Opinion of the Advocate General — ECLI:EU:C:2010:434
Date: 2010-07-15
Language of the case: English
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, I propose the following answer to the first question: Wine and port which, for the purpose of being used as cooking wine or cooking port, have been mixed with so much salt and pepper that they are unfit for consumption as beverages do not fall within the definition of ethyl alcohol under Article 20, first indent, of Directive 92/83. B – The second, third and fourth questions: the possible exemptions for cooking liquors and the form of those exemptions 64. The second, third and fourth questions concern the possible exemptions for cooking liquors and their form. 65. According to my suggested answer to the first question, (43) the seized cooking wine and cooking port are not subject to excise duty, so that in that respect the problem of any exemption does not arise. However, the second, third and fourth questions are in any event still relevant in relation to the seized cooking cognac because it is subject to excise duty under Article 20, first indent, of Directive 92/83. (44) 1. The possible exemptions (third question) 66. First of all, in the third question, the referring court asks on what legal basis an exemption of cooking liquors from the harmonised excise duty should be granted under Directive 92/83. (45) 67. There are two possible exemptions. Firstly, under Article 27(1)(e) of Directive 92/83, an exemption from excise duty is to be granted in respect of alcohol and alcoholic beverages which are used for the production of flavours for the preparation of foodstuffs and non‑alcoholic beverages with an alcoholic strength not exceeding 1.2% volume. Secondly, under Article 27(1)(f) of Directive 92/83, an exemption from excise duty arises inter alia when alcohol or alcoholic products are used for the production of foodstuffs, provided that the alcoholic content does not exceed 5 litres of pure alcohol per 100 kg of the product. 68. First, as regards Article 27(1)(e) of Directive 92/83, it is certainly not inconceivable from the outset that cooking liquors may be used for the production of flavours for the preparation of foodstuffs. According to all the information before the Court, however, that is not the purpose for which the cooking liquors are used in this case, and in any event not the primary purpose. 69. The cooking liquors at issue in these proceedings are in fact intended to be used directly in the production of foodstuffs, not in a process prior to cooking, in which only flavours are generated. Even sauces which are prepared using cooking liquors are not flavours within the meaning of Article 27(1)(e) of Directive 92/83. On the contrary, such sauces are themselves foodstuffs which are either consumed as an ingredient of meals or served with them. 70. Consequently, the relevant provision for the exemption of cooking liquors such as those at issue here is not Article 27(1)(e) but Article 27(1)(f) of Directive 92/83. This is also supported by the fact that wine, port and cognac are not used in cooking exclusively as flavouring ingredients, but perform a wider function, such as in simmering meat dishes or in flambés. The Commission correctly drew attention to this. (46) 71. The Court itself acknowledged in its judgment in Gourmet Classic that an exemption of cooking liquors from excise duty may apply under Article 27(1)(f) of Directive 92/83. (47) That exemption depends on three conditions. 72. Firstly, the product in question must be alcohol or an alcoholic product within the meaning of Directive 92/83. That applies in any event to the cooking cognac at issue here because, as already mentioned, it must be regarded as ethyl alcohol liable to excise duty under Article 20, first indent, of Directive 92/83. (48) 73. Secondly, the cooking liquors must be used for the production of foodstuffs. That is also indisputably the case here. The production of foodstuffs is even the only purpose for which the seized cooking liquors are used, since they are unfit for consumption as beverages. 74. Thirdly, the alcoholic content must not exceed ‘5 litres of pure alcohol per 100 kg of the product’. 75. In that respect, the wording of Article 27(1)(f) of Directive 92/83 may give rise to misunderstandings, because it is not clear whether it refers to an upper limit for the alcoholic content of the cooking liquor used or for the alcoholic content of the foodstuff produced. The latter approach is preferable. 