Opinion of the Advocate General — ECLI:EU:C:2022:589
Date: 2022-07-14
Language of the case: Romanian
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
27 May 2021 
Referring court: 
Tribunalul București (Romania) 
Date of the decision to refer: 
9 December 2020 
Applicant: 
Quadrant Amroq Beverages SRL 
Defendant: 
Agenția Națională de Administrare Fiscală – Direcția Generală de 
Administrare a Marilor Contribuabili 
  
Subject matter of the main proceedings 
Action in an administrative and tax dispute, by which the applicant, Quadrant 
Amroq Beverages SRL, claims that the Tribunalul București (Regional Court, 
Bucharest), should, ruling against the defendant, the Agenția Națională de 
Administrare Fiscală – Direcția Generală de Administrare a Marilor Contribuabili 
(National Tax Administration Office – Directorate-General for the Administration 
of Large-scale Taxpayers), annul a series of decisions of December 2016 rejecting 
certain claims for reimbursement of excise duties, annul the decision of 22 June 
2017 rejecting a complaint, and order the defendant to reimburse the amount of 
3 702 961 Romanian lei (RON) levied on the applicant by way of excise duties on 
flavouring substances acquired from Pepsi/Cola International, Cork, Ireland. 
Subject matter and legal basis of the request 
An interpretation of Article 27(1)(e) and 27(2)(d) of Directive 92/83/EEC (the 
‘directive’) is sought under Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/21 
 
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Questions referred 
I. Must Article 27(1)(e) of Directive 92/83/EEC be interpreted as meaning that 
the exemption from excise duty covers only ethyl alcohol-type goods used 
for the production of flavours intended, in turn, for the production of non-
alcoholic beverages with an alcohol strength not exceeding 1.2% volume, or 
as meaning that that exemption also covers ethyl alcohol-type goods already 
used for the production of certain favours of that kind which have been or 
are to be used for the production of non-alcoholic beverages with an alcohol 
strength not exceeding 1.2% volume? 
II. Must Article 27(1)(e) of Directive 92/83/EEC, in the context of the 
objectives and general scheme of that directive, be interpreted as meaning 
that, once ethyl alcohol-type goods intended to be marketed in another 
Member State have already been released for consumption in a first Member 
State, exempt from excise duty as they are used to obtain flavours intended 
to be used for the production of non-alcoholic beverages with an alcohol 
strength not exceeding 1.2% volume, the Member State of destination must 
treat them in an identical manner within its territory? 
III. Must Article 27(1)(e) and 27(2)(d) of Directive 92/83/EEC, and the 
[principles] of effectiveness and [proportionality], be interpreted as 
authorising a Member State to impose procedural requirements, which make 
the application of the exemption subject to the user having the status of 
registered consignee and of authorised warehousekeeper, on the seller of 
excise goods, despite the fact that the Member State in which those goods 
were acquired does not impose an obligation relating to the status of tax 
warehousekeeper on the economic operator which markets them? 
IV. In the light of Article 27(1)(e) of Directive 92/83/EEC, do the principles of 
proportionality and effectiveness, in the context of the objectives and 
general scheme of that directive, preclude the exemption provided for 
therein from being denied to the taxable person of a Member State of 
destination who has received ethyl alcohol-type goods and who relied on the 
fact that those goods were deemed to be exempt on the basis of an official 
interpretation of those provisions of that directive by the tax authorities of 
the Member State of origin, given consistently and over a long period of 
time and transposed into national law and applied in practice, but which 
subsequently turns out to be incorrect, in the event that, given the 
circumstances, it is possible to exclude any possibility of fraud or evasion of 
excise duty? 
Provisions of EU law cited 
Article 19(3)(b) TEU 
Article 267 TFEU 
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Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the 
structures of excise duties on alcohol and alcoholic beverages: Article 27(1)(e) 
and 27(2)(d) 
Judgment of 9 December 2010, Repertoire Culinaire (C-163/09, EU:C:2010:752) 
Provisions of national law cited 
Romanian Constitution, Article 148, which requires the priority application of EU 
law 
Romanian Tax Code (2003), Article 20658, which transposes Article 27(1)(e) of 
Directive 92/83 into Romanian law 
Irish Finance Act 2003, section 77(a)(i), which transposes Article 27(1)(e) of 
Directive 92/83 into Irish law 
Succinct presentation of the facts and the main proceedings 
1 The applicant acquired aromatics (flavouring substances) from Pepsi/Cola 
International, Cork, Ireland. 
2 Adopting a different approach to the one taken by the Irish authorities, the 
Romanian duty and tax authorities subjected those flavouring substances to excise 
duty as they took the view that they were not covered by the exemption provided 
for in Article 27(1)(e) of Directive 92/83. 
3 The Irish legislation transposing that article provides for an exemption from 
excise duty not only for ethyl alcohol intended for use in the production of non-
alcoholic beverages with an alcohol strength not exceeding 1.2% volume, but also 
for ethyl alcohol already used for the production of such beverages, whereas the 
Romanian legislation exempts from excise duty only ethyl alcohol ‘used for the 
production of food flavourings intended for the preparation of food or non-
alcoholic beverages with an alcohol content not exceeding 1.2% volume’. 
4 At an initial stage, the Irish tax authorities exempted ethyl alcohol from excise 
duties when the aromatics (flavouring substances) had been transferred from Pepsi 
Ireland’s warehouse to the premises of the registered consignee. 
5 At a later stage, the transfer which took place between Pepsi Ireland and Pepsi 
Romania did not give rise to an obligation to pay excise duty since the ethyl 
alcohol contained in the aromatics (thus ethyl alcohol already used in the 
production of flavouring substances) is exempt from excise duty under section 77 
of the Irish Finance Act. 
6 The flavouring substances transferred, in this case from Ireland to Romania, are 
excise goods which have already been marketed in the Member State in which 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-332/21 
 
