Rethinking the Scope of Free Movement Provisions

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Time for a De Minimis Test?

by Kristi Hogenes

A thesis submitted for the degree in International and European Law

Master of Laws (LL.M) 25 July 2019

Supervisor:

mw. prof. dr. A.A.M. (Annette) Schrauwen

Student number:

10990348

Email:

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Abstract

The case law of the European Court of Justice has formed an extremely powerful tool for the development of free movement law. The fluctuating scope of free movement provisions has had considerable implications on the regulatory autonomy of the Member States in the field of the internal market, which raises subsidiarity concerns. This thesis examines the role of the principle of subsidiarity in relation to the interpretative powers of the Court. First, it sets out the requirements of subsidiarity in the context of free movement law. The analysis then turns to the use of a de minimis test as possible answer to questions regarding subsidiarity. Special emphasis is given to the operation of the de minimis rule in competition law. Then, through a categorization of the Court’s case law, the thesis investigates whether the current interpretation of Article 34 TFEU is in line with subsidiarity requirements. It argues that the market access test as presently applied by the Court is in breach of Article 5(3) TEU. Finally, the thesis proposes a possible test which could accommodate both the internal market and the principle of subsidiarity.

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1. Introduction

1.1. Background

Since its creation in 1993, the internal market has formed the cornerstone of the European Union (hereafter: EU). The Treaty provisions on free movement form the backbone of the internal market and seek to guarantee the right of intra-EU movement for goods, services, persons, and capital.

The European Court of Justice (hereafter: the Court) has always emphasized the importance of the four freedoms,1_{referring to them in terms such as: “fundamental freedoms”,}2_{“fundamental} principles of the Treaty”3_{and “the foundations of the Community”.}4_{Throughout the years, the} Court, pursuing the aim of realizing free trade, has gradually expanded the scope of free movement provisions. Interpreting the freedoms broadly, at times, it almost seemed like there was no limit to their reach. However, regardless of their fundamental status, the four freedoms are not absolute. In every system striving to achieve free trade, this aim must be balanced with the protection of other values.5

One of those other fundamental values is the principle of subsidiarity, which seeks to establish an optimal division of powers between the Union and its Member States. The principle of subsidiarity ensures the regulatory autonomy of the Member States, one of the core aspects of democracy. At times, the free movement provisions may infringe upon the Member States’ autonomy to regulate the internal market. This could lead to a division of powers that is not entirely incompatible with the principle of subsidiarity.

1_{See in this regard Oliver and Roth, CMLR, 2004, p. 407.} 2_{Case C-394/97, Heinonen, para. 39.}

3_{Case C-205/89, Commission v Greece, para. 9.} 4_{Case C-194/94, CIA Security v Signalson, para. 40.} 5_{Perišin, CYELP, 2005, p.1.}

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The extent of regulatory powers that can still be exercised by the Member States depends mostly on the interpretation of the Treaty provisions given by the Court. Therefore, the present analysis will focus on the role of the Court as an institutional actor when interpreting the free movement Articles.

The question that stands central when interpreting free movement law is always: what constitutes a restriction to free trade? A broad interpretation of what constitutes a restriction effectively protects the fundamental freedoms, but at the same time catches a wide scale of national measures. It is this underlying tension that requires the Court to undertake a delicate balance between conflicting legitimate goals, that is, the interpretation of free movement provisions on the one hand, and the principle of subsidiarity on the other.6

One could wonder whether the current division of competences in the field of free movement is opportune or even justified. Does a broad interpretation go beyond the purpose of the free movement provisions? Should the Court take a more cautious approach when interpreting the scope of the fundamental freedoms? This thesis will explore one possible solution to such concerns, namely, a de minimis threshold.7

A de minimis rule would introduce a certain threshold below which free movement rules would not be applicable. It would necessarily mean that measures must have a significant economic impact before free movement law becomes engaged. Small hindrances and trade barriers with a minimum scale of effect would not trigger EU law, and therefore, fall within the ambit of national regulatory autonomy.

A long string of case law reflects the difficulty of the Court when it comes to pursuing a clear and consistent policy when interpreting free movement law. The balance between subsidiarity and integration has troubled the Court for decades and has been marked by consecutive changes in the interpretation of what constitutes a trade restriction.8_{However, regardless of the many}

6_{Maduro 2012, p. 486.}

7_{Throughout this thesis, the terms de minimis ‘test’, ‘rule’ and ‘threshold’ will be used interchangeably.} 8_{Antonaki, ELR, 2016, p. 177.}

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developments in the interpretation of free movement provisions, the Court has always explicitly denied the existence of a de minimis rule. This remarkability gives rise to the following research question:

Is the absence of an (explicit) de minimis test in the European Court of Justice case law on free movement in line with the requirements of the principle of subsidiarity?

1.2. Structure

This thesis will explore the demands of the principle of subsidiarity and its implications on free movement. It specifically examines the application of subsidiarity as a restraint on the Court through the introduction of a de minimis rule. The analysis essentially breaks down into five sub-questions.

Before addressing the sub-questions, the thesis will briefly illustrate the legal framework surrounding the internal market and the ‘system’ of the free movement provisions (§2). Then, firstly, it sets out the requirements of the principle of subsidiarity in relation to the Court’s interpretive powers (§3). Secondly, the analysis examines the concept of a de minimis test (§4), comparing it with the de minimis rule in competition law (§5). Then, trying to discern the Court’s tendency, it will attempt to unpack the somewhat inconsistent case law of the Court by classifying the Court’s interpretation of the notion of a restriction in three categories (§6). In chapter 7, the analysis will set forth the findings in chapter 6 against the requirements of subsidiarity set out in chapter 3. Based on these results, it will analyze whether a de minimis rule is required in view of the principle of subsidiarity, answering this thesis’ main question. Finally, it will provide a recommendation (§8). The last section will give an overview of the paper’s main arguments (§9).

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1.3. Scope

One of the greatest sources of judicial activity and academic commentary in EU law has been the free movement of goods, which continues to be one of the most debated areas.9_{Therefore, when} analyzing the free movement provisions, this thesis will primarily focus on the free movement of goods. To give a detailed inquiry into all areas of free movement law would exceed the scope of the present analysis.

