AG backs Ireland 75% energy solidarity levy

Advocate General Rantos has proposed that the Court of Justice uphold the EU energy solidarity contribution in fullEuropa and clear the Irish legislation implementing itEuropa. In his Opinion of 22 October 2026 in Case C-533/24 Vermilion Energy IrelandEuropa, given on a reference from the High Court, he concludes that Council Regulation (UE) 2022/1854, including its Chapter III, was validly adopted on the basis of Article 122(1) TFEUEuropa, and that Articles 14 and 15 infringe neither the general principles of legal certainty, non-retroactivity and proportionality nor Articles 16 and 17 of the CharterEuropa. The applicants operate the Corrib gas field off Ireland west coast, the State only producing field, said to have covered about 25% of Irish gas needs in 2022.

The retroactivity challenge fails on its own terms. Ireland 2023 Act, signed on 17 July 2023Europa and in force from 2 August 2023, defines the chargeable periods as calendar years 2022 and 2023Europa. For 2023 the Act applies a new rule to a new situation, so no retroactivity arises at allEuropa. For 2022 the Act is genuinely retroactiveEuropa, that year having ended before the Act adoptionEuropa, but both conditions for exceptional retroactivity are metEuropa: an objective of general interest, since the contribution is an extraordinary temporary crisis remedyEuropa and the 2022 profits were directly linked to the energy crisis, and respect for legitimate expectationsEuropa, since Regulation 2022/1854 was adopted in October 2022Europa and expressly provided for the application of the temporary solidarity contribution in respect of the fiscal year 2022Europa, and a company related to the applicants called increasing its Corrib working interest an attractive investment after the adoption and the Irish announcement. None of the ten circumstances listed in the fourth question, from completed 2022 operations to the civil-only nature of the liability, alters that assessment, subject to the referring court factual findingsEuropa.

The 75% rate and the loss rules survive as well. The regulation fixes only a 33% minimum rateEuropa with no maximumEuropa, expressly leaving Member States free to set the rate they deem appropriateEuropa, and it does not govern the treatment of prior-year losses, leaving that to the Member StatesEuropa. The Charter applies because the 2023 Act implements EU law, and the provided-by-law, essence and general-interest conditions are metEuropa. On proportionality, only a manifest error of assessment could be censuredEuropa, following the wide margin taxation enjoys. The 75% rate bites only on surplus profitsEuropa so firms keep a share, the levy covers just two defined financial yearsEuropa, and a 75% nominal rate is not in itself confiscatoryEuropa: the applicants, who paid about 99 million euros for 2022 and expect about 40 million euros for 2023, paid no corporation tax on those years profits thanks to historic-loss offsetsEuropa, leaving an effective overall rate of 25.2%Europa. Excluding pre-2018 losses is equally defensibleEuropa: post-2018 losses remain deductible for the contributionEuropa, pre-2018 losses stay deductible for corporation tax going forwardEuropa, and admitting them would have cut the contribution to little or nothingEuropa, undermining the financing of the support measures that cost Ireland about 4.5 billion euros.

At issue are Article 122(1) TFEU, Articles 14 to 18 and 22 of Regulation (UE) 2022/1854, Articles 16 and 17 of the Charter of Fundamental Rights, and Ireland Energy (Windfall Gains in the Energy Sector) (Temporary Solidarity Contribution) Act 2023.