Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 5 July 2018(1)

Case C‑305/17

FENS spol. s r.o.

v

Slovenská republika — Úrad pre reguláciu sieťových odvetví

(Request for a preliminary ruling from the Okresný súd Bratislava II (District Court Bratislava II, Slovakia))

(Free movement of goods — Customs duties on exports — Charges having equivalent effect to customs duties — Internal taxation — Charge for network services for the transmission of electricity)

1.        This reference for a preliminary ruling concerns one of the pillars of the internal market, namely free movement of goods. The questions referred relate to the core of the internal and external dimensions of that freedom — the customs union. The particular interest of this case is that it gives this Court the opportunity to revisit two classic elements of the internal market, that is to say, charges having an equivalent effect to customs duties and the rules on internal taxation, in the specific context of the electricity market.

 Legal framework

 The Treaty on the Functioning of the European Union

2.        Article 28(1) TFEU provides that ‘the Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries’.

3.        Article 30 TFEU states that ‘customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature’.

4.        According to Article 110 TFEU ‘no Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products’.

 Directive 2003/54

5.        Directive 2003/54 established common rules for the generation, transmission, distribution and supply of electricity. (2)

6.        According to Article 2(3), transmission meant ‘the transport of electricity on the extra high-voltage and high-voltage interconnected system with a view to its delivery to final customers or to distributors, but not including supply’.

7.        Article 9(c) provided that transmission system operators were responsible ‘for ensuring a secure, reliable and efficient electricity system’. In that context, ‘the rules adopted by transmission system operators for balancing the electricity system shall be objective, transparent and non-discriminatory, including rules for the charging of system users of their networks for energy imbalance’. (3)

 Directive 2005/89

8.        Directive 2005/89 establishes measures aimed at safeguarding the security of electricity supply so as to ensure the proper functioning of the internal market for electricity and to ensure an adequate level of generation capacity, an adequate balance between supply and demand and an appropriate level of interconnection between Member States for the development of the internal market. It also establishes a framework within which Member States are to define transparent, stable and non-discriminatory policies on security of electricity supply compatible with the requirements of a competitive internal market for electricity. (4)

9.        According to Article 5 of that directive, Member States are to take appropriate measures to maintain a balance between the demand for electricity and the availability of generation capacity.

 National law

10.      Article 12(9) of the Nariadenie vlády Slovenskej republiky č. 317/2007 Z. z., ktorým sa ustanovujú pravidlá pre fungovanie trhu s elektrinou (Regulation No 317/2007 of the Government of the Slovak Republic laying down rules for the functioning of the market in electricity — ‘the Electricity Regulation’), as in force at the material time, provided that when electricity was exported, the exporter had to pay a charge for the network services, unless it could prove that the electricity exported had previously been imported into what the legislation termed ‘the specified territory’. (5)

 Facts, procedure and the questions referred

11.      FENS spol. S.r.o., the current applicant in the main proceedings, is the successor in title in those proceedings to the original applicant, Korlea Invest a.s. (‘Korlea’).

12.      Korlea was authorised to operate as a supplier in the Slovakian electricity sector and its activities included the purchase, marketing and export of electricity. In that context it concluded with Slovenské elektrárne a.s. (a Slovak company involved in the electricity manufacturing sector) a framework contract for the sale and purchase of electricity, with effect from 15 August 2006, as well as individual supply contracts. On 16 January 2008, Korlea concluded a transmission agreement with Slovenská elektrizačná prenosová sústava a.s. (a Slovak company concerned with the national electricity transmission network) for the transmission of electricity via the interconnection lines and the management and provision of transmission services. The transmission agreement provided for Korlea to pay an amount in the form of a charge for the provision of network services for the export of electricity, calculated in accordance with Article 12(9) of the Electricity Regulation, unless it could demonstrate that the electricity exported had first been imported into Slovakia.

13.      Korlea paid EUR 6 815 853.415 to the transmission company, representing the charge for network services for the export of electricity for the period from 1 January 2008 to 31 December 2008. The amount was calculated on the basis of a decision of 4 December 2007 of the Úrad pre reguláciu sieťových odvetví (the Energy Regulation Authority; ‘the ÚRSO’), the defendant in the main proceedings together with the Slovak Republic.

14.      By letter of 13 October 2008, Korlea requested the transmission company and the competent authority to suspend collection of the charge and refund the monies already paid. By letter of 30 October 2008, the transmission company refused that request.

15.      Korlea brought an action for damages against the ÚRSO. It argued that the charge for the provision of network services is a charge having an equivalent effect to a customs duty. It was levied exclusively on electricity produced in Slovakia that was exported and not on electricity that had been previously imported into Slovakia and then re-exported. The ÚRSO maintained that the charge at issue was temporary and that its purpose was to guarantee the operational security, reliability and stability of the Slovak energy network.

16.      The action was dismissed by judgment of 4 February 2011. Korlea appealed before the Krajský súd (Regional Court, Slovakia), which annulled that judgment and remitted the case to the Okresný súd Bratislava II (District Court Bratislava II, Slovakia, ‘the referring court’).

17.      Against that background, the referring court wishes to ascertain whether Article 12(9) of the Electricity Regulation is compatible with Articles 28 and 30 TFEU. Therefore it requests a preliminary ruling on the following questions:

‘(1)      Must Article 30 TFEU be interpreted as precluding a national rule such as Article 12(9) of [the Electricity Regulation] which introduces a specific pecuniary charge for the export of electricity from the territory of the Slovak Republic, regardless of whether that electricity is exported from Slovak territory to the Member States of the European Union or to third countries, in circumstances in which the electricity exporter fails to demonstrate that the electricity exported has been imported into the Slovak Republic, that is to say, a pecuniary charge levied solely on electricity generated in the Republic of Slovakia and exported from it?

(2)      Does a pecuniary charge, such as the charge introduced by Article 12(9) of the Electricity Regulation, namely: a charge applied solely to electricity generated in the Slovak Republic and at the same time exported from the territory of the Slovak Republic, regardless of whether it is exported to third countries or to the Member States of the European Union, also constitute a charge having equivalent effect to a customs duty within the meaning of Article 28(1) TFEU?

(3)      Is a national rule such as Article 12(9) of the Electricity Regulation compatible with the principle of free movement of goods laid down by Article 28 TFEU?’

18.      Written observations were submitted by FENS, the Netherlands and Slovak Governments and the European Commission. FENS and the Commission made oral submissions at the hearing on 19 April 2018.

 Assessment

 Preliminary observations

 Electricity as ‘goods’

19.      In order to fall within the scope of the provisions of the TFEU on free movement of goods, the product at issue must come within the category of ‘goods’. The Court has defined ‘goods’ as ‘products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’. (6)

20.      The Court has already recognised that electricity, despite its intangible character, represents ‘goods’ within the meaning of the TFEU. (7) It follows that electricity is subject to the rules laid down in that Treaty concerning free movement of goods and the Customs Union.

21.       The Court has also held that a charge which is imposed not on a product as such but on a necessary activity in connection with a product (such as network services in the present case) may fall within the scope of the provisions on free movement of goods. When the charge is calculated on the number of kWh transmitted and not on the basis of the distance for which the electricity is transmitted or according to any other criterion directly connected with transmission, it is to be treated as having been imposed on the product itself. (8)

 Applicable law

22.      The fact that a national court has, formally speaking, worded its request for a preliminary ruling with reference to certain provisions of EU law does not preclude the Court from providing that court with all the elements of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute. (9)

23.      In the present case, it appears from the order for reference that by the action in the main proceedings FENS is, in essence, seeking compensation for the damage Korlea claims to have suffered because it paid a charge for the provision of network services for the export of electricity. The referring court focuses on the compatibility of the provisions of the Electricity Regulation that introduced that charge with Articles 28 and 30 TFEU. (10)

24.      However, given the subject matter of the dispute in the main proceedings, it is appropriate to consider whether other provisions of primary or secondary law, namely Article 110 TFEU and Directives 2003/54 and 2005/89, may also be relevant.

25.      In that respect, the Netherlands Government submits that the charge at issue falls within the scope of Article 11(7) of Directive 2003/54 permitting the adoption of charges to balance the transmission system. Its compatibility with EU law should therefore be examined by reference to that directive rather than primary EU law.

26.      The Court has held that where a matter has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure and not in the light of primary law. (11) With respect to the free movement of goods, case-law has recognised that principle in the context of Articles 34 to 36 TFEU, which address quantitative restrictions on imports and exports between Member States. (12) It follows from the Court’s case-law that if the Netherlands Government’s submission is correct, it would be necessary to concentrate on the provisions of Directive 2003/54, rather than the provisions on free movement of goods.

27.      The immediate difficulty, however, is that the referring court has not provided this Court with the necessary information as to whether the measures imposing the charge in question relate to a particular provision of Directive 2003/54. Should that be the case, this Court is competent to interpret Directive 2003/54 in order to determine whether the harmonisation brought about by that directive is exhaustive and precludes examining whether the national legislation at issue is prohibited by Articles 28 and 30 TFEU.

28.      In order to make such an assessment, the Court examines the context in which the harmonising legal act was adopted, its nature, the aims which it pursues and its content. (13)

29.      The achievement of an internal market in electricity is an ongoing process. Directive 2003/54, applicable at the material time, was the second step in that direction, since it repealed the first legal act adopted in that area, namely Directive 96/92. (14) Directive 2003/54 adoption was intended to ensure a level playing field for all market actors. (15) However, it did not complete the procedure for achieving the internal market in electricity and it was repealed by Directive 2009/72. (16) That directive will in turn also be replaced in order, as the Commission puts it, ‘to adapt the current market rules to new market realities, by allowing electricity to move freely to where it is most needed when it is most needed via undistorted price signals’. (17)

30.      The context in which Directive 2003/54 was adopted therefore implies a continuing process of harmonisation which has yet to be completed, rather than exhaustive harmonisation.

31.      Furthermore, it seems to me that the legal nature of directives (as an instrument of harmonisation that, under Article 288 TFEU leaves to the Member States the choice of form and methods to achieve the result required), militates against the conclusion that those directives seek to harmonise the electricity market exhaustively. (18) When it comes to Directive 2003/54, that approach is reinforced by its legal basis, namely the Treaty articles on freedom of establishment and freedom to provide services in conjunction with what is now Article 114 TFEU on approximation of laws. At the hearing, the Commission also expressed the view that the harmonisation brought about by that directive is partial.

32.      Turning now to the aims and the content of Directive 2003/54, that measure establishes common rules for the generation, transmission and supply of electricity. (19)

33.      Thus, Directive 2003/54 provides that Member States designate transmission system operators who can adopt rules that are objective, transparent and non-discriminatory for balancing the electricity system and for charging of network users for energy imbalance. Rules and tariffs for the provision of those services must be established in a non-discriminatory and cost reflective way and must be published. (20) The regulatory authorities designated by the Member States are responsible for fixing or approving, prior to their entry into force, at least the methodologies used to calculate or establish transmission tariffs. (21)

34.      As regards the aim of the directive and its content, these are in my view close to what could be regarded as complete harmonisation. However, when it comes to transmission tariffs, the competent authorities enjoy a margin of appreciation. Therefore, I do not consider that the harmonisation brought about by those provisions was sufficiently complete to preclude an examination of whether legislation such as that at issue in the main proceedings is compatible with Articles 28 and 30 TFEU.

35.      The case-law also points in that direction. Thus, the Court has interpreted provisions of Directive 2003/54 together with provisions on free movement of goods in order to assess the compatibility of national measures on the free distribution of green electricity. (22) It follows that the Court did not consider, in that context, that the harmonisation brought about by Directive 2003/54 was exhaustive. (23)

36.      I therefore conclude that the harmonisation brought about by Directive 2003/54 was not such as to preclude an examination of whether legislation such as that at issue is compatible with the provisions of primary law and, in particular, with Articles 28 and 30 TFEU. The fundamental importance of those provisions is such that the Treaty sought to forestall any possible failure in their implementation by preventing their circumvention by means of customs and fiscal measures. (24)

37.      The same reasoning is in my view applicable to Directive 2005/89, which the Slovak Government invoked in order to justify the charge in question as being a measure adopted in order to safeguard security of supply and infrastructure investment.

38.      Directive 2005/89 was adopted in the same context as Directive 2003/54 and is of the same legal nature (see points 29 to 31 above and recitals 1 and 3 of Directive 2005/89).

39.      Directive 2005/89 seeks to ensure a stable framework for a truly functioning, integrated electricity market that puts in place the correct incentives for market participants in order to secure supply and investment. (25) It therefore establishes a framework within which Member States are to define transparent, stable and non-discriminatory policies on security of electricity supply compatible with the requirements of a competitive internal market for electricity. (26) Article 5, invoked by the Slovak Government, refers to the adoption of ‘appropriate measures’ by the Member States. It seems that Member States maintain a margin of discretion in that context and, accordingly, that harmonisation is not complete.

40.      Therefore, and in the light of the Court’s case-law cited in points 35 and 36 above, I conclude that the harmonisation brought about by Directive 2005/89 was not such as to preclude an examination of whether legislation of the kind at issue is compatible with the provisions of primary law and, in particular, with Articles 28 and 30 TFEU.

 The questions referred

41.      By its three questions, which are best treated together, the referring court seeks to ascertain in essence whether a charge such as that imposed for the provision of network services for the export of electricity introduced by Article 12(9) of the Electricity Regulation is a charge having an equivalent effect to a customs duty and is therefore prohibited by the provisions on the free movement of goods and more precisely by Articles 28 and 30 TFEU.

42.      The referring court specifies that the charge at issue in the main proceedings is levied regardless of whether the electricity is exported to other Member States or to third countries.

