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71877/687532 09/5380- 18.09.2014 A ROYAL NORWEGIAN MINISTRY OF HEALTH AND CARE SERVICES EFTA Surveillance Authority Rue Belliard 35 B-1040 Brussel Your ref Our ref Date 71877/687532 09/5380- 18.09.2014 Response from the Norwegian Government to the EFTA Surveillance Authority’s letter of formal notice - legislation on private import of alcohol 1. INTRODUCTION Reference is made to the EFTA Surveillance Authority’s (“the Authority”) letter of formal notice to Norway for maintaining in force certain legislation on private import of alcohol, dated 18 June 2014. The letter was forwarded from the Norwegian Ministry of Finance to the Norwegian Ministry of Health and Care Services, which is responsible for the Norwegian legislation on alcohol. By the Authority’s e-mail of 3 July 2014, an extension of the deadline for Norway’s response was granted until 18 September 2014. On behalf of the Norwegian Government (“the Government”), the Ministry of Health and Care Services hereby gives its response to the letter of formal notice. The Government respectfully submits that the Norwegian requirement on functional and structural separation between the undertaking selling the alcoholic beverages and the undertaking delivering the beverages does not violate Article 11 and/or 36 EEA. The Government refers in this regard to its letters of 21 August 2012, 20 December 2012 and 24 January 2014, as well as to its letter of 21 December 2009'. In addition, the Government would like to make the following remarks. 1 Complaint concerning the import an distribution of alcohol in Norway, case 67389/539008. See the remarks on question 4 and 5.___________________________________________________________ Postal address Visiting address Telephone* Departement of Public Our officer POBox 8011 Dep Teatergt, 9 +47 22 24 90 90 Health Hege Christina 0030 Oslo Vat no. Bredesen [email protected] www.h0d.dq3.no 983 887406 +47 22 24 86 15 At the outset, the Government would like to note that it shares the Authority’s opinion that wine falls outside the scope of art. 11 EEA and 36 EEA, and that the following assessment is relevant for products covered by the EEA Agreement only. 2. RELEVANT NORWEGIAN LEGISLATION Under the Norwegian Alcohol ActA section 3-1 paragraph 1, the retail sale of alcoholic beverages containing more than 4.7 per cent alcohol by volume up to 60 per cent alcohol by volume may only be carried out by AS Vinmonopolet, a wholly State-owned company. For alcoholic beverages containing less than 4.7 per cent alcohol by volume, a separate retail sale licence may be granted according to section 3-lparagraph 2. The right to import alcoholic beverages is regulated in the Alcohol Act section 2-1, which sets out: “Alcoholic beverages may only be importedfrom abroad by parties who are authorised to engage in wholesale, hold a production licence, a retail sales licence extended to cover imports under section 3-1 third paragraph or a serving licence extended to cover imports under section 4-2 third paragraph. Under regulations issued by the Ministry, alcoholic beverages may however be imported by AS Vinmonopolet without a licence as mentioned in the first paragraph. Without such a licence, alcoholic beverages may also be imported by foreign powers ’ representations in Norway for official use, when they are imported duty free or pursuant to regulations issued by the Ministry. Alcoholic beverages may be imported from abroad bv private persons for personal use (private import) without a licence as mentioned in the first paragraph. The Ministry may issue further requirements which must be met in order for the importation to be regarded as private import, [emphasis added]. In the preparatory works to section 2-1 paragraph 3, it is clarified that in order for the activity to be considered private import, the private person must be in charge of the import. Further, the importing private person must not resell or use the imported alcoholic beverages in business activities.3 The Norwegian Alcohol Regulation4 section 15-5 sets out further requirements that must be met in order for the importation to be considered private import: 2 Lov 2. juni 1989 nr. 27 om omsetning av alkoholholdig drück m.v. (alkoholloven) 3 Otprp. nr. 53 (2008-2009) Om lov om endringer i lov 2. juni 1989 nr. 27 om omsetning av alkoholholdig drikk m.v. (opphevelse av forbudet mot privat innførsel av alkoholholdig drikk) page 36. 