Judgment — ECLI:EU:C:2015:636
Date: 2015-10-01
Language of the case: Swedish
Court formation: Seventh Chamber
Subject matter: Taxation
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary — Judgment of the Court (Seventh Chamber) 1 October 2015 1. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity — Directive 2003/96 — Scope — Tax on the thermal power of nuclear reactors — Not included (Council Directive 2003/96, Arts 2(1), 3 and 4(b), 4(2), and 21(5)) 2. Tax provisions — Harmonisation of laws — Excise duties — Directive 92/12 — Products subject to excise duty — Tax on the thermal power of a nuclear reactor — Not included (Council Directives 92/12, Art. 3(1) and 2003/96, Arts 2, 3 and 4(2)) 1. Articles 4(2) and 21(5) of Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity must be interpreted as not precluding a national rule which provides for the levying of a tax on the thermal power of nuclear reactors, in so far as such a tax does not come within the scope of that directive. First of all, since the thermal power of a nuclear reactor is not on the exhaustive list of energy products drawn up by Article 2(1) of Directive 2003/96, it cannot be considered to be an ‘energy product’ for the purposes of that directive. Secondly, the thermal power of a nuclear reactor does not come within the definition of ‘electricity’ for the purposes of Directive 2003/96, because there is no link between, on the one hand, the chargeable event for the tax on the thermal power of nuclear reactors and, on the other, the amount of electricity actually generated by that reactor, given that that tax consists in the levying of a fixed monthly amount calculated according to a theoretical value, being the quantity of megawatts of maximum thermal power fixed for each nuclear reactor by the authorisation, issued by the national authorities, to own and operate that nuclear reactor and that it is, moreover, characterised by the fact that the holder of the authorisation remains liable for the tax on the thermal power even when it is not being operated. Thirdly, such a tax cannot be regarded as having been calculated directly or indirectly on the quantity of energy products and electricity actually generated at the time of release for consumption within the meaning of Article 4(2) of Directive 2003/96. Similarly, nor can there be said to be a direct and inseverable link between the chargeable event for the tax and the consumption of electricity generated by a given nuclear reactor. (see paras 26, 27, 31-35, 37, operative part 1) 2. Directive 92/12 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 a tax on the thermal power of a nuclear reactor is not an excise duty for the purposes of that directive. Given that it follows from Article 3 of Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity that Directive 92/12 governs, in addition to the taxation of the products referred to in Article 3(1) thereof, the taxation of the products referred to in Articles 2 and 4(2) of Directive 2003/96, including in particular the consumption of electricity, and that a tax on the thermal power of a nuclear reactor does not come within the scope of Directive 2003/96, nor does such a tax come within the scope of Directive 92/12. (see paras 41-43, operative part 2)