Proposal for a COUNCIL IMPLEMENTING DECISION authorising Spain to apply a reduced rate of excise duty to electricity directly provided to vessels at berth in a port, in accordance with Article 19 of Directive 2003/96/EC
Date: 2018-07-16
Institutions: Directorate-General for Taxation and Customs Union, European Commission
Subjects: Spain, derogation from EU law, electrical energy, excise duty, harbour installation, tax relief, vessel

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   EUROPEAN COMMISSION  Brussels, 16.7.2018 COM(2018) 535 final 2018/0287 (NLE)  Proposal for a COUNCIL IMPLEMENTING DECISION authorising Spain to apply a reduced rate of excise duty to electricity directly provided to vessels at berth in a port, in accordance with Article 19 of Directive 2003/96/EC  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Taxation  of  energy  products  and  electricity  in  the  Union  is  governed  by  Council  Directive 
2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of 
energy  products  and  electricity1  (hereafter  referred  to  as  the  ‘Energy  Taxation  Directive’  or 
the ‘Directive’).  

Pursuant to Article 19(1) of the Directive, in addition to the provisions laid down in particular 
in  its  Articles  5,  15  and  17,  the  Council,  acting  unanimously  on  a  proposal  from  the 
Commission, may authorise any Member State to introduce further exemptions or reductions 
in the level of taxation for specific policy considerations. 

The  objective  of  this  proposal  is  to  allow  Spain  to  apply  a  reduced  rate  of  excise  duty  to 
electricity  directly  provided  to  vessels  at  berth  in  a  port  (hereafter  referred  to  as  'shore-side 
electricity'). This reduction is meant to create an economic incentive for the deployment and 
use of shore-side electricity in order to reduce air pollution in port cities and improve local air 
quality for the health benefit of inhabitants.  

The aim of the measure to be applied by Spain is also to reduce the environmental impact of 
maritime transport. 

By  letter  dated  12  April  2018,  the  Spanish  authorities  informed  the  Commission  of  their 
intention  to  apply  a  reduced  rate  of  EUR 0.50  per  MWh  of  electricity  tax  to  shore-side 
electricity from 1 July 2018 for a period of 6 years. This tax rate is equal to the minimum rate 
of taxation for electricity for business use as laid down in Directive 2003/96/EC.  

With  the  requested  measure  Spain  wants  to  create  an  incentive  for  the  use  of  shore-side 
electricity  which  is considered a less polluting alternative to the generation  of electricity on 
board vessels lying at berth in a port. Currently, Spain applies an ad valorem excise duty on 
electricity  of  5.11269632 %  on  the  final  price,  including  all  taxes  and  fees  except  excise 
duties and value added tax. The Spanish legislation also requires that the minimum levels laid 
down  in  Article  10(1)  and  Table  C  of  Annex  I  to  the  Directive  are  respected,  i.e.  that  a 
specific  excise  duty  of  EUR 0.50 per MWh for business use  and  EUR 1 per MWh for non-
business use of electricity is levied where the ad valorem excise duty would result in a lower 
tax liability. 

Currently  shore-side  electricity  is  taxed  at  the  general  rate  of  5.11269632 %  levied  on  the 
price of electricity. The Spanish authorities estimate the price of electricity excluding excise 
duties  and  value  added  tax  at  around  EUR 170  per  MWh  and  the  tax  rate  on  shore-side 
electricity,  expressed  in  EUR  per  MWh  is  approximately  EUR 8.69.  The  Commission’s 
analysis of the electricity market in the EU suggests that on average the prices of electricity 
for the industrial sector in Spain are lower2. Either way, the actual excise duty due per MWh 
for shore-side electricity at present is above EUR 0.50. 

On  the  other  hand,  according  to  Article  14(1)(c)  of  the  Energy  Taxation  Directive  Member 
States have to exempt energy products used to produce electricity on board ships at berth in 

1 
2 

OJ L 283, 31.10.2003, p. 51 
Cf. COM(2016) 769 final of 13 November 2016. 