 The application of Articles 28 and 30 TFEU to export charges to third countries

43.      Article 28(1) TFEU lays down the fundamental principles relating to the free movement of goods and the Customs Union, in its internal and external dimensions. Article 30 TFEU concerns the internal aspects of the Customs Union: the prohibition, as between Member States, of customs duties on imports and exports and of charges having an equivalent effect to customs duties. (27)

44.      Do the facts in the main proceedings fall entirely within the scope of Articles 28(1) and 30 TFEU? The charge in question may be covered by Article 30 to the extent that it concerns electricity destined for export to other Member States. As regards trade with third countries, the TFEU contains no specific provisions similar to those prohibiting charges having an equivalent effect to customs duties in trade between Member States. The question thus arises whether such charges having an equivalent effect to them are also prohibited in trade with those countries.

45.      The Court has held, with reference to Article 9 of the EEC Treaty (now Article 28 TFEU) and the common commercial policy, that both the unity of the EU customs territory and the uniformity of the common commercial policy would be seriously undermined if the Member States were authorised unilaterally to impose charges having equivalent effect to customs duties on imports from third countries. (28)

46.      That conclusion in my view logically also applies to charges having an equivalent effect to customs duties on exports to third countries.

47.      According to Article 207 TFEU, the common commercial policy must be based on uniform principles, particularly in regard to, inter alia, export policy. The Community Customs Code defines import and export duties equally and identically as including both customs duties and charges having an equivalent effect to customs duties payable on the importation and exportation of goods. (29) Article 161(1) and (2) of the Code provide that it is the export procedure that allows EU goods to leave the EU customs territory and that exportation entails the application of, inter alia, export duties (where appropriate).

48.      Furthermore, in its very first Opinion delivered on the basis of (what is now) Article 218(11) TFEU, the Court held that export policy falls within the ambit of (the then) Community powers. (30) That reasoning is consistent with the construction of the Customs Union set up by the Treaty of Rome. The Treaties entrust the European Union and its institutions with the task of defending the European Union’s commercial interests externally. Were the Member States able to conduct their own commercial policies with the outside world (and indeed to pursue their own interests in that context) in parallel with the actions of the European Union, that would clearly risk jeopardising that essential function. (31) Today, Article 3(1)(a) and (e) TFEU expressly confirm the European Union’s exclusive powers concerning the Customs Union and common commercial policy.

49.      It follows that Member States may not unilaterally introduce charges having an equivalent effect to export duties on exports to third countries. Should the charge in question in the main proceedings fall to be classified as such a charge, it will thus be prohibited regardless of whether it concerns exports to Member States or to third countries. (32)

 Classification as a charge having an equivalent effect to customs duties

50.      The Treaty sought to give general scope and effect to the rule on eliminating customs duties and charges having equivalent effect in order not merely to eliminate their protective nature but also to ensure the free movement of goods. The extension of the prohibition on customs duties to charges having an equivalent effect is intended to supplement the prohibition against obstacles to trade created by such duties by increasing its efficiency. The notion of ‘charges having an equivalent effect to customs duties’ has not been defined in primary law but construed by case-law since the early days of European integration as being: (i) a pecuniary charge, however small and whatever its designation and mode of application; (ii) imposed unilaterally on domestic or foreign goods; (iii) by reason of the fact that they cross a frontier. It is irrelevant whether or not that charge is imposed for the benefit of the State or whether it is discriminatory or protective in effect. (33)

51.      In the present case, it is the third aspect of the definition of ‘charges having an equivalent effect to customs duties’ that calls for clarification, namely the existence of a charge imposed by reason of the fact that goods have crossed a frontier.

52.      The referring court explains that the charge in question is levied only on electricity produced in Slovakia and then exported. Electricity exported that has not been produced in Slovakia does not attract that charge. The referring court does not identify any equivalent charge levied on electricity produced and consumed in Slovakia. Thus, establishing that the charge is levied only on electricity exported from Slovakia and not to that consumed in Slovakia suffices in order to conclude that the chargeable event is the crossing of a frontier.

53.      However, the Slovak Government submitted in its written observations that the Electricity Regulation provides for the same charge to be paid for electricity consumed in Slovakia, by the final consumer or client and (only in certain cases) by the electricity producer and the distribution network operator, no matter what the origin of the electricity (whether it be produced domestically or imported). (34)

54.      Should that be the case, is it possible to consider that the event giving rise to that charge is the fact that a frontier was crossed?

55.      The Court has held that a domestic duty charged systematically and in accordance with the same criteria on goods exported and on goods not being exported does not come under the prohibition of charges having equivalent effect to customs duties. (35) The relevant criteria are whether in real economic terms the transaction triggering the charge for both categories of goods is the same in relation to the marketing stage, the categories of persons who bear the burden of the charge, the method of calculation of the charge and the end use of the charge. (36)

56.      It is the national court that will have the necessary information to apply those criteria.

57.      However, from the information that has been submitted to the Court it would seem that the charge is not levied at a point that corresponds to the same marketing stage for both electricity that is consumed in Slovakia and electricity that is exported, nor is the burden of the charge placed on the same category of persons. It appears from Article 12 of the Electricity Regulation, as it has been presented to the Court by the Slovak Government, that whereas for electricity consumed in Slovakia it is the final consumer or client that pays the charge, (37) for the electricity that is exported it is the exporter who pays it. Thus in the first case the charge is paid for the consumption of electricity and, in principle, after electricity has passed the different stages from transmission to supply and consumption. Conversely, in the case of electricity that is exported, it is the exporter which is subject to the charge and the electricity has neither been consumed nor has it yet left the transmission network.

58.      From that point of view, the present case is to be distinguished from Nygård, where the Court found that the event triggering a charge levied on pigs bred in Denmark and sold for slaughter on the domestic market, payable by the producer when the pigs were delivered for slaughter, and a charge levied on pigs exported live payable by the exporter, irrespective of whether he was also the producer, was the same, namely when the animals left what the Court there termed ‘the primary national production’. (38) In the present case, the charge is levied on electricity consumed in Slovakia when it has reached the final consumer or client and on electricity exported before distribution and before it is available for final consumption. (39) Furthermore, electricity is a consumable product. (40) When a charge is levied on electricity at the point of consumption, this means that the product is no longer on the market. In contrast, electricity exported is still on the market and can (and normally will) be the subject of further transactions.

59.      Turning now to the method of calculating the charge, that is of course a matter for national law. It appears from the file submitted to the Court that the charge is calculated on the basis of MWh transmitted. FENS submits in its written observations that the amount of the charge was higher for exported electricity but the Slovak Government denies that. It is for the national court to verify that matter and to consider whether there was an objective reason for any differentiation.

60.      Furthermore, it appears from the file submitted to the Court that the material and temporal application of the charge is different for electricity that is consumed in Slovakia and for electricity that is exported. Thus, it is levied on all electricity consumed in Slovakia, whether produced domestically or imported, but, in the case of electricity that is exported, it is levied only on electricity that is produced domestically. Also, whilst the charge imposed on electricity consumed in Slovakia seems to be permanent, the charge on electricity exported was temporary, levied only between 1 January 2008 and 31 March 2009.

61.      As regards the end use of the charge, the Slovak Government submits that it corresponds to the revenue of the transmission network operator and serves to guarantee the reliability of the transmission network. The Slovak Government considers that those services benefit in the same way electricity that is consumed domestically and electricity that is exported. However, that kind of service appears permanent in nature — it does not explain why a temporary charge should be imposed. Furthermore, although the end use of the charge is an element to be considered in order to specify the chargeable event, it is settled case-law that charges having equivalent effect to customs duties are prohibited irrespective of the purpose for which they were introduced and the destination of the revenue derived from them. (41)

62.      I am therefore of the view that the chargeable event in this case is the fact that the electricity crossed the Slovak frontier. The charge at issue in the present case, levied on all electricity consumed in Slovakia, whether produced domestically or imported, but in the case of electricity that is exported, levied only for a short period of time and only on electricity that is produced domestically, is a charge having an equivalent effect to a customs duty.

63.      As regards possible justifications for the charge on exports, it is settled case-law that the prohibition laid down in Article 30 TFEU is of a general and absolute nature. (42) That Treaty does not provide for any derogations and the Court has held that it follows from the clarity, certainty and unrestricted scope of (what are now) Articles 28 and 30 TFEU that the prohibition on customs duties constitutes an essential rule and that any exception must therefore be clearly stipulated. (43) The Court has refused to extend by analogy the derogations to Articles 34 and 35 TFEU laid down in Article 36 TFEU to customs duties and charges having equivalent effect to customs duties, pointing out that exceptions to such a fundamental rule must be strictly construed. (44)

64.      The Slovak Government’s submissions to the effect that the charge on exports was justified as it was levied in accordance with Article 5 of Directive 2005/89 and only between 1 January 2008 and 31 March 2009 because of the need to secure the operation, stability and reliability of the network in view of an expected fall in production should therefore be rejected. (45) Furthermore, the contested measures had the effect of rendering the exportation of electricity more onerous, without necessarily ensuring the attainment of the objective invoked by the Slovak Government. (46)

65.      The Netherlands Government submits that the charge in question constitutes payment for a service, namely guaranteeing the stability and reliability of the Slovak electricity network, and does not therefore fall within the scope of Article 30 TFEU.

66.      The Court has accepted that a charge which represents payment for a service actually rendered to an economic operator, of an amount that is proportionate to that service, does not constitute a charge having an equivalent effect to a customs duty. (47) However, in order for the charge to fall outwith Article 30 TFEU, the service rendered must confer a specific benefit on the individual exporter. (48) A benefit to the public interest is too general in nature and difficult to assess to be regarded as the consideration for a specific benefit actually conferred. (49)

67.      The Slovak Government advanced that aspect briefly in its written observations submitting that the charge guarantees the reliability and functioning of the transmission network and provides services that guarantee the operation of production sites. The Slovak Government did not attend the hearing and provide further information.

