2.1 Background and previous proposals.

In the chapter on financial provisions of the TFEU, Article 311 provides that the Union shall provide itself with the means necessary to attain its objectives and carry through its policies. Without prejudice to other revenue, the budget shall be financed wholly from own resources.⁶ The own resources system was introduced by the Decision of 21 April 1970, replacing the system based on financial contributions from the Member States and is supplied by three main types of revenue⁷:

I) The so-called traditional own resources, customs duties and other levies, considered the “true” own resources of the system as a direct source of income from individuals and entities to the EU budget, even if collection is carried out at national level⁸.

II) VAT-based own resource which, unlike customs duties, has no tax nature. State contribution that takes this tax as a basis to determine the amount; it is not a levy on top of national taxation for VAT payers⁹. The share is calculated by applying a uniform percentage in all Member States on a harmonised basis and calculated on the total value of the sales volume, based on the statistics of the national accounts relating to final consumption. The contribution is modulated according to gross national income, to avoid regressive effects.

III) And the own resource based on gross national income (GNI), conceived as a balancing and residual element to guarantee the total financing of approved expenses, which is calculated once the difference between expenses and disposable income is known. This component was introduced in Council Decision 88/376 (EEC EURATOM) of 24 June 1988, in view of the increase in expenditure resulting from the implementation of the single market and Community enlargement. Other resources lost relevance and it became the main component of the system, providing more than 70 % of the EU's revenues, which thereby re-established its funding, in terms of the weight of the financial contributions of the Member States, returning to the pre-70s situation¹⁰.

Since the introduction of the GNI component, there have been no significant reforms in the configuration of Community revenues, despite the fact that there have been numerous reports, communications and documents that, since late 90s, have revealed the inadequacy¹¹. Attempts at reform intensified after 2004, with the Commission advocating the creation of new resources that would progressively reduce the weight of the GNI-based resource¹².

Following the financial crisis of 2007, the Commission proposed simplifying the VAT resource and creating a new type of resource based on a financial transaction tax, highlighting the opacity and complexity of a system that limited democratic control and generated the perception of national budgetary overload as a result of the burden of national contributions¹³. In the absence of the needed unanimity, the reform never came to fruition, but the agreement on the 2014-2020 multiannual financial framework included a joint statement on own resources, which concluded the need of an overall revision of the system, by the creation of a high-level interinstitutional Panel, whose report was published in December 2016¹⁴. This report recommended abandoning the correction mechanisms in effect until then, to reform the VAT-based recourse and include new categories of own resources linked to Community policies and values, particularly social, economic and environmental sustainability, the value of the single market and fiscal coordination. These resources should be used in a similar way to national non-fiscal levies, the incentive being the imposition of certain political preferences¹⁵. Thus, along with the resources based on corporate tax and a tax on financial transactions or banking entities, the gradual introduction of others linked to the EU's energy, environmental, climate and transport policies was proposed, such as a tax on CO2 through the EU emissions trading system, a tax on electricity, on diesel or an indirect tax on imported goods from non-member countries with high emissions.

In the framework of the preparatory work for the negotiation of the current budgetary framework, the proposal for a Council Decision on the system of own resources of the European Union, 2 May 2018(COM (2018) 325 final 2018/0135 collected some of the proposals of the report, incorporating as own resources a proportion of the common consolidated tax base of corporate tax, once adopted by the Member States; a proportion of the auction revenues from the emissions trading system and a national contribution calculated based on the amount of non-recycled plastic packaging waste, as an incentive to Member States to develop the circular economy¹⁶. This was intended to address the loss of resources that the United Kingdom's exit from the Union would entail and to extend spending schemes to new political priorities in areas such as the environment, research and development or external security. The European Parliament was in favour of the introduction of these resources when issuing its Resolution of 10 October 2019, in which it noted that, in the exercise of its powers under Article 312 TFEU, it would not approve the MFF 2021-2027 without an agreement on the reform of the system with new funding sources in line with the EU goals¹⁷.

