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Corte di giustizia UEsentenza

Corte di giustizia UE n. 2031/2018

ECLI:EU:C:2018:831
Testo integrale del provvedimento

Testo integrale del provvedimento

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

17 October 2018 ( * ) (Failure of a [OSCURATO:PERSONA] to fulfil obligations — [OSCURATO:PERSONA] 95/60/EC — Fiscal marking of gas oils and kerosene — Refuelling of private pleasure craft)

[OSCURATO:PERSONA] C‑503/17,

ACTION under [OSCURATO:PERSONA] 258 TFEU for failure to fulfil obligations, brought on 21 August 2017,

[OSCURATO:PERSONA],

represented by F. Tomat and J. Tomkin, acting as Agents, applicant, v [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], represented by S. Brandon, acting as Agent, and by M. Gray, Barrister, defendant,

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

composed of M. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], J. [OSCURATO:PERSONA] and M. [OSCURATO:PERSONA], [OSCURATO:PERSONA],

[OSCURATO:PERSONA]: N. [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] asks the [OSCURATO:PERSONA] to declare that, by allowing the use of marked fuel for the purposes of propelling private pleasure craft, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene (OJ 1995 L 291, p. 46), and to order the [OSCURATO:PERSONA] to pay the costs.

Legal context [OSCURATO:PERSONA] law

[OSCURATO:PERSONA] 2003/96/EC

2 As is apparent from [OSCURATO:PERSONA] 2(1)(b) and [OSCURATO:PERSONA] 2(5) of [OSCURATO:PERSONA] 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p.51), the term ‘energy products’, for the purposes of the directive, means, in particular, the products falling within [OSCURATO:PERSONA] codes (‘CN codes’) 2704 to 2715, set out in Annex I to [OSCURATO:PERSONA] (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the [OSCURATO:PERSONA] (OJ 1987 L 256, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 2031/2001 of 6 August 2001 (OJ 2001 L 279, p. 1). 3 In particular, CN code 2710 includes subheading CN 2710 00 69, relating to gas oils intended for uses other than those covered by subheadings 2710 00 61 (gas oils for undergoing a specific process) and 2710 00 65 (gas oils for undergoing chemical transformation by a process other than those specified by subheading 2710 00 61). 4 [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 2003/96 states: ‘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.’ 5 [OSCURATO:PERSONA] 7(1), first subparagraph, of that directive provides: ‘As from 1 January 2004 and from 1 January 2010, the minimum levels of taxation applicable to motor fuels shall be fixed as set out in Annex I Table A.’ 6 [OSCURATO:PERSONA] 14(1) of that directive: ‘In addition to the general provisions set out in [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] 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)] on exempt uses of taxable products, and without prejudice to other Community provisions, [OSCURATO:PERSONA] shall exempt the following from taxation under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse: ... (c) energy products supplied for use as fuel for the purposes of navigation within Community waters (including fishing), other than private pleasure craft, and electricity produced on board a craft.

For the purposes of this [OSCURATO:PERSONA] “private pleasure craft” shall mean any craft used by its owner or the natural or legal person who enjoys its use either through hire or through any other means, for other than commercial purposes and in particular other than for the carriage of passengers or goods or for the supply of services for consideration or for the purposes of public authorities.’ 7 [OSCURATO:PERSONA] 18(1) of that directive states: ‘By way of derogation from the provisions of the present directive, [OSCURATO:PERSONA] are hereby authorised to continue to apply the reductions in the levels of taxation or exemptions set out in Annex

II. 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 ...’ 8 [OSCURATO:PERSONA] 21(4) of [OSCURATO:PERSONA] 2003/96 provides that: ‘[OSCURATO:PERSONA] may also provide that taxation on energy products and electricity shall become due when it is established that a final use condition laid down in national rules for the purpose of a reduced level of taxation or exemption is not, or is no longer, fulfilled.’ 9 [OSCURATO:PERSONA] point 15 of Annex II to [OSCURATO:PERSONA] 2003/96, the [OSCURATO:PERSONA] was authorised to derogate from the levels of taxation applicable to ‘navigation in private pleasure craft’.

[OSCURATO:PERSONA] 95/60

10 According to the first to fourth recitals of [OSCURATO:PERSONA] 95/60: ‘Whereas the Community measures envisaged by this [OSCURATO:PERSONA] are not only necessary but also indispensable for the attainment of the objectives of the internal market; whereas these objectives cannot be achieved by [OSCURATO:PERSONA] individually; ... whereas this [OSCURATO:PERSONA] conforms with the principle of subsidiarity; Whereas [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] 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), repealed and replaced by [OSCURATO:PERSONA] 2003/96] lays down provisions in respect of the minimum rates of excise duty applicable to certain mineral oils and in particular to the different categories of gas oil and kerosene; Whereas the proper functioning of the internal market now requires that common rules be established for fiscal marking of gas oil and kerosene which have not borne duty at the full rate applicable to such mineral oils used as propellant; Whereas certain [OSCURATO:PERSONA] should be allowed to derogate from the measures laid down in this [OSCURATO:PERSONA] because of special national circumstances’. 11 [OSCURATO:PERSONA] 1 of the directive provides: ‘1.

Without prejudice to national provisions on fiscal marking, [OSCURATO:PERSONA] shall apply a fiscal marker in accordance with the provisions of this [OSCURATO:PERSONA] to: – all gas oil falling within CN code 2710 00 69 which has been released for consumption ... and has been exempt from, or subject to, excise duty at a rate other than that laid down in [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 92/82/EEC; ...

2. [OSCURATO:PERSONA] may allow exceptions to the application of the fiscal marker provided for in paragraph 1 on grounds of public health or safety or for other technical reasons, provided they take appropriate fiscal supervision measures.’ 12 [OSCURATO:PERSONA] 3 of that directive is worded as follows: ‘[OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. [OSCURATO:PERSONA] shall provide that the use of the mineral oils in question in the cases mentioned in the first subparagraph is to be considered as an offence under the national law of the [OSCURATO:PERSONA] concerned. [OSCURATO:PERSONA] shall take the measures required to give full effect to all the provisions of this [OSCURATO:PERSONA] and shall, in particular, determine the penalties to be imposed in the event of failure to comply with the said measures; such penalties shall be commensurate with their purpose and shall have adequate deterrent effect.’

