1999/779/EC: Commission Decision of 3 February 1999 on an Austrian state aid granted in the form of an exemption from beverage tax of wine and other fermented beverages sold directly on the place of production to the consumer (notified under document number C(1999) 325) (Only the German text is authentic)
Date: 1999-02-03
Institutions: European Commission
Subjects: Austria, State aid, alcoholic beverage, direct selling, tax exemption, wine

30. 11. 1999

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Official Journal of the European Communities

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COMMISSION

COMMISSION DECISION

of 3 February 1999

on an Austrian state aid granted in the form of an exemption from beverage tax of wine and other
fermented beverages sold directly on the place of production to the consumer

(notified under document number C(1999) 325)

(Only the German text is authentic)

(1999/779/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community, and in particular Articles 92 and 93 thereof,

Having regard to the Act concerning the Accession of Austria,
Finland and Sweden to the European Union, and in particular
Articles 144(a) and 149 thereof, and to the Commission
decision of 24 July 1998 on transitional measures for Austria
concerning tax exemptions for wine and other fermented
beverages taken by virtue of Article 149,

After giving notice to the parties concerned to submit their
comments,

in accordance with Article 93(2),

Whereas:

Austria), as last amended in 1997, which empowers the Länder
and the municipalities to levy the beverage tax except for
farm-gate sales of wine and other fermented beverages. As for
the delimitation of
the range of products covered by this
exemption the Finanzausgleichsgesetz refers to the Umsatzsteuer-
gesetz 1994 (Act on turnover tax). Appropriate provisions are
laid down in the secondary legislation of the Länder and of the
municipalities in the wine-growing regions of Austria (e.g.
Steiermärkisches Getränke- und Speiseabgabengesetz 1993, Ober-
österreichische Gemeinde-Getränkesteuergesetz-Novelle 1993, Salz-
burger Getränkesteuergesetz 1993, Getränkesteuerverordnung der
Stadt Salzburg, Niederösterreichisches Getränke- und Speiseeissteuer-
gesetz 1992, Getränkesteuerverordnung 1992 der Stadt Wien).

The scheme had come into force before Austria's accession to
the European Union and has been continously applied since
Austria became a member of the European Union.

I

II

Answering a request from the Commission of 21 March 1996,
Austria sent a letter of 30 May 1996 presenting information
about a national scheme for a tax exemption. As part of the
preliminary procedure according to Article 93(3) of the EC
Treaty, Austria has submitted further information by letter of
19 July 1996.

The measure in question provides for an exemption from
beverage tax in favour of wine (heading Nos 2204 21 and
2204 29 of the Common Customs Tariff) and other fermented
the Common Customs
beverages (heading No 2206 00 of
Tariff), where these products are sold direct to the consumer at
the place of production (‘farm-gate’ sales). The beverage tax is
generally levied at a rate of 7,58 % of the retail price (10 %
excluding value added tax) for sales of alcoholic beverages to
the consumers.

This exemption from the beverage tax is provided for in the
Finanzausgleichsgesetz 1993 (Act on redistribution of income
between the Federal State, the Länder and the municipalities of

By letter of 20 November 1996 the Commission informed
Austria of its decision to open the procedure under Article
93(2) of
the EC Treaty with regard to the measure. The
decision was published in the Official Journal of the European
Communities and the Commission invited the Member States
and other interested parties to submit their observations (1).

In the decision, the Commission expressed its doubts as to the
It
compatibility of the measure with the common market.
stated that the measure might constitute state aid incompatible
with the common market, as it appears to fulfil the conditions
of Article 92(1) of the EC Treaty without qualifying for any of
the derogations provided for in paragraphs 2 and 3 of that
Article. Moreover, the aid could not be considered to constitute
an ‘existing’ aid within the meaning of Article 93(1) of the EC
Treaty as it had not been notified in accordance with Article
144 of the Act of Accession.

(1) OJ C 82, 14.3.1997, p. 9.

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No observations from Member States or third parties were
received after publication of the decision. Austria submitted
observations by letters of 21 January 1997 and of 31 January
1997 and it sent supplementary observations in letters of 5
December 1997 and of 22 December 1997.

if the Commission considered that the
Austria argues that,
differences in taxation between Austria and other Member
States created a distortion of the conditions of competition
which should be eliminated, consultations according to Article
101 of the EC Treaty would be a more appropriate way to
proceed with the case.