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ports and may also do so in the case of electricity produced on board ships for navigation on 
inland waterways according to Article 15(1)(f) of the Directive.  

Spanish authorities have indicated that the tax reduction would apply to all ships other than 
private pleasure craft3, meaning that all ships involved in commercial navigation, regardless 
of size or flag, will benefit from the tax reduction. 

The Spanish authorities have informed the Commission that at present there are no shore-side 
electricity  facilities in  place at the Spanish ports and the tax expenditures  from the measure 
are difficult to estimate. The Spanish authorities also indicate that there will be no obligation 
for  vessels  to  use  shore-side  electricity.  Their  calculations  suggest  that  the  tax  reduction 
should  result  in  maximum  annual  tax  expenditures  of  approximately  EUR 150 000.  This 
result  is  based  on  estimated  total  number  of  commercial  ships  that  could  be  supplied  with 
shore-side  electricity  of  2 700,  electricity  consumption  by  ships  in  Spanish  ports  of 
approximately 20 000 MWh per year and an electricity price of EUR 170 per MWh including 
all taxes and fees except excise duties and value added tax. 

Spain requested the authorisation to be granted for a period of 6 years, which is the maximum 
period indicated in Article 19(2) of the Directive, starting from 1 July 2018. 

With the tax reduction Spain wants to provide an incentive for vessel operators to use shore-
side electricity in order to reduce airborne emissions and noise from the combustion of fuels 
by  vessels  at  berth  as  well  as  CO2  emissions.  The  application  of  a  reduced  tax  rate  would 
strengthen the competitiveness of shore-side electricity relative to the burning of bunker fuels 
on board, which is tax exempt. 

• 

Consistency with existing policy provisions in the policy area 

Taxation of electricity is governed by Directive 2003/96/EC, in particular Article 10. Article 
14(1)(c)  provides  for  an  obligatory  tax  exemption  for  electricity  produced  on  board  a  craft. 
Articles  5,  15  and  17  provide  for  the  possibility  for  Member  States  to  apply  tax 
differentiations, including exemptions and reductions, to certain uses of electricity. However, 
as such, these provisions do not provide for reduced taxation of shore-side electricity. 

The  measure  constitutes  State  aid  and  falls  within  the  ambit  of  the  EU  legislation  on  this 
subject matter, in particular Commission Regulation 651/2014/EU4. 

Assessment of the measure under Article 19 of Directive 2003/96/EC 

Article 19(1), first subparagraph, of the Directive reads as follows:  

In addition to the provisions set out in the previous Articles, in particular in Articles 5, 15 and 
17, the Council, acting unanimously on a proposal from the Commission, may authorise any 
Member  State 
for  specific  policy 
considerations. 

further  exemptions  or  reductions 

introduce 

to 

By  means  of  the  tax  reduction  in  question  the  Spanish  authorities  pursue  the  objective  to 
promote an environmentally less harmful way for ships to satisfy their electricity needs while 
lying at berth in ports and thereby to improve local air quality. The Commission has already 

3 

4 

The  term  ‘private  pleasure  craft’  is  defined  in  Article  14(1)(c),  second  subparagraph  of  Directive 
2003/96/EC. 
Commission  Regulation 651/2014/EU declaring  certain  categories  of  aid compatible  with  the  internal 
market in application of Articles 107 and 108 of the Treaty (OJ L 187, 26.6.2014, pp. 1–78). 

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recommended the use of shore-side electricity as an alternative to the generation of electricity 
on board the vessels at berth and thereby recognised its environmental advantages5. Currently 
electricity supplied to vessels at berth would be taxed at approximately EUR 8.69 per MWh. 
The  requested  tax  reduction  would  thus  lead  to  an  additional  incentive  for  the  use  of  this 
technology  approximately  equal  to  EUR 8  per  MWh  and  therefore  contribute  to  the  stated 
policy objective.  

The  possibility  to  introduce  a  favourable  tax  treatment  to  shore-side  electricity  can  be 
envisaged  under  Article  19  of  the  Directive  since  its  purpose  is  to  allow  Member  States  to 
introduce further exemption or reductions for specific policy considerations. 

