Opinion of the Advocate General — ECLI:EU:C:2012:819
Date: 2012-12-19
Language of the case: French
Subject matter: Taxation;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Excise duties
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

summary, it is for the person alleging consecutively the infringement of an act of secondary legislation and a fundamental freedom to prove that the contested national measure is not subject exclusively to the scope of the act of secondary legislation and that instead it also applies to a sphere outside the scope of the act and covered by the fundamental freedom. Otherwise, a court ‘must confine itself’ to assessing the national measure ‘in the light of the provisions of the harmonising measure and not those of the Treaty’, as the Court of Justice requires. 49. Turning now to the specific facts of the present case, it should be noted at this juncture that whilst Directive 92/12 has carried out a minimum harmonisation in the sphere of taxation, it has nevertheless placed a number of insuperable restrictions on the Member States. Since those restrictions delimit an area in which action at national level is prohibited, they may be defined as specific aspects of exhaustive harmonisation. That is the case of Articles 8 and 9 of Directive 92/12, in particular the matters described in points 21 and 24 of this Opinion, in which the framework for assessing whether possession of tobacco is for commercial or private purposes is set out in detail. In that connection, it is apparent from the articles concerned that Member States may not establish objective criteria which deprive a private individual of the possibility to prove otherwise. In addition, those criteria must be applied per person and, in the case of quantitative criteria, with regard to the minimum thresholds set out in the second subparagraph of Article 9(2). 50. Accordingly, since, as proposed in points 26 to 29 of this Opinion, the French Republic has infringed the exhaustive harmonising provisions laid down in Directive 92/12, it is not necessary to examine whether there has also been an infringement of Article 34 TFEU, in view of the fact that, as regards the facts and measures specifically analysed in these proceedings, it is a provision which is superseded by the operation of Articles 8 and 9 of Directive 92/12. 51. Throughout the pleadings it has lodged in these proceedings, the Commission has confined itself to asserting that Article 575 H and the national administrative practices are incompatible with Article 34 TFEU. The purpose of this second plea is the same as that of the first plea but at no point has the applicant explained the extent to which the conduct complained of goes beyond the scope of Directive 92/12. Since Articles 8 and 9 provide for exhaustive harmonisation in the sphere concerned, the only way in which the Court might carry out an examination of the second plea would be if the French authorities had acted outside the material scope of the directive. However, the Commission has not adduced any evidence to prove the existence of conduct on the part of the French Republic which is outside the scope of Directive 92/12 and, therefore, subject to Article 34 TFEU. 52. Accordingly, reliance on the Treaty in a context in which there is what I have been referring to as a procedural supersession of the Treaty can lead only to the inadmissibility of the second plea in this case. In other words, reliance on the Treaty as an autonomous but consecutive plea of infringement cannot be regarded in any other way than as a ground for inadmissibility. Finally, by its second plea of infringement, the Commission has put forward an allegation of a breach which is redundant and incapable of acting with minimum autonomy as a criterion for assessment of the national measures at issue in the present proceedings. 53. Therefore, in accordance with Article 120(c) of the Rules of Procedure, I propose that the Court should rule that the second plea is inadmissible. IV – Costs 54. In accordance with Article 138(3) of the Rules of Procedure, where an action is partially successful, each party must bear its own costs. V – Conclusion 55. Consequently, I propose that the Court: (1) declare that, by implementing the measures provided for in Articles 575 G and 575 H of the General Tax Code, and a settled administrative practice, pursuant to which the quantitative criteria for determining the use of tobacco, which are the sole criteria provided for by the national authorities, are calculated by vehicle and by general categories of products and not by person and by specific categories of products, the French Republic has failed to fulfil the obligations incumbent on it under Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products; (2) rule that the second plea of infringement is inadmissible; (3) order each of the parties to bear its own costs. 1 – Original language: Spanish. 2 – Council Directive of 25 February 1992 (OJ 1992 L 76, p. 1), repealed by Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty (OJ 2009 L 9, p. 12). 3 – See, for example, Case C‑494/04 Heintz Van Landewijck [2006] ECR I‑5381, paragraph 41, and Case C‑374/06 BATIG [2007] ECR I‑11271, paragraph 38. 4 – See, inter alia, Case C‑517/07 Afton Chemical [2008] ECR I‑10427, paragraphs 36 and 37, and Case C‑550/08 British American Tobacco (Germany) [2010] ECR I‑5515, paragraph 38. 5 – Emphasis added. 6 – Emphasis added. 7 – See, inter alia, Case C‑197/96 Commission v France [1997] ECR I‑1489, paragraph 14; Case C‑358/98 Commission v Italy [2000] ECR I‑1255, paragraph 17; and Case C‑33/03 Commission v United Kingdom [2005] ECR I‑1865, paragraph 25. 8 – This formulation was already implied in case-law but it was articulated in Case C‑37/92 Vanacker and Lesage [1993] ECR I‑4947, paragraph 9, and was consolidated in a long list of judgments of the Court of Justice, including, inter alia, Case C‑324/99 DaimlerChrysler [2001] ECR I‑9897, paragraph 32; Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraph 64; and Case C‑309/02 Radlberger [2004] ECR I‑11763, paragraph 53. 9 – See, for example, Case C‑319/05 Commission v Germany [2007] ECR I‑9811, paragraph 35, in which the Court held that where a national measure comes within the scope of a directive, that ‘cannot in any event constitute a restriction on trade between Member States prohibited by Article 28 EC’ (emphasis added). 10 – See, inter alia, Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15; Case C‑51/93 Meyhui [1994] ECR I‑3879, paragraph 11; and Case C‑114/96 Kieffer and Thill [1997] ECR I‑3629, paragraph 27. 11 – See, inter alia, DaimlerChrysler, paragraph 32; Case C‑99/01 Linhart and Biffl [2002] ECR I‑9375, paragraph 18; Case C‑221/00 Commission v Austria [2003] ECR I‑1007, paragraph 42; and Joined Cases C‑421/00, C‑426/00 and C‑16/01 Sterbenz and Haug [2003] ECR I‑1065, paragraph 24. 12 – Case 150/88 [1989] ECR 3891. 13 – Ibid., paragraph 28. 14 – Cited above. 15 – Ibid., paragraph 46. On the same lines, referring to the lack of need for a ruling, Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 83. 16 – Expression used in, for example, Linhart and Biffl, paragraph 21; Sternbenz and Haug, paragraph 26; Case C‑257/06 Roby Profumi [2008] ECR I‑189, paragraph 15; and Case C‑569/07 HSBC Holdings and Vidacos Nominees [2009] ECR I‑9047, paragraph 27. 17 – Case C‑463/01 Commission v Germany [2004] ECR I‑11705. 18 – Ibid., paragraph 36.