Official Journal of the European Union

C 235/8

(Case C-137/23, Alsen (*) )

(2023/C 235/11)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: X

Respondent: Staatssecretaris van Financiën

Questions referred

1.Must Article 14(1)(c) of Directive 2003/96/EC (*) be interpreted as meaning that the tax exemption laid down in that provision applies to energy products which are known to be used for the propulsion of vessels in navigating the inland waterways of the European Union, even where those energy products (gas oil in this case) do not, during that use, contain the required minimum content of the marker Solvent Yellow 124, if the tax authorities do not have one or more indications that the owner or operator of the vessel or his or her representative on board the ship (the boatmaster) is involved in excise evasion, avoidance or abuse in respect of the gas oil being held?

2.If Question 1 is answered in the negative, must Article 7(2) of Directive 2008/118/EC (*) be interpreted as meaning that, where it is established that the bunker tank of an inland waterway vessel exclusively contains gas oil originating from a fuel supplier which, with the authorisation of the tax authorities, may release that gas oil for consumption exempt from excise duty, the mere fact that the gas oil does not contain the required minimum content of the marker Solvent Yellow 124 means that the excise duty became chargeable only at the time of that earlier release for consumption on the basis of Article 7(2)(a) of that directive?

3.If Question 2 is answered in the negative and Article 7(2)(b) of Directive 2008/118/EC is thus also applicable in the case referred to therein, does the EU law principle of proportionality preclude excise duty which has become chargeable pursuant to Article 7(2)(b) of Directive 2008/118/EC from being levied on the boatmaster holding the excise goods, in accordance with Article 8(1)(b) of that directive, even if that person had no reason to doubt that the gas oil was being supplied exempt from excise duty in accordance with EU and national law?

4.Is it relevant for the answer to Question 3 that the boatmaster does not perform his or her duties in an employment relationship but is also the owner of the vessel?

(*) The name of the present case is fictitious and does not correspond to the actual name of any party to the proceedings.

(*) Council Directive 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).

(*) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).