Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The dispute which lies behind this reference for a preliminary ruling concerns the question whether a distinction made in the Danish Law on the Taxation of Spirits, etc. (Lovbekendtgørelse) (Consolidation Act) No 151 of 4 April 1978) between aquavit and other spirits is at variance with the first and second paragraphs of Article 95 of the EEC Treaty and, if so, to what extent Hans Just I/S [Interessentskab, = partnership] is entitled to recover a sum paid in accordance with that law, corresponding to the difference between the two taxes..The first question is already the subject-matter of proceedings brought before the Court of Justice by the Commission of the European Communities against the Kingdom of Denmark under Article 169 of the EEC Treaty for a declaration that it has failed to fulfil its obligations under the Treaty (Case 171/78) on which I gave my opinion on 28 November 1979. As far as the taxation of the products in question and the situation on the Danish market in spirits is concerned, I may refer the Court in that respect to my explanation of the facts in that opinion and limit myself to observing the following points:

As we saw in Case 171/78, according to Article 2 (1) of the Law on the taxation of spirituous drinks and related products (Bekendtgørelse af Lov om afgift af spiritus m.m.) most recently amended by Law No 437 of 6 September 1977, with effect from 7 September 1977 the tax on spirits amounts to Dkr 167.50 for aquavit and Dkr 257.15 for other spirits per litre of pure ethyl alcohol. According to the Law the rate of duty for aquavit applies to products which :

Hans Just I/S, the plaintiff in the main action, has only an insignificant trade in goods which are taxed as aquavit by the definition given above, but has a considerable turnover in other spirits.

For the month of June 1978 the tax payable amounted to Dkr 984.90 for 5.88 litres of pure ethyl alcohol at Dkr 167.50 for the production of aquavit, and Dkr 2555212.55 for 2159.10 litres of pure ethyl alcohol at Dkr 257.15 for the production of other spirits. The total to be paid therefore on 2164.98 litres of pure alcohol was Dkr 556197.45.

Concerning this tax settlement Hans Just I/S maintained vis-à-vis the customs authorities and the Ministry for Fiscal Affairs that having regard to Article 95 of the EEC Treaty the tax on other spirits could only be claimed at the rate for aquavit. Accordingly, the tax should amount to only Dkr 362634.15 for 2164.98 litres of pure alcohol. As the customs authorities and the Ministry gave notice that if the full amount due under the Law was not paid it would be collected by distress and the firm struck off the customs authorities' register, the balance of Dkr 193563.30 was paid under protest and subject to the undertaking's right to claim a refund.

Hans Just I/S then instituted proceedings in the Østre Landsret [Eastern Division of the High Court] against the Ministry for Fiscal Affairs asking for a declaration that the Ministry was obliged to refund the sum of Dkr 193563.30 with interest thereon and reserving the right to claim a refund of the corresponding amount paid for the tax periods from 1 January 1973 to 31 May 1978 together with the period after 1 July 1978.

The Fourth Chamber of the Østre Landsret stayed the proceedings by order of 26 March 1979 and submitted the following questions under Article 177 of the EEC Treaty for a preliminary ruling:

Question 1A

Is it contrary to Community law that a national system of taxation should apply different rates of tax to aquavit and schnapps on the one hand and other spirits on the other, bearing in mind that:

Question 1 B

Is it relevant to the answer to Question 1A to establish that, in proportion to the cost price, the tax burdens the lowertaxed class of spirits (aquavit and schnapps) to the same degree as the highly-taxed class of spirits (other spirits)?

Question 2

If it is lawful to have different rates of tax, as mentioned in Question 1, does Community law establish requirements for the application of such rates to imported products?

Question 3

Question 4

If the matter is relevant, does Community law contain any rules of significance for deciding the question of the refunding of taxes, payment of which was contrary to Article 95? In this connexion is it of any relevance that a trader can establish that he has suffered loss?

My opinion on these questions is as follows :

On those grounds I conclude that the questions should be answered as follows :

1 Translated from the German.