CE, Ass., 28 février 1992, p. 78
Case Société Arizona Tobacco Products et S.A. Phillip Morris
28 February 1992
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Professor John Bell FBA
Professor B. S. Markesinis

Without it being necessary to examine the other arguments of the request

Considering that, under the terms of art. 60 II of the Ordinance of 30 June 1945: “The provisions of this Ordinance do not apply: a) to the character of decisions relating to the prices of monopoly products which remain governed by texts relating to these products; nevertheless, the laws, decrees and decisions fixing the prices of monopoly products must be countersigned by the Minister for the National Economy; as under the terms of art. 3 of the Law of 24 May 1976 organising the monopoly of manufactured tobacco: “the manufacture and the retail sale of manufactured tobaccos are reserved to the State; as, by virtue of art. 6: “the retail price of each product shall be the same for the whole territory. It is fixed under the circumstances set out by the decrees provided for in art. 24”; as art. 10 of the decree, dating from 31 December 1976, provides “The retail prices of tobacco shall be determined by an order of the Minister of the Economy and Finance”; as these provisions which confer on the minister the power to fix the retail sale price of the public monopoly of retail tobacco, shall maintain decisions relating to this price outside the field of application of the Ordinance of 30 June 1945;

Considering that art. 37 of the Treaty creating the European Economic Community provides: “Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States; as under the terms of art. 5-1 of the Directive of the European Council of 19 December 1972 enacted in order to implement in relation to tobacco these provisions as well as those of art. 30 which prohibits quantitative restrictions and all measures having equivalent effect: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States; as it has been decided by the European Court of Justice in its default proceedings of 21 June 1983 and 13 July 1988 that the only provisions which art. 5-1 of the Directive exempts are those of national legislation of a general character, designed to reduce the increase in prices; as the provisions cited above of art. 6 of the Law of 24 May 1976 confer on the Government a specific power to fix the prices of tobacco imported from Member States of the European Community, independently of the application of national legislation on the control over prices; as they thus permit the Government to fix resale prices of imported tobacco in circumstances not provided for in art. 5-1 of the Directive of 19 December 1982 and are incompatible with the objectives set out in the Directive; as it follows that art. 10 of the cited Decree of 31 December 1976 lacks any legal basis, since it is based on art. 6 of the Law of 24 May 1976, which it is necessary to disapply; As it results from what has been said, that, in maintaining the price of manufactured tobacco at a level different from that which would have been fixed by the applicant companies, the Minister of the Economy and Finance could not lawfully reject implicitly the requests of the Société Rothmans International France and the SA Philip Morris France concerning 50 centimes on the price of products imported or distributed wholesale by them…

[The Decree was annulled]