Spain  has  requested  that  the  measure  should  apply  for  the  maximum  period  allowed  by 
Article 19(2), i.e. 6 years. In principle, the period of application of the derogation should be 
long enough in order not to discourage port operators from making the necessary investments 
in shore-side electricity facilities. Six years will provide the maximum possible legal certainty 
also to ship operators which have to plan their investments in on-board equipment. 

State aid rules 

The reduced tax rate of EUR 0.50 per MWh envisaged by the Spanish authorities is equal to 
the  EU  minimum  level  of  taxation  for  electricity  for  business  use  pursuant  to  Article  10  of 
Directive  2003/96/EC.  The  measure  thus  seems  to  fall  under  Article  44  of  Commission 
Regulation  651/2014/EU,  which  stipulates  the  conditions  under  which  aid  in  the  form  of 
reductions  in  environmental  taxes  under  Directive  2003/96/EC  can  be  exempted  from  the 
State aid notification requirements. However it cannot be established at this stage whether all 
the conditions set in this Regulation are fulfilled and the proposal for a Council implementing 
decision does not prejudge the Member State’s obligation to ensure compliance with State aid 
rules,  in  particular,  in  case  of  exempted  aid,  falling  under  Commission  Regulation 
651/2014/EU. 

• 

Consistency with other Union policies 

Environment and climate change policy 

The  requested  measure  concerns  mainly  the  EU's  environment  policy.  To  the  extent  that  it 
will help to reduce the burning of bunker fuels on board the vessels in ports, the measure will 
in  fact contribute  to the objective of improving  local air quality. In  its Article 13, Directive 
2008/50/EC  on  Ambient  Air  Quality6  requires  Member  States  to  ensure  that  the  levels  of 
several  air  pollutants  are  kept  below  the  limit  values  established  in  the  Directive.  This 
obligation  requires  Member  States  to  find  solutions  to  problems  such  as  ship  emissions  at 
berth in ports where this is relevant and it is conceivable that in ports where these problems 
exist  the  use  of  shore-side  electricity  will  be  encouraged  as  one  element  of  the  overall  air 
quality strategy. 

The  measure  is  also  likely  to  lead  to  a  reduction  of  CO2  emissions  to  the  extent  that  the 
electricity  mix  from  the  onshore  grid,  due  to  higher  system  efficiency  and  the  difference  in 
input  fuels  used,  is  less  carbon  intensive  than  the  electricity  produced  on  board  by  burning 
bunker fuels. In this context it can be noted that according to the Spanish authorities, since the 
sources of energy provided by the electricity network are partially renewables (38 % in 2015 

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6 

Commission Recommendation 2006/339/EC of 8 May 2006 on the promotion of shore-side electricity 
for use by ships at berth in Community ports (OJ L 125, 12.5.2006). 
Directive 2008/50/EC of the European Parliament and of the Council  of 21 May 2008 on ambient air 
quality and cleaner air for Europe (OJ L 152, 11.6.2008, p 1). 

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and increasing, with an estimation of around 90-100 % in 2050), they expect that the use of 
shore-side electricity will lead to greenhouse gas emissions reductions in Spain. Although the 
carbon intensity of additional electricity supplied is usually higher than the one of the average 
electricity mix and highly dependent on the time of day when the additional demand occurs, 
CO2 reductions resulting from the measure could be relatively significant.  

Energy policy 

The  measure  is  in  line  with  Directive  2014/94/EU  on  the  deployment  of  alternative  fuels 
infrastructure7 which addresses the issue of installing shore-side electricity supply facilities in 
ports  where  there  is  demand  for  such  facilities  and  the  costs  are  not  disproportionate  to  the 
benefits,  including  environmental  benefits.  It  has  also  been  recognised  as  an  objective  of 
common interest for the granting of State aid under Article 107(1) of TFEU8. 