[OSCURATO:PERSONA] 2008/118/EC

13 [OSCURATO:PERSONA] 7(1) of [OSCURATO:PERSONA] 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing [OSCURATO:PERSONA] 92/12/EEC (OJ 2009 L 9, p. 12), excise duty becomes chargeable at the time, and in the [OSCURATO:PERSONA], of release for consumption. 14 [OSCURATO:PERSONA] 33 of [OSCURATO:PERSONA] 2008/118 provides: ‘1.

Without prejudice to [OSCURATO:PERSONA] 36(1), where excise goods which have already been released for consumption in one [OSCURATO:PERSONA] are held for commercial purposes in another [OSCURATO:PERSONA] in order to be delivered or used there, they shall be subject to excise duty and excise duty shall become chargeable in that other [OSCURATO:PERSONA].

For the purposes of this [OSCURATO:PERSONA], “holding for commercial purposes” shall mean the holding of excise goods by a person other than a private individual or by a private individual for reasons other than his own use and transported by him ...

2. The chargeability conditions and rate of excise duty to be applied shall be those in force on the date on which duty becomes chargeable in that other [OSCURATO:PERSONA]. ...’ [OSCURATO:PERSONA] law 15 [OSCURATO:PERSONA] 1979, as amended by the [OSCURATO:PERSONA] 2012 (‘the 1979 Act’), governs the taxation of fuel.

In the meantime, following the expiry of the derogation period provided for in [OSCURATO:PERSONA] 18 of [OSCURATO:PERSONA] 2003/96, the [OSCURATO:PERSONA] had already amended the 1979 Act in order to ensure that the applicable minimum tax rate was consistent with the minimum rates laid down by [OSCURATO:PERSONA] 2003/96.

In particular, under section 16 and Schedule 6, Part 1, of the [OSCURATO:PERSONA] 2008, the level of excise duty, in the [OSCURATO:PERSONA], on fuel used for private pleasure craft was brought into line with the rates laid down by that directive. 16 Section 14E of the 1979 Act governs the taxation of fuel used for private pleasure craft.

It provides as follows: ‘Rebated heavy oil and bioblend: private pleasure craft (1) This section applies in respect of rebated heavy oil or bioblend. (2) The heavy oil or bioblend must not be used as fuel for propelling private pleasure craft. (3) If, on the supply by a person (“the supplier”) of a quantity of the heavy oil or bioblend to another person, the other person makes a relevant declaration to the supplier — (a) subsection (2) does not apply in relation to that heavy oil or bioblend, and (b) the supplier must pay, in accordance with regulations, the amount specified in subsection (4) to the Commissioners. (4) The amount is Q x R where Q is the quantity (in litres) of the heavy oil or bioblend, and R is the rate of the relevant rebate at the time of supply. (5) The “relevant rebate” is— (a) in the case of heavy oil upon which rebate was allowed under section 13ZA or 13AA(1), the rebate under that provision, (b) in the case of heavy oil to which paragraph (a) does not apply, the rebate under section 11 for that kind of heavy oil, and (c) in the case of bioblend, the rebate under section 11(1)(b). (6) The amount referred to in subsection (3)(b) is to be treated, for the purposes of section 12 of the [OSCURATO:PERSONA] 1994 (assessments to excise duty), as an amount of excise duty. ... (7A) A relevant declaration must include an acknowledgement that nothing in this section or done under it (including the making of the declaration) affects any restriction or prohibition under the law of a [OSCURATO:PERSONA] other than the [OSCURATO:PERSONA] on the use of the heavy oil or bioblend as fuel for propelling craft outside [OSCURATO:PERSONA] waters ... (8) In this section— “private pleasure craft” has the same meaning as in [OSCURATO:PERSONA] 14(1)(c) of [[OSCURATO:PERSONA] 2003/96]; “regulations” means regulations under section 24(1) made for the purposes of this section, and “relevant declaration”, in relation to a quantity of heavy oil or bioblend, means a declaration, made in the way and form specified by or under regulations, that the heavy oil or bioblend is to be used as fuel for propelling private pleasure craft.’ Pre-litigation procedure 17 On 17 June 2011, the [OSCURATO:PERSONA] sent the [OSCURATO:PERSONA] a letter of formal notice stating that it had failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60. 18 [OSCURATO:PERSONA] replied by letter of 10 August 2011, disputing the infringements alleged against it. 19 On 16 May 2012, the [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] of a legislative measure intended to put an end to the alleged infringement.

The measure consisted in the insertion of the provision which became subsection 7A of section 14E of the 1979 Act. 20 By letter of 8 August 2012, the [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that the legislative amendment mentioned in its letter of 16 May 2012 did not remedy the failure to fulfil obligations referred to in its letter of 17 June 2011. 21 Having received no reply to its letter of 8 August 2012, the [OSCURATO:PERSONA], on 30 May 2013, sent a reasoned opinion to the [OSCURATO:PERSONA]. 22 [OSCURATO:PERSONA] answered that reasoned opinion by letter dated 24 July 2013, restating the position that it had already set out in its response to the letter of formal notice. 23 Taking the view that the legislation in force in the [OSCURATO:PERSONA] remains incompatible with EU law, the [OSCURATO:PERSONA] decided to bring the present action.

The action 24 [OSCURATO:PERSONA] puts forward a single complaint, alleging infringement of [OSCURATO:PERSONA] 95/60 Arguments of the parties 25 [OSCURATO:PERSONA] notes that the [OSCURATO:PERSONA]’ obligation, arising from [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60, to apply a marker to fuel subject to reduced rates of excise duty, is intended to make it easier to set such fuels apart from fuels taxed at the full rate and thus facilitate monitoring.

The achievement of that objective would be impossible if [OSCURATO:PERSONA] did not restrict the use of fiscal markers to fuels that are subject to reduced rates of duty and authorised their use also for fuel subject to excise duty at the full rate. 26 It follows, according to the [OSCURATO:PERSONA], that [OSCURATO:PERSONA] 95/60 prohibits the application of a fiscal marker to fuels taxed at the full rate.

