Opinion of the Advocate General — ECLI:EU:C:2015:51
Date: 2015-02-03
Language of the case: German
Subject matter: State aids;Competition;Energy;Taxation
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 4 June 2015 1. Questions referred for a preliminary ruling — Reference to the Court — Jurisdiction of national courts — Examination of whether national legislation complies with both EU law and with the national constitution — Interlocutory procedure for review of constitutionality — Discretion enjoyed by a national court to make a reference for a preliminary ruling (Art. 267 TFEU) 2. Tax provisions — Harmonisation of laws — Taxation of energy products and electricity and excise duty — Directives 2003/96 and 2008/118 — National legislation introducing, for a specific period, a duty on the use of nuclear fuel for the commercial production of electricity — Lawfulness Council Directives 2003/96, Arts 2(1) and 14(1)(a), and 2008/118, Art. 1(1) and (2)) 3. State aid — Concept — Selective nature of the measure — National legislation introducing, for a specific period, a duty on the use of nuclear fuel for the commercial production of electricity — Not included (Art. 107 TFEU) 4. EAEC — Nuclear common market — Nature — Relationship with the general common market — Competence of the Community — Free movement of goods — Customs duties — Charges having equivalent effect — Internal taxation — National legislation introducing, for a specific period, a duty on the use of nuclear fuel for the commercial production of electricity — Not included (Arts 1(2) EA, 2(d) EA, 93(1) EA, 191 EA and 192(2) EA; Protocol on the privileges and immunities of the European Union, Art. 3(1)) 1. Article 267 TFEU must be interpreted as meaning that a national court which has doubts as to whether national legislation is compatible with both EU law and with the Constitution of the Member State concerned neither loses the right nor, as the case may be, is exempt from the obligation to submit questions to the Court of Justice concerning the interpretation or validity of that law, on the ground that an interlocutory procedure for review of the constitutionality of that legislation is pending before the national court responsible for carrying out such review. First, national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part. Second, the effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of the fact that an interlocutory procedure for review of constitutionality is pending, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law. Lastly, the existence of a national procedural rule cannot call into question the discretion enjoyed by national courts to make a reference to the Court of Justice for a preliminary ruling where they have doubts, as in the case before the referring court, as to the interpretation of EU law. (see paras 31, 36, 37, 39, operative part 1) 2. Article 14(1)(a) of Directive 2003/96 restructuring the Community framework for the taxation of energy products and electricity and Article 1(1) and (2) of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12 are to be interpreted as not precluding national legislation which levies a duty on the use of nuclear fuel for the commercial production of electricity. Article 14 of that directive sets out an exhaustive list of the exemptions which the Member States must apply in connection with the taxation of energy products and electricity and defines clearly the products covered by the exemption. As regards the first of those provisions, Article 2(1) of Directive 2003/96 defines ‘energy products’ for the purposes of that directive by drawing up an exhaustive list of the products covered by that definition by reference to the codes of the combined nomenclature. As it does not appear on that list, nuclear fuel does not constitute an energy product for the purposes of Directive 2003/93 and it is not, therefore, covered by the exemption laid down in Article 14(1)(a) of that directive. Moreover, if the operation of Articles 2(1) and 14(1)(a) of Directive 2003/96 is not to be radically changed, any inconsistency between national legislation and EU policy on reduction of CO2 emissions cannot, contrary to the clear intention of the EU legislature, justify interpreting those provisions as being applicable to products other than energy products and electricity within the meaning of that directive. As regards Article 1(1) and (2) of Directive 2008/118, a tax introduced by national law which is not levied directly or indirectly on the consumption of electricity covered by Directive 2003/96 or that of any other excise product, does not fall within Article 1(1) or (2)of Directive 2008/118. That is the case as regards a duty which, first, is payable when fuel assemblies or individual fuel rods are used for the first time in a nuclear reactor, starting a self-sustaining chain reaction, for the commercial production of electricity and is levied on the electricity producer, and, second, is calculated on the basis of the amount of nuclear fuel used, a common rate being applied to all types of such fuel, whereas the amount of electricity