Free Movement of Goods and Their Use -- What Is the Use of It?
Movement of Goods and Their Use - What Is the Use of It?
What Is the
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Free Movement of Goods and Their Use –
What Is the Use of It?
Laurence W. Gormley
Shortly before the disappearance of the European Community, the European Court of Justice
(”ECJ”) handed down three judgments on the free movement of goods relating to the use to which
goods are put. They are remarkable because they put an end to a serious controversy about the
scope of what is now article 34 of the Treaty on the Functioning of the European Union (”TFEU”)
(article 28 of the Treaty Establishing the European Community (”EC Treaty”)), which saw a
considerable divergence in approach between the Advocates General concerned in these cases. The
judgments also surely herald an end to attempts to expand the ambit of the now notorious judgment
in Criminal Proceedings against Keck & Mithouard. These cases and their wider implications for
the future scope of article 34 TFEU (article 28 EC Treaty) are the subject of this Article. The
Article first examines and contrasts the approach of the Advocates General in each case
chronologically and then the judgments in the order handed down, before turning to draw conclusions for
the state of the law relating to the future application of the judgment in Keck.
FREE MOVEMENT OF GOODS AND THEIR USE—
WHAT IS THE USE OF IT?
Laurence W. Gormley*
Gordon Slynn, Lord Slynn of Hadley, was an outstanding
Advocate General and then judge at the Court of Justice of the
European Communities (as it then was),1 more usually referred
to (if inaccurately) as the European Court of Justice (“ECJ”), and
was later a distinguished member of the Judicial Committee of
the House of Lords. His passing has rightly been widely lamented
in legal and other circles,2 and it is with fond affection that I
* B.A. 1975, M.A. 1979, Oxford University; M.Sc. 1976 London University (LSE);
Barrister, Middle Temple, 1978; LL.D. Utrecht University, 1985; Professor of European
Law & Jean Monnet Professor, University of Groningen (The Netherlands), Jean
Monnet Centre of Excellence; Professor at the College of Europe, Bruges (Belgium).
1. As a result of the changes made by the Treaty of Lisbon, which entered into
force on December 1, 2009, the European Community has now disappeared, various of
its provisions being incorporated into the Treaty on the Functioning of the European
Union. See generally Treaty of Lisbon, Dec. 1
, 2007 O.J. C 306/1, corrigenda 2008
O.J. C 111/56 & 2009 O.J. C 290/1 (entered into force Dec. 1, 2009) [hereinafter
Reform Treaty]; Consolidated Version of the Treaty on the Functioning of the
European Union, 2010 O.J. C 83/47 [hereinafter TFEU]. As to the consolidated
versions of the Treaty on European Union [hereafter TEU], with the accompanying
Protocols (some of which are protocols to the TEU and TFEU, and some also to the
Treaty establishing the European Atomic Energy Community (consolidated version 2010
O.J. C84/12, corrigenda 2010 O.J. C 181/1)), Annexes, and Declarations attached to the
Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon,
2010 O.J. C 83/13; see also Consolidated Version of the Treaty Establishing the European
Community, 2006 O.J. C 321E/37 [hereinafter EC Treaty]. Since December 1, 2009, the
Court of Justice of the European Communities is now known as the Court of Justice of
the European Union (“ECJ”). Reform Treaty, supra, art. 1, 2009 O.J. C 306/01, at 16.
2. See, e.g., Laurence Gormley, Obituary: Gordon Slynn (1930-2009), 34 EUR. L. REV.
347, 347–48 (2009); Louis Blom-Coomper, Obituary: Lord Slynn of Hadley: Liberal Law
Lord, Judge and Advocate General of the European Court of Justice, GUARDIAN (London), May
22, 2009, at 41; Lord Slynn of Hadley: a Lord of Appeal in Ordinary, TIMES (London), Apr. 9,
2009, at 67; Obituary of Lord Slynn of Hadley Law: Lord and Staunch Europhile who Dissented
from the Decision to Extradite General Pinochet, DAILY TELEGRAPH (London), Apr. 8, 2009,
remember his various visits to Groningen, many hilarious meals
together, and his wise counsel and encouragement. The
dedication of this special issue of this Journal to him justly pays
further tribute to a great lawyer, judge, and tireless worker in
national, European, and international law circles for the rule of
law, respect for human rights and dignity, and liberation from all
forms of oppression and injustice.
TRIA JUNCTA IN UNO
Shortly before the disappearance of the European
Community,3 the ECJ handed down three judgments on the free
movement of goods relating to the use to which goods are put.
They are remarkable because they put an end to a serious
controversy about the scope of what is now article 34 of the
Treaty on the Functioning of the European Union (“TFEU”)
(article 28 of the Treaty Establishing the European Community
(“EC Treaty”)),4 which saw a considerable divergence in
approach between the advocates general concerned in these
cases. They also surely herald an end to attempts to expand the
ambit of the now notorious judgment in Criminal Proceedings
against Keck & Mithouard.5 These cases and their wider
implications for the future scope of article 34 TFEU (article 28
EC) are the subject of this Article, but, before examining these
cases, some scene-setting seems appropriate. Regular readers of
this Journal will recall the present author’s recent extensive
discussion on the free movement of goods,6 so a brief exposition
of classic areas of controversy will suffice.
Traditionally, academic debate on the free movement of
goods—and on articles 34–36 TFEU (articles 28–30 EC) in
particular—has centered on matters such as the scope of the
term “measures having equivalent effect”; whether
discrimination is necessary in order to find a prohibited effect;
whether equally-applicable measures are caught by articles 34–36
TFEU (articles 28–30 EC); the requirement of an interstate
element; the nature of the ECJ’s approach in Keck; the nature of
the case-law-based justifications for obstacles to the free
movement of goods; whether the ECJ was correct to treat
measures applicable without distinction as to the destination of
the goods concerned as usually not caught by article 35 TFEU
(article 29 EC); whether the case-law-based justifications and the
justifications under article 36 TFEU (article 30 EC) should be
assimilated; and the manner in which the ECJ approaches issues
such as the proportionality of obstacles to trade between Member
States which Member States argue are justified. Of these issues,
three are directly involved in these cases on use, namely: scope,
justification, and proportionality.
The ECJ clearly thought that it had settled the issue of the
scope of the term “measures having equivalent effect” with the
classic definition in the basic principle in Dassonville: “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.”7 That basic principle was
tempered by the development of case-law-based justifications for
6. See generally Laurence W. Gormley, Silver Threads Among the Gold . . . 50 Years of
the Free Movement of Goods, 31 FORDHAM INT’L L.J. 1637 (2008).
7. See Procureur du Roi v. Dassonville, Case 8/74,  E.C.R. 837, ¶ 9. As was
noted in my previous Article, the basic principle has remained steadfast, even though
“the reference to ‘trading rules’ is sometimes omitted, or replaced by ‘national rules’ or
simply ‘rules[.]’” Gormley, supra note 6, at 1647. It is trite law that rules or other
measures adopted by national, regional, or local authorities are caught, as are measures
adopted by bodies for whose acts under European Union law the Member State
concerned is responsible (including public bodies and public-owned/directed
companies): the state is the state in all its manifestations, whether acting as market
regulator or market participant.
such measures, in addition to the treaty-based justifications.8
Rapidly it became apparent that lawyers were seeking to stretch
the ambit of “measures having equivalent effect” into areas
where the integrationist merit was thin, to say the least, or wholly
non-existent.9 The judgment in Keck was a misconceived, albeit
perhaps understandable, judicial reaction to the feeling of being
constantly pushed by lawyers eager to score every point possible.
It represented a nuancing of the application hitherto of
Dassonville, but not a departure from it. As is well known, the
flood of cases continued unabated, and the ECJ has often been
Houdini-like in its contortions in its findings on whether or not
the Keck conditions for removing measures from the scope of the
Dassonville basic principle are satisfied.10
The issue of whether or not to assimilate the case-law-based
justifications is one on which the overwhelming majority of
authors are agreed: this is not something which should happen.11
There has been no pressure to add to the list of justifications
contained in article 36 TFEU (article 30 EC). The initial
confusion caused by the inclusion of the protection of public
health in the examples of “mandatory requirements”
(case-lawbased justifications) in Cassis de Dijon12 has now been cleared
up13: the protection of public health falls under the protection of
health and life of humans in article 36 TFEU (article 30 EC).14
However, it can be argued that some safety matters which the ECJ
now seems to treat as separate case-law-based justifications, i.e.,
road safety,15 shipping safety,16 and product safety,17 could equally
well be brought under the protection of the health and life of
humans, and thus, in relation to goods, under article 36 TFEU
(article 30 EC).18 The merit of a separate approach is that a clear
distinction is drawn between more classic health and life issues
and specific safety issues. This view only strengthens the
argument that the case-law-based justifications and the
treatybased justifications, although they have certain characteristics in
common, are and should remain distinct. As is well known, the
ECJ has consistently refused to add to the list of treaty-based
The proportionality of measures is a matter in which the ECJ
can exercise a great deal of discretion; this has usually resulted in
the conclusion that the national measures concerned are
unjustified. Although the ECJ frequently seems to merge the
question whether it is necessary to protect a given interest or
value with the question whether the measures adopted for that
purpose are proportionate, they logically remain separate issues,
and there are plenty of examples of the ECJ mentioning them
Proceedings against Van Schaaik, Case C-55/93,  E.C.R. I-4837; Schloh v. Auto
contrôle technique SPRL, Case 50/85,  E.C.R. 1855. More directly concerned
with road safety requirements as such are two cases discussed in the present Article:
Commission v. Portugal, Case C-265/06,  E.C.R. I-2245; Commission v. Italy, Case
C-110/05  E.C.R. I-519.
16. See Corsica Ferries Italia Srl v. Corpo dei Piloti del Porto di Genova, Case
C18/93,  E.C.R. I-1783, ¶¶ 16–36 (although this case deals with the freedom to
provide services rather than the free movement of goods).
17. See, e.g., A.G.M.-COS.MET Srl v. Suomen valtio and Tarmo Lehtinen, Case
] E.C.R. I-2749; Criminal Proceedings against Yonemoto, Case C-40/04,
 E.C.R. I-7755; Commission v. France, Case 188/84,  E.C.R. 419.
18. In relation to the freedom to provide services, the most analogous provision is
article 62 TFEU (article 55 EC) (which applies article 52(1) TFEU to the provision of
services), which accepts measures for the protection of public health as a legitimate limit
on the freedom to provide services. See TFEU, supra note 1, art. 62, 2010 O.J. C 83, at 71;
EC Treaty, supra note 1, art. 55, 2006 O.J. C 321 E, at 63. For services, therefore, it
indeed seems more appropriate to treat safety issues as case-law-based justifications. This
may explain why the ECJ has decided to treat safety issues as case-law-based justifications
in relation to the free movement of goods, even though the term “health and life of
humans” in article 36 TFEU (article 30 EC) is broad enough to embrace safety issues.
TFEU, supra note 1, art. 36, 2010 O.J. C 83, at 35; EC Treaty, supra note 1, art. 30, 2006
O.J. C 321 E, at 51.
19. For examples of the ECJ’s rejection of treaty-based justifications such as the
interests or values expressed in the first sentence of article 36 TFEU (article 30 EC), see
Commission v. Ireland, Case 113/80,  E.C.R. 1625, ¶ 5; Bauhuis v. Netherlands,
Case 46/76,  E.C.R. 5, ¶¶ 12–13; Commission v. Italy, Case 7/68,  E.C.R.
separately.20 The view which the ECJ has taken on
proportionality, particularly in relation to the freedom of
establishment and the freedom to provide services, has
sometimes been controversial,21 although the ECJ is also used to
dealing with matters in which emotions run high in the area of
the free movement of goods.22
All of these three aspects feature in the trio of spectacular
cases on the use of goods,23 which form the subject-matter of this
20. See LAURENCE GORMLEY, EU LAW OF FREE MOVEMENT OF GOODS AND CUSTOMS
UNION 507 (2009); Gormley, supra note 6, at 1637, 1679–80.
21. See, e.g., Int’l Transp. Worker’s Fed’n v. Viking Line ABP, Case C-438/05,
 E.C.R. I-10,779 (dealing with the right of establishment and industrial action);
Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, Case C-341/05, 
E.C.R. I-1167 (dealing with the freedom to provide services and industrial action). As to
barriers to the free movement of goods caused by unrest, see Eugen Schmidberger,
Internationale Transporte und Planzüge v. Austria, Case C-112/00,  E.C.R. I-5659;
Commission v. France, Case C-265/95,  E.C.R. I-6959 (inadequate police response
to angry farmers); see also the notification and consultation obligations imposed by
Council Regulation on Free Movement of Goods, No. 2679/98, art. 5, 1998 O.J. L
337/8, at 9; see generally Giovanni Orlandini, The Free Movement of Goods as a Possible
“Community” Limitation on Industrial Conflict, 6 EUR. L.J. 341 (2000).
22. See, e.g., Belgium v. Spain, Case C-388/95,  E.C.R. I-3123 (bottling
requirements in region of origin for Rioja wine); The Queen v. Minister of Agric.,
Fisheries and Food, ex parte Compassion in World Farming Ltd., Case C-1/96, 
E.C.R. I-1251 (export of live veal calves); Commission v. Federal Republic of Germany,
Case 178/4,  E.C.R. 1227 (quality standards for beer); see also Criminal
Proceedings against Zoni, Case 90/86,  E.C.R. 4233, ¶ 28 (pasta made from
durum wheat); Opinion of Advocate General Mancini, Glocken GmbH v. U.S.L.
CentroSud, Case 407/85,  E.C.R. 4233.
23. The ECJ had considered prohibitions of use in earlier judgments, but in
specific contexts which did not require consideration of a general approach to
restrictions on use. Thus, the Court of Justice upheld a general prohibition in Sweden
on the industrial use of trichloroethylene because of the health and life of humans
justification, noting that the Swedish system of individual exemptions was proportionate.
Kemikalieinspektionen v. Toolex Alpha AB, Case C-473/98,  E.C.R. I-5681, ¶ 49.
The ECJ also examined an Austrian prohibition of lorries of more than seven-and-a-half
tons, carrying certain goods, from being driven along certain motorway routes.
Commission v. Austria, Case C-320/0
] E.C.R. I-9871, ¶ 1. The court found that
the prohibition of traffic, which forced transport undertakings to seek at very short
notice viable alternative solutions for the transport of the goods concerned, was capable
of limiting trading opportunities between northern Europe and the north of Italy; the
alleged environmental justification (improvement of air quality) was rejected as being
Without the need for the Court itself to give a ruling on the existence of
alternative means, by rail or road, of transporting the goods covered by the
contested regulation under economically acceptable conditions, or to
determine whether other measures, combined or not, could have been
adopted in order to attain the objective of reducing emissions of pollutants in
Article. It is convenient, because the chronology of the opinions
and the judgments is so staggered, to examine and contrast first
the approach of the Advocates General in each case
chronologically and then the judgments in the order handed
down, before turning to draw conclusions for the state of the law
relating to the future application of the judgment in Keck.
THREE CASES, FOUR ADVOCATES GENERAL
The first of these cases to receive the attention of an
Advocate General was Commission v. Italy,24 which dealt with the
the zone concerned, it suffices to say in this respect that, before adopting a
measure so radical as a total traffic ban on a section of motorway constituting a
vital route of communication between certain Member States, the Austrian
authorities were under a duty to examine carefully the possibility of using
measures less restrictive of freedom of movement, and discount them only if
their inadequacy, in relation to the objective pursued, was clearly established.
More particularly, given the declared objective of transferring
transportation of the goods concerned from road to rail, those authorities
were required to ensure that there was sufficient and appropriate rail capacity
to allow such a transfer before deciding to implement a measure such as that
laid down by the contested regulation.
As the Advocate General has pointed out in paragraph 113 of his Opinion,
it has not been conclusively established in this case that the Austrian
authorities, in preparing the contested regulation, sufficiently studied the
question whether the aim of reducing pollutant emissions could be achieved
by other means less restrictive of the freedom of movement and whether there
actually was a realistic alternative for the transportation of the affected goods
by other means of transport or via other road routes.
Moreover, a transition period of only two months between the date on
which the contested regulation was adopted and the date fixed by the Austrian
authorities for implementation of the sectoral traffic ban was clearly
insufficient reasonably to allow the operators concerned to adapt to the new
Id. ¶¶ 87–90 (citations omitted). The ECJ thus concentrated on the effect on the
transportation of the goods rather than on the use of the lorries as such.
24. Opinion of Advocate General Léger, Commission v. Italy, Case C-110/05,
 E.C.R. 519. This opinion was delivered in unusual circumstances: as neither of
the parties had requested an oral hearing (which is unusual in infringement
proceedings), the case proceeded straight to the Advocate General’s opinion. While the
hearing in Åklagaren v. Mickelsson & Roos, Case C-142/05  E.C.R. I-4273, was
held on July 1
, Mr. Léger was the first Advocate General to pronounce in the
series of cases under discussion. Having heard his opinion, the Third Chamber of the
ECJ decided on November 9, 2006 to remit the case in Commission v. Italy to the Grand
Chamber, which by order of March 7, 2007 (transcript available in French on the ECJ’s
website) reopened the oral procedure to enable it to hear observations presented by the
parties and eight other Member States at a hearing on May 22, 2007. Advocate General
Bot was invited to present an opinion to the Grand Chamber, which he duly did on July
prohibition in Italy of the towing of trailers by mopeds. Advocate
General Léger had absolutely no difficulty in concluding that this
rule—which was equally applicable to domestic and imported
trailers registered in Italy alike—fell within the scope of what is
now article 34 TFEU (article 28 EC):
[I]t is undeniable that, by imposing a general and absolute
prohibition on the towing of trailers by mopeds throughout
Italian territory, the national rules at issue impede the free
movement of goods and, in particular, that of trailers.
Although that prohibition relates only to mopeds, it seems
to me that the coupling of a trailer to a vehicle of that kind
constitutes a normal and frequently used means of transport,
particularly in rural areas. However, those rules, although
not prohibiting imports of trailers and their marketing in
Italy, have the effect of limiting their use throughout Italian
territory. I am therefore of the opinion that such a
prohibition is liable to limit opportunities for trade between
the Italian Republic and the other Member States and to
hamper imports and the marketing in Italy of trailers from
those States, even though they are lawfully manufactured and
In those circumstances, it seems to me that the national
rules at issue constitute a measure having an effect
equivalent to a quantitative restriction, in principle
prohibited by Article 28 EC.25
Mr. Léger then turned to any possible justification. He
acknowledged that road safety—as an aspect of public safety and
the health and life of humans26—could be a legitimate ground
8, 2008. See Opinion of Advocate General Bot, Commission v. Italy, Case C-110/05,
 E.C.R. I-519.
25. Opinion of Advocate General Léger, Commission v. Italy,  E.C.R. 519, ¶¶
26. Advocate General Léger was clearly meaning safety in the sense of public
security (in various EU languages, the English words “safety” and “security” are largely
covered by the same word), although the ECJ seems to regard public security as being
something different. Id. The cases so far deal with matters such as safeguarding the
institutions of a Member State, its essential public services and the survival of its
inhabitants, internal and external security, and controls on the importation and
exportation of goods such as firearms, explosives, and the like. See Frits
WernerIndustrie-Ausrüstungen GmbH v. Germany, Case C-70/94,  E.C.R. I-3189, ¶ 25;
Criminal Proceedings against Leifer, Case C-83/94,  E.C.R. I-3231, ¶ 26; Criminal
Proceedings against Richardt & Les Accessores Scientifiques SNC, Case C-367/89,
 E.C.R. I-4621, ¶ 22; see also GORMLEY, supra note 20, at 463. See generally
Commission v. Greece, Case C-347/88,  E.C.R. I-4747; Campus Oil Ltd. v. Minister
for upholding the measures27: indeed, coupling a trailer to a
moped could, in certain circumstances, constitute a danger to
traffic insofar as such vehicles are slow and encroach significantly
upon the carriageway. He could well imagine that vehicular
traffic of that kind may be limited on certain roads, such as
motorways and particularly dangerous roads. However, the
Italian authorities had not produced any precise factor which
demonstrated how the ban contributed to road safety; it was clear
that the ban only applied to mopeds registered in Italy, and not
to foreign-registered mopeds with trailers. It was also evident that
the safety of drivers pursued by the rules at issue could be
guaranteed by measures less restrictive of intra-Community trade,
for example, by localized prohibitions, applicable to itineraries
that are considered dangerous, such as Alpine crossings or
particularly heavily used public highways.28 Mr Léger went on to
observe that Italy’s stated intention to amend its rules to conform
with Community law confirmed that analysis,29 and that it was, in
any event, incumbent upon the Italian authorities to consider
carefully, before adopting a measure as radical as a general and
absolute prohibition, whether it might be possible to resort to
measures less restrictive of freedom of movement and to rule
them out only if their unsuitability for attainment of the aim
pursued was clearly established.30
Advocate General Léger’s analysis follows a classical
Dassonville approach, considering first that there is clearly a
barrier to trade between Member States, and then proceeding to
deal with the alleged justification.31 As has already been noted,
the case was subsequently referred to the Grand Chamber of the
ECJ for further consideration after another opinion from
Advocate General Bot,32 but in order to follow the chronological
order of the opinions given, it is appropriate to return to Mr.
Bot’s opinion presently below.
Chronologically the first of these cases actually to have an
oral hearing, but second in terms of delivery of an opinion, is
Åklagaren v. Mickelsson & Roos.33 This concerned a prosecution in
Sweden for having driven personal watercraft on August 8, 2004,
on waters where the use of personal watercraft was not
permitted;34 the defendants relied on, inter alia, articles 28 and
30 EC (articles 34 and 36 TFEU). Advocate General Kokott
proposed that the ECJ exclude arrangements for the use of
goods from the scope of the basic principle in Dassonville,35 and
thus from article 28 EC (article 34 TFEU), in the same way as it
had excluded certain selling arrangements in Keck36 in response
to the increasing tendency of traders to invoke article 28 EC
(article 34 TFEU) to challenge any rule whose effect was to limit
their commercial freedom, even where such rules were not
aimed at products from other Member States.37 She noted that at
present, in the context of arrangements for use, ultimately
individuals could even invoke article 28 EC (article 34 TFEU) to
challenge national rules whose effect is merely to limit their
general freedom of action.38 She took the view that national
legislation which laid down arrangements for the use of products
did not constitute a measure having equivalent effect within the
meaning of article 28 EC (article 34 TFEU) so long as it applied
to all relevant traders operating within the national territory and
so long as it affected in the same manner, in law and in fact, the
marketing of domestic products and of those from other
Member States, and was not product-related.39 In order to
presented to the ECJ, as none had been presented initially; the Advocate General was
then able to take account of the observations.
33. See Åklagaren v. Mickelsson & Roos, Case C-142/05  E.C.R. I-4273.
Hearing was held July 1
, but the opinion was delivered December 1
the judgment was rendered June 4, 2009. See id.
34. See id. ¶¶ 14–15. Use was permitted on general navigable waterways and on
other waters where permission had been granted. See id. ¶¶ 1–13. The ban on use was
thus not total, but location-specific. See id.
35. Procureur du Roi v. Dassonville, Case 8/74,  E.C.R. 837.
36. Criminal Proceedings against Keck & Mithouard, Joined Cases C-267 &
268/91,  E.C.R. I-6097.
37. Opinion of Advocate General Kokott, Mickelsson & Roos,  E.C.R. I-4273.
38. See id. ¶ 48.
39. See id. ¶ 49.
support her view, she mentioned two extreme examples: a
prohibition on driving cross-country vehicles off-road in forests,
and speed limits on motorways.40 These, she felt, would also
constitute a measure having equivalent effect: it could be argued
that they possibly deter people from purchasing a cross-country
vehicle or a particularly fast car because they could not use them
as they wish, and the restriction on use thus constituted a
potential hindrance for intra-Community trade.41 However, she
concluded that prohibitions on use or national legislation that
permitted only a marginal use for a product, insofar as they
(virtually) prevented access to the market for the product, would
constitute measures having equivalent effect which are
prohibited under article 28 EC (article 34 TFEU), unless they
were justified under article 30 EC (article 36 TFEU) or by an
imperative public interest.42
With respect to the learned Advocate General, her examples
of the (equally-applicable) prohibition of off-road driving and
speed limits on motorways really are very old canards: they fail to
meet the criteria for measures having equivalent effect because
they are so remote from intra-Community trade as to have
nothing to do with it in reality—the integrationist merit is thin
beyond belief.43 This is the case even though the concept of
measures having equivalent effect to a quantitative restriction is
undoubtedly an effects doctrine rather than an intent-based
doctrine.44 And even if it could be argued that they were caught
under the basic principle in Dassonville, public policy, road safety,
and environmental considerations would be such obvious
justifications that the argument is simply not worth running. The
learned Advocate General’s observation that only marginal use
for a product resulting from of a virtually total prohibition of
market access would be enough to prevent the market access
concept inherent in the second of the famous conditions in Keck
for taking certain selling arrangements outside the scope of
article 34 TFEU (article 28 EC) from being satisfied was at least a
step in the right direction.45 It would indeed be for the national
court to ascertain whether this was the case.
The next Advocate General to pronounce was Ms. Trstenjak
in Commission v. Portugal in an opinion that is a model of
excellent analysis.46 This case dealt with a national rule
prohibiting the attachment of colored foil to the windows of
motor vehicles for the transport of persons or goods.47 Here the
issue was more straightforwardly concerned with the product as
such. The learned Advocate General had little difficulty in
finding that this meant that colored foil, which was lawfully
produced or marketed in other Member States, could not in
effect be bought in Portugal: Portuguese drivers would be
deterred from buying the foil because it was illegal to apply it to
their windscreens; if it could not be used, there was an obstacle to
it being imported and marketed.48
The Portuguese government had advanced two
justifications: the need to combat crime and the requirements of
road safety, since it made it easier to verify that the vehicle seats
were correctly occupied and that safety belts were being used as
45. The first condition was that the state rules concerned apply to all relevant
traders operating within the national territory; the second was that they affect in the
same manner, in law and in fact, the marketing of domestic products and of products
from other Member States. Provided that those conditions were fulfilled, the ECJ
concluded that there would be no prevention of access to the market or impediment to
access for foreign products any more that there was an impediment to access for
domestic products. See Criminal Proceedings against Keck & Mithouard, Joined Cases
C-267 & 268/91,  E.C.R. 6097, ¶ 16. There are several cases that exemplify the
ECJ’s willingness to examine total state barriers to market access. See, e.g., Douwe
Egberts NV v. Westrom Pharma NV et al., Case C-239/02,  E.C.R. I-7007, ¶¶ 48–
59; Konsumentenombudsmannen v. Gourmet Int’l Products AB, Case C-405/98, 
E.C.R. I-1795, ¶¶ 13–34; Konsumentenombudsmannen v. De Agnostini (Swenska)
Förlag AB, Joined Cases C-34–36/95,  E.C.R. I-3843, ¶¶ 32–35.
46. Opinion of Advocate General Trstenjak, Commission v. Portugal, Case
C256/06 , E.C.R. I-2245.
47. See id. ¶ 1.
48. See id. ¶ 2
required by the law.49 The prohibition was imposed in order to
ensure that it was possible to inspect the interior of the motor
vehicle from outside.50 The aim was not to achieve reasonably
clear visibility for the driver by preserving the light transmission
of the window, but to allow the competent authorities to verify
directly that road traffic legislation was being complied with
simply by observing motor vehicles and their occupants.51 Ms.
Trstenjak found these arguments deeply unconvincing: no
evidence had been adduced of a sufficiently serious present
threat to a fundamental interest of society so as to constitute a
threat to public policy in Portugal.52 Regarding road safety, she
found that facilitating the ease of checks was indeed an
appropriate method of contributing to road safety, but
concluded that the measure was disproportionate: there was a
lack of evidence that the prohibition on the use of tinted film
contributed to road safety—all the more so since the use of
tinted glass was not prohibited!53 Moreover, it would have been
possible for Portugal to have made provisions permitting the
attachment of foil provided that the European minimum light
transmission requirements were observed.54 In this product-based
scenario, Keck arguments, of course, played no part.
49. See id. ¶ 29.
50. See id. ¶ 47.
51. See id.
52. See id. ¶ 51.
53. See id. ¶¶ 54–57.
54. See id. ¶ 62. Member States could require, on the basis of Commission Directive
No. 2001/92, that the minimum light transmission of glazing ahead of the B-pillar be
seventy percent and on the windshield be seventy-five percent. 2001 O.J. L 291/24, at 25.
The Advocate General observed that this would “ultimately amount to a restriction of
the prohibition” under review so that “only the use of film which cannot guarantee the
observance of the prescribed limit values because of insufficient light transmission may
be prohibited.” See Opinion of Advocate General Trstenjak, Portugal,  E.C.R.
I2245, ¶ 63. In addition, the learned Advocate General observed that a further spatial
restriction of the prohibition to glazing which actually allowed the police to monitor
road traffic would be appropriate. She noted:
This would extend both to the windscreen of a motor vehicle and to the
glazing alongside the seats of the occupants of the vehicle, but not to the rear
windscreen. Not only would this allow the police to check the occupants of
vehicles through observation alone, but such a measure would also have no
material effect on the free movement of goods, unlike the contested
The final opinion to be considered is that of Advocate
General Bot, presented when Commission v. Italy was transferred
to the Grand Chamber of the ECJ.55 When the oral procedure
was re-opened, the Grand Chamber asked the parties and all the
other Member States to give their views on:
[T]he question of the extent to which and the conditions
under which national provisions which govern not the
characteristics of goods but their use, and which apply
without distinction to domestic and imported goods, are to
be regarded as measures having equivalent effect to
quantitative restrictions on imports within the meaning of
Article 28 EC.56
Apart from the parties, eight other Member States submitted
observations on this question.57 Mr. Bot came to the conclusion
that national measures governing conditions for the use of goods
should not be examined in the light of the criteria laid down by
the Court in Keck; he felt that “such measures f[e]ll within the
scope of Article 28 EC and may constitute measures having an
effect equivalent to quantitative restrictions . . . if they hinder
access to the market for the product concerned.”58 Mr. Bot gave
several reasons for this view.
First, he submitted that such a course of action would result
in the introduction of a new category of exemption from the
application of article 28 EC (article 34 TFEU); this would be
undesirable for a number of reasons.59 He was unsure whether
“the reasons which prompted the Court to exclude from the
scope of Article 28 EC rules on selling arrangements for products
also exist[ed] in the case of rules governing arrangements for
use.”60 Drawing distinctions between different categories of rules
was inappropriate—it was artificial and could be a source of
confusion for the national courts. Furthermore, to “exclude from
the scope of Article 28 EC national rules governing not only
selling arrangements for goods but also arrangements for their
use was contrary to the Treaty’s objectives, namely the creation of
a single and integrated market.”61 In his view, “such a solution
would undermine the useful effect of Article 28 EC, since it
would once more make it possible for Member States to legislate
in areas which, on the contrary, the legislature wished to
“communitarize.”62 That was “not the course that European
construction and the creation of a single European market
should follow.”63 He opined further that “[a] product must be
able to move, unhindered, within the common market, and
national measures which, in whatever way, create an obstacle to
intra-Community trade must be ones that the Member States can
Mr. Bot’s second reason was that there was no interest in
limiting the Court’s review of measures which, in fact, may
constitute a serious obstacle to intra-Community trade.65 He
regarded “[t]he judicial review carried out by the Court in
accordance with the ‘traditional analytical pattern’ laid down in
Dassonville and Cassis de Dijon” as “fully satisfactory” and saw no
reason to depart from it.66 “That analytical approach not only
ma[de] it possible for the Court to monitor Member States’
compliance with Treaty provisions,” but it also allowed the
Member States a certain leeway.67 The classic approach of the
wide basic principle accompanied by a strict interpretation of the
treaty-based justifications and the use of the case-law-based
justifications ensured that liberalization of trade did not affect
the pursuit of other general interests.68 At the same time this did
not give a carte blanche to the Member States, as the alleged
justifications on these public interest grounds had to pass
through the tests of necessity and proportionality.69 This
analytical approach enabled the ECJ to ensure judicial review of
61. Id. ¶¶ 90–91.
62. Id. ¶ 91.
65. See id. ¶ 92.
66. Id. ¶ 93.
67. Id. ¶ 94.
68. See id. ¶¶ 95–96.
69. See id. ¶ 98.
all measures adopted by the Member States.70 Such review was,
Advocate General Bot submitted, “necessary to make certain that
the Member States take account of the extent to which the rules
adopted by them [were] liable to affect the free movement of
goods and the enjoyment of freedoms of movement by operators
in the market,” as well as being “necessary to ensure that the
national courts were not prompted to exclude too many
measures from the prohibition” laid down by article 28 EC
(article 34 TFEU).71 It was right, therefore, to view the term
“restriction” in broad terms. At the same time, he noted that
judicial review had to remain limited, since the ECJ’s role was
“not systematically to challenge policing measures adopted by
the Member States”; it was “the review of proportionality which
enabled the Court to weigh the interests associated with
attainment of the internal market against those relating to the
legitimate interests of the Member States.”72 There was, he
concluded, “no reason for departing from that analytical
approach in favour of a solution which, ultimately, would to some
extent render nugatory one of the key provisions of the Treaty.”73
The third reason he advanced was that the Keck & Mithouard
criteria “c[ould] not be extended either to rules prohibiting the
use of a product or even to rules laying down arrangements for
its use.”74 Insofar as the Italian rules prohibited the use of a
product outright and thus rendered it entirely unusable, they
constituted, by their nature, an impediment to the free
movement of goods.75 He noted that “[e]ven if those rules
applied in the same way to domestic and imported products, they
prevent the latter from gaining access to the market.”76 That was
clearly a restriction, and an examination based on the
relationship between articles 28 and 30 EC (articles 34 and 36
70. See id. ¶ 100. In making this point about the need to retain the jurisdiction to
look at the national measures in the round (whereas when the Keck criteria are satisfied,
the ECJ effectively ousts its jurisdiction with the result that the measures fall outside the
scope of the prohibition in article 34 TFEU (article 28 EC)), the learned Advocate
General silently followed the argument advanced in Laurence W. Gormley, Two Years
after Keck, 19 FORDHAM INT’L L.J. 866, 881, 885 (1996).
71. Opinion of Advocate General Bot, Italy,  E.C.R. I-519, ¶ 100.
72. Id. ¶ 101.
73. Id. ¶ 102.
74. Id. ¶ 103.
75. See id. ¶ 104.
TFEU) was appropriate.77 This also applied, he submitted, “to
measures which lay down the arrangements for a product’s
use.”78 He further noted:
Even if those measures did not in principle seek to regulate
trade in goods between Member States, they may
nevertheless have effects on intra-Community trade by
affecting access to the market for the product concerned. It
is therefore, in my view, preferable to examine measures of
that kind in the light of the Treaty rules rather than to
remove them from the scope of the Treaty.79
In the light of these three reasons, he concluded that the
Keck criteria were inappropriate and that the Italian rules should
be examined on the basis of article 28 EC (article 34 TFEU)
using a criterion that had been developed in the light of the aim
pursued by article 28 EC and was “common to all restrictions on
freedom of movement, namely the criterion of access to the
market.”80 This would be “based on the effect of the measure on
access to the market rather than on the object of the rules
involved.” The criterion would apply to “all types of rules, be they
requirements relating to the characteristics of a product, selling
arrangements or arrangements for use,” and would be “based on
the extent to which national rules hinder trade between Member
States.”81 Thus, “a national measure would amount to a measure
having an effect equivalent to a quantitative restriction, contrary
to the Treaty, where it prevented, impeded or rendered more
difficult access to the market for products from other Member
States,” regardless of the aim of the measure concerned.82 On the
basis of that criterion, “the Member States would only have to
provide justification for measures that impeded intra-Community
trade.”83 This, Mr. Bot argued, “would facilitate a more
appropriate balance between requirements relating to the proper
functioning of the common market and those relating to the
requisite respect for the sovereign powers of the Member
77. See id.
78. See id. ¶ 105.
80. Id. ¶¶ 106–07.
81. Id. ¶¶ 109–10.
82. Id. ¶ 111.
83. Id. ¶ 112.
States.”84 A case-by-case approach should be taken by the ECJ,
with a specific examination of “the extent of the obstacle to
intraCommunity trade caused by the measure limiting access to the
On the basis of this approach, Mr. Bot then relatively quickly
concluded that the Italian measure hindered access to the Italian
market for trailers attached to a moped, motorcycle, tricycle or
quadricycle.86 The prohibition made it “practically impossible to
penetrate the Italian market”; “the extent of the prohibition was
such that it [left] no scope for anything other than purely
marginal use of trailers.”87 They were rendered “entirely useless
because they could not be used for the normal purpose for which
they were intended,” which was to increase the luggage-carrying
capacity of a motorcycle.88 Distributors were therefore dissuaded
from importing them if they could not be sold or rented. The
effect of the prohibition was thus to significantly reduce
imports.89 Given that the use of trailers was prohibited
throughout Italian territory, there was “a substantial, direct and
immediate obstacle to intra-Community trade.”90
As to any possible justification, Mr. Bot was brief. The
prohibition applied not to use in “specific localities or on
particular itineraries, but appli[ed] throughout Italian territory,
regardless of road infrastructure and traffic conditions.”91 No
argument of proportionality had been advanced by the Italian
government and, as Advocate General Léger had already
observed, the prohibition concerned only motorcycles registered
in Italy, so that “vehicles registered in other Member States were
therefore authorised to tow a trailer on Italian roads.”92 Like Mr.
Léger, Mr. Bot considered that “the driver safety sought by the
Italian legislation could be achieved by means that restrict
freedom of trade to a much lesser extent.”93 For example, it
85. Id. ¶ 113.
86. See id. ¶¶ 147–77.
87. Id. ¶¶ 157–58.
88. See id. ¶ 158.
89. See id.
90. Id. ¶ 159.
91. Id. ¶ 153.
92. Id. ¶ 169.
93. Id. ¶ 170.
would be appropriate, he submitted, “to define which itineraries
in Italy [were] considered to be fraught with risks—such as
mountain crossings, motorways or even particularly heavily used
public highways—for the purpose of laying down sectoral
prohibitions or limitations”; such an approach would “reduce
the risks arising from the use of trailers and would certainly be
less restrictive of trade.”94 Advocate General Bot furthermore
noted that the Italian authorities were obliged to “examine
closely, before adopting as radical a measure as a general and
absolute prohibition, the possibility of resorting to measures less
restrictive of freedom of movement and not to reject them unless
it was clearly established that they were not consonant with the
aim pursued”; such an examination had never been
This extensive discussion of Mr. Bot’s approach is justified
because of his clear faith in the market access approach, but it
may be wondered quite what this adds to the basic principle in
Dassonville,96 other than a seemingly seductive name. On the
facts, it may be that, for example, a government-sponsored
campaign to promote national products has actually had no
demonstrable impact or has actually backfired, but that has not
prevented the ECJ from holding that there is still a barrier to
trade.97 Another disturbing aspect of Mr. Bot’s approach is how
easily a case-by-case examination of the extent of the obstacle to
interstate trade can descend into the introduction of a de minimis
rule, an approach which has rightly always been rejected by the
ECJ whenever it has reared its ugly head.98 While his observation
that the Dassonville and Cassis de Dijon approaches work well is
indeed to be welcomed, it is submitted that the apparent charms
of his approach are full of traps for the unwary.
The four Advocates General involved in these three cases
produced very different approaches to the question of whether
the rules relating to the use of goods fall within the scope of
article 34 TFEU. Fortunately, the judgments mark a firm
rejection of siren calls in favor of the importance of the unity of
the internal market within the European Union.
II. PARADISE REGAINED?
The first of the cases under discussion to come to judgment
was Commission v. Portugal,99 a decision of the Third Chamber of
the ECJ. In a model of orthodox application of the basic
principle in Dassonville,100 the ECJ noted that the Portuguese
government admitted that the ban on tinted film restricted the
marketing of those products in Portugal. The ECJ had no
difficulty at all in concluding that potential customers, traders, or
individuals had practically no interest in buying them, knowing
that affixing such film to the windshield and windows alongside
passenger seats in motor vehicles was prohibited.101
The only issue remaining was whether there was any
justification for the measure. Unsurprisingly, in view of Ms.
Trstenjak’s clear opinion, the conclusion was that the measure
was excessive and that the alleged justification was not
established.102 The only argument advanced by Portugal was that
the ban enabled the “passenger compartment of motor vehicles
to be immediately inspected by means of simple observation from
outside the vehicle.”103 While the Third Chamber accepted that
the ban appeared likely to facilitate this inspection and, thus,
appropriate to attain the objectives of fighting crime and
102. See id. ¶ 47.
103. Id. ¶ 40.
ensuring road safety, it did not follow that it was necessary to
attain those objectives or that there were no other less restrictive
means of doing so. Visual inspection was “only one means among
others . . . in order to fight crime and prevent offences relating to
the obligation to wear seat belts.”104 The alleged necessity of the
ban was only further undermined when Portugal admitted at the
hearing that it allowed the marketing in its territory of motor
vehicles fitted from the outset with tinted windows within the
limits laid down by Council Directive 92/22.105 Tinted windows,
like tinted film, may prevent any external visual inspection of the
interior of vehicles. The ECJ pointed out that “unless it was
accepted that, as regards motor vehicles fitted at the outset with
tinted windows,” the Portuguese authorities had “abandoned
their campaign to fight crime and their efforts to enforce road
safety, it was clear that they must use other methods to identify
criminals and persons who may be breaking the rules concerning
the wearing of seat belts.”106 Furthermore, no evidence had been
adduced to show “that the ban, in so far as it concerned all tinted
film, [was] necessary to promote road safety and combat
crime.”107 Given “that there was a wide range of tinted film, from
transparent film to film which is almost opaque . . . at least some
films, namely those with a sufficient degree of transparency,
permit[ted] the desired visual inspection of the interior of motor
vehicles.”108 For all these reasons, which closely follow the
approach proposed by the learned Advocate General, the Third
Chamber rightly concluded that the measure concerned was not
Ten months later, the Grand Chamber handed down its
judgment in the motorcycle trailers case, Commission v Italy.109
The judgment follows an orthodox line, as could be anticipated
in view of the submissions of Advocate General Bot, although
without any opening up of a de minimis possibility. The approach
is firmly grounded in Dassonville110 and Cassis de Dijon.111 The
Grand Chamber noted that “[i]t is also apparent from settled
case-law that Article 28 EC reflects the obligation to respect the
principles of non-discrimination and of mutual recognition of
products lawfully manufactured and marketed in other Member
States, as well as the principle of ensuring free access of
Community products to national markets.”112
The Grand Chamber cited in support of this paragraphs
from three well-known judgments.113 While there is nothing
wrong about this proposition as such, and although it is clearly
illustrative and not limitative, the paragraphs cited in support
only support partially. The first of these, in Sandoz, reads:
As regards the requirement of a market demand it must be
emphasized that the sole fact of imposing such a condition
constitutes in itself a measure having an equivalent effect to a
quantitative restriction prohibited by Article 30 which cannot
be covered by the exception in Article 36. The objective
pursued by the principle of free movement of goods is
precisely to ensure for products from the various Member
States access to markets on which they were not previously
The second part of this quotation clearly supports the
second part of the Grand Chamber’s proposition set out above.
The paragraphs relied upon from Cassis de Dijon,115 however,
were not carefully selected. Paragraph 6 of that judgment lends
no support at all to the Grand Chamber’s proposition; it merely
states what assistance the national court was asking from the
ECJ.116 Paragraph 14 first states that the German rules did not
“serve a purpose which [was] in the general interest and such as
to take precedence over the free movement of goods”;117 it then
notes that the principal effect of the requirement of a minimum
alcohol percentage was to exclude from the German market
products of other Member States which had a lower alcohol
content. It then draws the conclusion that there was an obstacle
to trade, and finishes with the statement that:
There is therefore no valid reason why, provided that they
have been lawfully produced and marketed in one of the
Member States, alcoholic beverages should not be
introduced into any other Member State; the sale of such
products may not be subject to a legal prohibition on the
marketing of beverages with an alcohol content lower than
the limit set by the national rules.”118
As is well-known, this paragraph makes the famous mistake
of using the term “lawfully produced and marketed” instead of
“lawfully produced or marketed” that the scheme of free
movement within the European Union requires.119 The final
paragraph adduced from Cassis de Dijon, paragraph 15, simply
states the conclusion that where the importation of alcoholic
beverages lawfully produced and marketed in another Member
State is concerned, the fixing of a minimum alcohol content
constituted a measure having equivalent effect.120 Thus, one of
the three paragraphs cited is irrelevant, the third states the
conclusion in the judgment, and the second lays the embryonic
foundation of the principle of mutual recognition of goods.121
The last judgment cited in support of the proposition is Keck
itself.122 Paragraphs 16 and 17 of that judgment set out the
celebrated two tests which the Court said, if met, would take
certain rules governing selling arrangements outside the scope of
article 30 EC (article 36 TFEU) and express the market access
Returning to the Grand Chamber’s approach in Commission
v. Italy, the Court repeated the conclusion from Cassis de Dijon:
[I]n the absence of harmonisation of national legislation,
obstacles to the free movement of goods which are the
consequence of applying, to goods coming from other
Member States where they are lawfully manufactured and
marketed, rules that lay down requirements to be met by
such goods constitute measures of equivalent effect to
quantitative restrictions even if those rules apply to all
It then simply trotted out paragraphs 16 and 17 of Keck
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.125
Clearly, there was no prospect of measures relating to the
use of goods being taken outside the scope of article 34 TFEU
(article 28 EC). Orthodoxy was maintained and the line was held.
123. See id. ¶¶ 16–17.
124. Commission v. Italy, Case C-110/05,  E.C.R. I-519, ¶ 35 (citations
omitted). Again the Grand Chamber referred in paragraph 35 to paragraphs 6, 14, and
15 of Cassis de Dijon. See id. ¶ 35. While this is a correct statement of the result of Cassis de
Dijon, the wording as such does not occur in the judgment in Cassis de Dijon! The Grand
Chamber also referred to Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH
v. Heinrich Bauer Verlag, Case C-368/95,  E.C.R. I-3689, ¶ 8, and to Deutscher
Apothekerverbund eV v. 0800 Doc Morris, Case C-322/01,  E.C.R. I-14,887, ¶ 67.
See Italy, Case C-110/05,  E.C.R. I-519, ¶ 35. These two paragraphs merely restate
paragraph 15 of Keck with the addition in Doc Morris of the sentence, “Even if a measure
is not intended to regulate trade in goods between Member States, the determining
factor is its effect, actual or potential on intra-Community trade.” See Doc Morris, 
E.C.R. I-14,887, ¶ 67.
125. Italy, Case C-110/05,  E.C.R. I-519, ¶ 37. The measures referred to in
paragraph 35 are those set out in the preceding quotation. See supra note 12
The Grand Chamber then went on to look at whether there
was indeed an obstacle to intra-Community trade.126 It noted that
the Commission had not drawn a distinction between trailers
specially designed to be towed by motorcycles and those not so
specifically designed.127 In relation to the latter, it concluded that
the Commission had failed to establish that the Italian
prohibition hindered access to the Italian market for that type of
trailer.128 In respect of the trailers specially designed for towing
by motorcycles, the Grand Chamber noted that the Commission
had stated, without being contradicted by the Italian
government, that “the possibilities for their use other than with
motorcycles are very limited”; the Commission had argued that,
“although it [was] not inconceivable that they could, in certain
circumstances, be towed by other vehicles, in particular, by
automobiles, such use was inappropriate and remained at least
insignificant, if not hypothetical.”129 The Grand Chamber noted
that “a prohibition on the use of a product in the territory of a
Member State ha[d] a considerable influence on the behaviour
of consumers, which, in its turn, affect[ed] the access of that
product to the market of that Member State.”130 Thus,
“[c]onsumers, knowing that they were not permitted to use their
motorcycle with a trailer specially designed for it, ha[d]
practically no interest in buying such a trailer”131 The contested
Italian measure thus “prevent[ed] a demand from existing in the
market at issue for such trailers and therefore hinder[ed] their
Thus far, the judgment is coherent in its approach. Then
logical reasoning disappears and the Grand Chamber defers to
the Italian arguments wholesale, almost giving the appearance of
a compromise; the rejection of the argument that rules on the
use of goods should be taken outside the scope of what is now
article 34 TFEU (article 28 EC) came at the price of the
acceptance of the justification advanced by the Italian
authorities.133 As so often happens when the ECJ takes a stand on
principle, the price is the acceptance of the measure in the
instant case,134 and it may well be that this was the price needed
to get majority agreement on use. First, the Grand Chamber
really should know better than to state:
[T]he prohibition . . . , to the extent that its effect is to
hinder access to the Italian market for trailers which are
specially designed for motorcycles and are lawfully produced
and marketed in Member States other than the Italian
Republic, constitutes a measure having equivalent effect to
quantitative restrictions on imports within the meaning of
Article 28 EC, unless it can be justified objectively.135
If a measure is justified, it does not cease to be a measure
having equivalent effect; it is merely a measure which is accepted,
having been reviewed for necessity and proportionality, because
of the interest or value pursued. The trade-restricting effects do
not disappear! This logical mistake is all too frequently made and
really ought to stop.
The judgment then turned to deal with the road safety
argument.136 Italy claimed that “it introduced the measure
because there were no type-approval rules, whether at the
Community level or national level, to ensure that use of a
motorcycle with a trailer was not dangerous.”137 In the absence of
such a prohibition, the argument went, “circulation of a
combination composed of a motorcycle and an unapproved
trailer could be dangerous both for the driver of the vehicle and
for other vehicles on the road, because the stability of the
combination and its braking capacity would be affected.”138 The
Grand Chamber of the ECJ had, understandably, no difficulty in
finding that the prohibition in question was appropriate for the
purpose of ensuring road safety. In the absence of fully
133. See id. ¶ 60.
134. Just one example illustrates the point. See Köbler v. Republik Österreich, Case
C-224/01,  E.C.R. I-10,239 (explicit acceptance of the principle of state liability
for acts of the judiciary incompatible with Community law, but finding no liability in that
135. Italy, Case C-110/05,  E.C.R. I-519, ¶ 58.
136. See id. ¶¶ 60–61.
137. Id. ¶ 63.
harmonized rules, it was for the Member States to make up their
own minds about the level of road safety which they wished to
ensure, while taking account of the requirement of the free
movement of goods.139 This meant that they had a margin of
discretion: Member States could determine “the degree of
protection which [they] wish[ed] to apply in regard to such
safety and the way in which that degree of protection should be
achieved.”140 Given that such “degree of protection might vary
from one Member State to the other . . . the fact that one
Member State imposes less strict rules than another Member
State does not mean that the latter’s rules are
Italy had submitted, without being contradicted by the
Commission, that the combination of a motorcycle and a trailer
is a danger to road safety.142 Although the burden of proof was
on the Member State invoking “an imperative requirement as
justification for the hindrance to free movement of goods to
demonstrate that its rules are appropriate and necessary to attain
the legitimate objective being pursued,” that did not mean that
the Member State could be required to “prove, positively, that no
other conceivable measure could enable that objective to be
attained under the same conditions.”143 While the Grand
Chamber acknowledged, as Advocate General Bot had observed,
that it was possible to envisage other approaches, which could
guarantee a certain level of road safety for the “circulation of a
combination composed of a motorcycle and a trailer,” it felt that
Member States could not be “denied the possibility of attaining
an objective such as road safety by the introduction of general
and simple rules which w[ould] be easily understood and applied
by drivers and easily managed and supervised by the competent
Quite simply, the Grand Chamber took a different view of
the proportionality of the measure than Advocates General Léger
and Bot did. However, the only real justification for a total
prohibition, as opposed to a prohibition on certain roads or in
certain places or situations, seems to be the convenience
argument of ease of understanding, management, and
supervision. The weakness of that argument is that it can be
made of any extensive rule, including the Portuguese rule on
tinted film in Commission v. Portugal,145 although in that case the
absurdity was obvious, given that tinted glass was not prohibited.
The Commission does not seem (at least so it appears from the
judgment) to have been willing to tackle this general argument
head on. But the Grand Chamber also ignored the point that
foreign-registered motorcycles were allowed to tow trailers in
Italy. Why the road safety argument should weigh so heavily on
Italian-registered motorcycles is not apparent, although EU law
does permit a Member State to disadvantage its own goods146
(subject to any national law argument about equal treatment
before the law).147 However, the proportionality of a measure is a
matter on which opinions may well diverge, as in this case. As
explained above, the Grand Chamber’s approach has the serious
whiff of compromise about it.148
Finally, the last nail in the coffin of the sirens seeking to
remove restrictions on use from the ambit of measures having
equivalent effect was firmly hammered in by the judgment of the
Second Chamber of the ECJ in Mickelsson & Roos.149 Here, the
Second Chamber unsurprisingly in effect cut and pasted from
the judgment of the Grand Chamber in Commission v. Italy in
144. Italy,  E.C.R. I-519, ¶ 67. The Grand Chamber of the ECJ also observed
that it could not be presumed that “road safety could be ensured at the same level as
envisaged by the Italian Republic by a partial prohibition of the circulation of such a
combination or by a road traffic authorisation issued subject to compliance with certain
conditions.” Id. ¶ 68.
145. Commission v. Portugal, Case C-256/06,  E.C.R. I-2245.
146. Thus the German government could maintain the Reinheitsgebot (beer purity
law) for beer brewed in Germany for consumption in Germany.
147. See Criminal Proceedings against Guimont, Case C-448/98,  E.C.R.
148. See supra note 133 and accompanying text.
149. See Åklagaren v. Mickelsson & Roos, Case C-142/05  E.C.R. I-4273.
rejecting the approach of Advocate General Kokott in Mickelsson
& Roos.150 The difference in this case was that it was not a direct
action but a reference under the then article 234 EC (article 267
TFEU).151 Thus applying the touchstone to the facts was a matter
for the national court:
[W]here the national regulations for the designation of
navigable waters and waterways have the effect of preventing
users of personal watercraft from using them for the specific
and inherent purposes for which they were intended or of
greatly restricting their use, which is for the national court to
ascertain, such regulations have the effect of hindering the
access to the domestic market in question for those goods
and therefore constitute, save where there is a justification
pursuant to Article 30 EC or there are overriding public
interest requirements, measures having equivalent effect to
quantitative restrictions on imports prohibited by Article 28
This time the formula at the end is more promisingly
formulated: justified measures are not described as not being
measures having equivalent effect, but rather as not being
measures having equivalent effect prohibited by article 28 EC
(article 34 TFEU). The situation was clear; the rejection of Ms.
Kokott’s view implicit. All that remained was to consider the
The Swedish government had contended that the
regulations involved prohibiting the use of jet skis were justified
by the objective of environmental protection and the objectives
referred to in article 30 EC (article 36 TFEU).153 Sweden further
argued that “[t]he restriction on the use of personal watercraft to
particular waters ma[de] it possible, inter alia, to prevent
unacceptable environmental disturbances”; “[t]he use of
personal watercraft ha[d] negative consequences for fauna, in
particular where such a craft [was] used for a lengthy period on a
small area or driven at great speed”; “[t]he noise as a whole
disturb[ed] people and animals and above all certain protected
150. Id. ¶ 28.
151. See id.; see also TFEU, supra note 1, art. 267, 2010 O.J. C 83, at 164; EC Treaty,
supra note 1, art. 23
O.J. C 321 E, at 135–36.
152. Mickleson & Roos,  E.C.R. I-4273, ¶ 28.
153. See id.
species of birds,” and, moreover, “the easy transport of personal
watercraft facilitated the spread of animal diseases.”154
The Second Chamber acknowledged that the protection of
the health and life of humans, animals, and plants under article
30 EC (article 36 TFEU) was distinct from the case-law-based
justification on the ground of environmental protection, but
decided to examine all these grounds together.155 It had no
difficulty in concluding that a restriction or prohibition on the
use of personal watercraft was an appropriate means of ensuring
environmental protection, but then turned to the question of
proportionality.156 Here too, as in Commission v. Italy,157 the ECJ
was influenced by what was practical and manageable. The
Swedish government submitted that “the prohibition on the use
of personal watercraft l[eft] users of those craft with not less than
300 general navigable waterways on the Swedish coast and on the
large lakes, which constitute[ed] a very extensive area.”158
Moreover, it submitted, “the geographical position of those
aquatic areas in Sweden preclude[d] measures of a scope”
different from that of the provisions concerned.159 The Second
Chamber showed some, but not an unrestricted, understanding
of this position, noting that although measures other than the
regulation at issue “could guarantee a certain level of protection
of the environment,” Member States could not be “denied the
possibility of attaining an objective such as the protection of the
environment by the introduction of general rules which [were]
necessary on account of the particular geographical
circumstances of the Member State concerned and easily
managed and supervised by the national authorities.”160
However, the Second Chamber paid careful attention to the
proportionality argument. It noted that the Swedish regulations
provided for “a general prohibition of the use of personal
watercraft on waters other than general navigable waterways”
unless the former has been designated for use by personal
watercraft; the designating authority was empowered, but in a
154. Id. ¶ 30.
155. See id. ¶¶ 31–33.
156. See id. ¶¶ 30–32.
157. Commission v. Italy, Case C-110/05,  E.C.R. I-519.
158. Mickelsson & Roos,  E.C.R. I-4273, ¶ 35.
160. Id. ¶ 36.
number of circumstances obliged, to issue such rules.161 As to the
allegedly necessary nature of the measure in question, the
wording of the national regulations themselves suggested that, on
waters which had to be “designated by implementing measures,
personal watercraft may be used without giving rise to risks or
pollution deemed unacceptable for the environment.”162 The
result was inevitable: “[A] general prohibition on using such
goods on waters other than general navigable waterways
constitute a measure going beyond what is necessary to achieve
the aim of protection of the environment.”163 But where (1)
there was a requirement imposed on the competent authorities
to adopt implementing measures, (2) those authorities had
“actually made use of the power conferred on them and
designated the waters which satisfy the conditions provided for by
the national regulations,” and (3) those measures were “adopted
within a reasonable period after the entry into force of those
regulations,”164 regulations prohibiting or restricting the use of
personal watercraft could be justified by the aim of the
protection of the environment.165 It was for the national court to
ascertain whether those conditions had been satisfied.166
Although the Second Chamber emphasized that the
assessment of the facts was indeed a matter for the national
court, it felt that, in a spirit of cooperation with national courts, it
should provide the national court with all the guidance that it
deemed necessary.167 The Second Chamber noted that the
national regulations had been in force only for about three weeks
when the fines were issued to the defendants.168 The Second
Chamber went on to state:
The fact that measures to implement those regulations had
not been adopted at a time when those regulations had only
just entered into force ought not necessarily to affect the
proportionality of those regulations in so far as the
161. Id. ¶ 37.
162. Id. ¶ 38.
164. Id. ¶ 39.
165. See id. ¶ 40.
166. See id.
167. See id. ¶ 41.
168. See id. ¶ 42.
competent authority may not have had the necessary time to
prepare the measures in question. 169
But that was a matter for the national court. Then the
Second Chamber added an important proviso to ensure that the
defendants would not be prejudiced compared to what their
situation would have been had the appropriate implementing
measures been adopted:
[I]f the national court were to find that implementing
measures were adopted within a reasonable time but after
the material time of the events in the main proceedings and
that those measures designate as navigable waters the waters
in which the accused in the main proceedings used personal
watercraft and consequently had proceedings brought
against them, then, for the national regulations to remain
proportionate and therefore justified in the light of the aim
of protection of the environment, the accused would have to
be allowed to rely on that designation; that is also dictated by
the general principle of Community law of the retroactive
application of the most favourable criminal law and the most
This judgment offers a very delicate balance of the interests
involved. Inaction by the administration would clearly be fatal to
the national measures, and the defendants should, if national
measures had subsequently been adopted within a reasonable
time concerning the waters on which the defendants had used
their jet skis, be able to rely on that designation so as to escape
any penalty which would otherwise be imposed. The Second
Chamber of the ECJ was clearly taking account of the fact that
the case was received by the ECJ on March 24, 2005 and
judgment was finally given on June 4, 2009.171
These three judgments offer a very mixed picture, putting
the emphasis firmly on market access while taking very
interesting—and frankly not always terribly consistent—
170. Id. ¶ 43. The Second Chamber cited in support of this proposition the
judgment in Criminal Proceedings against Berlusconi, in which it had found that the
principle of the retrospective application of the more lenient penalty formed part of the
constitutional traditions common to the Member States. Id. (citing Criminal
Proceedings against Berlusconi, Joined Cases C-387, 391, 403/02,  E.C.R. I-3565,
171. See generally Mickelsson & Roos,  E.C.R. I-4273.
approaches to the justifications advanced by the Member States
concerned. In particular, the approach to road safety seems to
depend on the length of the proverbial Lord Chancellor’s foot!
The care which the Second Chamber of the ECJ took over the
proportionality question in Mickelsson & Roos172 and the Third
Chamber took in Commission v. Portugal173 stands in shrill contrast
to the frankly cavalier approach of the Grand Chamber in the
face of the carefully considered approach on proportionality
suggested by Advocates General Léger and Bot.
The ECJ in these judgments places great emphasis on the
position of the consumer in relation to market access. Thus, in
Commission v. Portugal, the Third Chamber noted that, because of
a prohibition on affixing tinted film, potential customers,
traders, or individuals had practically no interest in buying tinted
film.174 In Commission v. Italy, the Grand Chamber spoke of the
prohibition having considerable influence on the behavior of
consumers, which, in its turn, affected the access of the product
to the Italian market, so that consumers, knowing that they were
not permitted to use their motorcycle with a trailer specially
designed for it, had practically no interest in buying such a
trailer.175 This formula was repeated in relation to personal
watercraft in Mickelsson & Roos by the Second Chamber.176
Clearly the point is that if use is prohibited there will be no
purchasers. But this emphasis on the consumer is also perfectly
appropriate in relation to selling arrangements, such as
pricecutting campaigns, and even shop closing hours. If restriction of
market access is to be the criterion on which measures are to be
judged, which is the line taken in Commission v. Italy and
effectively in Mickelsson & Roos, what is the place of certain
selling arrangements, and why should the consumer’s interest
there weigh less heavily than in the use cases, and particularly
than in Commission v. Portugal? What precisely is left of Keck? Is
173. Commission v. Portugal, Case C-265/06,  E.C.R. I-2245.
174. Id. ¶ 33.
175. Commission v. Italy, Case C-110/05, , E.C.R. I-519, ¶¶ 56–57.
176. See Mickelsson & Roos,  E.C.R. I-4273, ¶¶ 26–27.
the ECJ trying, as Eleanor Spaventa has deliciously put it, to have
its Keck and eat it, too?177
III. YOU CAN’T ABDICATE AND EAT IT178
The central problem with the ECJ’s approach in these three
judgments is that it is trying to situate a market access approach
firmly in the line of Dassonville and Cassis de Dijon, while
maintaining the exclusion of certain selling arrangements—still
famously undefined—which satisfy the two Keck conditions. As
observed above, the judgments cited in support of this approach
only partly support it and in fact deal with very different
situations indeed. Sandoz concerned a prosecution for selling
food and beverages which contained unauthorized additives; the
comments about access to markets on which the products
concerned were not previously represented were made in the
context of the requirement under Dutch legislation that the
importer prove that the marketing of the product concerned met
a market demand.179 Cassis de Dijon concerned a national
minimum alcohol content for fruit liqueurs.180 Both Sandoz and
Cassis de Dijon dealt with products from other Member States that
were actually lawfully produced and marketed there, as do the
three judgments discussed in this Article,181 albeit that the latter
all concern the use of a product rather than a straightforward
prohibition on its sale. As the ECJ rightly saw, though, if the use
of a product for the purpose for which it is manufactured is
prohibited, the effect in practice is the same as a prohibition.
Finally, Keck concerned a prohibition on resale at less than the
purchase price, a classic selling technique designed to promote
the goods concerned.182 As suggested above, the consumer’s
interest in having access to products under favorable conditions
is in fact as much present in relation to price campaigns as it is in
relation to being able to use a product.
