Provisional text
JUDGMENT OF THE COURT (Ninth Chamber)
16 October 2025 (*)
( Reference for a preliminary ruling – Article 191(2) TFEU – EU policy on the environment – Regulation (EU) 2021/1119 – EU climate-neutrality objective – Directive (EU) 2019/944 – Common rules for the internal market for electricity – National legislation imposing an income tax on producers of electricity from renewable sources – Exemption for producers of electricity from fossil fuels and biomass )
In Case C‑391/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel București (Court of Appeal, Bucharest, Romania), made by decision of 7 February 2023, received at the Court on 27 June 2023, in the proceedings
Brăila Winds SRL
v
Direcția Generală Regională a Finanțelor Publice București – Administrația Fiscală pentru Contribuabili Mijlocii București,
Ministerul Finanțelor,
Președintele Agenției Naționale de Administrare Fiscală,
Agenția Națională de Administrare Fiscală,
THE COURT (Ninth Chamber),
composed of M. Condinanzi, President of the Chamber, I. Jarukaitis (Rapporteur), President of the Fourth Chamber, and N. Jääskinen, Judge,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Brăila Winds SRL, by C.-A. Bîrsan, E.-D. Gramaticescu and A.-C. Lăcureanu, avocați,
–        the European Commission, by I. Georgiopoulos, L. Nicolae and K. Talabér-Ritz, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Articles 49, 56, 107, 108 and Article 191(2) TFEU, Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125), and Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’) (OJ 2021 L 243, p. 1).
2        The request has been made in proceedings between Brăila Winds SRL, a company producing electricity from wind power sources, and the Direcția Generală Regională a Finanțelor Publice București – Administrația Fiscală pentru Contribuabili Mijlocii București (Regional Directorate-General of Public Finances of Bucharest – Bucharest Tax Authority for Medium-sized Taxpayers, Romania), the Ministerul Finanțelor (Ministry of Finance, Romania), the Președintele Agenției Naționale de Administrare Fiscală (President of the National Agency for Tax Administration, Romania) and the Agenția Națională de Administrare Fiscală (National Agency for Tax Administration, Romania) (‘the ANAF’) concerning a tax levied on Brăila Winds in the amount of 80% of its income resulting from the difference between the average monthly selling price of its electricity and the price fixed by the national legislature.
Legal context
European Union law
The FEU Treaty
3        Article 191(2) TFEU is worded as follows:
‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the [European] Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage
should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.’
Directive 2019/944
4        Article 1 of Directive 2019/944, entitled ‘Subject matter’, provides, in the first and second paragraphs thereof:
‘This Directive establishes common rules for the generation, transmission, distribution, energy storage and supply of electricity, together with consumer protection provisions, with a view to creating truly integrated competitive, consumer-centred, flexible, fair and transparent electricity markets in the Union.
Using the advantages of an integrated market, this Directive aims to ensure affordable, transparent energy prices and costs for consumers, a high degree of security of supply and a smooth transition towards a sustainable low-carbon energy system. …’
5        Article 9 of that directive, entitled ‘Public service obligations’, provides, in paragraphs 1 and 2 thereof:
‘1.      Without prejudice to paragraph 2, Member States shall ensure, on the basis of their institutional organisation and with due regard to the principle of subsidiarity, that electricity undertakings operate in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market for electricity, and shall not discriminate between those undertakings as regards either rights or obligations.
2.      Having full regard to the relevant provisions of the TFEU, in particular Article 106 thereof, Member States may impose on undertakings operating in the electricity sector, in the general economic interest, public service obligations which may relate to security, including the security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory and verifiable, and shall guarantee equality of access for electricity undertakings of the Union to national consumers. Public service obligations which concern the price setting for the supply of electricity shall comply with the requirements set out in Article 5 of this Directive.’
6        Article 58 of that directive, entitled ‘General objectives of the regulatory authority’, provides:
‘In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of its duties and powers as laid down in Article 59, in close consultation with other relevant national authorities, including competition authorities, as well as authorities, including regulatory authorities, from neighbouring Member States and neighbouring third countries, as appropriate, and without prejudice to their competence:
(a)      promoting, in close cooperation with regulatory authorities of other Member States, the [European] Commission and [the European Union Agency for the Cooperation of Energy Regulators], a competitive, flexible, secure and environmentally sustainable internal market for electricity within the Union, and effective market opening for all customers and suppliers in the Union, and ensuring appropriate conditions for the effective and reliable operation of electricity networks, taking into account long-term objectives;
…
(c)      eliminating restrictions on trade in electricity between Member States, including developing appropriate cross-border transmission capacities to meet demand and enhancing the integration of national markets which may facilitate electricity flows across the Union;
…’.
