62024TC0653
OPINION OF ADVOCATE GENERAL
BRKAN
delivered on 29 October 2025 (
1
)
Case T‑653/24
Accorinvest,
Société Générale SA
v
Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique
(Request for a preliminary ruling from the Conseil d’État (Council of State, France))
(Reference for a preliminary ruling – Harmonisation of fiscal legislation – Excise duty – Directive 2008/118/EC – Electricity – Other indirect taxes – Passing on the tax to the consumer)
Introduction
1.
This request for a preliminary ruling concerns the interpretation of 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 (OJ 2009 L 9, p. 12).
2.
The request has been made in proceedings between, on the one hand, Accorinvest and Société Générale SA, as final consumers of electricity, and, on the other, the French State, concerning the reimbursement of a tax additional to the excise duty on electricity, provided for by French legislation.
3.
In France, the loi du 9 août 2004 relative au service public de l’électricité et du gaz et aux entreprises électriques et gazières (Law of 9 August 2004 on the public electricity and gas service and on electricity and gas undertakings) introduced a tariff-based transmission contribution (‘the CTA’). In the present case, it is necessary to examine whether the CTA may be classified as an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118 and falls within the scope of that provision.
Legal framework
European Union law
Directive 2008/118
4.
Directive 2008/118 was repealed by Directive (EU) 2020/262. (
2
) Nevertheless, Directive 2008/118 remains applicable ratione temporis to the facts in the main proceedings.
5.
Recital 2 of Directive 2008/118 stated:
‘Conditions for charging excise duty on the goods covered by [Council] Directive 92/12/EEC [of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1)], hereinafter “excise goods”, need to remain harmonised in order to ensure the proper functioning of the internal market.’
6.
Article 1 of that directive 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 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.
3.   Member States may levy taxes on:
(a)
products other than excise goods;
(b)
the supply of services, including those relating to excise goods, which cannot be characterised as turnover taxes.
…’
Directive 2003/96
7.
Article 4 of Directive 2003/96 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.’
French law
8.
Article 18 of the loi no°2004-803, du 9 août 2004, relative au service public de l’électricité et du gaz et aux entreprises électriques et gazières (Law of 9 August 2004 on the public electricity and gas service and on electricity and gas undertakings; ‘the Law of 9 August 2004’) provides:
‘I. A tariff-based contribution on electricity transmission and distribution services is established for the benefit of the Caisse nationale des industries électriques et gazières [(National Fund for the Electricity and Gas Industries)] …
…
II. That tariff-based contribution shall be payable:
1° For electricity:
(a)
by the operators of the public transmission and distribution networks which charge it, in addition to the standing charge for use of the public transmission and distribution networks, … to consumers … with whom those operators have concluded a network access contract;
(b)
by electricity suppliers who charge it to consumers in addition to their sale price …, where those suppliers have concluded a network access contract … to supply those consumers;
(c)
by electricity suppliers who charge it in addition to electricity tariffs …
III. The tariff-based contribution shall be based on:
1° For electricity:
–
the fixed component, excluding taxes, of the standing charge for use of the public electricity transmission and distribution networks where the tariff-based contribution is payable in accordance with point (a) of paragraph II(1°);
–
the fixed component, excluding taxes, of the charge relating to the use of the networks, included in the electricity sale price, where the tariff-based contribution is payable in accordance with point (b) of paragraph II(1°);
–
the fixed component, excluding taxes, of the charge relating to the use of the networks, included in the regulated tariffs for the sale of electricity, where the tariff-based contribution is payable in accordance with point (c) of paragraph II(1°)
– …
IV. Under the contracts concluded by the persons referred to in paragraph II for the provision of the services referred to in paragraph I, the tariff-based contribution shall be payable by the person liable at the time of the receipt of part payments or the price, or, at the option of that person, at the time of the debit; in this case, it is payable in any event at the time of the receipt of part payments or the price, if this precedes the debit.
…
VII. A Conseil d’État [(Council of State, France)] decree shall set out the methods of application of the present article.’
9.
