Tribunal de Justicia de la Unión Europea

Case C-292/02

Fecha: 15-Ene-2004

OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 15 January 2004 (1)

Case C-292/02

Meiland Azewijn BV

Hauptzollamt Duisburg

1.In this case the Finanzgericht (Finance Court) Düsseldorf, Germany, has referred a series of questions to the Court for a preliminary ruling on the interpretation of Community legislation on excise duties on mineral oils.

2.The effect of that legislation is that Member States may reduce the rate of excise duty on mineral oils used for certain purposes, or exempt them from such duty, but must apply a fiscal marker to mineral oils which are so treated. Where a business established in a Member State which has chosen to reduce the rate of duty on mineral oil used for a particular purpose purchases low-duty, and hence marked, mineral oil in that State and uses it for that purpose in a neighbouring Member State which has not so opted and which prohibits such use of marked mineral oil, there is obvious potential for conflict.

Relevant Community legislation

Legislation on excise duty on mineral oils

3.Council Directive 92/12 (2) provides that mineral oils, alcohol and alcoholic beverages and manufactured tobacco, to be defined in further directives, are to be subject to excise duty. The duty is to be chargeable at the time of release for consumption. (3)

4.Article 7 of Directive 92/12 however lays down a different rule for products subject to excise duty which, after being released for consumption in one Member State, are held for commercial purposes in another Member State. In such circumstances excise duty is to be levied in the Member State in which those products are held; (4) more specifically, where such products are used in that Member State for the purposes of a trader carrying out an economic activity, the duty is to become chargeable there and be payable by the trader. (5) When such products are moved between Member States they must be covered by an accompanying document listing certain prescribed information. (6) The trader must (a) before the goods are dispatched, make a declaration to the tax authorities of the Member State of destination and guarantee the payment of the duty and (b) pay the duty. (7) The excise duty paid in the first Member State is then to be reimbursed. (8)

5.The preamble to Council Directive 92/81 (9) includes the following statements:

‘… it is important to the proper functioning of the internal market to determine common definitions for all mineral oil products which shall be subject to the general excise monitoring scheme;

…

… it is appropriate to permit Member States to apply on an optional basis certain other exemptions or reduced rates within their own territory where this does not give rise to distortions of competition’. (10)

6.Article 1 of Directive 92/81 requires Member States to impose a harmonised excise duty on mineral oils and to fix their rates in accordance with Council Directive 92/82. (11) ‘Mineral oil’ is defined as including gas oil. (12)

7.Article 8 of Directive 92/81 concerns exemptions of mineral oils from excise duty.

8.Article 8(1)(a) requires Member States to exempt mineral oils used for purposes other than as motor fuels or as heating fuels.

9.Article 8(2) permits Member States to apply total or partial exemptions or reductions in the rate of duty to mineral oils used under fiscal control for certain other purposes. Those include, at (f), mineral oils used ‘exclusively in agricultural … works’.

10.Article 8(3) permits Member States to apply reduced rates of duty, subject to a minimum rate laid down in Directive 92/82, for gas oil used under fiscal control for further purposes including, at (c), ‘for vehicles intended for use off the public roadway or which have not been granted authorisation for use mainly on the public highway’.

11.Article 8(8) provides:

‘Member States shall be free to give effect to exemptions or reductions in the rate of [duty] mentioned in this article by refunding the excise duty paid.’

12.Article 8a(1) of Directive 92/81 displaces the general rule that, where products subject to excise duty have been released for consumption in one Member State but are held for commercial purposes in another Member State, excise duty is to be levied in the Member State in which those products are held. (13) It provides:

‘Mineral oils 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 excise duty in any other Member State.’

13.Article 8a(2) sets out the following definitions for the purposes of Article 8a(1):

‘“standard tanks” shall mean:

–: the tanks permanently fixed by the manufacturer to all motor vehicles of the same type as the vehicle in question and whose permanent fitting enables fuel to be used directly, both for the purpose of propulsion and, where appropriate, for the operation, during transport, of refrigeration systems and other systems.

