Opinion of the Advocate General — ECLI:EU:C:2005:7
Date: 2005-01-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 – Alcohol and alcoholic beverages – Tax on the supply of beverages for immediate consumption on the premises – Classification of tax not on products subject to excise duty but on the provision of services relating to such products – Need for that tax to pursue specific purposes – None (Council Directive 92/12, Art. 3(2) and (3)) A tax which is levied, in a catering context, on the supply for consideration of alcoholic beverages for immediate consumption on the premises must be considered to be a tax on the supply of services relating to products subject to excise duty which cannot be characterised as a turnover tax for the purposes of the second subparagraph of Article 3(3) of Directive 92/12 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products. In order to determine whether a tax applies to products subject to excise duty for the purposes of Article 3(2) of Directive 92/12 or, rather, to the services supplied in relation to such products for the purposes of the second subparagraph of Article 3(3), regard must be had to the predominant feature of the transaction on which it is imposed. A supply of alcoholic beverages in a catering context is characterised by an array of features and acts, of which the supply of the product itself is only one component and in which services predominate. In addition, the ‘same proviso’ to which taxes falling within the scope of the second subparagraph of Article 3(3) are subject refers only to the condition set out in the first subparagraph of that paragraph, namely that such ‘taxes do not give rise to border-crossing formalities in trade between Member States’. The directive therefore does not require that the taxes concerned comply with the condition laid down in Article 3(2), namely that they be for a specific purpose. (see paras 21, 27, 30, 33-34, operative part 1, 2)