delivered on 7 March 2018 (1)

Case C‑103/17

Messer France SAS, successor to Praxair

Premier ministre,

Commission de régulation de l’énergie,

Ministre de l’Économie et des Finances,

Ministre de l’Environnement, de l’Énergie et de la Mer

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(Taxation of energy products and electricity — National legislation providing for a contribution to the public electricity service — Excise duty on electricity — Indirect tax — Conditions for the existence of another indirect tax for specific purposes — Definition of specific purposes — Similarity between other indirect taxes for specific purposes and excise duty on electricity — Compliance with a minimum level of taxation — Difference between a tax and a compulsory financial contribution of a non-fiscal nature)

The Conseil d’État (Council of State, France) seeks a preliminary ruling from the Court on the compatibility with EU law of what is called the contribution to the public electricity service (‘CPES’), as it applied in France between 2003 and 2010.

The CPES is a levy paid by final consumers in their bills and collected by electricity suppliers. The amount paid is intended to offset the additional costs which suppliers are legally required to bear and which have a wide range of purposes: they range from production incentives for electricity generated from renewable sources and offsetting the higher costs of electricity generation in non-metropolitan areas to social purposes, such as the special pricing structure for electricity as a basic necessity and assistance for persons living in poverty.

The referring court does not ask the Court whether the CPES may be classified as State Aid. Rather, its questions concern the compatibility of that levy with the directives harmonising excise duty on certain goods, including electricity.

Those directives laid down the rule that the goods to which they relate are subject only to harmonised excise duty. However, by way of exception, the directives allow certain indirect taxes for specific purposes (‘ITSP’), in relation to which the Court has previously laid down a number criteria in its case-law.

In the proceedings pending before the Conseil d’État (Council of State), which is the lead action in a series of similar actions, (2) it is a matter of determining whether the CPES can be classified as one of the indirect taxes which those directives permit by way of exception. From a legal and economic point of view, the dispute before the French courts concerning the CPES is of considerable importance. (3)

EU law

The third recital reads:

‘… the concept of products subject to excise duty should be defined; whereas only goods which are treated as such in all the Member States may be the subject of Community provisions; whereas such products may be subject to other indirect taxes for specific purposes; whereas the maintenance or introduction of other indirect taxes must not give rise to border-crossing formalities’.

Article 3 provides:

‘1. This Directive shall apply at Community level to the following products as defined in the relevant Directives:

–mineral oils,

–alcohol and alcoholic beverages,

–manufactured tobacco.

…’

According to Article 1:

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

Article 3 provides:

‘References in Directive 92/12/EEC to “mineral oils” and “excise duty”, insofar 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.’

Article 4 reads:

‘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.

Article 18(10) states:

‘The French Republic may apply total or partial exemptions or reductions for energy products and electricity used by the State, regional and local government authorities or other bodies governed by public law, in respect of the activities or transactions in which they engage as public authorities until 1 January 2009.

The French Republic may apply a transitional period until 1 January 2009 to adapt its current electricity taxation system to the provisions set out in this Directive. During this period, the global average level of the current local electricity taxation is to be taken into account to assess whether the minimum rates set out in this Directive are respected.’

In accordance with Article 28:

‘1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive not later than 31 December 2003. They shall forthwith inform the Commission thereof.

Directive 92/12 was repealed by Directive 2008/118, Article 1(1) and (2) of which 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/EC;

…

Under Article 7(1):

‘Excise duty shall become chargeable at the time, and in the Member State, of release for consumption.’

Article 9 provides:

‘The chargeability conditions and rate of excise duty to be applied shall be those in force on the date on which duty becomes chargeable in the Member State where release for consumption takes place.

…’

Article 47(1), first subparagraph, reads:

‘Directive 92/12/EEC is repealed with effect from 1 April 2010.’

Article 5 of the loi du 10 février 2000 relative à la modernisation et au développement du service public de l’électricité (Law of 10 February 2000 on the modernisation and development of the public electricity service) (7) provided: (8)

‘I. The costs attributable to the public service tasks assigned to electricity operators shall be offset in full. They comprise:

(a)With regard to the generation of electricity:

1.The additional costs resulting, where applicable, from the implementation of Articles 8 and 10, by comparison with the costs avoided by Electricité de France or, where applicable, the costs avoided by such of the non-nationalised distributors referred to in Article 23 of Law No 46-628 of 8 April 1946, cited above, as may be concerned …

(b)With regard to the supply of electricity:

1.Lost revenue and costs borne by electricity suppliers as a result of the application of the special pricing structure for products which are basic necessities.

2.Costs borne by electricity suppliers as a result of their participation in the special arrangements for persons living in poverty, as referred to in Article 2(III)(1).

Those costs shall be calculated on the basis of suitable accounting records kept by the operators concerned. Those accounting records, established in accordance with the rules of the Energy Regulation Commission, … The Minister for Energy shall set the amount of those costs following the annual proposal by the Energy Regulation Commission.

The offsetting of those costs, in favour of the operators bearing them, shall be secured through contributions payable by final consumers of electricity located in the national territory.

The amount of those contribution shall be calculated pro rata based on the amount of electricity consumed …

… The amount of the contribution applicable to each kilowatt-hour shall be calculated in such a way that the contributions cover the entirety of the costs referred to in (a) and (b) above … The Minister for Energy shall determine that amount on the proposal of the Energy Regulation Commission, which is to be submitted annually ...’

In accordance with the second and sixth subparagraphs of Article 10(5) of the Law of 10 February 2000 (9) on the obligation to purchase electricity generated by renewable energy power stations:

‘… The obligations incumbent on producers benefiting from the obligation to purchase shall be laid down by decree, as shall the arrangements under which the ministers responsible for the economy and for energy are to lay down, following an opinion of the Energy Regulation Commission, the terms of purchase of the electricity so generated.

… Contracts made pursuant to this Article by Electricité de France and the non-nationalised distributors referred to in Article 23 of Law No 46-628 of 8 April 1946, cited above, shall contain terms of purchase which take into account the investment and operating costs avoided by such purchasers, to which a supplement may be added taking account of the contribution made by the electricity delivered or the sector to achieving the objectives set out in the second paragraph of Article 1 of this Law. The amount of the supplement shall not be such that the return on the capital immobilised in plants benefiting from those terms of purchase exceeds a normal return on capital, taking into account the risks inherent in such activities and the fact that such plants have benefit of a guarantee under which their entire production can be supplied in accordance with a pre-determined tariff. The terms of purchase shall be periodically reviewed so as to take account of changes in the costs avoided and in the costs referred to in paragraph 1 of Article 5.’

