Criminal proceedings against Etablissements Fr. Colruyt NV.
Date: 2016-09-21
14


In that regard, it should be borne in mind that, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 16 July 2015, Sommer Antriebs- und Funktechnik, C‑369/14, EU:C:2015:491, paragraph 32 and the case-law cited).
15


As regards the first plea of inadmissibility in respect of the request for a preliminary ruling, it is sufficient to note that, in the context of the procedure laid down in Article 267 TFEU, it is not for the Court to rule on the interpretation of national laws or regulations or to decide whether the referring court’s interpretation of them is correct (judgment of 7 October 2010, dos Santos Palhota and Others, C‑515/08, EU:C:2010:589, paragraph 18).
24


The Court has held that that provision seeks, first, to ensure that the determination of the tax base of the proportional excise duty on tobacco products, that is the maximum retail selling price of those products, is subject to the same rules in all the Member States and, secondly, to maintain the freedom of the economic operators, by which they may make effective use of the competitive advantage resulting from any lower cost prices (see, by analogy, judgment of 4 March 2010, Commission v France, C‑197/08, EU:C:2010:111, paragraph 36).
25


In addition, the provision is part of the machinery for the taxation of tobacco, which implies that the price determined by the manufacturer or the importer and approved by the public authorities is binding as a maximum price and must be observed as such at every stage of the distribution chain until it is sold to the consumer in order to ensure that the integrity of tax revenue is not undermined by the exceeding of imposed prices (see, to that effect, judgment of 4 March 2010, Commission v France, C‑197/08, EU:C:2010:111, paragraph 43).
27


Consequently, the Court has held, in essence, that Article 15(1) of Directive 2011/64 cannot be interpreted as precluding legislation whereby a selling price, namely the price stated on the tax label, is imposed for the sale to the consumer of imported or home-produced tobacco products, provided that that price has been freely determined by the manufacturer or importer (see, by analogy, judgment of 16 November 1977, GB-Inno-BM, 13/77, EU:C:1977:185, paragraphs 63 and 64).
33


Article 34 TFEU prohibits quantitative restrictions on imports and all measures having equivalent effect. In accordance with settled case-law, all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU (judgments of 11 July 1974, Dassonville, 8/74, EU:C:1974:82, paragraph 5, and 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 31).
34


Hence, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect to quantitative restrictions even if those rules apply to all products alike (see, to that effect, judgment of 20 February 1979, Rewe-Zentral, Cassis de Dijon, 120/78, EU:C:1979:42, paragraphs 6, 14 and 15).
35


The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of that case-law, on condition that those provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products (judgment of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraph 36).
36


Consequently, measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 34 TFEU, as are the measures referred to in paragraph 34 of the present judgment. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept (see, to that effect, judgment of 10 February 2009, Commission v Italy, C‑110/05, EU:C:2009:66, paragraph 37).
37


In that regard, in so far as the national provisions on tobacco product pricing, such as those in Article 7(2bis)(1) of the Law on Health Protection, do not concern the characteristics of those goods, but solely the arrangements under which they may be sold, they must be regarded as concerning selling arrangements (see, by analogy, judgment of 30 April 2009, Fachverband der Buch- und Medienwirtschaft, C‑531/07, EU:C:2009:276, paragraph 20).
43


As is apparent from the Court’s settled case-law, although Article 101 TFEU is concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, that article, read in conjunction with Article 4(3) TEU, which lays down a duty of cooperation between the European Union and the Member States, none the less requires the latter not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraph 28 and the case-law cited).
44


Article 101 TFEU, read in conjunction with Article 4(3) TEU, is infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraph 29).
45


However, rules such as those which are not intended to compel suppliers and retailers to conclude agreements or to take any other action of the kind referred to in Article 101(1) TFEU but which, on the contrary, entrust to the public authorities responsibility for fixing prices to the consumer do not infringe that provision, read in conjunction with Article 4(3) TEU (see, to that effect, judgment of 29 January 1985, Cullet and Chambre syndicale des réparateurs automobiles et détaillants de produits pétroliers, 231/83, EU:C:1985:29, paragraphs 17 and 18). Similarly, rules which lay down a prohibition which is self-sufficient neither require nor favour the conclusion of anti-competitive agreements (see, to that effect, judgment of 17 November 1991, Ohra Schadeverzekeringen, C‑245/91, EU:C:1993:887, paragraph 11).