| Commission v Italy | |
|---|---|
 | |
| Court | European Court of Justice |
| Citation(s) | (2009) C-110/05, [2009] ECR I-519 |
| Keywords | |
| Free movement of goods Measures having equivalent effect to quantitative restrictions Internal measures Consumer restrictions Contents
| |
Commission v Italy (2009) C-110/05 is an EU law case, concerning the free movement of goods in the European Union. This case is commonly referred to as 'Italian Trailers', and is predominantly known for establishing the 'market access test'.
Italian law prohibited motorcycles and mopeds from pulling trailers (that is, it regulated the use of a product). It applied without regard to the origin of the trailers, but it only affected imported goods in fact. Italian manufacturers did not make such trailers to be towed by motorcycles. The Commission challenged the Italian law as being contrary to TFEU article 34.
AG Bot argued that this should be considered a measure equivalent to a quantitative restriction on trade, that required justification.
Court of Justice held that a measure hindering market access would be considered a measure equivalent to a quantitative restriction on trade, but that it could be justified on the facts.
33. It should be recalled that, according to settled case-law, 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 and are, on that basis, prohibited by Article 28 EC (see, in particular, Dassonville , paragraph 5).
34. It is also apparent from settled case-law that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz [1983] ECR 2445, paragraph 26; Case 120/78 Rewe‑Zentral ( Cassis de Dijon ) [1979] ECR 649, paragraphs 6, 14 and 15; and Keck and Mithouard , paragraphs 16 and 17).
35. Hence, in the absence of harmonisation of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect to quantitative restrictions even if those rules apply to all products alike (see, to that effect, Cassis de Dijon , paragraphs 6, 14 and 15; Case C‑368/95 Familiapress [1997] ECR I-3689, paragraph 8; and Case C‑322/01 Deutscher Apothekerverband [2003] ECR I-14887, paragraph 67).
36. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States for the purposes of the case‑law flowing from Dassonville , on condition that those provisions apply to all relevant traders operating within the national territory and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products (see Keck and Mithouard , paragraphs 16 and 17).
37. 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 28 EC, 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.
[...]
50. It is common ground that Article 56 of the Highway Code applies without regard to the origin of trailers.
51. The Commission has not specified whether its action concerns solely trailers which are specially designed for motorcycles or if it also covers other types of trailers. Those two types of trailers must therefore be distinguished when assessing the alleged failure to fulfil obligations.
52. With regard, first, to trailers not specially designed for motorcycles but intended to be towed by automobiles or other types of vehicle, it should be noted that the Commission has not established that the prohibition laid down in Article 56 of the Highway Code hinders access to the market for that type of trailer.
53. The Commission's action must therefore be dismissed in so far as it concerns trailers which are not specially designed to be towed by motorcycles and are legally produced and marketed in Member States other than the Italian Republic.
54. Secondly, the failure to fulfil obligations alleged by the Commission in regard to trailers which are specially designed to be towed by motorcycles and are legally produced and marketed in Member States other than the Italian Republic remains to be examined.
55. In its reply to the Court's written question, the Commission claimed, without being contradicted by the Italian Republic, that, in the case of trailers specially designed for motorcycles, the possibilities for their use other than with motorcycles are very limited. It considers that, although it is not inconceivable that they could, in certain circumstances, be towed by other vehicles, in particular, by automobiles, such use is inappropriate and remains at least insignificant, if not hypothetical.
56. It should be noted in that regard that a prohibition on the use of a product in the territory of a Member State has a considerable influence on the behaviour of consumers, which, in its turn, affects the access of that product to the market of that Member State.
57. Consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer (see, by analogy, Case C‑265/06 Commission v Portugal [2008] ECR I‑0000, paragraph 33, concerning the affixing of tinted film to the windows of motor vehicles). Thus, Article 56 of the Highway Code prevents a demand from existing in the market at issue for such trailers and therefore hinders their importation.
58. It follows that the prohibition laid down in Article 56 of the Highway Code, to the extent that its effect is to hinder access to the Italian market for trailers which are specially designed for motorcycles and are lawfully produced and marketed in Member States other than the Italian Republic, constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, unless it can be justified objectively.
59. Such a prohibition may be justified on one of the public interest grounds set out in Article 30 EC or in order to meet imperative requirements (see, in particular Case C‑420/01 Commission v Italy [2003] ECR I‑6445, paragraph 29, and Case C‑270/02 Commission v Italy [2004] ECR I‑1559, paragraph 21). In either case, the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary in order to attain it (Case C‑54/05 Commission v Finland [2007] ECR I‑2473, paragraph 38, and Case C‑297/05 Commission v Netherlands [2007] ECR I‑7467, paragraph 75).
The market access test, established in this case, has been criticised for lack of clarity due to the Court having never defined 'market access'. [1] Italian Trailers held that laying down requirements to be met by goods can constitute measures having equivalent effect to quantitative restrictions if they present an obstacle to their free movement, even if those rules apply to all products alike, demonstrating an excessively broad scope for what will constitute a measure equaling equivalent effect to a quantitative restriction. [2]
This test has, however, been the most preferred approach, having overridden the discrimination test introduced by Keck and Mithouard , [3] and attracted wide-spread academic support for replacing all three tests adopted since Keck with a unitary market access test. [4] The recent case of Ker-Optika evidenced a case regarding selling arrangements being decided using a market access test rather than the discrimination test outlined in Keck, [5] demonstrating how the courts may already be taking this approach.
Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93 is a 1995 European Court of Justice decision concerning freedom of movement for workers, freedom of association, and direct effect of article 39 of the Treaty of Rome.
Predatory pricing is a commercial pricing strategy which involves the use of large scale undercutting to eliminate competition. This is where an industry dominant firm with sizable market power will deliberately reduce the prices of a product or service to loss-making levels to attract all consumers and create a monopoly. For a period of time, the prices are set unrealistically low to ensure competitors are unable to effectively compete with the dominant firm without making substantial loss. The aim is to force existing or potential competitors within the industry to abandon the market so that the dominant firm may establish a stronger market position and create further barriers to entry. Once competition has been driven from the market, consumers are forced into a monopolistic market where the dominant firm can safely increase prices to recoup its losses.
The European single market, also known as the European internal market or the European common market, is the single market comprising mainly the 27 member states of the European Union (EU). With certain exceptions, it also comprises Iceland, Liechtenstein, and Norway and Switzerland. The single market seeks to guarantee the free movement of goods, capital, services, and people, known collectively as the "four freedoms". This is achieved through common rules and standards that all participating states are legally committed to follow.
The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. The free movement of workers means that nationals of any member state of the European Union can take up an employment in another member state on the same conditions as the nationals of that particular member state. In particular, no discrimination based on nationality is allowed. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU states that:
- Freedom of movement for workers shall be secured within the Community.
- Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
- It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
- The provisions of this article shall not apply to employment in the public service.
Home state regulation is a principle in the law of the European Union for resolving conflict of laws between Member States when dealing with cross-border selling or marketing of goods and services. The principle states that, where an action or service is performed in one country but received in another, the applicable law is the law of the country where the action or service is performed. It is also called home country control, country of origin rule, or country of origin principle. It is one possible rule of EU law, specifically of European Single Market law, that determines which laws will apply to goods or services that cross the border of Member States.
Article 101 of the Treaty on the Functioning of the European Union prohibits cartels and other agreements that could disrupt free competition in the European Economic Area's internal market.
Rewe-Zentral v Bundesmonopolverwaltung für Branntwein (1979) Case C-120/78, popularly known as Cassis de Dijon after its subject matter, is an EU law decision of the European Court of Justice. The Court held that a regulation applying to both imported and to domestic goods that produces an effect equivalent to a quantitative import restriction is an unlawful restriction on the free movement of goods. The case is a seminal judicial interpretation of article 34 of the Treaty on the Functioning of the European Union. In the same ruling, the Court established the so-called rule of reason, allowing non-discriminatory restrictive measures to be justified on grounds other than those listed in article 36 TFEU.
Procureur du Roi v Benoît and Gustave Dassonville (1974) Case 8/74 is an EU law case of the European Court of Justice, in which a 'distinctly applicable measure of equivalent effect' to a quantitative restriction of trade in the European Union was held to exist on a Scotch whisky imported from France.
Reference for a Preliminary Ruling in the Criminal Proceedings against Bernard Keck and Daniel Mithouard (1993) C-267/91 is an EU law case, concerning the conflict of law between a national legal system and European Union law. The Court found that "selling arrangements" did not constitute a measure having equivalent effect to a quantitative restriction on trade between Member States of the European Community, as it was then. As a result, the 'discrimination test' was introduced to identify such selling arrangements.
Konsumentombudsmannen v De Agostini (1997) C-34/95 is an EU law case, concerning the free movement of goods in the European Union.
Konsumentombudsmannen v Gourmet AB (2001) C-405/98 is an EU law case, concerning the free movement of goods in the European Union.
Deutscher Apothekerverband v 0800 DocMorris NV (2003) C-322/01 is an EU law case, concerning the free movement of goods in the European Union.
Commission v France (1997) C-265/95 is an EU law case concerning the free movement of goods in the European Union.
Alpine Investments BV v Minister van Financiën (1995) C-384/93 is an EU law case, concerning the free movement of services in the European Union.
Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (2004) C-36/02 is an EU law case, concerning the freedom to provide services and the free movement of goods in the European Union.
Liga Portuguesa de Futebol Profissional and Bwin International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa (2009) C‑42/07 is an EU law case, concerning the free movement of services in the European Union.
Commission v Italy (2011) C-565/08 is an EU law case, concerning the freedom of establishment in the European Union.
Deutsche Telekom AG v Commission (2010) C-280/08 is a European competition law case relevant for UK enterprise law, concerning telecommunications.
Ker-Optika bt v ÀNTSZ Dél-dunántúli Regionális Intézete [2010] ECR, Case C-108/09 is an EU law case concerning a conflict of law between Hungarian national legislation and European Union law. The Hungarian legislation regarding the online sale of contact lenses was considered with regards to whether it was necessary for the protection of public health, and it was concluded that this could have been done by less restrictive measures. Despite the internal measure in this case being categorised as a selling arrangement, which would generally be determined by the discrimination test established in Keck, the Court went on to use a market access test, as per Italian Trailers. Thus, this case is crucial in the recent development of the tests for determining measures equaling equivalent effect.