One of the most persuasive arguments against the introduction of a de minimis test is the practical difficulties that it entails. This thesis acknowledges these difficulties and will briefly touch upon them now and then. At the same time, it argues that such complications do not justify derogation from the principle of subsidiarity from a normative perspective. To articulate a quantifiable threshold would go beyond this thesis’ intention. Therefore, the concept will be expressed in rather abstract terms.10

Furthermore, this thesis does not ambition to put an end to debates surrounding the scope of the free movement of goods or find an unequivocal answer to the immensely complex and challenging questions that the Court faces. It will, however, aim to offer a different perspective by reflecting upon the notion of a restriction under modernized circumstances.

1.4. Methodology

The question that this thesis aims to answer is a normative one, leaving practical issues subject to further research. The present analysis will provide a conceptual research and commentary starting with a descriptive analysis of the existing conceptual framework of free movement law. It will

9_{Maduro 2012, p. 486.}

10_{In this regard, see Jansson and Kalimo, CMLR, 2014, p. 527 where they point to Case C-14/09, Hava Genc v} Land Berlin, paras 29–33, on the application of a de minimis type rule without a clear-cut threshold when

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continue to explore a new conceptual framework or rather, reinterpret the existing one. Furthermore, the method of evaluation will be used to examine whether the current practice of interpretation is in accordance with the rather political aim of subsidiarity. The analysis will be based on black letter sources, such as the primary sources of EU law, the Court’s case law, and academic literature.

2. Legal Framework and Background

2.1. The Internal Market

2.1.1. The System of the Four Freedoms

The internal market has always been at the heart of the European integration project. Ever since the beginning, it has broadened in scope and deepened in strength. The free movement of goods, persons, services, and capital forms the core of the internal market. Virtually, national measures that form a restriction on the exercise of these freedoms are caught by the provisions and prohibited, except where justified by a legitimate public interest recognized by the EU.

Over the years, the scope of the free movement provisions has proven to be everything but rigid. In order to discern the crucial role that the Court has played in defining the internal market, it is vital to understand the ‘system’ of the free movement regulations.

The prohibition on quantitative restrictions on the free movement of goods is contained in Article 34 TFEU, which states that:

“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”

This prohibition is not absolute. Notwithstanding the importance of the internal market, the four freedoms are compromised by, much-debated, outer limits. According to Article 36 TFEU, obstacles to free movement may be justified, leaving Member States some freedom to pursue and

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defend national interests through laws that serve a legitimate purpose. However, like other derogations from fundamental rules, the Court interprets Article 36 strictly.11

2.1.2. Discriminatory Measures

Before going further into depth on the scope of free movement provisions, it is crucial to make one classic distinction: that between discriminatory and non-discriminatory national measures. The traditional view is that measures should always be prohibited when they directly or indirectly

discriminate against goods, persons, services, or capital originating in other Member States.12 Focusing on discriminatory measures alone could put an end to all discussion surrounding the question of what constitutes a restriction to free movement. However, the most powerful objection to this understanding is that it does not go far enough to achieve the Treaty goals of free movement, as some national measures do not discriminate, yet do restrict cross-border trade.13_Furthermore, it is not always easy to distinguish between discriminatory and non-discriminatory measures. Throughout this thesis, this distinction will make a constant appearance.

2.1.3. Defining ‘Restrictions’

The scope of the free movement prohibitions has multiple dimensions. Defining a restriction itself is part of it, but so are the justifications provided for by the Treaty.14_{As will be demonstrated, the} Court easily finds a measure to be a restriction of free movement. Derogations from fundamental rules, on the other hand, are narrowly interpreted by the Court.15

There will be few situations where a Member State can successfully rely on a derogation before the Court of Justice. In the words of Davies, justifications are a last and uncertain line of defense.16

11_{See, e.g., Case 113/80, Commission v Ireland.} 12_{Davies, 2003, p. 96.}

13_{Davies, GLJ, 2010, p. 673.}

14_{Koukratos, Shuibhne, and Syrpis 2015, p. 16.} 15_{Case 41/74, Van Duyn.}

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In most cases, the Court will weigh the various interests involved differently than the Member States. Consequently, states would prefer it if their measures were not seen as restrictions on free movement at all.17_{For this reason, it is crucial to define what exactly constitutes a restriction and} thus triggers the application of the free movement provisions.

Many possible tests could be used to determine what ought to be considered a restriction. This varies from classic non-discrimination, intensity, and market access tests to tests focusing on specific categories of measures. The case law of the Court reflects the difficulties in finding a clear and undisputed criterion.18

The importance of defining what constitutes a restriction on free movement lies in the fact that it impacts the quality of national policy and the powers of national governments.19_{A broad definition} of the concept brings a wide range of national measures within the scope of EU law, affecting the division of powers between the EU and its Member States. Here, the principle of subsidiarity comes into play.

3. The Principle of Subsidiarity

3.1. The Principle of Subsidiarity and the Court

The principle of subsidiarity, enshrined in Article 5(3) TEU, is one of the most fundamental constitutional principles of the European Union. Together with the principles of conferral20_and proportionality,21_{it seeks to establish a functional division of powers between the Union and the} Member States.22_{The principle of subsidiarity determines whether the Union or the Member States} should take action in a field where competence is shared rather than exclusive.23_{According to}

17_{Davies 2017, p. 16.} 18_{Maduro 2012, p. 489.} 19_{Davies 2017, p.16.} 20_{Article 5(2) TEU.} 21_{Article 5(4) TEU.} 22_{Horsley, JCMS, 2012, p. 267.} 23_{De Búrca, JCMS, 1998, p. 217.}

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Article 4 TEU, the Union’s management of the internal market is a “shared competence”, meaning that the EU is in principle free to act, and Member States may only legislate to the extent the Union has not done so.24_{Therefore, the principle of subsidiarity must be applied.}

The principle of subsidiarity is usually discussed in the context of actions of the Union legislature. In that context, the use of subsidiarity by the Court is examined. However, this thesis will focus on a different aspect, that is the implications of the subsidiarity principle for the Court as an institutional actor,25_{meaning, the impact of subsidiarity on the exercise of the Court’s powers.}26 The reason for this unconventional route is that the Court has enormous interpretive powers in the field of free movement law, which often goes unnoticed. The actual force of Article 34 is, to a large extent, determined by the Court.

The role of subsidiarity in the context of the Court’s powers is not uncontroversial. Nevertheless, as the interpretation of free movement provisions has substantial practical implications for Member States competences, it is essential to discuss. This thesis leans on Horsley and De Búrca and argues that the Court is an ‘independent policy actor’ and must, therefore, be subject to the demands of subsidiarity.27_{Furthermore, Article 5(3) TEU addresses ‘the Union’. According to} Article 13(1) TEU, the Court is one of the Union’s institutions, just like the EU legislature, meaning that it too must act within the limits of the powers conferred on it in the Treaties.28_Not recognizing the Court as such would arguably undermine the effectiveness of subsidiarity as a guiding principle.29_{Furthermore, to follow De Búrca, the fact that the Court ultimately decides on} the meaning of the Treaty does not mean that it should be unconstrained in exercising that authority.30

An example of (an attempt of) the operation of subsidiarity as a restraint on the Court can be found in Bosman31_{. In this case, the Court refused to address subsidiarity argumentation explicitly.}

24_{Sieberson 2008, p. 227; Article 4 (2) (a) TEU.} 25_{This label is taken from De Búrca, JCMS, 1998.}

26_{Horsley, JCMS, 2012, p. 267; De Búrca, JCMS, 1998, p. 220.} 27_{Horsley, JCMS, 2012, p. 267.} 28_{Article 13(2) TEU.} 29_{Horsley, JCMS, 2012, p. 272.} 30_{De Búrca, JCMS, 1998, p. 226.} 31_{Case C-415/93, Bosman.}

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However, it did rule that a lack of legislative authority did not mean that the Court did not have interpretive authority. Interestingly, the Court denied any parallel between the effect of broad interpretation and the effect of EU legislation.32_{This thesis argues that this denial supports the} argument that the application of subsidiarity to the Court’s interpretive powers is of crucial importance.

The Court plays an important role not only in defining the existence and scope of the legislative power of the other institutions but also in exercising a sort of law-making on its own when it engages in Treaty interpretation.33_{The Treaty provisions are often open to several interpretations} capable of expanding the scope of EU law and correspondingly restricting the range of action of Member States. The question that stands central in the current chapter is whether the Court should be influenced, or limited, in exercising that power, by the subsidiarity requirements that affect the other institutions in the field of free movement law.34

3.2. The Principle of Subsidiarity in Free Movement Law

Free movement law is one of the most fundamental areas of EU law. Striking an appropriate balance between the Member States’ legitimate interests on the one hand, and the requirements of EU integration on the other often puts the Court in a challenging position.35_{The question is: how} far can and should the Court go? In this context, this question can be translated as to when national measures are considered to be restrictions on movement.36_{When it comes to the interpretation of} free movement, the Court’s general interpretive powers must briefly be discussed.

32_{De Búrca, JCMS, 1998, p. 226-228.} 33_{Ibid p. 226.}

34_{Ibid, p. 222.}

35_{Schwarze 2012, p. 257.} 36_{Davies 2017, p. 13.}

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3.2.1. The ECJ’s Interpretive Powers a. Methods of interpretation

The Court is often called upon to determine the meaning and effect of the written provisions in cases of doubt.37_{In doing so, the Court enjoys a large amount of freedom. One could say that the} Court actively contributes to the integration process due to its free style of interpretation.38 The Court has adopted a range of methods to resolve questions of interpretation. In some circumstances, the Court may give precedence to the wording of a provision. However, the wording of regulations cannot always be treated as decisive. As the Court mentioned in CILFIT,39

the multilingual character of EU law sometimes stands in the way of literal interpretation. Another complication is the way in which many provisions are drafted, which is often open-textured. For this reason, Arnull and Gullman point out that both a contextual and teleological approach in connection with the so-called principle of useful effect by the Court is unavoidable.40_{When taking} a teleological approach, the Court bases its considerations on the underlying objectives assigned to the EU. This approach focuses mainly on the importance of the effective realization of the integration program.41

b. Interpretation of free movement provisions

Given these methods of interpretation, the case law of the Court of Justice has become a powerful medium for the development of EU law. The Court has been of great importance in shaping and forming the internal market. This thesis examines the critical contribution made by the Court in the area of free movement law.

37_{Arnull 2006, p. 607.}

38_{Gullman, Sc. St. L., 1980, p. 190.}

39_{Case 283/81, CILFIT v Ministry of Health, paras 17-20.} 40_{Arnull 2006, p. 608 and Gullman, Sc. St. L., 1980, p. 194.} 41_{Gullman, Sc. St. L., 1980, p. 195.}

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In the words of Horsley, “when interpreting the free movement provisions, the Court is faced with choices over the scope and nature of Union intervention in the regulation of the internal market as an area of shared regulatory competence.” The Court must answer two questions, namely: does a particular national rule fall within the scope of the Treaty provisions, and can it be justified?42 Under the first question, which stands central in the present analysis, the Court must determine the limits of Member State autonomy to regulate the internal market without being restrained by EU law. In order to do so, the Court must interpret what constitutes a restriction to free movement under Article 34. This interpretive choice is subject to the demands of the principle of subsidiarity because the Court is asked to decide whether or not to exercise Union competence to regulate the internal market. Therefore, the primary function of subsidiarity as a restraint on the Court’s interpretation of the Treaty freedoms is at the first stage of inquiry: when defining the scope of these provisions.43_{At the justification stage, the second question, the Court is faced with different} interpretive choices, which are matters of proportionality.44_{This goes beyond the scope of the} present analysis.

3.4. Conclusions

The scope of free movement provisions is not always clear. It is essential to define what constitutes a restriction to free movement, as this triggers the application of free movement law. Because the internal market is a shared competence, the principle of subsidiarity will be discussed in relation to the interpretive powers of the Court as an institutional actor. This analysis will primarily focus on the Court’s interpretation of a ‘restriction on movement,’ its impact on the scope of free movement provisions and its compliance with the principle of subsidiarity.

42_{Horsley, JCMS, 2012, p. 277, Article 4(2) sub a TFEU.} 43_{Horsley, JCMS, 2012, p. 278.}

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4. De Minimis Test

4.1. Introductory Remarks

The principle of subsidiarity seems to require a somewhat cautious approach of the Court when interpreting the definition of a restriction to free movement. One possible way to protect national regulatory autonomy would be through the introduction of a de minimis test, which has not been codified in free movement law. This thesis will explore to what degree a de minimis test applies or should apply to free movement. In order to do so, one must first understand the basic concept of a de minimis rule.

A de minimis test would radically alter the scope of free movement provisions by introducing a certain threshold below which free movement law would not be applicable. In this instance, the threshold would see to the severity of the effect of national measures on free movement. It would mean that national actions with minor effects fall outside the scope of the Court’s scrutiny.45_The present analysis will focus on the de minimis rule in a procedural sense: as an admissibility requirement for judicial review.46

4.2. Types of De Minimis Tests

A de minimis test would set an appreciability threshold below which free movement law cannot be engaged.47_{This immediately raises a practical question: when and where do we place this} threshold? Various scholars have explored the different types of thresholds in free movement law. On the outset, it is essential to note that the introduction of a de minimis test does not necessarily require a quantifiable threshold. The limits of free movement regulations can also be expressed in

45_{Jansson and Kalimo, CMLR, 2014, p. 524.} 46_{Hojnik, EJLS, 2013, p. 28.}

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rather abstract terms, taking away some of the practical challenges the introduction of a de minimis rule would face.48

Jansson and Kalimo have identified three types of de minimis tests in the Court’s free movement law: one based on severity, one based on causality and one based on probability.49_{The most} common definition of a de minimis threshold is one based on the magnitude of the restrictive effect, meaning that measures with a negligible restrictive effect on trade will escape the prima facie prohibition.50_{This test will stand central throughout the present analysis.}

A de minimis test could contribute to a fair distribution of powers between the EU and its Member States, in line with the principle of subsidiarity. According to Hojnik, a de minimis rule could increase the autonomy of national authorities, thereby strengthening democratic decision-making in the EU.51

The prevailing view is that the Court has consistently rejected de minimis type thresholds. The following chapters will investigate whether the Court has used, and could use, a de minimis test in its free movement interpretation.52

48_{Jansson and Kalimo, CMLR, 2014, p. 527; see also Case C-14/09, Hava Genc v Land Berlin, on the application of}

a de minimis rule without a clear-cut threshold when interpreting EU law on migrant workers.

49_{Jansson and Kalimo, CMLR, 2014, p. 528.} 50_{Ibid, p. 529.}

51_{Hojnik, EJLS, 2013, p. 24.}

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5. Competition Law

5.1. The De Minimis Rule in Competition Law

One area of law where the de minimis rule has set foot on the ground is that of competition law. The de minimis rule in competition law requires that agreements between undertakings must have a considerably restrictive effect upon competition in order for competition to be engaged. An agreement with a negligible effect on competition does not fall under the scope of Article 101 TFEU.53_{Thus, the intensity of the restrictive effect is of vital importance.}

The Court first articulated the de minimis principle in Société Technique Minière.54_{The principle} was repeated in Völk, where the Court held that “an agreement falls outside the prohibition in Article [101] when it has only an insignificant effect on the markets.”55_{In Dassonville, the Court} applied very similar language to that used in Völk in the context of free movement law, suggesting similarity between the two fields. This chapter will look into the legal nature of competition law and the similarities and differences between competition law on the one hand and free movement law on the other.

5.2. Competition and Free Movement

Competition and free movement constitute, together with the economic and monetary union and the common commercial policy, the primary layer of the economic constitutional law of the EU.56 Due to their similar aims and objectives, the lines between competition and free movement law can become somewhat blurred.

53_{Hojnik, EJLS, 2013, p. 28.}

54_{Case 56/65, Société Technique Minière.} 55_{Case 5/69, Völk, para. 5 (emphasis added).} 56_{Cruz 2002, p. 85.}

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The connection between competition law and free movement law can be demonstrated by looking at their aims. Both competition and free movement law aim to contribute to the creation and maintenance of a single competitive market. One of their striking differences, on the other hand, is the de minimis rule in competition law. As mentioned above, this de minimis rule does not exist in the field of free movement. Any effect on EU trade, even if it is insignificant or merely potential, is enough to trigger the application of the free movement rules.

Another vital difference between competition and free movement is their circle of addressees. Whereas competition concerns undertakings, free movement rules are addressed to States. This clear-cut circle of addressees would, in principle prevent conflict or overlapping, but there exist some gaps, which may detract from the effectiveness of the provisions. Think of private conduct hindering free movement, public behavior negatively affecting competition, or economic actors which are neither public nor private.

As demonstrated above, the relationship between competition and free movement rules is rather complicated. The question remains whether the transfer of the de minimis rule from the EU competition law to the field of the four freedoms is possible. The purpose of this thesis is to look further into the development of a new de minimis test, which is essentially the same as in the field of competition law but will have to be adapted to the specific peculiarities of free movement law.

6. Categorization of Case Law

6.1. Introductory Remarks

The role of the Court in defining the ambit of the provisions on free movement, and especially the concept of restrictions has been crucial. Nevertheless, it is no secret that it has had considerable

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difficulty in pursuing a clear and consistent policy towards their interpretation and application. This can be blamed partly on the somewhat vague terms of which these provisions are constructed, leaving the Court considerable leeway. More importantly, however, it is partly attributable to fluctuating attitudes towards, the legitimacy of using those provisions to restrict the freedom of Member States to regulate matters which are only loosely connected with free movement.57 The broader the Court’s interpretation of free movement provisions, the more national rules fall within the scope of the Treaty provisions. What this essentially means is that the Court determines the limits of Member State autonomy to regulate the internal market, a responsibility that the Court has not taken lightly.58_{However, the Court’s struggle to find a balance between Member State} autonomy and the importance of the free movement provisions leads to the somewhat worrying conclusion that today, 45 years after Dassonville, there is still no solid definition of what qualifies as a ‘trade restriction’.59

So far, this thesis has given a systematic overview of free movement law and has set out the basic concept of a de minimis rule. It has done so while comparing the field of free movement law to that of competition. The current chapter will attempt to analyze the Court’s case law through a categorization of the different legal tests that the Court has applied in the context of free movement over the past years. The question that stands central in this chapter is whether the Court tends to apply a de minimis rule, or not.

6.2. Dassonville and Cassis de Dijon

A striking feature of Article 34 is its deceptive simplicity. Deceptive, because its actual lack of clarity quickly became apparent when the Court was faced with the Treaty’s failure to define the crucial terms ‘quantitative restriction’ and ‘measures having ‘equivalent effect’ (hereafter:

57_{Arnull 2006, p. 394.}

58_{Horsley, JCMS, 2012, p. 280.} 59_{Antonaki, ELR, 2016, p. 177.}

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MEE).60_{With its landmark decision in Dassonville, ruled in 1974, the Court responded to this} unclarity by defining the notion of a restriction:

“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.”61

This definition became significant because of its remarkable and somewhat concerning breadth: a mere indirect or potential effect on trade was enough to establish an infringement of Article 34.62 Moreover, in defining the limits of Article 34, the Dassonville formula contained no reference to the idea of discrimination. By bringing indistinctly applicable measures within the scope of Article 34 the Court implied that non-discriminatory measures could also present severe obstacles to trade.63

