The court said: “The system of selecting medicinal preparations operated by the monopoly in question, Apoteket, is liable to place at a disadvantage medicinal preparations from other member states.”
Sweden will now have to ensure that the Apoteket system is freed up to avoid discrimination or opened up to competition.
A company called Bringwell International AB, run by Krister Hanner, faced criminal proceedings by the Swedish authorities for selling nicotine patches and nicotine chewing gum, classed as medicinal preparations in Sweden.
The Swedish court brought questions raised by the case to the European Court of Justice in order to ascertain if the sales monopoly on medicines is contrary to EU community law.
Under EU law, state monopolies may exist but they must be structured in such a way that there is no discrimination between nationals of member states. The court found that in the Apoteket case, there is no possibility for
suppliers of the products to ascertain why they were not selected or to contest selection decisions.
“On the contrary, Apoteket appears to be entirely free to select a product range of its choice,” said the court.
“In the absence of a selection system which excludes all discrimination against medicinal preparations from other member states, the sales monopoly in question cannot be justified,” concluded the court.