Provisional text
JUDGMENT OF THE GENERAL COURT (Second Chamber, sitting with five Judges)
15 April 2026 (*)
( Reference for a preliminary ruling – Taxation – Excise duties – Excise duty applied to manufactured tobacco – Article 5(1) of Directive 2011/64/EU – Interpretation of the concept of ‘smoking tobacco’ – Consideration of the provisions of the combined nomenclature and explanatory notes – Validity – Legal certainty – Principle that offences and penalties must be defined by law )
In Case T‑190/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania), made by decision of 27 February 2025, received at the Court of Justice on 27 February 2025, in criminal proceedings against
A.K.,
‘Tabako lapai’ UAB,
other party:
Lietuvos Respublikos generalinė prokuratūra,
THE GENERAL COURT (Second Chamber, sitting with five Judges),
composed of N. Półtorak, President, G. Hesse (Rapporteur), G. Steinfatt, D. Petrlík and I. Dimitrakopoulos, Judges,
Advocate General: M. Brkan,
Registrar: V. Di Bucci,
having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 19 March 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,
having regard to the fact that the case concerns the areas referred to in points (b) and (d) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,
having regard to the written part of the procedure,
after considering the observations submitted on behalf of:
–        the Lithuanian Government, by V. Kazlauskaitė-Švenčionienė, acting as Agent,
–        the Council of the European Union, by R. Liudvinavičiūtė, S. Santoro and O. Segnana, acting as Agents,
–        the European Commission, by M. Björkland, A. Demeneix and J. Jokubauskaitė, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns, first, the interpretation of Article 5(1)(a) 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), and of headings 2401 and 2403 of the Combined Nomenclature set out in
Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16), in the version resulting from Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017 (OJ 2017 L 282, p. 1) (‘the CN’), and, second, the validity of Article 5(1)(a) of Directive 2011/64 and the CN in view of Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the general principle of legal certainty.
2        The request has been made in criminal proceedings brought against ‘Tabako lapai’ UAB, a company governed under Lithuanian law, and A.K., its director, concerning offences relating to excise duties.
Legal framework
European Union law
Directive 2011/64
3        Recitals 2, 3, 8 and 9 of Directive 2011/64 state:
‘(2)      The Union’s fiscal legislation on tobacco products needs to ensure the proper functioning of the internal market and, at the same time, a high level of health protection …
(3)      One of the objectives of the Treaty on European Union is to maintain an economic union, whose characteristics are similar to those of a domestic market, within which there is healthy competition. As regards manufactured tobacco, achievement of this aim presupposes that the application in the Member States of taxes affecting the consumption of products in this sector does not distort conditions of competition and does not impede their free movement within the Union.
…
(8)      In the interests of uniform and fair taxation, a definition of cigarettes, cigars and cigarillos and of other smoking tobacco should be laid down so that, respectively, … smoking tobacco which is similar in many respects to fine-cut tobacco intended for the rolling of cigarettes is treated as fine-cut tobacco for excise purposes …
(9)      As far as excise duties are concerned, harmonisation of structures must, in particular, result in competition in the different categories of manufactured tobacco belonging to the same group not being distorted by the effects of the charging of the tax and, consequently, in the opening of the national markets of the Member States.’
4        Article 1 of Directive 2011/64, entitled ‘Subject matter’, is worded as follows:
‘This Directive lays down general principles for the harmonisation of the structure and rates of the excise duty to which the Member States subject manufactured tobacco.’
5        Article 2(1) of Directive 2011/64 provides:
‘For the purposes of this Directive manufactured tobacco shall mean:
…
(c)      smoking tobacco:
(i)      fine-cut tobacco for the rolling of cigarettes;
(ii)      other smoking tobacco.’
