The court had granted an urgent application by the energy company eon and ordered the refund of fuel element taxes already paid. The BFH emphasized in the published ruling of 9. Marz, however, that in this case only the federal constitutional court could rule on a possible unconstitutionality of the underlying law. And until that happens, the law’s claim to validity is to be given priority over the interests of the power plant operator (ref.: VII B 171/11).
In its decision last september, the hamburg court had expressed considerable doubts about the constitutionality of the law that introduced the tax on nuclear fuel elements at the beginning of 2011. The judges therefore annulled the execution of the tax assessment for eon. On the other hand, the BFH now emphasized that whether the law was unconstitutional could not be clarified in summary proceedings, but only by the federal constitutional court. Karlsruhe, too, could only issue a temporary injunction suspending the execution of a law for very weighty reasons. "Preliminary legal protection" is not available to eon until then.
The supreme financial judges argued that if the execution of the tax assessment was annulled, the law would in fact be suspended. The public sector lost billions of euros in revenue as a result. The BFH did not comment on the question of whether the federal government had legislative competence for the so-called nuclear fuel tax law.
In addition to the hamburger fiscal court, munich judges had also expressed doubts about the constitutionality of the tax. On the other hand, the fiscal court of baden-wurttemberg ruled at the beginning of this year that the fuel element tax does not violate the constitution.
The fuel element tax had been passed in 2010 as part of the federal government’s austerity package. For the first time, fuel elements used in a reactor will be taxed at 145 euros per gram of nuclear fuel when the plant goes back on line. The tax was originally supposed to bring in 2.3 billion euros a year. However, the decommissioning of eight nuclear power plants will reduce tax revenue by about one billion euros per year to about 1.3 billion euros per year.
For the nine remaining nuclear power plants, the average annual tax burden is just under 150 million euros. The revenues are to be used primarily to clean up the ailing nuclear storage facility in asse and to consolidate the budget. Germany’s major energy companies are defending themselves against the tax at various legal levels.