Article 1 of décret n 2005-123, du 14 février 2005, relatif à la contribution tarifaire sur les prestations de transport et de distribution d’électricité et de gaz naturel (Decree No 2005-123 of 14 February 2005 concerning the tariff-based contribution on electricity and natural gas transmission and distribution services), in the version applicable until 1 August 2017, provides that:
‘I. The fixed component, excluding taxes, of the standing charge for use of the public electricity transmission and distribution networks, referred to in Article 18(III)(1°) of the aforementioned Law of 9 August 2004, is made up of the sum of the following:
–
the annual administration component as defined by the decision approving the applicable standing charges for use of the public electricity transmission and distribution networks;
–
the annual metering component as defined by the decision approving the applicable standing charges for use of the public electricity transmission and distribution networks;
–
the fixed part of the annual withdrawal component …;
–
the fixed part of the annual complementary and backup power supplies component …’.
10.
Under Article 1 of Decree No 2005-123, in the version resulting from the Decree of 28 July 2017, applicable from 1 August 2017:
‘… the fixed component, excluding taxes, of the standing charge for use of the public electricity transmission and distribution networks is made up of the sum of the tariff components as defined by the decisions approving the applicable standing charges for use of the public electricity transmission and distribution networks, listed in points 1 to 4°:
1°
the annual administration component;
2°
the annual metering component;
3°
the fixed part of the annual withdrawal component. That fixed part is the sum of the items in the tariff formulas relating to that component, which depend on subscribed powers, excluding the monthly components for exceeding subscribed power;
4°
The fixed part of the annual complementary and backup power supplies component. That fixed part consists of the annual complementary and backup power supplies component, excluding the energy component and the monthly components for exceeding subscribed power where the backup supply is at a different voltage range from that of the main supply’.
11.
Under Article 2 of Decree No 2005-123:
‘The electricity supplier which charges the tariff-based contribution in accordance with point (b) or (c) of paragraph II(1°) of Article 18 of the aforementioned Law of 9 August 2004 shall calculate the fixed component, excluding taxes, of the charge relating to the use of the networks in the sale price or the electricity tariff in accordance with Article 1’.
The facts in the main proceedings and the questions referred for a preliminary ruling
12.
Accorinvest and Société Générale are two companies incorporated under French law which have, as final consumers of electricity, paid the CTA.
13.
In two separate proceedings, those companies brought actions before the tribunal administratif de Paris (Administrative Court, Paris, France) seeking an order that the French State pay them compensation corresponding to the amounts which they had paid in respect of the CTA, respectively, for the years 2016 to 2018 and for the years 2017 and 2018. In their view, the CTA was not compatible with Article 1(2) of Directive 2008/118. By two orders of 26 April 2021, those actions were dismissed by the tribunal administratif de Paris (Administrative Court, Paris), as having been brought before a court which had no jurisdiction to hear them.
14.
By two judgments of 17 May 2023, the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris, France) set aside those orders and then dismissed the actions on the ground that, in the absence of a direct and inseverable link between the CTA and the consumption of electricity, the contribution was not an indirect tax levied directly or indirectly on the consumption of electricity, and consequently did not fall within the scope of Article 1(2) of Directive 2008/118.
15.
Accorinvest and Société Générale each lodged an appeal against those judgments of the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris), before the referring court, arguing that the contribution in question is an indirect tax which is levied directly or indirectly on the consumption of electricity, solely on the basis that there is a legal mechanism for passing on that tax to the final consumer. They also maintained that the contribution in question falls within the scope of Article 1(2) of Directive 2008/118, since there is a direct and inseverable link between the tariff-based transmission contribution and the consumption of electricity. In particular, they argued that the network access contract under which that tax is payable is necessarily linked to a contract for the supply of electricity to a final consumer and that the fixed component of the standing charges for use of the public electricity networks on which that tax is based depends, inter alia, on the level of subscribed power of the final consumers themselves, which is usually related to their consumption profile.
16.
In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following two questions to the Court of Justice for a preliminary ruling:
‘(1)
Are the provisions of Article 1(2) of Directive [2008/118] to be interpreted as meaning that the existence of a legal mechanism for passing on the tax to the final consumer of a product subject to excise duty implies in itself the existence of a direct and inseverable link between that tax and the consumption of that product, with the result that it must be regarded as another indirect tax within the meaning of Article 1(2) of Directive [2008/118], even where that tax is calculated independently of the quantity of product actually consumed?