In accordance with Article 8 of Decree 2001/410 of 10 May 2001 (10) on the terms of purchase of electricity generated by producers benefiting from the obligation to purchase, implementing those provisions:

‘The terms of purchase of electricity generated by plants benefiting from the obligation to purchase provided for by Article 10 of the Law of 10 February 2000, referred to above, shall be laid down by orders of the ministers responsible for the economy and for energy, made following the opinion of the Conseil supérieur de l’énergie (Upper Energy Council) and the opinion of the Commission de régulation de l’électricité (Electricity Regulation Commission) ...’

Following the infringement proceedings commenced by the Commission in 2010, the French Republic adopted loi n° 2010-1448 du 7 décembre 2010 portant nouvelle organisation du marché de l’électricité (Law of 7 December 2010 reorganising the electricity market, also known as the NOME Law). (11) In accordance with Article 23 of that Law, the CPES was replaced by municipal and departmental levies on final consumption of electricity. Those new taxes entered into force on 1 January 2011.

II. The case in the main proceedings and the questions referred for a preliminary ruling

According to the order for reference, on 17 December 2010, the company Praxair, to the rights of which the company Messer France later succeeded, sought restitution, together with late-payment interest, of the CPES payments it had made between 2005 and 2009.

22.The Tribunal administratif de Paris (Administrative Court, Paris, France), seised of that claim, dismissed it by judgment of 6 July 2012.

23.Praxair appealed against that judgment to the Cour administrative d’appel de Paris (Administrative Court of Appeal, Paris, France). Before giving judgment, that court decided to refer the case file to the Conseil d’État (Council of State) to which it submitted a number of issues for consideration. After referring a priority question on constitutionality to the Conseil constitutionnel (Constitutional Court, France), which was settled by decision of 8 October 2014, (12) the Conseil d’État (Council of State) gave the appeal court its reply on 22 July 2015.

24.On 23 February 2016, the appeal court gave judgment dismissing Praxair’s appeal.

25.Messer France, which had succeeded to the rights and obligations of Praxair, appealed against the second-instance judgment to the Conseil d’État (Council of State), which has referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) When a Member State has not, following the entry into force of [Directive 2003/96], initially laid down any provision creating an excise duty on the consumption of electricity, but has maintained in force a previously created indirect tax on such consumption, in addition to local taxes:

–is the compatibility of the tax in question with Directive [92/12] and with [Directive 2003/96] to be assessed in the light of the conditions laid down by Article 3(2) of [Directive 92/12] for the existence of “another indirect tax”, that is to say, the pursuit of one or more specific purposes and compliance with certain tax rules applicable to excise duty or value added tax;

–or may “another indirect tax” be retained only if a harmonised excise duty exists and finally, if so, could the contribution in question be regarded as being such a duty, its compatibility with those two directives thus falling to be assessed in the light of all of the harmonising rules which they lay down?

(2)Is a contribution based on the consumption of electricity, the revenue from which is allocated both to the financing of expenditure connected with the generation of electricity from renewable sources and cogeneration and to the implementation of a geographical price-balancing mechanism and a reduction in the price of electricity for low-income households, to be regarded as pursuing specific purposes within the meaning of Article 3(2) of [Directive 92/12], as restated in Article 1(2) of [Directive 2008/118]?

(3)In the event that only some of the purposes pursued can be characterised as specific within the meaning of those provisions, can taxpayers nonetheless claim full reimbursement of the contribution at issue, or may they claim only a partial reimbursement based on the proportion of the overall expenditure financed by the contribution which did not relate to a specific purpose?

(4)If the answer to the preceding questions is such that the system of contribution to the public electricity service is, in whole or in part, incompatible with the rules on the taxation of electricity laid down by EU law, is the second subparagraph of Article 18(10) of [Directive 2003/96] to be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down by [Directive 2003/96] was, among the rules on the taxation of electricity laid down by EU law, the only obligation incumbent on France?’

26.Written observations were lodged by Messer France, the French, Spanish, Italian and Belgian governments, and the Commission, all of which (with the exception of the Italian Government) participated in the hearing held on 13 December 2017.

III. Replies to the questions referred

27.Before I examine the questions referred, I believe it is necessary to address the uncertainties concerning the (fiscal or otherwise) nature of the CPES, as a basis for determining whether it is compatible with Article 3(2) of Directive 92/12.

28.If the CPES is not a tax under EU law, it cannot be classified as an ITSP, which will preclude the application of Directive 92/12. In those circumstances, there would be nothing to prevent the French Republic from retaining that contribution (while it was in force) without any major problems.

29.The referring court states that the CPES is an indirect tax and does not call into question its fiscal nature. However, whilst accepting, in its written observations, that the CPES is a compulsory financial contribution provided for in law, the Italian Government submits that it is not fiscal in nature and therefore does not fall within the scope of Directives 92/12 and 2008/118. The Spanish and Belgian governments supported that position at the hearing.

30.In my Opinion in IRCCS — Fondazione Santa Lucia, (13) I argued that the levy to defray what are called ‘general electricity network costs’ in Italy was a financial contribution of a non-fiscal nature, (14) which did not have the characteristics (or the nature) of a tax. The Consiglio di Stato (Council of State, Italy) clearly stated as much in its order for reference. I took the view, in particular, that it did not have a tax structure similar to harmonised excise duty or VAT and that it could not be classified as an ITSP for the purposes of Article 1(2) of Directive 2008/118.

31.In its judgment in IRCCS — Fondazione Santa Lucia, the Court did not follow my proposal and did not differentiate between taxes and public financial contributions of a non-fiscal nature. Based on the (correct) premiss that it is for the Court to determine, in accordance with EU law, the nature of a tax, duty or charge, according to the objective characteristics by which it is levied, irrespective of its classification under national law, (15) the Court merely set out three inherent features of indirect taxes:

–in the first place, the legal obligation to pay the amount of such taxes and, in the event of failure to do so, the competence of the authorities to take legal action against debtors;

–in the second place, the intended use of the sums payable, which must be directed towards the financing of objectives in the general interest, in accordance with the allocation criteria laid down by the public authorities;

–in the third place, the possibility of passing on such taxes to final consumers of the goods or services supplied, through their inclusion in the amount such consumers are invoiced, which must be linked to the quantities of goods or services consumed. (16)

32.However, the Court assigned in its entirety to the Italian national court the task of ascertaining whether or not the levy covering general electricity charges satisfied the conditions laid down in Article 1(2) of Directive 2008/118 (that is, ‘if, firstly, the tax pursues one or more specific purposes and if, secondly, it complies with the tax rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, which rules do not include the provisions on exemptions’). (17)

33.I shall not persist with a discussion which, in appearance only, could be deemed academic. (18) To my mind, it is still significant, for the purpose of drawing distinctions between the two concepts, that revenue obtained from public financial contributions of a non-fiscal nature is outside State budgets; in other words, it is not allocated to meeting public needs which national authorities have a duty to finance. It is equally significant that the administration and collection of such a levy does not involve the national tax authorities exercising the usual powers of the Treasury.

