ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna v Dyrektor Izby Celnej we Wrocławiu.
Date: 2016-06-02
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Moreover, that court harbours doubts as to whether the requirement to compile and submit such a list is proportionate in the light of the objective pursued, namely the prevention of tax avoidance and evasion. It takes the view that that requirement is of a formal and secondary nature allowing only a preliminary analysis of the intended use of the products concerned. In that regard, it refers to the case-law of the Court on value added tax according to which, on the one hand, the deduction of input tax must be allowed if the substantive requirements are satisfied, even if the taxable person has failed to comply with some of the formal requirements (see judgment of 12 July 2012 in EMS-Bulgaria Transport, C‑284/11, EU:C:2012:458, paragraphs 61 and 62) and, on the other hand, national law making export exemptions subject to a time limit for dispatch without allowing, on the basis of failure to comply with the time limit, the reimbursement of value added tax already paid even if the taxable person provided evidence that the goods had left the customs territory of the European Union, which goes beyond what is necessary in order to attain the objective of combating tax avoidance and evasion (see judgment of 19 December 2013 in BDV Hungary Trading, C‑563/12, EU:C:2013:854, paragraph 39).
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In the first place, it must be recalled that general principles of law, which include the principle of proportionality, form part of the EU legal order. They must accordingly be observed not only by the EU institutions but also by Member States in the exercise of the powers conferred on them by EU directives (see, to that effect, inter alia, judgments of 21 February 2008 in Netto Supermarkt, C‑271/06, EU:C:2008:105, paragraph 18, and of 10 September 2009 in Plantanol, C‑201/08, EU:C:2009:539, paragraph 43).
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Since Directive 2003/96 does not specify any particular control mechanism for the use of heating fuel nor measures to combat tax evasion connected with the sale of heating fuel, it is for Member States to provide such mechanisms and such measures in their national legislation, in conformity with EU law. In that regard, it follows from recital 9 of that directive that the Member States have discretion in the definition and implementation of policies appropriate to their national circumstances.
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On the other hand, the Court has already held that the scheme of Directive 2003/96 is founded on a clear distinction between motor fuels and heating fuels on the basis, in particular, of the criterion of use. The distinction between motor fuels and heating fuels, introduced in recitals 17 and 18 of that directive, is applied, inter alia, by Articles 7 to 9 of the directive, relating to the detailed rules for setting the minimum levels of taxation applicable, on the one hand, to heating fuels and, on the other, to motor fuels and to products used as motor fuels for specific industrial and commercial purposes (see, to that effect, judgment of 3 April 2014 in Kronos Titan and Rhein-Ruhr Beschichtungs-Service, C‑43/13 and C‑44/13, EU:C:2014:216, paragraph 28).
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Furthermore, recitals 3 and 4 of that directive state that the proper functioning of the internal market requires minimum levels of taxation to be laid down at EU level for most energy products and that appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to such functioning. It follows that the setting of minimum levels of taxation of products according to their use as either motor fuel or heating fuel contributes to the proper functioning of the internal market by precluding any distortion of competition between products used for the same purposes.
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It follows that both the general scheme and the purpose of Directive 2003/96 are based on the principle that energy products are taxed in accordance with their actual use.
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In those circumstances, the application of the rate of excise duty provided for motor fuels to the heating fuels at issue in the main proceedings because of the infringement of the requirement imposed by national law to submit a list of statements from purchasers within the time limits set, where it has been held that there was no doubt as to the intended use of those products, goes further than is necessary to prevent tax avoidance and evasion (see, by analogy, judgment of 27 September 2007 in Collée, C‑146/05, EU:C:2007:549, paragraph 29).
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In that context, it should be pointed out that there is nothing to prevent a Member State from providing for the imposition of a fine for the infringement of a requirement such as that of submitting to the competent authorities a list of statements from purchasers of heating fuel sold. The power which a Member State has to impose such a penalty must be exercised in accordance with EU law and its general principles, including the principle of proportionality. In order to assess whether that penalty is consistent with that principle, it is for the national courts to take into account, inter alia, the nature and degree of seriousness of the infringement which that penalty seeks to sanction and also the means of establishing its amount (see, by analogy, judgment of 19 July 2012 in Rēdlihs, C‑263/11, EU:C:2012:497, paragraphs 44 to 47).