Case C‑638/15

Eko-Tabak s.r.o.

v

Generální ředitelství cel

(Request for a preliminary ruling from the Nejvyšší správní soud)

(Reference for a preliminary ruling — Directive 2011/64/EU — Article 2(1)(c) — Article 5(1)(a) — Definitions of ‘smoking tobacco’, ‘tobacco which has been cut or otherwise split’ and ‘industrial processing’)

Summary — Judgment of the Court (Sixth Chamber), 6 April 2017

Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which affect the consumption of manufactured tobacco — Directive 2011/64 — Smoking tobacco — Definition — Dried, flat, irregular, partly stripped leaf tobacco — Leaf tobacco having undergone primary drying and controlled dampening, containing glycerine and capable of being smoked after simple processing by means of crushing or hand-cutting — Included

(Council Directive 2011/64, Arts 2(1)(c) and 5(1) and (2))

Article 2(1)(c) and Article 5(1) 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 dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof which have undergone primary drying and controlled dampening, which contain glycerine and which are capable of being smoked after simple processing by means of crushing or hand-cutting, fall within the definition of ‘smoking tobacco’ for the purpose of those provisions.

It is apparent from the wording of Article 5(1)(a) of Directive 2011/64 that it requires that two cumulative conditions are met, namely, first, that the tobacco be cut or otherwise split, twisted or pressed into blocks and, secondly, that it is capable of being smoked without further industrial processing.

In that regard, there being no definition of the words ‘cut’ and ‘split’ in that directive, it is necessary, in order to determine the scope of those words, to refer to their usual and everyday accepted meanings (see, to that effect, judgment of 16 July 2015, Sommer Antriebs- und Funktechnik, C‑369/14, EU:C:2015:491, paragraph 46 and the case-law cited). Those words, the usual meaning of which is very wide, refer, inter alia, as regards the first, to the result of the process of removing a part or a piece of something with a sharp instrument, and, as regards the second, to the result of the process of breaking up or dividing something.

Consequently, in so far as the products at issue in the main proceedings consist, according to the information provided by the referring court, of tobacco leaves which have been partly stripped in order to remove the petiole, those products must be regarded as tobacco which has been cut or otherwise split, within the meaning of Article 5(1)(a) of Directive 2011/64.

Concerning the concept of ‘industrial processing’, used in Article 5(1)(a), this commonly refers to the transformation, usually on a large scale and by a standardised process, of raw materials into tangible goods.

It follows from the case-law of the Court of Justice, in essence, 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, by analogy, judgments of 24 September 1998, Brinkmann, C‑319/96, EU:C:1998:429, paragraphs 18 and 20, and of 10 November 2005, Commission v Germany, C‑197/04, EU:C:2005:672, paragraphs 31 and 32).

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.

In the present case, as is apparent from the decision to refer, the products at issue in the main proceedings have undergone primary drying and controlled dampening, contain glycerine and are capable of being smoked after simple processing by means of crushing or hand-cutting. Subject to verification by the referring court, it therefore appears that those products also satisfy the second condition referred to in paragraph 25 of the present judgment and, therefore, fall within the definition of ‘smoking tobacco’ laid down in Article 5(1)(a) of Directive 2011/64.

In those circumstances, as they do not constitute fine-cut tobacco for the rolling of cigarettes, within the meaning of Article 2(1)(c)(i) of that directive, such products must then be regarded as falling within the definition of ‘other smoking tobacco’, within the meaning of Article 2(1)(c)(ii) of that directive.

(see paras 25, 28-35, operative part)