Order;Summary — ECLI:EU:C:2024:670
Date: 2024-07-16
Language of the case: Greek
Court formation: Ninth Chamber
Subject matter: Taxation;Principles, objectives and tasks of the Treaties;Approximation of laws;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary C-724/23 – 1 
Case C-724/23 
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: 
28 November 2023 
Referring court: 
Dioikitiko Protodikeio Thessalonikis (Greece) 
Date of the decision to refer: 
29 September 2023 
Applicant: 
ATHINAIKI ZYTHOPOIIA A.E. 
Defendant: 
Anexartiti Archi Dimosion Esodon 
  
Subject matter of the main proceedings 
The action in the main proceedings seeks annulment of the implicit refusal by the 
customs authority of the application by which the applicant sought reimbursement 
of the amount of excise duty it had unduly paid. 
Subject matter and legal basis of the request 
The request for a preliminary ruling pursuant to Article 267 TFEU concerns the 
interpretation of Article 3(1) of Directive 92/83. 
Questions referred for a preliminary ruling 
1. Can Article 1 of Council Directive (EU) 2020/1151 of 29 July 2020 amending 
Directive 92/83/EEC on the harmonisation of the structures of excise duties on 
alcohol and alcoholic beverages (OJ 2020 L 256, 5.8.2020), which added the 
following subparagraph to Article 3(1): ‘All the ingredients of the beer, including 
those added after the completion of fermentation, shall be taken into account for 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-724/23 
 
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the purposes of measuring the degree Plato’ be regarded as genuinely 
interpretative in conveying the true meaning of the term ‘degree Plato’ and how it 
is calculated? 
2. If the previous question is answered in the affirmative, in relation to the period 
prior to the adoption of Council Directive (EU) 2020/1151 and prior to the expiry 
of the period for its transposition into national law, that is to say, before 
31 December 2021, in the context of an examination of an application for 
reimbursement by a Member State of unduly paid excise duty that calculated the 
degree Plato for the purpose of determining the excise duty on the ‘finished 
product’ including all the ingredients of the beer (even those added after the 
completion of fermentation), is the judgment of the Court of Justice of 17 May 
2018, Dyrektor Izby Celnej w Poznaniu v Kompania Piwowarska S.A. w 
Poznaniu, C-30/17, which gave a diametrically opposed interpretation of the 
wording of Article 3(1) of Directive 92/83/EEC, binding? 
3. If the first question is answered in the negative, can the adoption of the wording 
in Article 1 of Council Directive 2020/1151 of 29 July 2020 amending Directive 
92/83/EEC, on the basis of the above reasoning, be in any event regarded as a 
fresh consideration that justifies (or requires) a further reference to the Court of 
Justice of the European Union regarding the interpretation of the wording of 
Article 3(1) of Directive 92/83/EEC from the date of its entry into force (see order 
of 5 March 1986 in Case 69/85, Wünsche v Germany EU:C:1986:104, 
paragraph 15; judgment of 11 June 1987, X (14/86, EU:C:1987:275, 
paragraph 12); judgment of 6 March 2003, Kaba (C-466/00, EU:C:2003:127, 
paragraph 39); and order of 30 June 2016, Sokoll-Seebacher and Naderhirn 
(C-634/15, EU:C:2016:510, paragraph 19))? In such a case, would the 
interpretation of that provision by the Court of Justice concerning the method of 
calculating the degree Plato for the purpose of determining the excise duty due 
differ from the decision given in the judgment of the Court of Justice of 17 May 
2018, Dyrektor Izby Celnej w Poznaniu v Kompania Piwowarska S.A. w 
Poznaniu, C-30/17, referred to above? 
Provisions of European Union law and case-law relied on 
Council Directive 2008/118/EC of 16 December 2008 concerning the general 
arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, 
p. 12): Article 1(1)(b). 
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): fifth and sixth recitals, Articles 1(1), 2, 3(1) and 5(1) and (2). 
Council Directive (EU) 2020/1151 of 29 July 2020 amending Directive 
92/83/EEC on the harmonisation of the structures of excise duties on alcohol and 
alcoholic beverages (OJ 2020 L 256, p. 1): recitals 2 and 3 and Article 1. 
ATHINAIKI ZYTHOPOIIA 
 
