Drinks Ireland submission on TRIS Notification 2026/0033/PL - Draft Act amending the Act on Upbringing in Sobriety and Counteracting Alcoholism and the Act on Healthcare Services Financed from Public Funds
On 23 January 2026, Poland submitted to the TRIS portal a Draft Act (hereafter “the draft Act”) amending the Act on Upbringing in Sobriety and Counteracting Alcoholism and the Act on Healthcare Services Financed from Public Funds (Notification 2026/0033/PL). The draft Act introduces a broad ban on advertising and strict restrictions on the online sale, and promotion of alcoholic beverages. While the stated objective of improving public health is legitimate, the draft raises concerns regarding compliance with EU law, the functioning of the Single Market, and the competitive operation of the alcohol sector.
This submission addresses the key provisions of the draft Act.
Advertising and Promotion Ban
The draft proposes a blanket ban on the advertising and promotion of alcoholic beverages, by:
- extending the definition of “promotion of alcoholic beverages”, by including any “financial or personal benefits” for the purchaser of alcoholic beverages, without limiting the promotion ban solely to activities directed at the public (end consumers). Such a broad definition of prohibited promotional activities may in practice result in a far-reaching ban on sales practices throughout the distribution chain, potentially also covering wholesale-level arrangements between manufacturers and distributors of alcoholic beverages (e.g. impacting business to business (B2B) discounts and other commercial practices). Polish law already provides for a general ban on the promotion of alcoholic beverages, therefore such a broad, unclear definition of the promotion of alcoholic beverages may in practice constitute a significant barrier to trade.
- The inclusion of “separate stands” in the advertising and promotion ban would mean that even at such separate retail stands (i.e., areas with consumers who have already decided to purchase alcohol), the advertising and promotion of alcoholic beverages would be prohibited. Such a ban would be particularly severe if the definition of promotion was extended in accordance with point 1 above (it could lead to a ban on, for example, discounts on goods at the point of sale).
- The introduction of a total ban on advertising alcoholic beverages at the point of sale. This would make it impossible to advertise alcoholic beverages at any point of sale, including in warehouse premises, at separate retail stands, in stores selling only alcoholic beverages, as well as at premises offering alcoholic beverages for consumption within the premises. Such a broad ban would likely prevent consumers from receiving information about the range of products for sale in a given location.
The impact assessments provided by Poland in relation to these measures rely extensively on the World Health Organisation’s (WHO) “best buy” recommendations and refer to Lithuania as a comparator. While the WHO’s recommendations provide valuable high-level policy guidance, they do not substitute the Member State’s obligation to demonstrate that the proposed measures are necessary and proportionate in its specific national context. It is also unclear whether Lithuania’s regulatory framework, media landscape, and market structure are sufficiently comparable to Poland’s to justify reliance on its experience as evidence of effectiveness. No detailed comparative analysis is provided.
Furthermore, the assessment does not include Poland-specific modelling to demonstrate that a total advertising ban, rather than targeted and evidence-based youth protection measures, is necessary to achieve the stated public health objectives.
It should also be noted that existing Polish regulations on the promotion of alcoholic beverages are already very restrictive (public encouragement to purchase alcoholic beverages is already completely prohibited, except for beer). Promotional activities are currently only permitted to a very limited extent and can only be directed at a limited, closed group of consumers who have already decided to purchase alcoholic beverages, as well as in relations between business entities (in the distribution chain). Therefore, in the current context, the promotional activities permitted do not serve to encourage the consumption of alcoholic beverages, but primarily to inform consumers about the range of alcoholic beverages on offer and to ensure the competitiveness of the various products available for sale, and are therefore a normal and desirable activity in a free market.
The further restrictions on promotional activities proposed in the draft may lead to a violation of EU freedoms. In particular, Article 34 TFEU (free movement of goods) which prohibits quantitative restrictions on imports and all measures having equivalent effect, could be contravened because a total ban on the advertising and promotion of alcoholic beverages restricts market access for imported products.
If interpreted broadly (as the literal wording may suggest), such a total ban may prohibit the promotion not only in consumer-facing contexts but also in B2B relationships within the distribution chain, in which special offers and launch discounts are commonly used marketing practices that enable products, including those imported from other Member States, to enter the national market and compete effectively.In particular, newly introduced products rely on such mechanisms to establish distribution channels, secure shelf space and build brand recognition in a competitive environment. By restricting or eliminating the use of these customary marketing practices, the draft may disproportionately disadvantage new entrants and imported brands, as compared to established operators with strong market recognition and existing distribution networks.
According to the case-law of the Court of Justice of the European Union, even measures that apply without formal discrimination may constitute measures having equivalent effect to quantitative restrictions if they substantially impede access to the market of a Member State for products originating in other Member States. A broad and far-reaching prohibition on advertising and promotion may therefore amount to such a measure if it significantly limits the practical ability of imported products to penetrate and compete on the national market.
Moreover, Article 56 TFEU (freedom to provide services across the EU) guarantees the freedom to provide services, including marketing and cross-border advertising, which may also be impeded. A broad prohibition that extends beyond public, consumer-facing advertising and encompasses standard commercial arrangements between economic operators, including trade marketing, distribution-related promotion or cross-border advertising services, and may therefore interfere with the freedom to provide services.
While Article 36 TFEU allows exceptions for public health, such measures must be necessary and proportionate (exceptions for public health and other interests). The draft does not provide evidence that a total advertising ban is the least restrictive way to achieve public health objectives. In particular, it does not assess whether less restrictive measures, for example those limited to clearly defined, consumer-facing practices that encourage excessive or impulsive purchases of alcoholic beverages could achieve the same objective without significantly restricting freedom of economic activity within the market.
Retail Restrictions and Nationwide Night Ban
The draft extends municipal powers to impose night-time bans from 22:00 to 09:00 and restrict points of sale (by prohibiting, for example, the sale of alcoholic beverages at petrol stations) as well as provides for a nationwide prohibition on sales (for off-premises consumption) between 22:00 and 06:00. Cumulative restrictions (both total restrictions on hours, the possibility of further local restrictions and restrictions on points of sale) may hinder market access for imported and cross-border products, raising concerns under Article 34 TFEU (free movement of goods).
While public health protection is legitimate under Article 36 TFEU (exceptions for public health), the draft does not assess less restrictive alternatives. Small retailers and cross-border suppliers are more likely to be disproportionately affected because the restrictions increase fixed costs and operational complexity in ways that scale-dependent players can absorb more easily:
- Limited resources: Small retailers cannot absorb lost sales from night-time bans as easily as larger chains. A few hours of closure can represent a significant portion of revenue.
- Distribution inflexibility: Cross-border suppliers may rely on centralized logistics and cannot easily adjust delivery schedules to comply with municipal restrictions. Large domestic chains can reallocate stock or adjust store hours more efficiently. The impact assessment briefly acknowledges the possibility of unintended effects, but does not provide any substantive analysis of these risks. The absence of an assessment of substitution effects or potential growth in the grey market weakens the overall necessity analysis. Under Article 36 TFEU, it is incumbent on the Member State to demonstrate that a measure is appropriate and does not go beyond what is necessary to achieve the stated objective. Without a reasoned evaluation of likely displacement effects, it is unlikely that this threshold has been met.
- Licensing and compliance burden: Each municipality could impose slightly different rules on opening hours. Navigating multiple local regulations creates administrative costs that are proportionally higher for small or foreign businesses.
- Market access dependency: Smaller or foreign suppliers often have fewer retail partners. Restrictions on sales hours or the number/location of points of sale would reduce the outlets available to them, disproportionately limiting their market reach. Navigating and monitoring local regulatory differences can be significantly more challenging for foreign operators, who may face informational and administrative barriers when attempting to identify and access alternative points of sale.
In short, the more fragmented and restrictive the local rules, the harder it is for smaller and cross-border actors to operate, whereas large domestic players can often absorb the cost or adapt their networks.
It must also be underlined that the draft does not provide any evidence that demonstrates that restricting the alcohol sales points (by prohibiting sales at petrol stations) or limiting sales hours would produce tangible effects in terms of significant benefits for public health or improving public safety. The proposed solution appears to be based solely on general statements and assumptions, without any supporting statistical analysis concerning the structure of the alcohol market or patterns of distribution and consumption. In the absence of such evidence, it should be concluded that the legislator has not fulfilled its obligation to carry out a proper proportionality assessment, as required under EU law, in accordance with Article 36 TFEU.
It should be also emphasised that currently Polish law allows municipalities to introduce certain restrictions on the night-time sale of alcohol, subject to control by administrative courts in each individual case (examining whether the municipality has properly conducted a so-called proportionality test, demonstrating that the restriction introduced will contribute to the intended goal).
