Brussels, 04/06/2015 (Agence Europe) - There is nothing to prevent a member state of the EU from levying a duty on nuclear fuel. This arises from the judgment returned on Thursday 4 June (case C-5/14) by the Court of Justice of the EU, which ruled that the German duty on the use of nuclear fuel for the industrial production of electricity, which is adopted in 2010, is compatible with EU law.
This tax, which has been in force in Germany since 1 January 2011 and will run until 31 December 2016, stands at €145 per gram of nuclear fuel (plutonium 239, plutonium 241, uranium 233 or uranium 235). It is payable by operators of nuclear power stations and is based on the polluter-pays principle, with the specific aim of paying for the rehabilitation required at the Asse II mining site, where radioactive waste is stored.
The principle of this tax was challenged before a German court by the company Kernkraftwerke Lippe-Ems, which operates the Emsland nuclear power station in Lingen. It argued that the tax is incompatible with Community law and based its case on two directives, on the rules on state aid and on the treaty instituting the European Atomic Energy Community (Euratom treaty, or EAEC). The company owes the Federal government €145 million under this duty.
The Court of Justice rejected all the arguments put forward by Kernkraftwerke Lippe-Ems. It finds that the German tax is compatible with directive 2003/96/EC on the taxation of energy products and electricity, as nuclear fuel is not included on the exhaustive list of energy products enjoying an obligatory exoneration. The German company suggested that this exoneration could be awarded by analogy, arguing that a duty cannot be levied at the same time on the consumption of electricity and on the sources from which the energy is produced which are not energy products within the meaning of the directive. The Court rejected this argument.
It also rejected the argument that this duty is not compatible with directive 2008/118/EC on the general arrangements for excise duty. The German tax cannot be considered excise duty or an indirect additional tax on energy consumption. The judges found that there is no direct and inseverable link between the use of nuclear fuel and the consumption of electricity produced by the reactor of a nuclear power plant.
Moreover, the duty does not constitute state aid, as it is not a selective measure. Methods of electricity production other than those using nuclear fuel are not affected by the measures brought in and are in any case not in a situation which is comparable to that of electricity production based on nuclear fuel, as only that method generates radioactive waste as a result of its use, the Court stressed.
Finally, the Euratom treaty does not oppose a tax of this kind, as it does not constitute a charge equivalent to customs duty, as the origin of the fuel is irrelevant. Nor does the treaty pursue the objective of maintaining or increasing the level of use of nuclear fuel, whilst this tax could make it less attractive. Furthermore, it does not jeopardise the fulfilment of the EAEC's duty to ensure that Community users receive regular and equitable supplies of ores and nuclear fuels, as the duty covers not the acquisition, but the use of the fuel. (Jan Kordys)