CELEX: 62008CC0197
Language: en
Date: 2009-10-22 00:00:00
Title: Opinion of Advocate General Kokott delivered on 22 October 2009. # European Commission v French Republic. # Failure of a Member State to fulfil obligations - Directive 95/59/EC - Taxes other than turnover taxes which affect the consumption of manufactured tobacco - Article 9(1) - Free determination, by manufacturers and importers, of the maximum retail selling prices of their products - National legislation imposing a minimum retail selling price for cigarettes - National legislation prohibiting the sale of tobacco products ‘at a promotional price which is contrary to public health objectives’ - Concept of ‘national systems of legislation regarding the control of price levels or the observance of imposed prices’ - Justification - Protection of public health - World Health Organisation Framework Convention on Tobacco Control. # Case C-197/08.

OPINION OF ADVOCATE GENERAL
      KOKOTT
      delivered on 22 October 2009 1(1)
      
      Case C‑197/08
      Commission of the European Communities
      v
      French Republic 
      and
      Case C‑198/08
      Commission of the European Communities
      v
      Republic of Austria 
      and
      Case C‑221/08
      Commission of the European Communities
      v
      Ireland
      (Minimum prices – Tobacco products – Directive 95/59/EC – Health protection)I –  Introduction
      1.        The present actions for failure to fulfil obligations once more concern Member State rules fixing minimum prices for tobacco
         products. The Commission takes the view in the light of the Court’s previous case-law that those rules infringe Article 9(1)
         of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured
         tobacco. (2)
      
      2.        The defendant Member States argue essentially that, contrary to the Court’s previous case-law, the fixing of minimum prices
         does not infringe Directive 95/59 and is in any case justified on health protection grounds. In that regard they rely inter
         alia on a World Health Organisation Framework Convention on Tobacco Control. (3)
      
      II –  Legal framework
      A –    Community law
      3.        The second and third subparagraphs of Article 9(1) of Directive 95/59 provide:
      
      ‘Manufacturers, or, where appropriate, their representatives or authorised agents in the Community and importers of tobacco
         from non-member countries shall be free to determine the maximum retail selling price for each of their products for each
         Member State for which the products in question are to be released for consumption.
      
      The second paragraph may not, however, hinder implementation of national systems of legislation regarding the control of price
         levels or the observance of imposed prices, provided that they are compatible with Community legislation.’
      
      B –    International law
      4.        Article 6 of the WHO Framework Convention is headed ‘Price and tax measures to reduce the demand for tobacco’ and provides
         as follows: (4)
      
      ‘1.      The Parties recognise that price and tax measures are an effective and important means of reducing tobacco consumption by
         various segments of the population, in particular young persons.
      
      2.      Without prejudice to the sovereign right of the Parties to determine and establish their taxation policies, each Party should
         take account of its national health objectives concerning tobacco control and adopt or maintain, as appropriate, measures
         which may include:
      
      (a)      implementing tax policies and, where appropriate, price policies, on tobacco products so as to contribute to the health objectives
         aimed at reducing tobacco consumption; and
      
      ...’
      C –    National law 
      1.      France
      5.        In France the Code général des impôts (General Tax Code) was amended by Law of 9 August 2004. Under the Law a price is laid
         down for cigarettes below which they may no longer be sold. That minimum price is fixed by a decree by reference to the average
         market price. Moreover, a prohibition was inserted in the Code de la santé publique (Code on Public Health) on selling tobacco
         products at a promotional price which is contrary to public health objectives.
      
      2.      Austria
      6.        By a federal Law of 2006 a subparagraph was added to Paragraph 2 of the Austrian Tabakgesetz (Law on Tobacco), authorising
         the Federal Minister for Health, in the interest of tobacco control, to set by regulation a minimum retail selling price for
         tobacco products in order to ensure a minimum price level. Placing tobacco products on the market below that minimum retail
         selling price was prohibited. Under the minimum price regulation thereafter adopted, the minimum retail selling price for
         cigarettes amounts, per cigarette, to at least 92.75% of the weighted average price of all cigarettes sold during the previous
         calendar year. (5)
      
      3.      Ireland 
      7.        Under section 2(2)(i) of the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act, 1978, regulations
         may be adopted in order to prohibit the sale of tobacco products at prices which are so much lower than those at which tobacco
         products of a similar type or character are at the material time being sold that the sale at the lower prices constitutes,
         in the opinion of the Minister, a sales promotion device. 
      