34.Disregarding those features, among others, blurs the concept of tax revenue to the point where the legal doctrine in this area probably becomes meaningless. (19) At the same time, it places excessive restrictions on the freedom of the legislature of each State, which may, if that [trend] continues, be required to treat charges for the provision of certain public services as being of a taxable nature where, in order to calculate their amount (set by the public authorities), account is taken of the costs incurred in providing those services, whether these are direct or indirect and general.

35.I recognise, nonetheless, that although the CPES has certain features in common with the Italian levy referred to above, it possesses some features which may cause it to resemble an indirect tax, a classification which — as I have already pointed out — does not appear to be disputed by the referring court or in French law. (20) Notable among those features is the fact, clarified at the hearing, that it is the public authorities (the Energy Regulation Commission) which are responsible for demanding payment, plus default interest, from users who do not pay the CPES and to issue them with a debt collection enforcement order.

36.Since, ultimately, it will be for the referring court to give a definitive opinion on whether (or not) the CPES is fiscal in nature, in the light of the broad criteria used by the Court of Justice to classify as fiscal in nature certain compulsory contributions paid by consumers of some goods and services, I shall start from that presumption when developing my arguments in this Opinion, but not without stressing my wish that there should be greater conceptual rigour in the examination of indirect taxes. (21)

37.It might perhaps be helpful to answer first the question by which the referring court asks the Court for clarification of the second subparagraph of Article 18(10) of Directive 2003/96, in order to establish exactly which provisions are applicable to the dispute.

38.From 1 January 2004 to 1 April 2010, indirect taxation on electricity was governed by Directive 92/12, in accordance with Article 3 of Directive 2003/96. (22) The latter directive extended to electricity the provisions of Directive 92/12, which, until then, had applied only to excise duty on mineral oils, alcohol, alcoholic beverages and manufactured tobacco.

39.The French Republic was granted (second subparagraph of Article 18(10) of Directive 2003/96) a transitional period until 1 January 2009 to bring its electricity taxation system into line with that directive.

40.In accordance with that article, during the transitional period, France was required to take into account the global average level of local electricity taxation to assess whether the minimum rates set out in Directive 2003/96 were respected. That obligation meant that, between 1 January 2004 and 1 January 2009, France was required to ensure that the total of the CPES plus the other (municipal and departmental) excise duties (23) levied on the consumption of electricity exceeded those minimum rates or levels.

41.The French Republic failed to fulfil its obligations (24) with regard to that transitional period and did not transpose Directive 2003/96 into national law until the adoption of Law No 2010-1488 (25) of 7 December 2010, which entered into force on 1 January 2011. (26)

42.It follows from that sequence of provisions that the second subparagraph of Article 18(10) of Directive 2003/96 allowed the French Republic to retain its national system for the taxation of electricity until 31 December 2008, without being subject to Directive 92/12, and ‘the only obligation’ (27) incumbent on France was to comply with the minimum level of taxation set therein. Until that date, and subject to the condition referred to, France was free to apply the CPES without needing to consider whether or not it was compatible with Directive 92/12.

43.The corollary of that is that if that level of taxation was reached (which it is for the national court to verify), those who paid the CPES falling due before 1 January 2009 may not seek reimbursement of it by relying on the alleged infringement of Directives 92/12 and 2003/96.

Messer France submits that the establishment of the harmonised excise duty on electricity consumption is a <span class="italic">conditio sine qua non</span> if a Member State is to be able to retain or lay down another indirect tax on electricity consumption, within the meaning of Article 3(2) of Directive 92/12.

In its submission, the possibility of levying another indirect tax is a manifestation of a residual power of taxation of the Member States, (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0028" href="#t-ECR_62017CC0103_EN_01-E0028">28</a> </span>) the exercise of which is supplementary and is conditional on the establishment of the harmonised excise duty. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0029" href="#t-ECR_62017CC0103_EN_01-E0029">29</a> </span>) The fact that it is conditional on the establishment of the harmonised excise duty is stipulated in Directive 2008/118, Article 1(2) of which replaced the phrase ‘other indirect taxes’ with the phrase ‘<span class="italic">additional</span> indirect taxes’.

I do not agree with those arguments. First, Directive 2008/118 is not applicable <span class="italic">ratione temporis</span> to these proceedings, although the wording of Article 1(2) essentially corresponds to that of Article 3(2) of Directive 92/12. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0030" href="#t-ECR_62017CC0103_EN_01-E0030">30</a> </span>) If a number of language versions (the French and the Romanian) of Article 1(2) of Directive 2008/118 refer to <span class="italic">additional</span> indirect taxes, the majority (the English, Portuguese, Spanish and Italian versions, among others) refer to ‘<span class="italic">other</span> indirect taxes’, which removes the notion that those taxes are conditional on the prior establishment of the harmonised excise duty, in accordance with the aim of that directive. That interpretation is consistent with the general structure and purpose of Directive 2008/118. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0031" href="#t-ECR_62017CC0103_EN_01-E0031">31</a> </span>

Second, in referring to ‘other indirect taxes for specific purposes’, Article 3(2) of Directive 92/12 does not include words which imply that the levying of those taxes is conditional on the prior establishment of the harmonised excise duty.

That view is bolstered by the third recital in the preamble to Directive 92/12, which states that products subject to excise duty ‘may be subject to other indirect taxes for specific purposes … the maintenance or introduction of other indirect taxes must not give rise to border-crossing formalities’.

In the same vein, the Court has referred to ‘the right conferred by Article 3(2) of Directive 92/12 to maintain or introduce national taxes for specific purposes in respect of products subject to the harmonised excise duty’. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0032" href="#t-ECR_62017CC0103_EN_01-E0032">32</a> </span>) That <span class="italic">right</span> contrasts with the <span class="italic">obligation</span> of Member States to establish the harmonised excise duty, which emphasises that they are unrelated levies and that it is not essential to establish the excise duty in order to maintain or introduce other indirect taxes.

Third, in <span class="italic">Commission</span> v <span class="italic">France</span>, the Court held that the Council adopted Article 3(2) of Directive 92/12 ‘in view of the different fiscal traditions in the Member States in this regard and the frequent recourse to indirect taxes for the purpose of implementing non-budgetary policies’. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0033" href="#t-ECR_62017CC0103_EN_01-E0033">33</a> </span>) Again, that fact confirms that those <span class="italic">other</span> indirect taxes exist independently and are not conditional on the existence of the harmonised excise duty.

I believe, therefore, that Article 3(2) of Directive 92/12 must be interpreted as meaning that the maintenance or introduction of an indirect tax for specific purposes is not conditional on the prior establishment of the harmonised excise duty.

