Contents
Judgment of the Court (Fifth Chamber)30 May 2024note(Reference for a preliminary ruling — Taxation of energy products and electricity — Directive 2003/96/EC — Article 5 — Excise duty on mineral oils — Regional rate of excise duties on mineral oils on top of the national rate — Differentiated rates of excise duties in the territory of a Member State according to the region in which the product is consumed)In Case C‑743/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Supreme Court, Spain), made by decision of 15 November 2022, received at the Court on 1 December 2022, in the proceedingsDISA Suministros y Trading SLU (DISA)vAgencia Estatal de Administración Tributaria,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, Z. Csehi (Rapporteur), M. Ilešič, I. Jarukaitis and D. Gratsias, Judges,Advocate General: A. Rantos,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– DISA Suministros y Trading SLU (DISA), by J.C. García Muñoz, abogado,– the Spanish Government, by A. Gavela Llopis and M. Morales Puerta, acting as Agents,– the European Commission, by A. Armenia and C. Urraca Caviedes, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 25 January 2024,gives the following
Judgment
1This reference for a preliminary ruling concerns the interpretation 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), as amended by Council Directive 2004/74/EC of 29 April 2004 (OJ 2004 L 157, p. 87, and corrigendum OJ 2004 L 195, p. 26), and by Council Directive 2004/75/EC of 29 April 2004 (OJ 2004 L 157, p. 100, and corrigendum OJ 2004 L 195, p. 31) (‘Directive 2003/96’), in particular Article 5 thereof.
2The request has been made in proceedings between DISA Suministros y Trading SLU (‘DISA’) and the Agencia Estatal de Administración Tributaria (State Tax Administration Agency, Spain) concerning claims for reimbursement of taxes paid by DISA as a result of an additional rate of taxation adopted by an autonomous community, applicable to the excise duty on mineral oils.
Legal context
European Union law
Directive 2003/96
3Recitals 2 to 5, 9, 11, 15 and 24 of Directive 2003/96 state:(2) The absence of Community provisions imposing a minimum rate of taxation on electricity and energy products other than mineral oils may adversely affect the proper functioning of the internal market.(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.…(9) Member States should be given the flexibility necessary to define and implement policies appropriate to their national circumstances.…(11) Fiscal arrangements made in connection with the implementation of this Community framework for the taxation of energy products and electricity are a matter for each Member State to decide. ……(15) The possibility of applying differentiated national rates of taxation to the same product should be allowed in certain circumstances or permanent conditions, provided that Community minimum levels of taxation and internal market and competition rules are respected.…(24) Member States should be permitted to apply certain other exemptions or reduced levels of taxation, where that will not be detrimental to the proper functioning of the internal market and will not result in distortions of competition.’
4Article 1 of that directive provides:‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’
5Article 2 of that directive is worded as follows:1.For the purposes of this Directive, the term “energy products” shall apply to products:…(b) falling within CN codes 2701, 2702 and 2704 to 2715;…’
6Article 3 of Directive 2003/96 provides:‘References in [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 (OJ 1992 L 76, p. 1)] to “mineral oils” and “excise duty”, in so far as [they apply] 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.’
7Article 5 of Directive 2003/96 provides:‘Provided that they respect the minimum levels of taxation prescribed by this Directive and that they are compatible with Community law, differentiated rates of taxation may be applied by Member States, under fiscal control, in the following cases:– when the differentiated rates are directly linked to product quality;– when the differentiated rates depend on quantitative consumption levels for electricity and energy products used for heating purposes;– for the following uses: local public passenger transport (including taxis), waste collection, armed forces and public administration, disabled people, ambulances;– between business and non-business use, for energy products and electricity referred to in Articles 9 and 10.’
8Article 6 of that directive provides:‘Member States shall be free to give effect to the exemptions or reductions in the level of taxation prescribed by this Directive either:(a) directly,(b) by means of a differentiated rate,or(c) by refunding all or part of the amount of taxation.’
9Article 7(2) and Articles 15 to 18b of that directive provide, inter alia, that Member States may, under certain conditions, introduce differentiated rates, total or partial exemptions, reductions in the level of taxation or transitional periods to enable those States to reach the minimum levels of taxation prescribed by that directive.
10Article 18(1) of Directive 2003/96 states:‘By way of derogation from the provisions of the present Directive, the Member States specified in Annex II are authorised to continue to apply the reductions in the levels of taxation or the exemptions set out in that Annex.Subject to a prior review by the Council [of the European Union], on the basis of a proposal from the [European] Commission, this authorisation was to expire on 31 December 2006 or on the date specified in Annex II.’
