In a judgment handed down on Thursday 28 September (Case C-692/20), the Court of Justice of the European Union (CJEU) ordered the United Kingdom to pay a lump-sum fine of €32 million for failing to ban the use of marked fuel for private pleasure craft within the prescribed time limit.
In October 2018, the Court found that by authorising the use of marked fuel for propelling private pleasure craft, even where that fuel is not subject to any exemption from or reduction in excise duty, the United Kingdom had infringed Directive 95/60/EC on the fiscal marking of gas oils and kerosene.
In December 2020, i.e. during the post-Brexit transition period during which EU law was still applicable to the UK, the Commission again referred the matter to the CJEU, asking it to find that the UK had not complied with European case law and, consequently, to impose a daily penalty payment and a lump sum (see EUROPE 12615/26). It has since withdrawn its claim for a daily penalty payment, since the use of marked fuel for private pleasure craft has been banned from October 2021 in Northern Ireland, where EU law still applies.
In its judgment, the Court found that the United Kingdom had not taken all the necessary measures to comply with its 2018 judgment by the deadline set by the Commission in a letter of formal notice, i.e. mid-September 2020. In its view, internal difficulties (legislative procedure, general elections, public consultations, geographical characteristics, Covid-19 pandemic) do not justify non-compliance with this judgment.
In setting the amount of the fixed fine, the CJEU has taken into account the seriousness and duration of the offence and the United Kingdom’s ability to pay. It points out that Britons wishing to travel to the waters of neighbouring Member States and citizens of those Member States wishing to refuel in the UK with marked fuel before their return risked being fined by the authorities of those Member States.
As a mitigating factor, the European Court noted that the United Kingdom had taken measures before the present action was lodged and during the proceedings to comply with the 2018 judgment, and that the Directive was only applicable in Northern Ireland from January 2021. As for the country’s ability to pay, the Court takes into account the GDP of the whole of the United Kingdom, which is responsible for applying EU law in Northern Ireland, over the almost three-year period from the date of the 2018 judgment to its execution by the UK authorities.
In the end, the Court ordered the United Kingdom to pay the Commission a lump sum of €32 million.
To see the Court’s judgment, go to https://aeur.eu/f/8rv (Original version in French by Mathieu Bion)