EnBW to Take Legal Action Against Nuclear Fuel Rod Tax

After changing nuclear fuel rods in the course of an inspection in unit 2 of its Philipsburg nuclear power plant, EnBW AG filed a tax return pursuant to the Nuclear Fuel Rod Tax Act. At the same time EnBW announced to take legal action against the tax assessment.

Expert advice confirmed the companies doubts as to the legality of the nuclear fuel rod tax, the company said. The nuclear fuel rod tax was introduced last year in connection with a nuclear extension, which formed part of the government’s Energy Concept at the time. After the nuclear accident in Fukushima, Japan, the government reversed its nuclear policy. It proposed comprehensives legislative changes, including a nuclear phase-out until 2022. The withdrawal from nuclear energy has meanwhile been approved by the Federal Parliament (Bundestag) and the Federal Council (Bundesrat). The Nuclear Fuel Rod Tax Act was aimed at raising EUR 2.3 billion per year between 2011 and 2016. Due the shut down of the seven oldest nuclear power plants after the Fukushima accident, revenue had already been lower than expected.

The decision was made based on German constitutional law and European law considerations, EnBW said. Backed by external advisors the company had come to the conclusion that the federal government had acted outside its legislative powers and contravened the 2001 nuclear energy consensus.

In the 2010 nuclear energy consensus, the major utilities and nuclear power plant operators and the then ruling Socialist/Green government agreed on a timetable for a nuclear phase-out as ultimately laid down in the 2002 exit amendment of the Atomic Energy Act (AtG). In this consensus, the federal government had undertaken not to take any unilateral measures against nuclear power. This expressly included tax law as well.

Apart from the constitutional law aspects of unlawful invasion of property rights and freedom of occupation, EnBW said it had serious doubts as to compliance of the act with European law, as it was not based on either the Excise Directive or the Energy Tax Directive.

EnBW AG, which is largely owned by the state of Baden-Württemberg that has been ruled by a Green/Socialist coalition since May 2001, said it wanted to expand in the field of renewable energies and rather wanted to use the nine-digit figure it was supposed to pay every year pursuant to the Nuclear Fuel Rod Tax Act for this purpose.

In June RWE AG and E.ON AG had already filed a lawsuit against the nuclear fuel rod tax levied on newly installed rods in their jointly operated nuclear power plant Gundremmingen.

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