delivered on 15 December 2016 (1)

Case C‑638/15

(Request for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic))

‘Directive 2011/64/EU — Article 2(1) and Article 5(1) — Excise duties applicable to manufactured tobacco — Concept of ‘smoking tobacco’ — Directive 2008/118/EC — Article 1(3) — Concept of ‘products other than excise goods’

1.It was once claimed that ‘nothing equals tobacco: it is the passion of respectable folk, and he who lives without tobacco is not worthy to live’. (2) In this day and age however, social attitudes towards tobacco have changed rather dramatically.

2.Be that as it may, tobacco is still widely consumed in the European Union. It is therefore not surprising that its taxation continues to give rise to controversies, (3) as illustrated by the main action.

3.Specifically, the referring court asks whether dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof, which have undergone primary drying and controlled dampening and in which the presence of glycerine is detected, and are capable of being smoked after simple preparation by means of crushing or hand-cutting (‘the products in question’), fall within the scope of Article 2 or, as the case may be, Article 5 of Directive 2011/64/EU. (4) Should the Court consider this not to be the case, the referring court then seeks to ascertain whether that directive precludes the Member States from imposing a levy on such products.

4.For the reasons which follow, I am of the view that products such as those in question are to be classified as ‘other smoking tobacco’ under Article 2(1)(c)(ii) of Directive 2011/64. Accordingly, they amount to ‘manufactured tobacco’ under that directive, which Member States are to subject to excise duty.

I – Legal framework

A – EU law

‘1. This Directive lays down general arrangements in relation to excise duty which is levied directly or indirectly on the consumption of the following goods (hereinafter “excise goods”):

…

(c) manufactured tobacco …

(a) products other than excise goods;

…

However, the levying of such taxes may not, in trade between Member States, give rise to formalities connected with the crossing of frontiers.’

7. Articles 2, 3 and 5 of Directive 2011/64 (appearing in Chapter 2 under the heading ‘Definitions’), provide:

‘Article 2

(a) cigarettes;

(b) cigars and cigarillos;

(c) smoking tobacco:

(i) fine-cut tobacco for the rolling of cigarettes;

(ii) other smoking tobacco.

…

Article 3

(a) rolls of tobacco capable of being smoked as they are and which are not cigars or cigarillos …

(b) rolls of tobacco which, by simple non-industrial handling, are inserted into cigarette-paper tubes.

(c) rolls of tobacco which, by simple non-industrial handling, are wrapped in cigarette paper.

…

(a) tobacco which has been cut or otherwise split, twisted or pressed into blocks and is capable of being smoked without further industrial processing;

(b) tobacco refuse put up for retail sale which does not fall under Article 3 and Article 4(1) and which can be smoked. For the purpose of this Article, tobacco refuse shall be deemed to be remnants of tobacco leaves and by-products obtained from tobacco processing or the manufacture of tobacco products.

…’

B – Czech law

‘(1) Manufactured tobacco shall be subject to excise duty.

(2) For the purposes of this Law, manufactured tobacco means cigarettes, cigars, cigarillos and smoking tobacco.

(3) ...

For the purposes of this Law:

…

(c)smoking tobacco means:

1.tobacco which has been cut or otherwise split, twisted or pressed into blocks and is capable of being smoked without further industrial processing;

2.tobacco refuse prepared for sale to the final consumer which does not fall under subparagraphs (a) or (b) and which can be smoked; …

6.For the purposes of this Law, smoking tobacco additionally means a product also fully or partially containing substances other than tobacco and complying with other conditions referred to in paragraph (3)(c) … or a product not referred to in paragraph (3)(c) if it is intended for a purpose other than smoking and, at the same time, that product is capable of being smoked and has been prepared for sale to the final consumer.

