Order;Summary — ECLI:EU:C:2022:83
Date: 2022-02-07
Language of the case: Portuguese
Court formation: Eighth Chamber
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Portugal

Translation C-460/21 – 1 
Case C-460/21 
Request for a preliminary ruling 
Date lodged: 
26 July 2021 
Referring court: 
Tribunal Arbitral Tributário (Centro de Arbitragem 
Administrativa – CAAD) (Portugal) 
Date of the decision to refer: 
12 July 2021 
Applicant: 
Vapo Atlantic, SA. 
Defendant: 
Autoridade Tributária e Aduaneira  
  
CAAD: Tax arbitration 
[…] Subject matter of the main proceedings: Road network user charge. 
Request for a preliminary ruling. 
ARBITRATION DECISION 
Arbitration agreement 
1. VAPO ATLANTIC, SA, […] requests the establishment of an arbitration 
tribunal in accordance with Article 2(1)(a) and Article 10 of Decree-Law 
No 10/2011 of 20 January 2011, to examine the legality of the Contribuição de 
Serviço Rodoviário (road network user charge, the ‘CSR’) charge notices 
corresponding to the period between January [and] December 2016, amounting to 
a total of 4 873 427.68 euros, and the legality of the decision rejecting the claim 
lodged against the aforesaid charge notices. 
It provides the following reasons for its request. 
The applicant is a company whose corporate purpose, inter alia, is the operation of 
fuel supply points and the wholesale marketing of petroleum products. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 12. 7. 2021 – CASE C-460/21 
 
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In carrying out its activities, and on the basis of the release for consumption 
declarations made by the company, the tax authorities jointly issued charge 
notices corresponding to the Imposto sobre Produtos Petrolíferos e Energéticos 
(Portuguese tax on petroleum and energy products, the ‘ISP’), the CSR and other 
taxes. These levies covered the period between January [and] December 2016, 
amounting to a total of 21 016 425.44 euros, of which 4 873 427.68 euros 
corresponds to the CSR, the latter being the subject of this application for 
arbitration proceedings. 
The applicant lodged […] a claim against the charge notices, but this was rejected 
in a decision by the director of Braga customs office. 
The CSR is a tax levied on the main road fuels – petrol, diesel and LPG. These 
fuels are also subject to the ISP, and although the CSR is subject to the ISP’s 
regulatory provisions, it is regarded as a separate tax with its own legal 
framework, structure and purpose. 
At EU level, the taxation of petroleum and energy products is governed by 
Directive 2008/118 of 16 December 2008 establishing the common structure for 
harmonised excise duty, and by Directive 2003/96 of 27 October 2003 specifically 
referring to the taxation of petroleum and energy products. 
To avoid compromising the harmonised system [for excise duties], Directive 
2008/118 of 16 December 2008 makes the introduction of such non-harmonised 
duties subject to the dual condition that they a) comply with the essential structure 
of excise duties and of VAT and b) are collected for ‘specific purposes.’ 
These ‘specific purposes’ cannot relate to a solely budgetary purpose of obtaining 
revenue and, even though the fact that the sums levied are used to finance certain 
expenditure may indicate the existence of a ‘specific purpose’ for introducing 
such taxes, there must be a direct link between how the sums levied are used and 
the purpose of the tax. 
According to the applicant, the CSR was introduced solely for budgetary 
purposes. 
Law No 55/2007 of 31 August 2007) establishing the CSR does not refer to any 
environmental, energy or social policy objective, and the reasons put forward by 
legislature refer to the need to obtain own resources to fund EP – Estradas de 
Portugal, EPE, a public undertaking that holds the concession contract to operate 
the national road network. It has since been replaced by Infraestruturas de 
Portugal, IP, SA, with the result that the CSR is generally levied in order to 
finance Estradas de Portugal, EPE. 
Furthermore, the structure of the CSR does not indicate that its introduction was 
underpinned by any ‘specific purpose’ of environmental, energy or social policy. 
On the contrary, the CSR’s taxable event, its territorial scope and its tax rate 
structure, which differ from those of the ISP, demonstrate that the objective 
VAPO ATLANTIC 
 
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underpinning its introduction is that of securing its own source of stable revenue 
for a public entity, rather than to discourage certain behaviour by taxpayers. 
Consequently, the CSR introduced by Law No 55/2007 of 31 August 2007 must 
be regarded as a tax that does not comply with Article 1(2) of Directive 2008/118 
of 16 December 2008. As such, having been assessed as being in breach of EU 
law, the Member States have an obligation to repay the sum of the tax unduly 
levied. 
Although the Court of Justice has recognised that Member States may refuse to 
reimburse taxes levied in breach of EU law where it is established that such 
reimbursement would give rise to unjust enrichment of the taxpayer, this 
derogation is only permitted under very strict conditions, and it must be proven 
that the tax is actually passed on, something which cannot be presumed by the tax 
authorities. 
Furthermore, even if such impact is proven, it cannot be concluded that there has 
been unjust enrichment of the taxable person, since the impact is likely to lead to a 
greater or lesser fall in turnover. 
Finally, the applicant suggests, in the alternative, the possibility of referring a 
question to the Court of Justice for a preliminary ruling should there be doubts as 
to the legislative framework into which the question under consideration is 
incorporated under EU law. 
In their defence, the Portugal tax authorities take the view that it is possible to 
establish a link between the allocation of revenue from the CSR and the specific 
purpose for which it was set up, given that the law confers the national road 
network concession contract to EP – Estradas de Portugal, EPE (now 
Infraestruturas de Portugal, SA), and that this entity is financed by its users in 
accordance with the user-pays principle, and only in the alternative by the State  –
the CSR is a payment for use of the national road network. 
It argues that, since the CSR is Infraestruturas de Portugal, SA’s own revenue, the 
question of the underlying objectives and purposes of this tax should be 
considered in the light of Decree-Law No 380/2007 of 13 November 2007, which 
established the basis for that concession contract and determined the 
concessionaire’s sources of funding, on the understanding, according to Section 
II(4)(b), that the underlying objectives of Infraestruturas de Portugal’s activity are 
environmental sustainability and reducing accidents, objectives that can be 
regarded as the ‘specific purposes’ or ‘raison d’être’ of introducing the CSR and 
which cannot be limited merely to budgetary purposes. 
On the other hand, while there is no formal mechanism for passing on the tax, the 
specific tax structure of the CSR highlights the impact of this tax on the retail 
price, so that reimbursement of the sums paid in CSR by the taxable person would 
amount to a situation of unjust enrichment. 
REQUEST FOR A PRELIMINARY RULING OF 12. 7. 2021 – CASE C-460/21 
 
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As regards the request for a preliminary ruling lodged by the applicant, although 
they suggest that the charge notices should be regarded as compliant with EU law, 
the Portuguese tax authorities add that if the Tribunal Arbitral Tributário does not 
agree with the view expressed in the defence, it must stay the proceedings and 
grant the request for a preliminary ruling. 
2. The facts relevant to the assessment of the case are as follows: 
a) VAPO ATLANTIC is a company whose corporate purpose is, inter alia, the 
operation of fuel delivery points and the wholesale marketing of petroleum 
products. 
b) in carrying out its activities, and on the basis of the release for consumption 
declarations made by the company, the tax authorities jointly issued charge 
notices corresponding to the Imposto sobre Produtos Petrolíferos e Energéticos 
(ISP) and the CSR. These levies covered the period between January and 
December 2016. 
c) The applicant was liable for a total of 4 873 427.68 euros in CSR payments. 
d) On 10 February 2020, pursuant to Article 78(1) of Portugal’s Lei Geral 
Tributária (general tax law), the applicant lodged a claim against the tax notices. 
e) On 23 July 2020, the director of Braga customs office issued a decision 
rejecting the aforesaid claim. 
f) In the decision rejecting the claim, referring to a report from the tax 
authorities, the CSR’s incompatibility with the provisions of Directive 2008/118 
was dismissed. It was held that tax is borne by taxpayers when purchasing fuel, 
and therefore the claim for reimbursement of the tax amounts to unjust 
enrichment. 
3. The question arises as to whether the CSR, which was introduced by Law 
No 55/2007 of 31 August 2007 and is a tax on fuel consumption, which is in turn 
subject to the tax on petroleum products within the scope of Directive 2008/118, 
has a ‘specific purpose’ within the meaning of Article 1(2) of that Directive. 
Pursuant to the aforesaid Law No 55/2007, the purpose of the CSR is the 
financing of the national road network by EP – Estradas de Portugal, EPE 
(Article 1), which has since changed its name to Infraestruturas de Portugal, 
S.A. The national road network run by that entity is financed by users of the road 
network and, in the alternative, by the State, in accordance with the law and with 
the relevant concession contract (Article 2). 
That same charge corresponds to payment for use of the national road network, 
which is reflected in fuel consumption, and is a source of funding for the national 
road network run by Infraestruturas de Portugal, SA, as regards its design, 
planning, construction, conservation, operation, modernisation and expansion, 
VAPO ATLANTIC 
 
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even though levying the charge does not prevent the application of tolls on 
specific roads or recourse to other forms of financing by the concessionaire 
(Article 3). 
The charge is levied on petrol and diesel subject to the tax on petroleum and 
energy products not exempt from the latter (Article 4(1)) and is payable by 
persons liable for that tax, with the provisions of Portugal’s Código dos Impostos 
Especiais de Consumo (excise duty code) being applicable to liability for, 
collection and payment of that tax (Article 5(1)). 
The design, planning, construction, conservation, operation, modernisation and 
extension of the national road network, which is financed through the CSR, was 
awarded to EP – Estradas de Portugal, EPE (now Infraestruturas de Portugal, SA) 
under a concession contract by Decree-law No 380/2007 of 13 November 2007 
approving the bases for the concession contract and establishing, inter alia, that 
this tax constitutes that entity’s own revenue [basis 3(b)]. On the other hand, the 
aforesaid bases set out, as one of the concessionaire’s obligations, the ‘objectives 
of environmental sustainability and reducing accidents.’ 
In the light of the legal provisions briefly set out, the applicant argues that the 
CSR was established solely for budgetary reasons, in order to obtain its own 
revenue for financing the public entity that holds the concession contract for the 
national road network, in breach of EU law and, in particular, Article 1(2) of 
Directive 2008/118. 
The tax authorities argue, on the other hand, that the activity of Infraestruturas de 
Portugal is based on the attainment of the objectives of environmental 
sustainability and reducing accidents, objectives that may be regarded as ‘specific 
purposes’ or the ‘raison d’être’ for introducing the charge, and which cannot be 
limited merely to budgetary purposes. 
There is also a disagreement between the parties concerning the right to 
reimbursement of the tax borne by the taxable person in the light of it potentially 
being passed on to the end consumer. 
Request for a preliminary ruling 
4. This case concerns the interpretation of provisions of EU law whose reading 
has raised doubts. Moreover, the Court of Justice does not appear to have 
expressly ruled on the essential question raised here and, in particular, on the 
compatibility of the CSR’s legal provisions with the provisions of Article 1(2) of 
Directive 2008/118. 
The Court of Justice has granted requests for a preliminary ruling in the context of 
tax arbitration proceedings and, since an appeal on the merits is not possible –
 unless questions of unconstitutionality are raised, or an appeal can be brought to 
ensure the consistency of case-law – it must be held that the requirements laid 
down in Article 267(3) CJEU, under which reference for a preliminary ruling is 
REQUEST FOR A PRELIMINARY RULING OF 12. 7. 2021 – CASE C-460/21 
 
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mandatory where a decision on a question concerning the interpretation of EU law 
is necessary to enable a case pending before a national court to be decided, have 
been met. 
In the alternative, the parties propose that the preliminary ruling mechanism is 
triggered where there are doubts as to the legislative framework into which the 
question under consideration is incorporated under EU law. 
III – Decision 
It is decided that: 
a) The following questions should be referred to the Court of Justice for a 
preliminary ruling: 
1. Should Article 1(2) of Directive 2008/118/EC of the Council of 
16 December 2008, and in particular the requirement relating to the 
existence of ‘specific purposes’ be interpreted as meaning that the purpose 
of a tax is purely budgetary when, on the one hand, it was set up in order to 
finance the public body holding the concession contract for the national road 
network, at the time of the renewal of its concession contract, to which the 
revenues generated by that tax are generally allocated and, on the other 
hand, its structure does not indicate an intent to discourage consumption? 
2. Do EU law and the principles of legality and legal certainty permit 
national authorities to refuse, based on unjust enrichment of the taxable 
person, to reimburse indirect taxes contrary to Directive 2008/118/EC of 
16 December 2008 in the absence of specific legal provisions of national law 
that provide for this? 
3. Does EU law permit national authorities, when justifying the refusal to 
reimburse indirect taxes contrary to Directive 2008/118/EC of 16 December 
2008, to make assumptions regarding the passing on of the tax and the unjust 
enrichment of the taxable person, by requiring the latter to prove that they 
did not occur? 
b) There should be a stay of proceedings until the Court of Justice has 
given a ruling in this regard […] [reference to the national 
proceedings]. 
For notification. 
Lisbon, 12 July 2021. 
[…] 
[signatures]