8.5.2017

Official Journal of the European Union

C 144/31

(Case C-90/17)

(2017/C 144/40)

Language of the case: Portuguese

Referring court

Parties to the main proceedings

Applicant: Turbogás — Produtora Energética, SA

Defendant: Autoridade Tributária e Aduaneira

Questions referred

1.Pursuant to and for the purposes of the third paragraph of Article 21(5) of Directive 2003/96/EC, must entities which produce electricity for their own use be small producers in order for them to be … regarded as distributors, and [thus] subject to tax in accordance with the first paragraph of Article 21(5) of that directive, so that other entities (those which are not small producers) which produce electricity for their own use are excluded from that classification as distributors, or must all entities which produce electricity for their own use (regardless of their respective size and of whether they do so as their main or secondary economic activity), and are not exempt as small producers under the second sentence of the third paragraph of Article 21(5) of that directive, be regarded as distributors, and [thus] subject to tax in accordance with the first paragraph of Article 21(5) of that directive?

2.In particular, may an entity, such as the one at issue in these proceedings, which is a large electricity producer, producing around 9 % of the national energy for sale to the national grid, be regarded as ‘an entity producing electricity for its own use’, as referred to in Article 21(5) of Directive 2003/96/EC, when only a small part of the electricity which it produces is consumed in its own production of new electricity as an integral part of its production process?

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.