–

Accorinvest and Société générale, by S. Espasa Mattei and J.‑P. Renaudin, lawyers,

–

the French Government, by P. Chansou and B. Travard, acting as Agents,

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the European Commission, by M. Björkland and M. Herold, acting as Agents,

1

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

2

The request has been made in two sets of proceedings, which were joined in the main proceedings between, on the one hand, Accorinvest and Société générale, and, on the other, the ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique (Minister for the Economy, Finance and Industrial and Digital Sovereignty, France), concerning the lawfulness of taxation borne by those companies, pursuant to French legislation, arising from the conclusion of contracts for access to the electricity network.

3

Directive 2008/118 was repealed by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4).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

4

Article 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”):

…

2.   Member States may levy other indirect taxes on excise goods for specific purposes, provided that those taxes comply with the Community tax rules applicable for excise duty or value added tax as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions.

3.   Member States may levy taxes on:

…

…’

5

Article 18 of loi no 2004-803, du 9 août 2004, relative au service public de l’électricité et du gaz et aux entreprises électriques et gazières (Law No 2004-803, of 9 August 2004, on the public electricity and gas service and on electricity and gas undertakings) (‘the Law of 9 August 2004’) provides:

‘I. – A tariff-based contribution on electricity transmission and distribution services is established for the benefit of the Caisse nationale des industries électriques et gazières [(National Fund for the Electricity and Gas Industries)] …

II. – That tariff-based contribution shall be payable:

1o For electricity:

…

III. – The tariff-based contribution shall be based:

1o For electricity:

…

IV. – The tariff-based contribution shall be payable, in respect of the contracts concluded by the persons referred to in paragraph II for the provision of the services referred to in paragraph I, by the person liable at the time of the receipt of part payments or the price, or, at the option of that person, at the time of the debit; in that case, it is payable in any event at the time of the receipt of part payments or the price, if this precedes the debit.

…

VII. – A Conseil d’État [(Council of State)] decree shall set out the methods of application of the present article.’

6

Article 1 of décret no 2005-123, du 14 février 2005, relatif à la contribution tarifaire sur les prestations de transport et de distribution d’électricité et de gaz naturel (Decree No 2005-123 of 14 February 2005 concerning the tariff-based contribution on electricity and natural gas transmission and distribution services) (‘the Decree of 14 February 2005’), in the version applicable until 31 July 2017, provided that:

‘I. The fixed component, excluding taxes, of the standing charge for use of the public electricity transmission and distribution networks, referred to in Article 18(III)(1) of the Law of 9 August 2004 …, is made up of the sum of the following:

7

Under Article 1 of the Decree of 14 February 2005, in the version applicable from 1 August 2017:

‘… the fixed component, excluding taxes, of the standing charge for use of the public electricity transmission and distribution networks is made up of the sum of the tariff components as defined by the decisions approving the applicable standing charges for use of the public electricity transmission and distribution networks, listed in points 1 to 4:

1° The annual administration component;

2° The annual metering component;

3° The fixed part of the annual withdrawal component. That fixed part is the sum of the items in the tariff formulas relating to that component, which depend on subscribed powers, excluding the monthly components for exceeding subscribed power;

4° The fixed part of the annual complementary and backup power supplies component. That fixed part consists of the annual complementary and backup power supplies component, excluding the energy component and the monthly components for exceeding subscribed power where the backup supply is at a different voltage range from that of the main supply.’

8

Under Article 2 of the Decree of 14 February 2005:

‘The electricity supplier which charges the tariff-based contribution in accordance with point (b) or (c) of paragraph II(1) of Article 18 of the Law of 9 August 2004 … shall calculate the fixed component, excluding taxes, of the charge relating to the use of the networks in the sale price or the electricity tariff in accordance with Article 1.’