This notion was confirmed in 1979 in the famous Cassis de Dijon case.64_{In Cassis de Dijon, the} Court ruled that Article 34 could apply to obstacles to the free movement of goods which resulted merely from the fact that the rules in the State of importation were not the same as those in the state of origin. In line with this principle of ‘mutual recognition’, goods lawfully produced and marketed in one Member State can, in principle, without further restriction be sold in another Member State.65

As explained by Barnard, the principle of mutual recognition became the predominant criterion for determining whether a trade restriction existed or not.66_{The ruling was of the utmost} significance, as it brought a much broader category of national measure within the ambit of Article 34, thereby widening its scope.67_{Soon, this almost unlimited scope created an avalanche of}

60_{Arnull 2006, p. 395.}

61_{Case 8/74, Dassonville (emphasis added).} 62_{Arnull 2006, p. 398.}

63_{Perišin, CYELP, 2008, p. 6.}

64_{Arnull 2006, p. 402; Case 120/78, Rewe; Perišin, CYELP, 2008, p. 7.} 65_{Barnard 2016, p. 92.}

66_{Antonaki, ELR, 2016, p. 178 in reference to Barnard, 2014, p. 656.} 67_{Arnull 2006, p. 405.}

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national litigation against all types of national regulations, as they were allegedly in conflict with the free movement provisions.68

This flood of legal actions was perceived as intruding upon national autonomy as the Court could suddenly scrutinize every national measure that in some way, even potentially and indirectly, impeded free movement.69_{Many argued that having such comprehensive duties would require a} balance of public interests that should be left to the Member States.70_{The fear of invasion resulted} in a call for clarity and limits to the Court’s control over national measures.71

Advocate General Tesauro shared this fear. In his opinion in Hünermund, he opined that the ‘Dassonville formula [could not] be construed as meaning that a potential reduction in imports caused solely and exclusively by a more general (and hypothetical) contraction of sales, can constitute a measure having equivalent effect to a quantitative restriction on imports.’72_According to him, clarification by the Court was necessary in order to discourage challenges of all kinds of measures, merely because an effect on imports cannot be altogether ruled out.73_{The solution he} provided was that rules regulating the manner in which a trading activity was carried out were to fall outside the scope of Article 34, as long as they did not intend to regulate trade itself and were not discriminatory.74_{In his opinion, this interpretation would avoid a use of Article 34 that ‘would} ultimately render nugatory the Treaty provisions.’75

It took Tesauro’s opinion for the Court to finally respond to the compelling call for action and re-examine its broad interpretation of a ‘restriction’ in Keck.76

68_{See Antonaki, ELR, 2016, p. 178.} 69_{Perišin, CYELP, 2008, p. 8.} 70_{Perišin, CYELP, 2008, p. 12.} 71_{Antonaki, ELR, 2016, p. 178.}

72_{Case C-292/92, Ruth Hünermund, Opinion of AG Tesauro, para. 25.} 73_{Ibid, para. 25.}

74_{Ibid, para. 25.} 75_{Ibid, para. 27.}

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6.3. Early Case Law 6.3.1. General Presumption

Upholding the broad scope of the Dassonville formula, the Court initially preserved a general presumption against the operation of a de minimis rule in free movement law. Whereas the de

minimis rule was entirely accepted in competition law, in van de Haar the Court took a completely

different position in the context of free movement.77_{Here, the referring court framed its questions} around the similarities between the definition of a quantitative restriction in Dassonville, and agreements affecting trade in the case law on Article 101. It specifically asked whether the threshold of appreciability applied as part of the latter framework should also be applied in free movement law.78

The Court answered this question in the negative and confirmed a different approach for free movement law:

“Article [34] of the Treaty does not distinguish between measures having an effect equivalent to quantitative restrictions according to the degree to which trade between Member States is affected. If a national measure is capable of hindering imports it must be regarded as a measure having an effect equivalent to a quantitative restriction, even though

the hindrance is slight […].”79

Article 34 was thus not interpreted as leaving any room for a de minimis analysis. Ever since, the Court has repeated that there is no de minimis limit on the magnitude of a restriction.80_The irrelevance of de minimis was emphasized in Corsica Ferries, where the Court argued that “the articles of the […] Treaty concerning the free movement of goods, persons, services, and capital are fundamental provisions and any restriction, even minor, of that freedom is prohibited.”81

77_{Joined cases 177/82 and 178/82, van de Haar.}

78_{Joined cases 177/82 and 178/82, van de Haar, first question.} 79_{Ibid, para. 13 (emphasis added).}

80_{See Jansson and Kalimo, CMLR, 2014, p. 530.}

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Similarly, in Yves Rocher, the Court confirmed that with the exception of rules having a purely

hypothetical effect on intra-Community trade, Article 34 does not require a certain degree of

effect.82

6.3.2. Explanations

Given the similar aims of competition and free movement rules and their overlapping scope of application in some situations, one could undoubtedly wonder why EU law only recognizes a de

minimis rule in the field of competition law. Scholars offer various explanations as to why this

could be the case.

Gormley, recognizing the difference between the two fields, emphasizes that free movement law and competition law have different roles and subject-matters, which makes the de minimis rule more appropriate to one field than the other.83_{Building forward on this complexity, Davies pointed} out that introducing a de minimis rule would impose a nearly impossible obligation on national courts to investigate the actual disparate impact on the internal market.84_{Mortelmans agrees and} argues that a de minimis test would demand a complete review of the legal and economic framework without assuring clear guidelines for national courts.85_{Davies fears that requiring such} market investigations in order to determine whether free movement rights have been breached would almost certainly mean denying these rights. Therefore, he thinks that market language cannot automatically be transferred from one field to another.86_{Advocate General Tesauro adds} that applying a de minimis rule in the field goods would be very difficult, if not downright impossible.87

82_{Case 126/91, Yves Rocher, Opinion of AG Darmon.} 83_{Gormley 2002, p. 520.}

84_{Davies 2003, p. 96-98.}

85_{Hojnik, EJLS, 2013, p. 39 in reference to Mortelmans, CMLR, 1991, p. 127 and Mortelmans, CMLR, 2001, p.}

626.

86_{Davies 2003, p. 96-98.}

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Advocate General Jacobs points out that the heavy burden of examination might induce national courts, who are primarily responsible for the fundamental freedoms, to exclude too high a number of measures from the scope of free movement provisions.88_{Oliver supports Jacob’s argument by} claiming that the application of the de minimis rule to the internal market freedoms would introduce a new element of legal uncertainty, making it harder for national courts to apply the free movement provisions.89_{This would cause practical problems and detract from the fundamental} importance of the free movement provisions.

