After the ECJ's judgement in the case Dilly's Wellnesshotel GmbH, the Austrian Federal Fiscal Court held that a change in law was unlawful and thus did not enter into effect. This law stipulated that, beginning on 1 January 2011, energy tax reimbursements may no longer be granted to businesses in the service industry.
In the past, the Austrian Energy Tax Reimbursement Act (Energieabgabenvergutungsgesetz) granted reimbursements of energy tax to businesses in both the manufacturing and service industries. The Austrian Budget Accompanying Act of 2011 (Budget begleitgesetz 2011) changed this regime in such a way that from l January 2011, the energy tax rebate was to be granted only to manufacturing businesses. Dilly's Wellnesshotel GmbH, an Austrian company in the service industry, nevertheless lodged an application for such reimbursement for the year 2011, which was rejected by the competent tax office. In the course of the subsequent appeals procedure, the Austrian Federal Fiscal Court (Bundesfinanzgericht) stayed the proceedings and referred to the ECJ questions on whether the Austrian provision at hand is compatiblewith EU state aid law.
In its judgement (21 July 2016, C-493/14, Dilly's Wellnesshotel GmbH), the ECJ outlined that EU Member States have an obligation to notify the Commission of each measure intended to grant new aid or alter existing aid. An exemption from such notification obligation only applies in cases where such measure adopted by an EU Member State fulfils the relevant conditions provided for in the then applicable Commission Regulation (EC) No 800/2008 of 6 August 2008 ("Regulation''). In the case at hand, Austria neither had notified the European Commission of the change in the Austrian Energy Tax Reimbursement Act, nor did this measure fulfil the formal conditions set out in the Regulation (in particular, the statutory provision did not contain express reference to the Regulation by citing its title and publication reference in the Official Journal of the European Union). Consequently, the ECJ held that the failure to fulfil the conditions under the Regulation precludes the state aid scheme at hand from being considered to fulfil the conditions for exemption from the notification obligation.
On the basis of the ECJ's decision. the Austrian Federal Fiscal Court (BFG. 3 August 2016, RV/5100360/2013) in a very lengthy judgement outlined that the alteration of the Austrian Energy Tax Reimbursement Act by way of the Austrian Budget Accompanying Act of 2011 was unlawful and, in accordance with art. 108(3) of the Treaty on the Functioning of the European Union ("TFEU''), thus did not take legal effect. Consequently, Dilly's Wellnesshotel GmbH was granted the energy tax rebate for the year 2011.
In the meantime, the competent tax office has lodged an appeal against this decision with the Austrian Supreme Administrative Court (Verwaltungsgerichtshof). In order to prevent claims for energy tax reimbursements from becoming time-barred, businesses in the service industry are advised to claim reimbursements for 2011 already in 2016, even though the matter has not yet finally been decided.