Judgment of the General Court (Second Chamber, Extended Composition) of 15 July 2026.#XXX v Hauptzollamt München.#Reference for a preliminary ruling – Taxation – Excise duties – Taxation of energy products and electricity – Concept of ‘energy products used for purposes other than as motor fuels or as heating fuels’ – First indent of Article 2(4)(b) of Directive 2003/96/EC – Propane used for the testing of burners.#Case T-562/25.

Provisional text

JUDGMENT OF THE GENERAL COURT (Second Chamber, sitting with five Judges)

15 July 2026 (*)

( Reference for a preliminary ruling – Taxation – Excise duties – Taxation of energy products and electricity – Concept of ‘energy products used for purposes other than as motor fuels or as heating fuels’ – First indent of Article 2(4)(b) of Directive 2003/96/EC – Propane used for the testing of burners )

In Case T‑562/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Finanzgericht München (Fiscal Court, Munich, Germany), made by decision of 26 June 2025, received at the Court on 28 July 2025, in the proceedings

XXX

v

Hauptzollamt München,

THE GENERAL COURT (Second Chamber, sitting with five Judges),

composed of N. Półtorak, President, G. Hesse (Rapporteur), G. Steinfatt, D. Petrlík and I. Dimitrakopoulos, Judges,

Advocate General: M. Brkan,

Registrar: V. Di Bucci,

having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 13 August 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,

having regard to the fact that the case concerns the area referred to in point (b) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,

having regard to the written part of the procedure,

after considering the observations submitted on behalf of:

–        XXX, by P. Kalski, director, and R. Schwerin, Rechtsanwalt,

–        the European Commission, by M. Björkland and C. Vollrath, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of the first indent of Article 2(4)(b) of 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).

2        The request has been made in proceedings between an energy technology undertaking and the Hauptzollamt München (Principal Customs Office, Munich, Germany; ‘the Customs Office’) concerning the latter’s refusal to grant relief from energy tax with regard to propane for 2021.

 Legal framework

 European Union law

 Directive 2003/96

3        Recitals 2 to 5, 22 and 24 of Directive 2003/96 are worded as follows:

‘(2)      The absence of Community provisions imposing a minimum rate of taxation on electricity and energy products other than mineral oils may adversely affect the proper functioning of the internal market.

(3)      The proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum levels of taxation to be laid down at Community level for most energy products, including electricity, natural gas and coal.

(4)      Appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to the proper functioning of the internal market.

(5)      The establishment of appropriate Community minimum levels of taxation may enable existing differences in the national levels of taxation to be reduced.

…

(22)      Energy products should essentially be subject to a Community framework when used as heating fuel or motor fuel. To that extent, it is in the nature and the logic of the tax system to exclude from the scope of the framework dual uses and non-fuel uses of energy products as well as mineralogical processes. …

…

(24)      Member States should be permitted to apply certain other exemptions or reduced levels of taxation, where that will not be detrimental to the proper functioning of the internal market and will not result in distortions of competition.’

4        Article 1 of Directive 2003/96 provides:

‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’

5        Article 2 of Directive 2003/96 contains, in paragraphs 1 and 4 thereof, the following provisions:

‘1.      For the purposes of this Directive, the term ‘energy products’ shall apply to products:

…

(b)      falling within CN codes 2701, 2702 and 2704 to 2715;

…

4.      This Directive shall not apply to:

…

(b)      the following uses of energy products and electricity:

–        energy products used for purposes other than as motor fuels or as heating fuels,

–        dual use of energy products

…’

 Directive 2008/118/EC

6        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) was repealed by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4). However, Directive 2008/118 remains applicable ratione temporis to the facts of the dispute in the main proceedings.

