According to the BoE, the revised structures directive flouts EU law by contradicting the recent ruling of the European Court of Justice. The beer sector had expected that the Commission’s proposal would follow the Court’s decision on the Degrees Plato measurement system, used by half of the EU’s member states for calculating beer excise duties.
Degrees Plato is a scale for measuring the ratio of water to fermentable sugar in beer. It is used as an alternative to ABV – alcohol by volume – in half of EU member states to calculate beer excise duties.
In its ruling on in May, the European Court of Justice clarifying the Degrees Plato calculation was clear that you cannot have a system for taxing the alcohol content of beer whereby flavored beer and a regular beer – of the same alcohol content, produced by breweries of the same size, in the same country – pay a different rate.
Council tax working groups resume their discussions next week on the European Commission’s “Proposal amending Directive 92/83/EEC on the harmonization of the structures of excise duties on alcohol and alcoholic beverages.” And the BoE calls upon the Council, the European Parliament, the European Economic and Social Committee (EESC) and the European Commission to ensure that the revised Structures Directive is lawful and delivers on its objectives.
“Member States would be in breach of EU law if they were to follow the clarification provided in the revised structures directive as the Commission currently proposes it,” says Secretary General of the BoE, Pierre-Olivier Bergeron,
By the European Commission making a proposal that "all the ingredients of the beer, including those added after fermentation, shall be taken into account for the purposes of measuring the degree Plato,” it is no longer solely a tax on the alcohol, says the BoE.
Under the Commission’s proposal and in contradiction with the CJEU judgment, these sugars would be considered for the measurement of the degree Plato and therefore the calculation of the excise due.
The result is that a flavored beer – even if produced by a brewery of the same size, in the same country – would be subject to a higher rate than a regular beer of the same alcohol content.
This is the point that the BoE say is “discriminatory” and “contradictory.”
The BoE sent its latest letter to Europe’s Taxation Commissioner, Pierre Moscovici, expressing brewers’ dissatisfaction and disbelief at the Commission’s proposal to contradict the decision of the EU’s highest court.
“Our correspondence with the Taxation Commissioner shows that the sole justification found for the contentious proposals relates to the technical, practical and economic challenges of measuring and enforcing Plato legally and correctly,” adds Bergeron.
“However, we are submitting evidence that shows these concerns are completely unfounded.” It is noteworthy that none of the countries already applying Plato in line with the CJEU ruling cited any concerns with measuring Plato correctly or carrying out compliance checks.”
The BoE stress that while it supports the majority of the Commission’s proposal, to ensure Better Regulation and respect of the Rule of Law, it is urging the Council and the European Parliament to reject this part of the proposal and calls for an amendment to clarify that ingredients added after fermentation shall not be considered for the purposes of measuring the degree Plato.
