Free Movement of Goods (Article 34 TFEU) + 'measures having an equivalent effect' and public-interest justification - Lecture 6 - EU Law

What are the 3 essential statutes which underpin the social market economy within the EU?

• Article 3 par. 1 TEU

• Article 3 par 3. 3 TEU

• Article 26 TEU on the Internal Market

What do the 3 statutes (Article 3 par. 1, Article 3 par. 3 and Article 26) outline?

• Article 3 par. 1 TEU outlines the aim to promote peace, its values and well-being of its peoples

• Article 3 par. 2 TEU outlines the establishment of an internal market, a social market economy which aims for full employment, social progress and advancement.

• Article 26 TFEU outlines the functioning of the internal market without internal frontiers and ensuring movement of goods, persons, services and capital

What is Article 35 TEU and why is it important in relation to free movement of goods?

What is Article 35 TEU (in relation to Article 26 TEU)? → It outlined that qunatitative restrictions on exports and all measures being equivalent effect shall be prohibited between member states.

Why is important? → It is NOT just a objective legal provision, but a fundamental, subjective economic freedom which private actors might invoke before a domestic court - such as in stances where court decision or national law stands in your way to freedom of goods.

What is Article 114 TEU and why is it important in relation to both the free movement of goods and Article 26 TFEU?

What is Article 114 TFEU? → It outlines the approximation of law, which is a competence known for the EU legislature, in achievement of objectives set out in Article 26 TEU - here is a competence norm where the EU legislature can intervene and produce directives, regulations to regulate the internal market.

Importance →

• Hence when we ask ourselves where these directives come from and why the EU has a competence to act here, the answer is Article 114 TEU.

• Article 114 TEU allows the EU legislaure to adopt measures for the approximation of provisions laid down by law and allows the EU to harmonise/approximate national laws to achieve the internal markets.

What is the EU’s intention is creating legislation such as Article 34 TEU and Article 267 TFEU relating to social market economy/internal market? Why is the market enforced through EU law?

• There is a double point with the implementation of Article 34 TEU as an economic freedom but also the EU has an objective interest in the provision by instrumentalising citizens as if they were attorney generals to invoke Article 34 to deepen the Common Market especially where situations with member states are weakening

• The ECJ, through purposive interpretation of the Treaty provisions, encouraging market-actors to invoke their fundamental economic freedoms (such as free movement of goods) before domestic courts,

• CJEU will encourage further preliminary references to deepen the common market

  • An example is that an EU citizen will invoke article 34 TEU, which will prompt the domestic courts to make a reference to CJEU for preliminary reading and CJEU provides the ruling on Article 34.

What does Article 34 TFEU entail? What is its fundamental role?

What is Article 34? → It involves quantitative restrictions on imports or ‘measures having an equivalent effect’ which shall be prohibited between member states.

What is its fundamental role? → Article 34 TEU removes fundamental economic barriers and getting rid of protectionist measures to ensure a common market by providing people with economic freedoms.

What does Article 36 TFEU entail? And how does this relate to Article 34 TFEU, what is the dynamic between these two legislations?

This article gives member states the chance to justify their domestic measures (usually attempts to prohibit and restrict trade between member states for whatever reason) on the grounds of public policy and other domestic concerns - providing exemption from Article 34 TFEU.

These trade barriers are allowed to continue provided it is in line with requirements of public interest justifications. Though, removal of barriers isnt absolute.

How does Weatherhill explain Article 34 TFEU (‘measures having equivalent effect’)? Why does he call it a two-part judicial inquiry, and what does this entail in summary?

Weatherhill describes Article 34 TFEU as a two-part judicial inquiry, which manifests in the following steps of -

1. First, the court considers whether (a challenged) domestic measure constitutes a trade barrier (‘measure having an equivalent effect’) and then provided the threshold is crossed and a barrier to inter-state trade is shown to exist, then …

2. Secondly, the court will continue by examining the public-interest justification (for the trade barrier) advanced by the member state

In summary, they check if -

1. Is there a trade barrier?

2. Is the trade barrier justified?

(they are seperate components, that must not be confused together!)

What does Gormley say in relation to when a member state successfully pleads Article 34 TFEU and fulfills the two-part judicial inquiry?

• Finding that a measure is justified does not mean that such a measure ceases to be a measure having equivalent effect (as in, it is still a restriction/trade barrier, and it doesn’t cease to be, it is merely accepted)

• It merely means that in the instant case it is acceptable in all the circumstances (having regard to the purpose, the necessity and the proportionality of the measure.

Dassonville on Article 34 TFEU (‘measures having equivalent effect’) in practise, what is the context, issue and outcome? And what did the Dassonville case create?

Context → The whisky was imported with the brand names ‘Johnny Walker’ and ‘Vat 69’ via France, where Dassonville purchased it from French importers and distributors. Before the whisky was sold in Belgium, the Dassonvilles added labels to the bottles stating ‘British Customs Certificate of Origin’, with a handwritten note indicating certain details required by the French rules on designation of origin. The Dassonvilles were prosecuted for forgery and violating Belgian law on protected designations of origin, due to Belgium requiring the Dassonvilles obtaining a certificate of authentication from the UK. The Dassonvilles had imported the whisky as a parallel import and so had complied only with French law, which had no certification rules.

Issue → The Tribunal in Belgium made a reference for a preliminary ruling, asking, among other things, whether the national rule constituted a measure equivalent to a quantitative restriction (MEQR), also known as measures having equivalent effect (for the purposes of what is now Art. 34 TFEU).

Outcome →

• The Court of Justice found that the Belgian measure did constitute an MEQR, in violation of Art. 34 TFEU. The Court defined the concept of an MEQR as ‘[a]ll trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’. (defined by MEQR is? a portion of what article 34 means?) = DASSONVILE FORMULA

• The Court noted that, unlike direct importers, parallel importers could obtain a certificate of origin only with great difficulty. In the absence of a Community system to guarantee designations of origin for consumers, Member States could take ‘reasonable’ measures to prevent unfair practices, ensuring that proof required is ‘accessible to all Community nationals’ to avoid any hindrance to trade between Member States

• Although the Court did not need to address whether the Belgian rule was covered by Art. 36 EEC (now Art. 36 TFEU), it observed that such measures should not ‘constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States’.

What is the Dassonvile formula as per the Dassonville case? And what does mean in application, and the controversy?

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.

Criticisms → Though this formula can be perceived as intrusive, assuming that every domestic provision or norm falls under a suspicion of possibly being a measure of equivalent effect.

Application → This formula is extremely broad and could be applied generally, where all trading rules about member states present or future, directly or indirectly could be a measure of having equivalent effect.

• These measures should be reasonable, and the means of proof required should not act as a hindrance to trade between member states, and should be accessible to all community nationals.

• Under exceptional circumstances, there are public interest justifications which will allow a domestic measures to survive, which are defined extremely narrowly by the court.

What three reasons are the Dassonville formula so important?

• The (extremely broad) Dassonville formula expands dramatically the number and types of cases in which a Member States is required to justify its social choices in regulating the market place and its public sphere. The Court, at the same time, had to construct derogations (public interest justifications) narrowly, creating a presumption that just any obstacle to free trade is “improper” and needs to be “justified.”

• Institutionally, Dassonville thrust the Court into the center of substantive policy-dilemmas: the ECJ becomes the arbiter of delicate social choices, reconciling trade with competing social policy issues.

• The ECJ is the driver of the common market and the court enables private actors to invoke their states on their formula in order to challenge any kind of domestic measure which he or she, the trader, might consider as uncomfortable for his or her business in order, but it is also objectively a way or a policy of deepening consolidating the then common market and at the same time, public interest testing.

Cassis de Dijon on Article 34 TFEU (‘measures having equivalent effect’) in practise, what is the context, issue and outcome?

Context → Rewe-Zentral was a company based in Germany that sought authorization to import spirits from France, including the blackcurrant liqueur Cassis de Dijon. The Bundesmonopolverwaltung für Branntwein (Federal Monopoly Administration for Spirits) advised Rewe that although its authorization was not needed for the liqueur import, it would be unlawful to sell Cassis de Dijon in Germany. According to German law, fruit liqueurs needed a 25 per cent alcohol content to be eligible for sale. The alcohol content of French Cassis varied between 15 and 20 per cent, and thus fell short of the threshold applied by German law. This is because they were concerned about lower alcohol threshold would increase alcohol tolerance, and Germany being a welfare state.

Issue → The Finance Court of Hessen made a reference for a preliminary ruling, asking whether -

• the disputed German rule constituted an MEQR under what is now Art. 34 TFEU and

• the setting of a minimum wine–spirit content was discriminatory for the purposes of what is now Art. 37 TFEU

Outcome → The Court of Justice found that an ‘indistinctly applicable measure’ such as the German minimum alcohol content rule could constitute an MEQR. Article 34 TFEU could apply to rules that were not discriminatory—applying equally to domestic goods and imports—yet had a restrictive effect on trade. Such measures would be permitted only if justified by a ‘mandatory requirement’ or by derogating under Art.

What is ‘host-state control’ as discussed in Cassis de Dijon? And how does this relate to ‘mandatory requirements’?

There is primacy of host-state control.

Who is the host state in this case? Well, it is Germany, whereas the home state is France because this region comes from France.

And the question here is who is regulatory regime should apply that of the home state or that of the host state, that of France, where the alcoholic drink is free to circulate, or that of Germany, where the alcoholic drink isn't free to circulate? So there is no legal harmonisation here.

• But then the Court proceeded to qualify this very statement (i.e. its statement emphasizing host state rule) by adding something of importance, namely, that the host state is permitted to apply its own domestic national rules if, and only if, the rules of the host state (here Germany) can carry a sufficient justification in the public interest to prevail over the interest in free trade and the integration of markets. The Court called these newly and judicially created (or invented, if you will) public-interest justifications, which are independent of and transcend the list in Art. 36 TFEU (ex 30 EC)—“mandatory requirements.”

What are ‘mandatory requirements’ in relation to host-state control in Cassis de Dijon? And what do the ‘mandatory requirements’ entail/require? Are the ‘mandatory requirements’ seperate from Article 36 TFEU?

Host-state control primacy in absence of common EU community rules can prevail, but in order for it to fully prevail, the host states rules must have a justification in public interest to prevail - which is ‘mandatory requirements’.

Mandatory requirements are public-interest justifications independent of and transcend beyond Article 36 TFEU?

Mandatory requirements include -

• effectiveness of fiscal supervision

• protection of public health

• fairness of commercial transactions

• defence of the consumer

What is the importance of the Cassis de Dijon in relation to host state rule?

• The burden of proof is on the regulating host state (such as Germany, in casu) to make the case in support of its rules. Cassis therefore turns on its head the—initial—embrace of host state rule.

• The Court—and this is the second reason for why Cassis is so important and still being discussed today—introduced a key notion for the internal market: the goods which have been lawfully marketed and produced in Member State A can in principle be sold in another Member State B without further restriction or control, unless Member State B can successfully invoke a public interest justification in support of its rules. This key notion is often, among lawyers and political scientists, referred to as the principle of mutual recognition.

• The result of mutual recognition is to replace dual regulation of a product—by home state and the importing host state—with a single regulation, by the home state: regulation which, under the principle of mutual recognition, the importing State (here: Germany) is required to respect.

  • Mutual recognition is that we recognise each other's laws and regulations as mutually equivalent. There are deep differences, but the court cuts across all that and says mutual recognition. if a product can lawfully circulate in its state of origin, then in principle it can circulate freely everywhere, unless that other state, the host state, has a problem with it that we can recognise as a valid public interest justification, either under article 36 TEU or under mandatory requirements.

  • We must focus on where goods which can which has been lawfully marketed produced in member state such as France here can principally be sold in another member state, unless member state B (Germany) can successfully invoke a public interest justification in support of its rule.

Why is Article 36 TEU and ‘mandatory requirements’ in Cassis de Dijon distinct from one another? Why are they differently and seperately regarded?

‘Mandatory Requirements’ was a response to issues with public policies not contemplated in Article 36 TEU and in order to be able to move with the times and in order not to lose our legitimacy as a court of justice, we develop the law in the face of changing circumstance, of changing social conditions.

• The mandatory requirements (or imperative requirements) is an open ended list. So as the world changes, the court invents new items on that list.

  • The Cassis case and subsequent mandatory requirements made the case law far more flexible than it was under the treaties.

• Whereas, article 36 is a closed list where you cannot creatively read new concerns into that list.

Jacobs discusses the process undergone during the ‘mandatory requirements’ in Cassis de Dijon, what are the 3 components?

According to that test, in the absence of common rules at Community level relating to the marketing of the products in question, goods lawfully produced in any Member State could in general be imported into any other State; however, obstacles to free movement resulting from disparities between the national laws must be accepted provided that such rules are -

1. First, applicable to domestic and imported products without distinction

2. Second, necessary to satisfy certain mandatory requirements recognised by Community law, but in fact identified by the ECJ for the first time in the Cassis de Dijon judgment and

3. Third, proportionate to the aim in view, that is, they constitute a measure which least restricts the free movement of goods

What is distinctly and indistinctly applicable measures? Which ones can apply the Cassis de Dijon approach, or the narrower principles of Article 36 TFEU?

• ‘Indistinctly applicable” or indirectly discriminatory measures should normally be considered under Cassis de Dijon.

  • Examples for “indistinctly applicable measures” are technical and safety standards, or restrictions on the lawful use of a product purchased

• ‘Distinctly applicable’ or directly discriminatory measures, should normally be considered under the (much narrower) principles of Art. 36 TFEU.

  • ‘distinctly applicable measures’ are those which—as the name says—directly discriminate against a specific product from a specific country.

What does Gormley state in relation to keeping Article 36 TFEU principles, and the mandatory requirements of Cassis de Dijon?

• There is still a clear distinction between the Treaty-based justifications and those finding their basis solely in the case law under the ‘mandatory requirements’; to assimilate them, is, it is respectfully submitted, a fundamentally flawed approach.

• The Court maintains that the heads of justification in the first sentence of Art. 30 are not capable of expansion, and it is clear that the case law-based exceptions are not merely aspects of public policy

Why is Cassis de Dijon still important today? What are the 3 problems that arise?

1. Recall that in Dassonville existing derogations were construed narrowly. But what happens when public sensibilities change and Member States wish to introduce for legitimate social reasons measures protecting the interests, say, of consumers which aren’t recognized in Art 36 TFEU? Here is the answer: the doctrine of mandatory requirements—as introduced in Cassis—allows Member States to plead non-economic policies which weren’t mentioned in Art 36. Fairness of commercial transactions, public health, cultural policy, etc. and other justifications could now be proffered.

2. The problem of market fragmentation. Solution: the need for harmonization would appear less pressing if—according to the principle of mutual recognition—goods complying with the technical standards required in one member State could be marketed freely in another Member State (Home-state rule vs. host-state rule).

3. Cassis may exert a powerful deregulatory effect. On the one hand, it cuts out—as one commentator (Weatherill) has put it—the “dead wood” of centuries of regulatory traditions in Member States. On the other hand, the judgment accepts the need for restrictions of trade which are genuinely justified in the public interest; the Court’s open-ended list comprises:

   1. Fiscal supervision

   2. Public health

   3. Fairness of consumer transactions

   4. The defence of the consumer.

What does Dieter Grimm say in regards to Cassis de Dijon modern effects (criticisms)?

The jurisprudence of the ECJ leaves deep marks on national law and politics.

The broad interpretation of the prohibition of obstacles to free movement deprives the Member States of the possibility of upholding national standards of consumer, workers and health protection, among others.

They are all suspected of having ‘an equivalent effect’ to tariffs and quotas, regardless of whether the law has a protectionist motive or not.

What is strategic litigation, and why is it a consequence of free movement of goods?

Strategic litigation is where claimants pursue legal action in the ECJ as a means to alter national law in situations which seem to be purely domestic nature rather than impact on an inter-state level, hence claimants attempt to litigate and force change through the ECJ and EU law by arguing infringements of free movement of goods.

Notable example includes the Sunday Trading litigation pushed by several large retailers against the Shops Act 195- which barred or reduced work hours on Sundays.

Claimants argued, challenging the restrictions of the Shops Act as being contrary to EU law on the free movement of goods. They argued that the prohibition on Sunday trading had the effect of reducing the stores’ overall volume of sale. Since a significant part of their sales involved products from other Member States, the result was a decrease in imports and a hindrance of trade within the EU.

Stoke on Trent Borough Council v B&Q plc on strategic litigation, what is the context and outcome?

Context → he two prosecuting authorities accuse B & Q of contravening sections 47 and 59 of the Shops Act 1950 by opening their shops on Sundays for commercial transactions other than those listed in the Fifth Schedule to that Act.

Outcome → It was found that such legislation may indeed have adverse repercussions on the volume of sales of certain shops, but that it affects the sale of both domestic and imported products. The marketing of products from other Member States is not therefore made more difficult than the marketing of national products.

Importance → National rules restricting the opening of shops on Sundays reflected certain choices relating to particular national or regional socio-cultural characteristics. It was for the Member States to make those choices in compliance with the requirements of Community law, in particular the principle of proportionality

• You can see here the court is hyper deferential to the member states despite this dassonville formula and that they should be decided by the member states themselves, the doctrine is flexible enough within these situations

Foxhunting Case on strategic litigation, what is the context and outcome?

Context → The UK was divided on the topic and the Blair government wished to ban fox hunting due to animal cruelty and the exclusivity of the sport, banning it. Those who fox hunt would argue contrary, bringing a case stating that the ban on fox hunting is a 'measure having an equivalent effect.' Horses were needed for fox-hunting, it can be argued the free trade of horses is affected since most are imported from Ireland (not an essential case law, but exists and an illustration of strategic litigation nd the issue the dassonville formula creates)

Outcome → The case where the court realised the dassonvile formula was too broad, narrowing it down in order to get rid of cases such as Sunday training and strategic litigation, however there are 2 steps to which the court did this -

1. introduce another concept of 'selling arrangemtns' = if a measure is not about products themselves, but is merely a selling arrangement, then that measure does not fall under the dassonville formula (court created measures which have withdrawn from the dassonville formula and doesnt fall within the first stage of our 2nd stage procedure) - what is selling arrangements? it is the advertising of products and the way products are sold, advertising measures, they ARENT caught into the dassonville formula.

2. HOWEVER THIS STEP FAILED IN THE END, since measures on advertising in the end can be so heavy-hitting that they block access to the market as per Gourmey case. The concept of the selling arrangement was introduced by the Keck case, but later overruled.

Keck on ‘selling arrangements’ to the market access test, and what is its importance? And what was the Keck formula?

Keck was in response to traders increased tendency to invoke the prior article 30 (now article 34 TEU) which effect is to limit commerical freedom even where such rules are not aimed at products from other member states, hence the formation of the selling arrangements principle under Keck Case.

Keck has the effect of limiting the very catch of Art. 34 TFEU—that is, at the first stage—to the effect that certain domestic measures, if they can be qualified as selling arrangements, simply do not fall under the catch of Art. 34 TFEU, with the further obvious consequence that they also do not need to be justified in the public interest.

Here is the Keck-formula:

• a measure is “only” a selling arrangement (Keck-formula), if it

(i) applies to all relevant traders operating within the national territory and if it also

(ii) affects in the same manner, in law and in fact, the marketing of domestic products and those from other Member States. (Comment: my emphasis highlights the Court’s distinction between measures which concern the modalities of marketing a product and product rules. If the measure clearly is a product rule, then it cannot be a selling arrangement: examples for a selling arragement are rules on advertising or pricing).

If these two cumulative conditions of the Keck-formula are met, then, as the Court said in Keck, “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.”

Comment 1: you must clarify that the driving force behind the concept of selling arrangement is the market access test, already mentioned in Keck but then consolidated in Gourmet. The market access test ultimately focuses on whether the contested measure does or does not have the object or effect of treating products coming from other Member States less favorably.

Comment 2: you might also explain that the Court’s intention in introducing the concept of selling arrangements was to tackle the problem of strategic litigation presented by cases such as Sunday Trading which essentially focus on internal domestic disputes with little or no relevance to the common market.

Comparing Keck to Gourmet case, the Gourmet case developed the ‘market access test’ moving beyond the selling-arrangement formula, what is the context, issue and outcome? and how does this new ‘market access test’ operate?

Context → Swedish law prevented alcohol advertising in magazines except in periodicals aimed at traders, e.g. bar owners. Gourmet International Products published a magazine whose subscribers were 90% traders and 10% private individuals and wanted to advertise alcohol, whereas Konsumentombudsmannen sought an injunction restraining the adverts. Gourmet International Products argued that the ban was contrary to Article 28, since it had a greater effect on imported alcoholic drinks.

Issue → (Though, it appeared artifically as an advertisement and selling arrangement, but ACTUALLY it is a barrier to the market access.) When examining the application, the [referring Swedish court] was unsure, in particular, whether national rules imposing an absolute prohibition on certain advertisements might be regarded as having an effect equivalent to a quantitative restriction within the meaning of Article 34 TFEU and, if so, whether, in view of their object, they might be regarded as lawful under Article 36 TFEU.

Outcome → ECJ held that the marketing laws would be lawful if they did not prevent access for products from other Member States or did not impede access any more than for domestic products.

• In this case, the absence of advertising prevented foreign products from achieving recognition / brand awareness when compared to domestic products, and thus constituted obstacle to the free movement of goods within the meaning of Article 28.

• Such restrictions were nevertheless allowed if they were proportionate to the objective pursued and did not constitute either a means of arbitrary discrimination or a disguised restriction on trade between Member States.

MARKET ACCESS TEST → The ECJ implemented the market access test, focusing on whether does holistically a measure make market access more difficult for a foreign trader than for a domestic trader? HERE it was the case in Gourmet. In this case, the court has not given upon on the formulation of selling arrangement from the Keck case, but refined the true meaning of the court's intention - market access test is the 1st stage, then the 2nd stage is the emphasis of proportionality, is the measure proprortionate?

What is the ‘market access test’ created in Gourmet case?

The ECJ implemented the market access test, focusing on whether does holistically a measure make market access more difficult for a foreign trader than for a domestic trader?

HERE it was the case in Gourmet. In this case, the court has not given upon on the formulation of selling arrangement from the Keck case, but refined the true meaning of the court's intention -

1. market access test is the 1st stage, then

2. the 2nd stage is the emphasis of proportionality, is the measure proprortionate?

Commission v Italy on ‘restrictions of use’ in relation to free movement of goods. what is the context and outcome?

Context → An individual submitted a complaint to the European Commission concerning the Italian prohibition on motorcycles, mopeds, and similar vehicles from towing trailers. According to the Italian Highway Code, only cars, trolleybuses, and tractors were allowed to tow trailers. During the pre-litigation procedure under Art. 258 TFEU, the Commission argued that this prohibition amounted to a failure to fulfil obligations under Art. 34 TFEU. Italy initially undertook to amend its national rules to remove the alleged obstacle to imports. In the absence of further communications from the Italian authorities, the Commission brought infringement proceedings before the Court of Justice.

Outcome → The Court of Justice dismissed the Commission’s action, finding that the ban on motorcycles towing trailers especially designed for them, and lawfully produced and marketed in Member States other than Italy, was justified in the interests of road safety. The Court followed the approach of Advocate General Bot, finding that rules on product use fell within the scope of Art. 34 TFEU. The Court of Justice echoed its findings in Cassis de Dijon, Keck and Mithouard.

• The ban was found to constitute an MEQR within the scope of Art. 34 TFEU. The Court noted the Commission’s view that such trailers had limited use beyond the purpose for which they were designed and observed that the prohibitions on product use have ‘a considerable influence on the behaviour of consumers, which … affects the access of that product to the market of that Member State’. The ban prevented a demand for the trailers and therefore hindered their importation.

• However, the Court accepted that the measure was objectively justified for reasons of public policy—specifically road safety.

Åklagaren v Mickelsson, Roos on ‘restrictions of use’ in relation to free movement of goods. what is the context and outcome?

Context → it dealt with Swedish rules forbidding the use of jet skis (personal watercraft) on particular designated waterways in Sweden. This was about high speed motor boats, and the concern was that these high speed motorboats being used would damage nature, the tranquillity of nature, and pollute and create noise, pollution, etc. etc. so they were banned from the use in Swedish waterways. Again, you could still buy these speedboats. From abroad. You could put them into your garden if you like to. But you just could not use them in the way they were supposed to be used, namely on on the sea.

Outcome → The Court of Justice (CJEU) ruled that Swedish rules restricting jet ski use in certain waters violated the free movement of services, establishing that a ban on a particular type of vehicle (jet skis) constitutes a measure tantamount to a quantitative restriction on imports/exports, even if applied equally, impacting cross-border access and enjoyment of leisure, thus requiring justification under EU law like public health/environment, not just local preference. 

What are the steps necessary to concluded whether the restriction of goods is ‘measure having an equivalent effect’?

1. Hence, there is a “measure having an equivalent effect”.

2. At the second stage now, we have to ask: is there a public interest justification?

   1. If there is a “distinctly applicable measure” then: the narrow Art. 36 TFEU;

   2. If there’s an “indistinctly applicable measure” then: “mandatory requirements” under Cassis de Dijon.

What are Weatherhill’s criticisms regarding ‘restrictions on use’ and subsequent case law?

• The Court’s cautious but imprecise insertion of the adjective ‘considerable’ and the adverb ‘greatly’ into its definition of the reach of Article 34 aims to capture the notion that just because national laws vary does not of itself mean there is (in short) ‘an internal market problem

• Shrewd litigants, eager for legal instruments apt to attack restraints on commercial freedom, had pushed the scope of free movement ever wider

• From this exorbitant reading of the scope of Article 34, which loaded huge weight on questions of justification for national regulatory choices, the Court chose in Keck to retreat. But realising what the Court was – correctly, wisely – trying to achieve is one thing: finding an apt formula is more difficult. Keck did not do a perfect job, and the Court has now spent almost twenty years trying to pin down with more precision where Article 34 TFEU stops and where national regulatory autonomy begins.

Omega case on the dynamic/relationship between free movement of goods and human rights, what is the context and outcome?

Context → Omega case regarding laser drones and UK wished to export this to Germany, Germany refused citing their nation's history and concern about human dignity. And again, you had a balance to be struck. On the one hand, freedom to provide goods free of goods and freedom to provide services. On the other hand, human dignity.

Outcome → And the court again said, we don't intervene in this debate. Germany was provided with a wide margin of appreciation given that the Common Market inter-state is not deeply affected here.

Schmidberger case on the dynamic/relationship between free movement of goods and human rights, what is the context and outcome?

Context → Brenner motorway is a highway which links Italy and Germany through Austria. This produces a lot of pollution and also a lot of noise and damages beautiful, pristine nature, and for that reason, you think the highway should be closed or should be limited in terms of traffic. You may have these private views, but you may also come together and decide to stage a demonstration in order to attract attention to your concerns. You just sit there on this highway and blockage for 36 hours, and notify the authorities of their intentions. And the Austrian authorities approved the right to demonstration and a right to demonstrate as per Austrian Constitution and help them by notifying drivers of the disruption, proposing alternative routes.

Claimant was a owner of a haulage company, arguing Austria owes him damages due to their obligation to protect their interest of free movement of goods, allowing the demonstration to go ahead is a 'measure having an equivalent effect' as per Dassonville doctrine. This is a case of state liability. We have a clash not between free movement of goods and some typical mandatory requirement such as consumer protection, but with between free movement of goods on the one hand and the positive obligation of Austria to protect the right to demonstrate of their citizens under the Austrian constitution.

• It is a horizontal case - two private persons, such as demonstators and trader, invoking a freedom of assembly and demonstrate versus economic freedom.

• It is a vertical case in the circumstance of giving rise to positive obligations by the state to enjoy your right, in the case austria's obligation to protect the protester's rights.

Outcome → The ECJ provided a wide margin of appreciation to Austria, saying that you, the Austrian authorities, were conscientious and you did. You were considerate and you did what you could. You acted in ways that are proportionate. In this case, Austria was not deemed to have incurred state liability.

Importance → failure by a Member State to act to prevent a trade barrier may equal a “positive act” by the state, if there is a possible obligation to prevent a trade barrier (Schmidberger and Akland Vindkraft AB).

What is the proportionality test, and what are the two components of it? And when does the proportionality test arise?

There is one complication—but not really a difficulty—here: sometimes a Member State may be in the position of pleading an obligation to protect (its citizens’) fundamental and human rights against third parties (as per Schmidberger). This responsibility to protect does not really fit into the two above-mentioned ranges of Art. 36 and mandatory requirements.

Then, in a next step, you must ask whether in pursuing its—legitimate—public interest, the Member State has observed the important. This is the proportionality test.

The proportionality test is a means-ends test, with its two prongs:

• is the measure appropriate?

• Is the measure necessary, meaning: the least restrictive (onerous) one with regard to the right or economic freedom which is being interfered with (here: Art. 34 TFEU)?