4 Forskrift 8. juni 2005 nr. 538 om omsetning av alkoholholdig drikk mv. Page 2 “Undertakings that deliver alcoholic beverages to private persons that import alcoholic beverages for personal use shall: 1) have an internal control system in place that secures that the requirements relating to delivery of alcohol are observed, cf chapter 8, 2) be independent from the vendor of the alcoholic beverages that is being delivered and shall not receive any director indirect advantage from the sale besides normal remuneration from the service and 3) shall not have permanent places of delivery of alcoholic beverages besides what is part of their normal system for distribution of all lands of consignments. ”5 The requirement in no. 2 (“the separation requirement”) entails that the vender himself is not permitted to transport the beverages into Norway in the context of private import; the seller must deliver the beverages to the buyer or a transporter outside Norwegian territory.6 The requirement intends to safeguard the Norwegian system of retail sales of alcohol in Norway through the monopoly or through undertakings which have been granted a licence for retail sale of alcoholic beverages. The alcohol regulation section 15-3 reads: “AS Vinmonopolet may import alcoholic beverages fórjale to someone who has ordered a product for personal consumption if that product is not available in Vinmonopolet’s product range. “ [emphasis added]. This provision was introduced before it was opened up for the consumer's own private imports after the Rosengren case. 7 AS private parsons were not allowed to import the products themselves, the purpose of the provision was to establish a system that would give private persons the possibility to buy products Vinmonopolet could not provide from a wholesaler. This was done by giving Vinmonopolet the right to import these products for sale to the private person as an exemption from the main rule that Vinmonopolet as a retailer could not be an importer. As the provision reads, this is a sale from Vinmonopolet to a private person and not private import (which requires that the private persons themselves buys the alcoholic beverages directly from the seller outside Norway). The private buyer have to place the order at Vinmonopolet. In the consultation document dated 5 December 2008s on amending the legislation related to private import of alcoholic beverages section 4.9, the Ministry concluded that import of 5 Unofficial translation. 6 For further information on the separation requirement, see the letters of 21 August 2012 and 25 January 2014 from the Norwegian Ministry of Health and Care Services to the Authority. 7 Case C-170/04 Rosengren and others, 8 Høringsnotat - Forslag til endringer i alkoholloven og alkoholforskriften. Utredning av opphevelse av forbudet mot privat innførsel av alkoholholdig drikk. Available at http://www.reg3eringen.n0/upload/HOD/Dokumenter%20FHA/SAN/Hoeringsnotat.pdf#search-privati mport&regj_oss=l Page 3 alcoholic beverages for sale to private persons for personal use through Vinmonopolet should remain a possibility even after the ban on private import was lifted, as an added service from Vinmonopolet to the customers. On this basis, no changes in the alcohol regulation section 15-3 were proposed. According to Vinmonopolet, the possibility of acquiring alcoholic beverages on the basis of section 15-3 has not been used since 2009. When it comes to the delivery arrangement connected to section 15-3 sales, Vinmonopolet informs that they have never performed the delivery themselves and that they do not foresee to do so in the future either. Vinmonopolet previously had a delivery agreement with Marine Express when selling alcoholic beverages based on section 15-3, but as the system has not been used for many years, this agreement has not been renewed. 3. PRELIMINARY REMARKS ON THE SEPARATION REQUIREMENT The Authority has in its assessment considered the separation requirement to constitute a restriction on free movement of services and goods. The Government is however of the view that the separation requirement is merely a distinguishing feature between two types of arrangements, subject to different regulations. The distinguishing feature should thus not in itself be regarded as a restriction on trade and in itself subject to demands of justification. The concept of private import in the Norwegian alcohol legislation presupposes a transaction between a person in Norway and a retailer outside Norway, where the point of sale of the commodity is also outside Norwegian territory. The separation requirement stresses the distinction between this arrangement and retail sale in the Norway. An arrangement where both the contract of sale of beverages and the delivery to the private consumer in Norway are carried out by the same undertaking, must in fact be considered retail sale in Norway. The separation requirement merely seeks to clarify the distinction between the two types of arrangements, a distinction that would follow from an interpretation of the arrangements as such, whether this was directly regulated in the regulation or not. The Government is thus of the view that the separation requirement serves as a legal clarification and is not a restriction in itself. The separation requirement as a distinguishing feature finds its support in instruments of EU law. Reference is made to Directive 2008/118/EC9 Article 36, where distance selling is defined as goods “which are purchased by a person, other than an authorized warehouse keeper or a registered consignee, established in another Member State who does not carry out an independent economic activity, and which are dispatched or transported to another Member State directly or indirectly by the vendor or on his behalf’.
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