Opinion of the Advocate General — ECLI:EU:T:2025:1004
Date: 2025-10-29
Language of the case: French

Translation T-653/24 – 1 
Case T-653/24 
Request for a preliminary ruling 
Date lodged: 
6 December 2024 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
29 November 2024 
Appellants: 
AccorInvest 
Societé Générale 
Respondent: 
Ministre de l’Économie, des Finances et de la Souveraineté 
industrielle et numérique 
  
[…] 
I. Under Case No 76000, AccorInvest applied to the tribunal administratif de 
Paris (Administrative Court, Paris, France) seeking an order that the State pay it 
compensation in the amount of EUR 342 233, corresponding to the tariff-based 
transmission contribution for which it had borne the cost for the years 2016 to 
2018. By order No 2006691 of 26 April 2021, the President of the first division of 
that court dismissed its application as having been brought before a court which 
had no jurisdiction to hear it. 
By judgment No 21PA03373 of 17 May 2023, the cour administrative d’appel de 
Paris (Administrative Court of Appeal, Paris, France), hearing the appeal brought 
by AccorInvest, annulled that order and […] dismissed its application. 
By an appeal […] [of] 17 July […] 2023 […], AccorInvest claims that the Conseil 
d’État (Council of State, France) should: 
(1) principally, set aside that judgment; 
EN 
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(2) uphold its appeal when ruling on the substance of the case; 
(3) in the alternative, refer a question to the Court of Justice of the European 
Union for a preliminary ruling on the interpretation of Article 1(2) of Directive 
2008/118/EC of 16 December 2008; 
(4) order the State to pay [the costs] […]. 
AccorInvest submits that the cour administrative d’appel de Paris (Administrative 
Court of Appeal, Paris): 
- misrepresented the facts before it and erred in law in holding that there was 
no direct and inseverable link between the tariff-based transmission contribution 
and the consumption of electricity, and that that contribution could not be 
regarded as being calculated directly or indirectly on the basis of the quantity of 
electricity at the time of release for consumption, on the ground that it is based on 
the fixed component of the standing charges for use of the public electricity 
networks, which, essentially, depends on the voltage range and subscribed power 
under the network connection contract; 
- misrepresented the facts before it and erred in law in holding that there was 
no direct and inseverable link between the tariff-based transmission contribution 
and the consumption of electricity, and that that contribution could not be 
regarded as being calculated directly or indirectly on the basis of the quantity of 
electricity at the time of release for consumption, and therefore that it is not an 
indirect tax which is levied directly or indirectly on the consumption of electricity, 
and consequently does not fall within the scope of Article 1(2) of Directive 
2008/118/EC of 16 December 2008. 
By its statement of defence, registered on 4 March 2024, the ministre de 
l’économie, des finances et de la souveraineté industrielle et numérique (Minister 
for the Economy, Finance and Industrial and Digital Sovereignty, France) 
contends that the appeal should be dismissed. The Minister contends that the 
grounds of appeal raised by AccorInvest are unfounded. 
[…] 
II. Under Case No 476009, Société Générale applied to the tribunal administratif 
de Paris (Administrative Court, Paris) seeking an order that the State pay it 
compensation in the amount of EUR 678 363, corresponding to the tariff-based 
transmission contribution for which it had borne the cost for the years 2017 and 
2018. By order No 2006804 of 26 April 2021, the President of the first division of 
that court dismissed its application as having been brought before a court which 
had no jurisdiction to hear it. 
By judgment No 21PA03378 of 17 May 2023, the cour administrative d’appel de 
Paris (Administrative Court of Appeal, Paris), hearing the appeal brought by 
Société Générale, annulled that order and […] dismissed its application. 
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3 
By an appeal […] [of] 17 July […] 2023 […], Société Générale claims that the 
Conseil d’État (Council of State) should: 
(1) principally, set aside that judgment; 
(2) uphold its appeal when ruling on the substance of the case; 
(3) in the alternative, refer a question to the Court of Justice of the European 
Union for a preliminary ruling on the interpretation of Article 1(2) of Directive 
2008/118/EC of 16 December 2008; 
(4) order the State to pay [the costs] […]. 
Société Générale raises grounds of appeal identical to those raised in support of 
the appeal […] brought by AccorInvest. 
By its statement of defence, registered on 4 March 2024, the ministre de 
l’économie, des finances et de la souveraineté industrielle et numérique (Minister 
for the Economy, Finance and Industrial and Digital Sovereignty) contends that 
the appeal should be dismissed. The Minister contends that the grounds of appeal 
raised by Société Générale are unfounded. 