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they were produced and such marketing does not give rise to an obligation to pay 
excise duty as a result of the application of the exemption under Irish national 
legislation. 
7 As regards the application of the indirect exemption for the alcohol contained in 
food flavourings used for the production of food flavourings intended for the 
preparation of non-alcoholic beverages with a content not exceeding 1.2% 
volume, the Romanian tax authorities required compliance with the procedural 
requirements laid down in national secondary legislation (that is to say, 
respectively, supply from a tax warehousekeeper in the case of intra-Community 
acquisitions and registration of the applicant as a registered consignee). 
8 The applicant submitted claims for reimbursement of excise duties to the 
defendant and subsequently lodged a complaint against the decisions rejecting 
those claims. Following the rejection of that complaint, the applicant brought an 
action before the referring court, the Tribunalul București (Regional Court, 
Bucharest). 
9 In the present case, the applicant was permitted to submit the opinion of an Irish 
expert on the content and application of the Irish tax legislation. 
Essential arguments of the parties to the main proceedings 
10 As regards the first question, the applicant submits that, unlike Article 20658 of the 
Romanian Tax Code, the objective of transposing the wording of the directive into 
Irish law is to make the exemption applicable not only to the production of the 
flavours at question, but also to subsequent sales thereof. The applicant considers 
that the approach taken in Romanian tax legislation does not comply with the 
directive. On the other hand, any reply from the Court validating the conduct of 
the Romanian authorities might lead the applicant to contemplate the possibility of 
an action for damages against Ireland since, in such a situation, it would have been 
misled by the incorrect transposition and application of the exemption by that 
State. 
11 As regards the second question, the applicant submits that the exemption from 
excise duty on alcohol for the goods in question constitutes the rule and the 
exceptions to that rule must be interpreted and applied strictly and in the same 
way in all the Member States. Romania should therefore ensure treatment 
identical to that already applied to aromatics in Ireland. In that regard, the 
applicant recalls the judgment in Repertoire Culinaire, according to which refusal 
of the exemption would make it impossible for persons resident in a Member State 
to benefit from an excise exemption scheme, even though that system is required 
by EU law and must be applied. 
12 As regards the third question, the applicant maintains that, because of the 
procedural requirements laid down in Romanian legislation for the grant of the 
exemption, the latter is, in practice, never applicable. These requirements cannot 
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be satisfied since Ireland considers that the specific arrangements regarding 
surveillance of excise duties does not apply to the goods in question since they are 
exempt, by operation of the law, from excise duty. 
13 As regards the fourth question, the applicant argues that, even if the Irish 
authorities did not correctly transpose the provisions of the directive, the error in 
the interpretation and application of the directive facing Pepsi Romania was 
insurmountable as a result of the transposition of the directive into Irish law and 
the consistent administrative practice followed by Ireland. Denying an individual 
the benefit of the exemption and placing him in a state of legal uncertainty is 
unjustified in the light of the principles of proportionality and effectiveness. This 
is all the more so because there is not the slightest possibility of fraud even if the 
company were unable to acquire the flavouring substances on the basis of 
documents complying with the procedural requirements applicable to excise 
duties, which are impossible to satisfy in this case. 
Succinct presentation of the reasons for the request for a preliminary ruling 
14 The complexity of the problem posed by the interpretation of Article 27(1)(e) of 
the directive is clear since there are at least two Member States which interpret it 
differently, namely Ireland and Romania, and the interpretation deemed to be 
incorrect under Romanian law, which has been adopted by Ireland, is supported 
by the findings of the competent body of the European Commission (Committee 
on Excise Duties). 
15 The problem of interpretation of EU law in such a scenario is completely new and 
cannot be answered by the grounds of the judgment in Repertoire Culinaire. The 
points analysed in detail by the Court of Justice in that judgment, although they 
may provide some indications necessary to resolve the present dispute, do not 
resolve, beyond all doubt, the question of the applicability of the exemption from 
excise duty in the present case.