19.2.2011

Official Journal of the European Union

C 55/7

(Case C-163/09) (<span class="super">1</span>)

(Directive 92/83/EEC - Harmonisation of the structures of excise duties on alcohol and alcoholic beverages - Article 20, first indent, and Article 27(1)(e) and (f) - Cooking wine, cooking port and cooking cognac)

2011/C 55/10

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber) (United Kingdom)

Parties to the main proceedings

Applicant: Repertoire Culinaire Ltd

Defendant: The Commissioners for Her Majesty’s Revenue and Customs

Re:

Reference for a preliminary ruling — VAT and Duties Tribunal, London — Interpretation of Articles 20 and 27(1)(e) and (f) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (OJ 1992 L 316, p. 21) — Exemption from excise duty — Cooking wine, cooking port and cooking cognac containing salt and pepper

Operative part of the judgment

1.Article 20, first indent, of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages must be interpreted as meaning that the definition of ‘ethyl alcohol’ in that provision applies to cooking wine and cooking port.

2.In circumstances such as those at issue in the main proceedings, an exemption from the harmonised excise duty for cooking wine, cooking port and cooking cognac falls under Article 27(1)(f) of Directive 92/83.

3.If products such as the cooking wine, cooking port and cooking cognac at issue in the main proceedings, which have been treated as not being subject to excise duty or as being exempted from that duty under Directive 92/83 and released for consumption in the Member State of manufacture, are intended to be put on the market in another Member State, the latter must treat those products in the same way in its territory, unless there is concrete, objective and verifiable evidence that the first Member State has failed to apply the provisions of that directive correctly or that, in accordance with Article 27(1) thereof, it is justifiable to adopt measures to combat any evasion, avoidance or abuse which may arise in the field of exemptions and to ensure the correct and straightforward application of such exemptions.

4.Article 27(1)(f) of Directive 92/83 must be interpreted as meaning that the exemption contained in that provision may be made conditional on compliance with conditions such as those laid down by the national legislation at issue in the main proceedings, that is to say, the restriction of the persons authorised to make a claim for recovery, a four-month period for bringing such a claim and the establishment of a minimum amount of repayment, only if it is apparent from concrete, objective and verifiable evidence that those conditions are necessary to ensure the correct and straightforward application of the exemption in question and to prevent any evasion, avoidance or abuse. It is for the national court to ascertain whether that is true of the conditions laid down by that legislation.

(<span class="super">1</span>) OJ C 180, 1.8.2009.