3 December 2020 (*1)

(Reference for a preliminary ruling – Directive 2003/96/EC – Taxation of energy products and electricity – Article 21(3) – Absence of chargeable event giving rise to taxation – Consumption of energy products within the curtilage of an establishment in which they were produced for the production of final energy products from which non-energy products are also inevitably produced)

In Case C‑44/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 27 June 2018, received at the Court on 24 January 2019, in the proceedings

Repsol Petróleo SA

Administracíon General del Estado,

THE COURT (Fifth Chamber),

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

Advocate General: M. Szpunar,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 4 March 2020,

after considering the observations submitted on behalf of:

–Repsol Petróleo SA, initially by F. Bonastre Capell and M. Muñoz Pérez, and subsequently by F. Bonastre Capell and M. Linares Gil, abogados,

–the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

–the Czech Government, by M. Smolek, O. Serdula and J. Vláčil, acting as Agents,

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

after hearing the Opinion of the Advocate General at the sitting on 23 April 2020,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 21(3) 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).

2The request has been made in proceedings between Repsol Petróleo SA (‘Repsol’) and the Administracíon General del Estado (General State Administration, Spain) concerning the latter’s decision to impose excise duties on mineral oils on the consumption, for the purposes of production, of mineral oils which Repsol has itself produced, in so far as that production has generated residual products other than energy products.

Legal context

European Union law

Directive 92/81/EEC

Article 4(3) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12) provides:

‘The consumption of mineral oils within the curtilage of an establishment producing mineral oils shall not be considered a chargeable event giving rise to excise duty as long as the consumption is for the purpose of such production. However, where such consumption is for purposes not related to that production and in particular for the propulsion of vehicles, this shall be considered a chargeable event giving rise to excise duty.’

Recitals 3 to 5 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.

(4) Appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to the proper functioning of the internal market.

(5) The establishment of appropriate Community minimum levels of taxation may enable existing differences in the national levels of taxation to be reduced.’

Article 1 of that directive provides:

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

For the purposes of the application of Directive 2003/96, Article 2(1) thereof sets out the products which are considered as being ‘energy products’.

In accordance with Article 2(4)(b), first indent, of Directive 2003/96, that directive does not apply to the use of energy products for purposes other than use as motor fuels or as heating fuels.

Article 21(3) of that directive is worded as follows:

‘The consumption of energy products within the curtilage of an establishment producing energy products shall not be considered as a chargeable event giving rise to taxation, if the consumption consists of energy products produced within the curtilage of the establishment. Member States may also consider the consumption of electricity and other energy products not produced within the curtilage of such an establishment and the consumption of energy products and electricity within the curtilage of an establishment producing fuels to be used for generation of electricity as not giving rise to a chargeable event. Where the consumption is for purposes not related to the production of energy products and in particular for the propulsion of vehicles, this shall be considered a chargeable event, giving rise to taxation.’

Spanish law

Article 47 of the Ley 38/1992 Impuestos Especiales (Law 38/1992 on excise duties) of 28 December 1992 (BOE No 312, of 29 December 1992, p. 44305), in the version applicable to the case in the main proceedings (the ‘LIE’), entitled ‘Exemptions’, provides, in paragraph 1(b):

‘Self-consumption, including:

…

the use of mineral oils as fuel in the process of producing mineral oils under an excise duty suspension arrangement

shall not be subject to taxation.’

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

Repsol, a company incorporated under Spanish law, engages, inter alia, in the production of energy products by the process of refining crude oil. Aside from energy products, the refinement process generates other products which are sold and used in the chemical industry and are partly reused in the production process.

Repsol, a company incorporated under Spanish law, engages, inter alia, in the production of energy products by the process of refining crude oil. Aside from energy products, the refinement process generates other products which are sold and used in the chemical industry and are partly reused in the production process.

On 2 April 2012, following an inspection carried out in 2011, the Spanish tax administration issued a tax notice ordering Repsol to pay the excise duty on mineral oils, for the 2007 and 2008 tax years, on the mineral oils which that undertaking has produced itself and subsequently used in its own facilities for the purposes of production, in so far as that production has generated residual products other than energy products such as, inter alia, sulphur and carbon dioxide.

12According to the Spanish tax administration, that self-consumption does not give rise to the exemption from the excise duty on mineral oils, laid down in Article 47(1)(b) of the LIE, for the portion of that self-consumption leading to the production of products which are not mineral oils.

13On 25 April 2012, Repsol brought an action against that notice before the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain) claiming, in particular, that that self-consumption is exempt from the excise duty on mineral oils, including the portion of that self-consumption leading to the production of products which are not mineral oils.

