1 This request for a preliminary ruling concerns the interpretation of Article 14(1) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51), as amended by Council Directive 2004/75/EC of 29 April 2004 (OJ 2004 L 157, p. 100, and corrigendum OJ 2004 L 195, p. 31; ‘Directive 2003/96’), and of Article 7(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).
2 The request has been made in proceedings between the applicant in the main proceedings and the Staatssecretaris van Financiën (State Secretary for Finance, Netherlands) concerning a tax adjustment notice relating to the taxation for excise duty purposes of gas oil used as fuel for navigation.
3 Title III of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 136, p. 12), entitled ‘Controls’, contained only Article 9 of that directive, which was worded as follows: ‘By 31 December 1992 the Council [of the European Communities], acting unanimously on the basis of a proposal from the Commission [of the European Communities], shall adopt Community rules for the colouring or the marking of those mineral oils which are exempt from duty or which are subject to a reduced rate as fuel or as motor fuel.’
4 The first to fourth recitals of Council Directive 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene (OJ 1995 L 291, p. 46), state: ‘Whereas the Community measures envisaged by this Directive are not only necessary but also indispensable for the attainment of the objectives of the internal market; whereas these objectives cannot be achieved by Member States individually; whereas furthermore their attainment at Community level is already provided for in Directive 92/81/EEC, and in particular Article 9 thereof; whereas this Directive conforms with the principle of subsidiarity; Whereas [Council] Directive 92/82/EEC [of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992 L 306, p. 19)] lays down provisions in respect of the minimum rates of excise duty applicable to certain mineral oils and in particular to the different categories of gas oil and kerosene; Whereas the proper functioning of the internal market now requires that common rules be established for fiscal marking of gas oil and kerosene which have not borne duty at the full rate applicable to such mineral oils used as propellant; Whereas certain Member States should be allowed to derogate from the measures laid down in this Directive because of special national circumstances’.
5 Article 1 of Directive 95/60 provides: ‘1. Without prejudice to national provisions on fiscal marking, Member States shall apply a fiscal marker in accordance with the provisions of this Directive to: - all gas oil falling within CN code 27100069 which has been released for consumption within the meaning of Article 6 of [Council] Directive 92/12/EEC [of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1)] and has been exempt from, or subject to, excise duty at a rate other than that laid down in Article 5(1) of Directive 92/82/EEC; - kerosene falling within CN code 27100055 which has been released for consumption within the meaning of Article 6 of Directive 92/12/EEC and has been exempt from, or subject to, excise duty at a rate other than that laid down in Article 8(1) of Directive 92/82/EEC. 2. Member States may allow exceptions to the application of the fiscal marker provided for in paragraph 1 on grounds of public health or safety or for other technical reasons, provided they take appropriate fiscal supervision measures. …’
6 Article 2 of Directive 95/60 is worded as follows: ‘1. The marker shall consist of a well-defined combination of chemical additives to be added under fiscal supervision before the mineral oils concerned are released for consumption. However, … 2. The marker to be used shall be established in accordance with the procedure laid down in Article 24 of Directive 92/12/EEC.’
7 Article 3 of Directive 95/60 provides: ‘Member States shall take the necessary steps to ensure that improper use of the marked products is avoided and, in particular, that the mineral oils in question cannot be used for combustion in the engine of a road-going motor vehicle or kept in its fuel tank unless such use is permitted in specific cases determined by the competent authorities of the Member States. Member States shall provide that the use of the mineral oils in question in the cases mentioned in the first sub-paragraph is to be considered as an offence under the national law of the Member State concerned. Each Member State shall take the measures required to give full effect to all the provisions of this Directive and shall, in particular, determine the penalties to be imposed in the event of failure to comply with the said measures; such penalties shall be commensurate with their purpose and shall have adequate deterrent effect.’
8 Under Article 4 of that directive: ‘Member States may add a national marker or colour in addition to the marker provided for in Article 1(1). …’.
