Elecdey Carcelen SA and Others v Comunidad Autónoma de Castilla-La Mancha.
Date: 2017-09-20
31


As is apparent from the very wording of Article 3(3) of Directive 2009/28, and in particular the word ‘may’, Member States are not obliged, in order to promote the use of energy from renewable sources, the adoption of support schemes or, a fortiori, if they choose to adopt such schemes, to design such schemes in the form of tax exemptions or reductions.
32


Accordingly, Member States have discretion as to the measures they consider appropriate to achieve the mandatory overall national targets set out in Article 3(1) and (2) of Directive 2009/28, read in combination with Annex I to that directive.
38


It is true that the increase in the use of renewable energy sources for the production of electricity constitutes one of the important components of the package of measures needed in order to reduce greenhouse gas emissions, which are amongst the main causes of climate change that the European Union and its Member States have pledged to combat, and to comply, in particular, with the Kyoto Protocol to the United Nations Framework Convention on Climate Change. Such an increase is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU. Moreover, it is also clear from Article 194(1)(c) TFEU that the development of renewable energy is one of the objectives that must guide EU energy policy (judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 78 to 81).
44


In accordance with Article 1 of Directive 2003/96, its scope is restricted to the taxation of ‘energy products’ and ‘electricity’, as defined in Article 2(1) and (2) of that directive (see judgment of 1 October 2015, OKG, C‑606/13, EU:C:2015:636, paragraph 24).
46


In that regard, it is appropriate to begin by recalling that Article 2(1) of Directive 2003/96 defines ‘energy products’ for the purposes of that directive by drawing up an exhaustive list of the products covered by that definition by reference to the codes of the combined nomenclature (judgments of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 47, and of 1 October 2015, OKG, C‑606/13, EU:C:2015:636, paragraph 26).
51


Consequently, there is no connection between, on the one, hand, the operative event for the levy at issue in the cases in the main proceedings and, on the other, the actual production of electricity by wind turbines, and even less the consumption of electricity generated by them (see, by analogy, judgments of 10 June 1999, Braathens, C‑346/97, EU:C:1999:291, paragraphs 22 and 23; of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraphs 61 to 65; and of 1 October 2015, OKG, C‑606/13, EU:C:2015:636, paragraphs 31 to 35).
57


Moreover, according to Article 1(2) of that directive, goods which are subject to that excise duty may also be subjected to indirect taxes other than that excise duty, but only if, first, such a tax is levied for one or more specific purposes and, second, it complies with the EU tax rules applicable to excise duty and VAT as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, not including the provisions on exemptions (see, to that effect, judgment of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 35).
58


As the Court has already held, that provision, which 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, allows Member States to introduce, in addition to minimum excise duty, other indirect taxes having a specific purpose (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 58).
61


It should, however, be borne in mind that Article 1(2) of Directive 2008/118 refers, as is clear from paragraph 57 of the present judgment, only to indirect taxes, other than ‘excise duty’, which are levied directly or indirectly on the consumption of ‘excise goods’, such as those listed in Article 1(1) of that directive (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 59).