Opinion of Advocate General Rantos delivered on 25 January 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:89
• Date: 25 January 2024
• Celex Number: 62022CC0743
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 25 January 2024 (1)

Case C‑743/22

DISA SUMINISTROS Y TRADING, S.L.U. (DISA)

v

Agencia Estatal de la Administración Tributaria

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain))

(Reference for a preliminary ruling – Taxation of energy products and electricity – Directive 2003/96/EC – Article 5 – Excise duty on mineral oils – Regional rate of excise duties on mineral oils on top of the national rate – Differentiated rates of excise duties in the territory of a Member State according to the region in which the product is consumed)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Article 5 of Directive 2003/96/EC. (2)

2. The request has been made in proceedings between DISA Suministros y Trading, S.L.U. (‘DISA’ or ‘the appellant’) and the Agencia Estatal de la Administración Tributaria (State Tax Administration Agency, Spain) further to claims by the appellant for the reimbursement of taxes paid in respect of the additional rate of taxation applied by an autonomous community on the excise duty on mineral oils (impuesto especial sobre hidrocarburos; ‘the IEH’).

3. This case gives the Court the opportunity to clarify whether, irrespective of compliance with the minimum levels of taxation required by Directive 2003/96, that directive requires that a uniform level of taxation applies throughout the territory of a Member State, or whether the directive affords the Member States some leeway to provide for different rates of excise duty for the same product and the same use, depending on the part of the national territory in which that product is intended to be consumed.

II. Legal context

A. European Union law

1. Directive 2003/96

4. Recitals 2 to 5, 9, 10, 15 and 24 of Directive 2003/96 state:

‘(2) The absence of Community provisions imposing a minimum rate of taxation on electricity and energy products other than mineral oils may adversely affect the proper functioning of the internal market.

(3) The proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum levels of taxation to be laid down at Community level for most energy products, including electricity, natural gas and coal.

(4) Appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to the proper functioning of the internal market.

(5) The establishment of appropriate Community minimum levels of taxation may enable existing differences in the national levels of taxation to be reduced.

…

(9) Member States should be given the flexibility necessary to define and implement policies appropriate to their national circumstances.

(10) Member States wish to introduce or retain different types of taxation on energy products and electricity. To that end, Member States should be permitted to comply with the Community minimum taxation levels by taking into account the total charge levied in respect of all indirect taxes which they have chosen to apply (excluding VAT).

…

(15) The possibility of applying differentiated national rates of taxation to the same product should be allowed in certain circumstances or permanent conditions, provided that Community minimum levels of taxation and internal market and competition rules are respected.

…

(24) Member States should be permitted to apply certain other exemptions or reduced levels of taxation, where that will not be detrimental to the proper functioning of the internal market and will not result in distortions of competition.’

5. Article 1 of that directive provides:

‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’

6. Article 2(1)(b) of the directive reads as follows:

‘1. For the purposes of this Directive, the term “energy products” shall apply to products:

…

(b) falling within CN codes 2701, 2702 and 2704 to 2715’.

7. Article 3 of that directive provides:

‘References in Directive 92/12/EEC to “mineral oils” and “excise duty”, in so far as it applies to mineral oils, shall be interpreted as covering all energy products, electricity and national indirect taxes referred to respectively in Articles 2 and 4(2) of this Directive.’

8. Article 4 of Directive 2003/96 provides:

‘1. The levels of taxation which Member States shall apply to the energy products and electricity listed in Article 2 may not be less than the minimum levels of taxation prescribed by this Directive.

2. For the purpose of this Directive “level of taxation” is the total charge levied in respect of all indirect taxes (except VAT) calculated directly or indirectly on the quantity of energy products and electricity at the time of release for consumption.’

9. Article 5 of that directive states:

‘Provided that they respect the minimum levels of taxation prescribed by this Directive and that they are compatible with Community law, differentiated rates of taxation may be applied by Member States, under fiscal control, in the following cases:

– when the differentiated rates are directly linked to product quality;

– when the differentiated rates depend on quantitative consumption levels for electricity and energy products used for heating purposes;

– for the following uses: local public passenger transport (including taxis), waste collection, armed forces and public administration, disabled people, ambulances;

– between business and non-business use, for energy products and electricity referred to in Articles 9 and 10.’

10. Article 6 of the directive provides:

‘Member States shall be free to give effect to the exemptions or reductions in the level of taxation prescribed by this Directive either:

(a) directly;

(b) by means of a differentiated rate,

or

(c) by refunding all or part of the amount of taxation.’

11. Article 19(1) and (3) of that directive provides:

‘1. In addition to the provisions set out in the previous Articles, in particular in Articles 5, 15 and 17, the Council, acting unanimously on a proposal from the Commission, may authorise any Member State to introduce further exemptions or reductions for specific policy considerations.

A Member State wishing to introduce such a measure shall inform the Commission accordingly and shall also provide the Commission with all relevant and necessary information.

The Commission shall examine the request, taking into account, inter alia, the proper functioning of the internal market, the need to ensure fair competition and Community health, environment, energy and transport policies.

…

3. If the Commission considers that the exemptions or reductions provided for in paragraph 1 are no longer sustainable, particularly in terms of fair competition or distortion of the operation of the internal market, or in terms of Community policy in the areas of health, protection of the environment, energy and transport, it shall submit appropriate proposals to the Council. The Council shall take a unanimous decision on these proposals.’

2. Directive 2008/118/EC

12. Article 1(1) and (2) of Directive 2008/118/EC (3) reads as follows:

‘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 [Directive 2003/96];

…

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.’

B. Spanish law

13. Article 50ter of Ley 38/1992 de Impuestos Especiales (Law 38/1992 on excise duties), of 28 December 1992 (‘the Law on excise duties’), entitled ‘Autonomous community rate of taxation’, provides, in the version applicable to the dispute in the main proceedings:

‘1. The autonomous communities may establish a regional rate of excise duty on mineral oils, in order to levy additional tax on the goods to which the rates of taxation referred to in paragraphs … apply, and which are consumed in their respective territories. The regional rate shall be applied in accordance with this Law and within the limits and subject to the conditions laid down in the rules governing the financing of the autonomous communities.

2. The applicable regional rate of taxation shall be that corresponding to the autonomous community in whose territory the final consumption of the taxable goods takes place. For the purposes of this article, goods shall be understood to be consumed in the territory of an autonomous community where they are received in one of the following locations:

…’

14. Article 50ter of the Law on excise duties was in force during the 2013 to 2018 financial years. It was repealed with effect from 1 January 2019 by Ley 6/2018 de Presupuestos Generales del Estado para 2018 (Law 6/2018 on the general State budget for 2018) of 3 July 2018, the explanatory memorandum to which states inter alia:

‘In relation to excise duties, the regional rate of the duty on mineral oils is included in the special State rate in order to ensure a unified market in the field of fuels and propellants, without that measure adversely affecting the resources of the autonomous communities and within the Community legal framework.’

III. The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

15. The entities CLH, TEPSA and SECICAR, which are logistics operators subject to the IEH, filed self-assessments for the periods from 2013 to 2015 inclusive and passed on the amount of the IEH to DISA. The latter operates in the field of the purchase, sale, importation and wholesale marketing of petroleum products.

16....