Véronique Millischer
Baker McKenzie Paris
Veronique.Millischer@bakermckenzie.com

Johanna Da Costa
Baker McKenzie Paris
Johanna.DaCosta@bakermckenzie.com

A new tax credit for investment expenditure in the energy sector (wind turbines, batteries, solar panels and heat pumps) has come into force in France as part of the Finance Bill for 2024. Subject to a tax ruling being granted by the French Ministry of the Budget and strict legal conditions being met, the tax credit could amount to up to €350m per investment and per eligible company. Any excess not set off against the tax due will be immediately refundable by the Treasury, thus providing significant cash flow for beneficiary companies.

The details

In its communication of 9 March 2023 on the Temporary Crisis and Transition Framework following Russia’s invasion of Ukraine, the European Commission authorised a series of state aid measures that may be granted by Member States, including aid for investments in certain strategic energy sectors to facilitate the energy transition. In France, this aid takes the form of a new tax credit for investments in green industries (C3IV), adopted in the Finance Bill for 2024 and codified under Article 244 quater I of the French Tax Code (FTC), the main features of which are summarised below:

• eligible companies: C3IV is available to (1) any company or permanent establishment operating in France and subject to income tax; and (2) operating in one of the following strategic sectors: onshore or offshore wind turbines, batteries, solar panels or heat pumps;
• eligible expenditure: investments aimed at developing one of the targeted activities or increasing production capacity in one of these sectors are eligible under C3IV. This excludes replacement expenditure aimed simply at maintaining the production capacity of an existing company. In practice, eligible expenditure includes the purchase, subject to market conditions, from a third-party of a plant, buildings, machinery, land and intellectual property rights necessary to operate the equipment;
• amount of the C3IV: the rate of the tax credit varies according to the size of the company (small company, small and medium-sized enterprise (SME) or large company) and the location of the investment (regional economic zones, ultra peripheral regions). The tax credit rate can vary from 20 per cent to 60 per cent (for small companies investing in an ultra peripheral region). The total amount of the tax credit is capped at €150m, rising to €350m depending on the location of the investment; and
• tax ruling requirement: the tax credit is subject to a tax ruling being granted by the French Minister for the Budget, after obtaining the opinion of the French Environment and Energy Management Agency (Agence de l'environnement et de la maîtrise de l'énergie). The tax ruling is a matter of law as long as the requirements are met. It will determine the rate, the total amount of the tax credit and the eligible expenses. The tax ruling request must contain a description of the company’s investment plan, including all capital expenditure and a description of the economic viability of the project.

A number of conditions must be met in order to obtain the tax ruling. In particular, (1) the company must not be a company in financial difficulty, (2) it must demonstrate that it has complied with its tax, social security and annual accounts filing obligations, (3) it must not have transferred its activities abroad within five years of the start of the project, and (4) it must not have repatriated its activity to France within two years of the application for the tax ruling. Investments must also be operated in compliance with environmental legislation for at least five years (or three years for SMEs within the meaning of European regulations) from the date of commissioning. Grant conditions vary according to the size of the company, the nature of its activities and the investments planned.

All the requirements set out in the text must be met before submitting the application for a tax ruling, and also during each financial year for which the tax credit is to be applied. The tax authorities will have three months to decide on the application. Failure to respond does not constitute approval and may be challenged before the administrative courts. Tax ruling requests can be sent to the tax authorities by email using the following email address: c3iv@dgfip.finances.gouv.fr. Applications for rulings will be accepted until 31 December 2025.

Use of the C3IV

The tax credit will be allocated to each financial year in which the eligible expenditure is incurred. Any remaining excess will constitute a receivable from the Treasury, which is immediately refundable to the beneficiary company, thus providing a significant cash flow benefit. In case of mergers and assimilated transactions governed by Article 210 A or 210 B of the French Tax Code, the receivable from the Treasury will be automatically transferred to the absorbing/beneficiary company if it undertakes to maintain the eligible activity operations for the part of the minimum operating period remaining at the time of the transaction.

To be noted is that the C3IV was subject to the state aid notification procedure before the European Commission in order to authorise its entry into force. In a decision dated 8 January 2024, the European Commission approved the measure, finding it compliant with EU state aid rules.