Opinion of the Advocate General — ECLI:EU:C:2015:463
Date: 2015-07-09
Language of the case: Finnish
Subject matter: Environment;Taxation;Free movement of goods;Approximation of laws;Quantitative restrictions;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary — Judgment of the Court (Fifth Chamber), 12 November 2015 1. Environment — Waste — Packaging and packaging waste — Directive 94/62 — No exhaustive harmonisation — Assessment of the compatibility of national legislation in the same area not only on the basis of the harmonising measure but also on the basis of primary law (European Parliament and Council Directive 94/62, Arts 1(1), 7 and 15) 2. Tax provisions — Internal taxation — Concept — Excise duty on certain beverage packaging — Exemption for packaging integrated into a deposit and return system — Included — Conditions (Arts 34 TFEU and 110 TFEU) 3. Tax provisions — Internal taxation — Prohibition of discrimination between imported products and similar domestic products — Excise duty on certain beverage packaging — Exemption for packaging integrated into a deposit and return system — Lawfulness — No infringement of Directive 94/62 on packaging and packaging waste (Art. 110 TFEU; European Parliament and Council Directive 94/62, Art. 1(1), 7 and 15) 4. State monopolies of a commercial character — Provisions of the Treaty — Scope — Rules relating to the existence and the operation of a monopoly — National monopoly on retail sales of alcoholic beverages — Legislation laying down derogations from that monopoly for persons holding a licence for the retail sale of alcoholic beverages — Licencing schemes which are separable from the operation of the monopoly — Inapplicability of Article 37 TFEU — Assessment in the light of Article 34 TFEU (Arts 34 TFEU and 37 TFEU) 5. State monopolies of a commercial character — Article 37 TFEU — Purpose — Obligation to adjust monopolies so as to exclude any discrimination as regards trade in goods from other Member States (Art. 37 TFEU) 6. Free movement of goods — Quantitative restrictions — Measures having equivalent effect — Legislation of a Member State under which a seller established in another Member State must hold a retail sale licence in order to import alcoholic beverages with a view to their retail sale to consumers residing in the first Member State — Lawfulness — Condition — Protection of public health and public order — Verification by the national court (Arts 34 TFEU and 36 TFEU) 1. Any national measure in an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not those of primary law. In that respect, in order to examine whether the harmonisation brought about by a directive is exhaustive in nature, the Court must interpret those provisions taking into account not only their wording but also the context in which they occur and the objectives of the rules of which they form part. The harmonisation carried out by Articles 1(1), 7 and 15 of Directive 94/62 on packaging and packaging waste is not exhaustive in nature. Accordingly, the national measures implementing those articles must be assessed not only in the light of the provisions of that directive, but also in the light of the relevant provision of primary law. According to Article 1(1) thereof, Directive 94/62 aims to harmonise national measures concerning the management of packaging and packaging waste in order, on the one hand, to prevent any impact thereof on the environment of all Member States as well as of third countries or to reduce such impact, thus providing a high level of environmental protection, and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the European Union. The second subparagraph of Article 7(1) of Directive 94/62 provides that the return and/or collection systems and the reuse or recovery systems must also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and must be designed so as to avoid barriers to trade or distortions of competition ‘in conformity with the Treaty’. Accordingly, that article does not bring about an exhaustive harmonisation, but rather refers to the relevant provisions of the Treaty. Article 15 of Directive 94/62 does not carry out any harmonisation but rather authorises the Council to adopt economic instruments to promote the implementation of the objectives set by that directive or, in the absence of such measures, authorises the Member States, acting ‘in accordance with … the obligations arising out of the Treaty’, to adopt measures to implement those objectives. Thus, that provision also requires the application of the relevant provisions of the Treaty. (see paras 40-43, 45-48) 2. A pecuniary charge constitutes internal taxation within the meaning of Article 110 TFEU if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria applied irrespective of the origin or destination of the products. As regards legislation which establishes an excise duty on certain beverage packaging amounting to EUR 0.51 per litre of packaged goods, but lays down an exemption from that excise duty for beverage packaging which is integrated into a functioning return system, the excise duty is, firstly, a pecuniary charge relating to a general system of internal dues applied systematically to a category of products, namely beverage packaging. In that regard, the Court has already held that waste for disposal must be regarded as ‘products’ within the meaning of Article 110 TFEU. Accordingly, an excise duty on certain beverage packaging must be regarded as being imposed on products for the purposes of that provision. Secondly, that excise duty is imposed on beverage packaging in accordance with objective criteria applied irrespective of the origin or destination of the packaging. That excise duty is imposed on both domestic beverage packaging and imported beverage packaging, if that packaging has not been integrated into a functioning return system. Consequently, such an excise duty on certain beverage packaging constitutes internal taxation within the meaning of Article 110 TFEU, which must be assessed in the light of Article 110 TFEU, and not in the light of Article 34 TFEU. (see paras 51-55) 3. Article 110 TFEU and Articles 1(1), 7 and 15 of Directive 94/62 on packaging and packaging waste must be interpreted as not precluding legislation of a Member State which imposes an excise duty on certain beverage packaging, but lays down an exemption for packaging integrated into a functioning return system. The potential difficulties encountered by a small trader engaged in distance sales in joining a functioning return system or setting up such a system do not show a difference in treatment between beverage packaging from other Member States and similar domestic products, within the meaning of the first paragraph of Article 110 TFEU. It cannot be inferred from such difficulties that beverage packaging from other Member States is less likely to enjoy the exemption laid down for packaging integrated into a functioning return system and, consequently, is more heavily taxed than similar national products. In addition, the second subparagraph of Article 7(1) of Directive 94/62, which provides that the systems of return, collection, reuse or recovery of used packaging and/or packaging waste are to apply to imported products under non-discriminatory conditions and are to be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty, relates to the operation of such systems and not the operation of a system of excise duty on certain beverage packaging. Lastly, legislation establishing an excise duty on certain beverage packaging may be regarded as a measure adopted by a Member State and intended to implement the objectives set by Directive 94/62, within the meaning of Article 15 thereof. Such legislation, which implements the polluter-pays principle, since the excise duty must be paid by traders which do not join a beverage packaging return system, encourages traders to join a beverage packaging return system or create their own return system, in order to avoid paying that excise duty. (see paras 63, 69, 70, 73, 74, 76, operative part 1) 4. See the text of the decision. (see paras 86-92) 5. Although it does not require total abolition of State monopolies of a commercial character, Article 37 TFEU requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States. Accordingly, Article 37 TFEU requires that the organisation and operation of the monopoly be arranged so as to exclude any discrimination between nationals of Member States as regards the conditions under which goods are procured and marketed, so that trade in goods from other Member States is not placed at a disadvantage, in law or in fact, in relation to that in domestic goods and that competition between the economies of the Member States is not distorted. (see paras 94, 95) 6. Articles 34 TFEU and 36 TFEU must be interpreted as not precluding legislation of a Member State under which a seller established in another Member State must hold a retail sale licence in order to import alcoholic beverages with a view to their retail sale to consumers residing in the first Member State, where that seller, or someone acting on his behalf, transports those beverages, provided that that legislation is appropriate for securing the attainment of the objective pursued, in the present case the protection of health and public policy, that the objective in question could not be achieved with at least an equivalent level of effectiveness by less restrictive methods and that the legislation does not constitute a means of arbitrary discrimination or a disguised restriction on trade between the Member States, which it is for the referring court to verify. (see para. 129, operative part 2)