C-437/97

2. Any reference in this Directive to pro- ducts subject to excise duty shall apply to * Original language: Italian. 1 — OJ 1977 L 145, p. 1, as last amended by Council Directive 98/80/EC of 12 October 1998 (OJ 1998 L 2 8 1 , p. 31). 2 — OJ 1992 L 76, p. 1, as last amended by Council Directive 3 — As amended by A r t i c l e1(23) of Council Directive 91/680/ 96/99/EC of 30 December 1996 (OJ 1996 L 8, p. 12). EEC of 16 December 1991 (OJ 1991 L 376, p. 1).

I -1161

OPINION OF MR SAGGIO — CASE C-437/97

the following products as defined by cur- — manufactured tobacco. rent Community provisions:

— mineral oils,

2. The products listed in paragraph 1 may be subject to other indirect taxes for specific purposes, provided that those taxes comply with the tax rules applicable for — alcohol and alcoholic beverages, excise duty and VAT purposes as far as determination of the tax base, calculation of the tax, chargeability and monitoring of the tax are concerned.

The Austrian provisions 5. Under Paragraph 15.3.2 of the 1993 FAG, municipalities may, by decision of the municipal council and without prejudice to any more extensive authorisation by the legislature of the Land, impose the afore- mentioned taxes at the rate of 10% of the selling price in the case of ice cream and alcoholic beverages and at the rate of 5% of the selling price of non-alcoholic bev- erages. (For the purpose of this provision, (a) The national legislation non-alcoholic beverages are beverages with an alcohol content of 0.5% or less.) The FAG exempts from these taxes supplies for immediate consumption by passengers and the crew of means of transport on condi- tion that the journey undertaken is not mainly within the same municipality. 4. Under Paragraph 3 of the 1948 Finanz- Verfassungsgesetz (Constitutional Law on Financial Matters, 'the F-VG') 4the divi- sion of taxation powers and allocation of tax revenue are governed by federal legisla- tion. On beverage duty, the 1993 Finanz- 6. Paragraph 15.4 of the 1993 FAG 7 ausgleichsgesetz (Revenue Equalisation provides that the selling price must be Law, 'the FAG') 5provides (at Paragraph determined in accordance with the provi- 14.1.8 and 14.2) that exclusively municipal sions of the UStG and that it does not taxes include those levied on the 'supply for include turnover tax, service charge and consideration of ice cream (including fruits beverage duty. processed therein or added thereto) and of beverages, in each case including the con- tainers and accessories sold therewith, unless such supply is made for the purposes of resale as part of a continuous activity' and that 'exemption shall be made in respect of supplies within the meaning of Paragraph 10.3.1 of the 1994 Umsatz- (b) The legislation of the Land of Vienna steuergesetz' (Law on Turnover Tax, 'the UStG'), 6and specifically sales of 'wine, where the power of disposal is transferred at the place of production and no transport or forwarding are involved, and in respect 7. The Wiener Getränkesteuergesetz 8(the of supplies of milk.' 1992 Viennese Law on Beverage Duty, hereinafter 'Wiener GStG') authorises the municipalities to impose a tax on the 4 — BGBl. No 45/1948, as last amended by the Fedetal Con- stitutional Law BGBl. N o 201/1996. 5 — B G B l . N o 30/1993, as amended by the Fedetal Law 7 — In the new version of the BGBl. N o s 959/1993 and published in BGBl. N o 853/1995. 853/1995. 6 — BGBl. N o 663. 8 — Vienna LGBl. N o 3/1992.

8. The 1992 Regulation on Beverage Duty for the city of Vienna 9 (hereinafter 'Wiener GStV), which is based on the authority cited above and on Paragraph 15.3.2 of the 1993 FAG, imposed duty on the supply for consideration of ice cream and beverages (c) The legislation of the Land of Opper subject to the conditions specified in Para- Austria graph 14 of the 1993 FAG. Paragraph 2 of this regulation specifies the transactions exempted from the duty. 10 These exemp- tions are additional to that provided for by Paragraph 1 for sales at the place of 10. In the Land of Upper Austria the duty production. The amount and the method on beverages and ice cream is governed by of calculation of the duty are governed by the 1950 Law of Upper Austria on Muni- Paragraph 15.3.2 of the 1993 FAG. The cipal Beverage Duty (hereafter the 'Oö duty is at the rate of 10% of the selling GStG'). 12 price in the case of ice cream and alcoholic beverages and at the rate of 5% of the selling price in the case of non-alcoholic beverages.

