Opinion of the Advocate General — ECLI:EU:C:2025:773
Date: 2025-10-09
Language of the case: Hungarian

Translation C-519/24 – 1 
Case C-519/24 
Request for a preliminary ruling 
Date lodged: 
29 July 2024 
Referring court: 
Veszprémi Törvényszék (Hungary) 
Date of the decision to refer: 
8 July 2024 
Applicant:  
Nitrogénművek Vegyipari Zrt. 
Defendant:  
Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága 
      
[…] 
In the proceedings for judicial review in a tax matter brought by Nitrogénművek 
Vegyipari Zrt. […], applicant ([…] […] Pétfürdő), against the Nemzeti Adó- és 
Vámhivatal Fellebbviteli Igazgatósága (Appeals Directorate of the National Tax 
and Customs Authority, Hungary), defendant […] ([…] […] Budapest), the 
Veszprémi Törvényszék (Court of Veszprém, Hungary) has made the following 
Order 
This court stays the present proceedings and at the same time refers the following 
questions to the Court of Justice of the European Union for a preliminary ruling: 
1. Must – or may – the objectives and the provisions of Directive 2003/87/EC 
of the European Parliament and of the Council of 13 October 2003 
establishing a scheme for greenhouse gas emission allowance trading within 
the Community and amending Council Directive 96/61/EC (‘the ETS 
Directive’) – in particular, although not exclusively, Articles 1, 10 and 11 
and recitals 5, 7 and 20 thereof – be interpreted as precluding a national 
measure (Government decree) which: 
EN 
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– retrospectively subjects emissions produced as a result of the use of 
emission allowances to a fiscal charge (levying of a charge); 
– retrospectively subjects emissions produced as a result of the use of 
free emission allowances to a fiscal charge (levying of a charge); 
– retrospectively subjects emissions produced as a result of the use of 
free emission allowances to a fiscal charge (levying of a charge) the 
effect of which is to deprive the free emission allowances of their 
value and their compensatory effect; 
– retrospectively subjects emissions produced as a result of the use of 
free emission allowances to a fiscal charge (levying of a charge) the 
effect of which is to deter operators from reducing their emissions, 
improving their environmental efficiency or investing in more 
environmentally friendly technologies; 
– retrospectively subjects emissions produced as a result of the use of 
free emission allowances to a fiscal charge (levying of a charge) the 
purpose of which bears no relation to environmental protection or to 
the European Union’s emissions trading scheme and its objectives; on 
the contrary, the purpose of, and sole basis for, authorising the 
imposition of that charge is to deal with the effects of the armed 
conflict and humanitarian disaster close to Hungary? 
2. In the light of the prohibition of discrimination arising from Articles 18, 49 
and 56 of the Treaty on the Functioning of the European Union (‘TFEU’), 
Article 21 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) and Article 14 of the Convention for the Protection of Human 
Rights and Fundamental Freedoms signed in Rome on 4 November 1950 
(‘ECHR’), must – or may – the concept of ‘operator’ referred to in 
Article 3(f) of the ETS Directive be interpreted as precluding a national 
measure (Government decree) which discriminates, in an unjustified and 
arbitrary manner and without any overriding reason in the public interest, 
against a particular category of such operators by comparison with operators 
not falling within its scope? 
3. Must – or may – Articles 18, 49 and 56 TFEU be interpreted as precluding a 
national measure (Government decree) which restricts the exercise of those 
freedoms and which: 
– Discriminates, in an unjustified and arbitrary manner and without any 
overriding reason in the public interest, against a particular category of 
operators within the meaning of Article 3(f) of the ETS Directive by 
subjecting them to different (more onerous) rules; 
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– defines its scope ratione personae in an arbitrary manner without any 
overriding reason in the public interest, and which is not suitable for 
attaining the objectives of empowerment that led to its adoption; and 
– is introduced suddenly and unforeseeably, with only three days having 
elapsed between its publication and its entry into force, and at the same 
time retrospectively imposes retroactive obligations in respect of 
events that occurred prior to its entry into force? 