11Article 18(7) and (8) of Directive 2003/96 provides as follows:7. The Portuguese Republic may apply levels of taxation on energy products and electricity consumed in the Autonomous Regions of the Azores and Madeira lower than the minimum levels of taxation laid down in this Directive in order to compensate for the transport costs incurred as a result of the insular and dispersed nature of these regions.…8. The Hellenic Republic may apply levels of taxation up to EUR 22 per 1000 l lower than the minimum rates laid down in this Directive on gas oil used as propellant and on petrol consumed in the departments of Lesbos, Chios, Samos, the Dodecanese and the Cyclades and on the following islands in the Aegean: Thasos, North Sporades, Samothrace and Skiros.…’
12Article 19 of that directive is worded as follows:1. In addition to the provisions set out in the previous Articles, in particular in Articles 5, 15 and 17, the Council, acting unanimously on a proposal from the Commission, may authorise any Member State to introduce further exemptions or reductions for specific policy considerations.A Member State wishing to introduce such a measure shall inform the Commission accordingly and shall also provide the Commission with all relevant and necessary information.The Commission shall examine the request, taking into account, inter alia, the proper functioning of the internal market, the need to ensure fair competition and Community health, environment, energy and transport policies.…3. If the Commission considers that the exemptions or reductions provided for in paragraph 1 are no longer sustainable, particularly in terms of fair competition or distortion of the operation of the internal market, or in terms of Community policy in the areas of health, protection of the environment, energy and transport, it shall submit appropriate proposals to the Council. The Council shall take a unanimous decision on these proposals.’
13Annex II to that directive, entitled ‘Reduced rates of taxation and exemptions from such taxation referred to in Article 18(1)’, provides, in the third indent of point 6 and the tenth, twelfth, thirteenth and fifteenth indents of point 8 thereof:6.France:…– for consumption on the island of Corsica, provided that the reduced rates at all times respect the minimum rates of duty on mineral oils as provided for under Community law;– …8.Italy:…– in certain particularly disadvantaged geographical areas, for reduced rates of excise duty on domestic fuel and LPG used for heating and distributed through the networks of such areas, provided that the rates are in accordance with the obligations laid down in this Directive, and in particular the minimum rates of excise duty;– …– for a reduction in the rate of excise duty on petrol consumed on the territory of Friuli-Venezia Giulia, provided that the rates are in accordance with the obligations laid down in this Directive, and in particular the minimum rates of excise duty;– for a reduction in the rate of excise duty on mineral oils consumed in the regions of Udine and Trieste, provided that the rates are in accordance with the obligations laid down in this Directive;– …– for a reduction in the rate of excise duty on fuel oil, for the production of steam, and for gas oil, used in ovens for drying and “activating” molecular sieves in Reggio Calabria, provided that the rates are in accordance with the obligations laid down in this Directive;…’
Directive 2008/118/EC
14Article 1(1) and (2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) 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];…2. Member States may levy other indirect taxes on excise goods for specific purposes, provided that those taxes comply with the Community tax rules applicable for excise duty or value added tax [(VAT)] as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions.’
Spanish law
15Article 50ter of Ley 38/1992 de Impuestos Especiales (Law 38/1992 on excise duties) of 28 December 1992 (‘the Law on excise duties’), entitled ‘Autonomous community rate of taxation’, provides, in the version applicable to the dispute in the main proceedings:1. The autonomous communities may establish a regional rate of excise duty on mineral oils, in order to levy additional tax on the goods to which the rates of taxation referred to in paragraphs … apply, and which are consumed in their respective territories. The regional rate shall be applied in accordance with this law and within the limits and subject to the conditions laid down in the rules governing the financing of the autonomous communities.2. The applicable regional rate of taxation shall be that corresponding to the autonomous community in whose territory the final consumption of the taxable goods takes place. …’
16Article 50ter of the Law on excise duties was in force from 2013 to 2018. It was repealed with effect from 1 January 2019 by Ley 6/2018 de Presupuestos Generales del Estado para 2018 (Law 6/2018 on the General State Budget for 2018) of 3 July 2018, the explanatory memorandum to which states, inter alia:‘In relation to excise duties, the regional rate of the duty on mineral oils is included in the special State rate in order to ensure a unified market in the field of fuels and propellants, without that measure adversely affecting the resources of the autonomous communities and within the Community legal framework.’
