Commission Implementing Decision (EU) 2022/197

Contents

THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Council Directive 95/60/EC of 27 November 1995 on fiscal marking of gas oil and kerosene^note, and in particular Article 2(2) thereof,Whereas:

(1)For the proper functioning of the internal market, and in particular to prevent tax evasion, Directive 95/60/EC provides for a common marking system to identify gas oils, falling within code 2710 00 69 of the Combined Nomenclature (CN), and kerosene, falling within CN code 2710 00 55, which have been released for consumption exempt from excise duty, or subject to a reduced excise duty rate. CN code 2710 00 69 has been split into CN codes 27101943, 27101946, 27101947, 27101948, 27102011, 27102016 and 27102019, in order to take into account the sulphur content of gas oil and the presence of biodiesel in gas oil, while CN code 2710 00 55 has been transposed as CN code 27101925^note.

(2)Commission Implementing Decision (EU) 2017/74^note confirmed the product identified by the scientific name N-ethyl-N-[2-(1-isobutoxyethoxy)ethyl]-4-(phenylazo)aniline (Solvent Yellow 124), which had been established by Commission Implementing Decision 2011/544/EU^note, as the common fiscal marker provided for by Directive 95/60/EC, for the marking of gas oils and kerosene which have not borne duty at the full rate applicable to such energy products used as propellant.

(3)Article 2 of Implementing Decision (EU) 2017/74 requires that Implementing Decision to be reviewed by 31 December 2021 at the latest, in the light of technical developments in the field of marking systems and the need to counteract fraudulent use of energy products exempt from excise duty, or subject to a reduced excise duty rate.

(4)As part of the review process, the Commission launched in 2015 a call for expression of interest to present products suitable for use as a fiscal marker in gas oils and kerosene^note. The Commission sought to identify a substance for marking which performs better with regard to a set of predefined criteria compared to the substance currently in use. For all candidate markers, the Commission requested and received, form the suppliers, the maximum selling price for the markers and their yearly indexation methods.

(5)The candidate markers proposed by suppliers were thoroughly investigated from a technical standpoint with the assistance of the Joint Research Centre to check their resilience to the most common illegal removal techniques. The analysis^note identified the product with the commercial name ACCUTRACE™ PLUS containing butoxybenzene as the preferred marker.

(6)In a review of Directive 95/60/EC in 2019^note, the Commission’s evaluation confirmed the usefulness of common rules for the marking of fuels that are subject to reduced excise duty rates but identified the shortcomings of Solvent Yellow 124 in terms of its lack of resilience to common removal methods. The evaluation confirmed the need to replace Solvent Yellow 124 with a more robust marker that cannot be removed.

(7)These findings were corroborated by the Customs Cooperation Working Party of the Council^note who found that fuel laundering also resulted in serious environmental pollution due to the use of chemicals such as sulfuric acid, chloric acid and bleaching earth and the illegal dumping of waste products and oil sludge in nature, agricultural land or public roads.

(8)Consequently, ACCUTRACE™ PLUS should be established instead of Solvent Yellow 124 as the common fiscal marker within the meaning of Directive 95/60/EC subject to the conditions set out in that Directive. The marking level should be set at a harmonised range to facilitate implementation and control of compliance across the Union.

(9)In the interest of a smooth implementation of the new marker, and to allow Member States to exhaust existing stocks of the current marker Solvent Yellow 124, a transitional period of 24 months should be allowed. During this transitional period Member States should be allowed to use either Solvent Yellow 124 or ACCUTRACE™ PLUS as the common fiscal marker within the meaning of Directive 95/60/EC.

(10)The availability of ACCUTRACE™ PLUS, despite it being under patent cover in the Union, should be secured, where appropriate, by licensing agreements.

(11)This Decision does not release any undertaking from its obligations under Article 102 of the Treaty on the Functioning of the European Union.

(12)The opportunities offered by future developments in science should be taken into account by setting a time limit for the review of this Decision.

(13)A review of this Decision should be undertaken at any time prior to this time limit if ACCUTRACE™ PLUS is found to give rise to tax evasion or to cause health or environmental damage.

(14)Implementing Decision (EU) 2017/74 should therefore be repealed.

(15)The measures provided for in this Decision are in accordance with the opinion of the Committee on Excise Duty,

HAS ADOPTED THIS DECISION: