Judgment — ECLI:EU:C:2026:402
Date: 2026-05-13
Language of the case: Portuguese

Translation C-322/25 – 1 
Case C-322/25 
Request for a preliminary ruling 
Date lodged: 
9 May 2025 
Referring court: 
Supremo Tribunal Administrativo (Portugal) 
Date of the decision to refer: 
2 April 2025 
Appellant: 
SWEDISH MATCH – FÓSFOROS DE PORTUGAL, S.A. 
Respondent: 
Autoridade Tributária e Aduaneira 
      
EN 
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SUPREMO TRIBUNAL ADMINISTRATIVO (SUPREME 
ADMINISTRATIVE COURT, PORTUGAL) 
The Tax Division of the Supremo Tribunal Administrativo (Supreme 
Administrative Court) […] hereby rules […]: 
1. Report 
1.1. SWEDISH MATCH – FÓSFOROS DE PORTUGAL, S.A., identified in 
the present proceedings, lodged an appeal on a point of law, under Article 285 of 
the Código de Procedimento e Processo Tributário (Code of administrative and 
judicial procedure in tax matters; ‘the CPPT’), against the judgment of the 
Tribunal Central Administrativo Sul (Southern Central Administrative Court, 
Portugal) of 24 January 2024, dismissing the appeal lodged by the appellant and 
upholding the judgment of the Tribunal Administrativo e Fiscal de Sintra 
(Administrative and Tax Court, Sintra, Portugal) of 12 April 2021, which 
dismissed the action brought against the notice of assessment of the Imposto 
Especial sobre o Consumo do Tabaco (Excise Duty on Tobacco Consumption; 
‘the IST’) No […], for the amount of EUR 1 151 599.76, and No […], for the 
amount of EUR 213 557.03, in respect of the 2008 and 2009 tax years. 
1.2. In support of its appeal, the appellant submits the following: 
‘[…] Subject matter of the appeal 
(A) This appeal concerns [the following issue]: 
(i) The incompatibility of the rules on the destruction of revenue stamps, laid 
down in paragraphs 23 and 24 of Portaria no 1295/2007, de 1 de outubro 
(Ministerial Order No 1295/2007 of 1 October 2007), with the principles the 
of free movement of goods and the freedom to provide services, laid down 
in Article 28 TFEU et seq. and Article 56 TFEU et seq., where those rules 
are interpreted as meaning that the automatic justification for destroyed 
stamps, without any involvement on the part of the tax authorities being 
required, applies only to the destruction of stamps during the manufacturing 
process in production warehouses situated on the national territory. 
[…] 
Incompatibility of the rules on the destruction of revenue stamps, laid down in 
paragraphs 23 and 24 of Ministerial Order No 1295/2007 of 1 October 2007, with 
the free movement of goods and the freedom to provide services 
(B) Automatic justification of the loss of stamps during the manufacturing 
process, provided for in paragraphs 23 and 24 of Ministerial Order No 1295/2007 
SWEDISH MATCH 
 
3 
of 1 October 2007, is not based on a specific procedure, and economic operators 
are not required to provide any proof in order to apply those rules. 
(C) In accordance with paragraph 23 of Ministerial Order No 1295/2007 of 
1 October 2007, the destruction of stamps during the manufacturing process ‘in 
production warehouses situated on the national territory’ is automatically 
justified, without economic operators being required to provide any proof of the 
specific intended use of such stamps. 
(D) In so far as it permits economic operators to justify automatically the 
destruction of revenue stamps (which do not exceed 2% of the volume of revenue 
stamps used in a particular year) during the manufacturing process in Portugal, the 
national legislature must also apply that automatic justification to any destruction 
of stamps (in the same quantity) during manufacturing processes which take place 
in another Member State of the European Union, otherwise it would be in breach 
of the principles of free movement of goods and freedom to provide services. 
(E) Accordingly, the combined application of paragraphs 22, 23 and 24 of 
Ministerial Order No 1295/2007 of 1 October 2007, in relation to the destruction 
of stamps which do not exceed that quantitative limit of 2%, solely to 
manufacturing processes which take place in Portugal is contrary to the principles 
of free movement of goods and freedom to provide services, laid down in 
Articles 28 TFEU and 56 TFEU. 
(F) The correct interpretation and the subsumption of the facts under the 
relevant provisions in the present case required the […] lower court to treat the 
stamps reflected in the appellant’s balances as an automatically justified 
destruction; failure to do so amounts to a discriminatory restriction of the free 
movement of goods and the freedom to provide services. 
