User:Kaihsu/IMlawC4

European internal market.

Module C: Beyond discrimination.

Chapter 4: Proportionality.

Application of the proportionality principle
For a restricting measure to be justified with proportionality, it must be (Case C-368/95 Familiapress):
 * suitable for securing the attainment of the objective that they pursue (Case C-222/97 Trummer and Mayer), and
 * necessary (absence of any less restrictive means; Case C-265/06  (tinted windows)); but burden of proof is not exhausive (Case C-110/05 Commission v Italy (trailers)).

Goods
Labelling preferred over name restriction: Case 178/84 Commission v Germany (beer purity).

Restriction is not proportionate if the same public interest is already protected in the state of origin: Case 124/81 Commission v UK (UHT).

Persons
For social policy choices made by the national legislatures, the Union courts exercise a light standard of review, deferring to the legislator’s evaluation to the extent that it is reasonable: Case C-213/05 Geven.

“The circumstance that a person is a national of the Member State granting the benefit at issue and lived in that State for more than 20 years may be sufficient to establish a connection between that State and the recipient of the benefit. In those circumstances, the requirement of residence throughout the period of payment of the benefit concerned must be held to be disproportionate, since it goes beyond what is necessary to ensure that such a connection exists”: C-499/06 Nerkowska.

The recruitment and training of young players had to be accepted as a legitimate goal, but in the case in hand the damages to be paid by the young player were unrelated (and therefore unnecessary) to the actual costs of training incurred by his original club: Case C-325/08 Olympique Lyonnais.

Services
If action were taken in the event of reflagging irrespective of whether the owner’s exercise of its right of freedom of establishment was liable to have a harmful effect on the work or conditions of employment of its employees (for example, if the vessel were registered in a State giving workers a higher level of social protection than they had previously enjoyed), then such action would go beyond what was necessary: Case C-438/05 Viking Line.

Trade unions violate Article 56 TFEU where they take collective action in order to secure conditions which are not within the nucleus of mandatory rules provided for in Directive 96/71/EC (the Posted Workers Directive): Case C-341/05 Laval.

Requirements for documentation that can be acquired otherwise is not necessary: Case C-319/06 Commission v Luxembourg (Luxembourg labour protection rules).

A requirement could be justified on the basis that the protection of road traffic accident victims required that drivers had to be able to take out motor insurance: Case C-518/06 Commission v Italy (Italian motor insurance).

2005 UNESCO Convention on Diversity of Cultural Expression links language and culture: Case C-222/07 UTECA.

Refusal by a national social security organisation to reimburse the costs of hospitalisation of its members in private establishments abroad is not necessary; prior authorisation or a tariff scale of maximum reimbursements are alternatives: Case C-444/05 Stamatelaki.

The Member State must pursue the public interest goal in a consistent and systemic manner: Case C-89/09 Commission v France (French biomedical analysis laboratories).

Gambling
A host Member State could take the view that the fact that a service-provider was controlled by another Member State from where it offered services via the internet was not a sufficient assurance that national consumers would be protected against fraud and crime: Case C-42/07 Liga Portuguesa de Futebol Profissional.

A measure as restrictive as the creation of a monopoly must be accompanied by measures to show that the monopoly holder will pursue that objective in a consistent and systematic manner; advertising of the monopoly’s services was not necessarily inconsistent with the limitation of gambling, since it could be appropriate to seek to channel bettors away from illicit betting activities and towards those of the regional monopoly; there could be no obligation on Member States to apply the principle of mutual recognition to authorisations granted by other Member States to carry out gambling activities: Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07 Stoß.

The requirement of consistent and systemic pursuit of the goal of curbing addiction to games of chance is not breached where the holder of an exclusive right under national law seeks to make their product attractive by offering new games and by means of advertising: Case C-258/08 Ladbrokes Betting & Gaming and Ladbrokes International.

A transitional period saving an offending rule is inconsistent with the principles of uniformity and unity of Union law: C-409/06 Winner Wetten.

Capital
For capital movement, declaration is preferred over prior authorisation: Joined Cases C-348/93 and C-416/93 Bordessa and Joined Cases C-163/94, C-165/94 and C-250/94 Sanz de Lera.

Prior authorisation for the purchase of building land is not essential: Case C-302/97 Konle repeating Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch. In contrast, prior authorisation is suitable for agricultural land to avoid irreversible impairment: Case C-452/01 Ospelt.

Prior authorisation is necessary for foreign direct investment to counter the dangers of a genuine and sufficiently serious threat to public policy and public security in Case C-54/99 Église de Scientologie; but an opposition system is viewed more favourably than a prior authorisation system in Case C-383/98 Commission v Belgium (Belgian golden shares). See also Case C-367/98 Commission v Portugal (Portuguese golden shares).

Restricting who could own and operate a pharmacy was appropriate: Case C-531/06 Commission v Italy (Italian pharmacies), Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes.

The case-law on intra-Union restrictions cannot be transposed in its entirety to movements of capital between Member States and third countries: Case C-72/09 Établissements Rimbaud. However, the goal of preserving the coherence of the tax system and the effectiveness of fiscal supervision cannot justify the restriction in a disproportionate inheritance tax rule that does not grant the same allowance to third-country nationals; Article 63(1) TFEU applies: Case C-181/12 Welte.

Goods
“First, the prior authorisation procedure must be readily accessible and capable of being completed within a reasonable time and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts. Secondly, refusal to authorise marketing must be based on a detailed assessment of the risk to public health, based on the most reliable scientific data available and the most recent results of international research”: Case C-95/01 Greenham and Abel.

If producers established outside Germany use considerably more nonreusable packaging than German producers, a measure on deposit and return obligations has equivalent effect to a quantitative restriction; mandatory requirements can still be invoked for restrictions not applying equally to imports and domestic products in fact; but proportionality requires that the concerned has a reasonable transitional period to adapt and can actually participate in an operational system: Case C-309/02 Radlberger Getränkegesellschaft; see also Case C-320/03 Commission v Austria (heavy lorries), Case C-142/05 Åklagaren v Mickelsson and Roos.

Persons
A refusal decision to recognize a professional qualification must state reasons to enable review: Case 222/86 Heylens.

Services
For a prior authorization scheme for cabotage, it must be possible to demonstrate that there is a real public service need; it must also be demonstrated that an authorisation scheme is necessary to be able to impose public service obligations and that it is proportionate to the aim pursued; such a scheme cannot render legitimate discretionary conduct on the part of the national authorities; it must be based on objective, non-discriminatory criteria which are known in advance to the undertakings concerned: Case C-205/99 Analir. The criteria for award of a status had to be suitable to achieve the goal: Case C-250/06 UPC Belgium.

“In determining whether such national legislation complies with the principle of proportionality, account must be taken of the following considerations in particular:
 * for a prior administrative authorisation scheme to be justified even though it derogates from those fundamental freedoms, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion, so that it is not used arbitrarily;
 * a measure introduced by a Member State cannot be regarded as necessary to achieve the aim pursued if it essentially duplicates controls which have already been carried out in the context of other procedures, either in the same State or in another Member State;
 * a prior authorisation procedure will be necessary only where subsequent control must be regarded as being too late to be genuinely effective and to enable it to achieve the aim pursued;
 * a prior authorisation procedure does not comply with the fundamental principles of the free movement of goods and the freedom to provide services if, on account of its duration and the disproportionate costs to which it gives rise, it is such as to deter the operators concerned from pursuing their business plan”: Case C-390/99 Canal Satélite Digital.

Capital
Rules that do not meet the requirements of the principle of legal certainty, cannot be considered to be proportionate to the objective pursued: Case C-282/12 Itelcar.

Prior authorisation lacking precise, objective criteria went beyond what was necessary to attain the objective indicated: Case C-483/98 Commission v France (French golden shares), Case C-463/00 Commission v Spain (Spanish golden shares). See also Case C-35/08 Cibrian Fernandez.

Restrictions should only apply when the objectives of a public policy might be compromised, and should be supported by a formal statement of reasons and could be the subject of an effective review by the courts: Case C-383/98 Commission v Belgium (Belgian golden shares).