• Service: Tax, Global Indirect Tax, Global Compliance Management Services, International Tax
  • Type: Regulatory update
  • Date: 10/25/2013

Spain - Gas consumption tax not compliant with EU law 

October 25: The Advocate General of the Court of Justice of the European Union (CJEU) this week issued an opinion finding that Spain’s tax on retail sales of hydrocarbons is contrary to EU law and not compliance with an EU excise tax directive.

The case is: Transportes Jordi Besora v. Tribunal Económico Administrativo Regional de Cataluña (TEARC), C-82/12

The Advocate General’s opinion is not binding on the CJEU, but is a proposal of a legal solution for the court. Now that the Advocate General has issued an opinion, the judges of the CJEU will begin deliberation in this case, with judgment to be given at a later date.


As summarized in CJEU release no. 141/13 [PDF 166 KB], the EU excise tax (duty) directive provides the rules for imposing excise taxes (duties) in the EU, and aims to prevent trade obstacles arising from the imposition of additional indirect taxes.

The directive specifically concerns mineral oils (including petrol, diesel, fuel oil, and paraffin).

One of the directive’s provisions allows EU Member States to introduce or maintain indirect non-harmonized taxes on products if: (1) the tax pursues a specific, non-budgetary purpose; and (2) the tax complies with the rules applicable to excise duty or value added tax (VAT) as far as determining the tax base, calculating the tax, and monitoring of the tax are concerned.

Challenge made to Spanish tax

At issue in this case is whether a Spanish consumption sales tax (IVMDH) imposed on sales of certain mineral oils (petrol, diesel, fuel oil and paraffin) complies with the EU directive.

The revenue generated from the Spanish tax is intended to support health or environmental matters, and is intended to provide certain communities with sufficient resources to meet the health-related costs.

The taxpayer (a haulage company established in Catalonia) purchased large quantities of fuel for its vehicles and paid over €45,000 of the IVMDH tax between 2005 and 2008. The company asserted that the tax was contrary to the EU directive, and requested a refund.

A Spanish court (Tribunal Superior de Justicia de Cataluña) that is hearing the case on appeal, referred the issue—whether the IVMDH is compatible with the EU directive—to the CJEU.

The Advocate General on 24 October 2013 concluded that the IVMDH is contrary to the directive after examining the two conditions that must be satisfied for a tax to comply with the directive.

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