Month: May 2018

Following Commission v Italy (trailers) the Keck exception has been completely substituted in favour of a ‘unified market access test’, at the expense of national sovereignty.

Discuss.

The heavily judicially criticised decision of Keck & Mithouard [1993] (on this see Oliver on Free Movement of Goods) was an undoubted game-changer as regards the terrain of the ‘free movement of goods’. Heavily influenced by the academic contributions of Eric White (see in particular In search of the limits to Article 30 (EEC Treaty)) there was no doubt that it was underpinned by a judicial agenda that set out to limit the numbers of cases that traders were bringing before the Court (ECJ/CJEU) following the expansive consequences of the Dassonville/Cassis de Dijon line of judgments.

It established, what in hindsight some have considered a false dichotomy, between ‘product requirements’, and ‘selling arrangements’, provided that two criteria (established in para 16) are fulfilled; these being that:

i. the measure applies to all traders
ii. and affects, in the same manner (in law and fact) the marketing of both domestic and

imported products

Though seemingly simplifying the area, and certainly formulated with the intention of decreasing the levels of litigation, it is a decision that has been heavily criticised; and even, in some eyes, overruled by in particular Commission v Italy (trailers) [2009] and (to a degree) Scotch Whisky Association [2015] (which entirely side-stepped Keck as regards ‘certain selling arrangements’) with a shift towards an ‘unified market access test’ paradigm.

This was established in para 37 of Commission v Italy (trailers) [2009] where it was stated that:

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.

The net result of this was (as the question suggests) to once more swing the pendulum back towards empowering the Court to override regulations/legislation that Member States had put in place i.e. market prioritisation at the expense of national sovereignty; carrying with it a real danger of the Court trammelling the very Member State nuances (social goals/non- economic objectives) that Keck was designed to protect.

In practice the Keck test prove difficult for the Member State/s to establish, and in many instances, matters were simply returned to the national courts for decision.

Indeed, case law has established that practically, situations are rarely as black and white as the Keck ‘dichotomy’ might suggest; with cases such as De Agostini [1995] and Gourmet [2001] affirming that in particular ‘advertising bans/restrictions’ may well impact non- domestic traders disproportionally. But with all its attendant difficulties it may still be be a potentially more sophisticated and workable formula than the ‘bulk measure’ approach of Commission v Italy (trailers) [2009] which greatly widens the scope of Articles 34/35 and places a heavy burden of provenance on the Member States.

EU law has never had the same rigid hierarchical relationship with precedence that is found in say the case law (‘common law’) of England & Wales, and this has led to something of a ‘pick and mix’ attitude by the CJEU when negotiating these paradigms.

In a 2010 essay, forming part of a collection celebrating the Classics of EU Law 50 years on from the Rome Treaty Allan Rosas noted:

“Despite the criticism expressed against Keck & Mithouard in legal literature and by some Advocate General, the subsequent case law of the ECJ has by and large applied a combination of Dassonville, Cassis de Dijon and Keck to assess alleged restrictions to the free movement of goods.”

So it seems likely that such an approach will endure, with the Court (in spite of the decisions of Commission v Italy (trailers) [2009] and Scotch Whisky [2015]) still having Keck in the armoury as and when Member State dissatisfaction (and this is as much political as it is legal) boils over.

All is not lost, and the Court still has recourse to the doctrine of ‘proportionality’ to supplement the Article 36 and Cassis (‘mandatory requirements) justifications, and this has certainly been used effectively to soften the potential impact of a return to the ‘market access’ paradigm (see Case 36/02 Omega Spielhallen [2004]) allowing Member States to feel that they still have a voice that is listened to at the negotiation tables of Brussels.

Read the case Case C-333/14, Scotch Whisky. Explain, in short, the way in which the Court assesses justifications and proportionality. What did the national court decide (see https:// www.supremecourt.uk/cases/docs/uksc-2017-0025-judgment.pdf)?

Case 333/14 concerned a request for a preliminary ruling (Article 267 TFEU) from the Court of Session concerning the validity of the national legislation and a draft order relating to the imposition of a minimum price per unit of alcohol (‘MPU’) with respect to the retail selling of alcoholic drinks in Scotland; and as such concerned proceedings between the Scotch Whisky Association (and other interested parties) on the one hand, and the Lord Advocate and the Advocate General for Scotland on the other.

With a general consensus (para 32) that such measures amount to what Article 34 describes as ‘measures having an equivalent effect to quantitative restrictions’ (MEE) much of the judgment concerns on what grounds a Member State may seek to justify potential derogations, and by what criteria the ‘proportionality of such measures’ may be established.

Specifically concerning the interpretation of Regulation (EU) No 1308/2013 the Court were concerned to ensure “measures should be taken in a way that avoids market disturbances and that ensures equal access to the goods and equal treatment of purchasers”.

On 25 September 2012 the Commission issued its opinion, that the national measure concerned constituted a quantitative restriction within the meaning of Article 34 TFEU which could not be justified under Article 36 TFEU; seemingly closing the door on legislative measures for fixing minimum retail prices, when other permissible fiscal measures were already available.

justifications:

At 12 (3) we see the Court beginning to explore the ‘protection of human health’ justification, and the extent to which national courts are at liberty to consider “information, evidence or other materials”.

Whilst at 12 (4) we see the Court openly wondering:

under Article 36 TFEU, to what extent is the national court required, or entitled, to form — on the basis of the materials before it — an objective view of the effectiveness of the measure in achieving the aim which is claimed; the availability of at least equivalent alternative measures less disruptive of intra-EU competition; and the general proportionality of the measure?

With questions (5) and (6) concerning respectively ‘justification’ and ‘proportionality’.

We see in the Court’s answer to question 1 (at para 29) that it sets the stage for a consideration of these matters in greater depth when it states:

Consequently, the answer to the first question is that the Single CMO Regulation must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, which imposes an MPU for the retail selling of wines, provided that that measure is in fact an appropriate means of securing the objective of the protection of human life and health and that, taking into consideration the objectives of the CAP and the proper functioning of the CMO, it does not go beyond what is necessary to attain that objective of the protection of human life and health.

At para 33 we see the Court (referring to Case 456/10 ANETT [2012]) establishing orthodoxy where it states:

“a measure having equivalent effect to a quantitative restriction on imports can be justified, for example, on grounds of the protection of the health and life of humans, under Article 36 TFEU, only if that measure is”:

1. appropriate (‘suitability’) for securing the achievement of the objective pursued and
2. does not go beyond what is necessary (‘necessity’) in order to attain it

At para 35 we see the Court clarifying the scope of Article 36 TFEU suggesting: “it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they wish to assure.” (Case 170/04 Rosengren and Others [2007])

With para 37 further clarifying:

“that a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner” (Case 161/09 Kakavetsos-Fragkopoulos [2011])

proportionality:

Para 40 affirms that even if a measure is deemed both ‘appropriate’, and of reasonable ‘scope’ (criteria ii. above) such a measure needs to be ‘proportionate’.

This subject is considered in more detail in the Court’s answers to questions 4 and 6; with para 53 establishing the principle:

that [any legislation] is [required to be]:

i. necessary in order to achieve the declared objective, and
ii. that that objective could not be achieved by prohibitions or restrictions that are less

extensive, or
iii. that are less disruptive of trade within the European Union

paras 54/55 establish the burden of proof:

(54) the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and specific evidence substantiating its arguments (Case 42/02 Lindman)

(55) that burden of proof cannot extend to creating the requirement that, where the competent national authorities adopt national legislation imposing a measure such as the MPU, they must prove, ‘positively’, that no other conceivable measure could enable the legitimate objective pursued to be attained under the same conditions

Para 59 helpfully clarifies:

It follows from the foregoing that Article 36 TFEU must be interpreted as meaning that, where a national court examines national legislation in the light of the justification relating to the protection of the health and life of humans, under that article, it is bound to examine

objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO.

With Para 66 answering the question outlined in 12 (3) above:

Consequently, the answer to the third question is that Article 36 TFEU must be interpreted as meaning that the review of proportionality of a national measure, such as that at issue in the main proceedings, is not to be confined to examining only information, evidence or other material available to the national legislature when it adopted that measure. In circumstances such as those of the main proceedings, the compatibility of that measure with EU law must be reviewed on the basis of the information, evidence or other material available to the national court on the date on which it gives its ruling, under the conditions laid down by its national law.