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Corte di giustizia UEsentenza

Corte di giustizia UE/2013

ECLI:EU:C:2013:274
Testo integrale del provvedimento

Testo integrale del provvedimento

62012CJ0055_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] C‑55/12,

ACTION for failure to fulfil obligations under [OSCURATO:PERSONA] 258 TFEU, brought on 2 February 2012, [OSCURATO:PERSONA], represented by R. Lyal and W. Mölls, acting as Agents, with an address for service in Luxembourg, applicant, v [OSCURATO:PERSONA], represented by E. Creedon, acting as Agent, and N. Travers, BL, defendant,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of A. Rosas, President of the [OSCURATO:PERSONA], D. Šváby and C. Vajda (Rapporteur), [OSCURATO:PERSONA]: P. [OSCURATO:PERSONA],

[OSCURATO:PERSONA]: A. [OSCURATO:PERSONA],

having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following

[OSCURATO:PERSONA]

1. By its application, the [OSCURATO:PERSONA] seeks from the [OSCURATO:PERSONA] a declaration that, by granting an exemption from excise duty on fuel used by disabled persons for motor vehicles without respecting the minimum levels of taxation prescribed by [OSCURATO:PERSONA] 2003/96/EC of 23 October 2003 restructuring the Community framework of taxation of energy products and electricity (OJ 2003 L 283, p. 51), as amended by [OSCURATO:PERSONA] 2004/74/EC of 29 April 2004 (OJ 2004 L 195, p. 26) (‘[OSCURATO:PERSONA] 2003/96’), [OSCURATO:PERSONA] had failed to fulfil its obligations under that directive.

Legal context [OSCURATO:PERSONA] legislation

2. [OSCURATO:PERSONA] 2003/96 establishes minimum levels of taxation applicable by [OSCURATO:PERSONA] to energy products and electricity.

It also gives [OSCURATO:PERSONA] the option of applying differentiated rates of taxation and granting exemptions or reductions in the level of taxation, in accordance with the conditions laid down in the directive.

3. [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 2003/96 provides as follows: ‘[OSCURATO:PERSONA] shall impose taxation on energy products and electricity in accordance with this [OSCURATO:PERSONA].’

4. [OSCURATO:PERSONA] 2(3) of [OSCURATO:PERSONA] 2003/96 is worded as follows: ‘When intended for use, offered for sale or used as motor fuel or heating fuel, energy products other than those for which a level of taxation is specified in this [OSCURATO:PERSONA] shall be taxed according to use, at the rate for the equivalent heating fuel or motor fuel.

In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels, shall be taxed at the rate for the equivalent motor fuel. …’

5. [OSCURATO:PERSONA] 4 of the directive is worded as follows: ‘1.

The levels of taxation which [OSCURATO:PERSONA] shall apply to the energy products and electricity listed in [OSCURATO:PERSONA] 2 may not be less than the minimum levels of taxation prescribed by this [OSCURATO:PERSONA].

2. For the purpose of this [OSCURATO:PERSONA] “level of taxation” is the total charge levied in respect of all indirect taxes (except [value added tax, ‘VAT’]) calculated directly or indirectly on the quantity of energy products and electricity at the time of release for consumption.’

6. [OSCURATO:PERSONA] 6(c) of [OSCURATO:PERSONA] 2003/96 gives [OSCURATO:PERSONA] the option of giving effect to the exemptions or reductions in the level of taxation prescribed by the directive by, inter alia, ‘refunding all or part of the amount of taxation’.

7. [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96 provides as follows: ‘By way of derogation from the provisions of the present [OSCURATO:PERSONA], the [OSCURATO:PERSONA] specified in Annex II are authorised to continue to apply the reductions in the levels of taxation or the exemptions set out in that Annex.

Subject to a prior review by the [OSCURATO:PERSONA], on the basis of a proposal from the [OSCURATO:PERSONA], this authorisation shall expire on 31 December 2006 or on the date specified in Annex II.’

8. [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96 provides for the following: ‘In addition to the provisions set out in the previous Articles …, the [OSCURATO:PERSONA], acting unanimously on a proposal from the [OSCURATO:PERSONA], may authorise any [OSCURATO:PERSONA] to introduce further exemptions or reductions for specific policy considerations.

A [OSCURATO:PERSONA] wishing to introduce such a measure shall inform the [OSCURATO:PERSONA] accordingly and shall also provide the [OSCURATO:PERSONA] with all relevant and necessary information. [OSCURATO:PERSONA] shall examine the request, taking into account, inter alia, the proper functioning of the internal market, the need to ensure fair competition and Community health, environment, energy and transport policies.

Within three months of receiving all relevant and necessary information, the [OSCURATO:PERSONA] shall either present a proposal for the authorisation of such a measure by the [OSCURATO:PERSONA] or, alternatively, shall inform the [OSCURATO:PERSONA] of the reasons why it has not proposed the authorisation of such a measure.’

9. Annex I to [OSCURATO:PERSONA] 2003/96 sets out the minimum levels of taxation applicable, inter alia, to motor fuels.

10. Section 7 of Annex II to [OSCURATO:PERSONA] 2003/96, entitled ‘[OSCURATO:PERSONA]’, includes, among the uses of energy products for which the reduced rates of taxation and exemptions referred to in [OSCURATO:PERSONA] 18(1) of the directive may be granted, the use of such products by disabled persons for motor vehicles.

That derogation was to be applicable, in the absence of any reference to another date in Section 7 of Annex II, until 31 December 2006.

Irish legislation

11. [OSCURATO:PERSONA] the laws and regulations relating to the tax measures in question, persons suffering from severe permanent disability in [OSCURATO:PERSONA] are entitled to repayment of excise duty levied on fuel for motor vehicles which they use as driver or passenger.

The repayment is limited to an annual maximum of 600 gallons per beneficiary or, where the beneficiary is an organisation primarily engaged in providing assistance to disabled persons, a maximum of 900 gallons per annum per vehicle.

