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

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2017:422
• Docket Number: C-215/16,,C-216/16,,C-221/16,C-220/16
• Celex Number: 62016CC0215
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 01 June 2017

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 1 June 2017 ( 1 )

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

Elecdey Carcelén 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

(Request for a preliminary ruling

from the Tribunal Superior de Justicia de Castilla-La Mancha (High Court of Justice of Castilla-La Mancha, Spain))

(Reference for a preliminary ruling — Environment — Wind power — Directive 2009/28/EC — Promotion of the use of energy from renewable sources — Directive 2008/118/EC — General arrangements for excise duty — Directive 2003/96/EC — Taxation of energy products and electricity — Regional levy on wind power plants (‘canon eólico’))

I. Introduction

1. Don Quixote has already fought windmills in the Spanish region of La Mancha. So it is no surprise that a new dispute over wind power has been brought before the Court from the Autonomous Community of Castilla-La Mancha. After a number of recent decisions have had to be taken regarding its negative environmental impact, ( 2 ) but also regarding its promotion, ( 3 ) the present case concerns the levy on wind power plants devised by that region, a ‘pole tax’ as it were.

2. In addition to Directive 2009/28/EC ( 4 ) on the promotion of energy from renewable sources, the request for a preliminary ruling also relates to Directive 2008/118/EC ( 5 ) concerning the general arrangements for excise duty and Directive 2003/96/EC ( 6 ) on energy taxation. In particular, it must be examined whether the contested tax is compatible with the promotion objective of Directive 2009/28 or the provisions concerning administrative charges laid down in that directive. However, the Court should also consider the extent to which such a tax might be precluded by prejudice to the objectives of Directive 2009/28. With regard to the two taxation directives, it must be clarified, first and foremost, whether the tax falls within their scope, as in that case it would have to satisfy certain requirements.

II. Legislative framework

A. EU law

1. Directive 2009/28

3. Directive 2009/28 concerns the promotion of energy from renewable sources.

4. Article 2(k) of Directive 2009/28 defines ‘support scheme’ as follows: ‘… 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’.

5. Article 3(1) and (2) of Directive 2009/28 requires Member States to cover certain minimum shares of their energy consumption from renewable energy sources: ‘1. Each Member State shall ensure that the share of energy from renewable sources … in final consumption of energy in 2020 is at least their 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.’

6. In this connection, Article 3(3) of Directive 2009/28 concerns, among other things, support schemes: ‘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; (b) …’

7. Approval procedures are addressed in recital 40 of Directive 2009/28: ‘The procedure used by the administration responsible for supervising the authorisation, certification and licensing of renewable energy plants should be objective, transparent, non-discriminatory and proportionate when applying the rules to specific projects. …’

8. The corresponding rules are laid down in Article 13 of Directive 2009/28: ‘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; …’

2. Directive 2008/118

9. Directive 2008/118 concerns the general arrangements for excise duty. Article 1(1) governs the scope and Article 1(2) the lawfulness of other excise duty: ‘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/EC; (b) alcohol and alcoholic beverages covered by Directives 92/83/EEC and 92/84/EEC; (c) manufactured tobacco covered by Directives 95/59/EC, 92/79/EEC and 92/80/EEC. 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.’

3. Directive 2003/96

10. Directive 2003/96 concerns the taxation of energy.

11. As is made clear by Article 4 of Directive 2003/96 in particular, it requires, in principle, a minimum rate of taxation on energy: ‘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.’

12. The national court also refers to Article 15 of Directive 2003/96, which permits certain exemptions: ‘Without prejudice to other Community provisions, Member States may apply under fiscal control total or partial exemptions or reductions in the level of taxation to: (a) … (b) electricity: – of solar, wind, wave, tidal or geothermal origin; – …’

B. Spanish law

13. By Ley 9/2011, de 21 de marzo, por la que se crea el canon eólico (Law 9/2011 of 21 March 2011 creating the levy on wind power, ‘Law 9/2011’), the Autonomous Community of Castilla-La Mancha introduced a levy on wind power.

14. Article 4 of Law 9/2011 governs the chargeable event: ‘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 … . … 3. The chargeable event will be deemed to have occurred even if the wind turbines are not owned by the holder of the administrative permit to install a wind farm.’

15. The tax base is determined on the basis of Article 7 of Law 9/2011: ‘1. The tax base is constituted by the total number of wind turbine units on a wind farm … .’

16. Article 8 governs the tax rate: ‘1. The tax liability is determined by applying the following quarterly tax rates to the tax base: On wind farms with up to 2 wind turbines: EUR 0 for each wind turbine unit. On wind farms with 3 to 7 wind turbines: EUR 489 for each wind turbine unit. On wind farms with 8 to 15 wind turbines: EUR 871 for each wind turbine unit. On wind farms with more than 15 wind turbines: (a) where the number of wind turbines is equal to or lower than the installed power of the farm measured in megawatts: EUR 1233 for each wind turbine unit; (b) where the number of wind turbines is greater than the installed power of the farm measured in megawatts: EUR 1275 for each wind turbine unit. …’

III. Facts and request for a preliminary ruling

17. Elecdey Carcelén SA (Case C‑215/16), Energías Eólicas de Cuenca SA (Case C‑216/16), Iberenova Promociones SAU (Case C‑220/16) and Iberdrola Renovables Castilla La Mancha SA (Case C‑221/16) operate wind power plants in the Autonomous Community of Castilla-La Mancha which are subject to the regional levy on wind power. The undertakings have submitted applications to the competent authority for rectification of their self-assessments made in respect of the levy on wind power in the financial year 2011 and for refund of the amounts paid.

18. They brought proceedings against the rejection of those applications before the Tribunal Superior de Justicia...