Opinion of the Advocate General — ECLI:EU:C:2021:855
Date: 2021-10-14
Language of the case: Italian
Subject matter: Right of establishment;Principles, objectives and tasks of the Treaties;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-452/20 – 1 
Case C-452/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
23 September 2020 
Referring court: 
Consiglio di Stato (Council of State, Italy) 
Date of the decision to refer: 
5 August 2020 
Appellant: 
PJ 
Respondents: 
Agenzia delle dogane e dei monopoli – Ufficio dei monopoli per la 
Toscana 
Ministero dell’Economia e delle Finanze 
  
Subject matter of the main proceedings 
Appeal by a natural person who owns a retail outlet for State monopoly goods 
against a judgment of the Tribunale Amministrativo Regionale per la Toscana 
(Regional Administrative Court, Tuscany, Italy) [(‘the TAR’)] dismissing his 
action for annulment of the decision of the Agenzia delle dogane e dei monopoli 
(Customs and Monopolies Agency, Italy) suspending his trading licence for 
15 days on the ground that cigarettes had been sold to a minor. 
Subject matter and legal basis of the reference 
Compatibility of a provision of national law transposing Directive 2014/40/EU of 
the European Parliament and of the Council of 3 April 2014 on the approximation 
of the laws, regulations and administrative provisions of the Member States 
concerning the manufacture, presentation and sale of tobacco and related products 
and repealing Directive 2001/37/EC (‘Directive 2014/40’) with Article 23(3) and 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-452/20 
 
2  
recitals 21 and 60 of that directive, as well as with Article 5 TEU. Alleged 
disproportionate nature of the penalty consisting of the 15-day suspension of the 
trading licence for a tobacconist’s retail outlet, imposed on the holder of that 
licence for selling cigarettes to a minor. 
Question referred for a preliminary ruling 
Does the second paragraph of Article 25 of regio decreto 24 dicembre 1934, n. 
2316 (Royal Decree No 2316 of 24 December 1934), as replaced by Article 24(3) 
of decreto legislativo n. 6 del 2016 (Legislative Decree No 6 of 2016) (transposing 
Directive 2014/40/EU on the approximation of the laws, regulations and 
administrative provisions of the Member States concerning the manufacture, 
presentation and sale of tobacco and related products and repealing Directive 
2001/37/EC) – inasmuch as it provides that ‘anyone who sells or supplies tobacco 
products or electronic cigarettes or refill containers containing nicotine or novel 
tobacco products to minors under the age of 18 shall be liable to a financial 
administrative penalty of EUR 500 to EUR 3 000 and a 15-day trading licence 
suspension’ – infringe the EU principle of proportionality and the precautionary 
principle, as set out in Article 5 TEU, in Article 23(3) of Directive 2014/40, and in 
recitals 21 and 60 of that directive, by giving precedence to the precautionary 
principle without mitigating it with the principle of proportionality, and thus 
disproportionately sacrificing the interests of economic operators to the protection 
of the right to health, thereby failing to ensure that a proper balance is struck 
between the different fundamental rights and, what is more, doing so by means of 
a penalty that, contrary to recital 8 of the directive, does not effectively pursue the 
objective of discouraging smoking prevalence among young people? 
Provisions of EU law relied on 
Article 5 TEU  
Directive 2014/40: recitals 8, 21 [and] 60; Article 1, last paragraph; Article 23(3). 
Provisions of national law relied on 
Regio decreto 24 dicembre 1934, n. 2316 – Approvazione del testo unico delle 
leggi sulla protezione ed assistenza della maternità ed infanzia (Royal Decree 
No 2316 of 24 December 1934 – Approval of the consolidated law on the 
protection and assistance of motherhood and childhood), as replaced by 
Article 24(3) of decreto legislativo n. 6 del 2016 (Legislative Decree No 6 of 
2016): the second paragraph of Article 25 (‘the provision at issue’): ‘Anyone who 
sells or supplies tobacco products or electronic cigarettes or refill containers 
containing nicotine or novel tobacco products to minors under the age of 18 shall 
be liable to a financial administrative penalty of EUR 500 to EUR 3 000 and a 15-
AGENZIA DELLE DOGANE E DEI MONOPOLI AND MINISTERO DELL’ECONOMIA E DELLE FINANZE 
 