(2)
Are the provisions of Article 1(2) of Directive [2008/118] to be interpreted as meaning that a tax, such as the tariff-based transmission contribution, which is based on the fixed component of the standing charges for use of the public electricity networks, and excludes the variable part of those charges – which is the only component that varies according to the quantity of electricity consumed – but which is payable under the network access contracts concluded by consumers or their suppliers, has a direct and inseverable link with the consumption of electricity, with the result that it must be regarded as another indirect tax within the meaning of those provisions?’
Analysis
17.
By its two questions, which I propose to consider together, the referring court asks, in essence, whether Article 1(2) of Directive 2008/118 must be interpreted as meaning that a contribution such as that at issue in the main proceedings – which is levied on the basis of the use of electricity transmission and distribution networks, is based on the fixed component of the standing charge for use of the public electricity networks and is passed on to the consumer by means of a legal mechanism – falls within the concept of ‘other indirect taxes’ within the meaning of that provision.
18.
In order to answer that question, it is necessary, first, to define the concept of an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118. Secondly, I shall examine, more specifically, the criterion, developed by the case-law, (
3
) of a direct and inseverable link between a tax and the consumption of a product subject to excise duty and, in particular, whether that link must be with an act of consumption of electricity or with the quantity of electricity consumed. Thirdly, the analysis will focus on the question whether such a direct and inseverable link can be inferred solely from the fact that the tax is passed on to the consumer. Fourthly, it will be necessary to determine, on the basis of that interpretation, whether the CTA may be classified as an ‘other indirect [tax]’ within the meaning of that provision.
The concept of an ‘other indirect [tax]’
19.
As a preliminary point, it should be noted that the classification of a tax, duty or charge under EU law must be determined by the Court on the basis of the objective characteristics of its imposition, irrespective of its classification under national law. (
4
)
20.
Article 1(2) of Directive 2008/118 provides that Member States may levy other indirect taxes on excise goods for specific purposes, provided that those taxes comply with the EU tax rules applicable for excise duty or value added tax (VAT).
21.
Directive 2008/118 does not define the concept of an ‘other indirect [tax]’ on electricity for the purposes of that provision. However, according to the settled case-law of the Court of Justice, the term ‘other indirect taxes’ refers to indirect taxes which are levied on the consumption of the products listed in Article 1(1) of that directive – other than ‘excise duty’ within the meaning of that provision – and are levied for specific purposes. (
5
)
22.
In that regard, it follows from the case-law that there must be a direct and inseverable link between such a tax and the consumption of electricity. (
6
) This means that it is necessary to examine whether such a tax is levied on an element which has a direct and inseverable link with the consumption of electricity, with the result that, by taxing that element, the tax must be regarded as taxing the consumption of electricity itself. A tax which is not imposed on the consumption of electricity does not fall within the scope of Directive 2008/118. (
7
)
23.
In the present case, the appellants in the main proceedings argue that it is sufficient that the tax in question is levied on the act of consuming electricity and that it is not necessary for it to be linked to quantities of electricity.
24.
Accordingly, I consider that it is necessary, in order to interpret the concept of ‘other indirect taxes’ and to determine the scope of Article 1(2) of Directive 2008/118, to clarify whether the criterion which determines whether a direct and inseverable link exists between an indirect tax and the consumption of electricity is a link with an act of consumption of electricity or whether there must be a link between the tax and the quantities of electricity consumed.
Must there be a direct and inseverable link with an act of consumption of electricity or with the quantities of electricity actually consumed?
25.
According to settled case-law, for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (
8
)
26.
In the first place, the wording of Article 1(2) of Directive 2008/118 does not specify whether there must be a direct and inseverable link with the act of consumption or with the quantities consumed. It is apparent from point 20 above that Directive 2008/118 does not define the concept of ‘other indirect taxes’, while the condition of a ‘direct and inseverable link with the consumption’ of the product subject to excise duty has been developed by the case-law of the Court of Justice, as is apparent from point 22 above. The wording of Article 1(2) of Directive 2008/118 therefore does not in itself make it possible to determine whether, for a tax to be classified as an ‘other indirect [tax]’ within the meaning of that provision, a direct and inseverable link with the act of consumption of electricity is sufficient.
27.
In those circumstances, it is necessary to examine the context of Article 1(2) of Directive 2008/118 and the objectives that it pursues.
28.
In the second place, as regards the context of that provision, it should be noted that the structure of Article 1 of Directive 2008/118 distinguishes between three situations.
29.
