CELEX: 62019CJ0184
Reference for a preliminary ruling
Directives 92/83/EEC and 92/84/EEC
Rates of excise duty on wine and still fermented beverages other than wine and beer
Differentiated rates of excise duty
Principles of legal certainty and the protection of legitimate expectations

This request for a preliminary ruling concerns the interpretation of Articles 7, 11 and 15 of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (JO 1992, L 316, p. 21), Article 5 of Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (JO 1992, L 316, p. 29) and the principles of legal certainty and the protection of legitimate expectations.
The request has been made in proceedings between Hecta Viticol SRL and the Agenţia Naţională de Administrare Fiscală – Direcţia Generală de Soluţionare a Contestaţiilor (National Agency for Tax Administration – Directorate-General for the settlement of complaints, Romania; ‘the ANAF’), the Biroul Vamal de Interior Buzău (Internal Customs Office, Buzău, Romania) and the Direcţia Generală Regională a Finanţelor Publice Galaţi (Regional Directorate-General for Public Finances, Galaţi, Romania) concerning a tax assessment notice fixing the excise duty payable by SC Principal Company SA, a company to whose rights Hecta Viticol has succeeded.
Legal context
European Union law
Directive 92/83
In the words of the third recital of Directive 92/83, ‘it is important to the proper functioning of the internal market to determine common definitions for all the products concerned [by the directive]’.
The tenth recital of that directive states that ‘in principle, Member States should apply a single rate per hectolitre of finished product to all still wine and other still fermented beverages, and a single rate of duty per hectolitre of finished product to all sparkling wine and sparkling fermented beverages’.
In that respect, Directive 92/83 identifies five categories of products, covered by the provisions of, respectively: Section I of that directive, which applies to ‘beer’; Section II, which applies to ‘wine’; Section III, which applies to ‘fermented beverages other than wine and beer’; Section IV, which applies to ‘intermediate products’; and Section V, which applies to ‘ethyl alcohol’.
Articles 7 and 9 of Directive 92/83 form part of Section II of the directive, entitled ‘wine’.
Article 7 of that directive provides:
‘1.   Member States shall apply an excise duty to wine in accordance with this Directive.
2.   Member States shall fix their rates in accordance with Directive 92/84/EEC.’
According to Article 8 of Directive 92/83, a distinction must be made, with respect to wine, between ‘still wine’ and ‘sparkling wine’.
Article 9(2) of that directive states as follows:
‘Except as provided in paragraphs 3 and 4, Member States shall levy the same rate of excise duty on all products chargeable with the duty on still wine. Similarly, they shall levy the same rate of excise duty on products chargeable with the duty on sparkling wine. They may apply the same rate of duty to both still and sparkling wine.’
Articles 11, 13 and 15 of that directive are in Section III, concerning ‘fermented beverages other than wine and beer’.
Article 11 of that directive is worded as follows:
‘1.   Member States shall apply an excise duty to fermented beverages other than beer and wine (other fermented beverages) in accordance with this Directive
2.   Member States shall fix their rates in accordance with Directive 92/84/EEC.’
According to Article 12 of Directive 92/83, a distinction is to be drawn, as regards fermented beverages other than beer and wine, between ‘other still fermented beverages’ and ‘other sparking fermented beverages’.
Article 13(2) of that directive states as follows:
‘Except as provided in paragraph 3, Member States shall levy the same rate of excise duty on all products chargeable with the duty on other still fermented beverages. Similarly they shall levy the same rate of excise duty on all products chargeable with the duty on other sparkling fermented beverages. They may apply the same rate of excise duty to both other still fermented beverages and other sparkling fermented beverages.’
Article 15 of Directive 92/83 provides:
‘For the application of Directive 92/84/EEC and [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
)], references to “wine” shall be deemed to apply equally to other fermented beverages as defined in this section.’
Directive 92/84
Article 5 of Directive 92/84 provides:
‘As from January 1993, the minimum rate of excise duty on wine shall be fixed:
–
for still wine at [EUR] 0,
and
–
for sparkling wine at [EUR] 0,
per hectolitre of product.’
