Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61995J0189 European Court reports 1997 Page I-05909 7
32 Mr Franzén contends that Articles 30 and 37 of the Treaty preclude the provisions in question.
According to him, the maintenance of a retail monopoly, such as that now existing in Sweden, impedes
the importation of alcoholic beverages into Sweden in several ways and enables Systembolaget to promote
the marketing of domestic products. He points out that alcoholic beverages produced in other Member
States can be sold in Sweden only if they are imported by a production or wholesale licence-holder and if
they are selected on the basis of restrictive and arbitrary criteria set by Systembolaget. Such beverages can
be marketed only through a restricted sales network and they cannot be promoted otherwise than by
Systembolaget. Mr Franzén also contends that the rules governing the monopoly do not form legislation
restricting or prohibiting certain selling arrangements, within the meaning of the judgments given in Joined
Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097 and in Case C-391/92 Commission
v Greece [1995] ECR I-1621, in particular because they concern the activity of an undertaking which is
not subject to any competition and do not govern the activity of undertakings exposed to the free play of
competition.
33 The French, Finnish, Swedish and Norwegian Governments and the Commission consider that neither
Article 30 nor Article 37 of the Treaty preclude national provisions such as those referred to by the
national court in this case. They point out that Article 37 does not require the abolition of retail
monopolies but simply requires that they be adjusted so that they do not involve rules which are
discriminatory according to the origin of products or according to the nationality of traders. In their view,
the monopoly in question in the main proceedings meets those conditions. They also consider that the
rules applicable to the monopoly do not hinder, directly or indirectly, intra-Community trade. Such rules
limit or prohibit certain selling arrangements and affect the marketing of domestic products and imported
products in the same way.
34 As is clear from the reasoning in the order for reference and the observations submitted to the Court,
the questions raised by the national court concern not only the domestic provisions relating to the
existence and operation of the monopoly but also, more generally, the provisions which, although not
governing the operation of the monopoly, nevertheless have a direct bearing upon it, as is the case with
the rules relating to production and wholesale licences.
35 Having regard to the case-law of the Court, it is necessary to examine the rules relating to the
existence and operation of the monopoly with reference to Article 37 of the Treaty, which is specifically
applicable to the exercise, by a domestic commercial monopoly, of its exclusive rights (judgments in Case
91/75 Hauptzollamt Göttingen v Miritz [1976] ECR 217, paragraph 5; Case 120/78 REWE-Zentral AG v
Bundesmonopolverwaltung für Branntwein (`Cassis de Dijon') [1979] ECR 649, paragraph 7; and Case
91/78 Hansen v Hauptzollamt Flensburg [1979] ECR 935, paragraphs 9 and 10).
36 On the other hand, the effect on intra-Community trade of the other provisions of the domestic
legislation which are separable from the operation of the monopoly although they have a bearing upon it,
must be examined with reference to Article 30 of the Treaty (see, to this effect, the judgments in Miritz,
cited above, paragraph 5, Cassis de Dijon, cited above, paragraph 7, and Case 86/78 Peureux v Services
Fiscaux de la Haute-Saône et du Territoire de Belfort [1979] ECR 897, paragraph 35).
The rules relating to the existence and operation of the monopoly
37 It is clear not only from the wording of Article 37 but also from the position which it occupies in the
general scheme of the Treaty that the article is designed to ensure compliance with the fundamental
principle that goods should be able to move freely throughout the common market, in particular by
requiring quantitative restrictions and measures having equivalent effect in trade between Member States to
be abolished, and thereby to ensure maintenance of normal conditions of competition between the
economies of Member States in the event that a given product is subject,
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