Agricultural Orientation Law and Commercial Code
Key words: pure vegetable oil, crude, HVP, HVB, law, europe, directive.
Does France have the right to prohibit its farmers from selling vegetable oil as fuel? The draft agricultural orientation law would authorize the use of pure vegetable oil as agricultural fuel, but only on the farm where it would be produced, which prohibits all possibilities of marketing and which is contrary to the rules of trade and freedom. access to energy markets.
The draft LOA (agricultural orientation law) will not allow the development of the use of pure vegetable oils as fuel. It provides for the amendment of the Customs Code with the aim of authorizing, on a trial basis, until November 31 2007 pure vegetable oils (HVP) as agricultural fuel, but only on the agricultural holdings on which they have been produced and provided that the HVPs are compatible with the type of engine used and the corresponding emission requirements. If these conditions are met, the HVP will benefit from an exemption from the domestic consumption tax (ex-TIPP), but they will however be prohibited from selling or offering for sale for carburation, if there is no special authorization by decrees of the Minister for the Budget and the Minister of Industry. Products used or intended to be used in violation of these requirements, that is for purposes other than agricultural use, are subject to the internal consumption tax, says the draft law. Any infringement of these provisions that the customs administration is responsible for applying is punishable by a fine provided for this purpose.
The European brake to the LOA.
It is not certain that this bill will be adopted as it stands.
At the European level, Directive 2003 / 30 / CE stipulates that oil-derived HVP "obtained by pressure, extraction or similar processes, whether crude or refined, but without chemical modification, may also be used as a biofuel, in the case where its use is compatible with the type of engine and the corresponding emission requirements ". It explicitly requires the Member States to adopt the necessary legislation to ensure that biofuels represent a minimum share of the fuels sold on their territory. It recalls the resolution of 18 June 1998 which advocates including a tax exemption for biofuels. Lastly, it asks the Member States to comply at the latest by 31 December 2004 with this directive.
This 2003 / 30 / EC guideline has only been partially transposed, but not for HVP provisions. Indeed, Article 32 of the Finance Act for 2005 concerns mineral (and non-vegetable) oils. The Commission has therefore initiated a pre-litigation procedure for failure to transpose this Directive since the transposition deadline has passed.
Germans ride the HVP on our roads
Another European directive, 2003/96 / EC, relating to the taxation of energy products provides for specific taxation for biofuels. It also calls for the harmonization of taxation on fuels to avoid distortions of competition in the field of transport and authorizes Member States to apply a partial or total exemption from taxes on biofuels (excluding VAT) - the TIPP-TIC en France -, which Belgium and Germany have already done. French truck drivers thus find themselves at a disadvantage compared to their German and eastern counterparts who use HVP… and there are many of them on French roads.
Directive 2003 / 96 / CE has also not been fully transposed into French law, remarks the senator of Aube Philippe Adnot who follows the file. Arbitrations are under way, he writes to producers of HVP, the European Commission has also launched a pre-litigation against France for this failure to transpose this directive.
Anti-competitive practices
Finally, with regard to the ban on farmers reselling the HVP, it is a question of seeing whether this bill complies with French and European trade rules. Article 420-1 of the Commercial Code prohibits anti-competitive practices when their purpose or may have the effect of preventing, restricting or distorting the play of competition in a market, in particular when they tend to limit access to the market or the free exercise of competition by other companies, (...) when they tend to limit or control production, outlets, investments or technical progress and finally to share markets or sources supply. This fundamental article of the NCPC adds, however, that the practices resulting from the application of a legislative text or a regulatory text taken for its application are not subject to this rule. This would be the case, in this case, of the HVP, falling under the LOA, if it were adopted.
Legal absence and failure to transpose
At European level, however, this provision is contrary to the spirit of "liberalization" of access to energy markets, which is already known for electricity, which tilts the balance in favor of farmers. In the meantime, we must therefore refer to the European Trade Council to see whether France has the right to prohibit its farmers from selling vegetable oil as fuel. In the absence of European texts and case law, Directive 2003/30 / EC would be effective. Indeed, the Court of Justice of the European Union has developed a general case-law which makes certain provisions of certain directives effective under certain conditions (sufficiently precise provisions, for example) from the date fixed by the directive for its transposition.
Beyond the legal aspects, farmers are wondering about the multiple barriers to economic and sustainable development, especially at a time when the government's key word is employment.
David Lefebvre