This law also incorporates almost entirely the provisions of the FAG as to the transactions which are dutiable, and the amount and method of calculation of the duty. As to the scope of the duty, the Oö GStG states that the municipal duty is 9. For the definition of the price, the levied on the supply for consideration of Wiener GStV makes reference to the 1972 beer, wine, beverages similar to wine and

9 — Amstblatt 6/1992, amended version Amstblatt 44/1992 and 11 — As amended by the Federal Law published in the BGBl. Amstblatt 50/1994. N o 620/1981. 10 — For example, sales in hospirals and clinics as part of the 12 — LGBl. of the Land of Upper Austria No 15/1950, as normal provision for patients, or on medical prescription, amended by the Law of the Land published in LGBl. are exempted. N o 28/1992.

12. Wein & Co. HandelsgmbH, formerly The facts, the main proceedings and the Ikera Warenhandelsgesellschaft mbH questions submitted for a preliminary rul- ('Wein & Co.'), is a wine-trading company ing established in Leonding, Upper Austria. The municipal authorities ordered this company, too, to pay a certain sum of money by way of duty on beverages sold between 1 December 1994 and 31 March 11. The Evangelischer Krankenhausverein 1995. Wien (Protestant Hospital Society, Vienna) ('the EKW') operates a hospital cafeteria. By decision of 6 December 1996, of the Abgabenbehörde Wien (the tax recovery authority in Vienna), taken pursuant to the Wiener GStV, the EKW was ordered to pay ATS 309 995 in respect of beverage duty on sales between January 1992 and October Wein & Co. challenged that decision before 1996. The administrative complaint lodged the Oberösterreichische Landesregierung. by the EKW against that decision was Its application was rejected. Before the dismissed by the Abgabenberufungskom- Verwaltungsgerichtshof it also contested mission (the Tax Appeals Commission). the latter decision, arguing that the duty

I - 1165

OPINION OF MR SAGGIO — CASE C-437/97

14. The national court decided to refer the following questions to the Court of Justice for a preliminary ruling:

3. Does Article 92(1) of the EC Treaty preclude a provision exempting the sale ' 1 . Does Article 33(1) of the Sixth Council of wine direct from the vineyard from Directive of 17 May 1977 on the beverage duty?'

I-1166

EKW AND WEIN & C O

The first question over taxes', the Court has stated that 'taxes, duties and charges must in any event be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT', without 15. By its first question, the national court its being necessary that they should be like is essentially asking the Court of Justice VAT in every respect. 16 whether Article 33 of the Sixth Directive precludes the introduction and mainte- nance by a Member State of a duty on the consumption of beverages and ice creams of the type described in the question.

I - 1167

OPINION OF MR SAGGIO — CASE C-437/97

price of those goods or services (Article 11 and that the fact that all have in fact done of the Sixth Directive); (c) VAT is charged so does not alter its optional nature. at each stage of the production and dis- tribution process; (d) VAT is imposed on the added value of goods and services, since the tax payable in respect of a transaction is calculated after deduction of the tax paid in respect of the previous transaction; 18 (e) lastly, VAT can be included in the price of services and goods and the burden of it is 19. On the other hand, the plaintiffs claim thus, as a general rule, passed on to the that the duty at issue applies to a large consumer. number of products, and specifically a wide range of beverages and ice creams, the fruits that may be contained in them, as well as their containers and accessories. Wein & Co. emphasises in particular that a restrictive interpretation of the condition concerning the generalised application of the duty would have the effect of enabling Member States to circumvent the prohibi- tion in Article 33 of the Sixth Directive: thus, Member States could, in practice, The general applicability of the tax disguise the general character of taxes similar to VAT by subjecting each type of supply or service to a different tax. To avoid that risk, it is necessary, in determin- ing whether a tax is 'general' in nature, to have regard to all the taxes in existence in a Member State which are analogous to VAT. 18. The Commission, the Austrian govern- According to Wein & Co. there is in ment and the Tax Appeals Commission Austria, in addition to the duty on bev- maintain that the duty at issue does not erages, a multitude of other taxes of the have the first of these characteristics, same kind, such as those on entertainments namely that the tax must be of general and on tourism, which must be taken into application, because it applies to the sale of account in an overall appraisal of the tax only two products — beverages and ice system. cream. The Tax Appeals Commission points out in addition that the municipa- lities are not obliged to impose the duty at issue but merely have the option to do so,

