AG: Chapter III of Regulation 2022/1854 validly adopted under Article 122(1)

Advocate General Athanasios Rantos has proposed upholding the energy solidarity contribution and largely validating the Belgian levy. In his Opinion of 22 October 2026 in Case C-358/24 Varo Energy Belgium and others, given on a reference from the Grondwettelijk Hof, he concludes that Chapter III of Regulation (UE) 2022/1854 was validly adopted on the basis of Article 122(1) TFEUEuropa, in compliance with the conditions to which that provision subjects the adoption of measures on that basis. That provision covers exceptional economic emergencies, which the 2022 energy supply crisis was; the regime is temporary, applying only to excess profits of the 2022 and 2023 financial years under a regulation in force until 31 December 2023; and the contribution is appropriate and not manifestly disproportionate, since it takes only part of the excess profits and leaves firms a margin for investment and stability. Fiscal nature is no obstacle: Article 122(1) excludes no fiscal measures, and Article 115 unanimity does not apply where remedying the crisis is the principal objective.

On equivalence, the Belgian law of 16 December 2022 charges 2022-2023 refiners €6.9 per tonne of crude transformed, and 2022 primary participants for diesel, gasoil and petrol €7.8 per cubic metre released for consumption, with an Article 4(3) top-up to the Articles 15 and 16 level, namely at least 33% of profits exceeding by more than 20% the average taxable profits of the four financial years starting on or after 1 January 2018. The Advocate General reads Article 14 as not precluding a measure that extends its personal scope beyond the Article 2(17) and 14(1) undertakings, provided that this extension does not call into question the equivalent character of that measure with regard to the undertakings falling within the scope of that provision and that, as regards those undertakings, the measure satisfies the requirements laid down by that regulation, including a comparable or higher yield. But primary-participant distributors fall outside Article 14(1)Europa, so the measure cannot count as equivalent for themEuropa, does not implement Article 14 there, and the Charter does not apply. There is consequently no need to answer the third question on Articles 20 and 21 of the Charter.

Articles 30 and 110 TFEU do not, in his view, oppose the levy on primary participants either. It is not a charge having equivalent effect: the chargeable event is the quantity transformed or released for consumption, applied by the same criteria to imported and domestic products, and the absence of Belgian crude extraction does not change that. It falls under Article 110 TFEU instead, which it satisfies so long as it applies irrespective of origin and without heavier taxation of other Member States products or indirect protection of other domestic production, subject to verification.

Nor is the levy State aid. The reference framework is the 16 December 2022 law itself, an exceptional crisis instrument detachable from the general tax system, and there is no selectivity without differential treatment between operators in a comparable factual and legal situation in the light of that objective. Non-participants hold about 10% of the market, lamp-oil volumes are tiny, kerosene serves a distinct market, and coal is marginal with no gas extraction in Belgium, so those operators appear to be in a different situation, subject to the referring court findings. If confirmed, no justification inquiry is needed and no prior Commission notification was due.

The legal basis is Article 122(1) TFEU, Articles 14 to 18 and 22 of Regulation (UE) 2022/1854, Articles 20 and 21 of the Charter of Fundamental Rights, Articles 30, 107(1), 108(3) and 110 TFEU, and the Belgian law of 16 December 2022.