Tag: free movement

Matthew Foster

2^nd year LLB student at King’s College London

a.   Introduction

The Court of Justice of the European Union[1] (CJEU) is one of the most active judicial bodies in the world, delivering over 26,000 judgements since its creation.[2] Its impact upon Europe has been deep and pervasive and it has influence over many different policy sectors.[3] As AG Maduro correctly identifies, the Court has engaged in systematic “majoritarian activisim”[4] in pursuance of judicial harmonisation. Moreover, the Court frequently takes a teleological approach to jurisprudence in order to achieve this objective, sometimes basing its decisions upon “the spirit” of the Treaties opposed to their literal wording.[5] The scope, motivations and approach of the Court have a compounded effect, making it incredibly potent. It is capable of creating highly creative (and sometimes unpredictable) case law which can affect a wide range of people in a broad variety of sectors. Such power has the potential to be both highly beneficial and highly damaging.

In light of this some scholars have questioned its legitimacy.[6] There is an inherent friction between Member States and the Court; as Craig and de Burcá highlight “each has locked itself into a system of review whose dynamics it cannot easily control”[7]. This is because the Court’s power of review stems from all 28 Member States who all have divergent opinions. Holding the Court to account is therefore very difficult. This poses a problem when one considers the uneasy relationship direct effect and primacy have with Member State sovereignty. However the biggest danger to the Court, and the important role it plays, is itself. As established, the stakes are very high and poor judicial decisions can have colossal ramifications.

In this article I will analyse the approach of the Court through the lens of the fundamental freedoms. I will highlight the different approaches taken in regards to free movement of goods and free movement of services and argue why the Court should follow its approach in the latter.

b.   Free Movement of Goods

The bulk of the case law concerning free movement of goods can be found in relation to measures having equivalent effect to quantitative restrictions.[8] In this area the Court has repeatedly tied itself in knots and generally struggled to take a decisive approach.

In the seminal case of Dassonville[9] the scope of Article 34 TFEU was cast very wide, indeed its “potential breadth […]is striking”.[10] The Court held that “any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”[11] would fall within the scope of Article 34, and thus be prohibited. Case law has developed these principles, meaning that at its widest scope anything that could potentially interfere[12] with intra-Community trade, even indirectly,[13] could fall within the scope of Article 34. Evidently this was a step too far. When taken to extremes Dassonville could be used to challenge a plethora of national rules.[14] As the notorious Sunday trading cases[15] illustrate something had to be done.

Consequently, in the infamous decision in Keck, the Court found it “necessary to re-examine and clarify its case law on this matter”.[16] Some tactfully state that this is merely a refinement of the Dassonville test,[17] however as Weatherill bluntly puts it, the Court simply “changed its mind”.[18] The decision in Keck effectively created an exception for certain selling arrangements that applied equally to all measures in fact and in law.  This was not completely unprecedented (drawing from academic commentary[19] and case law[20] for its inspiration) and neither was its aim undesirable.[21] In fact, the Commission was initially very positive, stating that “the Court has completed its case law”[22]as a result of the judgement.

Regardless, the decision has been very divisive. Barnard states the ruling received “brickbats and bouquets in almost equal measure”.[23] However it is important to note that the majority of said ‘bouquets’ were from Member States thankful for a curtailment of the previous law. The majority of academic opinion is critical of the case; several key problems arise from it. Firstly it purported to clarify the case law; however it said nothing about which previous cases it overruled. Secondly the distinction between product requirements and certain selling arrangements is extremely fine, a problem exacerbated by the concept of dynamic/static rules.[24] Finally, and most damaging, the concept was completely novel and signified a departure from the well-established test of distinctly applicable and indistinctly applicable measures.[25] This caused the Court a considerable headache.[26]

Thankfully the Court heeded this criticism[27] and altered[28] its decision in Keck, at least to an extent. In Commission v Italy (Trailers)[29] the Court reaffirmed another test, the market access test. It is debatable whether this is an overarching theme or merely another category of breach; however the overall result is relatively clear. If a measure fails the Keck test it will be considered automatically in breach of the market access test. If a measure passes the Keck test it will still have to pass the market access test independently. Therefore, irrespective of how a measure fares under the Keck test, it will always be considered in light of Commission v Italy (Trailers).[30] Put simply the Keck test is not as relevant as it once was, it is subsumed by Commission v. Italy. There are now three types of measures which will fall foul of Article 34, distinctly applicable measures, indistinctly applicable measures and measures which prevent access to the market.

The market access test, however, is not perfect; there is some uncertainty as to its scope, with criticism present well before Commission v Italy (Trailers).[31] In Leclerc-Siplec[32]AG Jacobs stated that such a test could risk encompassing too much national regulation (as with Dassonville) and that therefore a minimum threshold criterion should be established. This may be a feature of the test, as the Court did use the phrase “considerable influence”[33] in the ruling; however this has not yet been resolved. Barnard states[34] that this concept of a threshold is at odds with the de minimus rule found in cases such as Bluhme.[35] This ignores the huge variation in barriers to the market that can arise; therefore such a threshold remains useful.

Although the exact scope of Article 34 TFEU is now almost fully defined, it is clear that the method the Court used to get to this position is flawed. The scope of the test fluctuated wildly throughout the years and no one test was applied consistently. This has resulted in a very messy series of decisions. The law concerning free movement of goods is unnecessarily convoluted.

c.   Free Movement of Services

The Courts approach in regards to free movement of services is much preferred over the approach outlined above. In contrast to the relatively straightforward cases in regards to goods[36] the Court faced the problem of defining exactly what a service was, particularly considering the vague wording in Article 57 TFEU.[37]

Despite this the Court took a purposive and consistent approach to the matter. For the purposes of Article 56 TFEU,[38] a service is a self-employed activity provided for remuneration on a temporary basis with a cross-border element. Even though the Court has cast the scope fairly wide, especially in regards to the definition of remuneration[39] and the cross border element[40] there has not been the problems encountered with free movement of goods. This is because the Court has considered its approach and has thus been consistent when applying it. By avoiding the excessively broad statements that are present in cases like Dassonville the Court removes the need for correction further down the line.

Furthermore in regards to which measures are caught by Article 56, the Court has again been consistent. It has not sought to apply different tests or experiment with new concepts; rather it has taken a structured approach. The measures falling within the scope of this provision mirror that of the free movement of goods, but without the entire Keck fiasco. Distinctly applicable measures[41], indistinctly applicable measures[42] and measures which prevent access to the market[43] are all caught by the provision.

Free movement of services is arguably much more complex than free movement of goods, due to the human element it inherently incorporates. This freedom affects not only the provision of services, but those who deliver them. Consequently the stakes are much higher; any alteration to this framework will have an impact upon the flow of citizens between Member States. However due to the Court’s consistent and restrained approach it has managed to pursue the overall aim of a free market[44] without any of the complications encountered above.

d.   Conclusions

It is evident that the Court is an extremely powerful and influential institution of the EU; it has the power to shape events across many countries. Considering this, and the inherent friction such an institution has with Member States, it is of utmost importance that the Court’s decisions are of the highest standard. It has been evidenced that the Court can err, especially when determining the scope of Treaty provisions and choosing which principle to apply. However it has also been shown that the Court can operate in a consistent and purposive manner, ensuring that the aims of the EU are carried out through case law. This is the approach that should be, and largely has been taken by the Court. However as the Court’s jurisdiction strays into more and more litigious areas, such as human rights and citizenship, it is crucial to remember the lessons learnt when developing the freedoms to ensure such mistakes are not made again.