of a context other than that described in the proof that the tax applies, without distinc- order for reference, forgetting, however, tion, to all commercial transactions con- that to do that is contrary to settled case- cerning goods and services,21 and, in so law according to which the Court 'can doing, take into consideration other analo- answer the national court's questions only gous taxes which, added to each other, give on the basis of the facts as they appear from rise to a phenomenon presenting the char- the order for reference'; indeed, 'were the acter of generality. A restrictive interpreta- Court to base its ruling on the facts tion of the test of 'generality' could be mentioned in the course of proceedings detrimental to the Community legislature's before it, the very substance of the problem objective in establishing a harmonised raised by the questions referred would be system of VAT, which the prohibition in changed'. 19 Pursuing the same line of Article 33 is designed to avoid. The pur- reasoning, the Court also affirms that 'to pose of this article, as explained in Rous- alter the substance of questions referred for seau Wilmot, is 'to prevent the functioning a preliminary ruling would be incompatible of the common system of value-added tax with the Court's function under Article 177 from being compromised by fiscal measures of the Treaty and with its duty to ensure of a Member State levied on the movement that the Governments of the Member States of goods and services and charged on and the parties concerned are given the commercial transactions in a way compar- opportunity to submit observations under able to value-added tax'. 22 Article 20 of the EC Statute of the Court'. 20

I - 1169

O P I N I O N OF M R SAGGIO — CASE C-437/97

case-law on the concept of a 'general tax'. 23. On the basis of those considerations a The Court has, for example, refused so to duty of the type described by the national characterise a special tax on entertainments court cannot be characterised as 'general' introduced by a municipality on the gross since, even though it applies to a large receipts of payments for entry to public number of goods — and specifically to all entertainments or amusements, levied on beverages, whether alcoholic or not, and to those who occasionally or habitually orga- ice creams — and although it has been nised them. The Court held that that tax introduced by all the municipalities in was not of a general nature because it Austria and is therefore charged through- applied only to a limited category of goods out the Republic of Austria, it only affects and services. 23 The Court has also refused transactions in specific products. to characterise as general a special con- sumption tax which applied to a certain type of vehicle, either on its delivery to the buyer or on its importation. The Court held that the tax in that case did not amount to a general tax since it only applied to two categories of product, namely tourist coa- ches and motorcycles. 24 Finally, an obliga- 24. Since it is established that the duty at tory supplementary contribution paid by issue is not of a general nature, it cannot be lawyers in practice in Italy to their provi- regarded as a turnover tax within the dent society was not regarded as being in meaning of Article 33 of the Sixth Direc- the nature of a general tax. 25 All these tive. 2 7 It is thus only in the alternative that citations from the case-law, without excep- I will now examine the other characteristics tion, show that a tax will not be recognised of a turnover tax noted under headings (b) as being general in nature when it is linked to (e) above. to transactions which concern closely defined categories of goods or activities. 2 6

amount is linked to the price of the goods 28. EKW submits that, on the contrary, the taxed. 28 It may be added that compliance duty at issue is a tax on added value. That with that requirement is not disputed by is so, in its opinion, because in this case the either the Austrian Government or the Tax duty on the added value of the product at Appeals Commission, and that it is expli- each stage of production and marketing citly accepted by the Commission. appears in the uniform and undifferentiated tax levied on the whole of the final price. In the scheme of the duty at issue there is thus only a difference as to the charging method, which, however, cannot affect the final result, so that the duty can, by reason of its economic function, be described as a tax of the same type as VAT. 26. The characteristic noted under (c) above — that the tax must be charged on each stage of production and distribu- tion — is lacking in this case. The duty at issue applies solely to supplies of beverages and ice creams to the final consumer. That follows clearly from Paragraph 14 of the FAG, which provides that the duty is payable 'unless such supply is made for the purposes of resale as part of a contin- uous activity', which plainly means that the 29. These arguments are unconvincing duty is not payable in respect of all supplies because they do not demonstrate that the of the aforementioned goods between tra- final sale price reflects the value added at ders. each stage of production and marketing. It should also be observed that, in any event, such a fact-finding exercise is a matter for the national court.

be proved by an invoice. 29 That being the The second question case, it must be noted that a duty of the type described by the national court is calculated as a percentage of the price of the product, which corresponds to the value of the goods and accessories but excluding VAT, the service charge and the duty itself (Paragraph 15.4 of the FAG). 33. By the second question, the national Even if this way of establishing the price court asks whether Article 3(2) or the seems to exclude the automatic passing on second sentence of Article 3(3) of the excise of the duty to the consumer, the possibility duty directive precludes the maintenance of of such passing on happening in this case a tax such as the duty described in the first cannot be dismissed, given that each trader question. is free to fix the total price of his products. It will, in any case, be a matter for the national court to decide whether passing on to the consumer had in fact taken place.

Arguments of the parties

The two plaintiffs submit, secondly, that 35. The Commission, too, maintains that the duty at issue complies neither with the the duty at issue is incompatible with the rules applicable to excise duties nor with excise duty directive, the structure directive those applicable to VAT: in so doing that and with Directive 92/84, and puts for- start from the premiss that in Article 3(2) wards arguments in relation to the alco- these two requirements are cumulative, as holic beverages which do not differ in would appear to be the case from certain substance from those advanced by the language versions (for example, the English plaintiffs. version). Wein & Co., in particular, argue that the beverage duty does not comply with the rule that the dutypoint for excise duty is the production of the goods or their import to the Community (Article 5 of the excise duty directive), or with the rule requiring the payment of the duty at the point at which the product is released for 36. The Austrian Government and the Tax consumption (Article 6 of the excise duty Appeals Commission maintain, on the directive), or indeed with the rule that the other hand, that the duty serves a specific duty is due in the Member State of purpose as required by Article 3(2) of the destination of the goods (Article 10 of the excise duty directive, since it reinforces the excise duty directive). Nor does the duty at financial independence of the municipali- issue comply with the rules in Council ties, the income from it is intended to Directive 92/83/EEC of 19 October 1992 defray the cost of tourist activity and, lastly, on the harmonisation of the structures of because it protects public health by dis- excise duties on alcohol and alcoholic couraging the consumption of alcoholic beverages30 ('the structure directive'), and beverages. those in Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages. 31 In the submission of Wein & CCo., since the duty is calculated on the value of the product it does not comply The Austrian Government and the Tax Appeals Commission also maintain that, in 30 —OJ 1992 L 316, p. 21. any event, for a duty to be treated as 31 — OJ 1992 L 316, p. 29. serving one or several specific purposes it is

As regards the question whether a duty must comply simultaneously with the rules The merits for both excise duties and VAT, or with those applicable to one of them only, the Austrian Government and the Tax Appeals Commission support the former view; they contend that a national consumption tax must, in order to be compatible with 37. In order to reply to the second ques- Community law, comply at the same time tion, the Court is required to rule on the with the rules for excise duties and for VAT. interpretation of Article 3 of the excise They add, however, that, since it is in fact duty directive and, in particular, on the impossible to comply with all the rules of conditions to which paragraphs (2) and (3) both systems at the same time, the only way of that article subordinate the right of in which this provision can be given effect Member States to introduce or maintain would be to interpret it as meaning that the in force indirect taxes on specific products. only restriction it imposes on the national In this context, it is necessary to take legislature is that a consumption tax which account of the precise wording of this differs from VAT and excise duties must not provision, its rationale, the scheme of the prejudice the harmonisation achieved in legislation in which it is found and the connection with excise duties and VAT, that objective which it pursues. is to say that it must not be in conflict with these two systems.

— The interpretation of Article 3(2) of the excise duty directive

Lastly, the Austrian Government and the Tax Appeals Commission contend that this duty, in so far as it relates to non-alcoholic

39. The excise duty directive does not define this term explicitly. To determine Article 3(2) of the directive provides a its meaning it is therefore necessary to have derogation from the general system 3 4by recourse to the ratio of the provision and to recognising Members States' right to intro- the context in which it appears. Since this duce, alongside excise duties, other indirect expression refers to 'other indirect taxes', taxes, which obviously cannot be of the that is to say, to indirect taxes which differ same kind as excise duties because there from excise duties, 'specific purposes' can- would otherwise be no need for the rule in not being regarded as covering those pur- question. 3 5The Community legislature poses which are or could be served by made this right subject to two conditions: means of excise duties. Bearing in mind first, that the indirect taxes should be for that one of the purposes of excise duties is specific purposes and, secondly, that they to obtain funds to meet the general budget- should comply with 'the tax rules applic- ary needs of public authorities, taxes whose able for excise duty and VAT purposes as objective is to increase the revenue of far as determination of the tax base, territorial entities, such as regional or calculation of the tax, chargeability and municipal authorities, cannot be regarded monitoring are concerned'. It therefore as serving specific purposes and as thus goes without saying that this provision, being brought within the scope of the being a derogation, must be interpreted derogation from the general excise duty restrictively. 36 regime.

I - 1175

OPINION OF MR SAGGIO — CASE C-437/97

41. In the present case, the Austrian duty does not appear to serve the purposes of In reality, in this case, the only certain factor is that the revenues from the duty at issue form part of the budget of the 37 — See, to this effect, the Advocate General's Opinion in Braathens cited above, at point 15, where it is maintained that 'whether the tax serves the "specific objective" of environmental protection depends on whether the struc- 38 — See, for example, the Tourismusabgabe-Gesetz of 1991 ture of the tax itself and, more particularly, its calculations (Law relating to tourism) and the Tourismus-Gesetz of are designed to encourage the use of less polluting aircraft 1990, which provide for municipal duties whose revenues engines'. are intended for the promotion of tourism.

I - 1176

EKW AND WEIN & CO

42. It must therefore be concluded that the duty at issue does not serve a specific purpose within the meaning given to that expression in Article 2(3) of the excise duty directive, with the result that it must be 44. In the case of such differences, it is considered unlawful from the Community necessary, first of all to bear in mind the point of view. principle, repeatedly stated by the Court, that 'the different language versions of a Community text must be given a uniform interpretation' with the result that 'in the case of divergence between the versions the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it 43. I therefore move on to the second forms part'. 39 It is thus necessary to refer condition to which Article 3(2) of the to the logic of the excise duty regime as a excise duty directive subjects the Member whole, as it appears from the 1992 frame- States' right to introduce, or to maintain in work directive, in order to resolve the force, indirect taxes on specified products. doubts to which these linguistic differences Article 3(2) provides that products subject give rise. In that context, account must be to excise duty 'may be subject to other taken above all of the fact that the right indirect taxes... provided that those taxes given to Member States to introduce other comply with the rules applicable for excise taxes constitutes an exception to the har- duty and VAT purposes as far as the monised excise duty regime. From that determination of the tax base, calculation premiss it follows that the exercise of that of the tax, chargeability and the monitoring right must take place in accordance, as a of the tax are concerned.' The interpreta- tion of this provision is not easy because the different language versions are at var- 39 — Case C-449/93 Rockfon [1995] ECR I-4291, at paragraph iance on a point that is not of secondary 28 of the judgment, which reiterates the principle laid down in Case 30/77 Bouchereau [1977] ECR 1999, at importance, specifically the question whe- paragraph 14 of the judgment.

46. Let us now see how compliance with the rules applicable for excise duty pur- poses is to be understood. I consider that, since it introduces a derogation from the Simultaneous compliance with the rules general regime for excise duties, Arti- relating to excise duties and those relating cle 3(2) must be interpreted restrictively. to VAT would, moreover, be impossible in Compliance with the rules in question must practice: it is sufficient to observe the not, however, be understood to require that incompatibility between the differing essen- the Community legislation and the rules tial characteristics of the two taxes. The applicable to the different products which general scope and proportionality of VAT may be distinguished within each category are, for example, in sharp contrast to the should be entirely the same. By that I mean rule of the excise duty regime that an excise that the compatibility with Community law duty can only be imposed on specified of a national duty with a specific purpose products, and with the further rule that the should be examined by reference to the amount of the duty must be calculated Community regime laid down for the entire primarily by reference to quantity. category of products in question. And, indeed, if the two regimes were completely the same, not only would Article 3(2) have no practical effect, but that uniformity might give rise to other forms of excise duty or to a second type of excise duty, contrary to the principle of the uniform 45. On the basis of all the considerations I character of the excise duty regime. To give have set out so far, I am of the opinion that an example, if a Member State wished to if the provision now under examination is subject an alcoholic beverage such as beer to be effective then the difficulties resulting from the differences between the various language versions should be put aside and 40 — It is not without significance that the reference to VAT in the provision should be interpreted as Article 3(2) follows that to excise duty.