9

Article L. 341-3 of the code de l’énergie (Energy Code) provides:

‘The methods used to establish the standing charges for the use of public electricity transmission and distribution networks shall be laid down by the Commission de régulation de l’énergie [(Energy Regulatory Commission)] …’

10

Accorinvest and Société générale are two companies incorporated under French law which have, as final electricity consumers, paid a tariff-based contribution on electricity transmission and distribution services (‘the tariff-based transmission contribution’).

11

In two separate proceedings, Accorinvest and Société générale brought actions before the tribunal administratif de Paris (Administrative Court, Paris, France) seeking an order that the French State pay them compensation corresponding to the amounts which they had paid in respect of the tariff-based transmission contribution for the years 2016 to 2018 and for the years 2017 and 2018 respectively. In support of their requests, those companies claimed that that contribution constituted an ‘other indirect [tax] on excise goods’, within the meaning of Article 1(2) of Directive 2008/118, and that it was not compatible with the tax rules laid down by that provision. By orders of 26 April 2021, the President of the first division of the tribunal administratif de Paris (Administrative Court, Paris) dismissed those requests as being brought before a court that had no jurisdiction to hear them.

12

Ruling on the appeals brought by Accorinvest and Société générale, the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris, France) set aside those orders and, ruling on the merits, dismissed their claims for compensation on the ground that there was no ‘direct and inseverable link’ between the tariff-based transmission contribution and the consumption of electricity, within the meaning of the case-law of the Court of Justice, with the result that that contribution did not fall within the scope of Article 1(2) of Directive 2008/118.

13

Accorinvest and Société générale each brought an appeal before the Conseil d’État (Council of State, France), which is the referring court.

14

The referring court observes that the tariff-based transmission contribution is based on the fixed component of the charges for use of the public electricity networks, which depends essentially on the voltage range and the power subscribed under the network connection contract, excluding the variable part of those charges, which alone depends on the quantity of electricity consumed.

15

The referring court notes, first, that the first ground of appeal relied on by Accorinvest and Société générale, alleging that the tariff-based transmission contribution is lawfully passed on to the final electricity consumer, raises the question whether the existence of a legal mechanism for passing on a tax to the final consumer of a product subject to excise duty implies in itself the existence of a direct and inseverable link between that tax and the consumption of that product, even where that tax is calculated independently of the quantity of the product actually consumed. It notes, second, that their second ground of appeal, alleging the existence of a direct and inseverable link between that contribution and the consumption of electricity, raises the question whether a tax based solely on the fixed component of the charges for use of the public electricity networks, but which is payable in respect of the network access contracts concluded by consumers or their suppliers, must be regarded as having such a link. The referring court considers that those questions, which concern the interpretation of Directive 2008/118, are decisive for the outcome of the dispute.

16

In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

17

By document lodged at the Registry of the General Court on 19 November 2025, following the delivery of the Advocate General’s Opinion, Accorinvest and Société générale requested that the oral part of the procedure be reopened.

18

In support of their application, Accorinvest and Société générale state, in essence, that the Advocate General’s Opinion contains arguments that were not the subject of argument between the interested parties. The Advocate General’s analysis is, according to those parties, based on a contextual approach in the light of the objectives of Directive 2008/118 in relation to formalities and monitoring which was neither discussed by the interested parties in their written pleadings nor addressed by questions at the hearing.

19

It should be recalled, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the General Court make no provision for the parties or the interested persons referred to in Article 23 of that statute to submit observations in response to the Advocate General’s Opinion. Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s submissions or by the reasoning which led to those submissions. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he or she examines in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (see judgment of 14 March 2024, f6 Cigarettenfabrik, C‑336/22, EU:C:2024:226, paragraph 25 and the case-law cited).

20

Admittedly, the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 222 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where an interested person has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.

21

However, in the present case, the Court has all the information needed to rule on the case and Accorinvest and Société générale have failed to demonstrate, in their application to have the oral part of the present case reopened, that the present case must be decided on the basis of an argument which has not been debated between the interested persons. Furthermore, that application does not contain any new facts of such a nature as to be a decisive factor for the decision that the Court is called upon to deliver in the present case. In those circumstances, the Court considers, after hearing the Advocate General, that there is no need to order that the oral part of the procedure be reopened.

22

By its first question, the referring court asks, in essence, whether Article 1(2) of Directive 2008/118 must be interpreted as meaning that a legal mechanism for passing a tax on to the final electricity consumer implies in itself the existence of a direct and inseverable link between that tax, which is calculated independently of the quantity of electricity actually consumed, and the consumption of electricity, with the result that that tax must be regarded as an ‘other indirect tax’ within the meaning of that provision.

23

In that regard, it should be borne in mind that Directive 2008/118 is intended, as is apparent from recital 2 thereof, to harmonise the conditions for charging excise duty on the goods falling within its scope, in order to ensure the proper functioning of the internal market.

24

Under Article 1(1), Directive 2008/118 lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the products listed in that provision, which include ‘energy products and electricity covered by Directive [2003/96]’.

25

Article 1(2) of Directive 2008/118, which seeks to take due account of the Member States’ different fiscal traditions in this regard and the frequent recourse to indirect taxation for the implementation of non-budgetary policies, allows Member States to introduce, in addition to minimum excise duty, other indirect taxes having a specific purpose (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 58).

26

As a provision derogating from the principle of harmonisation of the conditions for the levying of excise duty on products falling within its scope, Article 1(2) of Directive 2008/118 must be interpreted strictly (see judgment of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 39 and the case-law cited).

27

A tax which is not imposed, directly or indirectly, on the consumption of electricity or that of another product subject to excise duty does not fall within the scope of Directive 2008/118 (judgment of 20 September 2017, Elecdey Carcelen and Others, C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraphs 61 to 63). It follows from the case-law that for a tax to be classified as another indirect tax on electricity, there must be a direct and inseverable link between that tax and the consumption of electricity (see, to that effect, judgments of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraph 23, and of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 54).

28

In order to determine whether a tax may be regarded as having a direct and inseverable link with the consumption of electricity, the case-law takes into account various factors.

29

In the judgment of 4 June 2015, Kernkraftwerke Lippe-Ems (C‑5/14, EU:C:2015:354, paragraphs 62 to 65), the Court of Justice held that there was no direct and inseverable link between the use of nuclear fuel, which was the factor triggering the tax at issue in that case, and the consumption of electricity. The Court of Justice took two factors into consideration. First, it noted, on the one hand that the amount of electricity produced by a nuclear power station reactor was not directly commensurate with the amount of nuclear fuel used, but that it could vary according to the nature and properties of the fuel used and the yield level of the reactor concerned and, on the other hand, that the tax imposed could be levied on the basis that a self-sustaining chain reaction had been started, without any electricity having necessarily even been produced or consumed. Second, it observed that that tax was not levied on the consumer but on the electricity producer and that it could not be passed on in its entirety to the final electricity consumer.

30

In the judgment of 3 March 2021, Promociones Oliva Park (C‑220/19, EU:C:2021:163, paragraphs 50, 51, 54 and 58), the Court of Justice took into consideration, first, the chargeable event for the tax in question, namely the net production of electricity, second, the fact that it was not collected directly from electricity consumers, but from the economic operators which produced it and incorporated it into the system, and that there was no formal mechanism for passing on the tax and, third, the fact that that tax was calculated solely in relation to the status of electricity producer, on the basis of the taxpayers’ revenue which is partially fixed and thus irrespective of the quantity of electricity actually produced and incorporated into the electricity system. In those circumstances, the Court of Justice concluded that there was no direct and inextricable link between that tax and the consumption of electricity.

31

Lastly, in the judgment of 18 January 2017, IRCCS – Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraphs 30 to 38), the Court of Justice, in order to determine whether amounts payable by undertakings to cover the general electricity charges constituted indirect taxes, took into consideration four factors, namely, first, the obligation laid down by law to pay those amounts, second, the intended use of the requested amounts, which were to finance objectives in the general interest, third, the possibility of those amounts being in turn charged to final electricity consumers by including those amounts in the invoices addressed to them and, fourth, the fact that those amounts were linked to the electricity consumed.