76. The objective of Article 27(1)(f) of Directive 92/83 is not to favour particular methods of production of foodstuffs, by providing that only ingredients with a relatively low alcoholic content give rise to exemption from excise duty. On the contrary, the intention is to neutralise the impact of excise duties on alcohol used as an intermediate product in other commercial or industrial products. (49) 77. In addition, the intention is to ensure that excise duty is levied on the actual consumption of alcohol irrespective of the form in which it is presented. An exemption should be granted only when the residual alcohol in food products which is consumed by the end-user is below a de minimis threshold laid down by the Union legislature, namely 5 litres of pure alcohol per 100 kg of the final product. 78. The decisive criterion for exemption is thus the alcoholic content of the foodstuff produced using a cooking liquor, but not the alcoholic content of the cooking liquor itself. (50) 79. In this case, there is agreement between the parties to the main proceedings that, when cooking wine is used as an ingredient according to a recognised recipe, a finished product with an alcoholic content of less than 5% volume always results, so that an application of Article 27(1)(f) of Directive 92/83 is possible. 80. It must therefore be stated as an interim conclusion that: Cooking liquors which are subject to the harmonised excise duty on alcohol and alcoholic beverages are to be exempted from that duty in accordance with Article 27(1)(f) of Directive 92/83. 2. The consequences of the release into free movement of a product exempt from excise duty in the country of manufacture (fourth question) 81. By its fourth question, the referring court wishes in essence to know what obligations arise for the Member State of importation from the fact that cooking liquors have already been released from the excise movement system into free movement in the Member State of manufacture. This issue has also, incidentally, already been touched upon in the third question. (51) 82. In order to discuss this subject, it is necessary to differentiate according to why a product had been released into free movement in the Member State of manufacture. 83. Normally, release of a product into free movement takes place when the excise duty payable in the Member State of manufacture is paid (first subparagraph of Article 6(1) of Directive 92/12). If the product concerned is subsequently imported for commercial purposes into another Member State, excise duty becomes chargeable again in that other Member State (Article 7(1) and (2) of Directive 92/12), whereas the excise duty already paid in the Member State of origin is reimbursed. (52) In that way it is ensured that the duty on a product which is subject to the harmonised excise duty is always paid in the Member State in which its consumption actually occurs, and at the rate of duty applicable in that State. (53) 84. The cooking liquors at issue here, however, are goods which the tax authorities of the Member State of manufacture (France) do not regard as liable to excise duty at all. That was confirmed by Répertoire Culinaire and the French Government in response to a question during the hearing before the Court. The cooking liquors had thus been released into free movement in the State of manufacture from the beginning precisely because, in the view of the authorities in that State, no excise duty at all was payable on them. 85. In such a case, as the Commission correctly points out, there is no interest in ensuring that duty is paid on the goods in the Member State of consumption (in this case the United Kingdom). On the contrary, no duty should be paid on them at all. 86. Conversely, there is a specific interest under European Union law in ensuring that both the liability to excise duty and the exemption from excise duty of alcohol and alcoholic beverages are administered uniformly in all Member States and thus throughout the internal market, (54) in order to ensure the proper functioning of the internal market. (55) 87. The functioning of the internal market requires the free movement of all goods (Article 26(2) TFEU and Articles 28 TFEU to 37 TFEU (56)), including those subject to excise duties. (57) Under the principle of mutual recognition, (58) this means that the tax authorities of the country of destination recognise the classification of a product by the competent authorities of the country of origin as subject to excise duty, as not subject to excise duty or as exempt from excise duty. (59) The reason for this is that, even though the national rates of duty on alcohol and alcoholic beverages may vary greatly, chargeability as such is nevertheless harmonised and subject to the same conditions in all the Member States. (60) 88. The free movement of goods in the internal market would be made unnecessarily difficult if the United Kingdom authorities, in a case such as this, under the repayment model practised by them (see section 4(1)(a) of the FA 1995), (61) first insisted on payment of the excise duty on the cooking liquors imported from France, only to refund it immediately. 89. Member States are certainly permitted to adopt appropriate measures to combat evasion, avoidance and abuse in the field of exemptions. (62) However, such measures presuppose concrete, objectively verifiable evidence of a serious risk of evasion, avoidance or abuse, (63) particularly since, within the field of application of Article 27 of Directive 92/83, exemption is the rule and refusal is the exception. (64) 90. General assertions that evasion, avoidance or abuse could arise in relation to a particular product do not entitle the Member State of importation to refuse from the outset to recognise an exemption from excise duty granted in the Member State of manufacture. (65) That would conflict with the free movement of goods and also, moreover, with the principle of cooperation in good faith between the Member States. 91. In the present case, it is clear from the facts established by the referring court that the seized cooking liquors are undrinkable owing to the addition of salt and pepper. It is not possible, as a matter of economic practicality, either to reverse the mixing process to separate the alcoholic beverage from the salt and pepper or to isolate the alcoholic content of the wine in its entirety. Moreover, as the referring court observes, there is no history whatsoever of cases of abuse in connection with cooking liquors such as those at issue here. It can therefore be assumed with virtual certainty that the seized cooking liquors will in fact be used for the production of foodstuffs as referred to in Article 27(1)(f) of Directive 92/83. 92. There is thus no concrete and objectively verifiable evidence in a case such as this that the products in question were wrongly regarded as free of excise duty and/or exempt from excise duty or that the product in question could be used in ways contrary to the spirit and purpose of an exemption. In such circumstances, the United Kingdom tax authorities’ insistence on payment of the excise duty on the cooking liquors at issue turns out to be pure formalism which cannot be objectively justified. 93. Overall, therefore, the fourth question should be answered as follows: Products which have been released into free movement as not subject to excise duty or exempt from excise duty in the Member State of manufacture must not be subjected in another Member State, into which they are imported for commercial purposes, to the provisions on the harmonised excise duty unless there is concrete and objectively verifiable evidence – that they were wrongly considered to be not subject to or exempt from duty in the Member State of manufacture or – that products which were exempt from duty in the Member State of manufacture in accordance with Article 27(1)(f) of Directive 92/83 could be used for purposes other than those specified in that provision. 3. The requirements of European Union law in respect of exemption from excise duty by means of a refund (second question) 94. By its second question, the referring court seeks in essence information concerning the requirements which European Union law imposes in respect of the formulation of the exemption from excise duty under Article 27(1)(f) of Directive 92/83 in national law if the Member State concerned opts for the refund model as provided for in Article 27(6) of Directive 92/83. 95. The background to this question is the fact that a refund of excise duty on cooking liquors under United Kingdom law is possible only under very narrow conditions laid down in section 4 of the FA 1995, of which the referring court emphasises the following in relation to its second question: – The cooking liquors must actually have been used as ingredients in the production of foodstuffs (section 4(1)(a) in conjunction with (2)(c) of the FA 1995). – The application can be made only by persons who themselves have used the cooking liquors as ingredients in foodstuffs or who carry on business as wholesalers of such foodstuffs (section 4(3)(a) and (b) of the FA 1995). – There is a maximum period of four months from the time of conversion of the cooking liquors for making a claim for a refund (section 4(5)(a) of the FA 1995). – The amount of the refund must be at least GBP 250 (section 4(5)(b) of the FA 1995). 