Information;Order — ECLI:EU:C:2025:588
Date: 2025-07-08
Language of the case: German
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-148/25 – 1 
Case C-148/25 
Request for a preliminary ruling 
Date lodged: 
17 February 2025 
Referring court: 
Finanzgericht Düsseldorf (Germany) 
Date of the decision to refer: 
28 January 2025 
Applicant: 
Emscher Aufbereitung GmbH 
Defendant: 
Hauptzollamt Duisburg 
 
4 K 1692/24 AO 
FINANZGERICHT DÜSSELDORF 
ORDER 
In the case of 
Emscher Aufbereitung GmbH, […] Duisburg, 
– Applicant – 
[…] […] 
v Hauptzollamt Duisburg, […] Duisburg,  
[…] 
 
– Defendant – 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 1. 2025 – CASE C-148/25 
 
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concerning interest for energy tax reductions 
The Fourth Chamber […] 
on 28 January 2025, ordered as follows: 
The proceedings are stayed. 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to the second paragraph of Article 267 of the 
Treaty on the Functioning of the European Union: 
Is interest precluded, on the basis of the case-law of the Court of Justice of the 
European Union, under EU law principles, where an authority has refused to grant 
a tax advantage provided for under national law on the ground that the energy 
product in question was not used for the intended purpose and did not therefore 
have a dual use within the meaning of the second indent of Article 2(4)(b) of 
Council Directive 2003/96/EC of 27 October 2003 restructuring the Community 
framework for the taxation of energy products and electricity (OJ EU L 283/51)? 
[…] 
Grounds 
I. 
1 The applicant operated coal-grinding plants for the production of coal dust by 
grinding and drying raw coal. To that end, it used taxed natural gas. It used the 
flue gas produced by the combustion of the natural gas not only for the thermal 
energy, but also to produce an inert gas which ensured the operation of the plant 
was explosion-proof. 
2 On an application to that effect, the defendant Hauptzollamt (principal customs 
office) paid the applicant a tax relief in the amount of EUR 832 129.32, for the use 
of natural gas, for the calendar year 2012, in accordance with 
Paragraph 51(1)(1)(d) of the Energiesteuergesetz (German Law on Energy Tax; 
‘the EnergieStG’). 
3 Following an external audit, the defendant principal customs office, by decision of 
7 February 2014, sought repayment of tax relief in the amount of EUR 311 110.02 
which it believed was incorrectly granted under Paragraph 51(1)(1)(d) of the 
EnergieStG. The applicant filed an objection thereto. The applicant paid the 
requested amount to the defendant principal customs office on 25 February 2014. 
4 After unsuccessful opposition proceedings, the applicant brought an action against 
the decision of 7 February 2014 before the Finanzgericht (Finance Court) on 
19 October 2017. 
EMSCHER AUFBEREITUNG 
 
3 
5 By judgment of 30 October 2019, the Senate set aside the decision of 7 February 
2014, because the natural gas was used not only for heating, but primarily to 
produce the inert gas and that constituted a dual use within the meaning of 
Paragraph 51(1)(1)(d) of the EnergieStG and the second indent of Article 2(4)(b) 
of Council Directive 2003/96/EEC (Directive 2003/96) of 27 October 2003 
restructuring the Community framework for the taxation of energy products and 
electricity (OJ EU L 283/51). In the appeal on a point of law regarding the 
decision of the defendant principal customs office, the German Bundesfinanzhof 
(Federal Finance Court) set aside the Chamber’s judgment of 30 October 2019 
and referred the case back to the Finanzgericht Düsseldorf (Finance Court, 
Düsseldorf) for a further hearing and decision. The adjudicating Chamber then set 
aside the decision of 7 February 2014 by judgment of 8 March 2023. That 
judgment has become final. The defendant principal customs office then, by 
decision of 17 May 2023, repaid the applicant energy tax in the amount of 
EUR 312 123.28 and determined the amount of legal interest in its favour. 
6 In May 2023, the applicant applied to the defendant principal customs office to 
determine interest on the amount it had repaid based on the decision of 7 February 
2014, from the date on which it was paid until the date on which the action was 
brought before the Finanzgericht (Finance Court). That was rejected by the 
defendant principal customs office by decision of 22 November 2023. According 
to Paragraph 236 of the Abgabenordnung (German Fiscal Code; ‘the AO’), 
interest is provided for only in respect of the period after the case became 
pending. Interest in accordance with the principles of EU law based on the case-
law of the Court of Justice of the European Union (CJEU) is also excluded. The 
tax relief under Paragraph 51(1)(1)(d) of the EnergieStG does not originate in EU 
law, since the second indent of Article 2(4)(b) of Directive 2003/96 excludes the 
dual use of energy products from the scope of the directive. 
7 The defendant principal customs office dismissed the applicant’s objection to that 
decision as being unfounded. 
8 In its action, the applicant submits as follows: Even though the tax relief provided 
for in Paragraph 51(1)(1)(d) of the EnergieStG is not covered by the scope of the 
Directive in accordance with the second indent of Article 2(4)(b) of Directive 
2003/96, the fact remains that Paragraph 51(1)(1)(d) of the EnergieStG is, taken as 
a whole, shaped by EU law. Despite the exemption clause in the second indent of 
Article 2(4)(b) of Directive 2003/96, the Member States are prevented from 
developing, within the framework of the national structure of the discretion 
afforded by the directive, a broader or significantly different definition of dual 
use. 
9 The defendant principal customs office contends that: The applicant is not entitled 
to have additional interest determined, beyond the judicially determined interest 
which has already been determined. The fact that the national rule on relief in 
Paragraph 51(1)(1)(d) of the EnergieStG was initially applied incorrectly does not 
constitute an infringement of EU law. 
REQUEST FOR A PRELIMINARY RULING OF 28. 1. 2025 – CASE C-148/25 
 
