CELEX: C2000/149/01
Language: en
Date: 2000-05-27 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 9 March 2000 in Case C-437/97 (reference for a preliminary ruling from the Verwaltungsgerichtshof): Evangelischer Krankenhausverein Wien v Abgabenberufungskommission Wien and Wein & Co. HandelsgesmbH, formerly Ikera Warenhandelsgesellschaft mbH, v Oberösterreichische Landesregierung (Indirect taxation — Municipal beverage duty — Sixth VAT Directive — Directive 92/12/EEC)

27.5.2000               EN                      Official Journal of the European Communities                                              C 149/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       1. Article 33 of Sixth Council Directive 77/388/EEC of 17 May
                                                                                 1977 on the harmonisation of the laws of the Member States
                          (Fifth Chamber)                                        relating to turnover taxes — Common system of value added
                                                                                 tax: uniform basis of assessment, as amended by Council
                         of 9 March 2000                                         Directive 91/680/EEC of 16 December 1991 supplementing
                                                                                 the common system of value added tax and amending Directive
in Case C-437/97 (reference for a preliminary ruling from                        77/388/EEC with a view to the abolition of fiscal frontiers, does
the Verwaltungsgerichtshof): Evangelischer Krankenhaus-                          not preclude the maintenance of a tax such as the duty on
verein Wien v Abgabenberufungskommission Wien and                                beverages and ice cream at issue in the main proceedings, which
Wein & Co. HandelsgesmbH, formerly Ikera Waren-                                  is levied on the supply for consideration of ice cream (including
handelsgesellschaft mbH, v Oberösterreichische Landes-                           fruits processed therein or added thereto) and of beverages, in
                            regierung (1)                                        each case including the containers and accessories sold with the
                                                                                 products.
(Indirect taxation — Municipal beverage duty — Sixth VAT
               Directive — Directive 92/12/EEC)
                          (2000/C 149/01)                                    2. Article 3(3) 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
                   (Language of the case: German)                                products does not preclude the maintenance of a tax charged on
                                                                                 non-alcoholic beverages and ice cream, such as that at issue in
(Provisional translation; the definitive translation will be published           the main proceedings. Article 3(2) of that directive does preclude
                   in the European Court Reports)                                the maintenance of a tax charged on alcoholic beverages, such as
                                                                                 that at issue in the main proceedings.
In Case C-437/97: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Verwaltungsge-
richtshof (Austria) for a preliminary ruling in the proceedings
pending before that court between Evangelischer Krankenhaus-                 3. The provisions of Article 3(2) of Directive 92/12 cannot be
                                                                                 relied on in support of claims relating to a tax such as the duty
verein Wien and Abgabenberufungskommission Wien and
between Wein & Co. HandelsgesmbH, formerly Ikera Waren-                          on alcoholic beverages paid or chargeable prior to the date of the
handelsgesellschaft mbH, and Oberösterreichische Landesregi-                     present judgment, except by claimants who have, before that date,
                                                                                 initiated legal proceedings or raised an equivalent administrative
erung on the interpretation of Article 33 of Sixth Council
Directive 77/388/EEC of 17 May 1977 on the harmonisation                         claim.
of the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1), of Article 3 of Council Directive
92/12/EEC of 25 February 1992 on the general arrangements
for products subject to excise duty and on the holding,
                                                                             (1) OJ C 72 of 7.3.1998.
movement and monitoring of such products (OJ 1992 L 76,
p. 1), and of Article 92 of the EC Treaty (now, after amendment,
Article 87 EC) — the Court (Fifth Chamber), composed of:
D.A.O. Edward, President of the Chamber, J.C. Moitinho de
Almeida, C. Gulmann, J.-P. Puissochet and M. Wathelet
(Rapporteur), Judges; A. Saggio, Advocate General; H.A. Rühl,
for the Registrar, has given a judgment on 9 March 2000, in
which it has ruled: