Provisional text

ORDER OF THE COURT (Ninth Chamber)

16 July 2024 (*)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Questions the answer to which may be clearly deduced from the Court’s existing case-law or admits of no reasonable doubt – Directive 92/83/EEC – Article 3(1) – Calculation of the amount of excise duty levied on beer – Method of calculating degrees Plato – Legislative amendment intended to clarify that method – Directive (EU) 2020/1151 – Article 1(1) – No effect of that directive on previously existing situations)

In Case C‑724/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Dioikitiko Protodikeio Thessalonikis (Administrative Court of First Instance, Thessaloniki, Greece), made by decision of 29 September 2023, received at the Court on 28 November 2023, in the proceedings

ATHINAÏKI ZYTHOPOIIA AE

v

Anexartiti Archi Dimosion Esodon,

THE COURT (Ninth Chamber),

composed of O. Spineanu-Matei, President of the Chamber, C. Lycourgos (Rapporteur), President of the Fourth Chamber, and L.S. Rossi, Judge,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        This request for a preliminary ruling concerns the interpretation of Article 1 of Council Directive (EU) 2020/1151 of 29 July 2020 amending Directive 92/83/EEC on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 2020 L 256, p. 1), in so far as that provision amended Article 3(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21).

2        The request has been made in proceedings between ATHINAÏKI ZYTHOPOIIA AE (‘Athinaïki Zythopoiia’) and the Anexartiti Archi Dimosion Esodon (Independent Authority for Public Revenue, Greece) (‘the AADE’) regarding excise duties levied for 2019 on flavoured beer manufactured and marketed by that company.

 Legal context

 European Union law

3        In its initial version, Article 3(1) of Directive 92/83 was worded as follows:

‘The excise duty levied by Member States on beer shall be fixed by reference either:

–      to the number of hectolitre/degrees Plato,

or

–      to the number of hectolitre/degrees of actual alcoholic strength by volume

of finished product.’

4        Recitals 2 and 3 of Directive 2020/1151 state:

‘(2)      In order to ensure the uniform application of the conditions for fixing excise duty on beer, it is necessary to lay down conditions for measuring the degree Plato. More particularly, as regards measuring the degree Plato for sweetened or flavoured beer, it is important to specify that the ingredients of the beer that have been added after fermentation are also to be taken into account for the purpose of measuring the degree Plato. In view of practical difficulties linked to the identification and measurement of the dry extract of the original wort of the finished product, such specification is necessary and justified by the need to provide a harmonised approach that would ensure the correct and straightforward application of those rules by taxable persons concerned and by tax administrations as well as the effectiveness of fiscal supervision against risks of evasion, avoidance or abuse.

(3)      In order to ensure a smooth transition to a harmonised methodology for measuring the degree Plato of beer, it is appropriate to allow Member States which, on 29 July 2020, do not take ingredients of the beer that have been added after fermentation into account for the purposes of measuring the degree Plato, to continue to use the currently applied methodology for a transitional period of time.’

5        Article 1(1) of that directive added a second and third subparagraph to Article 3(1) of Directive 92/83. Those subparagraphs are worded as follows:

‘All the ingredients of the beer, including those added after the completion of fermentation, shall be taken into account for the purposes of measuring the degree Plato.

By way of derogation from the second subparagraph, Member States that, on 29 July 2020, do not take ingredients of the beer that have been added after fermentation into account for the purposes of measuring the degree Plato, may continue to do so until 31 December 2030.’

6        Under Article 2 of Directive 2020/1151, Member States were required to adopt and publish, by 31 December 2021, the laws, regulations and administrative provisions necessary to comply with that directive and to apply those provisions from 1 January 2022.

7        In accordance with Article 3 of Directive 2020/1151, it entered into force on the day following its publication in the Official Journal of the European Union.

 Greek law

8        At the time of the events in the main proceedings, Directive 92/83 was transposed into Greek law by Nomos 2960/2001 Ethnikos Teloneiakos Kodikas (Law 2960/2001 creating the National Customs Code, FEK A’ 265/22.11.2001), in the version flowing from Article 1(1) of Nomos 3336/2005 (Law 3336/2005, FEK A’ 96/20.04.2005) (‘the National Customs Code’).