Such a ban is also apparent from [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] 95/60, which requires [OSCURATO:PERSONA] to prevent the improper use of marked products. 27 Thus, by allowing, under section 14E of the 1979 Act, the use of marked oil as fuel for propelling private pleasure craft, the use of which is subject to the full rate of excise duty, the [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60. 28 [OSCURATO:PERSONA] takes the view that the interpretation of [OSCURATO:PERSONA] 95/60 advocated by the [OSCURATO:PERSONA], according to which a [OSCURATO:PERSONA] may apply exactly the same marking to different fuels regardless of the rate of excise duty to which they are subject, would undermine the objective of the directive and negate its effet utile . 29 Neither the possible introduction, by a [OSCURATO:PERSONA], of its own procedures seeking to prevent fraudulent use of gas oil, nor concerns as to the possible costs and disadvantages for private operators can justify the non-application of the provisions of [OSCURATO:PERSONA] 95/60. 30 According to the [OSCURATO:PERSONA], nor can the argument put forward in the pre-litigation procedure by the [OSCURATO:PERSONA], that the competent authorities of other [OSCURATO:PERSONA] have the possibility of requesting receipts in respect of fuel purchased in the [OSCURATO:PERSONA] in order to ensure that excise duty relating to that fuel has been paid, be upheld.

Even if the owner of a private pleasure craft were in a position to produce a receipt for marked fuel, there is no guarantee that the fuel in the tanks of the vessel in question corresponds to the fuel to which the receipt relates. 31 [OSCURATO:PERSONA] further states that section 14E(7A) of the 1979 Act does not constitute a measure capable of remedying the failure to fulfil obligations alleged against the [OSCURATO:PERSONA], since that provision does not prohibit the use of marked oil outside the cases referred to in [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60. 32 Finally, the [OSCURATO:PERSONA] disputes the [OSCURATO:PERSONA] claim that the argument based on the effet utile of [OSCURATO:PERSONA] 95/60 was raised for the first time in the application initiating the proceedings and is inadmissible.

It submits that, in both the letter of formal notice and in the reasoned opinion, it stated that the [OSCURATO:PERSONA] practice runs counter to both the wording and the purpose of that directive. 33 [OSCURATO:PERSONA] contends that it has complied with its obligations under [OSCURATO:PERSONA] 95/60.

The obligation under [OSCURATO:PERSONA] 1 of that directive is met, since all fuels subject to reduced excise duty in the [OSCURATO:PERSONA] have the fiscal marker applied when they are released for consumption.

The obligation arising under [OSCURATO:PERSONA] 3 of that directive has also been met, since the [OSCURATO:PERSONA] implemented a reliable system of monitoring in order to ensure that the marked fuel is not used improperly and that, if it is used for a purpose subject to excise duty at the full rate, that duty is paid in full. 34 According to the [OSCURATO:PERSONA], the additional obligations which the [OSCURATO:PERSONA] is seeking to impose on it are not derived either from Articles 1 and 3 or any other provision of [OSCURATO:PERSONA] 95/60. [OSCURATO:PERSONA] itself concedes that the wording of [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60 does not preclude the marking of products that subsequently become subject to the full rate of excise duty and that the argument that that course of action would deprive the directive of its effet utile was not put forward either in the letter of formal notice or in the reasoned opinion and is inadmissible. 35 In any event, that submission cannot be upheld.

According to the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 95/60 is, as confirmed by the first recital thereof, a minimum harmonisation measure, which is is very open-textured and drafted in high-level general terms, giving [OSCURATO:PERSONA] a discretion as to the measures to be taken.

Moreover, both under [OSCURATO:PERSONA] 1(2) of [OSCURATO:PERSONA] 95/60 and under [OSCURATO:PERSONA] 3 thereof, [OSCURATO:PERSONA] are allowed to adopt derogations. 36 [OSCURATO:PERSONA] further states that it follows from [OSCURATO:PERSONA] 2008/118 that products bought in one [OSCURATO:PERSONA] and then transported to another [OSCURATO:PERSONA] are taxable only in the first [OSCURATO:PERSONA].

Therefore, if the owner of a private pleasure craft were in a position to submit to the competent tax authorities from another [OSCURATO:PERSONA] the receipt and logbook in order to establish that the fuel in the tank of that boat was purchased in the [OSCURATO:PERSONA], the authorities would not need to monitor the amount of excise duty paid.

Any administrative problems that arose could be solved easily by establishing common standards for tax receipts issued by [OSCURATO:PERSONA]. 37 Furthermore, according to the [OSCURATO:PERSONA], it is clear from [OSCURATO:PERSONA] 21(4) of [OSCURATO:PERSONA] 2003/96 that [OSCURATO:PERSONA] may establish national procedures providing for a higher rate of duty to be applied to an energy product when its end-use no longer entitles it to the application of the reduced rate.

That situation corresponds to the situation provided for by the legislation applicable in the [OSCURATO:PERSONA] on the use of marked fuel for the propulsion of private pleasure craft. 38 In any event, it is apparent from the first and third recitals of [OSCURATO:PERSONA] 95/60 that the latter is intended to ensure the proper functioning of the internal market. [OSCURATO:PERSONA] itself accepts that the [OSCURATO:PERSONA] current procedures do not lead to a situation where the minimum level of duty is not being paid.

Any negative impacts on the functioning of the internal market resulting from the transposition measures adopted in the UK are so low as to fall within the de minimis rule. 39 In that regard, the [OSCURATO:PERSONA] refers to the practical difficulties that would result from the application of [OSCURATO:PERSONA] 95/60 in the manner envisaged by the [OSCURATO:PERSONA].

It would require disproportionate measures in the present case, insofar as it would entail the need for distributors of boating fuel to install the necessary facilities, such as an additional storage tank, in order also to supply unmarked fuel to pleasure craft.

Since such additional installations are not profitable, the majority of distributors would not make the necessary investments.

In view of the particular geographic situation of the [OSCURATO:PERSONA], whose coastline is 19 717 km long in total, this would pose a significant practical problem for owners of pleasure craft and might even lead to a risk of accident, if the persons concerned were trying to store large quantities of fuel on board their boat, in order to cope with potential refuelling difficulties while en route.

