Conclusions
OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 11 January 2005(1)
Case C-491/03
Ottmar Hermann (receiver of Volkswirt Weinschänken GmbH)
v
Stadt Frankfurt am Main
(Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof)
(Excise duty – Directive 92/12/EEC – Article 3 – Products to which the Directive applies – Power of the Member States to introduce other indirect taxes – Local tax on the sale of alcoholic beverages for consumption on the premises)
I – Introduction
1.
In my Opinion in Case
D., delivered on 26 October 2004, I pointed out that in order to achieve customs union in the Community it was necessary to
introduce a common external customs duty, and that the unhindered movement of goods required a harmonisation of indirect taxes;
I also proposed that there should be an approximation of direct taxation, in order to facilitate the freedom of movement for
persons and capital.
(2)
These are three successive stages in the gradual development of economic cohesion, the prelude to political integration.
2.
This reference for a preliminary ruling invites the Court of Justice to pause and consider the intermediate stage, an essential
one because differences in consumer taxes may restrict the free movement of goods and, consequently, distort competition,
seriously hindering the implementation of the internal market.
3.
In view of the variety of taxes of that kind imposed in Europe and the difficulty in coordinating them, however, the Community
legislature chose to adopt a less ambitious approach and to take action on three levels. On the first level is the common
system of value added tax (‘VAT’), a Community tax par excellence, on the next are excise duties, and the last level, which
is more specific, deals with the concentration of capital.
4.
Harmonisation in the second category began with Council Directive 92/12/EEC,
(3)
with the purpose of approximating the structures of excise duties by means of uniform criteria regarding inter alia the products
covered, the chargeable event, chargeability, taxpayers and exemptions.
5.
The Hessischer Verwaltungsgerichtshof (Higher Administrative Court, Hesse) is in doubt as to whether a local law taxing the
supply for consideration of alcoholic beverages for immediate consumption on the premises is consistent with the framework
directive, and has therefore asked the Court of Justice to interpret Article 3 of that Community legislation.
II – The relevant legislation
A –
The framework directive
6.
Article 3 of the framework directive is worded as follows:
‘1.
This Directive shall apply at Community level to the following products as defined in the relevant Directives:
(4)
- –
- mineral oils,
- –
- alcohol and alcoholic beverages,
- –
- manufactured tobacco.
2.
The products listed in paragraph 1 may be subject to other indirect taxes for specific purposes, provided that those tax rules
comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation
of the tax, chargeability and monitoring of the tax are concerned.
3.
Member States shall retain the right to introduce or maintain taxes which are levied on products other than those listed in
paragraph 1 provided, however, that those taxes do not give rise to border-crossing formalities in trade between Member States.
Subject to the same proviso, Member States shall also retain the right to levy taxes on the supply of services which cannot
be characterised as turnover taxes, including those relating to products subject to excise duty.’
B –
The German legislation
7.
Under Article 105(2a) of the Grundgesetz (German Basic Law), the Länder have powers to introduce local consumer taxes. The
Land of Hesse has exercised that power by enacting the Gesetz über kommunale Abgaben (Local Tax Law) of 17 March 1970,
(5)
under Paragraph 7(2) of which the municipal corporations are authorised to levy tax of that kind.
8.
Pursuant to Paragraph 1 of the local law of 13 December 1991 (Satzung über die Erhebung einer Getränkesteuer im Gebiet der
Stadt Frankfurt am Main; ‘the GetrStS’),
(6)
amended with effect from 25 May 1996,
(7)
the City of Frankfurt am Main collected a tax on beverages between 1 January 1992 and 1 January 2000.
(8)
9.
Paragraph 2 of that law deems the chargeable event to be the supply for consideration of alcoholic beverages (with the exception
of cider) for consumption on the premises.
(9)
It also taxes consumption by the taxable person or distribution amongst his employees, if its value is more than 5% of the
turnover made with the taxable activity. Under Paragraph 5(2) the tax becomes payable when the goods are supplied or, as the
case may be, upon consumption.
10.
Paragraph 4 fixes the rate of tax at 10% of the sale price, that is to say, the price actually paid by the purchaser net of
beverage tax.
11.
Finally, Paragraph 5(1) defines as taxable persons those who, in the exercise of a professional activity, provide alcoholic
beverages for consideration.
III – The facts, the main action and the questions referred for a preliminary ruling
12.
