The planned gas levy could be one of the shortest financial burdens a federal government has ever faced.
As planned, it will be collected from all gas customers from October 1st, as Federal Economics Minister Robert Habeck (Greens) confirmed on Wednesday.
But as soon as the planned nationalization of Uniper, the biggest beneficiary of the gas surcharge, has been completed, it could no longer be legal in its current form.
Not only does Habeck warn of this, who originally devised it, but also former constitutional judge Ferdinand Kirchhof.
Corinna Budras
Business correspondent in Berlin.
Follow I follow
Christian Geinitz
Business correspondent in Berlin
Follow I follow
Manfred Schaefers
Business correspondent in Berlin.
Follow I follow
First of all, however, it causes plenty of discord within the federal government: Habeck had asked the Federal Ministry of Finance for a “complete legal examination” that would clear up the doubts related to the financial constitution.
Finance Minister Christian Lindner (FDP) sharply rejected this on Wednesday: "There is no further examination, it has been completed."
Whether such an examination is the responsibility of the Minister of Finance is questionable anyway.
The Ministry of Justice or the Ministry of the Interior could also be responsible.
Meanwhile, there was support for Habeck from the SPD.
According to parliamentary group leader Matthias Miersch, the nationalization of Uniper is fueling legal doubts about a gas surcharge.
"Everything is interrelated, so that an overall concept must now be developed quickly." The core of the dispute is the question of whether the gas levy can turn into a special levy and whether there is a risk of unconstitutionality if the main beneficiaries of the levy are in state hands.
conflict on the open stage
A conflict between two members of the government in the open air is unusual.
This seems even stranger, since there was said to have been a meeting of the energy round in the Chancellery last Friday, in which not only the two opponents, but also Chancellor Olaf Scholz and Chancellor Wolfgang Schmidt (both SPD) are said to have taken part.
The top group is said to have mutually agreed that the gas surcharge could be raised.
The contradictory statements by Lindner and Habeck could be due to the fact that Habeck would like to see the gas levy, which caused him a lot of trouble and a fall in the voters' favour, fail - preferably under the responsibility of another ministry.
According to reports, tax financing is preferred in Habeck's house.
But that is not in Lindner's interest, who wants to keep the budget together and comply with the debt brake.
His department could therefore endeavor to quickly wave the gas surcharge that all private and commercial consumers have to pay through.
This approach provides the opposition with further ammunition: “While 20 million private households are getting mail that they will no longer be able to pay the gas surcharge from October 1st.
have to pay, the BMWK has constitutional doubts about this levy," criticized the CDU politician Jens Spahn on the short message service Twitter.
“Pure chaos, only the citizens pay.
This is how social unrest arises in the crisis.”
The gas industry also suspects that the burden will come as planned on October 1st.
The first advance payments to importers such as Uniper will be postponed by one month to October 20th.
But after just three months, i.e. in February next year, it could be abolished or set to zero.
According to the law and the ordinance, it can run until spring 2024.
However, adjustments are possible after three months.
Minister Habeck said on Wednesday that the antitrust and state aid reviews for the nationalization of Uniper could drag on for three months.
In this respect, the gas surcharge would initially benefit the still private company, not the state-owned company.
Hot on nationalization
But after nationalization at the latest, things will get dicey.
In principle, it is possible to levy a tax on individual energy sources, says the former Vice President of the Federal Constitutional Court, Ferdinand Kirchhof, and refers to the mineral oil tax as an example.
The previously planned gas allocation would have to be revised significantly.
With the nationalization of Uniper, the gas surcharge would become a tax because it would be levied in favor of a state-owned company that implements the state's energy policy.
However, a tax may no longer be levied by a private coordination office, but must be collected by the tax authorities.
"If that is not changed in the planned gas levy, I don't give the tax a great chance of survival," said Kirchhof.
"In view of the impending lawsuits, the legislature should not take the risk with their eyes wide open."
Beyond the question of whether the levy will become a tax after nationalization, Heidelberg professor of tax law Hanno Kube has his doubts as to whether it is constitutional to only include gas customers.
The key question is whether gas customers are primarily responsible for rescuing individual gas companies or whether this is not a task for society as a whole and therefore has to be financed from general tax funds.