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This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE 95/59/EC
of 27 November 1995
on taxes other than turnover taxes which affect the consumption of manufactured tobacco
(OJ L 291, 6.12.1995, p. 40)
Amended by:
Official Journal
No page date
►M1Council Directive 1999/81/EC of 29 July 1999 L211 47 11.8.1999
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COUNCIL DIRECTIVE 95/59/EC
of 27 November 1995
on taxes other than turnover taxes which affect the consumption of
manufactured tobacco
THE COUNCIL OF THE EUROPEAN UNION,
HavingregardtotheTreatyestablishingtheEuropeanCommunity,andin particular Article 99 thereof,
Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament(
1),
HavingregardtotheopinionoftheEconomicandSocialCommittee(2),
(1)WhereasCouncilDirective72/464/EECof19December1972on
taxes other than turnover taxes which affect the consumption ofmanufactured tobacco(
3)and Second Council Directive 79/
32/EECof18December1978ontaxesotherthanturnovertaxeswhich affect the consumption of manufactured tobacco(
4) have
been amended substantially and on a number of occasions;whereas for reasons of rationality and clarity the said Directivesshould be consolidated in a single text;
(2)Whereas the objective of the Treaty is to establish an economicunionwithinwhichthereishealthycompetitionandwhosechar-acteristics are similar to those of a domestic market; and, asregards manufactured tobacco, achievement of this aim presup-posesthattheapplicationintheMemberStatesoftaxesaffectingtheconsumptionofproductsinthissectordoesnotdistortcondi-tions of competition and does not impede their free movementwithin the Community;
(3)Whereas,asfarasexcisedutiesareconcerned,harmonizationofstructures must, in particular, result in competition in thedifferent categories of manufactured tobacco belonging to thesame group not being distorted by the effects of the charging ofthetaxand,consequently,intheopeningofthenationalmarketsof the Member States;
(4)Whereas the structure of the excise duty on cigarettes mustinclude,inadditiontoaspecificcomponentcalculatedperunitoftheproduct,aproportionalcomponentbasedontheretailsellingprice, inclusive of all taxes; whereas the turnover tax on cigar-ettes has the same effect as a proportional excise duty and thisfact should be taken into account when the ratio between thespecificcomponentoftheexcisedutyandthetotaltaxburdenisbeing established;
(5)Whereas, as regards cigarettes, the abovementioned objective isbestachievedbyasystemwhichprovidesforadigressionintheincidence of the tax and whereas for this purpose, the taximposedontheseproductsshouldconsistofaproportionalexcisedutycombinedwithaspecificexciseduty,theamountofwhichis fixed by each Member State in accordance with Communitycriteria;
(6)Whereasthestructuresforexcisedutiesonmanufacturedtobaccoshould be harmonized by stages;
(1) OJ No C 56, 6. 3. 1995, p. 164.
(2) OJ No C 133, 31. 5. 1995, p. 1.
(3) OJ No L 303, 31. 12. 1972, p. 1. Directive as last amended by Directive
92/78/EEC (OJ No L 316, 31. 10. 1992, p. 5).
(4) OJ No L 10, 16. 1. 1979, p. 8. Directive as last amended by Directive
92/78/EEC.
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(7)Whereas the imperative needs of competition imply a system of
freely formed prices for all groups of manufactured tobacco;
(8)Whereasthereareseveraltypesofmanufacturedtobacco,distin-guishedbytheircharacteristicsandbythewayinwhichtheyareused;
(9)Whereasthesedifferenttypesofmanufacturedtobaccoshouldbedefined;
(10)Whereas,foreconomicreasons,temporaryderogationsshouldbeprovided for certain Member States;
(11)Whereasadistinctionneedstobemadebetweenfine-cuttobaccofor the rolling of cigarettes and other smoking tobacco;
(12)Whereasamanufacturerneedstobedefinedasanaturalorlegalperson who actually prepares tobacco products and sets themaximum retail selling price for each of the Member States forwhich the products in question are to be released for consump-tion;
(13)Whereas a majority of Member States grant exemptions fromexcise duty or make refunds of excise duty in respect of certaintypes of manufactured tobacco depending on the use which ismadeofthem,andwhereastheexemptionsorrefundsforpartic-ular uses need to be specified in this Directive;
(14)Whereas rolls of tobacco capable of being smoked as they areafter simple handling should also be deemed to be cigarettes forthe purposes of uniform taxation of these products;
(15)Whereas the Federal Republic of Germany should be authorizedto tax rolls at least at the rate or amount applicable to fine-cuttobacco for the rolling of cigarettes until 31 December 1998 atthe latest;
(16)WhereasthisDirectivemustnotaffecttheobligationsofMemberStatesconcerningthedeadlinesforimplementationoftheDirect-ives set out in Annex I, Part B,
HAS ADOPTED THIS DIRECTIVE:
TITLE I
General principles
Article 1
1. The structure of the excise duty to which the Member States
subject manufactured tobacco shall be harmonized in several stages.