Volkswirt Weinschänken GmbH runs a restaurant in Frankfurt am Main, in which it serves meals and beverages.
13.
On 7 November 1995 it submitted a declaration for the tax at issue, for the third quarter of that year, in the amount of DEM
9 135.35 and at the same time formally challenged its imposition on the ground that the tax was unlawful. Having received
no response from the municipal authorities, it brought an action before the Verwaltungsgericht (Administrative Court) Frankfurt
am Main, which by judgment of 14 March 2002 upheld the action on the ground inter alia that, in its view, the GetrStS was
incompatible with Article 3(2) of the framework directive, as interpreted by the judgment of the Court of Justice in
EKW and Wein & Co.
(10)
14.
The defendant authority brought an appeal before the Hessischer Verwaltungsgerichtshof, which, before deciding the case, has
stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
‘Does a local tax on the supply for consideration of alcoholic beverages for consumption on the premises constitute an indirect
tax on products subject to excise duty for the purposes of Article 3(1) and (2) of the framework directive, or a tax on the
supply of services relating to such products within the meaning of the second subparagraph of Article 3(3)?’
15.
If the answer to the second alternative is in the affirmative, the German court asks a further question:
‘Does the phrase “subject to the same proviso” in the second subparagraph of Article 3(3) of the framework directive refer
only to the proviso contained in the first subparagraph – “provided, however, that those taxes do not give rise to border-crossing
formalities in trade between Member States” – or must “specific purposes”, as laid down in Article 3(2), also exist?’
IV – Procedure before the Court of Justice
16.
Written observations were submitted, within the period laid down in Article 20 of the EC Statute of the Court of Justice,
by the City of Frankfurt am Main and the Commission.
17.
At the hearing on 2 December 2004 the representatives of the parties participating in the written phase presented oral argument.
V – Analysis of the questions referred for a preliminary ruling
A –
The first question
18.
The Hessischer Verwaltungsgerichtshof wishes to know whether the municipal tax at issue is an excise duty within the meaning
of Article 3(2) of the framework directive or one of the taxes referred to in the second subparagraph of Article 3(3). The
reply depends on whether the chargeable event is to be classified as a supply of goods or as a supply of services; however,
as national legislation is involved, that is for the German court to establish, subject to the interpretive guidelines with
which the Court of Justice provides it, in accordance with the strict requirements of Community law.
1. Excise duties and Article 3 of the framework directive
19.
There is no doubt that, since it concerns a levy on the sale of alcoholic beverages, the case in the main action is subject
to the harmonising provisions of the framework directive which, although incomplete, govern the conditions for charging excise
duties, in particular the chargeable event and chargeability.
(11)
20.
In the Opinion I delivered on 9 November 2000 in
Van de Water (the case in which judgment was given on 5 April 2001),
(12)
I pointed out that those charges are designed to provide revenue for the Treasury, although they are also used to discourage
the consumption of certain products (point 25), and, I would now add, to promote certain activities.
(13)
21.
This multiple purpose, emphasised by the Court of Justice in
Commission v
France (paragraphs 18 and 19),
(14)
is recognised in the framework directive, when, in the third recital in the preamble, it refers to other indirect taxes for
specific purposes, a point which is given legal definition in Article 3.
22.
This provision, read in combination with Article 1, requires Member States to levy harmonised excise duties on alcohol and
alcoholic beverages (Article 3(1)), at the same time allowing them to apply other taxes ‘for specific purposes’, provided
that those taxes comply with the rules applicable for excise duty and VAT purposes (Article 3(2)) and, with some restrictions,
to levy taxes which cannot be characterised as VAT on the supply of services relating to those products (second subparagraph
of Article 3(3)).
23.
The Community legislature has thus considered it necessary to harmonise excise duties on the aforementioned goods, authorising
other taxes imposed for a specific purpose (Article 3(2)); taxes may also be levied, with no restrictions other than those
arising out of the existence of an internal market without borders and the common system of VAT, on the supply of services
‘relating to’ those products (Article 3(2)). In the latter case, the requirements are less strict than in the former, because
the duties are not levied on the product itself but on related activities, so that ‘supply of services relating to the products’
does not include those which are inseparably linked to their marketing, since otherwise the same goods would be taxed again;
it therefore includes only those which, in certain circumstances, may be associated with the product.
2. The distinction between ‘supply of goods’ and ‘supply of services’
24.
In Community tax law this intellectual exercise poses serious difficulties, since the directives which together govern the
VAT system, and those which refer to other indirect taxes, do not provide clear guidelines. For example, the Sixth VAT Directive
(15)
uses a negative criterion, stating in Article 6(1) that ‘supply of services’ is to mean any transaction which does not constitute
a supply of goods within the meaning of Article 5, thus making it a residual category, as I implied in the Opinion (point
7) I delivered on 4 May 2004 in
Temco Europe.
(16)
The framework directive is even more obscure, since it gives no definition in this regard, although the arrangement of Article
3 implies that, here too, the supply of services is ‘residual’, dissociable from the supply of goods strictly speaking, which
is why the second subparagraph of Article 3(3) treats it differently.
25.
Since the rules are imprecise, an effort must be made, in seeking to provide a uniform interpretation,
(17)
to distinguish clearly between the two economic situations. Defining the dividing line between the aforementioned terms will
not only serve the functional requirements of the internal market which, as is stated in the first recital, the framework
directive seeks to implement, but is also itself a requirement of the principle of legality in the field of taxation, to the
formal aspect of which (the requirement of express provision) is added substantive significance, amounting to legal certainty:
concepts must be accurate and precise in order that citizens may know beforehand the financial consequences of their acts
which are relevant for the purposes of taxation.
(18)
26.
The Court of Justice has addressed this question infrequently, but has had the opportunity to consider it in connection with
the catering sector. The judgment in
Faaborg-Gelting Linien,
(19)
ruling on the Sixth Directive, stated that in order to determine whether a transaction constitutes a supply of goods or a
supply of services regard must be had to all the circumstances in which the transaction in question takes place, in order
to identify its characteristic features (paragraph 12). Applying that rule, it added that the supply of prepared food and
drink for immediate consumption is the outcome of a series of services ranging from preparation to service in a receptacle,
whilst at the same time an infrastructure is placed at the customer’s disposal, (dining room, cloakroom, furniture, crockery).
However, transactions relating to ‘take-away’ food, which are not coupled with services designed to enhance consumption in
an appropriate setting, merely constitute a supply of goods (paragraphs 13 and 14).
27.
In the light of the above criteria, it held that the operation of a restaurant on ferries running a regular service between
the ports of Faaborg (Denmark) and Gelting (Germany) constituted a service (paragraph 15), because the components of that
kind of contract predominated, whereas the provision of food was only a small part of the whole transaction (paragraphs 13
and 14).
28.
As I have already stated in my Opinion in
Hotel Scandic Gåsabäck, cited above, the Court of Justice, adhering to the principle of ‘unity of service’, focused on the whole, describing it
in one way or the other depending on the predominant component. It is therefore not necessary to break the chargeable event
down into its various parts in order to charge them separately to VAT.
29.
In the present case, it is not a matter of considering the commercial activity of an economic operator in order to establish
which tax scheme applies to it within a general consumer tax, but of giving a precise definition of the legislative provision
which describes the chargeable event of an excise duty. The focus must therefore be on the legal definition, regardless of
the characteristics of the taxpayer’s operation. Otherwise, the debate becomes confused by the need to introduce qualifications
and derogations depending on the characteristics of the business, the manner in which it is conducted and the kind of premises
in which the drinks are supplied, disregarding principles, such as those of legality, equality and generality, which are the
bedrock of fiscal law.
30.
The GetrStS taxes the supply for consideration of alcoholic beverages for immediate consumption on the premises; it will be
appreciated, therefore, that the condition for application of the rule is fulfilled whether they are dispensed in a self-service
establishment, in which the customer serves himself with the product previously placed in display cases or vending machines,
receiving no attention from the seller other than for payment of the bill, or in a first-class restaurant, in which the supply
is accompanied by other additional sophisticated services; between these two extremes it is possible to imagine many different
situations.
(20)
If the rule in
Faaborg-Gelting Linien were applied outright, it would have to be agreed that the former situation would be a transfer of goods whereas the latter
would be a service, with the undesirable consequence that they would be subject to different Community legal schemes: the
first could only be subject to other indirect taxes for specific purposes under Article 3(2) of the directive, but there would
be nothing to prevent any tax other than VAT being levied on the service, in accordance with the second subparagraph of Article
3(3). The same considerations would apply if attention were focused, not on the environment, but on the type of consumption,
since the work involved in serving straight drinks is different from the work of preparing a cocktail, such as a cuba libre
or a caipiriña, or a more elaborate cocktail, a dry martini, a daiquiri or a grasshopper. It is therefore necessary to have
a single definition.
31.
The Hessischer Verwaltungsgerichtshof must therefore determine the chargeable event of the municipal duty in the light of
the following criteria:
- 1.
- The services mentioned in the second subparagraph of Article 3(3) of the framework directive are different from those which
form an integral part of the marketing of products subject to excise duty.
- 2.
- A legal transaction must be defined as a ‘supply of goods’ or ‘supply of services’, according to the predominant element,
after it has been assessed in its entirety; it is not necessary to break it down into its various components.
- 3.
- Attention should be focused on the legal definition of the chargeable event, rather than on the activity of the taxpayer.
32.
It really does not appear to be an easy task, because there are arguments for describing it as ‘a supply of goods’ but others
which lend weight to its definition as ‘a supply of services’.
33.
On the one hand, it has been argued that if, as its name suggests, the Frankfurt am Main tax is levied on the sale of alcoholic
beverages (with the exception of cider) for immediate consumption on the premises, that is to say regardless of the circumstances
in which the sale is made, then the focus is on the sale, the supply of the alcohol ready for drinking, so that according
to the criteria laid down in the judgment in
Faaborg-Gelting Linien the predominant elements point to a transfer of goods, an assessment which is reinforced by the finding that the tax is also
levied on the consumption by and the supply to the taxpayer’s employees, activities in which the components of a supply of
services are absent.
34.
Moreover, the sale of a product always involves a minimum of activity, but it does not occur to anybody to describe the operation
as a supply of services. For example, a tobacconist sells a packet of cigarettes in premises which are properly fitted out
and clean, where there is usually a waste‑paper bin for putting the cellophane in which the packet is wrapped; when a motorcar
is filled with petrol at a petrol station, the supplier provides paper with which the customer may wipe his hands and even
washrooms for that purpose; however, those subsidiary tasks do not make the transaction a supply of services within the meaning
of the second subparagraph of Article 3(3) of the framework directive.
35.
However, there are many more difficulties in accepting the argument put forward by the defendant authority in the main action:
when a person dines in a restaurant and asks for a bottle of wine, what percentage of supply of services corresponds to the
consumption of alcohol? Is this situation reflected in the bill? In the event that a person decides not to consume immediately
the drink he has bought at a bar and to take it home, is the transaction subject to the tax at issue?
36.
The above considerations reinforce the Commission’s view, which concurs with the classification given by the Hessischer Verwaltungsgerichtshof
in the order for reference, that the tax in question is an excise duty.
37.
On the other hand, there also are arguments which tend in other directions, since the chargeable event is not the marketing
of alcoholic beverages, but their sale for ‘immediate consumption,
on the premises’, which always requires the supply of a service, however small: the provision of the space and the necessary equipment. An
illustration of this is the fact that the sale of a drink in a shop is not subject to tax, even if the purchaser drinks it
immediately, without leaving the shop.
3. The legal consequences of the classification as ‘a supply of goods’
38.
In this case, the Hessischer Verwaltungsgerichtshof is not concerned with its effects, perhaps because it is clear that, under
Article 3(2) of the framework directive, the municipal tax at issue, in order to be lawful, must have a specific purpose and
comply with the rules governing other taxes.
39.
Nevertheless, the Court of Justice may, without exceeding its jurisdiction, provide the national court with criteria for interpretation
to enable it to carry out the comparative assessment which it is for that court to make.
40.
A proper understanding of that provision requires a teleological assessment of the framework directive, which, as pointed
out at the beginning of this Opinion, seeks to harmonise the legal rules governing products subject to excise duties, in order
to promote the proper functioning of the internal market.
(21)
In the light of the system introduced by the legislature and of the importance attached to fiscal cohesion as a means of
consolidating it, Article 3(2),
(22)
since it involves a derogation from the general scheme, must be interpreted restrictively.
a) The specific purpose
41.
A duty fulfils a specific purpose if its objective is not purely budgetary. This is stated in the judgments in
Commission v
France (paragraph 19) and
EKW and Wein & Co (paragraph 31), cited above. The full import of that statement was clarified by the pertinent remarks made by Advocate General
Saggio in his Opinion in the second of those cases (point 39).
42.
In the case of indirect taxes, separate from excise duties, purposes which, like excise duties, serve to obtain the funds
which public authorities need to complete the tasks entrusted to them cannot be regarded as specific purposes. Taxes with
specific purposes are usually used to penalise the consumption of certain goods and services liable to give rise to public
cost or to produce negative external effects (for example, those which cause harm to the environment, like batteries and tyres).
(23)
This approach to the problem favours giving that description to taxes whose purpose is to protect the environment and public
health.
(24)
43.
It is apparent that this kind of tax is therefore an instrument used by authorities to influence the behaviour of consumers,
encouraging them to avoid using certain products,
(25)
a purpose which is in accordance with the aim of promoting the extrafiscal aspect of these taxes, by levying them on undesirable
expenditure.
(26)
44.
The fact that taxes which Member States introduce pursuant to Article 3(2) of the framework directive constitute a derogation
requires them to prove a specific purpose different from that of the harmonised excise duties.
(27)
There is no evidence in the documents in the case that the tax in question had such a purpose: the order for reference and
the observations of the parties who have participated in these preliminary ruling proceedings are silent on this point, the
municipal local law makes no mention of it, and the doubts harboured were not dispelled at the hearing. In those circumstances,
I venture to say that it does not have a specific purpose, other than simply to obtain funds.
(28)
45.
In that respect, it is necessary to point out the important role played by consumer taxes in connection with budgets; they
are regarded as an essential part of national tax systems.
(29)
This is a clear feature of the German legal system, since the Grundgesetz (Basic Law) itself provides for the introduction
of local consumer taxes designed principally to meet the general public financing requirements in that field,
(30)
reinforcing the independence of the municipal authority.
(31)
46.
It may be thought that, notwithstanding the silence on the subject, the special objective of the Frankfurt am Main tax may
be inferred from its configuration and mode of calculation,
(32)
but there are shadows cast over this point too. The Court of Justice is not in possession of sufficient facts on which to
base a structural analysis with a view to giving the tax in question a precise definition. Perhaps there is no other solution,
because in the distribution of tasks entailed in the preliminary ruling procedure under Article 234 EC, the Court of Justice
must limit itself to offering the relevant interpretation of Community law, respecting the power of the national court to
apply that law to the case before it.
(33)
47.
To sum up, it is on this occasion for the Hessischer Verwaltungsgerichtshof to decide whether the Frankfurt am Main municipal
tax on beverages has a specific purpose, within the meaning of that expression in Article 3(2) of the framework directive,
in the light of the above criteria for interpretation and, in particular, of the criterion that a tax whose sole aim is to
swell the public coffers cannot be regarded as having such a purpose.
b) Compatibility with VAT and excise duties
48.
The second of the conditions laid down by Article 3(2) of the framework directive for the Member States to have the power
to introduce indirect consumer taxes, separate from the harmonised excise duties, is that they must comply with the rules
applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax and chargeability
and monitoring of the tax are concerned. The judgment in
EKW and Wein & Co, overcoming the contradictions between the various language versions, has held that that provision does not require Member
States to comply with all rules applicable for the purposes of both kinds of tax. It is sufficient that they should accord
with the general scheme of one or the other, as structured by the Community legislation (paragraph 47).
49.
In my view, the reply to this point must concur with the one given in the judgment in
EKW and Wein & Co in connection with the Austrian tax on ice creams and beverages, then under consideration, since its purpose and structure
are similar to those of the German tax now at issue.
50.
In so far as regards VAT, it is established that the tax does not comply with the rules on chargeability and calculation,
because that general tax is charged at each stage of the production and distribution process, and is calculated on the added
value of the goods and services, since the contribution payable when the transaction is made is the result of deducting the
contribution paid on the previous transaction, whereas the local tax at issue is claimed only when the product is passed on
to the person who is going to drink it, without any deduction of the contribution paid on previous transactions.
51.
Nor does it comply with the provisions applicable to excise duties, because, since it is determined in relation to the sale
price, it departs from the calculation methods listed in Directives 92/83 and 92/84, which are based on the quantity of liquid
or on its alcohol content. Furthermore, since it becomes chargeable when the beverage is supplied to the consumer, it also
fails to comply with the provisions of Article 6(1) of the framework directive, under which the tax becomes chargeable at
the time of ‘release for consumption’, that is to say, the moment at which the product departs from the suspension arrangement,
irrespective of whether or not it is supplied to the end user.
