Jan De Nul NV v Hauptzollamt Oldenburg.
Date: 2007-03-01
20. Concerning the term ‘Community waters’, which appears in Article 8(1)(c) and is not defined, it should be mentioned that the interpretation of a provision of Community law must particularly take into account the context in which it occurs and the objects of the rules of which it is part (see C‑17/03 VEMW and Others  [2005] ECR I-4983, paragraph 41 and the case-law cited).
21. To that effect, it appears from the third and fifth recitals in the preamble to Directive 92/81 that the latter is intended to render more precise a number of common definitions for mineral oil products which are to be subject to the general excise system and to lay down certain exemptions relating to those products which are obligatory at Community level (see C-389/02 Deutsche See-Bestattungs-Genossenschaft  [2004] ECR I-3537, paragraphs 17 and 18). It is also apparent both from those recitals and from the title of Directive 92/81 that those common definitions and the exemptions laid down are intended to promote the establishment and proper functioning of the internal market and to set up a harmonised system in respect of the structures of excise duties on mineral oils at Community level.
22. Consequently, the definitions relating to the products governed by Directive 92/81 and the exemptions applicable to them should be interpreted independently on the basis of the wording of the provisions in question and on the purpose of the directive (see Deutsche See-Bestattungs-Genossenschaft , paragraph 19).
23. An independent interpretation of those exemptions is all the more essential because Article 8(1) of Directive 92/81 imposes on the Member States the obligation not to levy the harmonised excise duty on mineral oils supplied for use as fuel for a number of activities set out in that provision (see Case C-346/97 Braathens  [1999] ECR I‑3419, paragraph 31, and Deutsche See-Bestattungs-Genossenschaft , paragraph 20). Any divergent interpretation at national level of those exemption obligations provided for in Directive 92/81 would not only undermine the objectives of the Community legislation and legal certainty, but could introduce unequal treatment between the economic operators concerned (see Deutsche See-Bestattungs-Genossenschaft , paragraph 21).
24. With regard to Article 8(1), it must be noted that the obligatory exemption for mineral oils used as fuel for the purposes of navigation within Community waters is designed to facilitate intracommunity trade, particularly the movement of goods and the freedom to provide services capable of taking place on the waters concerned.
25. By the exemption concerned, the Community legislature intended to promote the equality of certain tax conditions under which the transport undertakings or other services which ply the waters concerned operate.
28. Finally, it should be noted that Directive 92/81 also has as its objective to ensure the free movement of mineral oils in the internal market, and to avoid distortions of competition which could stem from variations in the structures of excise duties from one Member State to another (see C-240/01 Commission  v Germany  [2004] ECR I-4733, paragraphs 39 and 44).
29. In those circumstances, the system laid down by Article 8(2) of Directive 92/81, which concerns the possibility for Member States of applying total or partial exemptions or reductions in the rate of duty to mineral oils used under fiscal control, and particularly the concept of navigation on inland waterways, appearing in Article 8(2)(b), cannot be a conclusive factor in interpreting the extent of the obligatory exemptions provided for in Article 8(1).
32. The answer to the first question raised must therefore be that the term ‘Community waters’ within the meaning of the first subparagraph of Article 8(1)(c) of Directive 92/81 relates to all waters which can be used by all sea‑going vessels, including those which have the greatest capacity, capable of travelling maritime waterways for commercial purposes.
The second question
36. As for the term ‘navigation’ within the meaning of the first subparagraph of Article 8(1)(c) of Directive 92/81, the Court, at paragraph 23 of its judgment in Deutsche See-Bastattungs‑Genossenschaft , declared that all navigation activity for commercial purposes comes within the scope of the exemption from the harmonised excise duty provided for in that provision.  At paragraph 25 of that judgment, the Court stated that that provision does not make any distinction as to the purpose of the navigation referred to, given that the distortions of competition which the provisions of that directive are intended to avoid can arise whatever the type of commercial navigation at issue.
37. It thus follows from the judgment in Deutsche See-Bestattungs-Genossenschaft  that the purpose for which the journey is effected is irrelevant since it concerns navigation involving a provision of services for consideration.
40. Consequently, the answer to the second question must be that manoeuvres carried out by a hopper dredger during its operations of pumping and discharge of materials, that is to say, journeys inherent in the carrying out of dredging activities, come within the scope of the term ‘navigation’ as used in the first subparagraph of Article 8(1)(c) of Directive 92/81.
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