Reference for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 16 February 2012 - Transportes Jordi Besora, S.L. v Tribunal Económico Administrativo Regional de Cataluña (TEARC) and Generalitat de Catalunya

(Case C-82/12)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña

Parties to the main proceedings

Applicant: Transportes Jordi Besora, S.L.

Defendants: Tribunal Económico Administrativo Regional de Cataluña (TEARC) and Generalitat de Catalunya

Questions referred

Is it the case that Article 3(2) of Council Directive 92/12/EEC² of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products and, in particular, the requirement of a 'specific purpose' for a particular levy

(a) must be interpreted as requiring that the purpose pursued is not capable of being achieved by means of another harmonised levy?

(b) must be interpreted as meaning that there is a purely budgetary purpose when a particular levy has been established simultaneously with the transfer of certain competences to certain Autonomous Communities to which, in turn, are transferred the proceeds of the levy with the aim of covering, in part, the costs associated with the competences transferred, it being permissible to lay down rates of levy that vary as between Autonomous Communities?

(c) If the previous question is answered in the negative, must the term 'specific purpose' be interpreted as meaning that the purpose must be exclusive or, on the contrary, that it permits the attainment of various differentiated aims, among which is also included the merely budgetary aim of obtaining financing for certain competences?

(d) If the answer to the previous question is that the attainment of various aims is permitted, what degree of relevance must be displayed by a particular objective, for the purposes of Article 3(2) of Directive 92/12, in order to fulfil the requirement that the levy should meet a 'specific purpose' in the sense accepted by the case-law of the Court of Justice and what would be the criteria for defining the principal purpose as compared with the ancillary purpose?

Does Article 3(2) of [Council Directive 92/12/EEC of 25 February 1992] and, in particular, the condition of complying with the tax rules applicable to excise duties or VAT for the determination of chargeability,

(a) preclude an indirect non-harmonised levy (such as the IVMDH) which becomes chargeable at the time of the retail sale of the fuel to the final consumer, in contrast to the harmonised levy (Impuesto sobre Hidrocarburos, which becomes chargeable when the products leave the last tax warehouse) or VAT (which, although also becoming chargeable at the time of the final retail sale, is payable at each stage of the production and distribution process), on the basis that it does not - to use the terms of the judgment in EKW and Wein & Co  (paragraph 47) - accord with the general scheme of one or other of the abovementioned taxation techniques as structured by the Community legislation?

(b) In the event that the foregoing question is answered in the negative, must the interpretation be that the said compliance condition is fulfilled, without the need for any coinciding of the effects of the chargeability, on account of the mere circumstance that the non-harmonised indirect levy (in this case, the IVMDH) does not disrupt - in the sense that it does not impede or render difficult - the normal functioning of the chargeability of excise duties or VAT?

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¹ - OJ 1992 L 76, p. 1.

² - Case C-437/97 EKW and Wein & Co [2000] ECR I-1157.