Effektlandsprincipen och gränsöverskridande digital marknadsföring : Marknadsrättsliga principers tillämplighet vid gränsöverskridande digital marknadsföring med särskilt fokus på det svenska detaljhandelsmonopolet av alkoholdrycker

Sammanfattning: In art. 3 of e-commerce directive, the country-of-origin principle is established, and in terms of cross-border digital marketing actions, it states that marketing actions compliant with the laws of its originating EU member state is considered compliant throughout the union. In contrast to the country-of-origin principle, there is another principle within Swedish marketing law, the country-of-effect principle, stating that any marketing actions that has effect in Sweden, must be compliant with the Swedish law. As general market law is harmonized in the EU the relationship between the two principles is rarely conflicted, and if they are, the country-of-origin principle prevails as EU law takes precedence over national law. However, the country-of-origin principle is subject to exceptions, one being for the benefit of public health, meaning that for such a purpose the country-of-effect principle might be applicable. The possibility to apply the country-of-effect principle as an exception for the benefit of public health has been processed in court, but never really been fully answered. The strongest argument advocating an application of the country-of-effect principle is related to circumstances surrounding strict Swedish alcohol laws, aiming to safeguard the public health by limiting their access to alcoholic beverages. And earlier this year, the Swedish supreme court had the opportunity to provide an answer in the anticipated Winefinder case (nr T 4709-22), but unfortunately, they disregarded the need for clarification. Therefore, this essay will instead, with the circumstances of the Winefinder case in mind, analyze the current possibilities to derogate from the country-of-origin principle in favor of the country-of-effect principle. During the analysis two main issues have been addressed. Firstly, the negative effects that current case law may have on the justification for Sweden’s state-owned monopoly (Systembolaget AB) for the sales of alcoholic beverages. As current case law stands, it allows privately owned e-commerce businesses to compete with Systembolaget, which may give rise to a questioning of the monopoly’s compliance with art. 36 TFEU as it no longer as effectively safeguards the public health. If instead the country-of-effect principle were to be applied in such circumstances, the e-commerce businesses would be infringing on Systembolaget’s exclusive right to retail, which would constitute a useful tool too make sure that the state monopoly still is compliant with art. 36. Finally, the suitability of the two principles were analyzed. In summary, the country-of-effect principle would be a more suitable approach in a modern digital environment. Reason being the simplicity in determining effect in a country and the possibility for national governments to protect vital national interests.