47. That said, it must now be considered whether a duty of the type described by the national court complies with these rules. 49. It is now necessary to establish whether This must be done by taking account in the duty at issue complies with the first particular of the structure directive within subparagraph of Article 3(3) of the excise which the category of the products subject duty directive, under which, I would recall, to the duty is defined. Member States may introduce or maintain taxes levied on products other than those listed in Article 3(1) (namely, mineral oils, alcohol and alcoholic beverages, and man- ufactured tobacco), provided that those taxes do not give rise to border-crossing formalities in trade between Member 48. I would say at once that the duty at States. Even though this provision does issue does not, in numerous respects, com- not so state explicitly, the right in question ply with the rules relating to alcoholic is subject at the same time to the further beverages which appear in the framework condition that the taxes levied should not directive and the structure directive. In the have the character of turnover taxes. The first place, the duty does not comply with prohibition on Member States introducing the methods for calculation of excise taxes of this kind is of general application, duties. The amount of the duty is fixed by so that in the absence of express provision I reference to the value of the product, and do not think that an exception can be not by reference to volume or alcoholic presumed. strength as required by the structure direc- tive. Secondly, the duty does not provide, in contrast to excise duties on alcoholic bev- erages, for different rates of duty depending on the type of product, but for a single rate of duty on all alcoholic beverages with an alcohol content above 0.5%. Thirdly, the duty does not comply with the general rules concerning the time for payment of excise duties since it becomes due only on sale to 50. It is thus a question of determining the consumer and not on release for whether the duty of the type described by consumption. the national court complies with those two

The plaintiffs submit, referring to the judgment in Faaborg-Gelting Linien, 41 that when it is levied in connection with catering, the duty on beverages bears not only on the sale of the product but also on everything needed for the activity of cater- ing (the decorations, the washing of dishes, the table linen and so forth) and is thus contrary to the second subparagraph of Article 3(3) of the excise duty directive to the extent that it has the character of a turnover tax. I would recall that this provision provides that, subject to any 51. I do not think that the exercise of the taxes levied on products other than those right provided for by Article 3(3) is subject mentioned in Article 3(1) complying with also to the condition in Article 3(2) that the the condition laid down in the first sub- tax must serve a specific purpose, which paragraph of Article 3(3) (under which the applies only to certain stated products. taxes in question must not give rise to That condition cannot in any way be border-crossing formalities), 'Member inferred from the text of Article 3(3) or States shall also retain the right to levy from any other provision. Article 99 of the taxes on the supply of services which EC Treaty (now Article 93 EC) states, on cannot be characterised as turnover taxes, the contrary, that the Community legisla- including those relating to products subject ture may act to harmonise national regimes to excise duty'. As to this, it is sufficient to relating to other indirect taxes 'to the note that, even if it is conceded that the extent that such harmonisation is necessary duty in this case also bears on the supply of to ensure the establishment and the func- services, the fact that it does not — as has tioning of the internal market'. That means been seen in the examination of the first that until the entry into force of harmo- question — have the character of a turn- nised provisions on indirect taxes levied on over tax renders it compatible with the non-alcoholic beverages and ice cream, provision cited above. Member States remain free to introduce other indirect taxes, complying only with the two restrictions noted above. 41 — Case C-231/94 [1996] ECR I-2395.