      8.        Article 16(1) of the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations, 1991, provides
         that a person is not to sell by retail a tobacco product of a particular brand at a price lower than otherwise obtaining for
         that brand. Article 17 of the regulations provides that a person is not to sell by retail a tobacco product at a price as
         respects which the competent Minister has formed an opinion that the sale of that product at such a price constitutes a sales
         promotion device. According to a Memorandum of Clarification, a sales promotion device exists where the retail price of cigarettes
         falls more than 3% below the weighted average price for that category of products.
      
      III –  Pre-litigation procedure and forms of order sought by the parties 
      9.        The Commission is of the opinion that the abovementioned national rules infringe Article 9(1) of Directive 95/59, because
         they lay down minimum prices for the sale of cigarettes or other tobacco products. The Commission therefore initiated the
         present proceedings for failure to fulfil obligations. Following letters of formal notice, it sent a reasoned opinion on 28
         June 2006 to France, on 27 June 2007 to Austria and on 15 December 2006 to Ireland. It also addressed a reasoned opinion to
         Ireland on 7 July 2004, alleging the infringement of Article 10 EC.
      
      10.      Since the Member States failed to act upon the reasoned opinions, the Commission brought the present actions.
      
      11.      In Case C-197/08, the Commission claims that the Court should:
      
      –        declare that, by maintaining in force a system of minimum prices for cigarettes released for consumption in France and a prohibition
         on selling tobacco products at a promotional price which is contrary to public health objectives, the French Republic has
         failed to fulfil its obligations under Article 9(1) of Directive 95/59;
      
      –        order the French Republic to pay the costs.
      12.      The French Republic contends that the Court should:
      
      –        dismiss the action;
      –        order the Commission to pay the costs.
      13.      In Case C-198/08, the Commission claims that the Court should:
      
      –        declare that, by enacting and retaining legal provisions under which minimum selling prices for cigarettes and for fine-cut
         tobacco for the rolling of cigarettes are set by the State, the Republic of Austria has failed to fulfil its obligations under
         Article 9(1) of Directive 95/59;
      
      –        order the Republic of Austria to pay the costs.
      14.      The Republic of Austria contends that the Court should:
      
      –        dismiss the Commission’s action as unfounded;
      –        order the Commission to pay the costs of the proceedings.
      15.      In Case C-221/08, the Commission claims that the Court should:
      
      –        declare:
      –        that, by imposing minimum and maximum retail prices for cigarettes, Ireland has failed to comply with its obligations under
         Article 9(1) of Directive 95/59; 
      
      –        that, by failing to provide the necessary information on the applicable Irish legislation in order to enable the Commission
         to fulfil its duty to monitor compliance with Directive 95/59, Ireland has failed to comply with its obligations under Article
         10 EC;
      
      –        order Ireland to pay the costs.
      16.      Ireland contends that the Court should:
      
      –        dismiss the action;
      –        order the Commission to pay the costs.
      17.      The three Member States and the Commission took part in the joint hearing.
      
      18.      I shall examine the three actions in a single Opinion, as they raise essentially the same questions.
      
      IV –  Legal assessment
      19.      The rules at issue in the present cases lay down minimum prices for the sale of cigarettes or other types of manufactured
         tobacco within the meaning of the directive. Contrary to Ireland’s submission, in order for a minimum price to exist it is
         irrelevant whether it is fixed directly by a State body or its level is established as in the present cases with reference
         to average market prices. What is decisive is that in all three Member States manufacturers may not sell their tobacco products
         below a specific price, which they do not lay down themselves. (6) At the heart of the present actions for failure to fulfil obligations is the question whether the second subparagraph of
         Article 9(1) of the directive precludes such State-imposed minimum prices and whether they fall within one of the reservations
         in the third subparagraph of Article 9(1).
      
      A –    Interpretation of Article 9(1) of Directive 95/59 
      20.      The second subparagraph of Article 9(1) of Directive 95/59 provides that manufacturers and importers may freely determine
         the maximum retail selling price for each of their products.
      
      21.      Before considering the interpretation of the second subparagraph of Article 9(1) of the directive, it is necessary briefly
         to examine the legislative context in which this provision is to be found.
      
