FENS spol. s r.o. v Slovenská republika – Úrad pre reguláciu sieťových odvetví (C-305/17)

Contents

Judgment of the Court (Fourth Chamber)6 December 2018^note(Reference for a preliminary ruling — Free movement of goods — Customs duties — Charges having equivalent effect — Levy on the transmission of electricity generated within the national territory and intended for export — Compatibility of such legislation with the principle of free movement of goods)In Case C‑305/17,REQUEST for a preliminary ruling under Article 267 TFEU from the Okresný súd Bratislava II (District Court, Bratislava II, Slovakia), made by decision of 28 February 2017, received at the Court on 26 May 2017, in the proceedingsFENS spol. s r.o.vSlovak Republic — Úrad pre reguláciu sieťových odvetvíTHE COURT (Fourth Chamber),composed of T. von Danwitz, President of the Seventh Chamber, acting as President of the Fourth Chamber, K. Jürimäe, C. Lycourgos, E. Juhász (Rapporteur) and C. Vajda, Judges,Advocate General: E. Sharpston,Registrar: M. Aleksejev, Administrator,having regard to the written procedure and further to the hearing on 19 April 2018,after considering the observations submitted on behalf of:– FENS spol. s r. o., by A. Čižmáriková, advokátka,– the Slovak Government, by B. Ricziová, acting as Agent,– the Netherlands Government, by M. Bulterman and J. Langer, acting as Agents,– the European Commission, by M. Wasmeier and A. Tokár, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 5 July 2018,gives the following

Judgment

1The present request for a preliminary ruling concerns the interpretation of Articles 28 and 30 TFEU.

2The request has been made in the context of proceedings between FENS spol. s r.o., a limited liability company established in Slovakia, and the Slovenská republika (Slovak Republic), represented by the Úrad pre reguláciu sieťových odvetví (the Energy Regulation Authority; ‘the ÚRSO’), concerning a levy on the supply of electricity transmission services in respect of which the ÚRSO had sought payment from FENS’ predecessor.

Legal context

EU law

3Article 28(1) TFEU provides:‘The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.’

4Under Article 30 TFEU:‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.’

5Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37), features an Article 11, entitled ‘Dispatching and balancing’, paragraph 7 of which provides as follows:‘Rules adopted by transmission system operators for balancing the electricity system shall be objective, transparent and non-discriminatory, including rules for the charging of system users of their networks for energy imbalance. Terms and conditions, including rules and tariffs, for the provision of such services by transmission system operators shall be established pursuant to a methodology compatible with Article 23(2) in a non-discriminatory and cost-reflective way and shall be published.’

6Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment (OJ 2006 L 33, p. 22) provides in Article 1, entitled ‘Scope’:1.This Directive establishes measures aimed at safeguarding security of electricity supply so as to ensure the proper functioning of the internal market for electricity and to ensure:(a) an adequate level of generation capacity;(b) an adequate balance between supply and demand;and(c) an appropriate level of interconnection between Member States for the development of the internal market.2. It establishes a framework within which Member States are to define transparent, stable and non-discriminatory policies on security of electricity supply compatible with the requirements of a competitive internal market for electricity.’

7Article 5 of Directive 2005/89, entitled ‘Maintaining balance between supply and demand’, provides:1. Member States shall take appropriate measures to maintain a balance between the demand for electricity and the availability of generation capacity.In particular, Member States shall:(a) without prejudice to the particular requirements of small isolated systems, encourage the establishment of a wholesale market framework that provides suitable price signals for generation and consumption;(b) require transmission system operators to ensure that an appropriate level of generation reserve capacity is available for balancing purposes and/or to adopt equivalent market-based measures.2.Without prejudice to Articles 87 and 88 of the Treaty, Member States may also take additional measures, including but not limited to the following:(a) provisions facilitating new generation capacity and the entry of new generation companies to the market;(b) removal of barriers that prevent the use of interruptible contracts;(c) removal of barriers that prevent the conclusion of contracts of varying lengths for both producers and customers;(d) encouragement of the adoption of real-time demand management technologies such as advanced metering systems;(e) encouragement of energy conservation measures;(f) tendering procedures or any procedure equivalent in terms of transparency and non-discrimination in accordance with Article 7(1) of Directive 2003/54/EC.3. Member States shall publish the measures to be taken pursuant to this Article and shall ensure the widest possible dissemination thereof.’