96. First, it must be pointed out that, under Article 27(6) of Directive 92/83, Member States are free to give effect to exemption from the harmonised excise duty by means of a refund of excise duty paid. (66) 97. It is for the Member States to lay down the detailed arrangements for the refunding of excise duty paid. This follows, firstly, from the principle of procedural autonomy and, secondly, from the introductory words of Article 27(1) of Directive 92/83 (‘Member States shall exempt … under conditions which they shall lay down …’). However, as always, the principles of equivalence and effectiveness must be observed in this regard. (67) 98. There is no evidence in this case of less favourable treatment being applied to the refunding of excise duty in the cases harmonised under European Union law as compared with the refunding of other excise duties governed solely by domestic law. No problems therefore arise as regards the principle of equivalence. 99. However, more detailed discussion is required as to whether the conditions for repayment laid down in section 4 of the FA 1995 are compatible with the principle of effectiveness. That principle requires that the repayment of excise duty be not rendered virtually impossible or excessively difficult. (68) In addition, under Article 27(1) of Directive 92/83, the conditions for repayment must serve the purpose of ‘ensuring the correct and straightforward application’ of the exemptions from excise duty and of ‘preventing any evasion, avoidance or abuse’. 100. The fact that, pursuant to section 4 of the FA 1995, cooking liquors must actually have been used in the preparation of foodstuffs does not, on its own, infringe the requirements of European Union law. In a refund model as provided for in Article 27(6) of Directive 92/83, it is even in the nature of things that the excise duty to be refunded pertains to alcohol which has already been used as an ingredient in cooking. 101. Only in the case of imported cooking liquors are the authorities of the Member State of importation required, as mentioned, (69) to recognise an exemption already granted in the Member State of manufacture. In that respect, they are not free to demand that the excise duty be first paid and then – after cooking – application be made for its repayment. 102. However, the problematic feature of a provision such as section 4 of the FA 1995 is that it precludes refunds of excise duty where the amount of the refund is below GBP 250. That minimum amount may even be increased still further by the tax authorities (section 4(5)(b) and (6) of the FA 1995). 103. Admittedly, under European Union law, a Member State is not in principle precluded from excepting insignificant amounts from repayment. Unlike in the field of VAT, (70) however, Directive 92/83 does not provide for any such possibility. Even assuming that, in the absence of express authorisation in the Directive, it is permissible to introduce minimum amounts in national law, the amount of GBP 250 cannot, on any view, be regarded as appropriate. (71) On the contrary, it is an amount which is clearly above any conceivable de minimis threshold. 104. There is also the fact that the minimum amount in a provision such as section 4 of the FA 1995 is coupled with a limitation of the category of persons entitled to apply and with a comparatively short application period. Those constituent elements of the provision – minimum amount, application period and limited category of persons entitled to apply – are mutually reinforcing in their effect 105. As Répertoire Culinaire demonstrated in the proceedings before the Court, based on the rate of excise duty in force in the United Kingdom in 2002, (72) the consumption of at least 215 bottles of cooking wine over a three‑month period would have been necessary in order to achieve the minimum amount of GBP 250 for a refund of excise duty under section 4 of the FA 1995. None of the parties contradicted those figures. 