It has to be recalled at this point that one important reason for the unfavourable competitive 
position of shore-side electricity lies in the fact that the alternative, i.e. electricity produced on 
board the vessels while in maritime ports, currently enjoys a full net tax exemption: not only 
is  the  bunker  fuel  burnt  for  generating  the  electricity  exempt  from  taxation,  which 
corresponds to the normal situation under Article 14(1)(a) of Directive 2003/96/EC, but also 
the electricity produced on board the vessels is itself exempt (cf. Article 14(1)(c) of Directive 
2003/96/EC). Although the latter exemption could as such be considered difficult to reconcile 
with the environmental objectives of the Union, it mirrors considerations of practicability. In 
fact,  taxation  of  the  electricity  produced  on  board  would  require  a  declaration  by  the  ship 
owner –  often  established  in  a  third  country –  or  operator  of  the  amount  of  electricity 
consumed.  The declaration  would furthermore have  to determine the share of the electricity 
consumed in the territorial waters of the Member State where the tax is due. It would create a 
huge  administrative  burden  for  ship-owners  to  have  to  make  such  declarations  for  every 
Member  States  whose  territorial  waters  are  concerned.  Under  these  circumstances  it  can  be 
justified  not  to  penalize  the  less-polluting  alternative  of  shore-side  electricity  by  allowing 
Spain to apply a reduced rate of taxation. 

Transport policy 

The measure is in line with Commission recommendation 2006/339/EC on the promotion of 
shore-side  electricity  for  use  by  ships  at  berth  in  Union  ports9  and  with  the  Commission 
Communication  Strategic  goals  and  recommendations  for  the  EU's  maritime  transport 
policy10. 

Internal market and fair competition 

From the point of view of the internal market and fair competition the measure only reduces 
the existing tax distortion between two competing sources of electricity for boats at berth, i.e. 
on board generation and shore-side electricity, caused by the tax exemption for bunker fuels. 

As  regards  competition  between  vessel  operators,  it  first  has  to  be  mentioned  that  there  are 
currently very few vessels which use shore-side electricity on a commercial basis. Significant 

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Directive  2014/94/EU  of  the  European  Parliament  and  of  the  Council  of  22  October  2014  on  the 
deployment of alternative fuels infrastructure (OJ L 307, 28.10.2014, pp. 1–20). 
C(2014) 2231 final of 9 April 2014. 
Commission Recommendation 2006/339/EC of 8 May 2006 on the promotion of shore-side electricity 
for use by ships at berth in Community ports (OJ L 125, 12.5.2006). 
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  –  Strategic  goals  and 
recommendations for the EU's maritime transport policy until 2018, COM(2009) 8 final of 21 January 
2009. 

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distortions  in  competition  could  therefore  only  arise  between  vessels  benefitting  from  the 
measure requested by changing to shore-side electricity and others that would continue to use 
on-board generation. Although precise cost projections depend crucially on the development 
of the oil price and are therefore very difficult, the latest available assessments indicate that 
overall even a full tax exemption would in most cases not reduce operational costs of shore-
side  electricity  below  the  costs  of  on-board  generation11  and  would  therefore  not,  in  any 
event,  represent  a  significant  competitive  benefit  for  vessel  operators  using  shore-side 
electricity  as  opposed  to  those  using  on-board  generation.  In  the  present  case,  a  significant 
distortion of the above mentioned kind can all the less be expected since Spain will respect 
the minimum level of taxation prescribed by Directive 2003/96/EC for electricity for business 
use.  Furthermore,  access  to  shore-side  electricity  will  be  available  for  the  ships  concerned 
regardless  of  their  flag  without  leading  to  a  more  advantageous  tax  treatment  of  national 
economic operators over their competitors from other EU Member States. 

Concerning competition between ports, it can be expected that any potential impact on trade 
between  Member  States  which  could  result  if  vessels  alter  their  routes  because  of  the 
possibility  to  consume  shore-side  electricity  at  a  reduced  tax  rate,  will  be  negligible.  In  a 
situation where, as stated above, the use of shore-side electricity is, at least in the short term, 
unlikely to become more economic than on-board generation in spite of the tax reduction, this 
tax  reduction  for  shore-side  electricity  is  also  unlikely  to  significantly  distort  competition 
between ports by inducing vessels to change their itinerary according to the availability of this 
option. 