(34)
B –
The second question
52.
By this question the Hessischer Verwaltungsgerichtshof asks whether the expression ‘subject to the same proviso’, which begins
the second subparagraph of Article 3(3) of the framework directive, refers only to the conditions laid down in the previous
subparagraph (the absence of customs formalities) or, on the other hand, also to those included in Article 3(2), which I have
considered in the preceding pages.
53.
The Commission and the City of Frankfurt am Main agree on this point and support the first alternative. I share that opinion,
for several reasons.
54.
First, as the aforementioned institution argues, a literal interpretation of the provision in the various language versions
leads to that conclusion. The German text uses the expression ‘Voraussetzung’, in the singular, referring to only one condition,
which cannot be other than the one laid down in Article 3(3). The other languages, such as Spanish (‘con la misma limitación’),
French (‘sous le respect de cette même condition’), English (‘subject to the same proviso’) or Italian (‘ferma restando questa
condizione’) lend weight to that assessment.
55.
A systematic interpretation of Article 3 confirms that approach. Article 3(1) lists the products subject to harmonised excise
duty, Article 3(2) allows taxes having specific purposes to be levied on them and Article 3(3) authorises the taxation of
other goods (first subparagraph) and of the supply of services, whether or not they are related to the products listed in
Article 3(1) (second subparagraph). Both must comply with Community law and not hinder the implementation of the internal
market; therefore, the taxes in Article 3(2), as well as pursuing an aim different from that of the harmonised duties, must
comply with the rules governing those duties or VAT, whereas in the case of those in Article 3(3) it is sufficient that they
do not cause formalities at the internal borders and that they differ from the aforementioned general consumer tax; this last
requirement serves as a reminder of Article 33 of the Sixth Directive, under which the Member States may introduce other specific
consumer taxes.
56.
Advocate General Saggio expressed the same view in fact in the Opinion in
EKW and Wein & Co., although implicitly (point 52).
57.
Therefore, the expression ‘subject to the same proviso’ in the second subparagraph of Article 3(3) of the framework directive
refers only to the condition contained in the first subparagraph of Article 3(3).
VI – Conclusion
58.
In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the first question
referred for a preliminary ruling:
- ‘1.
- It is for the Hessischer Verwaltungsgerichtshof to determine the chargeable event of the Frankfurt am Main tax on beverages
in the light of the following criteria:
-
- 1.
- The services mentioned in the second subparagraph of Article 3(3) of Council Directive 92/12/EEC of 25 February 1992 on the
general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, are
different from those which form an integral part of the marketing of those products.
-
- 2.
- A legal transaction must be defined as ‘a supply of goods’ or ‘a supply of services’ according to the predominant element,
after it has been assessed in its entirety; it is not necessary to break it down into its various components.
-
- 3.
- Attention should be focused on the legal definition of the chargeable event, rather than on the activity of the taxpayer.
- 2.
- For the purposes of Article 3 (2) of the Directive, taxes which are imposed solely to obtain funds are not taxes for specific
purposes.’
59.
The second question referred for a preliminary ruling should be answered in the following terms: ‘The expression “subject
to the same proviso” which begins the second subparagraph of Article 3(3) of the directive refers only to the condition contained
in the first subparagraph of Article 3(3).’
- 1 –
- Original language: Spanish.
- 2 –
- Point 1 of the Opinion of 26 October 2004 delivered in Case C-376/03 D., which is pending judgment.
- 3 –
- Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the
holding, movement and monitoring of such products (OJ 1992 L 76, p. 1; ‘the framework directive’), amended, in so far as concerns
this case, by Council Directive 92/108/EEC of 14 December 1992 (OJ 1992 L 390, p. 124) and Council Directive 94/74/EC of 22
December 1994 (OJ 1994 L 365, p. 46).
- 4 –
- The harmonisation of the structures and of the rates of tax levied on mineral oils was effected by Directives 92/81/EEC and
92/82/EEC. Approximation in respect of alcohol and alcoholic beverages was dealt with in Directives 92/83/EEC and 92/84/EEC.
Lastly, Directives 92/79/EEC and 92/80/EEC fulfilled the same role in respect of cigarettes and manufactured tobacco. The
Council approved the six texts on 19 October 1992, and they were published in OJ 1992 L 316.