(G) Since the […] appellate court is uncertain as to the compatibility of those 
national provisions with Articles 28 TFEU and 56 TFEU, it must refer the 
following question to the Court of Justice of the European Union (CJEU) for a 
preliminary ruling pursuant to Article 267 TFEU: 
‘Do the free movement of goods, laid down in Article 28 TFEU et seq., and 
the freedom to provide services, laid down in Article 56 TFEU et seq., 
preclude rules such as those provided for in paragraphs 22, 23 and 24 of 
Ministerial Order No 1295/2007 of 1 October 2007, in accordance with 
which the automatic justification of a fixed quantity of 2% of stamps 
destroyed during the manufacturing process applies only if the tobacco 
products are manufactured on Portuguese national territory and does not 
apply if manufacturing takes place in any other Member State of the 
European Union?’ 
[…]’ 
1.3. […] 
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1.4. By judgment of the chamber for preliminary assessments of the Supremo 
Tribunal [Administrativo] (Supreme Administrative Court) (Article 285(6) of the 
CPPT), given on 12 February 2025, the appeal was ruled admissible on the 
following grounds: 
‘[…] 2.2.2 The first question is whether the rules on the automatic justification 
of destroyed stamps, without the need for any involvement on the part of the tax 
authorities, laid down in paragraphs 23 and 24 of Ministerial Order No 1295/2007 
of 1 October 2007, must also apply to cases where the manufacturing process is 
situated outside the national territory; otherwise there would be a breach of the 
principles of free movement of goods and freedom to provide services. 
[…] 
Accordingly, the appeal should be allowed to proceed to enable the Supremo 
Tribunal [Administrativo] (Supreme Administrative Court) to re-examine the 
matter of the disapplication of the rules on the destruction of revenue stamps, laid 
down in paragraphs 23 and 24 of Ministerial Order No 1295/2007 of 1 October 
2007, and to decide whether it is necessary to refer a question to the CJEU for a 
preliminary ruling, pursuant to Article 267 TFEU, on the compatibility of those 
rules with the free movement of goods and the freedom to provide services, laid 
down in Article 28 TFEU et seq. and Article 56 TFEU et seq., in the event that 
those rules are interpreted as meaning that the automatic justification of the 
destroyed stamps, without the need for any involvement on the part of the tax 
authorities, applies only in relation to the destruction of stamps during the 
manufacturing process in production warehouses situated on the national 
territory[.] 
[…] 
2.2.5 Therefore, the appeal will be allowed to proceed solely to enable the 
Supremo Tribunal [Administrativo] (Supreme Administrative] Court) to re-
examine, in the light of Article 19(3)(b) [TEU] and Article 267 TFEU, the 
question whether there is a need to request a preliminary ruling from the CJEU on 
the interpretation of […] Articles 28 TFEU and 56 TFEU, in particular by 
assessing the need to seek an answer to the question proposed by the appellant 
[…] 
2.3. CONCLUSION [on the admissibility of the appeal] 
Before the decision is adopted, it is appropriate to set out the following 
conclusions: 
I –  The special appeal on a point of law provided for in Article 285 […] of the 
CPPT does not equate to the general introduction of a new level of appeal, 
but instead operates solely as a ‘safety valve’ for the system, from which it 
follows that it is admissible only if the court is seised of a question which, 
by reason of its legal or social significance, is of fundamental importance, or 
SWEDISH MATCH 
 
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if it is clearly necessary to allow the appeal to proceed for the purposes of 
the better application of the law, the appellant being required to plead and 
establish the requirements of admissibility for the appeal. 
II –  The appeal is allowed to proceed for the purpose of (re-)examining the need 
to make a reference for a preliminary ruling to the CJEU, in particular 
concerning the question [supra] […]. 
* * * 
3. DECISION 
[…] this appeal is allowed to proceed in relation to the question set out 
above. […]’ 
1.5. The […] Deputy State Counsel at the Supremo Tribunal Administrativo 
(Supreme Administrative Court) issued […] a report […]as follows: 
‘[…] 2.  Assessment 
The issue to be adjudicated in the present case is the following: 
Whether the rules on the automatic justification of destroyed stamps without the 
need for any involvement on the part of the tax authorities, laid down in 
paragraphs 23 and 24 of Ministerial Order No 1295/2007 of 1 October 2007, must 
also apply in cases where the manufacturing process is situated outside the 
national territory; otherwise there would be a breach of the principles of free 
movement of goods and freedom to provide services. 
Furthermore, the appellant’s company has as its business purpose the manufacture 
and sale of tobacco products, and the appellant has the status of an authorised 
warehouse keeper for the purposes of excise duty. 
The tax authorities took the view that the negative balance of the stamps requested 
was not justified and that the stamps had not been used in the 2008 and 2009 tax 
years, according to the taxable person’s current account. 
The stamps, the loss of which the appellant was unable to justify, were sent by the 
appellant to production warehouses situated outside the national territory 
(Netherlands, Belgium, Luxembourg, Denmark and Germany) and the tax 
authorities considered that the evidence submitted as proof of their destruction 
was not capable of justifying that destruction, in view of paragraph 22 of 
Ministerial Order No 1295/2007 of 1 October 2007, which provided: ‘in the event 
that destruction occurs outside the national territory, the failure to present the 
revenue stamps must be justified by the appropriate declaration issued by the 
competent authorities of the country to which the stamps were sent, which shall 
identify the type of product and the financial year to which they relate’. 
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Accordingly, the tax authorities issued an assessment notice for the applicable 
excise duty. 
Paragraph 23 of Ministerial Order 1295/2007 of 1 October 2007 was worded as 
follows: ‘any destruction of stamps which takes place during the manufacturing 
process in production warehouses situated on the national territory may be the 
subject of a simplified justification procedure’. 
Paragraph 24 of Ministerial Order No 1295/2007 was worded as follows: ‘for the 
purposes of the previous paragraph, the destruction of stamps up to a limit of 2% 
of the stamps used annually during the manufacturing process shall be considered 
to be automatically justified’. 
It is apparent from the legal provisions cited that the simplified justification 
procedure is applicable only to production warehouses situated on the national 
territory, while production warehouses situated in other Member States of the 
European Union are excluded from that simplified procedure. 
It should be noted that Ministerial Order No 119/2019 of 22 April 2019 repealed 
Ministerial Order No 1295/2007 of 1 October 2007. 
Ministerial Order No 119/2019 of 22 April 2019, which is not applicable to the 
situation in the present case, provides in paragraph 7 that the simplified 
justification procedure is applicable to production tax warehouses situated on the 
national territory or in another Member State. 
The question therefore arises as to whether the free movement of goods, laid down 
in Article 28 TFEU et seq., and the freedom to provide services, laid down in 
Article 56 TFEU et seq., preclude rules such as those provided for in 
paragraphs 22, 23 and 24 of Ministerial Order No 1295/2007 of 1 October 2007, 
in accordance with which the automatic justification of a fixed quantity of 2% of 
the stamps destroyed during the manufacturing process applies only where the 
manufacture of the tobacco products takes place on Portuguese national territory 
but, conversely, does not apply where the manufacture takes place in any other 
Member State of the European Union. 
The resolution of this question is relevant because the outcome of the dispute at 
issue in the present case depends on it. 
If the question is relevant, there is an obligation to refer the question of 
interpretation raised to the CJEU (see, in that connection, judgment of the CJEU 
of 6 October 1982, CILFIT). 
A reference for a preliminary ruling is compulsory ‘where any such question is 
raised in a case pending before a court or tribunal of a Member State against 
whose decisions there is no judicial remedy under national law’ (third paragraph 
of Article 267 TFEU). 
SWEDISH MATCH 
 
7 
No judgment has been found in the case-law of the CJEU which exactly matches 
the scope of the specific case currently being examined. 
Based on a preliminary examination, I consider that the provisions of Ministerial 
Order No 1295/2007 cited above are incompatible with the free movement of 
goods, laid down in Article 28 TFEU et seq., and the freedom to provide services, 
laid down in Article 56 TFEU et seq. 
The simplified system of justification, in so far as it is not applicable to the other 
Member States of the European Union and applies only to production warehouses 
situated on the national territory, may infringe the free movement of goods and the 
freedom to provide [services]. 
The same situation is afforded different treatment depending on the country where 
the production warehouse is situated. 
It is possible that recourse to the doctrine of acte clair would allow the reference 
for a preliminary ruling to be dispensed with. 
However, the case-law on the doctrine of acte clair may jeopardise the uniformity 
and consistency of the application of Community law (see, in that connection, Inês 
Mourão Santos, Os tribunais portugueses e o reenvio prejudicial, master’s thesis, 
Universidade Lusíada, Porto 2014). 
[…] 
3. Conclusion: On those grounds, an opinion is hereby issued to the effect that 
the proceedings should be stayed pending a preliminary ruling from the CJEU on 
the question of interpretation set out above. […]’ 
1.6. […] 
2. Facts 
The lower courts established the following facts: 
(A) The business purpose of the appellant, SWEDISH MATCH – FÓSFOROS 
PORTUGAL, S.A., […], is the manufacture and sale of tobacco products, matches 
and lighters […]. 
