Skatteverket v Gourmet Classic Ltd.
Date: 2008-06-12
19. Pursuant to the second and third paragraphs of Article 234 EC, where a question on the interpretation of the EC Treaty or of subordinate acts of the institutions of the Community is raised before any court or tribunal of a Member State, that court or tribunal may or, if it is a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, must, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon (see Case C-231/89 Gmurzynska-Bscher  [1990] ECR I‑4003, paragraph 17, and Case C-412/93 Leclerc-Siplec  [1995] ECR I‑179, paragraph 9).
20. Article 234 EC aims to avoid divergences in the interpretation of Community law which the national courts have to apply and aims to ensure that, in all circumstances, that law has the same effect in all Member States (see, to that effect, Case 166/73 Rheinmühlen-Düsseldorf [1974] ECR 33, paragraph 2).
21. According to settled case-law, the procedure provided for in Article 234 EC is an instrument of cooperation between the Court of Justice and the national courts (Joined Cases C-297/88 and C-197/89 Dzodzi  [1990] ECR I‑3763, paragraph 33; Case C-314/96 Djabali [1998] ECR I‑1149, paragraph 17; and Case C-380/01 Schneider  [2004] ECR I‑1389, paragraph 20).
22. In the context of that cooperation, it is for the national court or tribunal, which alone has direct knowledge of the facts of the main proceedings and which must assume responsibility for the subsequent judicial decision, to assess, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see Case C-83/91 Meilicke  [1992] ECR I‑4871, paragraph  23; Leclerc-Siplec , paragraph 10; and Case C-314/01 Siemens and ARGE Telekom  [2004] ECR I‑2549, paragraph 34).
23. In particular, the obligation to refer imposed by the third paragraph of Article 234 EC is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. That obligation is intended in particular to prevent a body of national case-law that is not in accordance with the rules of Community law from coming into existence in any Member State  (see Case C-337/95 Parfums Christian Dior  [1997] ECR I‑6013, paragraph 25; Case C-393/98 Gomes Valente  [2001] ECR I‑1327, paragraph 17; Case C-99/00 Lyckeskog  [2002] ECR I‑4839, paragraph 14; and Case C-495/03 Intermodal Transports  [2005] ECR I‑8151, paragraphs 29 and 38).
24. Consequently, where questions submitted by national courts concern the interpretation of a provision of Community law, the Court of Justice is,  in principle, obliged to give a ruling ( Meilicke , paragraph 24; Leclerc-Siplec , paragraph 11; and Case C-200/98 X and Y  [1999] ECR I‑8261, paragraph 19).
25. However, the Court has held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Case 244/80 Foglia  [1981] ECR 3045, paragraph 21; Case C-379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39; C-390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 19; and Schneider , paragraph 22).
26. While the spirit of cooperation which must prevail in the exercise of the functions assigned by Article 234 EC to the national courts, on the one hand, and the Community judicature, on the other, requires the Court of Justice to have regard to the particular responsibilities of the national court, it implies at the same time that the national court, in the use which it makes of the possibilities offered by that article, must have regard to the particular function entrusted to the Court of Justice in this field, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (see Case 244/80 Foglia , paragraphs 18 and 20, and Meilicke , paragraph 25).
27. With regard to the main proceedings, the Court has already held that, in the case of an appeal, the purpose of the procedure before the Regeringsrätten is to review the legality of an opinion which, once it becomes definitive, binds the tax authorities and serves as the basis for the assessment to tax if and to the extent to which the person who applied for the opinion continues with the action envisaged in his application and that, in those circumstances, the Regeringsrätten must be held to be carrying out a judicial function ( X and Y , paragraph 17).
32. Consequently, as already stated in paragraph 23 of this judgment, in proceedings such as the main proceedings, it is only by referring a question to the Court for a preliminary ruling that the objective pursued by that provision can be attained, that is to ensure the proper application and uniform interpretation of Community law in all the Member States and to prevent a body of national case-law that is not in accordance with the rules of Community law from coming into existence in the Member State concerned.
35. In that regard, although, as the national court states, cooking wine is, as such, an edible preparation falling within chapter 21 of the Combined Nomenclature annexed to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), the fact remains that that edible preparation contains ethyl alcohol falling within headings 2207 and 2208 of that nomenclature.
36. It follows that if the ethyl alcohol contained in cooking wine has an alcoholic strength exceeding 1.2 % volume, that alcohol falls within the scope of the first indent of Article 20 of Directive 92/83.
37. The fact that cooking wine is, as such, regarded as an edible preparation does not affect that assessment.
38. The first indent of Article 20 of Directive 92/83 applies even when the products covered by that provision form part of a product which falls within another chapter of the combined nomenclature.
39. Consequently, the alcohol contained in cooking wine, if it has an alcoholic strength exceeding 1.2% by volume, constitutes ethyl alcohol within the meaning of the first indent of Article 20 of Directive 92/83, which is, without prejudice to the exemption provided for in Article 27(1)(f) of that directive, subject to the harmonised excise duty.