Konsumentombudsmannen (KO) v. Gourmet International Products (GIP)

(Case C-405/98)

Before the Court of Justice of the European Communities (Sixth Chamber)

ECJ (6th Chamber)

(Presiding, Gulmann P.C.; Skouris, Puissochet (

Rapporteur), Schintgen and Macken JJ.) Mr Francis Jacobs, Advocate General.

8 March 2001

H1 Reference for a preliminary ruling under Article 177 of the E.C. Treaty

(now Article 234 E.C.) from Sweden by the Stockholms Tingsrätt (Stockholm District Court).

H2 Free movement of goods and free movement of services--consumer protection--prohibition on advertising for alcohol in publications aimed at the general public--obstacle to free movement of goods--justification on ground of public health provided that prohibition not discriminatory and there were no less restrictive ways of achieving public health objective--prohibition contrary to freedom to provide services but justified on ground of public health provided it is proportionate--national court to examine circumstances of fact and law in relation to requirement of proportionality of the measure. H3 The Swedish Consumer Ombudsman applied to the Stockholm District Court, on the basis of the Swedish Law on Alcohol, for an injunction restraining the publisher Gourmet International Products from advertising wine and whisky in its magazine. The Law on Alcohol provided that, in view of the dangers associated with the consumption of alcohol, alcoholic beverages should be marketed in moderation. As far as advertising in the press was concerned, advertising was prohibited in publications aimed at the general public but not in publications aimed at the trade. Gourmet insisted that, since its magazine was sold for 90 per cent by subscription to traders and specialised retailers, the prohibition constituted a restriction to the freedom of movement guaranteed under Community law. The national court referred two sets of questions to the European Court on the interpretation of Articles 30 and 36 of the E.C. Treaty (now, after *673 amendment, Articles 28 E.C. and 30 E.C.) and of Articles 56 and 59 of the E.C. Treaty (now, after amendment, Articles 46 E.C. and 49 E.C.).

Held: Whether the prohibition on advertising for alcohol was lawful under Articles 30 and 36 H4 (a) National laws restricting certain selling arrangements were lawful under Article 30 of the E.C. Treaty if they did not prevent access for products from other Member States or did not impede access any more than for domestic products. The Court had also held that the prohibition in a Member State of advertising for a product lawfully sold in that Member State could have a greater impact on imported products. In the present case, the prohibition on advertising had the effect of preventing access to consumers in the Member State in question, so that, in the particular case of alcoholic beverages, the consumption of which was rooted in traditional social practices, imported products were at a disadvantage as consumers were not as familiar with them as local products. The national provisions in question therefore constituted an obstacle to the free movement of goods within the meaning of Article 30. [18]-[25] Criminal Proceedings against Keck and Mithouard (C 267 & 268/91): [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101; and Konsumentombudsmannen (KO) v. de Agostini (Svenska) Foerlag AB and TV-Shop I Sverige AB (C 34-36/95): [1997] E.C.R. I-3843; [1998] 1 C.M.L.R. 32, noted. (b) National provisions restricting the advertising of alcohol on the ground of public health could be justified under Article 36 of the E.C. Treaty if they were proportionate to the objective pursued and did not constitute either a means of arbitrary discrimination or a disguised restriction on trade between Member States. It did not appear that the public health grounds had been diverted from their objective and used in a discriminatory way against imported products or to protect national products. The assessment of the proportionality of the prohibition required an examination of the facts and of the law which the national court alone could carry. Therefore, unless it was demonstrated that the protection of public health could be achieved by less restrictive means, the prohibition in question was compatible with Articles 30 and 36. [26]-[28] and [32]-[34] E.C. Commission v. France (152/78): [1980] E.C.R. 2299; [1981] 2 C.M.L.R. 743; and Aragonesa de Publicidad Exterior SA and PublivÍa SAE v. Departamento de Sanidad Y Seguridad Social de la Generalitat de Cataluña (C 1 & 176/90): [1991] E.C.R. I-4151; [1994] 1 C.M.L.R. 887, noted. R. v. Henn and Darby (34/79): [1979] E.C.R. 3795; [1980] 1 C.M.L.R. 246; and Aragonesa de Publicidad Exterior SA, supra, followed. *674 Whether the prohibition on advertising for alcohol was lawful under Articles 56 and 59 H5 (a) The provisions on freedom to provide services could be relied on where an undertaking established in one Member State was providing a service to persons established in another Member State. This was particularly so where, as was the case in the present case, national legislation affected the possibility for advertisers established in other Member States to advertise in the press of the Member State where their goods were offered for sale and which therefore constituted a restriction on the freedom to provide services under Article 56 of the E.C. Treaty. [37]-[39]

Corsica Ferries Italia Srl v. Corpo dei Piloti del Porto di Genova (C-18/93): [1994] E.C.R. I-1783; and Alpine Investments BV v. Minister Van Financiën (C-384/93): [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209, followed. H6 (b) A prohibition on the advertising of alcohol such as the one in question could be justified on the basis of protection of public health under Article 59 of the E.C. Treaty provided that it was proportionate to the objective. It would be for the national court to assess whether the prohibition was proportionate and that there did not exist less restrictive ways of achieving the public health objective. [40]-[42] H7 Representation M. Åbyhammar, Ställföreträdande Konsumentombudsman, for the Konsumentombudsmannen (KO). U. Djurberg, Advokat, for Gourmet International Products AB (GIP). A. Kruse, acting as Agent, for the Swedish Government. K. Rispal-Bellanger and R. Loosli-Surrans, acting as Agents, for the French Government. T. Pynnä, acting as Agent, for the Finnish Government. H. Seland, acting as Agent, for the Norwegian Government. L. Ström and K. Banks, acting as Agents, for the E.C. Commission. H8 Cases referred to in the judgment: 1. Criminal Proceedings against Keck and Mithouard (C 267 & 268/91), 24 November 1993: [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101. 2. Konsumentombudsmannen (KO) v. de Agostini (Svenska) Foerlag AB and TV-Shop I Sverige AB (C 34-36/95), 9 July 1997: [1997] E.C.R. I-3843; [1998] 1 C.M.L.R. 32. 3. E.C. Commission v. France (152/78), 10 July 1980: [1980] E.C.R. 2299; [1981] 2 C.M.L.R. 743. 4. Aragonesa de Publicidad Exterior SA and PublivÍa SAE v. Departamento de Sanidad Y Seguridad Social de la Generalitat de Cataluña (C 1 & 176/90), 25 July 1991: [1991] E.C.R. I-4151; [1994] 1 C.M.L.R. 887. 5. R. v. Henn and Darby (34/79), 14 December 1979: [1979] E.C.R. 3795; [1980] 1 C.M.L.R. 246. *675 6. Corsica Ferries Italia Srl v. Corpo dei Piloti del Porto di Genova (C- 18/93), 17 May 1994: [1994] E.C.R. I-1783. 7. Alpine Investments BV v. Minister Van Financiën (C-384/93), 10 May 1995: [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209. H9 Further cases referred to by the Advocate General: Before the European Courts: 8. Criminal Proceedings against Franzén (C-189/95), 23 October 1997: [1997] E.C.R. I-5909; [1998] 1 C.M.L.R. 1231. 9. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837;

