CJEU reiterates case law on mutual recognition of certificates and free movement of goods (C-354/14)

In its Judgment in Capoda Import-Export, C-354/14, EU:C:2015:658, the Court of Justice of the European Union (CJUE) has reiterated its case law on the mutual recognition of certificates for the purposes of free movement of goods within the internal market. 

In a timid Judgment, probably due to the limited amount of information made available by the referring court, the CJEU has reiterated the parameters under which Member States are obliged to allow the free circulation of goods legally produced or marketed in other EU countries.

In the case at hand, a Romanian dealer of car spare parts was fined for selling goods that had not been subjected to homologation in Romania. The dealer relied instead on a certificate issued by a German distributor of those goods. Romanian authorities did not consider such certificate sufficient and they insisted in either a manufacturer certificate or full homologation in Romania. Capoda challenged their decision on the basis of EU free movement rules.

The case is legally complicated because the relevant EU regime for mutual recognition of car spare parts has not (yet) been properly developed (see Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles and, particularly, Annex XIII), which requires to assess the issue of recognition of the distributor certificate under the general rules on free movement of goods (paras 34-38).

Succinctly, the CJEU stressed that 

39 ... it is settled case-law that all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union must be considered to be measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU (see, inter alia, judgments in Dassonville, 8/74, EU:C:1974:82, paragraph 5, and in Juvelta, C-481/12, EU:C:2014:11, paragraph 16).

40 It follows, in particular, that, even in the absence of harmonising European Union measures, products lawfully produced and marketed in a Member State must be able to be marketed in another Member State without being subject to additional controls. In order to be justified, national legislation imposing such controls must be covered by one of the exceptions provided for in Article 36 TFEU or one of the overriding requirements recognised by the case-law of the Court and, in either case, must be appropriate for securing the attainment of that objective and not go beyond what is necessary in order to attain it (see judgments in ATRAL, C-14/02, EU:C:2003:265, paragraph 65, and Commission v Portugal, C-432/03, EU:C:2005:669, paragraph 42).

41 It is apparent from the file sent to the Court that the legislation at issue in the main proceedings imposes the application of an approval or homologation procedure to the products at issue in those proceedings, which is liable to constitute a measure having equivalent effect for the purpose of Article 34 TFEU unless that legislation also lays down exceptions to those procedures so as to ensure that products lawfully produced and marketed in other Member States are exempted.

42 However, it would also appear from that file that Article 1(8) of Government Decree No 80/2000 lays down such exceptions [which would cover to original products or to original spare parts, and would trigger the presumption that unless the contrary is proven, that the products are original if the part manufacturer certifies that the products match the quality of the components used for the assembly of the vehicle in question and have been manufactured in accordance with the specifications and production standards of the vehicle manufacturer]; it is for the referring court to verify whether that is the case.

43 If that should prove not to be the case, it would then be for the competent national authorities to show that that barrier to trade can be justified, in view of the products liable to be affected, by the objectives of protection of road safety and protection of the environment, which, according to the case-law, constitute overriding reasons in the public interest capable of justifying a measure having an effect equivalent to quantitative restrictions and that it is not only necessary, but proportionate in relation to such objectives (see, inter alia, judgment in Commission v Belgium, C-150/11, EU:C:2012:539, paragraphs 54 and 55).

44 As to whether EU law precludes the refusal to consider documents such as those adduced by Capoda [documents issued by distributors and not by the manufacturers] as being sufficient to demonstrate that parts, such as those at issue in the main proceedings, have already been approved or homologated or that they are original parts or spare parts of matching quality, for the purpose of national law, which are exempted, on that basis, from the procedure of approval or homologation by the RAR, it must be noted that it is for the Member States, in the absence of any European Union rules governing the matter, to determine the evidence which may be adduced in that respect, subject to the principles of equivalence and of effectiveness.

45 Subject to that proviso, EU law therefore does not preclude a rule that only certificates issued by the manufacturer and not by the distributor are capable, in principle, of establishing that the parts in question have already been approved or homologated or constitute original parts or spare parts of matching quality, for the purpose of national law. It should, moreover, be pointed out that Article 3(26) of Directive 2007/46, which defines the concept of ‘original parts or equipment’ for the purpose of that directive, provides that it is presumed, unless the contrary is proven, that parts constitute original parts if the manufacturer certifies them as being so (C-354/14, paras 39-45, emphasis added).

This leaves us with the uncertainty of knowing whether Romanian courts must equate the certificate from the distributor to that of the manufacturer, or whether a chain of certificates could be acceptable. However, in general terms, the reminder of the applicable rules and requirements under Arts 34 and 36 TFEU is a good refresher.

A refresher on the rules applicable to charges having the equivalent effect of a custom duty (C-254/13)

In its Judgment in Orgacom, C-254/13, EU:C:2014:2251, the Court of Justice of the EU has revisited the 'classical issue' of financial barriers to free movement of goods and their treatment under either article 30 or 110 TFEU, depending on whether they are classed as (a) charges having an equivalent effect to custom duties (art 30 TFEU) [see LW Gormley, EU Law of Free Movement of Goods and Customs Union (Oxford, OUP, 2009), chapter 11] or (b) measures of internal taxation (art 110 TFEU) [for discussion, see J Snell, ‘Non-Discriminatory Tax Obstacles in Community Law’ (2007) The International and Comparative Law Quarterly 56(2): 339-370 and S Douma, ‘Non-discriminatory tax obstacles’ (2012) EC Tax Review 21(2): 67-83]. 

In Orgacom, the dispute concerned a Belgian tax on the production and importation of livestock manure into the Flanders region. Given the structure of the applicable levies, the Belgian Constitutional Court found that they affected fertiliser imported into the Flanders region more heavily than fertiliser produced in that region. Orgacom challenged those levies on the basis of articles 30 and 110 on the basis that the restriction to inter-regional movement of the goods are contrary to EU law.

First of all, the CJEU reiterated the impossibility to proceed to the joint application of articles 30 and 110 TFEU and clearly classed the measure as a charge having an equivalent effect to customs duties (paras 18-26). In doing so, the CJEU reiterated its classic definition of charge of equivalent effect, whereby

any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 28 TFEU and 30 TFEU (see, to that effect, judgment in Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, EU:C:2007:657, paragraph 27) (C-254/13 para 23).

It also indicated that

customs duties and charges having equivalent effect thereto are prohibited regardless of the purpose for which they were introduced and the destination of the revenue from them (see, to that effect, judgments in Brachfeld and Chougol Diamond, 2/69 and 3/69, EU:C:1969:30, paragraph 19, and Carbonati Apuani, EU:C:2004:506, paragraph 31) (C-254/13 para 35).

Hence, the CJEU has stuck very clearly to its traditional approach to the assessment of charges having an equivalent effect to customs duties and has shown no willingness to explore any possibility of declaring them compatible with the internal market, even if the reasons argued by the Belgian government concerned the protection of the environment (para 34)--which is an area where the CJEU is showing increased deference towards Member States regulatory intervention (see comment here).

Secondly, it is interesting to stress that the case affects trade between regions of the same Member State rather than 'proper' cross-border trade., which creates the difficulty of assessing the link with the crossing of a frontier of the controversial measure. However, as the CJEU had already clarified in Legros, C-163/90, EU:C:1992:326 (paras 16 to 18), the provisions on free movement prohibiting charges of an equivalent effect (art 30 TFEU) also apply when the restriction affects movement of goods between regions of the same Member State. This has now been reiterated in clear terms

it is settled case-law that a charge imposed when goods cross a territorial boundary within a Member State constitutes a charge having effect equivalent to a customs duty (see judgment in Carbonati Apuani, C-72/03, EU:C:2004:506, paragraph 25 and the case-law cited) (C-254/13 para 24). 

It is also interesting to highlight the arguments that the CJEU rejected when the classification of the measures as charges of equivalent effect was challenged

27 The classification of the levy provided for by that provision of the Fertiliser Decree as a charge having equivalent effect to a customs duty cannot be called into question by the argument advanced by the Kingdom of Belgium that that levy, because there is a similar levy imposed on fertilisers produced in the Flanders Region, forms an integral part of a general system of internal taxation applied systematically, in accordance with the same criteria, to national products and imported and exported products and should, in consequence, be assessed in the light of Article 110 TFEU.

28 In that regard, it must be noted, firstly, that the essential feature of a charge having equivalent effect to a customs duty which distinguishes it from an internal tax is that the former is borne solely by a product which crosses a frontier, as such, whilst the latter is borne by imported, exported and domestic products (see, to that effect, judgment in Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 22).

29 Secondly, it must be borne in mind that, in order to relate to a general system of internal taxation, the tax charge in question must impose the same duty on both domestic products and identical exported products at the same marketing stage and the chargeable event triggering the duty must also be identical in the case of both products (see, to that effect, judgment in Michaïlidis, EU:C:2000:479, paragraph 23) (C-254/13 paras 27-29, emphasis added).

Overall, then, Orgacom is a short and clear reminder of the rules applicable to charges having an equivalent effect to customs duties--and an indication that even in the area of the protection of the environment, the CJEU is not willing to create additional regulatory space for the Member States than that already existing, or at least not without limits.

CJEU protects discriminatory green energy schemes and keeps inconsistency in EU free movement of goods law (C-573/12)

In its Judgment of 1 July 2014 in Ålands Vindkraft, C-573/12, EU:C:2014:2037, the Court of Justice of the EU (CJEU) departed from the previous Opinion of Advocate General Bot [EU:C:2014:37] and considered that the Swedish system of support of green energy is compatible with Article 34 TFEU despite the fact that it includes restrictions to trade in energy (and green electricity certificates) on the basis of nationality (rectius, on the basis of the place of production of that energy).

 

In my opinion, the case is important because: 1) the CJEU did not follow the more honest and transparent approach advocated for by AG Bot and has now perpetuated the doubts concerning the compatibility of environmental protection and internal market policies [particularly due to the conflation of Art 36 TFEU and 'Cassis de Dijon' mandatory requirements, as grounds for the exemption of restrictions to free movement], 2) it relies on economic assessments and the principle of legitimate investor expectations to a point that, in my view, exceeds the traditional balance or concern with pure economic aspects in the design of trade-restrictive policies (as well as only taking into consideration the economic burdens of some of the economic agents involved), and 3) the apparently pragmatic approach adopted by the CJEU actually restricts the potential ability of the EU as a whole to achieve its environmental protection commitments under the Kyoto Protocol. Each of these points deserves some further comments.

 

0. Background

From the perspective of EU law on free movement of goods (art 34 TFEU), the Ålands Vindkraft Judgment is concerned with one of the classical 'conundrums' derived from every clash of policies and, more especifically, with the difficulties derived from the two-tier approach to the exemption of legislative measures that restrict trade in the pursuit of other goals.

The TFEU deals with those situations in a limited manner under Art 36 TFEU, which contains a restricted and exhaustive number of exceptions (numerus clausus) to the general prohibition of measures that restrict trade. The CJEU expanded the possibility to exempt other measures under the so-called 'mandatory requirements' theory as first established in Cassis de Dijon [Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, 120/78, EU:C:1979:42].

 

The main difference between the Art 36 TFEU exemptions and those based on Cassis mandatory requirements was, according to the canon, that the former applied to both directly and indirectly discriminatory measures, whereas the latter could only exempt non-discriminatory (or equally applicable) measures. In the specific case of environmental protection, given its non-inclusion in the exhaustive list of Art 36 TFEU, the canon implied that it could only be used to exempt non-discriminatory measures. However, ever since the 2003 Judgment in EVN and Wienstrom [C-448/01, EU:C:2003:651], there has been intense debate as to whether environmental protection could be subsumed or conflated with one of Art 36 TFEU heads of exemption (ie 'the protection of health and life of humans, animals or plants') and, consequently, also be used to exempt directly discriminatory measures [for discussion, see E Engle, 'Environmental Protection as an Obstacle to Free Movement of Goods: Realist Jurisprudence in Articles 28 and 30 of the E.C. Treaty' (2008) Journal of Law and Commerce 37: 113]. This was precisely the legal point to be addressed in Ålands Vindkraft.

 

1. An obscure departure from the clear and honest approach advocated by AG Bot

In his Opinion of 28 January 2014, and building on the more detailed proposal that he submitted in the Opinion in Essent Belgium [C-204/12 to C-208/12, EU:C:2013:294, not available in English] AG Bot took a bold step and suggested that "national legislation constituting a measure having equivalent effect to quantitative restrictions may be justified by the objective of environmental protection even if it is discriminatory, provided, however, that it undergoes a particularly rigorous proportionality test, one which I have referred to as ‘reinforced’" (para 79, emphasis added).

 

His proposal was basically aimed at overcoming the problematic conflation of environmental protection as a Cassis mandatory requirement and an (indirect) measure for the protection of health and life of humans, animals or plants. Moreover, the reinforced proportionality test (with all its problems), intended to reduce the margin of regulatory discretion that can be assigned to Member States under the Cassis doctrine.

 

However, the CJEU did not follow this bold, transparent and clear approach advocated for by AG Bot and, on the contrary and in an obscure manner, perpetuated the conflation in Ålands Vindkraft. Indeed, the CJEU considered that

77 According to settled case-law, national measures that are capable of hindering intra-Community trade may inter alia be justified by overriding requirements relating to protection of the environment (see, to that effect, Commission v Austria, EU:C:2008:717, paragraph 57 and the case-law cited).

78 In that regard, it should be noted that the use of renewable energy sources for the production of electricity, which legislation such as that at issue in the main proceedings seeks to promote, is useful for the protection of the environment inasmuch as it contributes to the reduction in greenhouse gas emissions, which are amongst the main causes of climate change that the European Union and its Member States have pledged to combat (see, to that effect, PreussenElektra, EU:C:2001:160, paragraph 73).

79 That being so, the increase in the use of renewable energy sources constitutes — as is explained, in particular, in recital 1 to Directive 2009/28 — one of the important components of the package of measures needed to reduce greenhouse gas emissions and to comply with the Kyoto Protocol to the United Nations Framework Convention on Climate Change, and with other Community and international greenhouse gas emission reduction commitments beyond the year 2012.

80 As the Court has pointed out, such an increase is also designed to protect the health and life of humans, animals and plants, which are among the public interest grounds listed in Article 36 TFEU (see, to that effect, PreussenElektra, EU:C:2001:160, paragraph 75). (C-573/12, paras 77 to 80, emphasis added).

From that point onwards, it is impossible to determine whether the CJEU bases its legal arguments in Art 36 TFEU as the protection of the health and life of humans, animals and plants is concerned or on the more general doctrine of mandatory or overriding requirements relating to the protection of the environment, or both. In my view, this is a lost opportunity for the clarification of this relevant point of EU law on free movement of goods. However, it may seem clear that (as Barnard justifies in The Substantive Law of the EU. The Four Freedoms, 4th edn, p. 172 and ff) the CJEU is not concerned with the legal basis used and that, currently, exemptions are fundamentally regulated under the principle of proportionality (but not necessarily under the 'reinforced' proportionality test advocated for by AG Bot). In itself, the perpetuation of this legal unclarity deserves some strong criticism. Not least, because of the flaws in the assessment of proportionality when it comes down to economic matters.

 

2. Unbalanced economic assessment and excessive reliance in (certain) legitimate expectations

The economic assessment of the measures that the CJEU carries out jeopardises the soundness of the proportionality test that it carries out in paras. 83 to 119 of the Ålands Vindkraft Judgment.

 

On the one hand, the CJEU follows recital 25 to Directive 2009/28 and stresses that "it is essential, in order to ensure the proper functioning of the national support schemes, that Member States be able to ‘control the effect and costs of their national support schemes according to their different potentials’, while maintaining investor confidence" (para. 99). Even further, it indicates that "the effectiveness of such a scheme requires by definition a measure of continuity sufficient, in particular, to ensure the fulfilment of the legitimate expectations of investors who have committed themselves to such projects, and the continued operation of those installations" (para. 103). In that regard, the CJEU adopts an approach to the protection of the budgetary planning and constraints that Member States unavoidably face (particularly in terms of avoiding claims for compensation) that ressembles, but goes further than its approach in the restrictions to free movement of persons when the viability of the healthcare system is concerned. However, this approach fails to take into consideration that the incentives to investors are not unidirectional when it comes to environmental protection.

 

In the case at hand, energy producers based in Sweden may well have a clear need for an avoidance of changes in the regulatory regime on the basis of which they invested in the creation of renewal energy production facilities. However, those same investors may also have a very strong financial interest in being able to benefit from lower production prices or lower prives for green energy certificates in other Member States (eg, by acquiring cheaper green energy (certificates) in cheaper markets and selling theirs is highly-priced markets, if they identify opportunities for arbitrage). Moreover, some of those investors may wish to follow EU-wide or, at least, regional policies. That was the case of the appellant, Ålands Vindkraft when it was seeking to have green energy produced in Finland recognised under the Swedish scheme. Hence, by imposing absolute territorial protection to the schemes in support of green energy, Member States and the CJEU may actually be crowding out investors that do not wish to remain purely local. And that is not taken into consideration in the Ålands Vindkraft Judgment.

 

The reasoning in para. 118 also seems economically faulty to me. The CJEU considers that

provided that there is a market for green certificates which meets the conditions set out in paragraphs 113 and 114 above [ie proper functioning market mechanisms that are capable of enabling traders (...) to obtain certificates effectively and under fair terms] and on which traders who have imported electricity from other Member States are genuinely able to obtain certificates under fair terms, the fact that the national legislation at issue in the main proceedings does not prohibit producers of green electricity from selling (...) both the electricity and the certificates does not mean that the legislation goes beyond what is necessary to attain the objective of increasing the production of green electricity. The fact that such a possibility remains open appears to be an additional incentive for producers to increase their production of green electricity (emphasis added).

 

Effectively, what the CJEU affirms is that an importer that has already paid higher prices for green energy prices at origin (say, Finland) and that cannot use third country green certificates in Sweden, who then has to acquire (in fair terms, sic) additional green energy certificates in Sweden, has an increased incentive to produce green energy in Sweden. But that makes no sense unless this is complemented with the fact that such importer would have no incentive whatsoever to continue importing green energy into Sweden--hence reducing its production or demand for green energy elsewhere (say, Finland).

 

In my view, the proper considerations of these alternative (additional) economic effects may well have tilted the proportionality assessment in the other direction and forced the CJEU to conclude that the Swedish measure was not proportionate (as AG Bot proposed in his Opinion Ålands Vindkraft, para. 110).

 

3. A perpetuation of the difficulties that the EU faces to meet collective commitments under the Kyoto Protocol

As a final, functional point, it is worth stressing that the CJEU position in Ålands Vindkraft is squarely contrary to the fact that, as stressed by AG Bot in his Essent Belgium Opinion, the reduction of greenhouse gas emissions is just as effectively achieved through the use of foreign green electricity as domestic green electricity--which comes to undermine the global effectiveness of the EU's fight against climate change at the altar of the protection of domestic regulatory regimes and national budgets. The deference given by the CJEU to the political compromise achieved by the Member States in the passing of Directive 2009/28 (see paras. 53, 92, 94) can be actually self-defeating, given that the CJEU has completely given up on its role to push for a dynamic development of the internal market and for a clear support in the discharge of the EU's obligations vis-a-vis international partners. Indeed, it seems to me that the CJEU has sacrificed Art 194(1)(c) TFEU and, particularly, its "spirit of solidarity between Member States" in the altar of Member State finances. This may be a realist approach to the issue, but it definitely perpetuates the difficulties that the EU (as an international actor with separate legal personality) faces to act as one in the international arena and, particularly, to meet collective commitments under the Kyoto Protocol.

 

4. Conclusion

Overall, the Ålands Vindkraft Judgment deserves criticism from a strict legal perspective (due to the muddled situation in which it keeps environmental protection justifications to restrictions on free movement of goods), from an economic perspective (due to the partial and biased assessment of economic charges and incentives), and from a functional/political (international) perspective (as it diminishes the possibilities for the EU as a whole to comply with the Kyoto Protocol). Only Member States' Ministers of Finance can celebrate this situation...

CJEU stresses 'consumer interest' test under Art 34 TFEU and finds Spain guilty of "gold-plating" in transport services' regulation (C-428/12)

In its Judgment of 3 April 2014 in case C-428/12 Commission v Spain (new transport trucks) (only available in French and Spanish) the Court of Justice of the European Union (CJEU) has found Spain in breach of Art 34 and Art 36 TFEU due to the imposition of a disproportionate requirement in the system of authorisation of road transport services by companies not primarily engaged in road transport. In my view, the case is interesting because it deals once again with claims of justification based on road safety, in what seems to have become a topic in EU free movement of goods law [see C-110/05 Commission v Italy (mopeds) and, very recently, C-639/11 Commission v Poland (right steering wheel cars), discussed here and here].

 

In the case at hand, Spain had adopted regulations for the authorisation of companies providing ancillary road transport services that required that the age of the first heavy (ie above 3,500 kg) vehicle in the fleet of a (newly authorised) company did not exceed five months from its first registration. The Commission considered that this requirement infringed Art 34 TFEU and was not justified under Art 36 TFEU. One can wonder why the case was brought under this legal basis instead of the seemingly more appropriate of Art 49 TFEU (given that the system was concerned with a 'first' or new authorisation and, consequently, seemed to affect newly established transport companies particularly) or of Art 56 TFEU (on the provision of services, as the effect of the restriction surely would limit the offer of road transport services), although the (greater?) difficulty in justifying the existence of a cross-border impact and the exclusion of transport from the 2006 Services Directive may have played a role in the 'strategic' choice of legal basis by the Commission.

 

Taking the (uneasy?) approach of the restriction of the free movement of goods under Art 34 TFEU, the Commission considered that i) the Spanish rule constituted a measure having equivalent effect to a quantitative restriction on imports, ii) that such provision had the effect of restricting imports of heavy goods vehicles more than five months old from other Member States, and iii) that it violated the principle of mutual recognition and impeded access to the Spanish market, which had the effect of severely restricting the use of the vehicles concerned. The Commission also considered that neither road safety or environmental protection justifications could exempt the controverted rule. The CJEU rather keenly accepts the approach taken by the Commission and makes some interesting findings, not least consolidating the 'market access' test approach to the enforcement of Art 34 TFEU:

29 [...] it is clear from the case law that a measure, even if it does not have the purpose or effect of treating less favorably products from other Member States, is included in the concept of a measure equivalent to a quantitative restriction within the meaning of Article 34 TFEU if it hinders access to the market of a Member State of goods originating in other Member States (see, to that effect, Commission / Italy, C-110/05, EU: C: 2009:66, paragraph 37).

30 In this regard, the Court observes that the prohibition of use as the first vehicle in the fleet of vehicle with a maximum authorized mass exceeding 3.5 tonnes and more than five months old from the date of its first registration may have a considerable influence on the behavior of firms wishing to use a vehicle of this nature for complementary private transport, behavior which in turn can affect access of that product to the market of the Member State in question (C-428/12 at paras 29-30, own translation from Spanish).

The CJEU also consolidates the 'consumer interest' test in order to assess restrictions to market access:

31 [...] businesses, knowing that the use authorized [...] of a vehicle with a maximum authorized mass exceeding 3.5 tonnes and more than five months old from the date of first registration is restricted, will only have a limited interest in buying a truck like this for their complementary private transportation activities (see, to that effect, Commission / Italy EU: C: 2009:66, paragraph 57, and Mickelsson and Roos, EU: C: 2009:336, paragraph 27) (C-428/12 at para 31, emphasis added, own translation from Spanish).

The CJEU dismisses the claims for justification made by Spain, indicating that road safety could be protected by less intrusive measures (such as technical inspections, already in place) and also interestingly dismisses arguments based on the solvency of companies:

40 As regards [...] the other explanations given by the Kingdom of Spain [... such as] the proof of greater solvency of the company or even fostering better exploitation of vehicles for private complementary transport do not constitute reasons of public interest within the meaning of Article 36 TFEU or mandatory requirements within the meaning of the Court of Justice's case law (C-428/12 at para 40, own translation from Spanish).

In my opinion, the case is interesting because it consolidates the 'new' approach to the enforcement of Art 34 TFEU under a 'market access' test applied thorugh a 'consumer interest' (sub)test. It is also interesting because it continues to perpetuate the 'supremacy' of free movement of goods rules as the main analytical framework for the protection of the fundamental freedoms impinging the internal market.

CJEU 'consolidates' market access test in the enforcement of Art 34 TFEU (C-639/11 & C-61/12)

In its Judgments of 20 March 2014 in cases C-639/11 Commission v Poland and C-61/12 Commission v Lithuania, the Court of Justice of the European Union (CJEU) has found that both countries infringed their obligations under Art 34 TFEU by making registration in their territory of passenger vehicles having their steering equipment on the right-hand side, whether they are new or previously registered in other Member States, dependent on the repositioning of the steering wheel to the left-hand side. In my view, this case is interesting for at least two reasons.

 

Firstly, the CJEU has 'consolidated' the so-called 'market access test' in the enforcement of Art 34 TFEU by recasting the traditional 'Dassonville' formula and focussing the assessment on hindrances to market access. Indeed, in the 'new' (re)formulation of the test, the CJEU considers that

In view of the Court’s settled case-law, the contested legislation constitutes a measure having equivalent effect to quantitative restrictions on imports within the meaning of Article 34 TFEU, in so far as its effect is to hinder access to the Polish [sic, Lithuanian (oh, the joys of copy and paste!)] market for vehicles with steering equipment on the right, which are lawfully constructed and registered in Member States other than the Republic of Lithuania (see, concerning the origins of that case-law, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case 120/78 Rewe Zentral, ‘Cassis de Dijon’ [1979] ECR 649, paragraph 14; and, more recently, Case C‑110/05 Commission v Italy [2009] ECR I‑519, paragraph 58) (C-61/12 at para 57 emphasis added and, equally, C-639/11 at para 52, correction needed in the English version of the C-61/12 Judgment but not in other linguistic versions].

This may be seen as a relatively welcome development, as it continues in the line of clarification already initiated in C-110/05 Commission v Italy (mopeds) and consolidates a more encompassing test that allows for the harmonious assessment of potential restrictions to free movement of goods under a single, unified (and probably more functional) test.

 

Secondly, the case is important in that the CJEU deviates significantly from C-110/95 in applying a much more stringent test of (strict) proportionality to the measures adopted by Poland and Lithuania (basically, requiring a repositioning of the steering wheel prior to registration of the motor vehicles) than it did to the measures adopted by Italy (an outright ban of a specific type of trailers to be towed by motorbikes and other vehicles) on the grounds of road safety [see C-61/12 paras 63-69 and C-639/11 paras 58-65].

 

In my view, the application of such a stringent proportionality test (with which the CJEU seems to revitalise the pro-integrationist agenda in the enforcement of Art 34 TFEU) will create frictions with Member States for two main reasons.

 

Firstly, the 'consolidation' of the new (re)formulation around hindrance of market access indicates an effective substitution of the underlying rationale in internal market rules (art 34 TFEU particularly) from a producers’ freedom (push market) to a consumers’ right (pull market). This will be problematic unless free movement rules further converge with (effective) consumer protection and safety and similar concerns receive a common treatment throughout the EU (ultimately, the goal of the CJEU, particularly when it uses the argument that in 22 of the 28 Member States registration would not have required changing the wheel location).

 

And, secondly, because the new (re)formulation of the case law creates a dangerous test leading to a (very, too broad) Dassonville-like formula limited only by (subjective) proportionality analysis carried out by the CJEU, which can result in an encroachment of domestic regulatory powers if the CJEU adopts a tough stance, as it has done against Poland and Lithuania (and differently from its previous, more timid approach in the case against Italy).

 

In the future, it will be interesting to see if the CJEU does not find itself under the same amount of criticism as when it first adopted the Dassonville fomula and, consequently, whether the next round of evolution of the law on free movement of goods does not initiate a new restriction of the rules under a new version of Cassis de Dijon. All in all, the development of the law in this area of the internal market seems to evolve in cycles.

Free movement (of gold) meets consumer protection (C-481/12)

In its Judgment of 16 January 2014 in case C-481/12 Juvelta, the Court of Justice of the EU has issued an interesting decision concerned with the delicate balance between free movement of goods under Article 34 TFEU and the protection of consumers.

In the case at hand, gold jewellery was imported into Lithuania. The golden products had been stamped with the Polish hallmark to indicate their quality and fineness. The Polish and Lithuanian hallmarks differed in that Lithuanian rules require the express indication of the per thousand purity of the gold, whereas the Polish hallmark functions on a scale basis. Aware of such a divergence, the importer of the jewellery had complemented the Polish 'official' hallmark with a 'private mark' that expressly indicated the additional information necessary for Lithuanian consumers to understand the quality of the products. However, Lithuanian authorities were not willing to accept the validity of such 'private' second hallmark and required the products to be 'officially' marked again to comply with Lithuanian standards. The importer considered this an unjustified restriction of its free movement of goods rights and challenged the decision.

The CJEU framed the case within the standard Dassonville formula for the assessment of measures of equivalent effect to quantitative restrictions and offered some interesting insights into the limitations that consumer protection may introduce in that analytical framework. It is worth noting that, according to the CJEU,

23 In order to determine whether an indication of a standard of fineness not provided for by legislation of a Member State provides consumers with equivalent and intelligible information, the Court must take into account the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect (see, to that effect, Commission v Ireland, paragraph 32).

24 With regard to the proceedings [...] it should be noted that [...] the articles at issue in the main proceedings were stamped with hallmarks by an independent assay office authorised by the Republic of Poland, in accordance with that State’s legislation.

25 Likewise, [...] it is not disputed that the hallmark stamped on those articles shows their standard of fineness by means of the mark consisting of the numeral ‘3’ and that, in Poland, that mark is intended to denote articles of precious metals whose standard of fineness, expressed as the number of parts by weight of the precious metal in 1 000 parts by weight of the alloy, is 585.

26 It follows that the information provided by that mark is, as far as the articles of precious metal stamped with a hallmark in Poland are concerned, equivalent to that provided by the numerals ‘585’ on a hallmark stamped by an independent assay office authorised in Lithuania, in accordance with that State’s legislation.

27 That said, consideration must also be given to whether the marking of the numeral ‘3’ on the hallmarks stamped on the articles at issue in the main proceedings provides information intelligible to an average Lithuanian consumer who is reasonably well-informed and reasonably observant and circumspect.

28 In that regard, it must be held that it is probable that that mark is not intelligible to such a consumer, since such a person is not, in principle, deemed to know the Polish system of indicating standards of fineness for articles of precious metal.

29 However, although the restrictive effects of the legislation at issue can thus be justified by the objective of ensuring effective protection for Lithuanian consumers, and providing them with information relating to standards of fineness for articles of precious metal imported into Lithuania which are intelligible to them, such justification can be accepted only if that legislation is proportionate to the objective pursued, that is to say if, while appropriate in order to fulfil that objective, it does not go beyond what is necessary to attain it (C-481/12 at paras 23-29, emphasis added).

 

In Juvelta, then, the CJEU seems to have inserted an intermediate test of adequacy for consumer protection purposes that may need to be applied before the rule of reason analysis of the restrictive measure and in a cumulative manner. Hence, it seems that in situations where the application of free movement rules may leave consumers unprotected, the CJEU may be willing to set a limitation on the standard criteria of mutual recognition.

 

In general, then, it seems that the additional consideration of consumer protection/expectations comes to consolidate a 'suitability check' applied to the free movement rules (not to the measure having equivalent effect, which is still subjected to the traditional proportionality analysis) and, in that regard, seems fit for the purpose of ensuring overall consistency of the EU internal market rules--which, ultimately, should aim to protect consumers as well as allowing them to benefit from the increased efficiency that market competition brings about.

 

It may be that Juvelta does not create a revolution in the way free movement rules are applied (as such considerations had already occasionally been taken into account by the CJEU to a certain extent), but it may have spelled out more clearly the analytical path through which measures having equivalent effect against free movement of goods need to be assessed. In my view, this is a positive (incremental) development.