Since, in the main proceedings, Messer France seeks reimbursement, plus default interest, of the CPES payments made between 2005 and 2009 by Praxair, only Directive 92/12 and Directive 2003/96 are applicable <span class="italic">ratione temporis</span>. That does not mean that the Court’s case-law on Directive 2008/118 should not also be considered because, even though that directive repealed Directive 92/12 with effect from 1 April 2010, its content is essentially the same. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0034" href="#t-ECR_62017CC0103_EN_01-E0034">34</a> </span>

Article 3(2) of Directive 92/12 allows Member States to introduce or maintain ‘other indirect taxes for specific purposes’, in addition to establishing the harmonised excise duty on electricity consumption.

ITSPs are taken into account, together with the harmonised excise duty, for the purposes of the application of Directive 2003/96, since, in accordance with Article 4(1) thereof, the levels of taxation on electricity applied by Member States may not be less than the minimum levels of taxation prescribed by the directive. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0035" href="#t-ECR_62017CC0103_EN_01-E0035">35</a> </span>

As I observed above, the allowing of ITSPs, as an exception to the general rule, has its origins, according to the Court’s case-law, in the Member States’ different fiscal traditions in this regard and the frequent recourse to indirect taxation for the implementation of non-budgetary policies. Therefore, Member States are allowed to introduce, in addition to minimum excise duty, other indirect taxes having a specific purpose. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0036" href="#t-ECR_62017CC0103_EN_01-E0036">36</a> </span>

Since it is an exception to the general rule that electricity consumption is subject only to harmonised excise duty and VAT, it has, to date, been interpreted strictly by the Court. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0037" href="#t-ECR_62017CC0103_EN_01-E0037">37</a> </span>) The Member States’ discretion is, moreover, limited by the two mandatory conditions which must be satisfied cumulatively by ITSPs:

–they must have a specific purpose;

–they must comply with the rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0038" href="#t-ECR_62017CC0103_EN_01-E0038">38</a> </span>

On that basis, it is necessary to examine whether the CPES may be treated as a ITSP.

The Court has laid down a number of (strict) criteria for assessing this first requirement:

–a specific purpose must always be a purpose other than a purely budgetary purpose. However, since every tax necessarily pursues a budgetary purpose, that factor does not, in itself, suffice to preclude that tax from being regarded as having, in addition, a <span class="italic">specific purpose</span> within the meaning of Article 3(2) of Directive 92/12; (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0039" href="#t-ECR_62017CC0103_EN_01-E0039">39</a> </span>

–the predetermined allocation of the proceeds of a tax to the financing of certain public needs constitutes a factor to be taken into account for the purpose of establishing whether that has a specific purpose, but such an allocation, which is merely a matter of internal organisation of the budget of a Member State, cannot, in itself, constitute a sufficient condition. A Member State may decide to lay down that the proceeds of a tax are to be allocated to financing particular expenditure and thereby convert any indirect tax into an ITSP; (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0040" href="#t-ECR_62017CC0103_EN_01-E0040">40</a> </span>

–the specific purpose cannot be established purely by the allocation of revenue from the tax at issue to the financing of general expenditure that is incumbent upon the public authority in a given field. Otherwise, the supposed specific purpose could not be distinguished from a purely budgetary purpose;

–the tax must itself be directed at achieving the specific purpose referred to, so that there is a direct link between the use of the revenue and the specific purpose. In the absence of such a mechanism for the predetermined allocation of revenue, a tax can be regarded as pursuing a specific purpose only if it is designed, so far as its structure is concerned (particularly the taxable item or the rate of tax) in such a way as to guide the behaviour of taxpayers in a direction which facilitates the achievement of the stated specific purpose, for example by taxing the goods in question heavily in order to discourage their consumption. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0041" href="#t-ECR_62017CC0103_EN_01-E0041">41</a> </span>

The French and Spanish governments submit that the CPES is allocated to the fulfilment of specific purposes not of a merely budgetary nature. However, Messer France and the Commission argue that it pursues multiple environmental and social objectives (some of which are at odds with each other) whose attainment it does not encourage, and therefore it does not satisfy the abovementioned conditions laid down by the Court.

The referring court states that the CPES was created to cover the various public service obligations imposed on electricity suppliers. In accordance with Article 5 of the Law of 10 February 2000, revenue from the CPES was, during the years at issue, allocated to three types of expenditure:

–payment of the additional costs arising from the obligation of suppliers to purchase electricity generated from renewable energy sources and cogeneration, with a view to increasing the production of electricity from such energy sources;

–the offsetting of the additional costs of production in areas not connected to the continental metropolitan network;

–compensating for the loss of revenue and the additional management costs borne by suppliers of electricity as a result, first, of the implementation of the ‘basic necessity’ special pricing structure for electricity and secondly, of their participation in the mechanism for the assistance of persons living in poverty.

In addition to those purposes, the revenue generated by the CPES was used to cover the costs involved in the administrative operations of the Mediateur national de l’énergie (National Energy Ombudsman; ‘Ombudsman’) and the Caisse de dépôts et consignations pour la gestion de la CSPE (Equalisation Fund for management of the CPES; ‘Equalisation Fund’).

Final consumers of electricity would pay the CPES to suppliers based on the consumption (as a proportion of the kilowatts used) which appeared on their bills. Suppliers would deposit that sum with the Equalisation Fund after offsetting the CPES collected against expenditure incurred in the implementation of the public service objectives it pursued. The Equalisation Fund would redistribute the remainder between electricity suppliers to cover the costs of public service obligations.

The percentage applicable to the CPES would be set by the competent minister, on the proposal of the Energy Regulation Commission, taking into account the forecasted costs of the public electricity service obligations. If there was a shortfall, it would be covered by an increase in the CPES in subsequent budget years.

The revenue generated by the CPES did not pass into the State budget and instead was deposited with the Equalisation Fund. As already stated, that revenue was allocated to the financing of objectives linked to the public electricity service, other than exclusively budgetary objectives.

As the Court has stated, the predetermined allocation of the proceeds of a tax to the financing of certain public needs constitutes only an indication that that tax has a specific purpose. Such an allocation may conceal merely a matter of internal organisation of the budget of a Member State. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0042" href="#t-ECR_62017CC0103_EN_01-E0042">42</a> </span>

In accordance with that criterion, the proceeds of the CPES allocated to the operating costs of the Ombudsman and the Equalisation Fund have a typically budgetary purpose; that is to say, they can be categorised as revenue for the financing of an item of general State expenditure which can readily be included in State budgets. Therefore, the CPES cannot be recognised as having the nature of an ITSP in that connection.

