Opinion of the Advocate General — ECLI:EU:C:1999:342
Date: 1999-07-01
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Taxation;Value added tax;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Turnover taxes — Common system of 
value added tax — Prohibition of the levying of other national charges which can be 
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SUMMARY — CASE C-437/97 
characterised as turnover taxes — Purpose — Meaning of 'turnover taxes' — Scope — 
Duty on the supply of ice cream and beverages — Not included 
(Council Directive 77/388, Art. 33) 
2. Community law — Interpretation — Effectiveness 
3. Community law — Interpretation — Multilingual texts — Discrepancies between the 
different language versions 
4. Tax provisions — Harmonisation of laws — Excise duties — Directive 92/12 — 
Alcohol and alcoholic beverages — Indirect taxes other than excise duty — Condi­
tions — Duty on the supply of alcoholic beverages pursuing an objective other than a 
purely budgetary one and not according with the general scheme of the rules relating to 
excise duty or with that of the rules applicable for purposes of value added tax — Not 
permissible 
(Council Directive 92/12, Art. 3(2)) 
5. Preliminary rulings — Interpretation — Temporal effects of judgments ruling on 
interpretation — Retroactive effect — Limits — Legal certainty — Power of assess­
ment of the Court 
(EC Treaty, Art. 177 (now Art. 234 EC)) 
1. Although Article 33 of Sixth Directive 
77/388 on the harmonisation of the 
laws of the Member States relating to 
turnover taxes precludes the mainte­
nance or introduction of stamp duties 
or other types of taxes, duties or 
charges which have the essential char­
acteristics of value added tax, it does 
not preclude the maintenance or intro­
duction of a tax not having those 
characteristics. Article 33 for that rea­
son does not preclude the maintenance 
of a tax provided for by the legislation 
of a Member State which is levied on 
the supply for consideration of ice 
cream (including fruits processed 
therein or added thereto) and of bev­
erages, in each case including the 
containers and accessories sold with 
the products. Such a tax, which applies 
only to a limited category of goods, is 
not a general tax since it is not intended 
to apply to all economic transactions in 
the Member State concerned. 
(see paras 23-25 and operative part 1) 
2. Where a provision of Community law 
is open to several interpretations, pre­
ference must be given to that interpre­
tation which ensures that the provision 
retains its effectiveness. 
(see para. 41) 
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EKW AND WEIN & CO 
3. Where there is divergence between the 
various language versions of a Com­
munity text, the provision in question 
must be interpreted by reference to the 
purpose and general scheme of the 
rules of which it forms part. 
(see para. 42) 
4. Article 3(2) of Directive 92/12 on the 
general arrangements for products sub­
ject to excise duty and on the holding, 
movement and monitoring of such 
products, which provides that the pro­
ducts listed in Article 3(1) thereof may 
be subject to indirect taxes other than 
excise duty if those indirect taxes 
pursue one or more specific purposes 
in the sense contemplated by that 
provision and comply with the tax 
rules applicable for purposes of excise 
duty or value added tax as far as 
determination of the tax base, calcula­
tion of the tax, and chargeability and 
monitoring of the tax are concerned, 
precludes the maintenance of a tax 
provided for by the legislation of a 
Member State which is levied on the 
supply for consideration of alcoholic 
beverages and which, on the one hand, 
does not pursue an objective other than 
one which is purely budgetary and, on 
the other, does not accord with the 
general scheme of the rules relating to 
excise duty on alcoholic beverages, 
since its amount is determined in 
relation to the value of the product and 
not on the basis of the product's 
weight, quantity or alcohol content, 
or with the general scheme of those 
applicable for purposes of value added 
tax as far as the rules on calculation 
and chargeability are concerned. 
(see paras 30, 31, 47, 48, 49 and 50, 
operative part 2) 
5. In the exercise of the jurisdiction con­
ferred on it by Article 177 of the 
EC Treaty (now Article 234 EC), the 
Court may only exceptionally, in appli­
cation of the general principle of legal 
certainty inherent in the Community 
legal order, be moved to restrict for any 
person concerned the opportunity of 
relying on a provision interpreted by it 
with a view to calling in question legal 
relationships established in good faith. 
Such a restriction may be allowed only 
in the actual judgment ruling upon the 
interpretation sought. In determining 
whether or not to limit the temporal 
effect of a judgment it is necessary to 
bear in mind that although the practi­
cal consequences of any judicial deci­
sion must be weighed carefully, the 
Court cannot go so far as to diminish 
the objectivity of the law and compro­
mise its future application on the 
ground of the possible repercussions 
which might result, as regards the past, 
from a judicial decision. 
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SUMMARY — CASE C-437/97 
In view of the fact that Article 3(2) of 
Directive 92/12 on the general arrange­
ments for products subject to excise 
duty and on the holding, movement 
and monitoring of such products has 
not hitherto been the subject of a 
judgment by way of preliminary ruling 
on interpretation and that the Com­
mission's conduct may have caused the 
Member State concerned reasonably to 
believe that its national legislation 
governing the duty on alcoholic bev­
erages was in conformity with Com­
munity law, overriding grounds of legal 
certainty preclude calling in question 
legal relations which have exhausted 
their effects in the past, since to do so 
would retroactively cast into confusion 
the finance system of the Member State 
concerned. 
It is for that reason appropriate for the 
Court to rule that the provisions of 
Article 3(2) of the directive cannot be 
relied on in support of claims relating 
to such tax paid or chargeable prior to 
the date of the judgment ruling that it is 
incompatible with Community law, 
except by claimants who have, before 
that date, initiated legal proceedings or 
raised an equivalent administrative 
claim. 
(see paras 57 to 60, and operative part 3) 
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