First, Article 1(1) of Directive 2008/118 establishes the principle that that directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of certain goods subject to excise duty, including electricity, which is covered by Directive 2003/96.
30.
Secondly, Article 1(2) of Directive 2008/118 authorises Member States to apply other taxes ‘for specific purposes’ provided that they comply with the rules applicable for excise duty and VAT. Accordingly, in contrast to the obligation of Member States to implement the harmonised excise duty provided for in Article 1(1) of Directive 2008/118 for the excise goods listed in that provision, Article 1(2) of that directive grants Member States a discretionary power to levy, subject to certain conditions, other indirect taxes on excise goods. The Court of Justice held that the Member States’ discretionary power seeks to take due account of the Member States’ different fiscal traditions in this regard and the frequent recourse to indirect taxation for the implementation of non-budgetary policies. (
9
)
31.
Thirdly, it follows from Article 1(3) of Directive 2008/118 that Member States are to retain the right to introduce or maintain taxes which are levied on products other than excise goods (point (a)) and on the supply of services, including those relating to excise goods, which cannot be characterised as turnover taxes (point (b)), provided that those taxes do not give rise to border-crossing formalities in trade between Member States.
32.
As the European Commission emphasises, an interpretation according to which a tax linked to an act of consumption of electricity but with no correlation to the quantity actually consumed could be regarded as having a direct and inseverable link with that consumption would render Article 1(3)(b) of Directive 2008/118 ineffective. All taxes with a link to the act of consumption of electricity could then be classified as an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118 and would fall within the scope of that provision, which would render Article 1(3)(b) of that directive meaningless.
33.
In making a contextual interpretation, it is also necessary to take into consideration Directive 2003/96 restructuring the framework for the taxation of energy products and electricity, to which Article 1(1) of Directive 2008/118 refers. The arrangements for excise duty are governed jointly by a general directive which lays down the general arrangements for excise duty (in the present case, ratione temporis, Directive 2008/118) (
10
) and by several specific directives which harmonise the tax bases and the minimum rates of taxation for products subject to those excise duties, namely Directive 2003/96 for energy products and electricity.
34.
Article 4(1) of Directive 2003/96 imposes on Member States the obligation to observe certain minimum levels of taxation for those products, while Article 4(2) of that directive defines the ‘level of taxation’ which Member States must apply to the products in question as the ‘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’ (emphasis added). Accordingly, since those thresholds apply to the total charge levied in respect of all indirect taxes, those minimum levels of taxation include the ‘other indirect taxes’ provided for in Article 1(2) of Directive 2008/118 (
11
) and are assessed in relation to the actual levels of consumption of electricity.
35.
Therefore, in my view, it follows from the contextual interpretation that a tax is levied on the consumption of electricity and may be classified as an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118 if there is a direct and inseverable link with the quantity of electricity consumed and not only with an act of consumption.
36.
In the third place, that interpretation is supported by the objectives pursued by Directive 2008/118.
37.
In that regard, according to recital 2 of Directive 2008/118, its purpose is to harmonise the conditions for charging excise duty on the goods covered by that directive in order to ensure the proper functioning of the internal market.
38.
As is apparent from point 29 above, Article 1(1) of Directive 2008/118 establishes a harmonised excise duty for a limited list of products set out in that provision, including electricity, which falls within the scope of Directive 2003/96.
39.
It follows that Article 1(2) of Directive 2008/118, which essentially allows Member States to levy other indirect taxes on excise goods, must, as a provision derogating from the principle of harmonisation of the conditions for charging excise duty on the goods covered by the directive, be interpreted strictly. (
12
) It is true that, in Statoil Fuel & Retail (
13
) and Agenzia delle dogane e dei monopoli, (
14
) that finding of the Court of Justice concerned one of the cumulative conditions laid down in Article 1(2) of Directive 2008/118, namely the concept of ‘specific purposes’, and not the concept of ‘other indirect taxes’ itself. However, in the light of the settled case-law according to which exceptions are to be interpreted strictly so that general rules are not negated, (
15
) it seems to me that the same approach also applies to the scope of the derogation provided for in that provision and thus to the interpretation of the concept of ‘other indirect taxes’. (
16
)
40.
Accordingly, the concept of an ‘other indirect [tax]’ must, in my view, also be interpreted strictly, which precludes a tax which is linked solely to the act of consumption of electricity from falling within the scope of that provision.
