Case C-197/08: Action brought on 14 May 2008 — Commission of the European Communities v French Republic
Date: 2008-05-14
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, free price, minimum price, public health, restriction on competition, tobacco industry

C 183/14

EN

Official Journal of the European Union

19.7.2008

Action brought on 14 May 2008 — Commission of the
European Communities v French Republic

Reference for a preliminary ruling from the Hessische
Finanzgericht, Kassel (Germany) lodged on 16 May 2008
— Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt

(Case C-197/08)

(2008/C 183/27)

Language of the case: French

(Case C-201/08)

(2008/C 183/28)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: W. Mölls, acting as Agent)

Referring court

Defendant: French Republic

Form of order sought

— Declare that, by adopting and maintaining in force a system
of minimum prices for cigarettes sold in France, despite a
prohibition on the sale of tobacco products ‘at a promo-
tional price contrary to the aims of public health’,
the
its obligations under
French Republic has failed to fulfil
Article 9(1) of Directive 95/59/EC (1);

— order the French Republic to pay the costs.

Hessische Finanzgerichts, Kassel

Parties to the main proceedings

Applicant: Plantanol GmbH & Co.KG

Defendant: Hauptzollamt Darmstadt

Pleas in law and main arguments

Questions referred

The applicant submits that Article 9(1) of Directive 95/59/EC,
as interpreted by the Court, clearly prohibits the intervention of
the Member States in imposing,
in a discretionary manner,
minimum prices for the retail sale of manufactured tobacco
products. Since they prevent manufacturers and importers from
other countries from freely determining the maximum retail
selling price of each of their products, such minimum prices
restrict price competition and harm the internal market.

Furthermore, with regard to the need alleged by the defendant
to derogate from the above provision in order to protect public
health, the Commission does not dispute that, in certain circum-
stances, it may be necessary to derogate from the provisions of
the EC Treaty concerning free movement of goods in order to
in the present case, as the
achieve that objective. However,
Court has already held, the objective of protecting public health
can adequately be pursued by way of increased taxation on
manufactured tobacco products, which preserves the principle
of free determination of prices.

1. Is a national provision such as Paragraph 50(1)(1) of
the Energy Tax Law (Energiesteuergesetz), as amended by
the Biofuel Quota
Law (Biokraftstoffquotengesetz) of
18 December 2006, which does not accord an advantage to
that part of a fuel blend consisting of a biofuel composed of
vegetable oil meeting the DIN V 51605 standard (as it stood
in July 2006) contrary to Directive 2003/30/EC of
the
European Parliament and of the Council of 8 May 2003 on
the promotion of the use of biofuels or other renewable
fuels for transport (Biofuel Directive) (1), particularly in the
light of recitals 10, 12, 14, 19, 22 and 27 therein?

2. Does the Community law principle of

legal certainty and
protection of legitimate expectations require that it should
be permissible only in wholly exceptional circumstances for
a Member State which adopts rules for the implementation
of that directive and, in doing so, has established a promo-
tion scheme consisting of tax advantages spread over several
to amend that scheme, during the time-limit
years,
laid
an undertaking which
to the disadvantage of
down,
previously enjoyed an advantage?

(1) 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, p. 40).

(1) OJ L 123, p. 42.