| REVENUE — Customs and excise — Excise duties — Exemption for mineral oils used for “navigation within Community waters” — Meaning of “community waters” — Whether “navigation” including dredging operations — Council Directive 92/81/EEC on excise duties on mineral oils (as amended by Council Directive 94/74/EC) (“Directive 92/81”), art 8(1)(c)
Jan De Nul NV v Hauptzollamt Oldenburg (Case C-391/05)
ECJ: President Lenaerts, Judges Juhász, Silva de Lapuerta, Arestis and Malenovský: 1 March 2007
For the purposes of the provision exempting from excise duty mineral oils used “for the purposes of navigation within Community waters”, “Community waters” meant all waters which could be used by all sea-going vessels, including those with the greatest capacity, capable of travelling maritime waterways for commercial purposes, and “navigation” included pumping and discharge operations carried out by a dredger.
The Court of Justice of the European Communities so ruled on a reference for a preliminary ruling by the Finanzgericht Hamburg, Germany.
The claimant used a hopper dredger on the river Elbe between Hamburg and Cuxhaven for sucking up materials from the water bed into its hold and subsequently depositing them in dumping sites. In a dispute as to whether such operations should benefit from the exemption in art 8(1)(c) of Directive 92/81, a preliminary ruling was sought from the European Court on the meaning to be given to “Community waters” and (in the context) “navigation”.
Art 8 of Directive 92/81 provides: “(1) ... member states shall exempt the following from the harmonised excise duty … (c) mineral oils supplied for use as fuel for the purposes of navigation within Community waters … (2) … member states may apply … exemptions …to mineral oils used … (b) for navigation on inland waterways…”
THE COURT said that “community waters” in art 8(1)(c) included all waters where maritime navigation was normally practised for commercial ends, and the navigation concerned all sea-going vessels including those with the greatest capacity. That included navigation on internal waterways as far as sea ports that were not situated on the coast. The optional system provided for in art 8(2) could not influence the interpretation of para (1), and was residual in that it applied to navigation on inland waterways only so far as it was engaged in beyond the waters on which maritime navigation for commercial purposes could be carried on. All navigation activity for commercial purposes came within art 8(1)(c) and that provision did not make any distinction as to the particular purpose of the navigation: Deutsche See-Bestattungs-Genossenschaft eG v Hauptzollamt Kiel (Case C-389/02) [2004] ECR I-3537, paras 23 and 25. The purpose for which the journey was effected was accordingly irrelevant, provided that it involved a provision of services for consideration, and accordingly manoeuvres carried out by a hopper dredger during pumping and discharge operations, ie journeys inherent in dredging activity, came within “navigation” in art 8(1)(c)
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