# C_2023155EN.01001601.xml

| 2.5.2023 | EN | Official Journal of the European Union | C 155/16 |
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2.5.2023

EN

Official Journal of the European Union

C 155/16

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Judgment of the Court (Fifth Chamber) of 9 March 2023 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — RWE Power Aktiengesellschaft v Hauptzollamt Duisburg

(Case C-571/21, (1) RWE Power)

(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)

(2023/C 155/18)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: RWE Power Aktiengesellschaft

Defendant: Hauptzollamt Duisburg

Operative part of the judgment

| 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. |
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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. |
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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.

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(1)  OJ C 490, 6.12.2021.

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