68.      The material before the Court does not suffice to assess whether the charge in question is a payment for services conferring a specific benefit on the individual exporter. Furthermore, FENS’ claim at the hearing that the charge was to be subject to VAT, an element that might normally indicate that the charge corresponds to payment for a service, is not enough to conclude that it fulfils the criteria laid down by the Court’s case-law to constitute payment for a service actually rendered to an economic operator which would fall outwith the scope of Article 30 TFEU.

69.      It follows that, subject to verification of the factual elements by the national court, a charge such as the one at issue in the main proceedings, levied on domestically produced electricity by reason of the fact that it crosses the national frontier, is a charge having an equivalent effect to customs duties on exports falling within the scope of Article 30 TFEU, when it applies to trade between Member States. That charge is likewise prohibited in respect of exports to third countries, since such charges fall within the exclusive competence of the European Union pursuant to Articles 3(1)(a) and (e), 28(1), 206 and 207 TFEU.

 Classification as discriminatory internal taxation

70.      In their written observations, both the Netherlands and Slovak Governments have addressed the possibility that the charge in question may fall within the scope of Article 110 TFEU. The Commission made similar submissions at the hearing. However, I have concluded that that charge falls within the scope of Article 30 TFEU and it is settled case-law that the two provisions, which complement each other in pursuing the objective of prohibiting any national fiscal measure liable to discriminate against products coming from or destined for other Member States by restricting their free movement within the European Union in normal conditions of competition, cannot be applied together. (50) It is inconsistent with the general scheme of the Treaties for the same measure to belong to both categories at the same time. (51)

71.      Should the Court take the opposite view and find that the charge in question in the main proceedings does not fall within the scope of Article 30 TFEU, it becomes necessary to address Article 110 TFEU. I shall do so briefly.

72.      A charge constitutes internal taxation within the meaning of Article 110 TFEU, rather than a charge having an equivalent effect to a customs duty, if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin or destination of the products. (52) Although Article 110 TFEU expressly refers only to imported goods, it is settled case-law that exported goods are also covered by that provision. (53)

73.      For fiscal rules which apply internally within a Member State to be prohibited by Article 110 TFEU, they must be discriminatory or protective. (54) That provision has been interpreted widely and covers all taxation procedures which undermine the equal treatment of domestic and imported (or exported) products. The prohibition laid down in that article must therefore apply whenever a charge is likely to discourage imports of goods originating in other Member States to the benefit of domestic production. (55) I take the view that these principles will apply by analogy to charges that are likely to discourage exports of domestic goods to other Member States to the benefit of domestic consumption.

74.      The Court has made it clear that an internal tax applicable without distinction ‘must nonetheless be regarded as constituting a breach of the prohibition of discrimination laid down by [Article 110 TFEU] if the advantages accruing to the taxed national products processed and marketed on the national market from the use of the revenue generated by the charge offset only partially the burden borne by those products and thus adversely affect exported domestic products … In that case, the charge levied on the exported product, which is in principle lawful, will have to be prohibited to the extent to which it partially compensates the charge borne by the product processed or marketed on the national market and will have to be reduced proportionally … According to settled case-law, it is for the national court to establish the extent of any discrimination against exported products ... For that purpose, it must check, during a reference period, on the financial equivalence of the total amounts levied on products marketed on the domestic market in connection with the charge in question and the advantages afforded exclusively to those products’. (56)

75.      The Slovak Government submits that the charge paid for network services should be considered as internal taxation but that it is in no way discriminatory since it applies in the same way to electricity exported from and electricity consumed in Slovakia in accordance with objective criteria irrespective of whether the good crosses a frontier.

76.      On the basis of the material that I have examined at points 57 to 61 above, I consider that the charge at issue is likely to discourage exports of domestic goods to the benefit of their domestic consumption. As regards the advantages that may accrue to electricity consumed at a domestic level or to that exported, the Court has before it only some general assertion that the arrangement guarantees the reliability and functioning of the transmission network, the provision of services and the operation of production sites. That is not sufficient, on its own, to assess whether those advantages offset the burden for one category of electricity.

77.      It is for the national court to carry out the requisite checks and to draw the necessary inferences, and it is therefore before that court that the parties to the main proceedings and the intervener must establish the facts as required. (57) Should it appear, on the basis of the principles derived from the Court’s case-law, that the charge in question is discriminatory or protective in any way, it will have to be deemed prohibited by Article 110 TFEU.

