Keywords
Summary

Keywords

1 . COMPETITION - COMMUNITY SYSTEM - MEMBER STATES - OBLIGATIONS - DOMINANT POSITION WITHIN THE MARKET - ABUSE ENCOURAGED BY A NATIONAL LEGISLATIVE PROVISION - PROHIBITION

( EEC TREATY , ARTICLE 5 , ARTICLE 86 , ARTICLE 90 )

2 . COMPETITION - MANUFACTURED TOBACCO - SALE TO THE CONSUMER - PRICE DETERMINED BY THE MANUFACTURER OR IMPORTER - ADHERENCE IMPOSED BY A NATIONAL RULE - COMPATIBILITY WITH ARTICLE 86 IN CONJUNCTION WITH ARTICLE 3 ( F ) AND THE SECOND PARAGRAPH OF ARTICLE 5 OF THE TREATY - CRITERIA

3 . QUANTITATIVE RESTRICTIONS - MANUFACTURED TOBACCO - SALE TO THE CONSUMER - PRICE DETERMINED BY THE MANUFACTURER OR IMPORTER - ADHERENCE IMPOSED BY A NATIONAL RULE - MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION - CRITERIA

( EEC TREATY , ARTICLE 30 )

4 . NATIONAL TAXES OTHER THAN TURNOVER TAXES - MANUFACTURED TOBACCO - CONSUMPTION AFFECTED - SALE - PRICE DETERMINED BY THE MANUFACTURER OR IMPORTER - ADHERENCE IMPOSED BY A MEMBER STATE - PROHIBITION UNDER ARTICLE 5 OF DIRECTIVE NO 72/464 - NONE

Summary

1 . MEMBER STATES MAY NOT ENACT MEASURES ENABLING PRIVATE UNDER- TAKINGS TO ESCAPE FROM THE CONSTRAINTS IMPOSED BY ARTICLES 85 TO 94 OF THE TREATY . IT FOLLOWS THAT ANY ABUSE OF A DOMINANT POSITION WITHIN THE MARKET IS PROHIBITED BY ARTICLE 86 EVEN IF SUCH ABUSE IS ENCOURAGED BY A NATIONAL LEGISLATIVE PROVISION .

2 . IN ORDER TO ASSESS THE COMPATIBILITY WITH ARTICLE 86 OF THE TREATY , IN CONJUNCTION WITH ARTICLE 3 ( F ) AND THE SECOND PARAGRAPH OF ARTICLE 5 OF THE TREATY , OF THE INTRODUCTION OR MAINTENANCE IN FORCE OF A NATIONAL MEASURE WHEREBY THE PRICES DETERMINED BY THE MANUFACTURER OR IMPORTER MUST BE ADHERED TO WHEN TOBACCO PRODUCTS ARE SOLD TO A CONSUMER , IT MUST BE DETERMINED , TAKING INTO ACCOUNT THE OBSTACLES TO TRADE WHICH MAY RESULT FROM THE NATURE OF THE FISCAL ARRANGEMENTS TO WHICH THOSE PRODUCTS ARE SUBJECT , WHETHER , APART FROM ANY ABUSE OF A DOMINANT POSITION WHICH SUCH ARRANGEMENTS MIGHT ENCOURAGE , SUCH INTRODUCTION OR MAINTENANCE IN FORCE IS ALSO LIKELY TO AFFECT TRADE BETWEEN MEMBER STATES .

3 . ALTHOUGH A MAXIMUM PRICE APPLICABLE WITHOUT DISTINCTION TO DOMESTIC AND IMPORTED PRODUCTS DOES NOT IN ITSELF CONSTITUTE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION , IT MAY HAVE SUCH AN EFFECT , HOWEVER , WHEN IT IS FIXED AT A LEVEL SUCH THAT THE SALE OF IMPORTED PRODUCTS BECOMES , IF NOT IMPOSSIBLE , MORE DIFFICULT THAN THAT OF DOMESTIC PRODUCTS . ON THE OTHER HAND , RULES IN A MEMBER STATE WHEREBY A FIXED PRICE IS IMPOSED FOR THE SALE TO THE CONSUMER OF EITHER IMPORTED OR HOME-PRODUCED TOBACCO PRODUCTS , NAMELY THE PRICE WHICH HAS BEEN FREELY CHOSEN BY THE MANUFACTURER OR IMPORTER , CONSTITUTE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON IMPORTS ONLY IF , TAKING INTO ACCOUNT THE OBSTACLES INHERENT IN THE DIFFERENT METHODS OF FISCAL CONTROL WHICH ARE USED BY THE MEMBER STATES IN PARTICULAR TO ENSURE COLLECTION OF THE TAXES ON THOSE PRODUCTS , SUCH A SYSTEM OF FIXED PRICES IS LIKELY TO HINDER , DIRECTLY OR INDIRECTLY , ACTUALLY OR POTENTIALLY , IMPORTS BETWEEN MEMBER STATES .

4 . ARTICLE 5 OF COUNCIL DIRECTIVE NO 72/464/EEC OF 19 DECEMBER 1972 ON TAXES OTHER THAN TURNOVER TAXES WHICH AFFECT THE CONSUMPTION OF MANU- FACTURED TOBACCO DOES NOT AIM TO PROHIBIT THE MEMBER STATES FROM INTRODUCING OR MAINTAINING IN FORCE A LEGISLATIVE MEASURE 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 .