Opinion of the Advocate General — ECLI:EU:C:2017:422
Date: 2017-06-01
Language of the case: Spanish
Subject matter: Energy;Environment;Taxation;Approximation of laws;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (First Chamber), 20 September 2017 1. Environment — Promotion of the use of energy from renewable sources — Directive 2009/28 — Mandatory targets for the overall share of energy from renewable sources — Measures adopted to attain those objectives — Member States’ discretion — National legislation imposing a levy on turbines designed to produce electricity — Lawfulness (European Parliament and Council Directive 2009/28, Arts 2, second para., (k), 3 and 13(1), second para., (e), and Annex I) 2. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity — Directive 2003/96 — Scope — Levy imposed on turbines designed to produce electricity — Not included (Council Directive 2003/96, Arts 1, 2(1) and (2) and (4) 3. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity and excise duty — Directives 2003/96 and 2008/118 — National legislation imposing a levy on turbines designed to produce electricity — Lawfulness (Council Directives 2003/96, Art. 2(1) and 2008/118, Art. 1(2)) 1. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, in particular, subparagraph (k) of the second subparagraph of Article 2 and subparagraph (e) of the second subparagraph of Article 13(1) thereof, must be interpreted as not precluding national legislation, such as that at issue in the cases in the main proceedings, which provides for the application of a levy on wind turbines designed to produce electricity. It is true that the increase in the use of renewable energy sources for the production of electricity constitutes one of the important components of the package of measures needed in order to reduce greenhouse gas emissions, which are amongst the main causes of climate change that the European Union and its Member States have pledged to combat, and to comply, in particular, with the Kyoto Protocol to the United Nations Framework Convention on Climate Change. Such an increase is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU. However, even assuming that it were accepted that that levy, notwithstanding its regional scope and the fact that it relates to a single renewable energy source, is capable of meaning that the Member State concerned does not comply with the mandatory national overall target set out in Part A of Annex I to Directive 2009/28, the result would be, at most, an infringement, by that Member State, of its obligations under that directive, without, thereby, the imposition of such a levy being regarded in itself as contrary to that directive, since the Member States have, as pointed out in paragraph 32 above, discretion to attain that objective, provided that they observe the fundamental freedoms guaranteed by the TFEU. (see paras 38, 40, 41, operative part 1) 2. Article 4 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 not precluding national legislation, such as that at issue in the cases in the main proceedings, which provides for the application of a levy on wind turbines designed to produce electricity, since that levy does not tax energy products or electricity, within the meaning of Article 1 and Article 2(1) and (2) of that directive, and, therefore, does not fall within its scope. (see para. 54, operative part 2) 3. Article 1(2) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC must be interpreted as not precluding national legislation, such as that at issue in the cases in the main proceedings, which provides for the application of a levy on wind turbines designed to produce electricity, since that levy does not constitute a tax imposed on the consumption of energy products or electricity, and, therefore, does not fall within the scope of that directive. (see para. 65, operative part 3)