106. Subject to verification of their accuracy by the referring court, it is easy to see from those figures that at best, in the United Kingdom, it is bulk users of cooking liquors who are able to benefit from the exemption from excise duty provided for in Article 27(1)(f) of Directive 92/83. In view of the stringency of the United Kingdom rule concerning refunds, a large number of restaurants and other establishments which use cooking liquors only occasionally and, in any event, in smaller quantities in the preparation of foods are in practice excluded from claiming the exemption from excise duty. 107. Added to that is the fact that section 4(3) of the FA 1995 grants the right to apply for a refund of excise duty only to persons who have themselves used the cooking liquors as ingredients in foodstuffs or who carry on a business as wholesale suppliers of such foodstuffs. A wholesaler such as Répertoire Culinaire, which supplies only the cooking liquors as such, but not the foodstuffs made from them, therefore has no right to apply at all. 108. Overall, a provision such as section 4 of the FA 1995 ultimately has the effect of rendering the exemption from excise duty under Article 27(1)(f) of Directive 92/83 – which is obligatory – largely meaningless. That conflicts with the requirement under European Union law that the conditions laid down by Member States are to enable correct and straightforward application of the exemptions (Article 27(1) of Directive 92/83). The principle that, within the field of application of Article 27 of Directive 92/83, exemption is the rule and refusal is the exception (73) is thereby also reversed. 109. It is certainly true that Member States, when framing their national rules on exemption from or refunding of excise duty, are also entitled to take into account the requirement of prevention of any evasion, avoidance or abuse. (74) However, as already noted, in the case of a refusal of exemption from or refund of excise duty, there must be concrete and objectively verifiable evidence of abuse. According to all the information before the Court, that is not the case with the cooking liquors at issue. A provision which imposes a comparatively short preclusive period for applications for refunds, excepts amounts below GBP 250 from any refund and, in addition, withholds the right to apply for a refund of excise duty from wholesale suppliers of cooking liquors in general clearly goes beyond the legitimate objective of combating abuse. 110. All in all, therefore, the second question should be answered as follows: A national provision which imposes a preclusive period of four months and a minimum amount of GBP 250 for a refund of excise duty on cooking liquors and excludes wholesale suppliers of cooking liquors from the category of persons entitled to apply infringes Article 27(1) of Directive 92/83 and the principle of effectiveness. VI – Conclusion 111. In the light of the foregoing considerations, I propose that the Court should reply to the request for a preliminary ruling from the United Kingdom First-Tier Tribunal (Tax) as follows: (1) Wine and port which, for the purpose of being used as cooking wine or cooking port, have been mixed with so much salt and pepper that they are not fit for consumption as beverages do not fall within the definition of ethyl alcohol under Article 20, first indent, of Directive 92/83. (2) Cooking liquors which are subject to the harmonised excise duty on alcohol and alcoholic beverages are to be exempted from that duty in accordance with Article 27(1)(f) of Directive 92/83. (3) Products which have been released into free movement as not subject to excise duty or exempt from excise duty in the Member State of manufacture must not be subjected in another Member State, into which they are imported for commercial purposes, to the provisions on the harmonised excise duty unless there is concrete and objectively verifiable evidence – that they were wrongly considered to be not subject to or exempt from duty in the Member State of manufacture or – that products which were exempt from duty in the Member State of manufacture in accordance with Article 27(1)(f) of Directive 92/83 could be used for purposes other than those specified in that provision. (4) A national provision which imposes a preclusive period of four months and a minimum amount of GBP 250 for a refund of excise duty on cooking liquors and excludes wholesale suppliers of cooking liquors from the category of persons entitled to apply infringes Article 27(1) of Directive 92/83 and the principle of effectiveness. 1 – Original language: German. 2 – Marcus Gavius Apicius is said to have lived in ancient Rome in the first century AD. Pliny the Elder describes him in his ‘Natural History’ as the greatest of all spendthrifts and gluttons (nepotum omnium altissimus gurges; see Plin. nat. hist. 10, 133), who was born into every kind of luxury (ad omne luxus ingenium natus; see Plin. nat. hist. 9, 66). 