C-306/91

Report for the hearing in Case C-306/91

CELEX: 61991CJ0306
Datum: 1993-04-28
Källa: eur-lex.europa.eu

I — Background, pre-litigation procedure and procedure before the Court

A — Relevant legislation

1. The Community provisions

2. The national provisions

In Italy the sale of manufactured tobacco is subject to a State monopoly.

That monopoly, which is governed by Law No 907 of 17 July 1942 (GURI No 199 of 26 July 1942), was amended inter alia to take account of the Community requirements by Law No 825 of 13 July 1965 (GURI No 182 of 22 July 1965), Law No 3 of 27 January 1971 (GURI No 24 of 29 January 1971), Law No 724 of 10 December 1975 (GURI No 4 of 7 January 1976), Law No 198 of 13 May 1983 (GURI No 138 of 21 May 1983) and Law No 76 of 7 March 1985 (GURI No 65 of 16 March 1985).

Under the provisions of Law No 825 of 13 July 1965, as amended by Law No 76 of 7 March 1985, a scale is laid down of selling prices of monopoly goods. In the prices shown in the scale a distinction is made between, first, the remuneration of the traders involved at the various manufacturing and distribution stages, secondly, the retailer's margin and, finally, the taxes to which the product is subject (excise duty, VAT).

Article 2 of Law No 825 of 13 July 1965 reads as follows:

B — Pre-litigation procedure

1. By letter before action of 9 June 1989 the Commission informed the Italian authorities that it considered that, first, in view of the discretion left to the Minister of Finance by Article 2 of Law No 825 to fix the price of manufactured tobacco and of the advisory role conferred by that article on the Administrative Board for State Monopolies and, secondly, by virtue of the conditions in which that article was applied, the said article was contrary to Article 5(1) of the directive, which gives manufacturers and importers freedom to determine the maximum retail selling prices of their products.

2. In their reply of 26 October 1989, the Italian authorities stated that since 1959 various amendments had been made, as a result of negotiations with the Commission, to the applicable national legislation in order to bring it into conformity with Community law. Furthermore, as the Court had held in the judgment in Case 78/82 Commission v Italy [1983] ECR 1955, the Italian system for determining the selling prices of manufactured tobacco complied with the requirements of the directive concerning the freedom of manufacturers and importers to set prices. Lastly, both foreign and national manufacturers had always obtained the inclusion of the prices they requested in the scale.

3. On 28 August 1990 the Commission delivered a reasoned opinion under Article 169 of the Treaty in which it complained that the Italian authorities had infringed the provisions of Article 30 of the Treaty and the provisions of the directive, in particular Article 5(1), on the ground that the directive had not been implemented in national law.

4. The Italian authorities submitted no observations in response to the reasoned opinion.

II — Forms of order sought by the parties

The Commission claims that the Court should:

The Italian Republic claims that the Court should:

III — Summary of the pleas and arguments of the parties

A — Infringement of the directive

1. The complaint alleging that Article 12(2) of the directive has been infringed

2. The complaints alleging that Article 5(1) of the directive has been infringed

B — Infringement of Article 30 of the Treaty

According to the Commission, the practice of the Italian authorities in sometimes refusing price increases requested by importers, or allowing them only in part or after a delay, or in sometimes compelling importers to refrain from launching new brands on the Italian market, impedes free trade and constitutes a measure having equivalent effect within the meaning of Article 30 of the Treaty, as it has been interpreted by the Court.

In that connection, the Commission observes that the fact that the national authorities apply with considerable delay procedures which they are required to apply in relation to importers may amount to a measure having equivalent effect (Case 21/84 Commission v France [1985] ECR 1355).

The Italian Government submits that the system provided for by the national legislation and the conditions in which it is applied do not create any obstacle to the free movement of goods, because importers are free to choose the price of their products inside and outside the scale (at present the scale comprises 137 prices for cigarettes alone).

The Italian Government adds that, of an annual consumption of 91000 tonnes of manufactured tobacco, 35000 tonnes are accounted for by foreign brands imported direct from other Member States and 10000 tonnes by foreign brands manufactured under licence from the national manufacturer. Those figures alone show that the Commission's argument concerning obstacles to the free movement of goods is unfounded.