Repertoire Culinaire Ltd v The Commissioners of Her Majesty's Revenue & Customs.
Date: 2010-12-09
24. It must be observed that cooking wine and cooking port, which, as edible preparations, fall 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), in the version resulting from Commission Regulation (EEC) No 2587/91 of 26 July 1991 (OJ 1991 L 259, p. 1), contain ethyl alcohol falling within heading 2208 of that nomenclature, and that since that alcohol has an alcoholic strength exceeding 1.2% by volume, it falls within the scope of the first indent of Article 20 of Directive 92/83 (see Case C-458/06 Gourmet Classic  [2008] ECR I-4207, paragraphs 35 and 36).
26. In addition, it must be observed that, since 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 annexed to Regulation No 2658/87, as amended by Regulation No 2587/91, the fact that cooking wine and cooking port are, as such, regarded as edible preparations falling within chapter 21 of that nomenclature does not affect the fact that Article 20 of Directive 92/83 is applicable to the ethyl alcohol contained in them (see Gourmet Classic , paragraphs 36 to 38).
27. The same is true of the fact that the cooking wine and cooking port are unsuitable for consumption as beverages.
29. In addition, it must be noted that, as is apparent from its title, Directive 92/83 seeks to harmonise in a general manner the structures of excise duties on both alcoholic beverages and alcohol.
35. In that context, it must be recalled that the Court has already held that the relevant provision for the exemption of cooking wine from harmonised excise duty is, as a rule, Article 27(1)(f) of Directive 92/83 ( Gourmet Classic , paragraph 39).
44. Nevertheless, the finding that such measures have been applied incorrectly or the adoption of such measures must be based on concrete, objective and verifiable evidence (see, to that effect, Case C‑482/98 Italy  v Commission  [2000] ECR I‑10861, paragraphs 51 and 52).
48. Furthermore, it must be recalled that the objective of the exemptions contained in Directive 92/83 is, in particular, to neutralise the impact of excise duties on alcohol used as an intermediate product in other commercial or industrial products (see Italy  v Commission , paragraph 4, and Case C‑63/06 Profisa  [2007] ECR I‑3239, paragraph 17).
51. In that context, it must also be recalled that the Court has held, first, that the exemption of products covered by Article 27(1) of Directive 92/83 is the rule and refusal is the exception, and, second, that the power granted to Member States by that provision to lay down conditions for the purpose of ‘ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse’ cannot detract from the unconditional nature of the obligation imposed by that provision to grant exemption (see Italy  v Commission , paragraph 50, and Profisa , paragraph 18).
52. It follows that, in exercising that power, the Member State concerned must put forward concrete, objective and verifiable evidence of a serious risk of evasion, avoidance or abuse (see, to that effect, Italy  v Commission , paragraph 52) and that the conditions laid down by that Member State by virtue of the power thus conferred on it cannot go beyond what is necessary to attain that objective.