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European Court of Justice: Swedish retail sales monopoly case (latest developments)

Klas Rosengren and others (hereafter called Rosengren) ordered Spanish wine advertised on a Danish website, some of it by mail-order and some directly from the producer.

The wine, which was paid for through two Swedish postal giro account numbers, was imported into Sweden by a private carrier engaged by Mr Rosengren without being declared at customs. It was then confiscated in Göteborg.

Mr Rosengren challenged the confiscation in Göteborg's Tingsrätt (District Court), which upheld it, however, since the wine had in its view been illegally imported into Sweden contrary to the ban on private imports imposed by the Alcohol Law.

Following an unsuccessful appeal against that judgment to the Hövrätten för Välstra Sverige (Court of Appeal for Western Sweden), Mr Rosengren then took his case to the Hogsta Domstolen. That court had doubts as to the compatibility of the prohibition in Chapter 4, Article 2, of the Alcohol Law with Articles 28 and 31 CE and so decided to stay the proceedings and refer the questions for a preliminary ruling.

In particular, the national court wishes to know whether a prohibition of this nature falls to be scrutinised under Article 31 EC on national commercial monopolies or under Article 28 EC, which prohibits all quantitative restrictions and measures having equivalent effect, and whether it is compatible with whichever one of those provisions is deemed to apply.

The case is of interest for the reason that the ruling will contribute to the knowledge about how far the MS can use measures for the intention of public health, measures that also affects the right to free trade within the EU. If the Courts opinion goes against the Swedish government, the consequence will be that the monopoly must compete against private import and in that way the effectiveness of the monopoly will be challenged.

In March 2005 the General Advocate gave his opinion to the Court of Justice. The opinion was in favour of the arguments put forward by the Swedish government. The judges though found the questions being of such importance that the case was forwarded to the Court in plenary.

The process has consequently been restarted and the first step was an open oral hearing on the 19.september. It's expected that the General Advocate will give his opinion to the Court of Justice within 3 months and that the Court will rule within another 4 months.

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