Regulation 2021/1119
7        Article 1 of Regulation 2021/1119, entitled ‘Subject matter and scope’, provides:
‘This Regulation establishes a framework for the irreversible and gradual reduction of anthropogenic greenhouse gas emissions by sources and enhancement of removals by sinks regulated in Union law.
This Regulation sets out a binding objective of climate neutrality in the Union by 2050 in pursuit of the long-term temperature goal set out in point (a) of Article 2(1) of the Paris Agreement [on climate change, ratified by the European Union by Council Decision (EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (OJ 2016 L 282, p. 1)], and provides a framework for achieving progress in pursuit of the global adaptation goal established in Article 7 of the Paris Agreement. This Regulation also sets out a binding Union target of a net domestic reduction in greenhouse gas emissions for 2030.
…’
8        Article 2 of that regulation, entitled ‘Climate-neutrality objective’, provides:
‘1.      Union-wide greenhouse gas emissions and removals regulated in Union law shall be balanced within the Union at the latest by 2050, thus reducing emissions to net zero by that date, and the Union shall aim to achieve negative emissions thereafter.
2.      The relevant Union institutions and the Member States shall take the necessary measures at Union and national level, respectively, to enable the collective achievement of the climate-neutrality objective set out in paragraph 1, taking into account the importance of promoting both fairness and solidarity among Member States and cost-effectiveness in achieving this objective.’
9        Article 5 of that regulation, entitled ‘Adaptation to climate change’, provides, in paragraph 1 thereof:
‘The relevant Union institutions and the Member States shall ensure continuous progress in enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change in accordance with Article 7 of the Paris Agreement.’
10      Article 7 of that regulation, entitled ‘Assessment of national measures’, is worded as follows:
‘1.      By 30 September 2023, and every five years thereafter, the Commission shall assess:
(a)      the consistency of national measures identified, on the basis of the integrated national energy and climate plans, national long-term strategies and the biennial progress reports submitted in accordance with Regulation (EU) 2018/1999 [of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council (OJ 2018 L 328, p. 1)], as relevant for the achievement of the climate-neutrality objective set out in Article 2(1) of this Regulation with that objective;
(b)      the consistency of relevant national measures with ensuring progress on adaptation as referred to in Article 5, taking into account the national adaptation strategies referred to in Article 5(4).
…
2.      Where the Commission finds, after due consideration of the collective progress assessed in accordance with Article 6(1), that a Member State’s measures are inconsistent with the climate-neutrality objective set out in Article 2(1) or inconsistent with ensuring progress on adaptation as referred to in Article 5, it may issue recommendations to that Member State. The Commission shall make such recommendations publicly available.
3.      Where recommendations are issued in accordance with paragraph 2, the following principles shall apply:
(a)      the Member State concerned shall, within six months of receipt of the recommendations, notify the Commission on how it intends to take due account of the recommendations in a spirit of solidarity between Member States and the Union and between Member States;
(b)      after the submission of the notification referred to in point (a) of this paragraph, the Member State concerned shall set out, in its following integrated national energy and climate progress report submitted in accordance with Article 17 of Regulation [2018/1999], in the year following the year in which the recommendations were issued, how it has taken due account of the recommendations; if the Member State concerned decides not to address the recommendations or a substantial part thereof, that Member State shall provide the Commission its reasoning;
…’
Directive 2008/118/EC
11      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 (OJ 2008 L 9, p. 12) provided:
‘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 [Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)];
…
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 [(VAT)] as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions.
…’
Directive 2003/96
12      Article 1 of Directive 2003/96 is worded as follows:
‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’
13      Article 4 of that directive provides:
‘1.      The levels of taxation which Member States shall apply to the energy products and electricity listed in Article 2 may not be less than the minimum levels of taxation prescribed by this Directive.
2.      For the purpose of this Directive “level of taxation” is the total charge levied in respect of all indirect taxes (except VAT) calculated directly or indirectly on the quantity of energy products and electricity at the time of release for consumption.’