3 – De re coquinaria (On the Subject of Cooking). In the version handed down to us, however, that collection of recipes probably dates from the third or fourth century AD and Apicius was therefore probably not its author. 4 – See, for example, the recipe attributed to Apicius for a ius in elixam omnem (sauce for all boiled dishes), in: De re coquinaria, Book VII, Chapter VI. 5 – The Commissioners for Her Majesty’s Revenue and Customs (Excise Duties). 6 – Case C‑458/06 [2008] ECR I‑4207. 7 – OJ 1992 L 76, p. 1. 8 – OJ 1992 L 316, p. 21. 9 – The CN is set out 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). The relevant version of the CN is that which was in force at the date of the adoption of Directive 92/83, that is, on 19 October 1992 (see the fourth recital in the preamble to Directive 92/83); that version is based on Commission Regulation (EEC) No 2587/91 of 26 July 1991 (OJ 1991 L 259, p. 1) and entered into force on 1 January 1992. 10 – [Not applicable in the English text]. 11 – United Kingdom Customs Control Zone. 12 – ‘salt and pepper added’. 13 – A different customs code, ‘2103 90 90 59’, was provided by an employee of the freight forwarder, but that was probably a mistake, because no such code exists. 14 – According to the order for reference, the documents produced during the administrative proceedings show that the wine was rendered undrinkable by the addition of 10 grams of salt and 10 grams of pepper per litre. 15 – Accompanying Administrative Document (AAD). 16 – On 18 July 2002, two assessments for excise duty were issued: one for GBP 53 853 for stock sold and another for GBP 5 884 for stock on hand. Those assessments were upheld by the London Appeals and Reconsiderations Team on 27 September 2002. 17 – [Not applicable in the English text]. 18 – On that occasion, the French Government expressed a view only on the first question referred. 19 – Settled case‑law; see, for example, Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12; Case C‑265/04 Bouanich [2006] ECR I‑923, paragraph 54; and Case C‑142/05 Mickelsson and Roos [2009] ECR I‑0000, paragraph 41. 20 – Cited in footnote 6, paragraph 39. 21 – Case C‑482/98 Italy v Commission [2000] ECR I‑10861, paragraphs 21 and 22. 22 – See, in that regard, Commission Regulation (EC) No 3199/93 of 22 November 1993 on the mutual recognition of procedures for the complete denaturing of alcohol for the purposes of exemption from excise duty (OJ 1993 L 288, p. 12). Under that regulation, denaturing in France, the country of origin of the cooking liquors, requires the addition of methylene and isopropyl alcohol. In the United Kingdom, the country of destination of the cooking liquors, ‘wood naphta’ and crude pyridine are used. Under that regulation, salt and pepper are not recognised as denaturants anywhere in the European Union. 23 – The relevant version of the CN is that which was in force at the date of the adoption of Directive 92/83, that is, on 19 October 1992 (see the fourth recital in the preamble to Directive 92/83). 24 – The current wording of CN heading No 2208 no longer includes the reference to ‘compound alcoholic preparations of a kind used for the manufacture of beverages’. That change in the wording of CN heading No 2208 goes back to Commission Regulation (EC) No 2448/95 of 10 October 1995 (OJ 1995 L 259, p. 1); see, most recently, the CN in the version contained in Annex I to Commission Regulation (EC) No 948/2009 of 30 September 2009 (OJ 2009 L 287, p. 1). 25 – See the second sentence of point A(1) of the General Rules set out in Part One, Section I of the CN. 26 – The only exception to this, as stated in Note 1(a), is vinegar, for which a specific heading is included in Chapter 22 of the CN (CN heading No 2209). 27 – The Explanatory Notes of the World Customs Organisation (WCO) to Chapters 21 and 22 of the Harmonised System (HS), to which the CN Headings correspond, are even clearer. In the WCO’s Explanatory Notes to heading No 2103, cooking wines and cooking cognac are expressly referred to as examples of products covered, whereas the Explanatory Notes to heading No 2208 expressly mention cooking wines and cooking cognac as examples of the products excluded from it. Those Explanatory Notes are available on the Internet at http://harmonizedsystem.wcoomdpublications.org (last visited on 6 May 2010). According to settled case‑law, they are an important aid to the interpretation of the scope of the various tariff headings of the CN but do not have legally binding force (Case C‑370/08 Data I/O [2010] ECR I‑0000, paragraph 30, with further references). 