Hardening the preliminary reference procedure in a Union in crisis: Kernkraftwerke Lippe-Ems

Publishers Abstract:
Kernkraftwerke Lippe-Ems raises a variety of questions concerning, on the one hand, the interplay between the preliminary reference procedure and interlocutory proceeding to review the constitutionality of national law, and, on the other, a number of substantive issues, predominantly with respect to the possibility of qualifying a tax as a State aid. As to the former: constitutional courts seem increasingly willing to make preliminary references to the ECJ – for example, the first reference has now been made by the Bundesverfassungsgericht (German Constitutional Court) in Gauweiler.

This poses an extraordinary challenge to the simultaneous interaction between the preliminary reference procedure and national procedures for review of constitutionality. As to the substantive questions, this annotation also addresses certain aspects of the case, particularly stressing the complexity of the three-step analysis when a tax measure is examined from a State aid perspective. The annotation also analyses the Court’s position on the use of analogies to interpret the tax exemptions in EU secondary law.