Brussels, 3 July 2007
The European Commission has formally requested Italy to modify its legislation which discriminates regenerated lubricating oils coming from other Member States. It has also formally requested Portugal to amend certain anti-fraud provisions in its legislation on the movement and holding of goods subject to excises which are disproportionate to the aim pursued. The requests take the form of a reasoned opinion (second step of the infringement procedure provided for in article 226 of the EC Treaty). If the relevant national legislations are not amended within two months in order to comply with the reasoned opinions, the Commission may refer these matters to the European Court of Justice.
Italy: discriminatory taxation of regenerated lubricating oils
Regenerated lubricating oils collected on the Italian territory are taxed at a lower rate than those collected elsewhere in Europe. The Commission believes that the Italian rules discriminate the use of used oils collected in other Member States, thereby infringing Article 90 of the EC Treaty. It therefore urges Italy to halt this discriminatory treatment.
According to the Italian legislation lubricating oils are subject to consumption tax when they are offered for sale or used otherwise than as motor fuel or heating fuel. Regenerated lubricating oils are taxed at a reduced level of 50% of the tax imposed on lubricating oils of primary distillation. This tax advantage, however, is granted only if used oils are collected on the Italian territory.
The Italian authorities claim that the national rules in question can be justified on the basis of environmental considerations. They explain that favourable tax treatment serves as an incentive for the producers to collect used oils instead of leaving them in the environment.
However, the Commission refers to consistent case-law of the Court of Justice making clear that extending the tax advantage, which is granted to domestic products, to similar imported products does not jeopardize the attainment of environmental objectives. The requirement of origin, therefore, is primarily directed against imported products, which are put at a disadvantage in comparison to domestic oil, although environmental protection can be ensured without maintaining a protectionist tax treatment (C-21/79).
Portugal: movement and holding of goods subject to excise duties.
The Commission believes that certain national anti-fraud provisions do not comply with the EU legislation on the movement and holding of goods subject to excise duties, since they introduce a burden on traders that is disproportionate to the objective pursued.
Portugal requires that the 'accompanying administrative document' is sent to the competent customs office at least six hours before the departure of the products which are subject to excise duties from warehouses in its territory. The Commission is of the opinion that the relevant Community legislation (Article 19 of Directive 92/12/EEC) cannot be interpreted as allowing Member States to impose such condition. The Portuguese legislation is likely to jeopardize the correct operation of the internal market with regard to these products and cannot be justified as a necessary mean to avoid tax fraud, for it results clearly disproportionate to that aim.
Further to the above, according to Portuguese Law, authorized warehouse keepers have to provide a guarantee in connection with the holding of products subject to excise duty. The guarantee amounts in general to 2% of the average monthly amount of excise duty paid during the previous year, with a minimum and a maximum threshold. The Commission understands that this holding guarantee is disproportionate to the aim pursued (namely, to secure the revenue potentially at risk) and may act as an effective barrier for traders wishing to enter into the Portuguese market.
The Commission's case reference numbers are 2004/2190 (Italy) and 2000/4264 (Portugal).
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