Gas tanks fitted to motor vehicles designed for the direct use of gas as a fuel and tanks fitted to the other systems with which the vehicle may be equipped shall also be considered to be standard tanks,

–: tanks permanently fixed by the manufacturer to all containers of the same type as the container in question and whose permanent fitting enables fuel to be used directly for the operation, during transport, of the refrigeration systems and other systems with which special containers are equipped.

“Special container” shall mean any container fitted with specially designed apparatus for refrigeration systems, oxygenation systems, thermal insulation systems or other systems.’

14.Article 8a was added by Directive 94/74, (14) the preamble to which states:

‘… it is necessary to specify that mineral oils released for consumption in a Member State, contained in the fuel tanks of motor vehicles and intended to be used as fuel by such vehicles are exempt from excise duty in other Member States in order not to impede free movement of individuals and goods and in order to prevent double taxation’. (15)

Legislation on the marking of mineral oils

15.Under Article 9 of Directive 92/81, the Council was to 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.

16.Article 1(1) of Council Directive 95/60 (16) requires Member States to apply a fiscal marker to ‘all gas oil … which has been released for consumption … and has been exempt from, or subject to, excise duty at a [reduced] rate’.

17.The first paragraph of Article 3 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.’

Relevant national legislation

18.The facts giving rise to the main proceedings involve a conflict between the legislation of the Netherlands and of Germany. The Netherlands has chosen to implement the option in Article 8(2)(f) of Directive 92/81 by way of reduction in the rate of excise duty on mineral oils used for certain purposes, including fuel for agricultural vehicles; such oil is therefore marked. In Germany however the use of marked mineral oil for fuel is prohibited.

Netherlands legislation

19.Article 27(3) of the Wet op de accijns (Law on excise duty) (17) provides for a reduced rate of duty for marked gas oil which is to be used for a purpose other than to drive road-going motor vehicles or pleasure craft.

20.Article 91 of the Law on excise duty prohibits the keeping of marked gas oil in the standard fuel tanks of motor vehicles or pleasure craft, subject to exceptions to be laid down in a general administrative measure. Pursuant to that provision, Article 40 of the Uitvoeringsbesluit accijns (Excise duty implementing regulation (18) ) permits marked gas oil to be contained in the fuel tanks of motor vehicles which are both designed to be used off-road and used exclusively for agricultural purposes.

German legislation

21.Under Paragraph 3(2)(1) of the Mineralölsteuergesetz (Law on the taxation of mineral oils), (19) gas oil which is used for heating is subject to a reduced rate of excise duty. The second sentence of Paragraph 3(2) requires such gas oil to be marked by the addition of a specific combination of chemical additives.

22.The first sentence of Paragraph 19(2) of the Law on the taxation of mineral oils provides that when mineral oil released for consumption in a Member State is brought into national fiscal territory, excise duty is due if the oil is held or used for commercial purposes for the first time in that territory. By virtue of the third sentence, that provision does not apply to fuel in the standard tanks of, inter alia, agricultural and forestry vehicles.

23.Paragraph 26(4) of the Law on the taxation of mineral oils provides that mineral oil which contains markers may not be mixed with other mineral oil or held, sold, transported or used as fuel other than in accordance with specified exceptions, none of which is relevant in the present case. Paragraph 26(5) provides that mineral oil which is not intended for a permitted use may not be brought into or sold or used in the fiscal territory if it is mixed with markers. Paragraph 26(6) provides that any person who holds, sells, transports or uses mineral oil containing markers as fuel is liable to excise duty on the quantity of oil corresponding to the capacity of the fuel tank or standard tanks of the vehicle.

24.According to the referring court, the exemption in the third sentence of Paragraph 19(2) does not preclude liability to duty in the cases provided for by Paragraph 26(6).

The main proceedings and the questions referred

25.VOF Bod Giesen merged with Meiland Azewijn BV in May 2002. I shall refer to the merged entity as Meiland.

