LAWYERS say that customers should continue to pay the controversial CSPE tax that is levied as part of electricity bills, despite it having been challenged in court.
The basis on which the tax is calculated was ruled illegal by France’s major administrative court, the Conseil d’Etat, in May following a European Court ruling, but the Conseil did not make a specific ruling on the CSPE itself.
This was despite the fact that the rapporteur, a court member who gives an initial appraisal, had recommended the Conseil look at ordering repayments.
Anti-wind turbine association Vent de Colère had asked the Conseil to rule on a decree setting special higher tariffs paid by EDF to owners of wind turbines for their electricity.
The CSPE is then used to compensate EDF for this.
A Conseil spokeswoman said: “As the CSPE wasn’t directly in question, there is no direct effect on it. That may depend on other cases which may be brought.”
After the Conseil ruling the Commission de Régulation de l’Energie (CRE) energy watchdog said it had received around 40,000 requests for tax repayments
(which lawyers advised Connexion could be made for tax paid up to 24 months before the application date).
However, the CRE said legal precedents do not oblige it to do so based on the outcome of the Conseil case – and it will not be making them.
Lawyers say the CRE’s legal arguments are weak and they are seeking ways to challenge this; as is Vent de Colère, which hopes to gain support from one of the large consumer associations for a new challenge.
In the meantime, the lawyers say people should continue paying the tax, or risk building up late payment penalties.
In theory, refund applicants who receive a formal refusal by letter from the CRE and wish to contest it, should do so by an application to the Paris administrative court.
In practice, lawyers say this is only likely to be realistic for businesses with many thousands to reclaim, as it requires a legal case to be brought by an avocat.
The government has now replaced the contested tariffs decree with a similar one, intended to be properly notified to the European Commission.
It intends that this will place future CSPE bills on a secure footing as the Vent de Colère case took advantage of the lack of this formality to have the previous one struck out.
While customers could, in theory, continue sending in claims for recent CSPE tax (and VAT on it) paid as part of new bills, Vent de Colère said it was now advisable to wait for more legal clarity to emerge.