TC – Process nº 1236/2023; Judgment No. 553/2024
Through Judgment No. 553/2024, the 3rd Section of the Constitutional Court, in the context of concrete constitutional review, ruled the norm imposing the Extraordinary Contribution on the Energy Sector (CESE) on the value of assets owned by entities within the national energy sector to be unconstitutional.
The CESE was introduced in 2014 to"fund mechanisms promoting the systemic sustainability of the energy sector,"as well as to establish a fund for reducing tariff debt and financing social and environmental policies in the sector. Although initially conceived as an "extraordinary contribution," the CESE has been renewed annually.
The Constitutional Court had previously reviewed the CESE. Notably,Judgments No. 296/2023, 369/2023, and 372/2023, all issued by the 2nd Section, departed from the stance taken in Judgment No. 101/2023, maintaining a negative judgment of unconstitutionality for the CESE of 2018. Similarly, Judgments No. 338/2023 and 720/2023 from the 1st Section reached the same conclusion regarding the non-unconstitutionality of the CESE of 2018. However, unlike Judgments No. 296/2023, 369/2023, and 372/2023, these did not contest the substantive reasons presented in Judgment No. 101/2023 for deeming the validation of the 2018 CESE incompatible with prior years' interpretations of the levy.”.
Recently, Judgments No. 381/2024 and 382/2024 confirmed that,at the time of self-assessment of the 2018 CESE, the revenue allocation method from the FSSSE (Energy System Sustainability Fund) preceding the introduction of Decree-Law No. 109-A/2018 was still in effect. This method upheld the principle of equivalence concerning individuals or entities in the national energy sector that did not fall within the electricity production subsector. The Court determined that revenues collected under the 2018 CESE should be allocated under the regime in force at the time.”.
The Court emphasized that"the rule derived from the combination of Article 2(d), Article 3 of the RJCESE, and Article 415 of Law No. 75-B/2020 of December 31, which stipulates that the CESE is levied on the value of assets referred to in paragraphs 1, 2, 3, and 4 of Article 3 of the same regime,"violates the principle of equality enshrined in Article 13 of the Constitution of the Portuguese Republic. This principle is reflected in the guiding principles of the tax system outlined in Articles 103(1) and 104 of the Constitution.
Accordingly, the Court ruled the provision unconstitutional for"violating Article 13 of the Constitution," Lei n.º 75-B/2020as it applies to assets owned by entities within the national energy sector, domiciled or headquartered in Portuguese territory, or with effective management or stable establishments there, which as of January 1, 2021, are concessionaires of natural gas transport, distribution, or underground storage activities under the terms defined in Decree-Law No. 140/2006,of July 26, as currently amended.”.
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