European Court of Justice

ECJ ruling (Case-645/23, Hera Comm SpA) regarding the question whether an additional tax additional to excise duty on electricity falls within the scope of other "other indirect taxes" of article 1(2) of Directive 2008/118.

Excises  – ECJ ruling in Case-645/23 (Hera Comm SpA) – (Reference for a preliminary ruling – Excise Duties – Directive 2008/118/EC – Article 1(2) – Other indirect taxes on excise goods – Electricity – National legislation establishing a tax additional to the excise duty on electricity – No specific purposes – Additional tax for the benefit of regional and local authorities considered by the national courts to be contrary to Directive 2008/118 – Recovery by the final consumer from the supplier of the tax paid but not due)

The ECJ rules that:

1. Article 1(2) Directive 2008/118/EC concerning the general arrangements for excise duty and repealing Directive 92/12/EEC
   must be interpreted as meaning that a tax additional to excise duty on a product, which constitutes only a fraction or a multiple of the excise duty to which that product is already subject, but the revenue from which is allocated to public authorities other than that to which the excise duty is allocated, and which does not follow the exemption rules applicable to that excise duty, may be regarded as a tax separate from that excise duty and thus fall within the concept of "other indirect taxes" within the meaning of that provision, whereby that tax may be levied by the Member States in so far as it pursues a specific purpose, separate from excise duty.
2. EU law must be interpreted as meaning that a national court, hearing a dispute between private parties concerning the reimbursement of a tax paid but not due on the ground that the provisions of national law which introduced that tax are contrary to Article 1(2) Directive 2008/118, which finds that it is impossible to interpret those provisions of national law in a manner that is consistent with EU law, is not required, solely on the basis of EU law, to disapply those provisions of national law. However, EU law requires that, where it is impossible or excessively difficult to obtain from the supplier reimbursement of the tax paid but not due, the final consumer must be able to direct his or her application for reimbursement to the Member State concerned directly.