Opinion of the Advocate General — ECLI:EU:C:1998:20
Date: 1998-01-22
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgmen t 
1. Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which affect the 
consumption of manufactured tobacco — Directive 79/32 — Cigarettes — Concept — Smoking 
tobacco — Concept 
(Council Directive 79/32, Arts 3(1) and 4(1)) 
2. Community law — Infringement by a Member State — Implementation of a directive — 
Obligation to pay compensation for damage caused to individuals — Conditions 
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SUMMARY — CASE C-319/96 
3. Tax provisions — Harmonisation of laws — Taxes other than turnover tax which affect the 
consumption of manufactured tobacco — Directive 79/32 — Rolls of tobacco wrapped in 
porous cellulose classified as cigarettes — Classification arising as a result of erroneous inter­
pretation of the directive — Obligation to pay compensation for damage caused to individuals 
— Sufficiently serious breach — None 
(Council Directive 79/32, Arts 3(1) and 4(1)) 
1. Articles 3(1) and 4(1) of Second Directive 
79/32 on taxes other than turnover taxes 
which affect the consumption of manufac­
tured tobacco, in the version in force in 
May 1990, are to be interpreted as meaning 
that rolls of tobacco 'wrapped in porous 
cellulose which have to be inserted into 
cigarette-paper tubes to be smoked must 
be deemed to be smoking tobacco within 
the meaning of Article 4(1) of that direc­
tive. Such rolls of tobacco, not being 
capable of being smoked as they are, do 
not correspond to the definition of a ciga­
rette within the meaning of that directive. 
2. Community law recognises a right to repa­
ration for individuals who sustain damage 
as a result of a breach of Community law 
for which a Member State can be held 
responsible where three conditions are met: 
the rule of law infringed must be intended 
to confer rights on individuals; the breach 
must be sufficiendy serious; and there must 
be a direct causal link between the breach 
of the obligation resting on the State and 
the damage sustained by the injured par­
ties. Although failure to take any measure 
to transpose a directive in order to achieve 
the result it prescribes within the period 
laid down for that purpose constitutes per 
se a serious breach of Community law, it 
must be determined, where the national 
authorities gave immediate effect to the 
provisions of the directive, whether the 
authorities committed a sufficiently serious 
breach of those provisions, having regard 
to the degree of clarity and precision of 
those provisions. 
3. A Member State whose authorities, in 
interpreting Articles 3(1) and 4(1) of Second 
Directive 79/32 on taxes other than turn­
over taxes which affect the consumption 
of manufactured tobacco, erroneously clas­
sified a product such as rolls of tobacco 
wrapped in porous cellulose as a cigarette 
and did not suspend the operation of the 
decision adopted, is not bound by Com­
munity law to compensate the manufac­
turer for the damage sustained by the latter 
as a result of that erroneous decision. 
Since the relevant provisions of the direc­
tive are open to a number of perfectly ten­
able interpretations, the national authori­
ties did not commit a sufficiently serious 
breach of those provisions since the inter­
pretation given to them was not manifestly 
contrary to the wording of the directive or 
in particular to the aim pursued by it. 
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