41.
As the Commission submitted at the hearing, if the ‘other indirect taxes’ provided for in Article 1(2) of Directive 2008/118 included taxes which were not actually levied on the consumption of electricity, that is to say not linked to the quantities of electricity consumed, this could undermine the objective of harmonisation pursued by that directive, which seeks to facilitate the free movement of excise goods, in that additional taxes could hinder trade in excise goods between Member States. Directive 2008/118 seeks, in particular, to harmonise in all Member States the rules on the chargeability of excise duty (
17
) and on the movement and monitoring of excise goods, thereby facilitating the movement of those goods. The harmonised excise duty provided for in Article 1(1) of Directive 2008/118 is a tax on consumption based on the amount of excise goods offered for consumption. (
18
) If there were other taxes on the same goods which were not linked to the actual consumption of those goods, this could entail additional formalities related to their monitoring. Accordingly, the multiplication of such taxes alongside the harmonised excise duty could hinder trade in excise goods between Member States.
42.
It follows from the foregoing, in my view, that a tax may be classified as an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118 only if there is a direct and inseverable link between that tax and the quantities of electricity consumed and may not be so classified if that link is only with the act of consuming electricity.
43.
That emphasis on the quantities of products consumed is also confirmed by the case-law of the Court of Justice. Thus, in the judgment in Kernkraftwerke Lippe-Ems, the Court of Justice held, in respect of a tax on fuel assemblies in nuclear power stations, that there was no direct and inseverable link with the consumption of electricity in that that tax could be levied on the basis that a self-sustaining chain reaction has been started, without any electricity having necessarily even been produced or, as a consequence, consumed. (
19
)
44.
Moreover, in the judgment in Promociones Oliva Park, the Court of Justice found that the tax at issue in that case was calculated solely in relation to the status of electricity producer, on the basis of taxpayers’ income which is partially fixed and thus irrespective of the quantity of electricity actually produced and incorporated into the electricity system. (
20
) The Court of Justice concluded therefrom that there was no direct and inseverable link between that tax and the consumption of electricity. (
21
)
45.
It follows from the foregoing, in my view, that the direct and inseverable link between the tax and the consumption of the product subject to excise duty must exist with respect to the quantities of electricity consumed and not only with respect to the act of consuming electricity.
The passing on of the tax to the final consumer
46.
It is apparent from the order for reference that, under Article 18(II) of the Law of 9 August 2004, the CTA is payable by the operators of the public transmission and distribution networks or by electricity suppliers, but that they charge it to consumers.
47.
In that regard, the referring court asks the Court whether the transparent passing on in full of the CTA to the final consumer is sufficient for it to be concluded that there is a direct and inseverable link with the consumption of electricity.
48.
In my view, several arguments suggest that the answer to that question should be in the negative.
49.
First, it follows from point 45 above that a direct and inseverable link between a tax and the consumption of the product subject to excise duty must exist with respect to the quantities of electricity consumed in order for the tax to be classified as an ‘other indirect [tax]’. Consequently, I consider that the mere fact that a tax is passed on in full to the final consumer of electricity, even by means of a legal mechanism, cannot in itself be sufficient to conclude that there is a direct and inseverable link between a tax and the consumption of electricity.
50.
Secondly, that interpretation is, in my view, supported by the case-law of the Court of Justice.
51.
As Advocate General Campos Sànchez-Bordona recalled in his Opinion in Messer France, (
22
) the Court of Justice, in its judgment in IRCCS – Fondazione Santa Lucia, (
23
) set out three inherent features of indirect taxes:
–
the legal obligation to pay the amount of such taxes and, in the event of failure to do so, the competence of the authorities to take legal action against debtors;
–
the intended use of the sums payable, which must be directed towards the financing of objectives in the general interest, in accordance with the allocation criteria laid down by the public authorities;
–
the possibility of passing on such taxes to final consumers of the goods or services supplied, through their inclusion in the amount such consumers are invoiced, which must be linked to the quantities of goods or services consumed.
52.
Therefore, the passing on of a tax to the consumer is indeed one of the characteristics of an indirect tax. However, the mere fact that the tax is passed on to the consumer does not automatically mean that that tax has a direct and inseverable link with the consumption of electricity.
53.