Romanian law
14      Article II of the Legea nr. 259/2021 pentru aprobarea Ordonanței de urgență a Guvernului nr. 118/2021 privind stabilirea unei scheme de compensare pentru consumul de energie electrică și gaze naturale pentru sezonul rece 2021-2022, precum și pentru completarea Ordonanței Guvernului nr. 27/1996 privind acordarea de facilități persoanelor care domiciliază sau lucrează în unele localități din Munții Apuseni și în Rezervația Biosferei ‘Delta Dunării’ (Law No 259/2021 approving Government Emergency Ordinance No 118/2021 on the establishment of a compensation scheme for the consumption of electricity and natural gas for the cold season 2021-2022 and supplementing Government Ordinance No 27/1996 on the granting of discounts to persons residing or working in certain localities in the Apuseni Mountains and in the Biosphere Reserve ‘Danube Delta’), of 29 October 2021 (Monitorul Oficial al României, Part I, No 1036 of 29 October 2021), as amended by the ordonanța de urgență a Guvernului nr. 11/2022 privind modificarea și completarea Legii nr. 259/2021 (Government Emergency Ordinance No 11/2022, amending and supplementing Law No 259/2021), of 16 February 2022 (Monitorul Oficial al României, Part I, No 163 of 17 February 2022) (‘Law No 259/2021’), provides:
‘1.      During the period of application of the provisions of [Government Emergency Ordinance No 118/2021], as amended and supplemented by this Law, the additional income earned by electricity producers resulting from the difference between the average monthly electricity selling price and the price of [450 Romanian lei (RON) (approximately EUR 89) per megawatt-hour (MWh)] shall be taxed at 80%.
2.      Producers of electricity from fossil fuels, including cogeneration, shall be exempt from the provisions of paragraph 1.
2bis      The tax provided for in paragraph 1 shall be declared and paid monthly by electricity producers, with the exception of those referred to in paragraph 2, up to and including the 25th day of the month following the month for which the tax is due. This tax shall be paid to the State budget, on a separate budget revenue account.
2ter      By way of derogation from paragraph 2bis, the tax referred to in paragraph 1 payable for the period from 1 November to 31 December 2021 shall be declared and paid by 25 January 2022 at the latest.’
15      Article III(3) of Government Emergency Ordinance No 11/2022, amending and supplementing Law No 259/2021, provides:
‘Producers of electricity from biomass shall be exempt from the provisions of Article II(1) of Law No 259/2021 … with effect from additional income obtained after 1 January 2022.’
16      Article I of the ordinul președintelui ANAF nr. 64/2022 privind aplicarea prevederilor articolului II din [Legea nr. 259/2021], precum și privind modificarea și completarea Ordinului președintelui [ANAF] nr. 587/2016 pentru aprobarea modelului și conținutului formularelor utilizate pentru declararea impozitelor și taxelor cu regim de stabilire prin autoimpunere sau reținere la sursă (Order of the President of the ANAF
No 64/2022 on the application of the provisions of Article II of Law No 259/2021 amending and supplementing Decree No 587/2016 of the President of the [ANAF] approving the model and content of the forms used for the declaration of tax and taxes subject to the self-assessment or withholding tax regime) of 18 January 2022 (Monitorul Oficial al României, Part I, No 55 of 19 January 2022)
(‘Decree No 64/2022’) is worded as follows:
‘The tax on the additional income received by electricity producers shall be calculated for the period from 1 November 2021 to 31 March 2022.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
17      The applicant in the main proceedings, namely Brăila Winds, is a subsidiary of the Engie group in Romania. It produces electricity by means of a wind power plant located in the department of Brăila (Romania).
18      Article II of Law No 259/2021 introduced, as of 1 November 2021, a tax of 80% on the income obtained by electricity producers resulting from the difference between the average monthly selling price of electricity and the price of RON 450 per MWh, referred to in paragraph 1 of that article. However, producers of electricity from fossil fuels, including cogeneration, and, from 1 January 2022, producers of electricity from biomass are exempt from that tax.
19      Law No 259/2021, in the version applicable to the dispute in the main proceedings, is the result of several amendments, made in 2021 and 2022, introduced by government emergency ordinances which concerned the arrangements for payment of that tax. In addition, on 19 January 2022, Decree No 64/2022, which provides details on the declaration and payment of that tax and on the form to be used for that purpose, entered into force.
20      Pursuant to that law and that decree, the applicant in the main proceedings, as a producer of electricity from renewable sources, filed tax returns and amended returns and paid, in accordance with those amended returns, a total amount of tax of RON 11 643 217 (approximately EUR 2 356 926.52) for the period from November 2021 to March 2022.
21      The applicant in the main proceedings then lodged, before the ANAF, a complaint seeking annulment of Decree No 64/2022 and a complaint against the tax returns on the basis of which it had paid the tax concerned. Those two complaints were rejected by two decisions of that agency of 16 March and 23 March 2022 respectively. As regards the annulment of Decree No 64/2022, the ANAF found, in essence, that that decree implemented the tax introduced by Law No 259/2021 and that, therefore, those regulatory provisions could not be called into question by means of an administrative complaint.
22      On 27 April 2022, the applicant in the main proceedings brought an action before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), which is the referring court, by which it disputes the lawfulness of Decree No 64/2022, and of the tax returns drawn up on the basis thereof, claiming that the tax introduced by Article II of Law No 259/2021 is itself unlawful. In that regard, it submits, before that court, that that tax discriminates against producers of energy from renewable sources and is in breach of the principle of the fair allocation of the tax burden, the principle of avoidance of double taxation and the principle of non-retroactivity and foreseeability of the tax, which have as their corollaries the principles of fiscal neutrality, legal certainty and the protection of legitimate expectations. The applicant in the main proceedings also submits that that tax constitutes unlawful State aid granted to producers of electricity from fossil fuels, including cogeneration, and to producers of electricity from biomass, in breach of Article 107(1) TFEU, that it creates obstacles to the freedom to provide services in breach of Articles 49 and 56 TFEU and that it is contrary to the European Union’s objectives of achieving climate neutrality by 2050, as well as to European energy taxation policy and Directive 2019/944. The ANAF contends that that action should be dismissed, maintaining that the contested national acts comply with the legislative provisions on the basis of which they were adopted and which were in force at that time.
23      The referring court considers that it needs an answer to a number of questions in order to resolve the dispute before it. Thus, by its first question, that court asks whether Law No 259/2021, which has the effect of overtaxing the income of certain electricity producers, may be classified as ‘State aid’ in favour of untaxed electricity producers, which, under Article 108(3) TFEU, should then have been notified to the Commission, as the applicant claims before it. That court is uncertain, in particular, as to the applicability of the criterion of selective advantage, in view of the fact that that law was not applicable to all categories of electricity producers.
24      The second question raised by the referring court concerns the possible effects of Law No 259/2021 on the freedom of establishment and the freedom to provide services, in so far as it is liable to deter the Engie group from continuing to carry on activities relating to the production of electricity from renewable sources in the territory of Romania because of the high amount of tax introduced by that law. The cross-border element consists, in the present case, in the fact that Brăila Winds is part of that group, the registered office of which is in Paris (France). Although that question concerns the interpretation of both Article 49 TFEU and Article 56 TFEU, the referring court accepts that the freedom to provide services is subsidiary to the freedom of establishment, but that those freedoms are both relied on by the applicant in the main proceedings. Furthermore, although the tax at issue in the main proceedings applies in a non-discriminatory manner with regard to resident and non-resident electricity producers, it nevertheless follows from the case-law of the Court that such a circumstance does not, in itself, permit the inference that Law No 259/2021 is not contrary to those provisions of the FEU Treaty. In particular, the question arises in the present case whether such legislation is capable of being justified by overriding reasons in the public interest and whether it is proportionate.
25      By its third question, the referring court asks whether the tax established by Law No 259/2021 may be classified as a measure equivalent to a fixing of the selling price or as a restriction on the freedom to set the selling price of electricity, contrary to the provisions of Directive 2019/944 and, in particular, Article 58(c) thereof, relating to the obligation of the national regulatory authority to remove obstacles to trade in electricity between Member States, read in conjunction with Article 9 of that directive, in so far as that article has direct effect. In that regard, the referring court states that the applicant in the main proceedings claims that the national legislation at issue in the main proceedings distorts free competition on the electricity market by entailing additional costs for certain producers, reducing security of supply and preventing prices from being formed on the basis of the interaction between supply and demand. It is therefore necessary to determine whether that legislation is compatible with Article 9, in so far as it is argued, before the referring court, that it is neither appropriate to the aim pursued nor proportionate.
26      By its fourth question, the referring court asks, in essence, whether the precautionary principle, the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source, and the principle that the polluter should pay, established by Article 191(2) TFEU, which were relied on by the applicant in the main proceedings before it, have direct effect and whether they are breached as a result of the introduction of a tax which applies to producers of electricity from renewable sources, to the exclusion of producers of electricity from fossil fuels. That court states, moreover, that the applicant in the main proceedings also claims that that tax is contrary to Directive 2003/96 and to the European Union’s climate-neutrality objectives.
27      In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must the provisions of Articles 107 and 108 TFEU be interpreted as meaning that national legislation such as that introduced by [Law No 259/2021], which imposes a tax only on certain producers of electricity, constitutes State aid granted to exempt persons, which is subject to notification requirements? Is that legislation discriminatory if it applies only to certain producers of electricity, including those producing electricity from renewable energy sources?
(2)      Must the provisions of Articles 49 and 56 TFEU and those of Article 17 of the [Charter] be interpreted as precluding national legislation, such as that introduced by Law No 259/2021, which imposes a high amount of tax only on certain producers of electricity (including those producing electricity from renewable sources), to the exclusion of other categories of producer?
(3)      [Does Directive 2019/944] preclude national legislation which could result in the fixing of selling prices or a restriction on the freedom to set selling prices, such as the legislation introduced by Law No 259/2021?
(4)      Do the provisions of Article 191(2) TFEU concerning the precautionary principle and the principles that preventive action should be taken, that pollution should be rectified at source and that the polluter should pay preclude national legislation such as that introduced by Law No 259/2021? Does that undermine the European objectives of achieving climate neutrality by 2050 and the European Union’s policy on energy taxation?’
Consideration of the questions referred
The jurisdiction of the Court and admissibility
28      As a preliminary point, it should be recalled that, according to settled case-law, the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the former provides the latter with the points of interpretation of EU law which they require in order to decide the disputes before them (see order of 26 January 1990, Falciola, C‑286/88, EU:C:1990:33, paragraph 7). The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see judgments of 16 December 1981, Foglia, 244/80, EU:C:1981:302, paragraph 18, and of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44 and the case-law cited).
29      In preliminary ruling proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 48 and the case-law cited).
30      The need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (see judgment of 26 January 1993, Telemarsicabruzzo and Others, C‑320/90 to C‑322/90, EU:C:1993:26, paragraph 6). Thus, the Court has held that it is essential that the national court should give at the very least some explanation as to the reasons for the choice of the provisions of EU law which it seeks to have interpreted and of the link it establishes between those provisions and the national law applicable to the proceedings pending before it (see order of 28 June 2000, Laguillaumie, C‑116/00, EU:C:2000:350, paragraph 16, and judgment of 12 September 2024, Syndyk Masy Upadłości A, C‑709/22, EU:C:2024:741, paragraph 70).
31      In that regard, it must also be emphasised that the information provided in orders for reference serves not only to enable the Court to give useful answers to the questions referred by the national court, but also to ensure that it is possible for the governments of the Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is the Court’s duty to ensure that that opportunity is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (see, to that effect, judgment of 2 September 2021, Irish Ferries, C‑570/19, EU:C:2021:664, paragraph 134 and the case-law cited).
32      Those cumulative requirements concerning the content of an order for reference are expressly set out in Article 94 of the Rules of Procedure of the Court, of which the referring court is supposed, in the context of the cooperation instituted by Article 267 TFEU, to be aware and which it is bound to observe scrupulously. They are also referred to in paragraphs 13, 15 and 16 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ C, C/2024/6008) (see, to that effect, judgment of 12 September 2024, Presidenza del Consiglio dei ministri and Others (Remuneration of honorary judges and Public Prosecutors), C‑548/22, EU:C:2024:730, paragraph 29).
33      In that connection, as regards, in the first place, the first question, by which the referring court asks, in essence, whether Articles 107 and 108 TFEU must be interpreted as meaning that national legislation under which only certain electricity producers are subject to income tax exceeding a certain amount constitutes State aid granted to electricity producers who are exempt from it, subject to the obligation to notify, it should be noted that, according to settled case-law, the classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between the Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgment of 26 April 2018, ANGED, C‑233/16, EU:C:2018:280, paragraph 37 and the case-law cited).
34      In order to assess, in particular, whether the national measure concerned grants a selective advantage to its recipients, it is necessary to determine whether, under a particular legal regime, that measure is such as to favour ‘certain undertakings or the production of certain goods’ over other undertakings which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation and which accordingly suffer different treatment that can, in essence, be classified as discriminatory (judgments of 16 March 2017, Identi, C‑493/15, EU:C:2017:219, paragraph 26, and of 5 December 2023, Luxembourg and Others v Commission, C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraph 106 and the case-law cited). Furthermore, the determination of the reference framework has a particular importance in the case of tax measures, since the very existence of an economic advantage for the purposes of Article 107(1) TFEU may be established only when compared with ‘normal’ taxation (judgment of 7 November 2019, UNESA and Others, C‑105/18 to C‑113/18, EU:C:2019:935, paragraph 62).
