User:Kaihsu/IMlawC3

European internal market.

Module C: Beyond discrimination.

Chapter 3: Justifying restrictions – invocable grounds.

Goods
Mandatory requirements, which must be applied proportionately (Case 261/81 Rau) include:
 * The prevention of tax evasion
 * Consumer protection: ban on the marketing of a product may not be justified on the grounds of consumer protection if the consumer will be adequately protected by a labelling requirement: Cassis de Dijon. A requirement that goods be labelled in the language of the region concerned will not be justified if information given in another language can easily be understood by consumers there (Case 27/80 Fietje; Case C-369/89 Piageme).
 * Bans upheld:
 * misleading names or labels
 * offering free gifts as a method of sales promotion (Case 286/81 Oosthoek)
 * doorstep sales of language teaching materials (Case 382/87 Buet).
 * Bans not justified:
 * restrictions on advertising special offers
 * abusive restrictions on the use of generic names such as ‘beer’ or ‘yoghurt’
 * unwarranted bans on the name under which goods are sold (Case C-135/92 Estée Lauder (Clinique)).
 * The prevention of unfair competition: argument requiring proof of advantage for consumer other than widening choice is rejected in Case C-456/10 ANETT.
 * Protection of the environment: first recognized in Case 302/86 Commission v Denmark (bottle deposit). See Case C-2/90 Commission v Belgium (Walloon waste), Case C-320/03 Commission v Austria (Inn valley motorway).
 * Working conditions: but see Keck.
 * Maintaining diversity in the media: Case C-368/95 Familiapress.
 * Protection of fundamental rights: Case C-112/00 Schmidberger.
 * National or regional culture: but see Keck.
 * Protection of social security systems: Not covering excessively expensive pharmaceuticals is lawful on condition that: the exclusionary lists must be drawn up in accordance with objective criteria without reference to the origin of the products; they must be verifiable by any importer; and it must be possible to amend the lists whenever compliance with the specific criteria so required (Case 238/82 Duphar); the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier": Case C-120/95 Decker.
 * Protection of children: Case C-244/06 Dynamic Medien.
 * Other possible grounds: e.g. road safety, protection of telephone network (Case C-18/88 GB-Inno-BM).

Persons
Restrictions that could breach Article 45 TFEU can be justified by legitimate aims such as maintaining a financial and competitive balance between clubs and the development of the sport: Case C-415/93 Bosman, Case C-325/08 Olympique Lyonnais.

“It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law”: Case C-237/94 O’Flynn.

“Legislation of the kind at issue in the main proceedings is not such as to preclude or deter a worker from ending his contract of employment in order to take a job with another employer, because the entitlement to compensation on termination of employment is not dependent on the worker's choosing whether or not to stay with his current employer but on a future and hypothetical event, namely the subsequent termination of his contract without such termination being at his own initiative or attributable to him. &para; Such an event is too uncertain and indirect a possibility for legislation to be capable of being regarded as liable to hinder freedom of movement for workers where it does not attach to termination of a contract of employment by the worker himself the same consequence as it attaches to termination which was not at his initiative or is not attributable to him”: Case C-190/98 Graf.

Chapter VI of Directive 2004/38/EC sets out the restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. In Case C-145/09 Tsakouridis, Article 27 and 28 was interpreted to explain the conditions for an expulsion to be lawful.

