OPINION OF ADVOCATE GENERAL
BOT
delivered on 8 July 2008 1(1)
Case C‑110/05
Commission of the European Communities
v
Italian Republic
(Reopening of the oral procedure – Failure of a Member State to fulfil obligations – Article 28 EC – Free movement of goods – Arrangements for the use of goods – National rules prohibiting the towing of a trailer by a moped, a motorcycle, a tricycle or a quadricycle – Quantitative restrictions – Measures having equivalent effect – Justification – Road safety – Proportionality)
1. Must national rules concerning the ‘arrangements for the use’ of goods be examined in the light of Article 28 EC or must they be assessed in the light of the criteria set out by the Court in its judgment in Keck and Mithouard, (2) in the same way as rules concerning ‘selling arrangements’?
2. That is, in essence, the question to be answered by the Court in these proceedings.
3. This case concerns proceedings brought by the Commission of the European Communities against the Italian Republic, on the basis of Article 226 EC, for failure to fulfil its Treaty obligations. According to the Commission, the Italian Republic has failed to fulfil its obligations under Article 28 EC by including rules in its Highway Code prohibiting mopeds, motorcycles, tricycles and quadricycles from towing a trailer. (3)
4. This is the second time that an Opinion has been given in these proceedings.
5. Originally, the Court decided to assign this case to a five-judge chamber (4) and to give judgment without a hearing, since none of the parties had asked to present oral argument. Advocate General Léger delivered his Opinion on 5 October 2006, after which the oral procedure was declared closed. The Advocate General concluded that the Italian Republic had failed to fulfil its obligations under Article 28 EC by adopting and keeping in force rules of that kind.
6. Since that proposal raised new questions concerning the scope of Article 28 EC which were not debated by the parties in the course of the proceedings, the Court, by order of 7 March 2007, reopened the oral procedure and referred the case to the Grand Chamber. It also invited not only the parties but also the Member States other than the Italian Republic to give their views on:
‘the 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.’
7. Observations were submitted not only by the Commission and the Italian Republic but also by the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Republic of Cyprus, the Kingdom of the Netherlands and the Kingdom of Sweden.
8. This Opinion will be divided into two parts.
9. In the first part, I shall give my views on the answer to be given to the question put to the parties by the Court.
10. This will necessitate general consideration of the meaning and scope of the rules on the free movement of goods. It will require, at the expense of returning to views already expressed on this subject, an analysis of the scope of Article 28 EC and the criteria for classifying a given national provision as a measure having an equivalent effect to a quantitative restriction on imports. The question put by the Court also provides an opportunity to clarify the scope of the Keck and Mithouard judgment. That judgment, as is well known, has given rise to numerous difficulties of interpretation which it has only been possible to resolve on a case-by-case basis.
11. In this Opinion, I shall set out the reasons for which I consider 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 and Mithouard. I shall put forward the view that such measures fall within the scope of Article 28 EC and may constitute measures having an effect equivalent to quantitative restrictions on imports contrary to the EC Treaty if they hinder access to the market for the product concerned.
12. On the basis of that analysis, I shall, in the second part, examine the merits of the Treaty infringement proceedings brought by the Commission against the Italian Republic.
13. After examining the effects of the measure in question on intra-Community trade, I shall suggest that the Italian legislation, in so far as it prevents access to the Italian market for trailers lawfully produced and marketed in other Member States, constitutes a measure having an effect equivalent to a quantitative restriction on imports contrary to Article 28 EC.
I – Legal background
A – Community law
1. The EC Treaty
14. Article 28 EC prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States.
15. Nevertheless, under Article 30 EC, Article 28 EC does not preclude prohibitions or restrictions on imports which are justified, in particular, on grounds of public policy, public security or protection of health and life of humans, provided that they do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
2. Secondary law
16. The Community legislature established a Community type-approval procedure for two-wheel or three-wheel motor vehicles in Directive 92/61/EEC. (5)
17. Pursuant to Article 1(2) and (3) of Directive 92/61, the vehicles concerned are mopeds, (6) motorcycles, motor tricycles and motor quadricycles.