9 Recitals 2 to 5 and 24 of Directive 2003/96 state: ‘(2) The absence of Community provisions imposing a minimum rate of taxation on electricity and energy products other than mineral oils may adversely affect the proper functioning of the internal market. (3) The proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum levels of taxation to be laid down at Community level for most energy products, including electricity, natural gas and coal. (4) Appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to the proper functioning of the internal market. (5) The establishment of appropriate Community minimum levels of taxation may enable existing differences in the national levels of taxation to be reduced. … (24) Member States should be permitted to apply certain other exemptions or reduced levels of taxation, where that will not be detrimental to the proper functioning of the internal market and will not result in distortions of competition.’
10 Under Article 1 of that directive: ‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’
11 Article 14(1) of Directive 2003/96 provides: ‘In addition to the general provisions set out in Directive 92/12/EEC on exempt uses of taxable products, and without prejudice to other Community provisions, Member States shall exempt the following from taxation 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: … (c) energy products supplied for use as fuel for the purposes of navigation within Community waters (including fishing), other than private pleasure craft, and electricity produced on board a craft. For the purposes of this Directive “private pleasure craft” shall mean any craft used by its owner or the natural or legal person who enjoys its use either through hire or through any other means, for other than commercial purposes and in particular other than for the carriage of passengers or goods or for the supply of services for consideration or for the purposes of public authorities.’
12 Article 15(1) of that directive provides: ‘Without prejudice to other Community provisions, Member States may apply under fiscal control total or partial exemptions or reductions in the level of taxation to: … (f) energy products supplied for use as fuel for navigation on inland waterways (including fishing) other than in private pleasure craft, and electricity produced on board a craft; …’
13 Article 30 of Directive 2003/96 is worded as follows: ‘Notwithstanding Article 28(2), Directives 92/81/EEC and 92/82/EEC shall be repealed as from 31 December 2003. References to the repealed Directives shall be construed as references to this Directive.’
14 Recital 8 of Directive 2008/118 stated: ‘Since it remains necessary for the proper functioning of the internal market that the concept, and conditions for chargeability, of excise duty be the same in all Member States, it is necessary to make clear at [EU] level when excise goods are released for consumption and who the person liable to pay the excise duty is.’
15 Article 7(1) and (2) of that directive provided: ‘1. Excise duty shall become chargeable at the time, and in the Member State, of release for consumption. 2. For the purposes of this Directive, “release for consumption” shall mean any of the following: (a) the departure of excise goods, including irregular departure, from a duty suspension arrangement; (b) the holding of excise goods outside a duty suspension arrangement where excise duty has not been levied pursuant to the applicable provisions of [EU] law and national legislation; (c) the production of excise goods, including irregular production, outside a duty suspension arrangement; (d) the importation of excise goods, including irregular importation, unless the excise goods are placed, immediately upon importation, under a duty suspension arrangement.’
16 Under Article 8(1) of Directive 2008/118: ‘The person liable to pay the excise duty that has become chargeable shall be: (a) in relation to the departure of excise goods from a duty suspension arrangement as referred to in Article 7(2)(a): (i) the authorised warehousekeeper, the registered consignee or any other person releasing the excise goods or on whose behalf the excise goods are released from the duty suspension arrangement and, in the case of irregular departure from the tax warehouse, any other person involved in that departure; … (b) in relation to the holding of excise goods as referred to in Article 7(2)(b): the person holding the excise goods and any other person involved in the holding of the excise goods; …’.
17 Recitals 1 and 4 of Commission Implementing Decision 2011/544/EU of 16 September 2011 on establishing a common fiscal marker for gas oils and kerosene (OJ 2011 L 241, p. 31), stated: ‘(1) For the proper functioning of the internal market, and in particular to prevent tax evasion, Directive 95/60/EC provides for a common marking system to identify gas oils, falling within CN code 27100069, and kerosene, falling within CN code 27100055, which have been released for consumption exempt from excise duty, or subject to a reduced excise duty rate. … … (4) As part of the review process, a consultation of the Member States was undertaken. Member States are generally satisfied that Solvent Yellow 124 has met its objectives of counteracting fraudulent use of mineral oils exempt from excise duty, or subject to a reduced excise duty rate.’