A final reason for the refusal of a de minimis rule in the field of free movement is that the freedoms mainly concern Member States measures rather than those of private bodies.90_{One could argue} that the public entities should have greater responsibility for the functioning of the internal market, because, as Barents observed: “state interventions on the market may be said to have an appreciable effect by their very nature.”91

6.4. Shifting Attitude? 6.4.1. Pre-Keck case law

It is clear from the foregoing that the Court has never explicitly applied a de minimis rule in the field of free movement. On the contrary, it has frantically denied the existence of this rule over and over again. Nevertheless, this constant rejection seems to be inconsistent with the Court’s arguments when it somewhat limited the scope of prima facie prohibited trade measures in its consecutive case law.92

88_{Case C-412/93, Leclerc-Siplec, Opinion of AG Jacobs, para. 42.} 89_{Oliver 2010, p. 92-93.}

90_{Hojnik, EJLS, 2013, p. 38.} 91_{Barents, CMLR, 1981, p. 287.}

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In the years following Dassonville and Van de Haar, the Court found several measures to fall

outside the scope of Article 34, ultimately narrowing its reach.93_{In short, some measures were} considered to insubstantially restrict market access and thus escaped review by the Court.94_This chapter will examine this shift in case law, and try to discern whether the Court applied some form of a de minimis test.

In Krantz,95_{decided only one year after Corsica Ferries, the Court, for the first time, ruled that} the effects caused by a national measure were ‘too uncertain and indirect’ to warrant the conclusion that this measure was capable of hindering trade.96_{This doctrine of ‘too uncertain and indirect} effect’ could be seen as an attempt to curtail the breadth of the Dassonville formula and is similar to a de minimis test.97

It was three years later, however, that the Court indeed took a drastic turn, in its famous Keck judgment. It appeared as though the Court felt that its earlier, extensive definition of trade restrictions had left the scope of measures falling under the prohibition practically unlimited. Following Advocate General Tesauro,98_{the Court reinterpreted and partially altered the scope of} application of Article 34. Consequently, the decision in Keck aimed at establishing clear and enforceable boundaries to the concept of measures having an effect equivalent to quantitative restrictions.99

6.4.2. Keck, narrowing the scope of free movement? a. The circumstances leading up to Keck

As mentioned before, in the aftermath of Cassis de Dijon, the Court was faced with increasing criticism and an unmanageable caseload. Facing this threat to its legitimacy, the Court felt

93_{Hojnik, EJLS, 2013, p. 33.} 94_{Ibid, p. 36.}

95_{Case C-98/88, Krantz.}

96_{Case C-98/88, Krantz, para. 11.} 97_{Spaventa 2008, p. 9.}

98_{See chapter 6.2.}

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compelled to clarify its case law on the matter. When Keck presented itself, the Court took that opportunity.

The Court began by explicitly mentioning that it considered it “necessary to re-examine and clarify its case-law on the matter”, “in view of the increasing tendency of traders to invoke Article [34] 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.”100_{To stop this flood} of opportunistic litigation and to respond to the heavy criticism on the breach of regulatory autonomy of the Member States, the Court boldly overturned its previous case law.101

b. The decision in Keck

In an attempt to limit the scope of the internal market regulations, the Court decided to exclude specific national measures from the scope of Article 34. It did so by distinguishing ‘selling arrangements’ as a separate category of measures that would escape the definition of trade restrictions.102_{The so-called product requirements, on the other hand, remained within the ambit} of Article 34 and the Dassonville formula.

The question that immediately arose was, unsurprisingly, what kind of national measures fell under this new category of ‘selling arrangements’. The concept was defined by the Court in Herbert

Karner, explaining that selling arrangements concerned rules relating to the place and time of sales

as well as to the marketing of specific products.103_{An example of such rules are the rules on shop} opening hours or restrictive rules on advertising.104

100_{Joined cases C-267 and 268/91, Keck.}

101_{It is interesting to note that the Court did not specify which concrete case law it was overturning. See para. 16 of} Keck: “contrary to what has been previously decided”.

102_{Jansson and Kalimo, CMLR, 2014, p. 524-525.}

103_{Antonaki, ELR, 2016, p. 179; Case C-71/02, Herbert Karner, para. 38.} 104_{Antonaki, ELR, 2016, p. 179.}

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To escape free movement scrutiny, selling arrangements may not discriminate in domestic and imported products, in either law or fact. If selling arrangements are discriminatory, either directly or indirectly, they fall within the scope of Article 34.

In this regard, it is necessary to note the difference between Krantz, where the ‘too uncertain and indirect’ formula was adopted, and Keck. Krantz did not concern solely the selling arrangements that were excluded from review under Keck.105_{Therefore, this line of case law ‘saves’ the residual} measures that Keck did not withdraw from the reach of Article 34, namely, non-discriminatory non-trading rules, that would otherwise fall under the broad Dassonville formula.

c. Consequences

In Keck, the Court struggled to locate the outer limits of EU law. One could argue that the Court partly succeeded in its quest for the following reasons.

The revolutionary Keck-concept of selling arrangements somewhat allowed for more regulatory autonomy of the Member States, as regulations relating to the place and time of sales as well as to the marketing of products were now left to the discretion of the Member States. 106_{Moreover, by} excluding a category of rules from the scope of Article 34, the Court shifted the burden of proof from the Member State to the party challenging the national rule.107_{Placing this burden primarily} on the challenging party gives national governments the benefit of the doubt when it comes to selling arrangements.

