Case C-570/08: Reference for a preliminary ruling from the Anotato Dikastirio Kiprou (Cyprus) lodged on 22 December 2008 — Simvoulio Apokhetevseon Levkosias v Anatheoretiki Arkhi Prosforon
Date: 2008-12-22
Institutions: Court of Justice
Subjects: EU law, courts and tribunals, interpretation of the law

7.3.2009

EN

Official Journal of the European Union

C 55/13

if any,
Lastly, the Italian authorities have not explained what,
alternative measures,
lawyers established in
less restrictive of
other Member States, have been considered; nor have they set
interests pursued are not
out
already protected by the provisions in force in the other
Member States of
the Community for governing the legal
profession.

the reasons why the general

Reference for a preliminary ruling from the Anotato
Dikastirio Kiprou (Cyprus) lodged on 22 December 2008
— Simvoulio Apokhetevseon Levkosias v Anatheoretiki
Arkhi Prosforon

(Case C-570/08)

(2009/C 55/20)

Language of the case: Greek

Referring court

Anotato Dikastirio Kiprou (Supreme Court of Cyprus)

Form of order sought

— Declare that, by providing for a minimum price for cigar-
ettes 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 obliga-
tions 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
the principle that manufacturers and
provision establishes
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.

Parties to the main proceedings

Applicant: Simvoulio Apokhetevseon Levkosias (Nicosia Sewage
Council)

Respondentt: Anatheoretiki Arkhi Prosforon (Tenders Review
Authority)

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.

Question referred

Does Article 2(8) of Directive 89/665/EC recognise contracting
authorities as having a right to judicial review of cancellation
decisions by bodies responsible for review procedures which are
not judicial bodies?

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 (repre-
sented by: W. Mölls and L. Pignataro, agents)

Defendant: Italian Republic

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 counter-
feit 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 incum-
bent upon Member States to comply with the provisions of
Directive 95/59/EC, including Article 9 thereof.

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

is to be

For the purpose of marketing in Italy, the prices of manufac-
tured 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