Opinion of the Advocate General — ECLI:EU:C:2001:449
Date: 2001-09-13
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Internal taxation
Procedure: Action for failure to fulfil obligations - successful
Origin: France

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which 
affect the consumption of manufactured tobacco — Directive 95/59 — Deter-
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SUMMARY — CASE C-302/00 
mination of minimum retail selling prices for tobacco manufactured by the public 
authorities — Minimum reference price on all cigarettes sold under the same brand — 
Not permissible 
(Council Directive 95/59, as amended by Directive 1999/81, Art. 9(1)) 
2. Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which 
affect the consumption of manufactured tobacco — Directives 92/79 and 95/59 — 
Different rate of tax for dark- and light-tobacco cigarettes — Not permissible 
(Council Directives 92/79, Art. 2, and 95/59, as amended by Directive 1999/81, Arts 
8(2) and 16(5)) 
3. Tax provisions — Internal taxation — Prohibition of discrimination between 
imported products and similar domestic products — Different rate of tax for dark-
and light-tobacco cigarettes — Not permissible 
(EC Treaty, Art. 95 (now, after amendment, Art. 90 EC)) 
1. A Member State which maintains in 
force a system imposing a minimum 
reference price on all cigarettes sold 
under the same brand, even if the 
minimum price is not directly but indi­
rectly set by reference to the price 
charged for another product of the 
same brand, fails to fulfil its obli­
gations under Article 9(1) of Directive 
95/59 on taxes other than turnover 
taxes which affect the consumption of 
manufactured tobacco, as amended by 
Directive 1999/81, which provides that 
manufacturers and importers are free 
to determine the maximum retail sell­
ing prices for cigarettes. The fixing of a 
minimum retail selling price by the 
public authorities inevitably has the 
effect of limiting the freedom of pro­
ducers and importers to determine their 
maximum retail selling prices since, in 
any event, those prices cannot be lower 
than the compulsory minimum price. 
(see paras 14-17, 35, operative part) 
2. A Member State which maintains in 
force a system imposing a different rate 
of tax for dark- and light-tobacco 
cigarettes fails to fulfil its obligations 
under Articles 8(2) and 16(5) of Direc­
tive 95/59 on taxes other than turnover 
taxes which affect the consumption of 
manufactured tobacco, as amended by 
Directive 1999/81 and under Article 2 
of Directive 92/79 on the approxi-
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COMMISSION v FRANCE 
mation of taxes on cigarettes, which 
require the application of a single 
minimum global excise duty, identical 
for all cigarettes. 
(see paras 20, 34-35, operative part) 
3. A Member State which maintains in 
force a system imposing a different rate 
of tax for dark-tobacco cigarettes, 
which are almost exclusively manufac­
tured in that State, and light-tobacco 
cigarettes, which are primarily 
imported products, to the detriment 
of the latter, fails to fulfil its obli­
gations under the first paragraph of 
Article 95 of the Treaty (now, after 
amendment, the first paragraph of 
Article 90 EC). 
(see paras 29, 34-35, operative part) 
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