      22.      Directive 95/59 governs the application of excise duties to manufactured tobacco. The structure of the duty is laid down in
         Article 8(1) and (2) and Article 16 of the directive. According to those provisions, cigarettes are subject to a proportional
         excise duty ‘calculated on the maximum retail selling price’ and a specific excise duty ‘calculated per unit of the product’.
         Under the system of rules established by the directive, the maximum retail selling price is therefore the basis of assessment
         and collection of the proportional excise duty.
      
      23.      The fact that Article 9 focuses on the maximum retail selling price can be explained by the manner in which duty is to be levied under the directive. The maximum price referred
         to in that provision constitutes the basis of assessment for the calculation of proportional excise duty. If that duty is
         imposed on the basis of the retail selling price, setting a maximum price ensures that the manufacturer does not indicate
         a lower selling price when the duty is levied, in order to reduce the tax burden, only then to sell the goods later at a higher
         price. The determination of a maximum price therefore constitutes a fiscal guarantee, which is designed to prevent such conduct.
         (7)
      
      24.      Looking first at the wording of the second subparagraph of Article 9(1) of the directive, it must be noted at the outset that
         that provision does not expressly prohibit minimum prices. It provides only that manufacturers are to be ‘free’ to determine the maximum retail selling price.
      
      1.      Previous case-law of the Court
      a)      Second subparagraph of Article 9(1) of Directive 95/59
      25.      The Court has already held on several occasions that the freedom to determine maximum retail selling prices which is provided for in the second subparagraph of Article 9(1) of the directive results in a prohibition
         on the imposition of minimum prices by public authorities. The Court stated that the setting of a minimum retail selling price by public authorities inevitably
         has the effect of limiting the freedom of producers and importers to determine their maximum retail selling prices since,
         in any event, such prices cannot be any lower than the compulsory minimum price. (8)
      
      26.      In the Court’s view, that understanding of Article 9 is confirmed by looking at the spirit and purpose of the directive. As
         is made clear by recitals 1 and 2 in its preamble, the directive was adopted as part of a policy designed to harmonise the
         structures of excise duty on manufactured tobacco, to ensure that competition in the different categories of manufactured
         tobacco belonging to the same group was not distorted and thereby to open up the national markets of the Member States. (9)
      
      27.      Accordingly, Member State rules which establish binding prices for manufactured tobacco infringe the directive because they
         restrict manufacturers’ freedom to set prices and thereby pose a risk to free competition.
      
      28.      In its interpretation, the Court draws in particular on recital 7 in the preamble to the directive, which emphasises that
         the imperative needs of competition imply a system of freely formed prices for all groups of manufactured tobacco. The rule
         of free determination of prices in the tobacco trade constitutes the expression of the principle of free movement of goods
         under normal conditions of competition, also referred to elsewhere in the preamble. (10)
      
      b)      The reservations contained in the third subparagraph of Article 9(1) of Directive 95/59 
      29.      The third subparagraph of Article 9(1) states that the second subparagraph may not hinder implementation of national systems
         of legislation regarding the control of price levels or the observance of imposed prices.
      
      30.      In its previous case-law the Court has interpreted these reservations strictly, and has not construed them as entitling the
         State to lay down minimum prices. 
      
      31.      It emphasises that the reservations in the third subparagraph must be reconciled with the fundamental rule of free determination
         of prices laid down in the second subparagraph. (11) From that perspective, the expression ‘control of price levels’ cannot be interpreted as reserving to the Member States a
         discretion to fix the price of manufactured tobacco, as the exercise of such extensive power would virtually deny any practical
         effect to the principle of the free determination of prices. (12)
      
      32.      Thus, the Court understands by the phrase ‘national systems of legislation regarding the control of price levels’ only measures
         of a general nature intended to check an increase in prices. (13) Equally, the expression ‘legislation regarding … the observance of imposed prices’ should not be understood as allowing the
         Member States to set minimum prices. It must be understood rather as referring to the observance of a price which, once determined
         by the manufacturer or the importer and approved by the public authorities, is binding as a maximum retail selling price and
         must be observed at every stage of the distribution chain until it is sold to the consumer. (14) The term ‘imposed prices’ in the context of that provision therefore means the prices fixed by the manufacturer and not the
         State. The purpose of the mechanism is to prevent any detrimental effect to the integrity of tax revenue by exceeding the
         price specified previously. (15)
      
      2.      Intermediate conclusion
      33.      According to the Court’s previous case-law, Article 9(1) of Directive 95/59 therefore precludes State-imposed minimum prices
         for manufactured tobacco. 
      