Services
As first applied in Case C-6/90 Säger, specific requirements imposed on the provider, which result from the application of rules governing those types of activities, cannot be regarded as incompatible with the Treaty; the restriction can only be justified if it is: Overriding requirements of general public importance include:
 * non-discriminatory;
 * in pursuit of a legitimate public interest; and
 * proportionate: suitable for the objective and not beyond what is necessary: often-cited formula from Case C-55/94 Gebhard.
 * Prevention of tax evasion: registration is the natural corollary of the exercise of the Member States’ powers of taxation (Case C-451/99 Cura Anlagen).
 * Consumer protection: if a Member State incite and encourage consumers to participate in betting for the public purse, it cannot invoke public order concerns to justify restrictions: Case C-243/01 Gambelli.
 * The prevention of unfair competition
 * Protection of the environment
 * Working conditions: Case C-438/05 Viking Line and Case C-341/05 Laval. Collective labour agreements (Joined Cases 62/81 and 63/81 Seco, Case C-272/94 Guiot) and minimum wage (Joined Cases C-369/96 and C-376/96 Arblade, Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte) are permissible. Article 56 TFEU and Directive 96/71/EC on posted workers precluded national rules which make the award of tender conditional on collective agreement if this covers only public contracts and only applies to a single sector on a regional basis not universally applicable (Case C-346/06 Rüffert). Linguistic restriction on document is justifiable: Case C-490/04 Commission v Germany (German construction rules).
 * Maintaining diversity in the media: Case C-288/89 Gouda.
 * Protection of fundamental rights: Case C-36/02 Omega citing Case C-112/00 Schmidberger.
 * National or regional culture: Case C-288/89 Gouda, Case C-250/06 United Pan-Europe Communications v Belgium, Case C-222/07 UTECA.
 * Protection of social security systems: Case C-158/96 Kohll, compare with Decker.
 * Promotion of research and development: Case C-281/06 Jundt, applying Case C-39/04 Laboratoires Fournier.
 * Protection of public health: Case C-108/96 Mac Quen, Case C-84/11 Susisalo, Case C-539/11 Ottica New Line di Accardi Vincenzo.
 * Other possible grounds: regular maritime transport, road safety, promoting student mobility; but ‘aims of a purely economic nature cannot justify a barrier to the fundamental principle of the free movement of goods’: Kohll.

Application of the justification mechanism: See for example market analysis plus indication of asymmetry of information in Joined Cases C-94/04 and C-202/04 Cipolla.

Capital
“Restrictions may nevertheless be permitted if the national rules pursue, in a non-discriminatory way, an objective in the public interest and if they observe the principle of proportionality, that is if the same result could not be achieved by other less restrictive measures”: Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch. A generic reference to ‘strategic imperatives and the need to ensure continuity in public services’ was not a sufficient basis: Case C-463/00 Commission v Spain (Spanish golden shares); likewise Case C-112/05 Commission v Germany (VW law).

Overriding factor serving the public interest include:
 * predictability and transparency of the mortgage system: Case C-222/97 Trummer and Mayer.
 * authorisation for the purchase of building land: Case C-302/97 Konle, but could be accepted only if the measure was applied in a nondiscriminatory manner and if the same result could not be achieved by other less restrictive procedures.
 * protection of the environment: Reisch.
 * ‘preserving agricultural communities, maintaining a distribution of land ownership which allows the development of viable farms and sympathetic management of green spaces and the countryside as well as encouraging a reasonable use of the available land by resisting pressure on land, and preventing natural disasters’: Case C-452/01 Ospelt.
 * public health: Case C-531/06 Commission v Italy (Italian pharmacies).
 * fight against tax evasion (Case C-282/12 Itelcar), but presumption of evasion not permitted: Case C-72/09 Établissements Rimbaud.
 * coherence of the tax system: Case C-204/90 Bachmann; but direct link required to justify Case C-322/11 K.

The justification needs to be borne out by facts: Case C-35/08 Cibrian Fernandez.

Mandatory requirements and distinctly applicable/discriminatory measures
More recently, mandatory requirements may justify even distinctly applicable/discriminatory measures, but proportionality test still applies: However, despite the examination in Case C-35/98 Verkooijen, ‘The free movement of capital, as a fundamental principle of the Treaty, may be restricted only by national rules which are justified by reasons referred to in Article [65(1) TFEU ] or by overriding requirements of the general interest and which are applicable to all persons or undertakings pursuing an activity in the territory of the host Member State’: para. 49 in Case C-367/98 Commission v Portugal (Portuguese golden shares).
 * Goods: Case C-120/95 Decker, Case C-2/90 Commission v Belgium (Walloon waste).
 * Services: Case C-42/02 Lindman, Case C-137/09 Josemans.