Article 20 - Equality before the law
Article 21 - Non-discrimination
Article 51 - Field of application
Key facts of the case:
Reference for a preliminary ruling — Polluter-pays principle — Common rules for the internal market in electricity — Directive 2009/72/EC — Article 3(1) and (2) — Principle of non-discrimination — Financing the tariff deficit — Taxes applying only to undertakings which use nuclear energy to produce electricity.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
The principle of non-discrimination, as provided for in Article 3(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as not precluding national legislation establishing taxes on the production and storage of nuclear fuel and waste, such as those taxes at issue in the cases in the main proceedings, which apply only to electricity-generating undertakings using nuclear energy and the main objective of which is not to protect the environment but to increase the amount of revenue for the electricity financial system.
Article 3(2) of Directive 2009/72 must be interpreted as not precluding national legislation, such as that at issue in the cases in the main proceedings, when the environmental objective and the characteristics that define environmental taxes provided for in that legislation are not specified in the statutory provision having legislative force in that legislation.
1) These requests for a preliminary ruling concern the interpretation of Article 191(2) TFEU, Article 3(1) and (2) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55), Articles 3 and 5 of Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment (OJ 2006 L 33, p. 22), and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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26) In those circumstances the Tribunal Supremo (Supreme Court, Spain) decided to stay the proceedings and to refer the following questions, formulated in identical terms in the four Joined Cases C‑80/18 to C‑83/18, to the Court of Justice for a preliminary ruling:
‘(1) Does the “polluter pays” principle, affirmed in Article 191(2) [TFEU], together with Articles 20 and 21 of [the Charter], which establish the basic principles of equality and non-discrimination, when applied to the provisions in Article 3(1) and (2) of Directive [2009/72], in so far as it is intended, among other aims, to achieve a competitive and non-discriminatory market in electricity that may be altered only on grounds of general economic interest, including the protection of the environment, preclude the introduction of taxes that apply solely to electricity generation companies that use nuclear energy, when the main purpose of those taxes is not environmental but to increase the volume of the electric power financial system in such a way that these companies contribute more to funding the tariff deficit than other companies that carry on the same activity?
(2) In a competitive and non-discriminatory electricity market, does EU legislation permit the levying of environmental taxes on grounds of the pollution caused by nuclear activities, although this is not specified in the legislation (the grounds are referred to in the Preamble to the [Energy Tax Law]), with the result that, as regards the tax on the production of spent nuclear fuel and radioactive waste, the statutory provisions having legislative force fail to reflect the internalisation of the costs to be covered, and there is also a lack of specificity as regards the storage of radioactive waste, given that the management and storage costs are already covered by other levies, and there is also a failure to establish clearly what the revenue raised is to be used for, and the companies in question are required to assume civil liabilities of up to [EUR] 1200 million in this regard?
(3) Is Article 3(2) of [Directive 2009/72], which requires any obligations imposed on grounds of general economic interest, including environmental protection, to be clearly defined, transparent, non-discriminatory and verifiable, satisfied if the environmental objective and the essential characteristics that define environmental taxes are not specified in the statutory provision having legislative force?
(4) Do the “polluter pays” principle in Article 191(2) [TFEU], the principles of equality and non-discrimination in Articles 20 and 21 of the [Charter], and Articles 3 and 5 of Directive [2005/89], in so far as they seek to ensure “the proper functioning of the internal market for electricity” and call on Member States to ensure “that any measures adopted in accordance with this Directive are non-discriminatory and do not place an unreasonable burden on the market actors”, preclude a provision in national legislation that requires all electricity companies (other than generators of hydroelectricity, which is classified as renewable energy) to fund the tariff deficit, but which imposes a particularly heavy tax burden on nuclear generators, which are required to contribute more than other actors in the energy market, some of which are more polluting, but that do not have to pay these charges, the reasons given being grounds of environmental protection in view of the risks and uncertainties inherent in nuclear activities, without specifying the costs involved or stipulating that the revenue raised is to be used for environmental protection purposes (and given that waste management and storage are already covered by other levies, and nuclear generation companies assume civil liability), and that distorts the free competition required by the liberalised internal market by favouring other electricity generators that do not have to pay environmental taxes even when their sources of production are more highly polluting?
(5) Is a tax on the production of spent nuclear fuel and radioactive waste from nuclear power generation imposed on the nuclear generation industry alone and not applicable to any other sector that may generate such waste, which means that other firms that could use nuclear material or nuclear sources in their activities are not taxed, even though they affect the environment that is to be protected, contrary to the “polluter pays” principle in Article 191(2) [TFEU]?’
36) In addition, that lack of information does not enable the Court to adjudicate, in the context of the fourth question, on whether Articles 20 and 21 of the Charter apply.
37) It should be borne in mind, in that regard, that Article 51(1) of the Charter provides that the provisions of the Charter are addressed to the Member States only when they are implementing EU law.
38) Article 51(1) of the Charter confirms the Court’s settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (see, in particular, judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 26 and the case-law cited).
39) Thus, where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (judgment of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 27 and the case-law cited).
40) Consequently, in the context of the fourth question, Articles 20 and 21 of the Charter could only have been found to have applied if the other provisions of EU law referred to in that question were applicable in the case in the main proceedings. For the reasons stated in paragraphs 27 to 35 above, the fourth question is inadmissible in so far as it refers to those other provisions, since it is not apparent that they may apply in the main proceedings.
44) By its first and second questions, which must be examined together, the referring court asks, in essence, whether Articles 20 and 21 of the Charter and Article 3(1) of Directive 2009/72 must be interpreted as precluding national legislation, such as that at issue in the cases in the main proceedings, establishing taxes on the production and storage of nuclear fuel and waste, which are applied only to electricity-generating undertakings using nuclear energy, and the main objective of which is not to protect the environment but to increase the amount of revenue for the electricity financial system.
53) As regards, in the second place, Articles 20 and 21 of the Charter, it is apparent from paragraphs 37 to 39 above, that, since Article 3 of Directive 2009/72 does not apply to national legislation establishing taxes on the production and storage of nuclear fuel and waste, such as the taxes on nuclear energy at issue in the cases in the main proceedings, and since there are no other details in the order for reference of another instrument of EU law implemented by that legislation, it cannot be found that, by adopting that legislation, the Kingdom of Spain implemented EU law, within the meaning of Article 51(1) of the Charter. It follows that, in accordance with the case-law cited in paragraph 38 above, the Court does not have jurisdiction to answer the first and second questions as regards the interpretation of Articles 20 and 21 of the Charter.
