Opinion of the Advocate General — ECLI:EU:C:2023:718
Date: 2023-09-28
Language of the case: German
Subject matter: Taxation;Approximation of laws;Internal taxation;Excise duties
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-336/22 – 1 
Case C-336/22 
Request for a preliminary ruling 
Date lodged: 
23 May 2022 
Referring court: 
Finanzgericht Düsseldorf (Germany) 
Date of the decision to refer: 
29 April 2022 
Applicant: 
f6 Cigarettenfabrik GmbH & Co. KG 
Defendant: 
Hauptzollamt Bielefeld 
  
FINANZGERICHT DÜSSELDORF (Finance Court, Düsseldorf, Germany) 
O R D E R 
In the case of 
f6 Cigarettenfabrik GmbH & Co. KG, […] Dresden, 
- Applicant -   
[…] 
v 
 
 
- Defendant -   
concerning    tobacco tax 
 
Hauptzollamt Bielefeld (Main Customs Office, 
Bielefeld) […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 4. 2022 – CASE C-336/22 
 
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the 4th Chamber […] 
[…] 
[…] ordered as follows: 
The proceedings are stayed. 
The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the second paragraph of 
Article 267 of the Treaty on the Functioning of the European Union: 
1. Must Article 1(2) of Council Directive 2008/118/EC of 16 December 
2008 concerning the general arrangements for excise duty and 
repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12), as amended by 
Council Directive (EU) 2019/475 of 18 February 2019 (OJ 2019 L 83, 
p. 42), be interpreted as precluding national legislation of a Member 
State on the levying of tobacco tax on heated tobacco which provides, 
with regard to the calculation of the tax, that, in addition to the tax rate 
for pipe tobacco, a supplementary tax which is 80 per cent of the tax 
amount for cigarettes less the tax amount for pipe tobacco is to be 
levied? 
2. If the supplementary tax on heated tobacco is not another indirect tax 
on excise goods for specific purposes within the meaning of 
Article 1(2) of Directive 2008/118: Must Article 14(3) of Council 
Directive 2011/64/EU of 21 June 2011 on the structure and rates of 
excise duty applied to manufactured tobacco (OJ 2011 L 176, p. 24) be 
interpreted as precluding national legislation of a Member State on the 
levying of tobacco tax on heated tobacco which provides, with regard 
to the calculation of the tax, that, in addition to the tax rate for pipe 
tobacco, a supplementary tax which is 80 per cent of the tax amount 
for cigarettes less the tax amount for pipe tobacco is to be levied? 
3. If the supplementary tax on heated tobacco is not another indirect tax 
on excise goods for specific purposes within the meaning of 
Article 1(2) of Directive 2008/118: Must point (b) of the first 
subparagraph of Article 14(1) and point (c) of the first subparagraph of 
Article 14(2) of Council Directive 2011/64/EU of 21 June 2011 on the 
structure and rates of excise duty applied to manufactured tobacco (OJ 
2011 L 176, p. 24) be interpreted as precluding national legislation of a 
Member State on the levying of tobacco tax on heated tobacco which 
provides, with regard to the calculation of the tax, that that tax is to be 
determined according to an ad valorem tax rate and a specific tax rate 
based on the weight and given number of rolls of tobacco? 
This order is not open to appeal. 
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G r o u n d s 
I. 
1 The applicant manufactures tobacco products. It developed rolls of tobacco that 
are inserted into a battery-powered heating device and heated. The rolls of tobacco 
consist of compressed tobacco produced from tobacco dust. They are wrapped in a 
co-laminated paper with an aluminium coating so that they cannot be lit. They are 
not burned in the device but heated by electrical energy below their combustion 
temperature. The result is an aerosol containing nicotine, which is inhaled by the 
consumer through a mouthpiece. By heating the tobacco at a temperature below 
its combustion temperature, the content of harmful substances in the vapour 
produced is supposed to be considerably reduced compared with conventional 
cigarette smoke. 
2 In Germany, such heated rolls of tobacco were taxed only at the rate for pipe 
tobacco until 31 December 2021. With effect from 1 January 2022, in accordance 
with the first sentence of point 5 of Paragraph 2(1) of the Law on excise duty on 
tobacco of 15 July 2009 […], in the version of Article 1 of the Law of 10 August 
2021 […] (‘the TabStG’), in addition to the tax rate for pipe tobacco, a 
supplementary tax equating to 80 per cent of the tax rate for cigarettes minus the 
tax amount for pipe tobacco is to be levied on heated tobacco. 
3 On 2 December 2021, the applicant submitted to the defendant Main Customs 
Office a tax return for tax markings to be used for heated rolls of tobacco as from 
1 January 2022. In that tax return, it calculated the tobacco tax to be paid by it at 
EUR 6 281.46. Of that amount, a sum of EUR 2 181.02 was attributable to the tax 
calculated according to the tax rate for smoking tobacco and a sum of 
EUR 4 100.44 to the supplementary tax. 
4 By its action brought against the tax return, the applicant submits the following: 
The levying of the supplementary tax on heated tobacco is contrary to Article 1(2) 
of Council Directive 2008/118/EC of 16 December 2008 concerning the general 
arrangements for excise duty and repealing Directive 92/12/EEC […], as amended 
by Council Directive (EU) 2019/475 of 18 February 2019 […] (Directive 
2008/118). The supplementary tax is not a permissible other indirect tax. Rather, 
the supplementary tax constitutes a further tax on tobacco and therefore an excise 
duty. The supplementary tax is also not levied for specific purposes, because the 
proceeds of the tax are not used to cover health-related expenditure. In accordance 
with recital 2 of Council Directive 2011/64/EU of 21 June 2011 on the structure 
and rates of excise duty applied to manufactured tobacco […] (Directive 2011/64), 
the protection of health is already an objective of the harmonisation of excise duty 
on tobacco products. 
5 Furthermore, the levying of the supplementary tax infringes Article 14(3) of 
Directive 2011/64, because tobacco products may not be treated differently within 
the group of other smoking tobaccos. The levying of the supplementary tax is also 
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contrary to point (b) of the first subparagraph of Article 14(1) and point (c) of the 
first subparagraph of Article 14(2) of Directive 2011/64. Under those provisions, 
it is not permissible for the specific excise duty on other smoking tobaccos to be 
calculated on the basis of a given number of items. The supplementary tax 
provided for in respect of heated tobacco under the first sentence of point 5 of 
Paragraph 2(1) of the TabStG ultimately leads to an impermissible calculation of 
the total tax to be levied according to an ad valorem tax rate and a specific tax rate 
based on the weight and given number of rolls of tobacco. 
6 The defendant Main Tax Office contested the action and submits as follows: The 
levying of the supplementary tax on heated tobacco does not infringe Article 1(2) 
of Directive 2008/118, because that tax is a national, non-harmonised excise duty. 
The levying of the supplementary tax serves the specific purpose of reducing the 
consumption of nicotine – which is harmful to health – by virtue of the fact that 
heated tobacco is ultimately taxed in a manner similar to cigarettes. This serves to 
pursue the objective of protecting public health. That behaviour-influencing 
purpose pursued by the supplementary tax is sufficient to constitute a specific 
purpose within the meaning of Article 1(2) of Directive 2008/118. It is not 
necessary that the proceeds of the supplementary tax be used for a specific 
purpose. 
7 Directive 2011/64 does not yet cover heated tobacco as a separate category of 
tobacco products. The introduction of a supplementary tax on heated tobacco 
takes into account the urgent recommendations of the World Health Organisation. 
Since the supplementary tax is not a harmonised tax, it does not have to comply 
with the requirements of Article 14 of Directive 2011/64, in accordance with 
Article 1(2) of Directive 2008/118. Rather, it is sufficient that the supplementary 
tax is in principle in accordance with the excise system under EU law. 
II. 
8 The following provisions of the TabStG are of significance for the ruling on the 
questions referred: 
Paragraph 1 Fiscal territory, taxable items 
(1) 1Tobacco products, heated tobacco and water pipe tobacco are subject to 
tobacco tax in the fiscal territory. 2The fiscal territory is the territory of the Federal 
Republic of Germany excluding the area of Büsingen and excluding the island of 
Helgoland. 3Tobacco tax is a tax on consumption for the purposes of the 
Abgabenordnung (Tax Code). 
(2) Tobacco products are 
1. cigars or cigarillos […] 
[…] 
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2. cigarettes […] 
[…] 
3. smoking tobacco (fine-cut tobacco and pipe tobacco): cut or otherwise split, 
twisted or pressed into blocks and capable of being smoked without further 
industrial processing. 
(2a) For the purposes of this Law, heated tobacco is smoking tobacco portioned 
into individual units and suitable for consumption by inhalation of an aerosol or 
smoke produced in a device … 
Paragraph 1a Heated tobacco, water pipe tobacco 
Unless otherwise provided, the provisions of this Law relating to smoking tobacco 
and the detailed rules for their application shall also apply to heated tobacco and 
water pipe tobacco. 
Paragraph 2 Rate of tax 
(1) The tax shall be: 
1. for cigarettes 
(a) subject to points (b) to (e), 12.28 cents per unit and 19.84 per cent of 
the retail selling price, but not less than the amount resulting from 
paragraph 2; 
(b) for the period from 1 January 2022 to 31 December 2022, 10.88 cents 
per unit and 19.84 per cent of the retail selling price, but not less than 22.276 
cents per unit after deduction of the VAT on the retail selling price of the 
taxable cigarette; … 
[…] 
4. for pipe tobacco 
(a) subject to point (b), EUR 15.66 per kilogram and 13.13 per cent of the 
retail selling price, but not less than EUR 26.00 per kilogram; 
(b) for the period from 1 January 2022 to 31 December 2022, EUR 15.66 
per kilogram and 13.13 per cent of the retail selling price, but not less than 
EUR 24.00 per kilogram; 
5. for heated tobacco, the tax referred to in point 4 plus a supplementary tax 
calculated at 80 per cent of the amount of the tax referred to in point 1 less the 
amount of tax referred to in point 4. For the purposes of the calculation provided 
for in point 1, smoking tobacco portioned into individual units shall in this respect 
correspond to a cigarette; 
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Paragraph 17 Use of tax markings, tax return, tax declaration 
(1) 1Tax in respect of tobacco products is to be paid by means of the use of tax 
markings. […] 
(2) 1The manufacturer or importer must apply for the tax markings on the 
officially prescribed form and must calculate the tax markings liability itself on 
the form (tax return). […]… 
9 The following provisions of the Tax Code […] are also of significance for the 
ruling on the questions referred: 
Paragraph 168 Effect of a tax return 
1A tax return shall rank as a tax assessment subject to review. 2If the tax return 
leads to a reduction of the tax previously payable or to a tax rebate, the first 
sentence shall apply only if the tax authorities give their consent. 3The consent 
does not require a specific form. 
III. 
10 The present Chamber stays the action pending before it […] and refers the 
questions set out in the operative part of this order to the Court of Justice of the 
European Union (‘the Court’) for a preliminary ruling pursuant to the second 
paragraph of Article 267 of the Treaty on the Functioning of the European Union. 
The outcome of the action depends on the answers to those questions. 
11 The present Chamber has doubts as to whether point 5 of Paragraph 2(1) of the 
TabStG is compatible with Article 1(2) of Directive 2008/118. According to that 
provision, Member States may levy other indirect taxes on excise goods for 
specific purposes, provided that those taxes comply with the Community tax rules 
applicable for excise duty or value added tax as far as determination of the tax 
base, calculation of the tax, chargeability and monitoring of the tax are concerned, 
but not including the provisions on exemptions. The term ‘other indirect taxes’ 
within the meaning of Article 1(2) of Directive 2008/118 refers to indirect taxes 
which are directly or indirectly levied on the consumption of the products listed in 
Article 1(1) of that directive – other than ‘excise duty’ within the meaning of that 
provision – and are levied for specific purposes (CJEU, judgments of 4 June 2015, 
C-5/14, EU:C:2015:354, paragraph 59; of 20 September 2017, C-215/16, 
C-216/16, C-220/16 and C-221/16, EU:C:2017:705, paragraph 61). 
12 The supplementary tax provided for in the first sentence of point 5 of 
Paragraph 2(1) of the TabStG is levied on the consumption of manufactured 
tobacco within the meaning of Article 1(1)(c) of Directive 2008/118, in 
conjunction with Article 2(1)(c)(ii) and the second subparagraph of Article 21 of 
Directive 2011/64. Heated rolls of tobacco are ‘other smoking tobacco’ because 
they are capable of being smoked within the meaning of Article 5(1)(a) of 
Directive 2011/64. The definition of ‘smoking tobacco’ cannot be construed 
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narrowly (CJEU, judgment of 6 April 2017, C-638/15, EU:C:2017:277, 
paragraph 24). In particular, a product which is merely heated and smoked may be 
regarded as smoking tobacco (CJEU, judgment of 16 September 2020, C-674/19, 
EU:C:2020:710, paragraph 45). Therefore, the fact that the heated rolls of tobacco 
in question are not burned in the heating device but are merely heated by electrical 
energy does not preclude the assumption that they are smoking tobacco. The result 
is an aerosol containing nicotine, which is inhaled by the consumer through a 
mouthpiece, like conventional tobacco smoke. 
13 Other indirect taxes are levied for specific purposes if they are levied for a 
purpose other than a purely budgetary one. A purely budgetary objective cannot, 
taken alone, constitute a specific purpose in the sense contemplated by 
Article 1(2) of Directive 2008/118 (CJEU, judgments of 9 March 2000, C-437/97, 
EU:C:2000:110, paragraphs 31, 33; of 27 February 2014, C-82/12, 
EU:C:2014:108 paragraphs 23, 25; of 5 March 2015, C-553/13, EU:C:2015:149, 
paragraphs 37, 40). However, a tax may be regarded as being levied for specific 
purposes where the proceeds of the tax must be used for the protection of health 
(judgment of 27 February 2014, C-82/12, EU:C:2014:108, paragraph 30). 
14 In the present case, the supplementary tax under the first sentence of point 5 of 
Paragraph 2(1) of the TabStG is levied for budgetary purposes because the 
proceeds of that tax do not have to be used for the protection of health. Rather, the 
proceeds of the levying of the supplementary tax are allocated to the general 
Federal budget. This is also conceded by the defendant Main Customs Office. It is 
true that the levying of the supplementary tax is intended to reduce the 
consumption of nicotine which is harmful to health […]. However, this is a 
general objective, which is also pursued by the provisions of Directive 2011/64 
(recital 2 of Directive 2011/64). Moreover, it is unlikely that the supplementary 
tax is designed, so far as concerns its structure, and particularly the taxable item or 
the rate of tax, in such a way as to dissuade consumers from consuming nicotine 
by virtue of a high tax rate (see CJEU, judgments of 27 February 2014, C-82/12, 
EU:C:2014:108, paragraph 32; and of 5 March 2015, C-553/13, EU:C:2015:149, 
paragraph 42). Since the supplementary tax is ultimately intended to lead to a 
taxation of heated tobacco in a manner similar to the taxation of cigarettes, it is 
unlikely to be able to dissuade consumers from consuming harmful nicotine any 
more than the tobacco tax levied on cigarettes. It is therefore likely that it merely 
brings the tax rate for heated tobacco into line with the tax rate for cigarettes. 
15 The supplementary tax to be levied under the first sentence of point 5 of 
Paragraph 2(1) of the TabStG is likely to be an excise duty within the meaning of 
Article 1(1)(c) of Directive 2008/118 and thus not another indirect tax. This is 
because it is levied on the consumption of heated rolls of tobacco. Under the first 
sentence of Paragraph 1(1) of the TabStG, heated tobacco is subject to tobacco tax 
as an excise duty (the third sentence of Paragraph 1(1) of the TabStG). Under 
Paragraph 1a and the first sentence of point 5 of Paragraph 2(1) of the TabStG, 
that excise duty also covers the supplementary tax on heated tobacco. 
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16 If the supplementary tax on heated tobacco is not another indirect tax on excise 
goods for specific purposes within the meaning of Article 1(2) of Directive 
2008/118, the question arises as to the compatibility of the supplementary tax with 
the provisions of Article 14 of Directive 2011/64 (see CJEU, judgment of 
24 February 2000, C-434/97, EU:C:2000:98, paragraph 27). 
17 The present Chamber has doubts as to whether the supplementary tax to be levied 
under the first sentence of point 5 of Paragraph 2(1) of the TabStG is compatible 
with Article 14(3) of Directive 2011/64. According to the provision, the tax rates 
or amounts referred to in Article 14(1) and (2) of Directive 2011/64 are to be 
effective for all products belonging to the group of manufactured tobaccos 
concerned, without distinction within each group as to quality, presentation, origin 
of the products, the materials used, the characteristics of the firms involved or any 
other criterion. Therefore, an excise duty provided for by Member States on the 
basis of Article 14(1) and (2) of Directive 2011/64 must be the same for all 
products in the relevant group of manufactured tobacco, irrespective of their 
characteristics or price (CJEU, judgments of 27 February 2002, C-302/00, 
EU:C:2002:123, paragraph 20; and of 9 October 2014, C-428/13, 
EU:C:2014:2263, paragraph 28). It is true that rules on the taxation of tobacco 
products can constitute an important and effective instrument for discouraging 
consumption of such products. However, the national rules of the Member States 
serving that purpose must come within the framework of Directive 2011/64 
(CJEU, judgment of 9 October 2014, C-428/13, EU:C:2014:2263, paragraphs 35 
and 36). 
18 Under Paragraph 1a of the TabStG, heated tobacco is treated in the same as 
smoking tobacco. Heated tobacco is therefore a tobacco product which falls within 
the category of other smoking tobacco in Article 13(c) of Directive 2011/64. In 
addition to the tax rate applicable to other smoking tobacco under point 4(b) of 
Paragraph 2(1) of the TabStG, the German legislature provides for a 
supplementary tax under the first sentence of point 5 of Paragraph 2(1) of the 
TabStG, which is to be levied only on heated tobacco, in addition to the tax rate 
under point 4(b) of Paragraph 2(1) of the TabStG. This is likely to constitute 
unequal treatment of tobacco products of the same group in comparison with other 
smoking tobacco. The situation could be different only if a separate group of 
tobacco products were provided for in respect of heated tobacco. However, this is 
not the case under Directive 2011/64. 
19 Moreover, the present Chamber has doubts as to whether point 5 of 
Paragraph 2(1) of the TabStG is compatible with point (b) of the first 
subparagraph of Article 14(1) and point (c) of the first subparagraph Article 14(2) 
of Directive 2008/118. Under point (b) of the first subparagraph of Article 14(1) 
of Directive 2011/64, Member States are to set a specific duty on manufactured 
tobacco expressed as an amount per kilogram and, in the case of cigars and 
cigarillos only, alternatively for a given number of items. Accordingly, the 
specific rate of excise duty on other smoking tobaccos referred to in point (c) of 
the first subparagraph of Article 14(2) of Directive 2011/64 must be at least 
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EUR 22 per kilogram. By virtue of Paragraph 1a of the TabStG, heated tobacco is 
treated in the same way as smoking tobacco, with the result that, in accordance 
with point (b) of the first subparagraph of Article 14(1) and point (c) of the first 
subparagraph Article 14(2) of Directive 2011/64, the specific excise duty per se 
would have to be calculated on the basis of the weight of the tobacco in kilograms 
and not on the basis of the given number of rolls of tobacco, contrary to the 
supplementary national provision for calculating the supplementary tax in the 
second sentence of point 5 of Paragraph 2(1) of the TabStG. Moreover, the 
combination of the supplementary tax and the tax to be determined under point 4 
of Paragraph 2(1) of the TabStG in accordance with point 5 of Paragraph 2(1) of 
the TabStG is likely to result in a tax formula not provided for by Article 14(1) 
and (2) of Directive 2011/64, because the total tax to be levied is to be determined 
on the basis of an ad valorem tax rate and a specific tax rate based on the weight 
and given number of units of rolls of tobacco. However, a tax formula which is 
not provided for in Directive 2011/64 is not permissible (CJEU, judgment of 
15 June 2000, C-365/98, EU:C:2000:323, paragraph 27).