CELEX: 62021CJ0571
Reference for a preliminary ruling
Taxation of energy products and electricity
Directive 2003/96/EC
Article 14(1)(a)
Second and third sentences of Article 21(3)
Electricity used to produce electricity and to maintain the ability to produce electricity
Exemption
Scope
Opencast mining operations
Electricity used in order to operate fuel bunkers and means of transport

This request for a preliminary ruling concerns the interpretation of Article 14(1)(a) and Article 21(3) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).
The request has been made in proceedings between RWE Power Aktiengesellschaft and the Hauptzollamt Duisburg (Principal Customs Office, Duisburg, Germany) concerning the latter’s refusal to exempt from taxation the electricity used by RWE Power, in 2003 and 2004, in the course of its opencast mining operations and in the production of electricity in its power stations.

Legal context

European Union law
Recitals 2 to 5 and 24 of Directive 2003/96 are worded as follows:
‘(2)      The absence of Community provisions imposing a minimum rate of taxation on electricity and energy products other than mineral oils may adversely affect the proper functioning of the internal market.
(3)      The proper functioning of the internal market and the achievement of the objectives of other Community policies require minimum levels of taxation to be laid down at Community level for most energy products, including electricity, natural gas and coal.
(4)      Appreciable differences in the national levels of energy taxation applied by Member States could prove detrimental to the proper functioning of the internal market.
(5)      The establishment of appropriate Community minimum levels of taxation may enable existing differences in the national levels of taxation to be reduced.
…
(24)      Member States should be permitted to apply certain other exemptions or reduced levels of taxation, where that will not be detrimental to the proper functioning of the internal market and will not result in distortions of competition.’
Article 1 of that directive provides:
‘Member States shall impose taxation on energy products and electricity in accordance with this Directive.’
Article 2(1)(b) of Directive 2003/96 provides that, for the purposes of that directive, the term ‘energy products’ applies to, inter alia, products falling within CN code 2702, which covers ‘lignite, whether or not agglomerated, excluding jet’.
Article 14 of that directive states:
‘1.      In addition to the general provisions set out in [Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), as amended by Council Directive 2000/47/EC of 20 July 2000 (OJ 2000 L 193, p. 73),] on exempt uses of taxable products, and without prejudice to other Community provisions, Member States shall exempt the following from taxation under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse:
(a)      energy products and electricity used to produce electricity and electricity used to maintain the ability to produce electricity. However, Member States may, for reasons of environmental policy, subject these products to taxation without having to respect the minimum levels of taxation laid down in this Directive. In such case, the taxation of these products shall not be taken into account for the purpose of satisfying the minimum level of taxation on electricity laid down in Article 10;
…
(c)      energy products supplied for use as fuel for the purposes of navigation within Community waters (including fishing), other than private pleasure craft, and electricity produced on board a craft.
…
2.      Member States may limit the scope of the exemptions provided for in paragraph 1(b) and (c) to international and intra-Community transport. In addition, where a Member State has entered into a bilateral agreement with another Member State, it may also waive the exemptions provided for in paragraph 1(b) and (c). In such cases, Member States may apply a level of taxation below the minimum level set out in this Directive.’
Under Article 21(3) of Directive 2003/96:
‘The consumption of energy products within the curtilage of an establishment producing energy products shall not be considered as a chargeable event giving rise to taxation, if the consumption consists of energy products produced within the curtilage of the establishment. Member States may also consider the consumption of electricity and other energy products not produced within the curtilage of such an establishment and the consumption of energy products and electricity within the curtilage of an establishment producing fuels to be used for generation of electricity as not giving rise to a chargeable event. Where the consumption is for purposes not related to the production of energy products and in particular for the propulsion of vehicles, this shall be considered a chargeable event, giving rise to taxation.’
The third subparagraph of Article 21(5) of that directive states:
‘An entity producing electricity for its own use is regarded as a distributor. Notwithstanding Article 14(1)(a), Member States may exempt small producers of electricity provided that they tax the energy products used for the production of that electricity.’