35      In the present case, the referring court has not provided any explanation as to why it considers that the national legislation at issue in the main proceedings is liable to be incompatible with the provisions of Article 107(1) TFEU. Moreover, the request for a preliminary ruling does not contain the information necessary to determine whether the tax system established by that legislation is capable of constituting ‘State aid’ within the meaning of those provisions. In particular, it is not possible to identify the reference system at issue in the main proceedings, namely what is the ‘normal’ taxation of electricity producers, the objective, nature and structure of that system, the comparability between electricity producers subject to the tax concerned and the electricity producers exempted from it or, where appropriate, any justification for a difference in the way in which they are treated.
36      Therefore, since the Court does not have the information necessary to give a useful answer to the first question, it must be held to be inadmissible.
37      As regards, in the second place, the second question, which concerns the interpretation of Articles 49 and 56 TFEU and Article 17 of the Charter, it is apparent from the order for reference that, in the context of that question, the referring court seeks to ascertain
whether the national legislation at issue in the main proceedings gives rise to indirect discrimination, contrary to Articles 49 and 56 TFEU, in so far as it concerns persons, such as the applicant in the main proceedings, who are part of a group whose parent company has its seat in another Member State. In particular, the referring court states that that legislation could have the effect of deterring that group from continuing to carry on activities relating to the production of electricity from renewable sources in the territory of Romania.
38      It should be noted, first, that, in the present case, the parent company of that group, established in another Member State, is not a party to the dispute in the main proceedings and that the referring court has not explained how, in the context of the dispute before it, which concerns the lawfulness of the taxation to which only the applicant in the main proceedings, a subsidiary of that parent company, was subject, it could be led to assess the impact of that tax on that parent company and, if appropriate, to draw any consequences therefrom.
39      Consequently, in so far as the second question could be understood as relating to a hypothesis which does not correspond to the factual situation in the main proceedings, namely the existence of possible restrictions on the freedoms referred to in Articles 49 and 56 TFEU to which the parent company of the applicant in the main proceedings might be subject, it must be held that that question is hypothetical and therefore inadmissible on that basis (see by analogy, judgment of 5 June 2025, Elektrorazpredelitelni mrezhi Zapad, C‑310/24, EU:C:2025:406, paragraph 44).
40      As regards, second, the existence of a possible restriction on those freedoms to which the applicant in the main proceedings might itself be subject, it must be borne in mind that the Court’s task, in the context of a preliminary ruling procedure, is to assist the referring court in resolving the specific dispute pending before it, which presupposes that it is established that the freedoms relied on by that court are applicable to that dispute. The provisions of the FEU Treaty on the freedom of establishment and the freedom to provide services do not, in principle, apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraphs 47 and 49, and of 2 March 2023, Bursa Română de Mărfuri, C‑394/21, EU:C:2023:146, paragraph 48).
41      Furthermore, when the Court is requested to give a ruling by a national court in the context of a dispute concerning such a situation, it cannot, where the national court does not indicate something other than that the national legislation in question applies without distinction to nationals of the Member State concerned and those of other Member States, consider that the request for a preliminary ruling on the interpretation of the provisions of the FEU Treaty on the fundamental freedoms is necessary to enable that court to give judgment in the case pending before it. The specific factors that allow a link to be established between the subject or circumstances of a dispute, confined in all respects within a single Member State, and Article 49 and 56 TFEU must be apparent from the order for reference, in order to enable the Court to identify a factor connecting that dispute with those provisions of EU law (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraphs 54 and 55).
42      In the present case, such specific factors are not apparent from the order for reference, since the referring court merely states that the national legislation at issue in the main proceedings is applicable without distinction both to its own nationals and to those of other Member States. The mere fact that the applicant in the main proceedings is the subsidiary of a parent company established in a Member State other than Romania is an insufficient indication as to the possible existence of the connecting factor referred to in the preceding paragraph of the present judgment.
43      Third and lastly, as regards Article 17 of the Charter, which enshrines the right to property, it should be recalled that, under Article 51(1) thereof, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. In order to determine whether a national measure involves ‘implementing Union law’ within the meaning of Article 51(1), it is necessary to determine, inter alia, whether the national legislation at issue in the main proceedings is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it
(see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraphs 25 to 27 and the case-law cited).
44      However, in the present case, there is nothing in the order for reference to suggest that the case in the main proceedings concerns national legislation implementing EU law for the purposes of Article 51(1) of the Charter. It follows that the Court does not have jurisdiction to rule on the interpretation of Article 17 of the Charter.
45      In the light of the foregoing considerations, the second question is inadmissible in its entirety.
Substance
The third question
46      By its third question, the referring court asks, in essence, whether Directive 2019/944 must be interpreted as precluding national legislation which imposes on producers of electricity from renewable sources
a tax on the income from the sale of their electricity above a certain price fixed by that legislation.