The  timeframe  for  which  it  is  proposed  to  authorize  the  application  of  a  reduced  tax  rate  is 
similar  to  the  timeframe  in  the  Commission  proposal  of  8  years  for  the  tax  exemption  for 
shore-side  electricity.  It  is  unlikely  that  the  analysis  conducted  in  the  two  preceding 
paragraphs will change before the date of expiry of the measure. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article 19 of Council Directive 2003/96/EC. 

• 

Subsidiarity (for non-exclusive competence)  

The  field  of  indirect  taxation  covered  by  Article  113  of  TFEU  is  not  in  itself  within  the 
exclusive competence of the European Union within the meaning of Article 3 of TFEU. 

However,  pursuant  to  Article  19  of  Directive  2003/96/EC,  the  Council  has  been  granted  an 
exclusive competence, as a matter of secondary law, to authorise a Member State to introduce 
further exemptions or reductions within the meaning of that provision. Member States cannot 
therefore substitute themselves for the Council. As a result, the principle of subsidiarity is not 
applicable  to  the  present  implementing  decision.  In  any  event,  since  this  act  is  not  a  draft 
legislative act, it should not be transmitted to national Parliaments pursuant to Protocol No 2 
to the Treaties for review of compliance with the subsidiarity principle. 

• 

Proportionality 

The proposal respects the principle of proportionality. The tax reduction does not exceed what 
is necessary to attain the objective in question. 

11 

Cf.  European  Commission  Directorate  General  Environment,  Service  Contract  Ship  Emissions: 
Assignment, Abatement and Market-based Instruments, Task 2a – Shore-Side Electricity, August 2005, 
http://ec.europa.eu/environment/air/pdf/task2_shoreside.pdf.  The  cost  analysis  is  carried  out  for  the 
three ports of Gothenburg (Sweden), Juneau and Long Beach (USA). 

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• 

Choice of the instrument 

Instrument proposed: Council implementing decision.  

Article 19 of Directive 2003/96/EC makes provision for this type of measure only. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The measure does not require the evaluation of existing legislation. 

• 

Stakeholder consultations 

This proposal is based on a request made by Spain and concerns only this Member State. 

• 

Collection and use of expertise 

There was no need for external expertise. 

• 

Impact assessment 

This proposal concerns an authorisation for an individual Member State upon its own request 
and does not require an impact assessment. 

The information provided by Spain suggests that the measure will have a limited impact on 
tax revenues and the excise duty rate for shore-side electricity will still be above the minimum 
level  of  taxation  set  in  Directive  2003/96/EC.  Spain  expects  the  measure  to  have  a  positive 
impact  on  the  achievement  of  its  environmental  goals  and  in  particular  the  improvement  of 
local air quality in port cities. 

• 

Regulatory fitness and simplification 

The  measure  does  not  provide  for  a  simplification.  It  is  the  result  of  the  request  made  by 
Spain and concerns only this Member State. 

• 

Fundamental rights 

The measure has no bearing on fundamental rights. 

4. 

BUDGETARY IMPLICATIONS 

The  measure  does  not  impose  any  financial  or  administrative  burden  on  the  Union.  The 
proposal therefore has no impact on the budget of the Union. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

An  implementation  plan  is  not  necessary.  This  proposal  concerns  an  authorisation  for  a  tax 
reduction  for  an  individual  Member  State  upon  its  own  request.  It  is  provided  for  a  limited 
period of six years. The tax rate that will apply will be equal to the minimum level of taxation 
set by the Energy Taxation Directive. The measure can be evaluated in case of a request for a 
renewal after the six-year period has expired. 

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• 

Detailed explanation of the specific provisions of the proposal 

Article  1  stipulates  that  Spain  will  be  allowed  to  apply  a  reduced  rate  of  excise  duty  on 
electricity directly supplied to vessels berthed in Spanish ports. The tax rate must not be less 
than EUR 0.50 per MWh, i.e. the minimum level of taxation for electricity for business use 
set  by the  Directive.  It will  not  be possible  to  supply  electricity  at  a  reduced  rate to  private 
pleasure craft as defined in Article 14(1)(c), second subparagraph of Directive 2003/96/EC.  