7        Article 1(1) of Directive 2008/118 provided:

‘1.      This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”):

(a)      energy products and electricity covered by Directive 2003/96/EC;

…’

 German law

8        Paragraph 25 of the Energiesteuergesetz (Law on Energy Tax) of 15 July 2006 (BGBl. 2006 I, p. 1534), in the version applicable to the dispute in the main proceedings (‘the EnergieStG’), provides:

‘(1)      Energy products referred to in Paragraph 4 may be used with exemption from tax for purposes other than

1.      for use as motor fuel or heating fuel,

…’

9        Paragraph 47 of the EnergieStG provides:

‘(1)      Tax relief shall be granted upon application

…

3.      in respect of heavy oils, natural gases, liquefied gases and gaseous hydrocarbons where it has been shown that they have been taxed, as well as in respect of energy products so treated under Paragraph 2(4) and (4a), which have been used for the purposes referred to in Paragraph 25,

…’

 The main proceedings and the question referred to the Court

10      The applicant in the main proceedings is an energy technology undertaking. In its business, it operates, on a plot, test benches for the burners of gas turbines. In that context, it consumed, in 2021, a total of 51 509.279 kilograms of propane, which it acquired by paying the energy tax.

11      On the basis of Paragraph 47(1)(3) of the EnergieStG, the applicant in the main proceedings applied for relief from the energy tax in respect of the propane which it consumed in 2021.

12      By decision of 26 July 2023, the Customs Office rejected that application on the ground that the propane had been used as heating fuel.

13      The applicant in the main proceedings lodged a complaint against that decision, which was rejected on 11 October 2023.

14      Following that rejection, the applicant in the main proceedings brought an action before the Finanzgericht München (Fiscal Court, Munich, Germany), which is the referring court. Before that court, the applicant in the main proceedings submits that it did not use propane as heating fuel since the thermal energy resulting from the combustion of that propane in the test benches is neither intentionally produced nor used, but rather constitutes waste. The purpose of the tests is not to produce or to use thermal energy. It therefore considers that it is entitled to tax relief. Conversely, the Customs Office maintains that, in order to be conclusive, the tests must be carried out under conditions simulating actual use. It infers from that that the applicant in the main proceedings consciously and voluntarily uses the thermal energy produced during the combustion of the propane in order to achieve its economic objective, which is to obtain conclusive results during the tests. Such a use of the propane does not give rise to tax relief.

15      The referring court considers that the outcome of the dispute in the main proceedings depends on the interpretation of the expression ‘purposes other than as … heating fuels’ within the meaning of the first indent of Article 2(4)(b) of Directive 2003/96. It is uncertain as to the meaning to be given to the wording ‘[purpose as] heating fuels’ in the context of the use of the propane to create a testing environment for the purpose of obtaining measurement data.

16      The referring court notes that the applicant in the main proceedings based its claim on Paragraph 47(1)(3) of the EnergieStG. That provision grants tax relief, on application, for, inter alia, liquefied gases – such as propane – where it has been shown that they have been taxed and which have been used for the purposes referred to in Paragraph 25 of the EnergieStG. In that context, the referring court considers that it must determine whether the propane at issue was used for the purposes referred to in point 1 of the first sentence of Paragraph 25(1) of the EnergieStG. According to the referring court, the concept of use ‘[as] heating fuels’ for the purposes of that provision refers to the first indent of Article 2(4)(b) of Directive 2003/96, according to which that directive does not apply to uses of energy products used for purposes other than as motor fuels or as heating fuels.

17      Although it considers, first, that, in the context of testing a burner, a transfer of thermal energy takes place which also contributes to meeting the temperature conditions necessary for the simulation of real-world conditions, which are essential for the accuracy of the measurements taken, and, second, that the purpose of the combustion is not relevant for determining whether there is use as heating fuels, the referring court doubts whether the use of the propane to create a testing environment for the purpose of obtaining measurement data falls within the concept of a use ‘[as] heating fuels’ within the meaning of the first indent of Article 2(4)(b) of Directive 2003/96, since it does not concern the use of the propane as a source of energy in the traditional sense.

18      In those circumstances, the Finanzgericht München (Fiscal Court, Munich) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the concept of use “as heating fuels” within the meaning of the first indent of Article 2(4)(b) of [Directive 2003/96] to be interpreted as covering propane that is burnt during real-world testing of a burner in order to produce measurement data, where the heat of combustion that is generated is not subsequently used?’

 Consideration of the question referred

19      By its question, the referring court asks, in essence, whether the concept of use ‘as heating fuels’, referred to in the first indent of Article 2(4)(b) of Directive 2003/96, must be interpreted as meaning that it covers the use of propane during the testing of a burner in real-world conditions for the purpose of producing measurement data, where the combustion heat of the propane is not subsequently used.

20      As a preliminary point, it should be noted that, according to Article 1 of Directive 2003/96, the Member States are required to tax energy products in accordance with that directive, which seeks to impose, as is apparent from recitals 2 and 3 thereof, minimum levels of taxation at EU level for most of those products.

21      By making provision for a system of harmonised taxation of energy products, Directive 2003/96 seeks, as is apparent from recitals 2 to 5 and 24 thereof, to promote the proper functioning of the internal market in the energy sector by avoiding, in particular, distortions of competition (see judgment of 13 March 2025, Alsen, C‑137/23, EU:C:2025:179, paragraph 64 and the case-law cited).

22      It should also be noted that the energy products to which Directive 2003/96 applies are defined in Article 2(1) of that directive by reference to the codes of the Combined Nomenclature. Accordingly, under Article 2(1)(b) of Directive 2003/96, read in conjunction with paragraph 5 of that article, the products covered by codes 2701, 2702 and 2704 to 2715 of the Combined Nomenclature, namely in particular, propane, constitute energy products for the purposes of that directive.

23      In addition, it is clear from Article 2(1) of Directive 2003/96 read in conjunction with Article 2(4) that the provisions of that directive apply to products which both are defined therein as energy products and fall within its scope (judgment of 6 June 2018, Koppers Denmark, C‑49/17, EU:C:2018:395, paragraph 25). In that regard, the first indent of Article 2(4)(b) of Directive 2003/96 provides that that directive does not apply to energy products used for purposes other than as motor fuels or as heating fuels.

24      As regards the concept of use ‘[as] heating fuels’ for the purposes of the first indent of Article 2(4)(b) of Directive 2003/96, certain language versions of that provision, such as those in the French- (combustible) and Czech- (paliva) language versions, refer to uses other than ‘heating fuels’ without further clarification, thereby implying that the release of heat alone could be sufficient for the purpose of interpreting that concept. By contrast, other language versions, such as the German- (als Heizstoff), English- (heating fuels), Italian- (combustibile per riscaldamento), Spanish- (el de combustible para calefacción), Polish- (paliwa do ogrzewania) or Slovak- (vykurovacie palivá) language versions use the expression ‘heating fuels’, it being understood that the addition of the word ‘heating’ to the word ‘fuels’ can be understood as referring to the use of the relevant source of energy for heating, for example, a space, such as a building or one of its parts. In those circumstances, the literal interpretation of that provision does not, in itself, make it possible to determine whether the concept of use ‘as heating fuels’ within the meaning of that provision is liable to include use for the purpose of the testing of a burner.

25      It is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of EU law. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 25 March 2010, Helmut Müller, C‑451/08, EU:C:2010:168, paragraph 38 and the case-law cited).

26      Concerning the scheme of Directive 2003/96, it follows from that directive, and in particular from Article 2(4)(b) thereof, that the use of an energy product is excluded from the scope of the directive only if that product is itself used other than as motor fuel or heating fuel. Thus, by excluding the products used for such purposes from the scope of that directive, the EU legislature intended to link the application of the tax to the function as motor fuel or heating fuel of those products (see, to that effect, judgment of 2 October 2014, X, C‑426/12, EU:C:2014:2247, paragraph 23).

27      In that regard, it is apparent from the information provided to the Court that, in the test bench for the burners of gas turbines, such as that at issue in the main proceedings, the burner ensures the mixture of air, propane and an additional flow of natural gas. It is common ground that the propane is burnt and that the process of combustion of the propane produces heat. In an operational gas turbine, the energy produced (heat) is converted into a rotational motion. However, in the test bench, in the absence of a turbine, the energy produced is not converted into mechanical energy. The gases resulting from the combustion of the propane pass through the test bench without such energy recovery taking place and are then discharged through a chimney into the atmosphere in the form of exhaust gases, by dissipating the bulk of the energy resulting from the combustion.