4. Must – or may – the protection of the right to property guaranteed by 
Article 17 of the Charter and Article 1 of the First Additional Protocol to the 
ECHR be interpreted as precluding a national measure (Government decree) 
which is confiscatory in nature and which deprives operators falling within 
its scope of all of their gains in the immediate future, thus constituting a 
disproportionate and intolerable interference? 
[…] [matters of national procedural law] 
Grounds: 
Facts: 
Procedure and decision of the first-tier tax authority 
1. By decision […] (‘the first-tier decision’), the Nemzeti Adó- és Vámhivatal 
Veszprém Vármegyei Adó- és Vámigazgatósága (National Tax and Customs 
Authority – Tax and Customs Directorate, Province of Veszprém, Hungary; ‘the 
first-tier tax authority’), rejected the applicant’s supplementary tax return […], 
filed on 21 December 2023, relating to the tax on carbon dioxide quotas for which 
it was liable as the operator of an installation qualifying for a significant free 
allocation of emission allowances for the period from 1 April 2023 to 30 June 
2023. 
2. In the grounds of the first-tier decision, the first-tier tax authority stated, 
with regard to the facts, that the applicant had submitted its supplementary tax 
return on the basis of Paragraph 195 of the az adózás rendjéről szóló 2017. évi 
CL. törvény (Law CL of 2017 on General Tax Procedure; ‘the Law on General 
Tax Procedure’), and that, in that tax return, the applicant had included a reduction 
of the tax liability in the amount of 2 561 256 000 forints. The applicant filed the 
supplementary tax return on the sole ground that the legislation providing for the 
taxation of carbon dioxide quotas, that is to say the a jelentős térítésmentes 
kibocsátásiegység-kiosztásban részesülő létesítmény üzemeltetőjét érintő egyes 
veszélyhelyzeti szabályokról szóló 320/2023. (VII. 17.) Kormányrendelet 
(Government Decree No 320/2023 of 17 July 2023 on certain emergency rules 
relating to operators of installations qualifying for a significant free allocation of 
emission allowances (‘the Government Decree’)), is contrary to the Hungarian 
Basic Law and to binding acts of the European Union. In a letter attached to the 
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supplementary tax return, the applicant maintained that, so far as concerned the 
Government Decree, and in particular the tax on carbon dioxide quotas, it was not 
aware that the Alkotmánybíróság (Constitutional Court, Hungary), the Kúria 
(Supreme Court, Hungary) or the Court of Justice of the European Union had 
ruled on the matters forming the subject of the supplementary tax return at the 
time when the latter was filed, and that it was therefore entitled to file that 
supplementary tax return. 
3. With regard to the applicant’s supplementary tax return, the first-tier tax 
authority concluded that the provisions of the Government Decree were in force 
and were applicable to the tax on the carbon dioxide quotas of operators of 
installations qualifying for a significant free allocation of emission allowances. 
4. In that regard, the first-tier tax authority referred to the provisions of law 
cited below. 
5. Paragraph 195 of the Law on General Tax Procedure, in accordance with 
which the tax authority must make a decision on the supplementary tax return 
within a period of fifteen days from the date of filing, without carrying out any 
verification, if the taxpayer has filed the supplementary tax return on the sole 
ground that the rule of law on which the liability to tax is based is unconstitutional 
or contrary to a binding legal act of the European Union or that a municipal decree 
is contrary to another rule of law, provided that the Constitutional Court, the 
Supreme Court or the Court of Justice of the European Union has not yet ruled on 
that matter at the time when the supplementary tax return is filed or the latter does 
not comply with the published ruling. 
6. On the basis of the foregoing consideration, the first-tier tax authority 
concluded that the Nemzeti Adó- és Vámhivatal (National Tax and Customs 
Authority) is not competent to decide on a possible conflict between the EU 
legislation and the national legislation. 
7. Consequently, the first-tier tax authority rejected the applicant’s 
supplementary tax return. 
Procedure and decision of the second-tier tax authority 
8. The defendant, which is the second-tier tax authority, having heard the 
administrative appeal lodged by the applicant, confirmed the decision of the first-
tier tax authority […] of 6 March 2024 (‘the second-tier decision’). 
9. According to the grounds of the second-tier decision, the first-tier tax 
authority acted correctly in ruling exclusively on a point of law, on the basis of the 
tax return filed in writing by the taxable person. In accordance with the az Ukrajna 
területén fennálló fegyveres konfliktusra, illetve humanitárius katasztrófára 
tekintettel, valamint ezek magyarországi következményeinek az elhárítása és 
kezelése érdekében veszélyhelyzet kihirdetéséről és egyes veszélyhelyzeti 
NITROGÉNMŰVEK 
 
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szabályokról szóló 424/2022. (X. 28.) Kormányrendelet (Government Decree 
No 424/2022 of 28 October 2022 on the declaration, in the light of the armed 
conflict and humanitarian disaster in the territory of Ukraine, of a state of 
emergency to prevent and deal with the consequences of that situation in Hungary 
and on certain emergency provisions; ‘the Government Decree on the state of 
emergency’), the Government, with Parliament’s authorisation, declared a state of 
emergency and accordingly established at that time a special legal framework 
which remains in force and under which the Government Decree contested by the 
applicant was enacted and entered into force. Paragraphs 48 and 53 of the 
Hungarian Basic Law provides that, under a special legal framework, the 
Government can issue decrees and the tax authority must therefore apply the 
provisions of the Government Decree contested by the applicant. As a law-
enforcement body, the tax authority is not empowered to rule on the legality of a 
rule of law from the point of view of any incompatibility on the part of the latter 
with the provisions of the Hungarian Constitution or EU law. In this regard, the 
defendant referred to judgment Kfv.I.35.001/2020/3 of the Kúria, according to 
which a ruling on the substance of an infringement of EU law must be given in 
judicial review proceedings. 
10. Nonetheless, the defendant stated that, since, at the time when the 
supplementary tax return was filed, neither the Constitutional Court nor the Court 
of Justice had ruled on the incompatibility of the Government Decree with the 
Hungarian Constitution or with a binding legal act of the European Union, 
respectively, the applicant was entitled to submit a supplementary tax return to 
that end. The second-tier decision also stated that none of the decisions of the 
Court of Justice or of the Hungarian Constitutional Court cited in the applicant’s 
administrative appeal expressed the position of those courts with respect to the 
Government Decree contested by the taxable person. In the light of the foregoing, 
given that the Nemzeti Adó- és Vámhivatal (National Tax and Customs 
Authority) is not competent to decide on the possible conflict between EU law and 
national law highlighted in the applicant’s supplementary tax return, the defendant 
considered that the first-tier tax authority had acted correctly in rejecting the 
applicant’s supplementary tax return. 
Forms of order sought by the applicant 
11. By its action for judicial review, the applicant claims principally that the 
first- and second-tier decisions – which it considers to be unlawful – should be 
amended in such a way that the court allows its supplementary tax return. In the 
alternative, it claims that the first- and second-tier decisions should be annulled 
and that the defendant should be ordered to conduct new proceedings and issue a 
new decision. 
12. As regards the legal infringement, it submits that the decisions at issue are 
contrary to Paragraph I(3) and Paragraph XXX(1) of the Hungarian Basic Law, 
infringe the prohibition against legislating retroactively laid down in Paragraph 
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B(1) of that Basic Law, and breach the right to an appropriate preparation period; 
that they are incompatible with the EU emissions trading scheme and contrary to 
the ETS Directive and the objectives pursued by it – in particular Articles 1, 3(f), 
10 and 11 and recitals 5, 7 and 20 of that directive—; that they infringe 
Articles 18, 49, 56, 107 and 108 TFEU, Articles 17, 21 and 47 of the Charter and 
Article 14 of the ECHR and Article 1 of the First Additional Protocol thereto, 
thereby infringing EU law and, moreover, Paragraphs 73(1)(c) and 130 of the az 
adóigazgatási rendtartásról szóló 2017. évi CLI. törvény (Law CLI of 2017 
governing tax administration). 
13. As regards the conflict with a binding legal act of the European Union, the 
applicant submits that the tax on carbon dioxide quotas is incompatible with the 
emissions trading scheme and contrary to the objective of the ETS Directive of 
maintaining the integrity of the internal market and competitiveness, since it 
deprives operators of the compensation of competition and of the incentive to 
avoid carbon leakage which the European Union sought to ensure through the free 
transfer of allowances. It points up that, in so far as liability to the tax on carbon 
quotas is based on the fact that the operator receives a number of free emission 
allowances, that levy is directly linked to the free emissions themselves. It is thus 
contrary to the mechanism for the allocation of free emission allowances 
established in the ETS Directive and has the effect in practice of divesting the free 
emission allowances of their character as allowances allocated without 
consideration. It thereby neutralises the objectives which the European Union 
sought to achieve through the free transfer of emission allowances. It is the 
applicant’s opinion that, in imposing the tax on carbon dioxide quotas, the 
Hungarian State is confiscating the benefits granted to operators free of charge by 
the European Union and, through taxation, is in fact depriving operators of 
financial assets intended to preserve the integrity of the EU market. 
14. In support of its position, the applicant cites several decisions of the Court of 
Justice [judgments of 26 February 2015, ŠKO-Energo (C-43/14, EU:C:2015:120), 
of 17 October 2013, Iberdrola and Others (C-566/11, C-567/11, C-580/11, 
C-591/11, C-620/11 and C-640/11, EU:C:2013:660), and of 12 April 2018, PPC 
Power (C-302/17, EU:C:2018:245)] which make clear its rule of case-law to the 
effect that any charge which eliminates the free nature of the free allocation of 
emission allowances is contrary to EU law. 
15. Also citing the settled case-law of the Court of Justice, it submits that 
national provisions which constitute an obstacle to the exercise of fundamental 
freedoms guaranteed by the Treaty must meet four conditions: they must be 
applied in a non-discriminatory manner; they must be justified by an overriding 
reason in the public interest; the must be suitable for securing the attainment of the 
objective which they pursue; and they must not go beyond what is necessary to 
attain that objective. In other words, any such restriction must be based on actual 
facts and be proportionate and compatible with fundamental rights, in particular 
with the ECHR and the Charter. In the field of fundamental rights, the prohibition 
of unfavourable discrimination laid down in Article 18 TFEU finds expression in 
NITROGÉNMŰVEK 
 
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Article 49 TFEU, in the field of freedom of establishment, and in Article 56 
TFEU, in the field of the freedom to provide services. Consequently, if the 
legislation in question is discriminatory, it infringes the freedom of establishment 
or the freedom to provide services. The provisions of the Charter may be relied 
on – pursuant to Article 51(1) thereof – where the Member States implement EU 
law. A Member State is regarded as implementing EU law if it adopts legislation – 
albeit falling within the scope of national competence – the effect of which is to 
restrict the freedom of movement. Consequently, such a restriction must also 
comply with the provisions of the Charter and is justifiable only if it is a necessary 
and proportionate means of securing a legitimate objective in the public interest. 
16. The applicant complains that the definition of the scope ratione personae of 
the Government Decree is completely arbitrary. In its view, the Government 
Decree discriminates against operators that fall within its scope as compared with 
those that do not, as well as against operators falling within its scope who are 
established in Hungary as compared with operators from other Member States. 
That legislation is contrary both to the freedom of establishment and to the 
freedom to provide services, since it contains a disproportionate restriction not 
justified by an overriding reason in the public interest, in breach of the principle of 
non-discrimination, and in the light also of the concept of ‘operator’ in Article 3(f) 
of the ETS Directive. Furthermore, in conferring a selective advantage on other 
economic operators, the Government Decree also constitutes non-notified State 
aid which infringes Articles 107 and 108 TFEU. 
17. The applicant takes the view that, in so far as it is confiscatory, as explained 
above, and constitutes a disproportionate and intolerable interference which 
deprives the applicant of all of its gains in the immediate future, the legislation 
also constitutes a disproportionate and intolerable restriction on the right to 
property and thus infringes the protection of the right to property guaranteed by 
Article 17 of the Charter and Article 1 of the First Additional Protocol to the 
ECHR. 
18. It further notes that any restriction of the fundamental freedoms must also 
respect the principles of legal certainty and the protection of legitimate 
expectations, meaning that it must be foreseeable and allow those affected enough 
time to make the amendments required by the legislative changes in question. The 
absence of a transitional period infringes those principles. 
19. In the light of the foregoing, the applicant asks the referring court to institute 
proceedings to make a reference to the Court of Justice for a preliminary ruling on 
the questions set out in the operative part of this order. 
Defence 
20. In its defence, the defendant contends that the action for judicial review 
should be dismissed, and maintains the legal reasoning set out in the grounds of 
the decision against which this action is directed. As regards the institution of 
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proceedings to make a reference to the Court of Justice for a preliminary ruling, 
the defendant considers that the Government Decree does not infringe the 
provisions of the ETS Directive and is not contrary to the rule of case-law 
followed in the aforementioned cases before the Court of Justice. 
21. It notes that, in the case [which gave rise to the judgment of 26 February 
2015, ŠKO-Energo (C-43/14, EU:C:2015:120)], to which the applicant refers, the 
Court of Justice stated that the gift tax on the free allocation of emission 
allowances was based on the circumstances of the free allocation. It was a fiscal 
charge which was levied retrospectively on the allocation and was therefore 
incompatible with the free nature of that allocation. Under the Hungarian 
legislation, however (contrary to what the applicant states and unlike in the case of 
the Czech legislation), the applicant is liable for the tax not only because it 
receives the free allocation of emission allowances but also because another 
cumulative condition is also met. Thus, Paragraph 1 of the Government Decree, 
which governs the scope ratione personae of the legal act, lays down cumulative 
conditions. The fact that the applicant is in receipt of free emission allowances 
equivalent to at least 50% of the average of its total carbon dioxide emissions is 
only one of those conditions. The other condition is that its average annual 
certified carbon dioxide emissions in the three years preceding the year in 
question must exceed the statutory limit (25 000 tonnes). 
22. In its opinion, the contested Government Decree is likewise not at odds with 
the decision of the Court of Justice in the case [which gave rise to the judgment of 
17 October 2013, Iberdrola and Others (C-566/11, C-567/11, C-580/11, 
C-591/11, C-620/11 and C-640/11, EU:C:2013:660)] or with the provisions of the 
ETS Directive. The applicant is able to use the emission allowances allocated to it 
free of charge and is not deprived of them by the legislation in question. Neither is 
the Hungarian legislation contrary to the aforementioned articles of the TFEU or 
to the purpose of the ETS Directive, since the Member States may take into 
consideration decisions of a financial nature adopted in pursuit of the same 
objective and the implications of such decisions. This is also the purport of the 
wording of recital 23 of the ETS Directive. Without prejudice to the application of 
Articles 87 and 88 TFEU, where activities fall within the scope of the ETS 
Directive, Member States may consider the implications of regulatory, fiscal or 
other policies that pursue the same objectives. 
23. The defendant also states that the Government Decree is not at odds with the 
judgment [of 12 April 2018, PPC Power (C-302/17, EU:C:2018:245)]. This is the 
case because the Government Decree taxes not (the amount of) the emission 
allowances but the fact that the taxable person fulfils the aforementioned two 
cumulative conditions. What is more, according to Paragraph 3(3) of the current 
Government Decree, the tax on carbon dioxide quotas is equal to the amount in 
forints equivalent to EUR 36/tCO2. Under that legislation, the tax rate is lower 
than 80%, the percentage which the Court of Justice held in that judgment to be 
contrary to EU law. Moreover, the defendant notes that Paragraph 3(6) of the 
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Government Decree also allows taxable persons such as the applicant to reduce 
their taxable amount under clearly regulated and defined conditions. 
