Gabel Industria Tessile SpA and Canavesi SpA v A2A Energia SpA and Others.

• Jurisdiction: European Union
• Date: 11 April 2024
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

11 April 2024 (*)

(Reference for a preliminary ruling – Directive 2008/118/EC – Article 1(2) – Excise duties – Electricity – National legislation creating an additional tax on electricity excise duties – Lack of specific purposes – Additional tax deemed contrary to Directive 2008/118/EC by the national courts – Recovery by the final consumer of the tax unduly paid from the supplier alone – Article 288 TFEU – Direct effect – Principle of effectiveness)

In Case C‑316/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale di Como (District Court, Como, Italy), made by decision of 28 April 2022, received at the Court on 11 May 2022, in the proceedings

Gabel Industria Tessile SpA,

Canavesi SpA

v

A2A Energia SpA,

Energit SpA,

Agenzia delle Dogane e dei Monopoli,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, Z. Csehi, M. Ilešič (Rapporteur), I. Jarukaitis and D. Gratsias, Judges,

Advocate General: N. Emiliou,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 13 September 2023,

after considering the observations submitted on behalf of:

– the Spanish Government, by A. Ballesteros Panizo and J. Rodríguez de la Rúa Puig, acting as Agents,

– the European Commission, by A. Armenia and F. Moro, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 November 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of the third paragraph of Article 288 TFEU and the principle of effectiveness.

2 The request has been made in the context of two sets of proceedings, which were joined in the main proceedings, between (i) Gabel Industria Tessile SpA and A2A Energia SpA and (ii) Canavesi SpA, of the one part, and Energit SpA and the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Agency, Italy), of the other part, concerning claims for the reimbursement of sums paid by Gabel Industria Tessile and Canavesi, in 2010 and 2011, to A2A Energia and Energit, in respect of an additional tax on electricity excise duties provided for by the Italian legislation.

Legal context

European Union law

3 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) 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). However, Directive 2008/118 remains applicable ratione temporis to the facts of the main proceedings.

4 Article 1 of that directive 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”):

(a) energy products and electricity covered by [Council] Directive 2003/96/EC [of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)];

…

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.

…’

5 The second paragraph of Article 9 of Directive 2008/118 provided:

‘Excise duty shall be levied and collected and, where appropriate, reimbursed or remitted according to the procedure laid down by each Member State. …’

6 Article 48(1) of that directive was worded as follows:

‘Member States shall adopt and publish, not later than 1 January 2010, the laws, regulations and administrative provisions necessary to comply with this Directive with effect from 1 April 2010. …’

Italian law

Legislative Decree No 511/1988

7 In the version applicable to the facts of the main proceedings and, in any event until 31 March 2012, Article 6 of decreto-legge n. 511 – Disposizioni urgenti in materia di finanza regionale e locale (Decree-Law No 511 on urgent provisions on regional and local finances) of 28 November 1988 (GURI No 280 of 29 November 1988), as amended by Article 5 of decreto legislativo n. 26 – Attuazione della direttiva 2003/96/CE che ristruttura il quadro comunitario per la tassazione dei prodotti energetici e dell’elettricita (Legislative Decree No 26 implementing Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity) of 2 February 2007 (ordinary supplement to GURI No 68 of 22 March 2007) (‘Legislative Decree No 511/1988’), was worded as follows:

‘1. An additional tax on electricity excise duties referred to in Article 52 et seq. of the Consolidated Text of the Legislative Provisions concerning Taxes on Production and Consumption and Criminal and Administrative Penalties in the matter, approved by [decreto legislativo 26 ottobre 1995, n. 504 (Legislative Decree No 504 of 26 October 1995)], (“the Consolidated Text on Excise Duties”), is introduced in the amount of:

(a) 18.59 [euros] per 1 000 kWh, in favour of municipalities, for any use made in dwellings, excluding second homes and electricity supplies with an available power of up to 3 kW at the user’s registered home, up to a limit of the first 150 kWh of monthly consumption. For consumption exceeding the limit of 150 kWh for contracts of up to 1.5 kW, and exceeding the limit of 220 kWh for contracts of more than 1.5 kW and up to 3 kW, the corresponding additional tax shall be recovered in accordance with the criteria laid down in Chapter I, point 2, of Decision No 15 of 14 December 1993 of the Joint Ministerial Committee for Prices;

(b) 20.40 [euros] per 1 000 kWh, in favour of local authorities, for any use in second homes;

(c) 9.30 [euros] per 1 000 kWh, in favour of the provinces, for any use in premises and places other than dwellings, for all contracts, up to a maximum monthly consumption of 200 000 kWh.

…

3. The additional taxes referred to in paragraph 1 shall be payable by the taxable persons referred to in Article 53 of the Consolidated Text on Excise Duties when the electricity is supplied to final consumers or, in the case of electricity produced or purchased for their own use, when it is consumed. Additional taxes shall be levied and collected in the same way as excise duty on electricity.

4. The additional taxes referred to in paragraph 1 relating to the supply of electricity with an available power not exceeding 200 kW shall be paid directly to the municipalities and provinces in whose territory the users are located. The additional taxes for the supply of electricity with an available power of more than 200 kW and those for the consumption of electricity produced or purchased for own use shall be paid to the Treasury, with the exception of those levied in the Aosta Valley region [Italy] and the autonomous provinces of Trentino [Italy] and Bolzano [Italy], which shall be paid directly to the municipalities and provinces themselves.

…’

Legislative Decree No 504/1995

8 Article 14 of Decreto Legislativo No 504 – Testo unico delle disposizioni legislative concernenti le imposte...