German law
In Germany, electricity tax is governed, in particular, by the Stromsteuergesetz (Law on Electricity Tax) of 24 March 1999 (BGBl. 1999 I, p. 378, and BGBl. 2000 I, p. 147), as amended by the Law of 23 December 2002 (BGBl. 2002 I, p. 4602), and the Law of 29 December 2003 (BGBl. 2003 I, p. 3076), applicable to the financial years 2003 and 2004 (‘the StromStG’).
Paragraph 9(1), point 2, of the StromStG provides that electricity which is extracted in order to produce electricity is exempt from electricity tax.
Paragraph 11 of the StromStG authorises the Federal Ministry of Finance to adopt by legal regulation, inter alia, provisions in order to implement the tax advantages provided for in Paragraph 9 of the StromStG.
The relevant legal regulation enacted by that ministry, namely the Verordnung zur Durchführung des Stromsteuergesetzes (Regulation implementing the Law on Electricity Tax) of 31 May 2000 (BGBl. 2000 I, p. 794), provides, in Paragraph 12(1), point 1, thereof, that the concept of ‘electricity …  extracted in order to produce electricity’, within the meaning of Paragraph 9(1), point 2, of the StromStG, covers electricity which is used, within the technical meaning of the term, in the ancillary and auxiliary systems of an electricity production plant in order to produce electricity, in particular for the purposes of water treatment, steam generator water supply, fresh air supply, fuel supply or flue gas purification.

The dispute in the main proceedings and the questions referred for a preliminary ruling
RWE Power operated three opencast lignite mines on different sites in the Rhenish mining area, from which it extracted lignite which was intended primarily for the production of electricity in its power stations. Approximately 10% was intended for the production of lignite briquettes and pulverised lignite in its factories.
In 2004, RWE Power extracted a total of 2 847 925.939 megawatt hours (MWh) of electricity from the opencast mines, which it used, in essence: (i)  in water pumps used to lower the groundwater level, (ii) in large equipment such as bucket-wheel excavators, which mined lignite and overburden, and spreaders, which backfilled the opencast mine with overburden in another part of the mine, (iii) for lighting the opencast mine, and (iv) for transporting lignite using electrically operated freight trains on the company’s own lines and using electrically operated conveyor systems that transported both lignite and overburden.
The operation of RWE Power’s power stations was designed for uninterrupted electricity production. In order to guarantee this, RWE Power kept lignite bunkers, from which coal was gradually fed to the boilers in the power stations. The lignite was stored in each of the opencast mines. It was then transported from those mines to the power stations’ bunkers via a conveyor system or via the company’s own electric railway. From there, electrically operated excavators loaded the lignite onto a conveyor which transported it to crushers.  Lastly, the crushed lignite was fed into the boiler bunkers.
In the context of a tax inspection ordered by the Principal Customs Office, Duisburg, it was found, in a report of 20 May 2009, that the preparation of the lignite fell to be classified as ‘fuel production’ and was, therefore, subject to electricity tax. The same classification was held to apply with regard to all electricity extracted in order to mine and transport lignite, with the result that electricity tax was also due in respect of the electricity consumed in using excavators, conveyor systems and crushers.
After the rejection of the objection lodged by it  in respect of the tax assessment notice issued on 8 October 2009 by the Principal Customs Office, Duisburg, following that tax inspection, RWE Power has brought an action before the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany) (the referring court).
Before that court, RWE Power has reiterated its view that, under Directive 2003/96, all the electricity necessary for the process of electricity production must be covered by the tax exemption. All ancillary and auxiliary systems without which an electricity production plant cannot be operated should in principle be covered by the exemption from electricity tax. The lignite should therefore be regarded as fuel, with the result that electricity extracted for the purposes of mining and transporting that lignite  in opencast mines is also exempt from electricity tax.
The referring court has doubts as to the exact scope of the exemption provided for in Article 14(1)(a) of Directive 2003/96.