26.Since 1991 Meiland has been operating an agricultural service supply agency in the Netherlands to clients in the Netherlands and in Germany. Meiland’s work vehicles were refuelled each night for the following day’s work; since the refuelling was carried out in the Netherlands, the vehicles’ tanks were filled with marked diesel fuel. At the time of refuelling, it was often not known where the vehicles would be used the next day as clients might cancel at short notice because of the weather or it might be necessary to replace machinery that had broken down; vehicles allocated to work in Germany on a given day accordingly started the day with marked fuel in their tanks. It was not practicable to replace the marked diesel fuel acquired in the Netherlands with unmarked diesel fuel, the only fuel which could lawfully be used for the purpose in Germany. That was in part because some vehicles were in use in both Member States on the same day and in part because it was too time-consuming to empty or change over individual tanks. Because of the size of its business, it was also impossible for Meiland to keep harvesting machinery and tractors available exclusively for the German market.

27.On 29 September 2000, officials from the defendant’s mobile control unit checked two tractors and one combine harvester which Meiland was using in Germany to harvest corn. The machines were running on marked diesel fuel (gas oil).

28.The defendant issued an assessment charging Meiland with excise duty on mineral oils assessed according to the capacity of the tanks and the duty on taxed diesel fuel. Meiland objected to the assessment on the basis that it was contrary to Community law. In its decision dated 18 January 2001 the defendant dismissed the objection as unfounded since, under the Law on the taxation of mineral oils, marked gas oil could in general be used within the German fiscal area only for heating purposes and the importation of marked gas oil from other Member States for use in motor vehicles or to operate agricultural machinery was prohibited.

29.Meiland challenged that decision before the referring court, arguing essentially that the assessment to duty was in breach of Community law as Article 8(2)(f) of Directive 92/81 provides for an obligatory exemption from duty for mineral oils used exclusively in agricultural works and that the German legislation is contrary to Article 49 EC since it makes it impossible for Meiland to exercise its freedom to provide services between the Netherlands and Germany.

30.The referring court has accordingly stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

‘1.: Is Article 8a(1) of Directive 92/81/EEC to be construed as quite simply exempting mineral oil intended to be used as motor fuel from excise duty in the Member State to which it is brought in a standard tank of a commercial motor vehicle after it has been released for consumption in another Member State?

2.: If the answer to the first question should be in the affirmative, is Article 8a(1) of Directive 92/81/EEC directly applicable in relation to the claimant having regard to the rule in Paragraph 19(2) of the Mineralölsteuergesetz (Law on Excise Duty on Mineral Oils)?

3.: Are the administrative and control procedures for the reduction in excise duty which is possible under Article 8(2)(f) of Directive 92/81/EEC governed by Article 8(8) of Directive 92/81/EEC without the application of a marker or by Article 1(1) of Directive 95/60/EC?

4.: If the third question should be answered to the effect that the Member States which exercise the power under Article 8(2)(f) of Directive 92/81/EEC are obliged, in an instance comparable to the present case, to grant reductions in duty also in the form of a refund of excise duty, is a reduction in excise duty for agricultural works contrary to the freedom to provide services if the reduction is linked to a marking procedure under Article 1(1) of Directive 95/60/EC that is not applied in this context by other Member States, which on the contrary impose excise-duty penalties in the case of markings for which no provision is made under their legal systems?

5.: If the answer to the fourth question should be in the affirmative, does the breach of the freedom to provide services mean that liability to pay duty is expunged, or would the claimant, in order to achieve exemption from duty, be obliged to ask for unmarked mineral oil and apply for a refund of excise duty in the Member State in which it obtains marked gas oil at a reduced rate of duty?’

31.Written observations have been submitted by Meiland, the defendant, the Netherlands Government and the Commission; Meiland and the Commission were represented at the hearing. Meiland’s observations are limited to stressing the practical impossibility of changing its practices so as to avoid its agricultural vehicles operating in Germany with marked gas oil acquired in the Netherlands.

The first question referred

32.By its first question, the national court essentially asks whether Article 8a(1) of Directive 92/81 requires Member States to exempt mineral oil intended to be used as motor fuel from excise duty in the Member State to which it is brought in a standard tank of a commercial motor vehicle after it has been released for consumption in another Member State.

33.The terms of Article 8a(1) seem abundantly clear – mineral oils within the provision ‘shall not be subject to excise duty’ in any Member State other than that in which they were released for consumption. Since the phrasing of the question so closely mirrors that of the provision, the answer must be in the affirmative, as the Netherlands Government and the Commission submit.

