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

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61995J0189 European Court reports 1997 Page I-05909 10 58 Mr Franzén also contends that the system for promoting alcoholic beverages favours the marketing of beverages produced in Sweden. He points out that the promotion of alcoholic beverages is confined to mere provision of information about the products, varying in form depending on whether the products are in the `basic' assortment or in the `by order' assortment, that the information is provided by the monopoly alone, without any control by suppliers and, furthermore, that suppliers may not canvas persons in charge of the monopoly's `shops'. 59 As far as these points are concerned, it must be observed first of all that the restriction of the possibilities for promoting alcoholic beverages to the public is inherent in the situation where there is only one operator on the market for their retail. 60 Second, the monopoly rules do not prohibit producers or importers from promoting their products to the monopoly. Although suppliers may not directly promote products to managers of the monopoly's `shops', it appears that this prohibition is designed to meet the concern, expressed by some suppliers, in particular to the Swedish Competition Authority (Konkurrensverket), that there should be strictly equal conditions for the promotion of products. 61 It must also be pointed out that the promotion of alcoholic beverages to the public is subject, in the Member State in question, to a general restriction, the validity of which has not been called in question by the national court nor challenged by Mr Franzén. That restriction consists, in particular, of a ban on advertising on radio and television and in all newspapers or other periodicals, that is to say the means traditionally used by producers to promote their products to the public. However, alcoholic beverages selected by Systembolaget may be advertised in written material available at sales outlets. Furthermore, any alcoholic beverage may be mentioned in press articles. 62 As far as product promotion is concerned, the agreement made between the Swedish State and Systembolaget requires the latter to adopt marketing and advertising measures which are impartial and independent of the origin of the products and to endeavour to make known new beverages to consumers whilst taking account of the restrictions in the Law on Alcohol. 63 Although it is true that the monopoly's promotion of alcoholic beverages is mainly in the form of product presentation, it appears that this method of promotion simply meets the obligations which are referred to above. It must, however, be noted that new products are systematically presented either in the monthly review distributed by the monopoly or to newspaper, radio and television wine critics, or, finally, in displays in the monopoly's `shops'. 64 Finally, it must be noted that the method of promotion used by the monopoly applies independently of products' origin and is not in itself apt to put at a disadvantage, in fact or in law, beverages imported from other Member States in relation to those produced on national territory. 65 Whilst it is true that beverages in the `by order' assortment appear on a special price list which can be provided at the consumer's request, this difference of treatment, which is also independent of the origin of the products, is justified by the fact that these beverages are not held in stock by Systembolaget and are not therefore in a situation comparable to that of beverages in the other assortments. 66 So, having regard to the evidence before the Court, it appears that a retail monopoly such as that in question in the main proceedings meets the conditions for being compatible with Article 37 of the Treaty, set out in paragraphs 39 and 40 of this judgment. The other provisions of national legislation bearing upon the operation of the monopoly 67 As explained above, in view of the arguments which have been exchanged before both the national court and this Court, the questions referred for a preliminary ruling must be understood as also relating to the provisions of the domestic legislation which, although not, strictly speaking, regulating © An extract from a JUSTIS database 34
61995J0189 European Court reports 1997 Page I-05909 11 the functioning of the monopoly, nevertheless have a direct bearing upon it. Those provisions must be examined with reference to Article 30 of the Treaty. 68 On this point, Mr Franzén observes that the monopoly may obtain supplies only from holders of production licences or wholesale licences whose grant is subject to restrictive conditions and that such an obligation necessarily impedes imports of products from other Member States. 69 According to the established case-law of the Court, all trading rules which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade constitute measures having an effect equivalent to quantitative restrictions (judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5). 70 In a national system such as that in question in the main proceedings, only holders of production licences or wholesale licences are allowed to import alcoholic beverages, that is to say traders who fulfil the restrictive conditions to which issue of those licences is subject. According to the information provided to the Court during the proceedings, the traders in question must provide sufficient personal and financial guarantees to carry on the activities in question, concerning in particular their professional knowledge, their financial capacity and possession of storage capacity sufficient to meet the needs of their activities. Furthermore, the submission of an application is subject to payment of a high fixed charge (SKR 25 000), which is not reimbursed if the application is rejected. Finally, in order to keep his licence, a trader must pay an annual supervision fee, which is also high (between SKR 10 000 and SKR 323 750 for the basic amounts, depending on the kinds of beverage and the quantities produced or marketed). 71 The licensing system constitutes an obstacle to the importation of alcoholic beverages from other Member States in that it imposes additional costs on such beverages, such as intermediary costs, payment of charges and fees for the grant of a licence, and costs arising from the obligation to maintain storage capacity in Sweden. 72 According to the Swedish Government's own evidence, the number of licences issued is low (223 in October 1996) and almost all of these licences have been issued to traders established in Sweden. 73 Domestic legislation such as that in question in the main proceedings is therefore contrary to Article 30 of the Treaty. 74 The Swedish Government has, however, invoked Article 36 of the EC Treaty. It maintains that its legislation was justified on grounds relating to the protection of human health. 75 It is indeed so that measures contrary to Article 30 may be justified on the basis of Article 36 of the Treaty. All the same, according to established case-law (Cassis de Dijon, cited above; Case C-470/93 Verein gegen Unwesen in Handel und Gewebe Köln v Mars [1995] ECR I-1923, paragraph 15; Case C-368/95 Familiapress [1997] ECR I-0000, paragraph 19; and Joined Cases C-34/95, C-35/95 and C-36/95 De Agostini and TV-Shop [1997] ECR I-0000, paragraph 45), the domestic provisions in question must be proportionate to the aim pursued and not attainable by measures less restrictive of intra-Community trade. 76 Although the protection of human health against the harmful effects of alcohol, on which the Swedish Government relies, is indisputably one of the grounds which may justify derogation from Article 30 of the Treaty (see, to this effect, the judgment in Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía v Departamento de Sanidad y Seguridad Social de la Generalitat de Cataluña [1991] ECR I-4151, paragraph 13), the Swedish Government has not established that the licensing system set up by the Law on Alcohol, in particular as regards the conditions relating to storage capacity and the high fees and charges which licence-holders are required to pay, was proportionate to the public health aim pursued or that this aim could not have © An extract from a JUSTIS database 35
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