Opinion of Advocate General Pikamäe delivered on 8 June 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:470
• Date: 08 June 2023
• Celex Number: 62022CC0096
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 8 June 2023 (1)

Case C‑96/22

Companhia de Distribuição Integral Logísta Portugal, SA

v

Autoridade Tributária e Aduaneira

(Request for a preliminary ruling from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal))

(Reference for a preliminary ruling – Excise duty – Directive 2008/118/EC – Articles 7 and 9 – Scope – National legislation taxing quantities of cigarettes exceeding the quantitative limit at a rate in force after the date of release for consumption)

1. In the present case, the Court of Justice has been requested by the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) to give a preliminary ruling concerning the interpretation of Article 34 TFEU and Articles 7 and 9 of Directive 2008/118/EC. (2)

2. Since, at the Court’s request, this Opinion is focused on the second question referred for a preliminary ruling, it will concentrate solely on the interpretative analysis of the abovementioned provisions of secondary law.

3. The relevant legislative context consists of EU rules on general arrangements for excise duty. Excise duty is an indirect tax on consumption that can be used not only for the purposes of fiscal policy – namely to secure revenue for the public treasury – but also for non-fiscal purposes, such as to discourage the consumption of certain products, including tobacco.

4. In the present case, the question concerns the compliance with Directive 2008/118 of national tax arrangements under which quantities of cigarettes exceeding the quantitative limit for release for consumption provided for therein are subject to excise duty at the rate in force after the date of release for consumption. The arrangements at issue are intended to combat the abusive practice of releasing excessive quantities of goods for consumption in anticipation of a future increase in the rate of excise duty (forestalling).

5. This case will enable the Court to clarify where the dividing line lies between the substantive scope of the harmonisation introduced by Directive 2008/118 and the discretion that the directive allows the Member States.

Legal framework

European Union law

6. Articles 7 and 9 of Directive 2008/118 are relevant in the present case.

Portuguese law

7. Decreto-Lei n^o 73/2010 que aprova o Código dos Impostos Especiais de Consumo (Decree-Law No 73/2010 approving the Excise Duty Code), of 21 June 2010 (Diário da República, Series I, No 118, of 21 June 2010, p. 2170; ‘the CIEC’), transposed Directive 2008/118 into Portuguese law.

8. According to Article 106 of the CIEC, entitled ‘Special rules concerning release for consumption’:

‘1. The release for consumption of cigarettes shall be subject to the rules on limitation applicable in the period between 1 September and 31 December of each calendar year.

2. In the period referred to in the preceding paragraph, the release for consumption of cigarettes each month by each economic operator must not exceed the quantitative limits, deriving from the application of a multiplying factor of 10% to the average monthly quantity of cigarettes released for consumption in the 12 months immediately preceding.

3. For the purposes of the preceding paragraph, the calculation of the monthly average shall be based on the total quantity of releases for consumption of cigarettes, non-exempt, between 1 September of the previous year and 31 August of the following year.

4. Each economic operator shall provide to the competent customs office, by 15 September of each year at the latest, an initial declaration indicating its monthly average and setting out the quantitative limit applicable in its case in the limitation period.

5. In exceptional circumstances, duly justified by the sudden change for a limited time of the volume of sales, the failure to comply with those quantitative limits may be authorised, although they shall not be taken into account for the purpose of calculating the monthly average for the following year.

6. After the expiry of the limitation period and at the latest at the end of the month of January of each year, economic operators shall provide the competent customs office with a declaration of discharge indicating the total quantity of cigarettes actually released for consumption in the limitation period.

7. The amount of cigarettes exceeding the quantitative limit referred to in paragraph 4 are subject to the payment of tax at the rate applicable on the date on which the declaration of discharge is lodged, where it is established that the quantitative limit has been exceeded by comparing the information in that document and those documents processed by the administration, without prejudice, where applicable, to the infringement procedure that may be necessary.

8. The rules laid down in this article are individually applicable on Mainland Portugal, the Autonomous Region of the Azores and the Autonomous Region of Madeira, since the obligations laid down in the preceding paragraph must be fulfilled at the customs office where the release for consumption is dealt with.’

Facts of the dispute, the procedure in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

9. Companhia de Distribuição Integral Logista Portugal SA, formerly Compañía de Distribución Integral Logista SA (‘Logista’), is an undertaking active in the retail of tobacco products which is authorised by the Portuguese customs authority to operate as a warehousekeeper in the Autonomous Region of Madeira.

10. On 15 September 2010, Logista, under Article 106(4) of the CIEC, lodged an initial declaration with the customs services in Funchal (Portugal) of the average monthly quantity of cigarettes released for consumption during the 12 months immediately preceding, that is to say between 1 September 2009 and 31 August 2010.

11. On 22 September 2010, the customs services in Funchal informed Logista that, on the basis of the information provided, it had been allocated a monthly quantitative limit of 1 644 005 cigarettes for the limitation period from September to December 2010, calculated in accordance with Article 106(1) to (3) of the CIEC.

12. On 18 November 2010, Logista requested authorisation to exceed that quantitative limit pursuant to Article 106(5) of the CIEC.

13. On 7 January 2011, the customs services in Funchal adopted an order rejecting that request on the ground that failure to comply with the quantitative limit in question was not justified by a sudden change in sales volume for a limited time, as required by Article 106(5) of the CIEC. Logista then lodged an appeal against that decision, which was also rejected.

14. On 18 January 2011, in accordance with Article 106(6) of the CIEC, Logista provided the customs services in Funchal with a declaration of discharge attesting to the release for consumption of a quantity of cigarettes more than three times the quantitative limit during the period between September and December 2010.

15. Pursuant to Article 106(7) of the CIEC, Logista was issued with an additional demand for excise duty amounting to EUR 4 607.69, plus EUR 1.80, based on the number of cigarettes it had released for consumption during the period from September to December 2010 and which exceeded the quantitative limit provided for in Article 106(2) of the CIEC.

16. Logista challenged that additional demand before the Tribunal Administrativo e Fiscal do Funchal (Administrative and Finance Court, Funchal, Portugal), which dismissed its appeal. Logista subsequently appealed against that decision before the Supremo Tribunal Administrativo (Supreme Administrative Court).

17. Before the referring court, Logista submits, inter alia, that the application of the rate of excise duty on the date of submission of the declaration of discharge infringes Articles 7 and 9 of Directive 2008/118, according to which the chargeability conditions and the rate applicable are those in force on the date on which the tobacco was released for consumption. The Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) contends that the arrangements at issue comply with those provisions.

18. In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do the quantitative limits on the release for consumption established by Article 106 of the CIEC constitute quantitative restrictions on imports or measures having equivalent effect within the meaning of Article 34 TFEU, in so far as they have the effect that, during the last four months of each year, the quantities of cigarettes sold by operators may not exceed the average monthly quantity of cigarettes released for consumption in the 12 months immediately preceding?

(2) Is it contrary to the rules on the chargeability of excise duty established by Articles 7 and 9 of [Directive 2008/118] to levy tax on any quantities of cigarettes that exceed the quantitative limit on the release for consumption established under Article 106(2) of the CIEC at the rate applicable on the date on which the declaration of discharge is lodged, in accordance with Article 106(7) of the CIEC?’

19. Written observations were submitted by Logista, the Tax...