…’

II – Facts, procedure and the questions referred

9.By decision of 14 November 2013, the Celní úřad pro Jihočeský kraj (South Bohemian Region Customs Office, Czech Republic) ordered the confiscation and destruction of the products in question belonging to Eko-Tabak s.r.o. (‘the applicant’), pursuant to certain provisions of the Excise Duty Law. According to the referring court, those products were primarily intended for sale to final consumers.

10.The applicant lodged an administrative appeal against that decision which was, in substance, confirmed by the Generální ředitelství cel (General Directorate of Customs, Czech Republic) on 29 May 2014. The applicant then brought an action for judicial review of the decision of 29 May 2014 before the Krajský soud v Českých Budějovicích (Regional Court of České Budějovice, Czech Republic), arguing that the lists of products falling within the scope of section 101(6) of the Excise Duty Law unlawfully broadened the list of manufactured tobacco products set out in Directive 2011/64. By judgment of 30 January 2015, that court rejected that claim. The Krajský soud v Českých Budějovicích (Regional Court of České Budějovice) concluded that the spirit and purpose of Directive 2011/64 was to ensure that products that are capable of being smoked, although not necessarily intended to be smoked, are subject to excise duties. The Krajský soud v Českých Budějovicích (Regional Court of České Budějovic) added that Directive 2011/64 aimed to combat tax evasion and the circumvention of EU law such as had, in its view, taken place in the matter before it.

11.The applicant brought an appeal against that judgment before the Nejyšší správní soud (Supreme Administrative Court, Czech Republic). Entertaining doubts as to the proper interpretation of Articles 2 and 5 of Directive 2011/64, that court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)Where dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof which have undergone primary drying and controlled dampening and in which the presence of glycerine is detected are capable of being smoked after simple preparation (by means of crushing or hand-cutting), can they be regarded as manufactured tobacco within the meaning of Article 2(1)(c)(ii) or, as the case may be, Article 5(1)(a) of [Directive 2011/64]?

(2)If the answer to the first question is in the negative, does Article 5, in conjunction with Article 2, of [Directive 2011/64] preclude national legislation of a Member State which extends excise duty on manufactured tobacco to tobacco that is not referred to in Articles 2 and 5 of [Directive 2011/64] and that, while not intended for smoking, can be smoked (is capable of and appropriate for being smoked) and has been prepared for sale to the final consumer?

12.Written submissions were lodged by the Czech, Spanish and Italian Governments, and by the European Commission. At the hearing held on 26 October 2016, oral argument was presented by the Czech and Spanish Governments and by the Commission.

III – Analysis

13.As the present request for a preliminary ruling demonstrates, doubts subsist as to the proper interpretation of the concept of ‘manufactured tobacco’ as used in Directive 2011/64 and, in particular, the correct meaning of the terms ‘smoking tobacco’, ‘other smoking tobacco’ and ‘capable of being smoked without further industrial processing’. The Commission has recognised those interpretative difficulties in its REFIT (Regulatory Fitness and Performance Programme) evaluation of Directive 2011/64. Accordingly, the questions referred will give the Court the opportunity of providing a measure of clarification.

A – The first question referred

14.By its first question, the referring court seeks assistance in determining whether dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof, which have undergone primary drying and controlled dampening and in which the presence of glycerine is detected, fall within the meaning of ‘manufactured tobacco’ as used in Article 2 of Directive 2011/64.

15.Under Article 2 of Directive 2011/64, ‘manufactured tobacco’ comprises cigarettes, cigars, cigarillos and smoking tobacco. Those products are consequently subject to excise duty.

16.‘Smoking tobacco’, as used in Article 2 of Directive 2011/64, is defined as either fine-cut tobacco for the rolling of cigarettes or ‘other smoking tobacco’. It follows that ‘other smoking tobacco’ refers to a category of tobacco products that are neither cigarettes, nor cigars, cigarillos, nor fine-cut tobacco for the rolling of cigarettes.

17.‘Smoking tobacco’ is further defined in Article 5(1) of Directive 2011/64 as comprising a type of smoking tobacco which I shall call smoking tobacco proper (letter (a)) and smoking tobacco refuse (letter (b)). It is the former type of tobacco that is at the heart of the main proceedings.

18.Under Article 5(1)(a) of Directive 2011/64, ‘smoking tobacco’ must meet two sets of conditions: first, it must have been ‘cut or otherwise split, twisted or pressed into blocks’ and, second, it must be ‘capable of being smoked without further industrial processing’.

19.As argued by the Czech Government and the Commission, the wording of Article 5(1)(a) of Directive 2011/64 suggests that tobacco products must fulfil both conditions in order to be classified as ‘smoking tobacco’ under that provision. I shall consider both conditions successively in what follows.

20.The description in the order for reference of the products in question gives the impression that those products — dried whole leaves of tobacco — cannot be considered to have been cut, pressed into blocks or twisted. But can they be described as ‘otherwise split’? In that regard, the order for reference states that the leaves at issue have been ‘partly stripped’, meaning that the leaf’s petiole (the stalk that supports the blade of a foliage leaf and joins it to the stem of the plant) has been entirely or partly removed. According to the Czech Government, that treatment can, without a doubt, be described as ‘otherwise split’. At the hearing, the Commission stated that in its view, the sole removal of the petiole would not suffice to fulfil this first condition. However, that institution would not rule out that the products in question might be either cut, twisted or pressed into blocks, but that certitude on that aspect would require a more detailed description of those products than that contained in the order for reference.

21.In contrast, that order seems to be based on the notion that the first condition is met — at least, it does not explicitly relay any doubts in that regard. However, as the Court has never interpreted that condition before, I shall attempt to provide some assistance in that respect.

22.In my view, even though a linguistic comparison does not provide a conclusive answer to that question,

a proper construction of the terms ‘otherwise split’ must include tobacco leaves which have been partly stripped in order to remove the petiole. Indeed, that procedure does require the leaf to be at least partly torn down the middle to a lesser or greater extent depending on the leaf’s physiognomy, leaving two halves which may still be connected by part of the plant’s blade.

23.Such a reading is supported, in my view, by the wording, context and purpose of Article 5(1)(a) of Directive 2011/64.

24.In the first place, as regards the wording of Article 5(1)(a) of Directive 2011/64, the use of the word ‘otherwise’ in the terms ‘otherwise split’ suggests that smoking tobacco proper, as governed by that provision, must be construed widely in order to allow a variety of manufacturing processes to be included without having to define all the possible ways in which it may be manufactured.

25.In the second place, the context of Directive 2011/64 confirms this.

26.From the outset, smoking tobacco refuse under Article 5(1)(b) of Directive 2011/64 is defined as ‘remnants of tobacco leaves and by-products’. Given the fact that the remains of tobacco stalks — including petioles — would appear to be such remnants and/or by-products, the remaining part of the tobacco leaf stripped of those parts — that is to say, the part which is better suited for smoking purposes — would conversely tend to be classified as smoking tobacco proper.

27.Moreover, as the Commission recognised at the hearing, the use of the open-ended and largely self-defining concept of ‘other smoking tobacco’ within the umbrella of ‘smoking tobacco’ under Article 2(1)(c) of Directive 2011/64 implies that ‘other smoking tobacco’ must be construed broadly as a residual category intended to catch types of manufactured tobacco that do not fit into the more specific categories listed before it.

28.In the last place, the overarching aim of Directive 2011/64 also requires the concept of ‘smoking tobacco’ to be construed broadly.

29.In order to achieve the proper functioning of the internal market, Directive 2011/64 seeks to ensure that the application in the Member States of taxes affecting the consumption of products in the manufactured tobacco sector does not distort conditions of competition and does not impede their free movement within the Union. In particular, recital 9 of that directive states that harmonisation of excise duty structures must result in competition in the different categories of manufactured tobacco belonging to the same group not being distorted by the effects of the charging of the tax and, consequently, in the opening of the national markets of the Member States. (8) That aim of ensuring undistorted competition is underscored by recital 8 of Directive 2011/64, which essentially states that products similar to a listed category should be treated, for the purposes of excise duty, as part of that category. In that connection, it stands to reason that a dried tobacco leaf which is partly torn in half is similar to a dried tobacco leaf which is actually torn in half.

30.What is more, recital 2 of Directive 2011/64 provides that the Union’s fiscal legislation needs to ensure a high level of health protection and that tobacco products can cause serious harm to health. An overly narrow interpretation of the first condition set out in Article 5(1)(a) of that directive would run the risk of running counter to that public health objective by potentially limiting the possibility of having recourse to fiscal policy measures in order to temper demand for such products. (9)

31.It follows from the above that the concept of ‘smoking tobacco’, as used in Article 5(1)(a) of Directive 2011/64, ought to be construed broadly. Accordingly, I consider that the products in question meet the first condition stated above in point 18.

32.Against that backdrop, I now turn to the issue which is specifically contested in the main proceedings and the focus of the referring court’s first question: whether the products in question are ‘capable of being smoked without further industrial processing’, which is the second condition set out in Article 5(1)(a) of Directive 2011/64.

33.In order to qualify as ‘smoking tobacco’, the definition given of smoking tobacco proper in Article 5(1)(a) of Directive 2011/64 requires it to be ‘capable of being smoked without further industrial processing’ (the second condition).

34.At the hearing, the Czech Government and the Commission relied heavily on Schenker in support of their view — a view shared by the Spanish and Italian Governments — that the products in question meet that second condition, arguing that the same approach ought to be taken whether interpreting the rules on customs classification (which were at issue in that case) or those on excise duties. However, although legal certainty makes a uniform approach preferable, it seems to me that the Court did not classify the goods at issue in that case itself, but relied instead on the finding of fact of the national court that those goods were smoking tobacco. Moreover, although the Commission rightly stated at the hearing that the decisive criterion for customs classification purposes is whether the tobacco leaves have been subject to processing to such an extent that they constitute manufactured tobacco ready to be smoked without further industrial processing, whether that is the case is precisely what the referring court seeks clarification on from the Court in respect of the products in question. (10)

35.Now, Directive 2011/64 gives no explanation for the precise meaning of the terms ‘capable of being smoked without further industrial processing’. However, in Brinkmann, the Court held that the requirement under what is now Article 3(1)(a) of Directive 2011/64 that cigarettes must be capable of being consumed ‘as they are’ describes a finished product. Therefore, industrially produced rolls of tobacco enveloped in porous cellulose, which have to be inserted into a cigarette-paper tube or wrapped in cigarette paper before they can be smoked, were not classifiable as cigarettes under that provision, but at least as ‘smoking tobacco’, as those tobacco rolls were capable of being smoked without further industrial processing. (11) That judgment therefore lends support to the idea that the concept of ‘smoking tobacco’ is not limited to finished products.

36.A similar approach appears to be taken in Article 3(1)(b) and (c) of Directive 2011/64. That provision refers to rolls of tobacco which, by ‘simple non-industrial handling’, are inserted into cigarette-paper tubes or wrapped in cigarette paper. The idea conveyed by the terms ‘by simple non-industrial handling’ would tend to coincide with that underpinning the expression ‘capable of being smoked without further industrial processing’. After all, the main difference between cigarettes under Article 3(1)(b) and (c) and smoking tobacco proper under Article 5(1)(a) of the directive would seem to be the physical appearance of the tobacco at issue (that is to say, on the one hand, tobacco formed into rolls and, on the other hand, tobacco which has been cut or otherwise split, twisted or pressed into blocks). (12)