It should be noted that the Court of Justice has on several occasions taken into consideration, in determining whether a tax could be classified as ‘other indirect taxes’ within the meaning of Article 1(2) of Directive 2008/118, whether or not it was possible to pass on a tax to the consumer. (
24
) However, the Court of Justice has always also examined the methods for calculating those contributions in determining whether those contributions constituted other indirect taxes within the meaning of that provision. (
25
)
54.
Accordingly, it seems to me to follow from the foregoing that the full passing on of a contribution such as the CTA, which is payable irrespective of the level of consumption of electricity, is not in itself sufficient to conclude that such a contribution constitutes an other indirect tax, but that it is a factor to be taken into account for classification as an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118.
Can the CTA be classified as an ‘other indirect [tax]’ within the meaning of Article 1(2) of Directive 2008/118?
55.
In order to determine whether the CTA is capable of falling within the scope of Article 1(2) of Directive 2008/118, it is necessary to determine whether that tax is a tax levied directly or indirectly on the consumption of electricity covered by Directive 2003/96.
56.
In the first place, it is apparent from Article 18(I) of the Law of 9 August 2004 that the CTA is a contribution in respect of the transmission and distribution of electricity. Accordingly, the chargeable event for the CTA is the conclusion by the consumer of a contract for access to the public distribution network, whether it be a single contract concluded with electricity suppliers covering both access to the network and the supply of electricity or a contract separate from the supply contract concluded with operators of the public electricity transmission and distribution networks. (
26
) Accordingly, the chargeable event for the CTA, that is to say the use of electricity transmission and distribution networks, occurs prior to any consumption of electricity, even though a transmission contract is in principle linked to a contract for the supply of electricity.
57.
In the second place, with regard to the detailed rules for calculating the CTA, it should be noted that that tax is based on the fixed component, excluding taxes, of the standing charge for use of the public electricity transmission and distribution networks (TURPE), which, pursuant to Article 1 of Decree No 2005-123 of 14 February 2005, consists of the administration component, (
27
) the metering component, (
28
) the fixed part of the withdrawal component (
29
) and the fixed part of the annual complementary and backup power supplies component. (
30
) As the Commission submitted at the hearing, those elements are invariably fixed on an annual basis.
58.
First, it is clear from the order for reference that the administration component, the metering component and the fixed part of the annual complementary and backup power supplies component are not correlated with the consumption of electricity. (
31
)
59.
Secondly, the fixed part of the annual withdrawal component depends in particular on the voltage range, the tariff options and the power subscribed to by the consumer. (
32
) The appellants in the main proceedings argue that the fixed part of the withdrawal component is in fact variable, since it varies on the basis of the power and tariff options chosen by consumers according to their needs, which demonstrates that the CTA is correlated with the consumption of electricity.
60.
However, it is apparent from the documents in the file before the Court that the tariff options and power chosen by consumers are correlated with a future estimate of their consumption of electricity, but not with their actual consumption.
61.
In fact, consumers choose a tariff option and subscribed power prior to consuming any electricity. Accordingly, consumers’ choices are based on their consumption profile and their pattern of electricity consumption by reference to an estimate of their needs, but are not directly related to the actual volume of their consumption of electricity.
62.
The French Government stated at the hearing that the subscribed power determines the maximum quantity of electricity capable of being drawn from the grid by a consumer at a given time. (
33
) Consumers therefore estimate the power which they consider they will need in the future based on their needs in connection with their activities or electrical appliances. The power therefore represents a right to a maximum potential electricity consumption, which the consumer will use to a greater or lesser extent. (
34
) It is even possible – for example, in the case of a holiday home which is unoccupied for part of the year – that a consumer will not consume any electricity for a period of time.
63.
Moreover, as the appellants in the main proceedings and the French Government stated at the hearing, if consumers have subscribed to a power much higher than their actual consumption, they may change to a lower power contract, so that their subscribed power actually matches their needs. The tariffs for using the public electricity networks and the CTA will then be adjusted for the future, but there will be no repayment of the CTA paid by consumers in the past and calculated on the basis of a power rating which did not match their needs.
64.
Therefore, even if, as the appellants in the main proceedings argue, the subscribed power has some correlation to the consumer’s future consumption of electricity, the basis of assessment of the CTA is not directly correlated with the quantity of electricity actually consumed, and the CTA could even be levied without any electricity having been fed into the network or consumed by the consumer.
