Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabrück.
Date: 2015-06-04
31. In the first place, it is apparent from Article 267 TFEU that, while it may be convenient, in certain circumstances, for the facts of the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court (see judgments in Creamery Milk Suppliers Association and Others , 36/80 and 71/80, EU:C:1981:62, paragraph 6; Meilicke , C‑83/91, EU:C:1992:332, paragraph 26; and JämO , C‑236/98, EU:C:2000:173, paragraph 31), 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 (see, inter alia, judgments in Mecanarte , C‑348/89, EU:C:1991:278, paragraph 44; Cartesio , C‑210/06, EU:C:2008:723, paragraph 88; Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 41; and A , C‑112/13, EU:C:2014:2195, paragraph 35).
32. In the second place, the Court has stated that a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, inter alia, judgments in Simmenthal , 106/77, EU:C:1978:49, paragraphs 21 and 24; Filipiak , C‑314/08, EU:C:2009:719, paragraph 81; Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 45; and A , C‑112/13, EU:C:2014:2195, paragraph 36).
33. Any provision of a national legal system, including provisions of a constitutional nature, and any legislative, administrative or judicial practice which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU law (see judgments in Simmenthal , 106/77, EU:C:1978:49, paragraph 22; Factortame and Others , C‑213/89, EU:C:1990:257, paragraph 20; and, to that effect, Križan and Others , C‑416/10, EU:C:2013:8, paragraph 70). This would be the case in the event of a conflict between a provision of EU law and a national law, if the solution of the conflict were to be reserved to an authority with a discretion of its own, other than the court called upon to apply EU law, even if such an impediment to the full effectiveness of EU law were only temporary (see judgment in A , C‑112/13, EU:C:2014:2195, paragraph 37 and the case-law cited).
34. In the third place, the Court has held that a national court which, in a case concerning EU law, considers that a provision of national law is not only contrary to EU law, but also unconstitutional, does not lose the right or escape the obligation under Article 267 TFEU to refer questions to the Court of Justice on the interpretation or validity of EU law by reason of the fact that the declaration that a rule of national law is unconstitutional is subject to a mandatory reference to the constitutional court. The effectiveness of EU law would be in jeopardy if the existence of an obligation to refer a matter to a constitutional court could prevent a national court hearing a case governed by EU law from exercising the right conferred on it by Article 267 TFEU to refer to the Court of Justice questions concerning the interpretation or validity of EU law in order to enable it to decide whether or not a provision of national law was compatible with that EU law (judgment in Mecanarte , C‑348/89, EU:C:1991:278, paragraphs 39, 45 and 46; Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 45; and A , C‑112/13, EU:C:2014:2195, paragraph 38).
35. The Court has concluded from all the above considerations that the functioning of the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU requires, as does the principle of primacy of EU law, the national court to be free to refer to the Court for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality (judgment in A , C‑112/13, EU:C:2014:2195, paragraph 39).
36. For the reasons given in paragraphs 31 to 35 above, 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 (see, to that effect, judgment in Simmenthal , 106/77, EU:C:1978:49, paragraph 20).
37. With regard to the fact that the first sentence of Paragraph 100(1) of the Basic Law for the Federal Republic of Germany imposes on a national court which considers that a law is unconstitutional not only the obligation to seek a decision from the Bundesverfassungsgericht as to whether that law complies with the said Basic Law but also the obligation to stay proceedings, it should be recalled that 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 (judgment in Križan and Others , C‑416/10, EU:C:2013:8, paragraph 67 and the case-law cited).
38. Lastly, with regard to the effect of the procedure before the Bundesverfassungsgericht on the relevance of an interpretation of EU law for the outcome of the dispute before the referring court, the Court finds that, in so far as, irrespective of the constitutionality of the provisions at issue in the main proceedings, that dispute and the questions referred relate to the compatibility with EU law of national legislation which levies a duty on the use of nuclear fuel, it is not manifestly obvious that the interpretation sought bears no relation to the actual facts of the main action or its purpose, that the problem is hypothetical, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment in Filipiak , C‑314/08, EU:C:2009:719, paragraphs 43 and 45).