34.It is clear however from the order for reference that the referring court put its first question – albeit in very general terms – because it doubts on two grounds whether Article 8a(1) applies in the circumstances of the main proceedings.

35.First, the referring court questions whether any mandatory exemption flowing from Article 8a(1) would extend to use of the fuel, after crossing the frontier, for the commercial working of the agricultural machinery. That court invokes the objective of Directive 92/81 which, as appears from the 19th recital in the preamble, (20) supports the view that Article 8a(1) is intended only to protect the free movement of persons and goods and avoid double taxation. The referring court considers that it would therefore be only the importation that would be exempted from excise duty and not commercial use extending beyond importation, in this case the commercial working of the agricultural machinery.

36.To my mind that approach involves an unduly restrictive interpretation of the requirement in Article 8a(1) that the mineral oil be ‘used as fuel by [commercial vehicles]’. Even if the commercial vehicle is used for commercial purposes, in the present case agricultural work, the mineral oil is used to propel it and hence as fuel. A broad interpretation accords with both the wording and the purpose of Article 8a. As the Commission submits, if the prohibition on subjecting to excise duty mineral oil in the standard tanks of commercial vehicles applied only to that part of the oil to be used as fuel in the narrow sense of providing energy simply for the linear movement of the vehicle without the working of its agricultural machinery, it would be necessary to distinguish the two types of use of mineral oils. It would consequently first be necessary to calculate the exact quantities used; that used for working the machinery only would then be subject to duty in the State where it was used, and reimbursement of the duty paid in the State where it was released for consumption would be subject to compliance with the conditions prescribed in the Directive 92/12. Such compliance however would be disproportionately onerous in circumstances such as those of the present case, and an interpretation of Article 8a(1) which imposed it would clearly hinder the freedom to provide services from one Member State into another.

37.It may also be added that the extensive scope of Article 8a, which explicitly covers mineral oil intended to be used for the operation of the systems equipping fuel containers and of refrigeration and other systems, supports the broader interpretation which I advocate.

38.Second, the referring court questions whether a Member State such as Germany, which has not chosen to reduce excise duty on mineral oils used in agricultural works pursuant to the option in Article 8(2)(f) of Directive 92/81 and which pursuant to Article 3 of Directive 95/60 prohibits the use of marked mineral oil as motor fuel, is none the less bound to permit the use of marked mineral oil as motor fuel where it has lawfully been bought as such, subject to reduced excise duty, in the Member State where it was released for consumption. If it does permit such use, Germany might be thought to be infringing Article 3 of Directive 95/60, which requires Member States to take the necessary steps to ensure that improper use of marked mineral oil is avoided and in particular that it cannot be used for combustion in the engine of a road-going motor vehicle or kept in its fuel tank.

39.I accept that, if Germany were required to permit the presence in the fuel tanks of agricultural vehicles in Germany of mineral oil marked and released for consumption in the Netherlands, although the use for agricultural vehicles of mineral oil marked and released for consumption in Germany is prohibited, that could complicate the system of control of the lawful use of marked mineral oils which it is required to set up by Article 3 of Directive 95/60. The tension between the rules on marking laid down by that directive and the requirement in Article 8a of Directive 92/81 that such use is not to be subject to excise duty in the Member State to which it is brought is the consequence of different degrees of harmonisation of the substantive and formal rules of the Community excise duty system. As the Commission submits, such a conflict must be resolved in favour of the substantive rules. (21) Article 8a requires exemption from duty in the State of consumption in specific circumstances. That provision is both unequivocal and necessary in order to ensure free movement of persons and goods and freedom to provide services and to avoid double taxation. Its scope cannot therefore be limited by procedures for the purpose of improving controls and preventing abuse.

40.Moreover, Article 3 of Directive 95/60 refers only to the control of ‘improper use’ of marked mineral oil. More specifically, it requires Member States to ensure that such oil 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’. In my view it is clear that a use permitted by a Member State in accordance with Community law cannot be ‘improper’ within the meaning of Article 3. That interpretation is supported by the objectives of Directive 95/60: according to its preamble, the measures envisaged are ‘not only necessary but also indispensable for the attainment of the objectives of the internal market’ and required for ‘the proper functioning of the internal market’. (22) An interpretation of Article 3 which precluded as improper the use as fuel in one Member State of mineral oil lawfully bought for such use in another Member State would run counter to those objectives.