12. Section 100(1) of the [OSCURATO:PERSONA] 1999, in the version applicable at the material time, is worded as follows: ‘Subject to it being shown to the satisfaction of the [OSCURATO:PERSONA] that the condition or conditions in this section which are necessary for eligibility for relief from mineral oil tax and any other conditions imposed by the [OSCURATO:PERSONA] have been complied with, a relief from mineral oil tax shall be granted on: … (k) mineral oil in respect of which the Minister thinks it proper to repay or remit mineral oil tax or part of that tax to the extent that the Minister thinks proper.’

13. Section 92(1) of the [OSCURATO:PERSONA] 1989 provides that, notwithstanding anything to the contrary contained in any enactment, the Minister for [OSCURATO:PERSONA] may, after consultation with the Minister for Health and the Minister for the Environment, make regulations providing for the following: (a) the repayment of excise duty and [VAT] and the remission of road tax in respect of a motor vehicle used by a severely and permanently disabled person: (i) as a driver, where the disablement is of such a nature that the person concerned could not drive any vehicle unless it is specially constructed or adapted to take account of that disablement, or (ii) as a passenger, where the vehicle has been specially constructed or adapted to take account of the passenger’s disablement, and, where the vehicle is adapted, the cost of such adaptation consists of not less than 30 per cent of the value of the vehicle excluding tax and excise duty, or such lesser percentage in respect of certain cases as may be specified by regulations in respect of the repayment of any tax relating to adaptation costs only, and (b) the repayment of excise duty relating to hydrocarbon oil used for combustion in the engines of vehicles, to be specified in the regulations, by such a severely and permanently disabled person.’

14. Regulation 2(1) of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) Regulations, 1994 (‘the 1994 Regulations’) defines the categories of persons eligible for repayment of excise duty and Regulations 8 to 13 contain specific provisions concerning such repayment for each category of eligible persons.

15. Regulation 16 of the 1994 Regulations, entitled ‘Fuel repayments’, is worded as follows: ‘(1) The excise duty paid on any fuel used for combustion in the engine of a vehicle on which repayment or remission of tax, or residual vehicle registration tax has been granted in accordance with these Regulations shall be repaid by the [OSCURATO:PERSONA] where the use of the fuel was related to the transportation of the disabled person or persons concerned whether as driver of passenger. (2) Where the repayment or remission of tax or residual vehicle registration tax was made under Regulation 8 or 10, the repayment of excise duty on fuel referred to in paragraph (1) shall be limited to the duty on an annual maximum of 600 gallons per beneficiary. (3) Where the repayment or remission of tax or residual vehicle registration tax was made under Regulation 12, the repayment of excise duty on fuel referred to in paragraph (1) shall be limited to the duty on an annual maximum of 900 gallons per vehicle. (4) The excise duty paid on any fuel used for combustion in the engine of a vehicle which would have qualified for repayment or remission of [VAT], vehicle registration tax or residual vehicle registration tax in accordance with these Regulations but for the fact that the vehicle was purchased prior to the coming into effect of these Regulations, shall be repaid by the [OSCURATO:PERSONA] where the use of the fuel was related to the transportation of the disabled person or persons concerned whether as driver or passenger, and the provisions of paragraphs (2) and (3) shall apply with any necessary modifications.’ The pre‑litigation procedure

16. On 23 September 2008, the [OSCURATO:PERSONA] sent a letter of formal notice to [OSCURATO:PERSONA] in which it claimed that that [OSCURATO:PERSONA] had failed to fulfil its obligations under [OSCURATO:PERSONA] 2003/96, in so far as concerns the minimum levels of taxation prescribed by the directive, and that [OSCURATO:PERSONA] had failed to notify the [OSCURATO:PERSONA] of the measures taken to comply with the provisions of the directive.

17. By letter of 23 January 2009, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that, although certain legislative measures had been adopted, with effect from 1 November 2008, to comply with the minimum levels of taxation in question, the exemption from excise duty of fuel used by disabled persons for motor vehicles was still applicable. [OSCURATO:PERSONA] also requested a further reasonable period of time within which to comply with [OSCURATO:PERSONA] 2003/96.

18. In the absence of any further communication from [OSCURATO:PERSONA] in response to the letter of formal notice, on 7 May 2010 the [OSCURATO:PERSONA] sent a reasoned opinion to that [OSCURATO:PERSONA], in which it contended that [OSCURATO:PERSONA] had failed to fulfil its obligations under [OSCURATO:PERSONA] 2003/96 by failing to adopt the measures necessary to comply with the directive as regards the rate of taxation of fuel for motor vehicles used by disabled persons. [OSCURATO:PERSONA] requested [OSCURATO:PERSONA] to adopt, within two months of receipt of the reasoned opinion, the measures necessary to comply with it.

19. In its response to the reasoned opinion of 22 July 2010, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that the necessary measures would be adopted with effect from 1 April 2011.

By letter of 5 October 2010, that [OSCURATO:PERSONA] stated that the adjustments necessary to comply with [OSCURATO:PERSONA] 2003/96 required amendments to be made to the [OSCURATO:PERSONA] of 1989 and 1999 and/or the 1994 Regulations.

It indicated that those amendments would be enacted in March 2011 in the context of the [OSCURATO:PERSONA] 2011 and that it was anticipated that the 1994 Regulations would be amended at the same time.

20. [OSCURATO:PERSONA], by letter of 30 May 2011, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that the enactment of the amendments necessary to bring it into line with [OSCURATO:PERSONA] 2003/96 had been deferred, pending the outcome of a full review of public expenditure. [OSCURATO:PERSONA] stated that the 2012 [OSCURATO:PERSONA], due to be enacted in March 2012, would be the first opportunity available for amendment of the provisions in question.

21. Since it did not receive any further information enabling to conclude that the measures necessary for compliance with [OSCURATO:PERSONA] 2003/96 had been adopted, the [OSCURATO:PERSONA] decided to bring the present action. The action Arguments of the parties

22. [OSCURATO:PERSONA] points out that, pursuant to [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 2003/96, the levels of taxation applied by [OSCURATO:PERSONA] to energy products and electricity may not be less than the minimum levels prescribed by the directive.

