the provisions of Article 8(1)(a) of Directive 92/81 or Article 2(4)(b) of Directive
         2003/96, according to which mineral oils and energy products, used for purposes other than as motor fuels or heating fuels,
         must, respectively, be exempted from the harmonised excise duty or excluded from the scope of Directive 2003/96. Indeed, to
         apply those provisions to fuel additives, such as those at issue in the main proceedings, which are subject to an express
         requirement for taxation under the first sentence of the first subparagraph of Article 2(3) of Directive 92/81 and the second
         subparagraph of Article 2(3) of Directive 2003/96 would deprive those provisions of any useful effect (see, by analogy, Case
         C‑346/97 Braathens [1999] ECR I‑3419, paragraphs 24 and 25, and Case C‑437/01 Commission v Italy [2003] ECR I‑9861, paragraphs 31 to 33). 
      
      44      Accordingly, the reply to the first four questions must be that Articles 2(3) and 8(1) of Directive 92/81, as regards the
         period ending on 31 December 2003, and Article 2(3) and (4) of Directive 2003/96, as regards the period from 1 January to
         31 October 2004, are to be interpreted as meaning that fuel additives, such as those at issue in the main proceedings, which
         are ‘mineral oils’ within the meaning of Article 2(1) of Directive 92/81 or ‘energy products’ within the meaning of Article
         2(1) of Directive 2003/96, but which are not intended for use, offered for sale or used as motor fuel, must be made subject
         to the taxation regime imposed by those directives.
      
      45      In the light of that reply, there is no need to reply to the fifth question referred by the national court.
      
       Costs
      46      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Third Chamber) hereby rules:
      Article 2(3) and Article 8(1) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of
            excise duties on mineral oils, as amended by Council Directive 94/74/EC of 22 December 1994, as regards the period ending
            on 31 December 2003, and Article 2(3) and (4) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community
            framework for the taxation of energy products and electricity, as regards the period from 1 January to 31 October 2004, are
            to be interpreted as meaning that fuel additives, such as those at issue in the main proceedings, which are ‘mineral oils’
            within the meaning of Article 2(1) of Directive 92/81 or ‘energy products’ within the meaning of Article 2(1) of Directive
            2003/96, but which are not intended for use, offered for sale or used as motor fuel, must be made subject to the taxation
            regime imposed by those directives.
      [Signatures]
      * Language of the case: English.