Evangelischer Krankenhausverein Wien v Abgabenberufungskommission Wien and Wein & Co. HandelsgesmbH v Oberösterreichische Landesregierung.
Date: 2000-03-09
20 The Court has consistently held (inter alia, Case 295/84 Rousseau Wilmot v Organic [1985] ECR 3759, paragraph 16; Case C-347/90 Bozzi v Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e dei Procuratori Legali [1992] ECR I-2947, paragraph 9; and Case C-130/96 Fazenda Pública v Solisnor-Estaleiros Navais [1997] ECR I-5053, paragraph 13) that, in leaving the Member States free to maintain or introduce certain indirect taxes such as excise duties on condition that they are not taxes which can be characterised as turnover taxes, Article 33 of the Sixth Directive seeks to prevent the functioning of the common system of VAT from being jeopardised by fiscal measures of a Member State affecting the movement of goods and services and applying to commercial transactions in a manner comparable to VAT.
22 As the Court has already pointed out on many occasions, those characteristics are as follows: VAT applies generally to transactions relating to goods or services; it is proportional to the price of those goods or services, irrespective of the number of transactions which take place; it is charged at each stage of the production and distribution process; and, finally, it is imposed on the added value of goods and services, the tax payable on a transaction being calculated after deduction of the tax paid on the previous transaction (inter alia, Case 252/86 Bergandi v Directeur Général des Impôts [1988] ECR 1343, paragraph 15; Bozzi, cited above, paragraph 12; and Solisnor-Estaleiros Navais, cited above, paragraph 14).
23 It follows that Article 33 of the Sixth Directive precludes the maintenance or introduction of stamp duties or other types of taxes, duties or charges which have the essential characteristics of VAT. The Court also stated in paragraphs 19 and 20 of its judgment in Solisnor-Estaleiros Navais that Article 33 of the Sixth Directive does not preclude the maintenance or introduction of a tax, on condition that it does not have any of the essential characteristics of VAT.
24 A duty of the kind described by the national court is not a general tax since it is not intended to apply to all economic transactions in the Member State concerned (see, to this effect, Solisnor-Estaleiros Navais, paragraph 17, and Case C-208/91 Beaulande v Directeur des Services Fiscaux, Nantes [1992] ECR I-6709, paragraph 16). According to Paragraph 14.1.8 of the FAG, Paragraph 1 of the Wiener GStV and Paragraph 1 of the Oö GStG, the duty applies only to a limited category of goods, being levied only on the supply for consideration of ice cream (including fruits processed therein or added thereto) and of beverages, in each case including the containers and accessories sold with the products.
30 As regards a tax such as the Austrian municipal duty, in so far as it is levied on alcoholic beverages, it must be borne in mind that, under Article 3(2) of the excise duty directive, the products listed in paragraph 1 of that article (which include alcoholic beverages) may be subject to indirect taxes other than excise duty if those indirect taxes pursue one or more specific purposes in the sense contemplated by that provision and comply with the tax rules applicable for excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, and chargeability and monitoring of the tax are concerned.
31 It is first necessary to examine whether a tax such as the duty to which alcoholic beverages are subject pursues a specific purpose in the sense contemplated by Article 3(2) of the excise duty directive, that is to say, a purpose other than a purely budgetary one (see, to this effect, the judgment of 24 February 2000 in Case C-434/97 Commission v France [2000] ECR I-0000, paragraph 19).
33 The reinforcement of municipal autonomy through the grant of a power to generate tax income constitutes a purely budgetary objective which, as has just been indicated, cannot, taken alone, constitute a specific purpose in the sense contemplated by Article 3(2) of the excise duty directive.
35 It is clear from the documents relating to the main proceedings and, moreover, it is not disputed by the Austrian Government that municipalities are not required to assign the income from the duty to any predetermined purpose and there is no connection with tourist infrastructures or the development of tourism since this duty, which is imposed on beverages irrespective of where they are consumed, is also levied in areas where there is little or no tourism. Furthermore, taxes already exist in Austria which specifically concern the promotion of tourism (see, in this regard, the judgment of 8 June 1999 in Joined Cases C-338/97, C-344/97 and C-390/97 Pelzl and Others [1999] ECR I-0000).
41 The Court has consistently held in this regard that, where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see, inter alia, Case 187/87 Saarland and Others v Minister for Industry, Post and Telecommunications and Tourism and Others [1988] ECR 5013, paragraph 19).
42 Further, where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, inter alia, Case C-372/88 Milk Marketing Board of England and Wales v Cricket St Thomas Estate [1990] ECR I-1345, paragraph 19).
46 In this regard, it follows both from a comparison of paragraphs 2 and 3 of Article 3 and of the third recital in the preamble to the excise duty directive, which envisages concomitantly the hypotheses contemplated by Article 3, that that directive is intended to prevent additional indirect taxes from improperly obstructing trade. That would, in particular, be the case if traders were subject to formalities other than those provided for by the Community legislation on excise duty or VAT, in view of the fact that such formalities are liable to vary from one Member State to another.
47 In those circumstances, it must be held that Article 3(2) of the excise duty directive does not require Member States to comply with all rules applicable for excise duty or VAT purposes as far as determination of the tax base, calculation of the tax, and chargeability and monitoring of the tax are concerned. It is sufficient that the indirect taxes pursuing specific objectives should, on these points, accord with the general scheme of one or other of these taxation techniques as structured by the Community legislation.
49 Nor does the beverage duty accord with the general scheme of the rules applicable for VAT purposes. While it is not incompatible with Article 33 of the Sixth Directive, it does not comply with the rules applicable for VAT purposes as far as the rules on calculation and chargeability are concerned. Since it is charged only at the stage of sale to the consumer, it is not charged at each stage in the production and distribution process; moreover, it is calculated without any deduction being made for input tax.
51 By its third question, the national court is asking, essentially, whether exemption from payment of the beverage duty in the case of direct sales of wine to the end consumer constitutes State aid incompatible with Community law.
52 It should first be pointed out in this regard that, according to consistent case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine 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, inter alia, Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 59). Nevertheless, the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical and 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 Bosman, cited above, paragraph 61, and judgment of 15 June 1999 in Case C-421/97 Tarantik v Direction des Services Fiscaux de Seine-et-Marne [1999] ECR I-0000, paragraph 33).
53 The question submitted is wholly irrelevant to the resolution of the disputes in the main proceedings, which concern the obligation on the EKW and Wein & Co. to pay beverage duty in respect of supplies of beverages and ice cream effected for consideration, and not the question whether exemption of wine sold directly at the place of production from payment of such a duty constitutes State aid incompatible with the Treaty.
57 It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying on a provision interpreted by it with a view to calling in question legal relationships established in good faith. As the Court has consistently held, such a restriction may be allowed only in the actual judgment ruling upon the interpretation sought. In determining whether or not to limit the temporal effect of a judgment it is necessary to bear in mind that although the practical consequences of any judicial decision must be weighed carefully, the Court cannot go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from a judicial decision (Case 24/86 Blaizot v University of Liège and Others [1988] ECR 379, paragraphs 28 and 30, and Case C-163/90 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, paragraph 30).