Systeme Helmholz GmbH v Hauptzollamt Nürnberg.
Date: 2011-12-01
19. In order to reply to that question, it should be noted that the provisions of Directive 2003/96 concerning exemptions must receive an autonomous interpretation, based on their wording and on the objectives pursued by that directive (see, to that effect, Case C‑389/02 Deutsche See-Bestattungs-Genossenschaft  [2004] ECR I‑3537, paragraph 19; Case C‑391/05 Jan De Nul  [2007] ECR I‑1793, paragraph 22; and Case C‑505/10 Sea Fighter [2011] ECR I‑0000, paragraph 14).
21. It is apparent from the expression ‘other than for the carriage of passengers or goods or for the supply of services for consideration’ that the ‘air navigation’ covered by that exemption relates to the use of fuel where the aircraft is used directly for the supply of air services for consideration. In this context, therefore, the concept of ‘navigation’ implies that the supply of services for consideration is an inherent reason for the aircraft’s movements (see, to that effect, Sea Fighter , paragraph 18).
22. Moreover, that interpretation of Article 14(1)(b) of Directive 2003/96 is borne out by the travaux préparatoires  for that directive. In the proposal for a directive which resulted in the adoption of Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), the European Commission had planned, by introducing a tax exemption on air fuel, ‘to standardise the existing exemption for fuel supplied to international commercial flights, [extending it] to all commercial aviation’ (COM(90) 434 final). According to the Commission, ‘[that should have enabled] equal treatment [for] air travel between any two points within the Community, [emphasising] the seamless nature of the internal market. Fuel supplied for private aviation [had to] be subject to tax – as [was] generally the case [at the time]’. For the purposes of the tax exemption for aviation fuel, therefore, the Commission drew a distinction between commercial aviation and private aviation.
23. Secondly, it follows from the purpose of Directive 2003/96, under which the Member States are to tax energy products, that the directive does not seek to establish general exemptions (see, to that effect, Sea Fighter , paragraph 21).
24. Furthermore, it emerges from recital 23 in the preamble to Directive 2003/96 that Article 14(1)(b) is based on compliance with international obligations and the maintaining of the competitive position of Community companies.
25. As regards international obligations, that reference mainly concerns – as the Commission observes – the tax exemptions on energy products intended for civil aviation which are granted to airlines on the basis of the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 ( United Nations Treaty Series , vol. 15, p. 296), and of international bilateral air service agreements concluded between the European Union and/or its Member States and third countries, and between the Member States themselves.
27. It follows from those considerations that the air navigation operations carried out by a company like Systeme Helmholz, consisting in the carriage of its personnel to clients or trade fairs in its own aircraft, cannot be assimilated to the use of an aircraft for commercial purposes, for the purposes of Article 14(1)(b) of Directive 2003/96, and, accordingly, do not fall within the scope of the tax exemption for aviation fuel under that provision, in so far as those air navigation operations are not directly used for the supply of an air service for consideration.
30. Lastly, the conclusion set out in paragraph 27 above cannot be undermined by the judgments in Deutsche-See-Bestattungs-Genossenschaft and Jan De Nul , referred to above. In those cases, the fuel for which a tax exemption had been sought fuelled ships which were directly used for the supply of services for consideration. Accordingly, in paragraph 28 of the judgment in Deutsche See-Bestattungs-Genossenschaft , the Court found, in respect of the operations of the Deutsche See which consisted in the organisation of burials on the high seas, for which it used three specially equipped ships, that ‘it [was] not disputed that [those operations] constituted a supply of services for consideration’. Furthermore, in paragraph 40 of the judgment in Jan De Nul , the Court stated that the 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.
31. That is the background against which it is necessary to view paragraph 23 of the judgment in Deutsche See-Bestattungs-Genossenschaft , in which the Court found that ‘all navigation activity for commercial purposes comes within the scope of the exemption’, and paragraph 25 of that judgment, in which the Court stated that Directive 92/81 does not draw any distinction as to the purpose of the navigation covered and that the distortion of competition which that directive aims to prevent may come about regardless of the type of commercial navigation in issue. Thus, the purpose of the journey is irrelevant for the purposes of applying the tax exemption if the navigation involves the supply of services for consideration (see, to that effect, Sea Fighter , paragraph 17).