The rationale behind the ECJ’s current proportionality
analysis on national measures regulating use of goods.
by
Cornelia Linde
Master Thesis International and European Law (LL.M) Supervisor: mw. prof. dr. A.A.M. Schrauwen
Student number: 12327417 University of Amsterdam 2019-07-26
Abstract
National measures restricting the use of goods have appeared to be a type of measure, when looking at the cases Italian trailers and Mickelsson & Roos, which is fairly easily justified under Article 36 TFEU through the proportionality assessment. However, the case
Commission v. Portugal seems to be an exception. This thesis focuses on investigating the
rationale behind the Court’s proportionality analysis under Article 36 TFEU on national measures regulating the use of goods, and more specific the three cases mentioned above. This thesis categorizes the national measures that fall under the scope of Article 34 TFEU as either product bound restrictions, selling arrangements, or restriction on use. Subsequently, this thesis analyzes the proportionality test in different Opinions and judgment regarding Article 36 TFEU. An evaluation is made based upon the different proportionality reviews, with the end result that the proportionality review made in Italian trailers is more lenient than the more extreme proportionality review made in Commission v. Portugal.
The thesis identifies five different reasons functioning as a possible explanation to the Court’s approach towards the proportionality assessment in the cases Italian trailers, Mickelsson &
Roos and Commission v. Portugal. Them being; the effect and intent of the regulations taken
into consideration, reverse discrimination and inconsistency, the Court scaling down its control, the insecurity about the categorization of rules on use under the scope of Article 34 TFEU, and lastly a possible compromise made by the Court. Even though this thesis argues that the possible explanation of a compromise seems likely, one can only speculate about the actual rationale, which is problematic. There is a problem when the Court is acting in silence without an explicit explanation whenever they change approach or how, for example, the proportionality assessment should be made. What might raise problems for the Court is the Court’s dual functions, to work both as a constitutional jurisdiction and at the same time solve case-specific disputes in front of them. A constitutional Court is subject to specific standards of responsibility, such as consistency, that the Court seems to have a problem living up to. The uniformity and effectiveness of EU law will be compromised if the Court fails to deliver decisions that are sufficiently consistent, clear, well-explained, and convincing since the judgment otherwise risks to be not correctly followed by national courts.
Table of Content
1. Introduction
52. Article 34 TFEU
62.1 Categorization of national measures
72.1.1 Product bound restrictions 7
2.1.2 Selling arrangements 7
2.1.3 Restriction on use 9
3. Article 36 TFEU
143.1 The principle of proportionality
153.1.1 Suitability 15
3.1.2 Necessity 16
3.1.3 Stricto sensu 16
3.1.4 The different levels of intensity 17
4. Proportionality review under Article 36 TFEU
185.1 Product bound restrictions
185.1.1 Cassis de Dijon 18
5.2 Selling arrangements
195.2.1 Keck 19
5.3 Restriction on use
205.3.1 Italian trailers 21
5.3.2 Mickelsson & Roos 23
5.3.3 Commission v. Portugal 25
5. Analysis
275.1 The rationale behind the Courts’ approach
275.1.1 Intent and effect taken into consideration 27
5.1.2 Similar cases? Consistency and reverse discrimination 30
5.1.3 The Court scaling down control 31
5.1.4 Insecurity about the categorization 32
6. Conclusion
35Table of Cases
38Advocate General Opinions
38Bibliography
39Books
39Articles
411. Introduction
Hindrance of product utilization regulated by national laws can have a similar effect as an import ban. The European Court of Justice (hereinafter referred to as the Court) stated that a ban on import is the most “extreme form of prohibition” in the case Henn and Darby.1
However, import bans are rarely justified2 and national measures restricting trade between
Member States are often not considered proportional by the Court.3 In case law there might be an exception where a group of regulations seems to be fairly easily justified,4 namely national regulations arranging the use of a product.5 Research showed that the sales of water scooters decreased up to 90% because of the national laws prohibiting water scooters on certain waters in Sweden.6 Despite this, the Court in their answer to Sweden’s preliminary reference said that the national law on hindrance to use could be justified based on environmental reasons in the case Mickelsson & Roos.7 The Court’s proportionality review and justification in the case
Commission v. Italy (hereinafter referred to as the Italian trailers case) concerning an Italian
prohibition of trailers attached to motorcycles, has been heavily criticized and considered to be not logical,8 especially when compared to the case Commission v. Portugal,9 a similar case where the Court had a different conclusion in the proportionality review. It is therefore interesting to look into the background of these cases and seek an explanation. It is hard to identify what elements might play a decisive role in the judgments of the Court and this thesis will try to examine and address these factors.
1 Barnard, Catherine (2016) The substantive law of the EU: the four freedoms. 5th revised
edition. Oxford: Oxford University Press, page 73 and Case C-34/79, R. v. Henn and Darby [1972] E.C.R. 3795, para 12-13.
2 Gormley Laurence W., ’Free Movement of Goods and Their Use – What Is the Use of It?’
[2010] Volume 33(6) Fordham International Law Journal page, 1593. Note: This is
assumption is based on the cases actually ending up in front of the Court, the vast majority of relevant cases never do. See. Nic Shuibhne, Niamh (2014). The coherence of EU free
movement law: constitutional responsibility and the Court of Justice. Oxford: Oxford
University Press, page 18.
3 Barnard, Catherine & Odudu, Okeoghene (red.) (2009). The outer limits of European union
law. Ofxord: Hart, page 285.
4 Note: See footnote 2.
5 See Case C-110/05, Commission v. Italy [2009] E.C.R. I-519.
6 Tiberg Hugo, ’Vattenskotrar efter EG-dom 2009’, [2009] SvJT s. 791. 7 See Case C-142/05, Mickelsson and Roos [2009] E.C.R. I-4273. 8 Gormley, Fordham Int L J, (2010), page 1613.
The question examined in this thesis is therefore as follows:
What is the rationale behind the Court’s current proportionality analysis on national measures on hindrance to use?
To answer the research question, this thesis is going to categorize the national regulations under the scope of Article 34 TFEU.10 Later, the thesis will examine whether there is a link between the categorization of rules and the proportionality review made by the Court under Article 36 TFEU. This thesis relies heavily on five cases ruled upon by the Court and the Advocate Generals Opinions related to these cases. The work will start descriptive and recognize different views and literature on proportionality, yet later take a more external perspective and critically identify reasons and draw conclusions with the help of articles in this area. The goal of this thesis is to investigate the possible interest and reasons that might have influenced the Court’s interpretation of the proportionality principle and subsequently discuss the Court’s role and responsibility. In the evaluation of the intensity of the different judgments proportionality review, this thesis is relying on Lavrijssen’s scale.
2. Article 34 TFEU
Article 34 TFEU states that “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.” The article has as the purpose to prohibit national measures that either serve as a quantitative restriction or measures having an equivalent effect to this,11 and the underlying objective of Article 34 TFEU is to establish a single market.12 The definition of measures having an equivalent effect is originally found in the case Dassonville and is as follows: “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.”13
10 European Union, Consolidated version of the Treaty on European Union and the Treaty on
the Functioning of the European Union (TFEU) [2016] OJ C202/1.
11 Barnard (2016), page 72.
12 Article 26 TFEU ”The Union shall adopt measures with the aim of establishing or ensuring
the functioning of the internal market, in accordance with the relevant provisions of the Treaties.”
2.1 Categorization of national measures
The Dassonville formula is very broad and allows room to challenge any national rule that indirectly or potentially stands in the way of a product being on the market.14 A further
categorization of the national measures having equivalent effect can be done and divided into;
product bound restrictions, selling arrangements and restrictions on use. 2.1.1 Product bound restrictions
Product bound restrictions are the type of rules that lay down requirements to be met by goods. One case concerning product bound restrictions is Cassis de Dijon. In Cassis de Dijon, a German liquor importer was refused to import liquor into Germany from France since German law required fruit liquor to have a minimum alcohol volume of 25%. The Court considered this a breach of Article 34 TFEU.15 The national measure restricting trade was regulating the product itself and what it contained.
2.1.2 Selling arrangements
The very broad Dassonville formula ultimately led to a lot of national rules being classified as measures having equivalent effect and in need of justification. However, this changed after the Court took selling arrangements outside the scope of Article 34 TFEU in the case Keck.16 Advocate General Teasuro’s Opinion in the case Hünermund can be seen as a start of the
Keck case. He suggested selling arrangements to be left outside the scope of Article 34 TFEU,
since we want free movement law to be about hindrance on trade, and these type regulations are not designed to regulate trade. If selling arrangements would be left inside the scope of Article 34 TFEU, EU Law will prohibit all these measures and national legislators would in principal never be able to justify it. 17 The Opinion seemed to be well received by the Court
since the Court found inspiration from the Opinion when ruling in Keck. Selling arrangements are national measures that do not concern the goods themselves but instead the circumstances around the products, such as how, when, and where they can be marketed.18 Keck concerned
14 Barnard (2016), page 75.
15 Case C-120/78, Cassis de Dijon [1979] E.C.R. 649, para 14
16 Joined Cases C-267/91 and C-268/91, Keck and Mithouard [1993] E.C.R. I-6097.
17 Opinion of Advocate General Tesauro, Case C- Case C-292/92, Hünermund [1993] E.C.R.
I-6787, paras 27-28.
18 See Case C-412/93, Leclerc Siplec [1995] E.C.R. I-179, Case C-63/94 Belgapom [1995]
the question of whether French law prohibiting products being sold below wholesale price constituted a breach of Article 34 TFEU.19 The Court ruled that national legislation imposing general prohibitions at for example resale at a loss is not designed to regulate trade in goods between Member States.20 However, the Court still raised the fact that such legislation possibly can restrict the volume of sales and as a result the volume of sales from other Member States. The question remained whether the possibility of restriction on volume of sales was sufficient to actually characterize the national measures as a measure having equivalent effect to a qualitative restriction on imports.21 The Court also took into consideration, when making this decision, the increasing tendency of traders to invoke Article 34 TFEU and therefore clarified the existing case law and decided to distinguish between product requirements and certain selling arrangements.22 In the end, it was decided that
national measures prohibiting selling arrangements are not considered to hinder directly or indirectly, actually or potentially, trade between Member States, and therefore do not fall within the broad Dassonville formula as long as they do not discriminate and apply similar to all relevant traders operating in the country.23
Advocate General Van Gerven had a different approach in his Opinion. According to him, it was irrelevant whether the contested national measures constituted pricing rules or not, the question was rather whether such national measures could deprive a foreign producer of the advantage of his lower cost price when importing his products, then it would fall under Article 34. TFEU.24 Advocate General Van Gerven suggested looking at the intent of a regulation when deciding whether the regulation should fall in- or outside the scope of Article 34 TFEU and if the intent was to not regulate trade between Member States, the Court should have a more reserved approach.25 To summarize, it can be said that after Keck the attention was turned to the aim of the rules rather than the effect when evaluating whether they are a breach of Article 34 TFEU or not.26
19 Joined Cases C-267/91 and C-268/91, Keck and Mithouard [1993] E.C.R. I-6097. 20 Ibid, para 12.
21 Ibid, para 13. 22 Ibid, para 14. 23 Ibid, para 16.
24 Opinion of Advocate General Van Gerven, Joined Cases C-267/91 and C-268/91, Keck and
Mithouard [1993] E.C.R. I-6097, para 5.
25 Ibid, para 8.
26 Purnhagen Kai P., ’Keck is dead, long live Keck? – How the CJEU Tries to Avoid a
Sunday Trading Saga 2.0’ [2018] Wageningen Working Papers in Law and Governance, page 4.
The ruling in Keck received a lot of criticism. For example, Advocate General Jacobs said in his Opinion to the case Leclerc-Siplec27 that it was inappropriate to make a harsh restriction between different categories of rules and apply different tests depending on what category a certain rule belongs to. Advocate General Jacobs thought the Court should have looked at the effect of the rules and whether it might be of substantial negative effect on the market instead of the type of rule concerned. He gave the example of a rule permitting certain products only to be sold in a certain type of stores having the same restrictive effect as an outright ban on importation and marketing.28 He concluded in his Opinion that a partial ban on advertisement would not be a substantial restriction of the market access.29 Keck doctrine has been criticized for not being flexible and able to cover all genuine barriers to trade. On the other side, looking at the effect instead might introduce a “de minimis test” which will bring a lot of new unanswered questions to the table, such as what is substantial effect and what is a minor effect?30 Advocate General Jacobs was not alone with his opinion, several academic writers expressed their dissatisfaction regarding Keck and that the test on whether a measure falls within the scope of Article 34 TFEU should only be based on whether the national measure impedes trade between Member States.31
2.1.3 Restriction on use
National measures regulating use are measures that restrict the use of a product to a certain extent, but still, allow the sale of the product. The import and marketing of a product is allowed, but there is a restriction to when, where, how and by whom it may be used. The aim of national measures hindering the use of a product is usually not to regulate trade, and prohibitions on use Member States might have, are generally affecting the sale of imported
27 Case C-412/93, Leclerc Siplec [1995] E.C.R. I-179, the case dealt with a French legislation
prohibiting advertising on television for the distribution sector.
28 Opinion of Advocate General Jacobs, Case C-412/93, Leclerc Siplec [1994] E.C.R. I-179,
para 38.
29 Ibid, para 54.
30 Oliver Peter, Enchelmaier Stefan, ’Free Movement of Goods: Recent Development in the
Case Law’ [2007] Volume 44(3) Common Market Law Review page, 674.
31 Steiner Josephine, ’Drawing the line: uses and abuses of Article 30 EEC2’ [1992] Volume
29(4) Common Market Law Review pp. 749-774 and Weatherill Stephen, ’After Keck: Some Thought on How to Clarify the Clarification’ [1996] Volume 33(5) Common Market Law
goods as much as the sale of domestic goods.32 At the same time, limitations on the use of a product can cause significant negative effect on the sale and both the importation and exportation.33 The categorization of national measures on hindrance to use and whether they should fall in- or outside the scope of Article 34 TFEU and be treated as selling arrangements has not been without discussion.
The discussion first took off in the case Italian trailers concerning a prohibition of trailers attached to motorcycles in Italy. The Commission argued that such a prohibition constituted an obstacle to import within the scope of Article 34 TFEU.34 The first one to give his Opinion on the issue was Advocate General Léger. According to Advocate General Legér, it was clear that the national measure fell within the scope of Article 34 TFEU because such a general and absolute prohibition of the use was going to limit the opportunities for trade between Italy and other Member States and also harm the import and marketing in Italy of lawfully manufactured trailers from other Member States. Even though the regulation did not prohibit marketing or import, the effect of limiting the use of the product was enough to be classified as a measure equivalent to a quantitative restriction.35 The analysis by Advocate General Legér followed a classic Dassonville approach.36
After Advocate General Legér had delivered his Opinion in 2006, the Third Chamber of the Court decided to remit the Italian trailers case to the Grand Chamber. The Grand Chamber decided to reopen the oral procedure and hear the parties’ and eight other Member States observations on the issue at the hearing in May 2007. Moreover, Advocate General Bot was invited to present an additional Opinion to the Grand Chamber, which he presented in July 2008. However, to follow the development and discussion it is appropriate to first look at the case Mickelsson & Roos, since it was in Advocate General Kokott’s Opinion to this case, the question how national measures should be treated, first was raised. It was because of her Opinion the carousel started and Italian trailers was as a consequence remitted to the Grand
32 Fenger, Nils (2017) To Use or Not to Use – That’s the Question. On Article 34 and
National Rules Restricting the Use of Lawfully Marketed Products. In:Andenas, M., Bekkedal, T. & Pantaleo, L. (red.) (2017). The reach of free movement. The Hague: T.M.C. Asser Press, page 112.
33 Ibid.
34 Case C-110/05, Commission v. Italy [2009] E.C.R. I-519, para 40.
35 Opinion of Advocate General Legér, Case C-110/05, Commission v. Italy [2006] E.C.R.
I-519.
Chamber. Mickelsson & Roos concerned two men who were prosecuted in Sweden because they drove water scooters on waters where it was not permitted. The men argued in their defense that the application of regulations prohibiting water scooters on certain waters was contrary to Article 34 TFEU.37 The national court in Sweden decided to refer the matter to the Court for a preliminary ruling, asking whether Article 34 TFEU preclude national measures prohibiting the use of water scooters other than on general navigable waters.38
Advocate General Kokott delivered her Opinion in December 2006. She proposed that measures regulating the use of goods should be treated in a similar way as selling arrangements in Keck and, as a result, be excluded from the scope of Article 34 TFEU laid down in Dassonville.39 Advocate General Kokott had several arguments supporting her view.
First, she made a parallel to the argument used in Keck regarding traders increasing tendency to invoke Article 34 TFEU to challenge every rule, which affected their commercial freedom. It would be problematic if individuals systematically invoked Article 34 TFEU to challenge national rules which effect is simply to limit individuals general freedom of action according to her.40 She also said that the characteristics of arrangements for use and selling arrangements are comparable both regarding their nature and their intensity of effect on trade in goods.41 Arrangements for use are just as selling arrangements affecting only the marketing
of a product indirectly through the effects on the purchasing behavior of consumers.42 Furthermore, national measures on hindrance to use are, just as selling arrangements, normally not designed to regulate trade between Member States.43 Therefore, Advocate General Kokott suggested that Keck should be extended to also include arrangements for use and, as a result, arrangements for use would be a category of regulations excluded from the scope of Article 34 TFEU.44 According to her, national legislation laying down arrangements for the use of products, that applies the same to all relevant traders, both domestic and those
37 Case C-142/05, Mickelsson and Roos [2009] E.C.R. I-4273, para 14. 38 Ibid, para 15.
39 Opinion of Advocate General Kokott, Case C-142/05, Mickelsson and Roos [2009] E.C.R.
I-4273, para 47. 40 Ibid, para 48. 41 Ibid, para 52. 42 Ibid, para 53. 43 Ibid, para 54. 44 Ibid, para 55.
from other Member States, should not be considered a measure with equivalent effect under the scope of Article 34 TFEU.45
Before coming back to the Opinion from Advocate General Bot in the Italian trailers case, there was first the case Commission v. Portugal concerning a national measure in Portugal prohibiting colored film attached to the windows of motor vehicles.46 Advocate General Trstenjak was asked to present an Opinion and so she did in 2008. She focused on the effect rather than the intent of the regulation and stated that even if a measure might not have the intention to regulate trade between Member States, it is essential what effects it might have on intra-community trade, either actual or potential.47 Portuguese drivers would be deterred from buying the film since it was illegal to apply and therefore the hindrance to use the film constituted an obstacle for importation and marketing according to her.48 However, Advocate
General Trstenjak did not in her Opinion investigate whether the Portuguese regulation prohibiting the use of tinted windows should fall under Keck and fall outside the scope of Article 34 TFEU. The reason might be that the issue, in this case, was more straightforward concerned with the product as such.49 Furthermore, the comparator in this case was very clear, since cars with tinted windows were allowed. Therefore, the outcome of the case can immediately appear obvious for a judge.
In 2009 after Advocate General Legér, Advocate General Kokott and Advocate General Trstenjak’s Opinions were delivered in three different cases, it was time for Advocate General Bot to deliver his Opinion in the Italian trailers case. Advocate General Bot concluded that national measures on hindrance to use should fall within the scope of Article 34 TFEU and not to be treated as selling arrangements by analogy with Keck.50 He presented a number of arguments to support his Opinion. First of all, he thought it was inappropriate to create an additional category of rules that should be excluded from the scope of Article 34 TFEU because it would cause a lot of confusion for the national courts.51 Secondly, he believed that
45 Ibid, para 114.
46 Case C-265/06, Commission v. Portugal [2008] E.C.R. I-2245, para 14.
47 Opinion of Advocate General Trstenjak, Case C-256/06, Commission v. Portugal [2008]
E.C.R. I-2245, para 37.
48 Ibid, para 40.
49 Gormley, Fordham Int L J, (2010), page 1600.
50 Opinion of Advocate General Bot, Case C-110/05, Commission v. Italy [2009] E.C.R.
I-519, para 158-159.
the exclusion of these types of rules was contrary to the objectives of the treaty, in particular the common market and the possibility for goods to move freely without hinder.52 Furthermore, he thought that the approach laid down in Dassonville and Cassis de Dijon was “fully satisfactory” for these issues.53 Such an approach consists of both a possibility for the Court to review Member States measures, but it also leaves room for the Member States to justify their regulations,54 if they are considered proportional.55 Lastly, Advocate General Bot said that national measures might not have the intent to regulate trade between Member States, but nevertheless might have this exact effect,56 and he decided to examine national measures based on the effect of access to the market rather than the objective of the measure in question.57 According to him, the Court should use a case-by-case approach and examine what the degree of negative effect of a specific regulation has on the internal market.58
Criticism has been raised regarding Advocate General Bot’s conclusion because a case-by-case approach can be seen as an introduction of a “de minimis” rule, which the Court repeatedly has rejected.59
Eight different Member States gave their opinions on the question of whether arrangements on use should be treated as selling arrangements and fall outside the scope of Article 34 TFEU. Six Member States argued that Keck should be applied by analogy to the national measures that constrain the use of a certain product or prohibits the use of a certain product. As can be seen, the four Advocate Generals dealing with the categorization of national measures on hindrance to use have different opinions and different conclusions to whether these types of regulations should fall within the scope of Article 34 TFEU. Despite this, the judgments laid down by the Court had the same approach to the issue at stake.60 In
Commission v. Portugal, the ban on tinted windows was considered a measure having
equivalent effect within the scope of Article 34 TFEU by the Court. 61 According to the Court, potential buyers or traders would not be willing to buy tinted films as long as the film was
52 Ibid, para 91. 53 Ibid, para 93. 54 Ibid, para 94. 55 Ibid, para 98. 56 Ibid, para 105. 57 Ibid, para 109. 58 Ibid, para 113.
59 Gormley, Fordham Int L J, (2010), page 1607. 60 Gormley, Fordham Int L J, (2010), page 1608.
prohibited for motor vehicles.62 Later on, in the case Italian trailers, the Court considered the ban on trailers attached to motorcycles to constitute a measure having equivalent effect within the scope of Article 34 TFEU, relying on Dassonville and Cassis de Dijon.63 The Court implicitly rejected the idea about excluding national measures on use from the scope of Article 34 TFEU.64 According to the Court a prohibition to use a certain product in the national territory would have a substantial influence on the behavior of consumers and, as such, would affect the access of the market in Italy.65 Individuals knowing they cannot use a certain product are simply not willing to buy that product.66 The Court did not follow up on Advocate General Bot’s idea about a “de minimis” approach.67 The last case to be decided was the preliminary ruling in Mickelsson & Roos. The Court practically took the exact same approach as in the Italian trailers case by taking a completely different approach than the one suggested by Advocate General Kokott. The Court simply stated that national measures that significantly hinder the use of a product intended for a specific purpose and therefore have the effect of hindering access to the market are measures having equivalent effect to quantitative restriction and fall within the scope of Article 34 TFEU.68 Case law is indicating that it has not been easy to establish an appropriate scope of Article 34 TFEU.
3. Article 36 TFEU
Member States have a possibility to justify their quantitative restrictions on trade or their measures having an equivalent effect on trade. Article 36 TFEU establishes when the public interest of a measure can be considered to take precedence over the free movement of goods.69 Article 36 TFEU establishes the following:
“The provisions of Articles 34 and 35 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
62 Ibid, para 33.
63 Case C-110/05, Commission v. Italy [2009] E.C.R. I-519, para 58. 64 Gormley, Fordham Int L J, (2010), page 1612.
65 Case C-110/05, Commission v. Italy [2009] E.C.R. I-519, para 56. 66 Ibid, para 57.
67 Gormley, Fordham Int L J, (2010), page 1609.
68 Case C-142/05, Mickelsson and Roos [2009] E.C.R. I-4273, para 28. 69 Barnard (2016), page 73.
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.”
The first sentence of the article is a list of grounds in which Article 36 TFEU can be invoked. This list has also been expanded through the mandatory requirements introduced in Cassis de
Dijon.70 The second sentence of the article is in place to make sure that restrictions on trade covered by the first sentence, are not used to either discriminate goods coming from another Member State or indirectly protect certain national goods.71 It is of importance that Article 36 TFEU not is used to protect the domestic industry and that there is honesty from the Member State to protect a vital interest.72 For a Member State to succeed with a defense based on
Article 36 TFEU, the Member State generally must take equivalent action against their own products.73 The burden of proof lies with the Member States seeking to justify a measure,74 however as we will see, this is not always the case.
3.1 The principle of proportionality
Even though the treaty provides an exception,75 a measure still needs to be proportional to be
justified.76 In many cases where justification arguments are accepted in principle, the national measures are often defeated by the requirements of proportionality.77 The proportionality test is the last step when justifying a national measure. The proportionality test consists of three different parts, the suitability test, the necessity test and stricto sensu test.78
70 Case C-120/78, Cassis de Dijon [1979] E.C.R. 649. The legal function of mandatory
requirements has been greatly discussed by scholars, however it will not be further discussed in this thesis. Note that it has been argued that mandatory requirements might have a
substantial influence on the proportionality assessment. See Pecho Peter, ‘Good-Bye Keck?: A Comment on the Remarkable Judgment in Commission v. Italy, C-110/05’ [2009] Volume 36(3) Legal Issues of Economic Integration page 265.
71 Barnard (2016), page 170. 72 Davies (2003), page 97. 73 Barnard (2016), page 171.
74 Gormley Laurence W., Silver ’Threads Among the Gold . . . 50 years of the Free
Movement of Goods’ [2007] Volume 31(6) Fordham International Law Journal, page 1680.
