Case Law: Konsumentenombudsmannen v. Gourmet International Products AB, Case C-405/98 (Eur. Ct. J Mar. 8, 2001)

7 Colum. J. Eur. L. 391 (2001)

Evelyne Terryn. Assistant, Center for European Economic Law, Katholieke Universiteit Leuven, Advocaat.

Free movement of goods; Freedom to provide services; Advertising; Selling arrangements, Measures having equivalent effect to quantitative restrictions; Justification in the interest of the protection of health.

I. Facts and Procedure

Sweden has an official policy of moderating alcohol consumption in the interest of public health and safety. The instruments of that policy include a national monopoly on retail sales of alcoholic beverages and a number of restrictions on advertising. The restrictions on advertising of article of the “Alkoholreklamlagen” were involved in the present case. The article provides, in general, that alcoholic beverages should be marketed with particular moderation. This entails, among other things, no advertising on public highways and no direct mailing. In addition, the Alkoholreklamlagen prohibits all advertising for alcoholic beverages on radio or television and satellite broadcasts, and advertising for spirits, wines or strong beers in periodicals or other publications. The ban is, however, somewhat attenuated: alcoholic beverages may be advertised on the internet, in publications solely available at points of sale, in specialised press addressed to traders (manufacturers and restaurateurs), as well as in the editorial content of a publication.

Gourmet International Products (“GIP”) publishes a magazine entitled “Gourmet.” A particular issue, intended for subscribers and not sold in shops, contained advertisements for wines and spirits. The magazine was mainly directed at traders, only ten percent of the subscribers being private individuals. The Consumer Ombudsman, primarily responsible for enforcing Consumer protection legislation, hereupon applied to the Stockholms Tingsrätt (Stockholm District Court) for an injunction restraining GIP from placing advertisements for alcoholic beverages in magazines and for imposition of a fine in case of failure to comply therewith. GIP argued in its defence that the legislation on which the proceedings brought against It were based, was contrary to Community law and more particularly, contrary to the provisions on free movement of goods and freedom to provide services.

The Stockholms Tingsratt stayed the proceedings and asked the European Court of Justice (“ECJ” or Court) for a preliminary ruling on: 1) the compatibility of a general prohibition on alcohol advertising such as that of the Alcoholreklamlagen with the provisions on the free movement of goods (article 28) and the freedom to provide services (article 49) and; 2) the possibility to justify such prohibition in the interest of the protection of life and health of humans.

Another issue of discussion between the parties, namely whether the Gourmet magazine could be regarded as trade journal (90% of its subscribers being traders), for which the general prohibition on advertising for alcoholic beverages does not count, is not directly related with Community law, and was not brought before the ECJ.