Criminal proceedings against Jan-Erik Anders Ahokainen and Mati Leppik.
Date: 2006-09-28
18. All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade must be considered to be measures having an effect equivalent to quantitative restrictions and are thus prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville  [1974] ECR 837, paragraph 5; Case C‑420/01 Commission v Italy  [2003] ECR I‑6445, paragraph 25; and Case C‑20/03 Burmanjer and Others  [2005] ECR I‑4133, paragraph 23). Even rules applied without distinction to domestic and imported products, the application of which to imported products is likely to reduce their sales volume, constitute in principle measures having equivalent effect prohibited by Article 28 EC (see, in particular, Case 120/78 Rewe-Zentral (‘Cassis de Dijon’)  [1979] ECR 649).
19. The Court of Justice has nonetheless made clear that national provisions restricting or prohibiting certain selling arrangements that, first, apply to all relevant traders operating within the national territory, and, second, affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States are not liable to hinder, directly or indirectly, actually or potentially, trade between Member States within the meaning of the case‑law initiated by Dassonville  (see, to that effect, Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard  [1993] ECR I‑6097, paragraph 16).
20. With regard, more particularly, to the characterisation of a prior import authorisation under the provisions of the Treaty, the Court of Justice has ruled that such a system is in principle contrary to Article 28 EC, which precludes the application in intra-Community trade of national provisions which require, even as a pure formality, import licences or any other similar procedure (Case 124/81 Commission v United Kingdom ( ‘ UHT milk ’ )  [1983] ECR 203, paragraph 9, and Case C‑304/88 Commission v Belgium  [1990] ECR I‑2801, paragraph 9; see also Case C‑212/03 Commission v France  [2005] ECR I‑4213, paragraph 16, and Case E-1/94 Restamark  [1994-1995] EFTA Court Report 15, paragraphs 49 and 50.
21. Imposing formalities for import, as is the case with the provisions establishing a system of prior authorisation which are in issue in the main proceedings, is in fact capable of hindering intra-Community trade and impeding access to the market for goods which are lawfully produced and marketed in other Member States. The restriction is even greater if the system adds to the costs of those goods (see, in particular, Case C‑189/95 Franzén  [1997] ECR I‑5909, paragraph 71). In that case, there is more than a ‘mere’ restriction or prohibition of certain selling arrangements.
28. It is not disputed that legislation such as that in issue in the present case, which has as its objective the control of the consumption of alcohol so as to prevent the harmful effects caused to health and society by alcoholic substances, and thus seeks to combat alcohol abuse, reflects health and public policy concerns recognised by Article 30 EC.
29. However, in order for health and public policy concerns to justify a restriction such as that resulting from the system of prior authorisation of importation at issue in the main proceedings, it is necessary that the measure in question be proportionate to the objective to be achieved and not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
30. As regards the risks of discrimination and of restriction, nothing in the documents before the Court could lead one to think that the grounds of health and public policy relied on by the Finnish authorities have been diverted from their proper purpose and used in such a way as to create discrimination in respect of goods originating in other Member States, or indirectly to protect certain national products (Case 34/79 Henn and Darby  [1979] ECR 3795, paragraph 21, as well as Joined Cases C‑1/90 and C‑176/90 Aragonesa de Publicidad Exter ior and Publivía  [1991] ECR I‑4151, paragraph 20).
31. As to whether the measure is proportionate, since it concerns an exception to the principle of the free movement of goods, it is for the national authorities to demonstrate that their rules are consistent with the principle of proportionality, that is to say, that they are necessary in order to achieve the declared objective, which in the present case is the protection of public health and public order, and that this objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade (see, to that effect, Case C‑17/93 Van der Veldt  [1994] ECR I‑3537, paragraph 15, as well as Franzén , paragraphs 75 and 76).
32. However, as the Virallinen syyttäjä and the Finnish Government have pointed out, Member States enjoy a margin of discretion in determining, having regard to the particular social circumstances and to the importance attached by those States to objectives which are legitimate under Community law, such as the prevention of alcohol abuse and the campaign against the various forms of criminality linked to its consumption, the measures which are likely to achieve concrete results (see, in particular, Heinonen , paragraph 43).
33. As the Swedish Government has pointed out, the health and life of humans rank foremost among the property or interests protected by Article 30 EC. It is for the Member States, in compliance with Community law and, in particular, with the principle of proportionality, to decide what degree of protection they wish to ensure, and the manner in which that degree can be achieved (Case C‑320/93 Ortscheit  [1994] ECR I‑5243, paragraph 16; see also, to that effect, Heinonen , paragraph 45).
34. Ruling on the compatibility with Community law of Belgian rules on the importation of live animals and British rules on the importation of UHT milk, the Court of Justice has held that a system requiring prior import authorisations constitutes a measure which is disproportionate in relation to the objective of protecting the health and life of humans and animals. It stated that a Member State may adopt less restrictive measures in order to protect those interests, by confining itself to obtaining the information which is of use to it, for example, by means of declarations signed by the importers, accompanied if necessary by the appropriate certificates issued by the exporting Member State (‘ UHT milk’ , paragraph 17, and Commission v Belgium , paragraph 14).
35. The Court of Justice has also held that Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) preclude domestic provisions allowing only traders holding a production licence or a wholesale licence to import alcoholic beverages when, first, the licensing system constitutes an obstacle to the importation of alcoholic beverages from other Member States in that it adds to the costs of such beverages, and, second, it has not been established that the licensing system set up by the national provisions in question, in particular as regards the conditions relating to storage capacity and the high fees and charges which licence-holders are required to pay, is proportionate to the public health objective pursued or that this objective could not be attained by measures less restrictive of intra-Community trade ( Franzén , paragraphs 71, 76 and 77).
37. However, the Court of Justice held that the decision as to the proportionality of a Swedish law – motivated by public health concerns analogous to those on which the Finnish legislation cited in the preceding paragraph  was based – prohibiting advertising for alcoholic drinks in periodicals, and, in particular, the decision as to whether the objective sought, namely to combat alcohol abuse, might be achieved by less extensive restrictions or by restrictions having less effect on intra-Community trade, called for an analysis of the circumstances of law and of fact which characterised the situation in the Member State concerned, which the national court was in a better position than the Court of Justice to carry out (Case C‑405/98 Gourmet International Products  [2001] ECR I‑1795, paragraph 33).
38. In the present case, for the reasons given in the preceding paragraph, it is appropriate to leave it to the national court to decide, on the basis of all the matters of law and fact before it, whether the measures adopted by the Republic of Finland are such as effectively to combat abuse arising from the consumption of spirits as a drink, or whether less restrictive measures could ensure a similar result. The review of proportionality and of the effectiveness of the measures taken relies on findings of fact which the referring court is in a better position than the Court of Justice to carry out.