2. This Directive lays down general principles for this harmon-
ization, as well as the special criteria applicable during the stages ofharmonization.
3. Thetransitionfromonestageofharmonizationtothenextshallbe
decided on by the Council on a proposal from the Commission, takinginto account the effects produced during the stage in progress by themeasures introduced by the Member States into their system of exciseduties in order to comply with the provisions applicable during thatstage. The transition from one stage to the next may be deferredespeciallyifitislikelytoinvolvedisproportionatelossesofrevenuefora Member State.
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Article 2
1. The following shall be considered to be manufactured tobacco:
(a) cigarettes;
(b) cigars and cigarillos;
(c) smoking tobacco
— fine-cut tobacco for the rolling of cigarettes,
— other smoking tobacco;
as defined in Articles 3 to 7.
2. TheCouncilshall,onaproposalfromtheCommission,adoptthe
provisions necessary to determine the way in which manufacturedtobacco should be defined and classified in groups.
3. Notwithstanding existing Community provisions, the definitions
referredtoinArticles3to7shallbewithoutprejudicetothechoiceofsystemortheleveloftaxationwhichshallapplytothedifferentgroupsof products referred to in these Articles.
Article 3
Thefollowingshallbedeemedtobecigarsorcigarillosiftheycanbe
smoked as they are:
1. rolls of tobacco made entirely of natural tobacco;2. rolls of tobacco with an outer wrapper of natural tobacco;3. rolls of tobacco with an outer wrapper of the normal colour of a
cigar,andabinder,ofreconstitutedtobacco,whereatleast60 %byweight of the tobacco particles are both wider and longer than1,75 mm and where the wrapper is fitted in spiral form with anacute angle of at least 30 °to the longitudinal axis of the cigar;
4. rolls of tobacco with an outer wrapper, of the normal colour of a
cigar,ofreconstitutedtobacco,wheretheunitweight,notincludingfilter or mouth-piece, is not less than 2,3 g and if at least 60 % byweight of the tobacco particles are both wider and longer than1,75 mmandthecircumferenceoveratleastonethirdofthelengthis not less than 34 mm.
Article 4
1. The following shall be deemed to be cigarettes:
(a) rollsoftobaccocapableofbeingsmokedastheyareandwhichare
not cigars or cigarillos within the meaning of Article 3;
(b) rolls of tobacco which, by simple non-industrial handling, are
inserted into cigarette-paper tubes;
(c) rolls of tobacco which, by simple non-industrial handling, are
wrapped in cigarette paper.
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M1Up to and including 31 December 2001 ◄, the Federal
Republic of Germany shall be authorized to tax the rolls of tobaccoreferred to in (b) at least at the rate or amount applicable to fine-cuttobacco for the rolling of cigarettes.
2. Arolloftobaccoreferredtoinparagraph1shall,forexciseduty
purposes, be considered as two cigarettes where, excluding filter ormouthpiece,itislongerthan9 cmbutnotlongerthan18 cm,asthreecigaretteswhere,excludingfilterormouthpiece,itislongerthan18 cmbut not longer than 27 cm, and so on.
Article 5
The following shall be deemed to be smoking tobacco:
1. tobaccowhichhasbeencutorotherwisesplit,twistedorpressedinto
blocks and is capable of being smoked without further industrialprocessing;
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2. tobacco refuse put up for retail sale which does not fall under
Articles 3 and 4 and which can be smoked.
Article 6
Smoking tobacco as defined in Article 5 in which more than 25 % by
weight of the tobacco particles have a cut width of less than 1 milli-metre shall be deemed to be fine-cut tobacco for the rolling of cigar-ettes.MemberStateswhichdonotapplythiscutwidthof1millimetreon 1 January 1993 shall have until 31 December 1997 to comply withthis provision.
Member States may also deem smoking tobacco in which more than
25 %byweightofthetobaccoparticleshaveacutwidthofmorethan1millimetreandwhichwassoldorintendedtobesoldfortherollingofcigarettes to be fine-cut tobacco for the rolling of cigarettes.
Article 7
1. Products consisting in part of substances other than tobacco but
otherwiseconformingtothecriteriasetoutinArticle3shallbetreatedas cigars and cigarillos provided they have respectively:
— a wrapper of natural tobacco,
— a wrapper and binder of tobacco, both of reconstituted tobacco,— a wrapper of reconstituted tobacco.
