Brussels, 04/12/2006 (Agence Europe) - On 30 November, Advocate General Paolo Mengozzi presented to the Court of Justice his conclusions specifying that the restrictions currently in place in Sweden on private imports of alcoholic beverages, unless these goods are procured and carried into the country by the persons themselves, are compatible with Community law (Case C-170/04 - Klas Rosengren and Others v Riksåklagaren).
Mr Klas Rosengren and others had each ordered six bottles of Spanish wine from a Danish internet site (in the Swedish language). The bottles, imported into Sweden by a private carrier engaged by Mr Rosengren without being declared at customs, were confiscated in Gothenburg in accordance with the Swedish law on smuggling (Smugglingslagen), which supports the State monopoly system on the distribution and sale of alcohol in Sweden (Systembolaget Aktiebolag). The Swedish High Court (Högsta Domstolen) referred the matter to the European Court of Justice in order to know whether such a decision is compatible with the EC Treaty, and in particular with Article 31 on national commercial monopolies.
In his conclusions, Advocate General Paolo Mengozzi took the view that such bans are legitimate as “the task of importing alcoholic beverages on request is intrinsically connected with the exercise of the specific function assigned to Systembolaget by the national legislation” and that, in the context of the monopoly system, the ban is therefore compatible in principle with Article 31 of the EC Treaty.
Examining the whole of the system established by the law on imports of alcohol, Advocate General Mengozzi nonetheless feels, however, that with the total discretion that the Swedish legislation gives to Systembolaget, there is nothing to prevent this discretion being exercised in a discriminatory fashion to the detriment of alcoholic beverages from other Member States. Such abuse of power would effectively represent infringement of the Community law, but it is up to the referral jurisdiction, i.e. the Swedish justice system, to verify whether there is indeed abuse of that kind in this affair.
This case comes up just a few days after another incident concerning the on-line mail order sale of alcohol. A Dutch individual had ordered wine from France that he had had carried by a private company. In this case also, the Court supported the primacy of national legislation over the Community provisions concerning the free movement of goods. It ruled that, as the buyer had not himself gone to buy the goods at their place of production, he should pay excise duties for importing into the Netherlands. (Case C-5/05, see EUROPE 9315).
The above two cases concern the “legal vacuum” that exists on the movement of alcoholic beverages for private consumption. It is acknowledged that such a vacuum exists, states László Kovács' spokeswoman. She recalled at the occasion of the previous ruling that a proposal on this has been on the Council table since 2004. The latter-mentioned case will perhaps grant the proposal renewed importance within the Council but, in the meantime, national governments have nothing to fear from a loss in excise revenue on alcohol due to on-line purchases. (cd)