14On 6 November 2015, following the dismissal of that action, Repsol lodged an administrative appeal before the Audiencia Nacional (National High Court, Spain), by which it claimed that, in the context of the process of producing mineral oils, products which cannot be categorised as energy products, such as sulphur, are obtained in a residual and inevitable manner. The production of sulphur results from the process consisting of extracting that product from mineral oils, and the objective of that process is to meet the technical specifications applicable to mineral oils, which set maximum levels of sulphur content.

15By a decision of 12 December 2016, the Audiencia Nacional (National High Court) dismissed Repsol’s appeal in that it sought to challenge the taxation of self-consumption of mineral oils having generated non-energy products.

16On 10 July 2017, Repsol lodged an appeal on a point of law against that decision before the referring court, the Tribunal Supremo (Supreme Court, Spain). Before that court, Repsol argued that the objective of Article 21(3) of Directive 2003/96/EC is to submit to taxation only energy products released for consumption, excluding those intended for self-consumption, that is to say those used for the production of other energy products, even if, as a result of that production process, non-energy residual products are inevitably obtained. Accordingly, Repsol argues, the Spanish tax administration’s practice of submitting to taxation the portion of self-consumption having generated those residual products is contrary to the objective of Directive 2003/96.

17According to Repsol, that practice could have been justified under Article 4(3) of Directive 92/81, which exempted from taxation the consumption of mineral oils carried out for the purposes of producing mineral oils. In contrast, Directive 2003/96, which repealed Directive 92/81, provides only, in Article 21(3), that the consumption of energy products is exempt from taxation where that consumption takes place within the curtilage of an establishment producing energy products.

18According to the referring court, the question arises whether the removal of the words ‘for the purpose of such production’, which appear in Article 4(3) of Directive 92/81, from the wording of Article 21(3) of Directive 2003/96, must be regarded as a legislative amendment meaning that the consumption of energy products within the curtilage of an establishment in which they have been produced for the purposes of the production of final energy products, whereby non-energy products are inevitably produced, is also exempt from excise duty.

In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 21(3) of Directive 2003/96 be interpreted as meaning that it permits the self-consumption of energy products within the curtilage of the producer to be made subject to the excise duty on mineral oils in the proportion in which non-energy products are obtained? Or, on the contrary, does the purpose of that provision, which is to exclude from taxation the use of energy products that is deemed necessary for obtaining final energy products, preclude the taxation of that self-consumption in so far as it results in the production of other non-energy products, even when such production is residual and occurs inevitably as a result of the production process itself?’

Consideration of the question referred

20By the two parts of its question referred for a preliminary ruling, the referring court asks, in essence, whether the first sentence of Article 21(3) of Directive 2003/96 must be interpreted as meaning that, where an establishment producing energy products intended to be used as motor fuel or as heating fuel consumes energy products that it has itself produced, and that, by that process, also inevitably obtains non-energy products, the portion of the consumption leading to the production of such non-energy products falls within the exemption concerning the chargeable event giving rise to the taxation of energy products provided for in that provision.

21As a preliminary point, it must be recalled that the objective of Directive 2003/96 is, as is apparent from recitals 3 to 5 and Article 1 thereof, to create a system of harmonised taxation for energy products and electricity, within the framework of which taxation is the rule, in accordance with the conditions set out in that directive.

22In accordance with the first sentence of Article 21(3) of Directive 2003/96, the consumption of energy products within the curtilage of an establishment producing energy products is not considered as a chargeable event giving rise to taxation on energy products if the consumption consists of energy products produced within the curtilage of the establishment. The third sentence of that paragraph stipulates that, where the consumption of energy products is for purposes not related to the production of energy products, it is considered to be a chargeable event giving rise to taxation.

23The wording of Article 21(3) of Directive 2003/96 does not explicitly state to what extent the consumption of energy products for the purposes of a production process in which energy products and non-energy products are simultaneously obtained must or must not be regarded as a chargeable event giving rise to taxation on energy products.

24By stipulating that the consumption of energy products within the curtilage of the establishment in which they were produced is not, under certain conditions, considered to be a chargeable event giving rise to that taxation, the first sentence of Article 21(3) of that directive constitutes an exemption provision within that tax system which must be interpreted strictly (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraph 37).

25In that regard, it should be noted, first, that the consumption of energy products within the curtilage of an establishment in which they were produced falls within the exemption concerning events giving rise to taxation, under the first sentence of Article 21(3) of that directive, only if they are used for the purpose of producing energy products which themselves fall within the system of harmonised taxation established by Directive 2003/96, as a result of their use as motor fuel or as heating fuel (see, to that effect, judgment of 6 June 2018, Koppers Denmark, C‑49/17, EU:C:2018:395, paragraphs 32 and 37).