18. As is clear from the recitals in the preamble to that directive, that procedure makes it possible to ensure better functioning of the internal market by removing technical obstacles to trade in the motor vehicle sector and also to contribute to the improvement of road safety and environmental and consumer protection. (7)
19. For the implementation of that procedure, Directive 92/61 provides for total harmonisation of the technical requirements to be satisfied by such vehicles. It also provides that the technical requirements applying to the various components and characteristics of such vehicles are to be harmonised by means of separate directives. (8)
20. Thus, the requirements concerning mass, dimensions and coupling devices and attachments for such vehicles were harmonised by Directives 93/93/EEC (9) and 97/24/EC. (10)
21. Those directives both state, in their preambles and in identical terms, that the requirements they lay down may not have the effect of obliging those Member States which do not allow two-wheel or three-wheel motor vehicles in their territory to tow a trailer to amend their rules. (11)
B – National law
22. Article 53 of Legislative Decree No 285 (decreto legislativo n. 285) of 30 April 1992 (12) defines mopeds as any motor vehicles with two, three or four wheels, the latter constituting the category of ‘motor quadricycles’.
23. Under Article 54 of the Highway Code, automobiles are motor vehicles with at least four wheels, excluding mopeds.
24. Pursuant to Article 56 of that code, only automobiles, trolleybuses and automobile tractors are allowed to tow trailers.
II – The pre-litigation procedure
25. Following an exchange of correspondence between the Italian Republic and the Commission, the latter took the view that Italy had failed to fulfil its obligations under Article 28 EC by adopting the rules at issue. It then sent the Italian Republic a formal notice, by letter of 3 April 2003, calling on it to submit its observations.
26. In its reply, dated 13 June 2003, the Italian Republic gave a commitment to amend its rules in order to remove the obstacles to imports mentioned by the Commission. It also stated that the changes concerned not only the type-approval of vehicles but also the registration and use of such vehicles and roadside checks of trailers.
27. The Commission received no communication concerning the making of any such changes. On 19 December 2003, it therefore sent a reasoned opinion to the Italian Republic calling on it to take the measures needed to comply with its obligations under Article 28 EC within a period of two months as from service of that notice. Having received no reply, the Commission instituted Treaty infringement proceedings on the basis of Article 226 EC by application lodged at the Registry of the Court of Justice on 4 March 2005.
III – The application
28. The Commission claims that the Court of Justice should:
– declare that, by prohibiting the towing of trailers by mopeds, the Italian Republic has failed to fulfil its obligations under Article 28 EC;
– order the Italian Republic to pay the costs.
29. The Italian Republic contends that the Court should dismiss the application.
IV – The question put to the parties by the Court
30. As indicated earlier, the Court, after the reopening of the oral procedure, asked the parties and the Member States to give their views on:
‘the 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.’
A – The answers proposed by the parties and the Member States
31. Written observations were submitted and oral argument was presented by the Commission, the Italian Republic, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, the Republic of Cyprus, the Kingdom of the Netherlands and, finally, the Kingdom of Sweden.
32. The Commission submits that the arrangements for the use of a product govern the conditions under which a product may be used. That applies in the case of a measure which limits the use of a product in terms of place or time. (13) That concept also covers cases in which the rules prohibit the use of a product.
33. According to the Commission, in order to determine whether national rules concerning the use of a product constitute a measure having equivalent effect within the meaning of Article 28 EC, account must be taken, on a case-by-case basis, of the direct or indirect, actual or potential, effects of that measure. There is no doubt, as far as the Commission is concerned, that rules absolutely or almost absolutely prohibiting the use of a product constitute a measure having an effect equivalent to a quantitative restriction within the meaning of Article 28 EC. (14)
34. The Kingdom of the Netherlands advocates a clear delimitation of the scope of Article 28 EC. It considers that the aim pursued by that provision, namely the proper functioning of the internal market, cannot imply that national legislation concerning, for example, road safety, should be caught by the prohibition laid down in Article 28 EC. (15) But it also contends that unimpeded access to markets is of particular importance.
