Case C-475/01

Commission of the European Communities

v

Hellenic Republic

(Failure of a Member State to fulfil obligations – Infringement of the first paragraph of Article 90 EC – Excise duty on alcohol and alcoholic beverages – Application to ouzo of a lower rate than that applied to other alcoholic beverages – Compliance of that rate with a directive which was not challenged within the time-limit laid down in Article 230 EC)

Summary of the Judgment

1. Acts of the institutions – Presumed lawful – Legally non-existent acts – Concept

(Art. 249 EC)

2. Tax provisions – Harmonisation of laws – Excise duty – Directive 92/83 – Alcohol and alcoholic beverages – Reduced rate of excise duty applied to certain products – Absence of any infringement of Community law

(Council Directive 92/83, Art. 23)

1. Measures of the Community institutions are in principle presumed to be lawful and accordingly produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality.

By way of exception to that principle, measures tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order must be treated as having no legal effect, even provisional, that is to say they must be regarded as legally non-existent. The purpose of this exception is to maintain a balance between two fundamental, but sometimes conflicting, requirements with which a legal order must comply, namely stability of legal relations and respect for legality.

The gravity of the consequences attaching to a finding that a measure of a Community institution is non-existent means that, for reasons of legal certainty, such a finding is to be reserved for quite extreme situations.

(see paras 18-20)

2. Article 23 of Directive 92/83 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages allows a reduced rate of excise duty to be applied to certain types of product. A Member State which has done no more than maintain in force national rules adopted on the basis of that provision and which comply with that provision, which produces legal effects that are presumed to be lawful, has not failed to fulfil its obligations under Community law.

(see paras 23-25)

JUDGMENT OF THE COURT (sitting as a full Court ) 5 October 2004 (1)

(Failure of a Member State to fulfil obligations – Infringement of the first paragraph of Article 90 EC – Excise duty on alcohol and alcoholic beverages – Application to ouzo of a rate lower than that applied to other alcoholic beverages – Compliance of that rate with a directive which was not challenged within the time-limit laid down in Article 230 EC)

In Case C-475/01,ACTION under Article 226 EC for failure to fulfil obligations,brought on 6 December 2001,

applicant, supported by

intervener,

v

defendant,

THE COURT (sitting as a full Court ),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, C. Gulmann, J.-P. Puissochet and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric and S. von Bahr (Rapporteur), Judges,

Advocate General: A. Tizzano,

having regard to the written procedure and further to the hearing on 16 September 2003,

after hearing the Opinion of the Advocate General at the sitting on 15 January 2004,

gives the following

‘1.

2.‘For the purposes of this Directive the term “ethyl alcohol” covers:

‘The following Member States may apply a reduced rate, which may fall below the minimum rate but not be set more than 50% below the standard national rate of duty on ethyl alcohol, to the following products:

…

On those grounds, the Court (sitting as a full Court) hereby:

Signatures.