Romanian law
Legea nr. 571/2003, privind Codul fiscal (Law No 571/2003 on the Tax Code) of 22 December 2003 (
Monitorul Oficial al României
, Part I, No 927 of 23 December 2003), in the version applicable to the dispute in the main proceedings (‘the Tax Code’), provides, in Article 206
, concerning ‘wine’:
‘1.   For the purposes of this Chapter, “wine” means:
(a)
still wine, consisting of all products coming within Codes CN 2204 and 2205, apart from sparkling wine as defined in paragraph (b), which:
1.
have an actual alcoholic strength by volume exceeding 1.2%, but not exceeding 15%, provided that the alcohol contained in the finished product is entirely of fermented origin; or
2.
have an actual alcoholic strength by volume exceeding 15%, but not exceeding 18%, provided they have been produced without any enrichment and the alcohol contained in the finished product is entirely of fermented origin;
(b)
sparkling wine, consisting of all products coming within Codes CN 220410, 22042110, 22042910 and 2205, which:
1.
are contained in bottles with “mushroom stoppers” secured by ties or fastenings or have excess pressure due to carbon dioxide in solution of 3 bar or more;
2.
have an actual alcoholic strength by volume exceeding 1.2% but not exceeding 15%, provided that the alcohol contained in the finished product is entirely of fermented origin.
…’
Article 206
of the Tax Code, concerning ‘fermented beverages other than beer and wine’, states:
‘1.   For the purposes of this Chapter, fermented beverages other than beer and wine are:
(a)
still fermented beverages coming within Codes CN 2204 and 2205 which are not referred to in Article 206
, and all products coming within Code CN 220600, except other sparkling fermented beverages within the meaning of paragraph (b) and any product covered by Article 206
, having:
1.
an actual alcoholic strength by volume exceeding 1.2% but not exceeding 10%; or
2.
an actual alcoholic strength by volume exceeding 10% but not exceeding 15%, provided that the alcohol contained in the product is entirely of fermented origin;
(b)
sparkling fermented beverages coming within Codes CN 22060031, 22060039, 220410, 22042110, 22042910 and 2205, not referred to in Article 206
and which are contained in bottles with “mushroom stoppers” secured by ties or fastenings or have excess pressure due to carbon dioxide in solution of 3 bar or more, and which:
1.
have an actual alcoholic strength by volume exceeding 1.2% but not exceeding13%; or
2.
have an actual alcoholic strength by volume exceeding 13% but not exceeding 15%, provided that the alcohol contained in the product is entirely of fermented origin.
…’
In the words of Article 206
(1) of the Tax Code:
‘It shall be the responsibility of each person subject to excise duties to calculate correctly and pay the duties to the Treasury within the period prescribed by law and also to submit an excise return with the competent authority within the period prescribed by law, in accordance with the provisions of this Chapter and the customs legislation in force.’
In the version prior to 1 July 2010, Annex I to Title VII of the Tax Code set, in subparagraph 3.1, an excise rate of zero for ‘still’ beverages in the category of ‘Fermented beverages other than beer and wine’.
Article I(21) of Ordonanţa de urgenţă a Guvernului nr. 54/2010, privind unele măsuri pentru combaterea evaziunii fiscale (Government Emergency Order No 54/2010 laying down measures to combat tax evasion) of 23 June 2010 (
Monitorul Oficial al României
, Part I, No 421 of 23 June 2010, (‘the OUG No 54/2010’), sets the excise rate on still fermented beverages other than wine and beer at EUR 100 per hectolitre of product.
Article IV(1) of the OUG No 54/2010 states that that provision was to enter into force with effect from 1 July 2010.
The dispute in the main proceedings and the questions referred for a preliminary ruling
Following a tax inspection, it was established on 29 April 2011 that SC Principal Company had sold 13929342 litres of non-sparkling fermented beverages other than wine and beer since 1 July 2010.
As that company had applied a rate of excise duty of zero to that quantity, the tax authorities issued a tax assessment notice on 3 May 2011 on the basis of the rate of excise duty set in Article I(21) of the OUG No 54/2010, in the amount of 59461575 Romanian lei (RON) (approximately EUR 12339419).
SC Principal Company lodged a complaint against that notice, which was rejected by decision of the ANAF of 25 July 2017, after the Curtea Constituţională (Constitutional Court, Romania) had confirmed that the OUG No 54/2010 was compatible with the constitution.
Hecta Viticol, the successor in title to SC Principal Company with effect from 14 June 2013, brought an action before the referring court seeking annulment of the ANAF’s decision, of the tax assessment notice of 3 May 2011 and of the inspection report of 29 April 2011.
Hecta Viticol maintains that, until 1 July 2010, still wine and still fermented beverages other than wine and beer were zero-rated for the purposes of excise duty. From that date, only still fermented beverages other than wine and beer have been subject to a rate of excise duty of EUR 100 per hectolitre of product. It submits that the differentiated treatment thus introduced is incompatible with the provisions of Directives 92/83 and 92/84.
In addition, the referring court states that the Tax Code establishes the principles of fiscal neutrality, certainty as to taxation and legal certainty. The absence of transitional arrangements and the entry into force of the OUG No 54/2010 eight days after it publication may be incompatible with those principles.
In those circumstances, the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Do Articles 7, 11 and 15 of Directive 92/83 … and Article 5 of Directive 92/84 … preclude Article I(21) and Article IV(1) of [the OUG No 54/2010]?
(2)
Do the principles of legal certainty and the protection of legitimate [expectations] preclude the rule laid down in Article I(21) and Article IV(1) of [the OUG No 54/2010] inasmuch as it alters the rate of excise duty on still fermented beverages other than beer and wine?’
The jurisdiction of the Court
The Romanian Government claims that the Court does not have jurisdiction to assess the compatibility of national law with EU law and, furthermore, that the provisions of EU law do not cover the procedural rules for amending the rates of excise duty on alcoholic beverages and that the Member States alone are therefore competent to set those rates.
In that regard, in the first place, it should be borne in mind that while, in proceedings under Article 267 TFEU, the Court does not have jurisdiction to rule on the compatibility of a national measure with EU law, it may, nevertheless, extract from the wording of the questions formulated by the national court, and having regard to the facts stated by the latter, those elements that concern the interpretation of EU law for the purpose of enabling that court to resolve the legal problems before it (judgment of 17 July 2008, ASM Brescia,
C‑347/06
,
EU:C:2008:416
, paragraph
).
The order for reference contains sufficient information that meets those requirements, as the referring court has stated that an interpretation of Articles 7, 11 and 15 of Directive 92/83, Article 5 of Directive 92/84 and the principles of legal certainty and the protection of legitimate expectations is necessary in order for it to rule on the compatibility with EU law of Article I(21) and Article IV(1) of the OUG No 54/2010.
In the second place, the principles of legal certainty and the protection of legitimate expectations form part of the EU legal order. They must accordingly be observed not only by the EU institutions, but also by the Member States when they exercise the powers conferred on them by EU directives (judgment of 9 June 2016, Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft,
C‑332/14
,
EU:C:2016:417
, paragraph
and the case-law cited).
Consequently, and since the referring court expresses doubts as to the compatibility of the national provisions at issue in the main proceedings with the provisions of Directives 92/83 and 92/84 and with the principles of legal certainty and the protection of legitimate expectations, it is for the Court to interpret those provisions and principles, in order to provide the national court with an answer which will be of use it to in resolving the dispute before it.
The Court therefore has jurisdiction to answer the questions submitted by the referring court.
Consideration of the questions referred
The first question
By its first question, the referring court asks, in essence, whether Articles 7, 11 and 15 of Directive 92/83 and Article 5 of Directive 92/84 must be interpreted as requiring that the same rate of excise duty be applied to alcoholic beverages coming within the category ‘wine’, within the meaning of Directive 92/83, and on those coming within the category ‘fermented beverages other than wine and beer’, within the meaning of that directive.
