OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 19 April 2007 (1)

Joined Cases C‑145/06 and C‑146/06

Fendt Italiana Srl

v

Agenzia Dogane Ufficio Dogane di Trento

(Preliminary references – Taxation of energy products – Lubricating oils – Non-fuel uses – Effect of exclusion of a product use from the scope of a harmonising directive – Repeals)

1.        The present references from the Commissione tributaria provinciale di secondo grado di Trento (Tax Court of Second Instance of Trento) essentially ask the Court whether Directive 2003/96 (2) allows Member States to introduce or maintain their own tax regime on mineral oil products used for non-fuel purposes. The particular products whose taxation is in issue in the main proceedings are lubricating oils.

2.        The predecessor to Directive 2003/96, Directive 92/81, (3) provided that Member States should exempt mineral oils used for non-fuel purposes from harmonised excise duty. In an infringement action brought in 2001, the Court held that, by retaining a tax on the consumption of lubricating oils, Italy had failed to meet, inter alia, the exemption requirement under that directive. (4)

3.        The Italian legislation in question has not been repealed; but Directive 2003/96 has now repealed and replaced Directive 92/81. The new Directive expressly excludes energy products used for non-fuel purposes from its scope.

 Relevant legislation

 Directive 92/12

4.        Since the 1990s the harmonisation at Community level of the taxation of mineral oils has been regulated by a family of directives. Directive 92/12, (5) which is still in force, may be regarded as the parent directive. It sets out the general arrangements for mineral oils and other products (alcohol, alcoholic beverages and manufactured tobacco) which are ‘subject to excise duties and other indirect taxes which are levied directly or indirectly on the consumption of such products …’. (6)

5.        Article 1(2) states that ‘the particular provisions relating to the structures and rates of duty on products subject to excise duty shall be set out in specific Directives’. The specific (or, to continue the family metaphor, daughter) directives for mineral oils were originally Directives 92/81 (establishing structures of taxation) and 92/82 (7) (laying down rates of tax).

6.        Article 3 of Directive 92/12 provides as follows:

‘1.   This Directive shall apply at Community level to the following products as defined in the relevant Directives:

–        mineral oils,

…

2.     The products listed in paragraph 1 may be subject to other indirect taxes for specific purposes, provided that those taxes comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned.

3.     Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.

...’

 Combined Nomenclature

7.        Provisions in the daughter directives of Directive 92/12 refer to code numbers of the ‘Combined Nomenclature’ (‘CN’). The CN was initially established by Regulation No 2658/87 (8) in order to create a goods nomenclature to meet various Community requirements. The catalogue of codes relating to the different goods appeared in Annex I to Regulation No 2658/87. Since then, amendments to Annex I have regularly updated the CN. However, lubricating oils such as those whose taxation is in issue in the main proceedings have at all times been classified under code CN 2710.

 Directives 92/81 (structures) and 92/82 (rates)

8.        Under Article 2(1)(d) of Directive 92/81, the term ‘mineral oil’ covered products falling within CN code 2710 and thus included lubricating oils. Article 2(2) provided that ‘mineral oils other than those for which a level of duty is specified in the rates Directive [92/82] shall be subject to excise duty if intended for use, offered for sale or used as heating fuel or motor fuel …’.

9.        Article 8(1)(a) of Directive 92/81 required Member States to exempt ‘mineral oils used for purposes other than as motor fuels or as heating fuels’ from the harmonised excise duty ‘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’.

10.      Directive 92/82 laid down the minimum rates of excise duty that Member States were required to charge on mineral oils. Article 2(1) listed the mineral oils coming within its scope. Lubricating oils were not amongst them.

 Directive 2003/96

11.      On 1 January 2004, Directive 2003/96 repealed and replaced both Directives 92/81 and 92/82. (9) At the same time, it extended the harmonisation regime to include, in addition to mineral oils, other energy products and electricity, as part of the process of achieving the Kyoto Protocol objectives. The new directive provided for minimum overall rates of taxation, which it allowed Member States to meet flexibly by means of different levies. This was in recognition of Member States’ desire to introduce or retain different types of taxation on these products. (10)

12.      Recital 22 indicates that ‘energy products should essentially be subject to a Community framework when used as heating fuel or motor fuel. To that extent, it is in the nature and the logic of the tax system to exclude from the scope of the framework … non-fuel uses of energy products as well as mineralogical processes. Electricity used in similar ways should be treated on an equal footing’.

13.      Article 1 of Directive 2003/96 requires Member States to impose taxation on energy products and electricity in accordance with its provisions.