18 Article 1 of that decision was worded as follows: ‘The common fiscal marker provided for by Directive 95/60/EC for the marking of all gas oils falling within CN codes 27101941, 27101945, and 27101949, as well as of kerosene falling within CN code 27101925, shall be Solvent Yellow 124, as specified in the Annex to this Decision. Member States shall fix a marking level of at least 6 mg and not more than 9 mg of marker per liter of mineral oil.’
19 Article 2(1) of the Wet houdende vereenvoudiging en uniformering van de accijnswetgeving (Law on the simplification and unification of excise legislation) of 31 October 1991 (Stb. 1991, p. 561), in the version applicable to the dispute in the main proceedings (‘the Law on excise duty’), is worded as follows: ‘For the purposes of this Law and the provisions adopted thereunder, release for consumption shall mean: … b. the holding of excise goods outside a duty suspension arrangement where excise duty has not been levied pursuant to the applicable provisions of EU law and national legislation; …’
20 Article 66(1) of that law provides: ‘Subject to the conditions and within the limits to be laid down by general administrative measure, the release for consumption of mineral oils shall be exempt from excise duty where used: a. for the propulsion of vessels or for the on-board purposes thereof; …’.
21 Under Article 19 of the Uitvoeringsbesluit accijns (Decree implementing the Law on excise duty), in the version applicable to the dispute in the main proceedings: ‘The release for consumption of mineral oils used for the propulsion of vessels or for the on-board purposes thereof shall be exempt if: …’.
22 Article 20(2) of that decree provides: ‘The exemption from excise duty referred to in Article 19 shall be granted for medium oils and gas oils only if those oils bear the markers referred to in Article 1a(3) of the [Law on excise duties]’.
23 Article 13(2) of the Uitvoeringsregeling accijns (Regulation implementing the Law on excise duty) provided, in the version applicable to the dispute in the main proceedings: ‘The following shall be added to gas oil, as a marker referred to in Article 1a(3) of the [Law on excise duty]: a minimum of 6 grams and a maximum of 9 grams of Solvent Yellow 124 per 1000 litres, and to light oil, also a sufficient quantity of colouring to produce a clearly visible and permanent red colour.’
24 X, who resides in Germany, is the owner of a motor tanker which he uses to transport mineral oils on behalf of third parties by inland waterway within the European Union in return for payment (‘the tanker’). The tanker is fitted with two bunker tanks used to hold fuel intended for its propulsion.
25 On 7 June 2016, during an inspection carried out while the tanker was on the Amsterdam-Rhine Canal (Netherlands), inspectors from the Belastingdienst/Douane (Tax and customs administration, Netherlands) took samples of the gas oil stored in the bunker tanks. An analysis of those samples carried out by the laboratory of the Tax and customs administration indicated, in particular, the presence of a quantity of ‘Solvent Yellow 124’ marker, in those two tanks, of 5 grams per 1000 litres and 4.4 grams per 1000 litres, respectively, that is, a quantity lower than the minimum content of 6 grams per 1000 litres required for the release of gas oil for consumption exempt from excise duty.
26 Taking the view that the gas oil concerned did not, therefore, satisfy all the conditions required for the application of the excise duty exemption, on 30 January 2017 the Inspecteur van de Belastingdienst/Douane (Inspector of the Tax and customs administration) (‘the Inspector’), notified X of his intention to impose a tax adjustment notice on the latter, on the grounds, first, that the ‘Solvent Yellow 124’ marker content of that gas oil was lower than the minimum required and, second, that X was holding the gas oil as the owner and boatmaster of the tanker, whereas the excise duty payable on it had not been levied in accordance with the applicable provisions of EU and national law.
27 After X had submitted his observations, the Inspector issued a tax adjustment notice relating, inter alia, to the excise duty payable in respect of the gas oil that had been found to be present in the bunker tanks.
28 By judgment of 19 November 2019, the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden, Netherlands), ruling on the appeal brought by the Inspector against a judgment of the rechtbank Gelderland (District Court, Gelderland, Netherlands), held that such a tax adjustment had been correctly imposed on X.
