C-405/98

GOURMET INTERNATIONAL PRODUCTS

OPINION OF ADVOCATE GENERAL JACOBS delivered on 14 December 2000 1

1. In this reference for a preliminary ruling, injunction restraining Gourmet Interna- Stockholms Tingsrätt (Stockholm District tional Products Aktiebolag (hereinafter Court) asks whether national legislation 'GIP') from publishing advertisements for entailing a general ban on the advertising of alcoholic beverages in a supplement to its alcoholic drinks is in principle precluded by magazine Gourmet. the Treaty prohibitions of quantitative restrictions on imports and/or of restric- tions on freedom to provide services; if so, the 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 propor- tionate in the light of that aim. The retail sales monopoly

3. The State monopoly on retail sales of alcoholic beverages in Sweden has been considered by the Court in the Franzén case, 2 in which a helpful description is The Swedish legislation and the circum- provided.3 The following features are per- stances of the national proceedings haps the most salient for present purposes.

2. Sweden has an official policy of moder- 4. Alcoholic beverages are defined as those ating alcohol consumption in the interests containing more than 2.25% of alcohol by of health and safety. The instruments of volume. Such beverages may be produced, that policy include a national monopoly on imported and/or sold wholesale by persons retail sales of alcoholic beverages for home holding a licence for the relevant purpose. consumption and a number of restrictions With the exception of beer containing less on advertising. In the context of those than 3.5% alcohol, which may be sold in restrictions, the Consumer Ombudsman (Konsumentombudsmannen) is seeking an 2 — Case C-I89/95 Franzén |1997| ECR I-5909. 3 — Sec in particular paragraphs 21 to 26 of the judgment, with a fuller account in paragraphs 2 to 37 of the Opinion of 1 — Original language: English. Advocate General Elmer.

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Advertising restrictions television. The same prohibition applies to satellite broadcasts subject to Law 1966:844 on radio and television.

8. The legislation with which the national court is specifically concerned in the pre- sent case is Article 2 of Law 1978:763 (Lag med vissa bestämmelser om marknadsför- ing av alkoholdrycker, or Alkoholreklamla- gen, hereinafter 'the Alcohol Advertising Commercial advertising may not be used to Law') enacting certain measures governing market spirits, wines or strong beers either the marketing of alcoholic beverages, in periodicals or in other publications which applies 4to the marketing of alco- subject to the Regulation on press freedom holic beverages to individuals by producers and comparable to periodicals by reason of and traders. Alcoholic beverages (contain- their publication schedule. That prohibi- ing over 2.25% alcohol) include spirits, tion does not however apply to publica- wines, strong beers (over 3.5% alcohol) tions distributed solely at the point of sale and beers (between 2.25% and 3.5% of such beverages.' alcohol).

9. Article 2 provides as follows: 10. Under guidelines published by the Swedish Consumer Protection Authority (Konsumentverket) for the implementation of that article, advertising is prohibited in many public places and situations. 'In view of the health risks involved in alcohol consumption, alcoholic beverages should be marketed with particular mod- eration. In particular, advertisements or other marketing measures must not be insistent, involve unsolicited approaches 11. The ban on commercial advertising of or encourage alcohol consumption. alcoholic beverages in the press, on radio or on television is attenuated in a number of ways.

at the hearing that only beverages for sale of Law 1995:450 (Marknadsföringsla- at the outlet in question may be advertised. gen — Law on marketing practices), from Beer with an alcohol content of between which parties may be restrained by injunc- 2.25% and 3.5% may be advertised in tion, with a fine in the event of failure to periodicals, subject to certain limitations comply. Responsibility for seeking or, as the specified in guidelines. From the case-file case may be, issuing such injunctions lies and what was said at the hearing, it further with the Consumer Ombudsman, who in appears that a particular category of 'light this case seeks such an injunction against beer' having an alcohol content of less than GIP from Stockholms Tingsrätt. 2.25% is marketed in Sweden and may be advertised without restriction, and that 'editorial publicity' in periodicals or in radio or television programmes — com- ment 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 mate- rial directly to a consumer at his or her Circumstances of the main proceedings request. Furthermore, since the Alcohol Advertising Law applies only to marketing directed at individuals, there are no restric- tions on advertising in trade journals. It appears, moreover, that alcoholic beverages 15. GIP publishes the periodical Gourmet, may be advertised on the internet. 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% are delivered to businesses in the drinks trade, 35% to other businesses and 10% to private indi- viduals. The subscriber edition, but not the public edition, has a supplement containing 13. However, all advertising which is per- editorial comment and advertisements for mitted must still comply with the require- alcoholic beverages placed by importers. ments of 'particular moderation' laid down The supplement published with Issue 4 in the first paragraph of Article 2. (August-October 1997) contained one page of advertisements for red wines and two pages for whiskies.

17. 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 EC Treaty (now, after amendment, Article 28 EC) in that it '1. Is Article 30 or Article 59 of the Treaty imposes a measure whose effect is equiva- of Rome to be interpreted as precluding lent to a quantitative restriction on imports national legislation entailing a general of goods from other Member States and to prohibition of alcohol advertising, such Article 59 of the EC Treaty (now, after as the prohibition laid down in Arti- amendment, Article 49 EC) in that it cle 2 of Alkoholreklamlagen? 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 dis- agrees. 2. If so, can such a prohibition be regar- ded as justified and proportionate for the protection of life and health of humans?'

18. 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 20. Written observations have been sub- of Gourmet should be regarded as a trade mitted to the Court by the Consumer journal falling outside the scope of the Ombudsman, by GIP, by the Finnish, Swedish prohibition. That question has French, Swedish and Norwegian Govern- apparently not yet been settled by the ments, and by the Commission. GIP, the national court, which on 9 November Finnish, French and Swedish Governments 1998 decided, at the instance of GIP but and the Commission also presented oral contrary to the wishes of the Consumer submissions at the hearing.

22. It seems to me that, in view of the numerous exceptions, there cannot be said to be a total or absolute ban on the — Inclusion within the scope of Article 30 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, whole- saler or retailer and addressed to (potential) consumers in general, as opposed to those who have specifically requested it or are 25. According to the Swedish Government, already in an 'alcohol-purchasing situa- the avowed aim and proclaimed effect of its tion'. alcohol policy is to limit alcohol consump- tion, and there appears to be no dispute over the effectiveness of that policy. 5In 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 23. Another point which may be briefly home consumption. Sales, and thus mentioned is the Commission's suggestion imports, of alcoholic beverages must there- at the hearing to the effect that the fore be affected. advertising ban might be examined primar- ily as a possible restriction on the free movement of periodicals, entailing conse- 5 — Yearly figures given in the publication World Drink Trends quential restrictions on the free movement show that per capita consumption of alcohol in Sweden is the lowest (at around half the average) of all the countries of of alcoholic beverages and the freedom to the European Union; however, there appears also to be evidence of a parallel market in illicit alcohol not reflected provide advertising services. in the statistics.

6 — Case 8/74 Procureur du Roi v Dassoiwille [1974] ECU 837, 8 — Joined Cases C-267/91 and C-268/91 Keck and Mithouard paragraph 5 of the judgment. 119931 ECR 1-6097, paragraph 16 of the judgment. 7 — Directive 98/43/EC of the European Parliament and of the 9 — See Case C-292/92 Hi'mermimd and Others v Landcsapo- Council of 6 July 1998 on the approximation of the laws, tbekerkammer Baden-Württemberg [1993] ECR 1-6787, regulations and administrative provisions of the Memhcr paragraph 22 of the judgment. Case C-412/93 Leclerc- States relating to the advertising and sponsorship of tohacco Siplec v Tri Publicité and M6 Publicité 119951 ECR 1-179, products, O J 1998 L 213, p. 9, recently annulled by the paragraph 22, and Joined Cases C-34/95, C-35/95 and Court in its judgment of 5 October 2000 in Case C-376/98 C-36/95 Konsumentombudsmannen v Oc Agostini and TV- Germany v Parliament and Council (2000] ECR 8419. Shop [1997] ECR 1-3843, paragraph 39.

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31. The legal situation, however, does not the same as for their strong beers) and thus appear to be reflected in fact — and, as the gain an advantage over brewers of Court has consistently recognised since its imported beer, who generally do not pro- Dassonville judgment, the actual or poten- duce a light beer. tial impact on market access in fact is crucial for the application of Article 30 of the EC Treaty.

34. It might be argued that these are 32. It is true that the Swedish Government matters of fact for the national court to points to a constant increase in sales of decide, but it seems to me inherent in any wines (overwhelmingly imported, princi- rule which prevents producers from adver- pally from other Member States) and a tising directly to the public that it will constant decrease in spirit sales (with an disproportionately affect imported pro- increase in the proportion of imported ducts — and will at any rate 'prevent their whiskies as opposed to Swedish-produced access to the market or... impede access... vodkas), the changing balance reflecting more than it impedes the access of domestic one of the aims of the legislation to wean products'. 10 consumers away from stronger beverages.

36. The truth of that assumption is, I think, ducts. It is quite plausible — as in an self-evident. A consumer who is unaware of incident cited anecdotally by counsel for alternatives to the products he or she is in GIP at the hearing — that producers in the habit of purchasing is unlikely to go to other Member States will be discouraged any great lengths to discover whether such from even attempting to penetrate the alternatives exist and is thus likely to Swedish market. 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 38. I am therefore satisfied that the adver- advertising directly to customers will have tising restrictions in issue not only are a restrictive effect on trade; in that regard, capable of hindering intra-Community the duty of impartiality imposed on System- trade but also in fact affect the marketing bolaget is insufficient to overcome the of domestic products differently from those inertia of settled purchasing patterns, par- from other Member States and impede ticularly as customer demand is one of the market access for the latter more than they criteria on which it must base the selection impede the access of domestic products. of its products. That being so, the Keck and Mithonard exception could not in any event apply.

— Justification on public health grounds

cular to... the protection of public health' 12 of voluntary codes, and those in Sweden provided that the measure applies without and Finland appear to be the most severe. 15 distinction to both national and imported In the field of television, the 'television products. However, as the Court pointed without frontiers' directive 16 contains out in Aragonesa, 13 there is no need to stringent criteria as regards the advertising consider Article 30 in that light where (as of alcoholic beverages. As pointed out by here) the justification offered is the protec- the Swedish and Finnish Governments, tion of public health, since Article 36 of the advertising restrictions are included among EC Treaty provides for such a justification the aims of the European Alcohol Action whether the measure is discriminatory or Plan drawn up by the World Health not. 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. 41. 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 — Proportionality 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. 14 43. In the present state of Community law, in which there are no common or harmo- nised 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 42. All Member States, moreover, apply afford to public health and on the way on restrictions of some kind on alcohol adver- which that protection is to be achieved. 17 tising, although in some they take the form 15 — See Overview of national alcohol policies in the 15 countries of the European Union, published by the Société 12 — Case 120/78 Rewe v Bundesmonopolverwaltung für Française de Santé Publique and the European Commis- Branntwein [1979] ECR 649, paragraph 8 of the judg- sion, October 1998. ment. 16 — Council Directive 89/552/EEC of 3 October 1989 on the 13 —Joined Cases C-1/90 and C-176/90 Aragonesa de Publici- coordination of certain provisions laid down by law, dad Exterior and Bublima [1991] ECR I-4151, paragraph regulation or administrative action in Member States 13 of the judgment. concerning the pursuit of television broadcasting activities, OJ 1989 L 298, p. 23; see in particular Article 15. 14 — Cited above in note 2; see paragraph 76 of the judgment and the case-law cited there. 17 — Aragonesa, cited in note 13, paragraph 16 of the judgment.

46. Essentially, the Consumer Ombudsman and all the governments which have sub­ mitted 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 49. The aim of the restrictions is to reduce in achieving the stated aim of reducing alcohol consumption. I do not consider that individual and overall alcohol consumption it can be argued that a ban such as the one in Sweden. in issue does not contribute to the achieve­ ment of that aim, although there appears to be no scientific agreement as to the precise effects of advertising on alcohol consump­ tion as opposed to brand-switching.19 The crucial question is, however, whether a less 47. GIP and the Commission, however, consider that the stated aim could be 19 — The 10th Special Report to the US Congress on Alcohol and Health producēdby the National Institute on Alcohol Abuse and Alcoholism — a Federal Government body set 18 — See, most recently, the judgment of 11 July 2000 in Case up to study the causes, consequences, treatment, and C-473/98 Kemikalieinspektion v Toolex Alpha [2000] prevention of alcoholism and alcohol-related problems — ECR I-5681, paragraph 40, and, with specific regard to the examines a large number of experimental surveys and protection of human health against the harmful effects of investigations into the effects of alcohol advertising and alcohol, Aragonesa, cited in note 13, at paragraphs 14 and concludes that, other than perhaps in the case of children 16 of the judgment, Franzén, cited in note 2, at paragraph and young people, there is 'little consistent evidence that 75, and Case C-394/97 Heinonen [1999] ECR I-3599, alcohol advertising affects drinking beliefs and beha­ paragraph 36. viours'. Some sources, however, do report a link.

53. It would seem, for example, justified in the light of the aims sought to ban adver- 51. Against that background, what restric- tising which portrays heavy drinking in a tions on advertising are justified? Some are, favourable light or which is specifically without doubt. It seems eminently reason- likely to encourage the drinking of alcohol able to seek, for example, to protect rather than other beverages. Instances children and young people who do not yet might include advertisements which associ- consume alcohol and who, by reason of ate alcohol with health, happiness, prosper- their age, would be particularly susceptible ity, success, elegance, sophistication, sexual to its adverse effects from the possible attractiveness or similarly desirable attri- influence of advertisements for alcoholic butes. Such limitations would appear to be beverages. Any ban on alcohol advertising covered by the obligation of 'particular

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moderation' in advertising, which itself 3.5% alcohol are not very high. More seems perfectly proportionate. Equally, importantly, it may be wondered whether having regard to a different type of danger this type of restriction is effective where to human health and life than that caused producers are able (as seems to be the case directly to the drinker, it might seem wholly for Swedish brewers) to circumvent its aim justified to impose a ban on the advertising by using the same brand name for bev- of alcohol in publications devoted to erages both below and above the threshold. motoring.

55. A further type of justified limitation might concern advertisements for drinks over a certain alcoholic strength, likely to be more damaging to health. Such restric- 57. I am not convinced, however, that it is tions are in force in several Member States. either necessary or effective, in the light of In Aragonesa, 20 the Court held that a the aim of reducing lawful alcohol con- criterion of 23% alcohol did not appear sumption by adults, to impose a ban on all manifestly unreasonable as part of a cam- commercial advertising of alcoholic bev- paign against alcoholism, although the erages in all media directed at the general precise alcoholic strength which will con- public, bearing in mind that such adver- stitute a proportionate criterion may vary tisements must in any event display 'parti- according to specific circumstances and cular moderation'. Many sections of the drinking habits in the Member State in media are unlikely to come to the attention question. In that regard, it may be noted of children and young people — who are, that the Swedish thresholds of 2.25% and moreover, unlikely to seek out such pub- lications simply in order to experience the thrill of reading a 'particularly moderate' 20 — Cited in note 13, at paragraph 17 of the judgment. advertisement for an alcoholic beverage (in

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61. My view that, in so far as it relates to 59. A copy of the offending issue of certain sections of the media and in parti- Gourmet has been provided by the national cular to the specialist press for those court. It is a magazine devoted principally interested in food and wine, the ban on to food and drink. It contains, inter alia, direct commercial advertising is ineffective what is apparently perfectly legal editorial for the purpose for which it is expressly comment on alcoholic beverages. In addi- intended — and thus excessive and incap- tion to the three full-page advertisements of able of justification under Article 36 of the which the Consumer Ombudsman com- EC Treaty — is buttressed by several of plains, we find a seven-page feature on the other factors stressed by GIP and the strong beers, with photographs of brand Commission. 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 62. The lack of any prohibition on editorial has presumably made a conscious choice to publicity seems to me to weaken consider- read the magazine unless it is common in ably the effect of a ban on commercial dentists' waiting rooms — will be incited advertising. On the one hand, commercial to drink alcohol to any greater extent as the advertising must in any event be particu- result of the presence of commercial adver- larly moderate; on the other, journalists tising material than he or she would writing about alcoholic beverages may tend otherwise have been after reading the to wax lyrical. Moreover, editorial com- editorial content. ment may carry more authority in the mind

64. I therefore consider that, viewed in the light of Articles 30 and 36 of the EC Treaty, a ban in one Member State on the com- mercial advertising of alcoholic beverages directly to the general public amounts to a 66. The restriction in issue here concerns measure equivalent to a quantitative GIP's freedom to provide the service of restriction on imports; it is none the less making commercial advertising space avail-

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able to advertisers of alcoholic beverages existence of an identifiable recipient cannot who are established in other Member be a condition for the application of States. Article 59.

69. It is thus in my view clear that a rule 67. That is sufficient in order for Article 59 under which a publisher may be restrained to apply. Whilst a cross-border element in from offering advertising space to adver- the service is necessary, 21 the alleged tisers established in other Member States is restriction need not concern the advertising such as to restrict that publisher's freedom of alcoholic beverages produced in other to provide cross-border services. The same Member States — in fact, for these pur- restriction must presumably affect advertis- poses, the product advertised might even be ing agencies established in the Community of purely Swedish origin. which seek to provide producers of alco- holic beverages with the service of adver- tising in the Swedish periodical press.

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those of other Member States alike, which Human Rights, which guarantees freedom is liable to prohibit, impede or render less of expression for everyone. 25 This aspect of advantageous the activities of a provider of the case has not been debated before the services established in another Member Court, nor do I consider it necessary to State where he lawfully provides similar analyse it in order to reach a conclusion in services'. 23 It is further clear from the this case. judgment in Alpine Investments24 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 excep- tion laid down in Keck and Mithouard. 74. None the less, 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 72. In those circumstances, I have no mean that the incompatibility with Arti- difficulty in concluding that the prohibition cle 59 of the EC Treaty must be viewed in issue is caught by Article 59. with particular seriousness.

— Freedom of expression — Justification on grounds of public health

nationals on grounds of public policy, for example — another case involving a public security or public health'. restriction affecting would-be service pro- viders 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. 27 76. 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 79. In that regard, the objective of limiting scope of Article 59. alcohol consumption is again clearly a matter of sufficient public interest to be capable of justifying certain restrictions on the freedom to provide services. Restric- tions on advertising have, moreover, been accepted by the Court as capable of being justified on grounds of public interest. 28 77. 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 none the less restricted the cross-border provi- 80. Again, however, any such restrictions sion of services could not. must, in order to be justified, be appro- priate to achieve the intended aim and must not go beyond what is necessary for that purpose. 29 For the reasons I have given above in my analysis of the situation under Article 36 of the EC Treaty, I consider that, when viewed in the overall context, a ban 78. Indeed, in parallel to what has been on the commercial advertising of alcoholic called its 'rule of reason' case-law in beverages in all publications intended for relation to the free movement of goods, the general public does appear to go starting with the Cassis de Dijon judg- beyond what is necessary to achieve the ment, 26 the Court has also developed a stated aim of the Swedish authorities. judicial test under which a non-discrimina- tory restriction on the freedom to provide services may escape the prohibition in 27 — Cited in note 22; see paragraphs 35 and 40 et seq. of the Article 59 of the EC Treaty if it is objec- judgment. 28 — See, in particular, Case C-288/89 Collectieve Antenne- tively justified in pursuance of a legitimate voorziening Gouda and Others v Commissariat voor de public interest. Thus, in Alpine Investments Media [1991] ECR I-4007, paragraphs 23 and 27 of the judgment, and Case C-6/98 ARD v Pro Sieben [1999] ECR I-7599, paragraph 50. 29 — See, for example, Collectieve Antennevoorziening Gouda, paragraph 15 of the judgment, Alpine Investments, cited in 26 — See paragraph 40 above. note 22, paragraph 45, and ARD, paragraph 51.