Nuclear fuel tax

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The nuclear fuel tax (colloquially known as the fuel element tax) was a tax in Germany that was subsequently classified as unconstitutional and was levied by the operators of nuclear power plants between 2011 and 2016. In June 2017, the Federal Constitutional Court ordered the repayment of the funds received.

In the course of the agreement with the energy companies to extend the service life of nuclear power plants, the parliamentary groups of the CDU / CSU and the FDP introduced the draft of a nuclear fuel tax law (KernbrStG) to the German Bundestag. This included a tax on fuel elements , which from 2011 should bring an annual income of € 2.3 billion. The Nuclear Fuel Tax Act came into force on January 1, 2011 ( Section 13 KernbrStG). The consumption of nuclear fuel within the meaning of § 2 KernbrStG (uranium-233 and -235 as well as plutonium-239 and -241), which was used for the commercial generation of electricity, was taxed. The tax arose when the fuel was first used in a nuclear reactor and amounted to 145 euros per gram of nuclear fuel ( § 3 KernbrStG). The law expired on December 31, 2016 and was not extended for the power plants that will run until 2022. The Bundestag rejected a motion by the Die Linke parliamentary group to keep the tax.

Political discussion

Some political groups, such as those against nuclear power , have been calling for the introduction of a fuel element tax for a long time . On July 6, 2010, the SPD parliamentary group applied for the introduction of a fuel element tax. The aim was to reduce the economic attractiveness of longer operating times for nuclear power plants through the fuel element tax for electricity producers.

The Fukushima nuclear disaster in March 2011 prompted the German government to change its nuclear policy. A few days after the start of the disaster, it announced a three-month nuclear moratorium ; the four German nuclear power plant operators shut down older power plants. The federal government initially considered abolishing the fuel element tax in the course of the energy transition or the withdrawal of the extension of the term . On June 30, 2011, the German Bundestag decided to phase out nuclear power by 2022 while retaining the fuel element tax for the duration of the law, i.e. until the end of 2016.

Nullity of the law

On May 31, 2011 E.ON announced a lawsuit against the fuel element tax. On June 30, 2011, the constitutional lawyer Ulrich Battis ( Humboldt University of Berlin ) expressed the opinion in a ZDF interview that the federal government had “very bad cards” in matters of fuel tax. According to E.ON, RWE and EnBW also announced that they would file a lawsuit and referred u. a. on the fact that the federal government lacks the competence to introduce such a tax.

On 19 September 2011, the doubted Finanzgericht the legislative competence of the federal government for the nuclear fuel tax, having no excise duty was, and the federal government must not simply introduce new other taxes. In contrast, the Baden-Württemberg Finance Court in Stuttgart ruled in two rulings published in January 2012 that the tax levied by the federal government was constitutional and compliant with European law. However, the suspension of tax payments granted by the Hamburg Finance Court was lifted by the Federal Fiscal Court in a judgment of November 25, 2014, so the tax had to be paid until the proceedings before the Federal Constitutional Court were concluded. The Federal Fiscal Court left open whether the tax was permissible.

The European Court of Justice found on June 4, 2015 that the German nuclear fuel tax did not violate EU directives. However, on April 13, 2017, the Federal Constitutional Court ruled that the fuel element tax did not comply with the German constitution and that taxes collected must be repaid. Although the federal government was allowed to introduce new consumption taxes at any time, the nuclear fuel tax was not an consumption tax, as it did not tax the electricity generated but the means of production used for it. Neither the federal government nor the states have a free right to invent taxes. The tax was burdened "from the start with considerable financial and constitutional uncertainties". Therefore, as in other cases, one could not do without declaring the law null and void from the start.

Tax revenue

The income from the nuclear fuel tax for the federal budget was:

year Income
in € million		 Generated amount of electricity
in billion kWh		 Tax
in cents per kWh
2011 922 108.0 0.85
2012 1,577 99.5 1.58
2013 1,285 97.3 1.32
2014 708 97.1 0.73
2015 1,371 91.8 1.52
2016 422

Due to the unconstitutionality of the law, these amounts had to be repaid. In 2014, for example, part of the tax was repaid based on relevant rulings. After the Federal Fiscal Court ordered the tax to be continued despite ongoing proceedings, the operators of German nuclear power plants transferred a total of around 2.5 billion euros to the federal government in December 2014. According to the ruling of the Federal Constitutional Court, the federal government has to repay 6.3 billion euros.

