European law - The right to import alcoholic beverages
Consumers cannot be impeded from personally importing alcoholic beverages, the European Court of Justice recently concluded. In a case involving Sweden, the European Court of Justice went all out to safeguard the free movement of goods from one member...
Consumers cannot be impeded from personally importing alcoholic beverages, the European Court of Justice recently concluded. In a case involving Sweden, the European Court of Justice went all out to safeguard the free movement of goods from one member state to another and to show that it is only willing to accept limited justifications for restrictions to this right.
The facts of this case were briefly as follows: Under Swedish law, retail sales of alcoholic beverages may only be carried out by a monopoly held by Systembolaget. Private individuals are prohibited from importing alcoholic beverages.
In practice, this means that a person wishing to import alcohol from other member states must do so exclusively through Systembolaget. Systembolaget is required to obtain any alcoholic beverage on request at the consumer's expense, provided that it sees no objection to doing so.
A number of individuals ordered, by correspondence, cases of bottles of Spanish wine. The wine was imported into Sweden, without being declared to customs, by a private transporter. The wine was confiscated by the customs authorities and criminal proceedings were instituted against those individuals who had sought to import the wine.
The Swedish court made a preliminary reference to the European Court of Justice whereby it requested the latter Court to deliver a ruling as to whether the Swedish law imposing a prohibition on the importation of alcohol by private individuals was, in fact, compatible with the principle of free movement of goods enshrined in the EC Treaty. The European Court of Justice concluded that the prohibition from importing alcoholic beverages imposed on private individuals by Swedish law amounts to a quantitative restriction on the free movement of goods. In arriving at such a conclusion, the court took into consideration a number of factors.
Systembolaget could refuse an order from a consumer to import alcoholic beverages. Furthermore, the Court noted that, when making use of the services of Systembolaget, consumers were faced with a variety of inconveniences.
Systembolaget was charging the purchaser not only the cost of the beverages themselves but also administrative and transport costs incurred by Systembolaget as well as a margin of 17%. The purchaser would obviously avoid such costs if he directly imported the goods himself.
Sweden sought to justify the general prohibition by maintaining that it was thus seeking to limit alcohol consumption in particular by young persons. The court observed that measures which amount to quantitative restrictions on imports can only be justified on grounds of protection of the health and life of humans. Furthermore, a restriction can be justified only to the extent that it is necessary and proportionate for the effective protection of the health and life of humans.
The European Court of Justice noted that though the Swedish law made provision for the possibility for Systembolaget to refuse an order, it did not lay down the grounds on which such a refusal may be based. The prohibition applied across the board to persons of all ages and not merely to a vulnerable section of Swedish society such as young persons.
Furthermore, when supplying alcohol, Systembolaget was not carrying out an effective check on the age of persons to whom alcoholic beverages were being supplied. Age checks could be carried out using methods which were equally effective and less restrictive than the general prohibition imposed.
Hence, the court concluded that the prohibition on importation imposed by Swedish law was not proportionate for achieving the objective of protecting young persons against the harmful effects of alcohol and manifestly went beyond what was necessary with regard to the said objective.
The general prohibition on importation by private individuals imposed by Swedish law was therefore an unjustified restriction which contravened EU law and in particular the principle of free movement of goods as enshrined in the EC Treaty.
• Dr Vella Cardona M'Jur, LL.D. is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.
The facts of this case were briefly as follows: Under Swedish law, retail sales of alcoholic beverages may only be carried out by a monopoly held by Systembolaget. Private individuals are prohibited from importing alcoholic beverages.
In practice, this means that a person wishing to import alcohol from other member states must do so exclusively through Systembolaget. Systembolaget is required to obtain any alcoholic beverage on request at the consumer's expense, provided that it sees no objection to doing so.
A number of individuals ordered, by correspondence, cases of bottles of Spanish wine. The wine was imported into Sweden, without being declared to customs, by a private transporter. The wine was confiscated by the customs authorities and criminal proceedings were instituted against those individuals who had sought to import the wine.
The Swedish court made a preliminary reference to the European Court of Justice whereby it requested the latter Court to deliver a ruling as to whether the Swedish law imposing a prohibition on the importation of alcohol by private individuals was, in fact, compatible with the principle of free movement of goods enshrined in the EC Treaty. The European Court of Justice concluded that the prohibition from importing alcoholic beverages imposed on private individuals by Swedish law amounts to a quantitative restriction on the free movement of goods. In arriving at such a conclusion, the court took into consideration a number of factors.
Systembolaget could refuse an order from a consumer to import alcoholic beverages. Furthermore, the Court noted that, when making use of the services of Systembolaget, consumers were faced with a variety of inconveniences.
Systembolaget was charging the purchaser not only the cost of the beverages themselves but also administrative and transport costs incurred by Systembolaget as well as a margin of 17%. The purchaser would obviously avoid such costs if he directly imported the goods himself.
Sweden sought to justify the general prohibition by maintaining that it was thus seeking to limit alcohol consumption in particular by young persons. The court observed that measures which amount to quantitative restrictions on imports can only be justified on grounds of protection of the health and life of humans. Furthermore, a restriction can be justified only to the extent that it is necessary and proportionate for the effective protection of the health and life of humans.
The European Court of Justice noted that though the Swedish law made provision for the possibility for Systembolaget to refuse an order, it did not lay down the grounds on which such a refusal may be based. The prohibition applied across the board to persons of all ages and not merely to a vulnerable section of Swedish society such as young persons.
Furthermore, when supplying alcohol, Systembolaget was not carrying out an effective check on the age of persons to whom alcoholic beverages were being supplied. Age checks could be carried out using methods which were equally effective and less restrictive than the general prohibition imposed.
Hence, the court concluded that the prohibition on importation imposed by Swedish law was not proportionate for achieving the objective of protecting young persons against the harmful effects of alcohol and manifestly went beyond what was necessary with regard to the said objective.
The general prohibition on importation by private individuals imposed by Swedish law was therefore an unjustified restriction which contravened EU law and in particular the principle of free movement of goods as enshrined in the EC Treaty.
• Dr Vella Cardona M'Jur, LL.D. is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.