EN EN

EUROPEAN COMMISSION

Brussels, 18.6.2020

COM(2020) 240 final

2020/0118 (CNS)

Proposal for a

COUNCIL DECISION

authorising Portugal to apply a reduced rate of excise duty on certain alcoholic products

produced in the autonomous regions of Madeira and the Azores

{SWD(2020) 108 final}

EN 1 EN

EXPLANATORY MEMORANDUM

1. CONTEXT OF THE PROPOSAL

Reasons for and objectives of the proposal

The proposal concerns a Council Decision to replace the current Council Decision No

376/2014/EU of 12 June 20141, adopted on the basis of Article 349 of the Treaty on the

Functioning of the European Union (TFEU). This article allows for specific measures for the

EU outermost regions to be taken as it acknowledges that permanent and combined

constraints severely restrain their development and affect their economic and social situation.

It permits such measures provided that they do not undermine the integrity and the coherence

of the Union legal order, including the internal market and common policies. The current

decision authorises Portugal to apply excise duty rates reduced by up to 75% of the standard

Portuguese rates to rum and liqueurs produced and consumed in Madeira and liqueurs and

eaux-de-vie produced and consumed in the Azores. The current decision expires on 31

December 2020.

The objective of this measure is to compensate the producers of the Portuguese outermost

regions for their competitive disadvantage triggered by the Portuguese outermost regions’

remoteness, insularity, small size, difficult topography and climate and economic dependence

on a few products, which severely restrain their development. As a result of these

characteristics, producers in the outermost regions face higher production costs than their

counterparts in the mainland.

In view of the expiry date of the Decision, the European Commission launched an external

study in order to assess the current regime as well as the potential impacts of possible options

for the period after 2020, including the option on which the current proposal is built.

This proposal entails renewing the derogation until 2027, extending it to cover sales on the

Azores of locally produced rum with the rate of reduction maintained at 75%, and also

extending it to provide a 50% reduction in the rate of excise duty on sales on the Portuguese

mainland of all products covered.

Consistency with existing policy provisions in the policy area

The 2017 Communication on a strategic Partnership with the EU’s Outermost Regions2 noted

that the outermost regions continue to face serious challenges, many of which are permanent.

This Communication presents the Commission’s approach in terms of supporting these

regions in building on their unique assets and outermost regions identifying new sectors of

growth to enable growth and job creation.

In this context, the aim of this proposal is to support the Portuguese outermost regions in

building on their assets in order to enable local growth and job creation in a specific sector -

alcohol. This proposal supplements the Programme of Options Specifically Relating to

1 Council Decision No 376/2014/EU of 12 June 2014 authorising Portugal to apply a reduced rate of

excise duty in the autonomous region of Madeira on locally produced and consumed rum and liqueurs and in the

autonomous region of the Azores on locally produced and consumed liqueurs and eaux-de-vie 2 COM(2017) 623 final

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Remoteness and Insularity (POSEI)3 which is targeted at supporting the primary sector and

the production of raw materials.

Consistency with other Union policies

The proposal is consistent with the 2015 Single Market Strategy4, where the Commission sets

out to deliver a deeper and fairer Single Market that will benefit all stakeholders. One of the

objectives of the proposed measure is to mitigate the additional costs faced by companies in

the outermost regions, which impedes their full participation in the Single Market. Due to the

limited volumes of production involved, no negative impact on the smooth functioning of the

Single Market is envisaged.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

The legal basis is Article 349 TFEU. This provision enables the Council to adopt specific

provisions adjusting the application of the Treaties to the EU outermost regions.

Subsidiarity principle

Only the Council is authorised, on the basis of Article 349 TFEU, to adopt specific measures

to adjust the application of the Treaties to the EU outermost regions, including the common

policies, due to the permanent constraints which affect the economic and social situation of

those regions. This also holds for authorising derogations to Article 110 TFEU. The proposal

for a Council Decision therefore complies with the subsidiarity principle.

Proportionality principle

This proposal complies with the principles of proportionality as set out in Article 5(4) of the

Treaty on European Union. The proposed amendments do not go beyond what is necessary to

address the issues at stake and, in that way, to achieve the Treaty objectives of ensuring that

the internal market functions properly and effectively.

In particular, the proposed extension of reduced rates to mainland Portugal, would enhance the

competitiveness of producers in the Portuguese outermost regions with limited adverse effects

in terms of foregone revenues and administrative burdens and would put them on an equal

footing with producers of similar products on the Portuguese mainland.

Choice of instrument

A Council Decision is proposed to replace Council Decision No 376/2014/EU.

3 Regulation (EU) No 228/2013 of the European Parliament and of the Council of 13 March 2013 4 Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions upgrading the Single Market: more

opportunities for people and business (COM (2015) 550 final), p.4.

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3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

CONSULTATIONS AND IMPACT ASSESSMENTS

Ex-post evaluation of existing legislation

The external study found that producers of the outermost regions continue to face higher

production costs than counterparts in the mainland, which are currently compensated by the

excise reduction. Moreover the study identified the following two issues that emerged since

the adoption of the current decision.

Firstly, the external study notes rum is now being produced in the Azores, but is not included

in the current regime. However, the regime covers rum produced in Madeira, which leads to

an uneven playing field amongst rum producers of the two outermost regions. Secondly, the

study notes that further to the added rum production in the Azores, rum production in Madeira

is increasing and due to the limited market in the outermost regions, not all rum can be sold

locally. The additional costs of accessing the mainland Portuguese market act as a barrier for

these producers and as a result rum is being stored at a cost.

Stakeholder consultations

As part of the external study supporting the analysis of the current regime, responses via

questionnaires, interviews and discussions were received from the relevant services of the

European Commission, the Portuguese authorities, the producers of the two outermost regions

and the Portuguese distributors. Although special efforts were made by the external contractor

no replies were received from the mainland producers or civil society.

Impact assessment

This initiative is prepared as a back-to-back exercise: an ex-post evaluation of the current

regime closely followed by a forward-looking assessment. Such an assessment, of the

potential impacts of continuing and possibly changing the existing regime, has been laid down

in an analytical document, including an evaluation annex. This document is based on an

external study and the information provided by the Member State.

4. BUDGETARY IMPLICATION

The proposal has no impact on the budget of the European Union, as revenue from excise

duties goes entirely to the Member States.

5. OTHER ELEMENTS

Implementation plans and monitoring, evaluation and reporting arrangements

The monitoring of the implementation and functioning of the derogation will be the role of the

Portuguese authorities and the Commission, as it has been to date.

Portugal will be asked to submit a monitoring report by 30 September 2025 for the period

from 2019 to 2024. This monitoring report will include the following:

information on additional costs involved in production

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economic distortions and market impacts

information for the evaluation of the effectiveness, efficiency, coherence with other

EU policies

information on continued relevance and EU added value of the new legislation.

The reporting exercise should also seek to collect input from all relevant stakeholders as

regards the level and evolution of their additional production costs, compliance costs and any

instances of market distortions.

To make sure that the information collected by the Portuguese authorities contains the

necessary data for the Commission to take an informed decision on the validity and viability

of the scheme in the future, the Commission will draw up specific guidelines on the required

information. Such guidelines will be, to the extent possible, common to other similar schemes

to the EU’s outermost regions, governed by similar legislation.

This will enable the Commission to assess whether the reasons justifying the derogation still

exist, whether the fiscal advantage granted by Portugal is still proportionate and whether

alternative measures to a tax derogation system are possible, taking into account their

international dimension.

The structure and data required in the monitoring report are annexed to the proposal in Annex

1.

Detailed explanation of the specific provisions of the proposal

This part is not applicable as articles are self-explanatory.

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2020/0118 (CNS)

Proposal for a

COUNCIL DECISION

authorising Portugal to apply a reduced rate of excise duty on certain alcoholic products

produced in the autonomous regions of Madeira and the Azores

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular

Article 349 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Parliament5,

Acting in accordance with a special legislative procedure,

Whereas:

(1) Council Decision No 376/2014/EU6 authorised Portugal to apply a reduced rate of

excise duty in the autonomous region of Madeira on locally produced and consumed

rum and liqueurs and in the autonomous region of the Azores on locally produced and

consumed liqueurs and eaux-de-vie which may be lower than the minimum rate of

excise duty set by Council Directive 92/84/EEC7, but not more than 75 % lower than

the standard national excise duty on alcohol.

(2) In February 2019, the Portuguese authorities asked the Commission to submit a

proposal for a Council Decision extending the time limit of the authorisation set out in

Decision No 376/2014/EU, under the same conditions as well as extending the

geographical scope to mainland Portugal with a more limited reduction, for another

seven year period, from 1 January 2021 until 31 December 2027.

(3) The producers in the autonomous regions of Madeira and of the Azores face

difficulties in accessing markets outside those regions, and the regional and local

markets are the only possible outlets to sell certain alcoholic products. Those

5 OJ C XXX, XXX, p. XXX. 6 Council Decision No 376/2014/EU of 12 June 2014 authorising Portugal to apply a reduced rate of

excise duty in the autonomous region of Madeira on locally produced and consumed rum and liqueurs

and in the autonomous region of the Azores on locally produced and consumed liqueurs and eaux-de-

vie (OJ L 182, 21.6.2014, p. 1). 7 Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol

and alcoholic beverages (OJ L 316, 31.10.1992, p. 29).

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producers face additional costs because the raw materials of agricultural origin are

more expensive than under normal conditions of production, due to the small size,

fragmented nature and low mechanisation of agricultural holdings. Also, output from

processing of sugar cane is lower than in other outermost regions, due to the

topography, climate, soil and artisanal production. Moreover, the transport to the

islands of certain raw and packaging materials which are not produced locally, leads to

additional cost..

(4) In the case of the Azores, the insularity is twofold, since it is a group of islands which

are widely spread. Transport in those remote and insular regions further increases the

additional costs. The same applies to certain necessary travels and shipments to the

mainland. Additional costs are also required for the storage of finished products as

local consumption does not absorb all output, especially the rum production. The small

size of the regional market increases per unit costs, notably through the unfavourable

relationship between fixed costs and output. Finally, the producers concerned also bear

extra costs generally borne by the local economies, in particular increased labour and

energy costs.

(5) Rum production has increased as a result of increased sugarcane production. While

some rum is aged or used as a base for liqueurs, the unsold quantities of rum are

stored at a cost which further adds to the additional costs for producers. As a result of

the additional costs, producers in the autonomous regions of Madeira and of the

Azores are unable to compete with producers from outside those regions due to a

higher price of the final product and therefore they cannot access other markets.

Access to the Portuguese mainland market with reduced rates of excise duty would

address this issue.

(6) In order to avoid severely restraining development of the autonomous regions of

Madeira and of the Azores and to retain the alcohol industry and the jobs it provides in

those regions, it is necessary to renew and widen the scope of the authorisation set out

in Decision No 376/2014/EU.

(7) Decision No 376/2014/EU applies until 31 December 2020. For reasons of clarity it is

necessary to adopt a new Decision authorising Portugal to apply a reduced rate of

excise duty in the autonomous regions of Madeira and of the Azores.

(8) Since the tax advantage does not go beyond what is necessary to offset additional

costs, and since the volumes at stake remain modest and the tax advantage is limited to

consumption in the autonomous regions of Madeira and of the Azores and mainland

Portugal, the measure does not undermine the integrity and coherence of the Union

legal order.

(9) In order to allow the Commission to assess whether the conditions justifying the

authorisation continue to be fulfilled Portugal should submit to the Commission a

monitoring report by 30 September 2025.

(10) This Decision is without prejudice to the possible application of Articles 107 and 108

TFEU,

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HAS ADOPTED THIS DECISION:

Article 1

By way of derogation from Article 110 TFEU, Portugal is hereby authorised to apply a rate of

excise duty lower than the full rate on alcohol laid down in Article 3 of Directive 92/84/EEC

in the autonomous region of Madeira on locally produced and consumed rum and liqueurs and

in the autonomous region of the Azores on locally produced and consumed rum, liqueurs and

eaux-de-vie.

Article 2

By way of derogation from Article 110 TFEU, Portugal is hereby authorised to apply a rate of

excise duty lower than the full rate on alcohol laid down in Article 3 of Directive 92/84/EEC

on rum and liqueurs produced in the autonomous region of Madeira when consumed on

mainland Portugal and on rum, liqueurs and eaux-de-vie produced in the autonomous region

of the Azores when consumed on mainland Portugal.

Article 3

In Madeira the authorisation set out in Articles 1 and 2 shall be limited to the following

products:

(a) until 24 May 2021, to rum as defined in point 1 of Annex II to Regulation (EC)

No 110/2008 of the European Parliament and of the Council8, having the

geographical indication ‘Rum da Madeira’ referred to in point 1 of Annex III to that

Regulation, and from 25 May 2021, to rum as defined in point 1 of Annex I to

Regulation (EU) 2019/787 of the European Parliament and of the Council9, having

the geographical indication ‘Rum da Madeira’;

(b) until 24 May 2021, to liqueurs and ‘crème de’ as defined in points 32 and 33

respectively of Annex II to Regulation (EC) No 110/2008, produced from regional

fruit or plants, and as from 25 May 2021, to liqueurs and ‘crème de’ as defined in

points 33 and 34 respectively of Annex I to Regulation (EU) 2019/787, produced

from regional fruit or plants;

In the Azores the authorisation set out in Articles 1 and 2 shall be limited to the following

products:

8 Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the

definition, description, presentation, labelling and the protection of geographical indications of spirit

drinks and repealing Council Regulation (EEC) No 1576/89 (OJ L 39, 13.2.2008, p. 16). 9 Regulation (EU) 2019/787 of the European Parliament and of the Council of 17 April 2019 on the

definition, description, presentation and labelling of spirit drinks, the use of the names of spirit drinks in

the presentation and labelling of other foodstuffs, the protection of geographical indications for spirit

drinks, the use of ethyl alcohol and distillates of agricultural origin in alcoholic beverages, and

repealing Regulation (EC) No 110/2008 (OJ L 130, 17.5.2019, p. 1).

EN EN

(a) until 24 May 2021, to rum as defined in point 1 of Annex II to Regulation (EC)

No 110/2008, produced from regional sugarcane, and as from 25 May 2021, to rum

as defined in point 1 of Annex I to Regulation (EU) 2019/787, produced from

regional sugarcane;

(b) until 24 May 2021, to liqueurs and ‘crème de’ as defined in points 32 and 33

respectively of Annex II to Regulation (EC) No 110/2008, produced from regional

fruit or raw materials, and as from 25 May 2021, to liqueurs and ‘crème de’ as

defined in points 33 and 34 respectively of Annex I to Regulation (EU) 2019/787,

produced from regional fruit or raw materials;

(c) until 24 May 2021, to eaux-de-vie made from wine or grape marc having the

characteristics and qualities as defined in points 4 and 6 of Annex II to Regulation

(EC) No 110/2008 , and as from 25 May 2021, to eaux-de-vie made from wine or

grape marc having the characteristics and qualities as defined in points 4 and 6 of

Annex I to Regulation (EU) 2019/787.

Article 4

The reduced rate of excise duty applicable to the products referred to in Article 1 of this

Decision may be lower than the minimum rate of excise duty on alcohol set by Directive

92/84/EEC, but may not be more than 75 % lower than the standard national excise duty on

alcohol.

Article 5

The reduced rate of excise duty applicable to the products referred to in Article 2 of this

Decision may be lower than the minimum rate of excise duty on alcohol set by Directive

92/84/EEC, but may not be more than 50 % lower than the standard national excise duty on

alcohol.

Article 6

By 30 September 2025 at the latest, Portugal shall submit a monitoring report to the

Commission to enable it to assess whether the conditions justifying the authorisation set out in

Articles 1 and 2 continue to be fulfilled. The monitoring report shall contain the information

required in the Annex.

Article 7

This Decision shall apply from 1 January 2021 until 31 December 2027.

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Article 8

This Decision is addressed to the Portuguese Republic.

Done at Brussels,

For the Council

The President

EUROPEAN COMMISSION

Brussels, 18.6.2020

COM(2020) 240 final

ANNEX

ANNEX

to the

Proposal for a Council Decision

authorising Portugal to apply a reduced rate of excise duty on certain alcoholic products

produced in the autonomous regions of Madeira and the Azores

{SWD(2020) 108 final}

EN EN

ANNEX

Information to be included in the monitoring report referred to in Article 6

1. Estimated additional costs. Information shall be provided for each product benefiting

from the reduced rate of excise duty. The Portuguese authorities shall complete Table

1 with at least the following information, where such information is available. The

information provided in the table shall be sufficient for determining whether there is

additional cost, which increases the cost of products produced locally in comparison

to products produced elsewhere.

Table 1.

MADEIRA

(euros)

AZORES

(euros)

Notes2

Sugar cane price (per 100 kg)

Passion fruit price (per 100 kg)

Lime fruit price (per 100 kg)

Alcohol price (per hlpa3 - excluding

taxes)

Freight cost (per kg)

Other costs1

Notes to the Table:

1. Provide information on water, energy and waste-related costs, costs in case of multiple establishments and other relevant

costs.

2. Provide information on all the specifications and clarifications underpinning the calculation methods.

3. Hectolitres of pure alcohol.

2. Other subsidies. The Portuguese authorities shall complete Table 2 for each region

listing all other aid and support measures addressing the additional operating costs of

economic operators linked to the outermost status of the regions of Madeira and of

the Azores.

Table 2.

Aid /

support Period2

Target

sector3

Budget

amount

in

Annual

expenditure,

in EUR

Share of the

budget

attributable to

Estimated

number of

beneficiary

Notes8

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measure1 EUR4 (2019-2024)5 additional

costs

compensation6

firms7

[list]

Notes to the Table:

(1) Provide the denomination and the type of measure.

(2) Provide information on years covered by the measure.

(3) Provide information only for sector-oriented measures.

(4) Provide information on the overall budget of the measure and the sources of funding.

(5) Provide information on actual expenditure year by year in the monitoring period (2019-2024), where available.

(6) Provide approximate estimation, in % of the overall budget.

(7) Provide approximate estimation, where feasible.

(8) Provide any comments and clarifications.

3. Impact on public budget. The Portuguese authorities shall complete Table 3

providing the estimated total amount (in EUR) of tax not collected because of the tax

differentials applied.

Table 3.

2019 2020 2021 2022 2023 2024

Foregone tax

revenue

4. Impact on overall economic performance. The Portuguese authorities shall complete

Table 4 for each region providing any data demonstrating the impact of the reduced

excise duties on the socio-economic development of the regions. The indicators

required in the Table refer to the performance of the supported sector compared to

the general performance in the economy of Madeira and in the economy of the

Azores. If some of the indicators are not available, alternative reporting data shall be

included on the impact on overall economic performance allowing analysis of the

socio-economic impact.

Table 4.

Year2 2019 2020 2021 2022 2023 2024 Notes3

Regional gross value added

- In the supported

sector1

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Overall regional

employment

- In the supported

sector1

Number of active producers

- In the supported

sector1

Price level index – mainland

Portugal

Price level index of the

region

Number of tourists of the

region

Notes to the Table:

(9) Provide information on producers of rum, liqueurs and eaux-de-vie.

(10) The information may not be available for all the years listed.

(11) Provide comments and clarifications as deemed relevant.

5. Specifications of the regime. The Portuguese authorities shall complete Table 5 for

each product and for each of the regions of Madeira and of the Azores.

Table 5.

Quantity (in hlpa1) 2019 2020 2021 2022 2023 2024

Liqueurs production

Eaux de vie production

Rum production

Liqueurs dispatched to the mainland

Portugal

Liqueurs dispatched to other Member States

Liqueurs exported to third countries

Eaux de vie dispatched to the mainland

Portugal

Eaux de vie dispatched to other Member

States

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Eaux de vie exported to third countries

Rum dispatched to the mainland Portugal

Rum dispatched to other Member States

Rum exported to third countries

Notes to the Table:

1. Hectolitres of pure alcohol.

6. Irregularities. The Portuguese authorities shall provide information on any

investigations on administrative irregularities, in particular, on evasion from taxes or

smuggling, in the context of the application of the authorisation. They shall also

provide detailed information, including at least information on the nature of the case,

value and time period.

7. Complaints. The Portuguese authorities shall provide information on whether the

local, regional, or national authorities have received any complaints concerning the

application of the authorisation, either by beneficiaries or by non-beneficiaries.

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COM (2020) 240

Information Note

1. Proposal

Proposal for a council decision authorising Portugal to apply a reduced rate of excise duty on

certain alcoholic products produced in the autonomous regions of Madeira and the Azores

2. Date of Commission document

18 June 2020

3. Number of Commission document

COM (2020) 240

4. Number of Council document:

2020/0118(CNS)

5. Dealt with in Brussels by

Council Working Party on tax questions (Indirect Taxes)

6. Department with primary responsibility

The Department of Finance

7. Other Departments involved

The Office of the Revenue Commissioners

8. Background to, Short summary and aim of the proposal

The proposal concerns a Council Decision to replace the current Council Decision No

376/2014/EU of 12 June 2014 which allows for specific measures for the EU outermost

regions to be taken as it acknowledges that permanent and combined constraints severely

restrain their development and affect their economic and social situation. The current decision

authorises Portugal to apply excise duty rates reduced by up to 75% of the standard

Portuguese rates to rum and liqueurs produced and consumed in Madeira and liqueurs and

EN EN

eaux-de-vie produced and consumed in the Azores. The current decision is set to expire on 31

December 2020.

This proposal entails renewing the derogation until 2027, extending it to cover sales on the

Azores of locally produced rum with the rate of reduction maintained at 75%, and also

extending it to provide a 50% reduction in the rate of excise duty on sales on the Portuguese

mainland of all products covered.

9. Legal basis of the proposal

Article 349 of the Treaty on the Functioning of the European Union

10. Voting Method

Unanimity

11. Role of the EP

Consultation

12. Category of proposal

Technical

13. Implications for Ireland & Ireland's Initial View None

14. Impact on the public

None

15. Have any consultations with Stakeholders taken place or are there any plans to do

so?

As part of the external study supporting the analysis of the current regime, responses via

questionnaires, interviews and discussions were received from the relevant services of the

European Commission, the Portuguese authorities, the producers of the two outermost regions

and the Portuguese distributors.

16. Are there any subsidiarity issues for Ireland?

No as the proposal is specific to Portugal

17. Anticipated negotiating period

Unknown

18. Proposed implementation date

1st January 2021.

19. Consequences for national legislation

None

20. Method of Transposition into Irish law

N/A

21. Anticipated Transposition date

N/A.

EN EN

22. Consequences for the EU budget in Euros annually

None

23. Contact name, telephone number and e-mail address of official in Department with

primary responsibility

Gerry Kenny

Principal Officer

Indirect Taxes

Department of Finance

Tel: 01-6045670

Email: Gerry.kenny@finance.gov.ie

Date 16 July 2020