Elkem and Hydro were not entitled to electricity tax exemption
Supreme Court judgent 20 December 2023, HR-2023-2401-A, (case no. 23-059481SIV-HRET), civil case, appeal against judgment.
Elkem ASA, Hydro Aluminium AS (Counsel Kaare Andreas Shetelig) v. The State represented by the Tax Directorate (The Office of the Attorney General represented by Kristin Hallsjø Aarvik)
Elkem ASA and Hydro Aluminium AS produce silicon and ferrosilicon, respectively, and aluminium, which require large amounts of electrical power. The Storting makes annual decisions on electricity tax. According to section 3-12-13 of the Excise Duty Regulations and the annual Storting decisions, electric power "supplied for use in chemical reduction or in electrolysis, metallurgical and mineralogical processes" is exempt from tax. Like the Court of Appeal, the Supreme Court found that this exemption does not apply to electricity for the entire production line from raw material to finished metal product, as the two companies contended, but only to specific process steps that are directly involved in the extraction of metal and processing of the metal. The tax exemption was intended to have the same content as the corresponding exemption in the EU Energy Tax Directive, and had to be understood in the same way. Reference was made to the case law of the European Court of Justice. The Supreme Court found no error in the tax authorities’ individual application of the law. The appeal against the judgment of the Court of Appeal was dismissed.
Area of law: Tax law
Key paragraphs: 69–71
Justices: Matheson, Arntzen, Høgetveit Berg, Sæther, Stenvik