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II. 
10 The following provision of the Energiesteuergesetzes (German Law on Energy 
Tax) of 15 July 2006 (Bundesgesetzblatt Part I, 2006 page 1534; 2008 page 660, 
1007), last amended by Article 1 of the Law of 1 March 2011 (Bundesgesetzblatt, 
Part I, 2011 page 282) is significant for the purposes of answering the question 
referred: 
Paragraph 51 Tax relief for certain processes and procedures 
(1) Tax relief shall be granted upon application for energy products on which it 
has been proven … that the tax has been paid and which were used 
1. by an undertaking in the manufacturing sector as provided for in 
Paragraph 2(3) of the Stromsteuergesetz (Law on electricity tax) 
[…] 
(d) both as heating fuels and for purposes other than as motor fuels or as heating 
fuels, 
2. for the heat treatment of waste or exhaust gases. 
11 In addition, the following provision of the Stromsteurgesetz (German Law on 
electricity tax) of 24 March 1999 (Bundesgesetzblatt Part I, 1999 page 378 and 
2000 page 147), last amended by Article 2 of the Law of 1 March 2011 
(Bundesgesetzblatt Part I, 2011 page 282) is significant: 
Paragraph 2 Definitions 
For the purposes of this Law 
… 
3. Undertakings in the manufacturing sector are undertakings classified in 
Section C (Mining and quarrying), D (Manufacturing), E (Electricity, gas and 
water supply) or F (Construction) of the classification of economic activities …; 
12 In addition, the following provision of the AO in the version published on 
1 October 2002 (Bundesgesetzblatt Part I, 2002 page 3866, 2003 page 61) is 
significant: 
Paragraph 236 Interest on refund amounts ordered in legal proceedings 
(1) Where an assessed tax is reduced or a tax rebate granted by final judicial 
ruling or as a result of such a ruling, interest shall accrue on the amount to 
be refunded or subject to a rebate as from the date on which proceedings 
commence to the date of payment … 
EMSCHER AUFBEREITUNG 
 
5 
13 The following provision of the Finanzgerichtsordnung (German Code of 
Procedure for Finance Courts) in the version published on 28 March 2001 
(Bundesgesetzblatt Part I, 2001 page 442, 2262; page 679), last amended by 
Article 6 of the Law of 24 October 2024 (Bundesgesetzblatt Part I, 2024, No 328) 
is significant: 
Paragraph 110 Binding nature of judgments 
(1) Final judgments are binding in so far as the subject matter of the dispute has 
been decided, 
1. the parties involved and their successors in title, … 
Judgments delivered against a tax authority also have effect with regard to the 
body governed by public law to which the tax authority concerned belongs … 
III. 
14 The Chamber stays the action […] and submits the question set out in the 
operative part to the Court of Justice of the European Union for a preliminary 
ruling pursuant to the second paragraph of Article 267 of the Treaty on the 
Functioning of the European Union. 
15 The outcome of the dispute depends on whether interest is precluded under EU 
law principles on the basis of the case-law of the Court if an authority has refused 
to grant a tax relief provided for under national law on the ground that the energy 
product in question was not used for the intended purpose and did not, therefore, 
have a dual use within the meaning of the second indent of Article 2(4)(b) of 
Directive 2003/96. 
16 According to the case-law of the Court of Justice, where a Member State has 
levied charges in breach of EU law, individuals are entitled to reimbursement not 
only of the tax unduly levied but also of the amounts paid to that State or retained 
by it which relate directly to that tax. That also includes interest due to the 
unavailability of sums of money (judgments of 18 January 2017, Wortmann, 
C-365/15, ECLI:EU:C:2017:19, paragraph 37, and of 22 February 2024, 
Gemeente Dinkelland, C-674/22, ECLI:EU:C:2024:147, paragraphs 30 and 31). 
17 In accordance with those principles, a right to payment of interest arises even 
where an excise duty unduly levied has been paid on the basis of an optional tax 
advantage provided for by Directive 2003/96, given that, even in that scenario, the 
taxpayer did not have the amount paid available to it and that cash-flow 
disadvantage must be offset (judgment of 9 September 2021, Hauptzollamt B, 
C-100/20, ECLI:EU:C:2021:716, paragraph 36). 
18 In the present case, there is no optional tax advantage provided for under Directive 
2003/96. The national tax relief provision of Paragraph 51(1)(1)(d) of the 
EnergieStG is also based on the regulatory power conferred on the German 
REQUEST FOR A PRELIMINARY RULING OF 28. 1. 2025 – CASE C-148/25 
 
