EU adviser backs temporary energy windfall-profit levy

The Opinions in Varo Energy Belgium (C-358/24), Vermilion Energy Ireland (C-533/24) and Acea Produzione (C-153/25) concern Regulation (EU) 2022/1854 and related Belgian, Irish and Italian measures. The Advocate General considers Article 122(1) TFEU a valid legal basis: in his view, the contribution was an urgent, temporary and proportionate response to the energy crisis rather than a measure harmonising direct taxes, so Council unanimity was not required.^[1][2]

The EU floor targets exceptional taxable profits

Chapter III of Regulation 2022/1854 applies to Union companies and permanent establishments active in crude petroleum, natural gas, coal and refining, unless a member state enacted an equivalent national measure. Articles 15 and 16 set a minimum 33% contribution on 2022 and/or 2023 taxable profits exceeding by 20% the average for the four fiscal years beginning in or after 2018. The levy is additional to ordinary national taxes.^[2]

National extensions remain constrained by EU law

Rantos says member states cannot simply rewrite the personal scope of the EU contribution when implementing it. They may, however, use their own fiscal powers to extend a national charge to other businesses that earned windfall energy profits, provided the overall burden and objectives remain equivalent and EU-law limits are respected. Operators already exposed to a revenue cap are not automatically excluded, and a country may restrict scope where an entity does not operate within its national economic system.^[1][2]

Retroactivity, rights and State aid objections were rejected

The Advocate General regards the temporary 2022–2023 design as compatible with legal certainty and legitimate expectations, including the challenged national timing. He also considers the restrictions on property and freedom to conduct a business justified and proportionate. The contribution is not a customs duty because it applies irrespective of product origin, while objectively defined differences between operators do not, in his analysis, create discriminatory internal taxation or selective State aid.^[1]

The Court has not yet ruled

These are non-binding Opinions, not judgments. The Court of Justice will decide the three references later, and the national courts will then apply its rulings to the underlying Belgian, Irish and Italian disputes. Energy groups should therefore preserve country-specific calculations, sector and entity classifications, historic-loss positions and evidence of any interaction with revenue caps rather than treating the Opinions as final validation of every national windfall-profit charge.^[1]