Opinion of the Advocate General — ECLI:EU:C:2009:646
Date: 2009-10-22
Language of the case: French
Subject matter: Taxation
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Austria;France;Ireland

Summary of the Judgment Tax provisions – Harmonisation of laws – Taxes other than turnover taxes which affect the consumption of manufactured tobacco (Council Directive 95/59, as amended by Directive 2002/10, Art. 9(1)) A Member State fails to fulfil its obligations 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 2002/10, where it adopts and maintains in force a system of minimum prices for the retail sale of cigarettes released for consumption in that Member State and a prohibition on selling tobacco products ‘at a promotional price which is contrary to public health objectives’, and where that system does not make it possible to ensure, in any event, that the minimum price imposed does not impair the competitive advantage which could result for some producers and importers of tobacco products from lower cost prices. Such a system, which furthermore fixes the minimum price by reference to the average price on the market, is likely to eliminate price differences between competing products and to cause prices to converge around the price of the most expensive product. That system therefore undermines the freedom of producers and importers to determine their maximum retail selling price, guaranteed by the second paragraph of Article 9(1) of Directive 95/59. Moreover, such a system of minimum prices is not covered by the derogation in the third paragraph of Article 9(1) of that directive, since the legislation in question is intended neither to check inflation nor to avoid the loss of tax revenue caused by the exceeding of the maximum retail selling price freely fixed by producers or importers. In addition, the World Health Organisation Framework Convention on Tobacco Control cannot affect the compatibility or otherwise of such a system with Article 9(1) of Directive 95/59 since that convention imposes no actual obligation on the Contracting Parties with regard to price policies for tobacco products, and merely describes possible approaches by which to take account of national health objectives concerning tobacco control. Article 6(2) of the convention provides only that the Contracting Parties are to adopt or maintain measures which ‘may include’ implementing tax policies and, ‘where appropriate’, price policies, concerning tobacco products. Member States may not rely on Article 30 EC in order to justify an infringement of Article 9(1) of Directive 95/59 with reference to the objective of protection of health and life of humans. Article 30 EC cannot be understood as authorising measures other than the quantitative restrictions on imports and exports and the measures having equivalent effect envisaged by Articles 28 EC and 29 EC. The fact remains that Directive 95/59 does not prevent Member States from taking measures to combat smoking, which forms part of the objective of protecting public health. (see paras 41-42, 44-45, 49-50, 55, operative part)