We will invoke a Standstill Clause on the 15th of May
After profound study and conversations with representatives of the European Commission, we think that the energy tax could be considered a state benefit. This is due to the fact that it goes from being a situation in which the costs of the energy system are financed by its own income, to one in which a part of the costs are financed by the general budget, benefitting the sources that generate negative externalities, such as the ordinary regime.
Bearing in mind this qualification, the procedural strategy proposed would be to force an administrative act requesting a partial non-application of laws 15/2012 and 17/2012, in virtue of a “standstill clause” applicable to state benefits that have not been notified. We commented on this when the laws were approved.
The action could bring its advantages, including if the Commission rejects our claim, as we are insuring a delay in the application of the tax (in the final settlement plus the obligation to make payments) and from the point of view of procedural financing, with legal taxes we would save on.
Regarding one objection one could make to this strategy, relating to the reduction of VAT, when dealing with state benefits (or subsidies), we would like to allude to the sentence made on the 6th October 2005, subject C-204/03, in which the Court of Justice declared that only the subsidies not linked to the price of operations refer to the pro-rata, when the businessmen or professionals that receive them are obliged to apply them as they carry out operations that create the right to the deduction along with those that do not. It is for this reason that Spain also had to adapt its internal normative. As it is not about taxpayers that are in pro-rata, there is no risk whatsoever for them.
We recommend you read CV-0885-13 from the 20th of March 2003, in which it states “It should be noted that from the 1st of January 2006, and as a consequence of the modifications carried out in Law 37/1992 by Law 3/2006, from the 29th of March (Boletin Oficial del Estado, 30th March), the receipt of subsidies not linked to the price of operations (activity subsidies) no longer implies any limitation in the right to the deduction of the tax over the value added, therefore its receipt is not relevant to the effect of these taxes.”