CELEX: 62014CJ0285
Reference for a preliminary ruling
Taxation
Directive 92/83/EEC
Excise duty
Beer
Article 4
Small independent breweries
Reduced rate of excise duty
Conditions
No operation under licence
Production in accordance with a process of a third party and authorised by it
Authorisation to use the trade marks of that third party

This request for a preliminary ruling concerns the interpretation of Article 4(2) 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
).
The request has been made in proceedings between the Directeur général des douanes et droits indirects (Director-General of Customs and Indirect Taxes), the Directeur régional des douanes et droits indirects d’Auvergne (Regional Director of Customs and Indirect Taxes, Auvergne), and Brasserie Bouquet SA (‘Brasserie Bouquet’) concerning the application of the reduced rate of excise duty to beer produced by it between 2007 and 2010.
Legal context
European Union law
The 3rd, 7th and 17th recitals in the preamble to Directive 92/83 state:
‘… it is important to the proper functioning of the internal market to determine common definitions for all the products concerned;
…
… in the case of beer produced in small independent breweries and ethyl alcohol produced in small distilleries, common solutions are required permitting Member States to apply reduced rates of duty to those products;
…
… in the cases where Member States are permitted to apply reduced rates, such reduced rates should not cause distortion of competition within the internal market.’
Article 4 of Directive 92/83 provides:
‘1.   Member States may apply reduced rates of duty, which may be differentiated in accordance with the annual production of the breweries concerned, to beer brewed by independent small breweries within the following limits:
—
the reduced rates shall not be applied to undertakings producing more than 200000 hl of beer per year,
—
the reduced rates, which may fall below the minimum rate, shall not be set more than 50% below the standard national rate of excise duty.
2.   For the purposes of the reduced rates the term “independent small brewery” shall mean a brewery which is legally and economically independent of any other brewery, which uses premises situated physically apart from those of any other brewery and does not operate under licence. However, where two or more small breweries cooperate, and their combined annual production does not exceed 200000 hl, those breweries may be treated as a single independent small brewery.
3.   Member States shall ensure that any reduced rates they may introduce apply equally to beer delivered into their territory from independent small breweries situated in other Member States. In particular they shall ensure that no individual delivery from another Member State ever bears more duty than its exact national equivalent.’
French law
Article 178-0a A in Annex III to the Code général des impôts (General Tax Code), which transposes Article 4 of Directive 92/83, provides as follows:
‘For the application of the reduced rates of the specific duty mentioned in the fifth to eighth paragraphs of Article 520 A, I(a) of the General Tax Code, a small independent brewery shall mean a brewery established in a Member State of the European Community which complies with each of the following criteria:
1.
it produces less than 200000 hl of beer annually;
2.
it is legally and economically independent of any other brewery;
3.
it uses premises situated physically apart from those of any other brewery;
4.
it does not operate under licence.
However, where two or more small breweries cooperate, and their combined annual production does not exceed 200000 hl, those breweries may be treated as a single independent small brewery.’
The dispute in the main proceedings and the question referred for a preliminary ruling
Brasserie Bouquet operates a restaurant in which it sells beer it has brewed itself.
Its beer production complies with an agreement of 10 December 1998, entitled ‘Contrat d’affiliation au Cercle des 3 brasseurs’ (Membership contract for the Circle of the Three Brewers) concluded with ICO 3B SARL (‘the membership contract’). Pursuant to the membership contract, that company has authorised Brasserie Bouquet to use its trade marks and its commercial designation ‘LES 3 BRASSEURS’, and has undertaken to pass on its know-how and, in particular, to supply the yeast strains.
In exchange, Brasserie Bouquet is to comply with the obligations in the document entitled ‘Bible du Cercle des 3 brasseurs’, which contains information relating, in particular, to the know-how and production process in a microbrewery. The membership contract also states that Brasserie Bouquet is required to obtain certain products exclusively from ICO 3B SARL and that it must pay that company an entrance fee to the ‘Cercle des 3 brasseurs’ as well as a fixed amount every month.
Considering that it satisfied the conditions laid down in Article 178-0a A of Annex III to the General Tax Code in order to be taxed as a small independent brewery, Brasserie Bouquet declared the quantities of beer produced at its establishment to the Customs Administration on the basis of the reduced rate of excise provided for in Article 520 A I(a) of the General Tax Code.
The Customs Administration issued Brasserie Bouquet with a revised assessment challenging the application of the reduced rate for the period from December 2007 to November 2010 and then sent it a recovery notice for the sum claimed.
Since its administrative complaint was unsuccessful, and its action before the Tribunal de grande instance de Clermont-Ferrand (Regional Court, Clermont-Ferrand) was dismissed, Brasserie Bouquet brought an appeal before the Cour d’appel de Riom (Court of Appeal, Riom), which upheld its appeal. The Customs Administration appealed against that decision before the Cour de cassation (Court of Cassation).
The Cour de cassation observes that, having regard to the conditions referred to in Article 4 of Directive 92/83, in order for a brewery to be classified as a small independent brewery and, therefore, benefit from the reduced rate of excise duty, it is necessary for the purposes of the dispute before it to know what is meant by the requirement that such a brewery must not ‘operate under licence’, as provided for in Article 4(2).
In those circumstances, the Cour de cassation decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must Article 4(2) of Directive 92/83 be interpreted as meaning that the term “operate under licence” refers exclusively to operation under a licence to exploit a patent or trade mark, or can that provision be interpreted as meaning that the term “operate under licence” refers to operation in accordance with a production process of a third party and authorised by that party?’