78.      Thus, should the Court find that the charge in question in the main proceedings does not fall within the scope of Article 30 TFEU, that charge will fall to be classified as internal taxation prohibited by Article 110 TFEU if and to the extent that it is found to relate to a general system of internal dues applied systematically to all electricity in accordance with objective criteria irrespective of its origin or destination but that is discriminatory or protective in nature. It is for the national court to establish the relevant facts and to draw the necessary inferences.

 Conclusion

79.      In the light of the foregoing, I propose that the Court should answer the questions referred by the Okresný súd Bratislava II (District Court Bratislava II, Slovakia) to the following effect:

Subject to verification of the factual elements by the national court, a charge such as the one at issue in the main proceedings, levied on domestically produced electricity by reason of the fact that it crosses the national frontier, is a charge having an equivalent effect to customs duties on exports falling within the scope of Article 30 TFEU, when it applies to trade between Member States. That charge is likewise prohibited in respect of exports to third countries, since such charges fall within the exclusive competence of the European Union pursuant to Articles 3(1)(a) and (e), 28(1), 206 and 207 TFEU.

1      Original language: English.

2      Article 1 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37). It was repealed with effect from 3 March 2011 by 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 (OJ 2009 L 211, p. 55).

3      Article 11(7).

4      Article 1 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).

5      That is to say, the territory of the Slovak Republic in which the transmission system or distribution system manager was required to guarantee the transmission or distribution of electricity (Article 2(a) of the Zákon č. 251/2012 Z. z. o energetike a o zmene a doplnení niektorých zákonov (Law No 251/2012 on energy, amending and supplementing certain laws).

6      Judgment of 10 December 1968, Commission v Italy, 7/68, EU:C:1968:51, p. 428.

7      See, inter alia, judgment of 27 April 1994, Almelo, C‑393/92, EU:C:1994:171, paragraph 28.

8      See, to that effect, judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraphs 43 and 44 and the case-law cited.

9      See, for example, judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 43.

10      At the material time the TFEU was not yet in force. However, since the content of the relevant provisions has not changed and for ease of reference, I shall refer to the provisions of the TFEU rather than to those of the EC Treaty.

11      Judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 57 and the case-law cited.

12      See, inter alia, judgments of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 57 et seq. and the case-law cited, and of 11 December 2003, Deutscher Apothekerverband, C‑322/01, EU:C:2003:664, paragraphs 64 and 65 and the case-law cited.

13      See to that effect judgment of 13 December 2001, DaimlerChrysler, C‑324/99, EU:C:2001:682, paragraph 42.

14      Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJ 1997 L 27, p. 20).

15      Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c), of the EC Treaty, on the European Parliament’s amendments to the Council’s common position regarding the proposal for a Directive of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 96/92/EC amending the proposal of the Commission pursuant to Article 250(2) of the EC Treaty, 23 July 2003, COM(2003) 429 final.

16      Recitals 2 and 4 of Directive 2009/72.

17      Proposal for a Directive of the European Parliament and of the Council on common rules for the internal market in electricity (recast), 30 November 2016, COM(2016) 864 final, p. 4.

18      I am not here suggesting, however, that harmonisation by a directive can never be such as to preclude an examination of whether national legislation falling within that directive’s scope is compatible with primary law. That would be contrary to the Court’s approach in judgment of 12 October 1993, Vanacker and Lesage, C‑37/92, EU:C:1993:836.

19      Article 1.

20      Article 11(7).

21      Article 23(2).

22      Judgment of 29 September 2016, Essent Belgium, C‑492/14, EU:C:2016:732, paragraph 119.

23      In a case concerning Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16) establishing a common framework for the promotion of energy from renewable sources, the Court similarly held that that directive did not introduce harmonisation of such a nature as to preclude examination of whether national legislation capable of hindering imports of green electricity from other Member States was compatible with Article 34 TFEU. See judgment of 1 July 2014, Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraphs 56 to 64.

24      See, as regards the fundamental role of those provisions, judgment of 1 July 1969, Commission v Italy, 24/68, EU:C:1969:29, paragraphs 4 and 5.

25      Proposal for a Directive of the European Parliament and of the Council concerning measures to safeguard security of electricity supply and infrastructure investment {SEC(2003) 1368},10 December 2003, COM(2003) 740 final, p. 2.

26      Article 1(2).

27      The case-law has recognised that the prohibitions laid down by both of those provisions have direct effect. See, to that effect, judgment of 17 December 1970, SACE, 33/70, EU:C:1970:118, paragraph 10, where the Court held that at the end of the transitional period (1 July 1968) the prohibition laid down by Articles 9 and 13 of the EEC Treaty (now Articles 28 and 30 TFEU) lends itself, by its very nature, to producing direct effect.

