European Commission v Kingdom of Belgium.
Date: 2016-01-14
30


As regards the nature of the contested contributions, the Commission submits that, according to the Court’s case-law, the nature of a tax, duty or charge in the light of EU law must be determined by the Court, according to the objective characteristics by which it is levied, irrespective of its classification under national law (Bautiaa and Société française maritime, C‑197/94 and C‑252/94, EU:C:1996:47, paragraph 39 and the case-law cited).
35


In the present case, the ‘Electricity’ Order designates the holder of a supply licence as the person liable for the electricity contribution and the ‘Gas’ Order designates the operator of the distribution network as the person liable for the gas contribution. Accordingly, given that the EU institutions are not designated as the person liable, the tax immunity laid down under Article 3 of the Protocol cannot be applied to them, particularly as no provision of primary or secondary legislation requires the persons designated as liable to pass on the contested contributions in contracts with their customers. In addition, market conditions in which all suppliers pass on the contested contributions to their end customers cannot thereby give rise to tax immunity of the EU institutions (judgment in Commission v Belgium, C‑437/04, EU:C:2007:178, paragraphs 53 and 58).
38


It should be recalled that the Court has ruled that the first and second paragraphs of Article 3 of the Protocol lay down two different regimes of immunity, depending on whether taxes are direct or indirect and that that difference in regime is essential for the purposes of deciding on the issue of immunity (see, to that effect, judgment in Commission v Belgium, C‑437/04, EU:C:2007:178, paragraphs 36 to 38 and the case-law cited).
39


It is common ground that, in the present case, the contested contributions are not charged on income or capital within the meaning of the Court’s case-law (see, to that effect, judgment in Commission v Belgium, C‑437/04, EU:C:2007:178, paragraph 44). In addition, the electricity and gas suppliers include the contested contributions in the invoices for those supplies to the EU institutions. Accordingly, those contributions must be considered to be indirect taxes falling within the scope of the second paragraph of Article 3 of the Protocol.
44


Moreover, in the system of value added tax, for example, in which the second paragraph of Article 3 is often applied, it is not, as a general rule, the end consumer but the supplier of goods or services who is characterised as the taxpayer.
58


The Commission submits that the contested contributions cannot be characterised as ‘[amounting] merely to charges for public utility services’ within the meaning of the third paragraph of Article 3 of the Protocol. In accordance with the Court’s case-law, a contribution cannot constitute mere remuneration for public utility services, within the meaning of that provision, unless such services are provided, or at least are capable of being provided, to those who have to pay the contribution (judgment in AGF Belgium, C‑191/94, EU:C:1996:144, paragraph 26). In addition, the characterisation of a charge as a ‘charge for public utility services’ requires there to be a direct and proportional link between the actual cost of that service and the charge paid by the recipient (judgment in European Commission, C‑199/05, EU:C:2006:678, paragraph 25). According to the Commission, those two conditions are not satisfied in the present case.
63


The Kingdom of Belgium, relying on the judgment in AGF Belgium (C‑191/94, EU:C:1996:144, paragraphs 25 and 26), submits that the public utility services to which the contested contributions are linked satisfy the first condition set out in that regard in the Court’s case-law, namely that they are capable of being supplied to the EU institutions. In particular, the programmes on reasonable electricity and gas use include elements, inter alia subsidies, from which the EU institutions could benefit by putting in place energy efficiency measures. The Kingdom of Belgium cites to that effect a table setting out the amounts of the subsidies from which the EU institutions have benefited over several previous years.
66


It follows from the Court’s case-law that two conditions must be satisfied for an indirect tax, such as the contested contributions, to be considered as amounting to mere remuneration for public utility services within the meaning of the third paragraph of Article 3 of the Protocol. According to the first of those conditions, such services must be provided, or at least be capable of being provided, to those who have to pay such an indirect tax (judgment in AGF Belgium, C‑191/94, EU:C:1996:144, paragraph 26). According to the second condition, there must be a direct and proportional link between the actual cost of that service and the charge paid by the recipient (judgment in European Community, C‑199/05, EU:C:2006:678, paragraph 25). Those two conditions are cumulative.