In those circumstances, the Finanzgericht Düsseldorf (Finance Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Having regard to the second sentence of Article 21(3) of [Directive 2003/96], can the first sentence of Article 14(1)(a) of [that directive], in so far as it provides that electricity used to produce electricity is to be exempt from taxation, be interpreted as meaning that that exemption also covers operations in which energy products are extracted in opencast mines and made more suitable for use in power stations, such as the operations of breaking the products down, separating foreign matter from them and crushing them down to the size operationally required by the boiler?
(2)      Having regard to the third sentence of Article 21(3) of Directive 2003/96, can the first sentence of Article 14(1)(a) of [that directive], in so far as it provides that electricity used to maintain the ability to produce electricity is to be exempt from taxation, be interpreted as meaning that the use of electricity to operate bunker installations and means of transport necessary for the permanent operation of power stations must also be exempt from taxation under that provision?’

Consideration of the questions referred

The first question
By its first question, the referring court asks, in essence, whether the first sentence of Article 14(1)(a) of Directive 2003/96, read in conjunction with the second sentence of Article 21(3) of that directive, is to be interpreted as meaning that the tax exemption for ‘electricity used to produce electricity’ laid down in that provision covers the electricity used in connection with the extraction of an energy product, such as lignite, from an opencast mine and the subsequent conversion and processing of that energy product in power stations in order to produce electricity.
In accordance with the first sentence of Article 14(1)(a) of Directive 2003/96, the Member States are to exempt from taxation, under conditions which they are to lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse, energy products and electricity used to produce electricity, as well as electricity used to maintain the ability to produce electricity.
The first sentence of paragraph 3 of Article 21 of Directive 2003/96 establishes that the consumption of energy products within the curtilage of an establishment producing energy products is not to be considered as a chargeable event giving rise to taxation on energy products if the consumption consists of energy products produced within the curtilage of the establishment. The second sentence of that paragraph indicates that Member States may also consider the consumption of electricity and other energy products not produced within the curtilage of such an establishment, as well as the consumption of energy products and electricity within the curtilage of an establishment producing fuels to be used for the generation of electricity, as not giving rise to a chargeable event.
As a preliminary point, it must be recalled that the objective of Directive 2003/96 is, as is apparent from recitals 3 to 5 and Article 1 thereof, to create a system of harmonised taxation for energy products and electricity, within the framework of which taxation is the rule, in accordance with the conditions set out in that directive (judgment of 3 December 2020,
Repsol Petróleo
, C‑44/19, EU:C:2020:982, paragraph 21).
Furthermore, according to settled case-law, provisions concerning exemptions provided for by Directive 2003/96 must be given an autonomous interpretation, based on their wording, the scheme of that directive, and the objectives pursued by that directive (judgment of 7 March 2018,
Cristal Union
, C‑31/17, EU:C:2018:168, paragraph 21 and the case-law cited).
In the first place, as regards the wording of the first sentence of Article 14(1)(a) of Directive 2003/96, it is apparent from the terms ‘energy products and electricity used to produce electricity’ in that provision that the use of the electricity is characterised in two respects.
First, the use of electricity must take place in the context of the production of electricity by contributing directly to the technological process of that production (see, to that effect, judgment of 3 December 2020,
Repsol Petróleo
, C‑44/19, EU:C:2020:982, paragraph 34 and the case-law cited). It follows that, as the Advocate General stated, in essence, in points 53 to 55 of his Opinion, the use of electricity in order to convert and process an energy product such as lignite, in processes such as crushing, removal of foreign bodies, grinding, and drying, may be covered by the exemption provided for in the first sentence of Article 14(1)(a) of Directive 2003/96 where those operations are essential and contribute directly to the process  of electricity production. By contrast, as the Advocate General observed in point 39 of his Opinion, the tax exemption under that provision does not cover the use of electricity which merely takes place during the electricity production process, as is the case, inter alia, with electricity consumed in the administrative buildings of power stations.
Second, the tax exemption presupposes that the electricity is used to produce electricity, and not to manufacture an energy product, such as lignite. It follows that, as the Advocate General remarked in points 50 and 51 of his Opinion, in so far as electricity is used in any operation relating to lignite production, in particular in  the mining of lignite and the transportation thereof for storage purposes, that consumption is not covered by the exemption provided for in the first sentence of Article 14(1)(a) of Directive 2003/96.
