Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) v Administración del Estado.

• Jurisdiction: European Union
• Celex Number: 62010CJ0456
• ECLI: ECLI:EU:C:2012:241
• Date: 26 April 2012
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑456/10

JUDGMENT OF THE COURT (Third Chamber)

26 April 2012 (*1 )

‛Free movement of goods — Articles 34 TFEU and 37 TFEU — National legislation prohibiting tobacco retailers from importing tobacco products — Rule concerning the existence and operation of a monopoly on the marketing of tobacco products — Measures having equivalent effect to quantitative restrictions — Justification — Consumer protection’

In Case C-456/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Tribunal Supremo (Spain), made by decision of 1 July 2010, received at the Court on 17 September 2010, in the proceedings

Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT)

v

Administración del Estado,

intervening parties:

Unión de Asociaciones de Estanqueros de España,

Logivend SLU,

Organización Nacional de Asociaciones de Estanqueros,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský (Rapporteur), R. Silva de Lapuerta, G. Arestis and T. von Danwitz, Judges,

Advocate General: J. Kokott,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 15 November 2011,

after considering the observations submitted on behalf of:

— Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT), by J. E. Garrido Roselló, abogado,

— the Spanish Government, by B. Plaza Cruz and S. Centeno Huerta, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, and by B. Tidore, avvocato dello Stato,

— the European Commission, by A. Alcover San Pedro and by L. Banciella and G. Wilms, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 34 TFEU.

2 The reference has been made in the course of proceedings between Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) and Administración del Estado concerning national legislation which prohibits licensed tobacco and stamp outlets (‘tobacco retailers’) from importing tobacco products from other Member States.

The national legal framework

3 As set out in Article 1(1) and (2) of Law No 13/1998 organising the Tobacco Market and Taxation Regulations (Ley 13/1998 de Ordenación del Mercado de Tabacos y Normativa Tributaria), of 4 May 1988 (BOE No 107 of 5 May 1998, p. 14871) as amended (‘Law No 13/1998’): ‘1. The market in tobacco is liberalised, subject to the limitations set out in the present Law, and consequently, the monopoly over the manufacture, importation and wholesale of non-community manufactured tobacco products … are abolished on the territory of the peninsula, the Balearic Islands, Ceuta and Melilla. 2. Any natural or legal person having the legal capacity to carry on a trade may engage in the activities referred to in paragraph 1, in the manner and according to the conditions provided in Articles 2 and 3 of the present Law. However, persons involved in one of the situations listed below, or who become so involved, may not engage in the abovementioned activities: ... (c) being a [tobacco retailer], having a point of sale subject to a surcharge or being the owner of one of the tobacco outlets under the special regime...’

4 Article 2(3) of the Law states: ‘Manufacturers and, where appropriate, importers shall ensure that their [manufactured tobacco products] are available throughout the national territory referred to in Article 1(1), where there is demand for those products.’

5 Article 3(1) of the same Law provides:: ‘There shall be no restrictions on the importing and wholesale distribution of manufactured tobacco products, irrespective of their origin, save for the requirement to submit an undertaking of compliance [with the applicable rules] to the Tobacco Market Commission … ‘

6 Article 4 of Law No 13/1998 states: ‘1. The retail trade of manufactured tobacco products in Spain, with the exception of the Canary Islands, shall remain a monopoly owned by the State, operated through the network of tobacco and stamp outlets. 2. The retail selling prices of the various types, brands and forms of tobacco product intended for sale in Spain, with the exception of the Canary Islands, shall be determined by manufacturers or, where applicable, their representatives or agents in the European Union … 3. [Tobacco retailers], who must necessarily be natural persons, having the nationality of any of the States of the European Union, are classified as licensees of the State. … [They] shall not be licence holders of any other outlet or point of sale subject to surcharge, or have any professional or working relationship with any importers, manufacturers or wholesalers on the tobacco market, unless that relationship ends prior to the definitive grant of the outlet licence. 4. An outlet licence shall be granted after a call for tenders ... The licence shall be granted for a period of twenty-five years. ... ... 7. The [tobacco retailer’s] profit margin on the sale of manufactured tobacco products, which must be acquired from an authorised wholesaler, is fixed at 8.5% of the retail sale price, regardless of the product’s price, type, or origin, or the wholesaler who supplied it Nevertheless, for the sale of cigars, the [tobacco retailer] shall, in any event, receive a profit margin of 9%. ...’

7 Article 1(1) of Royal Decree No 1199/1999 of 9 July 1999 laying down detailed rules for the implementation of Law No 13/1998 (BOE No 166 of 13 July 1999, p. 26330; ‘Royal Decree 1199/1999) states: ‘In accordance with Article 1 of Law [13/1998], any natural or legal person having the legal capacity to carry on a trade may engage in the activities of manufacture, importation and wholesale of manufactured tobacco products, regardless of their origin, under the conditions set out in the present regulation.’

8 Article 2(1) of the royal decree provides: ‘Persons involved in one of the situations listed below may not engage in the activities referred to in Article 1(1): ... (c) being a [tobacco retailer], having an outlet subject to a surcharge or being the owner of one of the tobacco outlets under the special regime ...’

9 Royal Decree No 1199/1999 was amended by Royal Decree No 1/2007 of 12 January 2007 (BOE No 18 of 20 January 2007, p.2845; ‘Royal Decree No 1/2007’).

The dispute in the main proceedings and the question referred for a preliminary ruling

10 By an action brought before the Tribunal Supremo (Supreme Court), ANETT requested that several provisions of Royal Decree No 1/2007 be annulled, on the ground that they modified Royal Decree No 1199/1999 without resolving an alleged contradiction between European Union law and the rules governing the tobacco market and the monopoly over tobacco distribution in Spain.

11 ANETT claimed, inter alia, that the prohibition of tobacco retailers from importing tobacco was contrary to the principles of the free movement of goods, as provided by Article 34 TFEU, since this prohibition constituted a quantitative restriction or a measure having equivalent effect.

12 In those circumstances, the Tribunal Supremo decided to stay proceedings and to refer the following question to the Court for a preliminary ruling: ‘Should Article 34 [TFEU] be interpreted as meaning that Spanish national law prohibiting tobacco [retailers] from importing manufactured tobacco products from other Member States constitutes a quantitative restriction on imports or a measure having equivalent effect as prohibited by the [FEU] Treaty?’

The admissibility of the reference for a preliminary ruling

13 At the hearing, the Spanish Government challenged the admissibility of the reference for a preliminary ruling, maintaining that the Court’s response served no purpose in relation to the outcome of the main proceedings since those proceedings concern the validity of Royal Decree 1/2007.

14 That decree modified certain provisions of Royal Decree 1199/1999 without governing or even mentioning the prohibition of tobacco retailers from importing tobacco products. This prohibition arises from Article 4 of Law No 13/1998 and Article 2 of Royal Decree No 1199/1999, which are not affected by Royal Decree 1/2007. It follows that, in the main proceedings, the referring court may not annul any provision connected to the aforementioned prohibition.

15 Moreover, ANETT has already brought an action against Royal Decree No 1199/1999 which lays downs this same prohibition, without challenging that prohibition, and this action has been rejected by the Tribunal Supremo. In light of the principles of legal certainty and res judicata, the national court cannot thereby revaluate the prohibition in question in the main proceedings.

16 In this respect, it should be noted that, according to settled case-law, questions on...