The Energy Tax Act 15/2012: European law and constitutional problems

Abstract

Along with traditional taxes levied on income and consumption, energy sector is subjected to many special taxes. Taxes approved by Energy Tax Act 15/2012 have been added to this group whose justification, from legislative policy considerations, is more than doubtful. This unsystematic accumulation of taxes on the same economic reality causes serious European and Constitutional Law problems. Thus the «special charges» which undergoes some hydroelectric and nuclear power stations can affect free competition and violate European legislation on State aid. On the other hand, if the taxes created by Energy Tax Act 15/2012 moved via prices to electricity consumers, it should be wondered about the application of Directive 2008/118/EC, which in its article 1 limits the possibility for States members to establish new excise duties with collecting purposes. A constitutional analysis required to find a justification for these taxes which, on the one hand, concern just a very restricted circle of taxpayers who already pay Corporate Tax by their obtained benefits, which may contravene the constitutional principles of equality and generality by taxing power exercise. Revenues collected by these taxes, on the other hand, are not allocated to the general financing of public expenditure but the correction of the tariff electric deficit, affecting the budget Parliament's power. Finally the Energy Tax Act 15/2012 affects intensely the regional energy taxation, so must be clarified the remaining regional fiscal power in this area.