Keywords

Summary



Keywords

1. Tax provisions - Harmonisation of laws - Taxes other than turnover taxes which affect the consumption of manufactured tobacco - Directive 92/80 - Manufactured tobacco other than cigarettes - Tax formula - Tax which is calculated ad valorem without being able to be below a minimum amount - Not permissible

(Council Directive 92/80, Art. 3(1))

2. Tax provisions - Harmonisation of laws - Taxes other than turnover taxes which affect the consumption of manufactured tobacco - Directive 92/80 - Manufactured tobacco other than cigarettes - Tax formula - Formula not laid down by the Directive - Discretion of the Member States - Scope - Possibility for taxable persons to rely on the relevant provision of the Directive - Duty of national courts

(Council Directive 92/80, Art. 3(1))

Summary

1. Article 3(1) of Directive 92/80 on the approximation of taxes on manufactured tobacco other than cigarettes, which lays down three tax formulas, at the Member States' choice, namely an ad valorem formula, a specific formula, by quantity, and a mixed formula, combining an ad valorem element and a specific element, must be interpreted as meaning that it precludes the levying on cigars or cigarillos of a tax which is calculated ad valorem without being able to be below a minimum amount.

Such a tax formula is clearly different from the mixed excise duty in that it applies an ad valorem element and a specific element not cumulatively but alternatively according to a price threshold and constitutes, therefore, a tax formula which is not laid down in the abovementioned article.

( see paras 23, 26-27, 29, operative part 1 )

2. Article 3(1) of Directive 92/80 on the approximation of taxes on manufactured tobacco other than cigarettes does not confer on persons chargeable to a tax on cigars or cigarillos, which is calculated ad valorem without being able to be below a minimum amount, the right to rely on it before a national court in order to avoid the application to them solely of the element of the tax formula relating to the levying of the minimum specific duty and, consequently, to have solely an ad valorem tax levied.

Although taxable persons can rely on Article 3(1) of the Directive which allows Member States a certain discretion by leaving them the choice between three different tax formulae in order to avoid the application to them of a tax formula which goes beyond the discretion left to the national legislature, that provision does not confer on them the right to rely on it before a national court in order to avoid the application to them solely of the minimum levy. First, it is not the minimum specific duty taken separately, but the whole tax formula which goes beyond the discretion and, second, to consider that taxable persons may rely on Article 3(1) of the Directive in order to avoid solely the application of the minimum specific duty presupposes that that provision gives rise to the right for them to be taxed according to the ad valorem formula. However, that formula is only one of the options provided by the Directive, and the Directive cannot be interpreted as requiring the national court to take the place of the national legislature on which alone it is incumbent to choose the tax formula which it deems appropriate, within the framework defined in the abovementioned article.

However, the national court, where it applies provisions of national law adopted either before or after a directive, must interpret them, as far as possible, in the light of the wording and the purpose of the Directive.

( see paras 31, 33, 36-39, 41, operative part 2 )