Opinion of the Advocate General — ECLI:EU:C:2004:317
Date: 2004-05-25
Language of the case: Swedish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;State monopolies of a commercial character
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. State monopolies of a commercial character –– Article 31 EC –– Purpose –– Obligation to arrange sales monopolies so as to exclude any discrimination against medicinal preparations from other Member States (Art. 31 EC) 2. State monopolies of a commercial character –– Article 31 EC –– National monopoly on the retail sale of medicinal preparations –– Monopoly characterised by criteria and methods for selecting products which fail to guarantee the exclusion of any discrimination –– Not permissible –– Justification pursuant to Article 86(2) EC –– None (Arts 31 EC and 86(2) EC) 1. Although Article 31(1) EC does not require total abolition of State monopolies of a commercial character, it requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States. Thus, that provision precludes sales monopolies arranged in such a way as to put at a disadvantage, in law or in fact, trade in goods from other Member States as compared with trade in domestic goods. In particular, a State sales monopoly must be arranged in such a way as to exclude any discrimination against goods from other Member States regarding its system of selection, the organisation of its retail sales network and its marketing and advertising measures. (see paras 34, 36, 39-41) 2. Article 31(1) EC must be interpreted as precluding a retail sales monopoly of medicinal preparations arranged in such a way that it makes no provision for a purchasing plan or for a system of ‘calls for tenders’ within the framework of which producers whose products are not selected would be entitled to be apprised of the reasons for the selection decision and to contest such decisions before an independent supervisory authority. Such a monopoly is not arranged in such a way as to exclude any discrimination but is liable to place trade in medicinal preparations from other Member States at a disadvantage as compared with trade in national medicinal preparations. Such a sales system could not be justifiable under Article 86(2) EC. While that provision may be relied upon to justify the grant by a Member State, to an undertaking entrusted with the operation of services of general economic interest, of exclusive rights which are contrary to Article 31(1) EC, to the extent to which performance of the particular tasks assigned to it can be achieved only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community, it cannot however justify a sales monopoly in the absence of a selection system that excludes any discrimination against medicinal preparations from other Member States. (see paras 42-45, 47-49, operative part)