1. 

In Finland, the protection of the environment and of public health are guaranteed, inter alia, by two bodies of rules.

2. 

First, under the Law on excise duty on certain beverage packaging, beverage packaging is exempt from the payment of that duty if it is part of a functioning return system whereby beverage packaging is reused or recycled.

3. 

Secondly, the Law on alcohol gives Alko Oy (‘Alko’), a State-owned alcoholic beverage retailer, a monopoly on the retail sale of alcoholic beverages and makes, in particular, the import of certain alcoholic beverages intended for retail sale subject to obtaining a retail licence.

4. 

By this request for a preliminary ruling, the Helsingin hovioikeus (Helsinki Court of Appeal, Finland) asks the Court whether the first of those laws should be assessed in the light of Articles 34 TFEU or 110 TFEU, and whether the second law should be assessed in the light of Articles 34 TFEU or 37 TFEU.

5. 

The referring court also asks the Court whether those articles, along with Articles 1(1), 7 and 15 of Directive 94/62/EC, ( 2 ) should be interpreted as precluding such legislation.

6. 

This request has been made in the course of a dispute between Mr Visnapuu, acting on behalf of European Investment Group OÜ (‘EIG’), and Kihlakunnansyyttäjä (Helsinki) (Helsinki District Prosecutor) and Suomen Valtio — Tullihallitus (Finnish State — Customs Administration), regarding the imposition of excise duty on alcoholic beverage packaging which is not part of a return system and the requirement for a retail licence for the import and retail sale of those alcoholic beverages.

7. 

In this Opinion, first, I shall set out the reasons why I consider that national legislation such as that at issue in the main proceedings, under which certain beverage packaging is exempt from the payment of excise duty provided that it is part of a return system, must be assessed in the light of Article 110 TFEU and must be held to be compatible with Article 110 TFEU and with Articles 1(1), 7 and 15 of Directive 94/62/EC.

8. 

Secondly, I shall show that national legislation such as that at issue in the main proceedings, which establishes a retail monopoly and makes the import of certain alcoholic beverages intended for retail sale subject to obtaining a retail licence, must be assessed in the light of Article 37 TFEU and that the latter should be interpreted as not precluding such legislation, provided that the organisation and operation of that monopoly are managed in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States, so that trade in goods from other Member States is not placed at a disadvantage, in law or in fact, in relation to trade in domestic goods, a matter which it will be for the national court to determine.

9.

In accordance with Article 34 TFEU, ‘[q]uantitative restrictions on imports and all measures having equivalent effect, [ ( 3 )] shall be prohibited between Member States’.

10.

Article 37(1) TFEU provides:

‘Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.

The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others.’

11.

Article 110 TFEU is worded as follows:

‘No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.’

12.

According to Article 1(1) of Directive 94/62:

‘This Directive aims to harmonise national measures concerning the management of packaging and packaging waste in order, on the one hand, to prevent any impact thereof on the environment of all Member States as well as of third countries or to reduce such impact, thus providing a high level of environmental protection, and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the Community.’

13.

Article 7 of that directive, entitled ‘Return, collection and recovery systems’, provides:

‘1.   Member States shall take the necessary measures to ensure that systems are set up to provide for:

in order to meet the objectives laid down in this Directive.

These systems shall be open to the participation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty.

2.   The measures referred to in paragraph 1 shall form part of a policy covering all packaging and packaging waste and shall take into account, in particular, requirements regarding the protection of environmental and consumer health, safety and hygiene ...’.

14.

Under Article 15 of that directive, entitled ‘Economic instruments’:

‘Acting on the basis of the relevant provisions of the Treaty, the Council adopts economic instruments to promote the implementation of the objectives set by this Directive. In the absence of such measures, the Member States may, in accordance with the principles governing Community environmental policy, inter alia, the “polluter-pays” principle, and the obligations arising out of the Treaty, adopt measures to implement those objectives.’

15.

In accordance with Paragraph 5 of Law No 1037/2004 on excise duty on certain beverage packaging (Laki eräiden juomapakkausten valmisteverosta (1037/2004), ‘the Law on excise duty on certain beverage packaging’), excise duty is set at EUR 0.51 per litre of packaged product.

16.

Paragraph 6 of that law provides for some exemptions to excise duty. Under point (1) of the first subparagraph of Paragraph 6, beverage packaging which is part of a functioning return system referred to in point (2) of the first subparagraph of Paragraph 3 of that law ( 4 ) is exempt from excise duty.

17.

Paragraph 1 of Law No 1143/1994 on alcohol (alkoholilaki (1143/1994), ‘the Law on alcohol’) states that the aim of that law is to prevent the negative effects of alcohol on society, social life and health by controlling the consumption of alcohol.

18.

The first subparagraph of Paragraph 8 of that law, entitled ‘Import of alcoholic beverages and ethyl alcohol and authorisation to import ethyl alcohol’ provides that:

‘Alcoholic beverages for personal use or for commercial or business uses may be imported without a special licence. Import for personal consumption is provided for in Paragraph 10. A person using alcoholic beverages for commercial or business purposes requires for his activities the special licence provided for in this Law in order to import alcoholic beverages ...’.

19.

The first subparagraph of Paragraph 13 of the Law on alcohol provides that, save for the exceptions provided for in Paragraph 14 of the law, Alko has the monopoly on the retail sale of alcoholic beverages.

20.

Paragraph 14 of that law, relating to ‘[r]etail licences’, provides in the first and second subparagraphs:

‘It is permitted not only for the State-owned company, but also for any person who has obtained a retail licence from the competent authority to engage in the retail sale of fermented alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol.

In addition to the State-owned company, any person may engage in the retail sale of fermented alcoholic beverages containing a maximum of 13% by volume of ethyl alcohol if the competent authority has granted him permission to produce the product in question, on the conditions laid down by the Ministry of Social Affairs and Health.’

21.

It is clear from the order for reference that EIG, a company registered in Estonia, maintained the website www.alkotaxi.eu, from which various brands of beverages with low or high alcohol contents could be purchased. For some of its customers, EIG arranged home delivery of the alcoholic beverages they purchased.

22.

It is not disputed that, between 24 June and 18 August 2009, ( 5 ) EIG failed to fulfil certain obligations under Finnish law when the alcoholic beverages were shipped to Finland. ( 6 )

23.

EIG failed to pay EUR 23144.89 in excise duty on alcoholic beverages when importing those goods into Finland, and EUR 5233.52 in excise duty on certain beverage packaging for the retail packaging. The latter excise duty is payable when the packaging is not part of a return system, which was the case for the beverages at issue in the main proceedings.

24.

Moreover, Mr Visnapuu, acting on behalf of EIG, imported alcoholic beverages and delivered them to the homes of some Finnish buyers without having obtained a retail licence for that import.

25.

The Kihlakunnansyyttäjä (Helsinki) brought proceedings against Mr Visnapuu for serious tax evasion and infringement of the Law on alcohol.

26.

By its judgment of 26 September 2012, the Helsingin käräjäoikeus (Court of First Instance, Helsinki) imposed on Mr Visnapuu an eight-month suspended prison sentence and ordered him to pay EUR 28378.40 to Suomen Valtio for the unpaid taxes together with interest.

27.

Mr Visnapuu has appealed against that decision. He claims, first, that the Law on excise duty on certain alcoholic beverage packaging is indirectly discriminatory and therefore contrary to Article 110 TFEU. Secondly, he claims that the Law on alcohol, under which the import of certain alcoholic beverages is subject to a requirement for a retail licence, constitutes a quantitative restriction on imports, or a measure having equivalent effect (MEE), and is, consequently, contrary to Article 34 TFEU. Moreover, in his view, there is no justification under Article 36 TFEU.

28.

The Kihlakunnansyyttäjä (Helsinki) and Suomen Valtio — Tullihallitus maintain, on the other hand, that neither the Law on excise duty on certain beverage packaging nor the Law on alcohol are contrary to EU law.

29.

According to the Kihlakunnansyyttäjä (Helsinki), the Law on excise duty on certain beverage packaging should be assessed in the light of Article 110 TFEU and is also compatible with that article. It takes the view that the Law on alcohol should be assessed in the light of Article 37 TFEU instead of Article 34 TFEU.

30.

It was in that context that the Helsingin hovioikeus decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

31.

The questions asked by the referring court relate to two distinct Finnish laws.

32.

The first four questions relate to the Law on excise duty on certain beverage packaging, while the fifth to eighth questions concern the Law on alcohol. First, I shall examine the first four questions together before addressing the fifth to the eighth questions.

33.

Although these two laws are distinct, it should be noted that the situation at issue in the main proceedings is the same.

34.

It is clear from the documents before the Court that Mr Visnapuu sold alcoholic beverages via the Internet and then delivered them directly to Finnish buyers. As indicated, Mr Visnapuu has not disputed those facts, which must, therefore, be regarded as proven. That being so, should Mr Visnapuu be regarded as a distance seller who imported those alcoholic beverages into Finland and retailed them?

35.

In the light of the documents before the Court, this must be answered in the affirmative.

36.

As noted by the Finnish Government in its written observations, where a distance seller such as Mr Visnapuu transports and delivers alcoholic beverages to Finnish buyers himself, it should be considered that that seller has made a retail sale in Finland under the Law on alcohol. However, where ownership of those alcoholic beverages has been transferred in another country, after which the actual person placing the order or a courier unconnected to the seller delivers those alcoholic beverages in Finland, the sale should be considered to have taken place outside Finland.

37.

It is clear from the documents before the Court that that interpretation of the Law on alcohol is based on guidelines and communications adopted by the Finnish authorities. It is, notably, the national court which refers to those texts when setting out, in its order for reference, the applicable national provisions.

38.

In the present case, the answer seems beyond doubt. After all, in sales of tangible goods such as those bought by Mr Visnapuu, namely generic goods, the transfer of ownership resulting from the sale is made when the goods are delivered. Since delivery took place in Finland, it was actually in Finnish territory that the sale was legally perfect.

39.

Accordingly, it should be regarded as a fact that, in the present case, Mr Visnapuu imported and retailed alcoholic beverages.

40.

It is in the light of that situation that I shall examine the questions referred by the national court.

41.

By its first four questions, which should be examined together, the referring court asks the Court, in essence, whether national legislation such as the Law on excise duty on certain beverage packaging, under which beverage packaging duty is levied if the packaging is not part of a return system, falls within the scope of Article 110 TFEU or Article 34 TFEU and, if that be the case, whether that legislation is compatible with one or other of those articles.

42.

The referring court also asks the Court whether such legislation is compatible with Articles 1(1), 7 and 15 of Directive 94/62.

43.

In order to provide an answer which will be of use to the referring court, I shall examine, first, the question concerning the classification of the Law on excise duty on certain beverage packaging. Does that law constitute a quantitative restriction or an MEE under Article 34 TFEU or should it be classed as ‘internal taxation’ pursuant to Article 110 TFEU?

44.

Secondly, I shall analyse whether that law is compatible with the relevant provisions of Directive 94/62 and Article 110 TFEU.

45.

First, it should be noted that the TFEU contains three sets of provisions prohibiting obstacles to trade in goods between Member States: Articles 28 TFEU and 30 TFEU, 34 TFEU to 36 TFEU and 110 TFEU. ( 7 )

46.