35. The Kingdom of the Netherlands supports the view put forward by Advocate General Kokott in her Opinion in Case C-142/05 Mickelsson and Roos, pending before the Court of Justice, since it would allow a set of rules not designed to protect economic interests to fall outside the scope of Article 28 EC. It nevertheless notes certain disadvantages of that approach. First, it would be difficult clearly to define the concept of ‘arrangements for use’. If a provision concerning use required adaptation of the product, there would then be a requirement relating to the characteristics of the product.
36. The Kingdom of the Netherlands also considers that the addition of a new category exempted from the application of Article 28 EC would be a source of confusion for national courts. Depending on the category to which a given provision related, one criterion or another would have to be applied.
37. The Kingdom of the Netherlands also criticises the judgment in Keck and Mithouard for failure to provide an appropriate criterion and it refers, in that connection, to the Opinion of Advocate General Poiares Maduro in Alfa Vita Vassilopoulos and Carrefour-Marinopoulos. (16) It also observes that, in the same way as selling arrangements, certain arrangements for use may have serious repercussions on intra-Community trade and it questions the practical usefulness of creating a new exemption. The Kingdom of the Netherlands therefore proposes adopting the de minimis approach recommended by Advocate General Jacobs in his Opinion in Leclerc-Siplec, (17) although it also notes the difficulties which would be faced by the national courts in implementing it.
38. In contrast to the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, the Republic of Cyprus and the Kingdom of Sweden consider that the criteria laid down in Keck and Mithouard may be transposed to measures governing the use of a product. They maintain, in essence, that national provisions which apply without distinction so as to limit but not prohibit the use of a product do not in principle fall within the concept of a ‘restriction’ within the meaning of Article 28 EC. Nevertheless, in their view, an exception may be made to that principle if it is shown that the measures in question purely and simply prohibit the use of a product or authorise only marginal use, thereby limiting the product’s access to the market.
39. The Hellenic Republic maintains that rules on the use of a product are not in themselves liable to hinder trade between Member States. It nevertheless observes that if the use of a product is a feature of the movement of the product, then the question of classifying the measure must be examined on a case-by-case basis and any hindrance found to exist may fall within the scope of Article 28 EC.
40. Finally, the Italian Republic considers, in essence, that the answer to the question put by the Court also depends on whether the product can be used for other purposes. It also draws attention to concerns relating to road safety and the particular features of Italian terrain.
B – My assessment
41. In these proceedings, the Court is called on to establish whether the Italian rules prohibiting the use within its territory of a given product constitute a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 28 EC or whether those rules, in so far as they lay down ‘arrangements for the use’ of goods, escape the application of that provision by virtue of the criteria laid down by the Court in Keck and Mithouard.
42. This question is particularly interesting since another case, Mickelsson and Roos, pending before the Court, raises a similar issue.
43. In that case, the Court is asked whether Articles 28 EC and 30 EC preclude Swedish rules which limit the use of jet skis in certain waters. Those rules differ from the measure at issue in this case because they limit the use of a product but do not prohibit its use outright as in the case of the Italian rules.
44. In her Opinion in that case, Advocate General Kokott suggests that, by analogy with ‘selling arrangements’, ‘arrangements for the use’ of goods should be placed outside the scope of Article 28 EC if, in particular, the conditions laid down by the Court in Keck and Mithouard are satisfied. (18)
45. Advocate General Kokott observes that national provisions on arrangements for the use of products and those concerning selling arrangements are comparable in terms of the nature and the intensity of their effect on trade. Those provisions are not normally designed to regulate trade in goods between Member States. In principle, they take effect only after the product has been imported and have only an indirect impact on sales of the product. According to Advocate General Kokott, it would therefore be logical to extend the rule in Keck and Mithouard to measures governing the use of goods and, consequently, to exclude such measures from the scope of Article 28 EC. (19)
46. Nevertheless, Advocate General Kokott invites the Court to refine and supplement the conditions laid down in Keck and Mithouard and suggests that national rules which prohibit the use, or permit only marginal use, of a product fall within the scope of Article 28 EC ‘in so far as they (virtually) prevent access to the market for the product’. (20)
