Transportes Jordi Besora SL v Generalitat de Catalunya.
Date: 2014-02-27
19. In those circumstances, the Tribunal Superior de Justicia de Cataluña decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Is it the case that Article 3(2) of [Directive 92/12] and, in particular, the requirement of a “specific purpose” for a particular tax
(a) must be interpreted as requiring that the purpose pursued is not capable of being achieved by means of another harmonised tax?
(b) must be interpreted as meaning that there is a purely budgetary purpose when a particular tax has been established simultaneously with the transfer of certain competences to certain Autonomous Communities to which, in turn, are transferred the revenue from the tax with the aim of covering, in part, the costs associated with the competences transferred, it being permissible to lay down rates of tax that vary between Autonomous Communities?
(c) If the previous question is answered in the negative, must the term “specific purpose” be interpreted as meaning that the purpose must be exclusive or, on the contrary, that it permits the attainment of various differentiated aims, among which is also included the merely budgetary aim of obtaining financing for certain competences?
(d) If the answer to the previous question is that the attainment of various aims is permitted, what degree of relevance must be displayed by a particular objective, for the purposes of Article 3(2) of Directive 92/12, in order to fulfil the requirement that the tax should meet a “specific purpose” in the sense accepted by the case-law of the Court of Justice and what would be the criteria for defining the principal purpose as compared with the ancillary purpose?
2. Does Article 3(2) of [Directive 92/12] and, in particular, the condition of complying with the tax rules applicable to excise duties or VAT for the determination of chargeability,
(a) preclude an indirect non-harmonised tax (such as the IVMDH) which becomes chargeable at the time of the retail sale of the fuel to the final consumer, in contrast to the harmonised tax (tax on hydrocarbons, which becomes chargeable when the products leave the last tax warehouse) or VAT (which, although also becoming chargeable at the time of the final retail sale, is payable at each stage of the production and distribution process), on the basis that it does not – to use the terms of the judgment in Case C‑437/97 EKW and Wein & Co  [2000] ECR I‑1157, paragraph 47 – accord with the general scheme of one or other of the abovementioned taxation techniques as structured by [Community] legislation?
(b) In the event that the foregoing question is answered in the negative, must [that provision be interpreted as meaning that] the said compliance condition is fulfilled, without the need for any coinciding of the effects of the chargeability, on account of the mere circumstance that the non-harmonised indirect tax (in this case, the IVMDH) does not disrupt – in the sense that it does not impede or render difficult – the normal functioning of the chargeability of excise duties or VAT?’
Consideration of the questions referred
21. Article 3(2) of Directive 92/12 provides that mineral oils may be subject to indirect taxation other than the excise duty established by that directive if, first, the tax pursues one or more specific purposes and if, secondly, it complies with the tax rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned (see EKW and Wein & Co , paragraph 30).
22. Those two conditions, which are intended to prevent additional indirect taxes from improperly obstructing trade (Case C‑434/97 Commission  v France  [2000] ECR I‑1129, paragraph 26, and EKW and Wein & Co , paragraph 46), are cumulative, as is apparent from the very wording of that provision.
23. As regards the first of those conditions, it is apparent from the case-law of the Court that a specific purpose within the meaning of Article 3(2) of Directive 92/12 is a purpose other than a purely budgetary purpose (see Commission  v France , paragraph 19; EKW and Wein & Co , paragraph 31; and Case C‑491/03 Hermann  [2005] ECR I‑2025, paragraph 16).
25. In this connection, it should be recalled that the Court has already held that the reinforcement of the autonomy of a regional or local authority through the grant of a power to generate tax income constitutes a purely budgetary objective that cannot, on its own, constitute a specific purpose in the sense contemplated by Article 3(2) of Directive 92/12 ( EKW and Wein & Co , paragraph 33).
27. As to those submissions, it should be stated at the outset that, since every tax necessarily pursues a budgetary purpose, the mere fact that a tax such as the IVMDH is intended to achieve a budgetary objective cannot, in itself, suffice – if Article 3(2) of Directive 92/12 is not to be rendered meaningless – to preclude that tax from being regarded as having, in addition, a specific purpose within the meaning of that provision (see, to that effect, EKW and Wein & Co , paragraph 33).
