Constitutional Court reviews Energy Crisis Contribution – Electricity (EKBSG) for 2024 onwards and other industries

The Austrian Constitutional Court has, by decision of 1 July 2026 (E 405/2025-12), ex officio initiated a legislative review procedure concerning the Energy Crisis Contribution – Electricity (EKBSG). The review relates to key provisions of the EKBSG for Assessment Period 2 (1 January 2024–31 December 2024), particularly the basis of the levy, the assessment base and the group of liable contributors.

While the Austrian Constitutional Court had explicitly confirmed the constitutionality of the levy for the period 1 December 2022–31 December 2023, it now has serious doubts as to whether the crisis-related exceptional situation – and thus the justification for the EKB-S – continues to exist from 2024 onwards. In addition, the Court questions whether the skimming of surplus revenues regardless of production costs and the restriction of the levy to electricity producers is compatible with the constitutional principle of equality. The forthcoming decision will be of considerable practical relevance, as it will determine the future of the EKBSG and potential implications for contributions already paid from 2024 onwards. Furthermore, other industries, i.e. banks, may be concerned by the outcome of the Austrian Constitutional Court procedure, as there may be interesting effects regarding the stability levy and deduction limitations in the Corporate Income Tax Act.

Background

In appeal proceedings before the Austrian Tax Appeals Court concerning the EKB-S for the period 1 January 2024–30 June 2024, the appellant argued that the EKBSG is unconstitutional, in particular that it violates the principle of equality, the protection of legitimate expectations and the allocation of legislative powers under the Austrian Federal Constitutional Law (B-VG).

The Austrian Tax Appeals Court dismissed the complaint as unfounded by decision of 9 January 2025 (RV/7104157/2024). It followed the tax office’s position that an assessment under § 201 BAO is excluded where the self-assessment is correct and that the EKBSG is constitutional.

Previously, the VfGH had essentially upheld the EKBSG for the period 1 December 2022–30 June 2023 (VfSlg 20.707/2024) and for the period 1 July 2023–31 December 2023 (VfSlg 20.716/2025). The skimming of surplus revenues was considered objectively justified in light of a massive, short-term disruption of the electricity market during the energy crisis, provided it was limited to a “reasonably restricted period”.

Scope of review and constitutional concerns from 2024

The Austrian Constitutional Court is now reviewing § 1 paras 2 and 3, § 3, as well as § 5 para 1 and para 2 nos. 3 and 4 EKBSG in the version of Federal Law Gazette I 13/2024. These provisions contain the central linkage to electricity generated in Austria, the concept of surplus revenues and revenue caps, the definition of liable contributors and the payment deadlines.

The Austrian Constitutional Court first questions whether the original basis of the levy – addressing crisis-related developments in the electricity market and funding support measures for electricity end consumers – still applies after the expiry of the EU Emergency Measures Regulation (Regulation [EU] 2022/1854) and a tangible easing of conditions on the electricity market in 2024. In the Austrian Constitutional Court’s view, market developments (declining electricity price indices) and the fact that the European Commission no longer considered an extension of revenue caps necessary as early as 2023 indicate that the exceptional situation existing in 2022/2023 no longer persists. For periods from 2024 onwards, it must therefore be clarified which objective grounds the legislator can invoke to justify the continued skimming of additional revenues from electricity producers at all. The Austrian Constitutional Court specifically addresses whether particular economic capacity, steering objectives (price moderation, energy transition), or equivalence considerations (financing electricity cost subsidies) can independently justify the levy in the absence of an acute crisis, and whether the lack of earmarking of revenues (§ 1 para 2 EKBSG) appears constitutionally problematic.

Conclusion and practical implications

The Austrian Constitutional Court’s decision to open review proceedings marks a clear turning point: what was accepted as a constitutionally compliant, crisis-related special levy for 2022/2023 is now under scrutiny for 2024 onwards. Central questions are whether the EKBSG can be justified as a general special levy on surplus revenues without an acute energy crisis and without an EU emergency law basis, and whether its design continues to comply with the principle of equality.

For practice, this results in significant uncertainty regarding the legal robustness of the EKBSG for Assessment Period 2 and the subsequent periods. By way of an argumentum a maiori ad minus, it appears likely that a finding of unconstitutionality for Assessment Period 2 would also affect later periods, provided Assessment Period 2 itself is considered unconstitutional.

Taxpayers should therefore file legal remedies against the EKBSG as soon as possible, in order to benefit from the so-called Anlassfallwirkung (i.e. the effect that successful challengers may directly benefit from a finding of unconstitutionality) in case the VfGH regards the EKBSG as unconstitutional, and to seek a refund of contributions already paid from 2024 onwards.

Possible spillover effects on other special levies

A finding that the EKBSG is unconstitutional could have a signal effect for other recent special levies primarily aimed at budget consolidation – in particular the increased stability levy for banks as of 1 January 2025 according to the StabAbgG and the deduction limitations in the Corporate Income Tax Act (KStG).

If the Austrian Constitutional Court applies stricter standards to the basis of the levy, the principle of equality and the design of crisis-driven special levies, it is conceivable that these standards will also be applied in future proceedings concerning the stability levy and deduction limitations in the KStG. Financial institutions should therefore also monitor developments around the EKBSG, as the  Austrian Constitutional Court’s decision may provide important guidance for the constitutional assessment of the stability levy and corresponding deduction limitations.

Your Deloitte advisors will be happy to assist you to analyze the possible effects of the Austrian Constitutional Court-procedures for your tax positions.