6        Article 5(1) of Directive 2011/64 states:
‘For the purposes of this Directive smoking tobacco shall mean:
(a)      tobacco which has been cut or otherwise split, twisted or pressed into blocks and is capable of being smoked without further industrial processing;
(b)      tobacco refuse …’
The CN
7        Part Two of the CN, entitled ‘Schedule of customs duties’, includes a Section IV, entitled ‘Prepared foodstuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes’, which includes, inter alia, Chapter 24 of the CN, itself entitled ‘Tobacco and manufactured tobacco substitutes’. That chapter includes the following headings and subheadings:
CN Code
Description
2401
Unmanufactured tobacco; tobacco refuse:
…
…
2403
Other manufactured tobacco and manufactured tobacco substitutes; ‘homogenised’ or ‘reconstituted’ tobacco; tobacco extracts and essences:
– Smoking tobacco, whether or not containing tobacco substitutes in any proportion:
…
…
2403 19
– – Other:
2403 19 10
– – – In immediate packings of a net content not exceeding 500g
2403 19 90
– – – Other
…
…
Explanatory Notes to the CN
8        The Explanatory Notes to the Combined Nomenclature of the European Union (OJ 2015 C 76, p. 1), as amended (OJ 2016 C 121, p. 4) (‘the Explanatory Notes to the CN’), relating to Chapter 24 of the CN, provide, as regards the subheadings 2403 19 10 and 2403 19 90, that ‘smoking tobacco is tobacco which has been cut or otherwise split, twisted or pressed into blocks which can be smoked without further industrial processing’.
9        Annex A to Chapter 24 of the Explanatory Notes to the CN, entitled ‘Smoking test for tobacco and tobacco products’, provides, in the part relating to ‘Scope’:
‘The scope of the smoking test is to set up a harmonised method to distinguish manufactured tobacco (tobacco ready for smoking without any further processing) of heading 2403 from unmanufactured tobacco of heading 2401. In order to make a distinction between manufactured tobacco of heading 2403 and unmanufactured tobacco of heading 2401, a smoking test shall be performed …’
10      Annex A to Chapter 24 of the Explanatory Notes to the CN states, in the part relating to ‘Sample preparation’:
‘The sample is thoroughly mixed and if necessary sub-sampled by coning and quartering. When the sample is dry (water content is less than 8% by mass), it should be conditioned (temperature 22 ± 1°C and humidity 60 ± 3%) for at least 48 hours.
The sample is not allowed to be cut in any way, broken, crushed, ground or otherwise split.’
Lithuanian law
Lithuanian Criminal Code
11      Article 1992 of the Lietuvos Respublikos baudžiamasis kodeksas (Lithuanian Criminal Code) of 26 September 2000 (Žin., 2000, No 89-2741), as amended, entitled ‘Illegal detention of products subject to excise
duty’, provides, in paragraph 1 thereof:
‘Any person who, in breach of the prescribed procedure, acquires, holds, transports, dispatches, uses or sells products subject to excise duty of a value greater than 150 [minimum living standards] but not exceeding 400 [minimum living standards] shall be liable to a fine or a term of imprisonment for a maximum period of four years.’
12      Article 202(1) of the Lithuanian Criminal Code, entitled ‘Unlawful exercise of an economic, commercial, financial or professional activity’, states:
‘Any person who, on a professional or large scale, engages in an economic, commercial, financial or professional activity without having the required licence (authorisation) in respect of that activity or in any other unlawful manner shall be punished by community service,
by a fine, or by a deprivation of liberty or a term of imprisonment for a maximum period of four years.’
Lithuanian Law on excise duties
13      Article 2(1) of the Lietuvos Respublikos akcizų įstatymas Nr. IX-569 (Lithuanian Law on excise duties No IX-569), of 30 October 2001 (Žin., 2001, No 98-3482), as amended, refers to, among the products subject to excise duty, manufactured tobacco.
14      According to Article 3(9) of the Lithuanian Law on excise duty, the concept of ‘manufactured tobacco’ covers cigarettes, cigars, cigarillos and smoking tobacco. Furthermore, Article 3(27)(1) of that Law provides that ‘smoking tobacco’ means tobacco which has been stemmed, cut or otherwise split, twisted or pressed into blocks (cubes), which can be smoked without further industrial processing.
15      According to Article 3(38) of the Lithuanian Law on excise duties:
‘In this Law and its annexes, the product codes shall be indicated in accordance with the version of the CN for the current year, as set out in the relevant Council directive establishing the taxation of the products concerned.’
Lithuanian Law on tobacco control, tobacco products and related products
16      According to Article 2(20) of the Lietuvos Respublikos tabako, tabako gaminių ir su jais susijusių gaminių kontrolės įstatymas Nr. I-1143 (Lithuanian Law on tobacco control, tobacco products and related products No I-1143) of 20 December 1995 (Žin., 1996, No 11-281), as amended, the concept of ‘unmanufactured tobacco’ covers tobacco leaves and other parts of tobacco, whether whole or otherwise manufactured, with the exception of those which are regarded as manufactured tobacco in accordance with the Lithuanian Law on excise duties.
