The ECJ has ruled that the new German excise duty on nuclear fuel is permissible under EU law.
The law in question introduced a duty on the use of nuclear fuel for the commercial production of electricity for the period from 1 January 2011 to 31 December 2016. Kernkraftwerke Lippe-Ems challenged the compatibility of the duty with EU law before the Finanzgericht Hamburg, who referred the question to the ECJ.
The ECJ held as follows:
- Nuclear fuel was not exempt from taxation under the Directive on taxation of energy products and electricity (Council Directive 2003/96/EC), as it was not on the list of exemptions in that Directive nor could it be exempted analogously. Under EU law both electricity sources and the consumption of electricity itself could be taxed.
- The Directive on the general arrangements for excise duty (Council Directive 2008/118/EC) did not preclude the German duty on nuclear fuel, which was levied on the use of such fuel for the commercial production of electricity. As it was not levied (directly or indirectly) on the consumption of electricity or that of any other product subject to excise duty, the German duty did not constitute excise duty or “other indirect taxes” on that product within the meaning of the Directive.
- The German duty did not amount to state aid as it was not selective. Methods of producing electricity (except that based on nuclear fuel) were not affected by the duty.
- The Treaty establishing the European Atomic Energy Community did not preclude the duty. The duty was not a charge with equivalent effect to a customs duty. It was levied not because nuclear fuel had crossed a frontier, but because it was used for the commercial production of electricity, irrespective of the source of that fuel.
Case C-5/14 Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabrück
