EUROPEAN COMMISSION. Brussels, SG (...) D/ Subject: N 112/04 SE, Tax exemption for biofuels

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1 EUROPEAN COMMISSION Brussels, SG (...) D/ Subject: N 112/04 SE, Tax exemption for biofuels Excellency, The Commission wishes to inform Sweden that, having examined the information supplied by your authorities on the matter referred to above, it has decided to raise no objections to the aid. 1 Procedure (1) By letter dated 25 February 2004 Sweden notified its intention to grant aid for biofuels 1. The aid measure was registered with the number N 112/04. The Commission asked additional information by letters of 22 April 2004, 10 May 2004, 25 August 2004 and 21 December Sweden replied by letters of 30 June 2004, 3 November 2004, 26 January 2005 and 7 February 2006, informing the Commission of some significant modifications to the original notification. 2 Description (2) The Swedish excise duty rate, laid down in Law 1994:1776 on tax on energy (Lagen 1994:1776 om skatt på energi), consists of two parts, namely an energy tax and a carbon dioxide (CO 2 ) tax. Sweden is already operating a scheme 2, which partially exempts biofuels from excise duties on fuels. For 2005, Sweden had the target that these fuels should make up at least 3% of total consumption of petrol and diesel for transport operations, calculated on the basis of energy content. This is well in line with the reference value of 5.75% for 2010 set by Community legislation, see point 12 below. Granting only partial tax exemption for biofuels would, however, be insufficient in order to meet the targets. Therefore, Sweden notified its intention to introduce the following three modifications to the existing scheme: 1. Extending the excise duty reduction so that it becomes a full exemption from the energy tax and the carbon dioxide tax for all fuels covered by the scheme; 2. Broadening of the scope of the aid scheme to include hydrogen gas as motor fuel and hydrogen gas for the generation of electricity in vehicles powered by fuel cells provided that the hydrogen gas is manufactured from a biologically-based 1 Sweden actually uses the term CO 2 -neutral fuels, but the Commission notes that the production of biofuels and the cultivation of the feedstock generally consume some fossil fuel and cause CO 2 emissions. Furthermore, the term biofuels is used in this decision in a general way, including hydrogene from renewable resources which may not fall within the definition of biofuels given in other Community legislation, see point 13 and 17 below. 2 Case N480/2002, OJ C33 of , p.7.

2 production method or other method which does not result in net emission of carbon dioxide to the atmosphere. 3. Extending the duration of the aid scheme until 31 December As regards bioethanol for low blended fuel, the excise reduction is only applicable to ethanol that qualifies as undenatured ethanol in code CN (3) The definition of CO 2 -neutral fuels remains the same, i.e. animal and vegetable fats and their derivatives, alcohol, ethers and hydrocarbons, provided that the carbon atoms in the product are of biological, non fossil origin. Hydrogen gas will also be eligible, either used directly as a motor fuel or for production of electricity in vehicles powered by fuel cells, provided that the hydrogen gas is manufactured using electricity from renewable energy sources or using a biologically-based production method or other method which does not result in net emissions of carbon dioxide to the atmosphere. (4) Unlike in other parts of Europe, in Sweden, the predominant biofuel, in terms of volume, is ethanol, most of which is blended with petrol up to 5%. A smaller, but growing volume of ethanol is used for E85, which consists of 85% ethanol, 12% petrol and 3% denaturing agent and which can be used in flexible fuel vehicles only. There are also a number of city buses which run on practically pure ethanol. (5) The energy and CO 2 tax on environmental class 1 petrol amount to SEK 2.84 and SEK 2.12 per litre, amounting to a total tax of SEK 4.96 ( 0.53) per litre. The corresponding taxes on environmental class 1 diesel amount to SEK and SEK per litre respectively, amounting to a total tax of SEK ( 0.39) per litre. The aid consists in a full exemption of these taxes 3. Biofuels blended with fossil fuels are exempted from the selective tax to the extent that they contain biofuel. (6) The measure is open to all producers and importers of biofuels covered by the scheme. Sweden estimates that the aid will lead to a tax revenue foregone amounting to approximately SEK million (EUR 129 million) in The market for low blend bio-ethanol would be almost at the level of market saturation. There would be some growth for the market for E85 for FFVs and ethanol for buses. At the time of the notification just over 20 potential operators existed in Sweden. Table 1 presents figures on expected sales and loss of tax revenue as provided by Sweden. Fuel/use Table 1: expected sales and loss of tax revenue Lost tax Volume revenues (SEK mln) (m 3 ) Fuel substituted Lost tax revenues 2005 (SEK mln) Volume 2005 (m 3 ) Ethanol/low Petrol blend Ethanol/E85 Petrol Ethanol/bus Diesel fuel RME/low Diesel blend RME/100% Diesel Sweden currently applies three different excise duty rates on both petrol and diesel according to environmental standards, but only the rate for environmental class 1 quality petrol is relevant for this decision, as this quality makes up almost 100% of the Swedish petrol market. 2

3 Total (7) The aid for hydrogen gas from renewable electricity, concerns for the moment only a three-year research project involving three city buses in Stockholm with an estimated aid of only SEK ( ) per year 4. The renewable electricity may be taken directly from e.g. a biofuel combined heat and power installation, or indirectly from the grid. In the latter case the tax authorities will verify the proper source by means of the existing electricity certification system. Direct hydrogen gas production from e.g. wood exists on a very small scale only. Research is carried out on new production technologies, e.g. by use of blue-green bacteria and photosynthesis, but this is not expected to be put in practice in the short or medium term. (8) Sweden will compile annual reports in order to monitor the operation and effects of the aid. It will use this information to monitor taxation in order to prevent overcompensation. The Commission will receive copies of the annual reports. (9) Sweden submitted detailed calculations comparing the cost of biofuels with the corresponding fossil fuels. These calculations are summarised in the annex to this decision. (10) In 2006, the Commission intends to finalise a mid-term review of Directive 2003/30/EC of the European Parliament and the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport 5 and in this context, or even earlier, the Commission may make recommendations to Member States as regards the instruments used for encouraging biofuels. Sweden committed to make its best endeavours to amend the aid scheme if this appears necessary for giving an appropriate follow up to any such recommendations. Sweden committed to renotify the aid if such amendments affect the substantive conditions of granting the aid. Furthermore, Sweden committed to provide in the annual reports an assessment of the development of supply and demand on the Swedish biofuel market. 3 Assessment 3.1 State aid in the sense of Article 87(1) of the Treaty (11) The measure constitutes State aid in the meaning of Article 87(1) of the Treaty. It is granted by a Member State and financed through State resources as the exemption reduces tax income that otherwise would have been available to the State. The measure distorts competition as it favours the producers of biofuels in a selective way, precisely in conformity with its objectives. The beneficiaries of the tax reduction should not be considered to be the final consumers of the fuel, as they are likely to pay a price that will be broadly equal to the prices of the fuels that directly compete with the biofuel, namely traditional fuels. In contrast, the measure favours the producers of biofuels, because they will obtain a higher return for their products. Fuel and biofuel are widely traded between Member States and therefore the measure is likely to affect this trade. 3.2 Community policy with respect to environmentally friendly fuels (12) The promotion of biofuels and other renewable fuels to replace diesel or petrol for transport is a well established Community priority, as they are expected to contribute to OJ L 123 of , p.42. 3

4 objectives such as reduction of CO2-emissions and environmentally friendly security of supply. Most concretely, Article 3 of Directive 2003/30/EC establishes a reference value of 5.75% of all petrol and diesel for transport purposes placed on their markets by 31 December The Commission s policy as regards biofuels is also reflected in the Communications from the Commission Biomass action plan of 7 December 2005 and An EU strategy for biofuels of 8 February (13) Directive 2003/30/EC defines biofuels to mean liquid or gaseous fuel for transport produced from biomass, where biomass is defined as the biodegradable fraction of products, waste and residues from agriculture (including vegetal and animal substances), forestry and related industries, as well as the biodegradable fraction of industrial and municipal waste. Other renewable fuels means renewable fuels, other than biofuels, which originate from renewable energy sources as defined in Directive 2001/77/EC of the European Parliament and the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal market 7 and used for transport purposes. Article 2(a) of this directive lists the following renewable energy sources: wind, solar, geothermal, wave, tidal, hydropower and biomass, landfill gas, sewage treatment plant gas and biogases. (14) The policy on biofuels fits in logically with the wider policy of promoting renewable energy sources in general 8. (15) These Community objectives and policies are also reflected in the Community policy on energy taxation, in particular Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity 9. Article 16(1) of this Directive allows Member States to apply an exemption or a reduced rate of taxation on biofuels, defined as products that are made up of, or contain, one or more of the following products: 1) products falling within CN codes 1507 to 1518 (various animal and vegetable fats and oils), 2) products falling within CN codes and to (certain mixtures of esters and glycerol) for their components produced from biomass, 3) products falling within CN codes and (ethanol) which are not of synthetic origin, 4) products produced from biomass, including products falling within CN codes 4401 and 4402 (certain wood products). For blended fuels, the reduction may be applied to the biofuel component only, which is the situation in the case at hand. (16) The above shows that there is a slight distinction between the definitions used in Directive 2001/77/EC and definitions of energy products in Council Directive 2003/96/EC. The conditions for such exemptions depend on the precise qualification of the fuel. All renewable fuels that Sweden wishes to exempt fall within the scope of art. 16(1) of Directive 2003/96/EC, except for some types of hydrogen gas for specific uses. Hydrogen gas is not included in the list of energy products as defined in art. 2(1) of 6 COM(2005) 628 final and COM(2006) 34 final. 7 OJ L 283 of , p See, e.g., the Commission s White Paper of 1997 on Renewable Energy Sources COM (1997) 599 final of , the Green paper on energy supply safety in the European Union COM (2000) 769 of , the Commission's communication on alternative fuels for road transport and on a set of measures to promote the use of biofuels COM(2001) 547 of OJ L283 of , p.51. 4