29 That appeal court held that the gas oil inspected in the tanker’s bunker tanks was a product subject to excise duty, that that gas oil was not placed under a duty suspension arrangement on the date of the inspection by the Tax and customs administration and that X had actual power of disposal over that gas oil. That court also held that the gas oil concerned was not eligible for the exemption from excise duty, on the ground that it did not satisfy the prerequisite for the application of that exemption, relating to the presence of the ‘Solvent Yellow 124’ marker in the proportions prescribed by the applicable legislation.
30 The Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden) also held that, under the applicable Netherlands legislation, it was not necessary, for the purposes of the chargeability of excise duty, that X knew or ought to have known that the excise duty applicable to gas oil had not been levied in accordance with the relevant provisions.
31 That court also found that, for the purposes of an adjustment of excise duty on account of the chargeable event defined in the introductory sentence to Article 2(1) and in Article 2(1)(b) of the Law on excise duty, the tax and customs administration was not required to prove that no excise duty had been levied in respect of gas oil present in the bunker tanks, but that it was for the person claiming the benefit of an exemption to prove that he or she satisfied the conditions for benefiting from it.
32 Lastly, that court held that it was proportionate to make the application of the exemption in question subject to the presence in sufficient quantities of the fiscal marker in the gas oil inspected; this was so because that marker enables the use of the products concerned by that exemption to be monitored and at issue is an essential condition for ensuring the correct and clear application of the exemption laid down in the introductory sentence to Article 66(1) and in Article 66(1)(a) of the Law on excise duty, and for preventing evasion, avoidance and abuse.
33 X brought an appeal in cassation against the judgment of the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden) before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), which is the referring court.
34 The referring court points out that the introductory sentence to Article 66(1) and Article 66(1)(a) of the Law on excise duty, which seek in particular to transpose Article 14(1)(c) of Directive 2003/96, make the benefit of the exemption from excise duty on mineral oils subject to certain conditions. In particular, it follows from Article 20(2), in conjunction with Article 19 of the Decree implementing the Law on excise duty, that light oils and gas oil must contain means of identification such as those referred to in Article 1a(3) of the Law on excise duties. The latter provision, read in conjunction with Article 13(2) of the Regulation implementing the Law on excise duties, thus provides that, in order to benefit from that exemption, gas oil must contain an identification marker consisting of 6 to 9 grams of the ‘Solvent Yellow 124’ marker per 1000 litres, and that a sufficient quantity of colouring must be added to the gas oil in order to give it a visible, permanent red colour.
35 The referring court observes that that requirement reflects the Member States’ obligation under Article 1(1) of Directive 95/60, read in conjunction with Article 1 of Implementing Decision 2011/544, whereas Article 4 of that directive grants Member States the option of adding a national colour or marker.
36 The referring court considers that the question which arises in the present case is whether the fiscal marking requirement laid down in those provisions is capable of affecting the application of the exemption from excise duty provided for in Article 14(1)(c) of Directive 2003/96.
37 According to that court, the application of a fiscal marker enables the competent authorities to check in a simple and effective manner whether mineral oils are being used for the purposes referred to in the provisions providing for the exemption or the application of a reduced rate of excise duty.
38 However, once it is certain that the mineral oils concerned are being used for purposes which, under national legislation, are a condition for benefiting from an exemption from excise duty, and no loss of tax revenue has been established, the refusal to apply that exemption could go beyond what is necessary to prevent the improper use of those oils.
39 The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) considers that, in order to resolve the dispute before it, it must determine whether the competent national authority is to refrain from applying the obligation to grant the exemption from excise duty provided for in Article 14(1)(c) of Directive 2003/96 where the fiscal marker prescribed by EU law is not present in sufficient proportions in the gas oil in a tanker’s bunker tank, whereas, on the one hand, it has been established that that gas oil is being used for navigation within EU waters and, on the other hand, there is no evidence capable of giving rise to suspicions of tax evasion, avoidance or abuse.
40 The referring court notes that, during the inspection carried out by the Tax and customs administration, first, the gas oil in the bunker tanks was coloured red and did not contain a sufficient proportion of ‘Solvent Yellow 124’ marker; second, X produced proofs of purchase seeking to establish that he had recently, on two occasions shortly before the inspection, had gas oil delivered to him on board the tanker by fuel suppliers authorised, in the Netherlands and Germany respectively, to supply gas oil exempt from excise duty; and, third, no facts or circumstances have come to light, even subsequently, from which it may be sufficiently concluded that X has been involved in any excise evasion, avoidance or abuse.
