Free Movement of Goods 2

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19 FREE MOVEMENT OF GOODS: QUANTITATIVE RESTRICTIONS

1. i.

central issues

It is necessary to understand the way in which Articles 28–31 fit into the more general strategy concerning the free movement of goods. Articles 23–27 lay the foundations for a customs union by providing for the elimination of customs duties between Member States and by establishing a Common Customs Tariff. If matters rested there free movement would be only imperfectly attained. It would still be open to States to place quotas on the amount of goods that could be imported, and to restrict the flow of goods by measures that have an equivalent effect to quotas. The object of Articles 28–31 is to prevent Member States from engaging in these strategies.

ii. The ECJ’s interpretation of Articles 28–31 has been very important in achieving singlemarket integration. It has given a broad interpretation to the phrase ‘measures having equivalent effect’ to a quantitative restriction (MEQR), and has construed the idea of discrimination broadly to capture both direct and indirect discrimination. iii. The ECJ has also held that Article 28 can apply even where there is no discrimination. The famous Cassis de Dijon case1 decided that Article 28 can bite, subject to certain exceptions, when the same rule applies to both domestic goods and imports, where the rule inhibits the free flow of goods within the Community. Discrimination is therefore a sufficient, but not necessary, condition for the invocation of Article 28. There are, however, three central problems to be aware of in this area. iv. First, the ECJ’s jurisprudence has led to difficult issues about where this branch of EC law ‘stops’. The ECJ’s decision that Article 28 is applicable to trade rules even where they do not discriminate has led to difficulties about the outer boundaries of Community law. The law in this respect is still evolving. v. Secondly, there is a problem concerning the relationship between negative and positive integration. The ECJ’s approach in Cassis de Dijon leads to ‘negative integration’: indistinctly applicable rules will be rendered unenforceable when they hinder cross-border trade unless they come within one of the exceptions. Integration is essentially negative and deregulatory, in the sense that the national rules are held not to apply. This can be contrasted with ‘positive integration’, which results from Community legislative measures, 1

Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

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stipulating which rules should apply across the Community. There are, as will be seen, important consequences that flow from developing Community policy by these differing strategies. vi.

Thirdly, there is a tension between Community integration and national regulatory autonomy. The impact of Article 28 will often be to render national regulatory measures inapplicable. Article 28 therefore is a tool for policing the borderline between legitimate and illegitimate national regulation, and the nature of this border may well be contestable.2

vii. This topic exemplifies the interconnection between judicial and legislative initiatives for attaining the Community’s objectives, a theme stressed throughout this book. One way of dealing with trade rules that differ between Member States is through legislative harmonization. The process of such harmonization was, however, slow, a difficulty exacerbated by the requirement of unanimity in the Council.3 The ECJ’s jurisprudence constituted an alternative means for ensuring the free flow of goods even in the absence of legislation which harmonized the relevant rules. The message was clear: attainment of this central part of Community policy was not to be held up indefinitely by the absence of harmonization legislation. The Court’s approach to Article 28 was welcomed by the Commission, which made it clear that its own scarce resources should be best directed towards achieving harmonization in respect of those rules which were still lawful under the Cassis de Dijon formula, on the grounds that, for example, they were necessary to protect consumers or safeguard public health. The judicial approach, therefore, caused the Commission to reorient its own legislative programme. viii. The Community Courts have also maintained tight control over the application of Article 30, which is concerned with defences against a prima facie breach of Article 28. The ECJ has interpreted Article 30 strictly in order to ensure that discriminatory restrictions on the free movement of goods are not easily justified. There are however difficulties concerning the relationship between defences to discrimination and defences to indistinctly applicable rules.

2.

introduction

The discussion in the previous chapter focused on duties, taxes, and the like. This is, however, only part of the strategy for an integrated single market. The free movement of goods is dealt with in Articles 28–31 (ex Articles 30–36). The renumbering of the Treaty provisions pursuant to the ToA has meant that the old Article 30 is now Article 28, and the old Article 36 is now Article 30. Particular care is therefore required when reading case law based on the old numbering.4 Article 28 is the central provision within this Chapter of the Treaty. It states that: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

2 W.P.J. Wils, ‘The Search for the Rule in Article 30 EEC: Much Ado About Nothing?’ (1993) 18 ELRev. 475, 478; M. Maduro, We the Court, the European Court of Justice and the European Economic Constitution (Hart, 1998), 54–58. 3 See Ch. 17. 4 The old Arts. 31 to 33 which concerned transitional measures were repealed by the ToA.

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Article 29 contains similar provisions relating to exports, while Article 30 (ex Article 36) provides an exception for certain cases in which a State is allowed to place restrictions on the movement of goods.

3.

directive 70/50 and dassonville

Article 28 will catch quantitative restrictions and all measures which have an equivalent effect (MEQR). It can apply to Community measures,5 as well as those adopted by Member States. The notion of a quantitative restriction was defined broadly in the Geddo case6 to mean ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’. MEQRs are more difficult to define. The Commission and the Court have taken a broad view of such measures. Guidance on the Commission’s view can be found in Directive 70/50. This Directive was only formally applicable during the Community’s transitional period, but it continues to furnish some idea of the scope of MEQRs. The list of matters which can constitute an MEQR are specified in Article 2 and include:7 minimum or maximum prices for imported products; less favourable prices for imported products; lowering the value of the imported product by reducing its intrinsic value or increasing its costs; payment conditions for imported products which differ from those for domestic products; conditions in respect of packaging, composition, identification, size, weight, etc., which apply only to imported goods or which are different and more difficult to satisfy than in the case of domestic goods; the giving of a preference to the purchase of domestic goods as opposed to imports, or otherwise hindering the purchase of imports; limiting publicity in respect of imported goods as compared with domestic products; prescribing stocking requirements which are different from and more difficult to satisfy than those which apply to domestic goods; and making it mandatory for importers of goods to have an agent in the territory of the importing State. Article 2, therefore, lists a number of ways in which the importing State can discriminate against goods. It should be noted that, even as early as 1970, the Commission was thinking of the potential reach of Article 28 to indistinctly applicable rules, since Article 3 of the Directive, which will be considered below, regulates such rules to some degree. The seminal early judicial decision on the interpretation of MEQRs is Dassonville.

Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837 [Note ToA renumbering: Art. 36 is now Art. 30] Belgian law provided that goods bearing a designation of origin could only be imported if they were accompanied by a certificate from the government of the exporting country certifying their right to such a designation. Dassonville imported Scotch whisky into Belgium from France without being in possession of the certificate from the British authorities. The certificate would have been very difficult to obtain in respect of goods which were already in free circulation in

5 6 7

Case C–114/96 Criminal Proceedings against Kieffer and Thill [1997] ECR I–3629. Case 2/73 Geddo v. Ente Nazionale Risi [1973] ECR 865. Dir. 70/50 [1970] OJ L13/29, Art. 2(3).

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a third country, as in this case. Dassonville was prosecuted in Belgium and argued by way of defence that the Belgian rule constituted a MEQR. THE ECJ 5. All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. 6. In the absence of a Community system guaranteeing for consumers the authenticity of a product’s designation of origin, if a Member State takes measures to prevent unfair practices in this connection, it is however subject to the condition that these measures should be reasonable and that the means of proof required should not act as a hindrance to trade between Member States and should, in consequence, be accessible to all Community nationals. 7. Even without having to examine whether such measures are covered by Article 36, they must not, in any case, by virtue of the principle expressed in the second sentence of that Article, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. 8. That may be the case with formalities, required by a Member State for the purpose of proving the origin of a product, which only direct importers are really in a position to satisfy without facing serious difficulties. 9. Consequently, the requirement by a Member State of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another Member State than by importers of the same product coming directly from the country of origin constitutes a measure equivalent to a quantitative restriction as prohibited by the Treaty.

Two aspects of the ECJ’s reasoning should be noted. First, it is clear from paragraph 5 that the crucial element in proving a MEQR is its effect: a discriminatory intent is not required. The ECJ takes a broad view of measures that hinder the free flow of goods within the EC, and the definition does not even require that the rules actually discriminate between domestic and imported goods. Dassonville thus sowed the seeds which bore fruit in Cassis de Dijon,8 where the ECJ decided that Article 28 could apply to rules which were not discriminatory. Secondly, the ECJ indicates, in paragraph 6, that reasonable restraints may not be caught by Article 28. This is the origin of what became known as the ‘rule of reason’, the meaning of which will be examined below. We can now consider the application of Article 28 to cases involving discrimination, both direct and indirect.

4.

discriminatory barriers to trade

Article 28 can bite if the national rule favours domestic goods over imports, even if the case, on its facts, is confined to products and parties from one Member State.9 Article 28 can also apply to a national measure preventing import from one to another part of a Member State.10 8 9

Case 120/78 Rewe-Zentrale AG, n. 2 above. Cases C–321–4/94 Criminal Proceedings against Pistre [1997] ECR I–2343; Case C–448/98 Criminal Proceedings against Guimont [2000] ECR I–10663. 10 Case C–67/97 Criminal Proceedings against Bluhme [1998] ECR I–8033.

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There are numerous types of case involving direct or indirect discrimination between domestic and imported goods.

(a)

import and export restrictions

The ECJ has always been particularly harsh on discriminatory import or export restrictions. Thus import or export licences are caught by Article 28.11 So, too, are provisions which subject imported goods to requirements that are not imposed on domestic products. This is exemplified by Commission v. Italy,12 in which the ECJ held that procedures and data requirements for the registration of imported cars, making their registration longer, more complicated, and more costly than that of domestic vehicles, were prohibited by Article 28.13 The same approach is apparent with respect to discriminatory export rules. Thus in Bouhelier14 a French rule which imposed quality checks on watches for export, but not on those intended for the domestic market, was in breach of what is now Article 29.

(b)

promotion or favouring of domestic products

Article 28 prohibits action by a State that promotes or favours domestic products to the detriment of competing imports. This can occur in a number of different ways. The most obvious is where a State engages in a campaign to promote the purchase of domestic as opposed to imported goods.

Case 249/81 Commission v. Ireland [1982] ECR 4005 [Note ToA renumbering: Arts. 30, 92, 93, and 169 are now Arts. 28, 87, 88, and 226 respectively] The Irish Government sought to promote sales of Irish goods, the object being to achieve a switch of 3 per cent in consumer spending from imports to domestic products. It adopted a number of measures including: an information service indicating to consumers which products were made in Ireland and where they could be obtained (the Shoplink Service); exhibition facilities for Irish goods; the encouragement of the use of the ‘Buy Irish’ symbol for goods made in Ireland; and the organization of a publicity campaign by the Irish Goods Council in favour of Irish products, designed to encourage consumers to buy Irish products. The first two of these activities were subsequently abandoned by the Irish Government, but the latter two strategies continued to be employed. The Commission brought Article 169 proceedings, alleging that the campaign was an MEQR. Ireland argued that it had never adopted ‘measures’

11 Cases 51–54/71 International Fruit Company v. Produktschap voor Groenten en Fruit (No. 2) [1971] ECR 1107; Case 68/76 Commission v. French Republic [1977] ECR 515; Case C–54/05 Commission v. Finland, 25 Mar. 2007. 12 Case 154/85 [1987] ECR 2717. 13 See also Case 4/75 Rewe-Zentralfinanz v. Landwirtschaftskammer [1975] ECR 843. 14 Case 53/76 Procureur de la République Besançon v. Bouhelier [1977] ECR 197.

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for the purpose of Article 30, and that any financial aid given to the Irish Goods Council should be judged in the light of Articles 92 to 93, and not Article 30. The members of the Irish Goods Council were appointed by an Irish Government minister and its activities were funded in proportions of about six to one by the Irish Government and private industry respectively. The ECJ held that the Irish government was responsible under the Treaty for the activities of the Council even though the campaign was run by a private company, and then continued as follows. THE ECJ 21. The Irish government maintains that the prohibition against measures having an effect equivalent to quantitative restrictions in Article 30 is concerned only with ‘measures’, that is to say, binding provisions emanating from a public authority. However, no such provision has been adopted by the Irish government, which has confined itself to giving moral support and financial aid to the activities pursued by the Irish industries. 22. The Irish government goes on to emphasise that the campaign has had no restrictive effect on imports since the proportion of Irish goods to all goods sold on the Irish market fell from 49.2% in 1977 to 43.4% in 1980. 23. The first observation to be made is that the campaign cannot be likened to advertising by private or public undertakings . . . to encourage people to buy goods produced by those undertakings. Regardless of the means used to implement it, the campaign is a reflection of the Irish government’s considered intention to substitute domestic products for imported products on the Irish market and thereby to check the flow of imports from other Member States. ... 25. Whilst it may be true that the two elements of the programme which have continued in effect, namely the advertising campaign and the use of the ‘Guaranteed Irish’ symbol, have not had any significant success in winning over the Irish market to domestic products, it is not possible to overlook the fact that, regardless of their efficacy, those two activities form part of a government programme which is designed to achieve the substitution of domestic products for imported products and is liable to affect the volume of trade between Member States. ... 27. In the circumstances the two activities in question amount to the establishment of a national practice, introduced by the Irish government and prosecuted with its assistance, the potential effect of which on imports from other Member States is comparable to that resulting from government measures of a binding nature. 28. Such a practice cannot escape the prohibition laid down by Article 30 of the Treaty solely because it is not based on decisions which are binding upon undertakings. Even measures adopted by the government of a Member State which do not have binding effect may be capable of influencing the conduct of traders and consumers in that State and thus of frustrating the aims of the Community as set out in Article 2 and enlarged upon in Article 3 of the Treaty. 29. That is the case where, as in this instance, such a restrictive practice represents the implementation of a programme defined by the government which affects the national economy as a whole and which is intended to check the flow of trade between Member States by encouraging the purchase of domestic products, by means of an advertising campaign on a national scale and the organization of special procedures applicable solely to domestic products, and where those activities are attributable as a whole to the government and are pursued in an organized fashion throughout the national territory. 30. Ireland has therefore failed to fulfil its obligations under the Treaty by organizing a campaign to promote the sale and purchase of Irish goods within its territory.

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The ECJ’s reasoning provides an excellent example of its general strategy under Article 28. It looks to substance, not form. This is manifested in the way in which it rebuts the Irish argument that only formally binding measures are caught by the Article, (paragraphs 21 and 28); and in its rejection of the argument that, as the campaign appeared to have failed, therefore EC law should be unconcerned with it (paragraph 25).15 A second type of case caught by Article 28 is where a State has rules on the origin-marking of certain goods.

Case 207/83 Commission v. United Kingdom [1985] ECR 1201 [Note ToA renumbering: Arts. 30 and 169 are now Arts. 28 and 226] The Commission brought an Article 169 action, arguing that UK legislation which required that certain goods should not be sold in retail markets unless they were marked with their country of origin was in breach of Article 30, as an MEQR. The UK argued that the legislation applied equally to imported and national products, and that this information was of importance to consumers since they regarded origin as an indication of the quality of the goods. The extract relates to the first of these arguments. THE ECJ 17. [I]t has to be recognized that the purpose of indications of origin or origin-marking is to enable consumers to distinguish between domestic and imported products and that this enables them to assert any prejudices which they may have against foreign products. As the Court has had occasion to emphasise in various contexts, the Treaty, by establishing a common market . . . seeks to unite national markets in a single market having the characteristics of a domestic market. Within such a market, the origin-marking requirement not only makes the marketing in a Member State of goods produced in other Member States in the sectors in question more difficult; it also has the effect of slowing down economic interpenetration in the Community by handicapping the sale of goods produced as the result of a division of labour between Member States. 18. It follows from those considerations that the United Kingdom provisions in question are liable to have the effect of increasing the production costs of imported goods and making it more difficult to sell them on the United Kingdom market.16

Member State legislation which contains rules on origin-marking will normally be acceptable only if the origin implies a certain quality in the goods, that they were made from certain materials or by a particular form of manufacturing, or where the origin is indicative of a special place in the folklore or tradition of the region in question.17 15 The campaign may have had some impact, since the diminution in sales of Irish goods might have been greater had the campaign not existed. Not all measures which promote domestic goods will, however, be caught by the Treaty: Case 222/82 Apple and Pear Development Council v. K.J. Lewis Ltd. [1983] ECR 4083. 16 The ECJ also rejected the UK’s argument that origin-marking was related to consumer protection. The Court held that the origin-marking rules were only equally applicable to domestic and imported products as a matter of form: in reality they were intended to enable consumers to give preference to national goods: ibid., para. 20. 17 Case 12/74 Commission v. Germany [1975] ECR 181; Case 113/80 Commission v. Ireland [1981] ECR 1625.

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The Court’s clear intent to stamp firmly on national measures that favour domestic over imported products is equally apparent in a third type of case: public procurement cannot be structured so as to favour domestic producers.18

Case 45/87 Commission v. Ireland [1988] ECR 4929 [Note ToA renumbering: Arts. 30 and 169 are now Arts. 28 and 226] Dundalk Council put out to tender a contract for water supply. One of the contract clauses (4.29) was that tenderers had to submit bids based on the use of certain pipes which complied with a particular Irish standard (IS 188: 1975). One of the bids was based on the use of a piping which had not been certified by the Irish authorities, but which complied with international standards. The Council refused to consider it for this reason. The Commission brought an Article 169 action claiming a breach of Article 30. THE ECJ 19. [I]t must first be pointed out that the inclusion of such a clause (as 4.29) in an invitation to tender may cause economic operators who produce or utilize pipes equivalent to pipes certified with Irish standards to refrain from tendering. 20. It further appears . . . that only one undertaking has been certified by the IIRS19 to IS 188: 1975 to apply the Irish Standard Mark to pipes of the type required for the purposes of the public works contract at issue. That undertaking is located in Ireland. Consequently, the inclusion of Clause 4.29 had the effect of restricting the supply of the pipes needed for the Dundalk scheme to Irish manufacturers alone. 21. The Irish government maintains that it is necessary to specify the standards to which materials must be manufactured, particularly in a case such as this where the pipes utilized must suit the existing network. Compliance with another standard, even an international standard such as ISO 160: 1980, would not suffice to eliminate technical difficulties. 22. That technical argument cannot be accepted. The Commission’s complaint does not relate to compliance with technical requirements but to the refusal of the Irish authorities to verify whether those requirements are satisfied where the manufacturer of the materials has not been certified by the IIRS to IS 188. By incorporating in the notice in question the words ‘or equivalent’ after the reference to the Irish standard, as provided for by Directive 71/305 where it is applicable, the Irish authorities could have verified compliance with the technical conditions without from the outset restricting the contract to tenderers proposing to utilize Irish materials.

A fourth type of case is where the discrimination in favour of domestic goods is evident in administrative practice, as exemplified by Commission v. France.20 French law discriminated against imported postal franking machines. The law was changed, but a British company claimed that, notwithstanding this, the French authorities repeatedly refused to approve its machines. The ECJ held that consistent and general administrative discrimination against 18 Case C–21/88 Du Pont de Nemours Italiana SpA v. Unità Sanitaria Locale No. 2 di Carrara [1990] ECR I–889; Case 72/83 Campus Oil Ltd. v. Minister for Industry and Energy [1984] ECR 2727. 19 Institute for Industrial Research and Standards. 20 Case 21/84 Commission v. France [1985] ECR 1356.

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imports could be caught by Article 28. The discrimination could, for example, take the form of delay in replying to applications for approval, or refusing approval on the grounds of various alleged technical faults that were inaccurate.

(c)

price fixing

A State can treat imported goods less favourably than domestic products through price-fixing regulations which render it more difficult for importers to market their goods. If the price fixing is discriminatory it is clearly caught by Article 28.21 However, Article 28 can catch pricing rules even where they are not, on their face, discriminatory.

Case 82/77 Openbaar Ministerie v. Van Tiggele [1978] ECR 2522 Dutch legislation laid down minimum selling prices for certain spirits. A seller was accused in criminal proceedings of selling them below the stipulated price. The question before the ECJ was whether the minimum selling prices were a MEQR within Article 30 (28). THE ECJ 12. For the purposes of this prohibition it is sufficient that the measures in question are likely to hinder, directly or indirectly, actually or potentially, imports between Member States. 13. Whilst national price-control rules applicable without distinction to domestic products and imported products cannot in general produce such an effect they may do so in certain specific cases. 14. Thus imports may be impeded in particular when a national authority fixes prices or profit margins at such a level that imported products are placed at a disadvantage in relation to identical domestic products either because they cannot profitably be marketed in the conditions laid down or because the competitive advantage conferred by lower cost prices is cancelled out.

The ECJ found that the Dutch rule contravened what is now Article 28. It seems that rules that fix prices by reference to a maximum percentage profit will, by way of contrast, be found to be more readily compatible with this Article. Such rules may take account of differences in production cost between domestic goods and imports.23

(d)

measures which make imports more difficult or costly

There are numerous ways in which a Member State can render it more difficult for importers to break into that market, as exemplified by the Schloh case.

21 Case 181/82 Roussel Labaratoria BV v. The State of The Netherlands [1983] ECR 3849; Case 56/87 Commission v. Italy [1988] ECR 2919. 22 See also Case 65/75 Riccardo Tasca [1976] ECR 291. 23 Case 78/82 Commission v. Italy [1983] ECR 1955.

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Case 50/85 Schloh v. Auto Contrôle Technique [1986] ECR 1855 [Note ToA renumbering: Arts. 30 and 36 are now Arts. 28 and 30] Schloh bought a car in Germany and obtained from a Ford dealer in Belgium a certificate of conformity with vehicle types in Belgium. Under Belgian law he was required to submit his car to two roadworthiness tests, for which fees were charged. He challenged the tests, arguing that they were an MEQR. The extract concerns the first roadworthiness test. THE ECJ 12. . . . Roadworthiness testing is a formality which makes the registration of imported vehicles more difficult and more onerous and consequently is in the nature of a measure having an effect equivalent to a quantitative restriction. 13. Nevertheless, Article 36 may justify such a formality on grounds of the protection of human life and health, provided that it is established, first, that the test at issue is necessary for the attainment of that objective and, secondly, that it does not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. 14. As far as the first condition is concerned, it must be acknowledged that roadworthiness testing required prior to the registration of an imported vehicle may . . . be regarded as necessary for the protection of human health and life where the vehicle in question has already been put on the road. In such cases roadworthiness testing performs a useful function inasmuch as it makes it possible to check that the vehicle has not been damaged and is in a good state of repair. However such testing cannot be justified on those grounds where it relates to an imported vehicle carrying a certificate of conformity which has not been placed on the road before being registered in the importing Member State. 15. As far as the second condition is concerned, it must be stated that the roadworthiness testing of imported vehicles cannot, however, be justified under the second sentence of Article 36 of the Treaty if it is established that such testing is not required in the case of vehicles of national origin presented for registration in the same circumstances. If that were the case it would become apparent that the measure in question was not in fact inspired by a concern for the protection of human health and life but in reality constituted a means of arbitrary discrimination in trade between Member States. It is for the national court to verify that such nondiscriminatory treatment is in fact ensured.

The ECJ held that the Belgian rule was contrary to Article 28, save in relation to cars which were already on the road, provided that in this type of case the rules were applied in a nondiscriminatory fashion.

(e)

national measures versus private action

It seems clear that Article 28 applies to measures taken by the State,24 as opposed to those taken by private parties.25 Other Treaty provisions, notably Articles 81 and 82, will apply 24 S. Van den Bogaert, ‘Horizontality: The Court Attacks?’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 5. 25 Case 311/85 Vereniging van Vlaamse Reisebureau’s v. Sociale Dienst de Plaatselijke en Gewestelijke Overheidsdiensten [1987] ECR 3821, para. 30; Case C–159/00 Sapod-Audic v. Eco-Emballages SA [2002] ECR I–5031, para. 74.

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to actions by private parties that restrict competition and have an impact on inter-state trade.26 This means that the issue of what is a state entity has to be addressed. Thus in the ‘Buy Irish’27 case we have already seen that the ECJ rejected the argument that the Irish Goods Council was a private body and therefore immune from the application of Article 28. The Irish Government’s involvement with the funding of the organization and the appointment of its members was sufficient to render it public for these purposes, while in the Apple and Pear Development Council case28 the existence of a statutory obligation on fruit growers to pay certain levies to the Council sufficed to render the body public for these purposes. It is clear that institutions such as those concerned with trade regulation may come within the definition of the State for these purposes, even if they are nominally private, provided that they receive a measure of state support or ‘underpinning’.29 This Article can also apply against the State even though private parties have taken the main role in restricting the free movement of goods, as exemplified by Commission v. France.30 The Commission brought an Article 226 action against the French government for breach of what is now Article 28 combined with Article 10, because the government had taken insufficient measures to prevent French farmers from disrupting imports of agricultural produce from other EC countries. The ECJ held that it was incumbent on a government to take all necessary and appropriate measures to ensure that free movement was respected in its territory, even where the obstacles were created by private parties.31

(f) i.

summary

If a polity decides to embrace a single market, then discriminatory or protectionist measures will be at the top of the list of those to be caught, since they are directly opposed to the single market ideal.

ii. The court entrusted with policing such a regime must be mindful of the many different ways in which a State can seek to discriminate against imported goods. iii. The ECJ has been aware of this, and has made sure that indirect as well as direct discrimination is caught by Article 28.

26 27

See Chs. 25–26. Case 249/81 Commission v. Ireland [1982] ECR 4005. See also Case 325/00 Commission v. Germany [2002] ECR I–9977. 28 Case 222/82 Apple and Pear Development Council, n. 15 above. 29 Cases 266 and 267/87 R. v. The Pharmaceutical Society, ex p. API [1989] ECR 1295. 30 Case C–265/95 [1997] ECR I–6959; Case C–112/00 Schmidberger, Internationale Transporte und Planzuge v. Austria [2003] ECR I–5659, paras. 57–59. 31 See also Reg. 2679/98 of 7 Dec. 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States [1998] OJ L337/8, but for the weakness of this Reg. see Report from the Commission to the Council and European Parliament on the application of Regulation 2679/98, COM(2001)160 final.

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indistinctly applicable rules: cassis de dijon foundations: cassis de dijon

The removal of discriminatory trade barriers is undoubtedly a necessary condition for the attainment of single-market integration. It is not, however, sufficient. There are many rules that do not discriminate between goods dependent upon the country of origin, but which nevertheless create real barriers to the passage of products between Member States. The Commission appreciated this when framing Directive 70/50.32 Article 2 was concerned with discriminatory measures. Article 3 provided that the Directive also covered measures governing the marketing of products which deal, inter alia, with shape, size, weight, composition, presentation, and identification, where the measures were equally applicable to domestic and imported products, and where the restrictive effect of such measures on the free movement of goods exceeded the effects intrinsic to such rules. The possibility that Article 28 could be applied to indistinctly applicable rules was also apparent in Dassonville.33 The definition of an MEQR in paragraph 5 did not require a measure to be discriminatory. The seeds that were sown in Directive 70/50 and Dassonville came to fruition in the seminal Cassis de Dijon case.

Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649 [Note ToA renumbering: Art. 30 is now Art. 28] The applicant intended to import the liqueur ‘Cassis de Dijon’ into Germany from France. The German authorities refused to allow the importation because the French drink was not of sufficient alcoholic strength to be marketed in Germany. Under German law such liqueurs had to have an alcohol content of 25 per cent, whereas the French drink had an alcohol content of between 15 and 20 per cent. The applicant argued that the German rule was an MEQR, since it prevented the French version of the drink from being lawfully marketed in Germany. THE ECJ 8. In the absence of common rules relating to the production and marketing of alcohol . . . it is for the Member States to regulate all matters relating to the production and marketing of alcohol and alcoholic beverages on their own territory. Obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer. 9. The Government of the Federal Republic of Germany . . . put forward various arguments which, in its view, justify the application of provisions relating to the minimum alcohol content of 32 33

Dir. 70/50 [1970] OJ L13/29, Art. 2(3). Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837.

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alcoholic beverages, adducing considerations relating on the one hand to the protection of public health and on the other to the protection of the consumer against unfair commercial practices. 10. As regards the protection of public health the German Government states that the purpose of the fixing of minimum alcohol contents by national legislation is to avoid the proliferation of alcoholic beverages on the national market, in particular alcoholic beverages with a low alcohol content, since, in its view, such products may more easily induce a tolerance towards alcohol than more highly alcoholic beverages. 11. Such considerations are not decisive since the consumer can obtain on the market an extremely wide range of weakly or moderately alcoholic products and furthermore a large proportion of alcoholic beverages with a high alcohol content freely sold on the German market is generally consumed in a diluted form. 12. The German Government also claims that the fixing of a lower limit for the alcohol content of certain liqueurs is designed to protect the consumer against unfair practices on the part of producers and distributors of alcoholic beverages. This argument is based on the consideration that the lowering of the alcohol content secures a competitive advantage in relation to beverages with a higher alcohol content, since alcohol constitutes by far the most expensive constituent of beverages by reason of the high rate of tax to which it is subject. Furthermore, according to the German Government, to allow alcoholic products into free circulation wherever, as regards their alcohol content, they comply with the rules laid down in the country of production would have the effect of imposing as a common standard within the Community the lowest alcohol content permitted in any of the Member States, and even of rendering any requirements in this field inoperative since a lower limit of this nature is foreign to the rules of several Member States. 13. As the Commission rightly observed, the fixing of limits to the alcohol content of beverages may lead to the standardization of products placed on the market and of their designations, in the interests of a greater transparency of commercial transactions and offers for sale to the public. However, this line of argument cannot be taken so far as to regard the mandatory fixing of minimum alcohol contents as being an essential guarantee of the fairness of commercial transactions, since it is a simple matter to ensure that suitable information is conveyed to the purchaser by requiring the display of an indication of origin and of the alcohol content on the packaging of products. 14. It is clear from the foregoing that the requirements relating to the minimum alcohol content of alcoholic beverages do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community. In practice, the principal effect of requirements of this nature is to promote alcoholic beverages having a high alcohol content by excluding from the national market products of other Member States which do not answer that description. It therefore appears that the unilateral requirement imposed by the rules of a Member State of a minimum alcohol content for the purposes of the sale of alcoholic beverages constitutes an obstacle to trade which is incompatible with the provisions of Article 30 of the Treaty. There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limits set by the national rules.

The significance of Cassis de Dijon can hardly be overstated, and it is therefore worth dwelling upon the result and the reasoning.

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In terms of result the Court’s ruling in Cassis affirmed and developed the Dassonville judgment. It affirmed paragraph 5 of Dassonville: what is now Article 28 could apply to national rules that did not discriminate against imported products, but which inhibited trade because they were different from the trade rules applicable in the country of origin. The fundamental assumption was that, once goods had been lawfully marketed in one Member State, they should be admitted into any other State without restriction, unless the State of import could successfully invoke one of the mandatory requirements. The Cassis judgment encapsulated therefore a principle of mutual recognition: paragraph 14(4). The Cassis ruling also built upon paragraph 6 of Dassonville, in which the ECJ introduced the rule of reason: in the absence of Community harmonization, reasonable measures could be taken by a State to prevent unfair trade practices. Paragraph 8 of Cassis developed this idea. Four matters (fiscal supervision, etc.) were listed that could prevent a trade rule which inhibited the free movement of goods from being caught by what is now Article 28. This list is not, as will be seen below, exhaustive. The mandatory requirements that constitute the rule of reason are taken into account within the fabric of Article 28, and are separate from what is now Article 30. The reasoning in Cassis is as significant as the result. The core of the reasoning is to be found in paragraph 8 of the judgment. This is a paragraph to be savoured, and we can learn a lot about the Court’s style of adjudication by focusing upon it. The ECJ began by affirming the right of the States to regulate all matters that had not yet been the subject of Community harmonization. Yet within half a dozen lines the whole balance shifted. State regulation of such areas must be accepted, together with any obstacles to trade which might follow from disparities in national laws, but only in so far as these trade rules could be justified by one of the mandatory requirements listed in paragraph 8. What began as an assertion of States’ rights was transformed into a legal conclusion that required the State to justify the indistinctly applicable rules under the rule of reason. The ECJ scrutinized closely assertions that the mandatory requirements applied. Now to be sure the German government’s claim in paragraph 10 was risible, and the Court was more polite in its response than the argument warranted. The substance of the main claim in paragraph 12 was little better, and was countered in paragraph 13. The one point of real substance raised by the German government was to be found in paragraph 12(3), and it elicited no direct response from the Court. The effect of Cassis was deregulatory: it rendered inapplicable trade rules that prevented goods lawfully marketed in one State from being imported into another State. The result might be a common standard based on the country with the least demanding rules, what is often referred to as the ‘regulatory race to the bottom’.34 The implications of this will be considered below.35

(b)

application: the post-cassis jurisprudence

There were numerous cases applying Cassis to various trade rules.36 In Déserbais37 an importer of Edam cheese from Germany into France was prosecuted for unlawful use of a trade name.

34 35 36

This will not always be so: see 00. See below, 00. Case 298/87 Smanor [1988] ECR 4489; Case 407/85 Drei Glocken v. USL Centro-Sud [1988] ECR 4233; Case C–362/88 GB-INNO-BM v. Confédération du Commerce Luxembourgeois Asbl [1990] ECR I–667; Case C–30/99 Commission v. Ireland [2001] ECR I–4619; Case C–123/00 Criminal Proceedings against Bellamy and English Shop Wholesale SA [2001] ECR I–2795; Case C–14/02 ATRAL SA v. Belgium [2003] ECR I–4431. 37 Case 286/86 Ministère Public v. Déserbais [1988] ECR 4907.

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In Germany such cheese could be lawfully produced with a fat content of only 34.3 per cent, whereas in France the name Edam was restricted to cheese with a fat content of 40 per cent. The importer relied on Article 28 by way of defence to the criminal prosecution. The ECJ held, in accord with Cassis, that the French rule was incompatible with this Article, and could not be saved by the mandatory requirements.38 The same result was reached in Gilli and Andres,39 where importers of apple vinegar from Germany into Italy were prosecuted for fraud because they had sold vinegar in Italy which was not made from the fermentation of wine. The rule hampered Community trade and did not benefit from the mandatory requirements, since proper labelling could alert consumers to the nature of the product, thereby avoiding consumer confusion. The same approach was apparent in Rau,40 which was concerned with national rules on packaging rather than content. Belgian law required all margarine to be marketed in cubeshaped packages, irrespective of where it had been made, but it was clearly more difficult for non-Belgian manufacturers to comply without incurring cost increases. The ECJ held Article 28 was applicable, and that the Belgian rule could not be justified on the basis of consumer protection, since any consumer confusion could be avoided by clear labelling.

(c)

indistinctly applicable rules: article 29

Article 29 prohibits quantitative restrictions and MEQRs in relation to exports in the same manner as does Article 28 in relation to imports. The ECJ has, however, held that there is a difference in the scope of the two provisions. Whereas Article 28 will apply to discriminatory provisions and also to indistinctly applicable measures, Article 29 will, it seems, apply only if there is discrimination.41 An exporter faced with a national rule on, for example, quality standards for a product to be marketed in that State cannot use Article 29 to argue that such a rule renders it more difficult for that exporter to penetrate other Community markets. This was established in Groenveld.42 Dutch legislation prohibited all manufacturers of meat products from having in stock or processing horsemeat. The purpose was to safeguard the export of meat products to countries which prohibited the marketing of horseflesh. It was impossible to detect the presence of horsemeat within other meat products, and therefore the ban was designed to prevent its use by preventing meat processors from having such horsemeat in stock at all. The sale of horsemeat was not actually forbidden in the Netherlands. Nonetheless the Court held that the Dutch rule did not infringe what is now Article 29. The Article was aimed at national measures which had as their specific object or effect the restriction of exports, so as to provide a particular advantage for national production at the expense of the trade of other Member States. This was not the case here, said the Court, since the 38 The ECJ acknowledged that there might be cases where a product presented under a particular name was so different in terms of its content from products generally known by that name that it could not be regarded as falling within the same category. This was not so on the facts of the instant case. 39 Case 788/79 Italian State v. Gilli and Andres [1980] ECR 2071. See also Case C–17/93 Openbaar Ministerie v. Van der Veldt [1994] ECR I–3537. 40 Case 261/81 Walter Rau Lebensmittelwerke v. de Smedt Pvba [1982] ECR 3961. See also Case C–317/92 Commission v. Germany [1994] ECR I–2039; Case C–369/89 Groupement des Producteurs, Importeurs et Agents Généraux d’Eaux Minérales Etrangères (Piagème) Asbl v. Peeters Pvba [1991] ECR I–2971. 41 Case C–12/02 Criminal Proceedings against Marco Grilli [2003] ECR I–11585, paras. 41–42. 42 Case 15/79 P.B. Groenveld BV v. Produktschap voor Vee en Vlees [1979] ECR 3409. See also Case 237/82 Jongeneel Kaas v. The State (Netherlands) and Stichting Centraal Organ Zuivelcontrole [1984] ECR 483; Case 98/86 Ministère Public v. Mathot [1987] ECR 809; Case C–293/02 Jersey Produce Marketing Organisation v. States of Jersey [2005] ECR I–9543.

