# C_2017161EN.01001001.xml

| 22.5.2017 | EN | Official Journal of the European Union | C 161/10 |
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22.5.2017

EN

Official Journal of the European Union

C 161/10

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 27 February 2017 — Messer France SAS, as successor in title to Praxair v 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

(Case C-103/17)

(2017/C 161/13)

Language of the case: French

Referring court

Referring court

Conseil d’État

Parties to the main proceedings

Parties to the main proceedings

Applicant: Messer France SAS, as successor in title to Praxair

Applicant:

Defendants: 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

Defendants:

Questions referred

Questions referred

| 1. | In the case where a Member State has not, following the entry into force of Directive 2003/96/EC of 27 October 2003, (1) 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/EEC of 25 February 1992 (2) and with [Directive 2003/96/EC] of 27 October 2003 to be assessed in the light of the conditions laid down by Article 3(2) of Directive 92/12/EEC 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? |
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1.

In the case where a Member State has not, following the entry into force of Directive 2003/96/EC of 27 October 2003, (1) 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:

1

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is the compatibility of the tax in question with Directive 92/12/EEC of 25 February 1992 (2) and with [Directive 2003/96/EC] of 27 October 2003 to be assessed in the light of the conditions laid down by Article 3(2) of Directive 92/12/EEC 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?

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| — | or is it possible to retain ‘another indirect tax’ only where 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? |
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or is it possible to retain ‘another indirect tax’ only where 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/EEC, as restated in Article 1(2) of Directive 2008/118/EC? (3) |
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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/EEC, as restated in Article 1(2) of Directive 2008/118/EC? (3)

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| 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? |
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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/EC to be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down by Directive 2003/96/EC was, among the rules on the taxation of electricity laid down by EU law, the only obligation incumbent on France? |
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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/EC to be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down by Directive 2003/96/EC was, among the rules on the taxation of electricity laid down by EU law, the only obligation incumbent on France?

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(1)  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).

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(2)  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).

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(3)  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).

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