47. That said, I think it is now important to set out the broad outlines of the case-law on the free movement of goods.
1. The case-law on the free movement of goods
48. The free movement of goods between Member States is one of the fundamental principles of the Community. (21)
49. Thus, Article 3 EC, in Part One of the Treaty, entitled ‘Principles’, provides in paragraph 1(c) that, for the purposes set out in Article 2 EC, the activities of the Community are to include an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods.
50. In addition, Article 14(2) EC provides that the internal market is to comprise an area without internal frontiers in which the free movement of goods is ensured in accordance with the provisions of the Treaty.
51. That fundamental principle is implemented in particular by Article 28 EC.
52. That provision, it will be remembered, states that quantitative restrictions on imports and all measures having equivalent effect are to be prohibited between Member States.
53. It has been settled case-law since the judgment of 11 July 1974 in Dassonville (22) that that provision must be construed as seeking the elimination of ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’. (23)
54. Also, the Court expressly acknowledged in the Cassis de Dijon case (24) that, in the absence of harmonisation of national laws, measures applying without distinction to domestic products and products imported from other Member States are also liable to constitute restrictions on the free movement of goods. (25)
55. According to the Court, those restrictions may nevertheless be justified by one of the grounds listed in Article 30 EC or by one of the overriding requirements referred to in the judgments of the Court, (26) provided that, in either case, such measures are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary in order to attain it. (27)
56. The Court’s interpretation in Dassonville of the meaning of a measure having equivalent effect is very broad. (28) In the light of the case-law cited above, even if a measure does not pursue the aim of regulating trade in goods between Member States, what is decisive for the Community judicature is its effect on intra-Community trade, whether actual or potential. That interpretation has thus made it possible in practice to bring within the scope of Article 28 EC all forms of economic protectionism practised by Member States, since all national rules liable to have restrictive effects on trade, even those displaying no connection with imports, may be the subject of review by the Court.
57. Seeking to reduce what it regarded as excessive recourse to Article 28 EC and to avoid excessive encroachment on the regulatory powers of the Member States, the Court adopted a new approach in its endeavours to limit the scope of that provision.
58. Initially, the Court tried to rule out the application of Article 28 EC to certain national rules which pursued an objective in the general interest and had no connection with commercial activity.
59. Thus, in its judgment in Oebel, (29) the Court held that national rules on night work in bakeries and confectionery establishments constituted a legitimate economic and social policy choice, in accordance with the objectives of general interest pursued by the Treaty. According to the Court, such rules, ‘which … apply by virtue of objective criteria to all undertakings in a particular industry which are established within the national territory, without leading to any difference in treatment whatsoever on the ground of the nationality of traders and without distinguishing between the domestic trade of the State in question and the export trade’, did not have the effect of restricting patterns of trade within Member States and did not therefore manifestly constitute a measure having equivalent effect contrary to Article 28 EC. (30)
60. In the same way, in its judgment in Blesgen, (31) the Court considered that legislation restricting the consumption, sale and offering of alcoholic beverages in public places was not contrary to Article 28 EC, in so far as such rules, having no connection with the import of the products concerned, were not liable to hinder trade between Member States. That measure drew no distinction based on the nature or origin of the products and did not affect the marketing of those spirit-based beverages in other forms. As regards its restrictive effects, the Court held that they did not exceed the effects intrinsic to trade rules. (32)
61. In a second stage, the Court decided to reconsider its case-law. The Keck and Mithouard judgment marks a turning point in the Court’s approach. The Court considered it necessary to re-examine and clarify its case-law ‘[i]n view of [what it saw as] the increasing tendency of traders to invoke Article [28 EC] as a means of challenging any rules whose effect is to limit their commercial freedom, even where such rules are not aimed at products from other Member States’. (33)
62. That case concerned French legislation prohibiting resales at a loss. Whilst recognising that such legislation was liable to restrict the volume of sales of imported products by depriving economic operators of a way of promoting sales, the Court posed the question ‘whether such a possibility [was] sufficient to characterise the legislation in question as a measure having equivalent effect to a quantitative restriction on imports’ (34) within the meaning of Article 28 EC.