24. As regards the applicant’s arguments relating to the freedom of 
establishment, the defendant refers to the findings set out in the judgments of the 
Court of Justice in the cases relating to the special tax in the store retail sector 
[(judgment of 3 March 2020, Tesco-Global Áruházak, C-323/18, 
EU:C:2020:140)] and the special tax on telecommunications [(judgment of 
3 March 2020, Vodafone Magyarország, C-75/18, EU:C:2020:139)]. It regards as 
incomprehensible the applicant’s argument that the Government Decree also 
somehow infringed its freedom of establishment, since the taxable person is a 
company established in Hungary and its establishment or the commencement or 
continuation of its business activities in another Member State is not from any 
point of view the subject of the present case. The taxable amount is not in any way 
linked to the question of establishment. In this context, reference is also made to 
the judgment in the case [which gave rise to the judgment of 17 October 2013, 
Iberdrola and Others (C-566/11, C-567/11, C-580/11, C-591/11, C-620/11 and 
C-640/11, EU:C:2013:660)], in which the Court of Justice itself did not consider 
the national measure relating to remuneration in connection with free EU emission 
allowances to be contrary to EU law. Thus, as the applicant is aware, another 
Member State also operates measures relating to the remuneration payable in 
connection with free emission allowances, which the Court of Justice has not 
regarded as being liable to place the undertaking concerned at a competitive 
disadvantage on the market or to constitute an infringement of its right to property 
or of its freedom of establishment. 
25. According to the defendant, the claim as to infringement of the freedom to 
provide services is a further unfounded allegation by the applicant, since it bears 
no relation to the subject matter of the dispute. 
26. In response to the applicant’s reference to [the judgment of the Court of 
Justice of 16 July 2020, Adusbef and Others (C-686/18, EU:C:2020:567)], the 
defendant submits that that was the very judgment in which the Court of Justice 
held that the freedom to conduct a business is not an absolute and may be subject 
to a broad range of interventions on the part of public authorities which may limit 
the exercise of economic activity in the public interest. The right to property is not 
an absolute and its exercise may be the subject of restrictions. 
27. In the light of the foregoing, the defendant considers that the Government 
Decree is in accordance both with EU law and with the case-law of the Court of 
Justice. 
Legislative framework 
28. 1. European Union law 
- Recitals 5, 7 and 20 of the ETS Directive. 
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- Articles 1, 3(f), 10 and 11 of the ETS Directive. 
- Articles 18, 49, 56, 107 and 108 TFEU. 
- Articles 17, 21 and 47 of the Charter. 
- Article 14 of the ECHR and Article 1 of the First Additional Protocol 
thereto. 
29. 2. Hungarian law 
The statutory provisions already cited in the statement of facts. 
The Government Decree: 
— Paragraph 1(1), which establishes the scope ratione personae of the 
Government Decree, and in accordance with which, for the purposes of that 
Government Decree, ‘operator of an installation qualifying for a significant free 
allocation of emission allowances’ means an operator whose installation: 
(a) has a ‘product benchmark sub-installation’ within the meaning of 
Article 2(2) of Commission Delegated Regulation (EU) 2019/331 of 
19 December 2018 determining transitional Union-wide rules for 
harmonised free allocation of emission allowances pursuant to 
Article 10a of Directive 2003/87/EC of the European Parliament and 
of the Council, or a ‘process emissions sub-installation’ within the 
meaning of Article 2(10) of that regulation; 
(b) in relation to the installations provided for in point (a), 
ba) produced annual average certified emissions of carbon dioxide in 
the three years preceding the year in question in excess of 25 000 
tonnes; and 
bb) received in the year prior to the year in question a free allocation of 
emission allowances equivalent to at least 50% of the average of its 
total certified emissions of carbon dioxide in the three years preceding 
the year in question. 
— Paragraph 3(1) to (6), which lays down the rules for determining the taxable 
amount as follows: 
(1) An installation operator in receipt of a significant free allocation of emission 
allowances shall be liable for the tax on carbon dioxide quotas referred to in 
paragraphs 2 to 8. The taxable person shall determine the taxable amount and the 
tax liability for each tax year and shall file a return by 31 May of the year 
following the tax year in question, on a form provided by the National Tax and 
Customs Authority. 
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(2) The taxable amount of the tax on carbon dioxide quotas shall be the quantity 
of emissions, within the meaning of Paragraph 2(14) of the az üvegházhatású 
gázok közösségi kereskedelmi rendszerében és az erőfeszítés-megosztási 
határozat végrehajtásában történő részvételről szóló 2012. évi CCXVII. törvény 
(Law CCXVII of 2012 Law No 217 of 2012 on participation in the scheme for 
greenhouse gas [emission allowance] trading within the Community and the 
implementation of the decision on effort sharing; ‘the Law on participation’), 
produced by the taxable person referred to in paragraph 1, calculated in tonnes of 
CO2. 
