Case name Subject Notes
Week 1 Introduction, concept and negative &
positive
Dassonville Issues: measure having equivalent effect to MEEs definition in para. 5: ‘’All trading rules enacted
( Case 5/74) questitative restrictions – restricting market access – by MS which are capable of hindering directly and
principle of non-discrimination – Article 34 and 35 indirectly, actually or potentially, intra-Community
TFEU trade are to be considered as measures having an
effect equivalent to quantitative restrictions.
Facts: a Belgian law required Scotch Whiskey that had
a designation of origin could only be sold when it was Remarkable:
accompanied by a certificate of country of origin. From non-discrimination approach to market access
approach. (See Article Seamless Web)
Shift of burden of proof: presumption that indirectly
discriminatory measures are lawful unless they can be
proved unreasonable.
See Article Schütze: Re-Reading Dassonville:
Contextual interpretation and understanding in
historical context.
Related cases:
Bosman Issues: free movement of workers – material scope – Material scope: sport can be subject to Community
(Case C-415/93) economic connotation – restricting market access – law only in so far as it constitutes an economic activity
Article 45 TFEU (para. 73). “All that is required is the existence of, or
the intention to create, an employment relationship
Facts: Belgium football player wanted to transfer clubs (para. 74).”
but could not due to the existing transfer rules of
UEFA (paying a fee and 2 +3 rule). This restricted the Personal scope (limited horizontal direct effect):
‘trade’ of players. Article 45 TFEU not only applies to the action of public
authorities but extends also to rules of any other
nature aimed at regulating gainful employment in a
collective manner (para. 82).
Existence of justifications (para. 106 ff.).
, Related cases:
Personal scope: Viking/Laval, Raccanelli, Angonese,
Defrenne II, Bauer et Al (See Article resilience Vries)
Alpine Investments Issues: free movement of services – restricting market Although the restriction is general and non-
( Case C-384/93) access – justification – Article 56 TFEU discriminatory and neither object nor its effect is to
put the national market at an advantage (…) it can
Facts: Dutch law prohibited so-called ‘cold-calling’. constitute a restriction on freedom to provide cross-
border services. (para. 35 and 38).
Maintaining the good reputation of the national
financial sector can constitute an imperative reason of
public interest capable of justifying restriction on the
freedom to provide services (para. 43/44/49).
CJEU: (flexibility proportionality): the fact that one MS
imposes less strict rules than others does not make
the latter’s legislation disproportionate
Remarkable:
- Gives sort of definition of ‘market access’.
Commission v France (Spanish Strawberries) Issues: free movement of goods – fundamental rights Personal scope: it is irrelevant who causes the
Case C-265/95 fundamental freedoms? – freedom of expression – restriction (i.c. farmers).
scope of application – inaction – Article 34 TFEU –
Article 352 TFEU (legal basis) – market access Functional approach when defining material scope.
Facts: French famers demonstrated and sabotaged the Inaction equals action: The fact that a MS abstains
import of Spanish Strawberries – while the French from taking action, or fails to adopt adequate
authorities did nothing to prevent it – Commission measures to prevent obstacles to the free movement
therefore brought enforcement proceedings. of goods that are creaty, in particular, by actions by
private individuals on its territory aimed at products
originating in other MS is just as likely to obstruct
intra-Community trade as is a positive act (para. 31
and 32,52).
Fundamental Freedoms ‘one of the fundamental
principles of the Treaty;.
, Angonese Issues: free movement of workers – principle of non- Personal scope: full horizontal direct effect on free
(Case C-281/98) discrimination based on nationality – indirect movement of workers (para. 34-36) when
discrimination – horizontal direct effect – Article 45 discriminatory.
TFEU
Cross border element? Broad interpretation.
Facts: an Italian Company required workers to be in
possession of a certificate of bilingualism (German) Certain degree of dominance?
from a specific institute. The Italian proved that he
speaks perfectly German without the certificate, but Indirect discrimination: majority of the residents in the
he was rejected the job. He invoked the free province are Italians, therefore the obligation puts
movement of workers. nationals of other MS at a disadvantage in comparison
with them treating unequal situations equally
(para. 40-42).
Related cases: Austria vs Germany, Bosman
AGM.COS.MET. Issues: MEEs – positive integration – exhaustive Exhaustive harmonization: when a particular
(Case C-470/03) harmonization – obstacle broad interpreted – doesn’t topic/aspect falls within the substantive and personal
matter who causes restriction – market access scope of a Directive it can exclusively be regulated by
that Directive (para. 50)
Facts: A Finnish official stated that the vehicle lifts are non-exhaustive harmonization: Directive regulates
dangerous even though they complied with the the certain aspects but leaves a wide discretion to the MS.
Directive and safety standards. The statements of this
official led to a restriction of the market on vehicle Personal scope: personal opinion of an official can be
lifts. attributable to the MS under certain conditions (para.
65/66. If this is the case is for the National Court to
decide (para. 58).
Treaty justifications cannot be invoked, see para. 68.
Commission v. Italy (trailers) Issues: free movement of goods – restriction market A prohibition has considerable influence on the
( Case C-110/05) access – reduction of demand – consumer behaviour – behavior of consumers which in turn affects the access
Article 34 TFEU of that product to the market. (para 56).
definition market access?
Facts: Italian law provided a prohibition for the use of
motor trailers, this logically restricted the market. Justification: road safety (overriding reason relating to
public interest) para. 60.
