Tallinna Ettevõtlusamet v Statoil Fuel & Retail Eesti AS.
Date: 2015-03-05
33. At the outset, it may be observed that it is apparent from the decision to refer that the main proceedings, which concern the sales tax only to the extent that it was levied on retail sales of liquid fuel, are based on the uncontested premiss that this product falls within the category of ‘excise goods’ within the meaning of Article 1(1) of Directive 2008/118. It is for the referring court to determine that matter, if necessary. In any event, since it is for the Court of Justice to give a ruling in the light of the factual and legal considerations set out in the order for reference (see judgments in B. , C‑306/09, EU:C:2010:626, paragraph 47, and Kastrati , C‑620/10, EU:C:2012:265, paragraph 38), the Court will accept the same premiss in the case at issue for the purposes of its analysis.
35. If paragraphs 1 and 2 of Article 1 of the latter directive are read in conjunction, it is clear that goods which are subject to excise duty by virtue of that directive may be subjected to indirect taxes other than the excise duty instituted by that directive if, first, such a tax is levied for one or more specific purposes and, secondly, 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.
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 Article 1(2) of the same directive (see, by analogy, judgment in Transportes Jordi Besora , C‑82/12, EU:C:2014:108, paragraph 22 and the case-law cited).
37. As regards the first of those conditions — the only one to which the questions referred relate — it is apparent from the case-law of the Court that a specific purpose within the meaning of Article 1(2) of Directive 2008/118 is a purpose other than a purely budgetary purpose (see, by analogy, judgments in Commission  v France , C‑434/97, EU:C:2000:98, paragraph 19, and Transportes Jordi Besora , EU:C:2014:108, paragraph 23 and the case-law cited).
38. However, since every tax necessarily pursues a budgetary purpose, the mere fact that a tax is intended to achieve a budgetary objective cannot, in itself, suffice — if Article 1(2) of Directive 2008/118 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, by analogy, judgment in Transportes Jordi Besora , EU:C:2014:108, paragraph 27 and the case-law cited).
39. Thus, while the predetermined allocation of the proceeds of a tax to the financing by local authorities of powers transferred to them can constitute a factor to be taken into account for the purpose of establishing the existence of a specific purpose, 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, since any Member State may decide to lay down, irrespective of the purpose pursued, that the proceeds of a tax are be allocated to financing particular expenditure. Otherwise, any purpose could be considered to be specific within the meaning of Article 1(2) of Directive 2008/118, 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 1(2) must be interpreted strictly (see, by analogy, judgment in Transportes Jordi Besora , EU:C:2014:108, paragraphs 28 and 29 and the case-law cited).
41. In order for the predetermined allocation of the revenue from a tax on excise goods to be regarded as indicating that the tax pursues a specific purpose within the meaning of the same provision, the tax in question must itself be directed at achieving the specific purpose referred to, so that there is a direct link between the use of the revenue and the specific purpose (see, to that effect, judgment in Transportes Jordi Besora , EU:C:2014:108, paragraph 30).
42. In the absence of such a mechanism for the predetermined allocation of revenue, a tax on excise goods can be regarded as pursuing a specific purpose within the meaning of Article 1(2) of Directive 2008/118 only if it is designed, so far as its structure is concerned, and particularly the taxable item or the rate of tax, in such a way as to guide the behaviour of taxpayers in a direction which facilitates the achievement of the stated specific purpose, for example by taxing the goods in question heavily in order to discourage their consumption (see, to that effect, judgment in Transportes Jordi Besora , EU:C:2014:108, paragraph 32).
45. Even if it were accepted as established, first, as contended by the Ettevõtlusamet and the Greek Government that, in substance, the sales tax, in so far as it is levied on liquid fuel subject to excise duty, has the purpose, by organising public transport efficiently, of protecting the environment and public health, and, secondly, that expenditure for this purpose is not merely general expenditure which might be financed by means of revenue from taxes of any kind (see, to that effect, with regard to health expenditure in general, judgment in Transportes Jordi Besora , EU:C:2014:108, paragraph 31), it should be noted that the national legislation at issue in the main proceedings does not provide for any method of predetermined allocation of the revenue from that tax, in so far as it is levied on liquid fuel subject to excise duty, for such environmental or public health purposes. The mere allocation of the revenue at issue in the main proceedings for the organisation of public transport cannot be regarded as enabling a direct link, within the meaning of the case-law referred to in paragraph 41 of this judgment, to be established between the use of the revenue from the tax concerned and those environmental and public health purposes.