41 According to the referring court, if the Court of Justice were to find that, in such circumstances, the gas oil cannot benefit from the exemption provided for in Article 14(1)(c) of Directive 2003/96, the question would then arise as to whether it is the fuel supplier or the boatmaster who must be regarded as the person liable to pay the excise duty.
42 In that regard, if the Court of Justice were to find that excise duty is payable on the basis of the holding of excise goods, referred to in Article 7(2)(b) of Directive 2008/118, the holder of those goods could be designated, pursuant to Article 8(1)(b) thereof, as being the person liable to pay the excise duty that has become chargeable. In that regard, the referring court considers that it is apparent from the case-law of the Court, resulting from the judgment of 10 June 2021, Commissioners for Her Majesty’s Revenue and Customs (Innocent agent) (C‑279/19, EU:C:2021:473, paragraphs 28 to 30), that EU law does not require that the person liable to pay the excise duty be - or ought reasonably to have been - aware that, under Article 7(2)(b) of that directive, the excise duty payable on the goods concerned was chargeable.
43 In those circumstances the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 14(1)[(c)] of [Directive 2003/96] be interpreted as meaning that the tax exemption laid down in that provision applies to energy products which are known to be used for the propulsion of vessels in navigating the inland waterways of the European Union, even where those energy products (gas oil in this case) do not, during that use, contain the required minimum content of the marker Solvent Yellow 124, if the tax authorities do not have one or more indications that the owner or operator of the vessel or his or her representative on board the ship (the boatmaster) is involved in excise evasion, avoidance or abuse in respect of the gas oil being held? (2) If the first question is answered in the negative, must Article 7(2) of Directive [2008/118] be interpreted as meaning that, where it is established that the bunker tank of an inland waterway vessel exclusively contains gas oil originating from a fuel supplier which, with the authorisation of the tax authorities, may release that gas oil for consumption exempt from excise duty, the mere fact that the gas oil does not contain the required minimum content of the marker Solvent Yellow 124 means that the excise duty became chargeable only at the time of that earlier release for consumption on the basis of Article 7(2)[(a)] of that directive? (3) If the second question is answered in the negative and Article 7(2)[(b)] of Directive [2008/118] is thus also applicable in the case referred to therein, does the EU law principle of proportionality preclude excise duty which has become chargeable pursuant to Article 7(2)[(b)] of [Directive 2008/118] from being levied on the boatmaster holding the excise goods, in accordance with Article 8(1)[(b)] of that directive, even if that person had no reason to doubt that the gas oil was being supplied exempt from excise duty in accordance with EU and national law? (4) Is it relevant for the answer to the third question that the boatmaster does not perform his or her duties in an employment relationship but is also the owner of the vessel?’
44 As a preliminary point, it must be noted that the dispute in the main proceedings arises from the imposition of excise duty on gas oil present in the bunker tanks of X’s tanker, on the ground that fiscal marking had not been applied to that gas oil in accordance with EU law; for the gas oil contained a quantity of the marker ‘Solvent Yellow 124’ below the minimum proportion of 6 grams per 1000 litres, laid down in Article 1(1) of Directive 95/60, read in conjunction with Article 1 of Implementing Decision 2011/544.
45 The referring court asks, in essence, whether that circumstance alone justifies refusing the benefit of the exemption provided for in Article 14(1)(c) of Directive 2003/96, even though, first, it is established that that gas oil was used as fuel for navigation on EU inland waterways and, second, there is no evidence capable of giving rise to suspicions of tax evasion, avoidance or abuse.
46 In that regard, it should be borne in mind that, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the question referred to it, but also to consider rules of EU law to which the national court has not referred in its question (judgment of 19 January 2023, CIHEF and Others, C‑147/21, EU:C:2023:31, paragraph 24 and the case-law cited).
