Opinion of the Advocate General — ECLI:EU:C:2006:747
Date: 2006-11-30
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. State monopolies of a commercial character – Provisions of the Treaty – Scope (Arts 28 EC and 31 EC) 2. Free movement of goods – Quantitative restrictions – Concept (Art. 28 EC) 3. Free movement of goods – Quantitative restrictions (Arts 28 EC and 30 EC) 1. Rules relating to the existence and operation of a national monopoly on which the exclusive right of retail sale of alcoholic beverages within the territory of a Member State has been conferred must be examined by reference to the provisions of Article 31 EC, which specifically applies to the exercise, by a domestic commercial monopoly, of its exclusive rights. However, the effect on intra-Community trade of the other provisions of the national legislation establishing that monopoly, which are separable from the operation of the monopoly although they have a bearing upon it, must be examined with reference to Article 28 EC. A national provision prohibiting private individuals from importing alcoholic beverages, appearing in a law which also sets up a monopoly the specific function of which is to reserve to itself the exclusive right to retail sales of alcoholic beverages in the Member State to consumers with the exception of the catering industry, such exclusive right not extending to the importation of those beverages, does not concern the monopoly’s exercise of its specific function, and accordingly cannot be considered to relate to the very existence of that monopoly. Nor does such a ban truly regulate the operation of the monopoly since it does not relate to the methods of retail sale of alcoholic beverages in the territory of the Member State concerned. It follows that such a prohibition must be assessed in the light of Article 28 EC and not in the light of Article 31 EC. (see paras 16-18, 20, 22, 24, 27, operative part 1) 2. A provision in a national law establishing a commercial monopoly, prohibiting private individuals from importing alcoholic beverages directly without personally transporting them, constitutes a quantitative restriction on imports within the meaning of Article 28 EC. That is so even if that law requires the holder of the retail sale monopoly, on request, to supply and therefore, if necessary, to import the beverages in question, inasmuch as consumers requesting the services of the monopoly holder in having alcoholic beverages imported are confronted with a variety of inconveniences with which they would not be faced were they to import the beverages themselves. (see paras 33-34, 36, operative part 2) 3. A national measure prohibiting private individuals from importing alcoholic beverages cannot be regarded as being justified under Article 30 EC on grounds of protection of the health and life of humans, because it is unsuitable for attaining the objective of limiting alcohol consumption generally, since under the national legislation the consumer can always ask the monopoly holder to supply those products, and because it is not proportionate to attaining the objective of protecting young persons against the harmful effects of such consumption. In that regard, since such a prohibition amounts to a derogation from the principle of the free movement of goods, it is for the national authorities to demonstrate that it is consistent with the principle of proportionality, that is to say, that it is necessary in order to achieve the declared objective, and that that objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade. An import ban applying to everyone, irrespective of age, clearly goes beyond what is necessary for the objective sought, which is to protect younger persons against the harmful effects of alcohol consumption. (see paras 45, 50-51, 58, operative part 3)