9        In accordance with Article 86 of the National Customs Code, the term ‘beer’ covers two types of products with an actual alcoholic strength by volume exceeding 0.5% vol., that is, first, alcoholic beverages under heading 2203 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Implementing Regulation (EU) 2015/1754 of 6 October 2015 (OJ 2015 L 285, p. 1) (‘the CN’) and, second, mixtures of beer with non-alcoholic beverages under heading 2206 of the CN.

10      Article 87(1)(a) of the National Customs Code provides that the excise duty levied on those products is to be fixed by reference to the number of hectolitre per degrees Plato by volume, and Article 87(1)(c) empowers the executive authority to set the method for calculating degrees Plato.

11      On the basis of that delegated power, the Minister for Finance adopted Apofasi No 3006674/1102/0029/2010 ‘Tropos ypologismou vathmon PLATO sti byra’ (Decision No 3006674/1102/0029/2010 on the method for calculating degrees Plato in beer, FEK B’ 528/27.04.2010) (‘the decision of the Minister for Finance’).

12      According to Annex I to the decision of the Minister for Finance, for the purposes of that calculation, degrees Plato are the value expressing the mass, in grams (g), of the (dried) malt or other starchy or sugary raw materials contained in 100 cm³ (ml) or in 100 g of the wort from which the beer is brewed, before fermentation.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

13      Athinaïki Zythopoiia brews a flavoured beer with the trade name Amstel Radler. That product consists of a mixture of beer and non-alcoholic substances, that is, lemon juice, orange juice and sugar syrup. The addition of those substances takes place after completion of alcoholic fermentation and does not give rise to a new fermentation process.

14      Athinaïki Zythopoiia introduced, between February 2019 and January 2020, 12 tax declarations relating to excise duties and other taxes payable in respect of the sales of that product in 2019.

15      Following those declarations, it paid, in respect of those sales, EUR 1 087 279.10 in excise duties and EUR 44 534.96 in other taxes. Those amounts were fixed on the basis of an analysis, in a State laboratory, of samples of the flavoured beer in question in the main proceedings after fermentation and addition of non-alcoholic substances. According to that analysis, the degrees Plato of that product was 10.07. That number was rounded down to 10.

16      Of the view that the degrees Plato should have been measured in relation to the dry extract of the original wort before fermentation, not in relation to all the substances present in that flavoured beer, Athinaïki Zythopoiia made, on 10 April 2020, an application for reimbursement of half of the excise duties and other taxes paid. According to that company, a correct calculation, for that flavoured beer, would result in a number of degrees Plato of 5.

17      In support of that application for partial reimbursement, Athinaïki Zythopoiia relied, inter alia, on the judgment of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325), in which the Court held that Article 3(1) of Directive 92/83 must be interpreted as meaning that, in order to determine the basis of assessment for flavoured beers according to the Plato scale, the dry extract of the original wort must be taken into consideration, but not the aromatic substances or sugar syrup added after the completion of fermentation.

18      As the application for partial reimbursement lodged by Athinaïki Zythopoiia was rejected implicitly by the Greek tax authorities, that company brought an action against the AADE before the Dioikitiko Protodikeio Thessalonikis (Administrative Court of First Instance, Thessaloniki, Greece), the referring court.

19      The AADE observes before that court that, in 2014, Athinaïki Zythopoiia was informed that the tax authorities interpreted the Greek legislation, including the decision of the Minister for Finance, as meaning that the degrees Plato of flavoured beers under heading 2206 of the CN must be calculated having regard to all the ingredients of the finished product, not only of the traditional beer under heading 2203 of the CN, which is integrated into the finished product as an ingredient.

20      In so far as Athinaïki Zythopoiia refers to the Court’s interpretation of Article 3(1) of Directive 92/83 in the judgment of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325), the AADE is of the view that that interpretation should not be taken into account, since Directive 2020/1151 clarifies that the calculation method to be used is not the method referred to by the Court, but the method consisting in taking into consideration all the ingredients of the finished product.

21      The referring court observes that the events in the main proceedings predate the entry into force, or even the adoption, of Directive 2020/1151. It infers that the new version of Article 3(1) of Directive 92/83, introduced by Directive 2020/1151, is not applicable.