The impact assessment acknowledges that municipalities already possess the authority to restrict sales hours and that a significant number have made use of this competence. It is therefore unclear why a uniform nationwide restriction is considered necessary, given that an existing local mechanism is available and actively applied. No evidence is presented to demonstrate that municipal level measures are ineffective or insufficient to achieve the stated objectives, nor that centralisation would deliver better outcomes.
If restrictions are introduced at a nationwide level, a judicial review would no longer be required. Meanwhile, the justification for the draft is limited only to indicating that the purpose of the ban is to reduce the excessive availability of alcohol (without a detailed analysis of the actual impact of the sales restriction on public health protection). Such a ban cannot therefore be considered proportionate considering Article 36 TFEU.
Minimum Pricing Linked to Excise and VAT
The draft introduces statutory minimum prices for alcoholic beverages. Article 34 TFEU (free movement of goods) may be breached as fixed minimum prices can restrict imports. Additionally, Article 110 TFEU (prohibition of discriminatory taxation) may be relevant if differential impacts favour certain domestic products. The impact assessment does not explore whether alternative fiscal measures could achieve equivalent public health outcomes.
Restriction of Distance Sales
The draft provides that online sales would be limited to collection at licensed physical points. Introducing the requirement for the customer to collect the order at a stationary (physical) point of sale is equivalent to introducing a ban on distance sales (the customers will not be able to collect the order at the location of their choice, e.g. at their place of residence). This restriction raises concerns under Article 34 TFEU (free movement of goods) and Article 56 TFEU (freedom to provide services across the EU), as well as the e-Commerce Directive (2000/31/EC) and the Services Directive (2006/123/EC), which protect cross-border service provision.
Current Polish legislation does not expressly regulate the distance (online) sale of alcohol. Over the years, the debate on the legality of alcohol home-delivery sales has produced many contradictory opinions. Recent case law appears to confirm the legality of such sales in Poland, however due to the absence of clear statutory provisions, the legal situation remains uncertain. To prevent ongoing legal uncertainty it is necessary to review Polish legislation and clearly define the conditions under which alcoholic beverages may be sold in the e-commerce sector.
Instead of the above, the draft introduces a de facto ban on online sales. Such a prohibition would raise serious concerns considering the freedom to conduct a business guaranteed under the Charter of Fundamental Rights of the European Union, EU rules on electronic commerce, and the principles of free movement of goods and services.
Although the proposed requirement formally applies equally to domestic and foreign traders, it may amount to indirect discrimination or, at minimum, a disproportionate obstacle to market access. Following the reasoning developed in Keck and Mithouard, national rules concerning selling arrangements fall outside Article 34 TFEU only if they apply to all relevant traders operating within the national territory and affect in the same manner, in law and in fact, the marketing of domestic and imported products. In the present case, that condition would not be fulfilled in practice.
Under Article 34 TFEU, quantitative restrictions on imports and all measures having equivalent effect (MEQRs) are prohibited. According to the well-established case law of the Court of Justice, any trading rule enacted by a Member State that can hinder, directly or indirectly, actually or potentially, intra-EU trade constitutes a measure having equivalent effect.
The requirement that online sales can only be collected at licensed physical points creates a significant practical barrier for producers from other Member States. While not impossible in theory, establishing such points abroad entails navigating complex licensing regimes, complying with local inspections, and investing in premises and staff. These administrative and operational burdens are particularly onerous for small and medium-sized producers, effectively delaying or preventing market access. As a result, the measure functions as a de facto restriction on cross-border online sales, raising concerns under Article 34 TFEU (free movement of goods) and TFEU 56 (freedom to provide services across the EU) and EU service provisions.
No evidence demonstrates that a full restriction is necessary for public health objectives. It seems that in the present case, less restrictive alternatives exist, including:
- robust online age-verification systems,
- mandatory identity checks at the moment of delivery.
Given the availability of such targeted measures, a blanket requirement to collect alcohol only at licensed physical points is excessive and tantamount to a ban on distance sales. In the absence of concrete evidence demonstrating that less restrictive mechanisms would be ineffective, the measure risks being disproportionate under EU law. Accordingly, the proposed restriction may constitute a measure having equivalent effect to a quantitative restriction under Article 34 TFEU and an unjustified restriction on the freedom to provide services under Article 56 TFEU, contrary to the principles governing the internal market of the European Union.
It would be sufficient (considering public health objective) to clearly and explicitly regulate these requirements in Polish law, to eliminate any doubts regarding selling alcohol beverages via e-commerce channel.
Expanded Enforcement and Sanctions
The draft significantly increases sanctions for breaches of advertising and promotion rules, including fines and custodial sentences for advertising, promotion and conduct that uses branding elements associated with alcoholic beverages. While enforcement is a national competence, penalties must be proportionate and compatible with the fundamental principles of EU law. Excessive sanctions that deter legitimate commercial activity may have a restrictive effect on trade within the meaning of Article 34 TFEU (free movement of goods).
In this context, the introduction of custodial penalties for breaches of advertising and promotion rules appears manifestly disproportionate to the nature of the alleged infringement. The imposition of substantial financial penalties alone already fulfils a strong preventive and deterrent function. Criminal proceedings, by their nature, entail serious personal and reputational consequences for the individuals concerned, including the risk of a criminal record and the long-term professional limitations that may follow from a conviction. Such consequences extend well beyond the immediate financial penalty and may significantly affect the ability of individuals to carry out business activities within the internal market.
The cumulative effect of severe financial penalties and custodial sanctions may therefore create a chilling effect on legitimate commercial communication and cross-border marketing strategies. In practice, this may discourage economic operators established in other Member States from entering or remaining in the Polish market, thereby restricting access to that market.
Technical Regulations – Product Forms and Packaging
The draft proposes to ban non-liquid forms of alcoholic beverages. These constitute technical regulations under Directive (EU) 2015/1535 and must comply with Article 34 TFEU (free movement of goods) and 36 TFEU (exceptions for public health and other interests), demonstrating necessity and proportionality. Non-liquid alcoholic products (powders, tablets, gels) are currently not widely available on the EU market. The draft ban therefore appears largely pre-emptive, raising questions on whether such a measure is necessary or proportionate to achieve public health objectives.
Impact Assessment
The draft’s Declared Regulatory Impacts do not consider alternatives to statutory measures, lack robust scientific evidence, and underestimate cumulative economic effects on SMEs, importers, cross-border trade, and competitiveness.The impact assessment accompanying Notification 2026/0033/PL evaluates the proposed measures in isolation. It does not assess their cumulative interaction with the restrictions introduced under Notification 2026/0016/PL. Under established EU proportionality principles, the necessity and proportionality of restrictions must be assessed in light of their combined economic and regulatory impact. The absence of a holistic assessment raises concerns as to whether the overall reform package satisfies the proportionality test under Articles 34 and 36 TFEU.
Conclusions
Pursuant to EU principles of subsidiarity and sincere cooperation, Poland should refrain from adopting measures that may pre-empt EU-level regulation or create barriers to trade. Based on the analysis above, Drinks Ireland requests the Commission to:
- Jointly assess notifications 2026/0033/PL and 2026/0016/PL. Although notified separately, the two draft Acts form part of a single, coordinated reform of the Polish alcohol regulatory framework. They pursue overlapping public health objectives, regulate interconnected aspects of market access, advertising, pricing and distribution, and rely on partially overlapping enforcement and financing mechanisms. Any assessment must consider their cumulative effects on intra-EU trade and services. A segmented assessment risks underestimating the overall restrictive impacts of the reform package.
- Conclude that the draft Act may create unjustified barriers to the free movement of goods and services in Europe, contrary to TFEU Single Market provisions.
- Inform Poland that the draft Act should be reconsidered to ensure compliance with Articles 34 (free movement of goods), 36 (exceptions for public health and other interests), 56 (freedom to provide services across the EU), and 110 TFEU (prohibition of discriminatory taxation) and relevant EU directives on services and technical regulations.
- Request renotification if Poland intends to maintain measures that disproportionately affect imported products or cross-border operators.
- ^ Judgment of the Court of 24 November 1993, Criminal proceedings against Bernard Keck and Daniel Mithouard. References for a preliminary ruling: Tribunal de grande instance de Strasbourg - France. Free movement of goods - Prohibition of resale at a loss. Joined cases C-267/91 and C-268/91.
- ^ Judgment of the Provincial Administrative Court in Rzeszów of May 22, 2019, II SA/Rz 200/19.
- ^ Judgment of the Supreme Administrative Court of September 8, 2022, II GSK 2034/18.
- ^ Judgment of the Court of 24 November 1993. Criminal proceedings against Bernard Keck and Daniel Mithouard. Joined cases C-267/91 and C-268/91.
- ^ Judgment of the Court of July 11, 1974.Procureur du Roi v. Benoît and Gustave Dassonville. Case 8-74.