(3) The tax on carbon dioxide quotas shall be equal to the amount in forints 
equivalent to EUR 36/tCO2. 
[…] [Paragraphs irrelevant to the present case] 
(6) If, on the basis of the annual certified emissions report for the year in 
question, referred to in the Law on participation, in respect of the taxable person 
referred to in paragraph 1 (‘the annual emissions report’), 
(a) the level of the taxable person’s carbon dioxide-emitting production reaches 
or exceeds at least 90% of capacity for the main activity specified in the standard 
environmental use permit; 
(b) capacity for the taxable person’s main activity, as specified in his or her 
standard environmental use permit in force on the date of entry into force of this 
Government Decree, has not decreased by comparison with the capacity specified 
in his or her standard environmental use permit for the year preceding the year in 
question; and 
(c) the taxable person’s unit carbon dioxide emissions per unit of production 
have decreased, by comparison with the certified emissions for the second year 
preceding the year in question, by an amount at least equal to the linear production 
factor —in force in the year in question – used and required under the EU 
emissions trading scheme, the taxable person may reduce the taxable amount for 
the tax by 50% in his or her tax return. 
— Paragraph 4 sets the date of entry into force of the Government Decree as the 
third day following the date of its publication. 
Reasons for the questions referred for a preliminary ruling 
30. As the applicant too has stated, the central issue in the present dispute is to 
determine whether the tax on carbon dioxide quotas is incompatible with the 
emission allowances trading scheme, whether it is contrary to the objectives 
pursued by the ETS Directive and, therefore, whether it infringes EU law. 
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31. The referring court considers that this question is also relevant to the present 
case given that Paragraph 195 of the Law on General Tax Procedure, on which the 
defendant’s decision is based, was applicable because the applicant claimed in its 
supplementary tax return that the Government Decree imposing the tax on carbon 
dioxide quotas is contrary to a binding legal act of the European Union. 
32. In the light of the foregoing, the following must in any event be determined 
in order to settle the dispute: whether the tax on carbon dioxide quotas, in the light 
of how liability to it is determined, counts as a charge directly related to free 
emission [allowances]; whether the determination of the taxable amount has the 
effect of cancelling out the free nature of emission allowances; as well as, in this 
regard, whether the tax on emission quotas may be regarded as confiscatory in 
nature and is as such in breach of the right to property; whether the provisions of 
the Government Decree relating to the determination of liability to the 
aforementioned tax are arbitrary and discriminatory and therefore infringe the 
freedom of establishment and the freedom to provide services; and whether the 
provision relating to the entry into force of the Government Decree infringes the 
principles of legal certainty and the protection of legitimate expectations. 
33. The judgments of the Court of Justice cited by the applicant, or the parts 
thereof to which it refers, make no specific reference or bear any relation to this 
matter. 
34. The referring court therefore considers that the answers to the questions 
referred for a preliminary ruling in this order cannot be clearly inferred from the 
judgments cited by the applicant, given that the subject of matter of those disputes 
is different. In the judgment [which gave rise to the judgment of 26 February 
2015, ŠKO-Energo (C-43/14, EU:C:2015:120)], the Court of Justice held that the 
gift tax on the free allocation of emission allowances is based on the 
circumstances of the free allocation; in the case [which gave rise to the judgment 
of 17 October 2013, Iberdrola and Others (C-566/11, C-567/11, C-580/11, 
C-591/11, C-620/11 and C-640/11, EU:C:2013:660)], unlike in the present case, 
the applicant can use the emission allowances allocated to it free of charge and is 
not deprived of those allowances by the aforementioned legislation. For its part, 
the case [which gave rise to the judgment of 12 April 2018, PPC Power 
(C-302/17, EU:C:2018:245)] concerns the taxation of emission allowances (the 
rate of tax applicable to them). 
[…] [Matters of national procedural law] 
Veszprém, 8 July 2024. 
[…] [signatures]