65.
Furthermore, as the Commission pointed out at the hearing, the pricing of the fixed part of the withdrawal component also takes into account the costs incurred by public electricity transmission and distribution network operators in relation to consumers’ maximum potential consumption and its distribution over time, which is linked to the consumer’s potential consumption but not to his or her actual consumption of electricity.
66.
In the third place, it is true that the CTA is passed on in full to the final consumer of electricity. (
35
) However, as is apparent from point 49 above, I am of the view that the mere fact that a tax is passed on in full to that final consumer cannot in itself be sufficient to conclude that there is a direct and inseverable link between a tax and the consumption of electricity. It follows from points 58 to 64 above that the chargeable event for the CTA occurs prior to any consumption of electricity and that the amount of the CTA is calculated irrespective of the quantity of electricity actually consumed by the consumer.
67.
Therefore, it cannot be found that there is a direct and inseverable link between the CTA and the consumption of electricity. Consequently, as the CTA is not an indirect tax which is levied directly or indirectly on the consumption of electricity covered by Directive 2003/96, it does not, in my view, fall within Article 1(2) of Directive 2008/118.
Conclusion
68.
In the light of all the foregoing considerations, I propose that the General Court reply as follows to the questions referred by the Conseil d’État (Council of State, France):
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 meaning that a contribution, such as that at issue in the main proceedings, which is levied on the basis of the use of electricity transmission and distribution networks, is based on the fixed component of the standing charge for use of the public electricity networks and is passed on to the consumer by means of a legal mechanism, does not fall within the concept of ‘other indirect taxes’ within the meaning of that provision.
Ms Maja Brkan
Delivered in open court in Luxembourg on 29 October 2025.
[Signatures]
(
1
)	Original language: French.
(
2
)	Council Directive of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4).
(
3
)	See, to that effect, judgment of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraphs 22 and 23.
(
4
)	See, to that effect, judgment of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 45 and the case-law cited.
(
5
)	See judgment of 19 June 2025, Hera Comm, C‑645/23, EU:C:2025:454, paragraph 38 and the case-law cited.
(
6
)	See, to that effect, judgment of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraphs 22 and 23.
(
7
)	Judgment of 20 September 2017, Elecdey Carcelen and Others, C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraph 63.
(
8
)	Judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 30 April 2025, Generalstaatsanwaltschaft Frankfurt am Main (Export of cash to Russia), C‑246/24, EU:C:2025:295, paragraph 18 and the case-law cited.
(
9
)	Judgment of 19 June 2025, Hera Comm, C‑645/23, EU:C:2025:454, paragraph 41 and the case-law cited.
(
10
)	Directive 2008/118 has since been repealed and replaced by Council Directive (EU) 2020/262 of 19 December 2019 laying down the general arrangements for excise duty (OJ 2020 L 58, p. 4).
(
11
)	Such a conclusion follows, in particular, from the judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 65, as well as the Opinions of Advocate General Campos Sánchez-Bordona in IRCCS – Fondazione Santa Lucia, C‑189/15, EU:C:2016:287, point 40, and in Messer France, C‑103/17, EU:C:2018:170, point 54.
(
12
)	Judgment of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 39 and the case-law cited, and order of 9 November 2021, Agenzia delle dogane e dei monopoli – Ufficio delle dogane di Gaeta, C‑255/20, not published, EU:C:2021:926, paragraph 32.
(
13
)	Judgment of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 39 and the case-law cited.
(
14
)	Order of 9 November 2021, Agenzia delle dogane e dei monopoli – Ufficio delle dogane di Gaeta, C‑255/20, not published, EU:C:2021:926, paragraph 32.
(
15
)	Judgment of 22 April 2010, Commission v United Kingdom, C‑346/08, EU:C:2010:213, paragraph 39 and the case-law cited.
(
16
)	See, for a similar approach, as regards Article 3(2) of Directive 92/12, the content of which is not different, in essence, from Article 1(2) of Directive 2008/118, the Opinions of Advocate General Saggio in EKW and Wein & Co, C‑437/97, EU:C:1999:342, point 38, and of Advocate General Wahl in Transportes Jordi Besora, C‑82/12, EU:C:2013:694, point 16.
(
17
)	Recital 8 of Directive 2008/118.