The tax revenue per kWh fluctuated because it was not the amount of electricity that was taxed, but the use of new fuel elements. Since only part of the nuclear fuel has to be replaced annually in the power plants, the number of newly used fuel assemblies fluctuates. In addition, pursuant to Section 5 (1) sentence 2 of the Nuclear Fuel Tax Act, the exchange of demonstrably defective fuel rods was tax-exempt, even if the defective fuel rod had already been partially burned down and thus used to generate electricity. The nuclear power opponent Jochen Stay criticized that the power plant operators had saved between 700 and 750 million euros in 2016 by postponing fuel element changes to the time after the expiry of the law. The ruling of the Constitutional Court made the question of tax savings unnecessary, since the tax paid must be reimbursed in full.

literature

Web links

Individual evidence

  1. ↑ bundesverfassungsgericht.de: Reasons for the decision of April 13, 2017 (2 BvL 6/13)
  2. ^ German Bundestag: Draft of a Nuclear Fuel Tax Act (KernbrStG), Drs-No. 17/3054 of September 28, 2010 (PDF)
  3. ↑ bundestag.de: Linke fails with an application to receive the fuel element tax
  4. ↑ German Bundestag Printed Matter 17/2410 (PDF)
  5. ↑ E.on wants to sue the fuel element tax
  6. ↑ heute.de: June 30, 2011  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. “The sticking points that companies refer to are property and occupational freedom. They say that the remaining amounts of electricity granted to them for nuclear power plants are their property, which is protected by the property rights of the Basic Law. The government intervenes in this property right, the justification in the law is very sparse. There it only says that the whole thing is proportionate. ”…“ But the background is that there was an agreement with the first exit in which it was stipulated in writing that there would be no new tax. Now in 2010 they made another agreement and they said there would be an extension, but we would levy a new tax for that. But that does not appear in the law, in other words the law that extended the terms. "@1@ 2Template: Toter Link / www.heute.de  
  7. ↑ http://www.focus.de/finanzen/news/unternehmen/enbw-der-naechste-klagt-gegen-die-brennelementesteuer_aid_646185.html "After a detailed examination, both constitutional and European law objections were raised. External experts have confirmed EnBW's legal opinion, according to which, among other things, the federal government lacks legislative competence and the law violates the consensus agreement of 2001. In this, the federal government committed itself to the operators not to take any unilateral measures to the detriment of nuclear energy. "
  8. ↑ http://www.sis-verlag.de/archiv/andere-sonstige-steuerarten/rechtsprechung/5121-bfh-kein-vorlaeufiger-rechtsschutz-gegen-kernbrennstoffsteuer-bfh-kein-vorlaeufiger-rechtsschutz-gegen-kernbrennstoffsteuer
  9. ↑ http://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=EuGH&Datum=31.12.2222&Aktenzeichen=C-5/14
  10. ↑ 2 BvL 6/13 . Federal Constitutional Court , June 7, 2017.
  11. ↑ When Wolfgang Schäuble once got too creative . Spiegel online , June 7, 2017.
  12. ↑ Swantje Fiedler: Nuclear fuel tax after 2016. In: Brief analysis on behalf of Naturstrom AG. FÖS, September 2016, accessed on December 16, 2016 .
  13. ↑ https://www.destatis.de/DE/ZahlenFakten/Wirtschaftsbereich/Energie/Erzeugung/Tabellen/Bruttostromproduktion.html
  14. ↑ Reuters: E.ON and RWE receive fuel element tax provisionally back , May 20, 2014
  15. ↑ FAZ.net: The federal government got by without new debts in 2014
  16. ↑ https://www.gesetze-im-internet.de/kernbrstg/__5.html
  17. ↑ deutschlandfunk.de: Dispute over fuel element tax, accessed on January 7, 2017
  18. ↑. Broadcast: Nuclear power plant operators trick with fuel control, accessed on January 7, 2017