Findings of the [OSCURATO:PERSONA] 40 As a preliminary point, it should be noted that the [OSCURATO:PERSONA] raises the inadmissibility of the [OSCURATO:PERSONA] complaint on the ground that it did not put forward any argument regarding the negation of the effet utile of [OSCURATO:PERSONA] 95/60 in the letter of formal notice or in the reasoned opinion. 41 In that regard, according to the [OSCURATO:PERSONA]’s case-law, although an action for failure to fulfil obligations must be based on the same grounds and pleas in law as the reasoned opinion, that requirement cannot go so far as to mean that in every case the statement of complaints set out in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings as defined in the reasoned opinion has not been extended or altered (judgment of 8 July 2010,

[OSCURATO:PERSONA]

v Portugal , C‑171/08, EU:C:2010:412, paragraph 26). 42 In the present case, it is apparent from the documents before the [OSCURATO:PERSONA] that, in both the letter of formal notice and in the reasoned opinion which it sent to the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] claimed, in essence, that the practice of the [OSCURATO:PERSONA] of authorising the use of marked gas oil as fuel for the propulsion of private pleasure craft, subject to the owner of the craft concerned making a declaration and paying the additional excise duty was contrary, in particular, to the ‘purpose’ and ‘objective’ of [OSCURATO:PERSONA] 95/60. 43 In those circumstances, the reference in the application to the ‘ effet utile ’ of [OSCURATO:PERSONA] 95/60, a notion which is substantially equivalent to the ‘purpose’ and ‘objective’ of the directive, does not constitute an alteration or extension of the subject matter of the dispute. [OSCURATO:PERSONA] single complaint is therefore admissible. 44 As to the substance of that complaint, it must be observed that it is clear from [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60, read in the light of the third recital thereof, that [OSCURATO:PERSONA] are required to apply a fiscal marker as provided for by that directive, inter alia, to gas oil which is not taxed at the full rate. 45 Conversely, it is apparent from that provision that [OSCURATO:PERSONA] may not apply that marker also to gas oil taxed at the full rate, without undermining the purpose of the marker. 46 The objective pursued by [OSCURATO:PERSONA] 95/60, which is to complement [OSCURATO:PERSONA] 2003/96 and to promote the completion and functioning of the internal market (see, to that effect, judgment of 9 September 2004,

[OSCURATO:PERSONA]

, C‑292/02, EU:C:2004:499, paragraph 51), by allowing easy and quick identification of gas oil not subject to taxation at the full rate, could not be achieved if [OSCURATO:PERSONA] were permitted to authorise the use of fiscal marking also for gas oil intended for use subject to taxation at the full rate. 47 More specifically, accepting the argument put forward by the [OSCURATO:PERSONA], that [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60 does not preclude [OSCURATO:PERSONA] from permitting the use of marked fuels for use subject to excise duty calculated at the full rate, would lead to the result that a [OSCURATO:PERSONA] could claim to be complying with its obligations under that provision by applying a fiscal marker to all types of fuel sold on its territory, regardless of the rate of excise duty to which they are subject. 48 None of the various provisions of EU law relied on by the [OSCURATO:PERSONA] justifies a different conclusion. 49 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 1(2) of [OSCURATO:PERSONA] 95/60, which seeks to implement the intention of the EU legislature expressed in the fourth recital of that directive, permits [OSCURATO:PERSONA], in certain cases, not to apply, on grounds of public health or safety or for other technical reasons, the fiscal marker to fuel subject to excise duty at a rate other than the full rate. 50 However, that provision does not allow [OSCURATO:PERSONA] to apply the fiscal marker to fuel subject to excise duty at the full rate. 51 Secondly, the first paragraph of [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] 95/60, far from permitting [OSCURATO:PERSONA] to authorise, in some cases, the use of marked products as fuel for engines normally operating with fuel subject to excise duty calculated at the full rate, requires them, on the contrary, to take ‘the necessary steps’ to ensure that improper use of the marked products is avoided. 52 Thirdly, the fact that, pursuant to [OSCURATO:PERSONA] 2008/118, if the excise duty relating to a volume of fuel has been paid in the [OSCURATO:PERSONA] of release for consumption of that fuel, that volume is not subject to such duty in another [OSCURATO:PERSONA], does not mean that the tax authorities of another [OSCURATO:PERSONA] may not check the actual payment of excise duty in the first [OSCURATO:PERSONA]. 53 The fiscal marking of gas oil which is exempt from tax or is taxed at a reduced rate, laid down by [OSCURATO:PERSONA] 95/60, is designed precisely to facilitate such checks.

It is irrelevant, in that regard, that there are other means of conducting checks, such as the production of a receipt proving payment of the additional excise duty, proposed by the [OSCURATO:PERSONA]. 54 Fourthly, nor can the [OSCURATO:PERSONA] argument based on [OSCURATO:PERSONA] 21(4) of [OSCURATO:PERSONA] 2003/96 be upheld.

That provision relates to energy products intended for use which is tax exempt or is subject to a reduced level of taxation, where a final use condition has not been met, as a result of which, ultimately, it becomes apparent that those products must be subject to excise duty calculated at the full rate.

It does not relate to energy products intended from the outset for use which is taxable at the full rate, such as the fuel intended for use in the engines of private pleasure craft. 55 It should be added, in the light of the arguments put forward by the [OSCURATO:PERSONA], that neither the reference to the principle of subsidiarity in the first recital of [OSCURATO:PERSONA] 95/60, nor the fact that the directive does not fully harmonise issues relating to the fiscal marking of gas oil, can justify a practice of a [OSCURATO:PERSONA] which is contrary to its obligations under that directive. 56 Finally, as regards the [OSCURATO:PERSONA] arguments alleging, on the one hand, the problems that its national practice of allowing the use of marked gas oil for private pleasure craft — subject to payment of the additional excise duty — seeks to avoid, and, on the other, compliance with the principle of proportionality, it should be noted that, as that [OSCURATO:PERSONA] itself acknowledges in its pleadings, that line of argument is based on the premiss that [OSCURATO:PERSONA] 95/60 does not preclude such a practice.

Since, for the reasons already given, that premiss is incorrect as regards the obligations laid down in [OSCURATO:PERSONA] 95/60, that argument must also be rejected. 57 In those circumstances, it must be held that, by allowing the use of marked fuel for the purposes of propelling private pleasure craft, even where that fuel is not subject to any exemption from or reduction in excise duty, the [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60.

Costs 58 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the [OSCURATO:PERSONA] has applied for costs and the [OSCURATO:PERSONA] has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs.

