# C_2014085EN.01001602.xml

| 22.3.2014 | EN | Official Journal of the European Union | C 85/16 |
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22.3.2014

EN

Official Journal of the European Union

C 85/16

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Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 7 January 2014 — Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabrück

(Case C-5/14)

2014/C 85/29

Language of the case: German

Referring court

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Parties to the main proceedings

Applicant: Kernkraftwerke Lippe-Ems GmbH

Applicant:

Defendant: Hauptzollamt Osnabrück

Defendant:

Questions referred

Questions referred

| 1. | Does the second sentence, in conjunction with the first sentence, [b], of Article 267 of the Treaty on the Functioning of the European Union (TFEU) justify a court of a Member State in referring to the Court of Justice of the European Union questions on the interpretation of EU law which have been put to the national court in connection with the legality of a national law, even if the national court not only has doubts concerning the legality of the national law under EU law, but is also certain that the national law is inconsistent with the national Constitution and therefore, in a parallel case, the national court has already sought a decision from the Constitutional Court which, under national law, alone has jurisdiction to decide on the constitutionality of laws, but the Constitutional Court has not yet given a decision?
  If question 1 is answered in the affirmative: |
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1.

Does the second sentence, in conjunction with the first sentence, [b], of Article 267 of the Treaty on the Functioning of the European Union (TFEU) justify a court of a Member State in referring to the Court of Justice of the European Union questions on the interpretation of EU law which have been put to the national court in connection with the legality of a national law, even if the national court not only has doubts concerning the legality of the national law under EU law, but is also certain that the national law is inconsistent with the national Constitution and therefore, in a parallel case, the national court has already sought a decision from the Constitutional Court which, under national law, alone has jurisdiction to decide on the constitutionality of laws, but the Constitutional Court has not yet given a decision?

If question 1 is answered in the affirmative:

| 2. | Do Directives 2008/118/EC (1) and 2003/96/EC, (2) which were adopted for the harmonization of excise duty and for energy products and electricity in the Union, preclude the introduction of a national duty which is levied on nuclear fuels used for the commercial production of electricity? Does this depend on whether the national duty can be expected to be passed on to consumers by means of the electricity price and, if appropriate, what is meant by ‘passed on’? |
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2.

Do Directives 2008/118/EC (1) and 2003/96/EC, (2) which were adopted for the harmonization of excise duty and for energy products and electricity in the Union, preclude the introduction of a national duty which is levied on nuclear fuels used for the commercial production of electricity? Does this depend on whether the national duty can be expected to be passed on to consumers by means of the electricity price and, if appropriate, what is meant by ‘passed on’?

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| 3. | Can an undertaking resist a duty which a Member State imposes in order to raise revenue on the use of nuclear fuels for the commercial production of electricity, by objecting that the levying of the duty constitutes aid contrary to EU law under article 107 TFEU?
  If the answer to the previous question is in the affirmative:
  Does the German Kernbrennstoffsteuergesetz (Law on excise duty on nuclear fuel, under which a tax for raising revenue is imposed only on undertakings which produce electricity commercially by using nuclear fuels, constitute a State aid within the meaning of Article 107 TFEU? What circumstances are to be taken into account in considering whether other undertakings which are not taxed in the same way are in a similar factual and legal situation? |
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3.

Can an undertaking resist a duty which a Member State imposes in order to raise revenue on the use of nuclear fuels for the commercial production of electricity, by objecting that the levying of the duty constitutes aid contrary to EU law under article 107 TFEU?

If the answer to the previous question is in the affirmative:

Does the German Kernbrennstoffsteuergesetz (Law on excise duty on nuclear fuel, under which a tax for raising revenue is imposed only on undertakings which produce electricity commercially by using nuclear fuels, constitute a State aid within the meaning of Article 107 TFEU? What circumstances are to be taken into account in considering whether other undertakings which are not taxed in the same way are in a similar factual and legal situation?

| 4. | Is the levying of the German nuclear fuel duty inconsistent with the provisions of the Treaty establishing the European Atomic Energy Community (EURATOM)? |
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4.

Is the levying of the German nuclear fuel duty inconsistent with the provisions of the Treaty establishing the European Atomic Energy Community (EURATOM)?

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(1)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

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(2)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (Text with EEA relevance) (OJ 2003 L 283, p. 51).

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