Red Diesel - HMRC defence in EU

[gjgm]

Maby, that's twice that you have said that it is illegal to have marked diesel in a tank which can supply an engine, and twice that you have been wrong. I have asked you already to show where in the regulations that this appears. I now ask you again, but I know you won't, because it doesn't exist. Please stop peddling untruths.

I appreciate that some discussion is re EU and some is re HMRC, and at some point whether local implementation meets the requirement of the directive.
As a boater, I would focus on HMRC. They of course may have an issue "upstairs", but that is not my immediate concern.
HMRC , see here:
https://www.gov.uk/government/publi...leasure-craft-and-for-private-pleasure-flying

 

[TallBuoy]

I'm sorry but that statement is 100% WRONG
60/40 is the accepted split. End off.
I don't t understand why so many people fail to grasp that.

No Eber? No difference
No calorifier? No difference
No batteries?

60/40 no questions

I'm pleased to see that others have corrected you. I spent nearly five years selling marine diesel, accountable to the company secretary and directors to implement the rules correctly. During this period I had an unannounced visit from Trading Standards who were highly satisfied with how we were advertising and setting the pump prices.

Must admit I left that job nearly 4 years ago, but am pretty sure that nothing has changed in the meantime.

 

[maby]

Maby, that's twice that you have said that it is illegal to have marked diesel in a tank which can supply an engine, and twice that you have been wrong. I have asked you already to show where in the regulations that this appears. I now ask you again, but I know you won't, because it doesn't exist. Please stop peddling untruths.

OK - was rather busy these last few days, so didn't have time to look up relevant documents. Here's a starter for ten - admittedly, it refers to "road vehicles", but the other documents in the relevant directives make clear that private leisure craft are also included...

"COUNCIL DIRECTIVE 95/60/EC
of 27 November 1995
on fiscal marking of gas oils and kerosene"

" Article 3

Member States shall take the necessary steps to ensure
that improper use of the marked products is avoided and,
in particular, that the mineral oils in question cannot be
used for combustion in the engine of a road-going motor
vehicle or kept in its fuel tank unless such use is
permitted in specific cases determined by the competent
authorities of the Member States."

There are a lot of EU documents relating to this subject - I read them all once as a result of a previous discussion thread similar to this one. Like most legal disputes, the argument hinges on interpretations of the wording - it is pretty clear that the EU intended to outlaw the purchase of marked fuel in any context where it could easily be burned in the engines of leisure craft. The wording in the HMRC document mentioned above relating to the purchase of marked fuel in a tank dedicated to heating is driven by the directives.

As is often the case, the wording of the directives can be interpreted in various ways and the UK government, under pressure from the RYA has chosen to interpret it differently. That is why there is a case against us in the ECJ at the moment. I think they will inevitably rule against us, but we may be out of the EU before that ruling is made.

 

[benjenbav]

I think there's a good deal of angels/pinheads in the discussion. The EU Directive needed to be brought into national law by national governments. What is technically at issue is the way the UK has done that, rather than what end-users are doing.

 

[maby]

I think there's a good deal of angels/pinheads in the discussion. The EU Directive needed to be brought into national law by national governments. What is technically at issue is the way the UK has done that, rather than what end-users are doing.

Certainly so - and this is why the recent Belgian action against UK sailors has been incorrect. We are doing what our government is telling us that we can. The EU dispute is with the UK government - the outcome of that may impact upon us, but we are not breaking the law until the UK government is forced to implement things the way the EU want them to.

 

[NormanS]

OK - was rather busy these last few days, so didn't have time to look up relevant documents. Here's a starter for ten - admittedly, it refers to "road vehicles", but the other documents in the relevant directives make clear that private leisure craft are also included...

"COUNCIL DIRECTIVE 95/60/EC
of 27 November 1995
on fiscal marking of gas oils and kerosene"

" Article 3

Member States shall take the necessary steps to ensure
that improper use of the marked products is avoided and,
in particular, that the mineral oils in question cannot be
used for combustion in the engine of a road-going motor
vehicle or kept in its fuel tank unless such use is
permitted in specific cases determined by the competent
authorities of the Member States."

There are a lot of EU documents relating to this subject - I read them all once as a result of a previous discussion thread similar to this one. Like most legal disputes, the argument hinges on interpretations of the wording - it is pretty clear that the EU intended to outlaw the purchase of marked fuel in any context where it could easily be burned in the engines of leisure craft. The wording in the HMRC document mentioned above relating to the purchase of marked fuel in a tank dedicated to heating is driven by the directives.

As is often the case, the wording of the directives can be interpreted in various ways and the UK government, under pressure from the RYA has chosen to interpret it differently. That is why there is a case against us in the ECJ at the moment. I think they will inevitably rule against us, but we may be out of the EU before that ruling is made.

Thanks for coming back.
I suspect that if you use your BOAT as a road vehicle, there are probably quite a few regulations with which you would have to comply. The use of the correct colour of fuel would be one of the lesser of your concerns.

 

[maby]

Thanks for coming back.
I suspect that if you use your BOAT as a road vehicle, there are probably quite a few regulations with which you would have to comply. The use of the correct colour of fuel would be one of the lesser of your concerns.

Certainly so, but the point is that the EU is trying to apply the same rules on fuel marking to both cars and privately owned boats. The clause I quoted above does refer explicitly to road vehicles, but there are words in other EU documents that apply the same to boats. We are not permitted marked diesel in the propulsion engine. They imposed this rule to block the use of untaxed fuel for propelling private vehicles. It is pretty implausible that any privately owned boat burns 40% of the fuel purchased for heating or electricity generation in the summer months and the fact that so many people regard it as their right to get a tax rebate on 40% of what they purchase irrespective of the actual usage can only serve to make the EU more determined to block all sales of red diesel to us.

