FENS spol. s r.o. v Slovenská republika – Úrad pre reguláciu sieťových odvetví.
Date: 2018-12-06
22


In that regard, it should be noted that the Court has consistently held that, where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in the light of primary law (see, inter alia, judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 57 and the case-law cited).
23


In the present case, it must therefore be determined whether Article 11(7) of Directive 2003/54 and/or Article 5 of Directive 2005/89 have brought about exhaustive harmonisation capable of precluding examination of the compatibility of legislation such as that at issue in the main proceedings with Articles 28 and 30 TFEU.
24


In that regard, it is noteworthy that Directive 2003/54, applicable at the date of the material facts, constituted one of the steps in the gradual completion of the internal electricity market throughout the European Union. Though it contributed to the creation of such an internal market, it in no way achieved the realisation of an internal market in electricity. The fact that Directive 2003/54 was repealed by Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity (OJ 2009 L 211, p. 55) supports that conclusion.
25


With regard, in particular, to Article 11(7) of Directive 2003/54, it follows from the very terms used in that provision that the rules for charging system users of electricity networks in the event of energy imbalance must be objective, transparent and non-discriminatory. This provision thus merely defines the framework within which the transmission system operators set their charges, the imposition of which is therefore not exhaustively harmonised. Thus, Articles 28 and 30 TFEU must be taken into account in order to assess the compatibility with EU law of national measures such as those at issue in the main proceedings.
29


According to settled case-law of the Court, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect to a customs duty. By contrast, pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 110 TFEU, which prohibits discriminatory internal taxation (judgment of 14 June 2018, Lubrizol France, C‑39/17, EU:C:2018:438, paragraph 24 and the case-law cited).
30


In that respect, it must be borne in mind that the FEU Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, with the result that a measure covered by Article 110 TFEU cannot, within the system of that Treaty, be classified as a ‘charge having equivalent effect’ (see, to that effect, judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 20 and the case-law cited) and that Article 110 TFEU relates not only to imported goods but also to exported goods (see, to that effect, judgment of 22 May 2003, Freskot, C‑355/00, EU:C:2003:298, paragraph 45 and the case-law cited).
31


A pecuniary charge also escapes classification as a ‘charge having equivalent effect’ if it is levied, in certain circumstances, by reason of inspections carried out in order to comply with obligations imposed by EU law, or if it represents payment for a service actually provided to an operator which he is required to pay in an amount proportionate to that service (judgment of 14 June 2018, Lubrizol France, C‑39/17, EU:C:2018:438, paragraph 26 and the case-law cited).
33


In that regard, it should be observed, first, that the charge at issue in the main proceedings constitutes a pecuniary charge unilaterally imposed by a Member State. As the purpose for which such a charge is imposed is irrelevant, it does not matter that it relates to charges for certain electricity network transmission services (see, to that effect, judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 14 and the case-law cited).
34


Second, it must be observed that electricity constitutes a product within the meaning of EU law and that a tax imposed, not on a product as such, but on an activity necessary for doing business with that product, such as, as in the case in the main proceedings, network services, may come within the scope of provisions on the free movement of goods. Thus, where a tax is calculated on the basis of the number of kWh transmitted and not on the basis of the distance for which the electricity is transmitted or according to any other criterion directly connected with transmission, it must be treated as having been imposed on the product itself (see, to that effect, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 43 and 44 and the case-law cited).
37


In that regard, the Court has already held that the essential feature of a charge having equivalent effect to a customs duty which distinguishes it from a general internal tax is that the former is borne solely by a product which crosses a frontier, as such, whereas the latter is borne by imported, exported and domestic products (judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 28).
40


Nevertheless, even if the two categories of electricity were subject to the same system, it must also be noted that, in order to relate to a general system of ‘internal taxation’, within the meaning of Article 110 TFEU, the tax charge in question must impose the same duty on both domestic goods and identical exported goods at the same marketing stage and the chargeable event triggering the duty must also be identical (judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 29 and the case-law cited).
43


In this respect, it should be pointed out that, while the Court has accepted that a charge that represents payment for a service actually provided to an economic operator required to pay it, in an amount that is proportionate to that service, does not constitute a charge having equivalent effect to a customs duty (judgment of 9 September 2004, Carbonati Apuani, C‑72/03, EU:C:2004:506, paragraph 31), the fact remains that, as the Advocate General noted in point 66 of her Opinion, in order for the charge to fall outwith the scope of Article 28 TFEU, the service provided must confer a specific benefit on the individual exporter, a benefit to the public interest being too general in nature and difficult to assess to be regarded as the consideration for a benefit actually conferred (see, to that effect, judgments of 1 July 1969, Commission v Italy, 24/68, EU:C:1969:29, paragraph 16, and of 27 September 1988, Commission v Germany, 18/87, EU:C:1988:453, paragraph 7).
51


It follows that, as the European Commission has noted, Member States do not have any power allowing them unilaterally to introduce charges having an effect equivalent to customs duties on exports to third countries (see, by analogy, judgment of 26 October 1995, SIESSE, C‑36/94, EU:C:1995:351, paragraph 17).
52


The Netherlands Government submits that the objective of safeguarding security of supply constitutes, as the Court has already recognised in its judgment of 22 October 2013, Essentand Others (C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 59 and the case-law cited), an overriding reason in the public interest.
53


In this regard, it is settled case-law that the prohibition in Article 28 TFEU is of a general and absolute nature (see, to that effect, judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 14 and the case-law cited). The FEU Treaty does not provide for any derogations and the Court has held that it follows from the clarity, imperative nature and unrestricted scope of the provisions of relevant primary law that the prohibition of customs duties constitutes an essential rule and that any exception must therefore be clearly provided for. The Court has also stated that the concept of a ‘charge having equivalent effect to a customs duty’ is the necessary complement to the prohibition of customs duties (see, to that effect, judgment of 14 December 1962, Commission v Luxembourg and Belgium, 2/62 and 3/62, EU:C:1962:45, at page 432).