Brussels, 10 July 2014
Taxation: Commission refers Portugal to Court of Justice over excise duty rules for cigarettes
The European Commission has decided to refer Portugal to the Court of Justice for failing to change its excise duty rules related to the marketing of cigarettes. In Portugal, a time limit for the sale of cigarettes is set down, linked to the fiscal stamp on the packaging. The design of the tax markings in Portugal changes regularly and a new tax rate frequently applies with the new marking. Cigarettes cannot be sold any later than 3 months after the end of the year that they are released for consumption.
Under EU law (Directive 2008/118/EC), excise duty on tobacco products must be charged at the rate applicable on the date on which they are released for consumption. There is no provision under EU legislation which allows Member States to add supplementary duty to this release-date tax rate, or to limit the distribution of tobacco products for fiscal reasons.
By applying the sales-and-marketing prohibition Portugal implies that all cigarettes bearing the old tax markings and unsold at the end of the transitional period were released in excessive quantity. Such a presumption is inadmissible under Court of Justice case law. The Portuguese sales-and-marketing prohibition is clearly disproportionate to any fraud-tackling objective. It also runs contrary to the provisions of Directive 2008/118/EC, under which Member States must ensure that tax markings do not create obstacles to the free movement of excise goods.
The failure of Portugal to comply with these rules results in situations whereby operators are not allowed to sell cigarettes, which were taxed and which comply with all requirements for a free circulation on the Single Market.
The reason behind the decision to refer the matter to the Court is the failure by Portugal to bring its legislation into line, following a Reasoned Opinion sent by the Commission in June 2012 and an additional Reasoned Opinion of May 2013.
For press releases on infringement proceedings in the areas of taxation and customs see:
For the most up-to-date general information on infringement proceedings initiated against Member States, see: http://ec.europa.eu/eu_law/infringements/infringements_en.htm