32

It is apparent from the judgments cited in paragraphs 29 to 31 above, as noted by the Advocate General in point 54 of her Opinion, that the full passing on of a tax to the final consumer is not in itself sufficient to classify that tax as another indirect tax, but is just one factor among others to be taken into account for the purposes of that classification.

33

In the light of the foregoing, the answer to the first question is that Article 1(2) of Directive 2008/118 must be interpreted as meaning that the existence of a legal mechanism for passing on a tax to the final electricity consumer does not in itself imply that that tax, which is calculated independently of the quantity of electricity actually consumed, has a direct and inseverable link with the consumption of electricity and is to be regarded as an ‘other indirect tax’ within the meaning of that provision.

34

By its second question, the referring court asks whether a tax which is payable in respect of the network access contracts for the supply of electricity concluded by consumers or their suppliers and the calculation of which is not based on electricity consumption has a direct and inseverable link with electricity consumption, with the result that it must be regarded as an ‘other indirect tax’ within the meaning of Article 1(2) of Directive 2008/118.

35

It is apparent from paragraphs 29 to 31 above that the case-law sets out a number of factors to be taken into account when establishing the existence of a direct and inseverable link for the purposes of classifying a tax as an ‘other indirect tax’ within the meaning of Article 1(2) of Directive 2008/118, in particular the chargeable event for the tax, the method for calculating it and whether it has been passed on to the consumer.

36

In the present case, it is apparent from the information submitted by the referring court that, in the first place, the chargeable event for the tariff-based transmission contribution is the conclusion by electricity consumers or their suppliers of a contract for access to the electricity network. As the Advocate General points out in point 56 of her Opinion, that chargeable event occurs prior to any consumption of electricity.

37

In the second place, as regards the calculation of the tariff-based transmission contribution, it is apparent from the information available to the Court, and subject to verification of that information by the referring court, that that contribution is based, pursuant to Articles 1 and 2 of the Decree of 14 February 2005, on the annual administration component, the annual metering component, the fixed part of the annual withdrawal component and the fixed part of the annual complementary and backup power supplies component.

38

The referring court states that the components on which the tariff-based transmission contribution is based do not depend on the consumption of electricity. In particular, although the fixed part of the annual withdrawal component depends on the power subscribed by the consumer and the tariff options chosen, it is apparent from the information available to the Court that the consumer’s choice is made on the basis of an estimate of his or her future electricity consumption, which is not linked to his or her actual consumption. It emerged from the discussion at the hearing that, although it is possible for the consumer to change that choice, that change is only valid for the future and does not entail the repayment of the tariff-based transmission contribution which he or she paid in the past on the basis of a power subscription which did not correspond to his or her needs. Moreover, the total absence of electricity consumption during a given period does not relieve the consumer of the obligation to pay the tariff-based transmission contribution.

39

In the third place, as is apparent from paragraphs 29 to 33 above, although the tariff-based transmission contribution is passed on to the final electricity consumer, that element is not sufficient in itself to conclude that there is a direct and inseverable link between a tax and the consumption of electricity.

40

Consequently, and subject to verification, by the referring court, of the facts and rules of national law on which the considerations set out in paragraphs 36 to 39 above are based, it must be held that the tariff-based transmission contribution does not constitute an ‘other indirect tax’ which is imposed directly or indirectly on the consumption of electricity, within the meaning of Article 1(2) of Directive 2008/118.

41

In the light of all the foregoing considerations, the answer to the second question is that Article 1(2) of Directive 2008/118 must be interpreted as meaning that a tax payable in respect of the network access contracts for the supply of electricity concluded by consumers or their suppliers and the calculation of which is not based on the quantity of electricity actually consumed does not constitute an ‘other indirect tax’ within the meaning of that provision.

42

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 (Chamber giving preliminary rulings)

hereby rules: