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1 Introduction Brussels, 18 June 2014 Case No: 71877 EventNo:687532 Dec No: 22lll3lCOL Ministry of Finance Postboks 8008 Dep N-0030 Oslo Norway Dear Sir or Madam, Subject: Letter of formal notice to Norway for maintaining in force certain legislation on private importation of alcohol 1 Introduction In Norway, retail sale of alcoholic beverages may only be undertaken by the State monopoly AS Vinmonopolet ("Vinmonopolet"). However, a private person in Norway may import alcoholic beverages without the assistance or involvernent of Vinmonopolet into Norway, if it is intended for private use. Such importation may take the form of the importer carrying the beverages over the border himself, or he may have the goods delivered by a transport company authorised to deliver alcohol into Norway. The transport company delivering the alcoholic beverages to the private importer can only provide the transport service; it cannot have any other involvement in the sale as such, and must be independent from the seller. The Authority understands that it is not necessary that the buyer himself contracts with the transport company. It is permissible for the buyer to enter into one single contract with the seller, for the sale and delivery of alcoholic beverages (and, thus, a seller abroad may offer alcoholic beverages with home delivery in Norway). But the seller must then outsource its deliveries into Norway to an independent transport company, whose advantage from such sales must be limited to normal remuneration for the transport service. The EFTA Surveillance Authority ("the Authority'') considers that this requirement of functional and structural separation between the undertaking selling the alcoholic beverages and the undertakings delivering the beverages violates the EEA rules on free movement of services and free movement of goods, as set out in Articles 36 atdlor 11 of the EEA Agreement, in so far as alcoholic beverages come under the product scope of the Agreement. 2 Correspondence The Authority has opened an own initiative case in relation to the functional and structural separation requirement concerning private import of alcohol under Norwegian legislation. By letter dated 4 July 2012 (Event No: 636870), the Authority sent a request for information to Norway, asking for clarification on several issues. Rue Belliard 35, 8-1040 Brussels, tel: (+32)(0)2 286 l8 1l' fax: (+32)(0)2 286 18 00' www'eftasurv'int Page2 By letter dated 21 August 2ol2 (Event No: 644777), the Norwegian Govemment to the Authority's letter. The matter was discussed at the package meeting in Oslo in October 2012. A follow-up letter was issued and the Norwegian Government provided additional information as requested in a letter dated 20 Decemb er 2012 (your rei OglS:S0)(Event No: 657502). The matter was subsequently discussed at the package meeting in Oslo in Novemb er 2013 and by letter dated 24 January 2014 (your reroqls:sb)(Event No: 696913), the Norwegian Government provided additional clarifi cations, as requested. Relevant national law The Norwegian Alcohol Act (..the Alcohol Act,,)l provides: Section l-5 Minimum aqe Alcoholic beverages lcontaining more than 22 per cent or more alcohol by volume up to 60 per cent alcohol by volumeJ must not bi retailed, served or suppllid to anyone under the age of 20. Alcoholic beverages containing lmore than 2,5 per cent alcohol by volume but less than22 per cent.alcohol by volume/ must not be retailed, served or iupplied to anyone under the age of I 8. Alcoholic beverages only ryay be importedfrom abroad by parties who are authorised to engage in wholesale, hold a production licence, an exteided retail licenc:e pursuant to section 3-1 third paragraph or a serving licence extended to cover rmpoit, 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 jrst paragraph. Alcoholic beverages may also be imported without such a ticenle purronol consumption and by representatives S, offoreign powers in Norway oplra ise when they are fo, ' imported duty-free o, prrruirl n regilations issued by"tie *iixrry. Alcoholic beverages may be imported from abroad by individuals for personal use (private import) without a licenie as mentioned in the first paragraph. The Ministry may issue.further requirements which must be met in iraeiTo, t-he-importation to be regarded as private import. om omsetning av akoholholdig 'Lo" drikk mv. Lov 1989-06-02-2/. unnofficial translation. Page 3 (Jndertakings can only deliver alcoholic beverages to individuals who import alcoholic beverages for personal use, provided the undertaking is registered as deliverer of alcoholic beverages on private imports at the Ministry of Health. Section 2-5: Time restrictions on delivery qf alcoholic beverages Delivery of alcoholic beverages relating to private imports may take place from 08:30 until l8:00. On the day before Sundays and holidays, the delivery shall stop at 15:00 [...J. Section 3-l : The right to retail alcoholic beverages The retailing of alcoholic beverages lcontaining more than 4.7 per cent alcohol by volume per cent up to 60 per cent alcohol by volume/ may only be carried on by AS Vinmonopolet on the basis of a municipal licence, or on the basis of authorisation as mentioned in section 3-la. Only alcoholic beverages supplied by a holder of a production or retail licence or by a party entitled to engage in wholesaling, or which have been imported pursuant to the third paragraph or by AS Vinmonopolet pursuant to section 2-l second paragraph, may be retailed. Section 3-7: Time restrictions on the retailinq and supol)) of alcoholic bevera?es contqining a maximum o.f 4.7 per cent alcohol by volume The retailing and supply of alcoholic beverages lcontaining a maximum of 4.7 per cent alcohol by volumel may take place between 0800 hrs and 1800 hrs. Retailing shall cease at t 500 hrs on days preceding Sundays and public holidays. [...J . The Norwegian Alcohol Regulation of 8 June 2005, no 538 ("the Alcohol Regulation"), provides in Section l5-5, paragraph2: "(Jndertakings that deliver alcoholic beverages to private persons that import alcoholic beverages for personal use shall: 2. be independent from the seller of the alcoholic beverage that is being delivered and shall not receive any direct or indirect advantage from the actual sale besides "2 normal r emuneration fo-r the s ervice pr ovided. 2 Forskift om omsetning av qlkoholholdig drikk mv. 2005-06-05, nr 538. Unofficial translation. Page 4 4 Relevant EEA taw Article 1l of the EEA Agreement reads: "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between the Contracting parties.,, Article 36 of the EEA Agreement provides: "Within the framework of the provisions of this Agreement, there shall be no restrictions on freedom to provide services within the territory of the Contracting Parties in respect of nationals of EC Member States and EFTA States wlrc are established in an EC Member State or an EFTA State other than that of the person for whom the services are intended.,, 5 The Authority,s assessment Below, the Authority intends first to explain the Norwegian system and legal framework that govem private importation of alcohol (Section s.t;lrherlafter, it wiu"show that the current Norwegian framework breaches the EEA rules on free movement of services as set out in Article 36 of the EEA Agreement (Section 5.2), and,/or the rules on free movement of goods as found in Article 1l of the EEA Agreiment (Section 5.3). The Authority considers that the Norwegian system breaches Uotn erticle l l and Article 36 EEA in parallel' However, in the alternative, the Authority considers that the systems breaches either Article 36, or Article 1l EEA only. At this stage. the Authority wishes to unclerline and clarify that it does not challenge the existence of the Norwegian retail monopoly as such, but onty the restriction that Norway imposes in the context ofprivate importation of alcoholic beverages into Norway. 5.1 Norwegian legalframeworkfor retail sale and private importation oJ'alcoholic beverages into Norway According to section 3-1 of the Alcohol Act, retail sale of alcoholic beverages may only be undertaken by vinmonopolet. According to Section 2-1, paragraph z oitrre Alcohol Act, vinmonopolet may also import alcoholic beverages upon a request from a private person. section 1-5 of the Alcohol Act provides that a minimum age limit must be respected while retailing, serving or supplying alcoholic beverages. Any plrivate importer of ilcohol must make sure that this minimum age limit is.".p."6d. According to the Alcohol Act, section 2-r, paragraph 3, a private person in Norway may import alcoholic beverages without the assistance tr involvement of Vinmonopolet into Norway, if it is intended for private use. The Authority understands that by;privat" ,se,, the Norwegian authorities mean that the beverages are intended for private consumption, or as a gift, or to be served in private parties. It is, however, not private import if it is the Page 5 importer's intention to sell the alcoholic beverages or make a professional use of those beverages. Private importation can, according to Section 2-l,paragraph 3 of the Alcohol Act, take the form of the importer carrying the beverages over the border himself, or, by using the services of a transport company authorised to deliver alcohol in Norway. It follows from Section 15-5, paragraph 2 of the Alcohol Regulation, that the delivery of the alcoholic beverages shall be independent from the actual sale of the beverages. The preparatory works3 to the recent amendment of the Alcohol Act underline that the delivery company bringing the alcoholic beverages to the private importer cannot have any other involvement in the sales arrangement of such beverages, but must have a completely independent role in relation to this sale.
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