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

10Vapo Atlantic is a company whose corporate purpose is, inter alia, the operation of service stations and the wholesale marketing of petroleum products. On the basis of that company’s declarations of release for consumption, the tax authorities issued joint assessment notices in respect of the tax on petroleum and energy products, the CSR and other tax levies for 2016, in the total sum of EUR21016425.44, including EUR4873427.68 in respect of the CSR.

11On 10February 2020, Vapo Atlantic submitted a request for an administrative review of those assessment notices, which was rejected by a decision of the Director of Customs of Braga (Portugal) of 23July 2020. That decision found that the CSR is compatible with Directive 2008/118 and that, in view of the fact that that levy is borne by taxpayers when purchasing fuel, Vapo Atlantic would be unjustly enriched if its claim for reimbursement were upheld.

12Vapo Atlantic brought an action against that rejection decision before the referring court, the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa– CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal).

13In support of its action, Vapo Atlantic argues that the CSR was created for purely budgetary reasons in order to finance the public undertaking holding the concession contract in respect of the national road network, which infringes Article1(2) of Directive 2008/118.

14The tax authority replies, first, that Decree-Law No380/2007, which awarded the concession contract for the national road network to EP, which has since become Infraestruturas de Portugal SA (‘IP’), assigns to the latter an objective of reducing accidents, and an objective of environmental sustainability, both of which constitute the CSR’s specific purpose within the meaning of Article1(2) of Directive 2008/118. Furthermore, the CSR is IP’s own revenue. That undertaking is thus financed by the users of the national road network and only in the alternative by the State. Secondly, although there is no formal mechanism for passing on the CSR, the specific tax structure of that charge shows that it is passed on in the retail price, with the result that a reimbursement of the sums paid in that regard by a taxable person would amount to a situation of unjust enrichment.

15The referring court asks whether the CSR pursues a specific purpose within the meaning of Article1(2) of Directive 2008/118 and observes that the Court of Justice has not expressly ruled on that point. In that regard, the referring court states that, according to Law No55/2007, the CSR is aimed at ensuring, through the users of the national road network and, in the alternative, the Portuguese State, the financing of the design, planning, construction, maintenance, operation, modernisation and extension of that network, activities which were awarded to IP. That charge thus constitutes the concessionaire’s own revenue and that concessionaire must pursue ‘objectives of environmental sustainability and reducing accidents’.

16It is that context that the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa– CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)Should Article1(2) of Directive [2008/118], in particular the requirement relating to the existence of “specific purposes” be interpreted as meaning that the purpose of a charge is purely budgetary when it was set up in order to finance the public undertaking holding the concession contract for the national road network at the time of the renewal of the concession contract, the revenues generated by that charge are allocated to it in a generic manner, and the structure of the charge does not indicate an intent to discourage any consumption?

(2)Do EU law and the principles of legality and legal certainty permit national authorities to refuse, based on unjust enrichment of the taxable person, to reimburse indirect taxes which are contrary to Directive [2008/118], in the absence of specific legal provisions of national law that provide for this?

(3)Is it permissible under EU law for national authorities, when giving reasons for their refusal to reimburse indirect taxes which are contrary to Directive [2008/118], to assume that the tax has been passed on and that the taxable person has been unjustly enriched, by requiring the taxable person to prove that those indirect taxes do not exist?’