Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. The case dealt with in this opinion is an action brought by the Commission under Article 169 of the Treaty of Rome. In it the Commission seeks a declaration that the French Republic has failed to fulfil its obligations under Council Directive No 72/464/EEC of 19 December 1972 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (Official Journal, English Special Edition 1972 (31 December), L 303, p. 1) and under the EEC Treaty. The default is alleged to consist in the fixing of the retail selling price of certain categories of national and imported manufactured tobacco at a different level from that freely determined by the manufacturers and importers.
2. Let me first describe the present system in France. Pursuant to Article 37 of the EEC Treaty and to the task undertaken by the Council of the Communities by a resolution of 21 April 1970, the monopoly in manufactured tobacco was reorganized by Law No 76-448 of 24 May 1976 and the relative implementing Decree No 76-1324 of 31 December 1976 (Journal Officiel de la République Française, 1976, p. 3083 and 1977, p. 189).
3. A few words on the facts which preceded this application. On 26 October 1978 the Commission informed the French Government that, in its view, the system of price-fixing described above was contrary to Directive No 72/464 and in particular to Article 5 (1) thereof. By letter of 7 June 1979 giving formal notice it initiated the procedure laid down by Article 169 of the Treaty. Not being satisfied by the arguments of the French authorities, according to whom the aforementioned system was in full conformity with Community law, the Commission then delivered a reasoned opinion on 21 October 1980 and made an application to the Court on 16 March 1982.
4. In the Commission's eyes the dispute may be summarized in the following terms: Directive No 72/464 provides that the maximum retail selling price of manufactured tobacco , shall be. freely determined by the manufacturers and by the importers; however, the French authorities are empowered, on the one hand, to fix them at different levels and, on the other, to alter the prices of national tobacco even after approving the prices proposed by the producers. That is not all. The provisions from which the said powers are derived constitute measures having an effect equivalent to a quantitative restriction and are therefore capable of leading to discrimination between national and imported products, thereby also infringing Articles 30 and 37 (1) of the Treaty.
5. The arguments put forward by the Commission on the scope of the obligations imposed upon Member States by Directive No 72/464 are not convincing. Whatever it may say, the provisions of Article 5 (1) are infelicitously drafted and are possibly also contradictory, as often happens when diverse or conflicting interests press upon the legislature (and the history of the directive demonstrates beyond all doubt that the interests of the Commission and of the Council were such conflicting interests). However, that is not a reason to give effect to the provision by laying greater weight on one sentence while diminishing the import of another. In such cases there is only one correct way to proceed: a systematic interpretation which hinges upon the objectives of the law (in this case the directive) of which the provision forms part, and does not overlook the general system (here the Community rules governing State measures relating to prices) to which the law itself belongs.
6. As I have said in quoting the Galli judgment, national measures on prices are lawful as long as their consequences do not entail infringements of other rules of the Treaty. The Commission believes that the system with which we are concerned does in fact have those consequences and that the most important of the rules infringed by it is Article 30. The compulsory fixing of prices would be capable of putting imported products at a disadvantage and would thereby constitute a measure having an effect equivalent to a quantitative restriction.
7. According to the Commission there is another rule of the Treaty which is infringed by the French system, namely Article 37. That provision seeks, not the abolition, but the adjustment of national monopolies so as to ensure that as regards the conditions under which goods are procured and marketed, no discrimination exists between nationals of Member States.
8. For all the reasons set out above I am of the opinion that the French system of fixing retail selling prices of nationally manufactured and imported tobacco infringes neither the rules of the EEC Treaty nor Council Directive No 72/464 of 19 December 1972 on taxes other than turnover taxes which affect the consumption of manufactured tobacco. I therefore suggest that the Court should dismiss the action brought by the Commission on 16 March 1982 seeking a declaration that the French Government has failed to fulfil obligations towards the Community. In addition I suggest that the losing party should bear the costs of the case.
1 Translated from the Italian.