Slovak law

8The Nariadenie vlády Slovenskej republiky č. 317/2007 Z. z., ktorým sa ustanovujú pravidlá pre fungovanie trhu s elektrinou (Regulation No 317/2007 of the Government of the Slovak Republic laying down rules for the functioning of the market in electricity), as in force at the material time (‘Government Regulation No 317/2007) provides as follows in Article 12, entitled ‘Terms regarding the supply of network services’:1. Network services are supplied by the transmission network operator according to technical conditions and the instructions of the electricity distribution centre, in return for auxiliary services purchased.2. Where the final consumer of electricity is connected to the transmission network, he shall pay the charge for the network services and the charge for the operation of the system to the transmission service operator, on the basis of a contract for transmission and access to the transmission network.3. Where the final consumer of electricity is not connected to the transmission network, he shall pay the charge for the network services and the charge for the operation of the system by the intermediary of the distribution network operator to which his consumption site is connected, on the basis of a contract for distribution and access to the distribution network.…9. The payment for network services in the case where the electricity is exported shall be made by the exporter of the electricity, unless he can prove that the exported electricity was imported into the specified territory.10. The payment for operating the system does not include electricity for the purposes of export.’

9Under Article 2(a)(2) of zákon č. 251/2012 Z. z. o energetike a o zmene a doplnení niektorých zákonov (Law No 251/2012 on energy, amending and supplementing certain laws), the territory defined is the territory of the Slovak Republic in which the transmission system or distribution system manager is required to guarantee the transmission or distribution of electricity, or the territory in which the transmission system or distribution system manager is required to guarantee the transmission or distribution of gas.

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

10FENS is the successor in title to Korlea Invest a.s. (‘Korlea’), a company declared insolvent during the legal proceedings in the context of which the present request for a preliminary ruling was introduced.

11Korlea was authorised to operate as a supplier in the Slovak electricity sector. Its activities included buying, selling and exporting electricity. In that context Korlea concluded a framework contract for buying and selling electricity with Slovenské elektrárne a.s., a Slovak company involved in the electricity-generating sector, taking effect from 15 August 2006, as well as several individual supply contracts. On 16 January 2008, Korlea concluded an electricity-transmission agreement with Slovenská elektrizačná prenosová sústava a.s. (‘SEPS’), a Slovak company managing the national electricity transmission network, under which the latter company undertook to provide, on behalf of Korlea, the transmission of electricity via interconnection lines and to manage and provide transmission services. The transmission agreement provided that, for the supply of network services for the export of electricity, Korlea was required to pay a fee, calculated in accordance with Article 12(9) of Government Regulation No 317/2007, unless it could demonstrate that the electricity exported had first been imported into Slovakia.

12Korlea paid SEPS a sum of EUR 6 815 853.415 in respect of that fee for the period from 1 January to 31 December 2008. That sum was calculated in accordance with an ÚRSO decision of 4 December 2007.

13By letter of 13 October 2008, Korlea requested that SEPS cease invoicing the aforementioned charge and refund the monies already paid in that respect. By letter of 30 October 2008, SEPS refused that request.

14In 2010 Korlea brought proceedings before the Okresný súd Bratislava II (District Court, Bratislava II, Slovakia) for damages directed against the ÚRSO, arguing, in particular, that the fee in question constituted a charge equivalent in effect to a customs duty. The ÚRSO contended that that fee was not such as to affect trade between Member States, but that its objective was to guarantee security of supply, reliability and stability of the Slovak energy network, particularly during the period prior to 2009, during which stability of the network was at risk because of the cessation of operation of two units at the Jaslovské Bohunice nuclear power plant (Slovakia). The ÚRSO also indicated that when the Slovak energy sector was once again stable — namely, as from 1 April 2009 — it had no longer applied the aforementioned fee.

15By judgment of 4 February 2011, that court dismissed the action. Korlea appealed that decision to the Krajský súd Bratislava (Bratislava Regional Court, Slovakia), which, by order of 15 August 2012, set aside that judgment and referred the case back to the court of first instance.

16In those circumstances, the Okresný súd Bratislava II (Bratislava II District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 30 TFEU be interpreted as precluding a national rule such as Article 12(9) of [Government Regulation No 317/2007] which introduces a specific pecuniary charge for the export of electricity from Slovak territory, regardless of whether that electricity is exported from Slovak territory to the Member States of the European Union or to third countries, in circumstances in which the electricity exporter fails to demonstrate that the electricity exported has been imported into Slovak territory, that is to say, a pecuniary charge levied solely on electricity generated in Slovakia and exported from it?(2) Must a pecuniary charge, such as the charge introduced by Article 12(9) of [Government Regulation No 317/2007], namely: a charge applied solely to electricity generated in Slovakia and at the same time exported from Slovak territory, regardless of whether it is exported to third countries or to the Member States of the European Union, be classified as a charge having equivalent effect to a customs duty within the meaning of Article 28(1) TFEU?(3) Is a rule of national law such as Article 12(9) of [Government Regulation No 317/2007] compatible with the principle of free movement of goods laid down by Article 28 TFEU?’

Consideration of the questions referred for a preliminary ruling

17By its questions, which it is appropriate to consider jointly, the referring court asks, in essence, whether Articles 28 and 30 TFEU must be interpreted as precluding legislation of a Member State which provides for a pecuniary charge, such as that at issue in the main proceedings, which is imposed on electricity exported to another Member State or to a third country only in the case where that electricity is generated within the national territory.

18Article 12(9) of Government Regulation No 317/2007 provides for payment for network services in the case where the electricity is exported at the expense of the electricity exporter, unless it can show that the electricity exported was imported into Slovak territory. It is also apparent from the case file submitted to the Court that the pecuniary charge which constitutes such a payment was imposed only temporarily and that it has no longer been applied since 1 April 2009.

The applicability of Articles 28 and 30 TFEU

19The Netherlands and Slovak Governments submit that the circumstances in the main proceedings are governed by secondary legislation. The former refers to certain provisions of Directive 2003/54 and the latter to certain provisions of Directive 2005/89.

20According to the Netherlands Government, the pecuniary charge at issue comes within the scope of Article 11(7) of Directive 2003/54, which permits system operators to impose charges on users of electricity transmission in the event of energy imbalance. The compatibility of such a charge with EU law must therefore be examined under that directive and not under primary law.

21The Slovak Government contends, for its part, that Article 5 of Directive 2005/89 expressly provides that Member States must take appropriate measures in order to maintain balance between the available generation capacity and electricity demand. In its view, the temporary introduction of the pecuniary charge at issue in the main proceedings, payable by domestic electricity exporters, specifically meets the objectives referred to in that article.

22In that regard, it should be noted that the Court has consistently held that, where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law (see, inter alia, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 57 and the case-law cited).

23In the present case, it must therefore be determined whether Article 11(7) of Directive 2003/54 and/or Article 5 of Directive 2005/89 have brought about exhaustive harmonisation capable of precluding examination of the compatibility of legislation such as that at issue in the main proceedings with Articles 28 and 30 TFEU.

24In that regard, it is noteworthy that Directive 2003/54, applicable at the date of the material facts, constituted one of the steps in the gradual completion of the internal electricity market throughout the European Union. Though it contributed to the creation of such an internal market, it in no way achieved the realisation of an internal market in electricity. The fact that Directive 2003/54 was repealed by Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity (OJ 2009 L 211, p. 55) supports that conclusion.

25With regard, in particular, to Article 11(7) of Directive 2003/54, it follows from the very terms used in that provision that the rules for charging system users of electricity networks in the event of energy imbalance must be objective, transparent and non-discriminatory. This provision thus merely defines the framework within which the transmission system operators set their charges, the imposition of which is therefore not exhaustively harmonised. Thus, Articles 28 and 30 TFEU must be taken into account in order to assess the compatibility with EU law of national measures such as those at issue in the main proceedings.

26Directive 2005/89 seeks, as follows from its Article 1(2), to establish a framework within which Member States are to define transparent, stable and non-discriminatory policies on security of electricity supply compatible with the requirements of a competitive internal market for electricity. Article 5 of that directive, invoked by the Slovak Government, refers to the adoption of ‘appropriate measures’ by the Member States. It is evident from these provisions that Member States retain a significant margin of latitude in this context and that the harmonisation achieved by that directive is not exhaustive in nature.

27It follows that Article 11(7) of Directive 2003/54 and Article 5 of Directive 2005/89 did not exhaustively harmonise the fields which they govern.

28In the light of the foregoing considerations, it is appropriate to proceed to the interpretation of Articles 28 and 30 TFEU.

Whether there is a charge equivalent in effect to a customs duty

29According to settled case-law of the Court, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect to a customs duty. By contrast, pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 110 TFEU, which prohibits discriminatory internal taxation (judgment of 14 June 2018, Lubrizol France, C‑39/17, EU:C:2018:438, paragraph 24 and the case-law cited).

