Opinion of the Advocate General — ECLI:EU:C:2016:288
Date: 2016-04-21
Language of the case: Dutch
Subject matter: Competition;Agreements, decisions and concerted practices;Taxation;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Sixth Chamber), 21 September 2016 1. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Need to provide the Court with sufficient information on the factual and legislative context (Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Interpretation of national legislation (Art. 267 TFEU) 3. Tax provisions — Harmonisation of laws – Taxes other than turnover taxes which affect the consumption of manufactured tobacco – National legislation prohibiting the sale of manufactured tobacco by retailers at prices lower than those indicated on the revenue stamp — Whether permissible — Condition (Council Directive 2011/64, Art. 15(1)) 4. Free movement of goods — Quantitative restrictions — Measures having equivalent effect – National legislation prohibiting the sale of manufactured tobacco by retailers at prices lower than those indicated on the revenue stamp – Measure regulating the selling arrangements in a non-discriminatory manner – Inapplicability of Article 34 TFEU (Art. 34 TFEU) 5. Competition — EU rules — Obligations of the Member States – Prohibition on introducing or maintaining in force measures undermining the effectiveness of those rules (Art. 4(3) TEU; Art. 101 TFEU) 6. Competition — EU rules — Obligations of the Member States – National legislation prohibiting the sale of manufactured tobacco by retailers at prices lower than those indicated on the revenue stamp — Whether permissible (Art. 4(3) TEU; Art. 101 TFEU) 1. See the text of the decision. (see para. 14) 2. See the text of the decision. (see para. 15) 3. Article 15(1) of Directive 2011/64, on the structure and rates of excise duty applied to manufactured tobacco, must be interpreted as not precluding national legislation which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products, in so far as that price has been freely determined by the manufacturer or importer. The first subparagraph of Article 15(1) of Directive 2011/64 is designed to ensure that the application of the rules relating to the excise duty on tobacco products does not harm the imperative needs of competition which imply, as is clear from recital 10 of that directive, a system of prices, formed freely by the producers or importers, for all groups of manufactured tobacco. Consequently, since the national legislation is not intended to govern the setting of the price indicated by the producer or importer on the revenue stamp and does not concern in any other manner the application of the excise duty on tobacco products, it is not encompassed by the situation referred to in Article 15(1) of Directive 2011/64. That article does not, therefore, preclude such legislation. (see paras 26, 28, 29, 31, operative part 1) 4. Article 34 TFEU must be interpreted as not precluding national legislation which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products, in so far as that price has been freely determined by the importer. Such legislation must be regarded as concerning selling arrangements. First, that legislation applies to all relevant traders operating within the national territory. Secondly, since that legislation does not concern the determination by importers of the products from other Member States of the price indicated on the revenue stamp and those importers remain free to set that price, it is not of such a kind as to prevent access to a Member State’s market of tobacco products from another Member State or to impede access any more than it impedes the access of domestic tobacco products. (see paras 37-39, 41, operative part 2) 5. See the text of the decision. (see paras 43, 44) 6. Article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as not precluding national legislation which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products. Such legislation neither requires nor encourages the adoption of agreements between suppliers and retailers, but is self-sufficient since the direct effect of the legislation is to set the price charged by retailers. In addition, it does not delegate to private operators responsibility for setting the price charged by retailers or for taking other decisions affecting the economic sphere. (see paras 46, 47, 49, operative part 3)