63. In answering that question, the Court drew a distinction between two categories of rules, namely those laying down conditions to be satisfied by the goods and those limiting or prohibiting certain selling arrangements. The Court laid down a different set of rules for each of those two categories.
64. The first category concerns rules relating, in particular, to the name, form, weight and dimensions of the product, and also its composition, presentation, labelling and packaging, which differ from those prescribed by the Member State of origin. (35)
65. In that case, the Court confirmed the long-standing precedent laid down in Cassis de Dijon, according to which such rules, even if applicable without distinction to all products, are caught by Article 28 EC. (36)
66. The hindrance to trade derives from the obligation to make adjustments to goods coming from other Member States in order to comply with the conditions laid down by the Member State in which they are marketed. By requiring repackaging or modification of a product’s composition, for example, such rules give rise to additional difficulties and costs for importers.
67. The second category concerns rules limiting or prohibiting ‘certain selling arrangements’. The Court has not defined that concept. We can nevertheless make a non-exhaustive inventory, on the basis of its case-law. In addition to the prohibition of resale at a loss with which Keck and Mithouard was concerned, the Court considered that ‘selling arrangements’ were affected by rules which restrict certain forms of sales promotion, such as prohibitions relating to television advertising in a particular sector or for a particular audience, (37) rules reserving the sale of certain products to certain establishments (38) or those which govern, for example, shop opening hours. (39)
68. Now, in the absence of direct or disguised discrimination in favour of domestic industry, those rules no longer fall within the scope of Article 28 EC.
69. As is apparent, those measures concern the exercise of commercial activity as such. They are of a general nature and do not affect differently the marketing of products from other Member States and that of domestic products. Those rules are not liable directly to affect access to the market for the product in question. They may nevertheless have an indirect effect on imports, in that they may in practice lead to a reduction of sales.
70. Departing from its earlier case-law, the Court therefore took the view that such rules do not constitute measures having equivalent effect within the meaning of Article 28 EC, in so far as they apply ‘to all relevant traders operating within the national territory’ and affect ‘in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States’. (40)
71. The Court then made it clear that, provided that those conditions are fulfilled, ‘the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products’. (41)
72. What is the reason for the distinction drawn by the Court between the two categories of rules?
73. Products must in principle be exportable, with their existing composition, name, form, labelling and packaging, to all Member States, provided that, in those respects, they meet the requirements of the State of origin. Application of the laws of the importing State is lawful only if it can be justified by a higher public interest. The aim is to ensure that the access of such products to the market of the importing Member State is not impeded more than necessary and thereby to preclude protection for the domestic industry.
74. On the other hand, once such products, in their existing form, have access to the market of the importing Member State, they must be subject to the ‘marketing rules’ in force in that State. In that regard, they must be on an equal footing with domestic products.
75. The introduction of such a distinction seems to me to be inspired by the concern to ensure the existence of balanced legal rules. An examination of the case-law of the Court discloses a latent conflict between, on the one hand, the Community judicature’s wish to make Article 28 EC serve as a ‘safety barrier’ against the various forms of economic protectionism in the Member States and, on the other, the concern expressed by the Court not to encroach upon certain areas of the Member States’ domestic policy.
76. In that respect, the present case goes to the root of that problem.
77. The Keck and Mithouard judgment caused puzzlement. Many commentators regretted the contradictions contained in it and its lack of reasoning and of clarity. (42) The implementation of the criteria set out in that judgment gave rise to numerous difficulties of interpretation which the Court has had to confront and which it has been possible to resolve only on a case-by-case basis.
