The question referred to the European Court of Justice (ECJ) is of enormous importance for a large number of transport companies! Background: Transport operators often have fuel tanks installed in their trucks with a larger capacity than those fitted by the manufacturer, because this allows them to meet individual requirements, such as the transport of containers. Energy tax is generally always assessed when diesel is brought into Germany from another European country. However, a tax exemption applies if the fuel is carried in a tank installed by the manufacturer. A case is currently pending before the ECJ, Az. 4 K 3691/12 VE, because the customs senate of the Düsseldorf Fiscal Court referred the question of whether the tax exemption also applies when the fuel tanks are retrofitted. In the case referred, the original tank was repositioned and an additional tank with a capacity of 780 litres was installed at the same time. The installation was carried out so that the truck could be loaded with containers. The truck was refuelled in the Netherlands and subsequently crossed the German border to carry out domestic journeys. The customs authorities assessed energy tax on the entire diesel refuelling on the grounds that no tax exemption applied, since the tanks had not been installed as standard. The haulage company sued against the customs authorities' decision, whereupon the Düsseldorf Fiscal Court referred the matter directly to the ECJ. From a European law perspective, it is doubtful whether only tanks installed by the manufacturer are covered by the tax exemption, since several companies are often involved in production. There is much to suggest that the tax exemption should also be extended to tanks retrofitted by authorised dealers. Furthermore, refuelling abroad in the present case does not constitute tax abuse, but rather the use of price differences among the individual EU Member States. We are following the proceedings with great interest and will keep you informed.
Frequently asked questions
Frequently asked questions
When does German energy tax apply to fuel purchased abroad within the EU?
German energy tax is generally levied whenever diesel is brought from another European country into Germany. This is intended to ensure taxation of fuel consumed domestically. For example, if a truck is refueled in the Netherlands and subsequently crosses the German border, the taxable event is generally triggered.
What tax exemption applies to fuel in truck tanks when crossing the border?
An exemption applies provided the fuel is carried in a tank installed by the manufacturer of the vehicle. This is intended to privilege the typical cross-border use of commercial vehicles with standard tank equipment. However, it is disputed whether this exemption also covers tanks installed at a later stage.
Why do transport companies often install additional or larger tanks in their trucks?
Larger or additional fuel tanks serve to meet specific operational requirements, such as transporting containers or completing longer routes without refueling. They also allow companies to take advantage of diesel price differences between EU member states. Often, the original tank is relocated and supplemented with an additional tank holding several hundred liters.
Is the energy tax exemption also granted for retrofitted truck tanks?
This issue is currently unresolved under European law and is the subject of preliminary ruling proceedings before the ECJ (referral by FG Düsseldorf, Az. 4 K 3691/12 VE). The German customs administration denies the exemption for tanks not installed as standard equipment. However, FG Düsseldorf considers it justifiable to include tanks retrofitted by authorized dealers, since vehicle manufacturing often involves several companies.
Does refueling in lower-priced EU countries qualify as tax abuse?
According to the Düsseldorf Tax Court, this does not constitute tax abuse but merely the legitimate use of price differences between EU Member States. The free movement of goods and competition within the internal market argue against penalizing such arrangements for tax purposes. Transport companies may therefore generally take advantage of price benefits abroad.