Case C‑428/13

Ministero dell’Economia e delle Finanze

and

Amministrazione Autonoma dei Monopoli di Stato (AAMS)

v

Yesmoke Tobacco SpA

(Request for a preliminary ruling from the Consiglio di Stato)

‛Reference for a preliminary ruling — Tax provisions — Harmonisation of laws — Directives 95/59/EC and 2011/64/EU — Structure and rates of excise duty applied to manufactured tobacco — Establishment of an excise duty — Principle establishing one rate of excise duty for all cigarettes — Possibility for the Member States of establishing a minimum amount of excise duty — Cigarettes in the lowest price category — National legislation — Specific category of cigarettes — Excise duty set at 115%’

Summary — Judgment of the Court (Fifth Chamber) 9 October

Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which affect the consumption of manufactured tobacco — Directive 2011/64 — National provision establishing a minimum excise duty applicable only to cigarettes with a retail selling price lower than that of cigarettes in the most popular price category — Unlawful

(Council Directive 2011/64, Arts 7(2) and 8(6))

Articles 7(2) and 8(6) of Directive 2011/64 on the structure and rates of excise duty applied to manufactured tobacco must be interpreted as precluding a provision of national law, which, rather than establishing an identical minimum excise duty that is applicable to all cigarettes, establishes a minimum excise duty that is applicable only to cigarettes with a retail selling price lower than that of cigarettes in the most popular price category.

Under Article 8(6) of Directive 2011/64, Member States may levy a minimum excise duty on cigarettes. That minimum excise duty represents a minimum tax threshold, below which there may not be a proportional reduction in the tax payable. In the light of the fact that it is mandatory for the overall excise duty to be levied in respect of all cigarettes whatever their characteristics or price, the minimum excise duty must be applied to all cigarettes, irrespective of their characteristics or price. The establishment of a minimum excise duty only for certain categories of cigarettes would permit, in respect of certain other categories of cigarettes, an amount to be levied by way of the overall excise duty that would be less than the minimum excise duty, even though the introduction of that minimum excise duty ought, pursuant to Directive 2011/64, to be designed to prevent, in a low price context, the possibility of there being, below that threshold, a proportional reduction of the tax payable and accordingly, to prevent the level of taxation of the cheapest cigarettes from being too low. If Member States make use of the power to establish a minimum excise duty pursuant to Article 8(6) of Directive 2011/64, the ensuing legislation must come within the framework laid down by that directive and cannot run counter to the objectives of that directive. The establishment of different minimum tax thresholds according to the characteristics or price of cigarettes would lead to distortions of competition as between different cigarettes and would therefore be contrary to the objective pursued by Directive 2011/64 of ensuring the proper functioning of the internal market and neutral conditions of competition.

Furthermore, Directive 2011/64 takes into account, in accordance with recitals 2, 14 and 16 thereto, the objective of the protection of public health. Provided that the national measures come within the framework laid down by Directive 2011/64, that directive does not prevent the Member States from taking measures to combat smoking and to ensure a high level of protection for public health by levying excise duties.

(see paras 26-28, 30, 31, 35-37)

Case C‑428/13

Ministero dell’Economia e delle Finanze

and

Amministrazione Autonoma dei Monopoli di Stato (AAMS)

v

Yesmoke Tobacco SpA

(Request for a preliminary ruling from the Consiglio di Stato)

‛Reference for a preliminary ruling — Tax provisions — Harmonisation of laws — Directives 95/59/EC and 2011/64/EU — Structure and rates of excise duty applied to manufactured tobacco — Establishment of an excise duty — Principle establishing one rate of excise duty for all cigarettes — Possibility for the Member States of establishing a minimum amount of excise duty — Cigarettes in the lowest price category — National legislation — Specific category of cigarettes — Excise duty set at 115%’

Summary — Judgment of the Court (Fifth Chamber) 9 October

Tax provisions — Harmonisation of laws — Taxes other than turnover taxes which affect the consumption of manufactured tobacco — Directive 2011/64 — National provision establishing a minimum excise duty applicable only to cigarettes with a retail selling price lower than that of cigarettes in the most popular price category — Unlawful

(Council Directive 2011/64, Arts 7(2) and 8(6))

Articles 7(2) and 8(6) of Directive 2011/64 on the structure and rates of excise duty applied to manufactured tobacco must be interpreted as precluding a provision of national law, which, rather than establishing an identical minimum excise duty that is applicable to all cigarettes, establishes a minimum excise duty that is applicable only to cigarettes with a retail selling price lower than that of cigarettes in the most popular price category.

Under Article 8(6) of Directive 2011/64, Member States may levy a minimum excise duty on cigarettes. That minimum excise duty represents a minimum tax threshold, below which there may not be a proportional reduction in the tax payable. In the light of the fact that it is mandatory for the overall excise duty to be levied in respect of all cigarettes whatever their characteristics or price, the minimum excise duty must be applied to all cigarettes, irrespective of their characteristics or price. The establishment of a minimum excise duty only for certain categories of cigarettes would permit, in respect of certain other categories of cigarettes, an amount to be levied by way of the overall excise duty that would be less than the minimum excise duty, even though the introduction of that minimum excise duty ought, pursuant to Directive 2011/64, to be designed to prevent, in a low price context, the possibility of there being, below that threshold, a proportional reduction of the tax payable and accordingly, to prevent the level of taxation of the cheapest cigarettes from being too low. If Member States make use of the power to establish a minimum excise duty pursuant to Article 8(6) of Directive 2011/64, the ensuing legislation must come within the framework laid down by that directive and cannot run counter to the objectives of that directive. The establishment of different minimum tax thresholds according to the characteristics or price of cigarettes would lead to distortions of competition as between different cigarettes and would therefore be contrary to the objective pursued by Directive 2011/64 of ensuring the proper functioning of the internal market and neutral conditions of competition.

Furthermore, Directive 2011/64 takes into account, in accordance with recitals 2, 14 and 16 thereto, the objective of the protection of public health. Provided that the national measures come within the framework laid down by Directive 2011/64, that directive does not prevent the Member States from taking measures to combat smoking and to ensure a high level of protection for public health by levying excise duties.

(see paras 26-28, 30, 31, 35-37)