It is irrelevant in that regard that a raw material, such as lignite, is extracted from a mine in order to be used, thereafter, in an integrated electricity production process which takes place on the same production site or, at the very least, in the vicinity of the place of extraction, with the result that the mining of lignite and the transportation  thereof  constitute intermediate steps inherent in that particular method of electricity production. The very fact that the electricity used results in the production of electricity only through an energy product, which, in principle, is itself subject to taxation under Directive 2003/96, shows that that electricity does not contribute ‘directly’ to the technological process of electricity production, contrary to the requirement set out in paragraph 27 of the present judgment.
In the second place, as regards the scheme of Directive 2003/96, it should be recalled that that directive does not seek to establish general exemptions. Thus, since Article 14(1) of Directive 2003/96 sets out an exhaustive list of the exemptions which Member States must apply in connection with the taxation of energy products and electricity, its provisions cannot be interpreted broadly without depriving the harmonised taxation established by that directive of all practical effect (judgments of 7 March 2018,
Cristal Union
, C‑31/17, EU:C:2018:168, paragraphs 24 and 25, and of 7 November 2019,
Petrotel-Lukoil
, C‑68/18, EU:C:2019:933, paragraph 40).
Therefore, while it is conceivable that any instance of electricity consumption, whatever the stage of the electricity production process at which it takes place, is not unrelated to the electricity ultimately produced, the fact remains that, in order to preserve the effectiveness of the exceptional nature of the tax exemption, it must be held that only a use which contributes directly to the technological process of electricity production is covered by the tax exemption under that provision, to the exclusion, in particular, of any instance of electricity production occurring at an earlier stage for the purposes of manufacturing an intermediate energy product which is itself used to produce electricity at a later stage.
In that context, it should be recalled that the Court has held, with regard to the tax exemption provided for in Article 14(1)(c) of Directive 2003/96, according to which energy products supplied for use as fuel for the purposes of navigation within Community waters (including fishing), other than private pleasure craft, and electricity produced on board a craft are exempt from taxation, the application of that exemption requires that the navigation operations be used directly for the supply of a service for consideration and not in any other way (see, to that effect, judgment of 13 July 2017,
Vakarų Baltijos laivų statykla
, C‑151/16, EU:C:2017:537, paragraphs 29 and 30).
That interpretation is supported by the provisions of the second sentence of Article 21(3) of Directive 2003/96, according to which, inter alia, Member States may, by way of derogation, consider the consumption of electricity not produced within the curtilage of an establishment producing energy products, as well as the consumption of electricity within the curtilage of an establishment producing fuels to be used for the generation of electricity, as not giving rise to a chargeable event.
As the Advocate General observed in point 59 of his Opinion, that optional exemption would be rendered redundant if the electricity used in the manufacture of an energy product, itself used to produce electricity, was already covered by the compulsory exemption provided for in the first sentence of Article 14(1)(a) of that directive, solely on account of the proximity of the two places of production. In the present case, however, according to the information in the order for reference, the Federal Republic of Germany has not made use of the option provided for in the second sentence of Article 21(3) of that directive.
In the third place, as regards the objectives pursued by Directive 2003/96, it must be observed, first of all, that that directive, by making provision for a system of harmonised taxation of energy products and electricity, seeks, as is apparent from recitals 2 to 5 and 24 thereof, to promote the proper functioning of the internal market in the energy sector by avoiding, in particular, distortions of competition (judgment of 7 March 2018,
Cristal Union
, C‑31/17, EU:C:2018:168, paragraph 29).
To that end, with regard to the production of electricity, the EU legislature made the choice, as is apparent from, in particular, page 5 of the Explanatory Memorandum to the Proposal for a Council Directive restructuring the Community framework for the taxation of energy products (OJ 1997 C 139, p. 14), to require Member States, in accordance with Article 1 of Directive 2003/96, to tax the electricity produced; the energy products used to produce that electricity must, as a corollary, be exempted from taxation in order to avoid the double taxation of electricity (see, to that effect, judgment of 7 March 2018,
Cristal Union
, C‑31/17, EU:C:2018:168, paragraph 30).
If the electricity used for the production of electricity by a production plant, such as that at issue in the main proceedings, was not exempt from taxation under the first sentence of Article 14(1)(a) of Directive 2003/96, this would entail precisely a risk of double taxation, since the electricity thus  produced would, in accordance with Article 1 of that directive, also be taxed.
It is true that Directive 2003/96 does not exclude all risk of double taxation, since a Member State, in accordance with the second sentence of Article 14(1)(a) of that directive, may, for reasons of environmental policy,  subject energy products used to produce electricity to taxation (see, to that effect, judgment of 4 June 2015,
Kernkraftwerke Lippe-Ems
, C‑5/14, EU:C:2015:354, paragraph 51).
However, as the defendant in the main proceedings and the European Commission have rightly argued, if the electricity used for the mining and transportation of lignite was not subject to taxation, with the exception of the cases referred to in the second sentence of Article 21(3) of Directive 2003/96, there would be unequal treatment between undertakings which, like RWE Power, operate power stations and extract lignite for the production of electricity, on the one hand, and undertakings which acquire lignite from third parties for the production of electricity, on the other, as a result of different tax charges, which would constitute a source of distortion of competition (see, to that effect, judgment of 27 June 2018,
Turbogás
, C‑90/17, EU:C:2018:498, paragraph 42).
It is true that RWE Power argues that, because there is no national and international lignite supply market, a lignite-fired power station cannot operate unless it is in the vicinity of an opencast mine. Since lignite is not supplied over long distances, any economically efficient exploitation would require an exploitation model based on an integrated process concept, which would include both the mining and transportation of lignite as a raw material for boiler heating and the resulting production of electricity.
However, those considerations, even if they were established, do not call into question the analysis set out in paragraph 39 of the present judgment, since the exemption of electricity used to produce lignite, by favouring integrated undertakings, such as RWE Power, would, in any event, lead to a distortion of competition on the electricity market.
The answer to the first question is therefore that the first sentence of Article 14(1)(a) of Directive 2003/96, read in conjunction with the second sentence of Article 21(3) of that directive, must be interpreted as meaning that the tax exemption for ‘electricity used to produce electricity’ laid down in that provision does not cover the electricity used in connection with the extraction of an energy product, such as lignite, from an opencast mine, where that electricity is used not in the technological process of electricity production, but for the manufacture of an energy product. Conversely, that exemption may cover the subsequent conversion and processing of that energy product in power stations in order to produce electricity, provided that those operations are essential and contribute directly to the technological process of that production.

The second question
By its second question, the referring court asks, in essence, whether the first sentence of Article 14(1)(a) of Directive 2003/96, read in conjunction with the third sentence of Article 21(3) of that directive, is to be interpreted as meaning that the tax exemption for ‘electricity used to maintain the ability to produce electricity’ laid down in that provision covers electricity intended for the operation of  storage facilities for an energy product, such as lignite, and of means of transport allowing that product to be transported from opencast mines to power stations.
In that regard, it should be noted at the outset that the tax exemption for electricity used to maintain the ability to produce electricity appears in the first sentence of Article 14(1)(a) of Directive 2003/96, in the same way as the exemption for energy products and electricity used to produce electricity.
In those circumstances, it must be held that that provision sets out two scenarios,  the respective scopes of which cannot be confused, as otherwise one or the other of those scenarios  would be deprived of all practical effect.
Furthermore, as the Advocate General explained in point 67 of his Opinion, that interpretation is borne out by the legislative history of Directive 2003/96. In the Commission’s  original proposal a tax exemption was provided only, in essence, for the first of those scenarios  (see Article 13(1)(b) of the Commission’s proposal (OJ 1997 C 139, p. 14)). The second scenario was added by the Council of the European Union only at a later stage of the legislative procedure. It must be concluded from this that, by that addition, the EU legislature intended to create an additional tax exemption  scenario, covering a different situation from that covered by the first scenario.