47      In that regard, Directive 2019/944 establishes, according to Article 1 thereof, common rules for the generation, transmission, distribution, energy storage and supply of electricity, together with consumer protection provisions, with a view to creating truly integrated competitive, consumer-centred, flexible, fair and transparent electricity markets in the European Union. It also aims, in particular, to ensure affordable and transparent energy prices and costs for consumers.
48      Article 9(1) of that directive provides that the Member States are to ensure that electricity undertakings operate in accordance with the principles of that directive with a view to achieving a competitive, secure and environmentally sustainable market for electricity, and are not to discriminate between those undertakings as regards either rights or obligations. Article 58 of that directive, which sets out the general objectives to be borne by the regulatory authority, provides, in point (c) thereof, that it is for that authority to take all reasonable measures to eliminate restrictions on trade in electricity between Member States, including developing appropriate cross-border transmission capacities to meet demand and enhancing the integration of national markets.
49      In that regard, the referring court asks whether national legislation such as that at issue in the main proceedings, which imposes on certain electricity producers a tax on the income from the sale of their electricity above a certain price fixed by that legislation, is contrary to Directive 2019/944, as a measure equivalent to the fixing of the selling price of electricity or to a restriction on the freedom to fix that price, in so far as it is liable to have a possible effect on the determination of that price.
50      The applicant in the main proceedings claims, before the referring court, that the tax system at issue in the main proceedings distorts free competition on the electricity market by incurring additional costs for certain producers, reducing security of supply and preventing prices from being formed on the basis of the interaction between supply and demand.
51      It should be noted that it is apparent from the Court’s case-law on Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55), which was replaced by Directive 2019/944, that that first directive did not seek to approximate the tax systems of the Member States in that area and that the principle of non-discrimination which it laid down did not apply to legislation of a Member State establishing a tax on the production and incorporation of electricity into the electricity system in the territory of that State (see, to that effect, judgment of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 78 and the case-law cited).
52      In the present case, it appears, subject to the verifications which it is for the referring court to carry out, that the relevant provisions of Law No 259/2021 establish a tax which pursues, at least in part, a budgetary objective and is not intended to regulate the supply of electricity or to ensure the protection of consumers or that of free competition.
53      In addition and in any event, the relevant provisions of Law No 259/2021 do not appear to constitute a measure equivalent to a ‘measure fixing the selling price’ of electricity or to a limitation on the freedom of electricity producers to fix their selling prices, since the possible effect of the tax at issue in the main proceedings on selling prices is, to say the least, remote and uncertain, since that tax is limited, in essence, to reducing the profits which those producers may derive from their sales.
54      In the light of those considerations, the answer to the third question is that Directive 2019/944 must be interpreted as not precluding national legislation which imposes on producers of electricity from renewable sources
a tax on the income from the sale of their electricity above a certain price fixed by that legislation.
The fourth question
55      As a preliminary point, it should be borne in mind that, as is also apparent from paragraph 28 of the present judgment, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court of Justice should, where necessary, reformulate the questions referred to it (judgment of 30 April 2025, Inspektorat kam Visshia sadeben savet, C‑313/23, C‑316/23 et C‑332/23, EU:C:2025:303, paragraph 65 and the case-law cited).
56      In the present case, the referring court refers, in its request for a preliminary ruling, as regards the fourth question, to the compatibility of national legislation such as Law No 259/2021 in the light, inter alia, of the ‘objectives of achieving climate neutrality by 2050’ and the Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions of 11 December 2019, entitled ‘The European Green Deal’ (COM(2019) 640 final). However, that deal is merely a communication adopted by the Commission, which has no binding effect
(see, to that effect, judgment of 4 October 2024, Lithuania and Others v Parliament and Council (Mobility Package), C‑541/20 to C‑555/20, EU:C:2024:818, paragraph 432).
57      However, the climate-neutrality objective is assigned, collectively, to the European Union and the Member States by Regulation 2021/1119, Article 2(1) of that regulation providing that climate neutrality must be achieved by 2050 at the latest at EU level.
58      Therefore, it must be held that, by its fourth question, the referring court asks, in essence, whether Article 191(2) TFEU and Regulation 2021/1119 preclude national legislation which imposes on producers of electricity from renewable sources a tax on the income from the sale of their electricity above a certain price fixed by that legislation, but which exempts producers of electricity from fossil fuels from that tax.
