Opinion of the Advocate General — ECLI:EU:C:1999:622
Date: 1999-12-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which 
affect the consumption of manufactured tobacco — Directive 92/80 — Manufactured 
tobacco other than cigarettes — Tax formula — Tax which is calculated ad valorem 
without being able to be below a minimum amount — Not permissible 
(Council Directive 92/80, Art. 3(1)) 
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SUMMARY — CASE C-365/98 
2. Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which 
affect the consumption of manufactured tobacco — Directive 92/80 — Manufactured 
tobacco other than cigarettes — Tax formula — Formula not laid down by the 
Directive — Discretion of the Member States — Scope — Possibility for taxable 
persons to rely on the relevant provision of the Directive — Duty of national courts 
(Council Directive 92/80, Art. 3(1)) 
1. Article 3(1) of Directive 92/80 on the 
approximation of taxes on manufac­
tured tobacco other than cigarettes, 
which lays down three tax formulas, 
at the Member States' choice, namely 
an ad valorem formula, a specific 
formula, by quantity, and a mixed 
formula, combining an ad valorem 
element and a specific element, must 
be interpreted as meaning that it pre­
cludes the levying on cigars or cigar­
illos of a tax which is calculated ad 
valorem without being able to be 
below a minimum amount. 
Such a tax formula is clearly different 
from the mixed excise duty in that it 
applies an ad valorem element and a 
specific element not cumulatively but 
alternatively according to a price 
threshold and constitutes, therefore, a 
tax formula which is not laid down in 
the abovementioned article. 
2. Article 3(1) of Directive 92/80 on the 
approximation of taxes on manufac­
tured tobacco other than cigarettes 
does not confer on persons chargeable 
to a tax on cigars or cigarillos, which is 
calculated ad valorem without being 
able to be below a minimum amount, 
the right to rely on it before a national 
court in order to avoid the application 
to them solely of the element of the tax 
formula relating to the levying of the 
minimum specific duty and, conse­
quently, to have solely an ad valorem 
tax levied. 
Although taxable persons can rely on 
Article 3(1) of the Directive which 
allows Member States a certain discre­
tion by leaving them the choice 
between three different tax formulae 
in order to avoid the application to 
them of a tax formula which goes 
beyond the discretion left to the 
national legislature, that provision does 
not confer on them the right to rely on 
it before a national court in order to 
avoid the application to them solely of 
the minimum levy. First, it is not the 
minimum specific duty taken sepa­
rately, but the whole tax formula which 
(see paras 23, 26-27, 29, 
operative part 1) 
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BRINKMANN 
goes beyond the discretion and, second, 
to consider that taxable persons may 
rely on Article 3(1) of the Directive in 
order to avoid solely the application of 
the minimum specific duty presupposes 
that that provision gives rise to the 
right for them to be taxed according to 
the ad valorem formula. However, that 
formula is only one of the options 
provided by the Directive, and the 
Directive cannot be interpreted as 
requiring the national court to take 
the place of the national legislature on 
which alone it is incumbent to choose 
the tax formula which it deems appro­
priate, within the framework defined in 
the abovementioned article. 
However, the national court, where it 
applies provisions of national law 
adopted either before or after a direc­
tive, must interpret them, as far as 
possible, in the light of the wording 
and the purpose of the Directive. 
(see paras 31, 33, 36-39, 41, 
operative part 2) 
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