In Commission v. Italy, the Grand Chamber of the ECJ sought
to set out the principles of the free movement of goods: (1) the
basic principle in Dassonville, (2) the concepts of
nondiscrimination, mutual recognition, and market access, and (3)
the exemption from the concept of measures having equivalent
effect for measures which satisfy the Keck criteria.183 This caused
the ECJ to conclude that the following are to be regarded as
measures having equivalent effect to quantitative restrictions on
(1) “measures adopted by a Member State the object or
effect of which is to treat products coming from other Member
States less favourably”;184
(2) “obstacles to the free movement of goods which are the
consequence of applying, to goods coming from other Member
States where they are lawfully manufactured and marketed, rules
that lay down requirements to be met by such goods . . . even if
those rules apply to all products alike”185; and
(3) “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.”186
Given that the Grand Chamber expressly maintained the
Keck treatment of certain selling arrangements, it is clear that it
did not want to signal a retreat from its treatment of matters such
as shop closing; 187 restrictions on advertising188 (other than
where the restriction closed off access completely);189 itinerant
sales;190 and doorstep sales.191 Thomas Horsley has argued that,
by choosing not to follow the approach suggested by Advocate
General Kokott and equating restrictions on use with selling
arrangements, the ECJ has once again brought within the scope
of article 34 TFEU (article 28 EC) a category of equally
applicable measures without the need to demonstrate any
discriminatory effect.192 The better view, it is submitted, is that
the Court actually chose to treat restrictions on use as being rules
concerning the products, as opposed to being non-product-based
rules. Horsley is correct to say that Member States will have to
justify their preferences within the strict derogations
framework,193 but this is nothing more than what the Treaty on
the Functioning of the European Union (and previously the EC
Treaty) actually envisages, and is the logical consequence of a
finding that the measure is a measure having equivalent effect.194
The Grand Chamber failed to mention the problem of goods
originating outside of the European Union but placed in free
circulation within a Member State and lawfully marketed there,
then exported into another Member State. However, as the facts
were confined to products lawfully produced and marketed
within the European Union, the wording is unsurprising.
Horsley submits that the measures set out in heading (3)
above195 are subject to the requirement that the effect on market
access goes beyond a certain degree;196 he also submits that after
Mickelsson & Roos, for measures merely restricting (as opposed to
E.C.R. I-3689; Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v. Mars GmbH,
Case C-470/93,  E.C.R. I-1923.
189. See, e.g., Konsumentenombudsmannen v. De Agostini (Svenska) Förlag AB,
Joined Cases C-34-36/95,  E.C.R. I-3843.
190. See, e.g., Konsumentenombudsmannen v. Gourmet Int’l Products AB, Case
C405/98,  E.C.R. I-1795; Criminal Proceedings against Burmanjer, Case C-20/0
] E.C.R. I-4133.
191. See, e.g., A-Punkt Schmuckhandels GmbH v. Schmidt, Case C-441/0
192. Thomas Horsley, Anyone for Keck?, 46 COMMON MKT. L. REV. 2001, 2010–11
193. See id. at 2012.
194. See TFEU, supra note 1, art. 36, 2010 O.J. C 83, at 35; EC Treaty, supra note 1,
art. 28, 2006 O.J. C 321 E, at 52. This is supplemented by the ECJ’s case-law-based
justifications, as tested against the principles of necessity and proportionality.
195. See supra note 186 and accompanying text.
196. Horsley, supra note 192, at 2013.
prohibiting) use, the new market access test is subject to a
requirement that the restriction impede market access to a
sufficient degree.197 He bases this argument on paragraph 26 of
the latter judgment:
[T]he restriction which they impose on the use of a product
in the territory of a Member State may, depending on its
scope, have a considerable influence on the behaviour of
consumers, which may, in turn, affect the access of that
product to the market of that Member State.198
In paragraph 28 the Second Chamber stated:
[W]here the national regulations for the designation of
navigable waters and waterways have the effect of preventing
users of personal watercraft from using them for the specific
and inherent purposes for which they were intended or of
greatly restricting their use, which is for the national court to
ascertain, such regulations have the effect of hindering the
access to the domestic market in question.199
It is respectfully submitted that it would be wholly contrary
to the demands of a single market within the European Union to
see a market access test subject to a certain degree of
impediment. Not only has the ECJ constantly rejected attempts to
plead de minimis,200 but it would also make nonsense of the ECJ’s
approach in those cases where the territorial effect of a measure
has been confined to a part of a Member State.201 The degree of
use restriction which would be caught was left unsaid, but it
surely cannot have been the intention of the Second Chamber to
reverse earlier case law and introduce a de minimis exception
through the back door. Although the expression, “a considerable
influence on the behaviour of consumers, which, in its turn,
affects the access of that product to the market of that Member
State[,]” is also found in paragraph 56 of Commission v. Italy, in
paragraph 57 the Grand Chamber made it clear that the measure
prevented a demand from existing in the market at issue for such
197. See id. at 2015.
198. Åklagaren v. Mickelsson & Roos, Case C-142/05,  E.C.R. I-4273, ¶ 26.
199. See id. ¶ 28.
200. See supra note 42 and accompanying text.
201. See, e.g., Criminal Proceedings against Bluhme, Case C-67/97,  E.C.R.
I8033 (measures to protect a rare and endangered species on a small island in
Denmark); Du Pont de Nemours Italiana SpA v. Unità Sanitaria Locale No. 2 di Carrara,
Case C-21/88,  E.C.R. I-889.
trailers and therefore hindered their importation.202 Accordingly,
on policy grounds, it is submitted that any impression that the
ECJ will permit de minimis restrictions on use is ill-founded. The
ECJ has shown that it is prepared to use the proportionality test
robustly in Commission v. Portugal and Mickelsson & Roos, yet
timidly in Commission v. Italy. But it is manifest that the
application of principles to facts will involve a careful
examination of the proportionality of the measure, particularly
in the case of measures governing the use of products. In relation
to heading (3) above, Spaventa rightly states that the Grand
Chamber was unclear about the meaning of the phrase “any
other measure.” She identifies a possible narrow interpretation
as any measure that is neither a selling arrangement meeting the
Keck criteria nor a product requirement; she also identifies a
wider interpretation as embracing any non-discriminatory
measure, including selling arrangements, apart from product
requirements, which are always regarded as hindering
intraEuropean Union trade.203 It is submitted that this simply means
any measure not covered by headings (1) or (2) above.204
Spaventa has argued that the Keck distinction based on the
type of rules is no longer relevant, and that what now matters is
the effect of the rules on market access.205 The ECJ itself does not
appear to see it that way in its judgments. Although market access
plays the central role in the argumentation, the intention of the
ECJ is not to revise its view of the certain selling arrangements as
expressed in Keck, nor to revise the conditions under which it
declares article 34 TFEU inapplicable. On the other hand, the
exceptional status of those measures which do satisfy the Keck
criteria is more and more anomalous. Perhaps the truth is that
the ECJ is not thinking in terms of grand theory, but is actually
simply deciding, on a case-by-case basis, the reasonableness of
national measures. The ECJ does not particularly have an eye to
theoretical considerations, and it is worth recalling that judges
are more concerned with sorting out disputes than forming a
202. Commission v. Italy, Case C-110/05,  E.C.R. I-519, ¶¶ 56–57.
203. See Spaventa, supra note 177, at 921.
204. See supra notes 184–85 and accompanying text.
205. See Spaventa, supra note 177, at 928–29. The article by P. Wenneras & K. Boe
Moen, Selling Arrangements, Keeping Keck, 35 EUR. L. REV. 387 (2010) was published well
after this contribution was submitted; it has not been possible to take account of it at
coherent doctrine, even though they try to be consistent as much
as possible. If the approach in Keck was a reaction to
management concerns about the ECJ being flooded out by
litigants seeking to challenge any national rule which prevented
them from trading quite as they wished, the cases on the use of
goods discussed in this Article signal the end of the slippery slope
approach of allowing any expansion of the type of measures
which the ECJ will accept as not being caught by article 34 TFEU
(article 28 EC).
One further point should be mentioned: the judgments in
Commission v. Italy and Mickelsson & Roos were a very long time in
gestation; the decision to re-open the oral procedure in
Commission v. Italy and have it considered by the Grand Chamber
brought an understandable delay, but clearly there must have
been a robust discussion at the deliberations in these two cases. It
seems, with respect, that pragmatism triumphed, and that recent
reports of the death of Keck may, like those of Mark Twain’s
death, prove to be greatly exaggerated.206
All the above simply goes to show how much more sensible
it would be for the ECJ simply to say that measures affecting the
use of goods fall under the basic principle in Dassonville, and
have to be justified now under article 36 TFEU or under the
caselaw-based justifications. Market access should not be seen as a
criterion as such, but merely as an example of a measure which
can hinder, directly or indirectly, actually or potentially, trade
between Member States. The ECJ meant what it said in
Dassonville, and it is time that people realized it! The time for a
unified approach to the freedoms of the internal market has
certainly come and that must involve a reassessment of Keck, but
the Dassonville basic principle said it all in 1974; mutual
recognition put the icing on the cake in Cassis de Dijon, and that
is all that was necessary. Market access is a nice shorthand for
Dassonville, but not a substitute for it.
Gordon Slynn was a pragmatic man; his analysis was always
clear and to the point, but firmly founded on common sense,
206. See Fachverband der Buch und Medienwirtschaft v. LIBRO
Handelsgesellschaft mbH, Case C-531/07,  E.C.R. 3717.
without being tied to dogma for the sake of fitting into doctrinal
straightjackets. He well understood that while in the good
continental tradition, the professors, not the judges, “hold the
law,” judges have to deal with the disputes before them in a
manner which seeks to balance competing interests and leads to
an effective and satisfactory solution. In a committee situation in
which one judgment is produced, compromises in reasoning are
inevitable if a majority is to be secured for a particular outcome:
result orientation abounds, and concessions on a broad scope of
a principle may have to be met by concessions on the assessment
of proportionality. The solution in Commission v. Portugal and in
Mickelsson & Roos is to be welcomed; the solution in Commission v.
Italy is mystifying and cries out for harmonization. That the ECJ
has not quite managed to please everyone with its reasoning on
the scope of article 34 TFEU (article 28 EC), and its reasoning on
proportionality in these cases on the use of goods may indeed be
disappointing, but Gordon would not have found it unexpected.
In heaven, Dassonville will be found, and surely a good claret or
burgundy too; Gordon will be cellar master. May his memory live
3. See supra note 1 and accompanying text. The last consolidated version of the Treaty Establishing the European Communities was published in 2006, see EC Treaty, supra note 1 , 2006 O.J. C 321 E, but it did not take account of the accession of Bulgaria and Romania on January 1, 2007 . See Treaty of Accession, 2005 O.J. L 157/11; Act of Accession, 2005 O.J. L 157/203.
4. See TFEU , supra note 1, art. 34 , 2010 O.J. C 83 , at 35; EC Treaty, supra note 1, art. 28 , 2006 O.J. C 321 E, at 52 .
5. Criminal Proceedings against Keck & Mithouard , Joined Cases C- 267 & 268/91,  E.C.R. I-6097. Various Member States have frequently attempted to argue that the approach in Keck to selling arrangements should be extended from what is now article 34 TFEU (article 28 EC) to the other freedoms . See, e.g., Alpine Invs . BV v. Minister van Financiën, Case C - 384 /93,  E.C.R. I-1141 , ¶¶ 36 - 39 ; Union Royale Belge des Sociétés de Football Ass 'n v . Bosman , Case C- 415 /93,  E.C.R. I-4921 , ¶¶ 102 - 03 .
8. For a summarization of this development, see Gormley , supra note 6 , 1647 , 1679 - 87 .
9. See id. at 1648-60.
10. See id. at 1660-77.
11. Contra PETER OLIVER , FREE MOVEMENT OF GOODS IN THE EUROPEAN COMMUNITY 216 ( 2003 ) (accepting that the majority of writers do not share his view).