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legislature by the exemption clause in the second indent of Article 2(4)(b) of 
Directive 2003/96. That might indicate that an incorrect application of 
Paragraph 51(1)(1)(d) of the EnergieStG does not constitute an infringement of 
EU law. 
19 In contrast, the defendant principal customs office sought repayment of the tax 
relief in its decision of 7 February 2014 based on the fact that the use of natural 
gas in the coal-grinding plants operated by the applicant did not constitute dual 
use within the meaning of Paragraph 51(1)(1)(d) of the EnergieStG. The power of 
the Federal Republic of Germany to adopt that national provision is based on the 
second indent of Article 2(4)(b) of Directive 2003/96. Therefore, the defendant 
principal customs office could also have based the repayment of the amount of the 
tax relief on an incorrect application of EU law. In accordance with the second 
indent of Article 2(4)(b) of Directive 2003/96, that directive does not apply to dual 
use of energy products. It is only in those circumstances that Member States have 
the option not to tax energy products (order of 17 December 2015, YARA 
Brunsbüttel, C-529/14, ECLI:EU:C:2015:836, paragraph 30). 
20 By denying that a dual use exists, the defendant principal customs office may have 
interpreted too restrictively the exemption in the second indent of Article 2(4)(b) 
of Directive 2003/96 and accordingly, interpreted the scope of Directive 2003/96 
too broadly, with the result that there was an incorrect assumption of an obligation 
to tax. That could have constituted an infringement of EU law by the defendant 
principal customs office, with the result that there is also an obligation to pay 
interest under principles of EU law. In the view of the Chamber, that is supported 
by the fact that the Court of Justice of the European Union has already, on a 
number of occasions, given rulings on the interpretation of the second indent of 
Article 2(4)(b) of Directive 2003/96 (judgment of 2 October 2014, X, C-426/12, 
ECLI:EU:C:2014:2247; order of 17 December 2015, YARA Brunsbüttel, 
C-529/14, ECLI:EU:C;2015:836). 
21 Such an infringement of EU law by the defendant principal customs office could 
no longer be called into question in the present proceedings. By judgment of 
8 March 2023, the Chamber set aside the decision of 7 February 2014, since the 
natural gas was used not only for heating but primarily to produce inert gas and 
that constituted a dual use within the meaning of the second indent of 
Article 2(4)(b) of Council Directive 2003/96. The judgment has become final and 
is therefore binding on the parties (Paragraph 110(1)(1) of the 
Finanzgerichtsordnung (German Code of Procedure for Finance Courts)). That 
binding effect of the force of res judicata of a judgment delivered by a national 
court must, in principle, also be observed in the application of EU law (judgment 
of 16 January 2025, Baltic Container Terminal, C-376/23, ECLI:EU:C:2025:20, 
paragraph 80). 
22 However, the defendant principal customs office may also have infringed EU law 
since, when transposing the exemption clause in the second indent of 
Article 2(4)(b) of Directive 2003/96, Member States may only exercise their right 
EMSCHER AUFBEREITUNG 
 
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of taxation in accordance with EU law (judgments of 5 July 2007, Fendt Italiana, 
C-145/06 and C-146/06, ECLI:EU:C:2007:411, paragraph 41, and of 2 October 
2014, X, C-426/12, ECLI:EU:C:2014:2247, paragraph 30). 
[…] […] […]