75 Davies (2003), page 107.
76 Gormley, Fordhamn Int L J, (2007), page 1680. 77 Nic Shuibhne (2014), page 27.
78 Harbo, Inge (2015). The function of proportionality analysis in European law / by
3.1.2 Suitability
Suitability refers to testing whether the measure at hand is suitable to attain the legitimate
objective. The suitability test ascertains whether there is a reasonable connection between the contested measure and the interest that the Member States want to protect. Normally, the suitability part of the proportionality test is rather uncomplicated to assess for the Court, and it is very rare that a measure is considered unsuitable.79 The Court will not investigate further if a measure is considered unsuitable.80
3.1.2 Necessity
The necessity test examines whether the measure taken by the Member State does not go beyond what is necessary in order to obtain the objective. The necessity test of the proportionality review is in many cases seen as the “head” part of the review.81 The elements to look at when evaluating this part is to establish whether there is a less restrictive option that will give a similar result. If the answer is no, one has to make sure that the measure does not have extreme effects on the applicant’s interests.82 However, to conclude that there is a less restrictive option with the same result might be easier said than done. To decide whether a less restrictive measure exists is a question of proof and facts, and in some cases, it might be very obvious, and in some cases, it can be very difficult83 and due to the Court’s limited research capacity, it can even be impossible to find out whether a less restrictive measure will obtain the same objective.84 Looking for a less restrictive alternative is argued to be an extreme application of proportionality review but at the same time open and far from uniform because it can be done more or less extensive.85
3.1.3 Stricto sensu
The stricto sensu test is the third element of the proportionality review. This test is balancing the advantages of the national measure against the disadvantages the measure might have on individual interests. The test can be difficult because it has to balance various interests that
79 Ibid, page 24. 80 Ibid, page 34. 81 Ibid. 82 Barnard (2016), page 179. 83 Harbo (2015), page 34. 84 Ibid, page 36.
85 Tridimas, Takis (2006). The general principles of EU law. 2. ed. Oxford: Oxford University
might be highly conflicting with each other. The Court can be rather hesitant to apply this test since it essentially counters the objective of a national measure against a corresponding EU objective. Such a proportionality control would be able to frustrate national interests who are against EU policies. It would also favor EU-compatible national regulations over others. It undesirable puts the Court against the national legislators. 86
3.1.4 The different levels of intensity
Despite the proportionality test consisting of three steps, the Court is not always following this structure and case law shows that the Court in many cases decides to only focus on one or two parts of the test. The Court’s possibility to focus on a particular element of the proportionality assessment gives the Court a lot of discretion when reviewing national measures. In some instances the Court even might use additional terms like “manifestly inappropriate” or “consistent and systematic manner” that might affect the intensity of the review.87 The proportionality test increases the power of the Court and is a very flexible instrument for the Court when determining the legality of restrictions on trade.88 However, this power instrument of the Court is not without critic and raises questions. The leeway left to the Court can create legal uncertainty89 and issues of judicial legitimacy since the Court is left with a possibility to make choices of broad political nature.90 It has even been argued that
there is nothing “specifically law-like” about the proportionality test since it rather investigates the suitability and necessity of policy choices.91 At the same time, it has been said that the usefulness of the proportionality assessment lies in the fact that the Court has maximum flexibility.92
86 Hatzopoulos, Vassilis (2017) Justifications for Restrictions to Free Movement: Towards a
Single Normative Framework? In: Andenas, M., Bekkedal, T. & Pantaleo, L. (red.) (2017). The reach of free movement. The Hague: T.M.C. Asser Press, page 143.
87 The criteria of manifestly inappropriate can be seen as a very lenient proportionality
approach by the Court, since the Court then merely investigate whether the measure is
manifestly inappropriate having regard to the objective pursued, and not whether the measure adopted was the only or best possible measure See Harbo (2015), page 227. Consistent and systematic manner will be discussed in chapter 4.3.3 and 5.2.2.
88 Tridimas (2006), page 196. 89 Ibid.
90 Ibid, page 197.
91 Nic Shuibhne (2014), page 28.
92 Snell, Jukka, ‘True Proportionality and Free Movement of Goods and Services’ [2000]
The intensity of the proportionality test might vary depending on the restrictive behavior. Even though the Court may apply the same proportionality test on all cases regarding free movement of goods, there is a judicial scrutiny of varying intensity.93 According to Lavrijssen, there is a scale of the proportionality test with an extreme test on one side, a moderate proportionality test in the middle and a marginal test on the other side. The assessment would be marginal when the Court merely reviews whether the measures concerned can reasonably be considered necessary. It would be moderate when the Court examines whether less restrictive alternatives exist without diving too deep into the matter. Lastly, the assessment would be extreme when the Court critically examines whether there are less restrictive measures.94 Lavrijssen’s scale of the proportionality test is not the only existing one, however was decided to serve the purpose of this thesis in the most appropriate way.95
4. Proportionality review under Article 36 TFEU
4.1 Product bound restrictions
4.1.1 Cassis de Dijon
As mentioned before, the German regulation in Cassis de Dijon was considered an obstacle to trade and a breach of Article 34 TFEU.96 The Court also established the principle of mutual recognition in Cassis de Dijon, which implicates that Member States may not prohibit products that have been lawfully produced and marketed in another Member State.97 However, even if the national measure was a breach of Article 34 TFEU, Germany considered it to be justified based upon public health and protection of the consumer against unfair commercial practices.98 Germany argued that the measure regulated the minimum alcohol
content and avoided the increase of drinks containing alcohol on the national market.
93 Zglinski Jan, ‘The Rise of Deference: The Margin of Appreciation and Decentralized
Judicial Review in EU Free Movement Law’ [2018] Volume 55(5) Common Market Law
Review, page 1347.
94 Lavrijssen Saskia, ’What role for national competition authorities in protecting
non-competition interests after Lisbon? [2010] Volume 35(5) European Law Review pp. 647-648.
95 Another existing scale is, for example, the one created by Jan Zglinski focusing on a
balance between the Margin of Appreciation and the proportionality assessment. This scale is easier applicable on preliminary reference cases since the scale is based on how much Margin of Appreciation the Court leaves to the national court in their references. See Zglinski, CMLR, (2018), page 1349.
96 Case C-120/78, Cassis de Dijon [1979] E.C.R. 649, para 15. 97 Ibid, para 14.
Germany wanted to limit the amount of beverages with a low alcohol percentage because these beverages “more easily induce tolerance towards alcohol than more highly alcoholic beverages.”99
Advocate General Capotorti considered the justification ground to be legitimate, however; not proportional because the same objective could be protected in another way, which would be less harmful to trade, the measure was too excessive.100 The Court dismissed the argument regarding the limitation of beverages with low alcohol content to protect human health. The consumer could still purchase an extensive variety of beverages containing a small percentage of alcohol on the German market, so the argument by Germany did not hold any value.101 The other argument made by Germany in regard to the protection of the consumer against unfair commercial practices was also not considered valid. It was stated by the Court that by simply indicating the origin and alcohol percentage on the packaging of the product, it would be easy to convey the information needed for the consumer.102 The national measure in Germany could not be justified since it was considered disproportional.103 It can be argued that the Court did an extreme proportionality review, since the Court reviewed whether other less restrictive measures could be used. 104
4.2 Selling arrangements
4.2.1 Keck
The Court considered selling arrangements outside the scope of Article 34 TFEU as long as they are not discriminatory in the case Keck. Justification and proportionality review appeared to be not relevant in this case, since the selling arrangement was not considered discriminatory, the selling arrangement was general and applied to anyone within the national territory regardless of nationality.105 However, Advocate General Van Gerven, who, as said before, not wanted to let selling arrangements outside the scope of Article 34 TFEU had an interesting approach to the proportionality principle. First of all, he referred to the Sunday
99 Ibid, para 10.
100 Opinion of Advocate General Capotorti, Case C-120/78, Cassis de Dijon [1979] E.C.R.
649, para 5.
101 Case C-120/78, Cassis de Dijon [1979] E.C.R. 649, para 11. 102 Ibid, para 13.
103 Ibid, para 14.
104 Lavrijssen, ELR, (2010), page 647-648.
trading case106 and said that when deciding whether a national measure is necessary to achieve an aim or not, it is relevant to consider whether the effects on the trade between Member States might be direct, indirect or purely speculative.107 He also emphasized that the Court had considered this when applying the proportionality test in earlier cases.108 He then suggested, as mentioned before, that the Court should take into consideration the intent of the national measures and have a more reserved approach to rules that do not have the intent to regulate the trade between Member States.109 Advocate General Van Gerven could not find a ground for justification that France might have been able to rely on. However, if the French had a justification ground to rely on, he believed the French legislations damaging effect on trade was not more than “purely speculative,” which should have been taken into consideration in the proportionality review.110 According to Advocate General Van Gerven,
Article 36 TFEU could not be used to justify a regulation prohibiting resale at a loss.111 As
said earlier, this part about proportionality of Advocate General Van Gerven’s Opinion was never used in the judgment since proportionality was not an issue because the selling arrangement was not considered discriminatory. However, his view in using the proportionality review is still valuable because he found his arguments in existing case law and his Opinion will contribute to the discussion.
4.3 Restriction on use
When the Court decided to not treat arrangements on use the same way as selling arrangements, the Member States had to justify their arrangements on use, if the measures were considered to be an obstacle to trade and a breach of Article 34 TFEU. The Court’s decision to take a step away from Keck automatically lead to more proportionality reviews for the Court.
106 Case C-169/91, Council of the City of Stokeon-Trent and Norwich City Coimdl v B&Q
[1992] ECR1-6635, para 15.
107 Opinion of Advocate General Van Gerven, Joined Cases C-267/91 and C-268/91, Keck
and Mithouard [1993] E.C.R. I-6097, para 6.
108 Ibid, para 11. 109 Ibid, para 8. 110 Ibid, para 11. 111 Ibid, para 15.
4.3.1 Italian trailers
In Italian trailers the Court concluded that the prohibition to use trailers attached to motorcycles was a breach of Article 34 TFEU. However, Italy claimed that the prohibition of trailers in combination with motorcycles was to ensure road safety.112 Italy decided to introduce this regulation because they believed there were no rules either on national or community level to ensure road safety. Usage of a trailer attached to a motorcycle could, according to Italy, be dangerous both for the driver and for other people driving on the road.113
Advocate General Bot thought the aim to ensure road safety was of public interest.114 However, it had to be examined whether the national measure proportional.115 Even though
Advocate General Bot agreed that an attachment of a trailer to a motorcycle might be dangerous in traffic, he found it difficult to see how the national measure, in this case, could be proportional.116 He specifically brought up the fact that the national legislation applied was regardless of infrastructure and traffic conditions and was not limited to certain territories.117 Therefore, he concluded that the national legislation was disproportional since the same objective could be obtained with measures that would have less impact on the restriction of freedom of trade. For example, it would be more appropriate if Italy limited the prohibition on use to the territories where the risk of danger arises, such as mountain crossings, motorways or heavily trafficked highways. This alternative would be less restrictive to trade and still reduce the risk that follows when using motorcycles attached with trailers.118 According to Advocate General Bot, Italy failed to fulfill its obligations under Article 34 TFEU and the measure could not be justified referring to Article 36 TFEU since it was disproportional.119 It is possible to argue that the proportionality review made by Advocate General Bot is extreme
112 Case C-110/05, Commission v. Italy [2009] E.C.R. I-519, para 48. 113 Ibid, para 63.
114 Opinion of Advocate General Bot, Case C-110/05, Commission v. Italy [2009] E.C.R.
I-519, para 163. 115 Ibid, para 164. 116 Ibid, para 166 - 167. 117 Ibid, para 168. 118 Ibid, para 170. 119 Ibid, para 172.
when using the scale of Lavrijssen.120 He did not only state that there could be other less restrictive measures but also gave examples of such measures.121
Advocate General Legér considered several standpoints when he delivered his Opinion stating the Italian regulation to be disproportional. For example, since the measure is a general and absolute prohibition it should be carefully considered whether there might be less restrictive measures to pursue the aim.122 He also suggested alternative legislation, such as localized prohibition.123 Furthermore, he raised an interesting point that vehicles registered in other Member States are allowed to have trailers attached on Italian roads. The national regulation with the objective to ensure road safety only relates to vehicles registered in Italy.124 Advocate General Legér’s proportionality review, just as Advocate General Bot’s, can be considered extreme when using the scale of Lavrijssen.125
The Court, just as Advocate General Bot and Advocate General Legér, found the Italian regulation to be suitable to ensure road safety. However, the Court later said that even if it was up to Italy to prove that the rule was proportional and necessary to attain the legitimate aim, such a burden would not be so extensive as requiring Italy to “prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions.”126 The Court recognized what Advocate General Bot said in his Opinion, that there might be other possible regulations that also would guarantee a certain degree of road safety. However, at the same time, the Court said it was not able to deny Italy of having general and simple rules that drivers can easily understand and follow, as well as easy to supervise for the authorities.127 The Court’s proportionality review, as opposed to Advocate General Bot’s, can be considered more moderate or marginal. The Court briefly
120 Lavrijssen, ELR, (2010), page 647-648.
121 Opinion of Advocate General Bot, Case C-110/05, Commission v. Italy [2009] E.C.R.
I-519, para 170.
122 Opinion of Advocate General Legér, Case C-110/05, Commission v. Italy [2006] E.C.R.
I-519, para 60.
123 Ibid, para 59. 124 Ibid, para 58.
125 Lavrijssen, ELR, (2010), page 647-648.
126 Case C-110/05, Commission v. Italy [2009] E.C.R. I-519, para 65, the Court referred to
Case C-157/94 Commision v. Netherlands [1997] E.C.R. I-5699, para 58.
acknowledged that less restrictive measures might exist,128 but foremost relieved Italy from the burden to present evidence of the fact that no other less restrictive measure existed.129
4.3.2. Mickelsson & Roos
In Mickelsson & Roos concerning the Swedish measure prohibiting water scooters on all waters except general waterways, the Court used the same reasoning as in Italian trailers. The restriction on use was a breach of Article 34 TFEU and needed to be justified under Article 36 TFEU.130
Sweden argued that the measure had the objective to protect the environment and presented a few arguments for their point of view. The restriction of water scooters would, according to Sweden, prevent damage to the environment because water scooters have a negative effect on the fauna when used in a small area for a long period of time. Additionally, they stated that water scooters are noisy and that they disturb surrounding people and animals. Lastly, they argued that water scooters can spread animal diseases.131 The defendant, however, argued that the effect on the environment of a water scooter might depend on how it is used. If the use is merely for transport instead of recreation, the negative effect on both the noise and fauna will not be more than the negative effect caused by small motorboats.132
Advocate General Kokott said that a measure should be excluded from Article 34 TFEU, just like selling arrangements, unless the legislation discriminated in favor of competing national products.133 However, she left it for the national court to decide whether this measure discriminated against imports in law or in fact.134 She then moved on to the proportionality assessment. She stated that the national measure was an appropriate measure to obtain the objective.135 However, she did not buy the defendants argument regarding the national measure being disproportional because it also prohibits using water scooters for transport. According to her, it would be difficult for the authorities to supervise and therefore, a
128 Ibid.
129 Ibid, para 65.
130 Case C-142/05, Mickelsson and Roos [2009] E.C.R. I-4273, para 26. 131 Ibid, para 30.
132 Opinion of Advocate General Kokott, Case C-142/05, Mickelsson and Roos [2009] E.C.R.
I-4273, para 77.
133 Ibid, para 68. 134 Ibid, para 63-64. 135 Ibid, para 75.
regulation that differentiates depending on the driving method would not be equally appropriate.136 Something that complicated this case was the fact that the prohibition of water scooters was far-reaching and covered many waterways, because the administrative boards had not yet complied with their obligations which obliged them to decide whether water scooters can be used on certain waterways or not. Advocate General Kokott said in her Opinion that because of the far-reaching prohibition the national measures that prohibits the use of water scooters in waters where the administrative board of the Member State have not yet decided whether the environment needs to be protected or not, is disproportional. To be justified, it is necessary that a reasonable deadline is set for when the administrative board must have taken such a decision.137 One can argue that Advocate General Kokott’s proportionality review was marginal. She did not examine whether less restrictive measures existed and briefly investigated the defendants argument of the current measure being too extensive. It can be considered commendable of Advocate General Kokott to construct conditions for the Member State to follow so the national measure can be regarded proportional. However, one should not forget that this case was a preliminary ruling and the Court is supposed to give guidance while the national court has the last say. This is also a reason for the Court to take a stand on the question whether to leave regulations on use inside or outside the scope of Article 34 TFEU in Italian trailer instead of Mickelsson & Roos.
Italian trailers was an infringement procedure where the Court had a last say and no
interpretation needed to be done by a national court.
The Court concluded that it was obvious that the national restriction was suitable for the aim to protect the environment.138 Sweden argued that there would still be over 300 general navigable waterways on the Swedish coast and lakes around Sweden that water scooters have access to despite this prohibition.139 The Court responded by referring to what they stated in
Italian trailers, namely that “Member States cannot be denied the possibility of attaining an objective such as the protection of the environment by the introduction of general rules which are necessary on account of the particular geographical circumstances of the Member State concerned and easily managed and supervised by the national authorities.”140 However, when looking at the necessity of the prohibition, the Court stated that a general prohibition,
136 Ibid, para 78. 137 Ibid, para 85, 114.
138 Case C-142/05, Mickelsson and Roos [2009] E.C.R. I-4273, para 34. 139 Ibid, para 35.
would go too far to achieve the goal of protecting the environment.141 Nevertheless, even if a general prohibition was considered too far-reaching, the Court laid out certain conditions and provided that if they were met, the contested national measure could be justified in accordance with the principle of proportionality. Those conditions being; “first the competent
national authorities are required to adapt such implementing measures, secondly, those authorities have actually made use of the power conferred on them in that regard and designated the waters which satisfy the conditions provided for by the national regulations, and, lastly, such measures have been adopted within a reasonable period after the entry into force of those regulations.”142 To conclude, restricting the use of water scooters can be accepted if the Member State has the aim to protect the environment, however, the conditions mentioned above need to be complied with and that is for the national Court to decide.143
However, the Court decided to cooperate with the national Court and gave them some guidance indicating that the national measures might be justified and proportional.144
It is difficult to decide the exact intensity of this proportionality review, but one could argue that it is not a too extreme proportionality review but rather commendable of the Court because they are helping Sweden to comply with conditions to keep their legislation. However, once again, it is important to keep in mind that this is a preliminary ruling.
4.3.3 Commission v. Portugal
As mentioned earlier, the ban on tinted film on windows was considered a measure having equivalent effect under Article 34 TFEU in the case Commission v. Portugal.145 Portugal based their justification on the grounds of road safety and public safety146 arguing that the prohibition of tinted film on windows was intended to make it possible for authorities to inspect the motor vehicles from the outside. By doing these inspections, the authorities can make sure that the people in the vehicle are wearing seat belts, but also identify potential criminal activities to prevent crime.147 Portugal argued that there were no less restrictive measures that would achieve the same objective and they argued that the ban was not a total but partial ban since tinted film are still allowed on vehicles without wheels, for example,
141 Ibid, para 38. 142 Ibid, para 39. 143 Ibid, para 40. 144 Ibid, para 43.
145 Case C-265/06, Commission v. Portugal [2008] E.C.R. I-2245, para 36. 146 Ibid, para 22.
boats and compartments of goods vehicles.148 The Commission, on the other side, argued that Portugal had no evidence providing that tinted windows constitute a risk for public safety and/or road safety.149
Advocate General Trstenjak examined the two justification grounds separately.150 According to her, it was possible to rely upon public policy as a justification when there is a genuine and serious threat to one of the essential interests of society.151 However, just as the Commission argued, Advocate General Trstenjak was of the opinion that Portugal was not able to sufficiently prove that there was a serious threat to public policy in Portugal and, therefore, they could not rely on that justification in accordance with Article 36 TFEU.152 Moving on to road safety, she believed that prohibition of tinted film on vehicles was suitable to attain the objective, for example because of the possibility for the police to verify seat belts.153 Despite
this, she concluded that the measure was disproportional since Portugal had not given the Court any evidence of studies, reports or statistics proving that such a restriction should be justified.154 She emphasized that because Portugal allowed tinted windows, which are identical to windows covered with tinted film, they needed to provide evidence. This is a matter of inconsistency, justifying a measure on the base of road safety while allowing similar usage going against this objective is not fulfilling the criteria of Member States obtaining objectives in a “consistent and systematic manner”.155 Therefore, a high level of justification was needed for the restriction, since identical situations were treated differently.156 Furthermore, she extensively investigated on whether there would be a different alternative that would be sufficient to attain the same objective. It would be sufficient to prohibit that kind of tinted film that does not follow the minimum light transmission values. According to her was Portugal, by having a measure completely prohibiting the use of tinted film on
148 Ibid, para 24. 149 Ibid, para 19. 150 Ibid, para 48.
151 Opinion of Advocate General Trstenjak, Case C-256/06, Commission v. Portugal [2008]
E.C.R. I-2245, para 53
152 Ibid, para 53. 153 Ibid, para 56. 154 Ibid, para 60.
155 Harbo, Tor-Inge (2017) The Criterion of “Consistent and Systematic Manner” in Free
Movement Law. In: Andenas, M., Bekkedal, T. & Pantaleo, L. (red.) (2017). The reach of
free movement. The Hague: T.M.C. Asser Press, page 214.
156 Opinion of Advocate General Trstenjak, Case C-256/06, Commission v. Portugal [2008]
vehicle windows going beyond what was necessary to achieve the objective.157 It could be argued that Advocate General Trstenjak did an extreme proportionality test since she critically examined whether less restrictive measures would be able to attain the same objective.
The Court’s examination was shorter than Advocate General Trstenjak. However, it did emphasize that it was for Portugal to produce evidence in support of their justification.158 The Court said that it was for Portugal to find other methods to ensure road safety and public safety since their arguments about the necessity of these regulations were not holding up since they allow tinted glass windows. Tinted windows just as the tinted film used to tint windows prevented inspection of vehicles,159 so this was a matter of consistency. The measure was too excessive and a justification was not possible.160
5. Analysis
5.1 The rationale behind the Court’s approach
As said in the introduction, the proportionality reviews made by the Court often have resulted in national measures in breach of Article 34 TFEU not to be justified in accordance with Article 36 TFEU because they were considered to be disproportional.161 However, one category of national measures – the national measures restricting use – seems to be fairly easily justified under Article 36 TFEU, at least when looking at the cases Italian trailers and
Mickelsson & Roos. Question is whether there is an explanation for the Court’s more lenient
approach and whether there is an explanation for the different approach in the case
Commission v. Portugal. This chapter aims to discuss this matter further and identifies five
different possible explanations.
5.1.1 Intent and effect taken into consideration
It has been extensively debated whether the Court should look at intent or effect when deciding if a national measure should fall inside the scope of Article 34 TFEU. This thesis argues that both the intent and the effect of a rule can bare value when doing the
157 Ibid, para 63.
158 Case C-265/06, Commission v. Portugal [2008] E.C.R. I-2245, para 39. 159 Ibid, para 43.
160 Ibid, para 47-48.
proportionality review under Article 36 TFEU and can be one of the reasons why rules on hindrance to use are more easily considered proportional and justified.
National laws regulating use of a good are not only hard to categorize, it is also hard to decide their actual effect on trade. For example, unless the national measure provides a complete prohibition it is hard to prove what the effect a prohibition to use water scooters on certain waters actually will have on sales and marketing of water scooters and, furthermore, is the effect actual or perhaps only a potential effect? It can in many cases depend on the prohibition itself, for example a prohibition of phones on airplanes will barely restrict the trade of phones while a prohibition of fireworks except during one day a year has a great impact on the demand and, therefore, the sale and import of fireworks.162
Advocate General Van Gerven brought up in his Opinion to Keck that the Court, when applying the proportionality test, should take into consideration whether the restrictive effect of the regulation on trade between member States is direct, indirect or purely speculative.163 One can argue that the difficulty of proving the effect on trade of national measures on hindrance to use results in the effect being purely speculative which is taken into consideration in the proportionality review and makes it more lenient. Can it be that the difficulty in proving the actual effect on trade of the national measures on hindrance of use does not make it fall outside the scope of Article 34 TFEU, but it does, however, result in a more relaxed proportionality review when justifying in under Article 36 TFEU?
Advocate General Trstenjak found it essential to look at the effect on intra-community trade and whether the effect is actual or potential when deciding if a measure falls in- or outside the scope of Article 34 TFEU.164 There is currently no “de minimis” rule in Article 34 TFEU but it can be possible to argue that the Court is taking the level of effect on trade into consideration in the proportionality review when justifying under Article 36 TFEU. This thesis argues that even if the Court decided to not follow some Opinions and take a “de
minimis” approach and look at the level of effect when deciding whether a national regulation
on use should fall in- or outside of the scope of Article 34 TFEU, it is possible that the effect
162 Fenger (2017), page 112.
163 Opinion of Advocate General Van Gerven, Joined Cases C-267/91 and C-268/91, Keck
and Mithouard [1993] E.C.R. I-6097, para 11.
164 Opinion of Advocate General Trstenjak, Case C-256/06, Commission v. Portugal [2008]
of rules is taken into consideration in the proportionality review. Advocate General Van Gerven suggested such a method, and a low or uncertain effect of a measure would then possible lead to a more lenient approach. The less restriction on the internal market and trade, the more relaxed standard of proportionality review. The Court is not introducing a “de
minimis” but could be using the low or uncertain effect as a factor in the proportionality
review.
The intent of national measures regulating the use of a product is rarely to restrict trade between Member States.165 Advocate General Van Gerven suggested a more lenient approach to regulations not having the intent to regulate trade between Member States.166 This thesis argues that a possible explanation to the Court’s more lenient approach on rules on use can be the fact that the intent of rules on use is not to regulate trade between Member States, in most cases. This theory can possibly also explain why the Court in Commission v. Portugal took a different stand in the proportionality review since the intent of the Portuguese regulations was suspicious, since there was an inconsistency in the Portuguese regulation to protect the objective of road safety. The regulation did not make sense; it was not logical that tinted glass was allowed but not the use of tinted film, which made the intent to protect road safety up for debate. However, it can seem like the situation was similar in Italian trailers since vehicles registered in Italy had other restrictions than vehicles from other Member State, but here, the Court decided to pay no attention to that fact. Next chapter will look closer into this matter. It has also been argued that the justification ground road safety could have been the background to a more lenient approach. According to Zglinski the Court is more lenient by leaving a very high margin of appreciation in four specific areas, which are: public health, games of chance, public policy/morality, and road safety. He believes that the Member States enjoy a more far-reaching regulatory freedom in these areas.167 Wennerås is also supporting this idea, stating that the different approach in Italian trailers and Mickelsson & Roos was likely to be influenced by the fact that the national measures had the intent to protect the environment and ensure road safety. According to him, these are areas where the Court often has a more lenient approach, however there are exceptions, as was seen in Commission v.
165 Gormley, Fordham Int L J, (2010), page 1600.
166 Opinon of Advocate General Van Gerven, Joined Cases C-267/91 and C-268/91, Keck and
Mithouard [1993] E.C.R. I-6097, para 8.