58. As regards, next, the second ground which is put forward for the inadmissibility of the third question, and amounts to disputing that the Court has jurisdiction 55. With regard to (a), it must be observed to rule on the compatibility of State aid that by notification C 57/96 of 3 February with the common market, which is said to 1999 the Commission concluded the pro- belong exclusively to the Commission, I cedure initiated under Article 93(2) of the consider that argument to be without Treaty. On that date, the Commission did foundation. According to Community law, in fact make a decision 43 in which it national courts may (and must when they declared that the exemption which is the are courts of last resort) submit to the

42 — C 57/96 (OJ 1997 C 82, p. 9). 44 —See Case C-314/96 Djabali [1998] ECR I-1149, at paragraph 19 of the judgment. See also Case C-264/96 43 — Measure No 10165/99, not yet published. ICI [1998] ECR I-4695, at paragraph 15 of the judgment.

I-1181

OPINION OF MR SAGGIO — CASE C-437/97

59. I turn now to the substantive issue, and would recall that the Court has stated that the concept of a State aid is wider than that of a subsidy, because it includes not only positive benefits such as subsidies but also actions which, in various ways, reduce the burdens which normally have to borne by an undertaking and which, for that reason, have the same effects as subsidies though they are not subsidies in the strict sense of the term. 47 Following that reasoning, the 61. Moreover, the grounds cited by the Court has held that a measure by which the Austrian Government and the Tax Appeal public authorities accord a tax exemption Commission in support of the compatibility to certain undertakings which, though not with the common market of the aid in involving any transfer of resources from the question are not among those set out in State, places the beneficiaries in a better Article 92(2) and (3) of the Treaty. In financial position than other taxpayers is a particular, contrary to the argument of the State aid within the meaning of Arti- defendants, the aid is not intended to cle 92(1) of the Treaty. 48 promote the development of certain activ- ities or regions: the beneficiaries are all wine producers in whichever region of Austria they happen to be. Lastly, the 45 — Case C:39/94 SFEI and Others [1996] ECR I-3547. 46 — Case C-295/97 Piaggio [1999] ECR I-3735. Commission has also shown that the power 47 — Case 30/59 De Gezamenlijke Steenkolenmijnen in Lim- to grant the exemption in question is not burg v High Authority [1961] ECR 1. one of those transferred to Member States 48 — Case C-387/92 Banco Exterior de Espana [1994] ECR by Council Regulation (EEC) No 822/87 of I-877, at paragraph 14 of the judgment.

62. It now falls to be considered whether, and, if so, to what extent, it is justified in 63. I would first point out, as a general this case to limit the retrospective effect of observation, that it is settled case-law that the Court's judgment. The Austrian Gov- in the exercise of the jurisdiction conferred ernment has requested the Court to impose on it by Article 177 of the Treaty the a temporal limitation on its judgment Court's interpretation of a provision of should it find that maintaining the indirect Community law clarifies and explains tax at issue is incompatible with Commu- where necessary its meaning and scope as nity law. In support of its request, the it ought to be, or have been, understood Austrian Government has urged that, hav- and applied from the moment of its entry ing regard to information received by into force. It follows that the rule thus representatives of the Commission before interpreted must be applied also to legal accession, it had in good faith reached the relations arising and brought into existence conclusion that the duty was compatible before the judgment given in response to with Community law. In further support of the request for a ruling. 51 Departures from this request, the Austrian Government has this principle can only be allowed in pointed to the serious consequences that exceptional cases. The Court has limited retrospectivity of the judgment would have the retrospective effect of its judgments for the finances of municipal authorities. In only where there are exceptional circum- this connection, it has explained that the stances, and specifically when there was a amount due for repayment would be risk of serious economic repercussions due, ATS 22 000 million for the years 1995 to for example, to the large number of legal

65. As regards, next, the argument based on the alleged negative economic repercus- sions for the municipal authorities which would result from the abolition of the duty 64. In this case, there do not seem to be and thus of the revenues from it, I would reasons justifying an exception to the point out that, according to the case-law of principle according to which the effects of the Court, if judgments finding — even a preliminary ruling go back to the date on indirectly, as with preliminary rulings — which the rule being interpreted entered national provisions or conduct to be unlaw- into force. 53 In the first place, the argu- ful were declared non-retroactive on ment based on the claim by the Austrian account of the extent of the financial Government that it acted in good faith repercussions on Member States, this regarding the compatibility of the duty would have the paradoxical consequence with Community law, is not convincing. of treating the most serious infringements The assertion that representatives of the more favourably than those of a less serious Commission, in the course of negotiations nature, the former being obviously those for the accession of the Republic of Austria which are likely to have the most signifi- to the Community, stated to or gave it to be cant financial implications for Member understood by the Austrian authorities that States. 55 The proper view to take on this the duty at issue was lawful has not been is that non-retroactivity of the judgment confirmed by the Commission and it finds amounts effectively to a legitimisation of no echo in the documents before the Court. the national legislation that was in conflict It may be added that, even assuming that with Community law for the whole of the this subject was addressed during the period preceding the judgment, and that it course of negotiations, it is still the case is therefore reasonable and appropriate to that statements made during the travaux treat that situation as falling under the préparatoires, just as they cannot, accord- case-law just cited and, on the basis of it, to