The emergence of the COVID-19 pandemic ultimately boosted this reform at the European Council held between 17 and 21 July, 2020, which agreed to provide extraordinary funds to prevent deterioration of the economy and employment and to boost economic recovery. The varying economic impact of the measures adopted by the Member States to contain the spread of the virus and their unequal budgetary capacity motivated the Community intervention given its effects on the single market, social and territorial cohesion. The European Recovery Instrument “Next Generation EU”, regulated in Council Regulation (EU) 2020/2094 of 14 December 2020, would make it possible to offer loans to Member States and non-refundable aid linked to the fulfilment of the objectives of the recovery and resilience plan. Its financing is achieved by temporarily authorising the Commission to incur debt in the markets on behalf of the European Union, its repayment being funded by reforming the EC financing system, by introducing as of 1 January 2021 a new resource based on the weight of the non-recycled plastic packaging waste, enabling new sources of income in subsequent years¹⁸ .

These agreements were reflected in Council Decision (EU, Euratom) 2020/2053 of 14 December 2020, on the own resources system of the European Union, which repeals the previous Decision 2014/335/EU, Euratom, of 26 May and introduces various modifications on the system so far in force¹⁹.

2.2 Essential elements of the reform.

Firstly, the limits established for own resources are increased, so that the appropriations allocated to the Union to finance annual payment appropriations may not exceed 1.40 % of the sum of gross national income (GNI) of all Member States. The total amount of the annual commitment appropriations in the Community budget, the expenditure ceiling, could not exceed 1.46 of the sum of the GNI of all Member States. Moreover, an additional increase of these limits by 0.6 percentage points is foreseen to cover the Union's liabilities derived from the loans subscribed until their extinction, no later than 31 December 2058.

Although the traditional own resources, customs and tariff duties, remain unchanged, the amount of withholding of collection expenses by the States is increased to 25 %. With this, the percentage of 20% provided for in the above Decision is increased, against the recommendation made by the Monti Report and the proposal for a Decision of own resources published in 2018, which included its reduction by 10% to reflect the actual costs and as an incentive to the development of more effective administrative procedures, putting an end to the veiled correction involving this percentage²⁰.

The calculation of the VAT-based resource is also simplified, in accordance with the subsequent provisions of Council Regulation (EU, Euratom) 2021/769 of 30 April 2021, amending Regulation (EEC, Euratom) No. 1553/89 on the definitive uniform arrangements for the collection of own resources accruing from value added tax²¹. A uniform rate of 0.3% is applied in all Member States to the amount of the VAT collected in relation to the whole of the supply of goods or services taxed, divided by the weighted average rate of VAT calculated for the calendar year, set in 2016, and established as definitive for all the multiannual framework, unlike the former regulation where it was to be calculated every year. The criterion whereby the taxable amount of VAT to be taken into account for these purposes in respect of each Member State should not exceed 50 % of GNI is maintained.

The resource based on gross national income (GNI) remains substantially unchanged as a balancing and residual resource to ensure budgetary sufficiency. Corrections are further established for some Member States such as Denmark, the Netherlands, Austria, Sweden and Germany, against the recommendations of the Monti report and previous proposals from the Commission, which considered that these corrections, linked in some cases to that applied in the United Kingdom, lost their point after UK's departure from the Union, in addition to complicating the system and generating opacity in terms of the distribution criteria*²².

The most relevant novelty refers, ultimately, to the creation of a new resource consisting of a national contribution calculated according to the weight of non-recycled plastic packaging waste, which aims to fight against related contamination, promoting recycling and the circular economy²³.