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby:

1. Declares that by allowing the use of marked fuel for the purposes of propelling private pleasure craft, even where that fuel is not subject to any exemption from or reduction in excise duty, the [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene;

2. Orders the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] in open court in Luxembourg on 17 October 2018.

A. [OSCURATO:PERSONA]

K. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 17 October 2018 ( * ) (Failure of a [OSCURATO:PERSONA] to fulfil obligations — [OSCURATO:PERSONA] 95/60/EC — Fiscal marking of gas oils and kerosene — Refuelling of private pleasure craft) [OSCURATO:PERSONA] C‑503/17, ACTION under [OSCURATO:PERSONA] 258 TFEU for failure to fulfil obligations, brought on 21 August 2017, [OSCURATO:PERSONA], represented by F. Tomat and J. Tomkin, acting as Agents, applicant, v [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], represented by S. Brandon, acting as Agent, and by M. Gray, Barrister, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], J. [OSCURATO:PERSONA] and M. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. [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] asks the [OSCURATO:PERSONA] to declare that, by allowing the use of marked fuel for the purposes of propelling private pleasure craft, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene (OJ 1995 L 291, p. 46), and to order the [OSCURATO:PERSONA] to pay the costs. Legal context [OSCURATO:PERSONA] law [OSCURATO:PERSONA] 2003/96/EC 2 As is apparent from [OSCURATO:PERSONA] 2(1)(b) and [OSCURATO:PERSONA] 2(5) of [OSCURATO:PERSONA] 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p.51), the term ‘energy products’, for the purposes of the directive, means, in particular, the products falling within [OSCURATO:PERSONA] codes (‘CN codes’) 2704 to 2715, set out in Annex I to [OSCURATO:PERSONA] (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the [OSCURATO:PERSONA] (OJ 1987 L 256, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 2031/2001 of 6 August 2001 (OJ 2001 L 279, p. 1). 3 In particular, CN code 2710 includes subheading CN 2710 00 69, relating to gas oils intended for uses other than those covered by subheadings 2710 00 61 (gas oils for undergoing a specific process) and 2710 00 65 (gas oils for undergoing chemical transformation by a process other than those specified by subheading 2710 00 61). 4 [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] 2003/96 states: ‘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.’ 5 [OSCURATO:PERSONA] 7(1), first subparagraph, of that directive provides: ‘As from 1 January 2004 and from 1 January 2010, the minimum levels of taxation applicable to motor fuels shall be fixed as set out in Annex I Table A.’ 6 [OSCURATO:PERSONA] 14(1) of that directive: ‘In addition to the general provisions set out in [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] 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)] on exempt uses of taxable products, and without prejudice to other Community provisions, [OSCURATO:PERSONA] shall exempt the following from taxation under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse: ... (c)      energy products supplied for use as fuel for the purposes of navigation within Community waters (including fishing), other than private pleasure craft, and electricity produced on board a craft. For the purposes of this [OSCURATO:PERSONA] “private pleasure craft” shall mean any craft used by its owner or the natural or legal person who enjoys its use either through hire or through any other means, for other than commercial purposes and in particular other than for the carriage of passengers or goods or for the supply of services for consideration or for the purposes of public authorities.’ 7 [OSCURATO:PERSONA] 18(1) of that directive states: ‘By way of derogation from the provisions of the present directive, [OSCURATO:PERSONA] are hereby authorised to continue to apply the reductions in the levels of taxation or exemptions set out in Annex II. 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 ...’ 8 [OSCURATO:PERSONA] 21(4) of [OSCURATO:PERSONA] 2003/96 provides that: ‘[OSCURATO:PERSONA] may also provide that taxation on energy products and electricity shall become due when it is established that a final use condition laid down in national rules for the purpose of a reduced level of taxation or exemption is not, or is no longer, fulfilled.’ 9 [OSCURATO:PERSONA] point 15 of Annex II to [OSCURATO:PERSONA] 2003/96, the [OSCURATO:PERSONA] was authorised to derogate from the levels of taxation applicable to ‘navigation in private pleasure craft’. [OSCURATO:PERSONA] 95/60 10 According to the first to fourth recitals of [OSCURATO:PERSONA] 95/60: ‘Whereas the Community measures envisaged by this [OSCURATO:PERSONA] are not only necessary but also indispensable for the attainment of the objectives of the internal market; whereas these objectives cannot be achieved by [OSCURATO:PERSONA] individually; ... whereas this [OSCURATO:PERSONA] conforms with the principle of subsidiarity; Whereas [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] 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), repealed and replaced by [OSCURATO:PERSONA] 2003/96] lays down provisions in respect of the minimum rates of excise duty applicable to certain mineral oils and in particular to the different categories of gas oil and kerosene; Whereas the proper functioning of the internal market now requires that common rules be established for fiscal marking of gas oil and kerosene which have not borne duty at the full rate applicable to such mineral oils used as propellant; Whereas certain [OSCURATO:PERSONA] should be allowed to derogate from the measures laid down in this [OSCURATO:PERSONA] because of special national circumstances’. 11 [OSCURATO:PERSONA] 1 of the directive provides: ‘1.      Without prejudice to national provisions on fiscal marking, [OSCURATO:PERSONA] shall apply a fiscal marker in accordance with the provisions of this [OSCURATO:PERSONA] to: –        all gas oil falling within CN code 2710 00 69 which has been released for consumption ... and has been exempt from, or subject to, excise duty at a rate other than that laid down in [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 92/82/EEC; ... 2.      [OSCURATO:PERSONA] may allow exceptions to the application of the fiscal marker provided for in paragraph 1 on grounds of public health or safety or for other technical reasons, provided they take appropriate fiscal supervision measures.’ 12 [OSCURATO:PERSONA] 3 of that directive is worded as follows: ‘[OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. [OSCURATO:PERSONA] shall provide that the use of the mineral oils in question in the cases mentioned in the first subparagraph is to be considered as an offence under the national law of the [OSCURATO:PERSONA] concerned. [OSCURATO:PERSONA] shall take the measures required to give full effect to all the provisions of this [OSCURATO:PERSONA] and shall, in particular, determine the penalties to be imposed in the event of failure to comply with the said measures; such penalties shall be commensurate with their purpose and shall have adequate deterrent effect.’ [OSCURATO:PERSONA] 2008/118/EC 13 [OSCURATO:PERSONA] 7(1) of [OSCURATO:PERSONA] 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing [OSCURATO:PERSONA] 92/12/EEC (OJ 2009 L 9, p. 12), excise duty becomes chargeable at the time, and in the [OSCURATO:PERSONA], of release for consumption. 14 [OSCURATO:PERSONA] 33 of [OSCURATO:PERSONA] 2008/118 provides: ‘1.      Without prejudice to [OSCURATO:PERSONA] 36(1), where excise goods which have already been released for consumption in one [OSCURATO:PERSONA] are held for commercial purposes in another [OSCURATO:PERSONA] in order to be delivered or used there, they shall be subject to excise duty and excise duty shall become chargeable in that other [OSCURATO:PERSONA]. For the purposes of this [OSCURATO:PERSONA], “holding for commercial purposes” shall mean the holding of excise goods by a person other than a private individual or by a private individual for reasons other than his own use and transported by him ... 2.      The chargeability conditions and rate of excise duty to be applied shall be those in force on the date on which duty becomes chargeable in that other [OSCURATO:PERSONA]. ...’ [OSCURATO:PERSONA] law 15 [OSCURATO:PERSONA] 1979, as amended by the [OSCURATO:PERSONA] 2012 (‘the 1979 Act’), governs the taxation of fuel. In the meantime, following the expiry of the derogation period provided for in [OSCURATO:PERSONA] 18 of [OSCURATO:PERSONA] 2003/96, the [OSCURATO:PERSONA] had already amended the 1979 Act in order to ensure that the applicable minimum tax rate was consistent with the minimum rates laid down by [OSCURATO:PERSONA] 2003/96. In particular, under section 16 and Schedule 6, Part 1, of the [OSCURATO:PERSONA] 2008, the level of excise duty, in the [OSCURATO:PERSONA], on fuel used for private pleasure craft was brought into line with the rates laid down by that directive. 16 Section 14E of the 1979 Act governs the taxation of fuel used for private pleasure craft. It provides as follows: ‘Rebated heavy oil and bioblend: private pleasure craft (1)      This section applies in respect of rebated heavy oil or bioblend. (2)      The heavy oil or bioblend must not be used as fuel for propelling private pleasure craft. (3)      If, on the supply by a person (“the supplier”) of a quantity of the heavy oil or bioblend to another person, the other person makes a relevant declaration to the supplier — (a)      subsection (2) does not apply in relation to that heavy oil or bioblend, and (b)      the supplier must pay, in accordance with regulations, the amount specified in subsection (4) to the Commissioners. (4)      The amount is Q x R where Q is the quantity (in litres) of the heavy oil or bioblend, and R is the rate of the relevant rebate at the time of supply. (5)      The “relevant rebate” is— (a)      in the case of heavy oil upon which rebate was allowed under section 13ZA or 13AA(1), the rebate under that provision, (b)      in the case of heavy oil to which paragraph (a) does not apply, the rebate under section 11 for that kind of heavy oil, and (c)      in the case of bioblend, the rebate under section 11(1)(b). (6)      The amount referred to in subsection (3)(b) is to be treated, for the purposes of section 12 of the [OSCURATO:PERSONA] 1994 (assessments to excise duty), as an amount of excise duty. ... (7A)      A relevant declaration must include an acknowledgement that nothing in this section or done under it (including the making of the declaration) affects any restriction or prohibition under the law of a [OSCURATO:PERSONA] other than the [OSCURATO:PERSONA] on the use of the heavy oil or bioblend as fuel for propelling craft outside [OSCURATO:PERSONA] waters ... (8)      In this section— “private pleasure craft” has the same meaning as in [OSCURATO:PERSONA] 14(1)(c) of [[OSCURATO:PERSONA] 2003/96]; “regulations” means regulations under section 24(1) made for the purposes of this section, and “relevant declaration”, in relation to a quantity of heavy oil or bioblend, means a declaration, made in the way and form specified by or under regulations, that the heavy oil or bioblend is to be used as fuel for propelling private pleasure craft.’ Pre-litigation procedure 17 On 17 June 2011, the [OSCURATO:PERSONA] sent the [OSCURATO:PERSONA] a letter of formal notice stating that it had failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60. 18 [OSCURATO:PERSONA] replied by letter of 10 August 2011, disputing the infringements alleged against it. 19 On 16 May 2012, the [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] of a legislative measure intended to put an end to the alleged infringement. The measure consisted in the insertion of the provision which became subsection 7A of section 14E of the 1979 Act. 20 By letter of 8 August 2012, the [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that the legislative amendment mentioned in its letter of 16 May 2012 did not remedy the failure to fulfil obligations referred to in its letter of 17 June 2011. 21 Having received no reply to its letter of 8 August 2012, the [OSCURATO:PERSONA], on 30 May 2013, sent a reasoned opinion to the [OSCURATO:PERSONA]. 22 [OSCURATO:PERSONA] answered that reasoned opinion by letter dated 24 July 2013, restating the position that it had already set out in its response to the letter of formal notice. 23 Taking the view that the legislation in force in the [OSCURATO:PERSONA] remains incompatible with EU law, the [OSCURATO:PERSONA] decided to bring the present action. The action 24 [OSCURATO:PERSONA] puts forward a single complaint, alleging infringement of [OSCURATO:PERSONA] 95/60 Arguments of the parties 25 [OSCURATO:PERSONA] notes that the [OSCURATO:PERSONA]’ obligation, arising from [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60, to apply a marker to fuel subject to reduced rates of excise duty, is intended to make it easier to set such fuels apart from fuels taxed at the full rate and thus facilitate monitoring. The achievement of that objective would be impossible if [OSCURATO:PERSONA] did not restrict the use of fiscal markers to fuels that are subject to reduced rates of duty and authorised their use also for fuel subject to excise duty at the full rate. 26 It follows, according to the [OSCURATO:PERSONA], that [OSCURATO:PERSONA] 95/60 prohibits the application of a fiscal marker to fuels taxed at the full rate. Such a ban is also apparent from [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] 95/60, which requires [OSCURATO:PERSONA] to prevent the improper use of marked products. 27 Thus, by allowing, under section 14E of the 1979 Act, the use of marked oil as fuel for propelling private pleasure craft, the use of which is subject to the full rate of excise duty, the [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60. 28 [OSCURATO:PERSONA] takes the view that the interpretation of [OSCURATO:PERSONA] 95/60 advocated by the [OSCURATO:PERSONA], according to which a [OSCURATO:PERSONA] may apply exactly the same marking to different fuels regardless of the rate of excise duty to which they are subject, would undermine the objective of the directive and negate its effet utile . 