Fiscal Court of Baden-Württemberg Denies Preliminary Injunctions Sought by EnBW Against Nuclear Fuel Rod Tax

Unlike the fiscal courts of Hamburg and Munich in similar cases brought by E.ON and RWE, the fiscal court of Baden-Württemberg denied preliminary injunctions sought by EnBW against the nuclear fuel rod tax, saying it had no serious doubts regarding the constitutionality of the tax.

The nuclear fuel rod tax was introduced in 2010 as a consumption tax on newly installed plutonium and uranium fuel rods. At the time the government planned to extend the operating times of the 17 German nuclear power plants (Energy Concept 2010). After the nuclear accident in Fukushima the government reversed its nuclear policy. It proposed comprehensives legislative changes, including a nuclear phase-out until 2022 and the immediate shut down of eight nuclear power plants. The package was adopted by Parliament (Bundestag) and the Federal Council (Bundesrat) in 2011. The Nuclear Fuel Rod Tax Act (KernbrStG) that was part of the (former) 2010 Energy Concept has, however, not been repealed.

Hence, EnBW submitted tax declarations in accordance with the KernbrStG after installing nuclear fuel rods into one of the remaining nuclear power plants and paid the tax. At the same time it filed notice of opposition with the competent Main Customs Office. The latter denied to suspend the effectiveness of the tax declarations, which according to the law, were at the same time tax assessments.

The 11th Senate of the Fiscal Court of Baden-Württemberg confirmed the decisions of the Customs Office. Deviating from the decisions of the Courts in Hamburg and Munich, the court held, based on case law by the Federal Constitutional Court that with respect to the competence of the German Federation for introducing the nuclear fuel rod tax in the form of an excise tax, it did not matter whether the tax could be passed on to the end customers or not. The court also did not see EnBW’s basic rights infringed upon. Neither did Article 3 (equality before the law) prevent the new tax, nor was Article 14 (guarantee of property) infringed as long as the power plants could still be operated in a profitable way.

The Senate further pointed out that in preliminary injunction proceedings it only had to assess the case on a summary basis. In doing so, it could not find an infringement of primary or secondary European law, the court stated. It denied the allegation that the KernbrStG violated the ban on levying non-harmonised excise taxes on electricity and held that the law did not infringe obligations by the Federal Republic of Germany in connection with EURATOM.

The court granted leave to appeal to the Federal Fiscal Court (BFH). In its press release it explicitly pointed out that it expected EnBW to use this opportunity and added that appeals of decisions by the fiscal courts in Hamburg and Munich had meanwhile been submitted. The court further said that due to the summary nature of the preliminary injunction proceedings a definitive decision could not be expected. This would have to be made in legal proceedings that might involve the Federal Constitutional Court or the Court of Justice of the European Union, it remarked.

Source: Fiscal Court of Baden-Württemberg (ref. nos. 11 V 2661/11 und 11 V 4024/11)

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