The question regarding the applicability of Articles 28 TFEU and 30 TFEU in relation to, in particular, customs duties on imports and charges having equivalent effect, was neither raised by the referring court nor referred to in the written observations.

47.

For the sake of completeness, I shall briefly set out the reasons why I consider those provisions not to be applicable.

48.

Obviously, the excise duty at issue in the main proceedings does not constitute a customs duty in the strict sense.

49.

However, it is settled case-law that any pecuniary charge, even if it is minimal, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 28 TFEU and 30 TFEU. ( 8 )

50.

It is clear from the documents before the Court that the excise duty at issue in the main proceedings applies to certain beverage packaging which is not part of a return system in Finland. In other words, only beverage packaging which is part of a return system is exempt from excise duty.

51.

Accordingly, the disputed levy is charged on that beverage packaging not because it crosses a frontier but by reason of the fact that it is not part of a return system. In those circumstances, the excise duty provided for in the Law on excise duty on certain beverage packaging does not constitute a charge having an effect equivalent to a customs duty.

52.

While the applicability of Articles 28 TFEU and 30 TFEU can be excluded in the present case, it remains to be determined whether Articles 34 TFEU and 110 TFEU are applicable.

53.

Mr Visnapuu, the Finnish Government and the European Commission all argue, in their written observations, that it is not Article 34 TFEU but Article 110 TFEU which is applicable to the Law on excise duty on certain beverage packaging. ( 9 )

54.

I share that view.

55.

In that connection, it should be noted that under Article 34 TFEU, all quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. The Court has adopted a broad interpretation of the concept of measures having equivalent effect, holding that all national measures which are ‘capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’ ( 10 ) constitute measures having equivalent effect.

56.

Under Article 110 TFEU, it is prohibited to impose on the products of other Member States any internal taxation in excess of that imposed on similar domestic products, or any internal taxation of such a nature as to afford indirect protection to other products. ( 11 ) Contrary to what is provided for in Article 34 TFEU, the prohibition under Article 110 TFEU is not of internal taxation as such but of its discriminatory or protective effect, so that it is sufficient to eliminate that discriminatory or protective element in order to comply with Article 110 TFEU. ( 12 )

57.

In addition, a national measure caught by Article 34 TFEU may be justified, and thus escape the prohibition, on any of the grounds set out in Article 36 TFEU and in the case-law of the Court. However, such scope for justification is not provided for in the context of the application of Article 110 TFEU.

58.

It follows from the foregoing that Articles 34 TFEU and 110 TFEU clearly differ as regards their scope and the consequences flowing from their application.

59.

In that context, it is not surprising that the Court has held that the scope of Article 34 TFEU does not extend to the obstacles to trade covered by other specific provisions of the TEU and that obstacles of a fiscal nature or having an effect equivalent to customs duties which are covered by Articles 28 TFEU, 30 TFEU and 110 TFEU are not caught by the prohibition laid down in Article 34 TFEU. ( 13 )

60.

Accordingly, like Articles 28 TFEU and 30 TFEU, Article 110 TFEU must be regarded as a lex specialis, whereas Article 34 TFEU, which is very broad in scope and serves something of the purpose of a safety net, should be regarded as a lex generalis. ( 14 ) Furthermore, only one of Articles 30 TFEU, 34 TFEU or 110 TFEU can apply to any given national measure. ( 15 )

61.

In the light of the foregoing considerations, it is necessary, first of all, to examine whether the Law on excise duty on certain beverage packaging falls within the scope of Article 110 TFEU and, only if the answer is negative, whether that law falls within the scope of Article 34 TFEU. ( 16 )

62.

Like the Commission, I take the view that the excise duty at issue in the main proceedings is clearly of a fiscal nature. It should be borne in mind that the excise duty in question is paid to Suomen valtio on certain beverage packaging.

63.

Moreover, it is clear from the documents before the Court that that excise duty applies irrespective of the place of origin or the purpose of the beverage packaging. It should be recalled that the duty applies systematically to certain beverage packaging according to objective criteria, namely per litre of packaged product and where the packaging is not part of a return system.

64.

Accordingly, a fiscal charge such as that at issue in the main proceedings, which is levied not by reason of the fact that goods cross a frontier of the Member State which introduced it, but on account of the fact that the goods are not part of a return system when they are placed on the market, and which applies both to imported goods and to goods produced in that Member State comes, in my opinion, under a general system of internal taxation and must therefore be examined in the light of Article 110 TFEU. ( 17 )

65.

In so far as I take the view that the tax measure at issue in the main proceedings must be assessed in the light of Article 110 TFEU, it is not necessary to examine it in the light of Article 34 TFEU.

66.

As the Commission correctly points out in its written observations, a preliminary question arises. Have Articles 1(1), 7 and 15 of Directive 94/62 been the subject of exhaustive harmonisation, so that the Law on excise duty on certain beverage packaging should be assessed solely in the light of those provisions?

67.

That question is important in so far as it is clear from settled case-law that where a sphere has been the subject of exhaustive harmonisation at EU level any national measure relating thereto must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty. ( 18 )

68.

I share the Commission’s view that the harmonising effect of Directive 94/62 remains limited in the field of the organisation of return systems for beverage packaging. ( 19 )

69.

In that connection, the Court has held that ‘[i]n contrast to the position in respect of the marking and identification of packaging and the requirements on the composition of packaging and its capacity to be reused or recovered, governed by Articles 8 and 11 of Directive 94/62 and Annex II thereto, the organisation of national systems intended to encourage the reuse of packaging is … not the subject of complete harmonisation’. ( 20 )

70.

