Opinion of the Advocate-General



Opinion of the Advocate-General

1. By this reference for a preliminary ruling the Regeringsrätten (Sweden) wishes to know whether the alcohol in cooking wine must be regarded as ethyl alcohol within the meaning of Article 20 of Directive 92/83/EEC. (2)

2. A particular feature of this case is that in the main proceedings all parties agree that the alcohol contained in cooking wine must be regarded as ethyl alcohol within the meaning of that provision.

3. This case therefore raises the question whether a dispute exists and, therefore, whether the Court has jurisdiction to give a ruling on the question referred.

4. In this opinion, I set out the reasons why in my view the Court does not have jurisdiction to give a preliminary ruling on that question.

I – Legal background

A – Community law

5. Directive 92/83 is designed to harmonise the structures of excise duties on alcohol and alcoholic beverages and, in particular, to determine common definitions for all the products concerned based on those set out in the combined nomenclature in force at the date of its adoption. (3)

6. Article 20 of Directive 92/83 defines ethyl alcohol as:

‘– all products with an actual alcoholic strength by volume exceeding 1.2% volume which fall within CN [headings] 2207 and 2208, [ (4) ] even when those products form part of a product which falls within another chapter of the CN,

– products of CN [headings] 2204, 2205 and 2206 which have an actual alcoholic strength by volume exceeding 22% vol., [ (5) ]

– potable spirits containing products, whether in solution or not.’

7. Furthermore, under Article 27(1)(f) of Directive 92/83, Member States are to exempt the products covered by the Directive from the harmonised excise duty when those products are ‘used directly or as a constituent of semi-finished products for the production of foodstuffs, filled or otherwise, provided that in each case the alcoholic content does not exceed 8.5 litres of pure alcohol per 100 kg of the product for chocolates, and 5 litres of pure alcohol per 100 kg of the product for other products.’

B – National law

8. The Swedish law on excise duty on alcohol (lagen om alkoholskatt) (6) which transposes Directive 92/83 into national law provides in the first paragraph of Paragraph 1, that excise duty on alcohol is payable on beers, wines and other fermented beverages, intermediate products and ethyl alcohol.

9. Under Paragraph 3 of the LAS, wine which is covered by the CN headings 2204 and 2205 is subject to excise duty, since the alcohol content must result exclusively from fermentation and the alcoholic strength must exceed certain specified percentages.

10. As regards ethyl alcohol, Paragraph 6 of the LAS provides that excise duty is payable on goods covered by CN headings 2207 and 2208, with an alcoholic strength exceeding 1.2% vol., even when those products form part of a product which falls within another chapter of the Combined Nomenclature.

11. However, point 5 of the first subparagraph of Paragraph 7 of the LAS states that no excise duty is payable on goods used directly in foodstuffs or as ingredients of semi-finished products for the production of foodstuffs, filled or otherwise, provided that the alcohol content in each individual case does not exceed 8.5 litres of pure alcohol per 100 kg of product used to make chocolates and 5 litres of pure alcohol per 100 kg of product used to make other foodstuffs.

II – The facts and the main proceedings

12. Gourmet Classic Ltd (‘Gourmet Classic’) is a British undertaking wishing to market cooking wine on the Swedish market.

13. Before marketing its product Gourmet Classic asked the Skatterättsnämnden (Swedish Revenue Law Commission) for an opinion confirming that its cooking wine was not subject to excise duty because, in its view, cooking wine was covered by the exemption laid down in Article 27(1)(f) of Directive 92/83.

14. The cooking wine concerned consists of a mixture of approximately 40% of ordinary wine, red or white, and approximately 60% of de-alcoholised wine to which a small amount of salt has been added. The alcoholic strength of the cooking wine is 4.5 litres of pure alcohol per 100 kg of finished product.

15. HM Customs and Excise, Tariff and Statistical Office informed Gourmet Classic that its cooking wine was covered by CN subheading 2103 9090 89.

16. In the course of the procedure before the Skatterättsnämnden, the Skatteverket (Swedish tax administration) submitted its observations and maintained that, under Paragraph 6 of the LAS, the cooking wine sold by Gourmet Classic is subject to alcohol duty, but that this specific product is covered by the exemption laid down in point 5 of the first subparagraph of Paragraph 7 of the LAS.

