(Reference for a preliminary ruling– Article99 of the Rules of Procedure of the Court– Excise duties– Directive 2008/118

The first question

17Under Article99 of the Rules of Procedure of the Court of Justice, where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

18It is appropriate to apply that provision in the present reference for a preliminary ruling.

19By its first question, the referring court asks, in essence, whether Article1(2) of Directive 2008/118 must be interpreted as meaning that a charge, the revenue from which is allocated, in a generic manner, to a public undertaking holding the concession contract for the national road network and the structure of that charge does not indicate an intention to discourage the consumption of the main road fuels, pursues ‘specific purposes’ within the meaning of that provision.

20It should be noted at the outset that that provision, which seeks to take due account of the Member States’ different fiscal traditions in this regard and the frequent recourse to indirect taxation for the implementation of non-budgetary policies, allows Member States to introduce, in addition to minimum excise duty, other indirect taxes having a specific purpose (judgments of 4June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph58, and of 3March 2021, Promociones Oliva Park, C‑220/19, EU:C:2021:163, paragraph48).

21In accordance with that provision, Member States may levy other indirect taxes on excise goods, subject to two conditions. First, such taxes must be levied for specific purposes and, second, those taxes must comply with the EU tax rules applicable for excise duty or value added tax as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned, but not including the provisions on exemptions.

22Those two conditions, which are intended to prevent additional indirect taxes from improperly obstructing trade, are cumulative, as is apparent from the very wording of Article1(2) of Directive 2008/118 (see judgment of 5March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, point36, and, by analogy, judgment of 25July 2018, Messer France, C‑103/17, EU:C:2018:587, paragraph36).

23As regards the first of those conditions, the only one to which the first question referred for a preliminary ruling relates, it is apparent from the case-law of the Court that a specific purpose within the meaning of that provision is a purpose other than a purely budgetary purpose (judgment of 5March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph37).

24However, 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 Article1(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 (judgment of 5March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph38 and the case-law cited).

25Thus, 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, 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 5March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph41, and of 25July 2018, Messer France, C‑103/17, EU:C:2018:587, paragraph38).

26Furthermore, while the predetermined allocation of the proceeds of a tax to the financing of the exercise, by the authorities of a Member State, 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 [to] be allocated to financing particular expenditure. Otherwise, any purpose could be considered to be specific within the meaning of Article1(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 Article1(2) must be interpreted strictly (judgment of 5March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph39 and the case-law cited).

27Lastly, in the absence of such a mechanism for the predetermined allocation of revenue, a levy on excise goods can be regarded as pursuing a specific purpose within the meaning of Article1(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 (judgment of 5March 2015, Statoil Fuel & Retail, C‑553/13, EU:C:2015:149, paragraph42 and the case-law cited).

28When the Court is requested to give a preliminary ruling in order to determine whether a tax established by a Member State pursues a specific purpose within the meaning of Article1(2) of Directive 2008/118, its task is to provide the national court with guidance on the criteria which will enable the latter to determine whether that tax actually pursues such a purpose, rather than to carry out that assessment itself, a fortiori since the Court does not necessarily have available to it all the information which is essential in that regard (see, by analogy, judgments of 7November 2002, Lohmann and Medi Bayreuth, C‑260/00 to C‑263/00, EU:C:2002:637, paragraph26, and of 16February 2006, Proxxon, C‑500/04, EU:C:2006:111, paragraph23).

29In the present case, it is important to note, first, as follows from the case-law referred to in paragraph26 of the present order, that, although the predetermined allocation of the proceeds of the CSR to the financing, by the concessionaire of the national road network, of the general powers transferred to it can constitute a factor to be taken into account in order to identify the existence of a specific purpose, within the meaning of Article1(2) of Directive 2008/118, such an allocation cannot, in itself, constitute a sufficient condition.

30Secondly, in order to be regarded as pursuing a specific purpose within the meaning of that provision, the CSR would itself have to be directed at achievingthe objectives of environmental sustainability and reducing accidents, which were assigned to the concessionaire of the national road network. That would be the case, in particular, where the proceeds of that charge had to be used for the purpose of reducing the social and environmental costs specifically linked to the use of that network on which that charge is imposed. There would then be a direct link between the use of the revenue and the purpose of the tax in question (see, to that effect, judgments of 27February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraph30, and of 25July 2018, Messer France, C‑103/17, EU:C:2018:587, paragraph38).

31Thirdly, it is true that, as follows from paragraph14 of the present order, the tax authorities maintain that there is a link between the allocation of revenue generated by the CSR and the specific purpose which led to the introduction of that charge, since the Decree-Law awarding the concession contract for the national road network to IP requires the latter to work towards achieving the reduction of accidents on that network, on the one hand, and environmental sustainability, on the other.

32However, as noted in paragraph15 of the present order, it is apparent from the order for reference that the proceeds from the charge in question in the main proceedings are not allocated exclusively to the financing of operations which are supposed to lead to the achievement of the two objectives referred in the preceding paragraph of this order. The revenue from the CSR is intended, more broadly, to finance the design, planning, construction, maintenance, operation, modernisation and extension of that network.

33Fourthly, the two objectives assigned to the concessionaire of the Portuguese national road network are set out in very general terms and do not demonstrate, prima facie, an actual desire to discourage the use of either that network or the main road fuels such as petrol, diesel or automotive liquefied petroleum gas (LPG). In that regard, it is significant that the referring court emphasises, in the wording of its first question referred for a preliminary ruling, that the revenue generated by the charge is allocated in a generic manner to the concessionaire of the national road network and that the structure of that charge does not indicate an intention to discourage any consumption of those fuels.

34Fifthly, there is nothing in the request for a preliminary ruling to suggest that the CSR, in so far as it affects users of the national road network, is designed, as regards its structure, in such a way that it discourages taxable persons from using that network or encourages them to adopt behaviour, the effects of which would be less harmful to the environment and capable of reducing accidents.

35Therefore, and subject to the verifications which it will be for the referring court to carry out in the light of the information set out in paragraphs29 to 34 of the present order, the two specific purposes relied on by the tax authorities in order to demonstrate that the CSR pursues a specific purpose within the meaning of Article1(2) of Directive 2008/118, cannot be distinguished from a purely budgetary purpose (see, by analogy, judgment of 27February 2014, Transportes Jordi Besora, C‑82/12, EU:C:2014:108, paragraphs31 to 35).

36In the light of the foregoing considerations, the answer to the first question is that Article1(2) of Directive 2008/118 must be interpreted as meaning that a charge, the revenue from which is allocated, in a generic manner, to a public undertaking holding the concession contract for the national road network and the structure of that charge does not indicate an intention to discourage the consumption of the main road fuels, does not pursue ‘specific purposes’ within the meaning of that provision.

The second and third questions

37By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether EU law must be interpreted as precluding national authorities from being able to justify their refusal to reimburse an indirect charge that is contrary to Directive 2008/118 by assuming that that charge has been passed on to third parties and, as a result, that the taxable person has been unjustly enriched.

38As follows from settled case-law, the right to a refund of taxes levied in a Member State in breach of EU provisions is the consequence and complement of the rights conferred on individuals by those provisions as interpreted by the Court. A Member State is thus in principle required to repay taxes levied in breach of EU law, in accordance with the applicable national procedural rules and with due regard for the principles of equivalence and effectiveness (see, to that effect, inter alia, judgments of 9November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph12, and of 1March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph32).

39There is only one exception to the obligation to reimburse taxes levied in a Member State in breach of EU provisions. So as not to lead to the unjust enrichment of the persons concerned, the protection of the rights so guaranteed by the EU legal order excludes, as a matter of principle, the repayment of taxes, charges and duties levied in breach of EU law where it is established that the person required to pay such charges has actually passed them on to other persons (see, to that effect, judgments of 14January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph21, and of 1March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph33).