66. The duty, then, being incompatible with Community law, the administrative authorities are accordingly obliged to refund the sums collected to the suppliers who were subject to it. In the submission of the Austrian Government, however, this should not be done because it would lead to the suppliers being unjustly enriched. The suppliers, it is said, have not in reality suffered any damage through the unlawful 69. In relation to the third question, the duty, because they normally pass it on in Austrian Government has similarly the price charged to the consumer. That requested that the Court's judgment should being so, the Austrian Government con- not have retroactive effect if it were to be siders that it would be reasonable and decided that the exemption from duty of appropriate to limit the temporal effect of direct sales to consumers by producers had the judgment which gives rise to the the character of a State aid. In support of obligation to refund the duty at issue to that request, the Austrian Government has the suppliers. pointed out that at the time of accession both it and the undertakings concerned were not in a position to know that the exemption in force in the Austrian legal system could amount to an 'existing' aid within the meaning of Articles 92 and 93 of the Treaty. It submitted, in particular, that the inadequacy of the information in its possession on the scope of the Community 67. In this connection, it must be observed that in order to resist claims for a refund the authorities have to show that the 56 — In Joined Cases C-192/95 to C-218/95 Comateb and suppliers have indeed been enriched, that Others [1997] ECR I-165, the Court stated at paragraph 31 that 'the trader may have suffered damage as a result of is to say that they have in fact incorporated the very fact that he has passed on the charge levied by the the duty in the price, thereby transferring administration in breach of Community law, because the increase in the price of the product brought about by the burden of it to consumers. That, passing on the charge has led to a decrease in sales. Thus, the levying of dock dues may make the price of products however, is very difficult to do. It cannot from other parts of the Community significantly higher than the price of local products which are exempt from be stated with certainty either that, in the those dues, with the result that importers suffer damage, absence of the duty, the price would have regardless of whether the charge has been passed on.' The Court thus upheld the view, at paragraph 32, that 'the been lower than it was with the duty or, still trader may justly claim that, although the charge has been passed on to the purchaser, the inclusion of that charge in less, that the difference between those two the cost has, by increasing the price of the goods and prices would always have been the same as reducing sales, caused him damage which excludes, in whole or in part, any unjust enrichment which would the amount of the duty. otherwise be caused by reimbursement'.

So far as concerns the argument that the incompatibility of the duty could not easily have been deduced from the relevant Com- munity provisions, and had in addition not been pointed out during the accession negotiations, thus impairing legal certainty, it must be borne in mind that by the 71. If, none the less, the Court were decision of 3 February 1999 referred to minded to allow a temporal limitation of above the Commission had in effect recog- the effects of its judgment, I propose that, nised that the duty was compatible with in accordance with the case-law, the limita- Community law until 31 December 1998. tion should not apply to any person who It follows that to limit the retroactive effect has initiated legal proceedings or raised an equivalent administrative claim as provided by the national law applicable. 58 57 — Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and 58 — Leeros and Others, cited above, and Case C-415/93 OJ 1995, L 1, p. 1). Bosman [1995] ECR 4921.

I-1186

EKW AND WEIN & CO

Conclusion

72. On the basis of these considerations, I propose that the Court should reply to the questions asked by the Verwaltungsgerichtshof (Austria) as follows:

(1) Article 33(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, does not preclude the maintenance of a duty on the supply for consideration of ice cream, including fruits processed therein or added thereto, and beverages, in each case including the containers and accessories sold therewith, the rate of such duty being 10% of the consideration in the case of ice cream and alcoholic beverages and 5% in the case on non-alcoholic beverages.