45. Article 14 of Directive 2003/96 sets out an exhaustive list of the exemptions which the Member States must apply in connection with the taxation of energy products and electricity (see, to that effect, judgment in Fendt Italiana , C‑145/06 and C‑146/06, EU:C:2007:411, paragraph 36).
46. Furthermore, inasmuch as it imposes on Member States the obligation not to impose taxation under the directive on ‘energy products and electricity used to produce electricity and electricity used to maintain the ability to produce electricity’, Article 14(1)(a) of Directive 2003/96 defines clearly the products covered by the exemption (see, to that effect, judgment in Flughafen Köln/Bonn , C‑226/07, EU:C:2008:429, paragraph 29).
47. It should be noted in that regard that 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.
51. It should be noted in that regard that it is not possible to conclude, on the basis of the arguments put forward by KLE, that there exists a principle to the effect that a duty cannot be levied at the same time on the consumption of electricity and on the source from which that energy is produced. It is apparent from page 5 of the Explanatory Memorandum to the Proposal for a Council Directive restructuring the Community framework for the taxation of energy products (OJ 1997 C 139, p. 14), to which KLE refers, that, at the very most, ‘there are two possible ways of bringing electricity within the scope of the taxation arrangements: by taxing the fuels used in the production of electricity (input tax) or by taxing the electricity itself (output tax)’. It is not apparent from that proposal that those two methods are, as a matter of principle, mutually exclusive, the European Commission having accepted that they are complementary by reserving in that proposal the option for the Member States ‘to add an additional (non-harmonised) input tax in the case of non-environmentally desirable fuels’. Furthermore, nor is it apparent from that proposal that the Commission intended to propose that Member States should be under an obligation to exempt products that did not form part of the harmonised tax system from all forms of taxation.
58. With regard to the term ‘other indirect taxes’ within the meaning of Article 1(2) of Directive 2008/118, it should be noted that that provision, which seeks to take due account of the Member States’ different fiscal traditions in this regard and the frequent recourse to indirect taxation for the implementation of non-budgetary policies, allows Member States to introduce, in addition to minimum excise duty, other indirect taxes having a specific purpose (see, by analogy, judgment in Commission v France , C‑434/97, EU:C:2000:98, paragraphs 18 and 19).
59. It follows that the term ‘other indirect taxes’ within the meaning of Article 1(2) of Directive 2008/118 refers to indirect taxes which are levied on the consumption of the products listed in Article 1(1) of that directive — other than ‘excise duty’ within the meaning of that provision — and are levied for specific purposes.
61. In that regard, the Court has held, in connection with certain fuels covered by Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duty on mineral oils (OJ 1992 L 316, p. 19), which was replaced by Directive 2003/96, that a national environmental protection tax levied on aviation which is calculated by reference to data on fuel consumption and emissions of hydrocarbons and nitric oxide during an average flight by the type of aircraft used must be regarded as a tax levied on the consumption of such fuels, as there is a direct and inseverable link between fuel consumption and the polluting substances which are emitted in the course of such consumption (see, to that effect, judgment in Braathens , C‑346/97, EU:C:1999:291, paragraphs 22 and 23).
62. It is apparent from the order for reference that the duty introduced by KernbrStG, 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, second, is calculated on the basis of the amount of nuclear fuel used, a common rate being applied to all types of such fuel.
63. It should be noted in that regard that, according to the information provided by the referring court, 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. Moreover, as the Commission observed, the duty introduced by KernbrStG 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.
64. Furthermore, unlike the tax at issue in the case which gave rise to the judgment in Braathens  (C‑346/97, EU:C:1999:291), which was levied directly on certain air transport operators, the tax introduced by KernbrStG is not levied directly on the consumer of the excise product but on the electricity producer. It is true that the financial burden of that tax could, in principle, as the Advocate General observed at point 61 of his Opinion, be borne indirectly in its entirety by the final consumer if the producer included the amount of that tax in the price charged for each amount of the product released for consumption, thus rendering the tax neutral for the producer. However, it is apparent from the analysis carried out by the referring court on that point that the tax introduced by KernbrStG cannot be passed on in its entirety to the final electricity consumer in view of, inter alia, the particular nature of that product, it not being possible to determine the origin of any given amount of electricity, and of the pricing mechanism for electricity applied in Germany, which is characterised by the fact that the price of electricity is, essentially, a single price arrived at by negotiation on the energy exchange market.