- 5 –
- .Gesetz und VerordnungsblattI, No 14, 23 March 1970, p. 225.
- 6 –
- .Amtsblatt der Stadt Frankfurt am Main, No 52, 24 December 1991.
- 7 –
- Satzung über die Erhebung einer Gertränkesteuer im Gebiet der Stadt Frankfurt am Main (Amtsblatt der Stadt Frankfurt am Main, No 25, 18 June 1996).
- 8 –
- .Amtsblatt der Stadt Frankfurt am Main, No 17, 25 April 2000.
- 9 –
- For the interpretation of ‘on the premises’, Paragraph 2(3) refers to the Gaststättengesetz (Law governing catering establishments)
of 5 May 1970 (Bundesgesetzblatt I, p. 465), as amended on 20 November 1998 (BundesgesetzblattI, p. 3418), which does not give a specific definition but provides certain guidelines, stating in Paragraph 1 that a person
who provides meals to be eaten on the premises runs a business of that kind.
- 10 –
- Case C-437/97 EKW and Wein & Co [2000] ECR I-1157.
- 11 –
- Under Article 5(1) of the framework directive, the products referred to in Article 3(1) are subject to duty at the time of
their production within the Community or of their importation into the Community and under Article 6(1) excise duty becomes
chargeable at the time of release for consumption.
- 12 –
- Case C-325/99 Van de Water [2001] ECR I-2729.
- 13 –
- Advocate General Saggio, in the Opinion he delivered on 1 July 1999 in EKW and Wein & Co., referred to the promotion of tourism, sport, culture and entertainment (point 39, in fine).
- 14 –
- Case C-434/97 Commission v France [2000] ECR I-1129.
- 15 –
- Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover
taxes – Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1, ‘the Sixth Directive’).
- 16 –
- Case C-284/03 Temco Europe [2004] ECR I-0000.
- 17 –
- Recently, in my Opinion of 23 November 2004 in Case C-412/03 Hotel Scandic Gåsabäck, in which judgment is pending, I proposed that the Court of Justice provide the national court with appropriate interpretive
guidelines for separating the two kinds of legal transaction, even though its view had not been sought (points 18 to 21).
- 18 –
- In the Opinion he delivered on 7 July 1987 in Case 353/85 Commission v United Kingdom [1988] ECR 817, Advocate General Mancini stated that, in the imposition of financial burdens, borderline situations must
be decided with precision.
- 19 –
- Case C-231/94 Faaborg-Gelting Linien [1996] ECR I-2395.
- 20 –
- I have already mentioned that Article 1 of the Gaststättengesetz suggests that the drinks establishment should be defined
as the premises in which they are served and consumed. German academic lawyers maintain that this commercial activity may
be carried out by automatic machines or by making the product available, so that the customer serves himself (Ehlers, D.,
‘Gewerbe-, Handwerks- und Gaststättenrecht’, in Besonderes Verwaltungsrecht, volume I, 2nd edition, Heidelberg 2000, pp. 96 et seq); there must be a temporal and spatial link between purchase and consumption,
a condition which is fulfilled if the shop has the relevant facilities (Schmidt, R., and Vollmöller, T., Kompendium Öffentliches Wirtschaftsrecht, 2nd edition, Heidelberg 2004, p. 320). It is even acceptable for the product to be sold through a window and drunk outside,
provided that the place in which it is supplied and the place in which it is consumed are near each other (Elmar, M., Das Gaststättengesetz, Heymanns, 13th edition, Cologne, Berlin, Bonn, Munich 1999, pp. 70 et seq.) and to be sold by an employer in the workplace
for employees to consume it in their workshops or offices (Hoffmann, E., and Seitter, O., Gaststättenrecht, ed. C.F.Müller, 4th edition, Heidelberg 1995, pp. 55 et seq.).
- 21 –
- The judgment in Case C-408/95 Eurotunnel and Others [1997] ECR I-6315 attributed to the framework directive the object of establishing the conditions applicable to the movement
of goods subject to excise duty within an internal market without fiscal frontiers (paragraph 7).
- 22 –
- It was characterised as such by both Advocate General Saggio in the Opinion cited above (points 23 and 28) and by Advocate
General Fennelly in his Opinion in Case C-346/97 Braathens [1999] ECR I-3419.