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Judgments of the Court of Justice of 17 May 2018, Kompania Piwowarska 
(C-30/17, EU:C:2018:325); of 2 March 2017, Zentrale zur Bekämpfung 
unlauteren Wettbewerbs Frankfurt am Main (C-568/15, EU:C:2017:154); of 
6 March 2003, Kaba (C-466/00, EU:C:2003:127); and of 11 June 1987, X (14/86, 
EU:C:1987:275). 
Orders of the Court of Justice of 30 June 2016, Sokoll-Seebacher and Naderhirn 
(C-634/15, EU:C:2016:510), and of 5 March 1986, Wünsche (69/85, 
EU:C:1986:104). 
Provisions of national law relied on 
Nomos 2960/2001, ‘Ethnikos Teloneiakos Kodikas’ (Law 2960/2001, ‘National 
Customs Code’) (GG I/265 of 22/11/2001), as amended by Article 1(1) of Nomos 
3336/2005, ‘Enarmonisi tis Ellinikis Nomothesias pros tin Odigia 2003/96/EK tou 
Symvouliou tis 27is Oktovriou 2003 peri epivolis Eidikou Forou Katanalosis kai 
alles diatakseis’ (Law 3336/2005, ‘Harmonisation of Greek legislation with 
Council Directive 2003/96/EC of 27 October 2003 on the application of excise 
duty and other provisions’ (GG I/96 of 20.4.2005): Articles 53, 79(2), 86 and 
87(1). 
Apofasi 3006674/1102/0029 tou Ypourgou Oikonomikon, ‘Tropos ypologismou 
vathmon PLATO sti byra’ (Decision No 3006674/1102/0029 of the Minister of 
Finance, ‘Method for calculating the degree Plato in beer’ (GG II/528 of 
27.4.2010) (‘the ministerial decision’). 
Brief summary of the facts and procedure 
1 The applicant is engaged, inter alia, in the production, bottling, import, export, 
distribution and marketing of alcoholic beverages of all kinds (wines, beer, and so 
forth). 
2 Among other things, since 2014 it has been producing and marketing the beer 
drink under the commercial name ‘Amstel Radler’, which is a mixture consisting 
of 40% beer and 60% non-alcoholic beverage (lemon, lime and orange juice). The 
alcoholic strength of that product is 2% vol., while the beer from which it is made 
(Amstel) has an alcoholic strength of 5% vol. and is 12 degrees Plato by volume. 
3 For the year 2019, the applicant submitted to the competent customs authority a 
total of 12 declarations relating to excise duty and other taxes. The declarations 
show that for sales of ‘Amstel Radler’ products (Combined Nomenclature code 
2206: mixture of fermented beverages and non-alcoholic beverages), it paid excise 
duty totalling more than EUR 1 million on sales from January to December of that 
year. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-724/23 
 
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4 The degree Plato taken into account for the product in question was 10 on the 
basis of the relevant document of 9 October 2019 from the General Chemical 
State Laboratory, to which is attached a list of the degrees Plato by volume of 
various types of ready-to-drink beer on samples taken from the applicant’s 
brewery in September 2019. According to that document, the degree Plato by 
volume for the product at issue, ‘Amstel Radler’, was calculated at 10.07, on the 
basis of the ministerial decision. 
5 Subsequently, on 10 April 2020, the applicant submitted an application to the 
customs authority requesting reimbursement of 50% of the sums paid. 
6 The applicant submits in that regard that, according to the ministerial decision, the 
degree Plato expresses the gravity of the extract of the raw materials contained in 
the wort from which the product is derived, before the start of fermentation, and 
not, as the customs authority wrongly considered, the gravity of the extract of all 
the starchy and/or sugary raw materials from which the finished product 
(flavoured beer) was made, some of which were added after the fermentation 
stage. Furthermore, the applicant claims that the product ‘Amstel Radler’ has an 
alcoholic strength of 2%, whereas the ‘Amstel’ beer from which it is made has an 
alcoholic strength of 5% and is 12 degrees Plato by volume. 
7 According to the applicant, if the percentage of ‘Amstel’ beer in the finished 
product is 40%, then the finished product ‘Amstel Radler’ is 5 degrees Plato, that 
is to say, 50% less than the 10.07 degrees calculated in the document of 9 October 
2019. The applicant therefore requested that the calculation of the excise duty for 
the ‘Amstel Radler’ products at issue be based on the degrees Plato only of the 
beer contained in them and not of the extract of all the starchy and/or sugary raw 
materials from which the finished product was made, since some of them were 
added after the fermentation stage. The applicant relies in that regard on the 
interpretation and application of Article 3(1) of Directive 92/83 by the Court of 
Justice. 
8 The applicant’s application is presumed to have been implicitly rejected by the 
head of the customs authority after the expiry of a period of three months from its 
submission. 
9 Subsequently, on 29 July 2020, the applicant brought the present action before the 
Dioikitiko Protodikeio Thessalonikis (Administrative Court of First Instance of 
Thessaloniki), that is to say, the referring court, seeking the annulment of the 
implicit refusal by the customs authority and an order for reimbursement of the 
amount unduly paid. 
Principal arguments of the parties in the main proceedings 
10 In support of the action, the applicant relies on the following: (a) infringement of 
the provisions of the ministerial decision; (b) infringement of Article 3(1) of 
Directive 92/83, as interpreted by the Court of Justice, which defined the usual 
ATHINAIKI ZYTHOPOIIA 
 