30In that respect, it must be borne in mind that the FEU Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, with the result that a measure covered by Article 110 TFEU cannot, within the system of that Treaty, be classified as a ‘charge having equivalent effect’ (see, to that effect, judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 20 and the case-law cited) and that Article 110 TFEU relates not only to imported goods but also to exported goods (see, to that effect, judgment of 22 May 2003, Freskot, C‑355/00, EU:C:2003:298, paragraph 45 and the case-law cited).

31A pecuniary charge also escapes classification as a ‘charge having equivalent effect’ if it is levied, in certain circumstances, by reason of inspections carried out in order to comply with obligations imposed by EU law, or if it represents payment for a service actually provided to an operator which he is required to pay in an amount proportionate to that service (judgment of 14 June 2018, Lubrizol France, C‑39/17, EU:C:2018:438, paragraph 26 and the case-law cited).

32It is necessary, therefore, to determine whether the pecuniary charge at issue in the main proceedings meets the definition of a charge having equivalent effect to a customs duty, as follows from the factors set out in paragraphs 29 to 31 of the present judgment.

33In that regard, it should be observed, first, that the charge at issue in the main proceedings constitutes a pecuniary charge unilaterally imposed by a Member State. As the purpose for which such a charge is imposed is irrelevant, it does not matter that it relates to charges for certain electricity network transmission services (see, to that effect, judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 14 and the case-law cited).

34Second, it must be observed that electricity constitutes a product within the meaning of EU law and that a tax imposed, not on a product as such, but on an activity necessary for doing business with that product, such as, as in the case in the main proceedings, network services, may come within the scope of provisions on the free movement of goods. Thus, where a tax is calculated on the basis of the number of kWh transmitted and not on the basis of the distance for which the electricity is transmitted or according to any other criterion directly connected with transmission, it must be treated as having been imposed on the product itself (see, to that effect, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 43 and 44 and the case-law cited).

35In the case in the main proceedings, as the charge in question was calculated on the basis of the number of kWh transmitted, it must be regarded as having been levied on goods.

36It is necessary to determine, thirdly, whether that charge is levied on those goods by reason of the fact that they cross a border or whether, on the contrary, it results from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of goods irrespective of their origin or intended purpose.

37In that regard, the Court has already held that the essential feature of a charge having equivalent effect to a customs duty which distinguishes it from a general internal tax is that the former is borne solely by a product which crosses a frontier, as such, whereas the latter is borne by imported, exported and domestic products (judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 28).

38In the present case, it is apparent from the formulation of the questions posed that the charge in the main proceedings is levied solely on electricity generated in Slovakia and subsequently exported. It follows that it is imposed by reason of the fact that the electricity crosses a border.

39The Slovak Government argues, however, that Government Regulation No 317/2007 provides for an identical charge to be levied on electricity consumed in Slovakia, regardless of the origin of the electricity. For that reason, the electricity generated in Slovakia and subsequently exported is, it argues, treated in the same way as electricity generated in Slovakia and consumed in that country.

40Nevertheless, even if the two categories of electricity were subject to the same system, it must also be noted that, in order to relate to a general system of ‘internal taxation’, within the meaning of Article 110 TFEU, the tax charge in question must impose the same duty on both domestic goods and identical exported goods at the same marketing stage and the chargeable event triggering the duty must also be identical (judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 29 and the case-law cited).

41While, according to the Slovak Government’s contentions, it is, in particular, the end customer who pays the pecuniary charge in question for electricity consumed in Slovakia, it is common ground that, in the case of exported electricity, it is the exporter of the electricity who pays that charge. Thus, the charge in question in the main proceedings is levied on electricity generated in Slovakia on account of its being consumed in that country, or, where the latter is exported for the purpose of subsequently being consumed in another country, on account of its being exported. In those circumstances, it must be noted that this pecuniary charge is not levied at the same commercial stage on electricity exported and electricity consumed within that Member State.

42It should be noted, fourthly, that it is not clear from the documents submitted to the Court whether the pecuniary charge at issue in the main proceedings is levied by reason of inspections carried out in order to comply with obligations imposed by EU law or whether it constitutes consideration for a service actually provided to an operator, in an amount proportionate to that service.