(
18
)	See, to that effect, judgment of 28 January 2016, BP Europa, C‑64/15, EU:C:2016:62, paragraph 32.
(
19
)	Judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 63.
(
20
)	Judgment of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraphs 57 to 58.
(
21
)	Judgment of 3 March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph 59.
(
22
)	C‑103/17, EU:C:2018:170, point 31.
(
23
)	Judgment of 18 January 2017, C‑189/15, EU:C:2017:17.
(
24
)	See judgments of 4 June 2015, Kernkraftwerke Lippe-Ems (C‑5/14, EU:C:2015:354, paragraph 64); of 20 September 2017, Elecdey Carcelen and Others (C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraph 50); and of 3 March 2021, Promociones Oliva Park (C‑220/19, EU:C:2021:163, paragraph 54).
(
25
)	Judgments of 18 January 2017, IRCCS – Fondazione Santa Lucia (C‑189/15, EU:C:2017:17, paragraph 38); of 20 September 2017, Elecdey Carcelen and Others (C‑215/16, C‑216/16, C‑220/16 and C‑221/16, EU:C:2017:705, paragraphs 49 to 51); and of 3 March 2021, Promociones Oliva Park (C‑220/19, EU:C:2021:163, paragraph 55).
(
26
)	See Article 18(IV) of the Law of 9 August 2004 and the submissions of the rapporteur public, Ms Céline Guibe, in the main proceedings before the Conseil d’État (Council of State) (Cases Nos 476000 and 476009). Those submissions are annexed to the decision of the Conseil d’État (Council of State) of 29 November 2024 in the main proceedings and are available on the website of that court: https://www.conseil-etat.fr/fr/arianeweb/CRP/conclusion/2024-11-29/476000.
(
27
)	In its observations, the French Government refers to the website ‘Tarif d’accès’ (Access tariff) of the commission de régulation de l’énergie (Energy Regulatory Commission) (CRE) (https://www.cre.fr/electricite/reseaux-delectricite/tarif-dacces.html). According to the CRE, the administration component ‘covers the customer administration costs incurred by network operators’. Moreover, it is apparent from the order for reference (paragraph 12) that that component ‘is charged as a fixed amount for each connection point and contract applied to all users according to their connection voltage range, at high, medium or low voltage, and according to their contractual arrangements, in the form of a public distribution network access contract or a single contract’.
(
28
)	In its observations, the French Government refers to the CRE’s ‘Tarif d’accès’ website cited in footnote 27 to the present Opinion. According to the CRE, ‘the metering component covers the costs of metering, monitoring, reading, transmission of billing data, costs related to the flow reconstruction process and, where applicable, costs of rental and maintenance of metering devices’. Moreover, it is clear from the order for reference (paragraph 13) that this component ‘is based on the ownership of the meter, voltage range, subscribed withdrawal power or maximum injection power, power control and measured variables’.
(
29
)	In its observations, the French Government refers to the CRE’s ‘Tarif d’accès’ website cited in footnote 27 to the present Opinion. According to the CRE, the withdrawal component mainly covers the operating and capital expenditure related to the network infrastructure and the cost of purchasing losses. Moreover, it is clear from the order for reference (paragraph 14) that the fixed part of the withdrawal component is based on the voltage range, the optional tariff used by network operators to charge for utilisation of the networks, and subscribed power or, for tariffs with time differentiation depending on the season or time of day, subscribed powers. Only the variable part of the withdrawal component depends on the energy withdrawn.
(
30
)	It follows from the order for reference (paragraph 15) that ‘the fixed part of the annual component for complementary and backup power supplies is based, essentially, on the length and type of connection, depending on whether it is overhead or underground’.
(
31
)	This is clear from footnotes 27, 28 and 30, which indicate how those components are determined.
(
32
)	I refer to footnote 30 to the present Opinion.
(
33
)	This is also apparent from the submissions of the public rapporteur cited in footnote 26 to the present Opinion.
(
34
)	It is clear in particular from the CRE’s conclusions of 18 December 2024 concerning the decision on the rules for modifying the electrical connection power for withdrawal from installations and the compensation procedure (see JORF No 0304 of 24 December 2024, Text No 99) that the CRE distinguishes between the power subscribed to by consumers and the power used by them.
(
35
)	See Article 18(II) of the Law of 9 August 2004.