17. Therefore, the Skatteverket, takes the view that no excise duty is to be levied on the cooking wine offered for sale by Gourmet Classic.

18. The Skatterättsnämnden gave its opinion based on the recommendation of the Skatteverket.

19. The Skatteverket brought an appeal before the Regeringsrätten seeking to have the opinion given by the Skatterättsnämnden upheld. Gourmet Classic also submits that the Skatteverket’s opinion should be followed.

20. The Regeringsrätten takes the view that in order to give a ruling it is necessary to obtain clarifications as to whether the conclusion that cooking wine is to be considered to contain ethyl alcohol within the meaning of Directive 92/83 is well founded.

III – The question referred for a preliminary ruling

21. The Regeringsrätten decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is the alcohol contained in cooking wine to be classified as ethyl alcohol as referred to in the first indent of Article 20 of Directive [92/83]?’

IV – Analysis

22. In the observations that it submitted to the Court, the Commission of the European Communities takes the view that there is no need for the Court to give a ruling on the question referred by the Regeringsrätten.

23. It submits that the fact that the Skatteverket asked the referring court not to amend the opinion given by the Skatterättsnämnden but to confirm it shows that there is no dispute between the parties in the main proceedings. The Commission also points out that all the parties to the dispute are in agreement about the fact that the cooking wine is exempt from any duty on alcohol.

24. The Commission cites the judgment in Foglia (7) in which the Court held that the duty assigned to the Court by Article 234 EC is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. (8)

25. Again referring to the judgment in Foglia , the Commission adds that the Court does not have jurisdiction to answer a question of interpretation such as that referred to it in the main proceedings, because it is a procedural device arranged by the parties in order to induce the Court to give its view on certain questions of Community law which do not meet an objective need inherent in the resolution of a dispute.

26. Like the Commission, I am of the opinion that the Court does not have jurisdiction to answer the question referred by the Regeringsrätten.

27. The procedure laid down in Article 234 EC is an instrument of cooperation between the Court of Justice and the national courts. (9) The reference for a preliminary ruling enables a national court which is unsure as to the interpretation of a Community law to refer questions to the Court of Justice so that the latter can give a ruling which it needs in order to resolve the dispute.

28. While it is true that, within the framework of Article 234 EC, it is for the national court hearing the dispute to assess the necessity to refer a question for a preliminary ruling and the relevance of such questions, the fact remains that it is for the Court of Justice, where necessary, to confirm its own jurisdiction and examine the conditions in which the case has been referred to it. (10)

29. Therefore, the Court Justice may find it necessary to determine whether the reference was made by the national court or tribunal of a Member State, (11) hearing a dispute, (12) which takes the view that a decision of the Court is necessary in order for it to give judgment. (13)

30. The procedure before the Skatterättsnämnden is a specific procedure. The task of that body to give a preliminary opinion on matters which concern, in particular, taxpayers in their relationships with the public authorities with respect to their tax liabilities. (14) Where a taxpayer makes an application to the Skatterättsnämnden the Skatteverket may submit observations regarding taxation of the relevant transaction.

31. The Skatterättsnämnden then draws up an opinion on the manner in which the question referred to it is to be determined when that transaction is assessed to tax. That opinion may be subject to an appeal before the Regeringsrätten by the applicant or by the Skatteverket. (15)

32. In its judgment in Victoria Film , the Court held that it did not have jurisdiction to give a ruling on questions referred for a preliminary ruling by the Skatterättsnämnden on the ground that it performs an essentially administrative function and stated that a national court may refer a question to the Court of Justice only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. (16)

33. However, the Court added that where a taxpayer or the Skatteverket brings an action challenging a preliminary decision, the Regeringsrätten, before which the matter is thus brought, may, for the purposes of Article 234 EC, be regarded as performing a judicial function with the object of reviewing the legality of an act determining a taxpayer’s assessment to tax. (17)

34. Therefore, there is no doubt that the Regeringsrätten is a national court or tribunal within the meaning of Article 234 EC.

35. However, I am of the opinion that in the case in the main proceedings the condition requiring the existence of a dispute pending before the national court is not satisfied.

36. First of all, it should be pointed out that ‘dispute’ is defined as ‘une contestation donnant matière à procès, étant précisé que la contestation est entendue comme un différend.’ (18)

37. Next, still regarding the requirement of the existence of a dispute, the Court has already declared that it lacks jurisdiction where the dispute has been arranged artificially by the parties in order to induce the Court to give an advisory opinion on general or hypothetical questions (19) or even, where the applicant’s claims in the main proceedings were met after the national court made a reference for a preliminary ruling to the Court of Justice. (20)

38. In such cases the Court has held that there was no genuine dispute or that the dispute which gave rise to the question referred for a preliminary ruling no longer existed, since there was not or was no longer a dispute between the parties.

39. I note that, in the main proceedings, it is common ground that all the parties, that is to say, Gourmet Classic, the Skatterättsnämnden and the Skatteverket are in agreement as to the solution to be adopted.

40. It is clear from the order for reference that Gourmet Classic asked the Skatterättsnämnden for confirmation that the cooking wine would not be subject to excise duty on alcohol since, in Gourmet Classic’s view, it is one of the exceptions laid down in Article 27(1)(f) of Directive 92/83, repeated in point 5 of the first subparagraph of Paragraph 7 of the LAS. (21)

41. In this case, the Skatteverket submitted before the Skatterättsnämnden that cooking wine could in fact qualify for the exemption laid down in point 5 of the first subparagraph of Paragraph 7 of the LAS. (22)

42. Furthermore, the Skatterättsnämnden adopted an opinion in accordance with the observations made by the two parties. (23)

43. The Regeringsrätten also adds, in paragraph 22 of its order for reference that the parties to the main proceedings are in agreement about the fact that no excise duty on alcohol should be levied.

44. It is clear from those facts that there is no difference of opinion between the parties and therefore there is no dispute before the national court.

45. It is not the first time that the Regeringsrätten has asked the Court about a dispute in the main proceedings concerning an opinion of the Skatterättsnämnden. (24) In the earlier cases, the Court held that it had jurisdiction to rule on questions referred for a preliminary ruling by the Regeringsrätten, in accordance with the case-law in Victoria Film , cited above.

46. In those cases, an appeal was brought before the Regeringsrätten against a preliminary opinion of the Skatterättsnämnden and it was therefore required to give a ruling in order to decide the dispute. (25)

47. Unlike this case, the opinion of the Skatterättsnämnden was challenged, which gave rise to a dispute.

48. It is true that in Leclerc-Siplec (26) the Court held that it had jurisdiction even though the defendant in the main proceedings was in complete agreement with the applicant. (27)

49. However, it should be pointed out that in Leclerc-Siplec , at the time the main proceedings began, a genuine dispute existed between the parties. TF1 Publicité and M6 Publicité refused to broadcast an advertising message on fuel distribution at Leclerc supermarkets. The import company Édouard Leclerc-Siplec therefore brought an action against those two companies before the Tribunal de Commerce Paris (France). (28)

50. In this case the basis of the proceedings is not a dispute between the parties, but a request for confirmation of an opinion with respect to which the parties are in agreement. A special feature of these proceedings is that the Skatteverket may bring an appeal before the Regeringsrätten about an opinion adopted by the Skatterättsnämnden, even if the appeal seeks confirmation of that opinion.

51. Therefore, this case concerns not a fictitious or artificial dispute, as in Foglia or Bacardi-Martini and Cellier des Dauphins , (29) but a request for confirmation of an opinion in the absence of any dispute.

52. The national court further states in its order that the case was brought before it with a view to ‘creating a precedent’ on the issue of the exemption of cooking wine from excise duty and to make it of general application.

53. In other words, in my view, the national court is asking the Court of Justice to give an advisory opinion.

54. The Court stated in Meilicke (30) that the spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice. (31) That function does not consist in giving advisory opinions, but in fulfilling a requirement inherent in the effective resolution of a dispute. (32)

55. In my view, to accept that the Court has jurisdiction in a case such as that before me is to distort the objective pursued by Article 234 EC and disregard the conditions for bringing an action before the Court under that article to the effect that there must be a dispute and that the question referred for a preliminary ruling must be justified by the need to resolve a genuine controversy.

56. Further, even assuming that the Regeringsrätten were to adopt a position contrary to the position of the Skatterättsnämnden and all the parties to the main proceedings, Gourmet Classic could, if necessary, challenge the decision to make it liable to pay import duties before the national court and the Regeringsrätten could, in the proceedings which would constitute a genuine dispute, ask the Court for a ruling on the scope of Article 20 of Directive 92/83.

57. In light of all of those factors, I am of the opinion that the Court does not have jurisdiction to give a ruling on the question referred by the Regeringsrätten.

V – Conclusion

58. Having regard to all of the foregoing considerations, I consider that the Court should hold that it lacks jurisdiction to give a ruling on the question referred by the Regeringsrätten.

(1) .

(2) – 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).

(3) – See the second and third recitals in the preamble to the directive.

(4) – According to Commission Regulation (EEC) No 2587/91 of 26 July 1991 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1991 L 259, p. 1), which was applicable at the time of the entry into force of Directive 92/83 on 31 December 1992, tariff heading CN 2207 is ‘Undenatured ethyly alcohol of an alcoholic strength by volume of 80% vol. or higher; ethyl alcohol and other spirits, denatured, of any strength.’ Tariff heading CN 2208 is ‘Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80% vol.; spirits, liqueurs and other spirituous beverages; compound alcoholic preparations of a kind used for the manufacture of beverages.’

(5) – Those tariff headings are respectively, pursuant to Regulation No 2587/91 for ‘[w]ine of fresh grapes, including fortified wines; grape must other than that of heading No 2009’, ‘vermouth and other wine of fresh grapes flavoured with plants or aromatic substances’ and finally ‘[o]ther fermented beverages (for example, cider, perry, mead); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included.’

(6) – SFS 1994, No 1564, ‘the LAS’.

(7) – Case 244/80 Foglia [1981] ECR 3045.

(8) – Paragraph 18.

(9) – See, in particular, Case C‑225/02 García Blanco [2005] ECR I‑523, paragraph 26.

(10) – See, in particular, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others [1995] ECR I‑1567, paragraphs 13 to 17, and the case-law cited.

(11) – See, in particular, the judgment in Case C‑53/03 Syfait and Others [2005] ECR I‑4609, paragraph 21.

(12) – See the judgment in Case 338/85 Pardini [1988] ECR 2041, paragraphs 10 and 11.

(13) – See judgments in Zabala Erasun and Others , paragraphs 28 and 29, and the case‑law cited; García Blanco , paragraphs 27 and 28; Case C-306/03 Salgado Alonso [2005] ECR I-705, paragraphs 41 and 42; and Case C-466/04 Acereda Herrera [2006] ECR I-5341, paragraph 49.

(14) – See paragraph 10 of the Opinion of Advocate General Fennelly in Case C‑134/97 Victoria Film [1998] ECR I‑7023.

(15) – Idem.

(16) – Paragraphs 14 and 15.

(17) – Paragraphs 18 and 19. See, also, Case C-200/98 X and Y [1999] ECR I-8261, paragraphs 16 and 17.

(18) – A controversy which may give rise to legal proceedings, where that controversy must be understood as a difference of opinion. See, Le Petit Robert – Dictionnaire de la langue française , Dictionnaires Le Robert, Paris 2004.

(19) – See Foglia .

(20) – See judgment in García Blanco , paragraphs 29 to 31.

(21) – See order for reference, paragraph 11.

(22) – Ibidem, paragraph 12.

(23) – Ibidem, paragraph 13.

(24) – See, in particular, the judgment in Case C‑111/05 Aktiebolaget NN [2007] ECR I‑2697, and Order of 10 May 2007 in Case C‑102/05 A and B [2007] ECR I‑3871.

(25) – Emphasis added.

(26) – Case C‑412/93 Leclerc-Siplec [1995] ECR I‑179.

(27) – Paragraphs 3, 14 and 15.

(28) – Paragraphs 2 and 3.

(29) – Case C‑318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I‑905.

(30) – Case C‑83/91 Meilicke [1992] ECR I‑4871.

(31) – Paragraph 25.

(32) – Judgment in Foglia , paragraphs 18 and 20.