The dispute in the main proceedings and the question referred for a preliminary ruling
17Several economic operators subject to excise duty on mineral oils submitted self-assessment declarations for the periods between 2013 and 2015 and passed the amount on to DISA, which is engaged in the purchase, sale, import and wholesale marketing of petroleum products.
18During that period, as is apparent from paragraph 15 above, the national legislation authorised, in addition to the national tax, the rate of which was uniform throughout the national territory, an additional regional tax, the rate of which was set by each autonomous community for the mineral oils consumed on its territory (‘the regional rate of excise duty on mineral oils’). As is apparent from paragraph 16 above, that regional rate of excise duty on mineral oils was repealed with effect from 1 January 2019. Since its repeal, the Kingdom of Spain has introduced an alternative system, which provides for a uniform rate throughout its national territory.
19After paying the excise duty on mineral oils, DISA requested the tax authority to adjust the self-assessment declarations of the operators in question and claimed reimbursement of the amounts corresponding to the application of the regional rate of excise duty on mineral oils.
20In support of its claims, DISA argued that the regional rate of excise duty on mineral oils which the autonomous communities could set pursuant to Article 50ter of the Law on excise duty, in force since 1 January 2013, was contrary to EU law in that it infringed certain provisions of Directive 2003/96, in particular Article 5 thereof, on the ground that it did not correspond to the derogations provided for by that provision for the purpose of applying differentiated rates of taxation and that it was contrary to the objective of unified taxation of energy products and electricity pursued by that directive.
21Those claims were rejected by the Oficina Gestora de Impuestos Especiales de Santa Cruz de Tenerife (Office for the Management of Excise Duties, Santa Cruz de Tenerife, Spain) on the ground that it was not for that office to rule on whether or not a provision of national law infringed EU law.
22DISA lodged complaints against the decisions rejecting those claims. Those complaints were rejected by the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain).
23DISA subsequently brought an action challenging those decisions of the Tribunal Económico-Administrativo Central (Central Tax Tribunal) before the chamber dealing with administrative litigation of the Audiencia Nacional (National High Court, Spain).
24By a judgment of 25 November 2020, the Audencia Nacional (National High Court) dismissed that action. While acknowledging that the legal doubts raised by the interpretation of Directive 2003/96 could have led it to submit a request for a preliminary ruling, that court rejected the claim for reimbursement on the ground that DISA had not shown that it had not passed on those amounts to third parties, which, if the reimbursement sought had been granted, would have resulted in its unjust enrichment.
25DISA brought an appeal on a point of law against the judgment of 25 November 2020 of the Audiencia Nacional (National High Court) before the Tribunal Supremo (Supreme Court), which is the referring court.
26That court notes that the outcome of the dispute before it turns on the interpretation of Directive 2003/96 and the effect of that interpretation on the compliance of the regional rate of excise duties on mineral oils with that directive.
27It takes the view that neither Directive 2003/96 nor the case-law of the Court provides a clear interpretation of that directive, in particular Article 5 thereof, in order to determine whether and, if so, under what conditions that directive precludes the introduction within a Member State of differentiated rates of taxation on energy products and electricity, depending on the territory concerned, in respect of the same product.
28In 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 Directive [2003/96], in particular Article 5 thereof, be interpreted as precluding a national provision, such as Article 50ter of [the Law on excise duties], which authorised the autonomous communities to set differentiated rates of the exercise duties on mineral oils for each territory in respect of the same product?’
Consideration of the question referred
Admissibility
29The Spanish Government argues that the question referred must be declared inadmissible on the ground that it is hypothetical. In its view, the question of the compatibility of the national provision at issue with EU law has never been discussed before the courts before which the dispute in the main proceedings has been brought, or even before the referring court in the context of the appeal, which is limited to the question of DISA’s standing to bring proceedings for the recovery of undue payments.
30In accordance with settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 12 January 2023, DOBELES HES, C‑702/20 and C‑17/21, EU:C:2023:1, paragraph 47 and the case-law cited).
31In the present case, the question referred is directly linked to the actual facts and purpose of the dispute in the main proceedings, in so far as that dispute concerns claims for reimbursement of the amount corresponding to the application of the regional rate of excise duty on mineral oils paid by DISA, on the ground that that rate is contrary to Directive 2003/96, in particular Article 5 thereof.
32Consequently, the request for a preliminary ruling is admissible.