3 
day trading licence suspension. For repeat offences, a financial administrative 
penalty of EUR 1 000 to EUR 8 000 shall apply and the trading licence shall be 
revoked’. 
Legge 9 luglio 2015, n. 114 – Delega al Governo per il recepimento delle direttive 
europee e l’attuazione di altri atti dell’Unione europea – Legge di delegazione 
europea 2014 (Law No 114 of 9 July 2015 – Delegation to the government of the 
transposition of EU directives and the implementation of other acts of the 
European Union – European Delegation Law 2014) 
Legge 24 dicembre n. 234 – Norme generali sulla partecipazione dell’Italia alla 
formazione e all’attuazione della normativa e delle politiche dell’Unione europea 
(Law No 234 of 24 December 2012 – General rules on Italy’s participation in the 
formation and implementation of EU legislation and policies) 
Succinct presentation of the facts and procedure in the main proceedings 
1 PJ (‘the appellant’) is the owner of a retail outlet for State monopoly goods. In 
February 2016, following an inspection, the Customs and Monopolies Agency 
discovered that the appellant had sold cigarettes to a minor. It therefore fined the 
appellant EUR 1 000 and suspended his trading licence for 15 days, in accordance 
with the provision at issue. The appellant paid the financial administrative penalty 
imposed on him and contested the licence suspension and related measures before 
the TAR. 
2 By judgment of 27 November 2018, the TAR dismissed the action. In particular, it 
considered the request that a reference for a preliminary ruling be made on the 
ground that the provision at issue was contrary to EU law to be unfounded. 
3 The appellant brought an appeal against that judgment before the Consiglio di 
Stato (Council of State, Italy) (‘the referring court’), resubmitting the arguments 
made before the TAR. 
4 The Customs and Monopolies Agency and the Ministero dell’Economia e delle 
Finanze (Ministry of Economic Affairs and Finance, Italy) entered an appearance 
in the proceedings and requested that the appeal be dismissed. 
Essential arguments of the parties in the main proceedings 
5 The appellant draws attention to the unreasonable and disproportionate nature of 
the ancillary administrative penalty of the suspension, imposed for a single first-
time offence in addition to the financial administrative penalty. He submits that 
the provision at issue does not effectively pursue the primary objective of 
Directive 2014/40, which is to discourage smoking prevalence among young 
people, given that it adversely affects the economic activity of the offender rather 
than actively discouraging smoking. Moreover, it infringes the principle of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-452/20 
 
4  
proportionality, as set out in Article 5 TEU and in Article 23(3) of Directive 
2014/40, and as is also clear from an opinion of XIV Commissione (Politiche 
dell’Unione europea) della Camera dei Deputati (Committee XIV (EU Policy), 
Chamber of Deputies, Italy), which found that the penalty system applicable to 
retailers did not comply with the principles of proportionality and effectiveness, 
both because of the excessive severity of the penalties laid down, and because 
retailers are not always able to ascertain the buyer’s age. 
6 In particular, according to the appellant, in transposing Directive 2014/40, the 
Italian legislature did not apply the principle whereby Member States may not 
impose obligations and restrictions on citizens’ freedoms protected by EU law to a 
greater – that is to say, disproportionate – extent than is strictly necessary to attain 
the objective in the public interest that that authority is required to pursue. 
Conversely, the objective of reducing smoking prevalence among young people 
could have been pursued with less onerous and less restrictive penalties, by means 
of a progressive, tiered penalty system, capable of ensuring that an offender would 
receive a penalty that would not have the effect of jeopardising his or her survival 
as an economic operator from the first offence. 
7 According to the appellant, the provision at issue gave precedence to the 
precautionary principle in order to protect the right to health of minors, thus 
infringing the principle of proportionality regarding the effects of such protection 
on the right to carry on a business – without, moreover, providing appropriate 
measures to attain that predefined objective. In that regard, the appellant submits 
that, in the regulatory system of the European Union, the principle of 
proportionality mitigates the precautionary principle which, in order to ensure the 
highest level of protection, allows competing economic interests to be sacrificed 
entirely. He argues that the Italian legislature has introduced penalties that go far 
beyond merely offsetting the economic advantage obtained from the sale of 
tobacco to minors and the ‘appropriate measure’ to prevent the sale of products 
harmful to the health of minors. This distorts the necessary balance between the 
various fundamental rights protected by EU law and infringes the prohibition on 
‘gold-plating’ – that is to say, the prohibition on introducing additional constraints 
when transposing EU legislation. 
8 In support of his argument, the appellant cites the following provisions: Article 5 
TEU, according to which ‘under the principle of proportionality, the content and 
form of Union action shall not exceed what is necessary to achieve the objectives 
of the Treaties’; recital 60 of Directive 2014/40, which requires the Member 
States, when transposing it, to comply with the principle of proportionality; 
Article 23(3) of that directive, according to which ‘penalties applicable to 
infringements of the national provisions adopted pursuant to this Directive … 
shall be effective, proportionate and dissuasive’ and ‘any financial administrative 
penalty that may be imposed as a result of an intentional infringement may be 
such as to offset the economic advantage sought through the infringement’; [and] 
recital 21 of the directive, according to which ‘Member States should be 
AGENZIA DELLE DOGANE E DEI MONOPOLI AND MINISTERO DELL’ECONOMIA E DELLE FINANZE 
 
5 
encouraged to prevent sales of such products to children and adolescents, by 
adopting appropriate measures’. 
Succinct presentation of the reasons for the reference 
9 Although the referring court considers the question referred to be material to the 
decision on the dispute before it, since the contested measure was adopted in 
direct application of the provision at issue, it finds that there is no conflict with 
EU law. 
10 Indeed, it is clear from Directive 2014/40, and in particular recitals 8 and 21 and 
the last paragraph of Article 1, that the right to health, especially that of younger 
generations, takes precedence over the retailer’s right to carry on a business. In 
that regard, the classification of tobacco not as an ordinary commodity, the 
facilitation of the smooth functioning of the internal market on the basis of a high 
level of health protection, especially for young people, and, at the same time, the 
protection of health, especially to reduce smoking prevalence among young 
people, together with the encouragement to prevent sales of such products to 
children and adolescents by adopting appropriate measures that lay down and 
enforce age limits, are, in the opinion of the referring court, unequivocal. 
11 Furthermore, the precedence that the directive has given to the right to health, 
especially of young people, is the key to its interpretation so as to put into effect 
and define the principle of proportionality of the penalty, in the sense that 
determining the existence or otherwise of proportionality depends on whether the 
penalty in question is likely to act as an effective and dissuasive instrument. 
12 Moreover, Article 23(3) of Directive 2014/40 empowers the Member States to lay 
down rules on penalties, requiring only that they be effective, proportionate and 
dissuasive. It is precisely because the right to health of minors takes precedence 
that the proportionality of the penalty imposed on the business owner can be 
assessed according to whether it is likely to be dissuasive, and therefore effective, 
in view of the aim of prohibiting minors from using tobacco products. In 
establishing a principle for the financial penalty imposed for infringement, that 
provision adds only that the penalty ‘may be such as to offset the economic 
advantage sought through the infringement’; this principle does not exclude non-
financial administrative penalties, but allows only the possibility for the amount of 
the penalty and the economic advantage obtained to be offset. 
13 The referring court considers that, within the framework of EU law described 
above, which has reconciled conflicting rights in favour of the right to health of 
minors and has empowered each Member State to translate the instrument for 
attaining the objective sought into a dissuasive and effective penalty, and one that 
is proportionate to the business owner’s right to carry on the business of selling 
tobacco products, the decisions made by the Italian legislature appear fully 
consistent with EU law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-452/20 
 
6  
14 In particular, the referring court mentions Delegation Law No 114 of 2015, 
Article 6(2)(b) of which identifies the obligation to ‘take into account the specific 
nature of tobacco products, with the aim of preventing oversupply and the 
prevalence of smoking among minors’, while referring to the domestic legislation 
laying down general principles for the transposition of EU law on penalties 
(Article 32(1)(d) of Law No 234 of 2012). By linking the type of penalty to the 
level of protection of the interests at stake, that provision introduced the ancillary 
penalty of suspension where necessary to ensure compliance with the obligations 
imposed. The Italian legislature, rightly giving precedence, with the provision at 
issue, to the prevailing right under EU law, introduced the 15-day suspension for a 
first-time offence, with no minimum period and a possible maximum of six 
months. 
15 In the opinion of the referring court, the penalty thus seems proportionate to the 
right sacrificed by the business owner, being dissuasive and effective for the 
attainment of the predefined objective, and thus preventively protecting the 
overriding interest at stake. Moreover, it does not infringe the precautionary 
principle as construed by the case-law of the Court of Justice (see judgment of 
9 June 2016, Pesce and Others (C-78/16) and Serinelli and Others (C-79/16)). 
16 In conclusion, according to the referring court, in line with the principles of EU 
law mentioned and the criteria for interpretation deemed necessary on the basis of 
the principles affirmed by the provisions of that law, assessing the proportionality 
of the penalty of suspension of the licence in the light of the precedence of the 
right to health of minors and the need for the penalty to be dissuasive in order for 
the protection to be effective, the retailer’s economic loss is reasonably justified 
by reconciling rights that enjoy different protection in the tobacco trade. 
17 According to the referring court, it does not appear that the Court of Justice has 
specifically addressed the rules laid down in Directive 2014/40 in the light of the 
foregoing. Therefore, in the absence of a specific precedent, no reference can be 
made to the ‘acte clair’ doctrine, particularly in the light of an express request by a 
party, the relevance of the question referred and the general applicability of the 
duty of the courts of last instance to raise a question for a preliminary ruling. 
18 Accordingly, while mindful of the groundlessness of the appellant’s claim and of 
the unjustified extension of the duration of the proceedings pending an answer to 
the question referred for a preliminary ruling, for the sole purpose of fulfilling the 
duty to make a reference for a preliminary ruling as a national court of last 
instance, and in view of the fact that failure to fulfil that duty gives rise to direct 
liability of a substantially objective nature on the part of the Member State 
(judgments of 30 September 2003, Köbler, C-224/01, [EU:C:2003:513;] of 
13 June 2006, Traghetti del Mediterraneo, C-173/03, [EU:C:2006:391; and] of 
24 November 2011, Commission v Italy, C-379/10, [EU:C:2011:775]), as well as 
civil liability on the part of the judge, the referring court refers the question to the 
Court of Justice of the European Union for a preliminary ruling on the basis of the 
appellant’s submission.