14.      Article 2(1)(b) provides that, for the purposes of Directive 2003/96, the term ‘energy products’ is to apply to products falling within CN codes 2701, 2702 and 2704 to 2715. As indicated above, lubricating oils fall within CN code 2710.

15.      However, Article 2(4) expressly provides that Directive 2003/96 is not to apply to, inter alia, ‘(b) the following uses of energy products and electricity:

–        energy products used for purposes other than as motor fuels or as heating fuels,

–        …’.

16.      Article 3 of Directive 2003/96 states that ‘references in Directive 92/12/EEC to “mineral oils” and “excise duty”, insofar as it applies to mineral oils, shall be interpreted as covering all energy products, electricity and national indirect taxes referred to respectively in Articles 2 and 4(2) of this Directive’.

17.      Article 14 provides for the compulsory exemption from taxation of, inter alia, uses of energy products as fuel in certain circumstances.

18.      Under Article 24, ‘[e]nergy products released for consumption in a Member State, contained in the standard tanks of commercial motor vehicles and intended to be used as fuel by those same vehicles, as well as in special containers, and intended to be used for the operation, during the course of transport, of the systems equipping those same containers shall not be subject to taxation in any other Member State’.

19.      Article 30 provides:

‘… 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.’ (11)

 Italian legislation

20.      Article 21(2) of Legislative Decree No 504 (12) subjects products falling within CN code 2710 (which includes lubricating oils) used as heating fuel or motor fuel to excise duty fixed at the same rate as that for the equivalent heating fuel or motor fuel.

21.      The first paragraph of Article 62 of the same Legislative Decree states that ‘without prejudice to the duty set out in Article 21(2), lubricating oils (CN codes 27 10 00 87 to 27 10 00 98) are subject to a duty on consumption if intended for use, offered for sale or used other than as heating fuel or motor fuel’.

22.      In its judgment in Case C-437/01, (13) the Court declared that by maintaining, under those provisions, a tax on the consumption of lubricating oils when those oils were intended for use, offered for sale or used for purposes other than as heating fuel or motor fuel, Italy had failed to fulfil its obligations under Articles 3(2) of Directive 92/12 and 8(1)(a) of Directive 92/81, as amended. The Court stated that lubricating oils may be subject to excise duty only if intended for use, offered for sale or used as motor fuel or heating fuel. Otherwise, they must be exempted from the harmonised excise duty. (14)

23.      It appears from the case file, in particular from the observations submitted by Italy and the Commission, that, for reasons that do not concern us here, the national measures intended to comply with the Court’s judgment and align domestic taxation on lubricating oils with the requirements of the applicable directives never entered into force. The provisions of Legislative Decree No 504 thus remained applicable in national law even after the entry into force of Directive 2003/96 and are at the origin of the present preliminary references.

 The main proceedings and the reference made

24.      In 2004 the competent Italian tax authority, the Agenzia delle Dogane – Ufficio di Trento (Customs Office of Trento) sent Fendt Italiana srl (‘Fendt’), two acts of notification claiming unpaid tax, plus fines, on the consumption of lubricating oils between December 2003 and July 2004.

25.      Fendt challenged those claims at first instance before the competent provincial Italian tax court, the Commissione tributaria provinciale di Trento, which rejected Fendt’s applications. In the court’s view, Directive 2003/96 did not apply to energy products other than those used as heating fuel or motor fuel. The taxation arrangements for other products were entirely and exclusively governed by national law, namely, by the first paragraph of Article 62 of Legislative Decree No 504.

26.      Fendt appealed against those decisions to the referring court, which considered that, in the light of the Court’s judgment in Case C‑437/01 and the rationale and purpose of the modifications introduced by Directive 2003/96 to the Community tax regime on mineral oils, it was unclear whether Article 62 of Legislative Decree No 504 was compatible with Community law and whether Member States were now free to impose taxes on those products under national law. It therefore decided to stay proceedings in both cases and lodged identical requests for a preliminary ruling on ‘the compatibility of the tax arrangements under Article 62 of Legislative Decree No 504/95 with Directive 2003/96/EC’.

27.      The two requests were subsequently joined by Order of the President of the Court of 10 May 2006.

28.      Written observations have been lodged by Cyprus, Italy and the Commission. At the hearing on 15 February 2007, Fendt and the Commission presented oral argument.

 The questions referred

 Preliminary remarks

29.      The Commission has correctly pointed out that the Court is not competent, in the context of a reference for a preliminary ruling, to rule on the compatibility of national legislation with Community provisions, (15) as it is expressly requested to do by the referring court. In those circumstances, the questions should be interpreted as seeking a ruling on whether Directive 2003/96, which excludes mineral oils used for purposes other than heating or motor fuels from its scope of application, precludes Member States from imposing a duty on consumption for such uses.

30.      That question can be answered on the basis of the information provided in the orders for reference (succinct though they are), which is helpfully supplemented by the observations of Italy and the Commission.

 Arguments of the parties

31.      All the parties which submitted written observations (the Commission, Cyprus and Italy) argue that, with the entry into force of Directive 2003/96, mineral oils used for non-fuel purposes are no longer exempt from taxation by Member States (as previously required by Article 8(1)(a) of Directive 92/81). Article 2(4)(b), first indent, of Directive 2003/96 now excludes from its scope of application ‘energy products’ used for ‘purposes other than as motor fuels or as heating fuels’, and thus those oils previously exempted. They may consequently be subject to national taxation.

32.      Fendt did not submit written observations. I deal in my assessment below with the various arguments it raised at the hearing.

 Assessment

33.      I agree with the Commission, Cyprus and Italy that Directive 2003/96 has changed the Community taxation regime applicable to mineral oils, including lubricating oils, under Directive 92/81, with the effect that they are no longer required to be exempt from taxation at national level.

34.      Article 2(4)(b) of Directive 2003/96 expressly excludes energy products not used as motor or heating fuel (and thus lubricating oils when used for their intended purpose, namely lubrication) from the scope of the directive. That reading is underscored by recital 22.

35.      Article 14, by contrast, provides inter alia for uses of energy products as fuel to be exempted from taxation in certain circumstances, in derogation from the basic principle (contained in Article 1) that such use of energy products should be taxed. In so doing, it acknowledges that such products fall within the scope of the directive, but provides for them not to be taxed when they are used in very specific ways. Article 14 thus operates quite differently from Article 2(4), which removes non-fuel uses of energy products from the scope of the directive altogether.

36.      As the Commission and Cyprus have pointed out, mineral oils used for non-fuel purposes do not appear on the Article 14 list of exemptions, whereas they were included in the exemptions under Article 8(1) of Directive 92/81 (along with mineral oils used as fuel in circumstances similar to some of those now exempted under Article 14 of Directive 2003/96).

37.      The travaux préparatoires serve to confirm that it was indeed the legislator’s intention, almost a year before the adoption of Directive 2003/96, to exclude the taxation of mineral oils used for non-fuel purposes from Community harmonisation. (16)

38.      At the hearing, Fendt acknowledged that the scope of Directive 2003/96 was limited to energy products used as motor fuel or heating fuel. It submitted that, for that very reason, Article 30 of that directive had to be interpreted as repealing only those provisions of Directives 92/81 and 92/82 which fell within the scope of Directive 2003/96. Consequently, the exemption in Directive 92/81 for mineral oils used for purposes other than motor or heating fuel remained in force. Fendt sought to rely on the Opinion of Advocate General Kokott in Alevizos (17) in support of this interpretation of the effects of repeal. 

39.      I do not accept Fendt’s argument that Article 30 of Directive 2003/96 merely repeals the provisio of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity ns of the former directives which lie within its scope, and that Article 8(1)(a) of Directive 92/81 therefore continues in force. The wording of Article 30 is clear and unqualified. Its only natural meaning is that Directives 92/81 and 92/82 are repealed in their entirety. If the legislator had wanted to exclude some provisions of these directives from the repeal, that could easily have been done by listing, under Article 30 of Directive 2003/96, those provisions that were not to be repealed. The only question that Article 30 left unanswered initially was how to construe references to the repealed directives in other Community legislation. The amendment adding the second paragraph of Article 30 removed that uncertainty. (18)

40.      The provision at issue (19) in Alevizos stated that ‘[t]he provisions on excise duty laid down in the following Directives shall cease to apply on 31 December 1992 …’. Advocate General Kokott noted that the wording of that provision left it unclear exactly which provisions in the specified directives were to cease to apply, which goods were to be affected and whether the specified directives retained any independent scope at all. (20) She concluded that the amending provision was limited to the goods that were the subject of the directive which contained it. Thus, the scope of the amending directive determined the extent of the amendment. (21)

41.      However, Alevizos concerned a situation wholly different from the present cases. In Alevizos, it was not clear exactly what was to cease to apply to what. Contextual interpretation was therefore necessary, particularly since the later directive only covered certain products, whereas the earlier directives were not thus restricted. (22) In the present cases, by contrast, the scope of the repeal in Article 30 of Directive 2003/96 is perfectly clear: ‘Directives 92/81 and 92/82 are repealed’. To seek to interpret the extent of that repeal as being limited to those provisions falling within the scope of the repealing directive runs counter to the express words of Article 30. Moreover, the repealed directives cover a narrower range of products (mineral oils) than Directive 2003/96 (energy products and electricity).