12. See Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) , Case 120 /78,  E.C.R. 649 , ¶ 8 .
13. See Aragonesa de Publicidad Exterior SA v. Departmento de Sanidad y Seguridad Social de la Generaliteit de Cataluña, Joined Cases C- 1 & 176/90,  E.C.R. I-4151 , ¶¶ 9 - 13 .
14. See TFEU , supra note 1, art. 36 , 2010 O.J. C 83 , at 35; EC Treaty, supra note 1, art. 30 , 2006 O.J. C 321 E, at 53 .
15. A number of cases have dealt with roadworthiness tests . See, e.g., Commission v . Netherlands, Case C- 297 /05,  E.C.R. I-7467 ; Cura Anlagen GmBH v. Auto Service Leasing GmbH , Case C- 451 /99,  E.C.R. I-3193; Sneller's Auto's BV v . Algemeen Directeur van de Dienst Wegenverkeer , Case C- 314 /98,  E.C.R. I-8633 ; Criminal for Indus. and Energy , Case 72 /83,  E.C.R. 2727 . In any event, it is clear that he envisaged road safety as falling within the fields covered by the first sentence of what is now article 36 TFEU (article 30 EC) .
27. Opinion of Advocate General Léger, Commission v. Italy,  E.C.R. 519 , ¶¶ 43 - 46 .
28. See id. ¶ 59 .
29. See id.
30. See id. ¶ 60 .
31. See Gormley, supra note 6 , at 1657.
32. Opinion of Advocate General Bot, Commission v. Italy,  E.C.R. I-519. The case was referred to the Grand Chamber in order to permit observations to be
40. See id. ¶ 45 .
41. See id.
42. See id. ¶ 87. She also concluded that national rules that laid down a prohibition on using personal watercraft in waters, in respect of which the county administrative boards had not yet decided whether environmental protection requires a prohibition on use there, were disproportionate, and therefore not justified unless they included a reasonable deadline by which the county administrative boards had to have taken the relevant decisions . See id.
43. The argument that the measures concerned had in reality nothing to do with intra-Community trade was spectacularly used by the ECJ in Blesgen v . Belgium, Case 75 /81,  E.C.R. 1211 , and H. Krantz GmbH & Co. v. Ontvanger der Directe Belastingen, Case C- 69 /88,  E.C.R. I- 583 .
44. See , e.g., Deutscher Apothekerverbund eV v . 0800 Doc Morris NV , Case C222/01 ,  E.C.R. I - 14 , 887 , ¶ 67 ; Dynamic Medien Vertriebs GmbH v. Avides Media AG , Case C - 244 /06,  E.C.R. I-505 , ¶ 27 .
55. Opinion of Advocate General Bot, Commission v. Italy, Case C- 110 /05,  E.C.R. I- 519 .
56. See id. ¶ 6.
57. See id. (these countries were Cyprus, Czech Republic , Denmark, France, Germany, Greece, the Netherlands, and Sweden).
58. Id . ¶ 11 .
59. See id. ¶ 88 .
60. Id . ¶ 89 . Mr . Bot noted that there had not been a large number of cases brought to the ECJ on the use of goods . See id.
94. Id . ¶ 170 .
95. Id . ¶ 171 .
96. Procureur du Roi v . Dassonville, Case 8 / 74 ,  E.C.R. 837 .
97. See , e.g., Commission v . Ireland, Case 249 /81,  E.C.R. 4005 , ¶ 25 .
98. See , e.g., Radlberger Getränkegesellschaft mbH & Co . v. Land BadenWürttemberg, Case C- 309 /02,  E.C.R. I - 11 , 763 , ¶ 68 ; Commission v. Italy, Case 103 /84,  E.C.R. 1759 , ¶ 18 ; Commission v. France, Case 269 /83,  E.C.R. 837 , ¶¶ 10 - 11 ; Criminal Proceedings against Van der Haar, Joined Cases 177 & 178/82,  E.C.R. 1797 , ¶¶ 12 - 13 ; Criminal Proceedings against Prantl, Case 16 /83,  E.C.R. 1299 , ¶¶ 20 - 21 . Despite the invitation by Advocate General Jacobs, the ECJ has steadfastly held the line against a de minimis approach in article 34 TFEU (article 28 EC) . See Opinion of Advocate General Jacobs, Société d'Importation Édouard Leclerc-Siplec v . TFI Publicité , Case C- 412 /93,  E.C.R. I-179 , ¶¶ 38 - 39 , 43 , 46 . In Hünermund v. Landesapothekerkammer Baden-Württemberg , Advocate General Tesauro has stated that this would be a “very difficult, if not downright impossible” exercise . Opinion of Advocate General Tesauro, Hünermund v. Landesapothekerkammer Baden-Württemberg , Case C- 292 /92,  E.C.R. I-6787 , ¶ 21 ; see Giuseppe Tesauro , The Community's Internal Market in the Light of the Recent Case-law of the Court of Justice, 15 Y.B. EUR . L. 1 , 7 ( 1995 ).
99. Commission v. Portugal, Case C- 265 /06,  E.C.R. I- 2245 .
100. Dassonville ,  E.C.R. 837 .
101. See Portugal ,  E.C.R. I-2245 , ¶¶ 14 - 15 . The only exception was in relation to the “goods compartment of goods vehicles and to non-wheeled vehicles .” Id. ¶ 34 .
104. Id . ¶ 42 .
105. Council Directive No. 92 /22/EEC, On Safety Glazing and Glazing Materials on Motor Vehicles and Their Trailers , 1992 O.J. L 129/11, amended by Commission Directive No. 2001 /92/EC, 2001 O.J. L 291/24.
106. Portugal ,  E.C.R. I-2245 , ¶ 44 .
107. Id . ¶ 45 .
108. Id . ¶ 46 .
109. Commission v. Italy, Case C- 110 /05  E.C.R. I- 519 .
110. Procureur du Roi v . Dassonville, Case 8 / 74 ,  E.C.R. 837 .
111. Cassis de Dijon, Case 120 /78,  E.C.R. 649 .
112. Id . ¶ 34 .
113. See id. (citing Criminal Proceedings against Keck & Mithouard , Joined Cases C- 267 & 268/91,  E.C.R. I-6097 , ¶¶ 16 - 17 ; Criminal Proceedings against Sandoz BV , Case 174 /82,  E.C.R. 2445 , ¶ 26 ; Cassis de Dijon , Case 120 /78,  E.C.R. 649 , ¶ ¶ 6 , 14 , 15).
114. Sandoz ,  E.C.R. 2445 , ¶ 26 . The article numbers referred to are now articles 34 and 36 TFEU respectively .
115. Cassis de Dijon,  E.C.R. 649 .
116. Id . ¶ 6 .
117. Id . ¶ 14 .
118. Id .
119. The present writer has pointed this out on many occasions . See, e.g., Gormley, supra note 6 , at 1649- 50 . The only explanation might be that the facts concerned goods lawfully produced and marketed in France, and that nobody thought about goods produced outside the (then) European Economic Community and lawfully marketed within a Member State, which then were exported into another Member State .
120. Cassis de Dijon,  E.C.R. 649 , ¶ 15 .
121. See Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on February 20 , 1979 in Cassis de Dijon, Case 120/78 , 1980 O.J. C 256/2; see also René Barents, New Developments in Measures Having Equivalent Effect, 18 COMMON MKT . L. REV. 271 , 296 ( 1981 ). See generally Laurence Gormley, Cassis de Dijon and the Communication from the Commission, 6 EUR . L. REV. 454 ( 1981 ).
122. See Criminal Proceedings against Keck & Mithouard , Joined Cases C- 267 & 268/91,  E.C.R. I- 6097 .
126. See id. ¶ 33 .
127. See id. ¶ 52 .
128. See id.
129. Id . ¶ 55 .
130. Id . ¶ 56 .
131. Id . ¶ 57 ( citations omitted). The Grand Chamber of the ECJ rightly cited in support of this proposition the judgment in Commission v . Portugal. Id.; see also Commission v. Portugal, Case C- 256 /06,  E.C.R. I-2245 , ¶ 35 .
132. Italy ,  E.C.R. I-519 , ¶ 57 .
139. See id. ¶ 61 . The Grand Chamber of the ECJ referred to Commission v . Italy, Case 50 /83,  E.C.R. 1633 , ¶ 12 , and, by analogy, Commission v. Germany, Case C131/93 ,  E.C.R. I-3303 , ¶ 16 .
140. Italy ,  E.C.R. I-519 , ¶ 65 .
141. Id . The Grand Chamber of the ECJ referred by analogy to Commission v . Germany, Case C- 141 /07,  E.C.R. I-6935 , ¶ 51 ; Commission v. France, Case C262/02 ,  E.C.R. I-6609 , ¶ 37 .
142. See Italy ,  E.C.R. I-519 , ¶ 66 .
143. Id . The Grand Chamber of the ECJ referred by analogy to Commission v . Netherlands, Case C- 157 /94,  E.C.R. I-5699 , ¶ 58 .
177. Eleanor Spaventa , Leaving Keck Behind? The Free Movement of Goods After the Rulings in Commission v . Italy and Mickelsson and Roos , 34 EUR. L. REV. 914 , 921 ( 2009 ).
178. As Wallis Simpson is said to have remarked to Edward VIII. See JOHN JULIUS NORWICH , TRYING TO PLEASE 48 ( 2008 ).
179. Criminal Proceedings against Sandoz BV, Case 174 /82,  E.C.R. 2445 , ¶ ¶ 2 , 4 , 25 - 27 .
180. Cassis de Dijon, Case 120 /78,  E.C.R. 649 , ¶ 3 .
181. In Mickelsson & Roos, there was no specific indication whether the jet skis used were actually imported or not .
182. Criminal Proceedings against Keck & Mithouard , Joined Cases C- 267 & 268/91,  E.C.R. I-6097 , ¶ 2 .
183. Commission v. Italy, Case C- 110 /05, , E.C.R. I-519 , ¶¶ 33 - 36 .
184. Id . ¶ 37 .
185. Id . ¶ 35 .
186. Id . ¶ 37 . These headings are hereinafter referred to as heading (1), heading (2) and heading (3) respectively .
187. See , e.g., Semeraro Casa Uno Srl v . Sindaco del Comune di Ebrusco , Joined Cases C-418- 21 , 460 - 62 , 464 /93, 9 - 11 , 14 - 15 , 23 - 24 , 332 /94,  E.C.R. I-2975 ; Punto Casa SpA v. Sindaco del Commune di Capena , Joined Cases C- 69 & 258/93,  E.C.R. I - 2355 ; see also GORMLEY, supra note 20 , at 409-10.
188. See , e.g., Société d'Importation Édouard Leclerc-Siplec v . TF1 Publicité SA , Case C - 412 /93,  E.C.R. I-179 ; Hünermund v. Landesapothekerkammer BadenWürttemberg , Case C- 292 /92,  E.C.R. I-6787. But as to advertising restrictions affecting the presentation or packaging of the product itself, see Douwe Egberts NV v . Westrom Pharma NV , Case C - 239 /02,  E.C.R. I-7007; Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v . Heinrich Bauer Verlag, Case C- 368 /95,