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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Rosengren and Others (Free movement of goods) [2007] EUECJ C-170/04 (05 June 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C17004.html Cite as: [2007] ECR I-4071, [2007] EUECJ C-170/04, [2007] EUECJ C-170/4 |
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(Free movement of goods Articles 28 EC, 30 EC and 31 EC National provisions prohibiting the importation of alcoholic beverages by private individuals Rule relating to the existence and operation of the Swedish monopoly on sales of alcoholic beverages Assessment Measure contrary to Article 28 EC Justification on grounds of protection of the health and life of humans Review of proportionality)
In Case C-170/04,
REFERENCE for a preliminary ruling under Article 234 EC, by the Högsta domstolen (Sweden), made by decision of 26 March 2004, received at the Court on 6 April 2004, in the proceedings
Klas Rosengren,
Bengt Morelli,
Hans Särman,
Mats Åkerström,
Åke Kempe,
Anders Kempe,
Mats Kempe,
Björn Rosengren,
Martin Lindberg,
Jon Pierre,
Tony Staf,
Riksåklagaren,
composed of P. Jann, President of the First Chamber, acting as President, C.W.A. Timmermans, A. Rosas, R. Schintgen, J. Klučka, Presidents of Chambers, J.N. Cunha Rodrigues, R. Silva de Lapuerta, M. Ilešič, J. Malenovský (Rapporteur), U. Lõhmus, E. Levits, A. à Caoimh and L. Bay Larsen, Judges,
Advocate General: A. Tizzano, subsequently P. Mengozzi,
Registrar: C. Strömholm, subsequently J. Swedenborg, Administrators,
having regard to the written procedure and further to the hearing on 30 November 2005,
after considering the observations submitted on behalf of:
K. Rosengren, B. Morelli, H. Särman, M. Åkerström, Å. Kempe, A. Kempe, M. Kempe, B. Rosengren, M. Lindberg, J. Pierre and T. Staf, by C. von Quitzow, juris doktor, and U. Stigare, advokat,
the Swedish Government, by A. Kruse and K. Wistrand, acting as Agents,
the Finnish Government, by A. Guimares-Purokoski, acting as Agent,
the Norwegian Government, by T. Nordby and I. Djupvik, acting as Agents,
the Commission of the European Communities, by L. Ström van Lier and A. Caeiros, acting as Agents,
the EFTA Surveillance Authority, by N. Fenger and A.T. Andersen, acting as Agents,
after hearing the Opinion of Advocate General Tizzano at the sitting of 30 March 2006,
having regard to the order of 14 June 2006 reopening the oral procedure and further to the hearing on 19 September 2006,
after considering the observations submitted on behalf of:
K. Rosengren, B. Morelli, H. Särman, M. Åkerström, Å. Kempe, A. Kempe, M. Kempe, B. Rosengren, M. Lindberg, J. Pierre and T. Staf, by C. von Quitzow, juris doktor, and U. Stigare, advokat,
the Swedish Government, by A. Kruse and K. Wistrand, acting as Agents,
the Finnish Government, by A. Guimares-Purokoski and E. Bygglin, acting as Agents,
the Norwegian Government, by T. Nordby, I. Djupvik and K. Fløistad, acting as Agents,
the Commission of the European Communities, by L. Ström van Lier and A. Caeiros, acting as Agents,
the EFTA Surveillance Authority, by N. Fenger and A.T. Andersen, acting as Agents,
after hearing the Opinion of Advocate General Mengozzi at the sitting on 30 November 2006,
gives the following
National legal context
'Sale means any form of supply of beverage for payment.
Sales to consumers are known as retail sales or, if the reference is to consumption on the premises, a service included in catering. Any other sale is known as wholesale.'
'Paragraph 1 Wholesale of spirits, wine or strong beer may be undertaken only by persons who are approved warehouse-keepers or who are registered recipients of such goods in accordance with Paragraph 9 or 12 of the lagen om alkoholskatt (Law on taxation of alcohol) ([SFS] 1994:1564) [of 15 December 1994]. It follows that the right to sell as a wholesaler applies only to drink included in the approval to act as a warehouse-keeper or registration as a recipient pursuant to the provisions of the lagen om alkoholskatt.
In addition to the provisions of the first paragraph, wholesale of spirits, wine and strong beer may be undertaken by the retail sales company in accordance with the provisions of the third subparagraph of Chapter 5, Paragraph 1.
Without prejudice to the provisions of the first subparagraph, holders of catering permits may sell individually goods covered by the permits to any person authorised to undertake wholesale of those goods.
Paragraph 2 Spirits, wine and strong beer may be imported into Sweden only by persons authorised under the first subparagraph of Paragraph 1 to undertake wholesale of those goods and by the retail sales company in order that it may fulfil its obligations under Chapter 5, Paragraph 5.
Without prejudice to the provisions of the first subparagraph, spirits, wine and strong beer may be imported:
...
2. by any traveller of at least 20 years of age or by any person who works on some means of transport and has reached that age, for personal consumption or for that of his family or as a gift to a friend or relative for his personal consumption or for that of his family;
...
4. by any individual of at least 20 years of age, or by a professional transporter for an individual, of at least 20 years of age, travelling to Sweden if the drinks are intended for his personal consumption or for that of his family;
5. by any individual of at least 20 years of age, or by a professional transporter for an individual of at least 20 years of age, who received the drinks by way of a will or testament, if the drinks are intended for his personal consumption or for that of his family, and
6. as a single present sent, by the intermediary of a professional transporter, from an individual resident in another country to an individual resident in Sweden of at least 20 years of age for his personal consumption or for that of his family.
...'
'Spirits, wine or strong beer not held in stock shall be obtained on request, provided that the retail sale company does not consider that there are grounds precluding it.'
The dispute in the main proceedings and the questions referred for a preliminary ruling
-1. Can it be held that the ... ban on [direct] imports [on the orders of private individuals] constitutes part of the retail monopoly's manner of operation and that on that basis it is not precluded by Article 28 EC and is to be examined only in the light of Article 31 EC?
2. If the answer to Question 1 is yes, is that ban ... in such a case compatible with the conditions laid down for State monopolies of a commercial character in Article 31 EC?
3. If the answer to Question 1 is no, is Article 28 EC to be interpreted as meaning that it in principle precludes [that] ... ban on imports despite the obligation of the Systembolaget to obtain, upon request, alcoholic beverages which it does not hold in stock?
4. If the answer to Question 3 is yes, can such a ban ... be considered justified and proportionate in order to protect health and life of humans?'
The questions referred for a preliminary ruling
The first question
The second question
The third question
The fourth question
a measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the alkohollagen, under which private individuals are prohibited from importing alcoholic beverages,
as it is unsuitable for attaining the objective of limiting alcohol consumption generally, and
as it is not proportionate for attaining the objective of protecting young persons against the harmful effects of such consumption,
cannot be regarded as being justified under Article 30 EC on grounds of protection of the health and life of humans.
Costs
On those grounds, the Court (Grand Chamber) hereby rules:
1. A national provision, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol (alkohollagen) of 16 December 1994, under which private individuals are prohibited from importing alcoholic beverages must be assessed in the light of Article 28 EC and not in the light of Article 31 EC.
2. A measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol, under which private individuals are prohibited from importing alcoholic beverages amounts to a quantitative restriction on imports within the meaning of Article 28 EC, even though that law requires the holder of the retail sale monopoly, on request, to supply and therefore, if necessary, to import the beverages in question.
3. A measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol, under which private individuals are prohibited from importing alcoholic beverages,
as it is unsuitable for attaining the objective of limiting alcohol consumption generally, and
as it is not proportionate for attaining the objective of protecting young persons against the harmful effects of such consumption,
cannot be regarded as being justified under Article 30 EC on grounds of protection of the health and life of humans.
[Signatures]
* Language of the case: Swedish.