2. Products consisting in whole or in part of substances other than
tobaccobutotherwiseconformingtothecriteriasetoutinArticle4or5shall be treated as cigarettes and smoking tobacco.
Notwithstandingthefirstsubparagraph,productscontainingnotobacco
and used exclusively for medical purposes shall not be treated asmanufactured tobacco.
Article 8
1. Cigarettes manufactured in the Community and those imported
from non-member countries shall be subject to a proportional excisedutycalculatedonthemaximumretailsellingprice,includingcustomsduties, and also to a specific excise duty calculated per unit of theproduct.
2. The rate of the proportional excise duty and the amount of the
specific excise duty must be the same for all cigarettes.
3. At the final stage of harmonization of structures, the same ratio
shall be established for cigarettes in all Member States between thespecificexcisedutyandthesumoftheproportionalexcisedutyandtheturnovertax,insuchawaythattherangeofretailsellingpricesreflectsfairly the difference in the manufacturers’ delivery prices.
4. Where necessary, the excise duty on cigarettes may include a
minimumtaxcomponent,theceilingforwhichshallbedeterminedforeach stage by the Council on a proposal from the Commission.
Article 9
1. A natural or legal person established in the Community who
converts tobacco into manufactured products prepared for retail saleshall be deemed to be a manufacturer.
Manufacturers,or,whereappropriate,theirrepresentativesorauthorized
agents in the Community and importers of tobacco from non-membercountriesshallbefreetodeterminethemaximumretailsellingpriceforeachoftheirproductsforeachMemberStateforwhichtheproductsinquestion are to be released for consumption.
The second paragraph may not, however, hinder implementation of
national systems of legislation regarding the control of price levels orthe observance of imposed prices, provided that they are compatiblewith Community legislation.
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2. Inordertofacilitatethelevyingoftheexciseduty,MemberStates
may, for each group of manufactured tobacco, fix a scale of retailselling prices on condition that each scale has sufficient scope andvariety to correspond in fact with the variety of Community products.Eachscaleshallbevalidforalltheproductsbelongingtothegroupofmanufactured tobacco which it concerns, without distinction on thebasis of quality, presentation, the origin of the products or of thematerials used, the characteristics of the undertakings or of any othercriterion.
Article 10
1. At the final stage at the latest the rules for collecting the excise
duty shall be harmonized. During the preceding stages the excise dutyshall, in principle, be collected by means of tax stamps. If they collecttheexcisedutybymeansoftaxstamps,MemberStatesshallbeobligedto make these stamps available to manufacturers and dealers in otherMemberStates.Iftheycollecttheexcisedutybyothermeans,MemberStates shall ensure that no obstacle, either administrative or technical,affects trade between Member States on that account.
2. Importers and national manufacturers of manufactured tobacco
shall be subject to the system set out in paragraph 1 as regards thedetailed rules for levying and paying the excise duty.
Article 11
The following may be exempted from excise duty or excise duty
already paid on them may be refunded:
(a) denatured manufactured tobacco used for industrial or horticultural
purposes;
(b) manufactured tobacco which is destroyed under administrative
supervision;
(c) manufactured tobacco which is solely intended for scientific tests
and for tests connected with product quality;
(d) manufactured tobacco which is reworked by the producer.
Member States shall determine the conditions and formalities to which
the abovementioned exemptions or refunds are subject.
TITLE II
Special provisions applicable during the first stage of harmonization
Article 12
1. Subject to Article 1 (3), the first stage of harmonization of the
structures of the excise duty on manufactured tobacco shall cover aperiod of sixty months from 1 July 1973.
2. DuringthefirststageofharmonizationArticles13and14shallbe
applicable.
Article 13
1. The amount of the specific excise duty levied on cigarettes shall
be established for the first time by reference to cigarettes in the mostpopular price category according to the data available on 1 January1973.
2. Without prejudice to the solution to be finally adopted regarding
the ratio between the specific component and the proportional compo-nent,theamountreferredtoinparagraph1maynotbelowerthan5 %orhigherthan75 %oftheaggregateamountoftheproportionalexciseduty and the specific excise duty levied on these cigarettes.
3. Iftheexcisedutyonthepricecategoryreferredtoinparagraph1
isamendedafter1January1973,theamountofthespecificexcisedutyshallbeestablishedbyreferencetothenewtaxburdenonthecigarettesreferred to in paragraph 1.