28      Judgment of 5 October 1995, Aprile, C‑125/94, EU:C:1995:309, paragraph 34.

29      Article 4(10) and (11) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), last amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 adapting certain Regulations and Decisions in the fields of free movement of goods, freedom of movement of persons, company law, competition policy, agriculture (including veterinary and phytosanitary legislation), transport policy, taxation, statistics, energy, environment, cooperation in the fields of justice and home affairs, customs union, external relations, common foreign and security policy and institutions, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 1). That Regulation was repealed by Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145 p. 1), partially applicable from 24 June 2008. Article 4(15) and (16) defining import and export duties as well as most of the provisions regarding exports from the customs territory did not enter into force at that time (Article 188(1) and (2) of that regulation). That regulation has in turn been repealed by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1).

30      Opinion 1/75 (OECD Understanding on a Local Cost Standard) of 11 November 1975, EU:C:1975:145, p. 1362.

31      See my Opinion in Avis 2/15 (EU-Singapore Free Trade Agreement), EU:C:2016:992, point 96.

32      There is a difference here between customs duties and charges having an equivalent effect on goods that are exported to other Member States and those on goods that are exported to third countries and thus leave the customs territory of the European Union: the former are subject to an absolute prohibition applying both to Member States and EU institutions (Article 30 TFEU) whilst the latter are prohibited only to Member States since they fall within the exclusive competence of the European Union.

33      See, to that effect, judgment of 1 July 1969, Brachfeld and Chougol Diamond, 2/69 and 3/69, EU:C:1969:30, p. 222. The definition of charges having an equivalent effect to customs duties has remained unchanged since then. See, inter alia, judgment of 1 March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph 21 and the case-law cited.

34      The Slovak Government refers in that regard to Article 12(2) to (8) of the Electricity Regulation. FENS does not appear to contest the point.

35      See, to that effect, judgment of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraph 28.

36      See, to that effect, judgment of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraphs 29 to 39.

37      In specific cases it is the distribution operator or the producer of electricity that pays the charge in question, for the electricity it consumes in its premises for purposes other than the production of electricity.

38      Judgment of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraph 29.

39      I should add here that FENS’s argument that electricity exported may be subject to double payment of the charge for transmission network services has been rejected by the Court in respect of situations where EU law does not contain any provisions prohibiting the double payment of charges. See to that effect judgment of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraphs 37 and 38.

40      Although the law of conservation of energy states that energy is said to be neither created nor destroyed but only to be converted from one form to another, electric energy, once consumed, ceases to exist in the market, at least for taxation purposes.

41      See, to that effect, judgments of 21 June 2007, Commission v Italy, C‑173/05, EU:C:2007:362, paragraph 42 and the case-law cited, and of 9 September 2004, Carbonati Apuani, C‑72/03, EU:C:2004:506, paragraph 31 and the case-law cited.

42      Judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 14 and the case-law cited.

43      See, to that effect, judgment of 14 December 1962, Commission v Luxembourg and Belgium, 2/62 and 3/62, EU:C:1962:45, p. 432.

44      See to that effect judgment of 10 December 1968, Commission v Italy, 7/68, EU:C:1968:51, p. 430.

45      The Slovak Government does not explain how a temporary charge, such as the one at issue in the main proceedings, would fall within the scope of Article 5 of that directive, permitting the adoption by the Member States of appropriate measures to maintain a balance between supply and demand of electricity. It merely repeats that the charge concerns the stability of the system and the security and reliability of supply.

46      See, by analogy, judgment of 10 December 1968, Commission v Italy, 7/68, EU:C:1968:51, p. 430.

47      Judgment of 9 September 2004, Carbonati Apuani, C‑72/03, EU:C:2004:506, paragraph 31.

48      Judgment of 27 September 1988, Commission v Germany, 18/87, EU:C:1988:453, paragraph 7.

49      See, to that effect, judgment of 1 July 1969, Commission v Italy, 24/68, EU:C:1969:29, paragraph 16.

50      Judgment of 17 July 2008, Essent Netwerk Noord and Others, C‑206/06, EU:C:2008:413, paragraph 40 and the case-law cited.

51      Judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 20 and the case-law cited.

52      Judgment of 8 June 2006, Koornstra, C‑517/04, EU:C:2006:375, paragraph 16 and the case-law cited.

53      Judgment of 22 May 2003, Freskot, C‑355/00, EU:C:2003:298, paragraph 45 and the case-law cited.

54      Judgment of 11 March 1992, Compagnie commerciale de l’Ouest and Others, C‑78/90 to C‑83/90, EU:C:1992:118, paragraph 24.

55      See, to that effect, judgment of 8 November 2007, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, C‑221/06, EU:C:2007:657, paragraph 40.

56      See, to that effect, judgment of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraphs 42 and 43 and the case-law cited.

57      See, to that effect, judgment of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraph 47.

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