41.I accordingly remain of the view that Article 8a(1) requires Member States to exempt mineral oil intended to be used as motor fuel from excise duty in the Member State to which it is brought in a standard tank of a commercial motor vehicle in circumstances where it was lawfully purchased subject to a reduced rate of excise duty in another Member State.

42.That interpretation, however, does not necessarily dispose of the issue which prompted the referring court’s first question. Article 8a is relevant only if vehicles such as those in question (two tractors and a combine harvester) are ‘commercial motor vehicles’ within the meaning of that provision. The defendant submits that that is not the case. While accepting that there is no definition of the term in Directive 92/81, the defendant relies by analogy on definitions of the same term in other Community legislation, in particular in Council Directive 68/297 (23) and Council Regulation No 918/83. (24)

43.Article 2 of Directive 68/297 defines ‘commercial motor vehicle’ as ‘any motorised road vehicle which by its type of construction and equipment is designed for, and capable of, transporting, whether for payment or not: (a) more than nine persons, including the driver; (b) goods’. Article 112(2)(a) of Regulation No 918/83 defines the term as:

‘any motorised road vehicle (including tractors with or without trailers) which by its type of construction and its equipment is designed for and capable of transporting, whether for payment or not:

–: more than nine persons including the driver,

–: goods,

and any road vehicle for a special purpose other than transport as such’.

The defendant concludes that the scope of Article 8a of Directive 92/81 covers only road vehicles which transport people and goods and hence does not extend to tractors and combine harvesters.

44.I do not accept that argument. As the Commission submitted at the hearing, the two definitions of ‘commercial motor vehicles’ in the legislation invoked by the defendant are in any event not co-terminous, since that in Regulation No 918/83 is expressed to include both tractors and ‘any road vehicle for a special purpose other than transport as such’. Moreover – and more significantly – the objectives of the legislation cited by the defendant are different from those of Directive 92/81. Directive 68/297 was based on Articles 75 and 99 of the EC Treaty (now Articles 71 and 93 EC). Article 75 empowered the Council to enact legislation for the purpose of implementing Article 74 EC, which refers to a common transport policy. The directive itself concerns the establishment of common rules for international transport to, from or through the territory of a Member State. (25) It is obvious from that context that the directive concerns vehicles involved in the international transport of passengers and goods; it is hardly surprising that tractors and combine harvesters do not fall within its scope. Regulation No 918/83, on the other hand, is based on Articles 28, 43 and 235 of the EC Treaty (now Articles 26, 37 and 308 EC). Article 28 concerned customs duties and Article 43 the common agricultural policy. The regulation concerns relief from customs duties and agricultural levies and applies to a wide range of goods (from trousseaux to coffins, bee-keeping products, human blood and gifts to reigning monarchs (26) ). Article 112 is in a title with the broad heading ‘Fuel and lubricants present in land motor vehicles and special containers’ and covers fuel contained in the standard tanks of private and commercial motor vehicles and motor cycles. Again it is unsurprising that legislation cast so widely should include fuel in tractor tanks.

45.Such differences make questionable any assumption that the term ‘commercial motor vehicle’ has a settled meaning in Community law. In my view the scope of that term in Directive 92/81 cannot be determined by reference to other legislation but must rather be derived autonomously from the scheme and purpose of that directive.

46.The aim of Directive 92/81 is to further the internal market; (27) the aim of Directive 94/74 in introducing Article 8a into Directive 92/81 was to promote the free movement of individuals and goods. (28) As discussed above, (29) an interpretation of Article 8a which precluded in circumstances such as those of the present case the use in one Member State of mineral oil lawfully purchased for such use in another Member State would mean that a business such as Meiland would be liable to pay excise duty in Germany on the mineral oil purchased in the Netherlands and contained in its vehicles’ tanks. Although there would be a concomitant entitlement to a reimbursement of the duty paid in the Netherlands, that entitlement would arise only if Meiland produced on each occasion a document containing the information prescribed by Article 7(4) of Directive 92/12. Such a result would clearly deter such businesses from providing services into another Member State.

47.I accordingly conclude that the answer to the first question should be that Article 8a(1) of Directive 92/81 prohibits Member States from subjecting to excise duty mineral oil, whether marked or ummarked, contained in the standard tank of a commercial motor vehicle which is intended to be used as fuel by that vehicle and which has already been released for consumption in another Member State where it was purchased for use which is lawful in that Member State. It is irrelevant whether the mineral oil is used solely to propel the vehicle or also for carrying out commercial operations by the vehicle in the Member State to which it is brought.

The second question referred

48.By its second question, which arises only if the first question is answered in the affirmative, the referring court asks whether Article 8a(1) of Directive 92/81 has direct effect.

49.That court states in the order for reference that it has no fundamental doubts since the content of Article 8a is both unconditional and sufficiently precise to enable it to be invoked by the claimant in a given case.

50.The Netherlands Government and the Commission concur, citing Becker (30) and Braathens Sverige. (31)

51.It is clear from that case-law that Article 8a(1) fulfils the criteria required in order for a provision of a directive to have direct effect. The Court has ruled that wherever such a provision appears to be unconditional and sufficiently precise, it may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as it defines rights which individuals are able to assert against the State. (32) With particular reference to Directive 92/81, the Court has stated that, although that directive 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 their particular subject-matter, are capable of being severed from the general body of provisions and applied as such. (33) Article 8a(1) imposes on the Member States the clear and precise obligation not to impose excise duty on mineral oils released for consumption in a Member State, contained in the standard tanks of commercial vehicles and intended to be used as fuel by those same vehicles. It accordingly satisfies the requirements for direct effect.

The third question referred

52.By its third question, which arises only if either of the first two questions is answered in the negative, the referring court asks whether the administrative and control procedures for the reduction in excise duty which is possible under Article 8(2)(f) of Directive 92/81 are governed by Article 8(8) of that directive without the application of a marker or by Article 1(1) of Directive 95/60.

53.Given the answers which I propose to the first and second questions referred, the third question does not arise. However, since both the Netherlands and the Commission have submitted observations, I will briefly consider the issue raised.

54.It appears from the order for reference that the third question was prompted because the referring court considers that it is impossible to infer from Community law whether a Member State wishing to apply a reduction in the rate of duty pursuant to the option in Article 8(2)(f) must do so by reimbursement of the excess duty pursuant to Article 8(8) of Directive 92/81 or whether it must mark the mineral oils concerned pursuant to Article 1(1) of Directive 95/60.

55.As both the Netherlands and the Commission note, a Member State which uses the option provided by Article 8(2)(f) of Directive 92/81 may do so in one of two ways: it may provide that mineral oil to be used for the permitted purpose is to be directly released for consumption at a reduced rate of duty, or it may, by availing itself of the further option in Article 8(8), provide that that mineral oil is to be released for consumption subject to excise duty at the normal rate and subsequently refund the duty paid. Where a Member State opts for refunding pursuant to Article 8(8), mineral oil released for consumption subject to excise duty at the normal rate clearly cannot be described as mineral oil which ‘has been released for consumption … and has been exempt from, or subject to, excise duty at a [reduced] rate’ within the meaning of Article 1(1) of Directive 95/60; it will accordingly not fall within the scope of that provision and application of a fiscal marker will consequently not be required.

56.The problem which underlies the referring court’s third question would in my view arise only if Member States were required to give effect to exemptions or reductions in the rate of excise duty by refunding the duty paid in accordance with Article 8(8). It is abundantly clear from its wording however (‘Member States shall be free to give effect to exemptions or reductions … by refunding the excise duty paid’ (34) ) that Article 8(8) confers an option. Where a Member State does not avail itself of that option but chooses instead to exempt mineral oils from excise duty or to impose duty at a reduced rate when they are released for consumption, Article 1(1) of Directive 95/60 will apply and the Member State will be required to apply a fiscal marker to the mineral oil.

