Case C‑305/17
FENS spol. s r.o.
v
Slovenská republika— Úrad pre reguláciu sieťových odvetví
(Request for a preliminary ruling from the Okresný súd Bratislava II)
(Reference for a preliminary ruling— Free movement of goods— Customs duties— Charges having equivalent effect— Levy on the transmission of electricity generated within the national territory and intended for export— Compatibility of such legislation with the principle of free movement of goods)
1.Free movement of goods— Customs duties— Charge having an equivalent effect— Internal taxation— Distinction— Criteria
(Arts 28, 30 and 110 TFEU)
2.Free movement of goods— Customs duties— Charges having equivalent effect— Electricity generated within the national territory and intended for export— National rule providing for a pecuniary charge levied on the electricity exported to another Member State or a third country — Not permissible
(Arts. 28 and 30 TFEU)
3.Common commercial policy— Scope— Customs duties – Exclusive competence of the Union — Introduction by the Member States of taxes having equivalent effect to customs duties— Not permissible
(Arts 3(1)(a) and (e) and 207(1) TFEU)
4.Free movement of goods— Customs duties— Charges having equivalent effect— Prohibition— Exceptions— No exceptions
(Arts 28 and 34 to 36 TFEU)
1.See the text of the decision.
(see paras 29-31)
2.Articles28 and 30 TFEU must be interpreted as precluding legislation of a Member State under which a pecuniary charge, such as that at issue in the main proceedings, is imposed on electricity exported to another Member State or to a third country solely in cases where the electricity was generated within the national territory.
In that regard, it should be observed, first, that the charge at issue in the main proceedings constitutes a pecuniary charge unilaterally imposed by a Member State. As the purpose for which such a charge is imposed is irrelevant, it does not matter that it relates to charges for certain electricity network transmission services (see, to that effect, judgment of 21September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph14 and the case-law cited).
Second, it must be observed that electricity constitutes a product within the meaning of EU law and that a tax imposed, not on a product as such, but on an activity necessary for doing business with that product, such as, as in the case in the main proceedings, network services, may come within the scope of provisions on the free movement of goods. Thus, where a tax is calculated on the basis of the number of kWh transmitted and not on the basis of the distance for which the electricity is transmitted or according to any other criterion directly connected with transmission, it must be treated as having been imposed on the product itself (see, to that effect, judgment of 17July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs43 and 44 and the case-law cited).
It is necessary to determine, thirdly, whether that charge is levied on those goods by reason of the fact that they cross a border or whether, on the contrary, it results from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of goods irrespective of their origin or intended purpose.
In that regard, the Court has already held that the essential feature of a charge having equivalent effect to a customs duty which distinguishes it from a general internal tax is that the former is borne solely by a product which crosses a frontier, as such, whereas the latter is borne by imported, exported and domestic products (judgment of 2October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph28).
Nevertheless, even if the two categories of electricity were subject to the same system, it must also be noted that, in order to relate to a general system of ‘internal taxation’, within the meaning of Article110 TFEU, the tax charge in question must impose the same duty on both domestic goods and identical exported goods at the same marketing stage and the chargeable event triggering the duty must also be identical (judgment of 2October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph29 and the case-law cited).
It should be noted, fourthly, that it is not clear from the documents submitted to the Court whether the pecuniary charge at issue in the main proceedings is levied by reason of inspections carried out in order to comply with obligations imposed by EU law or whether it constitutes consideration for a service actually provided to an operator, in an amount proportionate to that service.
In this respect, it should be pointed out that, while the Court has accepted that a charge that represents payment for a service actually provided to an economic operator required to pay it, in an amount that is proportionate to that service, does not constitute a charge having equivalent effect to a customs duty (judgment of 9September 2004, Carbonati Apuani, C‑72/03, EU:C:2004:506, paragraph31), the fact remains that, as the Advocate General noted in point66 of her Opinion, in order for the charge to fall outwith the scope of Article28 TFEU, the service provided must confer a specific benefit on the individual exporter, a benefit to the public interest being too general in nature and difficult to assess to be regarded as the consideration for a benefit actually conferred (see, to that effect, judgments of 1July 1969, Commission v Italy, 24/68, EU:C:1969:29, paragraph16, and of 27September 1988, Commission v Germany, 18/87, EU:C:1988:453, paragraph7).
(see paras 33, 34, 36, 37, 40, 42, 43, 57, operative part)
3.With more particular regard to exports to third countries, it should be noted that under Article3(1)(a) and (e) TFEU the European Union has exclusive competence in the areas of the customs union and the common commercial policy and that, in accordance with Article207(1) TFEU, the common commercial policy is based on uniform principles, particularly with regard to changes in tariff rates, as well as the conclusion of tariff and trade agreements relating to trade in goods and services.
The uniformity of the common commercial policy would be seriously undermined if Member States were authorised unilaterally to impose charges having equivalent effect to customs duties on exports to third countries.
It follows that, as the European Commission has noted, Member States do not have any power allowing them unilaterally to introduce charges having an effect equivalent to customs duties on exports to third countries (see, by analogy, judgment of 26October 1995, SIESSE, C‑36/94, EU:C:1995:351, paragraph17).
(see paras 49-51)
4.See the text of the decision.
(paras 53-55)