SC Bitulpetrolium Serv SRL v Administraţia Judeţeană a Finanţelor Publice Prahova – Direcţia Generală Regională a Finanţelor Publice Ploieşti.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:353
• Date: 25 April 2024
• Docket Number: C-657/22
• Celex Number: 62022CJ0657
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

25 April 2024 (*)

(Reference for a preliminary ruling – Taxation of energy products and electricity – Directive 2003/96/EC – Taxation in accordance with the principle of actual use of those products – Annex I – Minimum levels of taxation applicable to energy products provided for by that directive – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(a) – Chargeable event – Article 63 – Chargeability of VAT – Article 78(1)(a) – Taxable amount – Reintroduction of energy products into the tax warehouse – Conditions imposed by national law – Additional excise duty and VAT applied as a penalty for non-compliance with those conditions – Principle of proportionality)

In Case C‑657/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Prahova (Regional Court, Prahova, Romania), made by decision of 29 March 2022, received at the Court on 18 October 2022, in the proceedings

SC Bitulpetrolium Serv SRL

v

Administraţia Judeţeană a Finanţelor Publice Prahova – Direcţia Generală Regională a Finanţelor Publice Ploieşti,

THE COURT (Eighth Chamber),

composed of N. Piçarra (Rapporteur), President of the Chamber, N. Jääskinen and M. Gavalec, Judges,

Advocate General: J. Richard de la Tour,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 9 November 2023,

after considering the observations submitted on behalf of:

– the Romanian Government, by E. Gane and A. Rotăreanu, acting as Agents,

– the European Commission, by A. Armenia and F. Moro, 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 2(3), Article 5 and Article 21(1) 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), Articles 2, 250 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and the principles of proportionality and neutrality of value added tax (VAT).

2 The request has been made in proceedings between SC Bitulpetrolium Serv SRL (‘Bitulpetrolium’) and the Administrația Județeană a Finanțelor Publice Prahova – Direcția Generală Regională a Finanțelor Publice Ploiești (Office of Public Finance of Prahova – Regional Directorate-General for Public Finance of Ploiești), regarding additional excise duty and VAT imposed by that authority on Bitulpetrolium as a penalty for non-compliance with the applicable conditions in the event of reintroduction into the tax warehouse of an energy product marketed by Bitulpetrolium.

Legal context

European Union law

Directive 2003/96

3 Recitals 3, 9, 17 and 18 of Directive 2003/96 state:

‘(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.

…

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

…

(17) It is necessary to establish different Community minimum levels of taxation according to the use of the energy products and electricity.

(18) Energy products used as a motor fuel for certain industrial and commercial purposes and those used as heating fuel are normally taxed at lower levels than those applicable to energy products used as a propellant.

…’

4 Article 4(2) of the directive provides that, for the purposes of the 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’.

5 Tables A, B and C of Annex I to that directive set the minimum levels of taxation applicable, respectively, to ‘propellants’, ‘motor fuels used for the purpose set out in Article 8(2)’ of the directive and ‘heating fuels and electricity’. Gas oil for use as a motor fuel is subject to a minimum level of taxation of EUR 330 per 1 000 l, and of EUR 21 per 1 000 l when used as a motor fuel for certain industrial and commercial purposes. When used as a heating fuel, gas oil is subject to a minimum level of taxation of EUR 21 per 1 000 l. The minimum level of taxation applicable to ‘heavy fuel oil’ for use as a heating fuel is EUR 15 per 1 000 kg.

Directive 2006/112

6 Under Article 2(1) of Directive 2006/112:

‘The following transactions shall be subject to VAT:

(a) the supply of goods for consideration within the territory of a Member State by a taxable person acting as such;

…’

7 Article 63 of that directive provides:

‘The chargeable event shall occur and VAT shall become chargeable when the goods or the services are supplied.’

8 Article 78 of the directive states:

‘The taxable amount shall include the following factors:

(a) taxes, duties, levies and charges, excluding the VAT itself;

…’

Romanian law

9 Article 425 of Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 establishing the Tax Code) of 8 September 2015 (Monitorul Oficial al României, Part I, No 688 of 10 September 2015) (‘the Tax Code’) provides:

‘1. The energy products referred to in Article 355(3)(g) [fuel oil], or assimilated products in terms of the level of excise duty, may be released for consumption, stored outside a tax warehouse, transported, including under a duty suspension arrangement, used, offered for sale or sold in the territory of Romania only if marked and coloured …

2. The provisions of paragraph 1 shall not apply to the energy products referred to in Article 355(3)(g) [fuel oil] or assimilated products from the point of view of the level of excise duty:

…

(d) for which the holder can furnish proof of payment of [the excise duty] to the Treasury to the same extent as provided for gas oil …’

10 Article 427(7) of that code provides:

‘In the case of the energy products referred to in Article 355(3)(g) [fuel oil], or assimilated products in terms of the level of excise duty, released for consumption, stored outside a tax warehouse, transported, including under a duty suspension arrangement, used, offered for sale or sold in the territory of Romania, unmarked and uncoloured, or incorrectly marked and coloured, and in the event of non-compliance by economic operators with the obligations regarding tax audit arrangements and procedures laid down in the procedural rules, excise duty shall be payable to the same extent as provided for gas oil.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 Bitulpetrolium is a limited liability company governed by Romanian law, the purpose of which is the wholesale manufacture and marketing of solid, liquid and gas fuel and derived products. It held a tax warehouse authorisation valid until 1 October 2018.

12 During a tax audit on a sample basis relating, inter alia, to the period between June 2014 and December 2017, the inspecția fiscală (Tax Inspectorate, Romania) found that Bitulpetrolium had issued certificates of receipt and cancellation invoices relating to an energy...