# C_2018328EN.01001201.xml

| 17.9.2018 | EN | Official Journal of the European Union | C 328/12 |
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17.9.2018

EN

Official Journal of the European Union

C 328/12

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Judgment of the Court (First Chamber) of 25 July 2018 (request for a preliminary ruling from the Conseil d’État — France) — Messer France SAS, formerly 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) (1)

((Reference for a preliminary ruling - Harmonisation of fiscal legislation - Directive 92/12/EEC - Article 3(2) - Directive 2003/96/EC - Articles 3 and 18 - Taxation of energy products and electricity - Excise duties - Existence of another indirect tax - Conditions - National legislation providing for a contribution to the public electricity service - Definition of ‘specific purposes’ - Compliance with a minimum level of taxation))

(2018/C 328/13)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Messer France SAS, formerly Praxair

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

Operative part of the judgment

| 1. | The second subparagraph of Article 18(10) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down in that directive was, in the context of rules on the taxation of electricity laid down by EU law, the only obligation incumbent on the French Republic. |
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1.

The second subparagraph of Article 18(10) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down in that directive was, in the context of rules on the taxation of electricity laid down by EU law, the only obligation incumbent on the French Republic.

| 2. | Article 3(2) of 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 must be interpreted as meaning that levying another indirect tax on electricity is not conditional on the imposition of a harmonised excise duty and that, since a tax such as that at issue in the main proceedings does not constitute such an excise duty, its compatibility with Directives 92/12 and 2003/96 must be assessed in the light of the conditions laid down in Article 3(2) of Directive 92/12 for determining the existence of other indirect taxes for specific purposes. |
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2.

Article 3(2) of 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 must be interpreted as meaning that levying another indirect tax on electricity is not conditional on the imposition of a harmonised excise duty and that, since a tax such as that at issue in the main proceedings does not constitute such an excise duty, its compatibility with Directives 92/12 and 2003/96 must be assessed in the light of the conditions laid down in Article 3(2) of Directive 92/12 for determining the existence of other indirect taxes for specific purposes.

| 3. | Article 3(2) of Directive 92/12 must be interpreted as meaning that a tax such as that at issue in the main proceedings may be classified as ‘another indirect tax’ as regards its environmental objective, which is intended to finance additional costs resulting from the obligation to purchase green energy, but not as regards its objectives of territorial and social cohesion, such as the geographical price-balancing mechanism and the reduction in the price of electricity for low-income households, or as regards its purely administrative objectives, including the financing of costs inherent in the administrative operations of public authorities or institutions such as the médiateur national de l’énergie and the Caisse des dépôts et consignations, subject to verification by the referring court of compliance with the tax rules applicable for excise duty purposes. |
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3.

Article 3(2) of Directive 92/12 must be interpreted as meaning that a tax such as that at issue in the main proceedings may be classified as ‘another indirect tax’ as regards its environmental objective, which is intended to finance additional costs resulting from the obligation to purchase green energy, but not as regards its objectives of territorial and social cohesion, such as the geographical price-balancing mechanism and the reduction in the price of electricity for low-income households, or as regards its purely administrative objectives, including the financing of costs inherent in the administrative operations of public authorities or institutions such as the médiateur national de l’énergie and the Caisse des dépôts et consignations, subject to verification by the referring court of compliance with the tax rules applicable for excise duty purposes.

| 4. | EU law must be interpreted as meaning that the taxable persons concerned are entitled to partial reimbursement of a tax such as that at issue in the main proceedings in the proportion in which revenue raised from that tax was allocated to non-specific objectives, provided that that tax was not directly passed on by the taxable persons to their own customers, which is a matter to be determined by the referring court. |
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4.

EU law must be interpreted as meaning that the taxable persons concerned are entitled to partial reimbursement of a tax such as that at issue in the main proceedings in the proportion in which revenue raised from that tax was allocated to non-specific objectives, provided that that tax was not directly passed on by the taxable persons to their own customers, which is a matter to be determined by the referring court.

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(1)  OJ C 161, 22.5.2017.

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