Abstract
‘Market access’ is the latest of the Court’s formulae for establishing whether the free movement of goods and the freedom to provide services are restricted. So far, the criterion is ill-defined, especially in its application to restrictions of use. Nevertheless, predictability can be restored to the assessment under both freedoms through a properly understood discrimination test, complemented by a prohibition of universal bans, proceeding in the following steps:
-
(1)
Does the restriction of use apply in law equally to domestic producers and providers as to those from other Member States (i.e. is it ‘indistinctly applicable’)? If yes,
-
(2)
Does the restriction have the same factual repercussions on imports and domestic products/on services provided by operators established in the same Member State as the recipient, and on services in whose provision a border between Member States is crossed (if there are any domestic goods or services)? If yes,
-
(3)
Does the restriction prohibit the last remaining use in the Member State in question in a situation where either such use remains legal in at least one other Member State, or the importing Member State is the last to allow this use?
If the answer to (1) or (2) is ‘no’, or if it is ‘yes’ to (3), the measure restricts the free movement of goods or the freedom to provide services, and therefore requires a justification. Otherwise, it does not because it leads to a mere reduction in the volume of economic activity.
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Notes
- 1.
Case 8/74, Dassonville, ECLI:EU:C:1974:82; Case 33/74, van Binsbergen, ECLI:EU:C:1974:131.
- 2.
Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, ECLI:EU:C:1979:42; Joined Cases 110/78 and 111/78, van Wesemael, ECLI:EU:C:1979:8.
- 3.
Steindorff 1986, p. 692.
- 4.
One of several examples is Case 145/88, Torfaen Borough Council v. B&Q, ECLI:EU:C:1989:593.
- 5.
Joined Cases C-267/91 and C-268/91, Criminal Proceedings against Bernard Keck and Daniel Mithouard, ECLI:EU:C:1993:905.
- 6.
Case C-110/05, Commission v. Italy (‘Moped trailers’), ECLI:EU:C:2009:66; Case C-142/05, Åklagaren v. Percy Mickelsson and Joakim Roos, ECLI:EU:C:2009:336.
- 7.
See the inventory in Enchelmaier 2011, pp. 618–633.
- 8.
- 9.
Case C-110/05 (above n. 6), para 34; the references in the original are omitted.
- 10.
Case C-110/05 (above n. 6), para 37.
- 11.
Case 15/79, PB Groenveld BV v Produktschap voor Vee en Vlees, ECLI:EU:C:1979:253, para 7; see more recently Case C-12/02, Grilli, ECLI:EU:C:2003:538, para 42, and Case C-137/00, Milk Marque and National Farmers’ Union, ECLI:EU:C:2003:429, paras 118, 119; Case C-205/07, Gysbrechts and Santurel, ECLI:EU:C:2008:730, para 40 (Grand Chamber).
- 12.
See e.g. Case T-175/95, BASF Coatings v. Commission, ECLI:EU:T:1999:99, paras 82–9, with further references.
- 13.
- 14.
Keck (above n. 5), para 13: ‘[A prohibition of resale at a loss] 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 characterise the legislation in question as a measure having equivalent effect to a quantitative restriction on imports.’ In the same sense, see Case C-71/02, Karner v. Trostwijk, ECLI:EU:C:2004:181, para 42: ‘[…] Although such a prohibition is, in principle, likely to limit the total volume of sales in that Member State and, consequently, also to reduce the volume of sales of goods from other Member States, it nevertheless does not affect the marketing of products originating from other Member States more than it affects the marketing of products from the Member State in question. […]’; Case C-20/03, Burmanjer, ECLI:EU:C:2005:307, paras 30–31: ‘It is common ground that a national system such as the rules on itinerant sales is, in principle, likely to limit the total volume of sales of the goods in question in the Member State concerned and, consequently, also to reduce the volume of sales of goods from other Member States. […] However, the information available to the Court does not enable it to establish with certainty whether the national rules on itinerant sales affect the marketing of products from Member States other than the Kingdom of Belgium to any greater degree than that of products from that State. […]’.
- 15.
Contra Fenger (n. 8), Chap. 5, Sect. 5.4.2, who interprets para 17 of Keck as a factual statement (‘the consequence of fulfilling the test laid down in that judgment’) or rather, as a ‘legal fiction in the name of legal certainty and operability’, with the result that ‘[f]or non-discriminatory measures, the market test was applied only in the negative sense that as long as the two conditions laid down in Keck were fulfilled no market access problem would by definition arise’ (by footnote 38). This seems due to the absence throughout his text of a reflection on what ‘market access’ might mean in legal terms (for which ultimately the Court is to blame, not its commentators). If one understands it to mean universal bans, numerous judgments can be found which turn on the assessment of such measures (see next footnote). If one understands as a reduction of turnover, a number of unanswered questions arise.
- 16.
For a temporary ban, see Joined Cases 60/84 and 61/84, Cinéthèque, ECLI:EU:C:1985:329 (prohibition of selling or hiring video cassettes of a movie within a certain time of its first showing in cinemas—Prete 2008, p. 145, correctly derives from that judgment that discrimination is not a necessary element of a breach of Article 34, but has only ‘market access’ to offer (at 151) as to what else is caught, while coming close to the position here advocated at 150; see on this in and by above n. 48); for registration requirements see e.g. Case C-150/00, Commission v. Austria (‘Vitamins’), ECLI:EU:C:2004:237, paras 83–7 (registration requirement for consumables containing vitamins and minerals); Case C-55/94, Gebhard, ECLI:EU:C:1995:411 (establishment); Case C-58/98, Corsten, ECLI:EU:C:2000:527 (services); as an example of a requirement of type approval, see Joined Cases C-388/00 and C-429/00, Radiosistemi Srl v. Prefetto di Genova, ECLI:EU:C:2002:390, para 43 (granting of a national mark of conformity).
- 17.
Thus Barnard 2009, p. 289.
- 18.
Case C-110/05 (above n. 6), paras 49–58; the quotation is from para 56.
- 19.
This proposition is explained in more detail in Enchelmaier 2003, pp. 298–300.
- 20.
Shortly after Moped Trailers, for instance, the Court reverted to a traditional discrimination analysis in Case C-531/07, Fachverband der Buch- und Medienwirtschaft v. LIBRO Handelsgesellschaft, ECLI:EU:C:2009:276, paras 18–22; see also Case C-100/08, Commission v. Belgium (‘Wild Birds’), ECLI:EU:C:2009:537, paras 81, 82, where the Court first cites para 34 of Moped Trailers, then para 35 for the Cassis formula which decides the matter; the Dassonville formula without a trace of Moped Trailers was decisive in Case C-333/08, Commission v. France (‘Positive List’), ECLI:EU:C:2010:44, para 74 ff; the same (Third) Chamber as in the last-mentioned judgment had already decided on the same basis a case on restrictions of use, namely Case C-265/06, Commission v. Portugal (‘Tinted Film’), ECLI:EU:C:2008:210, para 31 ff, even after Kokott AG’s opinion in Mickelsson had led to the reopening of the proceedings in Moped Trailers. All these may be taken as reasons for not getting too excited prematurely about the Court’s new approach and its longevity.
- 21.
The exact wording of the Swedish provisions is reproduced in para 12 of the Court’s judgment, the Court’s own summary is at para 22.
- 22.
Case C-142/05 (above n. 6), para 24.
- 23.
Above n. 2.
- 24.
Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und -vertriebsGmbH v. Heinrich Bauer Verlag, ECLI:EU:C:1997:325.
- 25.
Case C-322/01, Deutscher Apothekerverband v. 0800 DocMorris and Waterval, ECLI:EU:C:2003:664.
- 26.
Case C-142/05, para 24, referring to Moped Trailers (both above n. 6), para 37.
- 27.
Case C-142/05 (above n. 6), para 25.
- 28.
Case C-142/05 (above n. 6), paras 26–7.
- 29.
Ibid., para 28.
- 30.
See the opening words in Case C-142/05 (above n. 6), para 26: ‘Even if the national regulations at issue do not have the aim or effect of treating goods coming from other Member States less favourably, which is for the national court to ascertain, …’.
- 31.
The Court uses this comparison under Article 110 in the absence of domestic competition for the imported product allegedly discriminated against (in casu, cars): Case C-383/01, Den Danske Bilimportører, ECLI:EU:C:2003:352, para 35; see also the summaries on this point in Case C-387/01, Weigel, ECLI:EU:C:2004:256, paras 67–75 and in Case C-101/00, Tulliasiamies, ECLI:EU:C:2002:505, paras 50–8, 74–9, 85–8.
- 32.
As suggested by Barnard and Deakin 2002, p. 284 n. 185.
- 33.
Oliver 2010, para 6.88, speaks of a ‘disappointment’.
- 34.
See on this emphatically Gormley 2009, p. 191: ‘It has been clear from the very beginning of the attempts to define the notion of measures having equivalent effect that it should be viewed as an effects doctrine rather than dependent upon the nature or contents—or even purpose—of the measure’. Contra Fenger, Chap. 5, Sect. 5.5, who argues that, ‘no individual assessment under the market access criterion needs to be made in relation to those categories of national measures for which the Court has already made that assessment. Indeed, if a market access test were to be carried out in all cases concerning selling arrangements in the same manner as in other cases concerning Article 34, what would then be the substance of the distinction between selling arrangements and other measures’ (paragraph following footnote 50). This adheres to the traditional if little reflected reading of ‘selling arrangements’ as part of the test in paras 15 and 16 of Keck. The relevant questions (the test) are contained in the two phrases beginning with ‘so long as’. It is the same (Cassis) test as for ‘product requirements’ (para 15), only that retail at a loss did have the same factual repercussions for all coffees, whereas the minimum alcohol content did not for all fruit liqueurs, the rules in both cases being indistinctly applicable. ‘Selling arrangements’ is, therefore, not part of the test but a laxly worded summary of the outcome before the test is articulated. In this context, the significance of ‘certain’ was never properly explained by the Court or in the literature—see, e.g., Fenger, Chap. 5, Sect. 5.4.3.
- 35.
Case C-142/05 (above n. 6), para 28 read jointly with para 25, last sentence.
- 36.
Fenger (n. 8), Chap. 5, Sect. 5.6 suggests that ‘national measures which merely limit to some extent the general usefulness of a product, and thereby have some potential effect on imports, should not be caught by Article 34. Rather, the threshold should be placed fairly high: Article 34 should apply only where all, or nearly all, normal uses of the good in question are excluded, and imports are therefore likely to be quite severely affected’. The weakness of this test is that with ‘fairly’, ‘some’, ‘nearly’, and ‘quite’, it hinges on non-justiciable and ultimately arbitrary criteria.
- 37.
- 38.
Case C-384/93, Alpine Investments BV v. Minister van Financiën, ECLI:EU:C:1995:126.
- 39.
This is overlooked by Torgersen, [1999] 10 EBLR 371, at p. 383, left col., who therefore sees a parallel with Cases C-76/90, Säger v. Dennemeyer, ECLI:EU:C:1991:331, and Case C-275/92, Schindler, ECLI:EU:C:1994:119, both involving bans, and by Nic Shuibhne 2013, pp. 239, 240, 245, 248.
- 40.
Alpine Investments managed portfolios for its clients, gave them investment advice, and transmitted their orders to brokers operating on commodities futures markets, para 4 of the judgment.
- 41.
Same result in Davies 2003, pp. 82–83.
- 42.
Case C-254/98, Schutzverband gegen unlauteren Wettbewerb v. TK Heimdienst Sass, ECLI:EU:C:2000:12.
- 43.
Case C-319/06, Commission v. Luxembourg (‘Posted workers’), ECLI:EU:C:2008:350, para 85, emphasis added; similarly, the Court found in Case C-565/08, Commission v. Italy (‘Lawyers’ fees’), ECLI:EU:C:2011:188, para 51 that a restriction would exist if lawyers were ‘deprived of the opportunity of gaining access to the market of the host Member State under conditions of normal and effective competition’.
- 44.
Case C-134/05, Commission v Italy (‘Extrajudicial debt recovery’), ECLI:EU:C:2007:435, paras 71–2; Joined Cases C-94/04 and C-202/04, Cipolla, ECLI:EU:C:2006:758, para 70; the Court said the same in Joined Cases C-147/06 and C-148/06, SECAP and Santorso v. Comune di Torino, ECLI:EU:C:2008:277, para 28, about a rule requiring the automatic exclusion of abnormally low tenders to contracts of certain cross-border interest. This argument about the restrictive effects of minimum price-legislation has a long tradition in the case law on goods, see Oliver 2010, paras 7.87–104.
- 45.
Case 132/78, Denkavit Loire, ECLI:EU:C:1979:139, para 8: taxes on imported lard that were meant to offset the slaughter fees borne by domestic pork producers.
- 46.
Concurring, Fenger (n. 8), Chap. 5, Sect. 5.5, argues that ‘[o]n closer reflection, the market access test, however, may be rather less novel and practically significant. Ensuring market access for foreign products was always a major preoccupation of the Court even though it has used different terms to express that concern’.
- 47.
Case C-518/06, Commission v. Italy (‘Third party liability motor insurance’), ECLI:EU:C:2009:270, para 64; also in Case C-565/08, Commission v. Italy (‘Lawyers’ fees’), ECLI:EU:C:2011:188, para 46. Equally critical of the Court’s case law on this point is Snell 2010, pp. 468 et seq.: ‘Ultimately, the notion of market conceals rather than clarifies. The very ambiguity of the term may explain its use by and usefulness for the Court. … Market access may simply provide a sophisticated-sounding garb that conceals decisions based on intuition.’ See also Davies 2010, passim.
- 48.
Case C-518/06 (n. 47), paras 66–70. The Court reasoned in a similar manner in Case C-465/05, Commission v. Italy (‘Private security services’), ECLI:EU:C:2007:781, para 125, with regard to administrative control of the fees providers were allowed to charge, and in Joined Cases C-147/06 and C-148/06 (n. 44), para 28, concerning a rule requiring the automatic exclusion of abnormally low tenders which ‘could deprive economic operators from other Member States of the opportunity of competing more effectively with operators located in the Member State in question and thereby affect their access to the market in that State, thus impeding the exercise of freedom of establishment and freedom to provide services’ (emphasis added).
- 49.
See also the doubts entertained by Edward and Nic Shuibhne 2009, p. 256: ‘If market access is ultimately the best criterion, applicable across the range of internal market law, there must nevertheless be some way of delimiting the scope of the freedom in relation to non-discriminatory obstacles. Otherwise, there is a danger of setting off again down the fausse piste that ended with Keck’—too right, but in what sense, then, is market access ‘the best criterion’?
- 50.
See Oliver and Roth 2004, pp. 412, 413.
- 51.
Case C-416/00, Morellato v. Commune di Padova, ECLI:EU:C:2003:475, para 36.
- 52.
Morellato (above n. 51), para 37.
- 53.
Case C-65/05, Commission v. Greece (‘Electronic games’), ECLI:EU:C:2006:673, para 25.
- 54.
For a detailed discussion of the concept of discrimination in the context of the free movement of goods and of the other freedoms, see Enchelmaier 2003, pp. 252–272, with references to various alternative proposals.
- 55.
See in and by n. 14.
- 56.
Concurring, Oliver and Roth 2004, pp. 414, 415; see already above in and by n. 16.
- 57.
- 58.
On the Court’s methodology in this respect, see Enchelmaier 2003, pp. 276–8.
- 59.
For a detailed discussion of this, see Enchelmaier 2003, pp. 300–6.
- 60.
For an example, see Case C-473/98, Kemikalieinspektionen v. Toolex Alpha, ECLI:EU:C:2000:379.
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Enchelmaier, S. (2017). Restrictions on the Use of Goods and Services. In: Andenas, M., Bekkedal, T., Pantaleo, L. (eds) The Reach of Free Movement. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-195-1_4
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