The dispute in the main proceedings and the questions referred for a preliminary ruling
17      This request for a preliminary ruling has been made in the context of criminal proceedings against Tabako lapai and A.K., who are being prosecuted for having manufactured and stored, without holding a licence, large quantities of manufactured tobacco subject to excise duty.
18      Tabako lapai was an importer and exporter of tobacco raw materials. It processed imported tobacco, in part, consisting, in essence, in stemming it, splitting it, irrigating it, partially or completely removing the stems from the shredded leaves and packaging it in plastic bags of 20 kilograms. The tobacco, however, was not cut. That tobacco, processed, in part, was then exported to other Member States of the European Union.
19      A customs laboratory was responsible for determining whether the tobacco thus processed was indeed unmanufactured tobacco which, on that basis, did not fall within the category of products subject to excise duty. To that end, a laboratory specialist carried out a smoking test from which it was possible for that specialist to conclude that the tobacco found in Tabako lapai’s warehouse corresponded to the description of manufactured tobacco and more specifically to that of smoking tobacco. In order to reach that conclusion, that specialist had to cut a sample of the tobacco at issue, place it in a cigarette tube and smoke it. The specialist was thus able to establish that that tobacco was capable of being smoked, after carrying out some straightforward preparatory handling consisting in cutting the sample by hand or splitting it.
20      By judgment of 28 March 2024, the Lietuvos apeliacinis teismas (Court of Appeal of Lithuania) found Tabako lapai and A.K. guilty of committing the offences laid down in Article 1992(1) and Article 202(1) of the Lithuanian Criminal Code and imposed on them, respectively, a compulsory dissolution order and a fine. Tabako lapai and A.K. brought an appeal on a point of law against that judgment before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania), which is the referring court.
21      The referring court considers that in so far as the operation consisting, for the purpose of the smoking test, in cutting a sample of tobacco by hand is not in the nature of ‘further industrial processing’, within the meaning of Article 5(1)(a) of Directive 2011/64 and the case-law of the Court of Justice, the tobacco at issue in the main proceedings is capable of falling within the concept of ‘smoking tobacco’ for the purpose of applying excise duty. It notes however that, since that operation adversely affected the integrity of the sample, in disregard of the conditions for smoking tests laid down in the Explanatory Notes to the CN, that tobacco could be regarded, in respect of the application of customs duties, as not capable of being smoked without ‘further industrial processing’ and should be classified under heading 2401 of the CN as ‘unmanufactured tobacco’.
22      According to the referring court, even if the EU legislature chose not to establish a direct link between the legislation on excise duties and the legislation relating to customs duties as regards the definition of products, there are reasonable doubts as to the justification for a situation in which the same tobacco is treated differently by those two sets of legislation both from the viewpoint of the possibility of being smoked without ‘further industrial processing’ and from the viewpoint of its classification as ‘smoking tobacco’.
23      The referring court is uncertain whether, in that context, the mere absence of a direct reference in Directive 2011/64 to the Explanatory Notes to the CN is sufficient to justify not applying those notes in order to define ‘manufactured tobacco’, within the meaning of that directive. It also harbours doubts as to whether the EU legislation under which tobacco intended to be smoked is described and defined in identical terms in respect of the application of customs duties and excise duties, but may be treated differently according to the method followed in respect of the smoking test laid down in the Explanatory Notes to the CN, satisfies the requirements of the general principle of legal certainty. It is uncertain, in particular, whether that legislation enables the interested parties to reasonably predict whether their conduct in relation to products subject to excise duty may give rise to criminal liability or equivalent liability.
24      In those circumstances, the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      In determining whether the tobacco at issue in the present case is “smoking tobacco” within the meaning of Article 5(1) of [Directive 2011/64], and in applying the definition in that provision and the relevant case-law of the Court of Justice of the European Union, may the national court also rely, in addition, on the provisions of [Regulation No 2658/87] relating to the classification of that tobacco and on the Explanatory Notes to the [CN]?