42.      If the meaning of a provision is unclear, it is of course necessary to interpret that provision within its legislative context. (23) It is an entirely different matter to assert that there is a general rule of interpretation that, where a measure lays down new rules and repeals a previous measure in unambiguously general terms, the extent of the repeal is nonetheless confined to those provisions of the repealed measure which fall within the scope of the new rules laid down. Such an approach is quite unwarranted and would severely undermine legal certainty.

43.      Fendt further recalled that the rationale of Directive 2003/96 was to tax energy products in order to help achieve the objectives of the Kyoto Protocol. It was therefore irrational to conclude that Directive 2003/96 had re-introduced the power to tax non-fuel uses of mineral products, which were non-polluting. Fendt also stressed that Article 24 of Directive 2003/96 specifically exempted fuel in tanks of commercial vehicles destined for another Member State from being taxed in the Member State in which the vehicle was manufactured but where the fuel was not used and therefore did not pollute. If Directive 2003/96 had applied to lubricating oil used for non-fuel purposes, it should logically have exempted such use also, since that too does not pollute. A contrario, the absence of an equivalent exemption supported the proposition that Directive 2003/96 had left untouched the previous exemption in Directive 92/81 for mineral oils used for purposes other than motor fuel or heating fuel.

44.      I do not consider that either the context or the purpose of Directive 2003/96 supports Fendt’s interpretation. In particular, I do not see any inconsistency between the aim of achieving the Kyoto objectives (referred to in recital 7) and the ability of Member States to tax mineral oils used for non-fuel purposes. On the contrary, such oils are used for lubricating the engines and other parts of vehicles which do emit carbon dioxide into the atmosphere. The first sentence of recital 22 clearly states that ‘energy products should essentially be subject to a Community framework when used as heating fuel or motor fuel’. Against that background, it is indeed ‘in the nature and logic of the tax system to exclude from the scope of the framework … non-fuel uses of energy products …’.

45.      The result of the repeal of Directive 92/81 and of the express exclusion of energy products used for purposes other than as motor fuel or heating fuel from the scope of Directive 2003/96 is that Member States are free to tax oils used for such purposes, provided such taxes respect the general provisions of the EC Treaty (in particular, Articles 25 and 90 EC, which respectively prohibit customs duties on imports and exports between Member States and the discriminatory internal taxation of goods of other Member States). It is a general principle of Community harmonisation that aspects which are excluded from the harmonising Community act remain within the competence of the Member States, which are therefore free to regulate them within the limits imposed by the EC Treaty. (24)

46.      In view of this general principle, it is unnecessary to identify any provision expressly authorising Member States to tax mineral oils used for non-fuel purposes in the wake of the repeal of Directive 92/81.

47.      The Commission and Cyprus place express reliance, however, upon Article 3(3) of Directive 92/12 as empowering Member States to tax energy products that are excluded from the scope of Directive 2003/96. Their argument runs essentially as follows. The lubricating oils in issue, when used for non-fuel purposes, are excluded from the scope of Directive 2003/96 (which replaced Directives 92/81 and 92/82). They are therefore not mineral oils ‘as defined in the relevant directives’ for the purposes of Article 3(1) of Directive 92/12. Consequently, they fall within Article 3(3) of that directive and thus may be taxed by a Member State.

48.      This reasoning confuses the definition of mineral oils and their specific use. On closer analysis, it becomes apparent that the lubricating oils in question fall within the definition of ‘mineral oils’ in Directive 2003/96 even though their specific use (non-fuel use) excludes them from the scope of that directive.

49.      Article 3(1) of Directive 92/12 provides that that directive applies to, inter alia, ‘mineral oils’ ‘as defined in the relevant directives’. The original ‘relevant directive’ was Directive 92/81. Whilst that directive was in force, it was clear that lubricating oils fell under the definition of ‘mineral oils’ (25) and that in consequence they were covered by Article 3(1) of Directive 92/12. However, Article 3 of Directive 2003/96 stipulates that ‘references in Directive 92/12 … to “mineral oils” shall be interpreted as covering all energy products, electricity … referred to in Article 2 … of this Directive’.

