The French Council of State referred a request for a preliminary ruling to the CJEU regarding the rules on the Community framework for the taxation of energy products and electricity

Conseil d’État, 9ème – 10ème chambres réunies, 18/01/2017, 387833

The present case concerned the rules on the Community framework for the taxation of energy products and electricity.

The company Sucrerie de Toury operated a heat and electricity cogeneration for which it used natural gas as fuel. The gas that was delivered to it between 1 January 2006 and 25 December 2007 was submitted by its supplier to domestic tax on natural gas consumption under Article 266 quinquies of the French Customs Code.

The company Sucrerie de Toury considered that these deliveries should have been exempted from this tax pursuant to Article 14 of Directive 2003/96 / EC.

On this occasion, the aforementioned company asked the administrative court of Orleans (Tribunal administratif d’Orléans) to order the State to pay it the sum of 98,768 euros in compensation for the damage it claims to have suffered due to the delay of the State to implement the Directive 2003/96 / EC.

The administrative court of Orleans rejected its request. Thereafter, the company filed an action before the Administrative Court of Appeal of Nantes (Cour administrative d’appel de Nantes). However, the aforementioned court also dismissed it appeal.

Subsequently the company Sucrerie de Toury lodged an appeal with the Court of cassation (Cour de cassation).

The company contended that the Administrative Court of Appeal of Nantes made an error of law in ruling that the natural gas which it uses falls exclusively under the provisions of Article 15 of the Directive 2003/96 / EC.

It considered that the exemption option afforded by that article applies only to the share of gas whose consumption corresponds to heat production, the share used for the production of electricity must, however, be compulsorily exempted pursuant to Article 14 of the Directive 2003/96 / EC.

However, the Administrative Court of Appeal of Nantes held that the natural gas used by the company was exclusively subject to the provisions of Article 15 of the Directive and not to Article 14 thereof, and that its taxation system was not separable according to whether it was intended for the production of heat or for electricity.

The Council of State (Conseil d‘Etat ) found that it should refer the matter to the Court of Justice of the European Union pursuant to Article 267 of the TFEU and to stay its proceedings on the appeal of the company Sucrerie de Toury.

The Council of State asked the following question before the CJEU: Do energy products used for combined heat and electricity generation come exclusively within the scope of the optional power to exempt conferred by Article 15(1)(c) of Council Directive 2003/96/EC of 27 October 2003 (1) or do they also come, as regards the proportion of those products the consumption of which corresponds to the generation of electricity, within the scope of the obligation to exempt provided for by Article 14(1)(a) of that directive?

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