29 Neither the possible introduction, by a [OSCURATO:PERSONA], of its own procedures seeking to prevent fraudulent use of gas oil, nor concerns as to the possible costs and disadvantages for private operators can justify the non-application of the provisions of [OSCURATO:PERSONA] 95/60. 30 According to the [OSCURATO:PERSONA], nor can the argument put forward in the pre-litigation procedure by the [OSCURATO:PERSONA], that the competent authorities of other [OSCURATO:PERSONA] have the possibility of requesting receipts in respect of fuel purchased in the [OSCURATO:PERSONA] in order to ensure that excise duty relating to that fuel has been paid, be upheld. Even if the owner of a private pleasure craft were in a position to produce a receipt for marked fuel, there is no guarantee that the fuel in the tanks of the vessel in question corresponds to the fuel to which the receipt relates. 31 [OSCURATO:PERSONA] further states that section 14E(7A) of the 1979 Act does not constitute a measure capable of remedying the failure to fulfil obligations alleged against the [OSCURATO:PERSONA], since that provision does not prohibit the use of marked oil outside the cases referred to in [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60. 32 Finally, the [OSCURATO:PERSONA] disputes the [OSCURATO:PERSONA] claim that the argument based on the effet utile of [OSCURATO:PERSONA] 95/60 was raised for the first time in the application initiating the proceedings and is inadmissible. It submits that, in both the letter of formal notice and in the reasoned opinion, it stated that the [OSCURATO:PERSONA] practice runs counter to both the wording and the purpose of that directive. 33 [OSCURATO:PERSONA] contends that it has complied with its obligations under [OSCURATO:PERSONA] 95/60. The obligation under [OSCURATO:PERSONA] 1 of that directive is met, since all fuels subject to reduced excise duty in the [OSCURATO:PERSONA] have the fiscal marker applied when they are released for consumption. The obligation arising under [OSCURATO:PERSONA] 3 of that directive has also been met, since the [OSCURATO:PERSONA] implemented a reliable system of monitoring in order to ensure that the marked fuel is not used improperly and that, if it is used for a purpose subject to excise duty at the full rate, that duty is paid in full. 34 According to the [OSCURATO:PERSONA], the additional obligations which the [OSCURATO:PERSONA] is seeking to impose on it are not derived either from Articles 1 and 3 or any other provision of [OSCURATO:PERSONA] 95/60. [OSCURATO:PERSONA] itself concedes that the wording of [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60 does not preclude the marking of products that subsequently become subject to the full rate of excise duty and that the argument that that course of action would deprive the directive of its effet utile was not put forward either in the letter of formal notice or in the reasoned opinion and is inadmissible. 35 In any event, that submission cannot be upheld. According to the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 95/60 is, as confirmed by the first recital thereof, a minimum harmonisation measure, which is is very open-textured and drafted in high-level general terms, giving [OSCURATO:PERSONA] a discretion as to the measures to be taken. Moreover, both under [OSCURATO:PERSONA] 1(2) of [OSCURATO:PERSONA] 95/60 and under [OSCURATO:PERSONA] 3 thereof, [OSCURATO:PERSONA] are allowed to adopt derogations. 36 [OSCURATO:PERSONA] further states that it follows from [OSCURATO:PERSONA] 2008/118 that products bought in one [OSCURATO:PERSONA] and then transported to another [OSCURATO:PERSONA] are taxable only in the first [OSCURATO:PERSONA]. Therefore, if the owner of a private pleasure craft were in a position to submit to the competent tax authorities from another [OSCURATO:PERSONA] the receipt and logbook in order to establish that the fuel in the tank of that boat was purchased in the [OSCURATO:PERSONA], the authorities would not need to monitor the amount of excise duty paid. Any administrative problems that arose could be solved easily by establishing common standards for tax receipts issued by [OSCURATO:PERSONA]. 37 Furthermore, according to the [OSCURATO:PERSONA], it is clear from [OSCURATO:PERSONA] 21(4) of [OSCURATO:PERSONA] 2003/96 that [OSCURATO:PERSONA] may establish national procedures providing for a higher rate of duty to be applied to an energy product when its end-use no longer entitles it to the application of the reduced rate. That situation corresponds to the situation provided for by the legislation applicable in the [OSCURATO:PERSONA] on the use of marked fuel for the propulsion of private pleasure craft. 38 In any event, it is apparent from the first and third recitals of [OSCURATO:PERSONA] 95/60 that the latter is intended to ensure the proper functioning of the internal market. [OSCURATO:PERSONA] itself accepts that the [OSCURATO:PERSONA] current procedures do not lead to a situation where the minimum level of duty is not being paid. Any negative impacts on the functioning of the internal market resulting from the transposition measures adopted in the UK are so low as to fall within the de minimis rule. 39 In that regard, the [OSCURATO:PERSONA] refers to the practical difficulties that would result from the application of [OSCURATO:PERSONA] 95/60 in the manner envisaged by the [OSCURATO:PERSONA]. It would require disproportionate measures in the present case, insofar as it would entail the need for distributors of boating fuel to install the necessary facilities, such as an additional storage tank, in order also to supply unmarked fuel to pleasure craft. Since such additional installations are not profitable, the majority of distributors would not make the necessary investments. In view of the particular geographic situation of the [OSCURATO:PERSONA], whose coastline is 19 717 km long in total, this would pose a significant practical problem for owners of pleasure craft and might even lead to a risk of accident, if the persons concerned were trying to store large quantities of fuel on board their boat, in order to cope with potential refuelling difficulties while en route. Findings of the [OSCURATO:PERSONA] 40 As a preliminary point, it should be noted that the [OSCURATO:PERSONA] raises the inadmissibility of the [OSCURATO:PERSONA] complaint on the ground that it did not put forward any argument regarding the negation of the effet utile of [OSCURATO:PERSONA] 95/60 in the letter of formal notice or in the reasoned opinion. 41 In that regard, according to the [OSCURATO:PERSONA]’s case-law, although an action for failure to fulfil obligations must be based on the same grounds and pleas in law as the reasoned opinion, that requirement cannot go so far as to mean that in every case the statement of complaints set out in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject matter of the proceedings as defined in the reasoned opinion has not been extended or altered (judgment of 8 July 2010, [OSCURATO:PERSONA] v Portugal , C‑171/08, EU:C:2010:412, paragraph 26). 