“Finally!” some of you might say, finally we approach the “real” stuff - the substantive law of the EC. As usually, the following are some tips of mine, which are intended to make your preparation for the seminar (and the exam as well!) easier. As the "official" seminar sheet says, the authors of various EU law textbooks approach some of the problems, concerning free movements on the Internal Market, in different ways. Even after 50 years of the Community's existence there are some (many?) issues contested and the case law is constantly developing. Yes, it makes your life more difficult, but an ambitious lawyer can also say: more interesting!
I know that there is a lot of reading given on the seminar sheet. However, I recommend you to have a look at this one: Peter Oliver and Stefan Enchelmaier: Free movement of goods: recent developments in the case law, (2007) 44 CML Rev 649 (from within the Oxford network you can download the article here [pdf]). (P. Oliver has been working for many years for the Legal Service of the Commission, litigating a lot of cases you will read about; he is an author of THE book on the free movement of goods (in its newest edition together with M. Jarvis: Free Movement of Goods in the European Community, 4th Ed., Sweet & Maxwell, 2003).
Oliver and Enchelmaier identify, in a very eloquent way, the persistent problems existing in the case law. You can perhaps just print the article off and skim through it to see what the problematic areas are. Sometimes the textbooks fail to acknowledge that the solution proposed by their authors is contested (example: the question whether you can rely on the judicially created “mandatory requirements” in order to justify discriminatory measures; see below). The article can help you to see this.
Below I offer a guide, which can lead your analysis of the issues present in your problem questions (questions 2 and 3, Seminar sheet p. 3-4), concerning the free movement of goods (but for services you can use a similar one). It is my suggestion only; if it is not convenient to how you are used to approach legal problems, just ignore it!
I know that there is a lot of reading given on the seminar sheet. However, I recommend you to have a look at this one: Peter Oliver and Stefan Enchelmaier: Free movement of goods: recent developments in the case law, (2007) 44 CML Rev 649 (from within the Oxford network you can download the article here [pdf]). (P. Oliver has been working for many years for the Legal Service of the Commission, litigating a lot of cases you will read about; he is an author of THE book on the free movement of goods (in its newest edition together with M. Jarvis: Free Movement of Goods in the European Community, 4th Ed., Sweet & Maxwell, 2003).
Oliver and Enchelmaier identify, in a very eloquent way, the persistent problems existing in the case law. You can perhaps just print the article off and skim through it to see what the problematic areas are. Sometimes the textbooks fail to acknowledge that the solution proposed by their authors is contested (example: the question whether you can rely on the judicially created “mandatory requirements” in order to justify discriminatory measures; see below). The article can help you to see this.
Below I offer a guide, which can lead your analysis of the issues present in your problem questions (questions 2 and 3, Seminar sheet p. 3-4), concerning the free movement of goods (but for services you can use a similar one). It is my suggestion only; if it is not convenient to how you are used to approach legal problems, just ignore it!
[NB: W & D refers to Wyatt and Dashwood's European Union Law, 5th Edition (Sweet & Maxwell 2006), CdB refers to Craig and de Búrca: EU Law. Text, Cases, and Materials, 4th Edition (OUP 2007).]
Basic steps to take in your analysis of restrictions on imports caught by Article 28 EC
1) Is there some secondary EC legislation applicable? (in more lofty terms: has the field been harmonized?)
Basic steps to take in your analysis of restrictions on imports caught by Article 28 EC
1) Is there some secondary EC legislation applicable? (in more lofty terms: has the field been harmonized?)
“It should be borne in mind that, in a field which has been exhaustively harmonised at Community level, a national measure must be assessed in the light of the provisions of that harmonising measure and not of those of primary law.” Case C-210/03 Swedish Match [2004] ECR I-11893, para. 81. But this does not mean that if you have a directive in the field you analyse, any consideration of primary law is excluded. It will depend on the scope of discretion left to the Member States, which remains to be controled by primary law, including the free movement articles (see also below, the cases which I provided to illustrate the test).
2) Measure having equivalent effect?
product requirement / selling arrangement / other? as you will see in your basic reading, there is still a lot of discussion about the proper scope of Keck. I very much recommend reading Oliver & Enchelmaier at 671-683.
3) Justified?
The distinction between Article 30 EC grounds/mandatory requirements: the dispute over the question whether or not you can rely on mandatory requirements, i.e. judicially created justifications, also in case of directly discriminatory (distinctly applicable) measures; contrast e.g. W & D at p. 625-626 with Oliver & Enchelmaier at 689-691 A brief, but very useful, discussion of this problem is also to be found in CdB at 706-707.
2) Measure having equivalent effect?
product requirement / selling arrangement / other? as you will see in your basic reading, there is still a lot of discussion about the proper scope of Keck. I very much recommend reading Oliver & Enchelmaier at 671-683.
3) Justified?
The distinction between Article 30 EC grounds/mandatory requirements: the dispute over the question whether or not you can rely on mandatory requirements, i.e. judicially created justifications, also in case of directly discriminatory (distinctly applicable) measures; contrast e.g. W & D at p. 625-626 with Oliver & Enchelmaier at 689-691 A brief, but very useful, discussion of this problem is also to be found in CdB at 706-707.
Possible grounds: express listed in Article 30 EC and/or mandatory requirements recognized by the ECJ
(Usually) the key: proportionality (but the requirement that the measure in question can represent “no means of arbitrary discrimination or a disguised restriction on trade between Member States”, when Article 30 EC is to be applied, is also important).
Note on the concept of discrimination: Consider that in the steps 2) and 3) you have three different kinds of discrimination in play: direct discrimination (which can roughly be equated with discrimination in law; e.g. a requirement that importers must obtain a special licence to trade in the host Member State), indirect discrimination (roughly discrimination in fact; e.g. a prohibition on advertisement makes it more difficult for importers to establish their product on the market of the host Member State) and arbitrary discrimination (an example of which is provided e.g. in W & D at 619 or
In step 2), when you identify a measure as a selling arrangement, both directly and indirectly discriminating selling arrangements will be caught by Article 28 EC (i.e. they will create restriction to the free movement of goods). Note that for product requirements, for which the traditional "Dasonville formula" applies, it is not important whether the measure is discriminatory; what is important is only the hindrance of trade between the Member States.
In step 3), if the measure is directly discriminatory, according to the interpretation defended e.g. by W & D (and opposed by Oliver & Enchelmaier), you cannot rely on judicially created "mandatory requirements" (which the ECJ started to invent in Cassis de Dijon). But you can still use the express grounds given in Article 30 EC, as long as they are not arbitrary discriminatory (and do not create "a disguised restriction on trade between Member States").
4) Who can invoke this?
In step 2), when you identify a measure as a selling arrangement, both directly and indirectly discriminating selling arrangements will be caught by Article 28 EC (i.e. they will create restriction to the free movement of goods). Note that for product requirements, for which the traditional "Dasonville formula" applies, it is not important whether the measure is discriminatory; what is important is only the hindrance of trade between the Member States.
In step 3), if the measure is directly discriminatory, according to the interpretation defended e.g. by W & D (and opposed by Oliver & Enchelmaier), you cannot rely on judicially created "mandatory requirements" (which the ECJ started to invent in Cassis de Dijon). But you can still use the express grounds given in Article 30 EC, as long as they are not arbitrary discriminatory (and do not create "a disguised restriction on trade between Member States").
4) Who can invoke this?
Cross-border element and purely internal situations: be aware that this is again one of the rather confused are of the ECJ’s case law; apart from the textbooks (see e.g. W& D at 608-609 or CdB at 669) you can consult particularly Oliver & Enchelmaier at 650-660 to see what is at stake.
However, be aware about the distinction between applicability of EC law to the case before a court on the one hand and jurisdiction of the ECJ to reply to questions concerning purely internal situation on the other (see W & D, p 608 i.f. and p. 609, and in more details Oliver & Enchelmaier, p. 657 et seq.). Note that CdB (at 669) does not seem to see this distinction important. I think the distinction is important, see Case C-448/98 Guimont [2000] ECR I-10663, para. 21 and 22 (relevant part of the judgment is reproduced below at p. 9 of this sheet); in para. 21 the ECJ holds that Article 28 EC is not applicable in the factual context at hand; however, in para. 22 the Court hastens to explain that it can nevertheless give its ruling to provide an answer).
The Court tends to be rather generous when assessing whether or not the problem presented before it concerns "purely internal situations". Therefore, in the following practical examples, step 4 is not indicated. Also, it would be more logical to put this step at the very beginning (only if your client has capacity to invoke the Treaty provisions, does it make sense to go to courts; however, I put it here because it is relatively rarely questioned by the ECJ and in fact, it comes under the ECJ's scrutiny only if it is expressly presented to it).
Illustration of the test in some actual cases
However, be aware about the distinction between applicability of EC law to the case before a court on the one hand and jurisdiction of the ECJ to reply to questions concerning purely internal situation on the other (see W & D, p 608 i.f. and p. 609, and in more details Oliver & Enchelmaier, p. 657 et seq.). Note that CdB (at 669) does not seem to see this distinction important. I think the distinction is important, see Case C-448/98 Guimont [2000] ECR I-10663, para. 21 and 22 (relevant part of the judgment is reproduced below at p. 9 of this sheet); in para. 21 the ECJ holds that Article 28 EC is not applicable in the factual context at hand; however, in para. 22 the Court hastens to explain that it can nevertheless give its ruling to provide an answer).