As a preliminary point, it should be borne in mind that the purpose of Directive 92/83 is to harmonise the structures of excise duties on alcohol and alcoholic beverages.
To that end, in accordance with the third recital thereof, Directive 92/83 establishes common definitions for those products.
That directive distinguishes, for that purpose, different categories of alcohol and alcoholic beverages, referring to the codes of the combined nomenclature, including, in Section II, ‘wine’ and, in Section III, ‘fermented beverages other than wine and beer’.
Under Article 9(2) of Directive 92/83, a single rate of excise duty must be applied to all products coming within the sub-category ‘still wine’, and likewise a single rate of excise duty must be applied to all products coming within the sub-category ‘sparkling wine’, although Member States may apply the same rate of duty to both of those sub-categories.
Article 13(2) of Directive 92/83 provides that a single rate of excise duty must be applied to all products coming within the sub-category ‘other still fermented beverages’, and likewise that a single rate of excise duty must be applied to all products coming within the sub-category ‘other sparkling fermented beverages’, although Member States may apply the same rate to both of those sub-categories.
It follows that the EU legislature intended to draw a clear distinction between the categories ‘wine’ and ‘other fermented beverages’, requiring the Member States to levy, in principle, the same rate of duty within each sub-category of those categories, although they are not required to apply the same rate to beverages coming within those categories.
Such an interpretation, which is apparent from the actual wording of those provisions of Directive 92/83, cannot be called into question by Hecta Viticol’s reading of Article 15 of that directive, in conjunction with the first indent of Article 5 of Directive 92/84.
Although Article 15 of Directive 92/83 makes clear that the provisions referring to ‘wine’ are to be deemed to apply equally to other fermented beverages coming within Section III of that directive, for the purposes of the application of, in particular, Directive 92/84 and Directive 92/12, such a semantic simplification must be understood as applying only in the context of those directives in so far as they do not lay down specific rules for fermented beverages other than wine and beer.
That, in particular, is the case – as regards the first indent of Article 5 – of Directive 92/84, which fixes, first, a minimum rate of excise duty of zero for still wine and, second, a minimum rate of excise duty of zero for sparkling wine, without specifying a minimum rate of excise duty for fermented beverages other than wine and beer.
However, as that provision merely fixes a minimum rate of excise duty, it does not impose an obligation to apply the same rate for wine and fermented beverages other than wine and beer.
The interpretation given in paragraph 41 above is not called into question by the fact that, according to the tenth recital of Directive 92/83, Member States are, in principle, to apply a single rate of excise duty to all still wine and other still fermented beverages and a single rate of excise duty to all sparkling wine and sparkling fermented beverages. It does not follow from that recital that Member States would be prevented from applying different rates in that respect.
The judgment of 4 March 1986, Commission v Denmark (
106/84
,
EU:C:1986:99
), on which Hecta Viticol relies, does not contradict that interpretation.
It should be borne in mind that, in the case that gave rise to that judgment, the infringement proceedings brought by the European Commission against the Kingdom of Denmark were based on the infringement of Article 95 of the EEC Treaty, which prohibited Member States from taxing imported products more heavily than similar national products.
Against that background, the Court stated, in paragraph 20 of the judgment of 4 March 1986, Commission v Denmark (
106/84
,
EU:C:1986:99
), that Member States were in principle free to lay down tax arrangements that differentiate between certain products, even products which are similar, on the basis of objective criteria.
It follows from the foregoing considerations that the answer to the first question is that Article 7, 11 and 15 of Directive 92/83 and Article 5 of Directive 92/84 must be interpreted as not requiring that the same rates of excise duty be applied to alcoholic beverages coming within the category ‘wine’, within the meaning of Directive 92/83, and for those coming within the category ‘fermented beverages other than wine and beer’, within the meaning of that directive.