65. In the light of the above considerations, it is not apparent that a direct and inseverable link, within the meaning of Braathens (C‑346/97, EU:C:1999:291), exists between the use of nuclear fuel and the consumption of electricity produced by the reactor of a nuclear power plant. Nor can the duty at issue be regarded as being calculated directly or indirectly on the quantity of electricity at the time of release for consumption of that product, within the meaning of Article 4(2) of Directive 2003/96.
71. According to settled case-law, the definition of aid is more general than that of a subsidy as it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see judgments in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , C‑143/99, EU:C:2001:598, paragraph 38; Paint Graphos and Others , C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 45; and Commission and Spain  v Government of Gibraltar and United Kingdom , C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 71).
72. Consequently, a measure by which the public authorities grant certain undertakings advantageous tax treatment which, although not involving the transfer of State resources, places the beneficiaries of such treatment in a more favourable financial position than that of other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU (judgments in Banco Exterior de España , C‑387/92, EU:C:1994:100, paragraph 14, and Paint Graphos and Others , C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 46 and the case-law cited).
74. As regards appraisal of the condition of selectivity, it is clear from settled case-law that Article 107(1) TFEU requires assessment of whether, under a particular legal regime, a national measure is such as to favour certain undertakings or the production of certain goods in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (judgments in Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , C‑143/99, EU:C:2001:598, paragraph 41; British Aggregates  v Commission , C‑487/06 P, EU:C:2008:757, paragraph 82; and Commission and Spain v Government of Gibraltar and United Kingdom , C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 75).
75. It should also be noted that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines such measures in relation to their effects, and thus independently of the techniques used (judgments in British Aggregates  v Commission , C‑487/06 P, EU:C:2008:757, paragraphs 85 and 89, and Commission and Spain  v Government of Gibraltar and United Kingdom , C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 87).
87. With regard to the classification of a national tax as a charge having equivalent effect to a customs duty, it should be borne in mind that the justification for the prohibition of customs duties and any charges having an equivalent effect lies in the fact that any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier, constitutes an obstacle to the movement of goods which is aggravated by the resulting administrative formalities (see, by analogy, judgment in O rgacom , C‑254/13, EU:C:2014:2251, paragraph 22 and the case-law cited).
88. Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect (see, to that effect, judgments in Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten , C‑221/06, EU:C:2007:657, paragraph 27, and Orgacom , C‑254/13, EU:C:2014:2251, paragraph 23).
89. It should be recalled in that connection that 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 (see, to that effect, judgments in Commission  v France , 90/79, EU:C:1981:27, paragraphs 12 and 13, and Orgacom , C‑254/13, EU:C:2014:2251, paragraph 28).
90. The Court has none the less recognised that 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 (see, to that effect, judgments in Commission  v France , 90/79, EU:C:1981:27, paragraph 14, and CRT France International , C‑109/98, EU:C:1999:199, paragraph 13).
99. It must be noted that that argument, which was raised and discussed for the first time at the hearing before the Court, does not appear either in the order for reference or in the written observations submitted by the parties concerned. Accordingly, in the absence of more detailed and specific information on that point, the Court finds that the documents submitted to it do not indicate with sufficient clarity that that matter may be relevant for the purpose of resolving the dispute in the main proceedings and, therefore, of any assistance to the national court, which, as the court that must resolve the dispute, is best placed to determine the relevance of the questions referred to the Court in the light of the particular features of the case before it (see, to that effect, judgment in Flughafen Köln/Bonn , C‑226/07, EU:C:2008:429, paragraphs 37 and 38)
103. Second, 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 (judgment in ENU  v Commission , C‑357/95 P, EU:C:1997:144, paragraph 2).