Fiscal Court of Hamburg Orders Preliminary Refund of Nuclear Fuel Rod Tax in 27 Cases Totalling EUR 2.2 bn

In 27 preliminary injunction proceedings (Eilrechtsanträgen) brought by five nuclear power plant operators, the Fiscal Court of Hamburg ordered various Main Customs Offices (Hauptzollämter) to preliminarily refund EUR 2.2 billion paid as nuclear fuel rod taxes.

On 1 January 2011 the Nuclear Fuel Rod Tax Act (KernbrStG) entered into force, introducing a new federal tax on the use of nuclear fuel rods. A tax liability arises when plutonium and uranium fuel rods are installed in a nuclear reactor that serves commercial purposes for the first time, leading to a chain reaction. The operators of five nuclear power plant filed lawsuits with the Fiscal Court of Hamburg.

In two decisions taken in 2013 the 4th Senate of the Fiscal Court of Hamburg issued orders for reference, one to the Federal Constitutional Court (BVerfG), which has the sole competence to decide about the unconstitutionality of a law applicable in Germany, and another one to the Court of Justice of the European Union (CJEU) for a preliminary ruling to clarify compatibility with European law (please see first two links below).

Since the 4th Senate is unable to decide the pending lawsuits prior to judgements by BVerfG and CJEU, plaintiffs applied for interim legal protection, seeking to be preliminarily spared from paying the nuclear fuel rod tax, respectively being refunded. The Fiscal Court of Hamburg granted preliminary relief.

The 4th Senate considers the nuclear fuel rod tax unconstitutional, arguing as follows. The tax was not levied on the use of nuclear fuels or electricity, but was intended to skim off profits by the nuclear power operators. Hence, it was not a consumption tax and the Bundestag (Federal Parliament) did not have a constitutional competence to enact the law. Besides, there was reason to believe the nuclear fuel rod tax violated European law. According to the principle of “output taxation” (Output-Besteuerung) laid down in the European Energy Taxation Directive (Directive 2003/96/EC) taxes could only levied on electricity, but not (additionally) on resources used for producing electricity. Although the Directive does not explicitly mention nuclear fuels, the 4th Senate considers it possible that they are covered by the Directive. There was also reason to believe that Directive 2008/118/EC concerning the general arrangements for excise duty precluded Member States from “inventing new electricity taxes like the nuclear fuel rod tax”.

Due to the importance of the matter, the 4th Senate granted leave to appeal to the Federal Fiscal Court.

Unlike the Fiscal Courts of Hamburg and Munich, the Fiscal Court of Baden-Württemberg denied preliminary injunctions sought by EnBW against the nuclear fuel rod tax, saying it did not have serious doubts regarding the constitutionality of the tax.

Source: Fiscal Court of Hamburg

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