5 the Directive, but when hydrogen is directly used as a fuel, it shall be taxed at the rate for the equivalent motor fuel in accordance with art. 2(3) second sub paragraph. When this hydrogen is produced from biomass, it may be exempted from energy tax in accordance with article 16(1) fourth indent. When it is not produced from biomass, but e.g. from other CO 2 -neutral electricity sources such as hydropower, it may be exempted only on the basis of art. 15(1) sub (a) of the Directive, when the exemption applies to pilot projects for the technological development of more environmentallyfriendly products or in relation to fuels from renewable resources. Sweden has confirmed that it will grant aid for such projects not on the basis of the notified scheme at hand, but only on the basis of the Swedish scheme that provides for aid for such pilot projects 10. (17) As explained in point 2 above, hydrogen may also be used for production of electricity in vehicles powered by fuel cells. As a general rule, electricity is taxable. Member States may, however, apply tax exemptions to electricity generated from fuel cells under art. 15(1)(b) fifth indent 11. (18) The notified measure complies thus with the requirements under Community tax law. 3.3 Compatibility with the common market under the State aid rules (19) Article 87(3)(c) of the EC Treaty foresees an exemption to the general rule of incompatibility as stated in paragraph (1) of this Article for aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest. (20) Given the objectives of the, notified measure the Commission assessed it in the light of the Community Guidelines on State aid for environmental protection 12 (hereafter the guidelines ). It is not excluded that some aid will concern agricultural products that are included in Annex I of the Treaty. The aid for these products fall within the scope of the Community guidelines for State aid in the agriculture sector 13 and is excluded from the scope from the environmental aid guidelines in conformity with point 7 of these guidelines. Section of the guidelines for State aid in the agriculture sector, however, stipulates that in duly justified cases, such as aids for the development of biofuels, the Commission may also approve operating aid in cases where these can clearly be shown to be necessary to offset the additional cost arising from the use of environmentally friendly inputs in comparison to conventional production processes. The aid component should be limited to neutralising the effects of the additional costs and should be subject to a periodic review at least every five years. Since the aid only concerns biofuels which without aid would not be competitive in the market and since the aid level is reviewed annually, the notified aid scheme complies with these conditions. 10 N512/2002, OJ C75 of , p2, and its extension and prolongation N197/2004, authorised by the Commission on , not published yet. 11 Provided that certain conditions are fulfilled, another basis to exempt electricity produced by fuel cells can be found in Article 21(5) third paragraph, second sentence. 12 OJ C 37 of , p OJ C28 of , p.2 5

6 (21) According to section E.3.3 of the guidelines, operating aid in favour of the production of renewable energy will usually be allowable. The Commission takes the view that such aid qualifies for special treatment because of the difficulties these sources of energy have sometimes encountered in competing effectively with conventional sources. Definition of biofuels hydrogen (22) The biofuels are renewable energy sources within the meaning of point (6) of the Community Guidelines. Hydrogen gas produced by renewable resources is no exception, even though the production chain consists of more stages than most other biofuels. Avoidance of overcompensation (23) The Commission notes that the aid levels are proportional to the objectives of Swedish and Community biofuel policy. In addition, from the information on costs of biofuels production in the Annex it appears that the aid is limited to cover only partially the difference between the cost of producing biofuel and the market price of that energy. The Commission notes that, depending a.o. on the exchange rate, imported biofuels may have a strong competitive position vis-à-vis European fuels. Different competitive strengths, however, are inevitable in any market where producers of similar products use different feedstock with different production technologies. As the aid in question provides the same benefit to any producer of bioethanol, differences in profitability margins simply reflect differences in efficiency, which are identical to those in a situation without the aid. Therefore, the Commission concludes that, on balance, there is no overcompensation in the meaning of point 56 of the guidelines (24) There is no need to limit the operating aid to plant depreciation given that the fuels concerned are biomass or assimilated products which require less investment but bring higher operating costs than other renewables, in line with point 60 of the guidelines. Other conditions (25) The measure complies with other requirements under the State aid rules. It is limited in time and Sweden committed itself to provide annual monitoring reports to the Commission containing all relevant information on the production costs of the biofuels and the market price of fuels to show that there is no overcompensation. Sweden also confirmed that it would make annual adaptations to the exemption if necessary in order to avoid any overcompensation in the future and that it would make its best endeavours to amend the aid scheme if this appears necessary for giving an appropriate follow up to recommendations of the Commission as regards the instruments to be used for encouraging biofuels. 4 Decision (26) On the basis of the foregoing considerations, the Commission concludes that the notified aid measure is compatible with the common market as it fulfils the conditions laid down in section E.3.3 of the Community guidelines on State aid for environmental protection. The Commission accordingly decides not to raise objections against the measure. (27) If this letter contains confidential information which should not be published, please inform the Commission within fifteen working days of the date of receipt. If the 6

7 Commission does not receive a reasoned request by that deadline, you will be deemed to agree to publication of the full text of this letter. Your request specifying the relevant information should be sent by registered letter or fax to: European Commission Directorate-General for Competition State Aid Greffe, SPA 3 6/5 B-1049 Brussels Fax No: + 32 (0) Yours faithfully, For the Commission Neelie KROES Member of the Commission 7

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