(2)      If the answer to the first question is in the affirmative:
(i)      must Article 5(1)(a) of Directive 2011/64 be interpreted as meaning that tobacco is to be regarded as “smoking tobacco” even if that tobacco has been classified under [CN] heading 2403 (manufactured tobacco) pursuant to [Implementing Regulation 2017/1925] without the conditions for the smoking test described in the Annex to the Explanatory Notes to the [CN] being fulfilled, as in the present case?
(ii)      how is CN heading 2401 (unmanufactured tobacco) to be interpreted for the purpose of classifying tobacco under [Implementing Regulation 2017/1925], where the result of a smoking test carried out in accordance with the Explanatory Notes to the [CN] is negative, but the tobacco is considered to be manufactured tobacco for the purposes of Article 5(1)(a) of Directive 2011/64?
(3)      If the answer to the first question is in the negative, is such legislation, whereby smoking tobacco is defined, in essence, in the same way but is classified differently under Article 5(1)(a) of Directive 2011/64 and under the [CN], inconsistent with the general principle of legal certainty and the principle of nulla poena sine lege, as enshrined in Article 49(1) of the [Charter]?’
Consideration of the questions referred
The first question
25      By its first question, the referring court asks, in essence, whether it is necessary to rely on the tariff headings of the CN and the Explanatory Notes to the CN in order to interpret Article 5(1)(a) of Directive 2011/64.
26      According to the case-law of the Court of Justice, the purpose of Directive 2011/64, as follows from Article 1 thereof, is to lay down general principles for the harmonisation of the structure and rates of the excise duty to which the Member States subject manufactured tobacco. That directive falls, therefore, within the European Union’s fiscal legislation on tobacco products, which, in the words of recital 2 of that directive, has the objective of ensuring the proper functioning of the internal market and, at the same time, a high level of health protection (judgment of 6 April 2017, Eko-Tabak, C‑638/15, EU:C:2017:277, paragraph 17).
27      It is apparent, in addition, from recital 3 of Directive 2011/64 that the directive seeks to ensure that the application in the Member States of taxes affecting the consumption of products in the manufactured tobacco sector does not distort conditions of competition and does not impede their free movement within the European Union. In particular, it is stated, in essence, in recital 8 of that directive, that products which are similar in many respects to products covered by that directive are to be treated in the same way, while recital 9 of the directive states that harmonisation of excise duty structures must result in competition in the different categories of manufactured tobacco belonging to the same group not being distorted by the effects of the charging of the tax and, consequently, in the opening of the national markets of the Member States (judgment of 6 April 2017, Eko-Tabak, C‑638/15, EU:C:2017:277, paragraph 18).
28      It should also be recalled that, for the purpose of interpreting Directive 2011/64, the definition of ‘smoking tobacco’ cannot, having regard to the objectives of that directive, be construed narrowly (judgment of 6 April 2017, Eko-Tabak, C‑638/15, EU:C:2017:277, paragraph 24).
29      Concerning the concept of ‘industrial processing’, used in Article 5(1)(a) of Directive 2011/64, this commonly refers to the transformation, usually on a large scale and by a standardised process, of raw materials into tangible goods (see, to that effect, judgment of 6 April 2017, Eko-Tabak, C‑638/15, EU:C:2017:277, paragraph 30).
30      It follows from the case-law of the Court of Justice that simple handling intended to make an unfinished tobacco product capable of being smoked, such as merely inserting a roll of tobacco into a cigarette tube, is not ‘industrial processing’ (see judgment of 6 April 2017, Eko-Tabak, C‑638/15, EU:C:2017:277, paragraph 31 and the case-law cited).
31      In those circumstances, manufactured tobacco which is ready, or can easily be made ready, by non-industrial means, to be smoked must be considered to be capable of being smoked without further ‘industrial processing’, within the meaning of Article 5(1)(a) of Directive 2011/64 (judgment of 6 April 2017, Eko-Tabak, C‑638/15. EU:C:2017:277, paragraph 32).
32      It is for the referring court to assess whether a tobacco product such as that at issue in the main proceedings fulfils that criterion and may therefore be classified as ‘smoking tobacco’ within the meaning of Article 5(1)(a) of Directive 2011/64.