The Court tends to be rather generous when assessing whether or not the problem presented before it concerns "purely internal situations". Therefore, in the following practical examples, step 4 is not indicated. Also, it would be more logical to put this step at the very beginning (only if your client has capacity to invoke the Treaty provisions, does it make sense to go to courts; however, I put it here because it is relatively rarely questioned by the ECJ and in fact, it comes under the ECJ's scrutiny only if it is expressly presented to it).
Illustration of the test in some actual cases
(NB: the cases can also help to answer the problem questions; so it’s worth reading them also because of this!)
In the following, I am indicating the steps you can take when analysing the restriction. You can see this in many judgments or opinions of AGs. See e.g. Case C-434/04 Ahokainen and Leppik [2006] ECR I-9171, paras. 18-22. The Court examines whether a licence requirement to import spirits is a measure prohibited by Article 28 EC (and before, in para. 15, the Court firstly excludes application of a directive which regulates certain aspects of imports of alcohol, but not those at issue in the main proceedings). Note however, that the licence requirement does not fit well into the product requirement/selling arrangement dichotomy, so do not be confused that the Court in paras. 19 and 20 does not make a clear classification and merely states that the measure is a restriction on trade between Member States falling within the scope of Article 28 EC. After establishing this, the Court examines in paras. 28-40 whether it is possible to justify this restriction on the grounds provided in Article 30 EC.
Similarly, you can see the same structure of analysis in Case C-322/01 Deutscher Apothekerverband [“DocMorris”][2003] ECR I-14887 concerning the prohibition of internet sales of medical product.
1) When the Court analyses the ban concerning drugs not authorized by Germany (whose legislation was at stake in that case), it finds that a directive is applicable and Germany only discharges its obligations imposed by the directive; therefore, there is no need to consider whether the national provisions at issue in the main proceedings are precluded by Articles 28 EC to 30 EC (see paras. 52-54). Then it goes on to analyse the ban concerning authorized drugs. In paras. 63-76 it examines whether the ban constitutes a restriction. But again, it firstly establishes that a directive is applicable and delimits what scope of discretion is left to the Member States by the directive (paras. 63-65); this discretion is further limited by other Community law provisions, including Article 28 EC, so the existence of the directive does not preclude examination of this (para. 65).
2) Then the Court examines whether the ban on Internet sales is a restriction - paras. 66-77. Part of this is applying the test contained in Keck (does the ban affect importers more than domestic producers? (para. 74).
3) Having established the restriction, the Court lastly examines possible justifications: paras. 102-124.
Well, that's all for the moment, good luck when preparing for the seminar and see you all there!
Read more!
In the following, I am indicating the steps you can take when analysing the restriction. You can see this in many judgments or opinions of AGs. See e.g. Case C-434/04 Ahokainen and Leppik [2006] ECR I-9171, paras. 18-22. The Court examines whether a licence requirement to import spirits is a measure prohibited by Article 28 EC (and before, in para. 15, the Court firstly excludes application of a directive which regulates certain aspects of imports of alcohol, but not those at issue in the main proceedings). Note however, that the licence requirement does not fit well into the product requirement/selling arrangement dichotomy, so do not be confused that the Court in paras. 19 and 20 does not make a clear classification and merely states that the measure is a restriction on trade between Member States falling within the scope of Article 28 EC. After establishing this, the Court examines in paras. 28-40 whether it is possible to justify this restriction on the grounds provided in Article 30 EC.
Similarly, you can see the same structure of analysis in Case C-322/01 Deutscher Apothekerverband [“DocMorris”][2003] ECR I-14887 concerning the prohibition of internet sales of medical product.
1) When the Court analyses the ban concerning drugs not authorized by Germany (whose legislation was at stake in that case), it finds that a directive is applicable and Germany only discharges its obligations imposed by the directive; therefore, there is no need to consider whether the national provisions at issue in the main proceedings are precluded by Articles 28 EC to 30 EC (see paras. 52-54). Then it goes on to analyse the ban concerning authorized drugs. In paras. 63-76 it examines whether the ban constitutes a restriction. But again, it firstly establishes that a directive is applicable and delimits what scope of discretion is left to the Member States by the directive (paras. 63-65); this discretion is further limited by other Community law provisions, including Article 28 EC, so the existence of the directive does not preclude examination of this (para. 65).
2) Then the Court examines whether the ban on Internet sales is a restriction - paras. 66-77. Part of this is applying the test contained in Keck (does the ban affect importers more than domestic producers? (para. 74).
3) Having established the restriction, the Court lastly examines possible justifications: paras. 102-124.
Well, that's all for the moment, good luck when preparing for the seminar and see you all there!
