Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt.
Date: 2009-09-10
33. It must be pointed out at the start that, although, according to Article 1 thereof, Directive 2003/30 aims at promoting the use of biofuels to replace diesel or petrol for transport purposes in each Member State, it does not impose any binding objective on the Member States with regard to the placing on the market of a minimum proportion of biofuels.
34. As is clear from the wording of Article 3(1)(a) thereof, the directive merely provides, in its own terms, that the Member States ‘should’ attain such a minimum proportion by setting national ‘indicative’ targets, that proportion, calculated on the basis of energy content, being fixed by Article 3(1)(b) at 2% of all petrol and diesel for transport purposes placed on their markets by 31 December 2005 and at 5.75% by 31 December 2010.
35. It must be pointed out that Directive 2003/30 also does not impose any requirements on the Member States in regard to the method of attaining those indicative targets, but leaves them freedom of choice in this regard as to the type of measures to be adopted, thus leaving them a wide discretion to take account, in particular, of the availability of resources and raw materials and of national policies to promote biofuels, as can be seen from recital 20 to the directive.
36. It follows that the provisions of Directive 2003/30 do not require the Member States to introduce, or maintain in force, a tax exemption scheme for biofuels. It is clear in that regard from recital 19 to the directive that, although a tax exemption scheme is one of the means available to the Member States for attaining the objectives laid down in the directive, other means may also be envisaged, such as financial assistance for the processing industry and the establishment of a compulsory rate of biofuels for oil companies.
37. Moreover, it is apparent from Article 3(4) of Directive 2003/30 that the Member States also enjoy a wide discretion with regard to the products which they wish to promote in order to attain the objectives laid down in the directive, since they may choose to give priority to the promotion of certain types of fuels by taking account of their overall cost-effective climate and environmental balance, while also taking into account competitiveness and security of supply.
38. In those circumstances, it must be decided that no right to a tax exemption can be deduced from the provisions of the directive, particularly in regard to a specific product.
39. Quite the contrary, it is clear from Article 1 of Directive 2003/96 that the Member States are, in principle, required to tax a product such as the one at issue in the main proceedings, since that product, which is composed of a blend of fossil gas oil falling within CN heading 2710, and of vegetable oil, in this case colza oil, falling within CN heading 1514, and of additives, which are intended to be used as heating fuel or motor fuel, constitutes, by virtue of Article 2(1)(a) and (b) and the second subparagraph of Article 2(3) of the abovementioned directive, an ‘energy product’ within the meaning of Article 1 (see, to that effect, Case C‑517/07 Afton Chemical  [2008] ECR I‑0000, paragraph 40).
40. However, Article 16(1) of Directive 2003/96 provides that the Member States may apply an exemption or a reduced rate of taxation on such energy products (see, to that effect, Joined Cases C‑145/06 and C‑146/06 Fendt Italiana  [2007] ECR I‑5869, paragraph 36).
43. It must be recalled that the principles of legal certainty and protection of legitimate expectations form part of the Community legal order. On that basis, these principles must be respected by the Community institutions, but also by Member States in the exercise of the powers conferred on them by Community directives (see, to that effect, Case C‑381/97 Belgocodex  [1998] ECR I‑8153, paragraph 26; Case C‑376/02 ‘ Goed Wonen ’ [2005] ECR I-3445, paragraph 32; and Case C‑271/06 Netto Supermarkt  [2008] ECR I‑771, paragraph 18).
45. According to settled case-law, it is for the referring court alone to determine whether such rules comply with those principles (see, inter alia, Case C‑384/04 Federation of Technological Industries and Others  [2006] ECR I‑4191, paragraph 34; Joined Cases C‑181/04 to C‑183/04 Elmeka  [2006] ECR I‑8167, paragraphs 35 and 36, and Case C‑347/06 ASM Brescia  [2008] ECR I‑0000, paragraph 72), the Court, in a reference for a preliminary ruling under Article 234 EC, being solely competent to provide the national court with all the criteria for the interpretation of Community law which may enable it to determine the issue of compatibility (see, inter alia, Joined Cases C‑286/94, C‑340/95, C‑401/95 and C‑47/96 Molenheide and Others  [1997] ECR I‑7281, paragraph 49).
46. It should be recalled in that regard that, according to the case-law, the principle of legal certainty, the corollary of which is the principle of the protection of legitimate expectations, requires, on the one hand, that rules of law must be clear and precise and, on the other, that their application must be foreseeable by those subject to them (see, inter alia, Case C‑63/93 Duff and Others  [1996] ECR I‑569, paragraph 20; Case C‑107/97 Rombi and Arkopharma  [2000] ECR I‑3367, paragraph 66; and Case C‑17/03 VEMW and Others  [2005] ECR I‑4983, paragraph 80). That requirement must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them (Case C‑17/01 Sudholz  [2004] ECR I‑4243, paragraph 34).
49. It must, however, be recalled that, as the Court has already ruled, the principle of legal certainty does not require that there be no legislative amendment, requiring as it does, rather, that the legislature take account of the particular situations of traders and provide, where appropriate, adaptations to the application of the new legal rules (see VEMW and Others , paragraph 81).
52. It must be accepted that a trader, such as the applicant in the main proceedings, who commenced his activities under the tax exemption scheme in favour of biofuels at issue in the main proceedings, and who, to that end, made costly investments, could see his interests considerably affected by the withdrawal of that scheme before the date announced, all the more so if that withdrawal takes place suddenly and unforeseeably, without leaving him enough time to adapt to the new legal situation.
53. It is clear from the Court’s settled case-law that any economic operator on whose part the national authorities have promoted reasonable expectations may rely on the principle of the protection of legitimate expectations. However, where a prudent and circumspect economic operator could have foreseen that the adoption of a measure is likely to affect his interests, he cannot plead that principle if the measure is adopted. Furthermore, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the national authorities in the exercise of their discretionary power will be maintained (see, to that effect, in particular, Joined Cases C‑37/02 and C‑38/02 Di Lenardo and Dilexport  [2004] ECR I‑6911, paragraph 70 and the case-law cited, and Case C‑310/04 Spain  v Council  [2006] ECR I‑7285, paragraph 81).
54. As regards the expectation which a taxable person might have as to the application of a tax advantage, the Court has already held that when a directive on fiscal matters gives wide powers to the Member States, a legislative amendment adopted under the directive cannot be considered to be unforeseeable (Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep  [2004] ECR I‑5337, paragraph 66).
57. However, it is for the national court to determine whether a prudent and circumspect economic operator could have foreseen the possibility of such a withdrawal in a context such as that of the main proceedings. As the case concerns a scheme laid down under national legislation, the procedures for dissemination of information normally used by the Member State which adopted it and the circumstances of the case must be taken into account when the national court makes an overall and specific assessment of the question whether the legitimate expectations of the economic operators covered by those rules were duly respected in the specific case (see, to that effect, ‘ Goed Wonen ’, paragraph 45).