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Article 14
NotwithstandingArticle8(1),eachMemberStatemayexcludecustoms
duties from the basis for calculating the proportional excise duty oncigarettes.
TITLE III
Special provisions applicable during the second stage of harmonization
Article 15
1. Thesecondstageofharmonizationofthestructuresoftheexcise
duty on manufactured tobacco shall run from 1 July 1978.
2. During the second stage of harmonization Article 16 shall apply.
Article 16
1. The amount of the specific excise duty on cigarettes shall be
establishedbyreferencetocigarettesinthemostpopularpricecategoryaccordingtotheinformationavailableat1Januaryeachyear,beginning1 January 1978.
2. The specific component of the excise duty may not be less than
5 %ormorethan55 %oftheamountofthetotaltaxburdenresultingfromtheaggregationoftheproportionalexciseduty,thespecificexciseduty and the turnover tax levied on these cigarettes.
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2a. By way of derogation from paragraph 2, where a change in theretail selling price of cigarettes in the most popular price categoryoccurs in a Member State, thereby bringing the specific component oftheexciseduty,expressedasapercentageofthetotaltaxburden,below5% or above 55% of the total tax burden, the Member State inquestion may refrain from adjusting the amount of the specific excisedutyuntilnotlaterthan1Januaryofthesecondyearfollowingthatinwhich the change occurs.
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3.►M1Iftheexcisedutylevied ◄onthepricecategoryreferred
to in paragraph 1 is amended after 1 January 1978, the amount of thespecific excise duty shall be established by reference to the new totaltax burden on the cigarettes referred to in paragraph 1.
4. Notwithstanding Article 8 (1), each Member State may exclude
customs duties from the basis for calculating the proportional exciseduty on cigarettes.
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5. Member States may levy a minimum excise duty on cigarettes,provided that this does not have the effect of raising the total tax tomore than 90% of the total tax on the most popular price category ofcigarettes.
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TITLE IV
Final provisions
Article 17
Where necessary, the Council shall, on a proposal from the Commis-
sion, adopt provisions for the application of this Directive.
Article 18
Member States shall communicate to the Commission the text of the
main provisions of national law which they adopt in the field coveredby this Directive.
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Article 19
1. TheDirectiveslistedinAnnex1,PartAshallberepealed,without
prejudicetotheobligationsoftheMemberStatesconcerningthetime-limits for implementation set out in Annex I, Part B.
2. References to the repealed Directives shall be construed as refer-
encestothisDirectiveandshallbereadinaccordancewiththecorrela-tion table set out in Annex II.
Article 20
This Directive shall enter into force on the twentieth day following its
publication in the Official Journal of the European Communities .
Article 21
This Directive is addressed to the Member States.
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Directive Time-limitsfortranspositionANNEXI
PART A
REPEALED DIRECTIVES
(referred to in Article 19)
1. Directive 72/464/EEC
2. Directive 79/32/EECand their successive amendments:— Directive 74/318/EEC
— Directive 75/786/EEC— Directive 76/911/EEC— Directive 77/805/EEC— Directive 80/369/EEC— Directive 80/1275/EEC— Directive 81/463/EEC— Directive 82/2/EEC— Directive 82/877/EEC— Directive 84/217/EEC— Directive 86/246/EEC— Directive 92/78/EEC.
PART B
— 72/464/EEC
1. 7. 1973(1)
— 79/32/EEC 1. 1. 1980
— 74/318/EEC
— 75/786/EEC
— 76/911/EEC
— 77/805/EEC
— 80/369/EEC
— 80/1275/EEC
— 81/463/EEC
— 82/2/EEC
— 82/877/EEC
— 84/217/EEC
— 86/246/EEC 1. 1. 1986
— 92/78/EEC 31. 12. 1992
(1) The United Kingdom and Ireland were allowed to postpone this time-limit until 31
December 1977.
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ThisDirective Directive72/464/EEC Directive79/32/EECANNEXII
CORRELATION TABLE
TitleI TitleI
Article1,(1)and(2) Article1,(1)and(2)
Article1,(3) Article1,(4)
Article2,(1)and(2) Article3,(1)and(2) Article1,(1)
Article2,(3) Article1,(2)
Article3 Article2
Article4 Article3
Article5 Article4
Article6 Article4a
Article7 Article7
Article8 Article4
Article9 Article5
Article10 Article6
Article11 Article6a
TitleII TitleII
Article12 Article7
Article13 Article8
Article14 Article9
TitleIII TitleII a
Article15 Article10a
Article16 Article10b
TitleIV TitleIII
Article17 Article11
Article18 Article12,(2)
Article19 ——
Article20 ——
Article21 Article13 Article10