On 24 July 1998 the Commission, pursuant to Article 149(1)
of the Act of Accession, decided, after having followed the
procedure under Article 38 of Council Regulation No 136/
66/EEC of 22 September 1966 on the establishment of a
common organisation of the market in oils and fats (1), as last
amended by Regulation (EC) No 1638/98 (2), that ‘Austria may
maintain, until 31 December 1998, the existing provisions of
various Austrian laws exempting producers of wine and other
fermented beverages from the beverage tax in relation to
produce sold directly at
the place of production to the
consumer’ (3). The application of Article 149 was initially due
to end on 31 December 1997 but extended until 31 December
1998 by Council Regulation (EC) No 2596/97 of 18 December
1997 extending the period provided for in Article 149(1) of
the Act of Accession of Austria, Finland and Sweden (4), by the
procedure laid down in Article 149(2).

In the recitals of the preamble to the Commission decision of
24 July 1998 it was stated that the Austrian scheme purports
to facilitate the development of wine growing in small or very
small holdings in areas with difficult production conditions or
frontier areas. Therefore, in order to facilitate the transition of
the production concerned to the relevant common market
organisations of Council Regulation (EEC) No 822/87 of 16
March 1987 on the common organisation of the market in
wine (5), as last amended by Regulation (EC) No 1627/98 (6),
and Council Regulation (EEC) No 827/68 of 28 June 1968 on
the common organisation of the market in certain products
listed in Annex II to the EC Treaty (7), as last amended by
Commission Regulation (EC) No 195/96 (8), Austria was
authorised to maintain the tax exemptions on a temporary
basis.

Consequently, this decision relates to whether the measure is
compatible with Community rules on state aid, given that the
measure is, as of 1 January 1999, no longer considered to
constitute a transitional measure and is therefore subject to
those rules.

III

As regards the status of the measure, Austria recalls that the tax
exemption had been in force since before Austria's accession to
the Community. Even from a formalistic point of view, it was
thus wrong and misleading to categorise it as a new measure
and to invite the other Member States and third parties to
submit their comments on it.

(1) OJ 172, 30.9.1966, p 3025/66.
(2) OJ L 210, 28.7.1998, p. 32.
(3) Written procedure E/1462/98.
(4) OJ L 351, 23.12.1997, p. 12.
(5) OJ L 84, 27.3.1987, p. 1.
(6) OJ L 210, 28.7.1998, p. 8.
(7) OJ L 151, 30.6.1968, p. 16.
(8) OJ L 26, 2.2.1996, p. 13.

Furthermore, Austria contests that the measure constitutes state
aid within the meaning of Article 92(1) of the EC Treaty.

In particular,
the measure should be considered a general
it constitutes a
measure, quite devoid of selectivity; rather,
normal tax measure in the agricultural sector, justified by its
purpose and place within the taxation system. This system
would, furthermore, not allow for any discretion on the part of
the authorities charged with implementing the measure.

Austria alleges that the measure is highly unlikely to distort
competition since it only reflects a traditional pattern of
consumption. In this regard it is submitted that beverage tax of
the present type was peculiar to Austria and that it has internal
relevance only, as cross-border trade is not taxed. By exempting
from beverage tax those Austrian farmers who sell wine direct
on their farms, they are put on an equal footing with agricul-
tural holdings in the rest of the European Union, where no
such beverage taxes exist in the first place.

In the alternative, Austria claims that the measure qualifies for
an exemption under Article 92(3)(c) of the EC Treaty. This
provision allows aid to facilitate the development of certain
economic activities or of certain economic areas, provided that
certain preconditions are fulfilled. Austria claims that more
than 7 000 viticultural holdings are concerned which are
mainly situated in less favoured areas or frontier areas and are
small or very small. These holdings find themselves in an
economically and financially precarious situation and are often
not in the position to pass the burden of the beverage tax on to
the consumer.

Austria rejects the view that the measure infringes the common
market organisations: the core element of the common market
organisation for wine is not the management of prices but
rather intervention measures such as land clearing, storage,
distillation, grape juice production and the import and export
regime. Previous decisions on aid measures, such as Commis-
sion Decision 93/155/EEC (9), would mainly refer to such
measures. The prohibitive effect of common market organ-
isations could only refer to areas covered by these. Austria, in
this connection, invokes Commission Decision 89/228/EEC (10)
concerning an Italian measure setting a maximum price on
rectified concentrated grape juice, held by the Commission to
be an infringement of
the common market organisation.
Austria affirms that, although the setting of maximum prices
did indeed amount to a serious market intervention, the case of
a tax exemption justified by economic and social considera-
tions was in no way comparable.

(9) OJ L 61, 13.3.1993, p. 55.
(10) OJ L 94, 7.4.1989, p. 38.

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IV

Applicability of state aid rules

The measure in question applies to wine made from fresh
the
grapes under heading Nos 2204 21 and 2204 29 of
Common Customs Tariff, covered by Regulation (EEC) No
822/87, and other fermented beverages under heading No
2206 00 of the Common Customs Tariff, covered by Regula-
tion (EEC) No 827/68. By virtue of Article 42 of the EC Treaty,
the rules on competition shall apply to production of and trade
in agricultural products only to the extent determined by the
Council. The Council, acting under Article 76 of Regulation
(EEC) No 822/87 and Article 5 of Regulation (EEC) No 827/68,
decided that Articles 92, 93 and 94 of the EC Treaty apply to
the production and the trade in the products covered by those
Regulations.

favouring certain undertakings or the production of certain
goods shall, in so far as it affects trade between Member States,
be incompatible with the common market.

The measure fulfils the above conditions and must therefore be
considered to constitute state aid for the purposes of that
Article.

Aid granted through state resources

The exemption from beverage taxes applying to wine made
from fresh grapes and other fermented beverages sold direct at
the place of production (farm-gate sale)
is equivalent to a
waiver of the fiscal revenue which would otherwise have to be
paid by the producer. The exemption is borne by the public
budget of Austrian Länder and municipalities in so far as it
reduces revenues and has to be regarded as granted through
state resources (1).

Regarding the question of direct or indirect aid, Article 92(1)
also applies to indirect aid. However, despite the objections of
Austria, the measure at issue is to be regarded as direct aid
since the addressee of the legal provision is the same holding
that actually benefits economically from the tax exemption.

Status of the national measure in question

Favouring certain undertakings

The status of ‘existing aid’ within the meaning of Article 93(1)
of the EC Treaty, is generally only awarded to a given measure
afrer it has been formally approved by the Commission, or,
where the Commission has not reacted within two months of
proper notification of the measure, after the Member State has
notified the Commission of its introduction.

As regards aid schemes which operated in the new Member
States before their accession, Article 144, point (a) of the Act
of Accession provides that ‘among the aids applied in the new
Member States prior to accession only those communicated to
the Commission by 30 April 1995 will be deemed to be
“existing” aids within the meaning of Article 93(1) of the EC
Treaty’.

The mere fact of the measure's existence prior to accession, as
is claimed by Austria, is not sufficient to qualify it as ‘existing’
within the meaning of Article 93(1) of the EC Treaty. Austria
did not include the measure in the notification of existing
schemes to the Commission before 30 April 1995 with refer-
ence to Article 144 of the Act of Accession; nor did Austria
notify the measure after accession in accordance with Article
93(3) of the EC Treaty. The Commission came to know of the
measure by way of a complaint. The measure thus cannot be
deemed ‘existing’ within the meaning of Article 93(1) and
cannot, for this reason, benefit from the legal status of such
aid.

The prohibition of state aid

Pursuant to Article 92(1) of the EC Treaty, any aid granted by a
Member State or through state resources in any form whatso-
ever which distorts or threatens to distort competition by

The measure benefits
farmers who pursue a permanent
economic activity. These businesses, provided that they sell on
the farm to the consumer, are exempted from paying a tax
generally levied on sales of beverages at about 7,58 % of the
price charged to the consumer. The measure refers particularly
to wine made from fresh grapes and other fermented bever-
ages. The measure is therefore considered to favour certain
undertakings and the production of certain goods. Austria did
not take issue with these arguments.