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prohibition applied to the production of goods of a certain kind without drawing a distinction depending on whether such goods were intended for the national market or for export.43 The rationale for making Article 28 applicable to measures which do not discriminate is that they impose a dual burden on the importer who will have to satisfy the relevant rules in his or her own State and also the State of import. This will not normally be so in relation to Article 29. Thus, in a case such as Groenveld the rule applied to all goods, those for both the domestic and the export market, and the goods were subject to no further rule at that stage of production or sale.44 One could, however, imagine instances where a dual burden might exist. There are, moreover, indications from the ECJ’s jurisprudence under what is now Article 49 that rules which apply to exporters will be caught even if they are not discriminatory.45 We shall discuss this issue further below.46

(d)

indistinctly applicable rules: the limits of article 28

Cassis signalled the ECJ’s willingness to extend Article 28 to catch indistinctly applicable rules. The difficulty is that all rules that concern trade, directly or indirectly, could be said to affect the free movement of goods in various ways. Thus, as Weatherill and Beaumont note, it could be said that rules requiring the owner of a firearm to have a licence, or spending limits imposed on government departments, reduce the sales opportunities for imported products.47 It would, as they say, seem absurd to bring such rules within Article 28, yet they could be caught by the Dassonville formula.48 A distinction can however be drawn, as Weatherill and Beaumont note,49 between what may be termed dual-burden rules and equal-burden rules. Cassis is concerned with dualburden rules. State A imposes rules on the content of goods. These are applied to goods imported from State B, even though such goods will already have complied with the trade rules in State B. Cassis prevents State A from imposing its rules in such instances, unless they can be saved by the mandatory requirements. Equal-burden rules are those applying to all goods, irrespective of origin, which regulate trade in some manner. They are not designed to be protectionist. These rules may have an impact on the overall volume of trade, but this will be no greater impact for imports than for domestic products. A key issue is whether rules of this latter nature should be held to fall within Article 28, subject to a possible justification, or whether they should be deemed to be outside Article 28 altogether. The result might be the same, in that the rule might be held lawful. The choice is nonetheless important. If these rules are within Article 28 they are prima facie unlawful, and the burden is on those seeking to uphold the rule to show objective justification. Both strategies were evident in the ECJ’s jurisprudence prior to Keck. 50

43 44 45

N. 42 above, para. 7. R. Barents, ‘New Developments in Measures Having Equivalent Effect’ (1981) 18 CMLRev. 271. Case C–384/93 Alpine Investments BV v. Minister van Financiën [1995] ECR I–1141. Jacobs AG doubted whether Groenveld, n. 42 above, would apply to rules of the exporting State which concerned the marketing of goods: [1995] ECR I–1141, para. 55. 46 See Ch. 22. 47 S. Weatherill and P. Beaumont, EU Law (3rd edn., Penguin, 1999), 608. 48 Case 8/74 [1974] ECR 837, para. 5. 49 N. 47 above, 608–609. 50 Cases C–267 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I–6097.

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In some cases it held that rules which did not relate to the characteristics of the goods and did not impose a dual burden on the importer, but concerned only the conditions on which all goods were sold, were outside Article 28. Thus in Oebel 51 the Court held that a rule which prohibited the delivery of bakery products to consumers and retailers, but not wholesalers, at night was not caught, since it applied in the same way to all producers wherever they were established.52 In other cases the Court held, however, that Article 28 could apply to rules which were not dissimilar to those in the preceding paragraph. Thus in Cinéthèque53 the ECJ held that a French law banning the sale or hire of videos of films during the first year in which the film was released, the objective being to encourage people to go to the cinema and hence protect the profitability of cinematographic production, was caught by Article 28, even though it did not favour domestic production and did not seek to regulate trade. The ECJ held that the French law could however be justified, since it sought to encourage the creation of films irrespective of their origin.54 The same approach to Article 28 is apparent in Sunday Trading cases.

Case 145/88 Torfaen BC v. B & Q plc [1989] ECR 3851 B & Q was prosecuted for violation of the Sunday trading laws which prohibited retail shops from selling on Sundays, subject to exceptions for certain types of products. B & Q claimed that these laws constituted an MEQR within Article 30. The effect of the laws was to reduce total turnover by about 10 per cent, with a corresponding diminution of imports from other Member States. But imported goods were, in this respect, in no worse a position than domestic goods: the reduction in total turnover affected all goods equally. THE ECJ 11. The first point which must be made is that national rules prohibiting retailers from opening their premises on Sunday apply to imported and domestic products alike. In principle, the marketing of products imported from other Member States is not therefore made more difficult than the marketing of domestic products. 12. Next, it must be recalled that in its judgment . . . in Joined Cases 60 and 61/84 (Cinéthèque) the Court held, with regard to a prohibition of the hiring of video-cassettes applicable to domestic and imported products alike, that such a prohibition was not compatible with the principle of the free movement of goods provided for in the Treaty unless any obstacle to Community trade thereby created did not exceed what was necessary in order to ensure the attainment of the objective in view and unless that objective was justified with regard to Community law. 13. In those circumstances it is therefore necessary in a case such as this to consider first of all whether rules such as those at issue pursue an aim which is justified with regard to

51 52

Case 155/80 [1981] ECR 1993, para. 20. See also Case 148/85 Direction Générale des Impôts and Procureur de la République v. Forest [1986] ECR 3449, para. 11; Case 75/81 Belgian State v. Blesgen [1982] ECR 1211; Case C–23/89 Quietlynn Ltd. v. Southendon-Sea BC [1990] ECR I–3059. 53 Cases 60 and 61/84 Cinéthèque SA v. Fédération Nationale des Cinémas Français [1985] ECR 2605. 54 The ECJ’s approach can be contrasted with that taken by Slynn AG, who argued that the French law should fall outside Art. 28, since it did not impose any additional requirement on importers: ibid., 2611.

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Community law. As far as this question is concerned the Court has already stated in its judgment . . . in Case 155/80 (Oebel [1981] ECR 1993) that national rules governing the hours of work, delivery and sale in the bread and confectionery industry constitute a legitimate part of economic and social policy, consistent with the objectives of public interest pursued by the Treaty. 14. The same consideration must apply as regards national rules governing the opening hours of retail premises. Such rules reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for Member States. Furthermore such rules are not designed to govern the patterns of trade between Member States. 15. Secondly, it is necessary to ascertain whether the effects of such national rules exceed what is necessary to achieve the aim in view. As is indicated in Article 3 of Commission Directive 70/50 . . . the prohibition laid down in Article 30 covers national measures governing the marketing of products where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules. 16. The question whether the effects of specific national rules do in fact remain within that limit is a question to be determined by the national court. 17. The reply to the first question must therefore be that Article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind.

The approach in Torfaen was conceptually identical to that in Cinéthèque. The rule was prima facie caught by what is now Article 28, but it could escape prohibition provided that there was some objective justification, and that the effects of the rule were proportionate, the latter issue to be determined by national courts. Subsequent case law within the United Kingdom attested to the difficulty in applying the ECJ’s test.55 The ECJ sought to resolve these difficulties by making it clear that Sunday trading rules were proportionate.56 The fundamental approach nonetheless remained the same: such rules were prima facie within Article 28. The post-Torfaen case law simply made things easier for national courts by providing guidance on proportionality. The ECJ’s case law provided academics with much material concerning the proper boundaries of Article 28. Some saw little wrong with the ECJ’s approach in Cinéthèque and Torfaen. Others were less happy with the Court’s approach.57 White distinguished between the characteristics of the goods and selling arrangements, a theme picked up by the ECJ in Keck.

55 Stoke City Council v. B & Q plc [1990] 3 CMLR 31; Wellingborough BC v. Payless [1990] 1 CMLR 773; B & Q plc v. Shrewsbury BC [1990] 3 CMLR 535; Payless v. Peterborough CC [1990] 2 CMLR 577; A. Arnull, ‘What Shall We Do On Sunday?’ (1991) 16 ELRev. 112. 56 Case C–312/89 Union Département des Syndicats CGT de l’Aisne v. SIDEF Conforama [1991] ECR I–997; Case C–332/89 Ministère Public v. Marchandise [1991] ECR I–1027; Cases C–306/88, 304/90, and 169/91 Stokeon-Trent CC v. B & Q plc [1992] ECR I–6457, 6493, 6635; Cases C–418–421, 460–462, and 464/93, 9–11, 14–15, 23–24, and 332/94 Semeraro Casa Uno Srl v. Sindaco del Commune di Erbusco [1996] ECR I–2975. 57 J. Steiner, ‘Drawing the Line: Uses and Abuses of Art. 30 EEC’ (1992) 29 CMLRev. 749.

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| free movement: quantitative restrictions E. White, In Search of the Limits to Article 30 of the EEC Treaty58

[A]s the judgment of the Court in Cassis de Dijon clearly shows, Member States are not entitled to require that imported products have the same characteristics as are required of, or are traditional in, domestic products unless this is strictly necessary for the protection of some legitimate interest. There is not, however, the same need to require the rules relating to the circumstances in which certain goods may be sold or used in the importing Member State to be overridden for this purpose as long as imported products enjoy equal access to the market of the importing Member State compared with national goods. In such a case the imported product is not deprived of any advantage it derives from the different legal and economic environment prevailing in the place of production. In fact, any reduction of total sales (and therefore imports) which may result from restrictions on the circumstances in which they may be sold does not arise from disparities between national rules but rather out of the existence of the rules in the importing Member State.

6.

indistinctly and distinctly applicable rules: keck and selling arrangements

(a)

keck: selling arrangements

Cases C–267 and 268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I–6097 [Note ToA renumbering: Arts. 30 and 177 are now Arts. 28 and 234] Keck and Mithouard (K & M) were prosecuted in the French courts for selling goods at a price which was lower than their actual purchase price (resale at a loss), contrary to a French law of 1963 as amended in 1986. The law did not ban sales at a loss by the manufacturer. K & M claimed that the French law was contrary to Community law concerning, inter alia, free movement of goods. THE ECJ 12. It is not the purpose of national legislation imposing a general prohibition on resale at a loss to regulate trade in goods between Member States. 13. Such legislation may, admittedly, restrict the volume of sales, and hence the volume of sales of products from other Member States, in so far as it deprives traders of a method of sales promotion. But the question remains whether such a possibility is sufficient to characterize the legislation in question as a measure having equivalent effect to a quantitative restriction on imports.

58 (1989) 26 CMLRev. 235, 246–247, italics in the original. See also K. Mortelmans, ‘Article 30 of the EEC Treaty and Legislation Relating to Market Circumstances: Time to Consider a New Definition’ (1991) 28 CMLRev. 115, 130.

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14. In view of the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case law on this matter. 15. In ‘Cassis de Dijon’ . . . it was held that, in the absence of harmonization of legislation, measures of equivalent effect prohibited by Article 30 include obstacles to the free movement of goods where they are the consequence of applying rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labelling, packaging) to goods from other Member States where they are lawfully manufactured and marketed, even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods. 16. However, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment . . . provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and fact, the marketing of domestic products and of those from other Member States. 17. Where those conditions are fulfilled, the application of such rules to the sale of products from another Member State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty. 18. Accordingly, the reply to be given to the national court is that Article 30 of the EEC Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss.

It is clear that the rationale for the decision was based in part upon the distinction between dual-burden rules and equal-burden rules: paragraphs 15 to 17. Cassis-type rules relating to the goods themselves were within Article 28, in part because these rules would have to be satisfied by the importer in addition to any such provisions existing within his or her own State (paragraph 15). Such rules were by their very nature59 likely to impede access to the market for imported goods. Rules concerning selling arrangements, by way of contrast, imposed an equal burden on all those seeking to market goods in a particular territory (paragraph 17). They did not impose extra costs on the importer,60 their purpose was not to regulate trade (paragraph 12), and they did not prevent access to the market. They were therefore not within Article 28, provided that they affected in the same manner in law or fact domestic and imported goods: the second part of paragraph 16. The reference to the earlier case law that was being reassessed (paragraph 16) was unclear, because the Court did not name specific cases. It appeared to encompass decisions such as Torfaen and probably Cinéthèque,61 since the challenged rules concerned selling arrangements which affected importers no more than domestic producers and the effect on intraCommunity trade was a reduction in the volume of sales. 59 Cases C–401 and 402/92 Criminal Proceedings against Tankstation ’t Heustke vof and J.B.E. Boermans [1994] ECR I–2199, 2220. 60 Ibid. 61 In Cases C–401 and 402/92 Tankstation, n. 59 above,Van Gerven AG felt that Cinéthèque would be decided differently now in the light of Keck.

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The ECJ’s desire to exclude selling arrangements from the ambit of Article 28 is apparent from later case law. In Tankstation62 the Court held that national rules which provided for the compulsory closing of petrol stations were not caught by Article 28. The ECJ repeated its ruling in Keck, and concluded that the rules related to selling arrangements that applied equally to all traders without distinguishing the origin of the goods. In Punto Casa63 and Semeraro64 the Court reached the same conclusion in relation to Italian legislation on the closure of retail outlets on Sundays. The rule applied equally to domestic and imported products, and therefore was outside the scope of Article 28. The same theme is apparent in Hunermund,65 where the ECJ held that a rule prohibiting pharmacists from advertising para-pharmaceutical products that they were allowed to sell was not caught by Article 28. The Court observed that the rule was not directed towards intra-Community trade, that it did not preclude traders other than pharmacists from advertising such goods, and that it applied evenly as between all traders. Although the rule might have some impact on the overall volume of sales, this was not enough to render it an MEQR for the purpose of Article 28. The ECJ also held that national provisions restricting the number of outlets for a given product, or imposing a licensing requirement, were outside Article 28. This was either because the rule related to selling arrangements, or because the impact was too indirect and uncertain.66

(b)

keck: static and dynamic selling arrangements

While one can appreciate the ECJ’s desire to limit Article 28, the distinction drawn in Keck between rules that go to the nature of the product itself and those which relate to the selling arrangements for that product is problematic. The problem resides in ambiguity about the meaning of the term ‘selling arrangements’. This could connote only what may be termed static selling arrangements: rules relating to the hours at which shops may be open, the length of time for which people may work, or the type of premises in which certain goods may be sold. Non-static or dynamic selling arrangements include the ways in which a manufacturer chooses to market this specific product, through a certain form of advertising, free offers, and the like. The objection to taking the latter out of Article 28 is that they may relate more closely to the definition of the product itself. Legislation that restricted certain forms of advertising or salespromotion might limit intra-Community trade, even if the rules were indistinctly applicable. It might force a producer to adopt sales-promotion or advertising schemes which differed as between States, or to discontinue a scheme which was thought to be particularly effective.67 Non-static selling arrangements can therefore form an integral aspect of the goods, in much the same way as do rules relating to composition, labelling, or presentation. Yet it is clear from Keck that the Court regarded some such rules as selling arrangements and hence outside Article 28. Thus in paragraph 13 of its judgment it admitted that a rule 62 63 64 65 66

Ibid. Cases C–69 and 258/93 Punto Casa SpA v. Sindaco del Commune di Capena [1994] ECR I–2355. N. 56 above. Case C–292/92 R. Hunermund v. Landesapothekerkammer Baden-Württemberg [1993] ECR I–6787. Case C–387/93 Banchero [1995] ECR I–4663; Case C–379/92 Peralta [1994] ECR I–3453; Cases C–140–142/94 Dip SpA v. Commune di Bassano del Grappa [1995] ECR I–3257. 67 Case 286/81 Oosthoek’s Uitgeversmaatschappij BV [1982] ECR 4575. See also Case 382/87 Buet v. Minstère Public [1989] ECR 1235; Cases C–34–36/95 Konsumentombudsmannen (KO) v. De Agostini (Svenska) Forlag AB and TV-Shop i Sverige AB [1997] ECR I–3843.

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prohibiting sales at a loss deprived traders of a method of sales-promotion, and hence reduced the volume of sales, and yet treated this rule as a selling arrangement which was outside Article 28. While in Hunermund 68 and Leclerc-Siplec69 a limited ban on advertising was characterized as a method of sales-promotion and held to be outside Article 28, and in Schmidt70 a prohibition on doorstep sales of silver jewellery was held prima facie to fall outside Article 28.

(c)

keck and selling arrangments: two judicial qualifications

It is clear that if the challenged national rule requires the alteration of packaging or labelling of the imported products this generally precludes it from being a selling arrangement within Keck.71 The exclusion of selling arrangements from the ambit of Article 28 is moreover subject to two important qualifications. First, it is open to the ECJ to characterize rules which affect selling as part of the product itself, and hence within the ambit of Article 28. This is exemplified by Familiapress.72

Case C–368/95 Vereinigte Familiapress Zeitungsverlags- und Vertreibs GmbH v. Heinrich Bauer Verlag [1997] ECR I–3689 [Note ToA renumbering: Art. 30 is now Art. 28] Familiapress, an Austrian newspaper publisher, sought to restrain HBV, a German publisher, from publishing in Austria a magazine containing crossword puzzles for which the winning readers would receive prizes. Austrian legislation prohibited publishers from including such prize competitions in their papers. Austria argued that its legislation was not caught by Article 30, since the national law related to a method of sales promotion, and was therefore, according to Keck, outside Article 30. THE ECJ 11. The Court finds that, even though the relevant national legislation is directed against a method of sales promotion, in this case it bears on the actual content of the products, in so far as the competitions in question form an integral part of the magazine in which they appear. As a result, the national legislation in question as applied to the facts of the case is not concerned with a selling arrangement within the meaning of the judgment in Keck and Mithouard. 12. Moreover, since it requires traders established in other Member States to alter the contents of the periodical, the prohibition at issue impairs access of the products concerned to the market of the Member State of importation and consequently hinders free movement of

68 69 70 71

Case C–292/92 Hunermund, n. 65 above. Case C–412/93 Société d’Importation Edouard Leclerc-Siplec v. TFI Publicité SA [1995] ECR I–179. Case C–441/04 A-Punkt Schmuckhandels GmbH v. Schmidt [2006] ECR I–2093. Case C–12/00 Commission v. Spain [2003] ECR I–459, para. 76; Case C–416/00 Morellato v. Commune di Padova [2003] ECR I–9343, paras. 29–30. Compare Case C–159/00 Sapud Audic, n. 25 above, paras. 72–75. 72 See also Case C–67/97 Criminal Proceedings against Bluhme [1998] ECR I–8033, para. 21; Cases C–158 and 159/04 Alfa Vita Vassilopoulos AE and Carrefour Marinopoulos AE v. Elliniko Dimosio and Nomarchiaki Aftodioikisi Ioanninon [2006] ECR I–8135.

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goods. It therefore constitutes in principle a measure having equivalent effect within the meaning of Article 30 of the Treaty.

The very distinction drawn between selling arrangements and product characteristics nonetheless generates further questions as to how, for example, cases concerned with the use of products should be regarded. In Mickelsson,73 Advocate General Kokott proposed that restrictions on use should be treated analogously with selling arrangements. They should therefore be regarded as falling outside Article 28, provided that they were not productrelated, applied to all relevant traders in the national territory, and affected in the same manner, in law and fact, domestic and imported goods. Secondly, even if a rule is categorized as being about selling, it will still be within Article 28 if the rule has a differential impact, in law or fact, for domestic traders and importers.74 This is made clear in paragraph 16 of Keck and is exemplified by the following cases.75

Cases C–34–36/95 Konsumentombudsmannen (KO) v. De Agostini (Svenska) Forlag AB and TV-Shop i Sverige AB [1997] ECR I–3843 [Note ToA renumbering: Arts. 30 and 36 are now Arts. 28 and 30] The case concerned a Swedish ban on television advertising directed at children under 12 and a ban on commercials for skincare products. It was argued that this was in breach of Article 30, and hence could not be applied in relation to advertising broadcast from another Member State. The ECJ, following Leclerc-Siplec, characterized the Swedish law as one concerning selling arrangements. It then continued as follows. THE ECJ 40. In . . . Keck . . . at paragraph 16, the Court held that national measures restricting or prohibiting certain selling arrangements are not covered by Article 30 . . . so long as they apply to all traders operating within the national territory and as long as they affect in the same manner, in law and fact, the marketing of domestic products and of those from other Member States. 41. The first condition is clearly fulfilled in the cases before the national court. 42. As regards the second condition, it cannot be excluded that an outright ban, applying in one Member State, of a type of promotion for a product which is lawfully sold there might have a greater impact on products from other Member States. 43. Although the efficacy of the various types of promotion is a question of fact to be determined in principle by the referring court, it is to be noted that . . . de Agostini stated that television advertising was the only effective form of promotion enabling it to penetrate the Swedish market since it had no other advertising methods for reaching children and their parents.

73 Case C–142/05 Åklagaren v. Mickelsson and Roos, 14 Dec. 2006. At the time of writing the ECJ’s decision is awaited. Compare Case C–110/05 Commission v. Italy, 5 Oct. 2006, Leger AG. 74 The determination of this possible differential impact will often be left to the national court: see, e.g., Case C–20/03 Burmanjer [2005] ECR I–4133; Case C–441/04 Schmidt, n. 70 above. 75 P. Koutrakos, ‘On Groceries, Alcohol and Olive Oil: More on Free Movement of Goods after Keck’ (2001) 26 ELRev. 391.

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44. Consequently, an outright ban on advertising aimed at children less than 12 years of age and of misleading advertising . . . is not covered by Article 30 . . . , unless it can be shown that the ban does not affect in the same way, in fact and in law, the marketing of national products and of products from other Member States. 45. In the latter case, it is for the national court to determine whether the ban is necessary to satisfy overriding requirements of general public importance or one of the aims listed in Article 36 of the Treaty, if it is proportionate to that purpose and if those aims or requirements could not have been attained or fulfilled by measures less restrictive of intra-Community trade.

Case C–405/98 Konsumentombudsmannen (KO) v. Gourmet International Products AB (GIP) [2001] ECR I–1795 [Note ToA renumbering: Art. 30 is now Art. 28] The Swedish Consumer Ombudsman sought an injunction restraining GIP from placing advertisements for alcohol in magazines. Swedish law prohibited advertising of alcohol on radio and television, and prohibited advertising of spirits, wines, and strong beer in periodicals other than those distributed at the point of sale. The prohibition on advertising did not apply to periodicals aimed at traders such as restaurateurs. GIP published a magazine containing advertisements for alcohol. 90 per cent of the subscribers were traders, and 10 per cent were private individuals. GIP argued that the advertising ban was contrary to, inter alia, Article 30. It contended that the advertising ban had a greater effect on imported goods than on those produced in Sweden. THE ECJ 18. It should be pointed out that, according to paragraph 17 of its judgment in Keck and Mithouard, if national provisions restricting or prohibiting selling arrangements are to avoid being caught by Article 30 of the Treaty, they must not be of such a kind to prevent access to the market by products from another state or to impede access any more than they impede the access of domestic products. 19. The Court has also held, in paragraph 42 of . . . De Agostini . . . that it cannot be excluded that an outright prohibition, applying in one Member State, of a type of product which is lawfully sold there might have a greater impact on products from other Member States. 20. It is apparent that a prohibition on advertising . . . not only prohibits a form of marketing a product but in reality prohibits producers and importers from directing any advertising messages at consumers, with a few insignificant exceptions. 21. Even without its being necessary to carry out a precise analysis of the facts characteristic of the Swedish situation, which it is for the national court to do, the Court is able to conclude that, in the case of products like alcoholic beverages, the consumption of which is linked to traditional social practices and to local habits and customs, a prohibition of all advertisements in the press, on the radio and on television, the direct mailing of unsolicited material or the placing of posters on the public highway is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are instantly more familiar. ...

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25. A prohibition on advertising such as that in issue . . . must therefore be regarded as affecting the marketing of products from other Member States more heavily than the marketing of domestic products and as therefore constituting an obstacle to trade between Member States caught by Article 30 of the Treaty.

In de Agostini and Gourmet the relevant advertising ban was total. However the ECJ has also brought cases which impeded market access within Article 28. In Franzen Swedish law required a licence for those, including importers, engaged in the making of alcohol or in wholesaling it. This was held to infringe Article 28, since it imposed additional costs on importers, and because most licences had been issued to Swedish traders.76 In Heimdienst the ECJ showed that it was willing to consider the proviso to paragraph 16 of Keck in relation to a selling arrangement that impeded, rather than prevented, access to the market.77

Case C–254/98 Schutzverband gegen unlauteren Wettbewerb v. TK-Heimdienst Sass GmbH [2000] ECR I–151 The case concerned an Austrian rule relating to bakers, butchers, and grocers. They could make sales on rounds in a given administrative district only if they also traded from a permanent establishment in that district or an adjacent municipality, where they offered for sale the same goods as they did on their rounds. The ECJ classified the rule as one relating to selling arrangements, since it specified the geographical areas in which such operators could sell their goods in this manner. The ECJ found that the legislation did have a differential impact on domestic traders and others. Local economic operators would be more likely to have a permanent establishment in the administrative district or an adjacent municipality, whereas others would have to set up such an establishment, thereby incurring additional costs. THE ECJ 29. It follows that the application to all operators trading in the national territory of national legislation such as that in point in the main proceedings in fact impedes access to the market of the Member State of importation for products from other Member States more than it impedes access for domestic products (see to this effect . . . Alpine Investments . . .).

(d)

judicial and academic opinion concerning keck: equality and market access

Reaction to the Keck decision was not generally favourable.78 It was argued that Keck placed too much emphasis on factual and legal equality at the expense of market access. The 76 77

Case C–189/95 Criminal Proceedings against Franzen [1997] ECR I–5909. See also Case C–322/01 Deutscher Apothekerverband v. 0800 Doc Morris NV and Jacques Waterval [2003] ECR I–14887, paras. 68–75; Case C–20/03 Burmanjer, n. 74 above. 78 See, e.g., N. Reich, ‘The “November Revolution’’ of the European Court of Justice: Keck, Meng and Audi Revisited’ (1994) 31 CMLRev. 459; D. Chalmers, ‘Repackaging the Internal Market—The Ramifications of the Keck Judgment’ (1994) 19 ELRev. 385; L. Gormley, ‘Reasoning Renounced? The Remarkable Judgment in Keck

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approach in Keck was, as we have seen, to deny that rules relating to selling arrangements came within Article 28, provided that such rules did not discriminate in law or fact between traders from different Member States. It was argued that this ignored the importance of market access: trading rules could be formally equal in the preceding sense, and still operate so as to inhibit market access. In so far as this might be so, it would, therefore, be misguided to exclude them from Article 28. This line of argument has been advanced judicially and in the academic literature. They will be considered in turn.

(i) Judicial Concern The concern was voiced judicially by Advocate General Jacobs in Leclerc-Siplec.79 The case concerned a prohibition on television advertising imposed by French law on the distribution sector, the purpose being to protect the regional press by forcing the sector to advertise through that medium. He felt that advertising could play a very important part in breaking down barriers to inter-state trade, and was therefore unhappy that it should always be outside Article 28.80 His preferred approach represented a subtle modification of the Keck formula. Advocate General Jacobs’ starting point was that all undertakings engaged in legitimate economic activity should have unfettered access to the market. If there was a substantial restriction on that access then it should be caught by Article 28. When the measure affected the goods themselves, as in Cassis-type cases, then it would be presumed to have this substantial impact. If, however, the contested measure affected selling arrangements and was not discriminatory, the substantiality of the impact would depend, inter alia, on: the range of goods affected, the nature of the restriction, whether the impact was direct or indirect, and the extent to which other selling arrangements were available. If there was no substantial impact, or the effect on trade was de minimis, then such measures would not be within Article 28. The ECJ however declined to follow the suggestions of the Advocate General and applied Keck to the case. The approach suggested by Advocate General Jacobs has nonetheless influenced the ECJ in its more recent jurisprudence. The ECJ has, as seen from de Agostini and Heimdienst, been willing to consider market access more seriously, and this has also been emphasized in other recent cases.81 It has done so through consideration of whether the proviso to paragraph 16 of Keck should be applicable. It has considered in particular whether the selling rule could have the same factual impact for the importer. It was not fortuitous that Advocate General Jacobs wrote the Opinions in de Agostini82 and Gourmet International,83 and that the ECJ adopted much of his reasoning.

& Mithouard’ [1994] EBLRev. 63; S. Weatherill, ‘After Keck: Some Thoughts on how to Clarify the Clarification’ (1996) 33 CMLRev. 885; Maduro, n. 3 above, 83–87; C. Barnard, ‘Fitting the Remaining Pieces into the Goods and Persons Jigsaw?’ (2001) 26 ELRev. 35. 79 N. 69 above, paras. 38–45. There is an interesting analogy here with competition law which in effect treats certain types of cartel behaviour as unlawful in and of themselves, while other types of activity are subjected to a market analysis to determine whether they do impede competition: see Ch. 25. 80 See also Jacobs AG in Case C–384/93 Alpine Investments, n. 76 above; Lenz AG in Case C–391/92 Commission v. Greece [1995] ECR I–1621, 1628–1629. 81 Case C–416/00 Morellato, n. 71 above, para. 31; Case C–98/01 Commission v. United Kingdom and Northern Ireland [2003] ECR I–4641, para. 46. 82 Cases C–34–36/95 de Agostini, n. 67 above, paras. 95–105. 83 Case C–405/98 Konsumentombudsmannen (KO) v. Gourmet International Products AB (GIP) [2001] ECR I–1795.

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Judicial concern has been voiced more recently by Advocate General Maduro in Alfa Vita.84 He noted that while Keck was intended to clarify the ambit of Article 28 it had ‘proved to be a source of uncertainty for economic operators’85 because of difficulties in distinguishing between rules relating to selling arrangements and product characteristics. It had also led to difficulty since this distinction did not apply in other areas of free movement, which could be especially problematic when the same facts raised issues concerning, for example, goods and services.86 Advocate General Maduro therefore proposed three criteria to guide the resolution of cases.87 First, discriminatory provisions, whether direct or indirect, were prohibited. Secondly, the imposition of supplementary costs on cross-border activity had to be justified. This served to explain classic Cassis de Dijon-type cases, where the imported products already had to comply with product rules and the attendant costs of the State of origin. The exclusion of selling arrangements from Article 28 was, said Maduro, explicable because they normally did not impose such costs, but where they did so they should be caught by Article 28. Thirdly, ‘any measure which impedes to a greater extent the access to the market and the putting into circulation of products from other Member States is considered to be a measure having equivalent effect within the meaning of Article 28 EC’.88

(ii) Academic Concern The academic argument for an approach based on market access was put forcefully by Weatherill.89 He drew upon the reasoning of Advocate General Jacobs considered above, and on jurisprudence concerned with Articles 49 and 39.90 Weatherill argued that the correct approach to Article 28, and the other Treaty Articles was to focus upon market access, and not just factual and legal equality. The reason the applicants failed in Keck was that ‘they were measures applying equally in law and in fact and exercising no direct impediment to the access to markets of a Member State’.91 He proposed the following test.

S. Weatherill, After Keck: Some Thoughts on How to Clarify the Clarification92 Measures introduced by authorities in a Member State which apply equally in law and in fact to all goods and services without reference to origin and which impose no direct or substantial hindrance to the access of imported goods or services to the market of that Member State escape the prohibition of Articles 30 and 59.93

84 85 86 87 88 89 90

Cases C–158 and 159/04 Alfa Vita, n. 72 above. Ibid., para. 31, Maduro AG. Ibid., paras. 33, 51. Ibid., paras. 43–45. Ibid., para. 45. (1996) 33 CMLRev. 885. Case C–384/93 Alpine Investments, n. 45 above; Case C–415/93 Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman [1995] ECR I–4921. 91 N. 89 above, 895. 92 Ibid., at 885, 896–897, 904–906, italics in the original. 93 Now Arts. 28 and 49.

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[Weatherill summarizes the argument in the following way:] Pre-Keck, the Court had lost sight of the link between Article 30 and internal market building by pushing it too far in the direction of general review of national market regulation disassociated from a need to show a hindrance to trading activities aimed at the realization of the internal market. The most notorious example was the ‘Sunday Trading’ saga. The subjection of all measures of national market regulation to supervision under Community law was beginning to damage the image and legitimacy of the European Court. Keck exploded the notion that there might be an individual ‘right to trade’ capable of vindication via EC internal market law, but Keck itself created a risk of toppling too far in the opposite direction, thereby imperilling the internal market, by focusing on factual and legal equality of application to the exclusion of questions of market access and obstruction to the construction of the cross-border commercial strategies. The principal significance of the post-Keck adjustment is the welcome confirmation that internal market law is not confined to supervision of measures that are legally or factually unequal in application. . . . In Keck, Leclerc-Siplec and other similar cases, the limit on commercial freedom could not be directly connected to any cross-border aspect of the activity. In Alpine Investments, by contrast, the cross-border aspect was of direct significance; so too in Bosman, whose access to employment in another state was directly affected by the rules. . . . The injection of an adequate cross-border element enables a claim not simply to an equality right, but instead to the dynamic protection of Community law on free movement, subject only to the capacity of the regulator to show justification for the restrictions. . . .

The academic argument in favour of market access was reinforced by Barnard who, like Weatherill, drew on case law from persons and services, as well as goods.

C. Barnard, Fitting the Remaining Pieces into the Goods and Persons Jigsaw?94 [A]n approach based on the access to the market provides us with a more sophisticated framework for analysing the goods and persons case law. . . . [T]his is the approach advocated by Advocate General Jacobs in Leclerc. Non-discriminatory measures which directly and substantially impede access to the market (including the extreme case of preventing access to the market altogether) breach the Treaty provision unless they can be justified under one of the public interest grounds or the express derogations and are proportionate (Schindler, Alpine and Bosman). In the case of non-discriminatory measures which do not substantially hinder access to the market the Court will say either that the impediment is too uncertain and remote and so does not breach the Treaty provision at all (Graf, Krantz), or that the measure has no effect whatsoever on inter-state trade and so is not caught by EC law at all—the outcome is the same. This means that national restrictions on, for example, planning or the green belt, which were introduced for a variety of environmental and social reasons not directly concerned with inter-state trade, can be dealt with adequately. They are not ‘certain selling arrangements’ in the formal sense, but they are not discriminatory and they do not substantially hinder access to the market. Similarly, national restrictions on the opening hours of shops do not substantially hinder access to the market but merely curtail the exercise of that freedom. However extreme limits on opening hours may well substantially hinder access to the market and so should breach Article 28 and need to be justified. 94

(2001) 26 ELRev. 35, 52.

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(e)

keck, article 28, and market access: meaning and application

Market access may well be the idea underlying the jurisprudence on free movement. It is, however, necessary to clarify the meaning and application of this concept. First, it is important to be clear about the meaning accorded to market access in the ECJ’s case law on goods. In Keck prevention or impediment to market access appeared to be simply the consequence of a national rule that applied differentially as between domestic traders and importers: paragraphs 16 and 17. The focus in the post-Keck case law was on the existence of such factual or legal differentiation. The ECJ has more recently subtly shifted its position, according greater status to market access in its own right. In Gourmet International95 the ECJ stated that selling arrangements would be outside Article 28 only if they did not prevent access to the market by imported products or impede access by imports more than they impeded access by domestic products. Secondly, it is equally important to understand the general meaning of market access. Market access can be viewed from the perspective of both producer and consumer. For the producer, free movement facilitates sales of goods into different national markets, with the primary objective of challenging existing producers in the country of import and the secondary objective of allowing economies of scale to be reaped. Market access is a means to an end, the end being to maximize sales/profits for the individual producer, and to enhance the optimal allocation of resources for the Community as a whole. From the perspective of the consumer, free movement increases choice. If Germans are given the option of drinking Dutch beer then some may prefer it to the domestic product. Thirdly, it is doubtful whether a rigid distinction can be drawn between dynamic and static selling arrangements so far as market access is concerned. The market-access approach is normally thought to apply to dynamic selling arrangements. There is, however, a reluctance to apply the reasoning to static selling arrangements, in the sense of shop hours, locations, and the like. If, however, limitations on the mode of marketing/advertising are to be regarded as going to market access, then why should this not also be so in terms of limitations on points of sale? The success of the producer in penetrating new markets may be affected by limitations on where and when goods can be sold as by constraints on marketing.96 It may be argued that restrictions on where and when goods can be sold would not have a direct and substantial impact on market access. This is, however, contingent on the factual circumstances of the particular case. It cannot be regarded as an a priori proposition. It is similarly difficult to maintain a rigid distinction between rules going to access and those that merely affect the volume of sales. A producer perceives rules that limit advertising as detrimental because they will lead to a reduction in sales. There is no difference between a rule prohibiting certain forms of marketing or advertising leading to a diminution in sales of 30 per cent, and a rule which limits the number or operating hours of shops, leading to the same sales reduction. Both rules can affect the volume of sales and penetration of the new market. Non-discriminatory static selling arrangements may therefore, as Barnard rightly notes, substantially hinder market access.97 Finally, we must be cognizant of the difficulties of applying a test based on direct and substantial impact of access to the market. Proponents of the test recognize that this can be difficult to 95 96

Case C–405/98 Gourmet International, n. 83 above, para. 18. This was the argument made, unsuccessfully, in Cases C–418–421, 460–462, and 464/93, 9–11, 14–15, 23–24, and 332/94 Semeraro, n. 56 above. 97 Barnard, n. 94 above, 52; C. Barnard, The Substantive Law of the EU: The Four Freedoms (Oxford University Press, 2004), 144–148.

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estimate.98 A court may have to take into account the range of goods affected, the existence or not of alternative selling arrangements, and the nature of the restriction itself. This will not be an easy task for the ECJ. It will be even more difficult for national courts.99 However, the ECJ may provide guidance to the national court, as in de Agostini,100 or it may go further and state there has been an impediment to market access, as in Gourmet International.101 It is true that the ECJ, CFI, and national courts have to face not dissimilar tasks in the context of competition law, when deciding whether an agreement has an effect on competition. There are, however, real differences between the two areas. In competition law the backdrop to the inquiry is a developed micro-economic theory about cartels which deviate from perfect or imperfect competition; in free movement of goods there is no ready consensus on what does or does not come within the meaning of market access. In competition law private agreements are at stake; in free movement it is national regulations.

(f) i.

summary and choices

The case law prior to Keck exemplified the difficulties in defining the outer boundaries of Article 28. The ECJ in its pre-Keck jurisprudence was being asked to apply this Article to an ever-wider range of rules, the effect of which on trade was marginal. We have seen, however, that Keck itself was criticized for being overly formalistic, by drawing a distinction between rules relating to the characteristics of the product and those concerning selling arrangements, which is unsatisfactory. This dissatisfaction led to the call to focus on market access. There are in essence three choices concerning the approach to Article 28.

ii. The first choice is to use prevention, or direct and substantial hindrance, of access to the market as the criterion for the applicability of Article 28. This would be beneficial in focusing attention on a key policy reason underlying free movement of goods, services, and persons. The need to consider whether there has been some substantial restriction of market access does, however, inevitably entail costs, both for courts applying the test and for private parties who may be uncertain about the legality of their planned conduct. iii. The second choice is for a test based on substantial hindrance to market access, subject to presumptions based on the type of case. This was the approach of Advocate General Jacobs in Leclerc-Siplec.102 When the measure affected the goods themselves, as in Cassis-type cases, then it would be presumed to have this substantial impact. If, however, the contested measure affected selling arrangements and was not discriminatory, the substantiality of the impact would depend on factors such as the range of goods affected, the nature of the restriction, whether the impact was direct or indirect, and the extent to which other selling arrangements were available. It would on this view still be necessary to distinguish between cases concerning product characteristics and those concerning selling arrangements. iv. The third choice would be to persist with the test in Keck as developed by later case law. Selling arrangements are presumptively outside Article 28, but can be caught either by 98 99

Weatherill, n. 89 above, 898–901; Barnard, n. 94 above, 55–56. National courts are intended to apply Art. 28 and hence to disapply conflicting national law of their own initiative, subject always to the possibility of an Art. 234 reference: Case C–358/95 Tommaso Morellato v. Unità Sanitairia Locale (USL) No. 11 di Pordenone [1997] ECR I–1431. 100 Cases C–34–36/95 de Agostini, n. 67 above. 101 Case C–405/98 Gourmet International, n. 83 above. 102 N. 69 above.

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| free movement: quantitative restrictions being reclassified as concerned with product characteristics, or because they have a differential application in law or fact. The ECJ in Keck intended to draw a more formal line as to the types of rule caught by Article 28. It was hoped that public and private costs would thereby be reduced, and that there would be clearer guidance on the limits of legitimate trading activity. However the more the ECJ reclassifies cases, the more closely it inquires into whether a selling arrangement has a differential impact, and the more it places direct emphasis on market access, the less certain is the outcome in any particular case. The reduction in public and private costs thereby diminishes, and the guidance on the legitimate limits of trading activity becomes less clear.

v. The indications are that the ECJ is in reality moving away from the third test, and towards the second.

7.

defences to discriminatory measures: article 30

If trade rules are found to be discriminatory103 they can be saved through Article 30 (ex Article 36): The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

It will come as no surprise to learn that the Court has construed Article 30 strictly. Discriminatory rules will be closely scrutinized to ensure that the defence pleaded is warranted on the facts of the case, and they must also pass a test of proportionality: the discriminatory measure must be the least restrictive possible to attain the end in view. The burden of proof under Article 30 rests with the Member State.104

(a)

public morality

Two of the main precedents concerned challenges to laws dealing with pornography. In Henn and Darby105 the ECJ was willing to accept that a UK ban on the import of pornography could be justified under what is now Article 30, notwithstanding the fact that domestic law did not ban absolutely the possession of such material. The ECJ concluded that the overall purpose of UK law was to restrain the manufacture and marketing of pornography, and that there was no lawful trade in such goods within the UK. However, a different result was reached in Conegate. 103 It may of course be debatable whether a rule really is discriminatory, and therefore whether it is caught by Art. 28, and requires justification under Art. 30. A good example is Case C–2/90 Commission v. Belgium [1992] ECR I–4431, noted by L. Hancher and H. Sevenster (1993) 30 CMLRev. 351, and D. Geradin (1993) 18 ELRev. 144. 104 Case C–17/93 Openbaar Ministerie v. Van der Veldt [1994] ECR I–3537. 105 Case 34/79 R. v. Henn and Darby [1979] ECR 3795.

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Case 121/85 Conegate Ltd. v. Commissioners of Customs and Excise [1986] ECR 1007 [Note ToA renumbering: Arts. 30, 36, and 177 are now Arts. 28, 30, and 234] Conegate imported life-size inflatable dolls from Germany into the UK. The invoice for the dolls claimed that they were for window displays, but the Customs officials were unconvinced, particularly when they found items described as ‘love love dolls’. They seized the goods, and magistrates ordered them to be forfeit. Conegate argued that the seizure and forfeiture were in breach of Article 30. The national court asked whether a prohibition on imports could be justified even though the State did not ban the manufacture or marketing of the same goods within the national territory. The ECJ repeated its reasoning from Henn and Darby that it was for each Member State to decide upon the nature of public morality for its own territory. It continued as follows. THE ECJ 15. However, although Community law leaves the Member States free to make their own assessments of the indecent or obscene character of certain articles, it must be pointed out that the fact that goods cause offence cannot be regarded as sufficiently serious to justify restrictions on the free movement of goods where the Member State concerned does not adopt, with respect to the same goods manufactured or marketed within its territory, penal measures or other serious and effective measures intended to prevent the distribution of such goods in its territory. 16. It follows that a Member State may not rely on grounds of public morality to prohibit the importation of goods from other Member States when its legislation contains no prohibition on the manufacture or marketing of the same goods on its territory. 17. It is not for the Court, within the framework of the powers conferred on it by Article 177 . . . to consider whether, and to what extent, the United Kingdom legislation contains such a prohibition. However, the question whether or not such a prohibition exists in a State comprised of different constituent parts which have their own internal legislation can be resolved only by taking into consideration all the relevant legislation. Although it is not necessary, for the purposes of the application of the above-mentioned rule, that the manufacture and marketing of the products whose importation has been prohibited should be prohibited in the territory of all the constituent parts, it must at least be possible to conclude from the applicable rules, taken as a whole, that their purpose is, in substance, to prohibit the manufacture and marketing of those products. 18. In this instance . . . the High Court took care to define the substance of the national legislation the compatibility of which with Community law is a question which it proposes to determine. Thus it refers to rules in the importing Member State under which the goods in question may be manufactured freely and marketed subject only to certain restrictions . . . namely an absolute prohibition on the transmission of such goods by post, a restriction on their public display and, in certain areas of the Member States concerned, a system of licensing of premises for the sale of those goods to customers aged 18 years and over. Such restrictions cannot however be regarded as equivalent in substance to a prohibition on manufacture and marketing.

The UK defence based on what is now Article 30 failed. The distinction between Conegate and Henn and Darby lies in the ECJ’s evaluation of whether the banned imported goods were

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being treated more harshly than similar domestic goods. In Henn and Darby the ECJ was willing to find that UK law restrained the manufacture and marketing of pornography sufficiently to enable it to conclude that there was no lawful trade in such goods within the UK. In Conegate, by way of contrast, the ECJ reached the opposite conclusion. It is clear, then, that while Member States are free to determine the sense of public morality applicable within their territory, they cannot place markedly stricter burdens on goods coming from outside than those that are applied to equivalent domestic goods.

(b)

public policy

Public policy constitutes a separate head of justification within Article 30. The phrase is potentially broad, but the ECJ has resisted attempts to interpret it too broadly. The Court has, for example, rejected arguments that the term ‘public policy’ can embrace consumer protection. The ECJ has reasoned that since Article 30 derogates from a fundamental rule of the Treaty enshrined in Article 28, it must be interpreted strictly, and cannot be extended to objectives not expressly mentioned therein.106 A public policy justification must, therefore, be made in its own terms, and cannot be used as a means to advance what amounts to a separate ground for defence. It is for this reason that relatively few cases contain detailed examination of the public policy argument. The issue was considered in Centre Leclerc:

Case 231/83 Cullet v. Centre Leclerc [1985] ECR 305 [Note ToA renumbering: Arts. 30 and 36 are now Arts. 28 and 30] French legislation imposed minimum retail prices for fuel fixed primarily on the basis of French refinery prices and costs. The Court found that this constituted an MEQR within Article 30, since imports could not benefit fully from lower cost prices in the country of origin. The French Government sought to justify its action on the basis, inter alia, of public policy within Article 36. It argued that, in the absence of the pricing rules, there would be civil disturbances, blockades, and violence. Both the Advocate General and the ECJ rejected this argument, but for different reasons. ADVOCATE GENERAL VERLOREN VAN THEMAAT107 However, I would add that the acceptance of civil disturbances as justification for encroachments upon the free movement of goods would, as is apparent from experiences of last year (and before, during the Franco–Italian ‘wine war’) have unacceptably drastic consequences. If roadblocks and other effective weapons of interest groups which feel threatened by the importation and sale at competitive prices of certain cheap products or services, or by immigrant workers or foreign businesses, were accepted as justification, the existence of the four fundamental freedoms of the Treaty could no longer be relied upon. Private interest groups would then, in the place of the Treaty and Community (and, within the limits laid down by the

106 Case 113/80 Commission v. Ireland [1981] ECR 1625; Case 177/83 Kohl v. Ringelhan [1984] ECR 3651; Case 229/83 Leclerc v. Au Blé Vert [1985] ECR 1. 107 [1985] 2 CMLR 524, 534.

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Treaty, national) institutions, determine the scope of those freedoms. In such cases, the concept of public policy requires, rather, effective action on the part of the authorities to deal with such disturbances. THE ECJ 32. For the purpose of applying Article 36, the French Government has invoked the disturbances to law and order (ordre public) and public security caused by violent reactions which should be expected from retailers affected by unrestricted competition. 33. On this point it is sufficient to observe that the French Government has not shown that an amendment of the regulations in question in conformity with the principles set out above would have consequences for law and order (ordre public) and public security which the French Government would be unable to meet with the resources available to it.

Thus, while the Advocate General rejected the French argument on principle, the ECJ appeared to accept that it could be pleaded under what is now Article 30, while rejecting it on the facts. The ECJ’s approach might well have been simply a more diplomatic way of disposing of the point, but the Advocate General is more convincing as a matter of principle. If interestgroup pressure leading to potential violence could constitute justification under Article 30 then fundamental Community freedoms would be placed in jeopardy.108

(c)

public security

Case 72/83 Campus Oil Ltd. v. Minister for Industry and Energy [1984] ECR 2727 [Note ToA renumbering: Arts. 30 and 36 are now Arts. 28 and 30] Irish law required importers of petrol into Ireland to buy 35 per cent of their requirements from a state-owned oil refinery at prices fixed by the Irish Government. This rule was held to constitute a MEQR within Article 30. In defence Ireland relied on public policy and security within Article 36. It argued that it was vital for Ireland to maintain its own oil refining capacity. The challenged rule was the means of ensuring that its refinery products could be marketed.109 The ECJ held that recourse to Article 36 would not be possible if there were Community rules providing the necessary protection for oil supplies. Certain Community measures existed, but they were not comprehensive. The Court continued as follows.

108 In Case C–265/95 Commission v. France [1997] ECR I–6959, the ECJ accepted that serious disruption to public order could justify non-intervention by the police in relation to a specific incident, but that it could not justify any general policy of this nature. See also R. v. Chief Constable of Sussex, ex p. International Traders’ Ferry Ltd. [1997] 2 CMLR 164. 109 The applicants who challenged the Irish system argued that the real issue was not whether Ireland should maintain an independent refining capacity, but whether such a refinery should operate at a profit or loss. They claimed that this was an economic issue which could not come within public policy or security.

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31. Consequently, the existing Community rules give a Member State whose supplies of petroleum products depend totally or almost totally on deliveries from other countries certain guarantees that deliveries from other Member States will be maintained in the event of a serious shortfall in proportions which match those of supplies to the market of the supplying State. However, this does not mean that the Member State concerned has an unconditional assurance that supplies will in any event be maintained at least at a level sufficient to meet its minimum needs. In those circumstances, the possibility for a Member State to rely on Article 36 to justify appropriate complementary measures at national level cannot be excluded, even where there exist Community rules on the matter. [The Court then considered whether the term ‘public security’ could cover this situation.] 34. It should be stated in this connection that petroleum products, because of their exceptional importance as an energy source in the modern economy, are of fundamental importance for a country’s existence since not only its economy but above all its institutions, its essential public services and even the survival of the inhabitants depend upon them. An interruption of supplies of petroleum products, with the resultant dangers for the country’s existence, could therefore seriously affect the public security that Article 36 allows States to protect. 35. It is true that, as the Court has held on a number of occasions, most recently in . . . (Case 95/81, Commission v Italy), Article 36 refers to matters of a non-economic nature. A Member State cannot be allowed to avoid the effects of measures provided for in the Treaty by pleading the economic difficulties caused by elimination of barriers to intra-Community trade. However, in the light of the seriousness of the consequences that an interruption in supplies of petroleum products may have for a country’s existence, the aim of ensuring a minimum supply of petroleum products at all times is to be regarded as transcending purely economic considerations and thus as capable of constituting an objective covered by the concept of public security. 36. It should be added that to come within the ambit of Article 36 the rules in question must be justified by objective circumstances corresponding to the needs of public security. . . . 37. As the Court has previously stated . . . Article 36, as an exception to a fundamental principle of the Treaty, must be interpreted in such a way that its scope is not extended any further than is necessary for the protection of the interests which it is intended to secure and the measures taken pursuant to that Article must not create obstacles to imports which are disproportionate to those objectives. Measures adopted on the basis of Article 36 can therefore be justified only if they are such as to serve the interest which that Article protects and if they do not restrict intra-Community trade more than is absolutely necessary.

While the ECJ, therefore, accepted the public-security argument in Campus Oil, the circumstances to which it will be applicable are likely to be factually limited.110 There is little enthusiasm for extending the reasoning, and in Centre Leclerc Advocate General VerLoren van Themaat distinguished Campus Oil from the situation in Centre Leclerc.111 It should not, however, be forgotten in this respect that Member States can take certain measures relating to national security pursuant to what are now Articles 296 to 298 EC.

110 Case C–367/89 Richardt [1991] ECR I–4621; Case C–398/98 Commission v. Greece [2001] ECR I–7915, paras. 29–30; but compare Case C–503/99 Commission v. Belgium [2002] ECR I–4809, para. 46. 111 [1985] 2 CMLR 524, 535–536.

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701

protection of health and life of humans, animals, or plants

There have been numerous cases in which States have attempted to defend measures on this ground. The ECJ will closely scrutinize such claims. First, the Court will determine whether the protection of public health is the real purpose behind the Member States’ action, or whether it was designed to protect domestic producers. This is exemplified by Commission v. United Kingdom.112 The UK in effect banned poultry meat imports from most other Member States, justifying this on the ground that it was necessary to protect public health, by preventing the spread of Newcastle disease which affected poultry. The ECJ held that the import ban was in fact motivated more by commercial reasons, to block French poultry, than by considerations of public health.113 The ECJ will also closely examine the cogency of arguments concerning public health to determine whether they make sense on the facts.114 Secondly, the ECJ may have to decide whether a public-health claim is sustainable where there is no perfect consensus on the scientific or medical impact of particular substances. The ECJ’s approach is exemplified by the Sandoz decision.

Case 174/82 Officier van Justitie v. Sandoz BV [1983] ECR 2445 Authorities in Holland refused to allow the sale of muesli bars that contained added vitamins, on the ground that the vitamins were dangerous to public health. The muesli bars were readily available in Germany and Belgium. It was accepted that vitamins could be beneficial to health, but it was also acknowledged that excessive consumption could be harmful to health. Scientific evidence was not, however, certain as regards the point at which consumption of vitamins became excessive, particularly because vitamins consumed in one source of food might be added to those eaten from a different food source. There had been some Community legislation which touched on the general issue of food additives. THE ECJ 15. The above mentioned Community measures clearly show that the Community legislature accepts the principle that it is necessary to restrict the use of food additives to the substances specified, whilst leaving the Member States a certain discretion to adopt stricter rules. . . . 16. As the Court found in its judgment . . . in Case 272/80 (Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277), in so far as there are uncertainties at the present state of scientific research it is for the Member States, in the absence of harmonization, to decide what degree of protection of the health and life of humans they intend to assure, having regard however for the requirements of the free movement of goods within the Community.

112 113

Case 40/82 [1982] ECR 2793. The ECJ also noted that less stringent measures could have been taken to reach the same end as that desired by the UK government: ibid., para. 41. See also Case 42/82 Commission v. France [1983] ECR 1013. 114 Case 124/81 Commission v. United Kingdom [1983] ECR 203.

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17. Those principles also apply to substances such as vitamins which are not as a general rule harmful in themselves but may have special harmful effects solely if taken to excess as part of the general nutrition, the composition of which is unforeseeable and cannot be monitored. In view of the uncertainties inherent in the scientific assessment, national rules prohibiting, without prior authorization, the marketing of foodstuffs to which vitamins have been added are justified on principle within the meaning of Article 36 of the Treaty on the grounds of the protection of human health. 18. Nevertheless the principle of proportionality which underlies the last sentence of Article 36 of the Treaty requires that the power of the Member States to prohibit imports of the products in question from other Member States should be restricted to what is necessary to attain the legitimate aim of protecting public health. . . . 19. Such an assessment is, however, difficult to make in relation to additives such as vitamins the above mentioned characteristics of which exclude the possibility of foreseeing or monitoring the quantities consumed as part of the general nutrition and the degree of harmfulness of which cannot be determined with sufficient certainty. Nevertheless, although in view of the present stage of harmonization of national laws at the Community level a wide discretion must be left to the Member States, they must, in order to observe the principle of proportionality, authorize marketing when the addition of vitamins to foodstuffs meets a real need, especially a technical or nutritional one. 20. The first question must therefore be answered to the effect that Community law permits national rules prohibiting without prior authorization the marketing of foodstuffs marketed in another Member State to which vitamins have been added, provided that the marketing is authorized when the addition of the vitamins meets a real need, especially a technical or nutritional one.

The ECJ’s approach in Sandoz is finely tuned. It will decide whether the public-health claim is sustainable in principle. If there is uncertainty about the medical implications of some substance it will,115 in the absence of Community harmonization measures, be for the Member State to decide upon the appropriate degree of protection for its citizens. This will, however, be subject to the principle of proportionality: paragraph 18.116 When assessing proportionality the Community Courts will pay special attention to the factual basis of the defence. It is not enough for a Member State simply to assert that a measure is warranted on grounds of public health. It will also need to produce evidence or data to substantiate this claim.117 This is so even where there may be some scientific uncertainty about the matter in issue.118 Thirdly, a Member State might not ban imports, but it might subject them to checks that rendered import more difficult, and it might do so even though the goods were checked in the State of origin. This problem of double-checking has arisen frequently, and the ECJ has become stricter over time.

115 116

See, however, Case 178/84 Commission v. Germany [1987] ECR 1227. See also Case 53/80 Officier van Justitie v. Koniklijke Kaasfabriek Eyssen BV [1981] ECR 409; Case 94/83 Albert Heijin BV [1984] ECR 3263; Case 304/84 Ministère Public v. Muller [1986] ECR 1511; Case C–62/90 Commission v. Germany [1992] ECR I–2575; Case C–192/01 Commission v. Denmark [2003] ECR I–9693, para. 42; Case C–24/00 Commission v. France [2004] ECR I–1277, para. 49; Case C–95/01 Criminal Proceedings against John Greenham and Leonard Abel [2004] ECR I–1333; Case C–366/04 Schwarz v. Burgermeister der Landeshauptstadt Salzburg [2005] ECR I–10139, paras. 30–38. 117 Case 270/02 Commission v. Italy [2004] ECR I–1559. 118 Case C–41/02 Commission v. Netherlands [2004] ECR I–11375; Case C–192/01 Commission v. Denmark, n. 116 above; Case C–24/00 Commission v. France, n. 116 above.

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The early approach in Denkavit119 was to urge national authorities to co-operate to avoid dual burdens. National authorities had a duty to ascertain whether the documents from the State of export raised a presumption that the goods complied with the demands of the importing State. The Court admitted, however, that a second set of checks in the State of import might be lawful, provided that the requirements were necessary and proportionate. The Court’s more recent case law exhibits a healthy scepticism regarding whether a second set of controls is really required. This is evident from Commission v. United Kingdom120 concerning UHT milk. The ECJ held that the UK’s concerns about the product could be met by less restrictive means than the import ban and marketing system which it had instituted. The UK could, said the Court, lay down requirements that imported milk had to meet, and could demand certificates from the authorities of the exporting State.121 If such certificates were produced then it would be for the authorities within the importing State to ascertain whether these certificates raised a presumption that the imported goods complied with the demands of domestic legislation. The ECJ concluded that the conditions for such a presumption existed in this case.122 A similar unwillingness to subject goods to a second set of checks can be seen in the Biologische Producten case.123 Dual checks would not be lawful where they unnecessarily imposed technical tests that had already been done in the State of origin, nor where the practical effect of the tests in the exporting State met the demands of the importing State.124

(e)

other grounds for validating discriminatory measures?

The nature of this problem will be explored here and then considered in more detail below.125 The list of defences for discriminatory rules caught by Article 28 is contained in Article 30. The ECJ has extended Article 28 to indistinctly applicable rules, and created defences that overlap with, but are not identical to, those found in Article 30. The salient issue is therefore whether justification for discriminatory rules is limited to the specific matters listed in Article 30, or whether a rule that is discriminatory might also be defended on one of the grounds listed in Cassis,126 as developed by subsequent case law. The traditional view was that a Member State could not justify a discriminatory measure on grounds other than those listed in Article 30. This was so, even if the justification was in the list that could be invoked for indistinctly applicable measures.127 It was questionable whether Commission v. Belgium128 was an exception to this proposition. The Commission challenged a Belgian regional decree, the effect of which was to ban the 119 Case 251/78 Denkavit Futtermittel v. Minister für Ernährung, Landwirtschaft und Forsten des Landes [1979] ECR 3369. 120 Case 124/81 Commission v. United Kingdom [1983] ECR 203. 121 Ibid., paras. 27–28. 122 Ibid., para. 30. 123 Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 3277. 124 Ibid., paras. 14–15; Case C–400/96 Criminal Proceedings against Jean Harpegnies [1998] ECR I–5121; Case C–432/03 Commission v. Portugal [2005] ECR I–9665, para. 46. 125 See below, 00–00; P. Oliver, ‘Some Further Reflections on the Scope of Articles 28–30 (ex 30–36)’ (1999) 36 CMLRev. 738; J. Scott, ‘Mandatory or Imperative Requirements in the EU and WTO’, in Barnard and Scott (eds.), n. 24 above, ch. 10; P. Oliver and W.-H. Roth, ‘The Internal Market and the Four Freedoms’ (2004) 41 CMLRev. 407, 434–436. 126 Case 120/78 Cassis de Dijon, n. 2 above. 127 See 00–00 below. 128 Case C–2/90 [1992] ECR I–4431.

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importation of waste into that area. The decree could be seen as discriminatory, since it did not cover disposal of locally produced waste. Notwithstanding this, the Court allowed environmental protection to be taken into account when considering the legality of the regional decree. The case could, therefore, be seen as allowing justifications to be pleaded which are not found in Article 30. However, the ECJ in effect held that the decree was not discriminatory, notwithstanding appearances to the contrary in the challenged instrument. This was because of the special nature of the subject-matter, waste. There were strong arguments, the Court said, for disposing of such material locally, and each area had the responsibility for disposing of its own waste. Thus, although the decree applied only to imports it was not discriminatory.129 The relationship between Article 30 and the exceptions in Cassis is complicated by the fact that the dividing line between cases involving indirect discrimination and indistinctly applicable rules can be a fine one. This is exemplified by Commission v. Austria,130 which concerned an Austrian rule banning lorries in excess of a certain weight from using certain roads in order to protect the environment and air quality. Advocate General Geelhoed acknowledged that it was open to question whether the rule should be regarded as indirectly discriminatory or indistinctly applicable, and accepted that this could have implications for whether protection of the environment could be pleaded by way of defence. The ECJ implicitly assumed that the Austrian rule was indistinctly applicable and that therefore protection of the environment could constitute an objective justification. Advocate General Jacobs in PreussenElektra131 has, however, questioned whether the list in Article 30 really is exhaustive. He argued that the approach in the Walloon Waste case was flawed, in the sense that whether a measure was discriminatory was logically distinct from whether it could be justified. He suggested moreover that there could be good reasons for allowing environmental protection to be pleaded as a justification, even in cases where there was direct discrimination. He argued more generally for a relaxation in the distinction between the justifications that could be pleaded under Article 30, and the rule of reason exceptions to Cassis. The ECJ did not, as Advocate General Jacobs suggested, give general guidance on the relationship between Article 30 and the exceptions to Cassis. It did however allow the national measure to be justified on environmental grounds.132 It will be argued below that the same justifications should be applicable, irrespective of whether the measure is discriminatory or not, although the application of the justification could be affected by this factor.133

(f) the relationship between harmonization and article 30 Community harmonization measures may make recourse to Article 30 inadmissible. This will be so where the Community measure is intended to harmonize the area totally. Member State action is thereby pre-empted. Thus in Moormann134 the ECJ held that the existence of 129 For indications that protection of the environment can however be raised in discrimination cases see, e.g., Case C–203/96 Chemische Afvalstoffen Dusseldorp BV v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [1998] ECR I–4075, para. 50. 130 Case C–320/03 [2005] ECR I–9871. 131 Case C–379/98 PreussenElektra AG v. Schleswag AG [2001] ECR I–2099, paras. 225–238. See also Case C–320/03 Commission v. Austria [2005] ECR I–9871, paras. 96–108, Geelhoed AG. 132 See also Case C–389/98 Aher-Waggon GmbH v. Bundesrepublik Deutschland [1998] ECR I–4473. 133 See below, 00–00. 134 Case 190/87 Oberkreisdirektor v. Moormann BV [1988] ECR 4689. See also Case 5/77 Tedeschi v. Denkavit [1977] ECR 1555; Cases C–277, 318, and 319/91 Ligur Carni Srl v. Unità Sanitaria Locale No. XV di Genova

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harmonization measures for poultry health inspections meant that a State could no longer use Article 30 to legitimate national rules on the matter. In Commission v. Germany135 it was held that Community directives had harmonized the measures that could be taken ‘for the detection of a pronounced sexual odour in uncastrated male pigs’, thereby preventing Germany from applying different measures. Many Community measures are however not intended to harmonize an area totally. The objective will be minimum harmonization. It will be for the ECJ to decide, in the case of doubt, whether the harmonization measure covers the whole field or whether it leaves room for national regulatory initiatives.136 In the case of minimum harmonization, Member States are permitted to ‘maintain and often to introduce more stringent regulatory standards than those prescribed by Community legislation, for the purposes of advancing a particular social or welfare interest, and provided that such additional requirements are compatible with the Treaty’.137 Thus in de Agostini it was held that Community directives on ‘Television without Frontiers’ only partially harmonized the relevant law. They did not preclude national rules to control television advertising designed to protect consumers.138 In the case of exhaustive harmonization, any national measure relating thereto must be assessed in the light of the harmonizing measure rather than the Treaty provisions.139 The ECJ will ensure that such national regulations are proportionate and do not constitute a means of arbitrary discrimination.140 Difficult issues can however arise, even in the context of minimum harmonization, as to whether a Member State can impose more stringent welfare standards on goods entering its territory than those prescribed by the directive.141

defences to indistinctly applicable rules: the mandatory requirements

8.

(a) the rationale for the mandatory requirements It is necessary in the present state of the law to consider separately defences to indistinctly applicable rules, although, as we shall see below, it is questionable whether there should be a separate set of defences for discriminatory and non-discriminatory rules. The rationale for the mandatory requirements is that many rules which regulate trade are also capable of restricting trade, yet some serve objectively justifiable purposes. The ‘list’ of [1993] ECR I–6621; Case C–294/92 Commission v. Italy [1994] ECR I–4311; Case C–5/94 R. v. Ministry of Agriculture, Fisheries and Food, ex p. Hedley Lomas (Ireland) Ltd. [1996] ECR I–2553; Case C–1/96 R. v. Minister of Agriculture, Fisheries, and Food, ex p. Compassion in World Farming Ltd. [1998] ECR I–1251; Case C–443/02 Nicolas Schreiber [2004] ECR I–7275; Case C–309/02 Radberger Getränkegesellschaft mbH and Co. and Spitz KG v. Land Baden-Württemberg [2004] ECR I–11763. 135 136

Case C–102/96 [1998] ECR I–6871. See, e.g., Case C–1/96 Compassion in World Farming Ltd., n. 134 above; Case C–443/02 Nicolas Schreiber, n. 134 above; Case C–309/02 Radberger, n. 134 above. 137 M. Dougan, ‘Minimum Harmonization and the Internal Market’ (2000) 37 CMLRev. 853, 855. 138 Cases C–34–36/95 De Agostini, n. 67 above, paras. 32–35. 139 Case C–324/99 DaimlerChrysler AG v. Land Baden-Württemberg [2001] ECR I–9897, para. 32; Case C–309/02 Radberger, n. 134 above, para. 53. 140 Case 4/75 Rewe-Zentralfinanz, n. 13 above; Case C–317/92 Commission v. Germany [1994] ECR I–2039; Case C–17/93, Van der Veldt, n. 104 above. 141 Compare Case C–1/96 Compassion in World Farming, n. 134 above, with Case C–389/98 Aher-Waggon, n. 132 above; Dougan, n. 137 above, 868–884.

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mandatory requirements in Cassis is sometimes referred to as the rule of reason, drawing upon the earlier hint in Dassonville that, in the absence of Community measures, reasonable trade rules would be accepted in certain circumstances. A similar approach is evident in other areas of Community law.142 Thus Advocate General VerLoren van Themaat143 regarded the rule of reason as a general principle of interpretation designed to mitigate the effects of strict prohibitions laid down in the Treaty provisions on free movement.144 The burden of proving justification rests on the State relying on the mandatory requirement.145

(b)

the relationship between the mandatory requirements and article 30

The traditional view has been that the Cassis mandatory requirements are separate from the justifications under Article 30. The ECJ held that the Cassis exceptions could be used only in respect of rules that were not discriminatory.146 The Cassis list of mandatory requirements includes matters such as the protection of consumers and the fairness of commercial transactions which are not mentioned within Article 30 and the Cassis list is not exhaustive. The ECJ’s willingness to create a broader category of justifications for indistinctly applicable rules is explicable because discriminatory rules strike at the very heart of the Community, and hence any possible justifications should be narrowly confined. The distinction between Article 30 and the mandatory requirements in Cassis has however come under increasing strain in recent years for three reasons. First, there has, as we have seen, been discussion about whether the list in Article 30 should be regarded as exhaustive.147 It has been argued that there might be instances where, for example, environmental considerations should be able to be pleaded even in cases of discrimination. Secondly, the distinction has also become less tenable because of the difficulty of distinguishing between cases involving indirect discrimination and indistinctly applicable rules. The ECJ may well characterize a case as within the Cassis category because it wishes to allow the State to avail itself of one of the mandatory requirements, even though, as in AherWaggon,148 the measure appeared to be discriminatory or distinctly applicable. Thirdly, the reasoning in Keck has contributed to confusion in this respect. Selling arrangements are outside Article 28 so long as they apply to all traders in the national territory, and so long as they affect in the same manner, in law and fact, the marketing of domestic and imported products. Later cases have focused on the possible differential impact of national selling arrangements. If this is proven then Article 28 is applicable, subject to possible justifications raised by the State. In some instances it will not matter whether the justification is considered within the mandatory requirements or under Article 30, since it is covered by both, as in the case of public health.149 In other instances it will be of relevance, since the alleged 142 143 144 145 146 147 148

See Chs. 21, 22, and 24. Case 286 /81 Oosthoek, n. 67 above. See also the discussion of the rule of reason in competition law, Ch. 25. Case C–14/02 ATRAL, n. 36 above, paras. 67–68. Case 788/79 Gilli, n. 39 above, para. 6; Case 113/80 Commission v. Ireland [1981] ECR 1625, paras. 5–8. See above, 00–00. See Jacobs AG in Case C–379/98 PreussenElektra, n. 131 above, para. 227, commenting on Case C–389/98 Aher-Waggon, n. 132 above. 149 See, e.g., Case C–189/95 Franzen, n. 76 above; Case C–405/98 Gourmet International, n. 83 above; Case C–322/01 Deutscher Apothekerverband, n. 77 above.

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justification falls only within the Cassis list. The ECJ has equivocated in some cases. Thus in de Agostini150 the ECJ held that the advertising ban might be justified to satisfy one of the mandatory requirements or one of the aims listed in Article 30. Consumer protection and fair trading are in the former list, but not the latter. There is much to be said for simplification. It would be best for the same justifications to be available in principle, irrespective of whether the measure is discriminatory or indistinctly applicable. This should only be relevant to the application of the justification in the instant case, in the sense that greater justification should be required for discriminatory measures. It might be argued that this is not possible, given the wording of Article 30. This objection is not convincing. There is no reason why phrases within Article 30, such as protection of the health and life of humans, could not be interpreted to include matters such as consumer protection and the environment. The ECJ has construed other Treaty provisions in a far more expansive manner when it wished to do so. Moreover, if it was legitimate for the ECJ in Cassis to create an open-ended list of mandatory exceptions, not mentioned in the Treaty, then why would it not be legitimate for the ECJ to read Article 30 to include matters such as the environment or consumer protection?

(c)

the mandatory requirements: consumer protection Case 178/84 Commission v. Germany [1987] ECR 1227

German law prohibited the marketing of beer which was lawfully manufactured in another Member State unless it complied with sections 9 and 10 of the Biersteuergesetz (Beer Duty Act 1952). Under this law only drinks which complied with the German Act could be sold as ‘Bier’, and this meant that the term could be used only in relation to those drinks which were made from barley, hops, yeast, and water. The German Government argued that the reservation of the term ‘Bier’ to beverages made only from these substances was necessary to protect consumers who associated the term ‘Bier’ with beverages made from such ingredients. It also argued that its legislation was not protectionist in aim, in that any trader who made beer from such ingredients could market it freely in Germany. The ECJ cited the principles from Dassonville and Cassis; it found that the German rule constituted an impediment to trade and then considered whether the rule was necessary to protect consumers. THE ECJ 31. The German Government’s argument that section 10 of the Biersteuergesetz is essential in order to protect German consumers because, in their minds, the designation ‘Bier’ is inseparably linked to the beverage manufactured solely from the ingredients laid down in section 9 . . . must be rejected. 32. Firstly, consumers’ conceptions which vary from one Member State to the other are also likely to evolve in the course of time within a Member State. The establishment of the Common Market is, it should be added, one of the factors that may play a major contributory

150

Cases C–34–36/95 De Agostini, n. 67 above, 45–47.

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role in that development. Whereas rules protecting consumers against misleading practices enable such a development to be taken into account, legislation of the kind contained in section 10 . . . prevents it from taking place. As the Court has already held in another context (Case 170/78, Commission v United Kingdom), the legislation of a Member State must not ‘crystallize given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them’. 33. Secondly, in the other Member States of the Community the designations corresponding to the German designation ‘Bier’ are generic designations for a fermented beverage manufactured from barley, whether malted barley on its own or with the addition of rice or maize. The same approach is taken in Community law as can be seen from heading 22.03 of the Common Customs Tariff. The German legislature itself utilises the designation ‘Bier’ in that way in section 9(7) and (8) of the Biersteuergesetz in order to refer to beverages not complying with the manufacturing rules laid down in section 9(1) and (2). 34. The German designation ‘Bier’ and its equivalents in the languages of the other Member States may therefore not be restricted to beers manufactured in accordance with the rules in force in the Federal Republic of Germany. 35. It is admittedly legitimate to seek to enable consumers who attribute specific qualities to beers manufactured from particular raw materials to make their choice in the light of that consideration. However, as the Court has already emphasised (Case 193/80, Commission v Italy) that possibility may be ensured by means which do not prevent the importation of products which have been lawfully manufactured and marketed in other Member States and, in particular, ‘by the compulsory affixing of suitable labels giving the nature of the product sold’. By indicating the raw materials utilised in the manufacture of beer ‘such a course would enable the consumer to make his choice in full knowledge of the facts and would guarantee transparency in trading and in offers to the public’. It must be added that such a system of mandatory consumer information must not entail negative assessments for beers not complying with the requirements of section 9 of the Biersteuergesetz.

The ECJ therefore held the German law to be in breach of what is now Article 28. The way in which it dealt with the argument concerning consumer protection is instructive. The argument was closely scrutinized to determine whether it really ‘worked’ on the facts of the case. The ECJ then assessed whether the interests of consumers could be safeguarded by less restrictive means: paragraph 35. The same approach is apparent in other cases.151 The ECJ has often rejected justifications based on consumer protection by stating that adequate labelling requirements can achieve the national objective with less impact on intraCommunity trade. However, even labelling requirements may not escape Article 28. Thus in Fietje152 the ECJ held that the obligation to use a certain name on a label could make it more difficult to market goods coming from other Member States, and would therefore have to be justified on the ground of consumer protection. Labelling requirements which demanded that the purchaser was provided with sufficient information on the nature of the product in order to prevent confusion with similar products, could, said the Court, be justified, even if the effect was to make it necessary to alter the labels of some imported goods.153 However, 151 See, e.g., Case 261/81 Rau, n. 40 above; Case 94/82 De Kikvorsch Groothandel-Import-Export BV [1983] ECR 947; Case C–293/93 Ludomira Neeltje v. Barbara Houtwipper [1994] ECR I–429; Case C–470/93 Verein gegen Unwesen in Handel und Gewerbe Köln eV v. Mars GmbH [1995] ECR I–1923; Case C–315/92 Verband Sozialer Wettbewerb eV v. Clinique Laboratoires SNC [1994] ECR I–317; Case C–14/00 Commission v. Italy [2003] ECR I–513. 152 Case 27/80 Fietje [1980] ECR 3839. 153 Ibid., para. 11.

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such protection would not be necessary or justifiable if the details given on the original labels of the goods contained the same information as required by the State of import, and that information was just as capable of being understood by consumers. Whether there was such equivalence was for the national court to determine.154

(d)

the mandatory requirements: fairness of commercial transactions

There is clearly an overlap between consumer protection and the fairness of commercial transactions. This particular mandatory requirement has been used to justify national rules that seek to prevent unfair marketing practices, such as the selling of imported goods that are precise imitations of familiar domestic goods. It seems, however, that in order to be justified on this ground the national rule must not prohibit the marketing of goods which have been made according to fair and traditional practices in State A merely because they are similar to goods which have been made in State B.155

(e)

the mandatory requirements: public health

We have already noted that the traditional view was that only indistinctly applicable rules could take advantage of the mandatory requirements. However, the ECJ has, on occasion, not been too concerned about whether it considers a justification within Article 30, or within the list of mandatory requirements, provided that the justification pleaded by the State comes within both lists, more especially where it is unclear whether the impugned rule is discriminatory or indistinctly applicable. Public health finds a place both in the list of Cassis mandatory requirements and in Article 30. The following extract from the German Beer case provides an apt example of this:156

Case 178/84 Commission v. Germany [1987] ECR 1227 [Note ToA renumbering: Arts. 36 and 169 are now Arts. 30 and 226] A second rule of German law was challenged in the German Beer case. Under the German Foodstuffs Act 1974 there was an absolute ban on the marketing of beer which contained additives. In essence this Act prohibited non-natural additives on public-health grounds. The Commission challenged this rule. It was accepted that the German rule constituted a barrier to the import of beer lawfully marketed in other States which contained additives. The question before the ECJ was whether the rule could come within Article 36 on public-health grounds.

154 155 156

Ibid., para. 12. See also Case 76/86 Commission v. Germany [1989] ECR 1021. Case 58/80 Dansk Supermarked v. Imerco [1981] ECR 181; Case 16/83 Karl Prantl [1984] ECR 1299. See also Case 53/80 Officier van Justitie v. Koniklijke Kaasfabriek Eyssen BV [1981] ECR 409; Case 97/83 Criminal Proceedings against Melkunie BV [1984] ECR 2367.

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41. The Court has consistently held (in particular in Case 174/82, Criminal Proceedings Against Sandoz BV) that ‘in so far as there are uncertainties at the present state of scientific research it is for the Member States, in the absence of harmonization, to decide what degree of protection of the health and life of humans they intend to assure, having regard to the requirements of the free movement of goods within the Community. 42. As may also be seen from the decision of the Court (and especially the Sandoz case, cited above, in Case 247/84, Motte, and in Case 308/84, Ministère Public v Muller), in such circumstances Community law does not preclude the adoption by Member States of legislation whereby the use of additives is subjected to prior authorisation granted by a measure of general application for specific additives, in respect of all products, for certain products only or for certain uses. Such legislation meets a genuine need of health policy, namely that of restricting the uncontrolled consumption of food additives. 43. However, the application to imported products of prohibitions on marketing products containing additives which are authorised in the Member State of production but prohibited in the Member State of importation is permissible only in so far as it complies with the requirements of Article 36 of the Treaty as it has been interpreted by the Court. 44. It must be borne in mind, in the first place, that in its judgments in Sandoz, Motte and Muller, the Court inferred from the principle of proportionality underlying the last sentence of Article 36 of the Treaty that prohibitions on the marketing of products containing additives authorised in the Member State of production but prohibited in the Member State of importation must be restricted to what is actually necessary to secure the protection of public health. The Court also concluded that the use of a specific additive which is authorised in another Member State must be authorised in the case of a product imported from that Member State where, in view, on the one hand, of the findings of international scientific research, and in particular the work of the Community’s Scientific Committee for Food, the Codex Alimentarius Committee of the Food and Agriculture Organisation of the United Nations (FAO) and the World Health Organisation, and, on the other, of the eating habits prevailing in the importing Member State, the additive in question does not present a risk to public health and meets a real need, especially a technical one. 45. Secondly, it should be remembered that, as the Court held in Muller, by virtue of the principle of proportionality, traders must also be able to apply, under a procedure which is easily accessible to them and can be concluded within a reasonable time, for the use of specific additives to be authorised by a measure of general application. [The Court then pointed out that the German rule prohibited all additives; that there was no procedure whereby traders could obtain authorization for a specific additive; and that additives were permitted by German law in beverages other than beer. The German Government argued that such additives would not be needed in the manufacture of beer if it were made in accordance with section 9 of the Biersteuergesetz. The ECJ responded as follows:] 51. It must be emphasised that the mere reference to the fact that beer can be manufactured without additives if it is made from only the raw materials prescribed in the Federal Republic of Germany does not suffice to preclude the possibility that some additives may meet a technological need. Such an interpretation of the concept of technological need, which results in favouring national production methods, constitutes a disguised means of restricting trade between Member States. 52. The concept of technological need must be assessed in the light of the raw materials utilised and bearing in mind the assessment made by the authorities of the Member States where the product was lawfully manufactured and marketed. Account must also be taken of the findings of international scientific research and in particular the work of the Community’s

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Scientific Committee for Food, the Codex Alimentarius Committee of the FAO and the World Health Organisation. 53. Consequently, in so far as the German rules on additives in beer entail a general ban on additives, their application to beers imported from other Member States is contrary to the requirements of Community law as laid down in the case law of the Court, since that prohibition is contrary to the principle of proportionality and is therefore not covered by Article 36 of the EEC Treaty.

(f)

other mandatory requirements

The list of mandatory requirements in Cassis is not exhaustive, as evident from the fact that the ECJ stated that the mandatory requirements included in particular those mentioned in the judgment.157 This has been confirmed by later cases. It can, in the absence of Community harmonization measures, include the protection of the environment.158

Case 302/86 Commission v. Denmark [1988] ECR 4607 [Note ToA renumbering: Art. 30 is now Art. 28] Danish law required that containers for beer and soft drinks should be returnable and that a certain proportion should be re-usable. A national environmental agency had to approve containers to ensure compliance with these criteria. There was also a deposit-and-return system for empty containers. The Danish Government argued that the rule was justified by a mandatory requirement related to the protection of the environment. THE ECJ 8. The Court has already held in . . . Case 240/83, Procureur de la République v Association de Défense des Brûleurs d’Huiles Usagées . . . that the protection of the environment is ‘one of the Community’s essential objectives’, which may as such justify certain limitations of the principle of free movement of goods. That view is moreover confirmed by the Single European Act. 9. In view of the foregoing, it must therefore be stated that the protection of the environment is a mandatory requirement which may limit the application of Article 30 of the Treaty. [The Commission argued that the Danish laws were disproportionate.] 13. First of all, as regards the obligation to establish a deposit-and-return system for empty containers, it must be observed that this requirement is an indispensable element of a system intended to ensure the re-use of containers and therefore appears necessary to achieve the aims pursued by the contested rules. That being so, the restrictions which it imposes on the free movement of goods cannot be regarded as disproportionate. 14. Next it is necessary to consider the requirement that producers and importers must use only containers approved by the National Agency for the Protection of the Environment.

157 158

[1979] ECR 649, para. 8. See also Case C–379/98 PreussenElektra, n. 148 above; Case C–309/02 Radberger Getränkegesellschaft mbH and Co. and Spitz KG v. Land Baden-Württemberg [2004] ECR I–11763, para. 75.

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[The Danish Government argued that the number of approved containers had to be limited because otherwise retailers would not take part in the system. This meant that a foreign producer might have to manufacture a type of container already approved, with consequent increases in costs. To overcome this problem the Danish law was amended to allow a producer to market up to 3,000 hectolitres a year in non-approved containers, provided that a depositand-return system was established. The Commission argued that the limit of 3,000 hectolitres was unnecessary to achieve the objectives of the scheme.] 20. It is undoubtedly true that the existing system for returning approved containers ensures a maximum rate of re-use and therefore a very considerable degree of protection of the environment since empty containers can be returned to any retailer of beverages. Non-approved containers, on the other hand, can be returned only to the retailer who sold the beverages, since it is impossible to set up such a comprehensive system for those containers as well. 21. Nevertheless, the system for returning non-approved containers is capable of protecting the environment and, as far as imports are concerned, affects only limited quantities of beverages compared with the quantity of beverages consumed in Denmark owing to the restrictive effect which the requirement that containers should be returnable has on imports. In those circumstances, a restriction of the quantity of products which may be marketed by importers is disproportionate to the objective pursued. 22. It must therefore be held that by restricting . . . the quantity of beer and soft drinks which may be marketed by a single producer in non-approved containers to 3,000 hectolitres a year, the Kingdom of Denmark has failed, as regards imports of those products from other Member States, to fulfil its obligations under Article 30 of the EEC Treaty.

Environmental protection is not the only new addition to this catalogue. In Familiapress159 the ECJ recognized pluralism of the press as a value that could legitimate a national measure that was in breach of Article 28. The offering of prizes for games in magazines could drive out smaller papers, which could not afford to make such offers. In Cinéthèque160 the ECJ was willing to recognize that the fostering of certain forms of art could constitute a justifiable objective within the context of Community law. While in Torfaen161 it accepted that rules governing the opening hours of premises pursued a justifiable aim, in that such rules reflected certain social and political choices which might differ between Member States.162 It is clear moreover from Schmidberger that protection of fundamental rights can be relevant as justification of an indistinctly applicable measure.

Case C–112/00 Eugen Schmidberger, Internationale Transporte und Planzuge v. Austria [2003] ECR I–5659 The ECJ held that a decision by Austria not to ban a demonstration by an environmental group that led to closure of the Brenner motorway was caught by Article 28 in so far as it impeded

159 Case C–368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Heinrich Bauer Verlag [1997] ECR I–368. 160 Cases 60 and 61/84 [1985] ECR 2605. 161 Case 145/88 [1989] ECR 3851. 162 While Cinéthèque and Torfaen would probably now fall outside Art. 28, the recognition of these grounds of objective justification could be of relevance in cases that do fall within Art. 28 even after Keck.

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trade for the relevant period. The ECJ then considered whether the restriction was justified, more especially because the Austrian Government in allowing the demonstration was influenced by considerations relating to freedom of expression and assembly as enshrined in the ECHR and the Austrian Constitution. The ECJ accepted that fundamental rights were part of the Community legal order, but that these rights and the principles concerning free movement of goods were not absolute. THE ECJ 81. In those circumstances, the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. 82. The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intraCommunity trade are proportionate in the light of the legitimate objectives pursued, namely . . . the protection of fundamental rights. [The ECJ emphasized that the demonstrators had sought permission from the Austrian Government, and that the demonstration was limited in scope and time.] 86. [I]t is not in dispute that by the demonstration, citizens were exercising their fundamental rights by manifesting in public an opinion which they considered to be of importance in society; it is also not in dispute that the purpose of that public demonstration was not to restrict trade in goods of a particular type or from a particular source. . . . 87. [I]n the present case various administrative and supporting arrangements were taken by the competent authorities in order to limit as far as possible the disruption to road traffic. . . . 88. Moreover, it is not in dispute that the isolated incident in question did not give rise to a general climate of insecurity such as to have a dissuasive effect on intra-Community trade flows as a whole . . . 89. Finally . . . the competent national authorities were entitled to consider that an outright ban on the demonstration would have constituted unacceptable interference with the fundamental rights of the demonstrators to gather and express peacefully their opinion in public. [The ECJ accepted that alternative solutions would have been liable to lead to more serious disruption of trade, such as unauthorized demonstrations.] 93. [T]he national authorities were reasonably entitled, having regard to the wide discretion which must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intraCommunity trade.

(g)

mandatory requirements and harmonization

A Community harmonization measure may render it impossible for a State to rely on a mandatory requirement.163 Whether it has this effect will depend upon whether the Community measure is directed at total or only a minimum harmonization. The previous discussion of this issue is applicable here.164 163 164

See, e.g., Case C–383/97 Criminal Proceedings against Van der Laan [1999] ECR I–731. See above, 00.

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(h) i.

summary

The ECJ was creative in Cassis when it set out the mandatory requirements, and it has shown similar flexibility since then, by adding new defences to the list. The Court has, not surprisingly, interpreted the requirements strictly, obliging Member States to satisfy it that a defence is really warranted in the circumstances. There are however two causes for concern.

ii. First, the dividing line between the mandatory requirements and Article 30 is problematic. It has been argued that the same public interest defences should be available irrespective of whether the measure is discriminatory or not. Whether the measure was discriminatory or not would simply be of relevance in the application of the defences to the facts of the particular case. iii. Secondly, the decision on whether the mandatory requirements provide a defence for the Member State can involve difficult balancing exercises for the ECJ, and for the national courts, to which many such issues are delegated by the ECJ. This issue will be examined more fully in the following section.

9.

free movement of goods and cassis: the broader perspective (a)

the commission response to cassis

The Court’s judgment in Cassis was, in part, a response to the difficulties faced by the Commission in securing acceptance by the Member States of harmonization measures. The judgment in Cassis rendered indistinctly applicable rules which impeded trade incompatible with Article 28, unless they could be saved by a mandatory requirement. This was so even in the absence of relevant harmonization provisions. Cassis therefore fostered single-market integration, and obviated the need for many Community harmonization provisions. It was argued at the beginning of this Chapter that the ECJ’s jurisprudence could not be viewed in isolation. It had an impact upon how the other Community institutions perceived their role. The Commission was not slow to respond to the Court’s initiative. It published a Communication setting out its interpretation of the Cassis decision, which also provided insights into how the Commission perceived its legislative role in this area.

Commission Communication, 3 October 1980 [1980] OJ C256/2 Whereas Member States may, with respect to domestic products and in the absence of relevant Community provisions, regulate the terms on which such products are marketed, the case is different for products imported from other Member States. Any product imported from another Member State must in principle be admitted to the territory of the importing Member State if it has been lawfully produced, that is, conforms to rules and processes of manufacture that are customarily and traditionally accepted in the exporting country, and marketed in the territory of the latter. ...

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Only under very strict conditions does the Court accept exceptions to this principle; barriers to trade resulting from differences between commercial and technical rules are only admissible: — if the rules are necessary, that is appropriate and not excessive, in order to satisfy mandatory requirements . . .; — if the rules serve a purpose in the general interest which is compelling enough to justify an exception to a fundamental rule of the Treaty such as the free movement of goods; — if the rules are essential for such a purpose to be attained, ie. are the means which are the most appropriate and at the same time least hinder trade. [The Commission then set out a number of guidelines in the light of the Court’s judgment.] — The principles deduced by the Court imply that a Member State may not in principle prohibit the sale in its territory of a product lawfully produced and marketed in another Member State even if the product is produced according to technical or quality requirements which differ from those imposed on its domestic products. Where a product ‘suitably and satisfactorily’ fulfils the legitimate objective of a Member State’s own rules (public safety, protection of the consumer or the environment, etc.), the importing country cannot justify prohibiting its sale in its territory by claiming that the way it fulfils the objective is different from that imposed on domestic products. In such a case, an absolute prohibition of sale could not be considered ‘necessary’ to satisfy a ‘mandatory requirement’ because it would not be an ‘essential guarantee’ in the sense defined in the Court’s judgment. The Commission will therefore have to tackle a whole body of commercial rules which lay down that products manufactured and marketed in one Member State must fulfill technical or qualitative conditions in order to be admitted to the market of another and specifically in all cases where the trade barriers occasioned by such rules are inadmissible according to the very strict criteria set out by the Court. The Commission is referring in particular to rules covering the composition, designation, presentation and packaging as well as rules requiring compliance with certain technical standards. —The Commission’s work of harmonization will henceforth have to be directed mainly at national laws having an impact on the functioning of the common market where barriers to trade to be removed arise from national provisions which are admissible under the criteria set out by the Court. The Commission will be concentrating on sectors deserving priority because of their economic relevance to the creation of a single internal market.

There are two important themes in the Commission’s Communication. The first is what has become known as the principle of mutual recognition. Goods lawfully marketed in one Member State should, in principle, be admitted to the market of any other State. This leads to competition among rules, or regulatory competition. A producer will normally only have to comply with the national rules of one State in order that its goods can move freely in the EC. Firms are then able to choose between different national regulations. Consumers can choose between the products that comply with those rules. This creates a ‘competitive process among the different national rules: the choice of producers of where to produce and of consumers of what to buy will determine the “best rules’’ ’.165 The second theme concerns the Commission’s enforcement and legislative strategy for trade rules post-Cassis. This was to be double-edged. It would tackle trade rules that were 165

Maduro, n. 2 above, 132.

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inadmissible in the light of Cassis by using its powers under Article 226 against recalcitrant Member States. The harmonization process would be directed towards those trade rules which were admissible under the Cassis test. The effect of Cassis was thus to induce the Commission to re-orient its legislative programme, and concentrate on national rules that were still valid under the Court’s case law. This strategy was reinforced by a decision166 establishing a procedure for the exchange of information about national measures that derogate from the free movement of goods. A Member State which seeks to prevent free movement of goods that have been lawfully produced or marketed in another Member State must notify the Commission. This information will enable the Commission to decide whether this should be the subject of an Article 226 action, or whether harmonization measures will be necessary to obviate the concerns of the State that is impeding free movement. The ECJ has taken a broad view of ‘national measures’ that trigger the obligation to notify.167 This Decision should be viewed in tandem with Directive 98/34168 on the provision of information on technical standards and regulations. This measure, known as the Mutual Information or Transparency Directive, imposes an obligation on a State to inform the Commission before it adopts any legally binding regulation setting a technical specification. The Commission notifies the other States, and may require that the adoption of the national measure be delayed by up to six months, in order that possible amendments can be considered. A further delay can result if the Commission decides to push ahead with a harmonization directive on the issue.

(b)

problems with realizing the cassis strategy

Mutual recognition is the core of the ECJ’s and Commission’s strategy.169 The general assumption is that this works just fine. Matters are not so simple. The Commission’s paper on Mutual Recognition170 emphasized that it did not always operate effectively, and made a number of proposals to improve it.171 There is to be increased monitoring of mutual recognition by the Commission, to be complemented by measures designed to improve awareness of mutual recognition by producers of goods and services. Member States should deal with requests concerning mutual recognition within a reasonable time, and should include mutual recognition clauses in national legislation. We see here once again the inter-relationship of judicial and legislative strategies. The obligation to insert such clauses derives from the Foie Gras case.172 The French imposed requirements on the composition of foie gras. The Commission argued that the French decree 166 Dec. 3052/95/EC of the European Parliament and of the Council of 13 Dec. 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of free movement of goods within the Community [1995] OJ L321/1. 167 Cases C–388 and 429/00 Radiosistemi Srl v. Prefetto di Genova [2002] ECR I–5845, para. 73; Case C–432/03 Commission v. Portugal, n. 124 above, paras. 56–60. 168 Dir. 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L204/37; Case C–194/94 CIA Security International SA v. Signalson SA and Securitel Sprl [1996] ECR I–2201; Barnard, n. 97 above, 119–127. 169 K. Armstrong, ‘Mutual Recognition’, in Barnard and Scott (eds.), n. 24 above, ch. 9. 170 Commission Communication to the European Parliament and the Council, Mutual Recognition in the Context of the Follow-up to the Action Plan for the Single Market, 16 June 1999. 171 Ibid., 7–12. 172 Case C–184/96 Commission v. France [1998] ECR I–6197.

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containing the requirements for foie gras must also contain a mutual recognition clause in the legislation itself, permitting preparations for foie gras which had been lawfully marketed in another Member State to be marketed in France. The ECJ agreed.173 Henceforth any State which imposes requirements as to product characteristics and the like must also include a mutual-recognition clause in the enabling legal instrument. The Commission acknowledged their importance: ‘it is through such clauses that not only individuals, but also the competent national authorities and the heads of inspection and control bodies become aware of how mutual recognition has to be applied in a given area’.174 Such clauses are especially important, given the difficulties that persist with mutual recognition of complex technical products, foodstuffs, and the like.175

(c)

problems flowing from the cassis strategy

The effect of Cassis was that Community policy would be developed through a mixture of adjudication and rule-making. Adjudication by the ECJ pursuant to Cassis resulted in negative integration: trade rules would be incompatible with Article 28 unless they could be saved by a mandatory requirement. Rule-making would be used for national rules that survived because of the mandatory requirements, and therefore still posed a problem for market integration. This resulted in positive integration, in the sense that there would be Community rules which would bind all States. There are, however, four problems with this general strategy. The first problem is that it is dependent upon agreement with the outcome of the adjudicative process. If the challenged rule failed the Cassis test then it would have to be removed from national law. This conclusion was fine, provided that one agreed with it. The result was less satisfactory if one felt that the trade rule should have been saved by a mandatory requirement. Thus the ECJ has, for example, generally held that national rules on food standards are not saved by the mandatory requirements, because the policy of the importing State can be met by less restrictive rules on product labelling.176 Weatherill has argued forcefully that the ECJ often takes a robust view of consumers, and has given relatively little attention to the prospects of consumer confusion.177 Lasa has also argued that labelling requirements, as opposed to food standards, may not adequately protect the consumer.

H.-C. von Heydebrand u. d. Lasa, Free Movement of Foodstuffs, Consumer Protection and Food Standards in the European Community: Has the Court of Justice Got it Wrong?178 First of all, the Court might simply not be right that consumers are adequately informed through labels. After all, the majority of the consumers apparently do not pay much attention to the information given on the label. . . .

173 174

Ibid., para. 28. Mutual Recognition Communication, n. 170 above, 11. See also Council Resolution of 28 Oct. 1999 on Mutual Recognition [2000] OJ C141/5. 175 Report from the Commission to the Council, European Parliament, and ECOSOC, Second Biannual Report on the Application of the Principle of Mutual Recognition in the Single Market, COM(2002)419 final. 176 See above 000–00. 177 S. Weatherill, ‘Recent Case Law Concerning the Free Movement of Goods: Mapping the Frontiers of Market Deregulation’ (1999) 36 CMLRev. 51. 178 (1991) 16 ELRev. 391, 409–413. See also O. Brouwers, ‘Free Movement of Foodstuffs and Quality Requirements: Has the Commission Got it Wrong?’ (1988) 25 CMLRev. 237.

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Secondly, the Court’s approach can confer an unfair competitive advantage on the importer . . . The consumer associates with the name or presentation of the product a familiar domestic product of a certain quality which is not met by the imported product, and will therefore perhaps be misled. . . . Fourthly, the Court’s case law, if implemented strictly in the long run, may well result in a ‘labelling jungle’ which even judges would find difficult to penetrate. . . . Fifthly, while administrative resources are saved by foregoing harmonization, authorities of the Member States have to struggle with the food standards of the various Member States, since the imported product must still be ‘lawfully produced and marketed’ in the Member States of export. Mutual recognition of official inspections has its difficulties too, especially where the product designated for export is not at all or less carefully examined than the product which is sold on the home market. Sixthly, depending on the market of the foodstuff in question, mutual recognition can lead to discrimination against manufacturers situated in the importing Member State, if that Member State does not timely adjust the food standard. . . . More important . . . the Member State of export can by way of the economic damage caused by inverse discrimination impose de facto its food standard or standard free food law on the Member State of import. Relocation of production to the exporting Member State in an effort to secure market share at home has already occurred in practice. . . . Seventhly, the preference of the Court for labelling is not sufficiently responsive to the local needs of the people of the importing Member State to define and classify the food they eat according to their conceptions, expectations and habits. . . . . . . The attitude of the Court of Justice towards food standards makes it de facto impossible for the people of a Member State to enforce requirements about the quality, composition, designation and presentation of their food when their views are not shared by the people in the Member State of export. . . .

The second problem relates to the balancing exercise performed pursuant to Article 30 and the mandatory requirements. The ECJ has to adjudicate on the balance between market integration and the attainment of other societal goals, when deciding on the legitimacy of such defences. This can also be problematic for national courts, as is readily apparent from the Sunday Trading cases and more recent jurisprudence. Thus in de Agostini179 the national court had to decide whether the advertising ban affected imported goods differentially from domestic goods, whether the ban might satisfy a mandatory requirement, and whether it was proportionate. In Familiapress180 the task given to the national court was even more problematic. The ban on the import of newspapers offering prizes was held to breach Article 28. It was for the national court to decide whether the ban could be saved on the ground that it was a proportionate method of preserving press diversity, and whether that objective could be achieved by less restrictive means. The national court was, moreover, required to decide on the degree of competition between papers offering prizes and those small newspapers that could not afford to do so, and to estimate the extent to which sales of the latter would decline if the former could be offered for sale. The third problem concerns the balance between market integration and the protective function played by national rules. Community legislative initiatives may be required to ensure that the protective function of certain trade rules is not lost sight of in the desire to enhance

179 180

Cases C–34–36/95 de Agostini, n. 67 above. Case C–368/95 Vereinigte Familiapress, n. 159 above.

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single-market integration.181 Thus consumer groups were worried that trade liberalization could have negative consequences on consumer safety.182 It is true that safety and the like can be taken into account under the Cassis mandatory requirements. There is, however, as Weatherill and Beaumont note, a risk inherent in the Cassis line of authority. The risk is ‘that the Court has introduced a legal test that tends to tip the balance away from legitimate social protection towards a deregulated (perhaps unregulated) free market economy in which standards of, inter alia, consumer protection will be depressed’.183 Positive harmonization through Community rules may be required to ensure the appropriate level of protection in the relevant area. The final problem concerns the allocation of regulatory competence between the Community and the Member States. The interpretation of Article 28 serves to define the sphere of regulatory competence left to the Member States, and the extent to which Community harmonization is required. This entails important choices.

M. Maduro, We the Court: the European Court of Justice and the European Economic Constitution184 [Art. 30 should be read as Art. 28] The institutional choices, regarding the allocation of regulatory powers, that can be detected in different interpretations of Article 30 [28] and its co-ordination with Treaty rules on harmonisation may be represented in three ideal constitutional models of the European Economic Constitution: the centralised constitutional model, the competitive constitutional model and the decentralised constitutional model. The centralised model reacts to the erosion of national regulatory powers through Article 30 by favouring a process of market integration by means of the replacement of national laws with Community legislation. The competitive model promotes ‘competition among national rules’, notably through the principle of mutual recognition of national legislation. In the decentralised model, States will retain regulatory powers, but are, at the same time, prevented from developing protectionist policies. These models are heuristic devices. They are all present—and compete with each other—in the European Union. . . . These, in turn, can be linked with three different visions of the European Economic Constitution and its legitimation. The first argues that negative integration, deriving from the application of market integration rules, must be followed by positive integration which is legitimised through the development of traditional democratic mechanisms in the European Union. The second argues for the constitutionalisation of negative integration. No traditional democratic developments are required for the European Union institutions since powers are left to the market. . . . This vision protects market freedom and individual rights against public power. The third vision still sees the highest source of legitimacy in national democratic legitimacy. The legitimacy of the European Economic Constitution derives therefrom and is thus conditioned. . . .

181 See, however, Case C–320/93 Lucien Ortscheit GmbH v. Eurim-Pharm Arzneimittel GmbH [1994] ECR I–5243, for judicial recognition of this problem. 182 K.J. Alter and S. Meunier-Aitsahalia, ‘Judicial Politics in the European Community: European Integration and the Pathbreaking Cassis de Dijon Decision’ (1994) 26 Comparative Political Studies 535, 544. 183 N. 47 above, 600. 184 (Hart, 1998), 108–109.

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The disputes over Article 30 and European regulation are basically disputes over these different economic constitutional models and the different legitimacy they presuppose.

10.

conclusion

i.

The ECJ had certain fundamental choices open to it when interpreting Article 28. It could have limited the remit of this Article to measures that were discriminatory or protectionist. It chose not to do so, and extended Article 28 to cover indistinctly applicable rules. Consequences flow from any choice, and this applies as much to those made by courts as other decision-makers.

ii.

The legislative consequence of Cassis was far-reaching. The decision facilitated the creation of a single market. The Commission re-oriented its legislative strategy to concentrate on trade rules that were still lawful in the light of Cassis and could be justified by the mandatory requirements. There would be harmonization pursuant to Article 95, albeit often only minimum harmonization.

iii. The judicial consequence of Cassis was equally significant. The ECJ ‘reaped the burden of its own success’. Litigants sought to challenge all manner of national trade rules claiming that they constituted an impediment, direct or indirect, actual or potential, to Community trade. It was this that led the ECJ to re-think its own jurisprudence in Keck in an attempt to stem the tide. The distinction between rules going to the characteristics of the goods and those pertaining to selling arrangements has proven fragile. The ECJ has increasingly brought selling arrangements within Article 28 either by treating them as going to the character of the goods, or because they apply unevenly, in fact or law, to imports. Market access has come closer to centre stage in the ECJ’s reasoning. iv. Cassis also had a second-order judicial consequence. The ECJ had to decide whether a Member State could legitimately plead a mandatory requirement as a defence. It was forced to make difficult decisions between the imperatives of market integration and the pursuit of other social goals. National courts are often faced with complex empirical and normative issues, having to decide whether a mandatory requirement is proportionate, whether another less restrictive measure would be possible and balance matters such as press diversity against market integration. v. Cassis had significant regulatory consequences. Member States lost regulatory competence. They could no longer apply their trade rules to imported goods. These had to be admitted because of mutual recognition, unless they could be saved by a mandatory requirement. The EC acquired regulatory competence, since the existence of a proven mandatory requirement brought Article 95 into play. Difficult choices had to be made about the balance between the imperatives of market integration, and the pursuit of other social objectives.

11.

further reading

(a) Books Barnard, C., The Substantive Law of the EU: The Four Freedoms (Oxford University Press, 2004)

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—— and Scott, J. (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002) Jarvis, M., The Application of EC Law by National Courts: The Free Movement of Goods (Oxford University Press, 1998) Maduro, M.P., We the Court: The European Court of Justice and the European Economic Constitution (Hart, 1998) Nic Shuibhne, N., Regulating the Internal Market (Edward Elgar, 2006) Oliver, P., assisted by Jarvis, M., Free Movement of Goods in the European Community: Under Articles 28 to 30 of the EC Treaty (4th edn., Sweet & Maxwell, 2003) Woods, L., Free Movement of Goods and Services within the European Community (Ashgate, 2004) (b) Articles Armstrong, K., ‘Mutual Recognition’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 9 Barnard, C., ‘Fitting the Remaining Pieces into the Goods and Persons Jigsaw’ (2001) 26 ELRev. 35 —— and Deakin, S., ‘Market Access and Regulatory Competition’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 8 Bernard, N., ‘Discrimination and Free Movement in EC Law’ [1996] ICLQ 82 Biondi, A., ‘Free Trade, a Mountain Road and the Right to Protest: European Economic Freedoms and Fundamental Individual Rights’ [2004] EHRLRev. 51 Chalmers, D., ‘Repackaging the Internal Market—The Ramifications of the Keck Judgment’ (1994) 19 ELRev. 385 Connor, T., ‘Accentuating the Positive: the “Selling Arrangement”, the First Decade and Beyond’ (2005) 54 ICLQ 127 De Búrca, G., ‘Unpacking the Concept of Discrimination in EC and International Trade Law’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 7 Doogan, M., ‘Minimum Harmonization and the Internal Market’ (2000) 37 CMLRev. 853 Enchelmaier, S., ‘The Awkward Selling of a Good Idea, or a Traditionalist Interpretation of Keck’ (2003) 22 YBEL 249 Gormley, L.W., ‘Reasoning Renounced? The Remarkable Judgment in Keck & Mithouard’ [1994] European Business L Rev. 63 Greaves, R., ‘Advertising Restrictions and the Free Movement of Goods and Services’ (1998) 23 ELRev. 305 Hilson, C., ‘Discrimination in Community Free Movement Law’ (1999) 24 ELRev. 445 Koutrakos, P., ‘On Groceries, Alcohol and Olive Oil: More on Free Movement of Goods after Keck’ (2001) 26 ELRev. 391 Maduro, M.P., ‘Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedoms and Political Rights’ (1997) 3 ELJ 55 Mortelmans, K., ‘The Common Market, the Internal Market and the Single Market, What’s in a Market’ (1998) 35 CMLRev. 101

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Nic Shuibhne, N., ‘The Free Movement of Goods and Article 28: An Evolving Framework’ (2002) 27 ELRev. 408 Oliver, P., ‘Some Further Reflections on the Scope of Articles 28–30 (ex 30–36)’ (1999) 36 CMLRev. 738 —— and Roth, W.-H., ‘The Internal Market and the Four Freedoms’ (2004) 41 CMLRev. 407 Reich, N.,‘The “November Revolution” of the European Court of Justice: Keck, Meng and Audi Revisited’ (1994) 31 CMLRev. 459 Scott, J., ‘Mandatory or Imperative Requirements in the EU and the WTO’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 10 Weatherill, S., ‘After Keck: Some Thoughts on how to Clarify the Clarification’ (1996) 33 CMLRev. 885 —— ‘Recent Case Law Concerning the Free Movement of Goods: Mapping the Frontiers of Market Deregulation’ (1999) 36 CMLRev. 51 —— ‘Pre-emption, Harmonisation and the Distribution of Competence to Regulate the Internal Market’, in C. Barnard and J. Scott (eds.), The Law of the Single European Market, Unpacking the Premises (Hart, 2002), ch. 2 Weiler, J.H.H, ‘From Dassonville to Keck and Beyond: An Evolutionary Reflection on the Text and Context of the Free Movement of Goods’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford University Press, 1999), ch. 10 White, E., ‘In Search of the Limits to Article 30 of the EEC Treaty’ (1989) 26 CMLRev. 235 Wils, W.P.J., ‘The Search for the Rule in Article 30 EEC: Much Ado About Nothing?’ (1993) 18 ELRev. 475