- 23 –
- They may also be applied to finance specific services of general interest (such as those connected with museums and libraries);
for this reason, Advocate General Saggio, in the Opinion I have referred to repeatedly, has regarded taxes designed to promote
tourism, sport, culture and entertainment as excise duties for specific purposes. It is interesting to consult the works of
Álvarez García, S., and Arizaga Junquera, M.C., ‘La influencia del derecho tributario europeo en la legislación española sobre
impuestos especiales’, and of Álvarez García, S., and Álvarez Villa, M.T., "Los impuestos especiales en la Unión Europea.
¿De una finalidad recaudatoria a la protección del medio ambiente?", both published in Noticias de la Unión Europea, numbers 134 (March 1996), pp. 71 to 79, and 183 (April 2000), pp. 87 to 94, respectively.
- 24 –
- The second paragraph of point 39 of the Opinion of Advocate General Saggio, cited above. Advocate General Fennelly referred
to the protection of the environment as a specific purpose of indirect taxes in the Opinion also cited above (point 14).
- 25 –
- In point 13 of the Opinion in Commission v France, Advocate General Saggio maintained that this kind of tax may achieve more effective protection of public health by discouraging
the consumption of alcohol by means of taxation. In point 25 of my Opinion in Van de Water I too referred to this objective, of which German academic lawyers are aware; see Jatzke, H., Das System des deutschen Verbrauchsteuerrechts unter Berücksichtigung der Ergebnisse der Verbrauchsteuerharmonisierung in
der Europäischen Unión, Berlin 1997, p. 61; and Stobbe, E., ‘Die Harmonisierung der besonderen Verbrauchsteuern in der Europäischen Gemeinschaft
(Teil 1)’, in Zeitschrift für Zölle und Verbrauchsteuern, 1993, No. 6, p. 171.
- 26 –
- Alonso González, L.M., Corona Ramón, J.F., and Valera Tabuela, F., La armonización fiscal en la Unión Europea, Editorial Cedecs,
Barcelona 1997, p. 74, maintain that one of the aims of the harmonisation process was to give priority to this component of
the excise duties.
- 27 –
- In the Opinion in Braathens, Advocate General Fennelly takes the view that ‘the burden of establishing the genuine ... purpose of the tax rests ... on
the national authorities’ (point 15, in fine).
- 28 –
- The Commission points out that at the meeting held at the municipal corporation on 8 November 1991 to present the reasons
for introducing the tax the only justification offered was that it would yield an estimated annual revenue of fifteen million
marks.
- 29 –
- Jatzke, H., on p. 56 of the work cited above, states that, in so far as concerns these indirect taxes, the intention to promote
improvements in public health has seldom been the foremost concern; financial aims usually predominate. He emphasises that
a decisive criterion for selecting the taxes which ought to be harmonised was their greater or lesser capacity for obtaining
funds, to the extent that, in his view, when in 1972 the Commission drew up a series of proposals for directives, it made
it clear that the main aim of the excise taxes was to provide funds, and that they should be levied on widely distributed
goods, but could also be used to restrict the use of products which were harmful to health.
- 30 –
- See Stobbe, E., op. cit., p. 172.
- 31 –
- In the Opinion in EKW and Wein & Co., Advocate General Saggio, after acknowledging that the Austrian tax under consideration, which was levied on ice creams and
beverages, helped to strengthen local autonomy, stated that ‘a duty cannot be considered to serve a specific purpose ... solely
because the revenues from it go to the budget of the municipal authority’. (second paragraph of point 41, in fine).
- 32 –
- Both criteria have been used by Advocates General Fennelly and Saggio in their Opinions, cited above.
- 33 –
- With regard to the powers shared between the Community Court and the national courts in the procedure under Article 234 EC,
and the crossing of the boundaries between them, on occasion, by the Court of Justice, reference may be had to the observations
I made in point 35 of the Opinion of 11 December 2003 in Case C-30/02 Recheio [2004] ECR I-0000.
- 34 –
- The suspension arrangement is the arrangement applied to the production, processing, holding and movement of products, excise
duty being suspended (Article 4(c) of the framework directive); it is therefore accorded to goods in respect of which, although
the taxable event (import to or production within the Community, in accordance with Article 5(1) of that legislation) has
occurred, the tax has not yet become chargeable. In order to understand the working of the general system of the framework
directive and, in particular, of the suspension arrangement, the Opinion in Van de Water, cited above, may be referred to.
