The French Supreme Court clarifies the conditions whether a brewery can benefit from the reduced rate of excise duty regarding alcohol and alcoholic beverages

Cour de cassation, civile, Chambre commerciale, 5 janvier 2016, 13-17063

In the present case rules on the harmonization of the structures of excise duties on alcohol and alcoholic beverages are discussed.

The company «Brasserie Bouquet» operated a restaurant in which it sold beer it produced itself. On 10 December 1998 the «Brasserie Bouquet» entered into an agreement entitled «contrat d’affiliation au Cercle des 3 brasseurs » (Affiliation agreement for the Circle of the Three Brewers) with the company ICO 3 B.

Under aforementioned agreement, the company ICO 3 B has authorised the Brasserie Bouquet to use its trade marks and its commercial designation and has undertaken to pass on its know-how and, in particular, to supply the yeast strains, in exchange of compliance with obligations contained in the document entitled «Bible du Cercle des 3 brasseurs».

The Brasserie Bouquet declared the quantities of beer produced in its establishment on the basis of the reduced rate provided for by Article 520 A, I a) of the General Tax Code, because it considered itself falling into the category of small independent breweries within the meaning of Article 178-0 bis A of Annex III of the aforementioned Code.

The Customs Administration notified Brasserie Bouquet with a revised assessment challenging the application of the reduced rate for the period from December 2007 to November 2010.

Subsequently, the Brasserie Bouquet filed an action before the appeal court of Riom  (Cour d’appel de Riom) which upheld its request.

On that occasion, the Customs Administration lodged an appeal before the Supreme Court (Cour de cassation), which decided to stay the proceedings and to refer a question to the Court of Justice of the European Union for a preliminary ruling.

By its judgment of 4 June 2015 (Case C-285/14) the Court of Justice ruled that for the purpose of applying the reduced rate of excise duty on beer the condition laid down in Article 4(2) of Council Directive (EEC) 92/83 according to which a brewery must not operate under licence, is not met if the brewery concerned makes its beer in accordance with an agreement pursuant to which it is authorised to use the trade marks and production process of a third party.

The Supreme Court (Cour de cassation) referred to the abovementioned judgment of the Court of Justice and considered that the condition according to which a brewery must not operate under licence was not met.

Consequently, the Supreme Court (Cour de cassation) annulled the judgment of the appeal court of Riom (Cour d’appel de Riom).

The full text is available on EuroCases

 

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