[1974] 2 C.M.L.R. 436. 10. Germany v. European Parliament and E.U. Council (C-376/98), 5 October 2000: [2000] E.C.R. I-8419; [2000] 3 C.M.L.R. 1175. 11. Hünermund and Others v. Landesapothekerkammer Baden-Württemberg (C-292/92), 15 December 1993: [1993] E.C.R. I-6787. 12. Societe d'Importation Edouard Leclerc-Siplec v. TF1 Publicite SA and M6 Publicite SA (C-412/93), 9 February 1995: [1995] E.C.R. I-179; [1995] 3 C.M.L.R. 422. 13. Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (120/78), 20 February 1979: [1979] E.C.R. 649: [1979] 3 C.M.L.R. 494. 14. Kemikalieinspektionen v. Toolex Alpha AB (C-473/98), 11 July 2000: [2000] E.C.R. I-5681. 15. Criminal Proceedings against Heinonen (C-394/97), 15 June 1999: [1999] E.C.R. I-3599; [2000] 2 C.M.L.R. 1037. 16. Sodemare SA and Others v. Regione Lombardia (C-70/95), 17 June 1997: [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591. 17. Corsten (C-58/98), 3 October 2000: [2000] E.C.R. I-7919. 18. Stichting Collectieve Antennevoorziening Gouda and Others v. Commissariaat voor de Media (C-288/89), 25 July 1991: [1991] E.C.R. I-4007. 19. Arbeitsgemeinschaft Deutscher Rundfunkanstalten (Ard) v. Pro Sieben Media AG (C-6/98), 28 October 1999: [1999] E.C.R. I-7599; [1999] 3 C.M.L.R. 769. Before the European Court of Human Rights: 20. Casado Coca v. Spain (A/285), 24 February 1994: (1994) 18 E.H.R.R. 1.

Opinion of Mr Advocate General Jacobs A1 In this reference for a preliminary ruling, Stockholms Tingsrätt (Stockholm District Court) asks whether national legislation entailing a general ban on the advertising of alcoholic drinks is in principle precluded by the Treaty prohibitions of quantitative restrictions on imports and/or of restrictions on freedom to provide services; if so, the *676 national court wishes to know whether it may none the less be regarded as justifiable by reason of the public-health aim which it seeks to achieve and proportionate in the light of that aim.

The Swedish legislation and the circumstances of the national proceedings A2 Sweden has an official policy of moderating alcohol consumption in the interests of health and safety. The instruments of that policy include a national monopoly on retail sales of alcoholic beverages for home consumption and a number of restrictions on advertising. In the context of those restrictions, the Consumer Ombudsman (Konsumentombudsmannen) is seeking an injunction restraining Gourmet International Products Aktiebolag (hereinafter "GIP") from publishing advertisements for alcoholic beverages in a supplement to its magazine Gourmet.

The retail sales monopoly A3 The State monopoly on retail sales of alcoholic beverages in Sweden has been considered by the Court in the Franzén case, [FN1] in which a helpful description is provided. [FN2] The following features are perhaps the most salient for present purposes. FN1 Case C-189/95, Franzén: [1997] E.C.R. I-5909; [1998] 1 C.M.L.R. 1231. FN2 See in particular paras [21] to [26] of the judgment, with a fuller account in paras 2 to 37 of the Opinion of Elmer A.G. A4 Alcoholic beverages are defined as those containing more than 2.25 per cent of alcohol by volume. Such beverages may be produced, imported and/or sold wholesale by persons holding a licence for the relevant purpose. With the exception of beer containing less than 3.5 per cent alcohol, which may be sold in food stores, they may be sold directly to consumers only by those--namely restaurants and bars--holding a licence to serve alcohol or by the wholly State-owned company Systembolaget, which has a total monopoly on retail sales for home consumption. A5 Systembolaget operates a network of some 400 shops of its own and has about 580 local agents--generally ordinary shops offering a simple ordering and delivery service. At many of its shops, items are not on display but must be requested at a sales counter, although it has now introduced self-service outlets. Opening hours are limited, and a prohibition on sales to persons under the age of 20 is strictly enforced. A6 The products sold by Systembolaget (about 2,400 in number) fall into five groups. There is a regular range of standard products in permanent stock, a temporary range which includes products of limited availability or candidates for inclusion in the regular range, a test range for products undergoing evaluation, a special order range for products stocked not by Systembolaget but by licensed producers or importers, and an import service for individuals and restaurants *677 wishing to order products not otherwise available in Sweden. Inclusion (and continued inclusion) within the ranges stocked by Systembolaget is dependent on performance in blind tastings and on sales. A7 Among the requirements placed on Systembolaget by its agreement with the Swedish State are that it is to: -- select beverages only on the basis of quality, possible adverse effects on health, customer demand and other business or ethical considerations, in such a way that national products are not favoured; -- inform suppliers of its reasons for not selecting any product or for dropping a product from its range and of their right to appeal; -- adopt marketing and information measures which are impartial and independent of the origin of beverages; and -- take steps to ensure that new beverages which it markets become known to consumers, whilst having regard to the restrictions laid down by law.

Advertising restrictions A8 The legislation with which the national court is specifically concerned in the present case is Article 2 of Law 1978:763 (Lag med vissa bestämmelser om marknadsföring av alkoholdrycker, or Alkoholreklamlagen, hereinafter "the Alcohol Advertising Law") enacting certain measures governing the marketing of alcoholic beverages, which applies [FN3] to the marketing of alcoholic beverages to individuals by producers and traders. Alcoholic beverages (containing over 2.25 per cent alcohol) include spirits, wines, strong beers (over 3.5 per cent alcohol) and beers (between 2.25 per cent and 3.5 per cent alcohol). FN3 It appears from what was said at the hearing that this Law has now been incorporated in codified legislation on alcohol, but that its relevant provisions remain essentially the same. A9 Article 2 provides as follows: In view of the health risks involved in alcohol consumption, alcoholic beverages should be marketed with particular moderation. In particular, advertisements or other marketing measures must not be insistent, involve unsolicited approaches or encourage alcohol consumption. Commercial advertising may not be used to market alcoholic beverages on radio or television. The same prohibition applies to satellite broadcasts subject to Law 1966:844 on radio and television. Commercial advertising may not be used to market spirits, wines or strong beers either in periodicals or in other publications subject to the Regulation on press freedom and comparable to periodicals by reason of their publication schedule. That prohibition does not however apply to publications distributed solely at the point of sale of such beverages. A10 Under guidelines published by the Swedish Consumer Protection *678 Authority (Konsumentverket) for the implementation of that article, advertising is prohibited in many public places and situations. A11 The ban on commercial advertising of alcoholic beverages in the press, on radio or on television is attenuated in a number of ways. A12 All alcoholic beverages may be advertised in publications available only at points of sale, although it was suggested at the hearing that only beverages for sale at the outlet in question may be advertised. Beer with an alcohol content of between 2.25 per cent and 3.5 per cent may be advertised in periodicals, subject to certain limitations specified in guidelines. From the case file and what was said at the hearing, it further appears that a particular category of "light beer" having an alcohol content of less than 2.25 per cent is marketed in Sweden and may be advertised without restriction, and that "editorial publicity" in periodicals or in radio or television programmes--comment which may have a promotional effect but is not the subject of a commercial transaction--is not prohibited. Nor is there any ban on sending advertising material directly to a consumer at his or her request. Furthermore, since the Alcohol Advertising Law applies only to marketing directed at individuals, there are no restrictions on advertising in trade

journals. It appears, moreover, that alcoholic beverages may be advertised on the internet. A13 However, all advertising which is permitted must still comply with the requirements of "particular moderation" laid down in the first paragraph of Article 2. A14 Under Article 3 of the Law, any breach of Article 2 is deemed an unfair consumer practice in accordance with the provisions of Law 1995:450 (Marknadsföringslagen--Law on marketing practices), from which parties may be restrained by injunction, with a fine in the event of failure to comply. Responsibility for seeking or, as the case may be, issuing such injunctions lies with the Consumer Ombudsman, who in this case seeks such an injunction against GIP from Stockholms Tingsrätt.

Circumstances of the main proceedings A15 GIP publishes the periodical Gourmet, which is printed in two editions. The first is on sale to the public at large, the second is sent only to subscribers. Total circulation is around 25,000 copies, of which some 9,300 are accounted for by the subscriber edition. Of those 9,300,55 per cent are delivered to businesses in the drinks trade, 35 per cent to other businesses and 10 per cent to private individuals. The subscriber edition, but not the public edition, has a supplement containing editorial comment and advertisements for alcoholic beverages placed by importers. The supplement published with Issue 4 [FN4] contained one page of advertisements for red wines and two pages for whiskies. FN4 August-October 1997. A16 The Consumer Ombudsman takes the view that this constitutes *679 advertising directed at individual consumers and published in a periodical, thus falling foul of Article 2 of the Alcohol Advertising Law. He has applied to Stockholms Tingsrätt for an injunction restraining GIP from publishing such advertisements and imposing a penalty in the event of non-compliance. A17 GIP submits that no injunction may be made on the basis of Swedish legislation which is contrary to Community law. The legislation in issue here is contrary to Article 30 of the E.C. Treaty (now, after amendment, Article 28 E.C.) in that it imposes a measure whose effect is equivalent to a quantitative restriction on imports of goods from other Member States and to Article 59 of the E.C. Treaty (now, after amendment, Article 49 E.C.) in that it imposes a restriction on the freedom of publishers of magazines in Sweden to provide services (in this case, the service of making advertising space available) to persons established in other Member States. The Consumer Ombudsman disagrees. A18 It may be noted that there is another issue between the parties, not directly connected with the issue of Community law, namely whether the subscriber edition of Gourmet should be regarded as a trade journal falling outside the scope of the Swedish prohibition. That question has apparently not yet been settled by the national court, which on 9 November 1998 decided, at the instance

of GIP but contrary to the wishes of the Consumer Ombudsman, to seek a preliminary ruling on the Community-law issues. A19 The questions referred for a preliminary ruling are: 1. Is Article 30 or Article 59 of the Treaty of Rome to be interpreted as precluding national legislation entailing a general prohibition of alcohol advertising, such as the prohibition laid down in Article 2 of Alkoholreklamlagen? 2. If so, can such a prohibition be regarded as justified and proportionate for the protection of life and health of humans? A20 Written observations have been submitted to the Court by the Consumer Ombudsman, by GIP, by the Finnish, French, Swedish and Norwegian Governments, and by the Commission. GIP, the Finnish, French and Swedish Governments and the Commission also presented oral submissions at the hearing.

Analysis

The nature of the prohibition A21 The national court refers to a "general prohibition" and GIP seeks to present it as a total or absolute ban. A22 It seems to me that, in view of the numerous exceptions, there cannot be said to be a total or absolute ban on the advertising of alcoholic beverages as such. However, the ban does appear to be total as regards advertising material devised by or on behalf of a producer, importer, wholesaler or retailer and addressed to (potential) *680 consumers in general, as opposed to those who have specifically requested it or are already in an "alcohol-purchasing situation". A23 Another point which may be briefly mentioned is the Commission's suggestion at the hearing to the effect that the advertising ban might be examined primarily as a possible restriction on the free movement of periodicals, entailing consequential restrictions on the free movement of alcoholic beverages and the freedom to provide advertising services. A24 However, from the facts as presented to the Court, there does not appear to be any restriction on the sale in Sweden of foreign periodicals containing advertisements for alcoholic beverages. I consider that the alleged restrictions of free movement of goods (alcoholic beverages) and of freedom to provide services are sufficiently independent of one another to be treated separately.

Articles 30 and 36 of the E.C. Treaty

--Inclusion within the scope of Article 30 A25 According to the Swedish Government, the avowed aim and proclaimed effect of its alcohol policy is to limit alcohol consumption, and there appears to be no dispute over the effectiveness of that policy. [FN5] In general, I consider, advertising restrictions cannot but contribute to the effect to a non-negligible degree, alongside high excise duties and State control of retail sales for home consumption. Sales, and thus imports, of alcoholic beverages must therefore be

affected. FN5 Yearly figures given in the publication World Drink Trends show that per capita consumption of alcohol in Sweden is the lowest (at around half the average) of all the countries of the European Union; however, there appears also to be evidence of a parallel market in illicit alcohol not reflected in the statistics. A26 Thus, it seems clear that the Swedish legislation in issue falls within the Dassonville definition of measures having an effect equivalent to quantitative restrictions, for the purposes of Article 30, as any "rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. [FN6] (It may be noted that the situation here is different from a uniform Communitywide ban such as that contemplated by the Tobacco Advertising Directive. [FN7] Divergent national rules are likely to create barriers at national boundaries; harmonised Community rules, although they may reduce trade overall, tend to eliminate such national barriers.) FN6 Case 8/74, Procureur du Roi v. Dassonville: [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436, para. [5] of the judgment. FN7 Directive 98/43 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, [1998] O.J. L 213/9, recently annulled by the Court in its judgment of 5 October 2000 in Case C-376/98, Germany v. European Parliament and Eu Council: [2000] E.C.R. I-8419. A27 The Consumer Ombudsman and all the governments which submitted observations consider, however, that the legislation is none *681 the less excluded from the scope of the article by virtue of the Keck and Mithouard exception for "national provisions restricting or prohibiting certain selling arrangements" which "apply to all relevant traders operating within the national territory and ... affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States". [FN8] In the alternative and in any event, they consider that the restrictions in issue are justified "on grounds of ... the protection of health and life of humans" under Article 36 of the E.C. Treaty. FN8 Joined Cases C 267 & 268/91, Keck and Mithouard: [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101, para. [16] of the judgment. A28 The Court has already held that advertising restrictions can fall within the category of rules on selling arrangements referred to in Keck and Mithouard. [FN9] FN9 See Case C-292/92, Hünermund v. Landesapothekerkammer Badenwürttemberg: [1993] E.C.R. I-6787, para. [22] of the judgment, Case C-

412/93, Leclerc-Siplec v. TF1 Publicité and M6 Publicité: [1995] E.C.R. I-179; [1995] 3 C.M.L.R. 422, para. [22], and Joined Cases C 34, 35 & 36/95, Konsumentombudsmannen (KO) v. de Agostini and TV-Shop: [1997] E.C.R. I-3843, para. [39]. A29 However, the Keck and Mithouard exception is dependent on the non-discriminatory nature of the rules in question, both in law and in fact. A30 Here, the restrictions do not seem discriminatory in law; there is nothing in any of the provisions which distinguishes between Swedish and imported products. Moreover, to the extent that it relates to advertising, there is a specific requirement on Systembolaget not to favour national products in its selections, but to bring all new products to the attention of consumers. A31 The legal situation, however, does not appear to be reflected in fact-- and, as the Court has consistently recognised since its Dassonville judgment, the actual or potential impact on market access in fact is crucial for the application of Article 30 of the E.C. Treaty. A32 It is true that the Swedish Government points to a constant increase in sales of wines (overwhelmingly imported, principally from other Member States) and a constant decrease in spirit sales (with an increase in the proportion of imported whiskies as opposed to Swedish-produced vodkas), the changing balance reflecting one of the aims of the legislation to wean consumers away from stronger beverages. A33 However, GIP cites other statistics indicating Swedish domination of the domestic market in strong beer and points out that ingrained consumer habits will always tend to favour national beverages so that without advertising products from other Member States are at a disadvantage. At the hearing, the Swedish Government's representative agreed that there was a widespread preference for locally-produced beer. In addition, GIP argues, daily press information on other (for example economic) topics will keep the *682 names of national producers to the forefront of consumers' minds; furthermore, the lack of any restriction on the advertising of light beer enables Swedish brewers of such beer to promote their brand names (which are the same as for their strong beers) and thus gain an advantage over brewers of imported beer, who generally do not produce a light beer. A34 It might be argued that these are matters of fact for the national court to decide, but it seems to me inherent in any rule which prevents producers from advertising directly to the public that it will disproportionately affect imported products--and will at any rate "prevent their access to the market or ... impede access ... more than it impedes the access of domestic products". [FN10] FN10 Keck and Mithouard, para. [17]. A35 In conflicts of interest such as the present (another example would be that of tobacco advertising) it is often argued by advertisers that the aim and effect of advertising is not to encourage more people to consume the product in question but to persuade those who already do consume it to switch brands. In the

present case, it seems clearly to be the intention of the Swedish authorities to permit advertising for that latter purpose alone. In both cases there is an underlying assumption that in the absence of advertising there would be less likelihood of brand-switching. A36 The truth of that assumption is, I think, self-evident. A consumer who is unaware of alternatives to the products he or she is in the habit of purchasing is unlikely to go to any great lengths to discover whether such alternatives exist and is thus likely to continue to purchase the same products. The role of advertising is primordial in launching a new product or in penetrating a new market. The existence of a monopoly on the retail market, moreover, clearly heightens the danger that a limitation on advertising directly to customers will have a restrictive effect on trade; in that regard, the duty of impartiality imposed on Systembolaget is insufficient to overcome the inertia of settled purchasing patterns, particularly as customer demand is one of the criteria on which it must base the selection of its products. A37 Viewed in the light of the Swedish situation--the legislation in issue dates from 1978 and the same policies appear to have been pursued since the 19th century, whereas the obligation to allow free movement of goods from other Member States dates only from 1994 [FN11]--those considerations lead inexorably to the conclusion that the restrictions on the advertising of alcoholic beverages must have a greater adverse effect on new products introduced onto the Swedish market than on products already present there, the former being more likely to be from other Member States and the latter to be Swedish products. It is quite plausible--as in an incident cited anecdotally by counsel for GIP *683 at the hearing--that producers in other Member States will be discouraged from even attempting to penetrate the Swedish market. FN11 Article 11 of the Agreement on the European Economic Area, [1994] O.J. L 1/3, which entered into force on 1 January 1994, preceded, for Sweden, Article 30 of the E.C. Treaty. A38 I am therefore satisfied that the advertising restrictions in issue not only are capable of hindering intra-Community trade but also in fact affect the marketing of domestic products differently from those from other Member States and impede market access for the latter more than they impede the access of domestic products. That being so, the Keck and Mithouard exception could not in any event apply.

--Justification on public health grounds A39 It is however necessary to consider whether the advertising restrictions are justified "on grounds of ... the protection of health and life of humans" under Article 36 of the E.C. Treaty. A40 It may also be noted, parenthetically, that the Cassis de Dijon line of case law provides an exception from the prohibition of measures having equivalent effect for legislation "necessary in order to satisfy mandatory requirements relating in particular to ... the protection of public health" [FN12] provided that the

measure applies without distinction to both national and imported products. However, as the Court pointed out in Aragonesa, [FN13] there is no need to consider Article 30 in that light where (as here) the justification offered is the protection of public health, since Article 36 of the E.C. Treaty provides for such a justification whether the measure is discriminatory or not. FN12 Case 120/78, Rewe v. Bundesmonpolverwaltung für Branntwein: [1979] E.C.R. 649; [1979] 3 C.M.L.R. 494, para. [8] of the judgment. FN13 Joined Cases C 1 & 176/90, Aragonesa de Publicidad Exterior and PublivÍa: [1991] E.C.R. I-4151; [1994] 1 C.M.L.R. 887, para. [13] of the judgment. A41 It is I think undeniable that justification under Article 36 is in principle available for measures to reduce alcohol consumption. The dangers of excessive consumption of alcohol to human health and life (both direct through damage to the drinker's own body and indirect through violence, road traffic accidents and industrial accidents) hardly need to be reiterated. In Franzén, the Court confirmed that the protection of human health against the harmful effects of alcohol is indisputably a ground which may justify derogation from Article 30 of the Treaty. [FN14] FN14 Cited above in fn. 1; see para. [76] of the judgment and the case law cited there. A42 All Member States, moreover, apply restrictions of some kind on alcohol advertising, although in some they take the form of voluntary codes, and those in Sweden and Finland appear to be the most severe. [FN15] In the field of television, the "television without frontiers" directive [FN16] *684 contains stringent criteria as regards the advertising of alcoholic beverages. As pointed out by the Swedish and Finnish Governments, advertising restrictions are included among the aims of the European Alcohol Action Plan drawn up by the World Health Organisation's Regional Office for Europe in 1993 and further developed for the period 2000 to 2005, and of the European Charter on Alcohol drawn up by the European Conference on Health, Society and Alcohol held by the same organisation in Paris in December 1995. FN15 See Overview of national alcohol policies in the 15 countries of the European Union, published by the Société Française de Santé Publique and the European Commission, October 1998. FN16 Council Directive 89/552 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, [1989] O.J. L 298/23; see in particular Art. 15.

--Proportionality

A43 In the present state of Community law, in which there are no common or harmonised rules governing in a general manner the advertising of alcoholic beverages, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way on which that protection is to be achieved. [FN17] FN17 Aragonesa, cited in fn. 12, para. [16] of the judgment. A44 However, national rules having, or likely to have, a restrictive effect on the importation of products cannot benefit from the derogation provided for in Article 36 of the E.C. Treaty if the health and life of humans may be protected just as effectively by measures which are less restrictive of intra-Community trade. [FN18] FN18 See, most recently, the judgment of 11 July 2000 in Case C-473/98, Kemikalieinspektion v. Toolex Alpha: [2000] E.C.R. I-5681, para. [40], and, with specific regard to the protection of human health against the harmful effects of alcohol, Aragonesa, cited in fn. 12, at paras [14] and [16] of the judgment, Franzén, cited in fn. 1, at para. [75], and Case C-394/97, Heinonen: [1999] E.C.R. I-3599; [2000] 2 C.M.L.R. 1037, para. [36]. A45 Although the Swedish legislation as a whole contains a range of advertising restrictions, what is in issue here is the proportionality of the ban on all direct commercial advertising of beverages containing more than 3.5 per cent alcohol in periodicals aimed at the general public. A46 Essentially, the Consumer Ombudsman and all the governments which have submitted observations consider that such a ban is proportionate because it allows advertising directed at traders and because a more limited ban would be less effective in achieving the stated aim of reducing individual and overall alcohol consumption in Sweden. A47 GIP and the Commission, however, consider that the stated aim could be achieved by less restrictive means and that the ban as it stands is imperfectly effective. They stress the existence of the State monopoly on retail sales for home consumption and the purchasing restrictions which it applies, and point to the "loopholes" of editorial publicity and commercial advertising on the internet. A48 A ban such as that in issue here in my view goes farther than is necessary to achieve the aim sought, although the final decision should *685 be left to the national court, which may be able to take into account factors specific to the Swedish context, not as readily ascertainable by this Court. A49 The aim of the restrictions is to reduce alcohol consumption. I do not consider that it can be argued that a ban such as the one in issue does not contribute to the achievement of that aim, although there appears to be no scientific agreement as to the precise effects of advertising on alcohol consumption as opposed to brand-switching. [FN19] The crucial question is, however, whether a less restrictive ban might not contribute just as effectively

and that question must be considered, as GIP and the Commission rightly point out, in the context of the Swedish situation. FN19 The 10th Special Report to the US Congress on Alcohol and Health produced by the National Institute on Alcohol Abuse and Alcoholism--a Federal Government body set up to study the causes, consequences, treatment, and prevention of alcoholism and alcohol-related problems--examines a large number of experimental surveys and investigations into the effects of alcohol advertising and concludes that, other than perhaps in the case of children and young people, there is "little consistent evidence that alcohol advertising affects drinking beliefs and behaviours". Some sources, however, do report a link. A50 That situation appears to be characterised, inter alia, by the fact that the purchase and consumption of alcohol by persons over 20 years of age are perfectly legal and a matter of free choice for the individual. There is, moreover, no legislative intention of depriving such individuals of access to information about the alcoholic beverages available--there is no ban on editorial publicity and direct commercial advertising is available to consumers on request or at points of sale. The contested ban must also be seen against the background of limitations on the availability of alcohol, high excise duties, strict enforcement of purchasing age-limits and the requirements that all advertising of alcoholic beverages must display "particular moderation", which appears from what the Swedish Government says to imply objectivity and restraint in both text and image. A51 Against that background, what restrictions on advertising are justified? Some are, without doubt. It seems eminently reasonable to seek, for example, to protect children and young people who do not yet consume alcohol and who, by reason of their age, would be particularly susceptible to its adverse effects from the possible influence of advertisements for alcoholic beverages. Any ban on alcohol advertising in publications aimed at those sections of the population is thus justified. Nor, it seems to me, can it be considered disproportionate for that purpose to prohibit advertising in media which, by their nature, are likely to come frequently to the attention of children and young people--street hoardings, mass-circulation newspapers and peak-time television, for example. Variations of such bans are imposed in many Member States. A52 As regards adult consumption, which is also targeted by the Swedish rules, it again seems to be perfectly justifiable to impose certain *686 limitations--although it must be remembered that anyone over 20 appears to be deemed, by the Swedish legislation, to possess sufficient maturity to be able to reach a decision as to whether to consume alcohol and to what extent. A53 It would seem, for example, justified in the light of the aims sought to ban advertising which portrays heavy drinking in favourable light or which is specifically likely to encourage the drinking of alcohol rather than other beverages. Instances might include advertisements which associate alcohol with health, happiness, prosperity, success, elegance, sophistication, sexual attractiveness or similarly desirable attributes. Such limitations would appear to be covered by the obligation of "particular moderation" in advertising, which itself

seems perfectly proportionate. Equally, having regard to a different type of danger to human health and life than that caused directly to the drinker, it might seem wholly justified to impose a ban on the advertising of alcohol in publications devoted to motoring. A54 With a view to discouraging the "recruitment" to alcohol of those who would not otherwise be inclined to drink it, I can also see a possible justification for a ban on the advertising of, for instance, "alcopops"-- alcoholic drinks designed specifically to appeal to those (including no doubt young people and even children) whose preferred beverage is sweet and carbonated. A55 A further type of justified limitation might concern advertisements for drinks over a certain alcoholic strength, likely to be more damaging to health. Such restrictions are in force in several Member States. In Aragonesa, [FN20] the Court held that a criterion of 23 per cent alcohol did not appear manifestly unreasonable as part of a campaign against alcoholism, although the precise alcoholic strength which will constitute a proportionate criterion may vary according to specific circumstances and drinking habits in the Member State in question. In that regard, it may be noted that the Swedish thresholds of 2.25 per cent and 3.5 per cent alcohol are not very high. More importantly, it may be wondered whether this type of restriction is effective where producers are able (as seems to be the case for Swedish brewers) to circumvent its aim by using the same brand name for beverages both below and above the threshold. FN20 Cited in fn. 12, at para. [17] of the judgment. A56 I have provided those examples as an illustration, rather than an exhaustive list, of the types of case in which a ban on advertising may-- depending on all the circumstances--be justified in that it contributes to the legitimate aim of attenuating the consumption of alcohol by adults and preventing its consumption by those under the age of 20 and a less restrictive ban would not achieve the same effect. A57 I am not convinced, however, that it is either necessary or effective, in the light of the aim of reducing lawful alcohol consumption by adults, to impose a ban on all commercial advertising of alcoholic *687 beverages in all media directed at the general public, bearing in mind that such advertisements must in any event display "particular moderation". Many sections of the media are unlikely to come to the attention of children and young people--who are, moreover, unlikely to seek out such publications simply in order to experience the thrill of reading a "particularly moderate" advertisement for an alcoholic beverage (in that respect, the situation here cannot be compared to, for example, a ban on sexually explicit advertising material). A58 But even on the hypothesis that exposure to moderate advertising material is in general likely to encourage consumption by adults to a greater extent than would otherwise be the case, I consider that it would be extremely difficult to extend that reasoning to all sections of the media. A59 A copy of the offending issue of Gourmet has been provided by the national court. It is a magazine devoted principally to food and drink. It contains, inter alia,

what is apparently perfectly legal editorial comment on alcoholic beverages. In addition to the three full-page advertisements of which the Consumer Ombudsman complains, we find a seven-page feature on strong beers, with photographs of brand labels, a three-and-a-half-page feature on spirits and five pages of wine-tasting notes, together with sundry lesser references. Regardless of whether the subscription edition and supplement fall within the definition of trade publications for the purposes of the Swedish Law, it seems to me highly unlikely that a reader--who has presumably made a conscious choice to read the magazine unless it is common in dentists' waiting rooms--will be incited to drink alcohol to any greater extent as the result of the presence of commercial advertising material than he or she would otherwise have been after reading the editorial content. A60 Indeed, the purchaser of such a magazine may reasonably be regarded as in a position comparable to that of a purchaser of alcohol or one who specifically requests advertising material from a producer--both situations which are exempt from the ban on commercial advertising. The rationale of those exceptions seems to be that in such a situation any effect produced by advertising material is much more likely to involve brand-switching than increased consumption, and I think the same may apply where someone has chosen to read a publication devoted to any significant extent to alcoholic beverages. A61 My view that, in so far as it relates to certain sections of the media and in particular to the specialist press for those interested in food and wine, the ban on direct commercial advertising is ineffective for the purpose for which it is expressly intended--and thus excessive and incapable of justification under Article 36 of the E.C. Treaty--is buttressed by several of the other factors stressed by GIP and the Commission. A62 The lack of any prohibition on editorial publicity seems to me to weaken considerably the effect of a ban on commercial advertising. On *688 the one hand, commercial advertising must in any event be particularly moderate; on the other, journalists writing about alcoholic beverages may tend to wax lyrical. Moreover, editorial comment may carry more authority in the mind of the reader than does commercial advertising. The effect must be further weakened by the fact that--from what was said at the hearing--foreign publications containing alcohol advertisements, some placed by the Swedish State-owned alcohol production company Vin & Sprit for its own products, are on sale in Sweden. A63 It must, however, be borne in mind that--and this is a matter for the national court--the Swedish legislation in issue may perhaps be capable of interpretation in such a way that its application in the present case is not disproportionate and that it thus remains in conformity with Community law. This might conceivably be achieved by regarding Gourmet as a trade magazine or by deeming its purchasers to be in the same situation as persons who have requested advertising material.

--Conclusion A64 I therefore consider that, viewed in the light of Articles 30 and 36 of the E.C. Treaty, a ban in one Member State on the commercial advertising of alcoholic

beverages directly to the general public amounts to a measure equivalent to a quantitative restriction on imports; it is none the less capable of being justified on grounds of the protection of the health and life of humans provided that the aim sought cannot be achieved just as effectively by measures which are less restrictive of intra-Community trade; it appears however--subject to verification by the national court in the light of factors specific to the national situation--that the Swedish aim of reducing alcohol consumption could be achieved just as effectively by measures less restrictive than a ban imposed on all such advertising in all sections of the media, in particular in so far as it extends to periodicals devoted to food and drink.

Article 59 of the E.C. Treaty

--Inclusion within the scope of the article A65 Article 59 prohibits all restrictions on freedom to provide services within the Community in respect of nationals established in a Member State other than that of the person for whom the services are intended. A66 The restriction in issue here concerns GIP's freedom to provide the service of making commercial advertising space available to advertisers of alcoholic beverages who are established in other Member States. A67 That is sufficient in order for Article 59 to apply. Whilst a *689 cross-border element in the service is necessary, [FN21] the alleged restriction need not concern the advertising of alcoholic beverages produced in other Member States--in fact, for these purposes, the product advertised might even be of purely Swedish origin. FN21 See, for example, Case C-70/95, Sodemare and Others v. Regione Lombardia: [1997] E.C.R. I-3395; [1997] 3 C.M.L.R. 591, para. [38] of the judgment, and the case law cited there. A68 Nor is it of any relevance whether GIP has actually made advertising space available to customers outside Sweden. In the main proceedings the Consumer Ombudsman is seeking an order restraining GIP, on pain of a fine, from publishing commercial advertisements for alcoholic beverages. The identity of the persons whose advertisements were placed in Issue No. 4 of the subscription edition of Gourmet, which appears to have triggered the proceedings, is thus immaterial. The issue is whether GIP may be restrained from offering such services in the future, and it clearly wishes to be able to provide them to advertisers established in other Member States. As the Court stated in Alpine Investments, [FN22] freedom to provide services would become illusory if national rules were at liberty to restrict offers of services, and the prior existence of an identifiable recipient cannot be a condition for the application of Article 59. FN22 Case C-384/93, Alpine Investments: [1995] E.C.R. I-1141 [1995] 2 C.M.L.R. 209, para. [19] of the judgment.

A69 It is thus in my view clear that a rule under which a publisher may be restrained from offering advertising space to advertisers established in other Member States is such as to restrict that publisher's freedom to provide cross-border services. The same restriction must presumably affect advertising agencies established in the Community which seek to provide producers of alcoholic beverages with the service of advertising in the Swedish periodical press. A70 The Norwegian Government and the Commission have suggested that, in order to be caught by the prohibition in Article 59, such a rule might none the less have to discriminate between offers of services made to advertisers in the publisher's own State and those in other Member States. They point out that there does not appear to be any such discrimination in the present case. A71 Whilst I agree that there is no evidence here that the prohibition in issue affects offers of cross-border services any differently from offers of services within Sweden, I do not agree that any such discrimination is required for a breach of Article 59. The Court has consistently held that Article 59 prohibits: any restriction, even if it applies to national providers of services and to those of other Member States alike, which is liable to prohibit, impede or render less advantageous the activities of a provider of services esablished in another Member State where he lawfully provides similar services. [FN23] FN23 See, most recently, the judgment of 3 October 2000 in Case C-58/98, Corsten; [2000] E.C.R. I-7919 *690 , at para. [33], together with the case law cited there. It is further clear from the judgment in Alpine Investments [FN24] that the prohibition covers also restrictions laid down by the State from which, as well as by the State to which, the services are to be provided, and that in assessing restrictions on the freedom to provide cross-border services there is no analogue to the exception laid down in Keck and Mithouard. FN24 Cited in fn. 21; see in particular paras [30] and [35] to [38] of the judgment. A72 In those circumstances, I have no difficulty in concluding that the prohibition in issue is caught by Article 59.

--Freedom of expression A73 At the hearing, both the Swedish Government and the Commission referred to editorial publicity as being protected by the right to freedom of expression. According to the case law of the European Court of Human Rights, however, commercial advertising also comes within the scope of Article 10 of the European Convention on Human Rights, which guarantees freedom of expression for everyone. [FN25] This aspect of the case has not been debated before the Court, nor do I consider it necessary to analyse it in order to reach a conclusion in this case.

FN25 See, for example, Case 8/1993, Casado Coca v. Spain; [1994] E.C.H.R. 285-A, at para. [35] of the judgment, and the other case law cited there. A74 Nonetheless, the existence of any encroachment on advertisers' fundamental right to freedom of expression (which may be justified on grounds analogous to those which may be invoked in relation to a restriction on freedom to provide services and with which I shall deal below) can only mean that the incompatibility with Article 59 of the E.C. Treaty must be viewed with particular seriousness.

--Justification on grounds of public health A75 Article 56(1) of the E.C. Treaty, which by virtue of Article 66 applies to matters covered by Article 59, provides for an exception similar to that contained in Article 36 in respect of restrictions on the free movement of goods: Article 59 may not prejudice the applicability of legislation "providing for special treatment for foreign nationals on grounds of public policy, public security or public health". A76 That wording seems to permit of such justification only for rules which are expressly or deliberately discriminatory and not for those which apply equally to domestic and cross-border provision of services, yet the latter also fall within the scope of Article 59. A77 However, it would be absurd if a rule which provided for specific treatment of foreign nationals could be justified on grounds of public health whereas one which applied without distinction but nonetheless restricted the cross-border provision of services could not. A78 Indeed, in parallel to what has been called its "rule of reason" case law in relation to the free movement of goods, starting with the Cassis de Dijon *691 judgment, [FN26] the Court has also developed a judicial test under which a non-discriminatory restriction on the freedom to provide services may escape the prohibition in Article 59 of the E.C. Treaty if it is objectively justified in pursuance of a legitimate public interest. Thus, in Alpine Investments for example--another case involving a restriction affecting would-be service providers established in the Member State imposing it--the Court did not hesitate to enquire whether the prohibition, which it had found to be non-discriminatory, could be justified by imperative reasons of public interest. [FN27] FN26 See para. 40 above. FN27 Cited in fn. 21; see paras [35] and [40] et seq. of the judgment. A79 In that regard, the objective of limiting alcohol consumption is again clearly a matter of sufficient public interest to be capable of justifying certain restrictions on the freedom to provide services. Restrictions on advertising have, moreover, been accepted by the Court as capable of being justified on grounds of public interest. [FN28] FN28 See, in particular, Case C-288/89, Collectieve Antennevoorziening Gouda

and Others v. Commissariaat voor de Media: [1991] E.C.R. I-4007, paras [23] and [27] of the judgment, and Case C-6/98, Ard v. Pro Sieben: [1999] E.C.R. I-7599; [1999] 3 C.M.L.R. 769, para. [50]. A80 Again, however, any such restrictions must, in order to be justified, be appropriate to achieve the intended aim and must not go beyond what is necessary for that purpose. [FN29] For the reasons I have given above in my analysis of the situation under Article 36 of the E.C. Treaty, I consider that, when viewed in the overall context, a ban on the commercial advertising of alcoholic beverages in all publications intended for the general public does appear to go beyond what is necessary to achieve the stated aim of the Swedish authorities. FN29 See, for example, Collectieve Antennevoorziening Gouda, para. [15] of the judgment, Alpine Investments, cited in fn. 21, para. [45], and Ard, para. [51].

Conclusion A81 In the light of the above considerations, I am of the opinion that the Court should give the following answer to the questions raised by Stockholms Tingsrätt: A national rule banning the commercial advertising of alcoholic beverages directly to the general public constitutes a measure equivalent to a quantitative restriction on imports of such beverages, prohibited by Article 30 of the E.C. Treaty, and a restriction on the freedom to provide cross-border advertising services, prohibited by Article 59. Such a rule may be justified by reason of its aim to protect the health and life of humans from the dangers of excessive consumption of alcohol, but only in so far as that aim cannot be achieved just as effectively by less restrictive measures. A ban which extends to commercial advertising in periodicals a significant part of whose subject-matter is lawfully devoted to alcoholic beverages is in *692 principle unnecessary and ineffective in that regard, and thus incapable of such justification. JUDGMENT 1 By order of 18 September 1998, received at the Court on 16 November 1998, the Stockholms Tingsrätt (Stockholm District Court) referred to the Court for a preliminary ruling under Article 177 of the E.C. Treaty (now Article 234 E.C.) two questions on the interpretation of Articles 30, 36, 56 and 59 of the E.C. Treaty (now, after amendment, Articles 28 E.C., 30 E.C., 46 E.C. and 49 E.C.). 2 The two questions have been raised in the context of an application made by the Konsumentombudsman (the Swedish Ombudsman responsible for consumer protection, hereinafter "the Consumer Ombudsman") for an injunction restraining Gourmet International Products AB (hereinafter "GIP") from placing advertisements for alcoholic beverages in magazines. National legislation 3 Lagen 1978:763 med vissa bestämmelser om marknadsföring av

alkoholdrycker (Swedish Law 1978:763 laying down provisions on the Marketing of Alcoholic Beverages, as amended, hereinafter "the Alkoholreklamlagen"), which entered into force on 1 July 1979, is, according to Article 1, applicable to the promotion of alcoholic beverages to consumers by manufacturers and retailers. Pursuant to the Alkohollagen 1994:738 (Swedish Law on Alcohol), alcoholic beverages are beverages containing more than 2.25 per cent of alcohol by volume. Those beverages comprise spirits, wines, "strong beer" (containing more than 3.5 per cent of alcohol by volume) and "beer" (containing between 2.25 per cent and 3.5 per cent of alcohol by volume). 4 Article 2 of the Alkoholreklamlagen provides: In view of the health risks involved in alcohol consumption, alcoholic beverages should be marketed with particular moderation. In particular, advertisements or other marketing measures must not be insistent, involve unsolicited approaches or encourage alcohol consumption. Advertising may not be used to market alcoholic beverages on radio or television. The same prohibition applies to satellite broadcasts subject to Law 1996:844 on Radio and Television. Advertising may not be used to market spirits, wines or strong beers either in periodicals or in other publications subject to the Regulation on Press Freedom and comparable to periodicals by reasons of their publication schedule. That prohibition does not however apply to publications distributed solely at the point of sale of such beverages. [FN30] FN30 Law 1996: 851. 5 It is apparent from the order for reference that, owing to the object of the Alkoholreklamlagen, which is to restrict the possibilities of marketing alcoholic beverages to consumers, the prohibition on *693 advertisements in periodicals does not apply to advertisements in the specialist press, meaning the press aimed essentially at traders, that is to say, in particular, at manufacturers and restaurateurs. 6 It is also apparent from the order for reference that advertising on the public highway and the direct mailing of advertising material to individuals, in particular, are regarded as contrary to the obligation to exercise moderation laid down by the Alkoholreklamlagen. Main proceedings 7 GIP publishes a magazine entitled Gourmet. Issue No. 4 [FN31] of the edition intended for subscribers contained three pages of advertisements for alcoholic beverages, one for red wine and two for whisky. Those pages did not appear in the edition sold in shops. According to the order for reference, 90 per cent of the magazine's 9,300 subscribers are traders, manufacturers or retailers, and 10 per cent are private individuals. FN31 August-October 1997.

8 The Consumer Ombudsman applied to the Stockholms Tingsrätt for an injunction, and imposition of a fine in the event of failure to comply therewith, restraining GIP from contributing to the marketing of alcoholic beverages to consumers by means of such advertisements, which were contrary to Article 2 of the Alkoholreklamlagen. 9 GIP contended that the application should be dismissed. It argued, in particular, that the proceedings brought against it were based on legislation that was contrary to Community law. 10 When examining the application, the Tingsrätt was unsure, in particular, whether national rules imposing an absolute prohibition on certain advertisements might be regarded as having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty and, if so, whether, in view of their object, they might be regarded as lawful under Article 36 of the Treaty. It was also unsure whether such national rules were compatible with the freedom to provide services. 11 The Stockholms Tingsrätt considered that an interpretation of the relevant provisions of the Treaty seemed necessary. It therefore decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: 1. Is Article 30 or Article 59 of the E.C. Treaty to be interpreted as precluding national legislation entailing a general prohibition of alcohol advertising, such as the prohibition laid down in Article 2 of Alkoholreklamlagen? 2. If so, can such a prohibition be regarded as justified and proportionate for the protection of life and health of humans? 12 The Consumer Ombudsman lodged an appeal against the order for *694 reference before the Marknadsdomstolen, Sweden, which dismissed the appeal by decision of 11 March 1999. Free movement of goods 13 By the questions referred to the Court, which can be considered together, the national court is asking essentially, first, whether the provisions of the Treaty on the free movement of goods preclude a prohibition on advertisements for alcoholic beverages such as that laid down in Article 2 of the Alkoholreklamlagen. 14 The Consumer Ombudsman and the intervening Governments accept that the prohibition on advertising in Sweden affects sales of alcoholic beverages there, including those imported from other Member States, since the specific purpose of the Swedish legislation is to reduce the consumption of alcohol. 15 However, observing that the Court held in paragraph [16] of its judgment in Joined Cases C 267 & 268/91, Criminal Proceedings against Keck and Mithouard [FN32] that national provisions restricting or prohibiting certain selling arrangements are not liable to hinder intra-Community trade, so long as they apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic

products and of those from other Member States, the Consumer Ombudsman and the intervening Governments contend that the prohibition on advertising in issue in the main proceedings does not constitute an obstacle to trade between Member States, since it satisfies the criteria laid down by the Court in that judgment. FN32 [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101. 16 GIP contends that an outright prohibition such as that at issue in the main proceedings does not satisfy those criteria. It argues that such a prohibition is, in particular, liable to have a greater effect on imported goods than on those produced in the Member State concerned. 17 Although the Commission takes the view that the decision as to whether, on the facts of the case, the prohibition does or does not constitute an obstacle to intra-Community trade is a matter for the national court, the Commission expresses similar doubts as to the application in the present case of the criteria referred to in paragraph 15 above. 18 It should be pointed out that, according to paragraph [17] of its judgment in Keck and Mithouard, if national provisions restricting or prohibiting certain selling arrangements are to avoid being caught by Article 30 of the Treaty, they must not be of such a kind as to prevent access to the market by products from another Member State or to impede access any more than they impede the access of domestic products. 19 The Court has also held, in paragraph [42] of its judgment in Joined Cases C 34-36/95, Konsumentombudsmannen (KO) v. de Agostini (Svenska) Foerlag AB and TV-Shop I Sverige AB *695 , [FN33] that it cannot be excluded that an outright prohibition, applying in one Member State, of a type of promotion for a product which is lawfully sold there might have a greater impact on products from other Member States. FN33 [1997] E.C.R. I-3843; [1998] 1 C.M.L.R. 32. 20 It is apparent that a prohibition on advertising such as that at issue in the main proceedings not only prohibits a form of marketing a product but in reality prohibits producers and importers from directing any advertising messages at consumers, with a few insignificant exceptions. 21 Even without its being necessary to carry out a precise analysis of the facts characteristic of the Swedish situation, which it is for the national court to do, the Court is able to conclude that, in the case of products like alcoholic beverages, the consumption of which is linked to traditional social practices and to local habits and customs, a prohibition of all advertising directed at consumers in the form of advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are instantly more familiar.

22 The information provided by the Consumer Ombudsman and the Swedish Government concerning the relative increase in Sweden in the consumption of wine and whisky, which are mainly imported, in comparison with other products such as vodka, which is mainly of Swedish origin, does not alter that conclusion. First, it cannot be precluded that, in the absence of the legislation at issue in the main proceedings, the change indicated would have been greater; secondly, that information takes into account only some alcoholic beverages and ignores, in particular, beer consumption. 23 Furthermore, although publications containing advertisements may be distributed at points of sale, Systembolaget AB, the company wholly owned by the Swedish State which has a monopoly of retail sales in Sweden, in fact only distributes its own magazine at those points of sale. 24 Lastly, Swedish legislation does not prohibit "editorial advertising", that is to say, the promotion, in articles forming part of the editorial content of the publication, of products in relation to which the insertion of direct advertisements is prohibited. The Commission correctly observes that, for various, principally cultural, reasons, domestic producers have easier access to that means of advertising than their competitors established in other Member States. That circumstance is liable to increase the imbalance inherent in the absolute prohibition on direct advertising. 25 A prohibition on advertising such as that at issue in the main proceedings must therefore be regarded as affecting the marketing of products from other Member States more heavily than the marketing *696 of domestic products and as therefore constituting an obstacle to trade between Member States caught by Article 30 of the Treaty. 26 However, such an obstacle may be justified by the protection of public health, a general interest ground recognised by Article 36 of the Treaty. 27 In that regard, it is accepted that rules restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflects public health concerns. [FN34] FN34 Case 152/78, E.C. Commission v. France: [1980] E.C.R. 2299; [1981] 2 C.M.L.R. 743, para. [17], and Joined Cases C18-176/90, Aragonesa de Publicidad Exterior and Publivia: [1991] E.C.R. I-4151; [1994] 1 C.M.L.R. 867, para. [15]. 28 In order for public health concerns to be capable of justifying an obstacle to trade such as that inherent in the prohibition on advertising at issue in the main proceedings, the measure concerned must also be proportionate to the objective to be achieved and must not constitute either a means of arbitrary discrimination or a disguised restriction on trade between Member States. 29 The Consumer Ombudsman and the intervening Governments claim that the derogation provided for in Article 36 of the Treaty can cover the prohibition on advertising at issue in the main proceedings. The Consumer Ombudsman and the Swedish Government emphasise in particular that the prohibition is not absolute and does not prevent members of the public from obtaining information,

if they wish, in particular in restaurants, on the internet, in an "editorial" context or by asking the producer or importer to send advertising material. Furthermore, the Swedish Government observes that the Court of Justice has acknowledged that, in the present state of Community law, Member States are at liberty, within the limits set by the Treaty, to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. [FN35] The Swedish Government maintains that the legislation at issue in the main proceedings constitutes an essential component of its alcohol policy. FN35 Aragonesa de Publicidad Exterior and Publivia, cited above, para. [16]. 30 GIP claims that the outright prohibition on advertising laid down by the legislation at issue in the main proceedings is disproportionate, since the protection sought could be obtained by prohibitions of a more limited nature, concerning, for example, certain public places or the press aimed at children and adolescents. It must be borne in mind that the Swedish policy on alcoholism is already catered for by the existence of the monopoly on retail sales, by the prohibition on sales to persons under the age of 20 years and by information campaigns. 31 The Commission submits that the decision as to whether the prohibition on advertising at issue in the main proceedings is or is not proportionate is a matter for the national court. However, it also states that the prohibition does not appear to be particularly effective, owing in particular to the existence of "editorial publicity" and the abundance of indirect advertising on the internet, and that *697 requirements as to the form of advertising, such as the obligation to exercise moderation already found in the Alkoholreklamlagen, may suffice to protect the interest in question. 32 It should be pointed out, first, that there is no evidence before the court to suggest that the public health grounds on which the Swedish authorities rely have been diverted from their purpose and used in such a way as to discriminate against goods originating in other Member States or to protect certain national products indirectly. [FN36] FN36 Case 34/79, R. v. Henn and Darby: [1979] E.C.R. 3795, and Argonesa de Publicidad Exterior and Publivia, cited above, para. [20]. 33 Secondly, the decision as to whether the prohibition on advertising at issue in the main proceedings is proportionate, and in particular as to whether the objective sought might be achieved by less extensive prohibitions or restrictions or by prohibitions or restrictions having less effect on intra-Community trade, calls for an analysis of the circumstances of law and of fact which characterise the situation in the Member State concerned, which the national court is in a better position than the Court of Justice to carry out. 34 The answer to the question must therefore be that, as regards the free movement of goods, Articles 30 and 36 of the Treaty do not preclude a prohibition on the advertising of alcoholic beverages such as that laid down in

Article 2 of the Alkoholreklamlagen, unless it is apparent that, in the circumstances of law and of fact which characterise the situation in the Member State concerned, the protection of public health against the harmful effects of alcohol can be ensured by measures having less effect on intra-Community trade. Freedom to provide services 35 By the questions it has referred to the Court, the national court is essentially asking, secondly, whether the Treaty provisions on freedom to provide services preclude a prohibition on the advertising of alcoholic beverages such as that laid down in Article 2 of the Alkoholreklamlagen. 36 The Consumer Ombudsman, GIP, the Swedish Government and the Commission agree that provision of advertising space may constitute a provision of cross-border services falling within the scope of Article 59 of the Treaty. The other intervening Governments, on the other hand, contend that Article 59 does not apply in the main proceedings. 37 In that regard, as the Court has frequently held, the right to provide services may be relied on by an undertaking as against the Member State in which it is established if the services are provided to persons established in another Member State. [FN37] FN37 See, in particular, Case C-18/93, Corsica Ferries Italia v. Corpo dei Piloti dei Porto di Genova: [1994] E.C.R. I-1783, para. [30], and Case C-384/93, Alpine Investments: [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209, para. [30]. 38 That is particularly so where, as in the case before the referring court, the legislation of a Member State restricts the right of press *698 undertakings established in the territory of that Member State to offer advertising space in their publications to potential advertisers established in other Member States. 39 A measure such as the prohibition on advertising at issue in the proceedings before that court, even if it is non-discriminatory, has a particular effect on the cross-border supply of advertising space, given the international nature of the advertising market in the category of products to which the prohibition relates, and thereby constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty. [FN38] FN38 See, in that regard, Alpine Investments, cited above, para. [35]. 40 However, such a restriction may be justified by the protection of public health, which is a ground of general interest recognised by Article 56 of the E.C. Treaty, which is applicable to the provision of services in accordance with Article 66 of the E.C. Treaty (now Article 55 E.C.). 41 As observed in paragraph [33] above, in relation to obstacles to the free movement of goods, it is for the national court to determine whether, in the circumstances of law and of fact which characterise the situation in the Member

State concerned, the prohibition on advertising at issue in the main proceedings meets the condition of proportionality required in order for the derogation from the freedom to provide services to be justified. 42 The answer to be given must therefore be that, as regards freedom to provide services, Articles 56 and 59 of the Treaty do not preclude a prohibition on the advertising of alcoholic beverages such as that laid down in Article 2 of the Alkoholreklamlagen, unless it is apparent that, in the circumstances of law and of fact which characterise the situation in the Member State concerned, the protection of public health against the harmful effects of alcohol can be ensured by measures having less effect on intra-Community trade. Costs 43 The costs incurred by the Swedish, French, Finnish and Norwegian Governments and by the E.C. Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. R1 Order On those grounds, THE COURT (Sixth Chamber), in answer to the questions referred to it by the Stockholms Tingsrätt by order of 18 September 1998, HEREBY RULES: Articles 30 and 36 of the E.C. Treaty (now, after amendment, *699 Articles 28 E.C. and 30 E.C.) and Articles 56 and 59 of the E.C. Treaty (now, after amendment, Articles 46 E.C. and 49 E.C.) do not preclude a prohibition on the advertising of alcoholic beverages such as that laid down in Article 2 of Lagen 1978:763 med vissa bestämmelser om marknadsföring av alkoholdrycker (Swedish Law laying down provisions on the Marketing of Alcoholic Beverages), as amended, unless it is apparent that, in the circumstances of law and of fact which characterise the situation in the Member State concerned, the protection of public health against the harmful effects of alcohol can be ensured by measures having less effect on intra-Community trade.

(c) Sweet & Maxwell Limited [2001] 2 C.M.L.R. 31 END OF DOCUMENT