(B) In that capacity, the appellant requests from the IMPRENSA NACIONAL – 
CASA DA MOEDA, S.A. (‘INCM’), through the electronic transfer of data via 
the ‘electronic declarations’ portal of the Direção-Geral das Alfândegas e dos 
Impostos Especiais sobre o Consumo (Directorate General for Customs and 
Excise, Portugal), the revenue stamps that it needs, and which it will subsequently 
send to factories situated in other Member States of the European Union, in 
particular the Netherlands, Belgium, Luxembourg, Denmark and Germany, which 
are responsible for the production and packaging of the tobacco products, and 
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those factories will affix the revenue stamps concerned to the product packaging – 
or ‘sales units’ – which the appellant then releases for consumption […]. 
(C) Specifically, in 2008 and 2009, the appellant used the following factories: 
Factory Registration for the 
purposes of excise 
duty 
Member State 
AGIO SIGARENFABR1EKEN NV NL04820L 003R.T Netherlands 
ARNOLD ANDRE GMBH & CO.KC DE/0/BOOO/OC019/1 Germany 
DISTRIPACK VERTRIEB & HANDELS GMBH DED4050028672 Germany 
MACBAREN TOBACCO COMPANY HARALD 
HALBERG EXPORT A/S 
DK25O667580O1 Denmark 
MANUFACTURE DE TABACS HEINTZ VAN 
LANDEWYCK 
LUACC0Û010676 Luxembourg 
NOBEL CIGARS APSC/O DAVIDOFF IM 
PORT/_EXPORT 
DK138O1193CO2 Denmark 
SWEDISH MATCH CIGARS NV BE1H000004100 Belgium 
SWEDISH MATCH NORTH EUROPE AD DK26622166001 Denmark 
TOBACCO SERVICE HOLLAND BV NL04780002032 Netherlands 
[…]. 
(D) In order to monitor the number of revenue stamps which it requests, the 
appellant keeps ‘current accounts’ which provide a breakdown, by year and type 
of tobacco (type 1: ‘cigarettes’; type 2: ‘cigars and cigarillos’; and type 3: ‘fine-
cut tobacco for the rolling of cigarettes and other smoking tobacco’), of the 
number of stamps supplied by the INCM, together with destroyed stamps and 
stamps placed on tobacco products released for consumption. Those current 
accounts are drawn up by cross-referencing information contained in stamp supply 
notes, records of destruction and declarations of release for consumption […]. 
(E) With regard to 2008, the current account of revenue stamps relating to 
‘cigars and cigarillos’ (type 2) had a final balance of 15 877 revenue stamps […]. 
(F) Also with regard to 2008, the current account relating to ‘fine-cut tobacco 
for the rolling of cigarettes and other smoking tobacco’ (type 3) – in the 
appellant’s case, corresponding to pipe tobacco and roll-your-own tobacco – had a 
final balance of 16 565 revenue stamps […]. 
(G) The appellant discovered that the first line of the current account for type 3 
tobacco for the year 2008 included, under document number ‘SM 19-08-2007’, 10 
revenue stamps which it had not actually requested and that, on that date, it had 
requested instead 10 000 revenue stamps, which were reflected in the second line 
of the current account in question with the reference ‘2008-7’ […]. 
(H) As regards 2009, the current account for revenue stamps relating to ‘fine-cut 
tobacco for the rolling of cigarettes and other smoking tobacco’ (type 3) – in the 
SWEDISH MATCH 
 
9 
appellant’s case, corresponding to pipe tobacco and roll-your-own tobacco – had a 
final balance of 19 816 revenue stamps […]. 
(I) In 2011, the Directorate General of Customs and Excise demanded that the 
appellant submit the revenue stamps included in the aforementioned final balances 
for 2008 and 2009, in other words, 32 442 revenue stamps from 2008 and 19 816 
revenue stamps from 2009 […]. 
(J) In the light of that demand, the appellant requested the return of all the 
revenue stamps that were in the factories; those factories [in turn] informed the 
appellant, in general terms, that they were not in possession of revenue stamps for 
2008 or 2009 […]. 
(K) On 5 July 2011, the director of the customs office at Jardim do Tabaco 
[Lisbon, Portugal] sent the appellant a draft assessment for tobacco duty for the 
2008 tax year, in the amount of EUR 1 151 599.76 […]. 
(L) On 5 July 2011, the director of the customs office […] also sent the 
appellant a draft assessment for tobacco duty for the 2009 tax year, in the amount 
of EUR 213 557.03 […]. 
(M) On 20 July 2011, the appellant exercised its right to participate in the 
administrative decision concerning both draft decisions and, according to 
information obtained in the meantime, informed the director of the […] customs 
office that 79 revenue stamps (19 relating to cigars and cigarillos; 60 relating to 
fine-cut tobacco for the rolling of cigarettes and other smoking tobacco) 
corresponding to the 2008 tax year and 5 310 revenue stamps (27 relating to cigars 
and cigarillos; 5 283 relating to fine-cut tobacco for the rolling of cigarettes and 
other smoking tobacco) corresponding to the 2009 tax year had been destroyed 
during the process of producing the manufactured tobacco products at the 
factories of ARNOLD ANDRE GMBH & CO. KG and MANUFACTURE DE 
TABACS HEINTZ VAN LANDEWYCK, situated in Germany and Luxembourg 
respectively […]. 
(N) On 21 July 2011, the director of the […] customs office ordered that ‘the 
assessment file […] be settled in the amount of EUR 1 151 599.76 in respect of 
excise duty on manufactured tobacco products, relating to the clearance of the 
current account for revenue stamps corresponding to the 2008 tax year’ […]. 
(O) On 26 July 2011, the appellant was sent a notice of assessment for tobacco 
duty No […] of 21 July 2011, relating to the 2008 tax year, for an overall amount 
of EUR 1 151 599.76 […]. 
(P) On 26 July 2011, the appellant was sent a notice of assessment for tobacco 
duty No […] of 22 July 2011, relating to the 2009 tax year, for an overall amount 
of EUR 213 557.03, due to the fact that it had not submitted to the customs 
authorities the 19 816 revenue stamps reflected in the final balance of its current 
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account for type 3 tobacco, or provided the customs authorities with proof of the 
whereabouts of those stamps […]. 
(Q) On 22 July 2011, the director of the […] customs office ordered […] that 
‘the assessment file […] be settled in the amount of EUR 213 557.03 in respect of 
excise duty on manufactured tobacco products, relating to the clearance of the 
current account for revenue stamps corresponding to the 2009 tax year’ […]. 
(R) In 2008, in respect of all the revenue stamps placed on the manufactured 
tobacco products that it released for consumption, and as recorded in the 
declarations of release for consumption filed with the tax authorities, the appellant 
released for consumption the following quantities of manufactured tobacco 
products by type of product: 
Type of product Releases for 
consumption (sales 
units) 
Releases for 
consumption (%) 
02 Cigarillos 1 149 580 67.73% 
Cigars 81 385 4.80% 
03 Pipe tobacco 79 991 4.71% 
Roll-your-own (RYO) 
tobacco 
386 325 22.76% 
Totals: 1 697 271 100% 
[…]. 
(S) the above quantities of tobacco released for consumption represented the 
following values of sales for the appellant: 
Type of product Value of sales (euros) Percentage of sales 
02 Cigarillos 5 015 246.00 68.67% 
Cigars 593 325.00 8.12% 
03 Pipe tobacco 442 552.00 6.06% 
Roll-your-
own (RYO) 
1 252 355.00 17.15% 
Totals: 7 303 477.00 100% 
[…]. 
(T) Of a total of 1 230 965 units released for consumption by the appellant in 
2008 relating to cigars and cigarillos (that is to say, 81 385 + 1 149 580), 
1 040 659 concerned sales at a price of EUR 5 or less […]. 
(U) Of a total of 466 306 units released for consumption by the appellant in 2008 
relating to pipe tobacco and roll-your-own tobacco (that is to say, 79 981 + 
386 325), 381 925 concerned sales at a price of EUR 5 or less […]. 
(V) The highest public sale prices applied by the appellant in 2008, by type of 
manufactured tobacco product, were the following: 
SWEDISH MATCH 
 
11 
Type of product Brand/sales unit Public sale price 
(euros) 
02 Cigarettes Davidoff Mini Cigarillos / 50 items 33.50 
Cigars Winston Churchill Blenheim / 1 
item 
500.00 
03 Pipe tobacco Davidoff Danish Misture Export / 
50 grammes 
26.00 
Roll-your-
own tobacco 
MB Original Choice / 40 grammes 4.14 
[…]. 