All motor fuels should, in principle, be taxed at rates which comply with the minimum requirements set out in [OSCURATO:PERSONA] 4 of the directive. [OSCURATO:PERSONA] comply with the minimum levels of taxation prescribed by the directive, they are authorised, under [OSCURATO:PERSONA] 5, to apply differentiated rates in the instances set out in the directive, including in respect of motor fuel for motor vehicles used by disabled persons.

23. [OSCURATO:PERSONA] states that, during the pre-litigation stage, [OSCURATO:PERSONA] did not dispute the infringement alleged but simply sought an additional period of time within which to make the requisite changes.

Some five years following the expiry, on 31 December 2006, of the derogation granted to [OSCURATO:PERSONA] under the first subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96, that [OSCURATO:PERSONA] had still not made the necessary changes.

24. [OSCURATO:PERSONA] submits, first, that the rates of taxation applied to motor fuels manifestly exceed the minimum rates of taxation prescribed by [OSCURATO:PERSONA] 2003/96.

It states that, contrary to what is claimed by the [OSCURATO:PERSONA], the national tax scheme does not provide for an ‘exemption from excise duty of motor fuels used by disabled people’ but for a repayment to severely disabled persons of the cost of the excise duty component of purchases of motor fuel, up to a maximum amount of such fuel.

According to [OSCURATO:PERSONA], that scheme does not have the effect of applying a rate of taxation below the minimum rate prescribed by the directive, since excise duty has already been paid by oil warehouses.

The payment made by the [OSCURATO:PERSONA] is simply a social payment to severely disabled persons.

25. [OSCURATO:PERSONA], [OSCURATO:PERSONA] refers to the application which it made to the [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96 for authorisation to exempt fuel used by vehicles for the transport of disabled persons from excise duty.

According to that [OSCURATO:PERSONA], although the [OSCURATO:PERSONA] recognised in its reply that the purpose of the application was to compensate for the significant costs incurred by persons with reduced mobi lity, it none the less rejected the application, stating that the specific needs relating to the economic resources of the persons concerned could be dealt with more appropriately by means of targeted instruments which are compatible with the prescribed minimum levels of taxation. [OSCURATO:PERSONA] is at a loss to understand what reasons could justify a refusal to retain the current payment scheme, given that it achieves the same result.

26. [OSCURATO:PERSONA], [OSCURATO:PERSONA] maintains that it would be difficult to devise a new scheme that is unrelated to excise duty levied on the sale of motor fuel.

It adds that there is constant pressure to broaden the scope of the current scheme so as to widen the very restricted range of qualifying disabilities and thereby allow more disabled persons to qualify for the scheme.

27. [OSCURATO:PERSONA] submits that, even if it were accepted that the national scheme at issue were at odds with the wording of [OSCURATO:PERSONA] 2003/96, Articles 4 and 5 of the directive should not be interpreted in an absolutist manner, so that the continued operation of a scheme whose effect on the proper functioning of the internal market is remote, or at least uncertain, is not incompatible with the directive.

According to that [OSCURATO:PERSONA], the continuance of the scheme would neither affect the uniform application of the directive nor undermine its harmonisation objective.

28. [OSCURATO:PERSONA] responds to [OSCURATO:PERSONA] arguments by stating, first, that, contrary to what is claimed by that [OSCURATO:PERSONA], the full reimbursement of excise duty levied by [OSCURATO:PERSONA] constitutes, for the purposes of [OSCURATO:PERSONA] 6(c) of [OSCURATO:PERSONA] 2003/96, one of the forms in which an exemption from the level of taxation prescribed by the directive may be granted.

An interpretation of the directive to the effect that only the duty levied at the point of release for consumption is to be taken into account and that reimbursements of excise duty are to be disregarded would have the effect of depriving the provisions of the directive laying down minimum levels of taxation of any practical effect.

29. Next, with regard to the interpretation of Articles 4 and 5 of [OSCURATO:PERSONA] 2003/96, the [OSCURATO:PERSONA] is of the view that the [OSCURATO:PERSONA] legislature required, in clear terms, observance of minimum levels of taxation, having struck a balance between considerations pertaining to the proper functioning of the internal market and the environment on the one hand, and the particular situation of certain categories of consumers, including disabled persons, on the other.

30. Lastly, the [OSCURATO:PERSONA] contests [OSCURATO:PERSONA] argument that the national scheme at issue has no effect on the proper functioning of the internal market and the claim that that [OSCURATO:PERSONA] may rely, in these infringement proceedings, on the [OSCURATO:PERSONA]’s refusal to propose a derogation under [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96.

Findings of the [OSCURATO:PERSONA]

31. [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2003/96 provides that the levels of taxation which [OSCURATO:PERSONA] are to apply to energy products and electricity may not be less than the minimum levels prescribed by the directive.

It is apparent from the first subparagraph of [OSCURATO:PERSONA] 18(1) of the directive and Annex II thereto that [OSCURATO:PERSONA] was authorised to apply until 31 December 2006, by way of derogation from the provisions of the directive, reduced rates of taxation and exemptions in respect of fuel used by disabled persons for motor vehicles.

32. It is common ground that the repayment of excise duty on fuel for such vehicles referred to in Section 100(1) of the [OSCURATO:PERSONA] 1999, Section 92 of the [OSCURATO:PERSONA] 1989 and Regulation 2(1) of the 1994 Regulations continued to be applied in [OSCURATO:PERSONA] after 31 December 2006, even though that [OSCURATO:PERSONA] had no such authorisation.

33. In those circumstances, the [OSCURATO:PERSONA] finds that, since the expiry on 31 December 2006 of the derogation granted to [OSCURATO:PERSONA], the repayment of excise duty provided for under Irish legislation in respect of fuel used by disabled persons for motor vehicles has been contrary to the terms of [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2003/96, which requires adherence to minimum levels of taxation for energy products and electricity.

34. That finding is not invalidated by the arguments put forward by [OSCURATO:PERSONA] in its defence.

35. [OSCURATO:PERSONA], [OSCURATO:PERSONA] maintains, as set out at paragraph 24 above, that it is necessary to draw a distinction between the repayment provided for under the national legislation at issue and the concept of ‘exemption’ within the meaning of [OSCURATO:PERSONA] 2003/96, and claims that, as a consequence, the excise duty levied on fuel used by disabled persons for motor vehicles exceeds the minimum levels of taxation prescribed by the directive.

36. That argument cannot be accepted.

37. [OSCURATO:PERSONA] 6(c) of [OSCURATO:PERSONA] 2003/96 refers to the ‘refunding [of] all or part of the amount of taxation’ as one of the options available to [OSCURATO:PERSONA] for giving effect to the exemptions from or reductions in the level of taxation set out in the directive. [OSCURATO:PERSONA], [OSCURATO:PERSONA] has not been authorised to avail itself of that option since the expiry of the derogation provided by [OSCURATO:PERSONA] 2003/96.

38. Furthermore, it is apparent from the wording of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 2003/96 that it is possible for an ‘exemption’ within the meaning of that provision not to be applied by a [OSCURATO:PERSONA] directly but for it to be granted by it in the form of a refund.

39. It follows that the effect of accepting [OSCURATO:PERSONA] argument set out at paragraphs 24 and 35 above would be to circumvent the statutory rules on derogation set out in Articles 6, 18 and 19 of [OSCURATO:PERSONA] 2003/96 and Annex II to the directive.

40. [OSCURATO:PERSONA], account cannot be taken of the social nature of the repayment provided for by the national legislation at issue, to which [OSCURATO:PERSONA] alludes, because, under [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 2003/96, [OSCURATO:PERSONA] may grant only the exemptions or reductions in the level of taxation prescribed by the directive.

It is common ground that, since 31 December 2006, no derogation enabling [OSCURATO:PERSONA] to grant an exemption from the minimum level of taxation of fuel used by disabled persons for motor vehicles has been applicable.

41. Accordingly, the argument relied on by [OSCURATO:PERSONA] to the effect that the excise duty levied in that [OSCURATO:PERSONA] on fuel used by disabled persons for motor vehicles is above the minimum levels of taxation prescribed by [OSCURATO:PERSONA] 2003/96 cannot be accepted, since it is not disputed that that duty is subsequently reimbursed to the persons concerned by the [OSCURATO:PERSONA], such reimbursement thereby neutralising the effect of that taxation.

42. [OSCURATO:PERSONA], [OSCURATO:PERSONA] argument set out at paragraph 25 above – by which that [OSCURATO:PERSONA] complains that the [OSCURATO:PERSONA] refused to comply with its request that that institution propose a derogation, pursuant to [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96, enabling it to grant an exemption from the minimum levels of taxation applicable to fuel used by disabled persons for motor vehicles – cannot be accepted.

43. Indeed, it cannot be accepted that a [OSCURATO:PERSONA] may unilaterally circumvent the requirement to comply with the obligations laid down in a directive on the ground that the [OSCURATO:PERSONA] did not, in accordance with the procedure laid down by that directive, comply with its request for a derogation. [OSCURATO:PERSONA], [OSCURATO:PERSONA] cannot call into question, in the course of infringement proceedings seeking a declaration that that [OSCURATO:PERSONA] failed to adhere to the minimum levels of taxation prescribed by the directive, the grounds on which the [OSCURATO:PERSONA] refused to propose a derogation under [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96.

44. [OSCURATO:PERSONA], the argument set out at paragraph 26 above that [OSCURATO:PERSONA] would have to deal with difficulties of a domestic nature if it were required to alter the scheme relating to excise duty on the sale of fuel to disabled persons and the argument claiming that the effect of the scheme in question on the proper functioning of the internal market is remote cannot be accepted.

45. It should be noted in that regard that it is settled case‑law that a [OSCURATO:PERSONA] cannot plead the situation prevailing in its domestic legal order to justify failure to observe obligations laid down by a directive (see [OSCURATO:PERSONA] C‑496/09 [OSCURATO:PERSONA] v Italy [2011] ECR I‑0000, paragraph 87 and the case‑law cited). [OSCURATO:PERSONA], the procedure laid down in [OSCURATO:PERSONA] 258 TFEU is based on the objective finding that a [OSCURATO:PERSONA] has failed to fulfil its obligations under the Treaties or secondary legislation. [OSCURATO:PERSONA] 258 TFEU enables the [OSCURATO:PERSONA] to institute proceedings for failure to fulfil obligations each time it forms the view that a [OSCURATO:PERSONA] has failed to fulfil an obligation under Community law, without its being required to draw distinctions based on the nature or gravity of the infringement (judgment of 22 December 2008 in [OSCURATO:PERSONA] C‑189/07 [OSCURATO:PERSONA] v Spain , not published in the ECR, paragraph 33 and the case‑law cited).

46. In those circumstances, the action brought by the [OSCURATO:PERSONA] must be considered to be well founded.

47. Having regard to all the foregoing considerations, the [OSCURATO:PERSONA] finds that, by continuing to grant, after the expiry on 31 December 2006 of the transitional period referred to in the first subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96 and Annex II to that directive, an exemption from excise duty on fuel used by disabled persons for motor vehicles, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 4(1) of the directive.

Costs

48. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings.