28 – Gourmet Classic, cited in footnote 6, paragraph 35; to the same effect, see the Commission’s guidelines, which the Excise Committee accepted almost unanimously at its meeting of 26 and 27 November 2001 (document CED No 372 Final of 11 November 2002). 29 – Gourmet Classic, cited in footnote 6, paragraph 39; to the same effect, see the Commission’s guidelines, to which the Committee on Excise Duties agreed almost unanimously at its meeting on 26 and 27 November 2001 (CED document No 372 final of 11 November 2002). 30 – See also the third recital (‘to determine common definitions for all the products concerned’) and the fourth recital (‘to base such definitions on those set out in the combined nomenclature in force …) in the preamble to Directive 92/83; emphasis added. 31 – See also the 15th recital in the preamble to Directive 92/83 (‘all ethyl alcohol as defined in this Directive’); emphasis added. 32 – Still wine in containers holding two litres or less, produced in the European Union, of an alcoholic strength not exceeding 15% vol., falls within CN subheadings Nos 2204 21 11 to 2204 21 84, port of an actual alcoholic strength exceeding 15% vol. but not exceeding 22% vol. within CN subheading No 2204 21 89. 33 – At best, cognac, which is the starting point for the manufacture of cooking cognac, may, as spirits, fall within CN code 2208 20 12. However, as already mentioned at the beginning, cooking cognac is not covered by this first question. 34 – Case C‑110/03 Belgium v Commission [2005] ECR I‑2801, paragraph 30, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 68. 35 – See, in that regard, in general, Case C‑158/07 Förster [2008] ECR I‑8507, paragraph 67, and Case C‑226/08 Stadt Papenburg [2010] ECR I‑0000, paragraph 45, and, specifically as regards rules entailing financial consequences, Case 326/85 Netherlands v Commission [1987] ECR 5091, paragraph 24; Case C‑288/07 Isle of Wight Council and Others [2008] ECR I‑7203, paragraph 47; and Case C‑201/08 Plantanol [2009] ECR I‑0000, paragraph 46. 36 – Cited in footnote 6, paragraph 39. 37 – Opinion of Advocate General Bot in Gourmet Classic, cited in footnote 6. 38 – See, to that effect, Case C‑388/95 Belgium v Spain [2000] ECR I‑3123, ‘Rioja’, in particular, paragraphs 51 and 52. 39 – Opinion of Advocate General Trstenjak in Case C‑331/05 P Internationaler Hilfsfonds v Commission [2007] ECR I-5475, point 85. 40 – Opinions of Advocates General Lagrange in Joined Cases 28/62 to 30/62 Da Costa and Others [1963] ECR 31, at p. 42, and Poiares Maduro in Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I-11421, points 28 and 29. 41 – Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard [1993] ECR I‑6097, paragraph 14, and Case C‑127/08 Metock and Others [2008] ECR I‑6241, paragraph 58. 42 – Case 24/86 Blaizot and Others [1988] ECR 379, paragraph 28; Case C‑209/03 Bidar [2005] ECR I‑2119, paragraph 67; and Case C‑73/08 Bressol and Othersand Chaverot and Others [2010] ECR I‑0000, paragraph 91. 43 – See above, points 28 to 63 of this Opinion. 44 – Cooking cognac contains cognac, that is, spirits falling within CN heading No 2208, with the result that it is subject, as ethyl alcohol, pursuant to Article 20, first indent, of Directive 92/83, to the harmonised excise duty on alcohol. 45 – In so far as the third question is predicated on the point in time at which exemption from excise duty exists (‘be treated as exempt from excise duty at the point of manufacture’), it overlaps with the fourth question and is discussed together with it in that context (points 81 to 93 of this Opinion). 46 – The Commission mentions that cooking liquors are used for tenderising meat. 47 – Cited in footnote 6, paragraph 39; the judgment related to cooking wine. 48 – See footnote 44 above. By contrast, this assumption applies to the cooking wine and cooking port at issue only if the Court, contrary to my suggestion, stands by its case‑law in Gourmet Classic, cited in footnote 6. 49 – Case C‑63/06 Profisa [2007] ECR I‑3239, paragraph 17. 50 – The alcoholic content of the ingredient is relevant only as a preliminary question in the context of the first condition under Article 27(1)(f) of Directive 92/83 (see above, point 72 of this Opinion), and when it is necessary to determine whether a liquor subject to excise duty is present at all (see, for example, Article 20, first or second indent, of Directive 92/83). 51 – In the third question, the referring court wishes to know whether cooking liquors subject to excise duty should ‘be treated as exempt from excise duty at the point of manufacture’ on account of their intended use for the preparation of foodstuffs. 