59      It should be recalled as regards, in the first place, Article 191(2) TFEU that that provision states that EU policy on the environment is to aim at a high level of protection, taking into account the diversity of situations in the various regions of the European Union. That policy is to be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements are to include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the European Union.
60      The referring court asks, in particular, whether the principles established by that provision have direct effect and, if so, whether a tax such as that at issue in the main proceedings is contrary to those principles.
61      In that regard, the Court has held that Article 191(2) TFEU does no more than define the general environmental objectives of the European Union, in so far as Article 192 TFEU confers on the European Parliament and the Council of the European Union, acting in accordance with the ordinary legislative procedure, responsibility for deciding what action is to be taken in order to attain those objectives. Consequently, since Article 191(2) TFEU, which establishes, inter alia, the principle that the polluter should pay, is addressed to the EU legislature, it cannot be relied on as such by individuals in order to exclude the application of national legislation, such as that at issue in the main proceedings, in a situation that is not covered by any EU legislation adopted on the basis of Article 192 TFEU (see, to that effect, judgments of 4 March 2015, Fipa Group and Others, C‑534/13, EU:C:2015:140, paragraphs 39 and 40, and of 13 July 2017, Túrkevei Tejtermelő Kft., C‑129/16, EU:C:2017:547, paragraphs 36 and 37).
62      Since the EU legislature has not adopted, on the basis of Article 192 TFEU, any act capable of circumscribing the adoption, by the Member States, of a tax such as that established by Law No 259/2021, it must be held that Article 191(2) TFEU is not applicable to the dispute in the main proceedings, with the result that there is no need to examine the fourth question in the light of the latter provision.
63      As regards, in the second place, the climate-neutrality objectives that the European Union has set itself and, in particular, Regulation 2021/1119, defining those objectives to be achieved by 2050, it should be noted that that regulation seeks, in accordance with Article 1 thereof, inter alia, to establish a framework for the irreversible and gradual reduction of anthropogenic greenhouse gas emissions and to set out a binding climate-neutrality objective at EU level.
64      Article 2(2) of that regulation provides, in addition, that Member States are required to take the necessary measures at national level to enable the collective achievement of the climate-neutrality objective. Under Article 5(1) of that regulation, the relevant EU institutions and the Member States are to ensure continuous progress in enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change. Under Article 7 of Regulation 2021/1119, the Commission must regularly assess the consistency of the national measures identified, on the basis of integrated national energy and climate plans, national long-term strategies and biennial progress reports. If that institution finds that the measures adopted by a Member State are inconsistent with the climate-neutrality objective or inconsistent with ensuring progress on adaptation as referred to in Article 5 thereof, it may issue recommendations to that Member State, following which it is required to notify the Commission of the manner in which it intends to take due account of them and, during the following year, how it has taken due account of them, or, if that Member State decides not to address the recommendations or a substantial part thereof, it is to provide the Commission its reasoning.
65      It is therefore apparent both from the wording of the provisions of Regulation 2021/1119, in particular Articles 2, 5 and 7 thereof, and from the climate-neutrality objective which it pursues that that regulation merely requires the Member States to establish an overall strategy in order to achieve that objective.
66      As the Commission pointed out in its written observations, a specific measure adopted by a Member State must be assessed, to that end, in the light of all the circumstances of the situation of which it forms part and of all the measures taken by the Member State concerned in order to contribute to the achievement of the climate-neutrality objective at EU level. Legislation such as that at issue in the main proceedings does not appear capable in itself of having a decisive influence on the achievement of that objective or have the effect that the Member State which adopted it thus fails to comply with the obligation to take the measures necessary to enable that common objective to be achieved, having regard, in particular, to the fact that the application of that legislation is limited in time and does not appear to be capable of having a significant effect on greenhouse gas emissions.
67      Consequently, the answer to the fourth question is that Regulation 2021/1119 must be interpreted as not precluding national legislation which imposes on producers of electricity from renewable sources a tax on the income from the sale of their electricity above a certain price fixed by that legislation, but which exempts from that tax producers of electricity from fossil fuels.
Costs
68      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Ninth Chamber) hereby rules:
1.      Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU
must be interpreted as not precluding national legislation which imposes on producers of electricity from renewable sources a tax on the income from the sale of their electricity above a certain price fixed by that legislation.
2.      Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’)
must be interpreted as not precluding national legislation which imposes on producers of electricity from renewable sources a tax on the income from the sale of their electricity above a certain price fixed by that legislation, but which exempts from that tax producers of electricity from fossil fuels.
[Signatures]
*      Language of the case: Romanian.