C-287/89

COMMISSION v BELGIUM

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 14 March 1992*

Mr President, Government subject cigarettes in practice to Members of the Court, a minimum retail selling price. The Court has consistently held ' that, if such measures, which are applicable without distinction to national products and to imported products, are not in themselves 1. In Belgium the levying of excise duty on contrary to Article 30 of the Treaty, they cigarettes is ensured by means of tax stamps become so in so far as they prevent the which are compulsorily affixed to the lower cost price of imported products from packets, and which state the price, inclusive being reflected in the selling price to the of taxes, at which those packets are sold by consumer. retail. The importer or manufacturer, who pays the tax on ordering the stamps from the tax authorities, must indicate a selling price coming within the framework of a scale fixed by Decree of the Minister of Finance. 5. The Commission takes the view that that is very clearly so in the instant case. I fully share that view. With regard, in particular, to the manufactured tobacco sector, the 2. It is that system which is at the origin of Court has held that the national system of the present action. Bene BV, which wished price structures must allow 'a possible to import into Belgium cigarettes at a price competitive advantage to be obtained as a lower than the lowest price set out in the result of the lower production costs of scale, was refused stamps bearing the price imported products compared to domestic at which it wished to sell its products. After products' 2 and that the fixing of those repeated attempts, it finally lodged a prices by the national authorities may well complaint with the Commission. 'restrict the freedom of importation of tobacco originating in other Member States' and is, therefore, contrary to Article 30. 3

manner, the arguments put forward by the legislation regarding the control of price defendant. Accordingly, I shall confine levels or the observance of imposed prices. myself to dealing with two of them, referring, for the remainder, to the position taken by the Commission. 2. However, in order to facilitate the levying of the excise duty, the Member States may, for each group of manufactured 7. First of all, I shall examine the argument tobacco, fix a scale of retail selling prices on which the Belgian Government derives from condition that each scale has sufficient Council Directive 72/464/EEC of scope and variety to correspond in fact with 19 December 1972 on taxes other than the variety of Community products. Each turnover taxes which affect the consumption scale shall be valid for all the products of manufactured tobacco (Official Journal, belonging to the group of manufactured English Special Edition 1972 tobacco which it concerns, without (31 December) L 303, p. 1), in the version distinction on the basis of quality, presen- as amended by Council Directives tation, the origin of the products or of the 77/805/EEC of 19 December 1977 materials used, the characteristics of the (Official Journal L 338, p. 22) and undertaking or of any other criterion.' 86/246/EEC of 16 June 1986 (Official Journal L 164, p. 26).

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COMMISSION v BELGIUM

their products. The system of scales refers 15. The defendant contends, moreover, that only to *facilitat[ing] the levying of the its rules are necessary to maintain healthy excise duty'. The Belgian authorities have competition on the market, and asserts that thus committed an error of law by it refused the stamps because the under- considering that it was possible, on the basis taking concerned did not prove that its of paragraph 2, to derogate from para- prices complied with the legislation on graph 1. commercial practices. It is referring here, no doubt, to the 'fairness of commercial trans- actions' which the Court 4 considered in the 13. Finally, I would be compelled to reject 'Cassis de Dijon' case as a mandatory that argument in so far as it amounts to requirement capable of justifying restrictions asserting that Article 5 of the directive on the free movement of goods. constitutes a derogation from Article 30 of the Treaty. It is obvious that a provision in a directive may neither be substituted for a provision of the Treaty nor be interpreted as 16. It must be emphasized, however, that authorizing a pricing system contrary to the when a Member State imposes a restriction criteria laid down by the case law of the on the free movement of goods, it is for that Court concerning that provision. Member State to prove that that restriction is justified by one of the mandatory requirements laid down by case law. The 14. As, in any case, I consider that Belgium Belgian authorities merely state that Bene's has not observed Article 5 of the directive, I cost prices, as communicated to the Court, invite you also to find that there has been were much lower than those which other an infringement of that provision, for it is cigarette producers forwarded to the auth- not to rule outside the scope of the orities. Even supposing that to be true, it application merely to declare that a given does not suffice to prove that the firm in practice contravenes at the same time a question is selling at a loss or that it is provision of the Treaty and a provision of a adopting other practices of unfair compe- directive. tition.