Elecdey Carcelen SA and Others v Comunidad Autónoma de Castilla-La Mancha.

• Jurisdiction: European Union
• Celex Number: 62016CJ0215
• ECLI: ECLI:EU:C:2017:705
• Docket Number: C-215/16,,C-220/16,C-221/16,C-216/16,
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 20 September 2017

JUDGMENT OF THE COURT (First Chamber)

20 September 2017 ( *1 )

(References for a preliminary ruling — Environment — Electricity generated by wind power — Directive 2009/28/EC — Promotion of the use of energy from renewable sources — Subparagraph (k) of the second subparagraph of Article 2 — Aid scheme — Subparagraph (e) of the second subparagraph of Article 13(1) — Administrative charges — Directive 2008/118/EC — General arrangements for excise duty — Article 1(2) — Other indirect taxes for specific purposes — Directive 2003/96/EC — Taxation of energy products and electricity — Article 4 — Minimum rate of taxation on energy — Levy imposed on turbines designed to produce electricity)

In Joined Cases C‑215/16, C‑216/16, C‑220/16 and C‑221/16,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain), made by decisions of 12 April 2016 (C‑215/16 and C‑216/16), of 8 April 2016 (C‑220/16) and of 11 April 2016 (C‑221/16), received at the Court on 18 April 2016 (C‑215/16 and C‑216/16) and on 20 April 2016 (C‑220/16 and C‑221/16), in the proceedings

Elecdey Carcelen SA (C‑215/16),

Energías Eólicas de Cuenca SA (C‑216/16),

Iberenova Promociones SAU (C‑220/16),

Iberdrola Renovables Castilla La Mancha SA (C‑221/16)

v

Comunidad Autónoma de Castilla-La Mancha,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, E. Regan (Rapporteur), J.-C. Bonichot, C.G. Fernlund and S. Rodin, Judges,

Advocate General: J. Kokott,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 29 March 2017,

after considering the observations submitted on behalf of:

– Elecdey Carcelen SA, by R. Fiestas Hummler, abogado,

– Energías Eólicas de Cuenca SA, by J. Ruiz Calzado, L.M. Cazorla Prieto and J. Domínguez Pérez, abogados,

– Iberenova Promociones SAU and Iberdrola Renovables Castilla La Mancha SA, by J.M. Rodríguez Cárcamo and C. Jiménez Jiménez, abogados,

– the Comunidad Autónoma de Castilla-La Mancha, by A. Quereda Tapia, acting as Agent,

– the Spanish Government, by V. Ester Casas, acting as Agent,

– the European Commission, by K. Talabér-Ritz and F. Tomat and by P. Arenas Naon, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 1 June 2017,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Article 4 of 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), 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), of subparagraph (k) of the second subparagraph of Article 2 and subparagraph (e) of the second subparagraph of Article 13(1) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

2 The requests have been made in proceedings between, on the one hand, Elecdey Carcelen SA, Energías Eólicas de Cuenca SA, Iberenova Promociones SAU and Iberdrola Renovables Castilla La Mancha SA, and, on the other, the Comunidad Autónoma de Castilla-La Mancha (Autonomous Community of Castilla-La-Mancha, Spain) concerning a levy imposed on wind power plants designed to produce electricity.

Legal context

EU law

Directive 2003/96

3 Article 1 of Directive 2003/96 provides: ‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’

4 Article 2(1) of that directive lists the products covered by the concept of ‘energy products’ within the meaning of that directive.

5 Article 2(2) of that directive states that it also applies to electricity falling within CN code 2716.

6 Under Article 4 of Directive 2003/96: ‘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 [value added tax] VAT) calculated directly or indirectly on the quantity of energy products and electricity at the time of release for consumption.’

Directive 2008/118

7 Article 1 of Directive 2008/118 provides: ‘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. …’

Directive 2009/28

8 Article 1 of Directive 2009/28, entitled ‘Subject matter and scope’, provides: ‘This Directive establishes a common framework for the promotion of energy from renewable sources. It sets mandatory national targets for the overall share of energy from renewable sources in gross final consumption of energy and for the share of energy from renewable sources in transport.’

9 Headed, ‘Definitions’, subparagraph (k) of the second subparagraph of Article 2 states: ‘… (k) “support scheme” means any instrument, scheme or mechanism applied by a Member State or a group of Member States, that promotes the use of energy from renewable sources by reducing the cost of that energy, increasing the price at which it can be sold, or increasing, by means of a renewable energy obligation or otherwise, the volume of such energy purchased. This includes, but is not restricted to, investment aid, tax exemptions or reductions, tax refunds, renewable energy obligation support schemes including those using green certificates, and direct price support schemes including feed-in tariffs and premium payments’.

10 Article 3 of Directive 2009/28, entitled ‘Mandatory national overall targets and measures for the use of energy from renewable sources’, provides: ‘1. Each Member State shall ensure that the share of energy from renewable sources, calculated in accordance with Articles 5 to 11, in gross final consumption of energy in 2020 is at least its national overall target for the share of energy from renewable sources in that year, as set out in the third column of the table in part A of Annex I. Such mandatory national overall targets are consistent with a target of at least a 20% share of energy from renewable sources in the Community’s gross final consumption of energy in 2020. In order to achieve the targets laid down in this Article more easily, each Member State shall promote and encourage energy efficiency and energy saving. … 2. Member States shall introduce measures effectively designed to ensure that the share of energy from renewable sources equals or exceeds that shown in the indicative trajectory set out in part B of Annex I. 3. In order to reach the targets set in paragraphs 1 and 2 of this Article Member States may, inter alia, apply the following measures: (a) support schemes; …’

11 Under the heading ‘Administrative procedures, regulations and codes’, Article 13 of that directive provides: ‘1. Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary. Member States shall, in particular, take the appropriate steps to ensure that: … (e) administrative charges paid by consumers, planners, architects, builders and equipment and system installers and suppliers are transparent and cost-related; … …’

12 Annex I to Directive 2009/28, entitled ‘National overall targets for the share of energy from renewable sources in gross final consumption of energy in 2020’, sets out, in part A, the national overall targets, including that of the Kingdom of Spain, which is set at 20% for that year. Part B of that annex relates to the indicative trajectory referred to in Article 3(2) of that directive.

Spanish law

13 Article 4 of ley 9/2011, por la que se crean el canon eólico y el fondo para el desarrollo tecnológico de las energías renovables y el uso racional de la energía en Castilla-La Mancha (Law 9/2011, creating the levy on wind power and the Fund for the technological development of renewable energy and rational use of energy in Castilla-La Mancha), of 21 March 2011 (BOE No 105 of 3 May 2011), provides: ‘1. The chargeable event for the purposes of the levy on wind power is constituted by the generation of harmful conditions and effects on the environment and on the territory, as a consequence of the installation on wind farms of turbines used for producing electricity. … ...