User:Kaihsu/IMlawC2

European internal market.

Module C: Beyond discrimination.

Chapter 2: Restrictions on internal market freedoms.

Dassonville and Cassis de Dijon
Case 8/74 Dassonville reversed the presumption of Directive 70/50/EEC for indistinctly applicable measures, which had been allowed unless they created undue burdens: ‘All trading rules enacted by Member States, which are capable of hindering, directly or indirectly, actually or potentially, intra-Union trade are to be considered as measures having an effect equivalent to quantitative restrictions.’ Legitimate interests exempts, but they must not constitute a means of arbitrary discrimination or a disguised restriction.

Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Brantwein (Cassis de Dijon) established the principle of mutual recognition (see Regulation 764/2008) in the absence of harmonization, favouring freedom of movement over “race to the bottom” arguments. Public interest measures (“mandatory requirements”) can be justified (“rule of reason”) if they are applicable to both domestic and imported products, proportionate (Case 261/81 Rau), and necessary to achieve the stated objective.

Goods
The Court relied on the general principle of freedom of transit of goods within the Union (Articles 28 and 30 TFEU) to find that the a rule neutral in formal terms as to the product’s origin does not render it lawful: Case C-173/05 Commission v Italy (Sicilian gas pipeline taxes).

In order for a Member State to be able to invoke grounds of justification, it must show that the objective being pursued can be shown to genuinely reflect a concern to attain that objective in a consistent and systematic manner: see Case C-28/09 Commission v Austria (Inn Valley lorry ban). Mandatory requirements include consumer protection and public health (Case 178/84 Commission v Germany (beer)), environmental protection (Case 302/86 Commission v Denmark (bottle deposit), Case C-112/00 Schmidberger).

Comprehensive coverage of Union Directive rules out Member State-level regulation: Case 60/86 Commission v UK (dim-dip); see also Case C-376/98 Germany v Parliament and Council (tobacco advertising). On enforcement, see Case C-5/94 Hedley Lomas.

On the extent Article 34 has horizontal effect, see Case C-470/03 AGM-COS.MET and Case C-265/95 Commission v France (Spanish strawberries). Case study: Case C-14/00 Commission v Italy (chocolate).

Persons
A restriction (Case C-19/92 Kraus) can only be justified if it is:
 * non-discriminatory;
 * in pursuit of a legitimate public interest; and
 * proportionate: suitable for the objective and not beyond what is necessary: Case C-55/94 Gebhard. It should respect fundamental rights: Case C-60/00 Carpenter.

National rules which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an obstacle to that freedom even if they apply without regard to the nationality of the worker concerned: Case C-415/93 Bosman. See also Case C-176/96 Lehtonen for the wide scope and Case C-522/10 Reichel-Albert for application to non-economically active person.

A practice constitutes a restriction only if it is to cause serious inconvenience at administrative, professional and personal levels; a practice not placing the person in at a disadvantage is not considered a restriction: Case C-391/09 Runevič-Vardyn and Wardyn.

Criminal penalties for failing to exchange driving licences must not be disproportionate to the nature of the offence because to do so would discourage free movement of persons as established by the Treaty: Case C-193/94 Skanavi and Chryssanthakopoulos.

For the extent the Treaty rules apply horizontally, see Case C-438/05 Viking.

Mutual recognition of qualification is established in Case C-340/89 Vlassopoulou. The horizontal harmonizing directives derived from this, leading up to Directive 2005/36. Lawyers' establishment is provided for in Directive 98/5; services Directive 77/249.

Services and establishment
See Services Directive 2006/123.

“A prohibition such as that at issue is imposed by the Member State in which the provider of services is established and affects not only offers made by him to addressees who are established in that State or move there in order to receive services but also offers made to potential recipients in another Member State. It therefore directly affects access to the market in services in the other Member States and is thus capable of hindering intra-[Union] trade in services”: Case C-384/93 Alpine Investments.

National rules reserving the provision of the services in question to certain economic operators or a public body are restrictions, but can be justified by public interest and proportionate: Case C-76/90 Säger v Dennemeyer, Case C-124/97 Läärä. Fee scales that cannot be derogated from are restrictions: Joined Cases C-94/04 and C-202/04 Cipolla. So are provincial licensing for debt recovery: Case C-134/05 Commission v Italy (Italian debt recovery). The “objective justification”/“imperative requirements” rule came from Case 33/74 Van Binsbergen.

Collective action “such as that at issue in the main proceedings cannot be justified in the light of the public interest objective [...], where the negotiations on pay, which that action seeks to require an undertaking established in another Member State to enter into, form part of a national context characterised by a lack of provisions, of any kind, which are sufficiently precise and accessible that they do not render it impossible or excessively difficult in practice for such an undertaking to determine the obligations with which it is required to comply as regards minimum pay”: Case C-341/05 Laval. See aftermath Directive 2014/67 for enforcing Directive 96/71 (Posted Workers Directive).

Article 56 TFEU ‘precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State’: Case C-250/06 United Pan-Europe Communications v Belgium.

A complete lack of any call for competition in the case of the award of a public service contract was not in compliance with Articles 49 or 56 TFEU; contracts of public works, supplies and services equires equal treatment of tenderers even in the absence of discrimination based on nationality: Case C-220/06 Asociación Profesional de Empresas de Partado y Manipulado de Correspondencia (APEPMC).

Refusing authorization for dental clinics that are unlikely to conclude a contract with the sickness funds is a restriction: Case C-169/07 Hartlauer; likewise minimal capital requirement for motor inspection shops: Case C-438/08 Commission v Portugal (Portuguese motor vehicle inspections). Also language reservations for TV production: Case C-222/07 UTECA. Authorisation requirement for opticians, the rules on population density and minimum distance are restrictions on the freedom of establishment: Case C-539/11 Ottica New Line di Accardi Vincenzo.

A non-discriminating tax not impeding market access of services does not breach Article 56: Case C-134/03 Viacom II.

Case study: Directive 2010/13 (Audiovisual Media Services Directive) and the associated caselaw, especially Joined Cases C-34–36/95 De Agostini.

“A prohibition on the remuneration of sight accounts hinders credit institutions which are subsidiaries of foreign companies in raising capital from the public, by depriving them of the possibility of competing more effectively, by paying remuneration on sight accounts, with the credit institutions traditionally established in the Member State of establishment, which have an extensive network of branches and therefore greater opportunities than those subsidiaries for raising capital from the public”: Case C-442/02 CaixaBank.

Capital
The prohibition in Article 63 TFEU ‘goes beyond the mere elimination of unequal treatment, on grounds of nationality, as between operators on the financial market’: Case C-98/01 Commission v United Kingdom (UK golden shares). In Case C-423/98 Albore, the phrase “discriminatory restriction” was used.

A total ban (Case C-478/98 Commission v Belgium (Belgian eurobonds) and a prior authorization system (Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch) are examples of restrictions. An authorisation mechanism cannot be disguised as a notification system: Case C-39/11 VBV – Vorsorgekasse.

In Case C-364/01 Barbier, the Court offered two reasons why measures constituted restrictions: Tax rules deterring a taxpayer from investing in another Member State or in a third State are restrictions: Case C-322/11 K, Case C-168/11 Beker. Freedom of movement for capital applies extra-Union: Case C-282/12 Itelcar.
 * they discourage the transfer of ownership of property between owners of different Member States (see also Case C-35/98 Verkooijen)
 * they reduce the value of the property.

The Court distinguished between a cap decided on by the shareholders themselves and one imposed by means of national legislation from which they could not derogate: Case C-112/05 Commission v Germany (VW law).