22.12.2012

Official Journal of the European Union

C 399/9

Reference for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch (Netherlands), lodged on 18 September 2012 — X; Other party: Voorzitter van het managementteam van de rijksbelastingdienst

(Case C-426/12)

2012/C 399/15

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: X

Questions referred

1.Is there dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC (1) in the case where coal (products within the CN codes 2701, 2702 and 2704) is used as heating fuel in a lime kiln, while the carbon dioxide generated in that lime kiln from the coal (and limestone) is used for the production of lime-kiln gas, which is subsequently used in, and is indispensable for, the purification of the raw juice obtained from sugar beet?

2.Is there dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC in the case where coal (products within the CN codes 2701, 2702 and 2704) is used as heating fuel, while 66 % of the carbon dioxide generated during the heating and taken up by the lime-kiln gas is absorbed, during the subsequent purification referred to above, by earth foam, which is sold as lime fertiliser to the agricultural sector?

3.In the event that there is dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC: having regard to the (literal) text of the opening words of Article 2(4) of Directive 2003/96/EC, is that directive not applicable, with the result that the appellant cannot rely (for the interpretation in national legislation of the concept of dual use as referred to in Article 20(e) Wbm (2)) on the direct effect of that directive?

4.In the event that there is dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC and the latter is (consequently) inapplicable: in the case of the levying of a tax such as the present fuel tax, does European Union law preclude a more restrictive interpretation of the concept of dual use under domestic law as compared with an interpretation in accordance with Directive 2003/96/EC?

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).

Wet belastingen op milieugrondslag (Netherlands Law introducing taxes for the protection of the environment).