50.      Since the coming into force of Directive 2003/96, Article 3(1) of Directive 92/12 must therefore be read thus: ‘[t]his Directive shall apply at Community level to the following products as defined in the relevant Directives: energy products and electricity …’. Lubricating oils are ‘energy products’ as defined in Article 2(1) of Directive 2003/96. (26) They are therefore ‘mineral oils’ for the purposes of Article 3(1) of Directive 92/12, as rewritten by Article 3 of Directive 2003/96. Article 3(3) of Directive 92/12 permits Member States to tax products ‘other than those listed in paragraph 1 [of Article 3]’. Since the lubricating oils in issue fall within Article 3(1), however, the power contained in Article 3(3) cannot be applied to them.

51.      That said, the absence of an express provision in Directive 92/12 authorising Member States to tax mineral oils used for non-fuel purposes does not, as I have already indicated, (27) prevent them from imposing such taxes.

 Conclusion

52.      I therefore propose that, in answer to the questions referred, the Court should rule as follows:

Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity does not preclude Member States from imposing a duty on consumption of mineral oils, including lubricating oils, used for non-fuel purposes.

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1 – Original language: English.

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2 – 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 in so far as relevant here by Council Directive 2004/75/EC of 29 April 2004 (OJ 2004 L 157, p. 100).

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3 – Council 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).

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4 – Case C‑437/01 Commission v Italy [2003] ECR I‑9861.

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5 – 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).

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6  – Article 1(1).

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7 – Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992 L 316, p. 19).

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8 – Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

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9 – It did not repeal or replace the ‘parent’ Directive 92/12, which remains in force.

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10 – See recitals 7 and 10 of the preamble.

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11 –      The second paragraph of Article 30 was added as an amendment by Directive 2004/75 (cited in footnote 2 above), whose fifth recital states that the wording of Article 30 should be clarified.

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12 – Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Consolidated Text of Legislative Provisions relating to duties on production and consumption and related criminal and administrative penalties), Legislative Decree No 504 of 26 October 1995 (GURI No 279 of 29 November 1995, Ordinary Supplement).

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13 – See footnote 4.

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14 – At paragraph 30.

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15 – See Case 6/64 Costa [1964] ECR 585, at pp. 592 and 593 and, more recently, Case C-346/97 Braathens Sverige [1999] ECR I-3419, paragraph 14.

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16 – The travaux préparatoires include the Commission’s proposal for a new directive on the taxation of energy products, COM(97) 30 final of 12 March 1997 and Council documents 13062/02 of 17 October 2002, 13422/02 of 29 October 2002, 14200/02 of 13 November 2002, 14862/02 ADD 1 of 27 November 2002 and 15354/02 of 9 December 2002. Document 14200/02 seems especially pertinent. It introduced proposals, inter alia, for what later became recital 22, Article 2(4)(b) and Article 14 of Directive 2003/96. It also set out the text of a joint statement from the Commission and the Council to be added to the Council’s minutes, which explicitly confirmed that Member States would be able to tax non-fuel uses. However, as to the value of such statements, see Case C-292/89 Antonissen [1991] ECR I-745, paragraph 18. The Council documents are accessible on http://register.consilium.europa.eu.

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17 – Case C-392/05, Opinion of 25 January 2007, at points 29 to 32.

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18 – See footnote 11 above.

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19 – Article 23(3) of Directive 92/12, which is not at issue in the present case.

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20 – At point 29.

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21 – At point 32.

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22 – Points 31 and 32.

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23 – See Case 283/81 CILFIT [1982] ECR 3415, paragraph 20.

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24 – The Court’s case law expresses this principle in a wealth of different contexts. See, for example, Case 120/78 Rewe-Zentral [1979] ECR 649, paragraph 8;Case 301/82SA Clin-Midy[1984] ECR 251, paragraph 6; Case 187/84 Giacomo Caldana[1985] ECR 3013, paragraph 19; Case C‑127/97 Burstein [1998] ECR I-6005, paragraph 31. The need for Member States to conform to the general principles of the EC Treaty in matters not subject to Community harmonisation is expressly stated in Case 270/83 Commission v France [1986] ECR 273, paragraph 24 and Case C‑294/00 Gräbner [2002] ECR I-6515, paragraph 26.

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25 – See point 8 above.

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26 – See point 14 above. The fact that non-fuel uses of lubricating oils fall outside the scope of Directive 2003/96 by virtue of Article 2(4) has no bearing on their inclusion within the definition of ‘energy products’ in Article 2 of that directive.

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27 – See points 45 and 46 above.