47 In the event, Article 14(1)(c) of Directive 2003/96 provides that Member States are to exempt from taxation - under conditions which they are to lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse - inter alia energy products supplied for use as fuel for navigation within EU waters, other than in private pleasure craft.
48 In that regard, it must be pointed out that the term ‘EU waters’, for the purposes of that provision, must be understood as including the waters in which maritime navigation is normally practised for commercial ends (see, by analogy, judgment of 1 March 2007, Jan De Nul, C‑391/05, EU:C:2007:126, paragraph 26).
49 However, the first question referred for a preliminary ruling concerns the use of an energy product as fuel for navigation on EU inland waterways. Such use is covered by Article 15(1)(f) of Directive 2003/96, a provision under which Member States may in particular apply, under fiscal control, total or partial exemptions or reductions in the level of taxation, inter alia, to energy products supplied for use as fuel for navigation on inland waterways other than in private pleasure craft.
50 When questioned in that regard at the hearing, the Netherlands Government confirmed that the Kingdom of the Netherlands had made use of that option by exempting from taxation, in its national law, products supplied for use as fuel both for navigation within EU waters and for navigation on EU inland waterways.
51 In those circumstances, it must be understood that, by its first question, the referring court asks, in essence, whether Article 15(1)(f) of Directive 2003/96 must be interpreted as precluding national legislation under which the benefit of the exemption from excise duty for gas oil supplied for use as fuel for navigation on EU inland waterways is refused on the ground that fiscal marking has not been applied to that gas oil in accordance with the requirements of EU law, even though, first, it is established that that gas oil is used as fuel for navigation on EU inland waterways and, second, there is no evidence capable of giving rise to suspicions of tax evasion, avoidance or abuse.
52 According to settled case-law, in determining the scope of a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 13 June 2024, Dyrektor Izby Administracji Skarbowej w Bydgoszczy (Actual cost of energy), C‑266/23, EU:C:2024:506, paragraph 28 and the case-law cited).
53 As regards, in the first place, the wording of Article 15(1)(f) of Directive 2003/96, as recalled in paragraph 49 above, it must be observed that, according to the wording of that provision, the exemption or reduction in the level of taxation applicable to the energy products concerned is granted according to the use for which they are intended.
54 In particular, as is apparent from that provision, read in the light of the second subparagraph of Article 14(1)(c) of that directive, the option thus granted to Member States, in so far as it excludes private pleasure craft, is limited to energy products which are used as fuel for navigation on EU inland waterways for commercial purposes, namely uses where a vessel is directly used for the supply of services for consideration (see, by analogy, judgment of 16 September 2021, Commission v Italy (Excise duty - Fuel for pleasure craft), C‑341/20, EU:C:2021:744, paragraphs 33 and 34 and the case-law cited).
55 It is thus apparent from the wording of Article 15(1)(f) of Directive 2003/96 that Member States are, inter alia, entitled to exempt from the taxation provided for by that directive an energy product, such as gas oil, provided that it is used as fuel for navigation operations on EU inland waterways for commercial purposes.
56 In the second place, as regards the context in which Article 15(1)(f) of Directive 2003/96 occurs, it should be noted that the general scheme of that directive is based on the principle that energy products are taxed in accordance with their actual use (see, to that effect, judgment of 25 April 2024, Bitulpetrolium Serv, C‑657/22, EU:C:2024:353, paragraph 23 and the case-law cited).
57 Consequently, the discretion afforded to the Member States in the exercise of the option provided for in Article 15(1) f) of that directive cannot go so far as to call that principle into question (see, to that effect, judgment of 25 April 2024, Bitulpetrolium Serv, C‑657/22, EU:C:2024:353, paragraph 24 and the case-law cited).
58 In the present case, the referring court points out that although fiscal marking has not been applied to the gas oil at issue in accordance with the requirements of EU law, it is established that that gas oil was used as fuel for navigation on EU inland waterways.
59 Admittedly, as stated in paragraph 44 above, the Member States are required, under Article 1 of Directive 95/60, read in the light of the third recital thereof, to apply a fiscal marker, inter alia, to gas oil which is not taxed at the full rate (judgment of 17 October 2018, Commission v United Kingdom, C‑503/17, EU:C:2018:831, paragraph 44).