Although it is not as clear-cut, I believe that the same applies to proceeds of the CPES allocated to social purposes (the special pricing structure for electricity regarded as a ‘basic necessity’ and participation in the scheme for persons living in poverty) and proceeds which the State uses in an effort to compensate for certain disadvantages derived from geographical or territorial factors (in other words, offsetting additional production costs in areas not connected to the continental metropolitan network).

I agree with the Commission that, in those two areas, the proceeds of the CPES meet public needs of a social or territorial nature which would normally be met from State budgets.

Indeed, those social and territorial-cohesion objectives explain the subsequent development of French legislation, reflected in Law No 2015-1786. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0043" href="#t-ECR_62017CC0103_EN_01-E0043">43</a> </span>) Since then, French State budgets have included public electricity and gas service levies and the CPES has been merged with the tax on final electricity consumption (harmonised excise duty). (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0044" href="#t-ECR_62017CC0103_EN_01-E0044">44</a> </span>

In contrast, I believe that the allocation of the CPES to the payment of additional costs resulting from the obligation (of suppliers) to purchase electricity generated from renewable energy sources and cogeneration does have a specific purpose within the meaning of the Court’s case-law on ITSPs.

That allocation must entail a sufficient link between the use of the proceeds of the tax and the specific purpose of promoting green energy. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0045" href="#t-ECR_62017CC0103_EN_01-E0045">45</a> </span>) The CPES encourages the production of electricity from renewable energy sources and cogeneration, (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0046" href="#t-ECR_62017CC0103_EN_01-E0046">46</a> </span>) to the financing of which it contributes, so that it pursues in its own right the attainment of the specific objective referred to. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0047" href="#t-ECR_62017CC0103_EN_01-E0047">47</a> </span>

In fact, the Commission (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0048" href="#t-ECR_62017CC0103_EN_01-E0048">48</a> </span>) (which, in this case, adopts a different position which has not been properly explained) has acknowledged that the A3 component of the Italian levy to cover the general costs of the electricity network, the specific aim of which was to finance electricity generation from renewable sources and cogeneration (in other words, the component similar to one of the components covered by the CPES), is an ITSP.

It could be argued to the contrary that the promotion of green electricity is an objective that could also be financed using public funds from the State budget. Admittedly, that is always a possibility, since parliaments have sovereignty to include in State budgets the items they consider necessary. If that fact becomes the ultimate key to the interpretation of the exception laid down in Article 3(2) of Directive 92/12 for ITSPs, I fear that no indirect taxes will fit within that exception.

It is true that, so far, none of the taxes examined by the Court have passed the strict criteria laid down in the Court’s case-law for examining the lawfulness of ITSPs. However, since the exception exists, and the provision for it in Directive 92/12 must be recognised as having some practical effect, it should not be neutralised by the case-law. I believe that the portion of the CPES allocated to the promotion of green electricity affords the Court the opportunity to allow an ITSP in the context of that directive for the first time.

Doubt is not cast on that conclusion by a number of arguments put forward in these proceedings. The referring court states that the cost of the obligation to purchase, at a price in excess of its market value, electricity generated by power stations using renewable energy (which is equivalent to the difference between the feed-in tariff applicable to those required to purchase and the cost avoided by those purchasers, relating to the purchase of equivalent electricity) did not depend on the revenue generated by the CPES. Although there is no direct connection between the revenue obtained through the CPES and the specific amount of the assistance to producers of green electricity, it is undeniable that a high proportion of the proceeds of the CPES was used to finance that assistance. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0049" href="#t-ECR_62017CC0103_EN_01-E0049">49</a> </span>

The fact that the revenue obtained from the CPES was distributed each year in accordance with the criteria established by the Energy Regulation Commission and the decisions of the minister responsible for energy, without the French legislation having predetermined the percentages of revenue from the CPES allocated to each objective, does not preclude classification of the CPES as an ITSP either.

In that connection, I believe that Member States must have a certain amount of discretion when creating an ITSP compatible with Article 3(2) of Directive 92/12. That discretion includes the right to be flexible when identifying the intended use of the revenue and the right to adjust the amount of the tax based on circumstances, decisions which may be delegated to the competent public authorities. The relevant point is, I stress, that, in practice, approximately 70% of the revenue from the CPES was allocated to the promotion of green electricity.

Nor does it appear to me that classification as an ITSP is precluded by the fact that the CPES did not by itself enable the prioritisation of green electricity consumption or encourage consumers to purchase green electricity in preference to electricity from non-renewable sources. Unlike other excise goods (such as alcohol and tobacco), it is obviously difficult to distinguish between electricity generated from renewable sources and electricity generated from fossil fuels or other sources once it has entered the distribution network. However, it should be recalled that the Court requires only that an ITSP has a structure which discourages consumption of the product by consumers when there is no mechanism for the predetermined allocation of the revenue. That criterion is satisfied by the CPES, as I have stated. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0050" href="#t-ECR_62017CC0103_EN_01-E0050">50</a> </span>

In the light of the foregoing considerations, I believe that the CPES satisfies the requirement of pursuing a specific purpose and may be classified as an ITSP compatible with Article 3(2) of Directive 92/12, as far as the portion corresponding to the revenue allocated to the payment of additional costs resulting from the obligation to purchase electricity generated from renewable energy sources and cogeneration is concerned.

In order to fit within the exception in Article 3(2) of Directive 92/12, an indirect tax must, in addition to pursuing a specific purpose, also comply with the rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned. Therefore, as regards those elements of the tax, it must have features similar to those of the excise duty harmonised by the EU or to those of VAT.

The Court has held in relation to the interpretation of that provision that ‘Article 3(2) of the excise duty directive does not require Member States to comply with all rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, and chargeability and monitoring of the tax are concerned’ and that ‘it is sufficient that the indirect taxes pursuing specific objectives should, on these points, accord with the general scheme of one or other of these taxation techniques as structured by the Community legislation’. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0051" href="#t-ECR_62017CC0103_EN_01-E0051">51</a> </span>

The CPES does not have a similar structure to VAT, for the amount charged is not proportional to the price of the product on which it is levied and instead is calculated on the volume of electricity consumed; it is charged at the time of consumption and not at each stage of the production and distribution process; and, lastly, it is levied on a particular product (electricity) and is not characterised by its general nature.

Accordingly, the similarity of the CPES must be sought in the context of the technique of excise duty itself. The referring court, whose assessments I agree with, has drawn attention to a number of aspects of the tax structure of the CPES which are similar to those of excise duty.

As regards determination of the tax base and calculation of the tax, reflected in the amount payable, the CPES presents clear similarities to excise duty. Electricity is taxed on the basis of kilowatts used, at a rate which rose from EUR 3/MWh in 2003 to EUR 20/MWh in 2015, (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0052" href="#t-ECR_62017CC0103_EN_01-E0052">52</a> </span>) in a similar way to excise duty.

As regards chargeability, in the case of excise duty, this occurs when the electricity is supplied. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0053" href="#t-ECR_62017CC0103_EN_01-E0053">53</a> </span>) Article 5 of the Law of 10 February 2000, in force at that time, also provided that the CPES was to be levied when consumers paid their bills. Therefore, the temporal element of chargeability of the CPES coincides with the supply of electricity, which is similar to what is provided for by Directives 92/12 and 2003/96.

Unlike harmonised excise duty on electricity, where the taxable person is the distributor or redistributor of electricity (Article 21(5) of Directive 2003/96), the person liable for the CPES is the final consumer. Article 3(2) of Directive 92/12 does not require ITSPs to be similar to VAT or other excise duties as regards the rules relating to the taxable person.

There is also similarity between the CPES and excise duty when it comes to setting a ceiling. In the case of the CPES, ‘the total amount due in respect of the contribution to the public electricity service from any industrial company consuming more than 7 gigawatt hours of electricity per year shall be subject to a ceiling of 0.5% of its added value’. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0054" href="#t-ECR_62017CC0103_EN_01-E0054">54</a> </span>) That limitation is consistent with Article 17(1) of Directive 2003/96 (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0055" href="#t-ECR_62017CC0103_EN_01-E0055">55</a> </span>) and is therefore compatible with the general system for calculation of excise duty laid down by EU law.

Lastly, as concerns ‘monitoring of the tax’, it is true that the administration of the CPES differs in part from that of other indirect taxes. The French legislation provides for the CPES to be paid by final consumers of electricity in the form of a levy additional to the price of electricity stated in their bills, from which it follows that it is the electricity suppliers who collected the CPES and transferred the money to the Equalisation Fund, which distributed it among electricity network operators. As I have already observed, (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0056" href="#t-ECR_62017CC0103_EN_01-E0056">56</a> </span>) there is State involvement to ensure the collection of the CPES, similar to the control mechanisms for other taxes, and any disputes between the public authorities which demand payment of the contribution and issue debt collection orders and those who have not paid the contribution are decided on by the administrative courts.

Taken as a whole, therefore, the CPES complies with the provisions applicable to excise duty (as far as the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned), as required by Article 3(2) of Directive 92/12. That is one of the two cumulative conditions imposed. The CPES is also required to have specific purposes, a condition which it satisfies only in relation to the revenue allocated to assistance for green electricity.

In short, I believe that the CPES may be considered to be compatible with Article 3(2) of Directive 92/12 in that regard and incompatible with that provision as concerns the revenue directed to the attainment of the other purposes it pursues.

The referring court asks the Court of Justice about the rules on full or partial reimbursement of the CPES in the event that it is found to qualify (fully or partially) as an ITSP.

According to the settled case-law of the Court, the right to a refund of charges levied in a Member State in breach of rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0057" href="#t-ECR_62017CC0103_EN_01-E0057">57</a> </span>) The Member State is therefore in principle required to repay charges levied in breach of EU law. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0058" href="#t-ECR_62017CC0103_EN_01-E0058">58</a> </span>) That reimbursement obligation is designed to offset the consequences of the incompatibility of the tax with EU law by neutralising the economic burden which that duty has unduly imposed on the operator who, in the final analysis, has actually borne it. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0059" href="#t-ECR_62017CC0103_EN_01-E0059">59</a> </span>

In line with my proposal, outlined above, that, as far as payment of the additional costs resulting from the obligation to purchase electricity generated from renewable energy sources and cogeneration is concerned, the CPES complies with the requirements of Article 3(2) of Directive 92/12, I believe that the CPES does not infringe that provision and, therefore, there is no reason to reimburse it, from the perspective of EU law.

On the other hand, taxpayers may claim a refund from the French State of the sums paid but not due in respect of the CPES, in the proportion that the revenue from that contribution was allocated to the other non-specific objectives, because that portion of the CPES is incompatible with EU law. It is for the referring court to set that proportion, based on the data published by the Energy Regulation Commission or other officially available data.

The duty of reimbursement is, moreover, subject to the general temporal limitations (limitation periods) and applies only to sums paid but not due after 1 January 2009. (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0060" href="#t-ECR_62017CC0103_EN_01-E0060">60</a> </span>) The national court must also confirm whether Messer France was a final consumer of electricity (<span class="note"> <a id="c-ECR_62017CC0103_EN_01-E0061" href="#t-ECR_62017CC0103_EN_01-E0061">61</a> </span>) which did not have the right to pass on the amount of the CPES to another person.

In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France):

(1) The second subparagraph of Article 18(10) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity permitted the French Republic to maintain its national taxation system for electricity until 31 December 2008, subject only to the obligation to comply with the minimum rates prescribed by that directive.

Article 3(2) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products must be interpreted as meaning that the maintenance or introduction of an indirect tax for specific purposes is not conditional on the prior establishment of the harmonised excise duty.

Article 3(2) of Directive 92/12 must be interpreted as meaning that:

–a contribution of the kind at issue in the main proceedings, based on electricity consumption, cannot be classified as an indirect tax for specific purposes in so far as the revenue from it is allocated to the implementation of a geographical price-balancing mechanism, a reduction in the price of electricity for families and persons living in poverty and payment of the operating costs of public institutions;

–on the other hand, that contribution can be classified as an indirect tax for specific purposes, compatible with Article 3(2) of Directive 92/12, as regards the proportion of the revenue from it that is allocated to the financing of electricity generation from renewable sources.

The sums paid but not due as a result of the levying of an indirect tax incompatible in part with Article 3(2) of Directive 92/12 must be reimbursed, in the appropriate proportion, to taxable persons who have paid them, unless those persons have definitively passed on such sums.

(1) Original language: Spanish.

(2) According to the available information, some 60000 individuals and undertakings have lodged claims (with the Energy Regulation Commission, the Environment Ministry, the Finance Ministry, Électricité de France, and others) seeking the reimbursement of sums paid in respect of the CPES. Approximately 13000 actions have been brought against the explicit or tacit rejection of those claims, the value of which may exceed EUR 5000 million.

(3) See the conclusions of the Rapporteur public of 22 January 2017 in Case No 399115 SAS Messer France, p. 1. See also Sniadowe, C., ‘Contribution au service public de l’électricité: zugzwang ou cinquième as?’, Revue de droit fiscal, No 39, 2016, p. 520.

(4) Council Directive of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

(5) Council Directive of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

(6) Council Directive of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

(7) JORF No 35 of 11 February 2000, p. 2143.

(8) As amended by Article 37 of loi n° 2003-8 du 3 janvier 2003 relative aux marchés du gaz et de l’électricité et au service public de l’énergie (JORF No 3 of 4 January 2003, p. 265).

(9) JORF No 35 of 11 February 2000, p. 2143.

(10) JORF No 110 of 12 May 2001, p. 7543.

(11) JORF No 284 of 8 December 2010, p. 21467.

(12) Decision of the Constitutional Court No 2014-419 QPC of 8 October 2014 (JORF No 235 of 10 October 2014, p. 16485).

(13) Opinion of 21 April 2016 (C‑189/15, EU:C:2016:287, points 58 to 64).

(14) See the articles by Lavilla Rubira, J.J., ‘Prestaciones patrimoniales públicas no tributarias impuestas a las empresas que operan en el sector eléctrico’, pp. 69 to 102, and Gómez-Ferrer Rincón, R., ‘Las prestaciones patrimoniales de carácter público y naturaleza no tributaria’, pp. 31 to 67, in López Ramón, F. (coord.), Las prestaciones patrimoniales públicas no tributarias y la resolución extrajudicial de conflictos, Instituto Nacional de Administración Pública, Madrid, 2015.

(15) Judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraph 29).

(16) Judgment of 18 January 2017, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraphs 31 to 40). In the same vein, judgment of 14 January 2016, Commission v Belgium (C‑163/14, EU:C:2016:4, paragraph 39).

(17) A reading of paragraph 16 of Decision No 2014-419 QPC of the Conseil constitutionel (Constitutional Court) of 8 October 2014, concerning Article 5 of Law No 2000-108, could create some uncertainty because it refers ‘to proceedings relating to levies which are neither indirect nor direct taxes’, which are allocated to the administrative court and include disputes concerning the CPES.

(18) I feel moved to quote the words of a prominent Spanish lawyer: ‘determinar qué naturaleza jurídica tienen los acuerdos adoptados en el seno de las organizaciones parece una de esas cuestiones que … solo pueden apasionar a una mente dislocada por las desgracias o por la malformación de su cerebro. Nada más lejos de la realidad. Cuando los juristas tratan de desentrañar la naturaleza jurídica de una institución, lo hacen porque “va en ello” el régimen jurídico aplicable’. Jesús Alfaro in the blog Almacén de Derecho, 14 October 2016, http://almacendederecho.org/la-naturaleza-juridica-los-acuerdos-sociales/

(19) As I observed in my Opinion of 21 April 2016, IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2016:287, paragraphs 54 and 56), the difficulty may arise as result of the use of EU provisions applicable to a similar but not identical field, such as State aid, when determining whether certain contributions can be classified as parafiscal levies and be made subject to the same rules on charges having equivalent effect and discriminatory internal taxation. The broad terms in which the Court has defined the concepts of charges having equivalent effect and discriminatory internal taxation has enabled it to apply them to any financial contribution imposed unilaterally by the Member States, regardless of its fiscal nature.

(20) A reading of paragraph 16 of Decision No 2014-419 QPC of the Conseil constitutionel (Constitutional Court) of 8 October 2014, concerning Article 5 of Law No 2000-108, could create some uncertainty because it refers ‘to proceedings relating to levies which are neither indirect nor direct taxes’, which are allocated to the administrative court and include disputes concerning the CPES.

(21) I refer to my Opinion of 21 April 2016 in IRCCS — Fondazione Santa Lucia (C‑189/15, EU:C:2016:287, points 51 to 64).

(22) Article 28(2) of Directive 2003/96 stipulated that 31 December 2003 was to be the end of the period for transposition into national law and that the directive was consequently to apply from 1 January 2004.

(23) From 1984 to 31 December 2010, Articles L.2333-2 and L.3333-2 of the Code général des collectivités territoriales (General Code on local authorities) provided for municipal and regional indirect taxes, the basis of assessment for which was a percentage of the price of electricity invoiced to consumers.

(24) The Court declared that France had failed to fulfil its obligations in the judgment of 25 October 2012, Commission v France (C‑164/11, EU:C:2012:665).

(25) JORF No 284 of 8 December 2010, p. 21467. That Law converted the previous municipal and departmental taxes into one municipal tax and a separate departmental tax, both levied on final consumption of electricity, and included in Article 266 quinquies C of the Code des douanes (Customs Code) a new excise duty, called the ‘domestic tax on final consumption of electricity’ in excess of 250 kilowatts. In addition to that triple excise duty, the CPES continued to be levied without any amendment of the rules applicable to it.

(26) From 1 January 2016, in accordance with loi n° 2015-1786 de finances rectificative pour 2015 [of 29 December 2015], the old CPES was incorporated into the domestic tax on final consumption of electricity, creating the new CPES, structured as an excise duty on electricity consumption.

(27) That is the expression used by the referring court.

(28) Opinion of Advocate General Wahl in Transportes Jordi Besora (C‑82/12, EU:C:2013:694)

point 15).

(29) Judgment of 24 February 2000, Commission v France (C‑434/97, EU:C:2000:98, paragraph 19): ‘That provision is designed to allow the Member States to establish, in addition to the minimum excise duty fixed by the directive on structures, other indirect taxes having a specific purpose, that is to say, a purpose other than a budgetary purpose.’

(30) Judgment of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraph 34).

(31) The Court has consistently held that, when a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see, inter alia, judgment of 22 September 1988, Land de Sarre and Others (187/87, EU:C:1988:439, paragraph 19)). Further, if there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, inter alia, judgments of 24 February 2000, Commission v France (C‑434/97, EU:C:2000:98, paragraphs 21 and 22), and of 27 March 1990, Cricket St. Thomas (C‑372/88, EU:C:1990:140, paragraph 19)).

(32) Judgment of 10 June 1999, Braathens (C‑346/97, EU:C:1999:291, paragraph 25).

(33) Judgment of 24 February 2000, Commission v France (C‑434/97, EU:C:2000:98, paragraph 18).

(34) Judgment of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraphs 37 and 38).

(35) ‘Level of taxation’ is the total charge levied in respect of all indirect taxes (except VAT) calculated directly or indirectly on electricity at the time of release for consumption (Article 4(2) of Directive 2003/96).

(36) Judgments of 4 June 2015, Kernkraftwerke Lippe-Ems (C‑5/14, EU:C:2015:354, paragraph 58), and of 20 September 2017, Elecdey Carcelén and Others (C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraph 58).

(37) Judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraphs 28 and 29), and of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraph 39).

(38) According to specialised literature, that provision is unclear. See, for example, Berlin, D., Politique fiscale, Commentaire J. Mégret, vol. I, Éditions de l’Université de Bruxelles, 2012, p. 561.

(39) Judgments of 24 February 2000, Commission v France (C‑434/97, EU:C:2000:98, paragraph 19); of 9 March 2000, EKW and Wein & Co. (C‑437/97, EU:C:2000:110, paragraphs 31 and 33); of 10 March 2005, Hermann (C‑491/03, EU:C:2005:157, paragraph 16); of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraphs 23 and 27); and of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraphs 37 and 38).

(40) Judgments of 9 March 2000, EKW and Wein & Co. (C‑437/97, EU:C:2000:110, paragraph 35); of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 32).

and of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraph 42).

(42) Judgments of 9 March 2000, EKW and Wein & Co. (C‑437/97, EU:C:2000:110, paragraph 35); of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraphs 28 and 29); and of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraph 39).

(43) Loi n° 2015-1786 du 29 décembre 2015 de finances rectificative pour 2015 (JORF No 302, 2015, p. 24701). The explanatory memorandum on Article 3 of the legislative proposal for that law stated: ‘une partie des charges actuellement financées par la CSPE ne relèvent pas directement de la politique de transition énergétique, il s’agit de charges relatives aux tarifs sociaux, à la péréquation territoriale, à la cogénération et au budget du médiateur de l’énergie. Ces charges ne présentent pas de lien direct par nature avec les recettes issues de la fiscalité énergétique. Elles ont par ailleurs un caractère récurrent et seront désormais inscrites au budget général, sur un nouveau programme de la mission “Ecologie, développement et mobilité durable” dont les crédits seront inscrits en 2016 par coordination du projet de loi de finances actuellement examiné au Parlement’.

(44) During the passage of that law through parliament, a number of documents referred to the budgetary and non-specific nature of some of the aims of the CPEs and to the need to amend it [in order to put an end to the infringement of the EU legislation]. See reports Nos 229 and 263 (2014-2015) of the (parliamentary) Economic Affairs Committee, which include the following words: ‘En outre, sur le plan communautaire, il existe un risque réel de remise en cause de la CSPE actuelle avec un effet rétroactif potentiel qui se chiffrerait en milliards d’euros, au motif de son absence de finalité spécifique’‘le droit communautaire n’autorise ce type d’imposition que dès lors qu’elles poursuivent des fins spécifiques; or, la CSPE couvre aujourd’hui des charges multiples et dont la finalité “budgétaire” s’agissant au moins des mesures sociales ou de péréquation tarifaire, risquerait de n’être pas considérée comme spécifique par la Cour de justice de l’Union européenne si elle avait à en connaître’.

(45) Judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraphs 30 to 32), and of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraphs 43 to 46).

(46) Judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 32).

(47) In that connection, the CPES differs from the sales tax examined in the judgment of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraphs 43 to 46), which was levied on most goods and services sold to final consumers within the territory of the city of Tallinn and was allocated by the city of Tallinn for financing exercise of its power to organise public transport within its territory. The Court found that the Estonian legislation did not provide for any method of predetermined allocation of the revenue from that tax to environmental or public health purposes, in so far as it was levied on liquid fuel subject to excise duty. Therefore, there was no direct link between use of the revenue from that tax and those purposes.

(48) See document C(2017) 3406 final of 23 May 2017, State Aid SA.38635 (2014/NN) — Italy — Reductions of the renewable and cogeneration surcharge for electro-intensive users in Italy, p. 100: ‘the A3 component constitutes an indirect tax on electricity. Furthermore, it should be pointed out that the A3 component pursues a specific objective … namely financing of the support for RES and cogeneration installations’.

(49) According to the data from 2003 to 2015 provided by the Energy Regulation Commission (available at http://www.cre.fr/operateurs/service-public-de-l-electricite-cspe/montant#section2), approximately 70% of the revenue from the CPES was allocated to renewable energy and cogeneration, 25% to inter-territorial compensation and 5% to social purposes.

(50) Judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 32), and of 5 March 2015, Statoil Fuel & Retail (C‑553/13, EU:C:2015:149, paragraph 39).

(51) Judgments of 24 February 2000, Commission v France (C‑434/97, EU:C:2000:98, paragraph 27).

(52) It should be recalled that the tax rate had to be set annually by the competent ministry, on a proposal from the Energy Regulation Commission, within the limit of 7% of the basic sale price of electricity. However, that rate was set by statute the first three years and was then kept unchanged until 2010 by virtue of the tacit renewal mechanism laid down by law.

(53) In accordance with the first paragraph of Article 6 of Directive 92/12, ‘excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject to excise duty in accordance with Article 14(3)’. In accordance with Article 21(5) of Directive 2003/96, ‘for the purpose of applying Articles 5 and 6 of Directive 92/12/EEC, electricity and natural gas shall be subject to taxation and shall become chargeable at the time of supply by the distributor or redistributor’.

(54) Article 67 of the loi du 13 juillet 2005 de programme fixant les orientations de la politique énergétique (Programme Law establishing the direction of energy policy), in the version in force at the time.

(55) In accordance with that provision, provided the minimum levels of taxation prescribed in the directive are respected, Member States ‘may apply tax reductions on the consumption of … electricity … in favour of energy-intensive business’. The latter is defined, in principle, as a business entity ‘where either the purchases of energy products and electricity amount to at least 3,0% of the production value or the national energy tax payable amounts to at least 0,5% of the added value’. Article 17(1)(a) of Directive 2003/96 also provides that, ‘within this definition, Member States may apply more restrictive concepts, including sales value, process and sector definitions’.

(56) Point 35 of this Opinion.

(57) See, inter alia, judgments of 9 November 1983, San Giorgio (199/82, EU:C:1983:318, paragraph 12), and of 19 July 2012, Littlewoods Retail and Others (C‑591/10, EU:C:2012:478, paragraph 24).

(58) See, inter alia, judgments of 14 January 1997, Comateb and Others (C‑192/95 to C‑218/95, EU:C:1997:12, paragraph 20); of 19 July 2012, Littlewoods Retail and Others (C‑591/10, EU:C:2012:478, paragraph 24).

(59)

Judgments of 20 October 2011, Danfoss and Sauer-Danfoss (C‑94/10, EU:C:2011:674, paragraph 23), and of 14 June 2017, Compass Contract Services (C‑38/16, EU:C:2017:454, paragraph 31).

(60) See points 42 and 43 of this Opinion.

(61) Electricity suppliers cannot claim reimbursement of sums paid in respect of the CPES because they are operators which have passed on those sums to final consumers. Otherwise, they would be unjustly enriched, in breach of the case-law of the Court which states that, ‘by way of exception to the principle of the reimbursement of charges incompatible with EU law, the repayment of duties wrongly levied can be refused only if repayment would entail unjust enrichment of the persons concerned, that is to say, when it is established that the person required to pay such charges has actually passed them on to the purchaser directly’. See, in that connection, judgments of 6 September 2011, Lady & Kid and Others (C-398/09, EU:C:2011:540, paragraphs 18 and 20), and of 20 October 2011, Danfoss and Sauer-Danfoss (C-94/10, EU:C:2011:674, paragraphs 20 and 21).