European Commission v Portuguese Republic.
Date: 2017-06-29
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Second, it must be observed that the Member States have a legitimate interest in taking appropriate steps to protect their financial interests (judgment of 10 July 2008, Sonowska, C‑25/07, EU:C:2008:395, paragraph 22 and the case-law cited) and that the prevention of possible tax evasion, avoidance and abuse is an objective pursued by Directive 2008/118, as is clear from recital 31 and Article 11 and Article 39(3), first paragraph thereof.
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It must be recalled that the Member States must employ means which, whilst enabling them effectively to attain the objective pursued by their domestic laws, are the least detrimental to the objectives and the principles laid down by the relevant EU legislation (see, to that effect, judgments of 18 December 1997, Molenheide and Others, C‑286/94, C‑340/95, C‑401/95 and C‑47/96, EU:C:1997:623, paragraph 46, and of 22 October 2015, Impresa Edilux and SICEF, C‑425/14, EU:C:2015:721, paragraph 29 and the case-law cited). The case-law of the Court states in that regard that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 81, and of 9 March 2010, ERG and Others, C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 86).
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Therefore, that measure is appropriate to achieve legitimate objectives that are combating tax evasion and tax avoidance and the protection of public health. As regards the latter objective, it must be added that the Court has already held that fiscal legislation is an important and effective instrument for discouraging consumption of tobacco products and, therefore, for the protection of public health (judgments of 5 October 2006, Valeško, C‑140/05, EU:C:2006:647, paragraph 58 and of 4 March 2010, Commission v France, C‑197/08, EU:C:2010:111, paragraph 52).
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Third, as far as concerns the need for the contested measure, it must be pointed out that, according to established case-law, it is for the Commission to prove the alleged failure to fulfil obligations. It is the Commission which must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (judgment of 24 November 2016, Commission v Spain, C‑461/14, EU:C:2016:895, paragraph 50 and the case-law cited).
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Moreover, as the Advocate General observed in paragraph 49 of her Opinion, giving economic operators the opportunity to prove that the cigarettes were released for consumption not in excessive quantities, but in ’normal’ quantities, as the Commission has called for, would require a case-by-case examination and would represent a considerable administrative burden. Such an approach would make the Portuguese scheme significantly more difficult to manage and would, moreover, be fraught with uncertainties, such as how to determine appropriate reference quantities. According to the case-law of the Court, Member States cannot be denied the possibility of attaining an objective such as combating tax evasion and tax avoidance, and the protection of public health and healthy and fair competition by the introduction of general and simple rules which will be easily understood and applied by drivers and easily managed and supervised by the competent authorities (see, to that effect, judgments of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraph 67, and of 24 March 2011, Commission v Spain, C‑400/08, EU:C:2011:172, paragraph 124).