[procedure and citations] […]  
Whereas: 
1 [Joining of] […] the appeals […]. 
2 […] 
Legal context: 
European Union law: 
3 Under Article 1 of Council Directive 2008/118/EC of 16 December 2008 
concerning the general arrangements for excise duty and repealing Directive 
92/12/EEC, in force at that time: ‘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/EC … 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 as far as determination of the tax base, calculation of the tax, 
chargeability and monitoring of the tax are concerned … 3. Member States may 
levy taxes on: (a) products other than excise goods; (b) the supply of services, 
including those relating to excise goods, which cannot be characterised as 
turnover taxes …’. 
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4 It is apparent from the case-law of the Court of Justice of the European Union on 
the concept of ‘other indirect taxes’ within the meaning of Article 1(2) of 
Directive 2008/118/EC, cited in paragraph 3, in particular from the judgment of 
4 June 2015 in Kernkraftwerke Lippe-Ems GmbH (C-5/14), that that provision, 
which seeks to take due account of the Member States’ different fiscal traditions 
in that regard and the frequent recourse to indirect taxation for the implementation 
of non-budgetary policies, allows Member States to introduce, in addition to 
minimum excise duty, other indirect taxes having a specific purpose. It follows 
that the concept of ‘other indirect taxes’, within the meaning of Article 1(2) of 
Directive 2008/118/EC, refers to indirect taxes which are levied on the 
consumption of the products listed in Article 1(1) of that directive – other than 
‘excise duty’ within the meaning of that provision – and are levied for specific 
purposes. Accordingly, in order to determine whether a tax falls within the scope 
of Article 1(2) of Directive 2008/118, it is necessary, first of all, to ascertain 
whether that tax is an indirect tax which is levied directly or indirectly on the 
consumption of a product subject to excise duty. 
5 It is also apparent from the case-law of the Court of Justice of the European 
Union, in particular its judgment of 10 June 1999, Braathens Sverige AB 
(C-346/97), that that is the case where there is a direct and inseverable link 
between such a tax and the consumption of the product subject to excise duty. 
National law: 
The tariff-based contribution on electricity transmission and distribution services, 
known as the tariff-based transmission contribution: 
6 Under Article 18 of the loi du 9 août 2004 relative au service public de 
l’électricité et du gaz et aux entreprises électriques et gazières (Law of 9 August 
2004 on the public electricity and gas service and on electricity and gas 
undertakings): ‘I. – A tariff-based contribution on electricity transmission and 
distribution services is established for the benefit of the Caisse nationale des 
industries électriques et gazières (National Fund for the Electricity and Gas 
Industries) … / II. – That tariff-based contribution shall be payable: 1 °For 
electricity: / (a) by the operators of the public electricity transmission and 
distribution networks which charge it, in addition to the tariff for the use of the 
public transmission and distribution networks, … to consumers … with whom 
those operators have concluded a network access contract; / (b) by electricity 
suppliers who charge it to consumers in addition to their sale price …, where 
those suppliers have concluded a network access contract … to supply those 
consumers; / (c) by electricity suppliers who charge it in addition to electricity 
prices … / III. The tariff-based contribution shall be based on: / 1 °For electricity: 
/ – the fixed component, excluding taxes, of the standing charge for use of the 
public electricity transmission and distribution networks where the tariff-based 
contribution is payable in application of point (a) of paragraph II(1°); / – the 
fixed component, excluding taxes, of the charge relating to the use of the 
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networks, included in the electricity sale price, where the tariff-based contribution 
is payable in application of point (b) of paragraph II(1°); / – the fixed component, 
excluding taxes, of the charge relating to the use of the networks, included in the 
regulated tariffs for the sale of electricity, where the tariff-based contribution is 
payable in application of point (c) of paragraph II(1°) … […]’. 
