OR NOT BOTH CATEGORIES OF BEVERAGES ARE CAPABLE OF MEETING THE SAME NEEDS FROM THE POINT OF VIEW OF CONSUMERS .
12 IT SHOULD BE NOTED THAT THE TWO CATEGORIES OF BEVERAGES EXHIBIT MANIFESTLY DIFFERENT CHARACTERISTICS . FRUIT WINE OF THE LIQUEUR TYPE IS A FRUIT-BASED PRODUCT OBTAINED BY NATURAL FERMENTATION , WHEREAS SCOTCH WHISKY IS A CEREAL-BASED PRODUCT OBTAINED BY DISTILLATION . THE ORGANOLEPTIC PROPERTIES OF THE TWO PRODUCTS ARE ALSO DIFFERENT . AS THE COURT HELD IN REWE ( SUPRA ), THE FACT THAT THE SAME RAW MATERIAL , FOR EXAMPLE ALCOHOL , IS TO BE FOUND IN THE TWO PRODUCTS IS NOT SUFFICIENT REASON TO APPLY THE PROHIBITION CONTAINED IN THE FIRST PARAGRAPH OF ARTICLE 95 . FOR THE PRODUCTS TO BE REGARDED AS SIMILAR THAT RAW MATERIAL MUST ALSO BE PRESENT IN MORE OR LESS EQUAL PROPORTIONS IN BOTH PRODUCTS . IN THAT REGARD , IT MUST BE POINTED OUT THAT THE ALCOHOLIC STRENGTH OF SCOTCH WHISKY IS 40% BY VOLUME , WHEREAS THE ALCOHOLIC STRENGTH OF FRUIT WINE OF THE LIQUEUR TYPE , TO WHICH THE DANISH TAX LEGISLATION APPLIES , DOES NOT EXCEED 20% BY VOLUME .
13 THE CONTENTION THAT SCOTCH WHISKY MAY BE CONSUMED IN THE SAME WAY AS FRUIT WINE OF THE LIQUEUR TYPE , AS AN APERITIF DILUTED WITH WATER OR WITH FRUIT JUICE , EVEN IF IT WERE ESTABLISHED , WOULD NOT BE SUFFICIENT TO RENDER SCOTCH WHISKY SIMILAR TO FRUIT WINE OF THE LIQUEUR TYPE , WHOSE INTRINSIC CHARACTERISTICS ARE FUNDAMENTALLY DIFFERENT .
14 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT PRODUCTS SUCH AS SCOTCH WHISKY AND FRUIT WINE OF THE LIQUEUR TYPE MAY NOT BE REGARDED AS SIMILAR PRODUCTS .
THE SECOND PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY
15 IN ITS SECOND QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN WHETHER , IF THEY ARE NOT SIMILAR PRODUCTS , SCOTCH WHISKY AND FRUIT WINE OF THE LIQUEUR TYPE ARE TO BE REGARDED AS COMPETING PRODUCTS AND , IF SO , WHETHER TAXATION THAT DIFFERENTIATES BETWEEN THE TWO PRODUCTS , OF THE KIND IMPOSED BY THE AFORESAID DANISH LEGISLATION , IS TO BE REGARDED AS INCOMPATIBLE WITH THE SECOND PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY .
16 THE PLAINTIFF IN THE MAIN PROCEEDINGS MAINTAINS THAT , ACCORDING TO THE RELEVANT CASE-LAW , IT IS NECESARY TO CONSIDER , IN ANALYSING THE COMPETITIVE RELATIONSHIP , THE POSSIBILITIES FOR MARKET DEVELOPMENT AND THE POTENTIAL FOR THE SUBSTITUTION OF PRODUCTS . SCOTCH WHISKY IS TO THE AVERAGE ENGLISH OR SCOTTISH CONSUMER WHAT FRUIT WINE IS TO THE AVERAGE DANISH CONSUMER . AS REGARDS THE RATIO BETWEEN THE TAX BURDEN ON THE ONE HAND AND ON THE OTHER THE QUANTITY , THE ALCOHOL CONTENT AND THE PRICE OF THE PRODUCT , WHICH THE COURT ADOPTED AS CRITERIA FOR COMPARISON , WHISKY IS SUBSTANTIALLY OVER-TAXED BY COMPARISON WITH THE COMPETING DANISH