Repertoire Culinaire Ltd v The Commissioners of Her Majesty's Revenue & Customs.

• Jurisdiction: European Union
• Celex Number: 62009CC0163
• ECLI: ECLI:EU:C:2010:434
• Date: 15 July 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-163/09

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 July 2010 ¹(1)

Case C‑163/09

Répertoire Culinaire Ltd

(Reference for a preliminary ruling from the First-Tier Tribunal (Tax) (United Kingdom))

(Indirect taxes – Excise duty on alcohol and alcoholic beverages – Ethyl alcohol – Cooking wine, cooking port and cooking cognac (cooking liquors) – Liability to excise duty – Exemption from excise duty – Procedure for refund of excise duty – Directive 92/12/EEC – Directive 92/83/EEC – Combined Nomenclature – CN headings Nos 2103, 2204, 2207 and 2208)

I – Introduction

1. The use of wine in cooking is a tradition going back thousands of years in Europe. It is said that even the Roman gourmet Marcus Gavius Apicius, (2) to whom one of the earliest cookery books is attributed, (3) used wine in his sauces. (4)

2. In this case, indeed, the dispute is not so much about the correct use of wine in cooking. The parties to the main proceedings even expressly agree that, with the correct use of wine according to a traditional recipe – such as for the preparation of a Bœuf Bourgignon – not more than 5% volume of alcohol is contained in the end product.

3. The subject‑matter of these preliminary ruling proceedings is, rather, the question whether a wine, port or cognac intended exclusively for cooking is subject to the excise duty on alcohol and alcoholic beverages that is harmonised under European Union law, and under what conditions any exemption from that excise duty must be granted. There does not seem to be a standard practice among the Member States in this regard.

4. The cooking wine, cooking port and cooking cognac at issue in these proceedings are spirits to which salt and pepper have been added by the manufacturer, so that they can be used – in accordance with their purpose – only in the preparation of foods and are unfit for consumption as beverages. The United Kingdom tax authorities (5) nevertheless take the view that those products are subject to excise duty on alcohol. They therefore seized, on importation into the United Kingdom from France, a lorry load of cooking wine, cooking port and cooking cognac (hereinafter also ‘cooking liquors’) on which no duty had been paid and which was destined for the London wholesaler Répertoire Culinaire Ltd. Répertoire Culinaire is now in dispute with the United Kingdom authorities over the restoration of those goods.

5. The outcome of this case would actually seem obvious, as the Court has affirmed the liability to excise duty of cooking wine once already in Gourmet Classic. (6) However, here the Court is expressly being requested to reconsider its legal assessment in that case and to expand on it in some respects.

II – Legal framework

A –European Union law

6. The framework for this case in European Union law is determined by 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 products (7) and by Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages. (8) In addition, parts of what is known as the Combined Nomenclature are also relevant to the outcome of this case.

1. Directive 92/12

7. The general provisions of Directive 92/12 determine inter alia the Member State in which and the point in time at which excise duty becomes chargeable on products subject to excise duty. In that regard, Article 6(1) of Directive 92/12 provides:

‘Excise duty shall become chargeable at the time of release for consumption …’

8. The relevant parts of Article 7 of Directive 92/12 are worded as follows:

‘1. In the event of products subject to excise duty and already released for consumption in one Member State being held for commercial purposes in another Member State, the excise duty shall be levied in the Member State in which those products are held.

2. To that end, without prejudice to Article 6, where products already released for consumption as defined in Article 6 in one Member State are delivered, intended for delivery or used in another Member State for the purposes of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, excise duty shall become chargeable in that other Member State.

…’

2. Directive 92/83

9. Section V of Directive 92/83 contains, in Articles 19 to 23, provisions on the taxation of ethyl alcohol. Article 19(1) of the Directive states in regard to that:

‘Member States shall apply an excise duty to ethyl alcohol in accordance with this Directive.’

10.Article 20 of Directive 92/83 has the following wording:

‘For the purposes of this Directive the term “ethyl alcohol” covers:

– all products with an actual alcoholic strength by volume exceeding 1.2% volume which fall within CN codes 2207 and 2208, even when those products form part of a product which falls within another chapter of the CN;

– products of CN codes 2204, 2205 and 2206 which have an actual alcoholic strength by volume exceeding 22% vol.;

– potable spirits containing products, whether in solution or not.’

11.Article 27 of Directive 92/83 is one of the provisions in Section VII concerning exemptions, and the relevant parts of it read as follows:

‘1. Member States shall exempt the products covered by this Directive from the harmonised excise duty under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any evasion, avoidance or abuse:

…

(e) when used for the production of flavours for the preparation of foodstuffs and non-alcoholic beverages with an alcohol strength not exceeding 1.2% vol.;

(f) when used directly or as a constituent of semi-finished products for the production of foodstuffs, filled or otherwise, provided that in each case the alcoholic content does not exceed 8.5 litres of pure alcohol per 100 kg of the product for chocolates, and 5 litres of pure alcohol per 100 kg of the product for other products.

…

6. Member States shall be free to give effect to the exemptions mentioned above by means of a refund of excise duty paid.’

3. The Combined Nomenclature

12. Headings Nos 2204 to 2208 of the Combined Nomenclature (CN), (9) to which reference is made in Article 20 of Directive 92/83, form part of Chapter 22 of the CN (‘Beverages, Spirits and Vinegar’) and cover the following products:

‘2204 Wine of fresh grapes …

2204 10 – Sparkling wine

…

2204 21 – Other wine … in containers holding 2 litres or less

…

– – – – – Of an actual alcoholic strength not exceeding 15% vol

…

– – – – – – – White

…

– – – – – – – Other

…

– – – – – Of an actual alcoholic strength by volume exceeding
15% but not exceeding 22% vol.:

2204 21 89 – – – – – – – Port

…

2205 Vermouth and other wine of fresh grapes flavoured with plants or
aromatic substances …

…

2206 Other fermented beverages (for example, cider, perry, mead); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included …

…

2207 Undenatured ethyl alcohol of an alcoholic strength by volume of 80% vol. or higher; ethyl alcohol and other spirits, denatured, of any strength:

2207 10 00 – Undenatured ethyl alcohol of an alcoholic strength by volume
of 80% vol. or higher

2207 20 00 – Ethyl alcohol and other spirits, denatured, of any strength

2208 Undenatured ethyl alcohol of an alcoholic strength by volume of
less than 80% vol.; spirits, liqueurs and other spirituous beverages;
compound alcoholic preparations of a kind used for the manufacture
of beverages:

2208 20 – Spirits obtained by distilling grape wine or grape marc

– – in containers holding 2 litres or less:

2208 20 12 – – – Cognac

…

– – Undenatured ethyl alcohol of an alcoholic strength by
volume of less than 80% vol., in containers holding:

– – – 2 litres or less

…

2209 Vinegar

…’

13. The introduction to Chapter 22 of the CN contains inter alia the following under the heading ‘Notes’:

‘1. This chapter does not cover:

(a) products of this chapter (other than those of heading No 2209) prepared for culinary purposes and thereby rendered unsuitable for consumption as beverages (generally heading No 2103) …’

14. Reference should additionally be made to CN heading No 2103, which is in Chapter 21 of the CN (‘Miscellaneous Edible Preparations’) and covers the following goods:

‘2103 Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard:

…

2103 90 – Other

…

2103 90 90 – – Other

…’

B –National law

15. The relevant provision of United Kingdom law is section 4 of Chapter 4 of the Finance Act 1995 (‘the FA 1995’). (10) That provision, which, according to the parties to the proceedings, was enacted in order to implement Directive 92/83, creates a procedure for the refund of excise duty on alcoholic liquor. It is worded as follows:

‘Alcoholic ingredients relief

(1) Subject to the following provisions of this section, where any person proves to the satisfaction of the Commissioners that any dutiable alcoholic liquor on which duty has been paid has been –

(a) used as an ingredient in the production or manufacture of a product falling within subsection (2) below …

… he shall be entitled to obtain from the Commissioners the repayment of the duty paid thereon.

(2) The products falling within this subsection are –

…

(c) … food for human consumption which contains alcohol such that 100 kilograms of the food would not contain more than 5 litres of alcohol.

(3) A repayment of duty shall not be made under this section in respect of any liquor except to a person who –

(a) is the person who used the liquor as an ingredient in a product falling within subsection (2) above or, as the case may be, who converted it into vinegar;

(b)...