7 Under Article 1 of the décret du 14 février 2005 relatif à la contribution tarifaire 
sur les prestations de transmission et de distribution d’électricité et de gaz naturel 
(Decree of 1 February 2005 concerning the tariff-based contribution on electricity 
and natural gas transmission and distribution services), in the version prior to the 
décret du 28 juillet 2017 relatif à la contribution tarifaire sur les prestations de 
transmission et de distribution d’électricité et de gaz naturel (Decree of 28 July 
2017 concerning the tariff-based contribution on electricity and natural gas 
transmission and distribution services): ‘I. – The fixed component, excluding 
taxes, of the standing charge for use of the public electricity transmission and 
distribution networks, referred to in Article 18(III)(1°) of the aforementioned Law 
of 9 August 2004, is made up of the sum of the following: / – the annual 
administration component […]; / – the annual metering component […]; / – the 
fixed part of the annual withdrawal component (.); – the fixed part of the annual 
complementary and backup power supplies component …’. Paragraph II of that 
article sets out the calculation of the fixed part of the annual withdrawal 
component based on the voltage level, referring to decisions approving the 
applicable standing charges for use of the public electricity transmission and 
distribution networks. Paragraph III states that ‘the fixed part of the annual 
complementary and backup power supplies component consists of the annual 
complementary and backup power supplies component […], from which the 
energy component is deducted where the backup supply is at a different voltage 
range from that of the main supply’. 
8 Under Article 1 of that decree, in the version resulting from the Decree of 28 July 
2017, applicable from 1 August 2017: ‘… the fixed component, excluding taxes, of 
the standing charge for use of the public electricity transmission and distribution 
networks is made up of the sum of the tariff components […] listed in points 1° to 
4°: / 1° the annual administration component; / 2° the annual metering 
component; / 3° the fixed part of the annual withdrawal component. That fixed 
part is the sum of the items in the tariff formulas relating to that component, 
which depend on subscribed powers, excluding the monthly components for 
exceeding subscribed power; / 4° The fixed part of the annual component for 
complementary and backup supplies. That fixed part consists of the annual 
component for complementary and backup supplies, excluding the energy 
component and the monthly components for exceeding subscribed power where 
the emergency supply is at a different voltage range from that of the main supply.’ 
9 Under Article 2 of that decree: ‘The electricity supplier which charges the tariff-
based contribution […] shall calculate the fixed component, excluding taxes, of 
the charge relating to the use of the networks in the sale price or the selling rate 
in accordance with Article 1.’ 
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Standing charges for use of the public electricity networks: 
10 Under Article L. 341-3 of the code de l’énergie (Energy Code): ‘The methods used 
to establish the standing charges for the use of public electricity transmission and 
distribution networks shall be laid down by the Commission de régulation de 
l’énergie …’. Pursuant to those provisions, by decision of 3 April 2013, the 
Commission de régulation de l’énergie (Energy Regulatory Commission) set the 
tariffs, known as ‘TURPE 4 HTB’, applicable to high-voltage B (HTB) 
consumers, with effect from 1 August 2013. Those tariffs were replaced, with 
effect from 1 August 2017, by the tariffs known as ‘TURPE 5 HTB’, approved by 
decision of 17 November 2016. By decision of 12 December 2013, the Energy 
Regulatory Commission set the tariffs, known as the ‘TURPE 4 HTA-BT’, 
applicable to high-voltage A (HTA) consumers and low-voltage (BT) consumers, 
with effect from 1 January 2014. The latter tariffs were replaced by the tariffs, 
known as ‘TURPE 5 HTA-BT’, approved by a subsequent decision of 
17 November 2016. It is apparent from those decisions that the amount billed for 
standing charges for use of the public electricity networks comprises four main 
components: the administration component, the metering component, the 
withdrawal component and the annual component for complementary and backup 
power supplies. 
11 Pursuant to the provisions of Article 1 of the Decree of 14 February 2005 referred 
to in paragraphs 7 and 8, the tariff-based transmission contribution is based on the 
administration component, the metering component, the fixed part of the 
withdrawal component and the fixed part of the annual component for 
complementary and backup power supplies. 
12 The administration component is charged as a fixed amount for each connection 
point and contract applied to all users according to their connection voltage range, 
at high, medium or low voltage, and according to their contractual arrangements, 
in the form of a public distribution network access contract or a single contract. 
13 The metering component is based on the ownership of the meter, voltage range, 
subscribed withdrawal power or maximum injection power, power control and 
measured variables. 
14 The fixed part of the withdrawal component is based on the voltage range, the 
optional tariff used by network operators to charge for utilisation of the networks, 
and subscribed power or, for tariffs with time differentiation depending on the 
season or time of day, subscribed powers. Only the variable part of the withdrawal 
component depends on the energy withdrawn. 
15 The fixed part of the annual component for complementary and backup power 
supplies is based, essentially, on the length and type of connection, depending on 
whether it is overhead or underground. Backup power supplies in a lower voltage 
range than the main supply are subject to specific charges. 
