ECJ Upholds Swedish Rules on Taxation of Beer, Wine by Tom O'Shea

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1 ECJ Upholds Swedish Rules on Taxation of Beer, Wine by Tom O'Shea The European Court of Justice on April 8 issued its judgment in European Commission v. Sweden (C-167/05), ruling that Sweden's tax treatment of beer and wine does not violate the EC Treaty principle of free movement of goods. Date: Apr. 16, 2008 In European Commission v. Sweden (C-167/05), the European Commission challenged Swedish excise tax rules on the grounds that they afford indirect protection to beer, which is mainly produced in Sweden, as compared to wine, which is mainly imported from other EU member states, in violation of EC Treaty article 90, paragraph 2. The European Court of Justice did not uphold the commission's arguments and found in favor of Sweden. The ECJ noted that the commission failed to establish any method of comparison other than that accepted by both parties -- namely, an assessment based on a liter of beer and a liter of wine. Using that comparison, the ECJ observed that the selling price of a liter of wine was double that of a liter of strong beer. Even if the rate of excise duty applied to the strong beer were applied to the wine, the reduction in the final selling price of the wine would be only 6.65 percent and the relationship between the final selling prices of both products would still be in the order of 1-to-2, the ECJ observed. Consequently, the difference in price between beer and wine "is virtually the same before taxation as after taxation," it said, adding that "the difference in the tax treatment of those two products is not liable to influence consumer behaviour in the sector concerned." The ECJ therefore determined that the application of the Swedish tax rules does not appear to afford indirect protection to Swedish beer and that the commission failed to adequately demonstrate that the Swedish rules are incompatible with article 90, paragraph 2 of the EC Treaty. In European Commission v. Sweden (C-167/05), the European Commission challenged Swedish excise tax rules on the grounds that they afford indirect protection to beer, which is mainly produced in Sweden, as compared to wine, which is mainly imported from other EU member states, in violation of EC Treaty article 90, paragraph 2. The European Court of Justice did not uphold the commission's arguments and found in favor of Sweden.

2 Background The commission examined the Swedish tax rules after complaints that the excise tax Sweden imposes on wine, a product imported from other member states, is higher than that imposed on beer, a locally produced product. Consequently, the commission brought infringement proceedings against Sweden. Latvia was granted leave to intervene in support of Sweden. The commission and Sweden agreed that: beer is mainly a domestic product and wine is mainly an imported product; the most commonly consumed wines are in competition with beer under article 90, paragraph 2 of the EC Treaty; Sweden's taxation of beer and wine traditionally has been linked to alcohol content; there is a difference in the taxation by volume of beer and wine; and the taxation can influence consumer behavior.(sweden, however, argued that beer and wine are only in partial competition and that taxation is only one factor likely to affect consumer behavior.) The commission also acknowledged that the Swedish excise duty on beer was reduced by 40 percent in 1997 and that the excise duty on wine was reduced by 18.8 percent in That latter reduction, according to Sweden, restored the balance between the tax rates for strong beer and for wine. Commission's Arguments The commission argued that Sweden applies a lower excise tax to beer than to the competing category of wine and that the difference in taxation affects consumer choice by making wine more expensive. The commission noted that wine is taxed progressively while beer is taxed at a fixed rate. Also, a 25 percent VAT is applied to the final selling price of both beer and wine, inclusive of excise taxes, which reinforces the protective effect of the excise tax regime, the commission argued. Addressing whether beer and wine are in competition in Sweden, the commission noted that strong beer and wine are sold only at some sales outlets and catering establishments in Sweden. Therefore, in the commission's opinion, strong beer and wine are in competition. The commission maintained that the Swedish tax arrangements crystallize consumer habits by reinforcing the advantage of beer (the domestic product), and that they place "unfair restraints on the commercial potential of wine, the product from other Member States." It also argued that an increase in the sales volume of beer could be attributed to the 1997 excise tax reduction,

3 which it said was clearly intended to afford protection to domestic beer production. Sweden's Arguments Sweden argued that its tax rules do not have the aim or effect of indirectly protecting beer sales from competition from wine and that the essential question to be answered was whether the tax imposed on competing beer and wine products has the effect on the market of reducing the potential consumption of imported products to the advantage of domestic products. Crucially, Sweden argued that it is difficult to determine which price comparison gives the truest picture of the relationship between wine and beer and that the commission bore the burden of proving that the alleged breach of article 90 EC was real. Sweden based its arguments on the results of a comparison between the selling price of a liter of beer and the selling price of a liter of wine. That comparison demonstrated that the tax difference is not large enough to be regarded as influencing consumer behavior, Sweden said, because even if the least expensive wine is taxed in exactly the same way as strong beer, its selling price is still twice that of the beer. Therefore, Sweden, supported by Latvia, argued that the commission failed to show that the difference in price between beers and wines of similar quality is so slight that the difference in the taxation of those products is likely to influence consumer behavior. The Court's Response The ECJ pointed out that article 90 EC seeks to ensure the free movement of goods between EU member states "in normal conditions of competition through the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States and the complete neutrality of internal taxation as regards competition between domestic products and imported products." The second paragraph of article 90 EC is "intended to prevent any form of indirect fiscal protectionism affecting products which, although not similar, within the meaning of the first paragraph of Article 90 EC, to domestic products, nevertheless compete with some of them, even if only partially, indirectly or potentially," the ECJ said. Consequently, the ECJ said, in examining the Swedish tax arrangements it was appropriate to: determine the extent to which beer and wine may be regarded as competing products in light of article 90 EC;

4 compare the taxation of the products to determine whether there is any difference in the tax treatment applied to them and, if so, the extent of that difference; and determine whether the higher taxation of wine as compared to strong beer has the effect on the market of reducing potential consumption of imported products to the advantage of competing domestic products. The ECJ noted that the commission failed to establish any method of comparison other than that accepted by both parties -- namely, an assessment based on a liter of beer and a liter of wine. Using that comparison, the ECJ observed that the "relationship between the final selling price, inclusive of all taxes, of a litre of strong beer and that of a litre of wine in competition with it is in the order of 1:2." In other words, the selling price of a liter of wine was double that of a liter of strong beer. The ECJ added that even if the rate of excise duty applied to the strong beer were applied to the wine, the reduction in the final selling price of the wine would be only 6.65 percent and the relationship between the final selling prices of both products would still be in the order of 1-to-2. Consequently, the difference in price between beer and wine "is virtually the same before taxation as after taxation," it said. As such, the ECJ found that "the difference in the tax treatment of those two products is not liable to influence consumer behaviour in the sector concerned." The Court's Conclusion The ECJ ultimately determined that the application of the Swedish tax rules does not appear to afford indirect protection to Swedish beer and that the commission failed to adequately demonstrate that the Swedish rules are incompatible with article 90, paragraph 2 of the EC Treaty. (For the ECJ judgment in European Commission v. Sweden (C-167/05), see Doc [PDF] or 2008 WTD ; for a related news release, see Doc [PDF] or 2008 WTD ) Analysis Article 90 EC introduces the concept of nondiscrimination in the area of national taxation and seeks to eliminate fiscal barriers to the free movement of goods. The first paragraph of article 90 provides: "No member state shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products." The second paragraph states: "Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products." Competing Products

5 In Commission v. Sweden, the beer and wine products were not the same, but they were in partial competition, so the matter was within the scope of the second paragraph of article 90 EC. In this case, the ECJ determined that only the least expensive and lightest wines are in competition with strong beers. Accordingly, that was the basis on which the tax comparisons had to be made. Tax Arrangements in Sweden The ECJ determined that alcohol content was the most pertinent criterion of assessment because Sweden used it as the basis for determining the excise tax. It was also an objective criterion that reflected the characteristics of the products in question. The ECJ compared the levels of taxation on wine with an alcohol content of 12.5 percent volume, which was in competition with strong beer, and noted that wine was subjected to higher taxation than strong beer. The question was whether that higher taxation had the effect of reducing potential consumption of wine to the advantage of competing Swedish beer. Selling Prices of Beer and Wine The difference in the selling prices of beer and wine was relevant because wine is twice as expensive as beer even without the taxation. After applying the Swedish tax rates to both products, a liter of wine was still twice as expensive as a liter of beer. The ECJ observed that even if the higher taxes on wine were reduced to the rate of tax imposed on strong beer (a reduction of approximately 6.65 percent), the selling price of wine would still be twice that of beer. In other words, the different tax treatment of the products was not sufficient to influence consumer behavior in relation to selling prices because wine was so much more expensive than strong beer anyway, without taking taxation into account. Consequently, the ECJ found that the Swedish tax arrangements did not appear to afford indirect protection to Swedish beer under article 90, paragraph 2 EC. Commission v. United Kingdom (C-170/78) In its earlier judgment in Commission v. United Kingdom (C-170/78), the ECJ held that it was impossible to require, in each case, that the protective effect be shown statistically, but that it was enough for it to be shown that the tax regime was likely, "in view of its inherent characteristics, to bring about such an effect." The ECJ also held that "the effect of the United Kingdom tax system is to stamp wine with the hallmarks of a luxury product which, in the eyes of the tax burden which it bears, can scarcely constitute in the eyes of the consumer a genuine alternative to the typically produced domestic beverage." Part of the problem with this earlier Commission v. United Kingdom judgment related to the evidence of selling prices. Regarding the incidence of taxation on the price net of tax, the ECJ had difficulty forming an opinion because of the incomplete information supplied by the commission, which it said "consisted of lists of selling prices without parallel information revealing, within

6 those prices, the incidence of excise duty, value-added tax and the price net of tax." The matter was examined by the ECJ in more detail in Commission v. Belgium (C-356/85). Commission v. Belgium (C-356/85) In Commission v. Belgium, the Belgian VAT rules were challenged on the grounds that a higher tax rate was applied to wine, an imported product, than to beer, a domestic product, in violation of article 90 EC (article 95 at the time of the case). In examining the protective nature of the Belgian tax system, the ECJ confirmed that any assessment of article 90 EC had to take into consideration the difference between the selling prices of beer and wine. Belgium successfully argued that even if a single rate were applied to both products, the price difference between the two would continue to be substantial, and that the reduction in that difference would not be significant enough to influence consumer preference. The ECJ concluded that the commission had not demonstrated that the difference between the prices for comparable qualities of beer and wine is so small that the difference of 6 percent between the VAT rates applied to the two products was capable of influencing consumer behavior. "The commission has thus not shown that the difference gives rise to any protective effect favouring beer intended for domestic consumption," the ECJ held. The ECJ applied similar reasoning in Commission v. Sweden, in which the commission again failed to show that the tax regime at issue had a protective effect, even though higher taxation was applied to imported wine products than to strong beer products produced domestically. The difference in the pretax and after-tax prices of beer and wine was a ratio of 1-to-2, indicating that wine was twice as expensive both before and after tax was imposed. Consequently, the additional taxation imposed on imported wine products was not sufficient to influence consumer choice because of the vast difference in selling prices between the products. Tom O'Shea, lecturer in tax law, Centre for Commercial Law Studies, Queen Mary, University of London Comment on this story Tax Analysts Information Jurisdiction: European Union; Sweden

7 Subject Area: Excise taxation Harmonization of taxes Litigation and appeals Author: O'Shea, Tom Tax Analysts Document Number: Doc Tax Analysts Electronic Citation: 2008 WTD 74-4 Cross Reference: For the ECJ judgment in European Commission v. Sweden (C-167/05), see Doc [PDF] or 2008 WTD ; for a related news release, see Doc [PDF] or 2008 WTD