Case C‑103/17

Messer France SAS

v

Premier ministre and Others

(Request for a preliminary ruling from the Conseil d’État (France))

(Reference for a preliminary ruling — Harmonisation of fiscal legislation — Directive 92/12/EEC — Article 3(2) — Directive 2003/96/EC — Articles 3 and 18 — Taxation of energy products and electricity — Excise duties — Existence of another indirect tax — Conditions — National legislation providing for a contribution to the public electricity service — Definition of ‘specific purposes’ — Compliance with a minimum level of taxation)

Summary — Judgment of the Court (First Chamber), 25 July 2018

1. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity — Directive 2003/96 — Extension of the scope of Directive 92/12 to electricity — Transposition period — Transitional period to enable the French Republic to adapt its electricity taxation system to the directive — Obligations of the French Republic during that period — Scope

   (Council Directive 2003/96, Arts 3, 18(10), second para., and 28(1) and (2))

2. Tax provisions — Harmonisation of laws — Excise duties — Directive 92/12 — Electricity — Indirect taxes other than excise duty — Lawfulness — Conditions — Indirect tax that must pursue specific purposes and comply with the tax rules applicable for excise duty or VAT purposes as regards determination of the tax base, calculation of the tax, chargeability and monitoring of the tax — Not conditional on the imposition of a harmonised excise duty

   (Council Directives 92/12, Art. 3(2) and 2003/96)

3. Tax provisions — Harmonisation of laws — Excise duties — Directive 92/12 — Electricity — Indirect taxes other than excise duty — Meaning — Contribution to the public electricity service — Included as regards its environmental objective intended to finance additional costs resulting from the obligation to purchase green energy — Excluded as regards its objectives of territorial and social cohesion and its purely administrative objectives — Right to partial reimbursement of the tax — Condition — Tax which has not been directly passed on to customers — Verification a matter for the national court

   (Council Directive 92/12, Art. 3(2))

1.  The second subparagraph of Article 18(10) 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, until 1 January 2009, compliance with the minimum rates of taxation laid down in that directive was, in the context of rules on the taxation of electricity laid down by EU law, the only obligation incumbent on the French Republic.

   It should be recalled that Article 3 of Directive 2003/96 extended the scope of application of Directive 92/12 to electricity. According to Article 28(1) and (2) of Directive 2003/96, the period for transposition of the directive ended on 31 December 2003 and the directive came into force on 1 January 2004.

   Nevertheless, the second subparagraph of Article 18(10) of Directive 2003/96 provided for a transitional period until 1 January 2009 to enable the French Republic to adapt its electricity taxation system to the directive. That provision provided that, during that period, that Member State was required to take into account ‘the global average level of the current local electricity taxation’ to assess whether the minimum rates set out in that directive were respected. By 1 January 2009, the French Republic should therefore have adapted its electricity taxation system to comply with the provisions of Directive 2003/96.

   (see paras 21-23, operative part 1)

2.  Article 3(2) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products must be interpreted as meaning that levying another indirect tax on electricity is not conditional on the imposition of a harmonised excise duty and that, since a tax such as that at issue in the main proceedings does not constitute such an excise duty, its compatibility with Directives 92/12 and 2003/96 must be assessed in the light of the conditions laid down in Article 3(2) of Directive 92/12 for determining the existence of other indirect taxes for specific purposes.

   (see para. 33, operative part 2)

3.  Article 3(2) of Directive 92/12 must be interpreted as meaning that a tax such as that at issue in the main proceedings may be classified as ‘another indirect tax’ as regards its environmental objective, which is intended to finance additional costs resulting from the obligation to purchase green energy, but not as regards its objectives of territorial and social cohesion, such as the geographical price-balancing mechanism and the reduction in the price of electricity for low-income households, or as regards its purely administrative objectives, including the financing of costs inherent in the administrative operations of public authorities or institutions such as the médiateur national de l’énergie and the Caisse des dépôts et consignations, subject to verification by the referring court of compliance with the tax rules applicable for excise duty purposes.

   In that regard, it should be noted that Article 3(2) of Directive 92/12 allows Member States to introduce or maintain indirect taxes other than the excise duty instituted by that directive provided that, first, the tax pursues a specific purpose and, second, it complies with the tax rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned (see, to that effect, judgment of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 21).

   In that regard, it should be noted that that provision does not require Member States to comply with all rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, and chargeability and monitoring of the tax are concerned. It is sufficient that the indirect taxes pursuing specific objectives should, on those points, accord with the general scheme of one or other of those taxation techniques as structured by EU legislation (judgment of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 27).

   As regards the first of those conditions, it is apparent from the case-law of the Court that a specific purpose within the meaning of Article 3(2) of Directive 92/12 is a purpose other than a purely budgetary purpose (judgments of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 19; of 9 March 2000, EKW and Wein & Co, C‑437/97, EU:C:2000:110, paragraph 31; and of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 23).

   EU law must be interpreted as meaning that the taxable persons concerned are entitled to partial reimbursement of a tax such as that at issue in the main proceedings in the proportion in which revenue raised from that tax was allocated to non-specific objectives, provided that that tax was not directly passed on by the taxable persons to their own customers, which is a matter to be determined by the referring court.

   (see paras 35, 37, 48, 54, 60, operative part 3 and 4)