33      That assessment cannot be affected by the fact that, in contrast to Directive 2011/64, the Explanatory Notes to the CN require a smoking test for the purpose of determining whether a given product falls within the category of ‘unmanufactured tobacco’ or ‘smoking tobacco’, in order to satisfy the conditions of that test, the sample is not allowed to be cut in any way, broken, crushed, ground or otherwise split and that, in the present case, the person who carried out the smoking test has hand-cut a sample of the tobacco at issue in the main proceedings before testing it.
34      It should be noted, in that regard, that the function and purpose of the tariff headings of the CN are different from those of the provisions of Directive 2011/64.
35      The CN was established by Regulation No 2658/87 for the purpose of both the Common Customs Tariff and the external trade statistics of the European Union. Directive 2011/64 has the objective of ensuring the proper functioning of the internal market and at the same time a high level of health protection. It is that objective which, as follows from the case-law cited in paragraph 28 above, precludes, in particular, the concept of ‘smoking tobacco’, within the meaning of that directive, being construed narrowly. That directive and the CN therefore constitute two different regulatory frameworks which may be open to differing interpretations.
36      Where there is any
divergence between the classification referred to in Directive 2011/64 and that resulting from the CN and its explanatory notes, the classification of products in the category of smoking tobacco, for the purposes of Directive 2011/64, cannot be called into question by the Explanatory Notes to the CN. Those explanatory notes cannot have an effect on the definition of smoking tobaccos for the purpose of Directive 2011/64. In that regard, it should be noted that, unlike other directives relating to certain products subject to excise duty, such as Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51), Directive 2011/64 does not refer to codes of the CN in order to define the manufactured tobacco falling within its scope (see, to that effect, judgment of 11 April 2019, Skonis ir kvapas, C‑638/17, EU:C:2019:316, paragraphs 45 and 46).
37      Consequently, the answer to the first question is that Article 5(1)(a) of Directive 2011/64 must be interpreted as meaning that, in order to classify a product as ‘smoking tobacco’, within the meaning of that provision, it is not necessary to rely on the tariff headings of the CN and on the Explanatory Notes to the CN.
The second question
38      In the light of the answer given to the first question, there is no need to answer the second question.
The third question
39      By its third question, the referring court asks, in essence, whether Directive 2011/64, Implementing Regulation 2017/1925 and the Explanatory Notes to the CN, in so far as they describe and define in identical terms the category of ‘smoking tobacco’ for the application of customs duties and excise duties, but are capable of treating the same product differently in respect of the classification in that category in terms of the method used for the smoking test laid down in the Explanatory Notes to the CN, are valid in view of the general principle of legal certainty and the principle that offences and penalties must be defined by law, enshrined in particular by Article 49(1) of the Charter, since the provisions of Directive 2011/64 constitute, in essence, reference legislation for the purpose of defining the subject matter of offences provided for by national legislation.
40      It should be noted that the referring court has referred the third question subject to a negative answer to the first question. In that regard, it follows from the answer given to that question, as is apparent from paragraphs 26 to 32 above, subject to verification by the referring court, that a product such as that at issue in the main proceedings is a product subject to excise duty as ‘smoking tobacco’, within the meaning of Article 5(1)(a) of Directive 2011/64. That is so even though that product cannot be classified as ‘smoking tobacco’, within the meaning of Implementing Regulation 2017/1925 and the Explanatory Notes to the CN, since it fails to satisfy the conditions of the smoking test described in those explanatory notes.
41      In those circumstances, the referring court asks whether that divergence in the classification of one and the same product is consistent with the principle of legal certainty and the principle that offences and penalties must be defined by law.
42      According to settled case-law, the principle of legal certainty requires, in particular, that rules of law be clear, precise and predictable in their effect, especially where they may have negative consequences for individuals and undertakings (see, to that effect, judgment of 29 January 2026, Keladis I et Keladis II, C‑72/24 and C‑73/24, EU:C:2026:51, paragraph 163 and the case-law cited).
43      In addition, the first sentence of Article 49(1) of the Charter requires the law to give a clear definition of offences and the penalties which they attract, that requirement being satisfied where the individual concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him or her criminally liable (see, to that effect, judgment of 9 September 2021, Ministère public (Extraterritorial penalties), C‑906/19, EU:C:2021:715, paragraph 46 and the case-law cited).
44      The fact that legislation refers to broad concepts which must be clarified gradually does not, in principle, preclude that legislation from being regarded as laying down clear and precise rules allowing individuals to predict which acts and omissions are liable to be subject to penalties of a criminal nature. In that regard, what matters is whether any ambiguity or vagueness in those concepts may be dispelled by using the ordinary methods of interpretation of the law (see judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraph 44 and the case-law cited).
45      Lastly, the Court of Justice has emphasised that the degree of foreseeability required depends to a considerable extent on the content of the text in question, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances of the case at issue, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. Such persons can therefore be expected to take special care in evaluating the risk that such an activity entails (see judgment of 29 July 2024, Belgian Association of Tax Lawyers and Others, C‑623/22, EU:C:2024:639, paragraph 45 and the case-law cited).
46      In the present case, as follows from paragraphs 34 to 36 above, the methods of interpretation of EU law enable the persons concerned to foresee that a product such as the product at issue in the main proceedings could be classified in the category of ‘smoking tobacco’, within the meaning of Article 5(1)(a) of Directive 2011/64, even if that product was not classified as ‘smoking tobacco’ within the meaning of Implementing Regulation 2017/1925 and the Explanatory Notes to the CN. First, it was apparent from the teleological interpretation of those two regulatory frameworks, which do not have a criminal nature, that they had different objectives. The CN is designed to meet the requirements of both the Common Customs Tariff and the external trade statistics of the European Union (see, to that effect, judgment of 12 December 2013, HARK, C‑450/12, EU:C:2013:824, paragraph 10). Directive 2011/64 has, for its part, the objective of ensuring the proper functioning of the internal market and, at the same time, a high level of health protection (judgment of 6 April 2017, Eko-Tabak, C‑638/15, EU:C:2017:277, paragraph 17). Second, on account of the absence of any reference in Directive 2011/64 to CN codes in order to define the manufactured tobacco falling within the scope of that directive, a literal interpretation did not support the conclusion that Implementing Regulation 2017/1925 and the Explanatory Notes to the CN were intended to determine the classification of products in the category of ‘smoking tobacco’, within the meaning of Article 5(1)(a) of Directive 2011/64.
47      That conclusion was supported by the judgment of 11 April 2019, Skonis ir kvapas (C‑638/17, EU:C:2019:316, paragraphs 45 and 46), from which it is apparent that the Explanatory Notes to the CN cannot have any effect on the definition of cigars or cigarillos, within the meaning of Article 4(1) of Directive 2011/64.
48      In the light of the case-law cited in paragraphs 44 and 45 above, it cannot be held that the difference in the definition of ‘smoking tobacco’ under Directive 2011/64 and the CN does not meet the requirements of the general principle of legal certainty and the principle that offences and penalties must be defined by law, enshrined by Article 49(1) of the Charter.
49      Accordingly, the EU legislature did not breach those principles when it adopted two sets of legislation in different fields pursuing different objectives, under which one and the same product may be classified, in accordance with the legislation being applied, in different categories.
50      It follows from the foregoing that the examination of the aspects to which the third question relates has disclosed no factor of such a kind as to affect the validity of Directive 2011/64, Implementing Regulation 2017/1925 and the Explanatory Notes to the CN in view of the general principle of legal certainty and the principle that offences and penalties must be defined by law, enshrined by Article 49(1) of the Charter.
Costs
51      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds,
LE TRIBUNAL (Second Chamber, sitting with five Judges)
hereby rules:
1.      Article 5(1)(a) of Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco
must be interpreted as meaning that in order to classify a product as ‘smoking tobacco’, within the meaning of that provision, it is not necessary to rely on the tariff headings of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000, in the version resulting from Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017, and on the Explanatory Notes to the Combined Nomenclature of the European Union.
2.      The examination of the aspects to which the third question relates has disclosed no factor of such a kind as to affect the validity of Directive 2011/64, Implementing Regulation 2017/1925 and the Explanatory Notes to the CN in view of the general principle of legal certainty and the principle that offences and penalties must be defined by law, enshrined by Article 49(1) of the Charter of Fundamental Rights of the European Union.
Półtorak
Hesse
Steinfatt
Petrlík
Dimitrakopoulos
Delivered in open court in Luxembourg on 15 April 2026.
[Signatures]
*      Language of the case: Lithuanian.