Substance
33As a preliminary point, it must be observed that the present case is characterised by the fact that the national provision at issue allowed each autonomous community in Spain to set a regional rate of excise duty on mineral oils on top of the national rate. Thus, the national legislation in force provided, in essence, for two separate taxes, namely, first, a national tax, the rate of which was uniform throughout the national territory, and, secondly, an additional regional tax, the rate of which was set by each autonomous community in respect of the mineral oils consumed on its territory.
34By its question, the referring court asks, in essence, whether Directive 2003/96, in particular Article 5 thereof, must be interpreted as precluding national legislation which authorises regions or autonomous communities to set different rates of excise duty for the same product and the same use depending on the territory in which the product is consumed.
35The purpose of Directive 2003/96, as is apparent from recitals 3 to 5 and Article 1 thereof, is to establish a harmonised system of taxation of energy products and electricity (see, to that effect, judgment of 9 September 2021, Hauptzollamt B (Optional tax reduction), C‑100/20 REC, EU:C:2021:716, paragraph 29 and the case-law cited).
36Under that system, that directive includes, inter alia, in Articles 5, 7 and 15 to 19, a series of provisions which confer on the Member States a set of powers for introducing differentiated rates of taxation, exemptions from taxation or tax reductions in respect of excise duty, powers which form an integral part of the harmonised taxation system established by the directive (see, to that effect, judgment of 9 September 2021, Hauptzollamt B (Optional tax reduction), C‑100/20 REC, EU:C:2021:716, paragraph 30). Those provisions show that the EU legislature has left a certain margin of discretion to Member States in the field of excise, in accordance with recitals 9 and 11 of that directive (see, to that effect, judgment of 30 January 2020, Autoservizi Giordano, C‑513/18, EU:C:2020:59, paragraphs 26 and 28).
37In the first place, Article 5 of Directive 2003/96 states that, provided that they respect the minimum levels of taxation prescribed by that directive and that they are compatible with EU law, differentiated rates of taxation may be applied by Member States, under fiscal control, in the following cases: namely, first, when the differentiated rates are directly linked to product quality; secondly, when the differentiated rates depend on quantitative consumption levels for electricity and energy products used for heating purposes; thirdly, for the following uses: local public passenger transport (including taxis), waste collection, armed forces and public administration, disabled people, ambulances; and fourthly, between business and non-business use, for energy products and electricity referred to in Articles 9 and 10 of that directive.
38It must be held that Article 5 does not provide Member States with the possibility to set different rates of excise duty for the same product and the same use depending on the region or territory of that Member State in which that product is consumed, as provided for in the legislation at issue in the main proceedings.
39Furthermore, the use, in Article 5 of Directive 2003/96, of the words ‘in the following cases’ to designate the four cases in which differentiated rates of taxation may be applied indicates that the list set out in that provision is exhaustive (see, to that effect, judgment of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, paragraph 29).
40In that regard, the Court stated that it was apparent from the preparatory work for Directive 2003/96 that the EU legislature intended to create a strictly circumscribed framework in which differentiated rates of taxation may be provided for the same product. While Article 5(1) of the Proposal for a Council Directive restructuring the Community framework for the taxation of energy products (OJ 1997 C 139, p. 14), according to which ‘Member States may apply differentiated rates of taxation according to the use or quality of a product provided that they respect the minimum levels of taxation set out in this Directive and that they are compatible with Community law’, gave the Member States a relatively wide discretion in determining the rates of taxation of energy products, that discretion was considerably reduced during the legislative process. Article 5 of Directive 2003/96 authorises Member States to provide, with due regard for the minimum levels of taxation prescribed by that directive and in compliance with EU law, for differentiated rates of taxation only in the cases exhaustively listed in that article (judgment of 16 November 2023, Tüke Busz, C‑391/22, EU:C:2023:892, paragraphs 46 and 47).
41That interpretation is also apparent, as the Advocate General stated in point 37 of his Opinion, from recital 15 of Directive 2003/96, which provides that ‘the possibility of applying differentiated national rates of taxation to the same product should be allowed in certain circumstances or permanent conditions, provided that Community minimum levels of taxation and internal market and competition rules are respected.’
42In the second place, the general scheme of Directive 2003/96 supports the restrictive interpretation of the options offered by that directive to Member States to apply differentiated rates, including where the minimum levels of taxation are respected.
43As is apparent from the case-law cited in paragraph 36 above, Article 5 of Directive 2003/96 forms part of a set of provisions laid down by that directive authorising the Member States, or some of them, under certain conditions, to apply differentiated rates, exemptions or reductions in the level of taxation. Those other provisions are, inter alia, Articles 6, 7 and 15 to 19 of that directive.
44First, Article 6 of Directive 2003/96 lays down the forms in which the Member States may give effect to exemptions or reductions in the level of taxation, and provides, in point (b) thereof, that such exemptions or reductions may take the form of a differentiated rate of tax.
45Secondly, Articles 7 and 15 to 18b of Directive 2003/96 provide that Member States may apply differentiated rates, exemptions or specific reductions of taxation subject to compliance with the precise conditions laid down in those provisions.
46It should be noted that some of those provisions authorise or authorised Member States mentioned by name to apply reduced rates of excise duty or exemptions depending on the territory in which the product is consumed.
47Accordingly, the first subparagraph of Article 18(7) of Directive 2003/96 provides that the Portuguese Republic may apply levels of taxation on energy products and electricity consumed in the Autonomous Regions of the Azores and Madeira lower than the minimum levels of taxation laid down in that directive. The first subparagraph of Article 18(8) of that directive states that the Hellenic Republic may apply to different energy products levels of taxation lower than the minimum rates laid down in that directive, in certain departments and on certain Aegean islands.
48Furthermore, the possibility of applying differentiated regional rates must be provided for by Directive 2003/96 regardless of compliance with the minimum levels of taxation required by that directive. In that regard, Article 18(1) of that directive, read in conjunction with, inter alia, the third indent of point 6 and the tenth, twelfth, thirteenth and fifteenth indents of point 8 of Annex II to that directive, permitted the introduction of reduced levels of taxation or exemptions in certain regions of France and Italy mentioned by name, provided that the minimum levels of taxation were observed.
49Finally, Article 19(1) of Directive 2003/96 provides that the Council, acting unanimously on a proposal from the Commission, may authorise Member States which so request to introduce differentiated rates of excise duty by means of further exemptions or reductions for specific policy considerations.
50It follows from the foregoing that, contrary to what the Spanish Government argues, in order to apply differentiated rates in the territory of a Member State for the same product and the same use, where such a possibility is not provided for by the actual provisions of Directive 2003/96, authorisation under that directive is always necessary regardless of compliance with the minimum levels of taxation.
51Consequently, it follows both from Article 5 and from the analysis of all the provisions of Directive 2003/96 providing for reductions or exemptions from taxation that, even though the field of taxation of energy products and electricity is only partially harmonised and that that directive affords the Member States a degree of flexibility to be able to implement policies appropriate to their national circumstances, the fact remains that that leeway has limits. It follows that, regardless of compliance with the minimum levels of taxation imposed by that directive, the powers available to Member States to introduce differentiated rates of taxation, exemptions from taxation or reductions in excise duty may be implemented only in strict compliance with the conditions laid down by the relevant provisions of Directive 2003/96.
52A contrary interpretation would render both Article 5 of Directive 2003/96 and all the provisions of that directive which allow the Member States the option of applying differentiated rates of taxation subject to compliance with the conditions which they lay down wholly ineffective.
53In the present case, it must be stated that none of the derogations provided for by Directive 2003/96 expressly authorise the Kingdom of Spain to apply different rates of excise duty for the same product and the same use depending on the autonomous communities in which those products are consumed. The Spanish Government does not dispute this, nor does it deny that it has not obtained a specific derogation under Article 19 of the Directive in order to enable the autonomous communities to set differentiated regional rates of excise duty for mineral oils.
54In the third place, the interpretation set out in paragraph 51 above is consistent with the objectives of Directive 2003/96 set out in recitals 2 to 5 and 24 thereof, which are intended to promote the proper functioning of the internal market in the energy sector, in particular by avoiding distortions of competition (judgment of 30 January 2020, Autoservizi Giordano, C‑513/18, EU:C:2020:59, paragraph 30 and the case-law cited).
55As the Advocate General noted in point 51 of his Opinion, that directive offers, in principle, the possibility of setting different rates of excise duty between Member States, provided that the minimum rates laid down by that directive are respected. However, allowing each Member State the possibility of applying different rates between its regions for the same product and the same use, without any limits or supervisory mechanism, would be likely to impair the proper functioning of the internal market by fragmenting it further, thus jeopardising the free movement of goods. Although, in accordance with recital 4 of that directive, appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to the proper functioning of the internal market, the same applies a fortiori to differences between the regional levels of energy taxation applied within the same Member State.
56The Spanish Government’s other arguments to support the regional rate of excise duty on mineral oils are not capable of invalidating the foregoing interpretation.
57First, as regards the argument that such a rate was a manifestation of the political autonomy of the autonomous communities, recognised by the Spanish Constitution and protected by Article 4(2) TEU, it must be borne in mind that the division of competences within a Member State benefits from the protection conferred by that provision, according to which the European Union must respect national identities of the Member States, inherent in their fundamental structures, political and constitutional, including local and regional self-government (judgment of 21 December 2016, Remondis, C‑51/15, EU:C:2016:985, paragraph 40 and the case-law cited). In that regard, it is sufficient, however, to recall that, as stated in paragraph 51 above, Directive 2003/96 allows for the introduction of differentiated tax rates, inter alia, on the basis of geographical criteria, provided that the conditions laid down in that Directive for that purpose are observed.
58Secondly, the Spanish Government appears to argue that a regional rate of excise duty on mineral oils may be classified as another indirect tax within the meaning of Article 1(2) of Directive 2008/118.
59However, in accordance with that provision, Member States may levy other indirect taxes on excise goods provided that two conditions are observed. First, such taxes must be levied for specific purposes and, second, those taxes must comply with the EU tax rules applicable for excise duty or VAT as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions.
60As regards the first of those conditions, it is apparent from the Court’s case-law that a specific purpose within the meaning of Article 1(2) of Directive 2008/118 is a purpose other than a purely budgetary purpose (judgment of 22 June 2023, Endesa Generación, C‑833/21, EU:C:2023:516, paragraph 38 and the case-law cited).
61However, since every tax necessarily pursues a budgetary purpose, the mere fact that a tax is intended to achieve a budgetary objective cannot, in itself, suffice – if Article 1(2) of Directive 2008/118 is not to be rendered meaningless – to preclude that tax from being regarded as having, in addition, a specific purpose within the meaning of that provision (judgment of 22 June 2023, Endesa Generación, C‑833/21, EU:C:2023:516, paragraph 39 and the case-law cited).
62In that regard, while the predetermined allocation of the proceeds of a tax to the financing of the exercise, by the authorities of a Member State, of powers transferred to them can constitute a factor to be taken into account for the purpose of establishing the existence of a specific purpose, 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, since any Member State may decide to lay down, irrespective of the purpose pursued, that the proceeds of a tax are to be allocated to financing particular expenditure. Otherwise, any purpose could be considered to be specific within the meaning of Article 1(2) of Directive 2008/118, which would deprive the harmonised excise duty established by that directive of all practical effect and be contrary to the principle that a derogating provision such as Article 1(2) must be interpreted strictly (judgment of 22 June 2023, Endesa Generación, C‑833/21, EU:C:2023:516, paragraph 40 and the case-law cited).
63Thus, in order to be regarded as pursuing a specific purpose within the meaning of Article 1(2) of Directive 2008/118, a tax the revenue from which is used in a predetermined allocation must itself be intended to achieve the specific purpose stated, so that there is a direct link between the use of the revenue and the purpose of the tax in question (judgment of 22 June 2023, Endesa Generación, C‑833/21, EU:C:2023:516, paragraph 41 and the case-law cited).
64In the absence of such a mechanism for the predetermined allocation of revenue, a tax on excise goods can be regarded as pursuing a specific purpose within the meaning of Article 1(2) of Directive 2008/118 only if it is designed, so far as its structure is concerned, and 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 (judgment of 22 June 2023, Endesa Generación, C‑833/21, EU:C:2023:516, paragraph 42 and the case-law cited).
65In the present case, subject to verification by the referring court, which has sole jurisdiction to establish and assess the facts of the dispute in the main proceedings, it is not apparent from the documents before the Court that the regional rate of excise duty on mineral oils fulfils the criteria relating to the specific purpose referred to in Article 1(2) of Directive 2008/118, in the event that such a purpose exists. As the Advocate General stated in point 55 of his Opinion, it is clear from the observations submitted by the Spanish Government that that regional rate was intended to finance all the competences of the autonomous communities.
66In the light of the foregoing considerations, the answer to the question referred for a preliminary ruling is that Directive 2003/96, in particular Article 5 thereof, must be interpreted as precluding national legislation which authorises regions or autonomous communities to set different rates of excise duty for the same product and the same use depending on the territory in which the product is consumed other than in the cases provided for that purpose.
Costs
67Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules: Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/74/EC of 29 April 2004, and by Council Directive 2004/75/EC of 29 April 2004, in particular Article 5 thereof,must be interpreted as precluding national legislation which authorises regions or autonomous communities to set different rates of excise duty for the same product and the same use depending on the territory in which the product is consumed other than in the cases provided for that purpose.
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