Admittedly, Article 7(1) of Directive 94/62, as well as establishing that Member States are required to take the necessary measures to set up return, collection and recovery systems, regulates the organisation of those systems. ( 21 )

71.

However, it is clear from the wording of that provision that Member States have a degree of latitude in the actual organisation of those systems. It is provided, in general terms, that such systems also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems. Furthermore, that provision then refers expressly to the TFEU, stating that the return systems must be designed so as to avoid barriers to trade or distortions of competition ‘in conformity with the Treaty’.

72.

Moreover, Article 15 of Directive 94/62 relating to ‘[e]conomic instruments’ leaves a broad discretion to the Member States as to the choice of those instruments. According to Article 15, in the absence of harmonised measures, the Member States may, in accordance with the principles governing EU environmental policy, inter alia the ‘polluter-pays’ principle, and the obligations arising out of the TFEU, adopt measures to implement the objectives of that directive.

73.

It should be borne in mind that that directive ‘aims to harmonise national measures concerning the management of packaging and packaging waste in order, on the one hand, to prevent any impact thereof on the environment of all Member States as well as of third countries or to reduce such impact, thus providing a high level of environmental protection, and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the Community’. ( 22 )

74.

In the present case, as pointed out by the Finnish Government at the hearing, the excise duty at issue in the main proceedings was adopted on the basis of Article 15 of Directive 94/62, and more specifically in accordance with the ‘polluter-pays’ principle.

75.

It follows from the foregoing that since the relevant provisions of that directive have not been the subject of exhaustive harmonisation, a national system for the management of packaging based on imposing an excise duty, such as that at issue in the main proceedings, must be assessed in the light of the first indent of Article 110 TFEU. ( 23 )

76.

In that regard, I note that the aim of Article 110 TFEU is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States. ( 24 ) Thus Article 110 TFEU has to ensure the complete neutrality of internal taxation as regards competition between domestic products and imported products. ( 25 )

77.

According to settled case-law, a Member State’s system of taxation may be considered compatible with Article 110 TFEU only if it is so arranged as to exclude any possibility of imported products being taxed more heavily than similar domestic products, so that it cannot in any event have discriminatory effect. ( 26 )

78.

The Court has also stated that Article 110 TFEU must be interpreted widely so as to cover all taxation procedures which, directly or indirectly, undermine the equal treatment of domestic products and imported products. The prohibition which it lays down must therefore apply whenever a fiscal levy is likely to discourage imports of goods originating in other Member States to the benefit of domestic production. ( 27 )

79.

I note that the taxation regime established by the Law on excise duty on certain beverage packaging does not explicitly differentiate beverage packaging according to its origin.

80.

It is clear from the documents before the Court that the excise duty at issue in the main proceedings is payable on national and imported products, subject to the same conditions and on the same terms. It should be recalled that, in this case, all beverage packaging, imported or national, is subject to an identical excise duty and that exemption from that excise duty is granted to imported or national packaging where it is part of a return system. Accordingly, as pointed out by the Finnish Government in its written observations, both the conditions under which the excise duty at issue in the main proceedings is payable and the conditions under which an exemption from that duty may be granted are the same for foreign and national operators.

81.

In addition, the Finnish Government pointed out at the hearing that the collection, transport and recycling of beverage packaging which is not part of a return system are very costly and that, in accordance with the ‘polluter-pays’ principle, those costs should be borne by the operators who choose not to participate in a return system. In that context, the excise duty was introduced as an incentive and was fixed by the Finnish Government at a level sufficient to generate significant revenue for environmental protection. ( 28 )

82.

Like the Commission, I take the view that, as a means of incentivising recycling, reuse or refilling, the excise duty is in line with the above-mentioned aims of Article 1 of Directive 94/62 to reduce the environmental impact of packaging waste.

83.

However, even if the conditions for direct discrimination are not met, internal taxation may be indirectly discriminatory as a result of its effects. ( 29 )

84.

According to Mr Visnapuu, an excise duty such as that at issue in the main proceedings is indirectly discriminatory.

85.

First, in his opinion, there are numerous obstacles to foreign operators joining the return system, so that, during the period at issue, it was impossible for EIG to join that system.

86.

Those obstacles include, in particular, the fact that only one of the existing systems accepts foreign operators and the need to print a Finnish European Article Numbering (EAN) code ( 30 ) on the packaging, which would entail the manufacture of specific packaging for the Finnish market. At the hearing, Mr Visnapuu pointed out that joining the return system is impossible, primarily on account of the significant costs that are incurred by importers in order to do so. ( 31 ) It is not, therefore, economically viable for a small or medium-sized operator to join such a system.

87.

Secondly, Mr Visnapuu considers that in practice it is impossible for a foreign operator, such as EIG, to set up its own return system on account of the requirements in terms of minimum quotas, the proper functioning of the system and proving that the system is functioning properly.

88.

Therefore, according to Mr Visnapuu, the fact that it is impossible for an importer either to join a return system or to set such a system up, given that exemption from the excise duty is dependent on belonging to such a system, has the consequence that that excise duty is imposed, in practice, only on imported products and is therefore contrary to Article 110(1) TFEU.

89.

In that regard, I note that it is clear from the documents before the Court that, in this case, the conditions for joining a return system are equally applicable to all operators, foreign or national. ( 32 ) Accordingly, a small or medium-sized operator would, like an importer such as Mr Visnapuu, have to fulfil the conditions for joining a return system and would therefore, in particular, incur the same joining fees should he decide to join. ( 33 )

90.

It follows, as correctly pointed out by the Finnish Government, that foreign and national operators have the same opportunity to join the national return system in order to avoid paying excise duty on beverage packaging.

