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C 310/4 EN Official Journal of the European Communities 9. 10.

98

Under Community law, only employees and self-employed persons who, on retirement, settle in a Member State
other than the one in which they previously worked and persons not in active employment may be required to
have a minimum level of resources as a condition for the issue of a residence permit. This requirement is
provided for by Directive 90/365/EEC on the right of residence for employees and self-employed persons who
have ceased their occupational activity (1) and by Directive 90/364/EEC on the right of residence. These
Directives were transposed into German law by the Verordnung of 17 July 1997, published in the
Bundesgesetzblatt on 22 July 1997. Under Article 8(2) of this instrument, the resources of a retired person or a
person not in active employment are deemed sufficient if they amount to DEM 1 170 per month.

Member States may, when processing applications for residence permits, check the level of available resources
only in the case of the retired people and non-active persons covered by the above two Directives.

The Commission is not aware of any cases in which German local authorities require, in breach of Community
law, other categories of citizens to provide evidence of their resources.

As far as the second point is concerned, the Commission does not normally answer hypothetical questions.

(1) OJ L 180, 13.7.1990.

(98/C 310/04) WRITTEN QUESTION E-3843/97


by Kirsi Piha (PPE) to the Commission
(5 December 1997)

Subject: ECJ’s decision concerning Sweden’s monopoly on the retail sale of alcohol

A few weeks ago the Court of Justice of the European Communities issued a ruling on the monopoly of alcohol
sales in Sweden. This case (the Frantzén case) also gave rise to a debate in Sweden’s neighbouring country
Finland, where the same kind of monopoly exists. The ECJ’s judgment was regrettable in itself since the
subsidizing of a monopoly sits uncomfortably with the Community’s principles of free competition and trade.
In Italy there are monopolies on, for example, tobacco, which are subsidized for comparable reasons. Now it
seems that in the EU’s view a monopoly can be approved on some grounds but not on others. What reasons
justify the retention of a monopoly in a Member State?

Answer given by Mr Monti on behalf of the Commission


(17 February 1998)

Legal monopolies which exist in the Member States are not necessarily incompatible with Community law and
do not always have to be abolished. However, national monopolies of a commercial character must comply with
the rules of the EC Treaty and in particular, the rules which govern the free movement of goods in Articles 30
to 37.

In accordance with the case-law of the Court of justice (Case C-189/95, Franzén, judgment of 23 October 1997)
national rules relating to the existence and operation of the monopoly have to be examined under Article 37 of the
EC Treaty. This provision requires national monopolies having a commercial character 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. The organisation and operation of the monopoly must thus be
arranged so as to exclude any discrimination between nationals of Member States as regards conditions of supply
and outlets, so that trade in goods from other Member States is not put at a disadvantage, in law or in fact, in
relation to that in domestic goods and that competition between the economies of the Member States is not
distorted.

Moreover, national rules may have a bearing upon the monopoly although they do not, strictly speaking, regulate
the functioning of the monopoly. Such rules are considered separable from the operation of the monopoly and are
examined with reference to Article 30 of the EC Treaty. The Court of Justice found in the Franzén case that a
licensing system applicable to imports of goods which imposes additional costs on goods from other Member
States, such as intermediary costs, payment of charges and fees for the grant of a licence, and costs arising from
the obligation to maintain storage capacity in the Member State of destination, is an obstacle to import contrary to
Article 30 of the EC Treaty. An obstacle may be considered justified and proportionate in relation to any
mandatory requirement accepted by Article 36 of the EC Treaty and the Court’s case-law, such as public health.
However the Court did not consider these conditions to be fulfilled in the circumstances applicable in the
Franzén case.