26In the present case, it does not appear to be in dispute that the energy products obtained, in the case in the main proceedings, are intended to be used as motor fuel or as heating fuel, which is, however, for the referring court to determine. Furthermore, it is apparent from the order for reference that the non-energy products obtained in the case in the main proceedings are valued by Repsol, via their commercialisation or reuse in the production process. It is on the basis of those considerations that the question referred must be answered.

Second, the Court has already established that, where multiple products are produced by an establishment, in order to assess whether or not the consumption of energy products is capable of falling within the scope of the exemption laid down in the first sentence of Article 21(3) of Directive 2003/96, it is necessary to focus on the various purposes of such consumption (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraph 25).

In relation to that consumption, it is important to distinguish the portions of energy products consumed in accordance with their uses for the purpose of their treatment with regard to excise duty. Only the consumption of the portion of energy products for the production of energy products intended for use as motor fuel or as heating fuel falls within the scope of the exemption concerning the chargeable event giving rise to taxation, laid down in the first sentence of Article 21(3) of that directive (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraphs 26 and 27).

In contrast, the consumption of the portion of those energy products which result in the production of non-energy products or of energy products not intended for use as motor fuel or as heating fuel cannot benefit from such an exemption. Accordingly, the Court has held that neither energy products consumed in order to produce heat used to heat the premises of an establishment, nor those needed in order to generate electricity, can benefit from such an exemption (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraphs 26 and 33).

It follows that where both energy products intended for use as motor fuel or as heating fuel and non-energy products are obtained by a production process, it must be considered, in principle, that the portion of energy products consumed in the process to produce other energy products intended for use as motor fuel or as heating fuel falls within the exemption laid down in the first sentence of Article 21(3) of Directive 2003/96, whereas the consumption of the other portion for the production of non-energy products must be considered as a chargeable event giving rise to the tax on energy products.

That being so, it is necessary to examine whether that is also the case where, as here, obtaining non-energy products is not the aim of the production process, but a residual and inevitable consequence of that process or where their production is imposed by legislation aimed at protecting the environment and where those non-energy products have economic value.

Admittedly, the Court has held, in paragraph 30 of the judgment of 7 November 2019, Petrotel-Lukoil (C‑68/18, EU:C:2019:933) that it can be inferred from the negative wording of the third sentence of Article 21(3) of Directive 2003/96 that it is only designed to exclude from benefiting from the exemption concerning the chargeable event giving rise to the tax on energy products the consumption of energy products which have no link with the production of energy products.

However, that case concerned the application of Article 21(3) of Directive 2003/96 to energy products used for the production of steam, which, in turn, was used for the manufacture of energy products. The self-consumption thus aimed to produce energy products by generating the thermal energy necessary for the technological process of producing those products.

In that context, that finding sought to preclude an interpretation whereby the production of energy products, which is carried out by means of producing an intermediate product, such as steam, renders the exemption concerning the chargeable event giving rise to taxation laid down by that directive inapplicable solely due to that intermediary. The Court has made clear in that regard that the consumption of energy products cannot, solely on account of its form, be deprived of the benefit of that exemption, provided that it contributes to the technological process of producing energy products (see, to that effect, judgment of 7 November 2019, Petrotel-Lukoil, C‑68/18, EU:C:2019:933, paragraphs 28 and 30).

However, in contrast to the case which gave rise to that judgment, the case in the main proceedings does not concern self-consumption which, through the production of an intermediary product, is used for the production of energy products. This case concerns self-consumption which simultaneously leads to the production of energy products and to the production of non-energy products that have economic value.

It should be noted that Repsol has, with regard to that economic value, made the choice to put on the market the subsequent non-energy products or to use them in the production process. In that context, as the Advocate General stated in point 40 of his Opinion, it is irrelevant that the production of products which are not energy products is, as in the case in the main proceedings, residual and inevitable, in the sense that it is a necessary consequence of the production process, or that that production is required by legislation seeking to protect the environment.

An interpretation according to which, whereas economic value is derived from the non-energy products thus generated, the entirety of the consumption of energy products in the production process would benefit – counter to the principles recalled in paragraph 30 of the present judgment – from the exemption concerning the chargeable event giving rise to the tax would be such as to undermine attaining the objective of Directive 2003/96. In that respect, it should be recalled that, by laying down a system of harmonised taxation of energy products and electricity, that directive seeks, as is clear from recitals 3 to 5 thereof, to promote the proper functioning of the internal market in the energy sector, in particular by avoiding distortions of competition (see, to that effect, judgment of 30 January 2020, Autoservizi Giordano, C‑513/18, EU:C:2020:59, paragraph 30 and the case-law cited).

However, in contrast to the case which gave rise to that judgment, the case in the main proceedings does not concern self-consumption which, through the production of an intermediary product, is used for the production of energy products. This case concerns self-consumption which simultaneously leads to the production of energy products and to the production of non-energy products that have economic value.