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meaning of the degree Plato; (c) disproportionate burden on flavoured beer, 
irrespective of its alcoholic strength. 
11 In support of its claims, the applicant submits, inter alia, a copy of the document 
of 9 October 2019 from the General Chemical State Laboratory, stating that 
‘Amstel’ beer, from which the ‘Radler’ beer is derived, has a degree Plato of 12 
and, correspondingly, that that of the finished product, ‘Radler’ beer, is 10. It also 
submits the document of 8 May 2013 from the General Chemical State Laboratory 
concerning the calculation of excise duty on beer beverages, which concludes that 
the calculation of excise duty on products such as ‘Amstel Radler’ beer should be 
based on the degrees Plato only of the beer contained in them and not of the 
extract of the starchy and/or sugary raw materials from which the finished product 
was made. That is because the addition of those raw materials takes place at a 
stage subsequent to the fermentation of the beer. 
12 However, the defendant claims that the appeal should be dismissed as unfounded 
on the grounds set out below. 
13 First, pursuant to Article 86 of the National Customs Code, which transposed 
Article 2 of Directive 92/83 into Greek law, the term ‘beer’ means any product 
falling within CN code 2203 or any product containing a mixture of beer with 
non-alcoholic drinks falling within CN code 2206, in either case with an actual 
alcoholic strength by volume exceeding 0.5% vol. 
14 Second, Greece has adopted the system of calculating excise duty on beer on the 
basis of the number of hectolitre/degrees Plato (and not on the basis of the number 
of hectolitre/degrees of actual alcoholic strength by volume). 
15 Third, that method relates to the ‘finished product’. 
16 Fourth, the above-mentioned letter of 8 May 2013 from the General Chemical 
State Laboratory, cited by the applicant, was followed by a letter of 16 May 2014 
from the General Directorate of Customs and Excise Duty, which was also sent to 
the applicant. According to the latter document, the above-mentioned national tax 
authority, taking into account the practice of other Member States, concluded that, 
since the finished product is considered to be beer, the excise duty should be 
calculated on the basis of the number of hectolitres of beer and degrees Plato by 
volume in the finished product. 
17 Fifth, since that time, on the basis of those guidelines, pursuant to the national 
legislation the degrees Plato attributable to the finished product have been 
calculated including all the starchy and/or sugary raw materials, rather than 
including only the degrees Plato attributable to the beer falling within CN code 
2203, which is an ingredient in the finished product. 
18 In support of its claims, the defendant also relies on documents from the General 
Directorate of Customs and Excise Duty and the General Chemical State 
Laboratory which state that the amendment of Article 3(1) of Directive 92/83 by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-724/23 
 