      3.      Reason to depart from previous case-law?
      34.      In the present actions for failure to fulfil obligations, the defendant Member States call upon the Court to reconsider its
         previous interpretation of Article 9(1). According to them, in the light of the legislative context and objectives of the
         directive and taking into account recent developments at international level, legislation imposing minimum prices should in
         the final analysis no longer be regarded as constituting an infringement of the directive.
      
      a)      Arguments based on the objectives of Directive 95/59 
      35.      The Austrian Government in particular argues that, in the light of its legal basis, the second subparagraph of Article 9(1)
         of the directive should not be understood as prohibiting minimum prices. 
      
      36.      Austria refers to the fact that Directive 95/59 was based on Article 99 of the EC Treaty (now Article 93 EC) and therefore
         on the Treaty provision concerning the harmonisation of indirect taxation. The scope of the directive is therefore in its
         view limited to tax law matters. The defendant Member States also submit that there is no indication in the directive that
         public health issues were taken into account at the time of its adoption. The directive may not therefore be understood as
         prohibiting Member States as a matter of principle from adopting health protection measures in the form of minimum prices.
      
      37.      That argument of the Austrian Government cannot be summarily rejected. The legal basis of Directive 95/59 is indeed the Treaty
         provision on harmonisation of indirect taxation and the directive therefore constitutes primarily a set of technical rules
         governing the taxation of manufactured tobacco in the Community. It harmonises the way in which excise duties are imposed
         on manufactured tobacco and thereby, for example, establishes the maximum retail selling price as the basis of assessment
         of the proportional excise duty. The prohibition on minimum prices for manufactured tobacco is not at first sight a recognisable
         element of tax harmonisation.
      
      38.      The Member States are also correct to state that the preamble to the directive does not indicate that health protection issues
         and the importance of checking tobacco consumption were taken into account by the directive. That is not surprising, since
         Directive 95/59 is essentially a codification of older directives which date back to the year 1972. In 1972 there was no more
         than faint awareness of the dangers of tobacco consumption. Against that background, it could be argued that Article 9(1)
         should be interpreted as not depriving Member States of a means of combating tobacco consumption, while at the same time not
         indicating that the directive itself exhaustively considered the issue of effective control of tobacco consumption. Whether
         such Member State measures are compatible with other Community law provisions, in particular Article 28 EC, is another matter.
      
      39.      Against that interpretation of Article 9(1), which diverges from previous case-law, can however be set the wording of the
         directive, which refers explicitly to the free determination of the maximum retail selling price. Where a minimum price is set by the State, it is no longer possible, as
         the Court has correctly pointed out, to maintain without reservation that the manufacturer is free to set the price. That
         price can no longer be fixed at a level below the State minimum price.
      
      40.      The second subparagraph, according to which the manufacturer is free to determine the maximum retail selling price, is moreover an essential element in the specific system of rules established
         by the directive for excise duties. To ensure that such a legislative mechanism complies with the rules on free competition
         and the free movement of goods, it is essential that manufacturers be free to fix the maximum retail selling price. Where a minimum price is set by a Member State there is a danger that manufacturers
         from other Member States who wish to obtain a competitive price advantage on the market by charging lower maximum retail selling
         prices will be placed at a disadvantage. Fixing a minimum price would cancel out the competitive advantage deriving from the
         lower production cost of the imported product. 
      
      41.      Only if the manufacturer is free to determine the maximum retail selling price can it therefore be guaranteed that the system of taxation provided for under
         the directive does not have the side effect of distorting competition and restricting the free movement of goods, thus conflicting
         with the goal of harmonisation laid down in Article 93 EC.
      
      42.      Recital 2 in the preamble to the directive makes it clear that an economic union within which there is healthy competition
         and whose characteristics are similar to those of a domestic market with regard to manufactured tobacco presupposes that the
         application in the Member States of taxes affecting the consumption of products does not distort conditions of competition
         and does not impede their free movement within the Community. In that case, the method of assessment on which the proportional
         excise duty is based (the maximum retail selling price) should also not lead to a distortion of competition. The directive
         achieves that by providing that manufacturers are to be free to fix the maximum retail selling price. Similarly, recital 7 in the preamble to the directive also underlines that the imperative
         needs of competition imply a system of freely formed prices.
      
      43.      In the light of those considerations, the interpretation of Article 9(1) of the directive chosen by the Court therefore appears
         thoroughly justifiable. Thus, there is in my view no reason to depart from the previous case-law. It should also be borne
         in mind that the two relevant judgments of the Court are not particularly old. For that reason the principles of uniformity
         of the case-law and of legal certainty also suggest that they should not be departed from. (16)
      
      b)      Alteration of the case-law on the basis of the WHO Framework Convention and a Council recommendation?
      44.      In order to justify departing from the previous case-law, the Member States also rely on the WHO Framework Convention on Tobacco
         Control, which was approved on behalf of the Community by the Council decision of 2 June 2004. (17)
      
      45.      In addition, the Member States refer to the Council Recommendation of 2 December 2002 on the prevention of smoking and on
         initiatives to improve tobacco control. (18)
      
      46.      Under Article 6(1) of the WHO Framework Convention, the contracting parties recognise that price and tax measures are an effective
         and important means of reducing tobacco consumption, in particular by young persons. Article 6(2) provides that the contracting
         parties should adopt or maintain, as appropriate, measures which may inter alia include implementing tax policies and, where
         appropriate, price policies on tobacco products.
      
      47.      It is true that provisions of secondary Community law must, so far as is possible, be interpreted in a manner that is consistent
         with international treaties concluded by the Community. Those treaties are binding on the institutions under Article 300(7)
         EC. They may not be infringed by secondary legislation, over which they have primacy. (19)
      
      48.      The WHO Framework Convention underlines the importance now attached to the control of tobacco consumption on health protection
         grounds. It makes clear the very diverse range of measures which Member States have at their disposal in order to combat tobacco
         consumption. It follows from Article 6 that price policies are regarded as an option along with tax policies. Minimum prices
         for tobacco products can be subsumed under the expression ‘price policies’.
      
      49.      Nevertheless, in my view the Framework Convention does not provide a basis for departing from the previous case-law. The terms
         of the WHO Framework Convention regarding price measures are too general to require a different interpretation of Article
         9(1) of Directive 95/59.
      
      50.      It is clear first that the WHO Framework Convention contains no actual obligation to use separate pricing measures to make
         tobacco products more expensive. Article 6(2) of the Convention provides merely that the contracting parties should adopt
         measures which may include implementing tax policies and, ‘where appropriate, price policies’.
      
      51.      The Framework Convention does not therefore impose any actual obligations on the contracting parties with regard to price
         policies for tobacco products, but merely describes possible measures which do not bind them.
      
      52.      No different conclusion can be drawn from Council Recommendation 2003/54, to which the Member States refer. In point 7 it
         recommends that the Member States adopt and implement appropriate price measures on tobacco products so as to discourage tobacco
         consumption. That recommendation also cannot justify requiring the Court to depart from its previous case-law regarding the
         permissibility of minimum prices for tobacco products. First, the Council recommendation lacks any binding effect, and second,
         when construing the directive, the recommendation’s vague wording does not enable it to be interpreted differently.
      
      4.      Intermediate conclusion
      53.      The conclusion therefore remains that the Member State legislation infringes the second subparagraph of Article 9(1) of the
         directive.
      
      B –    Justification on health protection grounds?
      54.      In defence of their national measures introducing minimum prices the Member States also rely on health protection grounds
         under Article 30 EC. They refer to price competition which has led to a greater supply of cheap cigarettes and state that
         that is not desirable in terms of health policy. They therefore wish by introducing minimum prices to increase the price of
         cheap cigarettes only.
      
      1.      Legal categorisation
      55.      It is, nevertheless, doubtful whether the Member States may rely on Article 30 EC at all, since Article 30 EC lists the grounds
         of public interest on which restrictions of the freedom contained in Article 28 EC (free movement of goods) may be justified.
         Here, however, the issue is justification of an infringement of Article 9 of Directive 95/59. When a matter has been harmonised
         exhaustively by secondary legislation, a Member State cannot justify an infringement of that secondary legislation on the
         ground of the protection of health. (20) Nor can measures other than those referred to in Article 28 EC be justified under Article 30 EC. (21) The Commission did not, however, allege an infringement of Article 28 EC in the present actions for failure to fulfil obligations.
         This question is therefore not the subject of these proceedings.
      