28. Moreover, as the Advocate General has stated, in essence, in points 26 and 27 of his Opinion, the predetermined allocation of the proceeds of a tax such as the IVMDH to the financing by regional authorities, such as the Autonomous Communities, of powers transferred to them by the State in the fields of health and the environment can constitute a factor to be taken into account for the purpose of establishing the existence of a specific purpose within the meaning of Article 3(2) of Directive 92/12 (see, to that effect, EKW and Wein & Co , paragraph 35).
29. However, such an allocation, which is merely a matter of internal organisation of the budget of a Member State, cannot, in itself, constitute a sufficient condition in that regard, since any Member State may decide to lay down, irrespective of the purpose pursued, that the proceeds of a tax be allocated to financing particular expenditure. Otherwise, any purpose could be considered to be specific within the meaning of Article 3(2) of Directive 92/12, which would deprive the harmonised excise duty established by that directive of all practical effect and be contrary to the principle that a derogating provision such as Article 3(2) must be interpreted strictly.
30. In order to be regarded as pursuing a specific purpose within the meaning of that provision, a tax such as the IVMDH must, by contrast, itself be directed at protecting health and the environment. This would, in particular, be the case, as the Advocate General has stated, in essence, in points 28 and 29 of his Opinion, where the proceeds of that tax had to be used for the purpose of reducing the social and environmental costs specifically linked to the consumption of the mineral oils on which that tax is imposed, so that there is a direct link between the use of the revenue and the purpose of the tax in question.
31. However, in the main proceedings, it is not contested that the revenue from the IVMDH has to be allocated by the Autonomous Communities to health expenditure in general and not to health expenditure which is specifically linked to the consumption of the taxed hydrocarbons. Such general expenditure may be financed by the proceeds of all kinds of taxes.
32. Furthermore, it is apparent from the information available to the Court that the national legislation at issue does not lay down any mechanism for the predetermined allocation of revenue from the IVMDH to environmental purposes. In the absence of such a predetermined allocation, as the Advocate General has observed, in essence, in points 25 and 26 of his Opinion, a tax such as the IVMDH could be regarded as being itself directed at protecting the environment and, therefore, as pursuing a specific purpose within the meaning of Article 3(2) of Directive 92/12 only if it were designed, so far as concerns its structure, and particularly the taxable item or the rate of tax, in such a way as to dissuade taxpayers from using mineral oils or to encourage the use of other products that are less harmful to the environment.
40. In this connection, it should be recalled that, according to settled case-law of the Court, the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the courts having jurisdiction are satisfied (see, inter alia, Joined Cases C‑453/02 and C‑462/02 Linneweber and Akritidis  [2005] ECR I‑1131, paragraph 41; Case C‑292/04 Meilicke and Others  [2007] ECR I‑1835, paragraph 34; and Joined Cases C‑338/11 to C‑347/11 Santander Asset Management SGIIC and Others  [2012] ECR, paragraph 58).
41. It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the legal order of the European Union, decide to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, Case C‑402/03 Skov and Bilka  [2006] ECR I‑199, paragraph 51; Case C‑2/09 Kalinchev  [2010] ECR I‑4939, paragraph 50; and Santander Asset Management SGIIC and Others , paragraph 59).
42. More specifically, the Court has taken that step only in quite specific circumstances, notably where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with European Union law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed (see, inter alia, Case C‑423/04 Richards  [2006] ECR I‑3585, paragraph 42; Kalinchev , paragraph 51; and Santander Asset Management SGIIC and Others , paragraph 60).
48. It should nevertheless be recalled that it is settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effects of the ruling (Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraph 52; Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraph 68; Kalinchev , paragraph 52; and Santander Asset Management SGIIC and Others , paragraph 62).
49. If it were otherwise, the most serious infringements would receive more lenient treatment inasmuch as it is those infringements that are liable to have the most significant financial implications for Member States. Furthermore, to limit the temporal effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which taxpayers have under the fiscal legislation of the European Union (Joined Cases C‑367/93 to C‑377/93 Roders and Others [1995] ECR I‑2229, paragraph 48).