It follows that the tax exemption provided for in the second scenario does not cover activities relating to the production of electricity, but the use of electricity upstream and downstream of that production where that use serves to maintain the ability to produce electricity.
In a similar vein to what has been held in paragraphs 26 to 42 of the present judgment in respect of the first scenario, it must be held, as regards the tax exemption for electricity used to maintain the ability to produce electricity, that that exemption must also be interpreted restrictively, so that its application requires electricity to be used to maintain directly capacity for the technological process of electricity production.
In the present case, it is apparent from the order for reference that the operation of RWE Power’s power stations was designed for uninterrupted electricity production. In order to ensure such electricity production, RWE Power operated bunkers in three different sizes, each serving a different function, from which lignite was gradually fed to the boilers in the power stations. More specifically, in each opencast mine, the lignite was initially stored in an opencast mining bunker with a bunker capacity allowing operation of the power station for up to six days and was subsequently transported to the power station bunkers which had a capacity allowing operation of the power station for one to two days.
On the basis of that factual description, it appears, subject to verification by the referring court, that only the operations relating to lignite storage and transportation taking place in the power station can be regarded as essential and as contributing directly to maintaining capacity for the technological process of electricity production in so far as those operations are required to guarantee maintenance of capacity for uninterrupted electricity production, with the result that such operations may be exempt under the first sentence of Article 14(1)(a) of Directive 2003/96.
Conversely, the lignite storage operations taking place in the opencast mines appear to be more closely related, which it is for the referring court to verify, to the lignite extraction process than to the technological process of electricity production. To that extent, the electricity used to store lignite in those mines would not be covered by that exemption.
It must also be stated, in that context, that the third sentence of Article 21(3) of Directive 2003/96, mentioned by the referring court, under which the consumption of electricity for purposes not related to the manufacture of energy products, such as, inter alia, the propulsion of vehicles, is to be considered a chargeable event giving rise to taxation, is irrelevant in the present case. In so far as it concerns the use of electricity referred to in the second sentence of Article 21(3) of that directive, that third sentence concerns an optional system which, as has been noted in paragraph 34 of the present judgment, has not been implemented by the Federal Republic of Germany. Furthermore, the sole purpose of the third sentence of Article 21(3) is to restrict the scope of the exemptions referred to in the first and second sentences thereof.
In the light of the foregoing considerations, the answer to the second question is that the first sentence of Article 14(1)(a) of Directive 2003/96 must be interpreted as meaning that the tax exemption for ‘electricity used to maintain the ability to produce electricity’ laid down in that provision may cover electricity intended for the operation of storage facilities for an energy product, such as lignite, and of means of transport allowing that product to be transported, where those operations take place inside power stations, provided that they are essential and contribute directly to maintaining capacity for the technological process of electricity production,  inasmuch as such operations are required to guarantee maintenance of capacity for uninterrupted electricity production.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
(1)

The first sentence of Article 14(1)(a) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, read in conjunction with the second sentence of Article 21(3) of that directive,
must be interpreted as meaning that the tax exemption for ‘electricity used to produce electricity’ laid down in that provision does not cover the electricity used in connection with the extraction of an energy product, such as lignite, from an opencast mine, where that electricity is used not in the technological process of electricity production, but for the manufacture of an energy product. Conversely, that exemption may cover the subsequent conversion and processing of that energy product in power stations in order to produce electricity, provided that those operations are essential and contribute directly to the technological process of that production.
(2)

The first sentence of Article 14(1)(a) of Directive 2003/96
must be interpreted as meaning that the tax exemption for ‘electricity used to maintain the ability to produce electricity’ laid down in that provision may cover electricity intended for the operation of storage facilities for an energy product, such as lignite, and of means of transport allowing that product to be transported, where those operations take place inside power stations, provided that they are essential and contribute directly to maintaining capacity for the technological process of electricity production, inasmuch as such operations are required to guarantee maintenance of capacity for uninterrupted electricity production.
[Signatures]
*
Language of the case: German.