Messer France SAS v Premier ministre and Others.
Date: 2018-07-25
23


In view of the foregoing considerations, the answer to the fourth question is that the second subparagraph of Article 18(10) of Directive 2003/96 must be interpreted as meaning that, until 1 January 2009, compliance with the minimum rates of taxation laid down in that directive was, in the context of rules on the taxation of electricity laid down by EU law, the only obligation incumbent on the French Republic.
27


In addition, Article 3(2) of Directive 92/12, inserted by the Council of the European Union, seeks to take due account of the Member States’ different fiscal traditions in that regard, particularly the frequent recourse to indirect taxation for the implementation of non-budgetary policies (see, to that effect, judgment of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 18).
30


The French Republic had acknowledged that, by that date, it had failed to adopt the measures necessary to transpose the provisions of Directive 2003/96, which was subsequently transposed by Law No 2010-1488 (see, to that effect, judgment of 25 October 2012, Commission v France, C‑164/11, not published, EU:C:2012:665, paragraph 22).
35


In that regard, it should be noted that Article 3(2) of Directive 92/12 allows Member States to introduce or maintain indirect taxes other than the excise duty instituted by that directive provided that, first, the tax pursues a specific purpose and, second, 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, to that effect, judgment of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 21).
36


Those two conditions, which are intended to prevent additional indirect taxes from improperly obstructing trade, are cumulative, as is apparent from the very wording of that article (judgment of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 22).
37


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 (judgments of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 19; of 9 March 2000, EKW and Wein & Co, C‑437/97, EU:C:2000:110, paragraph 31; and of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 23).
38


In order to be regarded as pursuing a specific purpose within the meaning of that provision, a tax must itself be directed at achieving the specific purpose stated. That is the case, in particular, where the proceeds of that tax must be used for the purpose of reducing the environmental costs specifically linked to the consumption of the electricity on which that tax is imposed and promoting territorial and social cohesion, so that there is a direct link between the use of the revenue and the purpose of the tax in question (see, to that effect, judgments of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 30, and of 5 March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph 41).
39


However, the predetermined allocation of revenue from a tax, 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 (see, to that effect, judgment of 27 February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph 29).
48


In that regard, it should be noted that that provision does not require Member States to comply with all rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, and chargeability and monitoring of the tax are concerned. It is sufficient that the indirect taxes pursuing specific objectives should, on those points, accord with the general scheme of one or other of those taxation techniques as structured by EU legislation (judgment of 24 February 2000, Commission v France, C‑434/97, EU:C:2000:98, paragraph 27).
56


It follows from settled case-law that the right to reimbursement of taxes levied in a Member State in breach of the rules of EU law is the consequence and complement of the rights conferred on individuals by provisions of EU law as interpreted by the Court. The Member State is therefore in principle required to repay taxes levied in breach of EU law (judgment of 19 July 2012, Littlewoods Retail and Others, C‑591/10, EU:C:2012:478, paragraph 24 and the case-law cited).
57


Likewise, the Court has ruled that the only exception to the right to repayment of taxes levied in breach of EU law is in a case in which a charge that was not due has been directly passed on by the taxable person to the purchaser (judgment of 15 September 2011, Accor, C‑310/09, EU:C:2011:581, paragraph 74).