 

[Stork_III]

Certainly so - and this is why the recent Belgian action against UK sailors has been incorrect. We are doing what our government is telling us that we can. The EU dispute is with the UK government - the outcome of that may impact upon us, but we are not breaking the law until the UK government is forced to implement things the way the EU want them to.

But the Declaration explicitly says that use of marked fuel is for use in UK waters only. So use your boat in other EU waters your not covered.

"‘I declare that ()% of the fuel purchased will be used for propelling a private pleasure craft.

I am aware that the Hydrocarbon Oil Duties Act 1979, which permits the use of marked diesel to propel private pleasure craft, only applies within UK waters. I acknowledge that nothing in that Act, or the making of this declaration, affects any restrictions or prohibitions that may apply to the use of fuel for propelling private pleasure craft outside UK waters, including any restrictions or prohibitions under the law of another member state that apply within the waters of that member state.’."

 

[jfm]

We are not permitted marked diesel in the propulsion engine.

We are. See bejenbav's post above: this whole case is about whether the UK nation state has or has not passed the laws that the directive demands. We/you/I are not the accused.

 

[MapisM]

We are. See bejenbav's post above: this whole case is about whether the UK nation state has or has not passed the laws that the directive demands. We/you/I are not the accused.

Of course I see your point, and I'm not saying that you and BJB are wrong, in this specific case.
But if you are right, I can't understand why.
I mean, in principle, I don't think that the compliance with somebody's home Country regulation is per se a crystal clear reason for discharging any personal liability when Mr.SB is abroad.
For instance, if honor killing is allowed in my home Country (don't laugh, it used to be, sort of... ), it doesn't mean that I can get away with it anywhere else, surely...?

 

[Momac]

I'm pleased to see that others have corrected you. I spent nearly five years selling marine diesel, accountable to the company secretary and directors to implement the rules correctly. During this period I had an unannounced visit from Trading Standards who were highly satisfied with how we were advertising and setting the pump prices.

Must admit I left that job nearly 4 years ago, but am pretty sure that nothing has changed in the meantime.

Nothing has changed.
Please explain what the trading standards rules are that you so highly satisfied.


I find, in practice, some retailers impose the 60/40 split in the summer but may allow some to be sold at the domestic rate in the winter (or early spring). I can't imagine any customer would volunteer to pay more in duty than the 60/40 split . I also agree the general opinion is the 60/40 split is believed to be a ratio that will not be challenged.

 

[rafiki_]

Of course I see your point, and I'm not saying that you and BJB are wrong, in this specific case.
But if you are right, I can't understand why.
I mean, in principle, I don't think that the compliance with somebody's home Country regulation is per se a crystal clear reason for discharging any personal liability when Mr.SB is abroad.
For instance, if honor killing is allowed in my home Country (don't laugh, it used to be, sort of... ), it doesn't mean that I can get away with it anywhere else, surely...?

JFM is correct P. The issue for the Eu is whether UK has transposed the Regulation into UK law correctly. It is up to the UK then to implement the law. The Eu can then challenge the UK on implementation if it so desires. The issue as I understand is the former, has the UK transposed correctly. No one is going to dip tanks in the UK unless the UK law says white diesel only for propulsion.

 

[maby]

We are. See bejenbav's post above: this whole case is about whether the UK nation state has or has not passed the laws that the directive demands. We/you/I are not the accused.

OK - I am using the royal we as in "EU citizens" - it is true that the Belgian action directed against individuals is highly questionable.

 

[MapisM]

JNo one is going to dip tanks in the UK

Understood & agreed P, but my doubt was strictly related to whether the principle still stands when you are NOT in the UK...

 

[MapisM]

it is true that the Belgian action directed against individuals is highly questionable.

Just to rephrase my previous comment, I'm not so sure it is really questionable, as long as they apply it in Belgian territorial waters.

 

[rafiki_]

Understood & agreed P, but my doubt was strictly related to whether the principle still stands when you are NOT in the UK...

Clearly you are correct wrt Belgium. Not many mobo’s would make Italy on a tank from the U.K. France, Spain and Portugal have not created any issues to date, nor have Netherlands, Germany or the Scandinavian countries.

 

[gjgm]

Clearly you are correct wrt Belgium. Not many mobo’s would make Italy on a tank from the U.K. France, Spain and Portugal have not created any issues to date, nor have Netherlands, Germany or the Scandinavian countries.

And..why would they..what happens to an EU boat visiting Uk..they empty the tanks mid channel and row home? Add in the dye will colour even white diesel for a while and remaining litres are going to be burned pretty fast anyway....seems a bit pointless to punish the paying guests !
I thought Belgium after a few moments of muscle flexing had also decided to forget about it?

 

[MapisM]

And..why would they

Mmm... For instance, because if they don't, anyone in NL etc. could use red in pleasure boats, knowing that if and when checked, they can just pretend to have refilled in the UK?

Mind, I'm not arguing against all the good common sense reasons that suggest otherwise.
All I'm saying is that the Belgian approach looks formally correct to me.
Neither your very valid practical reasons nor the fact that 60/40 is fine in the UK are relevant from a legal standpoint once in foreign waters, imho.

 

[Momac]

Will the EU legal case against the UK not be abandoned now we are leaving the EU?
.

 

[gjgm]

Mmm... For instance, because if they don't, anyone in NL etc. could use red in pleasure boats, knowing that if and when checked, they can just pretend to have refilled in the UK?

Dont buy that ( ho ho)..would be pretty easy for local tax office to demand the UK receipt.
Anyway, we are where we are and it seems that the other EU countries are not chasing UK boaters, whatever you feel about the legal niceties?