produced by the reactor of a nuclear power station is not directly commensurate with the amount of nuclear fuel used, but may vary according to the nature and properties of the fuel used and the yield level of the reactor concerned, and that duty could be levied on the basis that a self-sustaining chain reaction has been started, without any electricity having necessarily even been produced or, as a consequence, consumed. (see paras 45-48, 52, 62-64, 66, 68, operative part 2) 3. Article 107 TFEU must be interpreted as not precluding national legislation which introduces for a specific period a duty on the use of nuclear fuel for the commercial production of electricity with a view to raising revenue intended, inter alia, to contribute, in the context of fiscal consolidation and in accordance with the polluter-pays principle, to a reduction in the burden entailed for the national budget by the rehabilitation required at a mining site where radioactive waste from the use of nuclear fuel is stored. Methods of producing electricity, other than that based on nuclear fuel, are not affected by the rules introduced by the national legislation at issue and they are not, in the light of the objective pursued by those rules, in a factual and legal situation that is comparable to that of the production method based on nuclear fuel, as only that method generates radioactive waste arising from the use of such fuel. It follows that such legislation is not a selective measure, for the purpose of Article 107(1) TFEU, and it does not therefore constitute State aid prohibited by that provision. (see paras. 78-80, 82, operative part 3) 4. The first paragraph of Article 93 EA, Article 191 EA, in conjunction with the first paragraph of Article 3 of the Protocol (No 7) on the Privileges and Immunities of the European Union annexed to the EU, FEU and EAEC Treaties, and the second paragraph of Article 192 EA, in conjunction with the second paragraph of Article 1 EA and Article 2(d) EA, are to be interpreted as not precluding national legislation which imposes a duty on the use of nuclear fuel for the commercial production of electricity. In the first place, the first paragraph of Article 93 EA, together with the other provisions of Chapter 9 in Title II of the EAEC Treaty, constitute the application, in a highly specialised field, of the legal conceptions which form the basis of the structure of the general common market. In that regard, while the essential feature of a charge having equivalent effect to a customs duty is that it is borne specifically by an imported product, to the exclusion of the similar domestic product, a charge borne by a product imported from another Member State, when there is no identical or similar domestic product, does not constitute a charge having equivalent effect if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products. It follows that a duty levied not because nuclear fuel has crossed a frontier but because it is used for the commercial production of electricity, irrespective of the source of that fuel, the rate of taxation or the person liable for payment of the duty, does not constitute a charge having equivalent effect to a customs duty. In the second place, with regard to Article 191 EA and the first paragraph of Article 3 of the Protocol, it is apparent from the combined application of those provisions that the European Atomic Energy Community (EAEC), its assets, revenues and other property are exempt from all direct taxes. A duty on the use of nuclear fuel that is introduced for the commercial production of electricity, not as a direct tax on that fuel, forms part of the right to use and consume that fuel. That right belongs to Member States, persons or undertakings when that fuel has properly come into their possession, even though, under Article 86 EA, nuclear fuel for the commercial production of electricity is the property of the EAEC. Lastly, the implementation of the obligation laid down in Article 2(d) EA is the subject of Chapter 6 in Title II of the EAEC Treaty (Articles 52 to 76), which establishes a common supply policy for ores, source materials and special fissile materials. The duty in question, which undoubtedly has the effect of making the use of nuclear fuel for the commercial production of electricity more costly, does not constitute an infringement of the Member States’ obligations set out in those provisions and, in general terms, does not conflict with the principles underlying that policy, in particular the principle of equal access to resources set out in Article 52 EA or the principles relating to price setting set out in Articles 67 EA and 69 EA. That duty is not liable to affect the supply of fuel to operators of nuclear power stations as it is levied not on the purchase of nuclear fuel but on the use of such fuel. It follows that the duty in question is not liable to jeopardise the fulfilment of the EAEC’s duty to ensure that all that community’s users receive a regular and equitable supply of ores and nuclear fuels, laid down in Article 2(d) EA. (see paras 86, 89-92, 94-97, 103-105, operative part 4)