Since the [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to pay the costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby:

1. Declares that, by continuing to grant, after the expiry on 31 December 2006 of the transitional period referred to in the first subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96/EC of 23 October 2003 restructuring the Community framework of taxation of energy products and electricity, as amended by [OSCURATO:PERSONA] 2004/74/EC of 29 April 2004, and Annex II to that directive, an exemption from excise duty on fuel used by disabled persons for motor vehicles, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 4(1) of the directive;

2. [OSCURATO:PERSONA] to pay the costs.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62012CJ0055_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑55/12, ACTION for failure to fulfil obligations under [OSCURATO:PERSONA] 258 TFEU, brought on 2 February 2012, [OSCURATO:PERSONA], represented by R. Lyal and W. Mölls, acting as Agents, with an address for service in Luxembourg, applicant, v [OSCURATO:PERSONA], represented by E. Creedon, acting as Agent, and N. Travers, BL, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. Rosas, President of the [OSCURATO:PERSONA], D. Šváby and C. Vajda (Rapporteur), [OSCURATO:PERSONA]: P. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1. By its application, the [OSCURATO:PERSONA] seeks from the [OSCURATO:PERSONA] a declaration that, by granting an exemption from excise duty on fuel used by disabled persons for motor vehicles without respecting the minimum levels of taxation prescribed by [OSCURATO:PERSONA] 2003/96/EC of 23 October 2003 restructuring the Community framework of taxation of energy products and electricity (OJ 2003 L 283, p. 51), as amended by [OSCURATO:PERSONA] 2004/74/EC of 29 April 2004 (OJ 2004 L 195, p. 26) (‘[OSCURATO:PERSONA] 2003/96’), [OSCURATO:PERSONA] had failed to fulfil its obligations under that directive. Legal context [OSCURATO:PERSONA] legislation 2. [OSCURATO:PERSONA] 2003/96 establishes minimum levels of taxation applicable by [OSCURATO:PERSONA] to energy products and electricity. It also gives [OSCURATO:PERSONA] the option of applying differentiated rates of taxation and granting exemptions or reductions in the level of taxation, in accordance with the conditions laid down in the directive. 3. [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 2003/96 provides as follows: ‘[OSCURATO:PERSONA] shall impose taxation on energy products and electricity in accordance with this [OSCURATO:PERSONA].’ 4. [OSCURATO:PERSONA] 2(3) of [OSCURATO:PERSONA] 2003/96 is worded as follows: ‘When intended for use, offered for sale or used as motor fuel or heating fuel, energy products other than those for which a level of taxation is specified in this [OSCURATO:PERSONA] shall be taxed according to use, at the rate for the equivalent heating fuel or motor fuel. In addition to the taxable products listed in paragraph 1, any product intended for use, offered for sale or used as motor fuel, or as an additive or extender in motor fuels, shall be taxed at the rate for the equivalent motor fuel. …’ 5. [OSCURATO:PERSONA] 4 of the directive is worded as follows: ‘1. The levels of taxation which [OSCURATO:PERSONA] shall apply to the energy products and electricity listed in [OSCURATO:PERSONA] 2 may not be less than the minimum levels of taxation prescribed by this [OSCURATO:PERSONA]. 2. For the purpose of this [OSCURATO:PERSONA] “level of taxation” is the total charge levied in respect of all indirect taxes (except [value added tax, ‘VAT’]) calculated directly or indirectly on the quantity of energy products and electricity at the time of release for consumption.’ 6. [OSCURATO:PERSONA] 6(c) of [OSCURATO:PERSONA] 2003/96 gives [OSCURATO:PERSONA] the option of giving effect to the exemptions or reductions in the level of taxation prescribed by the directive by, inter alia, ‘refunding all or part of the amount of taxation’. 7. [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96 provides as follows: ‘By way of derogation from the provisions of the present [OSCURATO:PERSONA], the [OSCURATO:PERSONA] specified in Annex II are authorised to continue to apply the reductions in the levels of taxation or the exemptions set out in that Annex. Subject to a prior review by the [OSCURATO:PERSONA], on the basis of a proposal from the [OSCURATO:PERSONA], this authorisation shall expire on 31 December 2006 or on the date specified in Annex II.’ 8. [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96 provides for the following: ‘In addition to the provisions set out in the previous Articles …, the [OSCURATO:PERSONA], acting unanimously on a proposal from the [OSCURATO:PERSONA], may authorise any [OSCURATO:PERSONA] to introduce further exemptions or reductions for specific policy considerations. A [OSCURATO:PERSONA] wishing to introduce such a measure shall inform the [OSCURATO:PERSONA] accordingly and shall also provide the [OSCURATO:PERSONA] with all relevant and necessary information. [OSCURATO:PERSONA] shall examine the request, taking into account, inter alia, the proper functioning of the internal market, the need to ensure fair competition and Community health, environment, energy and transport policies. Within three months of receiving all relevant and necessary information, the [OSCURATO:PERSONA] shall either present a proposal for the authorisation of such a measure by the [OSCURATO:PERSONA] or, alternatively, shall inform the [OSCURATO:PERSONA] of the reasons why it has not proposed the authorisation of such a measure.’ 9. Annex I to [OSCURATO:PERSONA] 2003/96 sets out the minimum levels of taxation applicable, inter alia, to motor fuels. 10. Section 7 of Annex II to [OSCURATO:PERSONA] 2003/96, entitled ‘[OSCURATO:PERSONA]’, includes, among the uses of energy products for which the reduced rates of taxation and exemptions referred to in [OSCURATO:PERSONA] 18(1) of the directive may be granted, the use of such products by disabled persons for motor vehicles. That derogation was to be applicable, in the absence of any reference to another date in Section 7 of Annex II, until 31 December 2006. Irish legislation 11. [OSCURATO:PERSONA] the laws and regulations relating to the tax measures in question, persons suffering from severe permanent disability in [OSCURATO:PERSONA] are entitled to repayment of excise duty levied on fuel for motor vehicles which they use as driver or passenger. The repayment is limited to an annual maximum of 600 gallons per beneficiary or, where the beneficiary is an organisation primarily engaged in providing assistance to disabled persons, a maximum of 900 gallons per annum per vehicle. 12. Section 100(1) of the [OSCURATO:PERSONA] 1999, in the version applicable at the material time, is worded as follows: ‘Subject to it being shown to the satisfaction of the [OSCURATO:PERSONA] that the condition or conditions in this section which are necessary for eligibility for relief from mineral oil tax and any other conditions imposed by the [OSCURATO:PERSONA] have been complied with, a relief from mineral oil tax shall be granted on: … (k) mineral oil in respect of which the Minister thinks it proper to repay or remit mineral oil tax or part of that tax to the extent that the Minister thinks proper.’ 13. Section 92(1) of the [OSCURATO:PERSONA] 1989 provides that, notwithstanding anything to the contrary contained in any enactment, the Minister for [OSCURATO:PERSONA] may, after consultation with the Minister for Health and the Minister for the Environment, make regulations providing for the following: (a) the repayment of excise duty and [VAT] and the remission of road tax in respect of a motor vehicle used by a severely and permanently disabled person: (i) as a driver, where the disablement is of such a nature that the person concerned could not drive any vehicle unless it is specially constructed or adapted to take account of that disablement, or (ii) as a passenger, where the vehicle has been specially constructed or adapted to take account of the passenger’s disablement, and, where the vehicle is adapted, the cost of such adaptation consists of not less than 30 per cent of the value of the vehicle excluding tax and excise duty, or such lesser percentage in respect of certain cases as may be specified by regulations in respect of the repayment of any tax relating to adaptation costs only, and (b) the repayment of excise duty relating to hydrocarbon oil used for combustion in the engines of vehicles, to be specified in the regulations, by such a severely and permanently disabled person.’ 14. Regulation 2(1) of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) Regulations, 1994 (‘the 1994 Regulations’) defines the categories of persons eligible for repayment of excise duty and Regulations 8 to 13 contain specific provisions concerning such repayment for each category of eligible persons. 15. Regulation 16 of the 1994 Regulations, entitled ‘Fuel repayments’, is worded as follows: ‘(1) The excise duty paid on any fuel used for combustion in the engine of a vehicle on which repayment or remission of tax, or residual vehicle registration tax has been granted in accordance with these Regulations shall be repaid by the [OSCURATO:PERSONA] where the use of the fuel was related to the transportation of the disabled person or persons concerned whether as driver of passenger. (2) Where the repayment or remission of tax or residual vehicle registration tax was made under Regulation 8 or 10, the repayment of excise duty on fuel referred to in paragraph (1) shall be limited to the duty on an annual maximum of 600 gallons per beneficiary. (3) Where the repayment or remission of tax or residual vehicle registration tax was made under Regulation 12, the repayment of excise duty on fuel referred to in paragraph (1) shall be limited to the duty on an annual maximum of 900 gallons per vehicle. (4) The excise duty paid on any fuel used for combustion in the engine of a vehicle which would have qualified for repayment or remission of [VAT], vehicle registration tax or residual vehicle registration tax in accordance with these Regulations but for the fact that the vehicle was purchased prior to the coming into effect of these Regulations, shall be repaid by the [OSCURATO:PERSONA] where the use of the fuel was related to the transportation of the disabled person or persons concerned whether as driver or passenger, and the provisions of paragraphs (2) and (3) shall apply with any necessary modifications.’ The pre‑litigation procedure 16. On 23 September 2008, the [OSCURATO:PERSONA] sent a letter of formal notice to [OSCURATO:PERSONA] in which it claimed that that [OSCURATO:PERSONA] had failed to fulfil its obligations under [OSCURATO:PERSONA] 2003/96, in so far as concerns the minimum levels of taxation prescribed by the directive, and that [OSCURATO:PERSONA] had failed to notify the [OSCURATO:PERSONA] of the measures taken to comply with the provisions of the directive. 17. By letter of 23 January 2009, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that, although certain legislative measures had been adopted, with effect from 1 November 2008, to comply with the minimum levels of taxation in question, the exemption from excise duty of fuel used by disabled persons for motor vehicles was still applicable. [OSCURATO:PERSONA] also requested a further reasonable period of time within which to comply with [OSCURATO:PERSONA] 2003/96. 18. In the absence of any further communication from [OSCURATO:PERSONA] in response to the letter of formal notice, on 7 May 2010 the [OSCURATO:PERSONA] sent a reasoned opinion to that [OSCURATO:PERSONA], in which it contended that [OSCURATO:PERSONA] had failed to fulfil its obligations under [OSCURATO:PERSONA] 2003/96 by failing to adopt the measures necessary to comply with the directive as regards the rate of taxation of fuel for motor vehicles used by disabled persons. [OSCURATO:PERSONA] requested [OSCURATO:PERSONA] to adopt, within two months of receipt of the reasoned opinion, the measures necessary to comply with it. 19. In its response to the reasoned opinion of 22 July 2010, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that the necessary measures would be adopted with effect from 1 April 2011. By letter of 5 October 2010, that [OSCURATO:PERSONA] stated that the adjustments necessary to comply with [OSCURATO:PERSONA] 2003/96 required amendments to be made to the [OSCURATO:PERSONA] of 1989 and 1999 and/or the 1994 Regulations. It indicated that those amendments would be enacted in March 2011 in the context of the [OSCURATO:PERSONA] 2011 and that it was anticipated that the 1994 Regulations would be amended at the same time. 20. [OSCURATO:PERSONA], by letter of 30 May 2011, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that the enactment of the amendments necessary to bring it into line with [OSCURATO:PERSONA] 2003/96 had been deferred, pending the outcome of a full review of public expenditure. [OSCURATO:PERSONA] stated that the 2012 [OSCURATO:PERSONA], due to be enacted in March 2012, would be the first opportunity available for amendment of the provisions in question. 