28      It is apparent from the request for a preliminary ruling that, in the testing scenarios of the applicant in the main proceedings, the objective of the simulation concerned is to use the properties of dilatation and volume expansion of the gas used, while seeking, more generally, to achieve a high output, minimum emissions and a stable flame. It is common ground that, in the absence of thermal conditions similar to those of a real-world operation, the measurements thus obtained have no significant value.

29      It follows that, subject to the verifications to be carried out by the referring court, in the test bench at issue in the dispute in the main proceedings, the propane is burnt and the thermal energy thus produced is transferred to the gas mixture referred to in paragraph 27 above, thereby contributing to the creation of real-world conditions for the operation of a gas turbine and to obtaining significant measurements. Although the thermal energy thus produced is not converted into mechanical energy, it is transmitted to the gas flow and used in the industrial testing process, of which it is an essential element.

30      Accordingly, in a situation such as that at issue in the dispute in the main proceedings, the propane is burnt for its energy content, the thermal energy thus produced being used for heating purposes in order to obtain thermal conditions similar to those of the real-world operation of a gas turbine.

31      The fact that the thermal energy thus produced is not recovered by a turbine cannot lead to the conclusion that, in a situation such as that at issue in the main proceedings, the propane is used other than as heating fuel within the meaning of the first indent of Article 2(4)(b) of Directive 2003/96. Indeed, as follows from paragraph 26 above, for the purpose of classifying use ‘[as] heating fuels’, it is relevant that the energy product is burnt in order to enable the resulting heat to be used, for the purpose of the testing carried out, irrespective of its subsequent use for other purposes or its removal.

32      That interpretation is confirmed by the objectives pursued by Directive 2003/96, which, pursuant to Article 1(1)(a) of Directive 2008/118, forms part of the general arrangements for excise duty of the European Union.

33      In that regard, the objective of the excise duty on energy products, as a tax on consumption, militates in favour of interpreting the expression ‘used for purposes … as heating fuels’, in the first indent of Article 2(4)(b) of Directive 2003/96, as relating to all cases where those products are burnt and the energy thus produced is used for heating, whatever the purpose of that heating may be (see, by analogy, judgment of 29 April 2004, Commission v Germany, C‑240/01, EU:C:2004:251, paragraph 56), including that of the testing of a burner for the purpose of obtaining measurement data.

34      Consequently, in so far as, in a situation such as that at issue in the main proceedings, the propane is burnt and, therefore, consumed to take advantage of its thermal content for the purpose of simulating the real-world operating conditions of a gas turbine, which it is for the referring court to ascertain, it is used as a heating fuel. In that regard, the purpose of the heating, that is to say, establishing thermal conditions similar to those of real-world operation of a gas turbine, is irrelevant.

35      The fact that the gases are not kept in the test bench, but are continuously removed without further use, does not call that interpretation into question and, in a situation such as that at issue in the main proceedings, it cannot be considered that the propane is used other than as a heating fuel within the meaning of the first indent of Article 2(4)(b) of Directive 2003/96. The fact that the gases resulting from the combustion do not remain in the test bench, but are continuously removed, has no bearing on the fact that the propane was burnt, that its heat was transferred to those gases, that those gases were used in the context of the industrial testing process and that the propane was therefore consumed as heating fuel for the purposes of that process.

36      In the light of the foregoing, the answer to the question referred is that the first indent of Article 2(4)(b) of Directive 2003/96 must be interpreted as meaning that the concept of use ‘[as] heating fuels’, referred to by that provision, must be interpreted as meaning that it covers the use of propane during the testing of a burner in real‑world conditions for the purpose of producing measurement data, where the combustion heat of the propane is not subsequently used.

 Costs

37      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds,

THE GENERAL COURT (Second Chamber, sitting with five Judges)

hereby rules:

The first indent of Article 2(4)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that the concept of use ‘[as] heating fuels’, referred to by that provision, must be interpreted as meaning that it covers the use of propane during the testing of a burner in real‑world conditions for the purpose of producing measurement data, where the combustion heat of the propane is not subsequently used.

Delivered in open court in Luxembourg on 15 July 2026.

[Signatures]

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*      Language of the case: German.