Official Journal of the European Union

C 183/14

(Case C-197/08)

(2008/C 183/27)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: W. Mölls, acting as Agent)

Defendant: French Republic

Form of order sought

—Declare that, by adopting and maintaining in force a system of minimum prices for cigarettes sold in France, despite a prohibition on the sale of tobacco products ‘at a promotional price contrary to the aims of public health’, the French Republic has failed to fulfil its obligations under Article 9(1) of Directive 95/59/EC (1);

—order the French Republic to pay the costs.

Pleas in law and main arguments

The applicant submits that Article 9(1) of Directive 95/59/EC, as interpreted by the Court, clearly prohibits the intervention of the Member States in imposing, in a discretionary manner, minimum prices for the retail sale of manufactured tobacco products. Since they prevent manufacturers and importers from other countries from freely determining the maximum retail selling price of each of their products, such minimum prices restrict price competition and harm the internal market.

Furthermore, with regard to the need alleged by the defendant to derogate from the above provision in order to protect public health, the Commission does not dispute that, in certain circumstances, it may be necessary to derogate from the provisions of the EC Treaty concerning free movement of goods in order to achieve that objective. However, in the present case, as the Court has already held, the objective of protecting public health can adequately be pursued by way of increased taxation on manufactured tobacco products, which preserves the principle of free determination of prices.

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(1) Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ L 291, p. 40).