      56.      Nevertheless, in Case C-216/00 Commission v Greece(22) – the subject of which was also an action for failure to fulfil obligations concerning minimum prices for tobacco products
         – the Court, after holding that the Member State measures infringed Directive 95/59, also examined whether those measures
         could be justified under Article 30 EC. (23) That examination might be understood as confirmation of the interpretation of the directive by assessing the situation in
         the light of primary law. (24) The Court thereby made clear that an assessment of the situation in the light only of primary law, in the course of which
         the possible Article 30 justification should be examined, would also, however, have led to the same conclusion that the Member
         State measure was not permissible. 
      
      57.      Against that background, I will now briefly examine Articles 28 EC and 30 EC.
      
      2.      Examination of the substance of health protection
      58.      The Court has already held that a minimum price for the final sale of imported cigarettes constitutes in any case a measure
         of equivalent effect within the meaning of Article 28 EC if it is fixed at such a level that the competitive advantage conferred
         by lower cost prices is cancelled out. (25) That comes into consideration in the present cases. However, it is not possible to reach conclusions on this question, as
         infringement of Article 28 EC is not the subject of these proceedings.
      
      59.      According to the Member States, minimum prices are necessary on the tobacco market. Only they provide an effective means of
         raising the price of tobacco products, which in turn leads to a reduction in consumption, in particular by young people.
      
      60.      Prevention of smoking and the control of tobacco consumption are important aspects of health protection. Smoking remains the
         biggest cause of preventable death in the European Union. (26) Protecting young persons is particularly important in this context. In recent years in particular, measures against tobacco
         consumption have occupied a prominent position in the health policy of the Member States and the European Community. Combating
         tobacco consumption is therefore undoubtedly a legitimate objective.
      
      61.      The decisive question is whether the measures at issue are necessary to achieve that aim or whether there are equally suitable,
         but less restrictive, alternatives. In this context it is necessary to bear in mind that, according to settled case-law of
         the Court, when assessing compliance with the principle of proportionality in the field of public health, it must be recognised
         that the Member State can determine the level at which it would like to protect public health and how that level is to be
         achieved. In that respect Member States enjoy considerable discretion. (27)
      
      62.      The Court concluded in a judgment concerning minimum prices for manufactured tobacco products that such prices were not necessary
         in order to protect public health. According to the Court, the objective of protecting public health may be adequately attained
         by increasing the taxation of manufactured tobacco products, which would safeguard the principle of free formation of prices.
         Member States are free under Article 16 of the directive to determine the total tax burden on manufactured tobacco. (28) That line of argument is also applicable in the present actions.
      
      63.      The Member States, on the other hand, argue that the manufacturers and importers can counteract a tax increase by reducing
         their profit margin. The Court has also addressed this argument in its previous case-law. It correctly points out that the
         Member States can react to a reduction in profit margins by increasing the level of tax more steeply, so that manufacturers
         finally cannot avoid the price increase sought by the tax increase. (29)
      
      64.      The ability of manufacturers and importers not to pass on increases in excise duties on their products is in any event limited
         by the extent of their profit margin, with the result that excise duty increases must sooner or later be incorporated in retail
         selling prices. Increases in excise duties are therefore a less intrusive measure than minimum prices, which are thus not
         necessary.
      
      3.      Intermediate conclusion
      65.      The intermediate conclusion must therefore be that the Commission’s actions are well founded, as the Member States have infringed
         Directive 95/59 by fixing minimum prices for tobacco products.
      
      C –    Special features of Case C-221/08 Commission v Ireland
      66.      Finally it is necessary to address two more complaints which the Commission raised only in Case C-221/08 Commission v Ireland. 
      
      1.      Fixing of maximum prices
      67.      With regard to the Irish provisions on tobacco prices, the Commission submits that these also contain maximum prices, in that
         the price of a tobacco product may not be more than 3% above the weighted average price. In its defence, Ireland pointed out
         that the Irish provisions do not establish a mandatory maximum price for tobacco products.
      
      68.      In its reply, the Commission states that in that regard it was relying on statements made by Irish representatives at a meeting
         with the Commission. Following the clarification, it appears that the Commission no longer wishes to adhere to its submission
         that there is such a maximum price for tobacco products in Ireland. It nevertheless emphasises that that misunderstanding
         on its part would not have arisen had Ireland cooperated satisfactorily with it during the pre-litigation procedure. The Commission
         therefore made clear at the hearing that it did not wish to withdraw its action on that point.
      
      69.      However, as the Commission itself no longer adheres to its assertion that Ireland fixes maximum prices for tobacco products,
         this complaint can no longer be the subject of adjudication. The Commission’s action falls to that extent to be dismissed.
         The question whether the complaint is attributable to a lack of cooperation by Ireland in the pre-litigation procedure is
         relevant only to whether Ireland has infringed Article 10 EC, which will be considered below.
      
      2.      Infringement of Article 10 EC
      70.      According to the Commission, Ireland has infringed Article 10 EC by failing to provide the necessary information on the applicable
         Irish legislation in order to enable the Commission to fulfil its duty to monitor compliance with Directive 95/59.
      
      71.      Under Article 10 EC the Member States are required to cooperate in good faith with the inquiries of the Commission in the
         context of Article 226 EC, and to provide it with all the information requested for that purpose. (30)
      
      72.      By letters of 29 July 2002 and 1 October 2002, the Commission requested information from Ireland concerning the current Irish
         legislation on tobacco prices. The Commission received no reply to its letters. The Commission thereupon initiated a further
         procedure for failure to fulfil obligations, on account of an infringement of Article 10 EC, in parallel with the procedure
         for contravention of Directive 95/59. On 17 October 2003, it sent a letter of formal notice to Ireland. The reasoned opinion
         followed on 7 July 2004, Ireland being set a time‑limit of two months from the date of receipt of the opinion. The Irish authorities
         did not reply until 10 December 2004.
      
      73.      It is questionable in the first place whether the information given in the letter of 10 December 2004 constitutes an adequate
         reply. At any rate the letter was late.
      
      74.      Ireland relies in defence on the fact that the Commission was sufficiently informed later on. That submission cannot however
         justify the failure to fulfil obligations.
      
      75.      The Court has repeatedly held that the question whether a Member State has failed to fulfil its obligations must be determined
         by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion.
         (31) Even where the default has been remedied after the time-limit prescribed by the reasoned opinion, pursuit of the action still
         has an object. In the present case, Ireland’s answer was given after the time-limit laid down.
      
      76.      The Commission’s action for infringement of Article 10 EC should therefore succeed.
      
      V –  Costs
      77.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. The French Republic and the Republic of Austria have completely failed in
         their submissions, and Ireland has largely failed in its submissions. Since the Commission applied for costs, the French Republic,
         the Republic of Austria and Ireland must be ordered to pay the costs of the respective actions.
      
      VI –  Conclusion
      78.      I am therefore of the view that the Court should decide as follows.
      
      79.      In Case C-197/08:
      
      (1)      declare that, by maintaining in force a system of minimum prices for cigarettes released for consumption in France and a prohibition
         on selling tobacco products at a promotional price which is contrary to public health objectives, the French Republic has
         failed to fulfil its obligations under Article 9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than
         turnover taxes which affect the consumption of manufactured tobacco;
      
      (2)      order the French Republic to pay the costs.
      80.      In Case C-198/08:
      
      (1)      declare that, by enacting and retaining legal provisions under which minimum selling prices for cigarettes and for fine-cut
         tobacco for the rolling of cigarettes are set by the State, the Republic of Austria has failed to fulfil its obligations under
         Article 9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption
         of manufactured tobacco;
      
      (2)      order the Republic of Austria to pay the costs.
      81.      In Case C-221/08:
      
      (1)      declare that, by imposing minimum retail prices for cigarettes, Ireland has failed to fulfil its obligations under Article
         9(1) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of
         manufactured tobacco;
      
      (2)      declare that, by failing to provide the necessary information on the applicable Irish legislation in order to enable the Commission
         to fulfil its duty to monitor compliance with Directive 95/59, Ireland has failed to fulfil its obligations under Article
         10 EC;
      
      (3)      dismiss the action as to the remainder;
      (4)      order Ireland to pay the costs.
      1 –	Original language: German.
      