52 – Article 22 in conjunction with Article 7 of Directive 92/12; see also the 18th recital in the preamble to that directive and Case C‑5/05 Joustra [2006] ECR I‑11075, paragraph 30. 53 – Those rates of duty may vary considerably from Member State to Member State. 54 – Fourth recital in the preamble to Directive 92/12 (‘Whereas, in order to ensure the establishment and functioning of the internal market, chargeability of excise duties should be identical in all the Member States.’); see also, to that effect, Case C‑296/95 EMU Tabac and Others [1998] ECR I‑1605, paragraph 22; Case C‑325/99 Van de Water [2001] ECR I‑2729, paragraph 39; and Joustra, cited in footnote 52, paragraph 27. 55 – First recital in the preamble to Directive 92/12 and third recital in the preamble to Directive 92/83. 56 – Formerly Article 14(2) EC and Articles 23 EC to 31 EC. 57 – First recital in the preamble to Directive 92/12. 58 – That principle has been firmly established in the case‑law on the free movement of goods since the judgment in Case 120/78 Rewe-Zentral [1979] ECR 649, ‘Cassis de Dijon’, paragraph 14; see, for example, Case C‑184/96 Commission v France [1998] ECR I‑6197, ‘Goose foie gras’, paragraph 28. 59 – Mutual recognition was also in the background in Italy v Commission, cited in footnote 21. That case concerned the question of the conditions under which one Member State may exceptionally refuse recognition – required in principle – of the exemptions granted by other Member States. 60 – See again the fourth recital in the preamble to Directive 92/12. 61 – That repayment model is based on the option made available in Article 27(6) of Directive 92/83 and provides that the excise duty on alcohol must first be paid and then, under certain conditions, repaid. In the case of cooking liquors, repayment takes place only when the liquors have actually been converted in the preparation of foodstuffs. 62 – See, in that regard, the introductory wording of Article 27(1) of, and the 22nd recital in the preamble to, Directive 92/83. 63 – Italy v Commission, cited in footnote 21, paragraph 52; to the same effect, albeit in a different context, see Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraph 75; and Case C‑147/03 Commission v Austria [2005] ECR I‑5969, paragraph 68. 64 – See, to that effect, in relation to Article 27(1)(a) and (b) of Directive 92/83, Italy v Commission, cited in footnote 21, paragraph 50, and Profisa, cited in footnote 49, paragraph 18. 65 – According to settled case‑law, merely taking advantage of legislation or scope for tax arrangements must not be deemed to constitute abuse; see, for example, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas [2006] ECR I‑7995, paragraphs 36 and 37; Case C‑386/04 Centro di Musicologia Walter Stauffer [2006] ECR I‑8203, paragraph 61; and Case C‑150/04 Commission v Denmark [2007] ECR I‑1163, paragraph 58. 66 – See also the 18th recital in the preamble to Directive 92/83. 67 – Settled case‑law; see, for example, the judgments delivered in the most diverse contexts in Case 61/79 Denkavit italiana [1980] ECR 1205, paragraphs 22 to 25; Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12; Case C‑231/96 Edis [1998] ECR I‑4951, paragraph 34; Case C‑291/03 MyTravel [2005] ECR I‑8477, paragraph 17; and Case C‑118/08 Transportes Urbanos y Servicios Generales [2010] ECR I‑0000, paragraph 31. 68 – See again the judgments cited in footnote 67: San Giorgio (paragraph 12), Edis (paragraph 34) and MyTravel (paragraph 17); to the same effect, see Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 46, and Case C‑63/08 Pontin [2009] ECR I‑0000, paragraph 43. 69 – See my observations on the fourth question (points 81 to 93 of this Opinion). 70 – See the second paragraph of Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), concerning the refunding or carrying forward of input VAT. 71 – On 16 July 2002, the date on which the cooking liquors at issue were seized, that amount was equivalent to around EUR 388; on 10 June 2010, the date of the hearing in these preliminary ruling proceedings, that equivalent was around EUR 302. 72 – Répertoire Culinaire refers to the period prior to 27 April 2002, from which, according to the figures stated by that undertaking, the majority of its claims for refunds of excise duty arises. 73 – See again, in relation to Article 27(1)(a) and (b) of Directive 92/83, Italy v Commission, cited in footnote 21, paragraph 50, and Profisa, cited in footnote 49, paragraph 18. 74 – See, in that regard, the introductory wording of Article 27(1) of Directive 92/83 and the 22nd recital in the preamble to that directive.