Promociones Oliva Park SL v Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
ECLIECLI:EU:C:2021:163
Docket NumberC-220/19
Date03 March 2021
Celex Number62019CJ0220

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

3 March 2021 (*)

(Reference for a preliminary ruling – Directive 2008/118/EC – General arrangements for excise duty – Article 1(2) – Other indirect taxes on excise goods – Directive 2009/28/EC – Promotion of the use of energy from renewable sources – Article 1 and Article 3(1), (2) and (3)(a), the latter paragraph read in conjunction with Article 2(k) – Directive 2009/72/EC – Common rules for the internal market in electricity – Tax on the value of electricity production – Nature and structure of the tax – Electricity from renewable sources and electricity from non-renewable sources taxed in the same way)

In Case C‑220/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia, Spain), made by decision of 22 February 2019, received at the Court on 11 March 2019, in the proceedings

Promociones Oliva Park SL

v

Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana,

THE COURT (Tenth Chamber),

composed of M. Ilešič, President of the Chamber, C. Lycourgos and I. Jarukaitis (Rapporteur), Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Promociones Oliva Park SL, by J. Terrón Díaz and S. J. Llopis Nadal, abogados,

– the Spanish Government, initially by A. Rubio González, and subsequently by S. Centeno Huerta, acting as Agents,

– the European Commission, by A. Armenia, O. Beynet and P. Arenas, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

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), Article 1, Article 2(k) and Article 3(1), (2) and (3)(a) 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), and Articles 32 to 34 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).

2 The request has been made in proceedings between Promociones Oliva Park SL (‘Oliva Park’) and the Tribunal Económico Administrativo Regional de la Comunidad Valenciana (Regional Tax Tribunal of the Community of Valencia, Spain) (‘TEAR’), concerning the rejection of a request for rectification of the self-assessments of the tax on the value of electricity production (‘IVPEE’) for the years 2013 to 2016.

Legal context

European Union law

Directive 2008/118

3 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 [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 [EU] 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

4 Under Article 1 of Directive 2009/28, entitled ‘Subject matter and scope’:

‘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. …’

5 Subparagraph (k) of the second subparagraph of Article 2, entitled ‘Definitions’, defines the concept of ‘support scheme’ as meaning ‘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’.

6 Article 3 of that directive, headed ‘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. …

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;

…’

Directive 2009/72

7 Article 1 of Directive 2009/72, entitled ‘Subject matter and scope’, provides:

‘This Directive establishes common rules for the generation, transmission, distribution and supply of electricity, together with consumer protection provisions, with a view to improving and integrating competitive electricity markets in the [European Union]. It lays down the rules relating to the organisation and functioning of the electricity sector, open access to the market, the criteria and procedures applicable to calls for tenders and the granting of authorisations and the operation of systems. …’

8 Articles 32 to 34 of Directive 2009/72, which are in Chapter VIII thereof, entitled ‘Organisation of access to the system’, govern the arrangements for such access.

9 Article 32 of that directive, entitled ‘Third-party access’, provides, in paragraph 1 thereof, that Member States are to ensure the implementation of a system of third-party access to the electricity transmission and distribution systems, which must be applied objectively and without discrimination between system users.

10 Article 33 of that directive, entitled ‘Market opening and reciprocity’, concerns the opening of the electricity market and reciprocity, and Article 34 of that directive, entitled ‘Direct lines’, concerns measures ensuring access to direct lines to all electricity producers, electricity suppliers and eligible customers within the territory of a Member State concerned.

Spanish law

11 The preamble to Ley 15/2012 de medidas fiscales para la sostenibilidad energética (Law 15/2012 on fiscal measures for sustainable energy) of 27 December 2012 (BOE No 312 of 28 December 2012, p. 88081), states:

‘1. The objective of this law is to adapt our tax system to more efficient and environmentally friendly use and sustainable development …

This law is based principally on Article 45 of the Constitution … Thus, one of the axes of this tax reform is to internalise the environmental costs resulting from electricity production … This law must serve as a stimulus to improve our levels of energy efficiency while at the same time ensuring better management of natural resources and continuing to enhance the new model of sustainable development, both from an economic and social point of view, as well as from an environmental point of view.

To that end, this law introduces three new taxes: the [IVPEE] …

II. To that effect and also with the aim of encouraging a balanced budget, Title I of this law introduces a direct and substantive tax on the value of electricity production, which is levied on the activities of production and incorporation of electricity into the Spanish electricity system.

That tax is levied on the economic capacity of electricity producers whose installations, first, account for significant investments in the electricity transmission and distribution networks in order to be able to switch the energy which they supply to those networks and, secondly, give rise themselves or because of the very existence and development of those systems, to undeniable effects on the environment, while generating significant costs which are necessary in order to maintain the guarantee of supply. The tax applies to the production of all electricity generating installations.’

12 Article 1 of that law provides:

‘The [IVPEE] is a direct and substantive charge levied on the production and incorporation of electricity (net energy production) into the electricity system through each of the installations referred to in Article 4 of this law.’

13 Article 2 of that law, concerning the territorial scope of the IVPEE, provides that that tax is to apply throughout Spanish territory.

14 Article 4(1) and (2) of Law 15/2012 defines the chargeable event for the IVPEE as follows:

‘1. Production and incorporation into the electricity system, including the peninsular electricity system and that of the island and non-peninsular territories, of electricity (net energy production) in any of the installations referred to in Title IV of Ley 54/1997 del Sector Eléctrico [(Law 54/1997 on the electricity sector) of 27 November 1997 (BOE No 285 of 28...

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1 practice notes
  • XY v Finanzamt V.
    • European Union
    • Court of Justice (European Union)
    • 21 December 2021
    ...2006, van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, punto 36 e giurisprudenza ivi citata, del 3 marzo 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, punto 73 e giurisprudenza ivi citata, nonché del 29 aprile 2021, Veronsaajien oikeudenvalvontayksikkö (Redditi versati dagli OI......
1 cases
  • XY v Finanzamt V.
    • European Union
    • Court of Justice (European Union)
    • 21 December 2021
    ...2006, van Hilten-van der Heijden, C‑513/03, EU:C:2006:131, punto 36 e giurisprudenza ivi citata, del 3 marzo 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, punto 73 e giurisprudenza ivi citata, nonché del 29 aprile 2021, Veronsaajien oikeudenvalvontayksikkö (Redditi versati dagli OI......

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