Case C‑5/14

Kernkraftwerke Lippe-Ems GmbH

v

Hauptzollamt Osnabrück

(Request for a preliminary ruling from the Finanzgericht Hamburg)

‛Reference for a preliminary ruling — Article 267 TFEU — Interlocutory procedure for review of constitutionality — Examination of whether a national law complies with both EU law and with the Constitution of the Member State concerned — Discretion enjoyed by a national court to refer questions to the Court of Justice for a preliminary ruling — National legislation levying a duty on the use of nuclear fuel — Directives 2003/96/EC and 2008/118/EC — Article 107 TFEU — Articles 93 EA, 191 EA and 192 EA’

Summary — Judgment of the Court (Third Chamber), 4 June 2015

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)

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)

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)