91.

As to the possibility of setting up his own system, I also do not see how a foreign operator such as Mr Visnapuu would be at a disadvantage compared to a national operator in so far as a national operator is subject to the same requirements.

92.

The foregoing considerations indicate, in my view, that, a priori, the conditions for joining the return system or for setting up such a system are not indirectly discriminatory.

93.

The same holds true as regards the compliance with Article 7 of Directive 94/62 of the Law on excise duty for certain beverage packaging regarding the return system for beverage packaging. ( 34 )

94.

In view of all the foregoing considerations, I take the view that national legislation such as the Law on excise duty on certain beverage packaging, under which certain beverage packaging is exempt from the payment of that duty provided that it is part of a return system, must be assessed in the light of Article 110 TFEU. That article along with Articles 1(1), 7 and 15 of Directive 94/62 must be interpreted as not precluding that legislation.

95.

Since I have concluded that Article 34 TFEU is inapplicable, it is not necessary to answer the third and fourth questions referred by the national court.

96.

By its fifth to eighth questions, which should also be examined together, the referring court asks the Court, in essence, whether, in a situation where a Finnish buyer has purchased, by a method of distance selling, alcoholic beverages from a seller which operates in a Member State other than the Republic of Finland and delivers them in Finland, a national measure such as that laid down in the first subparagraph of Paragraph 8 of the Law on alcohol, under which the import of alcoholic beverages for commercial purposes is subject to obtaining a special licence, should be assessed in the light of Article 34 TFEU or Article 37 TFEU and whether that measure should be regarded as being compatible with one or other of those articles, as the case may be.

97.

It is clear from the order for reference that the referring court is specifically asking the Court whether the first subparagraph of Paragraph 8 of the Law on alcohol is compatible with the provisions of Chapter 3 of Title II in Part Three of the TFEU on the prohibition of quantitative restrictions between Member States. ( 35 )

98.

Like all the intervening governments, I take the view that, in a situation such as that at issue in the main proceedings, where alcoholic beverages are imported with a view to the ‘retail sale’ of those beverages, the assessment of the compatibility of the first subparagraph of Paragraph 8 of the Law on alcohol with the relevant provisions of EU law must be carried out also taking into consideration Paragraphs 13 and 14 of that law which relate, respectively, to the alcoholic beverage retail monopoly and the requirement for a retail licence for certain alcoholic beverages.

99.

In this respect, I believe it would first be useful to set out those national provisions as they appear from the documents before the Court.

100.

The accession of the Republic of Finland to the European Union made it necessary to adjust the State monopoly of a commercial character in alcoholic beverages in order to comply with the rules of EU law, and in particular, with Article 37 TFEU. ( 36 )

101.

To that end, the Republic of Finland agreed to abolish the exclusive rights to import, export, produce and sell wholesale, ( 37 ) by adopting, on 8 December 1994, the Law on alcohol. ( 38 )

102.

It is clear from the first subparagraph of Paragraph 8 in conjunction with Paragraph 13 of that law that the Finnish monopoly, held by Alko, which is wholly owned by Suomen valtio, relates only to the retail sale of alcoholic beverages.

103.

It should be noted that, under the first subparagraph of Paragraph 13 of the Law on alcohol, Alko ‘has the monopoly on the retail sale of alcoholic beverages’. ( 39 ) Furthermore, it is also clear from point (1) of the first subparagraph of Paragraph 36 of that law that Alko’s objective is to manage the retail trade over which it has been granted the monopoly by that law.

104.

It should be recalled that the first sentence of the first subparagraph of Paragraph 8 of the Law on alcohol provides that ‘[a]lcoholic beverages for personal use or for commercial or business uses may be imported without a special licence’. ( 40 ) Accordingly, Alko does not have an exclusive right to import.

105.

Nevertheless, in specific situations such as, in my view, the one at issue in the main proceedings, a special licence is required in order to import alcoholic beverages.

106.

It should be recalled that, pursuant to the final sentence of the first subparagraph of Paragraph 8 of the Law on alcohol, ‘[a] person using alcoholic beverages for commercial or business purposes requires for his activities the special licence provided for in this Law in order to import alcoholic beverages’. ( 41 )

107.

Consequently, if, as in the main proceedings, a distance seller based in Estonia wishes to import alcoholic beverages in order to sell them to a buyer located in Finland, he would need to have a ‘special licence’ in accordance with that provision.

108.

As noted by the Swedish Government in its written observations, the type of licence required seems to depend on what happens to the alcoholic beverages after they are imported. If the importer wishes to sell them wholesale, he would need to obtain a wholesale licence. If, as in the present case, he wishes to sell to a consumer, he would therefore need to obtain a retail licence from the competent national authority.

109.

It is clear from Paragraph 14 of the Law on alcohol that it is not possible to obtain a retail licence for all alcoholic beverages, but only for those with low alcohol content.

110.

It should be recalled that, under the first subparagraph of Paragraph 14 of that law ‘[i]t is permitted ... for any person who has obtained a retail licence from the competent authority to engage in the retail sale of fermented alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol’.

111.

Moreover, pursuant to the second subparagraph of Paragraph 14 of that law, in addition to Alko, any person may engage in the retail sale of fermented alcoholic beverages containing a maximum of 13% by volume of ethyl alcohol if the competent authority has granted him permission to produce the product in question, on the conditions laid down by the Ministry of Social Affairs and Health. ( 42 )

112.

According to the first subparagraph of Paragraph 8 in conjunction with Paragraphs 13 and 14 of the Law on alcohol, a distance seller such as Mr Visnapuu, who is based in Estonia and wishes to retail alcoholic beverages in Finland, requires a retail licence in order to import and sell to Finnish buyers alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol.

113.

As to alcoholic beverages with a higher alcohol content, a distance seller such as Mr Visnapuu may not obtain a retail licence since only Alko is permitted to retail those beverages.

114.

At the outset, it should be noted that, at the hearing, Mr Visnapuu stated that all the alcoholic beverages at issue in the main proceedings contained more than 4.7% by volume of ethyl alcohol, so they were not among the beverages covered by the first subparagraph of Paragraph 14 of the Law on alcohol, but were covered by the Finnish retail monopoly provided for in Paragraph 13 of that law.

115.

I will examine, in the light of the foregoing considerations, the question whether the first subparagraph of Paragraph 8 and Paragraphs 13 and 14 of the Law on alcohol, which grant an exclusive retail right to Alko and make the import of certain alcoholic beverages intended for retail sale subject to obtaining a retail licence, fall within the scope of Article 37 TFEU or within that of Article 34 TFEU and whether those provisions are compatible with one or other of those articles, as the case may be.

116.

Do the first subparagraph of Paragraph 8 and Paragraphs 13 and 14 of the Law on alcohol fall within the scope of Article 37 TFEU or within that of Article 34 TFEU?

117.

I note that the issue of determining the scope of Article 37 TFEU as against that of Article 34 TFEU has already been addressed in the case-law, in particular in the judgments in Franzén ( 43 ) and Rosengren and Others. ( 44 )

118.

In the first judgment, the Court found there to be a distinguishing factor, holding that ‘it is necessary to examine the rules relating to the existence and operation of the monopoly with reference to Article 37 [TFUE], which is specifically applicable to the exercise, by a domestic commercial monopoly, of its exclusive rights’ ( 45 ) but that, ‘[o]n the other hand, the effect on intra-Community trade of the other provisions of the domestic legislation which are separable from the operation of the monopoly although they have a bearing upon it, must be examined with reference to Article [34 TFEU]’. ( 46 )

119.

That distinction was based on previous case-law in which the Court had already determined the scope of Article 37 TFEU. I shall cite only three judgments.

120.

Accordingly, in its judgment in Miritz, ( 47 ) the Court had found that, ‘[s]ince the structure and character of the equalisation charge link it to the system of the German alcohol monopoly, the answer ... must be ascertained from the text of Article 37 [TFEU], which deals specifically with the adjustment of State monopolies’. ( 48 )

121.

Similarly, in its judgment in Rewe-Zentral, ( 49 ) it had found that ‘Article 37 [TFEU] relates specifically to State monopolies of a commercial character’ ( 50 ) and that ‘that provision is therefore irrelevant with regard to national provisions which do not concern the exercise by a public monopoly of its specific function — namely, its exclusive right — but apply in a general manner to the production and marketing of alcoholic beverages, whether or not the latter are covered by the monopoly in question’. ( 51 )

122.

Furthermore, in its judgment in Grandes distilleries Peureux, ( 52 ) the Court had held that ‘the rules contained in Article 37 [TFEU] concern only activities intrinsically connected with the specific business of the monopoly and are irrelevant to national provisions which have no connexion with such specific business’. ( 53 )

123.

In the light of the approaches adopted in those cases, some ambiguity remained as to the precise scope of Article 37 TFEU. Should the scope of that provision be limited to the specific function of the monopoly, namely its exclusive right? Does a national rule which, exceeds, in strict terms, the exercise of the exclusive right attributed to the monopoly, but which is related to the existence and operation of that monopoly because it is intrinsically connected with the specific function assigned to that monopoly, fall within the scope of application of that provision?

124.

That ambiguity had not been completely removed by the judgment in Franzén, ( 54 ) in so far as it included in the scope of Article 37 TFEU a national measure falling under legislation on imports which exceeded, in strict terms, the exercise by the monopoly of its exclusive right to retail alcoholic beverages. ( 55 )

125.

The Court subsequently gave an answer to those questions in its judgment in Rosengren and Others ( 56 ) concerning the Swedish alcoholic beverage retail monopoly.

126.

In that judgment, the Court held that the national measure at issue, under which the private import of alcoholic beverages is, theoretically, prohibited, ‘does not, as such, govern [the] monopoly’s exercise of its exclusive right of retail sale of [those] beverages’. ( 57 ) Thus, according to the Court, ‘[t]hat measure, which does not, therefore, concern the monopoly’s exercise of its specific function, accordingly cannot be considered to relate to the very existence of that monopoly’. ( 58 )

127.

The Court added that ‘such a ban does not truly regulate the operation of the monopoly since it does not relate to the methods of retail sale of alcoholic beverages’. ( 59 ) In that regard, the Court pointed out that ‘[i]n particular, it is not intended to govern either the system for selection of goods by the monopoly, its sales network, or the organisation of the marketing or advertising of goods distributed by that monopoly’, ( 60 ) before concluding that ‘[i]n those circumstances, such a ban cannot be regarded as constituting a rule relating to the existence or operation of the monopoly’. ( 61 )

128.

Accordingly, the Court has adopted a restrictive interpretation of the scope of Article 37 TFEU, limiting that scope to rules which directly concern the exclusive right granted to the monopoly.

129.

The approach adopted in the judgment in Rosengren and Others ( 62 ) ran contrary to the Opinions delivered by Advocates General Tizzano and Mengozzi in the case which gave rise to that judgment, and has been criticised in legal literature. ( 63 ) Nevertheless, in more recent judgments, the Court has confirmed that approach. ( 64 )

130.

In the light of that recent case-law, it is necessary to determine whether the first subparagraph of Paragraph 8 and Paragraphs 13 and 14 of the Law on alcohol constitute rules relating to the existence or operation of the monopoly. ( 65 )

131.

Like all the intervening governments, I consider there to be no doubt that the rule laid down in Paragraph 13 of the Law on alcohol, which grants to the State monopoly the exclusive right to retail alcoholic beverages, relates to the very existence of the Finnish monopoly at issue in the main proceedings and clearly falls within the scope of Article 37 TFEU.

132.

But what of the requirement for a licence to import and retail alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol, as provided for in the first subparagraph of Paragraph 8 and Paragraph 14 of the Law on alcohol?

133.

According to the Finnish and Norwegian Governments, those provisions should be assessed in the light of Article 34 TFEU in so far as the alcoholic beverages referred to in those provisions are not covered by the exclusive right granted to the monopoly.

134.

I cannot concur with that argument. In my opinion, the first subparagraph of Paragraph 8 and Paragraph 14 of the Law on alcohol should also be assessed in the light of Article 37 TFEU in so far as they concern the exercise by the Finnish monopoly of its specific function.

135.

In that regard, first, I note that the specific function conferred on the monopoly at issue in the main proceedings consists in restricting to that monopoly the exclusive right in and thus the management of the retail trade in Finland of alcoholic beverages, apart from alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol for which a retail licence, issued by the competent Finnish authority, is required for any person wishing to import and retail those beverages in Finland.

136.

Secondly, I note that the situation at issue in the main proceedings is specific and different from those at issue in the earlier case-law, in particular that at issue in the case which gave rise to the judgment in Rosengren and Others. ( 66 ) Unlike the rules at issue in that case, the first subparagraph of Paragraph 8 and Paragraph 14 of the Law on alcohol do not prohibit the import, by a distance seller such as Mr Visnapuu, of alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol, but rather make that import subject to obtaining a retail licence ‘where’ that distance seller wishes to retail them in Finland.

137.

As the Swedish Government correctly states, a licence is required not because alcoholic beverages are crossing a frontier, but because those beverages are ‘retailed’.

138.

Moreover, I observe that, while the Court, in its judgment in Rosengren and Others, ( 67 ) had considered that, by regulating imports, and thus the stage prior to retail sale, the national measure at issue in the case which gave rise to that judgment did not govern the monopoly’s exercise of its right of exclusivity, the national measures at issue in the main proceedings clearly govern retail sale, so it appears that an intrinsic connection with the Finnish monopoly active on that same retail market does exist.

139.

Thirdly, I take the view that that retail licence would not have any rationale without the existence and operation of the monopoly. ( 68 )

140.

In the absence of a monopoly on the retail sale of alcoholic beverages, it is meaningless to impose a requirement for a retail licence only for alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol.

141.

However, in circumstances such as those in the case at issue, where retail exclusivity has been granted to a State-owned undertaking, the aim of imposing a requirement for a retail licence is to guarantee the exercise by that monopoly of its specific function.

142.

What would happen if no retail licence were required in a situation such as that at issue in the main proceedings?

143.

EIG, which is established in another Member State, could import and retail, without being subject to any control, all alcoholic beverages to Finnish consumers regardless of their alcohol content.

144.

In those circumstances, a distance seller such as Mr Visnapuu could then circumvent and affect the very existence of the monopoly established by the Law on alcohol.

145.

It follows that imposing a requirement for a retail licence makes it possible to ascertain that the alcoholic beverages imported and intended for retail sale are not covered by the exclusive right assigned to the national monopoly and guarantees, consequently, the very exercise by that monopoly of its exclusive retail right.

146.

A national measure concerning the monopoly’s exercise of its specific function must be considered as relating to the very existence of that monopoly. ( 69 )

147.

Accordingly, in my opinion, that requirement for a licence is not only intrinsically connected to the exercise of the specific function of the retail monopoly, but also concerns the very exercise by that monopoly of its specific function.

148.

Fourthly, like the Swedish Government and the Commission, I note that, in accordance with the Law on alcohol, Finnish consumers may purchase and import any alcoholic beverages from other Member States provided that they use the services of a courier who is unconnected to the seller, or that they arrange delivery in Finnish territory themselves, and that the ownership of those alcoholic beverages is transferred to the buyer before they are imported into Finland.

149.

Accordingly, in circumstances where a Finnish consumer purchases alcoholic beverages at a distance and where the transfer both of ownership of those beverages and of the risks attaching to them takes place outside Finnish territory, a distance seller such as Mr Visnapuu does not require a licence in so far as no retail sale has taken place in Finland.

150.

If no retail sale takes place in Finnish territory, there is no rationale for a retail licence, given that there would be no risk of the retail monopoly being circumvented.

151.

I take this as further confirmation of the fact that the retail licence must be regarded as concerning the specific function assigned to the Finnish monopoly, which consists in allowing it alone to manage the retail sale of alcoholic beverages containing more than 4.7% by volume of ethyl alcohol.

152.

Having regard to all the foregoing considerations, I consider that both Paragraph 13 of the Law on alcohol and the first subparagraph of Paragraph 8 and Paragraph 14 of that law must be assessed in the light of Article 37 TFEU.

153.

The Court has repeatedly held that ‘[i]t is clear not only from the wording of Article 37 [TFEU] but also from the position which it occupies in the general scheme of the Treaty that the article is designed to ensure compliance with the fundamental principle that goods should be able to move freely throughout the [internal] market, in particular by requiring quantitative restrictions and [MEE] in trade between Member States to be abolished, and thereby to ensure maintenance of normal conditions of competition between the economies of Member States in the event that a given product is subject, in one or other of those States, to a national monopoly of a commercial character’. ( 70 )

154.

