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Published online by Cambridge University Press: 27 October 2017
There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.
1 For the purposes of this essay, the freedom to provide services will generally be considered as distinct from the free movement of persons (which in turn will include free movement of workers and the right of establishment). Although the freedom to provide services may require a movement of persons (which leads some authors to include it in the context of the free movement of persons) that is increasingly not the case.
2 Joined Cases C–267 and C–268/91 Keck and Mithouard [1993] ECR I–6097.
3 Excluding the free movement of capital.
4 Case 8/74 Dassonville [1974] ECR 837.
5 Para 5.
6 See Case 120/78 Cassis de Dijon [1979] ECR 649, para 8.
7 On the problems of such understanding, see below.
8 Case 120/78 Cassis de Dijon [1979] ECR 649, para 8.
9 Ibid., para 14.
10 Further on this point, see Maduro, M. P. We The Court—The European Court of Justice and the European Economic Constitution (Oxford, Hart Publishing, 1998) ch. 3 Google Scholar.
11 Case 286/81 Oosthoek’s [1982] ECR 4575.
12 Ibid., para 15.
13 See the discussion below on how this notion may be finding its way back to the case law of the Court.
14 Cases 60 and 61/84 Cinéthèque [1985] ECR 2605.
15 Paras 21 and 22, emphasis added.
16 See Oosthoek’s, above n 11; Case C—362/88 GB–INNO [1990] ECR 1—667; Case 382/87 Buet (Canvassing) [1989] ECR 1235; Joined Cases C—1/90 and C—176/90 Aragonesa [1991] ECR 1—4151; and Case C-126/91 Yves Rocher [1993] ECR 1—2361.
17 Case 238/82 Duphar [1984] ECR 523 and Case C—369/88 Delattre [1991] ECR 1—1487.
18 For example, Case 29/83 Leclerc (Prix du Livre) [1985] ECR 1.
19 Case 302/86 Commission v. Denmark [1988] ECR 4607.
20 Case C—145/88 Torfaen Borough Council [1989] ECR 3851, Case C—312/89 Conforama [1991] ECR 1—991, Case C—332/89 Marchandise [1991] ECR 1—1027, Case C—169/91 Stoke-on-Trent [1992] ECR 1—6635.
21 Case C—18/88 RTT (Telephone Equipment) [1991] ECR 1—5941.
22 Case C—179/90 Merci Convenzionali Porto di Genova [1991] ECR 1—5889.
23 See Maduro, above n 10, ch. 3.
24 This expression is taken from Bettati, M. ‘Le “Law-Making Power” de la Cour’ (1989) 48 Pouvoirs 57, at 62.Google Scholar
25 See Maduro, above n 10, ch. 3.
26 See Maduro, above n 10, ch. 3.
27 See, for example, Watson, P. ‘Freedom of Establishment and Freedom to Provide Services: Some Recent Developments’ (1983) 20 CMLRev 767 Google Scholar.
28 Case 71/76 Thieffry v. Conseil de l’Ordre des Avocats à la Cour de Paris [1977] ECR 765.
29 Para 17.
30 Para 19.
31 Case 279/80 Webb [1981] ECR 3305.
32 Para 20. See also Joined Cases 110 and 111/78 Van Weseamael [1979] ECR 35: ‘Such a requirement is not objectively justified when the service is provided by an employment agency which comes under the public administration of a Member State or when the person providing the service is established in another Member State and in that State holds a license issued under conditions comparable to those required by the State in which the service is provided and his activities are subject in the first State to proper supervision covering all employment agency activity whatever may be the State in which the service is provided’, para 30 (emphasis added).
33 This confirms that the important question on the free movement of goods is not whether the Court should or should not use a balance test but when this test should be used.
34 Joined Cases 110 and 111/78 Van Weseamael [1979] ECR 35, para 29.
35 Para 17.
36 Case 205/84 Commission v. Germany [1986] ECR 3755, para 29.
37 The Sunday Trading Cases are a perfect example of this. The rules where initially considered as measures having an equivalent effect to quantitative restrictions on imports independently on whether or not those imports where subject to similar rules in their country of origin.
38 Para 25 of AG Opinion.
39 See above.
40 Mainly in the area of goods and services. See Article 100A (now Article 95) EC.
41 Joined Cases C–267 and C–268/91 Keck and Mithouard [1993] ECR I–6097.
42 See below.
43 Para 14.
44 Para 15, citation omitted and emphasis added.
45 Para 16.
46 Para 16, citation omitted and emphasis added.
47 Weatherill, S. ‘After Keck: Some Thoughts on How to Clarify the Clarification’ (1996) 33 CMLRev 885 Google Scholar.
48 See, notably: Gormley, L. ‘Two Years After Keck’ (1996) 19 Fordham International Law Journal 1996, 866 Google Scholar; Mattera A. ‘De l’arrêt “Dassonville” à l’arrêt “Keck”: l’obscure clarté d’une jurisprudence riche en principes novateurs et en contradictions’ (1994) RMUE 117.
49 The literature on Keck is infinite. The following are some of my favourites, representing a wide range of different views: Reich, N. ‘“The November Revolution” of the European Court of Justice: Keck, Meng and Audi Revisited’ (1994) 31 CMLRev, 459 Google Scholar; Chalmers D. ‘Repackaging the Internal Market—The Ramifications of the Keck Judgement’ (1994) ELRev 385; Bernard N. ‘Discrimination and Free Movement in EC Law’ (1996) ICLQ 82; Weiler, J. ‘The Constitution of the Market Place: Text and Context in the Evolution of the Free Movement of Goods’, in Craig, P and de Burca, G. The Evolution of EU Law (Oxford, OUP, 1999) at 349 Google Scholar, Weatherhill, above n 47; Gormley, above n 48; Mattera, above n 48.
50 White, E. ‘In Search of the Limits to Article 30 of the EEC Treaty’ (1989) 26 CMLRev 235 Google Scholar. The distinction can also be related to a previous proposal by Marenco in ‘Pour une interprétation traditionelle de la mesure d’effet equivalent à une restriction quantitative’ (1984) CDE 291. According to this author indistinctly applicable national measures could be classified as one of two types: measures that require products to be manipulated and those that do not require such manipulation. Briefly restated, the argument was that measures that require changes to products such as labelling, packaging, composition or controls normally impose costs on imported products (in the form of double-controls, re-labelling etc.) which are not imposed on similar national products (see 308–09, 312, 320).
51 Weiler, above n 49, at 372.
52 Case C–412/93 Leclerc v. TF 1 Publicité [1995] ECR I–179 and Case C–6/98 PRO Sieben Media [1999] ECR I–7599
53 ‘legislation which prohibits televised advertising within a certain sector concerns selling arrangements since it prohibits a particular form of promotion of a particular method of marketing products’ (PRO Sieben Media, para 45 and Leclerc, para 22).
54 Case C–368/95 Vereinigte Familiapress v. Heirich Bauer Verlag [1997] ECR I–3689.
55 Para 11.
56 Case C–470/93 Mars [1995] ECR I–1923.
57 In Aher-Waggon, the Court subjected the German prohibition of a first national registration for aircraft exceeding certain noise limits to a test of proportionality: Case C–389/96 Aher-Waggon [1998] ECR I–04473 (in particular paras 18–25). See also Case C–390/99 Canal Satellite Digital Judgment of the Court of 22 January 2002, nyr (mainly, para 30) and Case C–123/00, Christina Bellamy, [2001] ECR I-02795.
58 Case C–189/95 Harry Franzén [1997] ECR I–0599
59 See paras 69 to 76.
60 Case C–254/98 Schutzverband gegen unlauteren Wettbewerb [2000] ECR I–09187.
61 Para 71.
62 According to Advocate-General Tesauro, nothing has changed in the Court’s approach to measures affecting product requirements: ‘[t]hose measures made marketing subject to certain requirements that, if applied to imported products, compelled the producer to incur additional costs in order to gain access to the market of another Member State’; see ‘The Community’s Internal Market in the light of the Recent Case-law of the Court of Justice’ (1995) 15 YEL 1, at 4.
63 Case 286/81 Oosthoek’s [1982] ECR 4575.
64 Para 15.
65 Ibid.
66 Something which was proposed some years ago by Defalque (‘Le concept de discrimination en matière de libre circulation des marchandises’ (1987) CDE 471, mainly at 481). Of course, this means that any sort of legislative disparity is a discrimination and also does not take into account that those domestic products may in turn have to adapt to the standards of the States to which they may also be exported.
67 Case C–350/97 Monsees [1999] ECR I–02921.
68 See paras 23 to 31.
69 Para 29.
70 Case C–405/98 Gourmet International [2001] ECR I–01795
71 Joined Cases 34/95 to C–36/95 De Agostini and TV-Shop [1997]ECR I–3843.
72 Paras. 19–21.
73 Para. 17.
74 Weatherill, above n 47.
75 ‘Exploring the Outer Limits—Restrictions on the Free Movement of Goods and Services’ (1999) 10 EBLRev 252, notably at 272.
76 Weiler, above n 49 at 372.
77 Ibid., at 373.
78 Ibid., at 372–73. Weiler departs from a parallelism with Article XI of the GATT as recently interpreted by a panel and the Appellate Body in the Beef Hormones Case. As Weiler describes, the recent developments of the WTO trade law appear to highlight a two-fold strategy regarding trade restrictions: one path, corresponding to the more traditional interpretation of GATT, focusing on discrimination oriented restrictions on trade; another path, derived from a reborn Article XI, focuses on obstacles-oriented prohibition on points of entry and/or market access denial (at 358).
79 Case C–76/90 Säger [1991] ECR I–4221, paras 12 and 15. See, confirming this decision: Case C–275/92 Schindler [1994] ECR I–1039, Case C–3/95 Reisebüro Broede [1996] ECR I–6511, and Case C–398/95 Syndesmos ton en Elladi Touristikon kai Taxidiotikon Grafeion [1997] ECR I–03091
80 Case C–55/94 Gebhard [1995] ECR I–4165, para 37.
81 Case C–415/93 Bosman [1995] ECR I–4921, paras 102–104. This decision, however, comes in the sequence of a progressive activism of the Court in this area of the law. According to Johnson and O’Keeffe, writing in 1994, also in the area of free movement of workers, the Court has, ‘over the past five years, begun to demonstrate a more open hostility towards national measures which although not discriminatory, are capable of hindering the free movement of workers’. Johnson, E. and O’Keeffe, D. ‘From Discrimination to Obstacles to Free Movement: Recent Developments Concerning the Free Movement of Workers 1989–1994’ 31 (1994) CMLRev 1313 at 1314Google Scholar.
82 Weatherill makes an excellent attempt to make a global and common reading of the recent case-law on the four freedoms. However, even this author appeared to recognise, at that time, that his reading was more a proposal to the Court (offering the possibility to construct a future single approach to the different freedoms) than a faithful interpretation of the decisions of the Court. See Weatherill, above n 47.
83 Case C–234/97 Bobadilla [1999] ECR I–04773
84 See Case C–378/97 Wijsenbeek [1999] ECR I–06207
85 Case C–250/95 Futura Participations [1997] ECR I–2471.
86 See Joined Cases C–34, 35 and 36/95 Konsumentombudsmannen (KO) v. De Agostini [1997] ECR I–1141, and the comment by Cruz, Vilaça ‘An Exercise on the Application of Keck and Mirhouard in the Field of Free Provision of Services’ in Mélanges en Hommage à Michel Waelbroek (Bruxelles, Bruylant, 1999)Google Scholar, who argues, however, that it would have been possible for the Court to apply Keck in this Case and arrive to the same final outcome (see 806–07).
87 See Case C–67/98 Questore di Verona [1999] ECR I–07289; Case C–124/97 Markku Juhani [1999] ECR I–06067. See also, the Commission decision to start an infringement proceeding against Germany over restrictions on the marketing of CDs (for violation of the freedom to provide services).
88 Ibid.
89 Case C–384/93 Alpine Investments [1995] ECR I–1141. Whether that was actually the case is a different question. See Maduro, M. P. ‘The Saga of Article 30 EC Treaty’ (1998) 5 MJ 298, at 315Google Scholar.
90 Of course, it is still possible to complement the first test with a second one designed to capture measures whose economic impact on the products would amount to a prevention of market access. But, if that is done, the legal certainty and judicial restraint brought by the original test will be lost.
91 Gormley, above n 48 at 885.
92 As stated above the most emblematic decisions of this expansion were the rulings in Sager, Gebhart and Bosman. See my analysis of this trend in We, The Court above n 10, and in ‘The Saga of Article 30’, above n 86.
93 See the exceptions imposing unanimity voting in the specific empowering clauses of the free movement of persons (Articles 42 and 47) and, for the other legislative areas affecting the free movement of persons, the exclusion of majority voting for legislation on free movement of persons adopted under the internal market competences (Article 95, n.2).
94 According to Johnson and O’Keeffe, free movement of workers is ‘an area of law which, in recent years at least, has received scant legislative attention from the Council’, see above n 78 at 1313.
95 See Joined Cases C—418/93, C—419/93, C-420/93, C -421/93, C—460/93, C—461/93, C-462/93, C-464/93, C—9/94, C—10/94, C—11/94, C—14/94, C—15/94, C—23/94, C—24/94 and C—332/94 Semeraro [1996] ECR 1—2975.
96 See, for example, Maduro, above n 10 at 166 ff.
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