3.1 Characteristics and non-revenue purposes in the framework of the European strategy for plastics.

The possibility of creating a financial resource on plastics to replenish the Community budget arose in the Communication from the Commission COM (2018) 28 final, of 16 January 2018, A European strategy for plastics in a circular economy, which referred to the introduction of fiscal measures at EU level to reduce the generation of plastic waste, especially packaging or disposable items, and encourage their reuse. The Communication focuses on the effects of this waste on the environment, marine pollution and climate change, taking as strategic axes the promotion of a new plastic economy in which its design, production and use respect the needs of reuse and recycling, as well as the development and promotion of more sustainable materials. This document points out that global plastic production has increased 20-fold since the 1960s, reaching 322 million tonnes in 2015, figures that will double over the next 20 years. About 25.8 million tonnes of plastic waste are generated annually in Europe and less than 30% is collected for recycling. Of this amount, a significant part leaves the Union to be treated in non-member states, where different environmental standards apply. At the same time, the amounts of plastic waste deposited in landfills or incinerated remain high (31% and 39%, respectively) and although dumping has decreased in the last decade, incineration has increased. It is estimated that 95% of the value of plastic packaging, between EUR 70,000 and 105,000 million per year, is lost to the economy after a very short cycle of first use. Among the economic measures to be adopted to achieve these goals, reference was made to the possible establishment of an EC harmonised tax in the Multiannual Financial Framework after 2020.

The plastic resource was finally incorporated into the Proposal for a Decision of 2 May 2018, on the own resources system, and the Decision of 14 December 2020, but not as a Community tax but as a state contribution that, not falling directly on the European taxpayer, can hardly be considered a “genuine” own resource²⁴. On the other hand, it is up to each Member State to adopt the internal measures deemed appropriate to achieve the “non-tax” purpose pursued with this resource.

State contribution is calculated based on the weight of the non-recycled plastic generated in each territory, on which a rate of EUR 0.80 per kilogramme is applied. This weight is calculated based on the difference between the total waste generated and that recycled in each Member State in the calendar year in question. Regulation (EU, Euratom) 2021/770 of the Council of 30 April 2021, on the calculation of the own resource, refers, for the determination of these quantities, to Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste and to the Commission's Decision 2005/270/EC, establishing the formats relating to the database system in accordance with the above Directive. These rules set the target of achieving by 31 December 2025 a minimum of 50 % recycling by weight of all plastic packaging waste and 55%, by 2030, to which this resource will also contribute. The formula for determining compliance with these objectives is set out in Articles 6a of the Directive and 6q of the Decision, to which Regulation 2021/77 refers to likewise calculate the weight of non-recycled plastic generated in each Member State, in order to determine the State's contribution.

According to these regulations, for the purposes of calculating whether the targets have been achieved and to now also determine each State's contribution, Member States shall calculate the weight of packaging waste generated and recycled in a given calendar year. Packaging waste generated in a Member State may be deemed to be equal to the amount of packaging placed on the market in the same year within that Member State; for its part, the weight of packaging waste recycled shall be calculated as the weight of packaging that has become waste which, having undergone all necessary preliminary operations to remove waste materials that are not targeted by the subsequent reprocessing, enters the recycling operation. This is defined technically in the Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste, as any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes²⁵. Directive 94/62 also contemplates the concepts of packaging, as a product used “for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer”, in addition to all “non-returnable items used for the same purposes”²⁶. By adopting this pre-established formula and previously applied by the Member States, the implementation of the own resource, with already technically defined quantities, is accelerated and facilitated, and links the state contribution to the fulfilment of the recycling target, whereby the greater its achievement, the lower the tax.

Making the resource available to the Union by the Member States is regulated in Council Regulation (EU/Euratom) 2021/770 of 30 April 2021, which as in the case of the own resources Decision, enters into force with retroactive effects from 1 January²⁷ . Under this Regulation, the amount entered in the budget of each State shall be made available to the Union, in the form of monthly twelfths, on the first working day of each month, subsequently adjusting the amounts based on the final data. In addition, Member States shall periodically send reports to the Commission on the application of their own recourse, and the supporting documentation must be kept until 31 July of the fifth year following the financial year in question. Depending on the cash position the Commission may, in any case, request the Member States to bring forward the entry of the corresponding amounts during the first quarter of the year. On the other hand, the accrual of late payment interest is foreseen in the event that the corresponding amounts are not entered in a timely manner.