According to equally settled case-law, ‘[that] [a]rticle … does not require national monopolies having a commercial character to be abolished but requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States’. ( 71 )

155.

Indeed, ‘[t]he purpose of Article 37 [TFEU] is to reconcile the possibility for Member States to maintain certain monopolies of a commercial character as instruments for the pursuit of public interest aims with the requirements of the establishment and functioning of the [internal] market. It aims at the elimination of obstacles to the free movement of goods, save, however, for restrictions on trade which are inherent in the existence of the monopolies in question’. ( 72 )

156.

Thus, Article 37 TFEU ‘requires that the organisation and operation of the monopoly be arranged so as to exclude any discrimination between nationals of Member States as regards [the conditions under which goods are procured and marketed], so that trade in goods from other Member States is not placed at a disadvantage, in law or in fact, in relation to that in domestic goods and that competition between the economies of the Member States is not distorted’. ( 73 )

157.

In the present case, first of all, I note, like the Finnish Government, that the aim of the Law on alcohol, as is apparent from Paragraph 1 thereof, is to prevent the negative effects of alcohol on society, social life and health by controlling the consumption of alcohol.

158.

As concerns retail sale, alcohol consumption is regulated, according to that government, by the establishment of a Finnish monopoly and, for certain beverages with a low alcohol content, by a retail licensing system.

159.

Furthermore, according to the Swedish Government, studies have shown that greater access to alcoholic beverages gives rise to an increase in their overall consumption. Similarly, in the opinion of that government, total alcohol consumption and the number of people adversely affected by alcohol decrease if it is difficult to procure alcoholic beverages.

160.

In that context, it is not disputed that, in aiming to protect public health against the harm caused by alcohol, the Finnish retail monopoly and the requirement for a retail licence pursue a public interest aim. ( 74 )

161.

Secondly, it has not been claimed, either in the written observations or at the hearing, that the Finnish monopoly does not comply with the requirements laid down in Article 37 TFEU.

162.

In this respect, I would point out once more that it is clear from the documents before the Court that the organisation and operation of that retail monopoly do not prevent sellers based in other Member States from selling alcoholic beverages to Finnish consumers, provided that those consumers organise the transport to Finland themselves. Moreover, both national and foreign operators may sell alcoholic beverages to the State monopoly, which then resells them to Finnish consumers.

163.

Accordingly, there is no evidence, in the present case, to suggest that consumers’ demand for alcoholic beverages is not being met, or that the imported products are placed at a disadvantage with respect to national products.

164.

In addition, like the Finnish Government, I note that it is clear from the documents before the Court that it has not been claimed that the conditions for obtaining a retail licence, pursuant to the Law on alcohol, are discriminatory.

165.

In that regard, I note that it is clear from the written observations of that government that a retail licence is required both for national operators intending to engage in retail sales and for foreign operators intending to import and retail alcoholic beverages containing a maximum of 4.7% by volume of ethyl alcohol, and applies equally to products made in Finland and to those produced in other Member States.

166.

Accordingly, the national rules on retail licensing have, both in fact and in law, the same impact on the sale of national products as on the sale of products imported from other Member States, and apply indiscriminately to both national and foreign operators.

167.

Furthermore, in a situation such as that at issue in the main proceedings where alcoholic beverages are imported from a Member State other than the Republic of Finland and delivered by the seller to Finnish buyers, if no licence were required, the retail licensing system would be liable to create reverse discrimination, in so far as only national alcoholic beverages would then be subject to the requirement for such a licence.

168.

Although all the foregoing considerations indicate that neither the lawfulness of the monopoly nor that of the retail licence can be challenged a priori, they do not provide us with information on the specific organisation and operation of that monopoly or, in particular, the monopoly’s product selection system, its sales network or the promotion of alcoholic beverages. It is on the basis of those criteria that the Court has been able to assess the compatibility of the rules on the operation of the monopoly with Article 37 TFEU. ( 75 )

169.

It is, therefore, for the national court to determine, on the basis of all the evidence at its disposal, whether the organisation and operation of the Finnish retail monopoly are discriminatory or capable of placing imported products at a disadvantage.

170.

Finally, the Finnish Government considers that the objective of protecting public health cannot be attained by other measures less restrictive than making retail sales which take place in Finland subject to a requirement for a retail licence or to the exclusive right of the Finnish monopoly. According to that government, if a foreign seller could himself sell to a Finnish buyer, there would be a new distribution channel for alcoholic beverages which would compete with the monopoly and with licensed selling, without being subject to any control on the part of the competent national authorities.

171.

In that regard, the Finnish Government submits, in particular, that the licensing system is necessary in order to check whether undertakings which have obtained a retail licence are complying with the rules on selling alcoholic beverages. ( 76 )

172.

In addition, it is clear from the documents before the Court that consumers may, in certain circumstances, order and import alcoholic beverages from a foreign seller. Thus, the Law on alcohol does not prohibit private imports.

173.

In view of the foregoing arguments, I am of the opinion that the first subparagraph of Paragraph 8 and Paragraphs 13 and 14 of the Law on alcohol must be held to be necessary and proportionate to the objective of protecting public health.

174.

In the light of all the foregoing considerations, I take the view that Article 37 TFEU must be interpreted as not precluding national legislation such as the Law on alcohol, provided that the organisation and operation of the monopoly are managed in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States, so that trade in goods from other Member States is not placed at a disadvantage, in law or in fact, in relation to trade in domestic goods, a matter which it will be for the national court to determine.

175.

Since I have concluded that Article 34 TFEU is inapplicable, it is not necessary to answer the seventh and eighth questions referred by the national court.

176.

In the light of the foregoing considerations, I propose that the Court respond to the Helsingin hovioikeus as follows: