366 10 Exit of Shareholders
mercial character so as to ensure that no discrimination regarding the conditions
under which goods are procured and marketed exists between nationals of Mem-
ber States”.
Article 31(1) complements the prohibition of quantitative restrictions on im-
ports and all measures having equivalent effect.^161 Prohibitions or restrictions on
imports, exports or goods in transit are compatible with Community law only pro-
vided that they can be justified by public interest and they do not constitute any
means of arbitrary discrimination or a disguised restriction on trade between
Member States.^162
The purpose of Article 31(1) of the EC treaty is to reconcile the possibility for
Member States to maintain certain monopolies of a commercial character as in-
struments for the pursuit of public interest aims with the requirements of the estab-
lishment and functioning of the common market. It aims at the elimination of ob-
stacles to the free movement of goods, save, however, for restrictions on trade
which are inherent in the existence of the monopolies in question.^163
For example, it was held in Franzén that a domestic monopoly on the retail of alcoholic
beverages pursues a public interest aim where it aims to protect public health against the
harm caused by alcohol;^164 such a monopoly is therefore not prohibited by the EC Treaty as
such.
Article 31(1) thus does not require total abolition of State monopolies of a com-
mercial character, but it can require them to be adjusted.^165 As far as sales mo-
nopolies are concerned, the ECJ has held that monopolies are not allowed if they
are arranged in such a way as to put at a disadvantage, in law or in fact, trade in
goods from other Member States as compared with trade in domestic goods.^166
That was the case in Hanner.^167 The ECJ held in Hanner that the Swedish retail monopoly
for pharmaceuticals operated by Apoteket AB was not consistent with Community law, be-
cause Apoteket was entirely free to select a product range of its choice and there were no
structural safeguards or other measures that would have ensured that all discrimination was
ruled out.^168
(^161) Article 28 of the EC Treaty.
(^162) Article 30 of the EC Treaty.
(^163) Case C-189/95 Franzén [1997] ECR I-5909, paragraph 39.
(^164) Case C-189/95 Franzén [1997] ECR I-5909, paragraph 41.
(^165) Case C-438/02 Krister Hanner [2005] ECR I-4551, paragraph 34, citing Case 59/75
Manghera and Others [1976] ECR 91, paragraphs 4 and 5; Case 91/78 Hansen [1979]
ECR 935, paragraph 8; Case 78/82 Commission v Italy [1983] ECR 1955, paragraph 11;
Case C-387/93 Banchero [1995] ECR I-4663, paragraph 27; and Case C-189/95 Franzén
[1997] ECR I-5909, paragraph 38.
(^166) Case C-438/02 Krister Hanner [2005] ECR I-4551, paragraph 36; Case C-189/95 Fran-
zén [1997] ECR I-5909, paragraph 40.
(^167) Case C-438/02 Krister Hanner [2005] ECR I-4551.
(^168) Case C-438/02 Krister Hanner [2005] ECR I-4551, paragraphs 42–44.