Article 2 stipulates that the authorisation requested is granted with effect from the date of its 
notification  for  the  maximum  period  allowed  by  the  Directive  of  6  years,  as  requested  by 
Spain. 

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2018/0287 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

authorising Spain to apply a reduced rate of excise duty to electricity directly provided 
to vessels at berth in a port, in accordance with Article 19 of Directive 2003/96/EC 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having  regard  to  Council  Directive  2003/96/EC  of  27  October  2003  restructuring  the 
Community framework for the taxation of energy products and electricity 1, and in particular 
Article 19 thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

By letter of 12 April 2018, Spain sought authorisation to apply a reduced rate of excise 
duty  to  electricity  directly  provided  to  vessels  at  berth  in  a  port  (‘shore-side 
electricity’) pursuant to Article 19(1) of Directive 2003/96/EC. 

(2)  With the reduction in the excise duty that it intends to apply, Spain aims to promote 
the  use  of  shore-side  electricity.  The  use  of  such  electricity  is  considered  to  be  an 
environmentally  less  harmful  way  to  satisfy  the  electricity  needs  of  vessels  lying  at 
berth in ports, compared with the burning of bunker fuels by those vessels. 

(3) 

(4) 

(5) 

Insofar  as  the  use  of  shore-side  electricity  avoids  emissions  of  air  pollutants 
originating  from  the  burning  of  bunker  fuels  by  vessels  at  berth,  it  contributes  to  an 
improvement  in  local  air  quality  in  port  cities.  Under  the  specific  conditions  of  the 
electricity  generation  structure  in  Spain,  the  use  of  electricity  from  the  onshore  grid 
instead  of  electricity  generated  by  burning  bunker  fuels  on  board  is  furthermore 
expected to reduce CO2 emissions. The measure is therefore expected to contribute to 
the environmental, health and climate policy objectives of the Union. 

Allowing Spain to apply a reduced rate of excise duty to shore-side electricity does not 
go  beyond  what  is  necessary  to  increase  the  use  of  shore-side  electricity,  since  on-
board  generation  of  electricity  will  remain  the  more  competitive  alternative  in  most 
cases.  For  the  same  reason,  and  because  the  technology  is  currently  not  available  in 
Spain, the measure is unlikely to lead to significant distortions in competition during 
its  lifetime  and  will  thus  not  negatively  affect  the  proper  functioning  of  the  internal 
market.  

In accordance with Article 19(2) of Directive 2003/96/EC each authorisation granted 
under  that  provision  is  to  be  strictly  limited  in  time.  In  order  to  ensure  that  the 
authorisation  period  is  sufficiently  long  so  as  not  to  discourage  port  operators  from 
making the necessary investments, it is appropriate to grant the authorisation requested 
for a period of six years, subject however to general provisions on the matter that may 
be adopted under Article 113 of the Treaty on the Functioning of the European Union 

1 

OJ L 283, 31.10.2003, p. 51. 

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(TFEU)  and  that  become  applicable  prior  to  the  anticipated  expiration  of  the 
authorisation period.. 

(6) 

This  Decision  is  without  prejudice  to  the  application  of  Union  rules  regarding  State 
aid, 

HAS ADOPTED THIS DECISION:  

Spain  is  authorised  to  apply  a  reduced  rate  of  excise  duty  to  electricity  directly  supplied  to 
vessels berthed in ports, other than private pleasure craft, provided that the minimum levels of 
taxation referred to in Article 10 of Directive 2003/96/EC are respected. 

Article 1 

Article 2 

This Decision shall take effect on the date of its notification. It shall expire six years 
thereafter.  

However, should the Council, acting on the basis of Article 113 TFEU, provide for general 
rules on tax advantages for shore-side electricity, this Decision shall expire on the day on 
which those general rules become applicable. 

This Decision is addressed to the Kingdom of Spain. 

Done at Brussels, 

Article 3 

For the Council 
The President 

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