As far as the selectivity of the measure is concerned, Austria
pointed to the absence of any discretion on the part of the tax
authorities to apply or withhold the exemption. This, indeed, is
a necessary, but not a sufficient condition for demonstrating
that a measure is non-selective. Commission policy attributes
the character of specificity to any measure which derogates
from the general tax system of the Member State unless this is
justified by the logic of the system itself. Admissible deroga-
tions from the general system are those which, for economic
reasons, prove necessary or practical in terms of the efficiency
of the system (see the judgments of the Court of Justice of 2
July 1974 in Case C-173/73 Italy v. Commission (2) and of 17
March 1993 in Case C-72/91 Sloman Neptun (3).

to consumers are taxable under

The tax system in Austria provides that, in general, sales of
alcoholic beverages
the
beverage tax. Exemption from the beverage tax for a small
group of beneficiaries selling wine or other fermented bever-
ages directly to the consumer on the place of production
constitutes a derogation from the general taxation system. This
exemption does not apply to wine sold by traders to the
consumer nor to off-farm sales by farmers to consumers. The
Commission does not hold any evidence showing that the
exemption at issue arises from the logic of the tax system; nor
does it see the collection of such a tax as a technical impossi-
bility.

(1) For the classification of

example the judgment of
Banco Exterior de Espana [1994] ECR 1-877.

tax exemptions as a ‘State aid’, see for
Justice in Case C-387/92

the Court of

(2) [1974] ECR 709.
(3) [1993] ECR 887.

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Distortion of competition

An aid measure distorts competition if it intervenes in an
existing or developing competitive relationship between hold-
ings or sectors of production and if the measure artificially
modifies the conditions of competition for competitors. As
may be seen from the judgment of the Court of 17 September
1980 in Case C-730/79 Philip Morris (1), the strengthening of
the economic position of an undertaking by means of a state
aid normally indicates the distortion of competition in relation
to competing undertakings.

sold direct

fermented beverages

to the
Wine and other
consumer at
the vineyard compete with wine and other
fermented beverages offered to the same consumer by retail
traders. By exempting from charges one group of products
while charging the others, conditions of competition are
distorted.
issue the competitive advantage
conferred on producers of wine who sell at the farm-gate to
consumers amounts to about 7,58 % of the sales price.

In the case at

producers from beverage taxes does not infringe the principle
of equality between producers and traders since different
circumstances justify different treatment. However, it has to be
noted that this judgment refers to the issue of discrimination,
and not to the question of the existence of a state aid and its
compatibility with the common market under Article 92 of the
EC Treaty. It has, therefore, no bearing on the above considera-
tions.

Impact on trade between Member States

A measure will affect trade between Member States if it makes
imports from Member States more difficult or if
it makes
exports from one Member State to other Member States easier.
A decisive factor is whether, on account of the measure, trade
within the Community evolves differently or is likely to do so.

Austria, in its letter of 19 July 1996, referred to a judgment of
the Austrian constitutional court of 27 November 1995 (2). In
this judgment, the court finds that the exemption of certain

There is trade in wine and other fermented beverages between
Austria and other Member States. The following tables illustrate
imports and exports for the year 1997 by referring to selected
States.

Exports of wine (headings No 2204 21 and 2204 29 of the
Common Customs Tariff) from Austria to selected Member States
in 1997 (in litres)

Imports of wine (headings No 2204 21 and 2204 29 of the
Common Customs Tariff) from selected Member States into
Austria in 1997 (in litres)

Netherlands
Germany
Sweden
Italy

334 111

France

12 943 617 Germany

861 885
1 110 507

Italy
Spain

4 470 800
3 592 229
44 547 248
3 899 658

Total exports to other Member States

14 513 937

Total imports from other Member States

57 475 859

Exports of other fermented beverages (heading No 2206 00 of the
Common Customs Tariff) from Austria to selected Member States
in 1997 (in litres)

Imports of other fermented beverages (heading No 2206 00 of the
Common Customs Tariff) from selected Member States into
Austria in 1997 (in litres)

France
Germany
Sweden
Italy

5 335

Belgium-Luxembourg

126 550 Germany
150 938
1 751

Italy
Sweden

146 209
214 662
135 789
9 877

Total exports to other Member States:

285 074

Total imports from other Member States:

3 904 775

The beverages imported into Austria are marketed to consumers via the retail trade. By exempting Austrian
wine and other fermented beverages, if sold on-farm to consumers, from a tax which is levied on wine and
other fermented beverages imported into Austria from other Member States and offered by retailers, the
measure creates an artificial price-gap discriminating against imports which can evidently not benefit from
beverage-tax exempted sales. It is important to note that according to estimates Austrian wine sold on the
farm to the consumer accounts for about 50 % of the total sales of wine in Austria. The measure thus
affects trade between Member States. It can be assumed that, in absence of the measure, imports of wine
(and other fermented beverages) from other Member States into Austria would be higher than at present,
possibly to the detriment of sales of Austrian wine (and other fermented beverages).

(1) [1980] ECR 2671, at paragraphs 11 and 12.
(2) B 1648/94.

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Moreover, businesses benefiting from the measure might
export to other Member States and could conceivably use the
proceeds from the aid to cross-subsidise their exports.

The aid is, indeed, neither intended to achieve nor suitable for
achieving the objectives contained in Article 92(3)(d).

Austria states that the duty to pay beverage tax has to be seen
as a competitive disadvantage for Austrian producers since
other Member States do not levy such a tax. This line of
argument cannot be accepted as foreign wine and other
fermented beverages sold in Austria are subject to the beverage
tax while Austrian wine and other fermented beverages sold in
other Member States are not subject to the Austrian beverage
tax. In any event; the Court of Justice has held in its judgment
of 10 December 1969, Joined Cases 6 and 11-69 Banque de
France (1), that the existence of a state aid measure cannot be
refuted on the basis that a Member State tries to approximate
rates that bear on its national products to be exported to those
applied in other Member States. This finding applies mutatis
mutandis to the case at issue.

The derogations from the prohibition of state aid

The prohibition in Article 92(1) of the EC Treaty is followed by
exemptions in Article 92(2) and (3).

Article 92(2) of the EC Treaty

The exemptions listed in Article 92(2) are inapplicable given
the nature of the aid measure in question and its objectives.
Austria has in fact not submitted that Article 92(2) is applic-
able.

Article 92(3) of the EC Treaty

Article 92(3) defines the circumstances under which state aids
may be considered to be compatible with the common market.
Their compatibility with the common market must be assessed
from the viewpoint of the Community and not that of an
individual Member State. In the interests of the smooth func-
tioning of the common market and in keeping with Article 3g
of the EC Treaty, exemptions from the prohibition of State aid
must be interpreted restrictively.

it has to be noted that the
With regard to Article 92(3)(a),
measure does not apply exclusively in a region where, pursuant
to the Guidelines on national regional aid (2), the economic
situation is
in relation to the
Community as a whole (meaning per capita gross domestic
product, measured in purchasing-power standards, of less than
75 % of the Community average).

extremely unfavourable

With regard to Article 92(3)(b), it is considered that the aid in
quesion is not intended to promote the execution of an impor-
tant project of common European interest or to remedy a
serious disturbance in Austria's economy.

(1) [1969] ECR 523, at paragraphs 18 to 21.
(2) OJ C 74, 10.3.1998, p. 9.

Austria has not submitted that
applicable.

the above exemptions are

Article 92(3)(c) of the EC Treaty

According to Article 92(3)(c) of the EC Treaty, aid to facilitate
the development of certain economic activities or of certain
economic areas, where such aid does not adversely affect
trading conditions to an extent contrary to the common
interest, may be considered to be compatible with the common
market.

In justifying the measure, Austria relies on Article 92(3)(c) and
refers to the small-scale structure of production of the benefi-
location and their difficult
ciaries,
economic and financial
situation. According to Austria,
without the aid many of these holdings would succumb to
economic stress and would have to close down.

their disadvantageous

The Commission does not endorse state aid measures under
Article 92(3)(c) which do not induce the development of a
sector or region but simply preserve the status quo. The aid in
question is not designed and is not likely to bring about
structural improvements as it does not link the benefit of the
tax exemption to technical or structural changes in the benefi-
ciaries' holdings. The artificial competitive advantage conferred
on the beneficiaries of the aid only persists as long as the aid is
granted. Such aid does not facilitate the development of the
sector or a region but is considered to be operating aid, that is
to say aid which is intended to relieve an undertaking of the
expenses which it would normally have to bear. Operating aid
is in principle incompatible with the common market (judg-
ment of the Court of Justice of 15 May 1997 in Case 278/95 P
Siemens [1997] ECR I-2507).

The foregoing arguments do not detract from the view which
the Commission expressed in the decision of 24 July 1998
wherein it considered the measure to be transitional, gaining
time for the addressees to adapt to a new legal and economic
environment. However, if Article 92(3)(c) of the EC Treaty is to
operate, the Commission requires the measure to exhibit a
clear and unambiguous linkage to the development of a sector
or a region in order to qualify for the derogation. Since no
such effect may be associated with the measure at issue,
it
cannot be deemed to match the exceptional circumstances
envisaged by Article 92(3)(c).

The aid thus neither satisfies the requirements of Article
92(3)(c) of the EC Treaty nor matches any other derogation for
state aid under Article 92(1)
thereof, and consequently is
considered to be incompatible with the common market.

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Article 101 of the EC Treaty

If the Commission finds that disparities between the legal and
administrative provisions of Member States distort competition,
it follows a special procedure provided for in Article 101 so as
to remedy the situation. Austria invokes this Article when
asserting that
the state aid procedure commenced by the
Commission is inappropriate. The Commission cannot accept
Austria's line of argument since, as has been shown above, the
tax exemption at issue constitutes state aid in its own right. In
its judgment in Case 173/73 (1), the Court of Justice held a
unilateral modification of one particular factor in the cost of
production in a given sector of the economy to be liable to
disturb the existing balance between the Member States regard-
less of the operation of Articles 99 to 102 of the EC Treaty,
which provide detailed rules for the abolition of general distor-
tions resulting from the differences between the tax systems of
the different Member States.

The common organisation of the markets

As the Commission considers the measure to constitute a state
aid incompatible with the common market according to Article
92(1) of the EC Treaty, there is no need to examine further
how far the measure infringes the common organisation of the
markets which govern the products covered by the tax exemp-
tion.

Article 95 of the EC Treaty

The same holds true in respect of the application of Article 95
of the EC Treaty. In this connection it should be mentioned
that the Commission has asked the Austrian Government in
the framework of the preliminary stage which can lead to the
initiation of proceedings under Article 169 of the EC Treaty to
present its views on whether the tax exemption constitutes a
discriminatory taxation measure
contrary to Article 95
(Commission letter of 6 November 1998). This decision on the
aspects of the beverage tax exemption representing state aid
does not prejudice the outcome of the contacts between the
Commission and Austria in the framework of the Article 169
procedure.

Furthermore, reference should be made to a procedure pending
before the Court of Justice under Article 177 of the Treaty (2).
The Austrian High Court of Administration (Verwaltungsgerichts-

hof) has asked the Court of Justice, on the subject of the
Austrian beverage tax, for a preliminary interpretation of the
sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating to
turnover taxes (3), as last amended by Directive 98/80/EC (4),
and of Council Directive 92/12/EEC of 25 February 1992 on
the general arrangements for products subject to excise duty
and on the holding, movement and monitoring of such prod-
ucts (5), as last amended by Directive 96/99/EC (6), and of
Article 92(1) of the Treaty,

HAS ADOPTED THIS DECISION:

Article 1

The measure notified by Austria whereby wine and other
fermented beverages, sold direct to the consumer at the place
of production, are exempted from the beverage tax which is
normally levied at a rate of about 7,58 % (10 % before VAT) of
the retail sales price of the product, is incompatible with the
common market.

Austria may not maintain, after 31 December 1998,
measure referred to in the first paragraph.

the

Article 2

Austria shall inform the Commission, within two months of
the date of notification of
the measures
adopted to comply with it.

this Decision, of

Article 3

This Decision is addressed to the Republic of Austria.

Done at Brussels, 3 February 1999.

For the Commission

Franz FISCHLER

Member of the Commission

(1) [1974] ECR 709.
(2) Case 437/97 before the Court of Justice.

(3) OJ L 145, 13.6.1977, p. 1.
(4) OJ L 281, 17.10.1998, p. 31.
(5) OJ L 76, 23.3.1992, p. 1.
(6) OJ L 8, 11.1.1997, p. 12.