Opinion of the Advocate General — ECLI:EU:C:2008:191
Date: 2008-04-03
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions (Art. 234 EC) 2. Tax provisions – Harmonisation of laws – Excise duties – Directive 92/83 – Alcohol and alcoholic beverages (Council Directive 92/83, Art. 20, first indent) 1. The Court is not being asked to deliver an advisory opinion on a hypothetical question when a national court, called upon to rule in appeal proceedings how a product would be taxed under Community law if it was marketed on the national market, refers to it a question for a preliminary ruling, since that national court asks the Court a question concerning the interpretation of a provision of that law and since it considers that a preliminary ruling on that point is necessary in order to review the legality of a preliminary opinion concerning that matter. The judicial nature of such proceedings is not affected by the fact that the tax administration which brought the appeal confirmed that preliminary opinion or by the fact that that opinion was not disputed by the party concerned, since the national court has unlimited jurisdiction, independently of the submissions of the parties. Moreover, since there is no judicial remedy under national law against the decisions of that national court, it is obliged, under the third paragraph of Article 234 EC, to bring the matter before the Court of Justice. In that case, it is only by referring a question to the Court for a preliminary ruling that the objective pursued by that provision can be attained, that is, to ensure the proper application and uniform interpretation of Community law in all the Member States and to prevent a body of national case-law that is not in accordance with the rules of Community law from coming into existence in the Member State concerned. (see paras 28-32) 2. Alcohol contained in cooking wine is, if it has an alcoholic strength exceeding 1.2% by volume, to be classified as ethyl alcohol as referred to in the first indent of Article 20 of Directive 92/83 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages. The fact that cooking wine is, as such, regarded as an edible preparation does not affect that assessment. The first indent of Article 20 applies even when the products covered by that provision form part of a product which falls within another chapter of the combined nomenclature. (see paras 37-38, 40, operative part)