Valev Visnapuu v Kihlakunnansyyttäjä (Helsinki) and Suomen valtio - Tullihallitus.
Date: 2015-11-12
40. Given that the Questions 1 to 4 concern provisions of Directive 94/62 as well as provisions of the Treaty, it must be noted that, in accordance with settled case-law, any national measure in an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty (judgment in UNIC and Uni.co.pel , C‑95/14, EU:C:2015:492, paragraph 33 and the case-law cited).
42. To that end, the Court must interpret those provisions taking into account not only their wording but also the context in which they occur and the objectives of the rules of which they form part (judgment in UNIC and Uni.co.pel , C‑95/14, EU:C:2015:492, paragraph 35 and the case-law cited).
44. The Court has already held that Article 5 of Directive 94/62 does not exhaustively harmonise the organisation of national systems intended to encourage the reuse of packaging (see, to that effect, judgments in Radlberger Getränkegesellschaft and S. Spitz , C‑309/02, EU:C:2004:799, paragraph 56, and in Commission  v Germany , C‑463/01, EU:C:2004:797, paragraph 44). In that respect, the Court has held, inter alia, that Article 5 of Directive 94/62 allows the Member States to encourage systems for the reuse of packaging only ‘in conformity with the Treaty’ (see judgments in Radlberger Getränkegesellschaft and S. Spitz , C‑309/02, EU:C:2004:799, paragraph 58, and in Commission  v Germany , C‑463/01, EU:C:2004:797, paragraph 46).
47. Article 15 of Directive 94/62 does not carry out any harmonisation but rather authorises the Council to adopt economic instruments to promote the implementation of the objectives set by that directive or, in the absence of such measures, authorises the Member State, acting ‘in accordance with … the obligations arising out of the Treaty’, to adopt measures to implement those objectives. Thus, that provision also requires the application of the relevant provisions of the Treaty.
50. The Court has repeatedly held that Articles 34 TFEU and Article 110 TFEU are mutually exclusive in their scope. It is settled case-law that the scope of Article 34 TFEU does not extend to the obstacles to trade covered by other specific provisions and that the obstacles of a fiscal nature referred to in Article 110 TFEU are not covered by the prohibition laid down in Article 34 TFEU (see, inter alia, judgment in Tatu , C‑402/09, EU:C:2011:219, paragraph 33).
51. A pecuniary charge constitutes internal taxation within the meaning of Article 110 TFEU if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria applied irrespective of the origin or destination of the products (see, inter alia, judgments in Koornstra , C‑517/04, EU:C:2006:375, paragraph 16, and in Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten , C‑221/06, EU:C:2007:657, paragraph 31).
53. In view of those characteristics, it must be found, first, that the excise duty at issue in the main proceedings is a pecuniary charge relating to a general system of internal dues applied systematically to a category of products, namely beverage packaging. In that regard, the Court has already held that waste for disposal must be regarded as ‘products’ within the meaning of Article 110 TFEU (judgment in Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten , C‑221/06, EU:C:2007:657, paragraphs 36 to 38). Accordingly, an excise duty on certain beverage packaging must be regarded as being imposed on products for the purposes of that provision.
59. According to settled case-law, an infringement of the first paragraph of Article 110 TFEU occurs when the tax on the imported product and the tax on the similar domestic product are calculated in a different way and under different conditions so that the imported product, even if only in certain cases, is more heavily taxed. Thus, under that provision, an excise duty must not affect products originating from other Member States more onerously than similar domestic products (judgment in Brzeziński , C‑313/05, EU:C:2007:33, paragraph 29 and the case-law cited).
86. According to settled case-law, the rules relating to the existence and the operation of a monopoly must be examined in the light of the provisions of Article 37 TFEU, which are specifically applicable to the exercise, by a domestic commercial monopoly, of its exclusive rights (judgments in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 17 and the case-law cited, and in ANETT , C‑456/10, EU:C:2012:241, paragraph 22 and the case-law cited).
87. However, the effect on trade within the Union of the other provisions of the domestic legislation, which are separable from the operation of the monopoly although they have a bearing upon it, must be examined in the light of Article 34 TFEU (judgments in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 18 and the case-law cited, and in ANETT , C‑456/10, EU:C:2012:241, paragraph 23 and the case-law cited).
94. It must be recalled, in that regard, that, although it does not require total abolition of State monopolies of a commercial character, Article 37 TFEU requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States (judgments in Franzén , C‑189/95, EU:C:1997:504, paragraph 38 and the case-law cited, and in Hanner , C‑438/02, EU:C:2005:332, paragraph 34 and the case-law cited).
95. Thus, Article 37 TFEU requires that the organisation and operation of the monopoly be arranged so as to exclude any discrimination between nationals of Member States as regards the conditions under which goods are procured and marketed, so that trade in goods from other Member States is not put at a disadvantage, in law or in fact, in relation to that in domestic goods and that competition between the economies of the Member States is not distorted (judgment in Franzén , C‑189/95, EU:C:1997:504, paragraph 40).
98. According to settled case-law, the prohibition of measures having an effect equivalent to a quantitative restriction, laid down in Article 34 TFEU, applies to all legislation of the Member States that is capable of hindering, directly or indirectly, actually or potentially, trade between Member States (see, inter alia, judgments in Dassonville , 8/74, EU:C:1974:82, paragraph 5, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 32).
103. The Court of Justice has indeed held that national provisions restricting or prohibiting certain selling arrangements that, first, apply to all relevant traders operating within the national territory, and, secondly, affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States are not liable to hinder, directly or indirectly, actually or potentially, trade between Member States within the meaning of the case-law initiated by Dassonville  (8/74, EU:C:1974:82) (see, inter alia, judgments in Keck and Mithouard , C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16, and in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 19).
104. However, the retail sale licence requirement at issue in the main proceedings does not meet the first condition set out by the Court in Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16), according to which the national provisions at issue must apply to all relevant traders operating within the national territory.
107. Consequently, the requirement to hold a retail sale licence in order to import alcoholic beverages with a view to their retail sale to Finnish consumers, at issue in the main proceedings, does not satisfy the first condition laid down in Keck and Mithouard  (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16), and therefore it is not necessary to examine whether that requirement affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
110. According to settled case-law, an obstacle to the free movement of goods may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet overriding requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see, inter alia, judgment in Ker-Optika , C‑108/09, EU:C:2010:725, paragraph 57 and the case-law cited).
115. The Court has already held that legislation which has as its objective the control of the consumption of alcohol so as to prevent the harmful effects caused to health of humans and society by alcoholic substances, and which thus seeks to combat alcohol abuse, reflects health and public policy concerns recognised by Article 36 TFEU (judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 28, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 40).
116. However, in order for health and public policy concerns to justify a restriction such as that resulting from the prior authorisation system at issue in the main proceedings, the measure in question must be proportionate to the objective to be achieved and not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States (judgment in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 29; see also, to that effect, judgment in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraphs 41 and 43).
117. In the first place, as to whether the measure is proportionate, since it concerns an exception to the principle of the free movement of goods, it is for the national authorities to demonstrate that their rules are necessary in order to achieve the declared objective, and that this objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade (see, to that effect, judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 31, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 50 and the case-law cited).
118. However, if that measure is within the field of public health, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty and that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a measure of discretion (judgment in Ker-Optika , C‑108/09, EU:C:2010:725, paragraph 58 and the case-law cited, and, to that effect, judgment in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraphs 32 and 33).
119. In the present case, the review of the proportionality and necessity of the measures in question calls for an analysis of the circumstances of law and of fact which characterise the situation in Finland, which the national court is in a better position than the Court of Justice to carry out. Accordingly, it is for the national court to verify, on the basis of all the matters of law and fact before it, whether the prior authorisation system at issue in the main proceedings is such as to achieve the objective of the protection of health and public policy, and whether that objective can be achieved with at least an equivalent level of effectiveness by less restrictive methods (see, to that effect, judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraphs 37 and 38 and the case-law cited, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 55).
123. In the second place, in order for health and public policy concerns to justify a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 34 TFEU, such as the retail sale licence requirement at issue in the main proceedings, it is also necessary that the measure in question not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States, as required under Article 36 TFEU (see, to that effect, judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 29, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 41).
124. In that regard, as regards the retail sale licencing scheme established in the first subparagraph of Paragraph 14 of the Law on Alcohol, which covers fermented alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol, there is nothing before the Court to suggest that the health and public policy grounds on which the Finnish authorities rely have been diverted from their purpose and used in such a way as to discriminate against goods originating in other Member States or indirectly to protect certain national products (see, to that effect, judgments in Ahokainen and Leppik , C‑434/04, EU:C:2006:609, paragraph 30, and in Rosengren and Others , C‑170/04, EU:C:2007:313, paragraph 42).