Week 1 Introduction, concept and negative &
positive
Dassonville Issues: measure having equivalent effect to MEEs definition in para. 5: ‘’All trading rules enacted
( Case 5/74) questitative restrictions – restricting market access – by MS which are capable of hindering directly and
principle of non-discrimination – Article 34 and 35 indirectly, actually or potentially, intra-Community
TFEU trade are to be considered as measures having an
effect equivalent to quantitative restrictions.
Facts: a Belgian law required Scotch Whiskey that had
a designation of origin could only be sold when it was Remarkable:
accompanied by a certificate of country of origin. From non-discrimination approach to market access
approach. (See Article Seamless Web)
Shift of burden of proof: presumption that indirectly
discriminatory measures are lawful unless they can be
proved unreasonable.
See Article Schütze: Re-Reading Dassonville:
Contextual interpretation and understanding in
historical context.
Related cases:
Bosman Issues: free movement of workers – material scope – Material scope: sport can be subject to Community
(Case C-415/93) economic connotation – restricting market access – law only in so far as it constitutes an economic activity
Article 45 TFEU (para. 73). “All that is required is the existence of, or
the intention to create, an employment relationship
Facts: Belgium football player wanted to transfer clubs (para. 74).”
but could not due to the existing transfer rules of
UEFA (paying a fee and 2 +3 rule). This restricted the Personal scope (limited horizontal direct effect):
‘trade’ of players. Article 45 TFEU not only applies to the action of public
authorities but extends also to rules of any other
nature aimed at regulating gainful employment in a
collective manner (para. 82).
Existence of justifications (para. 106 ff.).
, Related cases:
Personal scope: Viking/Laval, Raccanelli, Angonese,
Defrenne II, Bauer et Al (See Article resilience Vries)
Alpine Investments Issues: free movement of services – restricting market Although the restriction is general and non-
( Case C-384/93) access – justification – Article 56 TFEU discriminatory and neither object nor its effect is to
put the national market at an advantage (…) it can
Facts: Dutch law prohibited so-called ‘cold-calling’. constitute a restriction on freedom to provide cross-
border services. (para. 35 and 38).
Maintaining the good reputation of the national
financial sector can constitute an imperative reason of
public interest capable of justifying restriction on the
freedom to provide services (para. 43/44/49).
CJEU: (flexibility proportionality): the fact that one MS
imposes less strict rules than others does not make
the latter’s legislation disproportionate
Remarkable:
- Gives sort of definition of ‘market access’.
Commission v France (Spanish Strawberries) Issues: free movement of goods – fundamental rights Personal scope: it is irrelevant who causes the
Case C-265/95 fundamental freedoms? – freedom of expression – restriction (i.c. farmers).
scope of application – inaction – Article 34 TFEU –
Article 352 TFEU (legal basis) – market access Functional approach when defining material scope.
Facts: French famers demonstrated and sabotaged the Inaction equals action: The fact that a MS abstains
import of Spanish Strawberries – while the French from taking action, or fails to adopt adequate
authorities did nothing to prevent it – Commission measures to prevent obstacles to the free movement
therefore brought enforcement proceedings. of goods that are creaty, in particular, by actions by
private individuals on its territory aimed at products
originating in other MS is just as likely to obstruct
intra-Community trade as is a positive act (para. 31
and 32,52).
Fundamental Freedoms ‘one of the fundamental
principles of the Treaty;.
, Angonese Issues: free movement of workers – principle of non- Personal scope: full horizontal direct effect on free
(Case C-281/98) discrimination based on nationality – indirect movement of workers (para. 34-36) when
discrimination – horizontal direct effect – Article 45 discriminatory.
TFEU
Cross border element? Broad interpretation.
Facts: an Italian Company required workers to be in
possession of a certificate of bilingualism (German) Certain degree of dominance?
from a specific institute. The Italian proved that he
speaks perfectly German without the certificate, but Indirect discrimination: majority of the residents in the
he was rejected the job. He invoked the free province are Italians, therefore the obligation puts
movement of workers. nationals of other MS at a disadvantage in comparison
with them treating unequal situations equally
(para. 40-42).
Related cases: Austria vs Germany, Bosman
AGM.COS.MET. Issues: MEEs – positive integration – exhaustive Exhaustive harmonization: when a particular
(Case C-470/03) harmonization – obstacle broad interpreted – doesn’t topic/aspect falls within the substantive and personal
matter who causes restriction – market access scope of a Directive it can exclusively be regulated by
that Directive (para. 50)
Facts: A Finnish official stated that the vehicle lifts are non-exhaustive harmonization: Directive regulates
dangerous even though they complied with the the certain aspects but leaves a wide discretion to the MS.
Directive and safety standards. The statements of this
official led to a restriction of the market on vehicle Personal scope: personal opinion of an official can be
lifts. attributable to the MS under certain conditions (para.
65/66. If this is the case is for the National Court to
decide (para. 58).
Treaty justifications cannot be invoked, see para. 68.
Commission v. Italy (trailers) Issues: free movement of goods – restriction market A prohibition has considerable influence on the
( Case C-110/05) access – reduction of demand – consumer behaviour – behavior of consumers which in turn affects the access
Article 34 TFEU of that product to the market. (para 56).
definition market access?
Facts: Italian law provided a prohibition for the use of
motor trailers, this logically restricted the market. Justification: road safety (overriding reason relating to
public interest) para. 60.