42 In the present case, it is apparent from the documents before the [OSCURATO:PERSONA] that, in both the letter of formal notice and in the reasoned opinion which it sent to the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] claimed, in essence, that the practice of the [OSCURATO:PERSONA] of authorising the use of marked gas oil as fuel for the propulsion of private pleasure craft, subject to the owner of the craft concerned making a declaration and paying the additional excise duty was contrary, in particular, to the ‘purpose’ and ‘objective’ of [OSCURATO:PERSONA] 95/60. 43 In those circumstances, the reference in the application to the ‘ effet utile ’ of [OSCURATO:PERSONA] 95/60, a notion which is substantially equivalent to the ‘purpose’ and ‘objective’ of the directive, does not constitute an alteration or extension of the subject matter of the dispute. [OSCURATO:PERSONA] single complaint is therefore admissible. 44 As to the substance of that complaint, it must be observed that it is clear from [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60, read in the light of the third recital thereof, that [OSCURATO:PERSONA] are required to apply a fiscal marker as provided for by that directive, inter alia, to gas oil which is not taxed at the full rate. 45 Conversely, it is apparent from that provision that [OSCURATO:PERSONA] may not apply that marker also to gas oil taxed at the full rate, without undermining the purpose of the marker. 46 The objective pursued by [OSCURATO:PERSONA] 95/60, which is to complement [OSCURATO:PERSONA] 2003/96 and to promote the completion and functioning of the internal market (see, to that effect, judgment of 9 September 2004, [OSCURATO:PERSONA] , C‑292/02, EU:C:2004:499, paragraph 51), by allowing easy and quick identification of gas oil not subject to taxation at the full rate, could not be achieved if [OSCURATO:PERSONA] were permitted to authorise the use of fiscal marking also for gas oil intended for use subject to taxation at the full rate. 47 More specifically, accepting the argument put forward by the [OSCURATO:PERSONA], that [OSCURATO:PERSONA] 1 of [OSCURATO:PERSONA] 95/60 does not preclude [OSCURATO:PERSONA] from permitting the use of marked fuels for use subject to excise duty calculated at the full rate, would lead to the result that a [OSCURATO:PERSONA] could claim to be complying with its obligations under that provision by applying a fiscal marker to all types of fuel sold on its territory, regardless of the rate of excise duty to which they are subject. 48 None of the various provisions of EU law relied on by the [OSCURATO:PERSONA] justifies a different conclusion. 49 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 1(2) of [OSCURATO:PERSONA] 95/60, which seeks to implement the intention of the EU legislature expressed in the fourth recital of that directive, permits [OSCURATO:PERSONA], in certain cases, not to apply, on grounds of public health or safety or for other technical reasons, the fiscal marker to fuel subject to excise duty at a rate other than the full rate. 50 However, that provision does not allow [OSCURATO:PERSONA] to apply the fiscal marker to fuel subject to excise duty at the full rate. 51 Secondly, the first paragraph of [OSCURATO:PERSONA] 3 of [OSCURATO:PERSONA] 95/60, far from permitting [OSCURATO:PERSONA] to authorise, in some cases, the use of marked products as fuel for engines normally operating with fuel subject to excise duty calculated at the full rate, requires them, on the contrary, to take ‘the necessary steps’ to ensure that improper use of the marked products is avoided. 52 Thirdly, the fact that, pursuant to [OSCURATO:PERSONA] 2008/118, if the excise duty relating to a volume of fuel has been paid in the [OSCURATO:PERSONA] of release for consumption of that fuel, that volume is not subject to such duty in another [OSCURATO:PERSONA], does not mean that the tax authorities of another [OSCURATO:PERSONA] may not check the actual payment of excise duty in the first [OSCURATO:PERSONA]. 53 The fiscal marking of gas oil which is exempt from tax or is taxed at a reduced rate, laid down by [OSCURATO:PERSONA] 95/60, is designed precisely to facilitate such checks. It is irrelevant, in that regard, that there are other means of conducting checks, such as the production of a receipt proving payment of the additional excise duty, proposed by the [OSCURATO:PERSONA]. 54 Fourthly, nor can the [OSCURATO:PERSONA] argument based on [OSCURATO:PERSONA] 21(4) of [OSCURATO:PERSONA] 2003/96 be upheld. That provision relates to energy products intended for use which is tax exempt or is subject to a reduced level of taxation, where a final use condition has not been met, as a result of which, ultimately, it becomes apparent that those products must be subject to excise duty calculated at the full rate. It does not relate to energy products intended from the outset for use which is taxable at the full rate, such as the fuel intended for use in the engines of private pleasure craft. 55 It should be added, in the light of the arguments put forward by the [OSCURATO:PERSONA], that neither the reference to the principle of subsidiarity in the first recital of [OSCURATO:PERSONA] 95/60, nor the fact that the directive does not fully harmonise issues relating to the fiscal marking of gas oil, can justify a practice of a [OSCURATO:PERSONA] which is contrary to its obligations under that directive. 56 Finally, as regards the [OSCURATO:PERSONA] arguments alleging, on the one hand, the problems that its national practice of allowing the use of marked gas oil for private pleasure craft — subject to payment of the additional excise duty — seeks to avoid, and, on the other, compliance with the principle of proportionality, it should be noted that, as that [OSCURATO:PERSONA] itself acknowledges in its pleadings, that line of argument is based on the premiss that [OSCURATO:PERSONA] 95/60 does not preclude such a practice. Since, for the reasons already given, that premiss is incorrect as regards the obligations laid down in [OSCURATO:PERSONA] 95/60, that argument must also be rejected. 57 In those circumstances, it must be held that, by allowing the use of marked fuel for the purposes of propelling private pleasure craft, even where that fuel is not subject to any exemption from or reduction in excise duty, the [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60. Costs 58 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] has applied for costs and the [OSCURATO:PERSONA] has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Declares that by allowing the use of marked fuel for the purposes of propelling private pleasure craft, even where that fuel is not subject to any exemption from or reduction in excise duty, the [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene; 2. Orders the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] to pay the costs. [OSCURATO:PERSONA] in open court in Luxembourg on 17 October 2018. A. [OSCURATO:PERSONA] K. [OSCURATO:PERSONA] * Language of the case: English.