Klas Rosengren and Others v Riksåklagaren.
Date: 2007-06-05
17. Having regard to the case-law of the Court, it is necessary to examine the rules relating to the existence and operation of the monopoly with reference to Article 31 EC, which is specifically applicable to the exercise, by a domestic commercial monopoly, of its exclusive rights (see Case 91/75 Miritz  [1976] ECR 217, paragraph 5; Case 120/78 REWE-Zentral [1979] ECR 649, ‘Cassis de Dijon’ , paragraph 7; Case 91/78 Hansen  [1979] ECR 935, paragraphs 9 and 10; Case C‑387/93 Banchero  [1995] ECR I‑4663, paragraph 29; and Case C‑189/95 Franzén  [1997] ECR I‑5909, paragraph 35).
18. However, the effect on intra-Community trade of the other provisions of the domestic legislation, 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 (see Franzén , paragraph 36).
22. That measure, which does not, therefore, concern the monopoly’s exercise of its specific function, accordingly cannot be considered to relate to the very existence of that monopoly.
24. However, such a ban does not truly regulate the operation of the monopoly since it does not relate to the methods of retail sale of alcoholic beverages on Swedish territory.  In particular, it is not intended to govern either the system for selection of goods by the monopoly, its sales network, or the organisation of the marketing or advertising of goods distributed by that monopoly.
25. Furthermore, that measure arises from the provisions of Chapter 4 of the alkohollagen relating to wholesale.  The Court has already held that the rules contained in that chapter, under which only holders of wholesale licences are allowed to import alcoholic beverages, did not feature among the measures regulating the operation of the monopoly (see, to that effect, Franzén , paragraphs 34, 67 and 70).
31. In that regard, it should be recalled that the free movement of goods is a fundamental principle of the Treaty which is expressed in the prohibition, set out in Article 28 EC, of quantitative restrictions on imports between Member States and all measures having equivalent effect (Case C‑147/04 De Groot en Slot Allium and Bejo Zaden  [2006] ECR I‑245, paragraph 70).
32. The prohibition of measures having an effect equivalent to a quantitative restriction, laid down in Article 28 EC, applies to all legislation of the Member States that is capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, inter alia, Case 8/74 Dassonville  [1974] ECR 837, paragraph 5; Case C‑192/01 Commission  v Denmark  [2003] ECR I‑9693, paragraph 39; Case C‑41/02 Commission  v Netherlands  [2004] ECR I‑11375, paragraph 39; and De Groot en Slot Allium and Bejo Zaden , paragraph 71).
38. It is indeed true that measures constituting quantitative restrictions on imports within the meaning of Article 28 EC may be justified, inter alia, on the basis of Article 30 EC, on grounds of protection of the health and life of humans (see, to that effect, Franzén , paragraph 75).
39. It is settled case-law that the health and life of humans rank foremost among the assets or interests protected by Article 30 EC and it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they wish to assure (see Case C‑322/01 Deutscher Apothekerverband  [2003] ECR I‑14887, paragraph 103, and case-law cited).
40. The Court has already ruled that legislation which has as its objective the control of the consumption of alcohol so as to prevent the harmful effects caused to health of humans and society by alcoholic substances, and which thus seeks to combat alcohol abuse, reflects health and public policy concerns recognised by Article 30 EC (see Case C‑434/04 Ahokainen and Leppik  [2006] ECR I‑9171, paragraph 28).
41. Nevertheless, it is necessary, as required by Article 30 EC, that the measure under consideration should not constitute either a means of arbitrary discrimination or a disguised restriction on trade between Member States.
42. In that respect, it should be pointed out that there is nothing before the Court to suggest that the public health grounds on which the Swedish authorities rely in the circumstances set out in paragraphs 44 and 48 of the present judgment have been diverted from their purpose and used in such a way as to discriminate against goods originating in other Member States or indirectly to protect certain national products (Case C‑405/98 Gourmet International Products  [2001] ECR I‑1795, paragraph 32, and case-law cited).
43. Furthermore, national rules or practices likely to have a restrictive effect, or having such an effect, on imports are compatible with the Treaty only to the extent to which they are necessary for the effective protection of health and life of humans.  A national rule or practice cannot benefit from the derogation provided for in Article 30 EC if the health and life of humans may be protected just as effectively by measures which are less restrictive of intra-Community trade (see, to that effect, Deutscher Apothekerverband , paragraph 104).
49. It cannot be disputed that if the ban at issue in the main proceedings thus proves to be a means effectively of preventing younger persons from becoming purchasers of alcoholic beverages and therefore of reducing the risk of their becoming consumers of such beverages, it must be regarded as being justified in the light of the objective of protection of public health referred to in Article 30 EC.
50. However, since a ban such as that which arises from the national legislation at issue in the main proceedings amounts to a derogation from the principle of the free movement of goods, it is for the national authorities to demonstrate that those rules are consistent with the principle of proportionality, that is to say, that they are 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 (see, to that effect, Case C‑17/93 Van der Veldt  [1994] ECR I‑3537, paragraph 15; Franzén , paragraphs 75 and 76; and Ahokainen and Leppik , paragraph 31).
55. The question remains to be answered whether, in order to achieve that objective of protection of the health of young persons with at least an equivalent level of effectiveness, there are other methods less restrictive of the principle of free movement of goods and capable of replacing the method at issue.