Opinion of the Advocate General — ECLI:EU:C:2016:822
Date: 2016-10-27
Language of the case: Portuguese
Subject matter: Taxation
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Portugal

Summary — Judgment of the Court (Fifth Chamber), 29 June 2017 Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 – Chargeability of excise duties – Conditions for levy — National measure intended to prevent the release for consumption in excessive quantities of packets of cigarettes at the end of the year in anticipation of an increase in excise duty –Temporal limit on the marketing and sale of packets of cigarettes — Lawfulness — Measure applicable in the absence of any increase in excise duty — Breach of principle of proportionality (Council Directive 2008/118, Recital 31 and Arts 9, first para., 11 and 39(3), first para.) By providing that cigarettes released for consumption in a given year may no longer be marketed or sold to the public after the end of the third month of the year following where there is no increase in the excise duty on those products taking effect the following year, a Member State fails to fulfil its obligations under Article 9, first paragraph, of Directive 2008/118/EC concerning the general arrangements for excise duty and repealing Directive 92/12. The prevention of possible tax evasion, avoidance and abuse is an objective pursued by Directive 2008/118, as is clear from recital 31 and Article 11 and Article 39(3), first paragraph thereof. The release for consumption in excessive quantities of packets of cigarettes at the end of the year in anticipation of an increase in excise duty constitutes a form of abuse that the Member States are entitled to prevent by the appropriate measures. Since Article 9, first paragraph, of Directive 2008/118 refers to the national law in force on the date on which the excise duties fall due, in order to determine the conditions of chargeability and the rate of excise duty, such a right recognised to the Member States necessarily implies that they have the possibility to adopt such measures. However, in the exercise of the powers conferred on them by EU law, the Member States must comply with the general principles of law among which are, in particular, the principle of proportionality. That requires the Member States to employ means which, whilst enabling them effectively to attain the objective pursued by their domestic laws, are the least detrimental to the objectives and the principles laid down by the relevant EU legislation. A measure intended to prevent release for consumption in excessive quantities of packets of cigarettes at the end of the year in anticipation of an increase in excise duty is appropriate to achieve legitimate objectives that are combating tax evasion and tax avoidance and the protection of public health. That measure also helps to ensure healthy competition. Since such a measure applies in all cases, including in the case in which the rate of excise duty decreases or stays the same, it does not appear necessary to achieve the objectives pursued. Those objectives could be achieved in a manner which is less restrictive and just as appropriate if the contested measure applied only in the case of an increase in the rate of excise duty on cigarettes. (see paras 59-62, 64, 67, 68, 78, 79, 99, operative part)