A ruling on Ireland's ability or otherwise to fix cigarette prices seems somewhat off the point, given the almost weekly announcements by Revenue of contraband cigarette seizures. Nevertheless, that's what we got this week following the ECJ's examination of Ireland's excise regime and competition law.
There are few tax law principles amplified in the ruling of the ECJ in Case 221/08, available from the ECJ website here. Instead the case seems to have turned on a finding at paragraph 40, namely that
"the imposition of a minimum retail selling price by the public authorities thus means that the maximum retail selling price determined by manufacturers and importers cannot, in any event, be lower than that obligatory minimum price. Legislation imposing such a minimum price is therefore capable of undermining competition by preventing some of those producers or importers from taking advantage of lower cost prices so as to offer more attractive retail selling prices."
So even by applying a minimum price to a product, you prejudice the ability to fix a maximum price. This, we suspect, is not an all consuming preoccupation for the lads selling the cartons of John Player Blue out of the car boot.
Not for the first time, the ECJ takes the opportunity to take a dim view of procedural matters surrounding the main point of the case. Parties to a case which have challenged the ECJ's jurisdiction over a particular issue, or which have had problems dealing with the bureaucratic interventions which occurred before the case got to court tend not to win. The latter seems to have been a factor here; the ECJ finding that Ireland's failure to answer correspondence from the Commission over a five year period is less than ideal.
Ireland is bearing the costs of the case, but how was the case ever allowed to get to this stage?