Fendt Italiana Srl v Agenzia Dogane - Ufficio Dogane di Trento.
Date: 2007-07-05
23. In paragraph 30 of Commission  v Italy , the Court held that, under Article 8(1)(a) and Article 2(2) of Directive 92/81, in conjunction with Article 2 of Directive 92/82, lubricating oils may be subject to excise duty only if intended for use, offered for sale or used as motor fuel or heating fuel whereas, in other cases, they must be exempted from the harmonised excise duty. In this connection, the Court pointed out in paragraphs 31 and 32 of that judgment that to allow the Member States to levy another indirect tax on products which must be exempted from harmonised excise duty would deprive Article 8(1)(a) of Directive 92/81 of all useful effect.
30. As the Commission has rightly pointed out, it is not for the Court, in the context of the procedure provided for in Article 234 EC, to determine whether national provisions are compatible with Community law.  However, the Court may provide the national court with all the criteria for the interpretation of Community law which may enable it to assess whether those provisions are so compatible in order to give judgment in the proceedings before it (see, inter alia, Case C‑346/97 Braathens  [1999] ECR I‑3419, paragraph 14).
32. Pursuant to Article 1 of Directive 2003/96, Member States are to impose taxation on energy products and electricity in accordance with that directive, which seeks to impose, as is apparent from recitals 2 and 3 thereof, minimum levels of taxation at Community level for most energy products.
35. According to recital 22 of Directive 2003/96, energy products should essentially be subject to a Community framework when used as heating fuel or motor fuel and it is thus in the nature and the logic of the tax system to exclude from the scope of the framework non‑fuel uses of energy products.
36. In contrast to Article 8(1)(a) of Directive 92/81, which provided that Member States were to exempt mineral oils used for purposes other than as motor fuels or as heating fuels, Article 14 of Directive 2003/96, which sets out an exhaustive list of the exemptions which the Member States must apply, does not refer to energy products used other than as motor fuels or as heating fuels. By the same token, neither Article 15 nor Article 16 of Directive 2003/96, which provide for certain optional exemptions for the Member States, refers to such products.
37. If follows that, as the Advocate General observed in essence in point 37 of her Opinion, although mineral oils used other than as motor fuel or heating fuel fell within the scope of Directive 92/81 – since, as the Court held in paragraphs 30 and 33 of Commission  v Italy, it was compulsory for those products to be exempted from the harmonised excise duty – it was the intention of the Community legislature, on the occasion of the adoption of Directive 2003/96, to change that arrangement by excluding such products from the scope of that directive. That fact, moreover, was acknowledged by Fendt itself at the hearing.
38. Therefore, as the Italian and Cypriot Governments and the Commission submit, since 1 January 2004 – the date from which Directive 92/81 has been repealed, in accordance with Article 30 of Directive 2003/96 – Member States have been able to tax energy products, such as lubricating oils, used other than as motor fuels or as heating fuels.
41. Nevertheless, while the Member States are competent to tax energy products, such as lubricating oils, used other than as motor fuels or as heating fuels, they must exercise their competence in that field consistently with Community law (see, to that effect, Case C‑279/93 Schumacker  [1995] ECR I‑225, paragraph 21, and Case C‑347/04 Rewe Zentralfinanz  [2007] ECR I-0000, paragraph 21 and the case-law cited).
42. Specifically, Member States must comply not only with the provisions of the EC Treaty, in particular Articles 25 EC and 90 EC, but also – as the Cypriot Government and the Commission rightly point out – with the first subparagraph of Article 3(3) of Directive 92/12.
43. Even though lubricating oils used other than as motor fuels or as heating fuels fall within the definition of ‘energy products’ for the purposes of Article 2(1)(b) of Directive 2003/96, they are explicitly excluded from the scope of that directive by the first indent of Article 2(4)(b) thereof and therefore are not covered by the harmonised excise duty arrangements.
44. In those circumstances it should be held that the lubricating oils in question, which are not subject to harmonised excise duty, are products other than those referred to in the first indent of Article 3(1) of Directive 92/12 (see, to that effect, Braathens , paragraphs 24 and 25, and Commission  v Italy, paragraphs 31 and 33) so that, in accordance with the first subparagraph of Article 3(3) thereof, Member States are to retain the right to introduce or maintain taxes which are levied on those products provided that those taxes do not give rise to border-crossing formalities in trade between Member  States.