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Directive 2020/1151 confirms the long-standing position of the Greek authorities 
concerning the measurement of degrees Plato in finished products of beer deriving 
from mixing beer with non-alcoholic beverages. 
19 In response to the defendant’s claims, the applicant submits that Directive 
2020/1151 does not create obligations for individuals until it has been transposed 
into national law and cannot therefore be relied on by the defendant. Moreover, 
according to the applicant, pursuant to Article 288 TFEU a directive may be 
invoked before national courts only against a Member State and not against 
individuals. With regard to the above documents relied on by the defendant, the 
applicant submits that they have no binding force. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
20 The referring court points out that the concept of ‘degree Plato’ and the 
calculation method referred to in Article 3(1) of Directive 92/83 are not defined 
either in that directive or in other acts of the European Union. In those 
circumstances, they were interpreted on the basis of the relevant case-law of the 
Court of Justice, according to which their ‘usual meaning’ in brewing must be 
considered, while also taking into account the context in which they occur and the 
purposes of the rules of which they are part (see, to that effect, judgment of 
2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am 
Main, C-568/15, EU:C:2017:154, paragraph 19 and the case-law cited). 
21 On the basis of the usual meaning in brewing, the Plato scale enables the 
calculation of the percentage of dry extract in the mass of the original wort, one 
degree Plato being equivalent to 1 g of dry extract per 100 g of original wort. It 
follows that, as is commonly understood in brewing, the degree Plato is calculated 
without taking into account the aromatic substances and sugar syrup added in 
flavoured beer after the fermentation process. 
22 The use of the term ‘finished product’ in Article 3(1) of Directive 92/83 is not of 
such a nature as to challenge that interpretation. The fact that Article 3(1) of 
Directive 92/83 refers to degrees Plato of the finished product means that the 
number of degrees Plato must be a value determining a characteristic of the 
finished product, irrespective of whether the number of degrees is measured in the 
finished product or at an earlier stage of the production process. The degrees Plato 
which measure the dry extract in the original wort used for fermentation continue 
to characterise all of the finished products from that wort, whether those product 
are traditional beer or flavoured beer. 
23 The Court of Justice therefore held that Article 3(1) of Directive 92/83 must be 
interpreted as meaning that, in order to determine the basis of assessment for 
flavoured beers according to the Plato scale, the dry extract of the original wort 
must be taken into consideration but not the aromatic substances or sugar syrup 
added after the completion of fermentation (see judgment of 17 May 2018, 
Kompania Piwowarska, C-30/17, EU:C:2018:325, paragraphs 27 to 30 and 43). 
ATHINAIKI ZYTHOPOIIA 
 
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24 However, the referring court emphasises the following points: (a) the difficulties 
of interpretation as to the method of calculating degrees Plato on the basis of 
which the excise duty due is calculated and as to the meaning of ‘the finished 
product’ in Article 3(1) of Directive 92/83, prior to its amendment by Article 1 of 
Directive 2020/1151, difficulties that led to the decision to amend the relevant 
provision of that directive; (b) the reasons that led to the amendment of that 
provision by Directive 2020/1151, which may be seen in the relevant documents 
relating to the legislative procedure for the adoption of that directive by the 
Council; (c) the existing case-law of the Court of Justice (judgment of 17 May 
2018, Kompania Piwowarska, C-30/17, EU:C:2018:325, paragraphs 27 to 30 and 
43), which, interpreting the wording of Article 3(1) of Directive 92/83 before it 
was amended, gave it a meaning diametrically opposed to that clarified by the 
directive; (d) the adoption of the transitional provisions in Directive 2020/1151, 
valid until 1 January 2030, only for the (very few) Member States that were 
determining degrees Plato without the addition of starchy/sugary aromatic 
substances (Member States that do not include Greece among their number). 
25 On the basis of the foregoing, the referring court concludes that there are 
reasonable doubts as to the interpretation of the provision at issue, namely 
Article 3(1) of Directive 92/83 at the relevant time when the excise duty payable 
by the applicant on sales of ‘Amstel Radler’ products in 2019 was calculated, that 
is to say, at a time when the amending Directive 2020/1151 had not yet been 
adopted and the date of its transposition into national law had not yet passed. 
Those doubts arise in particular in view of the interpretative nature of that 
provision of the amending Directive 2020/1151 and in view of the fact that it 
could be regarded as a new relevant element capable of justifying a further 
reference to the Court of Justice on the question of the interpretation of the 
relevant provision of Article 3(1) of Directive 92/83 (see order of 5 March 1986, 
Wünsche, 69/85, EU:C:1986:104, paragraph 12 et seq.). 
26 The referring court therefore considers that it is appropriate to refer the relevant 
questions to the Court of Justice for a preliminary ruling in accordance with 
Article 267 TFEU.