22      That being said, that court is uncertain whether the clarification made in 2020, following a legislative procedure begun in 2016, that the degrees Plato must be calculated taking into consideration all the ingredients of the finished product, including those added after fermentation, is purely interpretative and should, as such, be taken into account in cases such as that in the main proceedings relating to events predating the entry into force of Directive 2020/1151.

23      Similarly, that court does not rule out that the clarification in Directive 2020/1151 is a ‘new element’ liable to lead the Court to review its interpretation in the judgment of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325).

24      In those circumstances, the Dioikitiko Protodikeio Thessalonikis (Administrative Court of First Instance, Thessaloniki) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Can Article 1 of [Directive 2020/1151], which added the following subparagraph to Article 3(1) [of Directive 92/83]: “All the ingredients of the beer, including those added after the completion of fermentation, shall be taken into account for the purposes of measuring the degree Plato” be regarded as genuinely interpretative in conveying the true meaning of the term “degree Plato” and how it is calculated?

(2)      If the previous question is answered in the affirmative, in relation to the period prior to the adoption of [Directive 2020/1151] and prior to the expiry of the period for its transposition into national law, that is to say, before 31 December 2021, in the context of an examination of an application for reimbursement by a Member State of unduly paid excise duty that calculated the degree Plato for the purpose of determining the excise duty on the ‘finished product’ including all the ingredients of the beer (even those added after the completion of fermentation), is the judgment of the Court of Justice of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325), which gave a diametrically opposed interpretation of the wording of Article 3(1) of Directive [92/83], binding?

(3)      If the first question is answered in the negative, can the adoption of the wording in Article 1 of [Directive 2020/1151], on the basis of the above reasoning, be in any event regarded as a fresh consideration that justifies (or requires) a further reference to the Court of Justice of the European Union regarding the interpretation of the wording of Article 3(1) of Directive [92/83] from the date of its entry into force (see order of 5 March 1986, Wünsche (69/85, EU:C:1986:104, paragraph 15); judgment of 11 June 1987, X (14/86, EU:C:1987:275, paragraph 12); judgment of 6 March 2003, Kaba (C‑466/00, EU:C:2003:127, paragraph 39); and order of 30 June 2016, Sokoll-Seebacher and Naderhirn (C‑634/15, EU:C:2016:510, paragraph 19))? In such a case, would the interpretation of that provision by the Court of Justice concerning the method of calculating the degree Plato for the purpose of determining the excise duty due differ from the decision given in the judgment of the Court of Justice of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325), referred to above?’

 Consideration of the questions referred

25      Under Article 99 of its Rules of Procedure, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

26      It is appropriate to apply that provision in the present case.

 The first question

27      By its first question, the referring court asks, in essence, whether Article 1(1) of Directive 2020/1151 is a purely interpretative provision, that is, a provision that does not amend the content of the applicable law but merely clarifies how that law must be understood.

28      The Court considers that the answer to that question admits of no reasonable doubt.

29      In that connection, it is apparent from recitals 2 and 3 of Directive 2020/1151 that the clarification introduced by Article 1(1) of that directive aims to guarantee a uniform method for calculating ‘degrees Plato’.

30      However, that clarification diverges from the Court’s interpretation of Article 3(1) of Directive 92/83 in the judgment of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325).

31      In paragraphs 26 to 28 of that judgment, failing any definition in EU legislation of the concept of ‘degrees Plato’ or method for calculating those degrees, the Court based its reasoning on the usual meaning of that concept in brewing.

32      In those paragraphs of that judgment, the Court set out that, in that field, the Plato scale enables the calculation of the percentage of dry extract in the mass of the original wort, one degree Plato being equivalent to 1 g of dry extract per 100 g of original wort. Original wort designates, up to the moment when the fermentation process begins, the mixture of water and other ingredients of the beer prepared for fermentation, such as barley malt and hops. The dry extract of original wort consists of all of the ingredients of the original wort other than water, before fermentation. Therefore, given the concept of ‘degrees Plato’ as understood in brewing, degrees Plato must be calculated without taking into account the aromatic substances and sugar syrup added after the fermentation process.

