Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 9 April 2024 – Axpo Energy Romania SA v Agenția Națională de Administrare Fiscală, Guvernul României
(Case C-251/24, Axpo Energy Romania)
Language of the case: Romanian
Referring court
Curtea de Apel București
Parties to the main proceedings
Applicant: Axpo Energy Romania SA
Defendants: Agenția Națională de Administrare Fiscală, Guvernul României
Other party: Ministerul Energiei
Questions referred
Must the provisions of Article 3(1), (3) and (4) and Article 9(2) of Directive (EU) 2019/944, 1 in conjunction with Article 101(1) TFEU, according to which Member States must ensure a level playing field and non-discriminatory conditions for electricity market participants, be interpreted as precluding a Member State from creating an additional tax liability, such as the levy on trading under Government Emergency Order No 27/2022, on a differentiated basis, solely for certain participants engaged in transactions on wholesale energy markets, such as suppliers involved in trading, and not other categories of participants, such as producers of electricity and heat from cogeneration, and producers whose production capacity was commissioned after 1 April 2022?
Must the provisions of Articles 101 and 102 TFEU, according to which Member States may not adopt measures preventing, restricting or distorting competition within the internal market, or limiting or controlling production or markets or applying dissimilar conditions to equivalent transactions with other trading parties, be interpreted as precluding a Member State from creating an additional tax liability, such as the levy on trading under Government Emergency Order No 27/2022, solely for certain participants engaged in transactions on wholesale energy markets, such as suppliers involved in trading, and not other categories of participants, such as producers of electricity and heat from cogeneration, and producers whose production capacity was commissioned after 1 April 2022, thereby placing those participants who are liable for the levy at a competitive disadvantage?
Must the provisions of Articles 107(1) and 108(3) TFEU on the requirement for Member States to notify State aid be interpreted as meaning that national legislation, such as the levy on trading under Government Emergency Order No 27/2022, constitutes State aid for those who are exempt from paying the levy, which is therefore subject to the notification requirement?
Must the provisions of Article 3(a), (b), (h) and (p) and Article 10(1), (4) and (5) of Regulation 2019/943, 1 in conjunction with [recitals] 22 and 23 of the preamble to the Regulation, Article 5(1), (3) and (4) of Directive 2019/944 and Article 8 of Regulation 2022/1854, 2 which govern the principles of price formation on the wholesale energy market, be interpreted as precluding a Member State from creating an additional tax liability such as the levy on trading under Government Emergency Order No 27/2022? In interpreting those provisions, can the levy be considered proportional if it does not take into account the operating expenses of market participants involved in trading? Furthermore, can the levy be considered non-discriminatory if it applies only to certain wholesale market participants who buy and sell energy?
Must the provisions of Articles 28, 30 and 35 TFEU, Article 3 of Regulation 2019/943 and Article 3 of Directive 2019/944, which prohibit the introduction of legislative barriers to cross-border electricity flows between Member States, be interpreted as precluding the creation by a Member State of an additional tax liability, such as the levy on trading under Government Emergency Order No 27/2022, which in the period between 1 September and 16 December 2022 provided for a more onerous formula for export transactions, in which no profit was recognised, whereas a theoretical 2% profit was recognised for domestic sales? In interpreting those provisions, does EU law preclude the creation of such a levy which, as of 16 December 2022, imposes the levy only on the sale of energy designated for export, and not on imported energy?
Do the provisions of Article 401 of Directive 2006/112, 1 which prohibit Member States from imposing turnover taxes or charges in addition to value added tax, preclude a Member State from creating an additional tax liability for market participants involved in trading, such as the levy on trading under Government Emergency Order No 27/2022?
____________
1 Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125).
1 Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54).
1 Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices (OJ 2022 L 261I, p. 1).
1 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).