(W) As regards the brands mentioned in the previous point, in 2008 the appellant 
released only the following quantities for consumption: 
Brand/sales unit Releases for 
consumption  
Value of sales 
(euros) 
Percentage of 
sales 
02 Davidoff Mini Cigarillos / 50 
items 
849 28 442.00 0.39% 
Winston Churchill Blenheim / 1 
item 
3 1 500.00 0.02% 
03 Davidoff Danish Misture 
Export / 50 grammes 
20 520.00 0.01% 
Davidoff Royalty Export / 50 
grammes 
20 520.00 0.01% 
MB Original Choice / 40 
grammes 
39 800 164 920.00 2.26% 
[…]. 
(X) Taking the national market as a reference and having regard to the total 
tobacco duty levied by the State in 2008, the average value of tobacco duty 
charged came to EUR 0.54 for each type 2 revenue stamp and EUR 2.11 for each 
type 3 revenue stamp, as follows: 
Type of product Revenue 
from tobacco 
duty (euros) 
Quantity 
released for 
consumption 
Standard 
sales 
units 
Releases for 
consumption 
Average tobacco 
duty per stamp 
(euros) 
02 Cigarillos 3 098 200.00 67 690 100 
items 
10 and 20 
items 
5 771 562 0.54 
Cigars 5 750 100 
items 
5, 10 and 
16 items 
03 Pipe 
tobacco 
16 048 600.00 382 427 800 
grammes 
50 
grammes 
7 913 341 2.11 
Roll-your-
own 
669 600.00 10 140 700 
grammes 
30, 40 
and 50 
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tobacco grammes 
[…]. 
(Y) In 2009, taking the total amount of revenue stamps affixed to manufactured 
tobacco products which it released for consumption and as recorded in the 
declarations of release for consumption filed with the tax authorities, the appellant 
released for consumption the following quantities of manufactured tobacco 
products by type of product: 
Type of product Releases for 
consumption (sales 
units) 
Releases for 
consumption (%) 
02 Cigarillos 1 354 321 61.44% 
Cigars 132 047 5.99% 
03 Pipe tobacco 82 033 3.72% 
Roll-your-own 
(RYO) tobacco 
635 900 28.85% 
Totals: 2 204 301 100% 
[…]. 
(Z) The above quantities of tobacco released for consumption represented the 
following values of sales for the appellant: 
Type of product Values of sales (euros) Percentage of sales 
02 Cigarillos 5 785 968.00 64.75% 
Cigars 847 370.00 9.48% 
03 Pipe tobacco 404 834.00 4.53% 
Roll-your-own (RYO) 
tobacco 
1 897 625.00 21.24% 
Totals: 8 935 798.00 100% 
[…]. 
(AA) Of a total of 1 486 368 units released for consumption by the appellant in 
2008 relating to cigars and cigarillos (that is to say, 132 047 + 1 354 321), 
1 242 005 concerned sales at a price of EUR 5 or less, and, likewise, of a total of 
717 933 units released for consumption by the appellant in 2009 relating to pipe 
tobacco and roll-your-own tobacco (that is to say, 82 033 + 635 900), 660 060 
concerned sales at a price of EUR 5 or less […]. 
(BB) In turn, the highest public sale prices charged by the appellant in 2009, by 
type of manufactured tobacco product, were the following: 
Type of product Brand/sales unit Public sale price 
(euros) 
02 Cigarillos Mac Maduro HP Portugal / 25 items 110.00 
Cigars Winston Churchill Blenheim / 1 item 500.00 
03 Pipe tobacco Davidoft Danish Misture Export / 50 26.00 
SWEDISH MATCH 
 
13 
grammes 
Daviden English Mixture / 50 grammes 
Davtdoff Royalty Export / 50 grammes 
Davldoff Scottish Mixture / 50 grammes 
Roll-your-
own tobacco 
MB Original Choice / 40 grammes 4.14 
[…]. 
(CC) As regards the brands mentioned in the previous point, in 2009 the appellant 
released only the following amounts for consumption: 
Brand/sales unit Releases for 
consumption 
Value of 
sales (euros) 
Percentage of 
sales 
02 Mac Maduro HP 
Portugal / 25 items 
4 440.00 0.001% 
Winston Churchill 
Blenheim / 1 item 
1 500.00 0.001% 
03 Davidoff Danish 
Misture Export / 50 
grammes 
65 1 690.00 0.02% 
Davidoff English 
Mixture / 50 grammes 
30 780.00 0.01% 
Davidoff Royalty 
Export / 50 grammes 
55 1 430.00 0.02% 
Davidoff Scottish 
Mixture / 50 grammes 
75 1 950.00 0.02% 
MB Original Choice / 
40 grammes 
33 300 153 270.00 1.72% 
[…]. 
