Criminal proceedings against Krister Hanner.

• Jurisdiction: European Union
• Celex Number: 62002CJ0438
• ECLI: ECLI:EU:C:2005:332
• Date: 31 May 2005
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-438/02

Case C-438/02

Criminal proceedings

against

Krister Hanner

(Reference for a preliminary ruling from the Stockholms tingsrätt)

(Articles 28 EC, 31 EC, 43 EC and 86(2) EC — Marketing of medicinal preparations — Establishment of retail traders — National monopoly on the retail sale of medicinal preparations — Undertaking entrusted with providing a service of general economic interest)

Opinion of Advocate General Léger delivered on 25 May 2004

Judgment of the Court (Grand Chamber), 31 May 2005

Summary of the Judgment

1. State monopolies of a commercial character –– Article 31 EC –– Purpose –– Obligation to arrange sales monopolies so as to exclude any discrimination against medicinal preparations from other Member States

(Art. 31 EC)

2. State monopolies of a commercial character –– Article 31 EC –– National monopoly on the retail sale of medicinal preparations –– Monopoly characterised by criteria and methods for selecting products which fail to guarantee the exclusion of any discrimination –– Not permissible –– Justification pursuant to Article 86(2) EC –– None

(Arts 31 EC and 86(2) EC)

1. Although Article 31(1) EC does not require total abolition of State monopolies of a commercial character, it 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. Thus, that provision precludes sales monopolies arranged in such a way as to put at a disadvantage, in law or in fact, trade in goods from other Member States as compared with trade in domestic goods. In particular, a State sales monopoly must be arranged in such a way as to exclude any discrimination against goods from other Member States regarding its system of selection, the organisation of its retail sales network and its marketing and advertising measures.

(see paras 34, 36, 39-41)

2. Article 31(1) EC must be interpreted as precluding a retail sales monopoly of medicinal preparations arranged in such a way that it makes no provision for a purchasing plan or for a system of ‘calls for tenders’ within the framework of which producers whose products are not selected would be entitled to be apprised of the reasons for the selection decision and to contest such decisions before an independent supervisory authority. Such a monopoly is not arranged in such a way as to exclude any discrimination but is liable to place trade in medicinal preparations from other Member States at a disadvantage as compared with trade in national medicinal preparations.

Such a sales system could not be justifiable under Article 86(2) EC. While that provision may be relied upon to justify the grant by a Member State, to an undertaking entrusted with the operation of services of general economic interest, of exclusive rights which are contrary to Article 31(1) EC, to the extent to which performance of the particular tasks assigned to it can be achieved only through the grant of such rights and provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community, it cannot however justify a sales monopoly in the absence of a selection system that excludes any discrimination against medicinal preparations from other Member States.

(see paras 42-45, 47-49, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

31 May 2005 (*)

(Articles 28 EC, 31 EC, 43 EC and 86(2) EC – Marketing of medicinal preparations – Establishment of retail traders – National monopoly on the retail sale of medicinal preparations – Undertaking entrusted with providing a service of general economic interest)

In Case C-438/02,

REFERENCE for a preliminary ruling under Article 234 EC,

from the Stockholms tingsrätt (Sweden), made by decision of 29 November 2002, received at the Court on 4 December 2002, in criminal proceedings against

Krister Hanner,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann (Rapporteur), C.W.A. Timmermans and A. Rosas, Presidents of Chambers, J-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges,

Advocate General: P. Léger,

Registrar: M. Múgica Arzamendi, Principal Administrator,

having regard to the written procedure and further to the hearing on 20 January 2004,

after considering the observations submitted on behalf of:

– Mr Hanner, by I. Forrester QC, J. Killick, Barrister, A. Schulz, Rechtsanwalt, L. Hiljemark and R. Olofsson, advokater, and A.-K. Pettersson, juris kandidat,

– the Swedish Government, by A. Kruse, acting as Agent,

– the Netherlands Government, by H.G. Sevenster, acting as Agent,

– the Commission of the European Communities, by L. Ström and M.H. Støvlbæk, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 May 2004,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 28 EC, 31 EC and 43 EC.

2 The request was made in criminal proceedings against Krister Hanner concerning an infringement of the Swedish rules reserving the retail sale of medicinal preparations to Apoteket AB (‘Apoteket’).

Law

The national legislation

3 In Sweden, under Article 4 of the Lag (1996:1152) om handel med läkemedel m.m. (Law No 1152 of 1996 on trade in medicinal preparations), retail trade in non-prescription and prescription medicinal preparations can be engaged in only by the State or by legal persons over which the State has a dominant influence. The government determines which legal person is entitled to carry on such trade and lays down the detailed rules applicable to such trade.

4 Article 5 of the same Law provides for an exception to that rule regarding the retail sale of certain medicinal preparations to hospitals, doctors and veterinary surgeons. Such sales may in fact be undertaken by other operators provided that they hold a wholesale trade permit.

5 Article 6 of the Lag om handel med läkemedel provides that the distribution of medicinal preparations must be carried out rationally in order to guarantee the availability of safe and effective medicinal...