105_{Perišin, CYELP, 2008, p. 9 in reference to Barnard, EL Rev, 2001.}

106_{Antonaki, ELR, 2016, p. 177 in reference to Case C-71/02, Herbert Karner, para. 38.} 107_{Perišin, CYELP, 2008, p. 10.}

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d. Criticism

Not everyone was satisfied with the Court’s ruling. Those who were unsatisfied argued that the Court had - undesirably - focused on the type of rule, rather than its effect.108_{Stephen Weatherill,} for example, considered the Keck ruling to have a ‘disturbingly formalistic’ tone.109_{He proposed} a refined test that would effectively allow Member States to apply national measures to imported goods so long as they would apply equally in law and in fact to foreign goods and they would not impose a direct or substantial hindrance to market access.110_{His approach seems to indicate a} certain de minimis threshold, which can be traced back to Advocate General Jacobs’ opinion in

Leclerc-Siplec,111_{which will be discussed later on in this chapter.}

In his opinion in Caixa-Bank,112_{Advocate General Tizzano, disapproving the new approach to the} interpretation of free movement provisions, emphasizes the lack of general competence of the Union to regulate the internal market. According to him, the Treaty provisions left in place the Member States’ powers, by “merely prohibiting discrimination and obstacles to establishment”.113 Instead of creating an internal market where certain rules are excluded as a matter of principle, Tizzano considers it appropriate to exclude rules from the scope of the Treaty only when they do not meet all conditions needed in order to establish a restriction of free movement.114_{In particular,} he considers that “where the principle of non-discrimination is respected — and hence the conditions for the taking up and pursuit of an economic activity are equal both in law and in fact — a national measure cannot be described as a restriction on the freedom of movement of persons unless, in the light of its purpose and effects, the measure in question directly affects market

108_{Spaventa, 2008, p. 7.}

109_{Weatherill, CMLR, 1996, p. 887.}

110_{Antonaki, ELR, 2016, p.179; in reference to Weatherill, CMLR, 1996, p. 903.} 111_{Case C-412/93, Leclerc-Siplec.}

112_{Case C-442/02, Caixa-Bank, Opinion of AG Tizzano.} 113_{Ibid, para. 59.}

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access.”115_{In short, in his opinion, neglecting the ‘market access’ of a measure and focusing on} its qualification as ‘selling arrangement’ contradicts the division of powers set out by the Treaty, and is as such not in line with subsidiarity.116

Another critique was provided by Advocate General Maduro in his opinion in Alfa Vita.117 According to him, the categorization between selling arrangements and other measures has inevitably given rise to a complex and flexible body of case law.118_{What was meant to limit the} number of actions in the end increased the number of questions about the precise scope of Article 34.119_{To clarify the case law and bring the free movement of goods in line with the other freedoms,} he proposed that the Keck criteria be revisited. Going back to Tesauro’s opinion in Hünermund, he asks the critical question of whether Article 34 is intended to liberalize intra-Community trade, or intended more generally, to encourage the unhindered pursuit of commerce in Member States.120 To him, it is “obvious that the task of the Court is not to call into question as a matter of course Member States' economic policies.”121_{Such intrusion would automatically not be in line with the} principle of subsidiarity. Horsley would agree and warn for the transformation from provisions meant to contribute to the establishment and functioning of the internal market, into tools to review the very existence and nature of Member State regulation per se.122

6.4.3. Post-Keck, Back to Dassonville?

While Keck came to be known as the cornerstone case of restrictions of free movement, the effect of Keck was less revolutionary than initially anticipated. The boundaries of free movement were still less defined than people originally thought, and the meaning of Keck was uncertain.123_For this reason, the Court was forced to fine-tune its approach and, ever since, more rules have been

115_{Case C-442/02, Caixa-Bank, Opinion of AG Tizzano, para. 66.} 116_{Ibid, para. 59.}

117_{Joined cases C-158/04 and C-159/04, Alfa Vita, Opinion of AG Maduro.} 118_{Ibid, para. 24.}

119_{Ibid, para. 25.} 120_{Ibid, para. 36.}

121_{Joined cases C-158/04 and C-159/04, Alfa Vita, Opinion of AG Maduro, para. 41.} 122_{Horsley, JCMS, 2012, p. 281.}

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brought (back) within the ambit of Article 34.124_{As will be demonstrated below, the Court started} widening the scope of Article 34 anew by restricting the scope of selling arrangements and adopting an over-inclusive ‘market access’ test.

In its post-Keck case law, the Court was called to clarify and interpret the two conditions mentioned in paragraph 16 of Keck. The Court interpreted the conditions as such that certain selling arrangements would not be able to escape review if they were discriminatory or they imposed additional burdens on imported goods.125_{In some cases,}126_{the Court even shifted towards its} original Dassonville formula, merely noting whether a national measure ‘impedes’, ‘hinders’, or ‘creates’ an ‘obstacle’ to inter-state trade.127

The post-Keck case law demonstrates a transition from a formalistic approach based on a distinction between ‘product rules’ and ‘selling arrangements’ to a more substantive test based on ‘market access hindrance’.128_{Consequently, the Court slowly departed from the Keck formula,} without, however, ever explicitly overruling it.129

124_{Koutrakos, EL Rev, 2001, p. 391.} 125_{Antonaki, ELR, 2016, p. 180.}

126_{For example: Case C-320/03, Commission v Austria, para. 67.} 127_{Barnard 2016, p. 102.}

128_{See for an elaboration on the concept of ‘market access’ Barnard 2016, p. 21.} 129_{Antonaki, ELR, 2016, p. 180.}

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Fig. 1.1. Categorization of case law.

6.4.4. The Market Access Test

In the cases Commission v Italy (Trailers)130_{and Mickelsson and Roos,}131_{the Court confirmed its} refined market access approach.132_{The Trailers case posed the question of whether the Keck case} law on selling arrangements should be applied by analogy in order to exclude rules on the use of a product. Both Advocate General Kokott133_{and several Member States argued that this should be} the case and that such rules should benefit from the presumption of legality. The Court saw things differently and followed Advocate General Bot,134_{concluding that rules restricting the use of} products hinder market access and therefore constitute a MEE.

130_{Case C-110/05, Commission v Italy.} 131_{Case C-142/05, Åklagaren v Mickelsson.} 132_{Antonaki, ELR, 2016, p. 180.}

133_{Case C-142/05, Åklagaren v Mickelsson, Opinion of AG Kokott.} 134_{Case C-110/05, Commission v Italy, Opinion of AG Bot.}

Three Categories

Pre-Keck

1974 - 1993

Keck

1993 - 2009

Post-Keck

2009 - 2019 Dassonville and Cassis de Dijon Broad scope = Van De Haar NO de minimis New approach = narrowing the scope

Exclusion of ‘certain selling

arrangements’

Trailers

and Mickelsson & Roos

Market-Access test

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In an attempt to clarify its case law on Article 34 once again, the Court identified three situations where a rule could be considered a MEE:

“Consequently, measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article [34], as are the measures referred to in paragraph 35 of the present judgment. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept.”135 While the first category concerns distinctly applicable measures, the ‘measures referred to in paragraph 35’ consider the indistinctly applicable product requirements, to which Dassonville applies. With the third limb, the Court confirms that for residual measures — measures that cannot easily be qualified as distinctly applicable, a product requirement or a selling arrangement — the prohibition hinges upon the notion of ‘hindering market access’ (see fig. 1.2. below).

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Fig. 1.2. Categorization after Trailers.

Subsequent case law supports the market access test. In ANETT,136_{the Court found it necessary to} examine whether national legislation hindered the access of tobacco products coming from another Member State to the domestic market.137_{Furthermore, the predominance of the market access test} was recently reiterated in the Scotch Whisky case.138

It is important to note that the market access test is sometimes accompanied by a second step, requiring that the measure at issue has a direct, substantial, or significant effect on trade.139_See, for example, Ker-Optika,140_{where the Court found a national prohibition to significantly impede} market access. Like Antonaki points out, the Court, again, is not very consistent in the terminology

136_{Case C-456/10, ANETT v Administración del Estado.} 137_{Ibid, para. 37.}

138_{See Case C‑333/14, Scotch Whisky, paras 32 and 46.} 139_{Antonaki, ELR, 2016, p. 180.}

140_{Case C-108/09, Ker-Optika, para. 54.}

Commission v Italy (Trailers)

Limb I: Distinctly Applicable Measures Limb II: Indistinctly Applicable Measures Limb III: Residual Measures Breach of Article 34 TFEU ‘Product requirement’ or ‘selling arrangement?’ Step 1: Market-Access Test Step 2: Direct, substantial or significant effect on trade? AG Jacobs

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or the precise tests that it uses.141_{Nevertheless, the fact remains that the Court’s analysis does} seem to include a quantitative element: only measures that directly, substantially or significantly affect trade are captured by the MEE definition (see fig. 1.2.). Conversely, measures with a

hypothetical, remote, uncertain, or indirect effect on market access escape internal market

investigation.142

6.5. Leclerc-Siplec

The introduction of a market access test was not revolutionary, as it had already received much attention and support in the past. However, whereas the Court seems to have adopted a rather over-inclusive test, many scholars and Advocates General have focused on the degree of market access. Arguably the best example to demonstrate this is Advocate General Jacobs’ famous objection to the Keck formula in its opinion in Leclerc-Siplec.143_{In the words of Oliver, Jacobs’ opinion formed} the most authoritative assault ever mounted on the Court’s reasoning in Keck. Jacobs mentioned two reasons for his dissatisfaction: a discrimination test was inappropriate in any event and it was inappropriate to make a rigid distinction between different categories of measure.144

In trying to look for a solution, Jacobs proposed an alternative test: a test based on “substantial hindrance on market access”. This de minimis test in respect of market access would be used to determine whether non-discriminatory rules infringed Article 34.145_{Well aware of the fact that the} Court had refused to apply the de minimis rule in the past, Jacobs claimed that:

“Once it is recognized that there is a need to limit the scope of Article [34] in order to prevent excessive interference in the regulatory powers of the Member States, a test based

141_{Antonaki, ELR, 2016, p. 180.}

142_{Antonaki, ELR, 2016, p. 180-181, note that some authors make a distinction between these tests: some see}

remoteness as a separate test seeking to establish a link of causality. See in particular Barnard, 2016, p. 147 and Weatherhill, 1996, p. 900.

143_{Antonaki, ELR, 2016, p. 179; Case C-412/93, Leclerc-Siplec.}

144_{Case C-412/93, Leclerc-Siplec, Opinion of AG Jacobs, para. 38; see in this regard also the criticism of Stephen}

Weatherill, discussed above in chapter 6.4.2.(d).

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on the extent to which a measure hinders trade between Member States by restricting market access seems the most obvious solution.”

Not blind to the practical difficulties and dangers that the introduction of a de minimis rule could entail, Jacobs warns that “caution must [...] be exercised and if a de minimis test is to be introduced it will be necessary to define carefully the circumstances in which it should apply.”146

As mentioned, the focus on the significance of the impact on market access was also embraced by other Advocates General and legal scholars.147_{It has been argued multiple times that the case law} offers room for de minimis considerations in free movement law for the reasons that minimal restrictive effects do not affect market access and thus do not violate Article 34.148_Advocate General Stix-Hackl, for example, argued that “the decisive factor should be whether or not a national measure significantly impedes access to the market.”149_{Advocate General van Gerven} even argued that “the application of the prohibition in Article [34] already presupposes a serious, and therefore a more than appreciable, obstruction to trade between Member States.”150

Barnard seems to join Jacobs in its battle against an over-inclusive market access approach, by stating that the disadvantage of the market access approach is that it is far more intrusive into national regulatory autonomy since EU law quickly requires the national measure to be struck down, unless it can be justified. This intrusion can have severe repercussions for national legislation adopted by democratic governments, since almost every national rule can in one way or another affect free movement, even if that was never the intention of the rule and the effect on trade is inappreciable.151

146_{Case C-412/93, Leclerc-Siplec, Opinion of AG Jacobs, para. 42 (emphasis added).} 147_{Antonaki, ELR, 2016, p. 179.}

148_{Ibid, p. 179.}

149_{Case C-322/01, DocMorris NV, Opinion of Advocate General Stix-Hackl, para. 78.} 150_{Case C-145/88, Torfaen, Opinion of AG van Gerven, para. 24.}

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This chapter aimed to demonstrate the Court’s difficulty in defining what constitutes a restriction. In its early case law, such as Van de Haar, the Court upheld a broad interpretation, consistently favoring the importance of free movement provisions over extensive national autonomy, thus rejecting a de minimis threshold. Nevertheless, reacting to fierce criticism and a flood of litigation, the Court finally revisited its interpretation of the free movement provisions. This shift started cautiously, in Krantz, but eventually took a giant leap in Keck, where the Court excluded certain national measures from the scope of Article 34 altogether. Unfortunately, what appeared to be a bold move, lost some of its strength through the Court’s consecutive case law, where a somewhat over-inclusive market access test was introduced. The question is whether this current test in line with subsidiarity.

7. Analysis

7.1. A Balance of Interests

It cannot be denied that the Court is faced with a very delicate task. While it has to ensure protection of fundamental principles of EU law, it should also not disregard the limits of the Union’s competences conferred by the Treaties and should thus abstain from infringing on the Member States’ competences. This, in combination with the Court’s broad interpretive powers, gives rise to challenges.

Subsidiarity calls for limits that guide the Court when exercising its interpretive powers. Subject to those limits, subsidiarity protects the Member States’ right to regulate the conditions within the internal market without interference at Union level.152_{Due to the Court’s enormous role in the} development of free movement law through its case law, the principle of subsidiarity must be taken into account at all times.

Rethinking the Scope of Free Movement Provisions - Time for a De Minimis Test?