Consideration of the question referred for a preliminary ruling
As the French Government and the European Commission observe in their written submissions, the question referred, as formulated by the referring court, proposes two possible interpretations of the concept of ‘operate under licence’ within the meaning of Article 4(2) of Directive 92/83, whereas the membership contract contains elements which may fall within both interpretations. Pursuant to that contract, Brasserie Bouquet is authorised both to use ICO 3B SARL’s trade marks and to brew beer according to its production process.
It should be noted that, in the context of the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (see, inter alia, judgment in
Le Rayon d’Or
, C‑151/13,
EU:C:2014:185
, paragraph 25 and the case-law cited).
In that connection, it is apparent from the grounds for the request for a preliminary ruling that, for the purposes of determining the case before it, the referring court needs to know whether brewing beer under conditions such as those provided for in the membership contract constitutes ‘operat[ing] under licence’ within the meaning of Article 4(2), first sentence, of Directive 92/83.
Therefore, the question referred must be understood as asking essentially whether, for the purposes of applying the reduced rate of excise duty on beer, the condition laid down in Article 4(2) of Directive 92/83 according to which a brewery must not operate under licence is not met if the brewery concerned makes its beer in accordance with an agreement pursuant to which it is authorised to use the trade marks and production process of a third party.
As regards the concept of ‘operate under licence’ as laid down in Article 4(2) of Directive 92/83, it is clear both from the third recital in the preamble to and from the title of Directive 92/83 that, in order to ensure the proper functioning of the internal market, that directive seeks to establish common definitions for all the products concerned, and was adopted as part of a policy designed to harmonise the structures of excise duty on alcohol and alcoholic beverages. In order to ensure that Directive 92/83 is applied in a uniform fashion, the terms in it must be interpreted independently on the basis of the wording of the provisions in question and the purpose of that directive (see judgment in
Glückauf Brauerei
, C‑83/08,
EU:C:2009:228
, paragraph 21 and the case-law cited).
Furthermore, by providing for the application of a reduced rate of excise duty on beer brewed by small independent breweries under certain conditions, Article 4 of Directive 92/83 constitutes a derogation from the application of the normal rate of excise duty on beer. The conditions for application of the reduced rate of duty must, therefore, be interpreted strictly.
As regards those conditions, Article 4(1) contains a quantitative condition relating to the maximum annual production of a brewery of 200000 hectolitres of beer. Article 4(2), which provides that an independent brewery is a brewery which is legally and economically independent of any other brewery, which uses premises situated physically apart from those of any other brewery, and does not operate under licence, thereby lays down a qualitative condition concerning that brewery’s independence from any other brewery (see, to that effect, judgment in
Glückauf Brauerei
, C‑83/08,
EU:C:2009:228
, paragraphs 22 to 24).
As far as concerns the objective of Directive 92/83 with respect to beer produced in small independent breweries, it follows from the 7th and 17th recitals in the preamble to that directive, that it seeks common solutions to permit Member States to apply reduced rates of duty to those products, while not allowing those reduced rates to lead to distortions of competition in the internal market. Therefore, that directive seeks to prevent the benefits of such a reduction from being granted to breweries, the size and capacity of which could cause such distortions (see, to that effect, judgment in
Glückauf Brauerei
, C‑83/08,
EU:C:2009:228
, paragraphs 25 and 26).
Article 4(2) of Directive 92/83 requires, as a consequence that small breweries — the annual beer production of which is less than 200000 hectolitres — should be genuinely autonomous from any other brewery both as regards their legal and economic structure, and as regards their production structure, where they use physically separate premises and do not operate under licence (judgment in
Glückauf Brauerei
, C‑83/08,
EU:C:2009:228
, paragraph 27).
Thus, the requirement not to operate under licence is one of the requirements aiming to ensure that the small brewery concerned is genuinely independent from any other brewery. It follows that the notion of ‘operat[ing] under licence’ must be interpreted so that it includes beer making subject to any form of authorisation which results in that small brewery not being completely independent of the third party which has given it that authorisation. Such is the case as regards an authorisation to exploit a patent, a trade mark or a production process belonging to that third party.
It follows that a brewery in a situation such as that of Brasserie Bouquet, which produces its beer in accordance with the terms of the membership contract, does not satisfy the requirement laid down by Article 4(2) of Directive 92/83 not to operate under licence. First, pursuant to that contract, it has the right to use its contracting partner’s trade marks. Second, it is authorised to make beer according to ICO 3B SARL’s production process, since it benefits, in accordance with that contract, from that company’s know how, as set out in the document entitled ‘Bible du Cercle des 3 brasseurs’, which contains, inter alia, the description of the process and the production methods for beer in a microbrewery.
In the light of the foregoing, the answer to the question referred is that, for the purposes of the applying the reduced rate of excise duty to beer, the condition laid down in Article 4(2) of Directive 92/83 according to which a brewery must not operate under licence, is not met if the brewery concerned makes its beer in accordance with an agreement pursuant to which it is authorised to use the trade marks and production process of a third party.
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 (Tenth Chamber) hereby rules:

For the purpose of applying the reduced rate of excise duty on beer the condition laid down in Article 4(2) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages according to which a brewery must not operate under licence, is not met if the brewery concerned makes its beer in accordance with an agreement pursuant to which it is authorised to use the trade marks and production process of a third party.

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