60 Directive 95/60, which was adopted in accordance with Article 9 of Directive 92/81 - which in turn was repealed and replaced by Directive 2003/96 - thus has the objective, as is apparent from the first to third recitals of Directive 95/60, read in conjunction with the second paragraph of Article 30 of Directive 2003/96, of supplementing that latter directive and of promoting the achievement and proper functioning of the internal market by allowing the easy and rapid identification throughout the European Union of gas oil not subject to taxation at the full rate (see, to that effect, judgment of 17 October 2018, Commission v United Kingdom, C‑503/17, EU:C:2018:831, paragraph 46 and the case-law cited).
61 In that regard, it should be noted that Article 3 of Directive 95/60 requires Member States, first, to take the necessary steps to ensure that improper use of the marked products is avoided and, second, to provide that such improper use is to be considered as an offence under the national law of the Member State concerned.
62 Thus, the fiscal marking of mineral oils, provided for by that directive, is above all intended to make it possible to monitor and, where appropriate, penalise the use of energy products, exempted or subject to a reduced rate of excise duty, for purposes for which EU law neither requires nor allows any possibility of derogation from excise duty.
63 By contrast, as the Commission in essence submits, incorrect marking cannot, absent any evidence of fraud, preclude the application of the exemptions or reductions in the level of excise duty provided for by Directive 2003/96, where the conditions to which that application is subject, such as, as in the present case, use as fuel for navigation for commercial purposes on inland EU waterways, are satisfied.
64 As regards, in the third place, the objective pursued by Directive 2003/96, it must be observed that that directive, by making provision for a system of harmonised taxation of energy products and electricity, seeks, as is apparent from recitals 2 to 5 and 24 thereof, to promote the proper functioning of the internal market in the energy sector by avoiding, in particular, distortions of competition (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 29 and the case-law cited).
65 However, in order to ensure the application of the correct level of taxation to energy products covered by that directive and, thus, to avoid distortions of competition between the economic operators concerned, it is necessary to enable the competent authorities to monitor effectively whether such a product is used for the purposes prescribed for the application of the exemption or reduced rate of taxation.
66 In that regard, it is true that fiscal marking of gas oil and kerosene constitutes a measure intended to ensure the proper functioning of the system of harmonised taxation of energy products established by Directive 2003/96 by allowing the tax authorities of Member States to ensure that those mineral oils are taxed in accordance with their actual use.
67 However, the fiscal marking requirement laid down by Directive 95/60 cannot have the effect of allowing Member States, in exercising their discretion under Article 15(1)(f) of Directive 2003/96, to make compliance with that requirement a precondition for the exemption from, or application of a reduced rate of, excise duty which that provision authorises them to establish, in particular, for energy products used as fuel for navigation on EU inland waterways for commercial purposes.
68 It would be otherwise only if the operator concerned intentionally participated in tax evasion which has jeopardised the operation of the system of taxation of energy products and electricity or if failure to comply with the fiscal marking requirement has the effect of preventing the production of conclusive evidence that the gas oil has been used for the purposes of applying a reduced level of taxation or exemption (see, by analogy, judgment of 20 June 2018, Enteco Baltic, C‑108/17, EU:C:2018:473, paragraph 59 and the case-law cited).
69 In the present case, however, it should be noted that, as is apparent from the request for a preliminary ruling, the dispute in the main proceedings is characterised by the absence of evidence capable of giving rise to suspicions of tax evasion, avoidance or abuse.
70 Having regard to all the foregoing considerations, the answer to the first question is that Article 15(1)(f) of Directive 2003/96, read in conjunction with Article 1 of Directive 95/60, must be interpreted as precluding national legislation under which the benefit of the exemption from excise duty for gas oil supplied for use as fuel for navigation for commercial purposes on EU inland waterways is refused on the ground that fiscal marking has not been applied to that gas oil in accordance with the requirements of EU law, even though, first, it is established that that gas oil is used for such a purpose and, second, there is no evidence capable of giving rise to suspicions of tax evasion, avoidance or abuse.
71 In view of the answer given to the first question, there is no need to answer the second to fourth questions.
72 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.