37.Therefore, the case-law under what is now Article 3(1)(b) and (c) of Directive 2011/64 relating to ‘simple non-industrial handling’ may provide a source of inspiration from which the Court may draw. In Commission v Germany, the Court ruled that inserting rolls of fine-cut tobacco, each wrapped in a tube of aluminium foil open at both ends of the appropriate dimensions to be inserted into filter-tipped cigarette-paper tubes, and then removing the wrapping with the help of an appliance the size of a ball-point pen leaving the tobacco inside the tube, is ‘simple non-industrial handling’. Those tobacco rolls are therefore classifiable as cigarettes under what is now Article 2(1)(a) of Directive 2011/64, rather than fine-cut tobacco for the rolling of cigarettes — or to use more idiomatic terms, rolling tobacco — under what is now Article 2(1)(c)(i) thereof. (13) Specifically, Advocate General Jacobs described ‘simple non-industrial handling’ as ‘practically any process whereby a smoker makes his own cigarettes from manufactured components’. He added that ‘if the process could not be performed, after a modicum of practice, with relative ease and to a moderate degree of competence by the average smoker in order to produce an acceptable cigarette, it is unlikely that the components would find a market’. (14)

Admittedly, the present matter is not limited to situations involving a process whereby a smoker makes his own cigarettes from components in respect of which the manufacturing process has, in conventional terms, come to an end. Accordingly, a more appropriate comparator might be rolling tobacco, which is the other type of ‘smoking tobacco’ listed in Article 2(1)(c) of Directive 2011/64. Using rolling tobacco means that the smoker has to place loose tobacco deftly onto a thin sheet of paper and roll or wrap it into a slim cylindrical shape. The smoker may also place a cigarette filter tip at one end of the paper before wrapping. While that operation may prove difficult at first, it is nevertheless open to all smokers and the average smoker will, with some practice, master the skills involved.

39.The same line of reasoning may be applied to the terms ‘capable of being smoked without further industrial processing’ as used in Article 5(1)(a) of Directive 2011/64. That leads me to consider that, generally speaking, ‘smoking tobacco’ under that provision is tobacco which, without falling into one of the other categories set out in that directive, is ready, or may easily be made ready by non-industrial means, for consumption. Whether that is the case must be addressed from a functional perspective. In that regard, the manual transformation for their own consumption by smokers, who do not necessarily possess any prior skills in that regard, of tobacco which has been cut or otherwise split, twisted or pressed into blocks into a product capable of being smoked, does not amount to industrial processing.

40.Conversely, I would consider that tobacco seeds, tobacco plants and freshly cut tobacco leaves in respect of which the drying and fermentation process has not yet commenced, can be classified neither as ‘smoking tobacco’ under Article 5(1)(a) of Directive 2011/64, nor, consequently, as ‘manufactured tobacco’ under Article 2 thereof.

41.I would add that the interpretation given above at point 39 is that which best fits the aims of Directive 2011/64, stated above at points 29 and 30, namely, undistorted competition and a high level of health protection.

42.Against that background, and bearing in mind the limits of the Court’s jurisdiction in preliminary ruling proceedings, the Court must indicate whether tobacco products such as those in question in the main proceedings require industrial processing in order to be capable of being smoked.

43.In that regard, the request for a preliminary ruling refers to an expert report which concluded that the products in question, in the absence of further preparation, are not capable of being smoked or made into a cigarette, or used to fill a cigarette tube or pipe. However, according to that report, the products in question can, after being cut or crushed up, be used to roll a cigarette or to fill a cigarette roll or pipe. They are then smoked. The referring court adds that establishments selling the products in question offer customers the possibility of preparing the tobacco leaves with a cutting utensil displayed on the shop counter. I should add that I am also aware that such utensils can readily be found and purchased on the retail market.

44.From that description, it is clear that the products in question do require some measure of further handling, but do not appear to require any processing that cannot be accomplished by an average smoker.