33      In paragraphs 31 to 42 of that judgment, the Court set out that that method for calculating degrees Plato is borne out by the context and purpose of Directive 92/83. That directive aims to impose a high rate of excise duty, which is higher the more the alcohol content increases. Having regard to that purpose, non-alcoholic substances remain neutral in calculating the degrees Plato and, therefore, in the calculation of excise duty.

34      In giving, as a preliminary ruling, that interpretation of Article 3(1) of Directive 92/83, the Court ensured the uniform effect of that provision in all the Member States (see, to that effect, judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraph 28 and the case-law cited).

35      By adding a new subparagraph to that provision imposing a uniform application different from that flowing from the judgment of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325), the EU legislature amended the state of EU law as far as the method for calculating the degrees Plato is concerned. Consequently, Article 1(1) of Directive 2020/1151 must be regarded as amending the applicable law, not as a provision merely clarifying how that law must be understood.

36      It follows that the answer to the first question is that Article 1(1) of Directive 2020/1151 must be interpreted as not being a purely interpretative provision.

 The second question

37      Given that the first question has been answered in the negative, there is no need to answer the second question.

 The third question

38      By its third question, the referring court asks, in essence, whether Article 1(1) of Directive 2020/1151 is a new element justifying the Court’s review of, or requiring the Court to review, its interpretation of the previous version of Article 3(1) of Directive 92/83, which is applicable to the case in the main proceedings.

39      The answer to that question can be clearly inferred from case-law.

40      It is settled case-law that a new legal rule applies from the entry into force of the act which introduces it and does not therefore apply to legal situations which arose and became definitive prior to that entry into force. It applies to the future effects of a situation which arose under old law and to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down the conditions for its temporal application (judgment of 14 May 2020, Azienda Municipale Ambiente, C‑15/19, EU:C:2020:371, paragraph 57 and the case-law cited).

41      It may also exceptionally be otherwise where an aim in the public interest so demands and where the legitimate expectations of those concerned are duly respected (judgment of 25 January 2022, VYSOČINA WIND, C‑181/20, EU:C:2022:51, paragraph 49 and the case-law cited).

42      In the present case, neither Directive 2020/1151 nor the new version of Article 3(1) of Directive 92/83 which resulted therefrom contains provisions making it possible to apply that new version to a legal situation which had arisen and became definitive, such as that of levying excise duties for 2019.

43      It is apparent, on the contrary, from Article 2 of Directive 2020/1151 that Member States were given a period for implementation which expired after the directive entered into force, in order to comply with the amendments made by the directive. In addition, it is apparent from the third subparagraph of Article 3(1) of Directive 92/83, in the version resulting from Directive 2020/1151, that the method for calculating degrees Plato, as specified in the second subparagraph of that article, will be binding only as from 1 January 2031 for the Member States who based their calculation, on the date on which Directive 2020/1151 was adopted, on another method.

44      It follows that Directive 2020/1151 can be interpreted only as allowing the second subparagraph added by Article 1(1) of that directive to Article 3(1) of Directive 92/83 to be applied to a legal situation, such as that in the main proceedings, which arose and became definitive before the date on which the period for implementation of Directive 2020/1151 expired.

45      Thus, the interpretation in the judgment of 17 May 2018, Kompania Piwowarska (C‑30/17, EU:C:2018:325), regarding Article 3(1) of Directive 92/83 in the version applicable to the case in the main proceedings, is binding on the Greek tax authorities and the referring court.

46      Therefore, the answer to the third question is that Article 1(1) of Directive 2020/1151 must be interpreted as not being a new element justifying the Court’s review of, or requiring the Court to review, its interpretation of the version of Article 3(1) of Directive 92/83 before the entry into force of Directive 2020/1151.

 Costs

47      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.

On those grounds, the Court (Ninth Chamber) hereby orders:

1.      Article 1(1) of Council Directive (EU) 2020/1151 of 29 July 2020 amending Directive 92/83/EEC on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages

must be interpreted as not being a purely interpretative provision.

2.      Article 1(1) of Directive 2020/1151

must be interpreted as not being a new element justifying the Court’s review of, or requiring the Court to review, its interpretation of the version of Article 3(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages before the entry into force of Directive 2020/1151.

[Signatures]

*      Language of the case: Greek.