40It is therefore for the national authorities and courts to ensure observance of the principle prohibiting unjust enrichment, including where national law is silent.

41In circumstances such as those referred to in paragraph39 of the present order, the burden of the charge levied though not due is borne not by the trader who is subject to it but by the purchaser to whom it has been passed on. Therefore, to repay the trader the amount of the charge already received from the purchaser would be tantamount to paying him or her twice over, which may be described as unjust enrichment, whilst in no way remedying the consequences for the purchaser of the illegality of the charge (see, to that effect, judgments of 14January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraph22, and of 1March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph34).

42A Member State may, therefore, in the light of EU law,resist repayment of a charge levied though not due only where it is established by the national authorities that the charge has been borne in its entirety by someone other than the taxable person and that reimbursement of the charge would constitute unjust enrichment of the latter. It follows that, if the burden of the charge has been passed on only in part, the national authorities are required to repay only the amount not passed on (see, to that effect, inter alia, judgments of 9November 1983, San Giorgio, 199/82, EU:C:1983:318, paragraph13; of 14January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraphs27 and 28; and of 2October 2003, Weber’s Wine World and Others, C‑147/01, EU:C:2003:533, paragraph94).

43As that exception to the principle of reimbursement of taxes which are incompatible with EU law is a restriction of a subjective right derived from the EU legal order, it must be interpreted restrictively, taking account in particular of the fact that passing on a charge to the consumer does not necessarily neutralise the economic effects of the tax on the taxable person (see, to that effect, judgments of 2October 2003, Weber’s Wine World and Others, C‑147/01, EU:C:2003:533, paragraph95, and of 1March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph35).

44Even though indirect taxes are designed in national law to be passed on to the final consumer and in commerce are normally passed on in whole or in part, it cannot be generally assumed that the charge is actually passed on in every case. The actual passing on of such taxes, either in whole or in part, depends on various factors in each commercial transaction which distinguish it from other transactions in other contexts. Consequently, the question whether an indirect tax has or has not been passed on in each case is a question of fact to be determined by the national court, which is free to assess the evidence adduced before it (see, to that effect, judgments of 25February 1988, Les Fils de Jules Bianco and Girard, 331/85, 376/85 and 378/85, EU:C:1988:97, paragraph17, and of 2October 2003, Weber’s Wine World and Others, C‑147/01, EU:C:2003:533, paragraph96).

45However, in the case of indirect taxes, it may not be assumed that there is a presumption that they have been passed on and that it is for the taxpayer to prove the contrary. The same applies where the taxpayer has been obliged by the relevant national legislation to incorporate the charge in the cost price of the product concerned. Such a legal obligation does not mean that there is a presumption that the entire charge has been passed on, even where failure to comply with that obligation carries a penalty (judgment of 14January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraphs25 and 26).

46EU law thus precludes any presumption or rule of evidence intended to shift to the trader concerned the burden of proving that the charges unduly paid have not been passed on to other persons and to prevent him or her from adducing evidence in order to refute any allegation that the charges have been passed on (judgment of 21September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph42).

47Furthermore, even where it is established that the burden of the charge levied though not due has been passed on to third parties, repayment to the trader of the amount thus passed on does not necessarily entail his or her unjust enrichment, since even where the charge is wholly incorporated in the price, the taxable person may suffer as a result of a fall in the volume of his or her sales (see, to that effect, judgments of 14January 1997, Comateb and Others, C‑192/95 to C‑218/95, EU:C:1997:12, paragraphs29 to 32, and of 6September 2011, Lady and Kid and Others, C‑398/09, EU:C:2011:540, paragraph21).

48In those circumstances, the answer to the second and third questions is that EU law must be interpreted as precluding national authorities from being able to justify their refusal to reimburse an indirect charge that is contrary to Directive 2008/118 by assuming that that charge has been passed on to third parties and, as a result, that the taxable person has been unjustly enriched.