The second question
By its second question, the referring court asks, in essence, whether the principles of legal certainty and the protection of legitimate expectations must be interpreted as precluding national legislation which amends the rate of excise duty on fermented beverages other than wine and beer without providing for transitional arrangements, when such an amendment enters into force eight days after publication of the measure introducing it.
As a preliminary point, it should be borne in mind that the principles of legal certainty and the protection of legitimate expectations require, first, that rules of law must be clear and precise and, second, that their application must be foreseeable by those subject to them (see, to that effect, judgment of 11 September 2019, Călin,
C‑676/17
,
EU:C:2019:700
, paragraph
and the case-law cited).
Likewise, in areas covered by EU law, the legal rules of the Member States must be worded unequivocally so as to give the persons concerned a clear and precise understanding of their rights and obligations and to enable national courts to ensure that those rights and obligations are observed (judgment of 9 July 2015, Salomie and Oltean,
C‑183/14
,
EU:C:2015:454
, paragraph
and the case-law cited).
In addition, it is in principle compatible with EU law for a new rule of law to apply from the entry into force of the measure introducing it, and the principles of legal certainty and the protection of legitimate expectations therefore do not preclude, in principle, a Member State from being able to amend an old law with immediate effect, without laying down transitional arrangements (judgment of 9 June 2016, Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft,
C‑332/14
,
EU:C:2016:417
, paragraph
).
However, in particular situations, where the principles of legal certainty and the protection of legitimate expectations so require, it may be necessary to introduce transitional arrangements appropriate to the circumstances.
Thus, a national legislature may breach the principles of legal certainty and the protection of legitimate expectations when it suddenly and unexpectedly adopts a new law which withdraws a right that taxable persons enjoyed until then, without allowing them the necessary time to adjust, when the objective to be attained did not so require (judgment of 9 June 2016, Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft,
C‑332/14
,
EU:C:2016:417
, paragraph
).
In particular, taxable persons must have time to adapt when withdrawal of the right which they enjoyed until then obliges them to carry out consequential economic adjustments (judgment of 9 June 2016, Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft,
C‑332/14
,
EU:C:2016:417
, paragraph
).
However, even if the increase in the rate of excise duty on still fermented beverages other than wine and beer of EUR 100 per hectolitre by the OUG No 54/2010, which entered into force eight days after publication of that measure in the
Monitorul Oficial al României
(Romanian Official Journal) of 23 June 2010, might be considered sudden and unexpected, it is not apparent that the conditions that would justify the adoption of appropriate transitional arrangements, set out in the two preceding paragraphs, would be satisfied in circumstances such as those at issue in the main proceedings.
First, the increase in the rate of excise duty at issue cannot be regarded in this instance as the withdrawal of a right to a zero rate.
Second, it does not seem that such an increase means in itself that taxable persons must carry out consequential economic adjustments, which is, however, a matter for the referring court to verify.
It follows from the foregoing considerations that the answer to the second question is that the principles of legal certainty and the protection of legitimate expectations must be interpreted as not precluding national legislation which amends the rate of excise duty on fermented beverages other than wine and beer without providing for transitional arrangements, when such an amendment enters into force eight days after publication of the measure introducing it and when it does not mean that taxable persons must carry out consequential economic adjustments, which is a matter for the referring court to verify.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1.
Articles 7, 11 and 15 of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages and Article 5 of Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages must be interpreted as not requiring that the same rates of excise duty be applied to alcoholic beverages coming within the category ‘wine’, within the meaning of Directive 92/83, and for those coming within the category ‘fermented beverages other than wine and beer’, within the meaning of that directive.

2.
The principles of legal certainty and the protection of legitimate expectations must be interpreted as not precluding national legislation which amends the rate of excise duty on fermented beverages other than wine and beer without providing for transitional arrangements, when such an amendment enters into force eight days after publication of the measure introducing it and when it does not mean that taxable persons must carry out consequential economic adjustments, which is a matter for the referring court to verify.

[Signatures]
(
*1
)	Language of the case: Romanian.