ACCORINVEST 
 
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16 It follows from what was stated in paragraphs 11 to 15, and as the cour 
administrative d’appel de Paris (Administrative Court of Appeal, Paris) held, on 
grounds which were not challenged in the appeals on a point of law, that the tariff-
based transmission contribution is based on the fixed part of the standing charges 
for use of the public electricity networks, which depends essentially on the voltage 
range and subscribed power under the network connection contract, and excludes 
the variable part of those charges, which is the only component that varies 
according to the quantity of electricity consumed.  
The grounds of the appeals: 
17 In support of their claims for compensation, AccorInvest and Société Générale 
argued at first instance that the tariff-based transmission contribution did not 
comply with the tax rules laid down in Article 1(2) of Directive 2008/118/EC of 
16 December 2008. By the judgments under appeal, the cour administrative 
d’appel de Paris (Administrative Court of Appeal, Paris) rejected that ground of 
appeal, holding that, in the absence of a direct and inseverable link between that 
contribution and the consumption of electricity, the tariff-based transmission 
contribution was not an indirect tax levied directly or indirectly on the 
consumption of electricity, and consequently did not fall within the scope of 
Article 1(2) of the Directive. 
18 In support of their appeal on a point of law, the appellant companies claim, in the 
first place, that the tariff-based transmission contribution is an indirect tax levied 
directly or indirectly on the consumption of electricity, merely because the 
provisions of Article 18(II)(1°) of the Law of 9 August 2004, cited in paragraph 6 
above, and those of Article 2 of the Decree of 14 February 2005, cited in 
paragraph 9, establish a legal mechanism for passing on that tax to the final 
consumer. 
19 The response to that ground of appeal depends on whether the existence of a legal 
mechanism for passing on the tax to the final consumer of a product subject to 
excise duty implies, in itself, the existence of a direct and inseverable link 
between that tax and the consumption of that product, even where that tax is 
calculated independently of the quantity of electricity actually consumed. 
20 In the second place, the appellant companies claim that there is a direct and 
inseverable link between the tariff-based transmission contribution and the 
consumption of electricity on the grounds that, first, the access contract under 
which that tax is payable is necessarily linked to a contract for the supply of 
electricity to a final consumer and that, secondly, the fixed component of the 
standing charges for use of the public electricity networks on which that tax is 
based depends, inter alia, on the level of subscribed power of the final consumers 
themselves, which is usually related to their consumption profile. For his part, the 
Minister maintains that there is no such link, in particular on the ground, as set out 
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in the judgments under appeal, that the contribution could be levied even without 
a quantity of electricity having been consumed. 
21 That ground of appeal raises the question whether a tax such as the tariff-based 
transmission contribution, which is based on the fixed component of the standing 
charges for use of the public electricity networks, and excludes the variable part of 
those charges - which is the only component that varies according to the quantity 
of electricity consumed- but which is payable under the network access contracts 
concluded by consumers or their suppliers, must be regarded as having a direct 
and inseverable link with the consumption of electricity. 
22 Those questions are decisive for the outcome of the dispute before the Council of 
State. They present serious difficulties. It is therefore necessary to refer the matter 
to the Court of Justice of the European Union pursuant to Article 267 [TFEU] 
[…]. 
THE COUNCIL OF STATE HEREBY DECIDES: 
---------------- 
Article 1: The appeal proceedings brought by AccorInvest and Société Générale 
are stayed pending a ruling by the Court of Justice of the European Union on the 
following questions: 
1° Are the provisions of Article 1(2) of Directive 2008/118/EC to be interpreted as 
meaning that the existence of a legal mechanism for passing on the tax to the final 
consumer of a product subject to excise duty implies in itself the existence of a 
direct and inseverable link between that tax and the consumption of that product, 
with the result that it must be regarded as another indirect tax within the meaning 
of Article 1(2) of Directive 2008/118/EC, even where that tax is calculated 
independently of the quantity of product actually consumed? 
2° Are the provisions of Article 1(2) of Directive 2008/118/EC to be interpreted as 
meaning that a tax, such as the tariff-based transmission contribution, which is 
based on the fixed component of the standing charges for use of the public 
electricity networks, and excludes the variable part of those charges -which is the 
only component that varies according to the quantity of electricity consumed- but 
which is payable under the network access contracts concluded by consumers or 
their suppliers, has a direct and inseverable link with the consumption of 
electricity, with the result that it must be regarded as another indirect tax within 
the meaning of those provisions? 
[procedural wording and signatures] […]