Keywords
Summary

Keywords

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1. Actions against Member States for failure to fulfil obligations - Subject matter of the action - Determined by the reasoned opinion - Subsequent extension - Not permissible

(EEC Treaty, Art. 169)

2. Tax provisions - Domestic taxation - System of taxation of beer - Levying of excise duty on the hot wort, regardless of wastage incurred in preparing the finished product - Flat-rate adjustment of excise duty on imports and refunds on exports - Compatibility with the first paragraph of Article 95 and Article 96 of the Treaty - Conditions - Application of a wastage rate higher than that of certain domestic producers - Not permissible (EEC Treaty, Arts 95, first paragraph, and 96)

Summary

1. In the context of proceedings for failure to fulfil an obligation brought by the Commission pursuant to Article 169 of the Treaty, the reasoned opinion defines the subject-matter of the proceedings and it cannot subsequently be extended. The possibility for the State concerned to present its observations is an essential guarantee envisaged by the Treaty, and is an essential procedural requirement for the proper conduct of the procedure for a finding that a Member State has failed to fulfil its obligations.

2. A system of taxation of beer in which excise duty is levied not on the finished product but on the hot wort, regardless of wastage incurred in subsequent stages of production and packaging, and in which, since it is technically impossible to verify a posteriori the actual wastage from hot wort, imported beer is taxed on the basis of the quantity of the finished product, to which a flat-rate adjustment is applied to take account of the presumed quantity of hot wort used, while exported beer gives rise to a refund of excise duty calculated at a flat rate, may be considered compatible with the first paragraph of Article 95 and Article 96 of the Treaty only if it is established that the system has been so arranged as to exclude any possibility of imported beer being taxed more heavily than domestic beer or of refunds arising on the export of beer exceeding excise duty levied on the product before export.

Accordingly, a Member State which, in implementing such a system for the taxation of beer, for the purposes of the levying of excise duty on imports of beer and the refund of duty on exports, applies a rate of wastage incurred between the wort and the finished product which exceeds that of certain domestic breweries, is failing to fulfil its obligations under Articles 95 and 96 of the EEC Treaty.