      2 –	OJ 1995 L 291, p. 40 (‘Directive 95/59’), amended by Council Directive 1999/81/EC of 29 July 1999 (OJ 1999 L 211, p. 47)
         and Council Directive 2002/10/EC of 12  February 2002 (OJ 2002 L 46, p. 26).
      
      3 –	Approved by the Community by Council Decision 2004/513/EC of 2 June 2004 concerning the conclusion of the WHO Framework
         Convention on Tobacco Control (OJ 2004 L 213, p. 8).
      
      4 –	The text of the Convention is published in the Official Journal of the European Union only in the authentic languages English, French and Spanish. A German translation is published in the Bundesgesetzblatt (Federal Official Journal) 2004, Part II, p. 158.
      
      5 –	For fine-cut tobacco, 90% of the weighted average price per gram of all fine-cut tobacco for self-rolled cigarettes in
         the previous calendar year.
      
      6 –	See also, in that regard, Case C-302/00 Commission v France [2002] ECR I‑2055, paragraph 14.
      
      7 –	See the Opinion of Advocate General Jacobs in Case C-216/98 Commission v Greece [2000] ECR I‑8921, point 20, referring to Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph 17.
      
      8 –	Commission v Greece, cited in footnote 7 above, paragraph 21, and Commission v France, cited in footnote 6 above, paragraph 15.
      
      9 –	Commission v Greece, cited in footnote 7 above, paragraph 18.
      
      10 –	Case 90/82 Commission v France [1983] ECR 2011, paragraph 20.
      
      11 –	Commission v France, cited in footnote 10 above, paragraph 20, and Commission v Greece, cited in footnote 7 above, paragraph 25.
      
      12 –	Commission v France, cited in footnote 10 above, paragraph 21.
      
      13 –	Commission v France, cited in footnote 10 above, paragraph 22, and Commission v Greece, cited in footnote 7 above, paragraph 25.
      
      14 –	Commission v Greece, cited in footnote 7 above, paragraph 26.
      
      15 –	Commission v Greece, cited in footnote 7 above, paragraph 26.
      
      16 –	See also, in that regard, the Opinion of Advocate General Maduro in Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I‑11421, point 27 et seq.
      
      17 –	Cited in footnote 3 above.
      
      18 –	OJ 2003 L 22, p. 31.
      
      19 –	Case C-61/94 Commission v Germany [1996] ECR I‑3989, paragraph 52, and Case C-286/02 Bellio F.lli [2004] ECR I‑3465, paragraph 33.
      
      20 –	Case C-470/03 AGM-COS.MET [2007] ECR I‑2749, paragraph 70.
      
      21 –	See Commission v France, cited in footnote 6 above, paragraph 33, concerning an infringement of Articles 8(2) and 16(5) of Directive 95/59.
      
      22 –	Cited in footnote 7 above.
      
      23 –	Commission v Greece, cited in footnote 7 above, paragraph 30 et seq.
      
      24 –	See, to that effect, Case C-346/06 Rüffert [2008] ECR I-1989, paragraph 36.
      
      25 –	Case C-287/89 Commission v Belgium [1991] ECR I‑2233, paragraph 17.
      
      26 –	Recital 7 in the preamble to Council Recommendation 2003/54.
      
      27 –	See to that effect Case C-41/02 Commission v Netherlands [2004] ECR I-11375, paragraphs 46 and 51; Case C-169/07 Hartlauer [2009] ECR I-0000, paragraph 30; and Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others [2009] ECR I-0000, paragraph 19.
      
      28 –	Commission v Greece, cited in footnote 7 above, paragraph 28.
      
      29 –	Commission v Greece, cited in footnote 7 above, paragraph 32. See also point 35 of the Opinion of Advocate General Jacobs in that case.
      
      30 –	Case 192/84 Commission v Greece [1985] ECR 3967, paragraph 19; Case C‑478/01 Commission v Luxembourg [2003] ECR I‑2351, paragraph 24; Case C‑82/03 Commission v Italy [2004] ECR I‑6635, paragraph 15; and Case C‑494/01 Commission v Ireland [2005] ECR I‑3331, paragraph 198.
      
      31 –	See, inter alia, Case C-394/00 Commission v Ireland [2002] ECR I‑581, paragraph 12, and Case C‑299/01 Commission v Luxembourg [2002] ECR I‑5899, paragraph 11.