22. Contingent liabilities

The Austrian Federal Finance Court has directed a request for a preliminary ruling to the European Court of Justice (ECJ) with regard to the Austrian energy tax rebate (BFG 10/31/2014, RE/5100001/2014). The amendment of the Austrian Energy Tax Rebate Act in the Budget Accompanying Act 2011 (Energieabgabenvergütungsgesetz mit dem Budgetbegleitgesetz 2011 – BBG 2011), applicable to periods after December 31, 2010, restricted the energy tax rebate to production companies. Subsequently, the question of whether this restriction, which may be deemed state aid, violated EU law was submitted to the ECJ for a preliminary ruling; this has actually been affirmed by the court (ECJ 7/21/2016, docket no. C-493/14, Dilly’s Wellnesshotel GmbH). As a result, the restrictions pursued by the Budget Accompanying Act 2011 did not enter into force with legal effect and, therefore, service providers, in particular, can retroactively claim the energy tax rebate for periods after February 1, 2011. In its subsequent ruling, the Federal Finance Court declared that the restriction to production companies did not enter into effect. The Tax Office appealed this decision to the Higher Administrative Court, which forwarded the case anew to the ECJ in September 2017 (Resolution of September 14, 2017, EU 2017/0005 and 0006-1). The decision of the ECJ dated November 14, 2019 (ECJ 11/14/2019, docket no. C-585/17, Dilly’s Wellnesshotel II) confirms that the limitation to manufacturing companies imposed by the BBG 2011 was put in place in ways consonant with European Union law. It remains to be seen how the Austrian Higher Administrative Court (docket no. Ro 2016/15/0041 dated 9/14/2017) will rule in its final decision. No adverse impact is anticipated for the voestalpine Group.