Braathens Sverige AB v Riksskatteverket.
Date: 1999-06-10
14 It should be noted at the outset that, according to settled case-law, it is not for the Court, in the context of Article 177 of the Treaty, 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, in particular, Case 6/64 Costa v ENEL [1964] ECR 585).
22 It must be observed that the tax at issue is calculated on the basis of data supplied by the national civil aviation authority on fuel consumption and emissions of hydrocarbons and nitric oxide by the relevant type of aircraft on an average flight.
23 By virtue of Article 1(1), Directive 92/12 is concerned with products subject to excise duties and other indirect taxes which are levied, even if indirectly, on the consumption of such products.  Moreover, as Braathens and the Commission have correctly pointed out, there is a direct and inseverable link between fuel consumption and the polluting substances referred to in the 1988 Law which are emitted in the course of such consumption, so that the tax at issue, as regards both the part calculated by reference to the emissions of hydrocarbons and nitric oxide and the part determined by reference to fuel consumption, which relates to carbon dioxide emissions, must be regarded as levied on consumption of the fuel itself for the purposes of Directives 92/12 and 92/81.
24 In that connection, it is clear from Article 8(1)(b) of Directive 92/81 that a tax of the kind at issue in this case is incompatible with the harmonised tax system introduced by the abovementioned directives.  To allow the Member States to levy another indirect tax on products which, as in this case, must be exempted from harmonised excise duty under Article 8(1)(b) of Directive 92/81 would render that provision entirely ineffective.
25 A Member State which has introduced such a tax cannot therefore rely on the right conferred by Article 3(2) of Directive 92/12 to maintain or introduce national taxes for specific purposes in respect of products subject to the harmonised excise duty.
30 Although Directive 92/81 allows the Member States a varying degree of latitude in implementing certain of its provisions, individuals may not for that reason be denied the right to rely on any provisions which, owing to their particular subject-matter, are capable of being severed from the general body of provisions and applied as such (see, mutatis mutandis, paragraph 29 of Becker, cited above).
31 That is the position here.  Article 8(1)(b) of Directive 92/81 imposes on the Member States, first, the clear and precise obligation not to levy the harmonised excise duty on fuel used for the purpose of air navigation other than private pleasure flying.  Second, the degree of latitude afforded to Member States by the introductory wording of Article 8(1), whereby exemptions are granted by the Member States  `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', cannot detract from the unconditional nature of the obligation imposed by that provision to grant exemption (see, mutatis mutandis, paragraphs 32 to 35 of Becker, cited above).