CJ rules on restriction of eligibiltiy of energy tax rebate scheme

On 14 November 2019 the CJ issued a preliminary ruling in the (second) Dilly’s Wellnesshotel case (C-585/17). Austria decided to limit an existing energy tax rebate scheme to the manufacturing industry as of 2011.

The applicant, a provider of hotel services, was therefore refused the rebate in 2011. On appeal and after a rst decision by the CJ, it was ruled that the restriction as such had to be noti ed in light of the restriction of an existing aid scheme as the implementing law failed to include

the obligatory reference to the 2008 Block Exemption Regulation. Absent mandatory noti cation, the Austrian Federal Finance Court held that the restriction had not come into force and awarded the rebate.

On further appeal to the Austrian Supreme Administrative Court the case was again referred to the CJ. The CJ reitterated that (later) restricting those eligible for an aid scheme is subject to the noti cation requirement of Article 108(3) TFEU. However, as the revised aid scheme as such complied with the renewed 2014 Block Exemption regulation – the rebate followed from a speci c formula leaving no discretion to tax authorites and ensuring a minimum energy tax to be paid – it would qualify for an exemption of noti cation nowadays.