21. Since it did not receive any further information enabling to conclude that the measures necessary for compliance with [OSCURATO:PERSONA] 2003/96 had been adopted, the [OSCURATO:PERSONA] decided to bring the present action. The action Arguments of the parties 22. [OSCURATO:PERSONA] points out that, pursuant to [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 2003/96, the levels of taxation applied by [OSCURATO:PERSONA] to energy products and electricity may not be less than the minimum levels prescribed by the directive. All motor fuels should, in principle, be taxed at rates which comply with the minimum requirements set out in [OSCURATO:PERSONA] 4 of the directive. [OSCURATO:PERSONA] comply with the minimum levels of taxation prescribed by the directive, they are authorised, under [OSCURATO:PERSONA] 5, to apply differentiated rates in the instances set out in the directive, including in respect of motor fuel for motor vehicles used by disabled persons. 23. [OSCURATO:PERSONA] states that, during the pre-litigation stage, [OSCURATO:PERSONA] did not dispute the infringement alleged but simply sought an additional period of time within which to make the requisite changes. Some five years following the expiry, on 31 December 2006, of the derogation granted to [OSCURATO:PERSONA] under the first subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96, that [OSCURATO:PERSONA] had still not made the necessary changes. 24. [OSCURATO:PERSONA] submits, first, that the rates of taxation applied to motor fuels manifestly exceed the minimum rates of taxation prescribed by [OSCURATO:PERSONA] 2003/96. It states that, contrary to what is claimed by the [OSCURATO:PERSONA], the national tax scheme does not provide for an ‘exemption from excise duty of motor fuels used by disabled people’ but for a repayment to severely disabled persons of the cost of the excise duty component of purchases of motor fuel, up to a maximum amount of such fuel. According to [OSCURATO:PERSONA], that scheme does not have the effect of applying a rate of taxation below the minimum rate prescribed by the directive, since excise duty has already been paid by oil warehouses. The payment made by the [OSCURATO:PERSONA] is simply a social payment to severely disabled persons. 25. [OSCURATO:PERSONA], [OSCURATO:PERSONA] refers to the application which it made to the [OSCURATO:PERSONA] under [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96 for authorisation to exempt fuel used by vehicles for the transport of disabled persons from excise duty. According to that [OSCURATO:PERSONA], although the [OSCURATO:PERSONA] recognised in its reply that the purpose of the application was to compensate for the significant costs incurred by persons with reduced mobi lity, it none the less rejected the application, stating that the specific needs relating to the economic resources of the persons concerned could be dealt with more appropriately by means of targeted instruments which are compatible with the prescribed minimum levels of taxation. [OSCURATO:PERSONA] is at a loss to understand what reasons could justify a refusal to retain the current payment scheme, given that it achieves the same result. 26. [OSCURATO:PERSONA], [OSCURATO:PERSONA] maintains that it would be difficult to devise a new scheme that is unrelated to excise duty levied on the sale of motor fuel. It adds that there is constant pressure to broaden the scope of the current scheme so as to widen the very restricted range of qualifying disabilities and thereby allow more disabled persons to qualify for the scheme. 27. [OSCURATO:PERSONA] submits that, even if it were accepted that the national scheme at issue were at odds with the wording of [OSCURATO:PERSONA] 2003/96, Articles 4 and 5 of the directive should not be interpreted in an absolutist manner, so that the continued operation of a scheme whose effect on the proper functioning of the internal market is remote, or at least uncertain, is not incompatible with the directive. According to that [OSCURATO:PERSONA], the continuance of the scheme would neither affect the uniform application of the directive nor undermine its harmonisation objective. 28. [OSCURATO:PERSONA] responds to [OSCURATO:PERSONA] arguments by stating, first, that, contrary to what is claimed by that [OSCURATO:PERSONA], the full reimbursement of excise duty levied by [OSCURATO:PERSONA] constitutes, for the purposes of [OSCURATO:PERSONA] 6(c) of [OSCURATO:PERSONA] 2003/96, one of the forms in which an exemption from the level of taxation prescribed by the directive may be granted. An interpretation of the directive to the effect that only the duty levied at the point of release for consumption is to be taken into account and that reimbursements of excise duty are to be disregarded would have the effect of depriving the provisions of the directive laying down minimum levels of taxation of any practical effect. 29. Next, with regard to the interpretation of Articles 4 and 5 of [OSCURATO:PERSONA] 2003/96, the [OSCURATO:PERSONA] is of the view that the [OSCURATO:PERSONA] legislature required, in clear terms, observance of minimum levels of taxation, having struck a balance between considerations pertaining to the proper functioning of the internal market and the environment on the one hand, and the particular situation of certain categories of consumers, including disabled persons, on the other. 30. Lastly, the [OSCURATO:PERSONA] contests [OSCURATO:PERSONA] argument that the national scheme at issue has no effect on the proper functioning of the internal market and the claim that that [OSCURATO:PERSONA] may rely, in these infringement proceedings, on the [OSCURATO:PERSONA]’s refusal to propose a derogation under [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96. Findings of the [OSCURATO:PERSONA] 31. [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2003/96 provides that the levels of taxation which [OSCURATO:PERSONA] are to apply to energy products and electricity may not be less than the minimum levels prescribed by the directive. It is apparent from the first subparagraph of [OSCURATO:PERSONA] 18(1) of the directive and Annex II thereto that [OSCURATO:PERSONA] was authorised to apply until 31 December 2006, by way of derogation from the provisions of the directive, reduced rates of taxation and exemptions in respect of fuel used by disabled persons for motor vehicles. 32. It is common ground that the repayment of excise duty on fuel for such vehicles referred to in Section 100(1) of the [OSCURATO:PERSONA] 1999, Section 92 of the [OSCURATO:PERSONA] 1989 and Regulation 2(1) of the 1994 Regulations continued to be applied in [OSCURATO:PERSONA] after 31 December 2006, even though that [OSCURATO:PERSONA] had no such authorisation. 33. In those circumstances, the [OSCURATO:PERSONA] finds that, since the expiry on 31 December 2006 of the derogation granted to [OSCURATO:PERSONA], the repayment of excise duty provided for under Irish legislation in respect of fuel used by disabled persons for motor vehicles has been contrary to the terms of [OSCURATO:PERSONA] 4(1) of [OSCURATO:PERSONA] 2003/96, which requires adherence to minimum levels of taxation for energy products and electricity. 34. That finding is not invalidated by the arguments put forward by [OSCURATO:PERSONA] in its defence. 35. [OSCURATO:PERSONA], [OSCURATO:PERSONA] maintains, as set out at paragraph 24 above, that it is necessary to draw a distinction between the repayment provided for under the national legislation at issue and the concept of ‘exemption’ within the meaning of [OSCURATO:PERSONA] 2003/96, and claims that, as a consequence, the excise duty levied on fuel used by disabled persons for motor vehicles exceeds the minimum levels of taxation prescribed by the directive. 36. That argument cannot be accepted. 37. [OSCURATO:PERSONA] 6(c) of [OSCURATO:PERSONA] 2003/96 refers to the ‘refunding [of] all or part of the amount of taxation’ as one of the options available to [OSCURATO:PERSONA] for giving effect to the exemptions from or reductions in the level of taxation set out in the directive. [OSCURATO:PERSONA], [OSCURATO:PERSONA] has not been authorised to avail itself of that option since the expiry of the derogation provided by [OSCURATO:PERSONA] 2003/96. 38. Furthermore, it is apparent from the wording of [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 2003/96 that it is possible for an ‘exemption’ within the meaning of that provision not to be applied by a [OSCURATO:PERSONA] directly but for it to be granted by it in the form of a refund. 39. It follows that the effect of accepting [OSCURATO:PERSONA] argument set out at paragraphs 24 and 35 above would be to circumvent the statutory rules on derogation set out in Articles 6, 18 and 19 of [OSCURATO:PERSONA] 2003/96 and Annex II to the directive. 40. [OSCURATO:PERSONA], account cannot be taken of the social nature of the repayment provided for by the national legislation at issue, to which [OSCURATO:PERSONA] alludes, because, under [OSCURATO:PERSONA] 6 of [OSCURATO:PERSONA] 2003/96, [OSCURATO:PERSONA] may grant only the exemptions or reductions in the level of taxation prescribed by the directive. It is common ground that, since 31 December 2006, no derogation enabling [OSCURATO:PERSONA] to grant an exemption from the minimum level of taxation of fuel used by disabled persons for motor vehicles has been applicable. 41. Accordingly, the argument relied on by [OSCURATO:PERSONA] to the effect that the excise duty levied in that [OSCURATO:PERSONA] on fuel used by disabled persons for motor vehicles is above the minimum levels of taxation prescribed by [OSCURATO:PERSONA] 2003/96 cannot be accepted, since it is not disputed that that duty is subsequently reimbursed to the persons concerned by the [OSCURATO:PERSONA], such reimbursement thereby neutralising the effect of that taxation. 42. [OSCURATO:PERSONA], [OSCURATO:PERSONA] argument set out at paragraph 25 above – by which that [OSCURATO:PERSONA] complains that the [OSCURATO:PERSONA] refused to comply with its request that that institution propose a derogation, pursuant to [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96, enabling it to grant an exemption from the minimum levels of taxation applicable to fuel used by disabled persons for motor vehicles – cannot be accepted. 43. Indeed, it cannot be accepted that a [OSCURATO:PERSONA] may unilaterally circumvent the requirement to comply with the obligations laid down in a directive on the ground that the [OSCURATO:PERSONA] did not, in accordance with the procedure laid down by that directive, comply with its request for a derogation. [OSCURATO:PERSONA], [OSCURATO:PERSONA] cannot call into question, in the course of infringement proceedings seeking a declaration that that [OSCURATO:PERSONA] failed to adhere to the minimum levels of taxation prescribed by the directive, the grounds on which the [OSCURATO:PERSONA] refused to propose a derogation under [OSCURATO:PERSONA] 19(1) of [OSCURATO:PERSONA] 2003/96. 44. [OSCURATO:PERSONA], the argument set out at paragraph 26 above that [OSCURATO:PERSONA] would have to deal with difficulties of a domestic nature if it were required to alter the scheme relating to excise duty on the sale of fuel to disabled persons and the argument claiming that the effect of the scheme in question on the proper functioning of the internal market is remote cannot be accepted. 45. It should be noted in that regard that it is settled case‑law that a [OSCURATO:PERSONA] cannot plead the situation prevailing in its domestic legal order to justify failure to observe obligations laid down by a directive (see [OSCURATO:PERSONA] C‑496/09 [OSCURATO:PERSONA] v Italy [2011] ECR I‑0000, paragraph 87 and the case‑law cited). [OSCURATO:PERSONA], the procedure laid down in [OSCURATO:PERSONA] 258 TFEU is based on the objective finding that a [OSCURATO:PERSONA] has failed to fulfil its obligations under the Treaties or secondary legislation. [OSCURATO:PERSONA] 258 TFEU enables the [OSCURATO:PERSONA] to institute proceedings for failure to fulfil obligations each time it forms the view that a [OSCURATO:PERSONA] has failed to fulfil an obligation under Community law, without its being required to draw distinctions based on the nature or gravity of the infringement (judgment of 22 December 2008 in [OSCURATO:PERSONA] C‑189/07 [OSCURATO:PERSONA] v Spain , not published in the ECR, paragraph 33 and the case‑law cited). 46. In those circumstances, the action brought by the [OSCURATO:PERSONA] must be considered to be well founded. 47. Having regard to all the foregoing considerations, the [OSCURATO:PERSONA] finds that, by continuing to grant, after the expiry on 31 December 2006 of the transitional period referred to in the first subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96 and Annex II to that directive, an exemption from excise duty on fuel used by disabled persons for motor vehicles, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 4(1) of the directive. Costs 48. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to pay the costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Declares that, by continuing to grant, after the expiry on 31 December 2006 of the transitional period referred to in the first subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 2003/96/EC of 23 October 2003 restructuring the Community framework of taxation of energy products and electricity, as amended by [OSCURATO:PERSONA] 2004/74/EC of 29 April 2004, and Annex II to that directive, an exemption from excise duty on fuel used by disabled persons for motor vehicles, [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 4(1) of the directive; 2. [OSCURATO:PERSONA] to pay the costs.
Sentenza Corte di giustizia UE/2013 — Fons Iuris — Fons Iuris