Judgment — ECLI:EU:T:2026:261
Date: 2026-04-15
Language of the case: Lithuanian
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary T-190/25 - 1 
Case T-190/25 
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: 
27 February 2025 
Referring court: 
Lietuvos Aukščiausiasis Teismas (Lithuania) 
Date of the decision to refer: 
27 February 2025 
Appellants on a point of law: 
‘Tabako lapai’ UAB 
A.K. 
Respondent in the appeal on a point of law: 
Lietuvos Respublikos generalinė prokuratūra 
  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-190/25 
 
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Subject matter of the main proceedings 
Classification, in criminal proceedings, of tobacco as smoking tobacco 
and as manufactured tobacco that is subject to excise duty. 
Subject matter and legal basis of the request for a preliminary 
ruling 
Interpretation of Article 5(1) of Council Directive 2011/64/EU of 
21 June 2011 on the structure and rates of excise duty applied to 
manufactured tobacco and of CN headings 2401 and 2403 set out in 
Commission Implementing Regulation (EU) 2017/1925 of 12 October 
2017 amending Annex I to Council Regulation (EEC) No 2658/87 on 
the tariff and statistical nomenclature and on the Common Customs 
Tariff. 
Questions referred for a preliminary ruling 
1. In determining whether the tobacco at issue in the present case is 
‘smoking tobacco’ within the meaning of Article 5(1) of [Council 
Directive 2011/64/EU of 21 June 2011 on the structure and rates of 
excise duty applied to manufactured tobacco], and in applying the 
definition in that provision and the relevant case-law of the Court of 
Justice of the European Union, may the national court also rely, in 
addition, on the provisions of [Council Regulation (EEC) No 2658/87 
of 23 July 1987 on the tariff and statistical nomenclature and on the 
Common Customs Tariff] relating to the classification of that tobacco 
TABAKO LAPAI 
 
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and on the Explanatory Notes to the Combined Nomenclature of the 
European Union (52016XC0406(03))? 
2. If the answer to the first question is in the affirmative: 
(1) must Article 5(1)(a) of Directive 2011/64 be interpreted as 
meaning that tobacco is to be regarded as ‘smoking tobacco’ 
even if that tobacco has been classified under [Combined 
Nomenclature (CN)] heading 2403 (manufactured tobacco) 
pursuant to [Commission Implementing Regulation (EU) 
2017/1925 of 12 October 2017 amending Annex I to Council 
Regulation (EEC) No 2658/87 on the tariff and statistical 
nomenclature and on the Common Customs Tariff] without 
the conditions for the smoking test described in the Annex to 
the Explanatory Notes to the Combined Nomenclature of the 
European Union being fulfilled, as in the present case? 
(2) how is CN heading 2401 (unmanufactured tobacco) to be 
interpreted for the purpose of classifying tobacco under 
Regulation 2017/1925, where the result of a smoking test 
carried out in accordance with the Explanatory Notes to the 
Combined Nomenclature is negative, but the tobacco is 
considered to be manufactured tobacco for the purposes of 
Article 5(1)(a) of Directive 2011/64? 
3. If the answer to the first question is in the negative, is such 
legislation, whereby smoking tobacco is defined, in essence, in the same 
way but is classified differently under Article 5(1)(a) of Directive 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-190/25 
 
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2011/64 and under the Combined Nomenclature, inconsistent with the 
general principle of legal certainty and the principle of nulla poena sine 
lege, as enshrined in Article 49(1) of the Charter of Fundamental Rights 
[of the European Union]? 
Provisions of European Union law and case-law of the Court of 
Justice relied on 
Council Directive 2011/64/EU of 21 June 2011 on the structure and 
rates of excise duty applied to manufactured tobacco (‘Directive 
2011/64’), Articles 2(1) and 5(1). 
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and 
statistical nomenclature and on the Common Customs Tariff (the 
version relevant to the present case is that of 1 June 2016), Article 1. 
Commission Implementing Regulation (EU) 2017/1925 of 12 October 
2017 amending Annex I to Council Regulation (EEC) No 2658/87 on 
the tariff and statistical nomenclature and on the Common Customs 
Tariff (‘Regulation 2017/1925’), Annex I, Part Two, Section IV, 
Chapter 24 (Combined Nomenclature (CN) headings 2401 and 2403). 
Explanatory Notes to the Combined Nomenclature of the European 
Union (52015XC0304(03)) (the Explanatory Notes to subheadings 2403 
19 10 and 2403 19 90 of CN heading 2403 are relevant to the present 
case). 
TABAKO LAPAI 
 
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Amended Explanatory Notes to the Combined Nomenclature of the 
European Union C/2016/2051 (52016XC0406(03)) (Annex A, 
‘Smoking test for tobacco and tobacco products’, is relevant to the 
present case). 
Explanatory Notes to the Combined Nomenclature of the European 
Union 2019/C 119/01. 
Charter of Fundamental Rights of the European Union, Article 49, 
Article 51(1), and Article 52(3), (4), (6) and (7). 
Explanations relating to the Charter of Fundamental Rights 
(Explanation on Article 49 of the Charter). 
Judgment of 6 April 2017, Eko-Tabak, C-638/15, 
ECLI:EU:C:2017:277, paragraphs 10, 17, 18, 24, 25, 30, 32, 33; 
judgment of 8 September 2016, Schenker, C-409/14, 
ECLI:EU:C:2016:643, paragraph 77; judgment of 27 April 2023, X and 
Inspecteur van de Belastingdienst Douane, C-107/22, 
ECLI:EU:C:2023:346, paragraph 19; judgment of 11 April 2019, Skonis 
ir kvapas, C-638/17, ECLI:EU:C:2019:316, paragraph 46; judgment of 
29 July 2024, Belgian Association of Tax Lawyers and Others, 
C-623/22, ECLI:EU:C:2024:639, paragraphs 36, 37, 39 to 41 and 42 to 
44; judgment of 14 September 2023, Vinal, C-820/21, 
ECLI:EU:C:2023:667, paragraph 31; judgment of 5 May 2022, BV, 
C-570/20, ECLI:EU:C:2022:348, paragraph 43. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-190/25 
 
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Judgment of 7 November 2002, Lohmann and Medi Bayreuth, C-260/00 
to C-263/00, ECLI:EU:C:2002:637, paragraph 26. 
Judgment of 12 June 2014, Lukoyl Neftohim Burgas, C-330/13, 
ECLI:EU:C:2014:1757, paragraphs 27 and 28. 
Provisions of national law relied on 
Lietuvos Respublikos baudžiamojo kodeksas (Criminal Code of the 
Republic of Lithuania; ‘the Criminal Code’) of 26 September 2000, 
Article 2 and Article 1992(1) (version of 23 June 2005), Article 202(1) 
(version of 21 July 2007). 
Lietuvos Respublikos akcizų įstatymas (Law of the Republic of 
Lithuania on excise duties; ‘the Law on excise duties’) of 30 October 
2001, Article 2(1) (version of 1 January 2016), Article 3(9), (27) and 
(38). 
Lietuvos Respublikos tabako, tabako gaminių ir su jais susijusių 
gaminių kontrolės įstatymas (Law of the Republic of Lithuania on the 
control of tobacco, tobacco products and related products; ‘the Law on 
tobacco control’) of 20 December 1995, Article 2(20). 
Succinct presentation of the facts and procedure in the main 
proceedings 
1 The private limited company ‘Tabako lapai’ (‘Tabako lapai’ UAB) was 
engaged in the import and export of raw tobacco in Lithuania, that is to 
TABAKO LAPAI 
 
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say, in wholesale trade in raw tobacco. The tobacco entered Lithuania 
and customs duties were paid at customs, with the indication that it was 
unmanufactured tobacco falling under CN code 2401. 
2 Certain quantities of raw tobacco were stored in the warehouse of 
‘Tabako lapai’ UAB. The tobacco delivered to the warehouse was dry 
and packed in boxes, and the raw tobacco had a moisture content of 
only 8% to 9%. Once unpacked from the boxes, the tobacco was 
shredded, divided and then placed in a humidifying cylinder, where it 
was treated with steam, humidified up to 22%, and flavourings were 
added. The tobacco was mixed, packaged in plastic bags of 20kg, 
transported out of Lithuania and sold to undertakings established in 
other Member States of the European Union. Some of those 
undertakings were suspected of engaging in fictitious trade with the aim 
of avoiding payment of value added tax and excise duty. 
3 In order to establish whether ‘Tabako lapai’ UAB possessed products 
(unmanufactured tobacco) authorised for its activities, or whether the 
tobacco found in its warehouse is nevertheless a product subject to 
excise duty (only manufactured tobacco having been regarded, during 
the relevant period, as a product subject to excise duty under the Law on 
excise duties), the Muitinės laboratorija (Customs laboratory) was 
tasked with carrying out an investigation. It stated in its conclusions that 
the vegetable material submitted for inspection is tobacco that has been 
partially or wholly stemmed or stripped and has been manufactured 
through drying and controlled humidification procedures (addition of 
glycerol) without further industrial processing. It also stated that, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-190/25 
 
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following a smoking test of the samples of tobacco leaves submitted, 
which was carried out in accordance with the method described in 
Annex A to the Explanatory Notes to the Combined Nomenclature, it 
was found that the tobacco is suitable for smoking, after the leaves have 
undergone a simple preparation, such as by means of crushing or hand-
cutting, and that it is therefore to be regarded as smoking tobacco (CN 
code 2403 19 90, TARIC code 2403 19 90 00). 
4 ‘Tabako lapai’ UAB and its director A.K. were charged under 
Article 1992(1) of the Criminal Code with the offence of unlawful 
possession of goods subject to excise duty and under Article 202(1) of 
the Criminal Code with the offence of unlawful exercise of a licensed 
business activity. By judgment of the first instance court of 18 January 
2023, both were acquitted of the above charges. The judgment of the 
appeal court 28 March 2024 set aside the part of the judgment of the 
first instance court relating to the acquittal and a new judgment of 
conviction was delivered. A.K. and ‘Tabako lapai’ UAB were 
sentenced, respectively, to a fine of EUR 30 000 and to the penalty of 
liquidation of the legal person for having unlawfully carried out, using 
tobacco processing equipment, a large-scale business activity without a 
licence and in breach of the provisions of the Law on excise duties and 
the Law on tobacco control. 
5 Those persons brought an appeal on a point of law against the judgment 
of the appeal court before the Lietuvos Aukščiausiasis Teismas 
(Supreme Court of Lithuania), which is the referring court. 
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Succinct presentation of the reasoning in the request for a 
preliminary ruling 
6 The referring court states that the national legislation defines both 
manufactured tobacco and smoking tobacco that is regarded as 
manufactured tobacco in identical terms to those used in Directive 
2011/64. Relying on the interpretation of Article 5(1)(a) of that directive 
given in the judgment of the Court of Justice in Case C-638/15, Eko-
Tabak, it considers that, in the case before it, the tobacco meets the 
definition of smoking tobacco set out in that provision. 
7 However, Regulation No 2658/87 and the Explanatory Notes to the 
Combined Nomenclature are also used to define smoking tobacco. 
Chapter 24 of Section IV of Part Two of Annex I to Regulation 
2017/1925, amending Council Regulation No 2658/87, provides that 
unmanufactured tobacco is to be classified under CN heading 2401, 
while other manufactured tobacco and manufactured tobacco substitutes 
are to be classified under CN heading 2403. According to the 
Explanatory Notes to the Combined Nomenclature, governing the 
smoking test for tobacco and tobacco products, which makes it possible 
to distinguish manufactured tobacco (tobacco ready for smoking 
without any further processing) of heading 2403 from unmanufactured 
tobacco of heading 2401, the sample is not allowed be cut in any way, 
broken, crushed, ground or otherwise split in the smoking test. Thus, the 
requirement not to undermine the integrity of the sample in any way is 
applicable. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-190/25 
 
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8 In Lithuania, in order to distinguish manufactured tobacco from 
unmanufactured tobacco, including in connection with excise duties, the 
smoking test is generally used and there is no alternative method. In the 
main proceedings, it is established that, in the smoking test, the 
investigator, contrary to what is indicated under the heading ‘Sample 
preparation’ in Annex A to the Explanatory Notes to the Combined 
Nomenclature, entitled ‘Smoking test for tobacco and tobacco 
products’, cut the submitted tobacco samples by hand. In the 
proceedings before the court, the investigator emphasised that the 
tobacco submitted for testing could not be put into a cigarette tube 
without cutting it and therefore could not be smoked. It follows that, for 
the purpose of applying the above provisions of Regulation 2017/1925 
and the Explanatory Notes to the Combined Nomenclature, such a 
tobacco product would fall under CN heading 2401 and would therefore 
be regarded as unmanufactured tobacco and thus as a product which is 
not subject to excise duty. 
9 Consequently, in accordance with Article 5(1)(a) of Directive 2011/64 
and the interpretation given by the Court of Justice, that tobacco would 
be regarded as smoking tobacco, whereas, under Regulation 2017/1925 
and the Explanatory Notes to the Combined Nomenclature, it would 
not. 
10 Even taking into account the EU legislature’s choice not to make a 
direct link between the regulation of excise duties on manufactured 
tobacco and the regulation of customs duties on goods, the different 
objectives of excise duties and customs duties, and any other reasons for 
TABAKO LAPAI 
 
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such a choice, the referring court harbours doubts as to whether it is 
justified and consistent with the objectives of the legislation in question 
as a whole, including the objective of ensuring the proper and uniform 
functioning of the internal market, for the key concept ‘capable of being 
smoked without further industrial processing’, which is worded 
similarly in the provisions governing excise duty and in the Combined 
Nomenclature, to be interpreted in different ways, thus attributing a 
different meaning, inter alia, to the same concept of smoking tobacco. 
Those doubts are also reinforced by the European Commission’s 
concerns with regard to discrepancies between the definition of tobacco 
as an item subject to excise duty and the classification under the 
Combined Nomenclature for customs duty purposes, and the legal 
uncertainty as to the treatment of certain products (Report COM(2015) 
621 final of 21 December 2015, paragraphs 3.3.2 and 4.1.2); Working 
Document SWD(2020) 32 final, part 3.1. 
11 In the view of the referring court, the question that arises in the present 
case is whether such legislation, whereby the same product – (potential) 
smoking tobacco – is referred to and defined, in connection with 
customs duties and excise duties, using identical concepts and wording, 
but may potentially be treated differently depending on the testing 
method applied, would be consistent with the requirements of the 
general principle of legal certainty. In addition, it should be noted that 
the tobacco testing method for distinguishing between manufactured 
(smoking) and unmanufactured tobacco is currently specified in only 
one piece of legislation – the Explanatory Notes to the Combined 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE T-190/25 
 
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Nomenclature. Thus, the use of identical wording to describe tobacco 
may give the persons concerned the impression that that testing method 
also applies to the testing of tobacco falling within the scope of 
Directive 2011/64 in connection with excise duties. That court therefore 
harbours doubts as to whether such legislation creates some degree of 
uncertainty, potentially hampering the ability of the persons concerned, 
even professionals in the field in question, to understand properly the 
requirements of the law and to adjust their conduct accordingly. Such 
understanding is crucial to guaranteeing the rights of individuals in 
criminal proceedings, taking into account the requirement for criminal 
law to be foreseeable and the principle of ‘nulla poena sine lege’. 
12 On the basis of those considerations, the Supreme Court of Lithuania 
seeks, by its first question referred for a preliminary ruling, to ascertain 
the relationship between the provisions of Directive 2011/64 and those 
of Regulation 2658/87. If the answer is in the affirmative, that is to say, 
that all the provisions of EU law referred to above should be relied on, it 
asks whether the Explanatory Notes to the Combined Nomenclature are 
also binding in the situation before it, even though they are merely for 
guidance, since they would require it to recognise that the result of the 
smoking test carried out in the present case is negative, that is to say, 
that it is not possible to smoke the sample because of a breach of the 
smoking test procedure (the sample was not allowed to be cut in any 
way) and to classify the tobacco as unmanufactured tobacco (CN 2401). 
In such a case, the question would then arise as to how to deal with a 
situation in which tobacco is regarded as unmanufactured tobacco under 
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Regulation 2658/87, but as manufactured tobacco under Directive 
2011/64. The third question referred for a preliminary ruling concerns 
the interpretation of the principle of legal certainty and of the principle 
of ‘nulla poena sine lege’ enshrined in Article 49(1) of the Charter of 
Fundamental Rights. 
13 The referring court states that the answers to the questions that it has 
referred for a preliminary ruling are of fundamental importance for the 
present case, since they would make it possible to establish the criteria 
for defining which goods are subject to excise duty and to resolve the 
issue of whether the accused are guilty.