43In this respect, it should be pointed out that, while the Court has accepted that a charge that represents payment for a service actually provided to an economic operator required to pay it, in an amount that is proportionate to that service, does not constitute a charge having equivalent effect to a customs duty (judgment of 9 September 2004, Carbonati Apuani, C‑72/03, EU:C:2004:506, paragraph 31), the fact remains that, as the Advocate General noted in point 66 of her Opinion, in order for the charge to fall outwith the scope of Article 28 TFEU, the service provided must confer a specific benefit on the individual exporter, a benefit to the public interest being too general in nature and difficult to assess to be regarded as the consideration for a benefit actually conferred (see, to that effect, judgments of 1 July 1969, Commission v Italy, 24/68, EU:C:1969:29, paragraph 16, and of 27 September 1988, Commission v Germany, 18/87, EU:C:1988:453, paragraph 7).

44However, the Slovak Government, while stating in its written observations that that pecuniary charge had been levied for a network service which was actually provided to exporters, has failed to substantiate this part of its case by additional elements capable of establishing that the charge at issue represented such a specific benefit.

45It is also not clear from the other material in the file whether a pecuniary charge imposed in order to maintain balance between the available generation capacity and electricity demand is capable of constituting consideration for a service conferring a specific benefit.

46In those circumstances, a pecuniary charge such as that in issue in the main proceedings, levied on electricity exported both to another Member State other than the Slovak Republic and to third countries, constitutes a charge having equivalent effect within the meaning of Article 28 TFEU.

47This finding holds good both for electricity exported to another Member State and for electricity exported to a third country.

48To the extent that such a pecuniary charge is levied on exports to other Member States, it comes within the scope of Articles 28 and 30 TFEU and, to the extent that it is levied on exports to third countries, it comes within the scope of Article 28 TFEU.

49With more particular regard to exports to third countries, it should be noted that under Article 3(1)(a) and (e) TFEU the European Union has exclusive competence in the areas of the customs union and the common commercial policy and that, in accordance with Article 207(1) TFEU, the common commercial policy is based on uniform principles, particularly with regard to changes in tariff rates, as well as the conclusion of tariff and trade agreements relating to trade in goods and services.

50The uniformity of the common commercial policy would be seriously undermined if Member States were authorised unilaterally to impose charges having equivalent effect to customs duties on exports to third countries.

51It follows that, as the European Commission has noted, Member States do not have any power allowing them unilaterally to introduce charges having an effect equivalent to customs duties on exports to third countries (see, by analogy, judgment of 26 October 1995, SIESSE, C‑36/94, EU:C:1995:351, paragraph 17).

Possible justification for this charge on exports

52The Netherlands Government submits that the objective of safeguarding security of supply constitutes, as the Court has already recognised in its judgment of 22 October 2013, Essent and Others (C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 59 and the case-law cited), an overriding reason in the public interest.

53In this regard, it is settled case-law that the prohibition in Article 28 TFEU is of a general and absolute nature (see, to that effect, judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 14 and the case-law cited). The FEU Treaty does not provide for any derogations and the Court has held that it follows from the clarity, imperative nature and unrestricted scope of the provisions of relevant primary law that the prohibition of customs duties constitutes an essential rule and that any exception must therefore be clearly provided for. The Court has also stated that the concept of a ‘charge having equivalent effect to a customs duty’ is the necessary complement to the prohibition of customs duties (see, to that effect, judgment of 14 December 1962, Commission v Luxembourg and Belgium, 2/62 and 3/62, EU:C:1962:45, at page 432).

54The Court has also taken the view that the derogations from Articles 34 and 35 TFEU provided for in Article 36 TFEU cannot be applied by analogy in the context of customs duties and charges having equivalent effect (see, to that effect, judgment of 10 December 1968, Commission v Italy, 7/68, EU:C:1968:51, at page 430).

55Those considerations hold good both for the prohibition of charges having equivalent effect to a customs duty on exports to other Member States and for the prohibition of such charges on exports to third counties.

56It follows that, as the pecuniary charge in question must be regarded as being a charge having equivalent effect to customs duties, it cannot have any justification.

57It follows from the foregoing that Articles 28 and 30 TFEU must be interpreted as precluding legislation of a Member State under which a pecuniary charge, such as that at issue in the main proceedings, is imposed on electricity exported to another Member State or to a third country solely in cases where the electricity was generated within the national territory.

Costs

58Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules: Articles 28 and 30 TFEU must be interpreted as precluding legislation of a Member State under which a pecuniary charge, such as that at issue in the main proceedings, is imposed on electricity exported to another Member State or to a third country solely in cases where the electricity was generated within the national territory.