45.Accordingly, in circumstances such as those described in the order for reference, I consider that the products in question are capable of being smoked without further industrial processing within the meaning of Article 5(1)(a) of Directive 2011/64. Those products also, as explained above at points 22 to 31, meet the physical characteristics (the first condition) of smoking tobacco under that same article. It follows that I consider that the products in question can be regarded, as such, as ‘other smoking tobacco’ within the meaning of Article 2(1)(c)(ii) and, consequently, ‘manufactured tobacco’ subject to excise duty. (15)

The second question referred

46.By its second question, the referring court asks whether, in the event that the products in question are considered not to fall within the scope of Directive 2011/64 as ‘manufactured tobacco’, Member States are precluded from levying a duty on them.

47.Given my answer to the first question, it may not be necessary for the Court to provide an answer to the second. However, for the sake of completeness, my views on the second question are as follows.

48.As argued by the Commission, if the Court concludes that the products in question are not ‘manufactured tobacco’, it would follow that the products in question are products ‘other than excise goods’ within the meaning of Article 1(1) of Directive 2008/118. In that eventuality, it emerges from Article 1(3) of that directive that Member States may levy taxes on those products, provided that the levying of such taxes does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. (16) In particular, Article 1(3) of that directive does not preclude, in itself, Member States from imposing on products other than those subject to the harmonised excise duty arrangements a tax governed by rules identical to those relating to those arrangements. (17)

49.It is for the referring court to verify that the duty levied on the products in question does not, in trade between Member States, give rise to formalities connected with the crossing of frontiers. In that regard, the order for reference contains insufficient details on the excise duty and its practical implementation. I shall therefore limit myself to some general comments which might assist the referring court in ascertaining whether the excise duty levied on the products in question are lawful in the light of Directive 2008/118.

50.The Court has distinguished between formalities that relate to the obligation to pay an excise duty and formalities that relate to the crossing of a frontier. (18) The prohibition contained in Article 1(3) of Directive 2008/118 applies only to the latter situation. Although a declaration might have to be submitted at the time of intra-Union acquisition — thus at the time of crossing a frontier — the purpose of that formality may very well be to settle the excise duty, which is not prohibited under Directive 2008/118. (19) Moreover, if the tax applies to both imported and domestic products alike in the same manner, then any formalities relating to the payment of that tax are not connected to the crossing of a frontier. (20)

51.To conclude, and only in the event that the Court were to disagree with my answer to the first question referred, Member States may levy tax on products such as the products in question except where that tax is solely connected to the crossing of a frontier. It is for the referring court to verify whether that is the case having regard, in particular, to the observations made above in points 48 and 50.

Conclusion

In light of the foregoing considerations, I propose that the Court should answer the questions referred by the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) to the effect that dried, flat, irregular, partly stripped leaf tobacco and/or parts thereof, which have undergone primary drying and controlled dampening and in which the presence of glycerine is detected, and which are capable of being smoked after simple preparation by means of crushing or hand-cutting, are to be classified as ‘manufactured tobacco’ within the meaning of Article 2 of Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco and, in particular, as ‘smoking tobacco’ within the meaning of Article 5(1)(a) thereto.

* Original language: English.

Molière, Dom Juan, 1665, Scene 1, Act 1 (Tribute to tobacco (‘L’éloge du tabac’)).

See, for instance, judgment of 21 September 2016, Etablissements Fr. Colruyt, C‑221/15, EU:C:2016:704.

Council Directive of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (codification) (OJ 2011 L 176, p. 24).

Council Directive of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12) as amended by Council Directive 2010/12/EU of 16 February 2010 amending Directives 92/79/EEC, 92/80/EEC and 95/59/EC on the structure and rates of excise duty applied on manufactured tobacco and Directive 2008/118/EC (OJ 2010 L 50, p. 1) and Council Directive 2013/61/EU of 17 December 2013 amending Directives 2006/112/EC and 2008/118/EC as regards the French outermost regions and Mayotte in particular (OJ 2013 L 353, p. 5).

Report from the Commission to the Council on the REFIT evaluation of Directive 2011/64/EU and on the structure and rates of excise duty applied to manufactured tobacco, COM(2015) 621 final, p. 8 et seq.

The other language versions of Directive 2011/64 do not shed much light on the meaning of ‘otherwise split’. On the one hand, some of those versions suggest that ‘otherwise split’ means that the tobacco must actually be reduced into smaller pieces (in Spanish: ‘fraccionado de otra forma’; German: ‘anders zerkleinerten’; French: ‘fractionné d’une autre façon’; Italian: ‘in altro modo frazionato’; Dutch: ‘op andere wijze versnipperde’; Portuguese: ‘fraccionado de outra forma’; Romanian: ‘divizat în alt mod’; Finnish: ‘tai muutoin paloiteltua’). On the other hand, other language versions are more open to the idea that a simple tear is sufficient (Danish: ‘revet’, English: ‘otherwise split’, and Swedish: ‘på annat sätt strimlats’).

See judgment of 21 September 2016, Etablissements Fr. Colruyt, C‑221/15, EU:C:2016:704, paragraph 21. See also judgment of 9 October 2014, Yesmoke Tobacco, C‑428/13, EU:C:2014:2263, paragraph 23.

See, to that effect, judgment of 9 October 2014, Yesmoke Tobacco, C‑428/13, EU:C:2014:2263, paragraphs 35 and 36.

Judgment of 8 September 2016, Schenker, C‑409/14, EU:C:2016:643, paragraphs 89 and 90, cf. paragraph 79. I would add that whereas both smoking tobacco proper and smoking tobacco refuse are forms of ‘smoking tobacco’ under Article 5(1)(a) and (b) of Directive 2011/64, it follows from the aforementioned judgment that tobacco refuse is classified differently from smoking tobacco for customs purposes.

See judgment of 24 September 1998, Brinkmann, C‑319/96, EU:C:1998:429, paragraphs 18 and 20, interpreting corresponding provisions in Articles 3(1) and 4(1) of Second Council Directive 79/32/EEC of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1979 L 10, p. 8).

In a similar vein, smoking tobacco refuse which is subject to excise duty under Article 5(1)(b) of Directive 2011/64 is the remnants of tobacco leaves and by-products obtained from tobacco processing or the manufacture of tobacco products which, apart from being put up for retail sale, can be smoked.

See judgment of 10 November 2005, Commission v Germany, C‑197/04, EU:C:2005:672, paragraphs 31 and 32, concerning, inter alia, Article 4(1)(b) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40).

See Opinion of Advocate General Jacobs in Commission v Germany, C‑197/04, EU:C:2005:476, point 25. That approach was endorsed by the Court: see judgment of 10 November 2005, Commission v Germany, C‑197/04, EU:C:2005:672, paragraph 31.

In that connection, although it is in my view unnecessary for the Court to rule on whether the products in question might also be classifiable as smoking tobacco refuse under Article 5(1)(b) of Directive 2011/64, depending on how the concepts of ‘remnants’ and ‘by-products’ are construed — for instance whether they might include dried tobacco leaves intended for use as fertiliser and/or decorative purposes — to me this would not appear to be excluded.

See, to that effect, judgment of 5 July 2007, Fendt Italiana, C‑145/06 and C‑146/06, paragraph 44, concerning a similar provision appearing in a predecessor to Directive 2008/118.

Judgment of 12 February 2015, Oil Trading Poland, C‑349/13, paragraph 34.

Judgment of 12 February 2015, Oil Trading Poland, C‑349/13, paragraph 37 and the case-law cited.

See, to that effect, judgment of 3 June 2010, Kalinchev, C‑2/09, paragraph 27 and the case-law cited, concerning a similar provision appearing in a predecessor to Directive 2008/118.

See, to that effect, judgment of 12 February 2015, Oil Trading Poland, C‑349/13, paragraph 38.