European Union: The Gourmet-Case

Last Updated: 18 May 2004

This article was written by Ulf Djurberg1

A Revolution in the "Cuisine Suédoise" and a Major Development of EU Case Law?

1. Introduction - the Gourmet-case in the Swedish courts

In February this year, the Swedish Market Court delivered a historic judgement, declaring the Swedish general ban on commercial advertising of alcoholic beverages in periodicals incompatible with EU law. Since it is probably the first time in Swedish legal history that a legislative act has been ruled out by a supreme court, the judgement was followed by extensive coverage in Swedish and international press. Furthermore, the judgment being based on a preliminary ruling of the European Court of Justice (the "ECJ"), EU-sceptics could once again blame the Union for exporting contaminated goods to Swedish soil.

In 1997 the Swedish Consumer Ombudsman brought action against Gourmet, a periodical on food and drinks, in the Stockholm City Court, arguing that its advertising violated the general ban on commercial advertising of alcoholic beverages. Gourmet responded that the application of the Swedish ban contravened EU law principles on free movement of goods (Art. 28) and the freedom to provide services (Art. 49). The Stockholm City Court referred the case to the ECJ for a preliminary ruling. In its subsequent decision, the ECJ established that the Swedish ban was incompatible with the above principles of EU law, but left to Swedish courts to examine whether the ban could be justified i.e. proportionate to its objective to protect the health and life of humans.
In March 2002 the Stockholm City Court ruled that the ban was not proportionate to its objective. The judgement was appealed by the Consumer Ombudsman and in February this year, the Swedish Market Court confirmed the City Court’s judgement.

The remaining part of this article focuses on the main aspects of EU law handled by the ECJ.2

2. The Gourmet-case in the ECJ

2.1 Dasonville and Keck - Legal background

In its famous Dasonville judgement from the mid 70’s, the ECJ interpreted Art. 28 of the EU-Treaty as to cover any rule "capable of hindering, directly or indirectly, actually or potentially, intra-Community trade". This interpretation was in later case law imported to the area of free movement of services. It is obvious that the relevant ban to the Gourmet-case constitutes both a restriction on imports in to Sweden and a restriction to provide cross-border services, and would under the Dasonville doctrine be regarded as a breach of two of the fundamental provisions of EU law.

However, in the beginning of the 90’s, the ECJ shifted opinion in its Keck judgement holding that, contrary to what had been previously decided, national provisions restricting or prohibiting certain selling arrangements do not fall within the scope of Article 28, provided that the provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and products from other Member States.

The main issue in the Gourmet case was whether the ban in question fell within the scope of the Keck-rule, thereby falling outside EU-law.

2.2 New developments in EU case law

2.2.1 Introduction

In the Gourmet case, the ECJ had to consider whether the ban violated both the rules on free movement of services and the rules on free movement of goods.

2.2.2 The Free Movement of Services

Before the ECJ, Gourmet argued, to put it very simple, that the Keck-rule does not apply to services. The basis for this argumentation was, firstly, that an outright ban on advertising constitutes a restriction on the freedom to provide cross-border advertising service and, secondly, that there was no sign of the application of a Keck-rule in earlier case law.

Since the Court in the Gourmet case did not touch upon the possibility of a "Keck analogus" exception in the area of free movement of services, it could be presumed that the Gourmet-case was in fact a confirmation that the Keck-rule does not apply to services.

2.2.3 Free movement of goods

Gourmet argued that a general ban aimed at international, well-known, trading products preventing producers and distributors to use the most important measure to access and penetrate a specific national market cannot gain immunity from the Keck-rule. Gourmet further contended that the closing off effect of the ban was strengthen by the Swedish alcohol retail monopoly and the fact that the Swedish consumers are more familiar with Swedish than foreign products and brands.

In its reasoning in the Gourmet case, the ECJ makes a development of its Keck-judgement by stating that "such rules may not be of such a kind as to prevent access to the market or to impede access any more for imported products than it impedes the access of domestic products". Thus, the ECJ allegedly introduced/confirmed a market access test to the Keck-rule at the same time making clear that the Keck-rule shall not be interpreted in a static and formalistic way or, indeed, that the ECJ reversed the Keck-judgement and returned to the Dasonville doctrine (or a refined Dasonville doctrine).

A trader might wish that the Gourmet-judgement abandoned the Keck-rule and implied a return to the Dasonville-doctrine. However, the ECJ was very clear when it changed the Dasonville case law and one would assume that a fundamental change to that rule would have been indicated just as clearly. The general idea must therefore be that the Gourmet case only provides for a development of the Keck-rule, exempting it from application in the area of free movement services at the same time introducing a market access test. The ECJ stated clearly in the Gourmet case that the prohibition of all direct advertising for alcoholic beverages impeded access to the market by imported products more than by domestic products. By introducing an access to the market test the ECJ further made clear that the Keck-rule shall not be interpreted in a formal non-dynamic way.

The Gourmet case is a revolution in the "Cuisine Suèdoise" and a development of EU case law!

1. Ulf Djurberg of the law firm Setterwalls represented Gourmet in the proceedings before both national courts and the ECJ.

2. Due to limited space, this article do not cover details of the Gourmet judgement or other relevant case law. The article is moreover a simplification of both the legal background and the conclusions that could be drawn from the Gourmet-judgement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions