Criminal proceedings against Krister Hanner.
Date: 2005-05-31
34. In such a situation, it is clear from settled case-law that, although it does not require total abolition of State monopolies of a commercial character, Article 31(1) EC 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 (see, to that effect, Case 59/75 Manghera and Others  [1976] ECR 91, paragraphs 4 and 5; Case 91/78 Hansen  [1979] ECR 935, paragraph 8; Case 78/82 Commission  v Italy  [1983] ECR 1955, paragraph 11; Case C-387/93 Banchero  [1995] ECR I-4663, paragraph 27; and Case C-189/95 Franzén  [1997] ECR I-5909, paragraph 38).
35. In fact, the purpose of Article 31(1) EC is to reconcile the possibility for Member States to maintain certain monopolies of a commercial character as instruments for the pursuit of public interest aims with the requirements of the establishment and functioning of the common market. It aims at the elimination of obstacles to the free movement of goods, save, however, for restrictions on trade which are inherent in the existence of the monopolies in question ( Franzén , paragraph 39).
36. Thus, as far as sales monopolies are concerned, the Court has held that monopolies are not allowed if they are 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 (see, to that effect, Franzén , paragraph 40).
38. Accordingly, it is necessary to consider whether the way in which the State monopoly in question is organised and operates is liable to place medicinal preparations from other Member States at a disadvantage (see, to that effect, Franzén , paragraph 40) or whether that monopoly does in practice place such medicinal preparations at a disadvantage.
39. As regards the first of those two aspects, it is clear from Franzén (paragraphs 44 and 51) that, first, the selection system of a sales monopoly must be based on criteria that are independent from the origin of the products and must be transparent by providing both for an obligation to state reasons for decisions and for an independent monitoring procedure.
40. Second, the retail network of such a monopoly must be organised in such a way that the number of sales outlets is not limited to the point of compromising consumers’ procurement of supplies (see, to that effect, in relation to Article 28 EC, Banchero , paragraph 39, and in relation to Article 31(1) EC, Franzén , paragraph 54).
41. Finally, such a monopoly’s marketing and advertising measures must be impartial and independent of the origin of the products and must endeavour to make known new products to consumers (see, to that effect, Franzén , paragraph 62).
47. In that connection, it is clear from the case-law of the Court that Article 86(2) EC 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 (see, to that effect, Case C-157/94 Commission v Netherlands [1997] ECR I-5699, paragraph 32, Case C-158/94 Commission v Italy [1997] ECR I-5789, paragraph 43, and Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 49).