Case C-220/19: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 11 March 2019 — Promociones Oliva Park, S.L. v Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana
Date: 2019-03-11
Institutions: Court of Justice
Subjects: direct tax, electrical energy, electricity supply, energy production, environmental tax, equal treatment, free competition, indirect tax, renewable energy, tax exemption








C_2019213EN.01000601.xml










24.6.2019   


EN


Official Journal of the European Union


C 213/6






Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 11 March 2019 — Promociones Oliva Park, S.L. v Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana
(Case C-220/19)
(2019/C 213/06)
Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Valenciana

Parties to the main proceedings


Applicant: Promociones Oliva Park, S.L.

Defendant: Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana

Questions referred







1.


Should Article 1(2) of Directive 2008/118/EC (1) be interpreted as precluding and being incompatible with a tax such as the IVPEE (tax on the value of electricity production), which is nominally a direct tax but which, having regard to its true nature, is actually an indirect, purely revenue-raising, tax without a specific purpose, given that the classification of the tax under national law cannot override the interpretation provided by EU law, which is governed by the objectives of EU law and reflects the objective characteristics of the tax in question?










2.


In spite of the fact that it is classed as an environmental tax, is the fundamental aim of the IVPEE to raise revenue, in that activities involving the production of electricity and its incorporation into the electricity system are taxed in the same way, regardless of their intensity and environmental impact, in breach of Article 1, Article 3(1) and (2) and Article 3(3)(a) as read with Article 2(k) of Directive 2009/28/EC? (2)











3.


Should the principle of free competition and promotion of energy from renewable sources be interpreted as precluding the IVPEE, since it applies the same fiscal treatment to energy from non-renewable and from renewable sources, thus discriminating against the latter and breaching the support scheme established in Article 2(k) and related provisions of Directive 2009/28/EC?










4.


Finally, do the aforementioned principle of free competition and Articles 32, 33 and 34 of Directive 2009/72/EC (3) (CHAPTER VIII, ORGANISATION OF ACCESS TO THE SYSTEM) preclude the IVPEE, on the grounds that it permits positive discrimination in favour of non-national electricity producers, to the detriment of Spanish producers, thereby distorting the internal electricity market and access to the system?






(1)  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)  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

(3)  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).