CRE refuses refund of electricity tax

Lawyers say there are strong legal grounds for refunds of the CSPE

Activists and lawyers say they plan to fight on as officials insist they are not legally obliged to repay CSPE

ACTIVISTS Vent de Colère say they plan to fight on after energy officials said they would NOT honour requests for reimbursements of the CSPE electricity bill tax. This comes despite the basis on which the tax is calculated being declared illegal last month by France’s top administrative court.

A spokeswoman for the Commission de Régulation de l’Energie (CRE) said the body has had 40,000 requests for reimbursements following a European Court of Justice ruling last year which was then followed up by France’s Conseil d’Etat.

However the CRE has decided that it is not legally obliged to make repayments, the spokeswoman said.

Last year’s ruling concerned an arrangement whereby, under a 2008 decree, special high tariffs are paid to wind turbine owners by EDF for their electricity. EDF is then compensated out of the CSPE tax that households and companies pay as part of electricity bills. This arrangement was found by the court to be a form of state aid, meaning the 2008 decree on the tariffs should have been notified to the European Commission, which was not done.

Lawyers expected this to lead to France’s top administrative court the Conseil d’Etat, which had consulted the European court as part of a case brought by Vent de Colère, annulling the decree and permitting reimbursements of the tax.

However, while the Conseil has now struck out the decree, it decided not to address the matter of the tax. A spokesman stated that it was not “directly” at issue in the case, which was originally brought by pressure group Vent de Colère based on the non-notification of the decree. The association is opposed to turbines and objects to the sector being given special help.

The Conseil spokesman said the matter of the tax may have to wait for other legal action, potentially.

The CRE said its decision not to reimburse is based on legal analysis showing that anullation of state aid does not automatically lead to refunds of a tax that funded it.

The position for people who have applied to the CRE for refunds – which lawyers told Connexion were potentially claimable for a two-year period – remains unclear.

Vent de Colère president Daniel Steinbach said they will meet with their lawyers shortly to seek a way forward. “Concerning the CSPE, if our lawyers think we have a chance of winning, we are going to try to team up with the consumer associations to ask for their help. If there’s anything to do, we’ll do it.” One avenue might be the new kind of “French class action” created by the new Hamon consumer law, he said.

Connexion asked leading consumer association UFC-Que Choisir if they would be interested in helping. However a spokesman said a class action would not work in respect of a tax. Furthermore they have decided not to support CSPE refunds, he said, because ultimately if the state has to pay massive refunds, it may recoup them by raising other tax.

Lawyers for business law firm Lamy-Lexel, who are seeking refunds for some of their clients, told Connexion they expect to pursue the claims, if necessary by contesting refusals in the administrative courts.

The CRE’s reasoning is based on weak legal grounds, said one of the lawyers for the firm. Furthermore the rapporteur, a member of the court who gives an initial appraisal, had recommended that the Conseil address reimbursements of the tax, but it did not.

A Paris firm of lawyers is now seeking a ruling by the Conseil Constitutionnel as to whether the cancellation of the tariffs decree should mean reimbusements, she said.

Connexion would like to know if anyone has yet received an official letter from the CRE (not EDF) refusing a reimbursement of the tax. Lamy-Lexel say they are considering the best way forward for people such as Connexion readers with modest sums to claim – for example, whether it is advisable to apply to the courts or to wait for the outcome of cases brought on behalf of large firms. Contact us at news[at]connexionfrance.com

Photo: Mark Dietrich - www.fotolia.com

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