EN Official Journal of the European Union C 55/13

Action brought on 22 December 2008 — Commission of the European Communities v Italian Republic

(Case C-571/08)

(2009/C 55/21)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: W. Mölls and L. Pignataro, agents)

Defendant: Italian Republic

Form of order sought

— Declare that, by providing for a minimum price for cigarettes and a period of 120 days within which approval is to be obtained for a change in the price of manufactured tobacco, the Italian Republic has failed to fulfil its obligations under Article 9(1) of Directive 95/59/EC (1).

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The minimum price

The Commission submits that, by fixing a minimum price for cigarettes, the Italian Republic has infringed Article 9(1) of Directive 95/59/EC (and Article 5 of Directive 72/464/EEC (2), which it replaces and which is essentially identical to it). That provision establishes the principle that manufacturers and importers are free to determine the maximum retail selling price for manufactured tobacco. In accordance with that principle, Member States cannot justify the exercise of any discretion to fix maximum retail selling prices by reference to ‘the control of price levels’, ‘the observance of imposed prices’ or the fixing of a scale of retail selling prices in accordance with Article 9(2) of Directive 95/59/EC.

The minimum price cannot be justified by on the grounds of protection of public health. That objective, which was taken into account by the Community legislature, can be achieved by means of increased taxation of cigarettes, in accordance with the tax parameters that are appropriate to the situation of each Member State.

The Italian Government's argument alleging that, as a result of prices that are too high or inappropriate in terms of the market, there is a risk of increasing trafficking in contraband or counterfeit goods is also unfounded. That argument is based on mere assertions made by the Italian Government which are not substantiated by any evidence in that it has failed to explain how the difference in prices as a result of an increase in taxation should lead to a greater incidence of fraud than would be the case if a minimum price policy were adopted. The Commission maintains that it is for the individual Member State to carry out the necessary controls, within the framework of Community law, to ensure that the taxes owing to it are collected. That requirement must not in any way affect the obligation incumbent upon Member States to comply with the provisions of Directive 95/59/EC, including Article 9 thereof.

The 120-day period within which approval is to be obtained for the prices of manufactured tobacco

For the purpose of marketing in Italy, the prices of manufactured tobacco products must be registered for inclusion on the official list of prices. The request for registration must be sent to the Ministero dell'Economia e delle Finanze (Finance Ministry) — Amministrazione Autonoma dei Monopoli di Stato (the autonomous body administering State monopolies) (AAMS). The AAMS does not enjoy any discretion as to whether to confirm the registration. The Commission takes the view that the effect of the excessively long period of 120 days prescribed by the Italian authorities for complying with a request to change prices is that the principle that economic operators must be free to fix maximum prices, enshrined in Article 9(1) of Directive 95/59/EC, is, in practice, to some extent undermined.

(1) Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40).

(2) Council Directive 72/464/EEC of 19 December 1972 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1972 L 303, p. 1).