Glückauf Brauerei GmbH v Hauptzollamt Erfurt.
Date: 2009-04-02
21. The first point to be noted here, as is clear both from the third recital in the preamble and from the title of Directive 92/83, is that, in order to ensure the proper functioning of the internal market, the directive seeks to establish common definitions for all the products concerned, adopted as part of a policy designed to harmonise the structures of excise duty on alcohol and alcoholic beverages. In order to ensure that that directive is applied in a uniform fashion, the terms in it must be interpreted independently on the basis of the wording of the provisions in question and the purpose of the directive (see, by analogy, Case C‑389/02 Deutsche See-Bestattungs-Genossenschaft  [2004] ECR I‑3537, paragraph 19, and Case C‑495/04 Smits-Koolhoven [2006] ECR I‑3129, paragraph 17).
22. In accordance with Article 4(1) of Directive 92/83, the Member States may apply reduced rates of duty to beer brewed by independent small breweries producing not more than 200 000 hl of beer per year, provided that those reduced rates are not more than 50% below the standard national rate of excise duty.
23. Article 4(2) states that an independent brewery is a brewery which is legally and economically independent of any other brewery, which uses premises situated physically apart from those of any other brewery and does not operate under licence. That provision also states that where two or more small breweries cooperate, and their combined annual production does not exceed 200 000 hl, those breweries may be treated as a single independent small brewery.
24. It thus follows from the wording of Article 4 of Directive 92/83 that a brewery which wishes to benefit from the reduced rate of duty on beer must meet two conditions, that is to say, a quantitative condition relating to its maximum annual production of beer, and a qualitative condition concerning that brewery’s independence from any other brewery.
25. In accordance with the 7th and 17th recitals in the preamble to Directive 92/83, that directive seeks, in the case of beer produced in small independent breweries, common solutions to permit Member States to apply reduced rates of duty to those products, while not allowing those reduced rates to lead to distortions of competition in the internal market.
26. It follows that Directive 92/83 seeks to prevent the benefits of such a reduction from being granted to breweries, the size and capacity of which could cause distortions in the internal market. In those circumstances, the criteria of legal and economic independence, laid down in Article 4(2) of that directive, seek to ensure that any form of economic or legal dependence between breweries results in exclusion from the tax advantage represented by the reduced rate of duty on beer.
27. That provision requires, as a consequence, in the light of the objective pursued by Directive 92/83, that small breweries – the annual beer production of which is less than 200 000 hl – should be genuinely autonomous from any other brewery both as regards their legal and economic structure, and as regards their production structure, where they use physically separate premises and do not operate under licence.
29. It must be added that the purpose of the independence criterion is to ensure that the reduced rate of duty actually benefits those breweries the size of which represents a handicap, and not those which belong to a group. In those circumstances, in order to include, in the application of Article 4(2) of Directive 92/83, only breweries which are genuinely legally and economically independent, it is necessary to ensure that the condition of independence is not circumvented by purely formal means and, in particular, by legal arrangements between allegedly independent breweries which form, in reality, an economic group the production of which exceeds the limits prescribed in Article 4 of Directive 92/83 (see, by analogy, Case C‑91/01 Italy v Commission [2004] ECR I‑4355, paragraph 50).
32. In the main proceedings, the referring court states that Mr Menz, who is the holder of management positions in Ottakringer and Menz, is able to exercise influence over the business policy of Glückauf through Innstadt, Ottakringer and Menz. According to that court, in view of the structure of the shares held in those different breweries and the voting rights system within Ottakringer, Mr Menz, although he does not have a direct shareholding in Glückauf, has, de facto, the opportunity to influence its business activities, and can establish convergence on matters of interest, and on decision-making, between Glückauf, Innstadt and Ottakringer.
33. A situation such as that at issue in the main proceedings, which is characterised by the existence, between different breweries, of structural links in terms of shareholding and voting rights, and which results in a situation where one individual, performing his duties as manager of a number of the breweries concerned, is able, independently of his actual conduct, to exercise influence over the taking of business decisions by those breweries, prevents them from being considered economically independent of each other within the meaning of Article 4(2) of Directive 92/83.
34. In that context, given that – according to the information supplied by the referring court – Innstadt and Ottakringer produce over 200 000 hl of beer per year, the grant to Glückauf of the reduced rate of duty on beer would infringe the condition relating to the quantity of beer produced annually which is laid down in Article 4(1) of Directive 92/83.