(DD) In view of the total amount of tobacco duty levied by the State in 2009, the 
average value of tobacco duty charged in respect of each type 3 revenue stamp 
came to EUR 2.06, as shown below: 
Type of 
product 
Revenue 
from tobacco 
duty (euros) 
Quantity 
released for 
consumption 
Standard 
sales units 
Releases for 
consumption 
Average 
tobacco 
duty per 
stamp 
(euros) 
03 Pipe 
tobacco 
20 769 200.00 501 286 800 
grammes 
50 
grammes 
10 381.315 2.06 
Roll-your-
own 
tobacco 
600 900.00 13 617 900 
grammes 
30, 40 and 
50 
grammes 
[…]. 
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(EE) On 14 March 2011, the appellant requested the withdrawal of its status as an 
authorised warehouse keeper and the resulting closure of the tax warehouse of 
which it was the owner on the ground that it had ceased its business activity […]. 
(FF) On 4 April 2011, at the appellant’s request, the tax authorities, with the 
assistance of the customs authorities, destroyed all goods under a suspensive 
arrangement and bearing a revenue stamp which did not comply with the 
marketing standards in force and also all stamps which were not placed on 
packaging for public sale and which were located in the tax warehouse […]. 
(GG) On 12 April 2011, the appellant sent an email to the customs authorities 
informing them that the INCM had supplied it with 10 type 3 revenue stamps from 
the year 2008 […]. 
(HH) Adjustments were made to the current account for revenue stamps in the 
system […] as a result of the destruction of the goods and/or revenue stamps on 
4 April 2011, and, in relation to 2008, a balance was entered in the accounts of 
32 452 revenue stamps, of which 15 887 corresponded to type 2-cigars and 
cigarillos, and 16 761 corresponded to type 3- fine-cut tobacco for the rolling of 
cigarettes and other smoking tobacco […]. 
(II) Adjustments were made to the current account for revenue stamps in the 
system […] as a result of the destruction of the goods and/or revenue stamps on 
4 April 2011, and, in relation to 2009, an initial balance was entered in the 
accounts of 131 911 revenue stamps, of which 112 095 corresponded to type 2-
cigars and cigarillos, and 19 816 corresponded to type 3- fine-cut tobacco for the 
rolling of cigarettes and other smoking tobacco […]. 
(JJ) The appellant was granted a period of 30 days to present the missing 
revenue stamps to the customs authorities with a view to their subsequent 
destruction. Once the required formal step of requesting the presentation of the 
stamps was taken, at the end of the 30-day period, if the stamps were not handed 
over, the public sales units relating to the missing stamps would be considered to 
have been dispatched for consumption […]. 
(KK) In relation to 2008, the appellant provided evidence of the use of 196 type 3 
stamps for the part of the adjustment that had not been carried out correctly, as a 
result of which the balance of the current account of stamps came to16 565 stamps 
[…]. 
(LL) By letter No […] from the […] customs office, the appellant was informed 
that the customs office intended to issue an assessment notice for the amount of 
EUR 1 151 599.76 in respect of tobacco duty for the 2008 tax year […]. 
(MM) In response to that letter, the appellant submitted two statements provided 
by two tobacco factories situated in the territory of the European Union, testifying 
to the destruction of 19 type 2 revenue stamps and 60 type 3 revenue stamps […]. 
SWEDISH MATCH 
 
15 
(NN) The tax authorities did not accept those statements on the grounds that ‘they 
were not made on the headed notepaper of the undertakings concerned, nor were 
they duly signed by a person in charge of those undertakings’ […]. 
(OO) On 21 July 2011, an assessment notice was issued for the amount of 
EUR 1 151 599.76, which was sent to the appellant under cover of letter No […] 
from the […] customs office. 
(PP) The customs office also informed the appellant that it intended to issue an 
assessment notice for the amount of EUR 213 557.03 in respect of tobacco duty 
for the 2009 tax year […]. 
(QQ) In response, the appellant requested that the quantities indicated in the 
record of destruction […] of 17 December 2007 be taken into account and 
submitted a statement provided by a tobacco factory situated in the territory of the 
European Union which testified to the destruction of 5 283 type 3 revenue stamps 
[…]. 
(RR) The customs office did not accept this because record of destruction No […] 
was already reflected in the current account and, in relation to the statement 
submitted, because it was not made on the headed notepaper of the undertaking 
concerned, nor was it duly signed by the person in charge of that undertaking […]. 
(SS) On 22 July 2011, the [tax authorities] issued an assessment notice for the 
amount of EUR 213 557.03 in relation to the 2009 tax year and sent the appellant 
[…] No […]. 
(TT) On 9 August 2011, the appellant made a voluntary payment in the amount of 
the assessments […]. 
(UU) On 28 November 2011, following payment of the amount in the 
assessments, the appellant made a request to the […] customs office for the 
destruction of 472 revenue stamps for type 3 tobacco corresponding to the 2008 
tax year, due to the fact that one of the factories had returned the stamps […]. 
(VV) On 7 December 2011, the […] appellant brought an administrative action 
against the assessments for tobacco duty Nos […]. 
(WW) On 24 February 2012, by letter No […] of 22 February 2012, the […] 
appellant was notified of the draft decision to uphold in part the administrative 
action […]. 
(XX) On 6 March 2012, the appellant exercised its right to participate in the 
adoption of the decision on the administrative action […]. 
(YY) On 22 May 2012, by letter No […] from the […] customs office of 17 May 
2012, the appellant was notified of the decision to uphold in part the 
administrative action, adopted on 27 April 2021 by the Director-General and 
REQUEST FOR A PRELIMINARY RULING OF 2. 4. 2025 – CASE C-322/25 
 
16  
ordering the cancellation of the amount of EUR 5 699.24 from the assessment for 
tobacco duty corresponding to the 2008 tax year, in relation to the 472 (type 3) 
revenue stamps returned by the factory MACBAREN TOBACCO COMPANY 
HARALD HALBERG EXPORT A/S and the error of 10 stamps in the total 
number of revenue stamps indicated as the final balance of the assessment for 
tobacco duty […]; 
(ZZ) On 8 June 2012, the present appeal was lodged with this court […]. 
X 
[National procedure] 
[…] 
X 
[…] 
X 
[…] 
3. Law 
[…] [The] rules laid down in paragraphs 22, 23 and 24 of Ministerial Order 
No 1295/2007, in so far as those rules stipulate that only the destruction of stamps 
which takes place during the manufacturing process in production warehouses 
situated on the national territory may be the subject of a simplified justification 
procedure and in so far as that procedure is not applicable where destruction takes 
place outside the national territory, raise doubts as to their compatibility with the 
fundamental economic freedoms, in particular the free movement of goods and the 
freedom to provide services. 
The free movement of goods entails the prohibition, as between Member States, of 
quantitative restrictions on imports and exports and of measures having equivalent 
effect; it is not clear that the rules examined do not have that effect. 
As regards the freedom to provide services, it prohibits discrimination against 
nationals of one Member State who provide services in another Member State, 
which, as is apparent from Article 57 TFEU, includes, inter alia, activities of an 
industrial and commercial character, which are naturally of particular importance 
in the present case in so far as they are liable to place conditions on the exercise of 
that freedom by the undertakings which carried out activities for the appellant. It 
is also important to note that, without prejudice to the fact that no explicit 
reference is made thereto in the provisions of the TFEU, it follows from the case-
law of the CJEU that the freedom to provide services applies not only to the 
SWEDISH MATCH 
 
17 
service provider but also to the recipient, 1 which explains why the appellant may 
plead the infringement of that freedom directly, in so far as it concerns the 
appellant itself. 
In the light of the uncertainties raised and of the fact that this court believes that 
there is no specific case-law on the compatibility of the rules affording favourable 
treatment to the destruction of stamps on the national territory in contrast to 
destruction which takes place in other Member States, this court takes the view 
that there are compelling reasons to refer the following question to the Court of 
Justice of the European Union for a preliminary ruling: 
‘Do the free movement of goods, laid down in Article 28 TFEU et seq., and 
the freedom to provide services, laid down in Article 56 TFEU et seq., 
preclude rules such as those provided for in paragraphs 22, 23 and 24 of 
Ministerial Order No 1295/2007 of 1 October 2007, in accordance with 
which the automatic justification of a fixed quantity of 2% of the stamps 
destroyed during the manufacturing process applies only if the tobacco 
products are manufactured on Portuguese national territory and does not 
apply if manufacturing takes place in any other Member State of the 
European Union?’ 
4. Decision 
In accordance with and on the foregoing grounds, the judges of the Tax Division 
of the Supremo Tribunal Administrativo (Supreme Administrative Court) hereby 
decide: 
• To refer the above question to the Court of Justice of the European 
Union for a preliminary ruling. 
• To stay these appeal proceedings pursuant to Article 267 of the Treaty 
on the Functioning of the European Union (TFEU). 
[…] 
Lisbon, 2 April 2025 
[…] 
 
1 See judgments of 31 January 1984, Luisi and Giuseppe Carbone, C-286/82 and C-26/83, [and] 
of 28 January 1992, Bachmann, C-204/90.