The fourth and fifth questions referred

57.The referring court’s fourth and fifth questions concern the compatibility of the national legislation with the Treaty provisions on the freedom to provide services. The fourth question arises only if the third question should be answered to the effect that Member States which make use of the option conferred by Article 8(2)(f) of Directive 92/81 to apply exemptions or reductions in the rate of duty to mineral oils used in, for example, agricultural works are obliged to apply the exemptions or reductions in the form of a refund of excise duty. The fifth question arises only if the answer to the fourth question is in the affirmative.

58.Given the answer which I have proposed to the third question, neither the fourth nor the fifth question calls for an answer.

Conclusion

59.I am accordingly of the view that the questions referred by the Finanzgericht Düsseldorf should be answered as follows:

(1): Article 8a(1) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils prohibits Member States from subjecting to excise duty mineral oil, whether marked or unmarked, contained in the standard tank of a commercial motor vehicle which is intended to be used as fuel by that vehicle and which has already been released for consumption in another Member State where it was purchased for use which is lawful in that Member State. It is irrelevant whether the mineral oil is used solely to propel the vehicle or also for carrying out commercial operations by the vehicle in the Member State to which it is brought.

(2): Article 8a(1) of Council Directive 92/81/EEC may be relied on by individuals in proceedings before national courts in order to contest national rules that are incompatible with that prohibition.

1 –: Original language: English.

2 –: 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.

3 –: Articles 3(1), 5(1) and 6(1).

4 –: Article 7(1).

5 –: Article 7(2) and (3).

6 –: Article 7(4). The form and content of the document are laid down by Commission Regulation (EEC) No 3649/92 of 17 December 1992 on a simplified accompanying document for the intra-Community movement of products subject to excise duty which have been released for consumption in the Member State of dispatch, OJ 1992 L 369, p. 17.

7 –: Article 7(5).

8 –: Article 7(6).

9 –: 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, as amended by Council Directives 92/108/EEC of 14 December 1992, OJ 1992 L 390, p. 124, and 94/74/EC of 22 December 1994, OJ 1994 L 365, p. 46.

10 –: Third and sixth recitals.

11 –: 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.

12 –: Article 2, referring to the Combined Nomenclature, the material version of which is annexed to Commission Regulation (EEC) No 2551/93 of 10 August 1993 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1993 L 241, p. 1.

13 –: Article 7(1) of Directive 92/12; see paragraph 4 above.

14 –: Cited in note 9.

15 –: Nineteenth recital.

16 –: Council Directive 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene, OJ 1995 L 291, p. 46.

17 –: Law of 31 October 1991, Staatsblad 561.

18 –: Regulation of 20 December 1991, Staatsblad 754.

19 –: Law of 21 December 1992 (BGBl. I, p. 2185).

20 –: See paragraph 14 above.

21 –: See Case C-482/98 Italy v Commission [2000] ECR I-10861, paragraphs 50 and 51 of the judgment.

22 –: First and second recitals.

23 –: Council Directive 68/297/EEC of 19 July 1968 on the standardisation of provisions regarding the duty-free admission of fuel contained in the fuel tanks of commercial motor vehicles, OJ English Special Edition (1968) II, p. 313, as amended by Council Directive 85/347/EEC of 8 July 1985, OJ 1985 L 183, p. 22.

24 –: Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, OJ 1983 L 105, p. 1, as amended by Council Regulation (EEC) No 1315/88 of 3 May 1988, OJ 1988 L 123, p. 2.

25 –: See the first recital in the preamble.

26 –: Articles 11, 118, 39, 61 and 90.

27 –: See the third and sixth recitals in the preamble, set out in paragraph 5 above.

28 –: See the 19^th recital in the preamble, set out in paragraph 14 above.

29 –: See paragraph 36.

30 –: Case 8/81 [1982] ECR 53, paragraph 25 of the judgment.

31 –: Case C-346/97 [1999] ECR I-3419, paragraphs 30 to 32 of the judgment.

32 –: .Braathens Sverige, cited in note 31, paragraph 29 of the judgment.

33 –: Ibid., paragraph 30.

34 –: In French: ‘Les Etats membres ont la faculté’; in German: ‘Es ist den Mitgliedstaaten freigestellt’.