Turbogás Produtora Energética SA v Autoridade Tributária e Aduaneira.
Date: 2018-06-27
24


It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (judgment of 21 December 2011, Evroetil, C‑503/10, EU:C:2011:872, paragraph 48 and the case-law cited).
25


The fact that a national court has, formally speaking, worded its request for a preliminary ruling by referring to certain provisions of EU law does not preclude the Court of Justice from providing to the national court all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43 and the case-law cited).
30


In that regard, it must be borne in mind that it is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions established in all the languages of the European Union. Where there is a divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 20 December 2017, Gusa, C‑442/16, EU:C:2017:1004, paragraph 34 and the case-law cited).
34


That interpretation is confirmed by the objectives pursued by Directive 2003/96. In that regard, it must be observed that that directive, by making provision for a system of harmonised taxation of energy products and electricity, seeks, inter alia, as is apparent from recitals 2 to 5 and 24 thereof, to promote the proper functioning of the internal market in the energy sector by avoiding, in particular, distortions of competition (judgments of 7 September 2017, Hüttenwerke Krupp Mannesmann, C‑465/15, EU:C:2017:640, paragraph 26, and of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 29 and the case-law cited).
35


To that end, with regard, in particular, to electricity, the EU legislature chose, as is apparent, in particular, from page 5 of the explanatory memorandum to the proposal for a Council Directive restructuring the Community framework for the taxation of energy products (OJ 1997 C 139, p. 14), to require Member States, in accordance with Article 1 of Directive 2003/96, to tax electricity distributed; the energy products used for the generation of that electricity must, as a corollary, be exempted from taxation in order to avoid the double taxation of electricity (judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 30).
36


By way of exception to that principle of output taxation of electricity, the second sentence of the third subparagraph of Article 21(5) of Directive 2003/96 gives Member States the option of exempting electricity produced by small-scale producers for their own use, provided that they tax the energy products used for the production of that electricity.
37


However, in the light of the objectives pursued by Directive 2003/96, that provision relating to small producers concerns only the arrangements whereby electricity is subject to the system of harmonised taxation, in order to avoid, inter alia, as observed by the Advocate General in point 21 of his Opinion, administrative costs relating to taxation in that specific circumstance; it does not, however, affect distributor status granted under the first sentence of the third subparagraph of Article 21(5) of that directive.
41


In that regard, it should be recalled that that provision is binding on Member States, subject to the option afforded them, under the second sentence of Article 14(1)(a) of Directive 2003/96, of derogating from that exemption regime for reasons relating to the protection of the environment (see, to that effect, judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraphs 26 to 28). It is not evident from the documents before the Court that the Portuguese Republic has exercised that discretion.
42


It follows that the use by an entity, such as the one in question in the main proceedings, of a portion of the electricity that it produces for the purpose of generating electricity, whilst constituting a chargeable event for tax under the first and third subparagraphs of Article 21(5) of Directive 2003/96, must be exempted from tax under Article 14(1)(a) of that directive. Any other interpretation would undermine the objectives pursued by that directive, as referred to in paragraphs 34 and 35 of this judgment. First, the electricity thus produced would necessarily be subject to double taxation. Secondly, it could lead to unequal treatment between entities such as the one in question in the main proceedings and other electricity producers using energy products and electricity supplied by third parties for the purpose of their own production, which would be a source of distortions of competition (see, to that effect, judgment of 7 March 2018, Cristal Union, C‑31/17, EU:C:2018:168, paragraph 33).
43


It must be pointed out, however, that Directive 2003/96 does not govern how proof that energy products have been used for purposes giving rise to a right to exemption is to be adduced. On the contrary, as is clear from Article 14(1) thereof, Directive 2003/96 gives the Member States responsibility for laying down the conditions for the exemptions referred to in that provision, in order to ensure the correct and straightforward application of such exemptions and to prevent any evasion, avoidance or abuse. The fact remains that the Member States, when exercising their power to lay down the conditions to which the exemptions provided for in Article 14(1) of the directive are subject, must observe the general principles of law which form part of the legal order of the European Union, including, inter alia, the principle of proportionality (judgment of 2 June 2016, Polihim-SS, C‑355/14, EU:C:2016:403, paragraphs 57 and 59).
44


While Member States may provide for a financial penalty to be imposed for non-compliance with formal requirements (see, to that effect, judgment of 2 June 2016, ROZ-ŚWIT, C‑418/14, EU:C:2016:400, point 40), such non-compliance cannot call into question entitlement to the mandatory exemption provided for in Article 14(1)(a) of Directive 2003/96 if the substantive conditions relating to its application are fulfilled (see, to that effect, judgment of 13 July 2017, Vakarų Baltijos laivų statykla, C‑151/16, EU:C:2017:537, paragraph 51).