3.2 The tax on non-reusable plastic packaging under the Law 7/2022, of 8 April, on Waste and Contaminated Soils for a Circular Economy.

Consistent with the introduction of this resource at the Community level, the Law 7/2022, of 8 April, on Waste and Contaminated Soils for a Circular Economy, creates two new environmental taxes, the special tax on non-reusable plastic packaging (Articles 67 to 83) and the tax on the deposit of waste in landfills, the incineration and co-incineration of waste (Articles 84 to 97), which will come into force on January 1, 2023. Its creation takes place at the time of transposing two EU directives into the Spanish legislation: Directive (EU) 2018/851 of 30 may 2018 amending the above-mentioned framework Directive on waste 2008/98/EC, which enhances the mandatory use of economic instruments to advance the circular economy, and the so-called Directive on single-use plastics, Directive (EU) 2019/904, June 5, 2019 , on the reduction of the impact of certain plastic products on the environment, which, among other measures, sets restrictions on placing in the market single-use plastic products. Both taxes tend to prevent the generation of new waste and, on the other hand, promote its reuse, reducing its disposal in landfill.

Taxation on the deposit of waste had already been implemented, in any case, in various Spanish Autonomous Communities as an own tax, now being devised as a state tax entrusted to the Autonomous Communities²⁸. The introduction of this tax at the national level follows the EC recommendations whereby, faced with the risk of non-compliance with the recycling objectives established in Directive 94/62/EC, Spain should implement a harmonised tax scheme at national level on the deposit of waste in landfills, which improves recycling rates and puts an end to the so called “waste tourism” towards the tax-free o low-tax Autonomous Communities²⁹. Although the new tax will also affect plastics, its scope is broader and affects waste in general, taxing its disposal in landfill and incineration. The amount to be paid is determined based on the weight of the waste delivered at a variable rate depending on the type of waste and the type of receiving facility, the facility owner being declared a substitute of the taxpayer, collecting the tax from the natural person, legal entity or entity without legal status who delivers the waste³⁰.

Although taxation on the deposit of waste was already known in our legal system as an own regional tax, the introduction of the tax on plastic packaging is linked to the EC own resources requirement, and revenue will be recovered at least partially. In this way, the disincentive to the use of non-recycled plastics is implemented internally and puts the environmental cost on manufacturers, importers and purchasers of non-reusable packaging. The new duty will tax the intra-Community manufacture, import and acquisition, in addition to the non-regulatory entry into Spanish territory, of packaging that, containing plastic, are not reusable. This means that it was “not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to a producer for refill or re-used for the same purpose for which it was conceived”³¹. The tax affects such products, whether empty, or containing goods. Taxpayers are the natural or legal persons and entities of Article 35.4 of Act 58/2003, of 17 December, who manufacture, import or carry out the intra-Community acquisition of the products that are part of the objective scope of the tax, without this law providing for how this tax is applied.

Definition of the taxable event is further supported by the establishment of various assumptions of exemption, among others, for those products that, after manufacture and prior to tax accrual, are no longer suitable for use, have been destroyed or are sent directly by the manufacturer to a territory other than the one applying the tax. Numerous exemptions are also contemplated regarding packaging used in the health area, for medicines, health products and food for medical uses or in agricultural or livestock activities; as well as intra-Community acquisitions that are intended for a territory other than the one where the tax is applied. Small imports or intra-Community acquisitions of packaging are also exempt, provided that the total weight of the non-recycled plastic contained in them does not exceed 5 kilogrammes. The taxable base consists of the amount of non-recycled plastic, expressed in kilogrammes, contained in the products subject to the tax and the tax rate is 0.45 euros per kilogramme³².

