## Facts

- Sweden pursued a public-health policy to limit alcohol consumption through a retail monopoly and strict marketing limits.
- Swedish law broadly prohibited advertising spirits, wine, and strong beer in periodicals and other publications, with limited exceptions (e.g., specialized trade press, some point-of-sale materials, and internet advertising).
- Gourmet International Products AB published *Gourmet*, a subscription-only magazine containing advertisements for wine and spirits.
- About 90% of *Gourmet* subscribers were traders; about 10% were private individuals.
- The Swedish Consumer Ombudsman sought an injunction and a penalty payment to stop the alcohol advertisements.
- The publisher argued the ban disproportionately harmed imported alcoholic beverages and cross-border advertising services because foreign producers needed advertising to build consumer recognition.
- The Swedish court referred questions to the European Court of Justice concerning compatibility with EU free-movement rules and possible public-health justification.

## Issues

1. Whether a general prohibition on alcohol advertising in periodicals is a measure equivalent to a quantitative restriction on imports, or a neutral “selling arrangement” outside the prohibition on trade restrictions.
2. If the prohibition restricts trade, whether it can be justified by protection of human health and life, and whether it is proportionate.
3. Whether the prohibition restricts the freedom to provide services (including cross-border advertising services), and if so, whether it can be justified on public-health grounds subject to proportionality.

## Decision

- The Court held the advertising ban was liable to impede market access for imported alcoholic beverages more than for domestic products, so it could fall within the EU rules prohibiting trade restrictions.
- The Court also treated the ban as a restriction on the freedom to provide services to the extent it limited cross-border advertising activity.
- The Court ruled that EU law does not automatically bar such a prohibition where it pursues public-health protection, unless it is apparent that the same health protection can be achieved by measures that restrict intra-EU trade less.
- The Court left to the national court the final assessment of suitability, necessity, and the availability of less restrictive alternatives.

## Legal Principles

- A national advertising ban framed as a “selling arrangement” may still be caught by EU free-movement rules if, in fact, it impedes access to the market for imported goods more than for domestic goods.
- General bans on a form of promotion can create de facto disadvantage for imported products where domestic consumer familiarity reduces domestic producers’ need for advertising.
- Protection of public health can justify restrictions on both free movement of goods and freedom to provide services, but only if the measure is proportionate.
- Proportionality requires assessing whether the measure is suitable for the health objective and whether comparable protection could be achieved through less trade-restrictive measures; that assessment is for the national court on the factual record.

## Conclusion

The Court treated Sweden’s periodical alcohol-advertising ban as potentially restricting both trade in goods and cross-border services, but allowed that it could be justified by public-health protection if, in the national court’s assessment, it was proportionate and no less restrictive measure would achieve the same level of health protection.


Konsumentombudsmannen v. Gourmet Int'l Prods. AB, Case C-405/98, 2001 E.C.R. I-1795 (E.C.J. 2001)