Opinion of Advocate General Sharpston (European Court of Justice, 2014)

European Union

Jurisdiction: European Court of Justice

Principle law(s): Energy taxation (Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity)

Side A: Advocate General Sharpton (Government)

Core objectives: Requesting guidance as to the meaning of the term "dual use" in Directive 2003/96/EC

Summary

Advocate General Sharpston was asked for guidance as to the meaning of the term "dual use" in the second indent of Article 2(4)(b) in relation to sugar production and lime fertiliser, the by-product arising from that process, of the Directive 2003/96/EC, which introduced a regime imposing minimum harmonised levels of taxation on all energy products and electricity. The referring court also asked whether national legislators are constrained by an EU concept of what constitutes dual use if they choose to introduce domestic measures in order to tax such energy products.

The Advocate General answered that "dual use" within the meaning of Article 2(4)(b) refers to where coal is used as heating fuel in a lime-kiln in order to generate carbon dioxide for the production of lime-kiln gas, which is subsequently used for the purification of the raw juice obtained from sugar beets, that process giving rise to the by-product earth foam. The Advocate General found that Member States may apply a more restrictive definition of dual use and choose to tax dual use energy products, provided they exercise their competence consistently with EU law. If a Member State chooses to apply such a narrower definition, a taxpayer cannot invoke a broader EU concept of dual use in order to obtain exoneration from a charge to tax imposed under national law.

Case documents

Judgment

Related laws and policies

This law implements European Union legislation

Energy taxation (Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity)

Passed in 2003 Legislative

Introduces generalised arrangements for the taxation of energy products and electricity. The Community system of minimum rates (previously confined to mineral oils) is extended to coal, natural gas and electricity. Energy products and electricity are only taxed when used as motor or heating fuel....