As for the accrual, in the case of manufacture, it occurs at the time of the first delivery or making available of the good in the tax-applying territory; for imports, it is at the time of accrual of import duties, and for intra-Community acquisitions, on the 15th day of the month following that in which its dispatch or transport to the acquirer begins, unless the invoice is issued in advance, in which case it shall be on such date³³.

A self-assessment scheme is established on a quarterly or monthly basis depending on the VAT return system. For imports, the tax shall be paid in the manner laid down for customs duties, and the amount of imported non-recycled plastic, expressed in kilogrammes, must be entered in the customs import statement. As the most relevant formal obligations, a specific register is created in which the taxpayers who carry out the taxed activities must register before the start of their activity and the obligation to keep an accounting of the products that are part of the objective scope of the tax and the raw materials needed to produce them. In addition, the invoices issued on the occasion of the sales or deliveries of the taxed products must include the amount of non-recycled plastic, expressed in kilogrammes, contained in said products, as well as the amount of the tax accrued or, where appropriate, the exemption applied, unless they are simplified invoices.

5.1 CBAM as an instrument to fight against climate change.

In compliance with the roadmap for the implementation of new resources, the Commission put forward on 14 July 2021 a proposal for a regulation establishing a carbon border adjustment mechanism (hereinafter, CBAM), COM(2021) 564 final 2021/0214 (COD). In addition to a new source of revenue, the CBAM is key in the European strategy to combat climate change and global warming. The CBAM contributes to the fulfilment of the international obligations derived from the Paris Agreement, signed on 2 December 2015 under the United Nations Framework Convention on Climate Change and adopted by the European Union through Council Decision (EU) 2016/590 of 11 April. The aforementioned agreement establishes, in its Article 2.1 (a), the aim of holding the increase in the global average temperature “well below 2°C with respect to pre-industrial levels”, and pursuing efforts to limit the temperature increase to 1.5°C, to reduce the risks and impacts of climate change. This represents a direct threat to human livelihoods and terrestrial and marine ecosystems, with unequal effects that affect the poorest countries to a greater extent, with the WHO estimating that it may cause an additional 250,000 deaths a year from 2030³⁹ . Also, economic growth and emissions are no longer considered to be directly associated, as the latter decreased by 24% between 1990 and 2019 in the European Union, despite the fact that the economic growth during the same period reached 60 %⁴⁰.

The CBAM also intends to contribute to achieving the climate neutrality objective provided for in the European Green Deal, so that by 2050 there will be no net greenhouse gas emissions. As an intermediate objective, in order to achieve the 2050 target, Regulation (EU) 2021/1119 of 30 June 2021 also established the necessary reduction of net greenhouse gas emissions by 2030 of at least 55 % compared to 1990 levels, entrusting the Commission and the Member States to take the necessary measures to achieve this⁴¹. Among these, the “Fit for 55” package, promoted by the Commission, contemplates the implementation of the CBAM, together with the reinforcement of the emissions trading scheme and the update of the Directive on energy taxation.

The proposal to establish carbon border adjustment measures within the Union is not new, and since 2007 there have been several efforts in connection with the reform of the regulation of the emissions trading system, which never came to fruition⁴². The current proposal is undoubtedly the most comprehensive in terms of its regulation and feasibility, being preceded by the agreement adopted in the MFF, given the need to finance the Community budget.

The proposal is based on Articles 191 and 192 of the TFEU, which, in addition to the “Polluter Pays” principle, include among the aims of the Union, preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, promoting measures at international level to combat climate change The regulation creates, on the other hand, a uniform legal framework for imports, which prevents diverting goods through States with a more favourable CBAM.

CBAM implementation aims to avoid the risk of the so-called “carbon leakage”, a phenomenon whereby, due to the differences in the climate policies across the Member States, companies move their production outside the European Union, to other less restrictive countries in terms of emissions regulation, or when imports from these countries replace equivalent products produced within the Union. The CBAM extends the carbon pricing policy established in the internal market to imported products, preventing that the reduction of emissions within the Union is offset by an increase in emissions in other territories. In this regard, the proposal for a regulation highlights the increase in embedded emissions in imports, which represent more than 20% of domestic CO₂ emissions of the Union, as opposed to the reduction of national emissions⁴³.

Until now, the risk of carbon leakage has been addressed within the framework of the emissions trading scheme (hereinafter, ETS) regulated in Directive 2003/87/EC, of 13 October, through the free allocation of emission allowances to the sectors most exposed to this phenomenon, in accordance with Article 10a of this standard. However, this system weakens the carbon “price” perception precisely for the facilities with the highest emissions. As we will see later, the CBAM will progressively remove this allocation, to equate domestic and imported products, also generating new resources for national budgets⁴⁴.

5.2 Operation and characteristics.

The CBAM is similarly designed to the emissions trading scheme (hereinafter, ETS) applied to domestic production in accordance with the Directive 2003/87/EC, of 13 October. This system, first implemented in 2005, has so far been the Union's main tool to combat climate change, reducing greenhouse gas emissions from industry, electricity generation and air transport⁴⁵. It is based on the so-called emission allowances, authorisations granted in a limited number to emit tonnes of CO2. These permits are negotiable and can be acquired by auctioning, thus fixing the price of carbon. The entities subject to the scheme must annually hand over a number of allowances equal to the emissions produced⁴⁶. Therefore, individualised emission reduction obligations are not established, but a carbon pricing system allows the entity to decide whether to invest in improvements that reduce its emissions or to buy the required emission allowances⁴⁷.

Based on this model, in the new carbon border adjustment system, importers will have to acquire and deliver CBAM certificates in each Member State where they import, taking into account the embedded emissions of their products and at a price comparable to those paid by domestic operators for the purchase of emission allowances. The affected sectors will be the same as those subject to the ETS and listed in Annex I to the Proposal for a Regulation (cement, electricity, fertilisers, iron and steel and aluminium) to equate the treatment of imported and domestic products.

By levying imports, the CBAM differs from the ETS in that it does not establish a cap for allowances and emissions for trading and purchase through auctioning, in order to avoid establishing trade restrictions that are incompatible with WTO rules. These rules establish the principles of national treatment and most-favoured-nation treatment (Articles I and III of the General Agreement on Tariffs and Trade- GATT), although there are exceptions in the case of measures aimed at health protection and environmental preservation. Article XX points out, in particular, that no provision of the agreement shall be interpreted in the sense of preventing contracting parties from adopting or enforcing measures to “protect human, animal or plant life or health” or “relating to the conservation of exhaustible natural resources” with the condition, however, that “such measures are made effective in conjunction with restrictions on domestic production or consumption” and “are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”⁴⁸.

In order to ensure that CBAM was consistent with WTO rules, international and domestic operators are to be treated on an equal footing, so that the price of certificates is comparable to that paid by domestic operators for the purchase of allowances. To this end, the Proposal for a Regulation provides that the price of certificates is determined by the weekly average of the closing prices of the ETS allowances on the common auction platform, in accordance with the procedures established in Regulation (EU) 1031/2010. The price of CBAM certificates is to be published by the Commission and is applicable during the following calendar week⁴⁹.

The submission of CBAM certificates shall be carried out annually together with a declaration regarding the verified embedded emissions of the products imported during the previous year. The declaration shall also include: (a) The goods imported in the previous calendar year, expressed in tonnes or in megawatt/hour in the case of electricity; (b) The carbon content of products, i.e., the total embedded emissions, expressed in tonnes of CO2e per tonne released during its production abroad or CO2e per megawatt/hour in the case of electricity, product subject to a differentiated scheme. The calculation of the embedded emissions shall be carried out through different methods, starting as a general rule from the actual emissions, unless these cannot be determined, in which case default values shall be applied, a criterion that is primarily applicable in relation to electricity⁵⁰; and (c) The total number of CBAM certificates to be delivered, corresponding to the total embedded emissions. To carry out this calculation, the carbon price paid in the country of origin shall be deducted, provided that no deductions or offsets have been applied to the export. In addition, another adjustment shall be made based on the EU ETS allowances allocated free of charge. In order not to favour domestic producers over imports, in accordance with WTO rules, the implementation of the CBAM, over a 10-year period starting in 2026, shall determine a progressive abolition of free emission allowances, at the rate of 10 percentage points each year. During that period, the CBAM certificates to be delivered by importers shall be reduced in proportion to the amount of free allowances distributed in the sector concerned⁵¹.

The similarity between the CBAM and the ETS is also related to penalties, since in the event of failure to surrender certificates, the penalties are identical to those provided for in Directive 2003/87/EC for excess emissions under the ETS.

On the other hand, although submitting the declaration and surrendering the certificates is done annually, acquisition should be done gradually throughout the calendar year, so that at the end of each quarter the declarant has deposited in a national registration account certificates equivalent to 80% of the embedded emissions of all of the goods that have been imported since the beginning of the year. In order for importers to optimise costs, acquiring certificates according to their weekly price, a two-year validity period of the certificates is established. In addition, a repurchase system for surplus certificates by the Member States is envisaged, upon request of the interested party and once the declaration has been submitted.

To prevent the risk of non-compliance, since the declaration is submitted after the end of the calendar year in relation to the emissions of the previous year, the import of the goods is subject to prior authorisation. This request shall contain proprietary and financial information of the entity, and shall include the following data: the main economic activities in the Community territory; certification of the tax administration of the member State where the declarant is established of not being subject to an “outstanding recovery order” for domestic tax debts; affidavit of not having been involved in serious or repeated violations of the customs legislation, tax regulations and rules on insider dealing and market manipulation during the five years preceding the request, in particular, not having been sentenced for a serious offence in connection with their economic activity; information necessary to demonstrate the financial and operational capacity of the applicant to comply with their obligations under the CBAM, subject to the possibility requesting the profit and loss account and the balance sheet of the last three financial years ended, after due risk assessment; and the estimated monetary value and turnover of imports in the customs territory of the Union, by type of goods, for the calendar year in which the request is submitted and the following year.

Although CBAM implementation is scheduled for 2023, a transitional period is established until 2025, in which a CBAM shall be applied without financial adjustment, to facilitate its implementation. During this period, the declarants shall report quarterly the embedded emissions of the imported goods and the price of the carbon paid abroad. The transitional period shall also allow the Commission to assess the possible extension of the scope to indirect emissions and other goods and services. In any case, the similarity between the CBAM and ETS will facilitate its implementation, as is the case of the plastic resource, which is based on the already existing rules regarding the fulfilment of recycling objectives.

5.3 CBAM as a non-tax property contribution for public purposes.

The features of the CBAM-based resource allow for its consideration as a new and genuine Community own resource, comparable to those derived from customs duties. Certainly, it is not a tax resource, but a public revenue imposed by the Union on importers, although its collection is carried out through the Member States⁵².

The Commission initially assessed designing the CBAM as an import carbon tax, to be calculated based on the default carbon intensity of the products and based on the carbon price in the Union⁵³. Importers could request a reduction based on their actual carbon footprint and the carbon price paid in the country of production, to avoid double taxation⁵⁴. The tax would have to be adopted in accordance with Article 192.2 TFEU, which empowers the Union to establish fiscal measures, adopted unanimously, for the protection of the environment.

The report issued by the European Parliament on 15 February 2021 considered, however, that this tax would not fully solve the risk of carbon leakage and would pose technical difficulties given the complexity of carbon traceability in global value chains, offering less flexibility when reflecting the evolution of the ETS price. Therefore, an ETS-based system was reached, although with the particular features noted regarding the acquisition and repurchase of allowances, no limitation on the number of certificates issued and price determination regime. As it is not a tax, the Regulation will undergo ordinary legislative procedure for its approval, with the joint adoption by the European Parliament and the Council having a qualified majority, in accordance with Articles 289 and 294 TFEU, without the requirement of unanimity.

In connection the ETS, on which the CBAM is based, the Judgment of the CJEU of 21 December 2011 (case C-366/10) concluded, moreover, that it was not a tax but a 'market-based measure'. The CJEU concluded that the ETS did not provide for an “a priori defined” tax base and rate that would allow determining the amount to be accrued per tonne of fuel consumed for flights during the calendar year, the specific sector addressed by the judgment. The Court notes that it is not “a type of tax in favour of the public authorities that can be considered a customs duty, levy or tax on the fuel owned or consumed by aircraft operators”, a conclusion that is not affected by the fact that emission allowances can be acquired not only from other operators but also from the public authorities by auction.

The CBAM is not a proper emissions trading scheme, since CBAM certificates are acquired from the importing State for the average carbon price in the ETS, without a cap or auctioning. However, its link with the ETS and the variable nature of the price paid, given the possibility of handing over certificates acquired in the last two years depending on their price, with the possible repurchase of surplus allowances by the State, do not allow its classification as a tax. According to the types established in Spanish legislation, the acquisition and hand-over of CBAM certificates could be considered, on the other hand, a non-tax property contribution for public purposes (art. 31.3 Spanish Constitution), given its economic content and coercive nature⁵⁵.

In accordance with the Judgments of the Spanish Constitutional Court, TC 83/2014 of 29 May, and 44/2015, of 5 March, revenues of this nature are imposed coercively, understanding as such, those arising from a payment obligation set unilaterally by the public authorities regardless of the payer's free will, provided that such revenue, regardless of the public or private nature of the recipient, is unmistakably for the public interest. The concept of property contribution for public purposes (Art. 31.3 Spanish Constitution) is included in the first additional provision of Act 58/2003, General Tax Act, as worded by Act 9/2017, of 8 November, whereby it refers to those contributions “referred to in Article 31.3 of the Constitution that are required coercively”, distinguishing between tax and non-tax. Taxes shall be those that have the consideration of duties, special contributions and levies, while non-tax contributions are those required coercively, that respond to general interest purposes.

Having established this definition, we must recall the Spanish Constitutional Court’s Judgment 63/2019, of 9 May, which highlighted how the identification of this type of contribution is “by exclusion”, without it being “a homogeneous category (…) in itself”. They serve different purposes and have in common only, in addition to not being taxes, coerciveness and the fact that their purpose is not to finance “all” public expenses⁵⁶.

The acquisition and surrender of emission allowances under the ETS has been considered a public contribution, a classification that is also extensible, from our point of view, to the CBAM regarding the obligation to acquire and surrender its certificates⁵⁷. This obligation has the required characteristics of being financial in content, coercive and of public interest. Coercion is evident, given that carrying out the activity of importing goods covered by the CBAM is inevitably linked to the acquisition and submission of the certificates, otherwise the business activity is not possible. And the same can be said about the economic content of the obligation and its objective of public interest, linked to the fight against climate change.

Such revenue shall be regulated by non-delegable legislation according to rule of law, as laid down in Article 31.3, which would be fulfilled by the Community Regulation, given the general and direct applicability of this standard, as interpreted by Judgments of the Spanish High Court of 3 June 2002 (appeal 273/1999), and 1 July 2005 (appeal 397/2003) in relation to the duty derived from the excess in the production and sale of the dairy quota, as it is the highest ranking regulation in the Community legal system and is of direct and preferential enforcement within Community jurisdiction⁵⁸.