78. I shall consider, in particular, two criticisms of that case-law.
79. First, I think, as do others before me, that a distinction between different categories of measures is not appropriate. (43)
80. Whilst it is legitimate to try to develop presumptions regarding the effects of various categories of measures on the market, the existence of a restriction may also depend on other factors, such as the way the relevant rules are applied and their specific effects on trade.
81. The distinction made by the Court may therefore be artificial and the demarcation line between those different categories of measures may be uncertain. (44) In some cases, the Court describes rules on product characteristics as ‘selling arrangements’. (45) In other cases, it treats measures concerning selling arrangements for goods as rules concerning product characteristics. That applies, in particular, to rules governing advertising where they have an effect on the packaging of the product. (46) Finally, it may happen that the Court abandons that distinction and makes an analysis based only on the effects of the rules. (47) Those examples demonstrate the difficulties which the Court may encounter in classifying certain measures. It is therefore, in my view, difficult to work on the basis of categories when, in practice, national courts and the Community judicature may be confronted with very different rules, which they must assess having regard to the circumstances of each individual case.
82. Second, by identifying new criteria and establishing a different approach depending on the type of measures involved, that case-law gave rise to differences in the way that restrictions on the free movement of goods are viewed by comparison with the rules applicable to other freedoms of movement. (48)
83. As we shall see, the view taken of restrictions on those various freedoms displays the common feature that it is based on a single criterion, that of access to the market. However, to adopt a different approach in the area of free movement of goods is not, in my view, consistent with the requirements inherent in the construction of a single European market and the emergence of citizenship of the Union.
84. In the light of the foregoing, it seems to me that the tests laid down by the Court in Keck and Mithouard have not clarified the scope of Article 28 EC or facilitated the implementation of that article.
85. Nevertheless, like Advocate General Poiares Maduro, I do not think that at the present time it is appropriate to depart from that case-law. (49)
86. I likewise am not of the opinion that that case-law should be extended to rules which, like those at issue in this case, concern ‘arrangements for use’ of the products.
2. The reasons for which I do not favour an extension of the criteria in Keck and Mithouard to rules governing arrangements for the use of products
87. To extend the criteria in Keck and Mithouard to rules concerning arrangements for the use of products involves, in my view, a number of disadvantages, even though the Court’s ‘traditional analytical pattern’ seems to me to be fully satisfactory.
88. First, such a course of action would result in the introduction of a new category of exemption from the application of Article 28 EC, a development which I do not favour, for a number of reasons.
89. I am not certain that the reasons which prompted the Court to exclude from the scope of Article 28 EC rules on selling arrangements for products also exist in the case of rules governing arrangements for use. In fact, unless I am mistaken, the Court has not had an extremely large number of cases on measures of this kind brought before it.
90. Moreover, as I have already indicated, I consider that the drawing of distinctions between different categories of rules is not appropriate. Such an approach is artificial and may be a source of confusion for the national courts.
91. Finally, I think that to exclude from the scope of Article 28 EC national rules governing not only selling arrangements for goods but also arrangements for their use is contrary to the Treaty’s objectives, namely the creation of a single and integrated market. In my 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 ‘communitarise’. That is not the course that European construction and the creation of a single European market should follow. 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 justify.
92. Second, I consider that there is no interest in limiting the Court’s review of measures which, in fact, may constitute a serious obstacle to intra-Community trade.
93. The judicial review carried out by the Court in accordance with the ‘traditional analytical pattern’ laid down in Dassonville and Cassis de Dijon is, in my opinion, fully satisfactory and I see no reason to depart from it.
94. That analytical approach not only makes it possible for the Court to monitor Member States’ compliance with Treaty provisions, but it also allows Member States the necessary room for manoeuvre to defend their legitimate interests.
95. It will be remembered that, in order to ensure that the liberalisation of trade does not affect the pursuit of other general interests, the Community legislature and the Court of Justice, through its case-law, have laid down exceptions to the principle of free movement of goods. (50)
96. Article 30 EC thus gives a list of grounds on which the Member States may justify the adoption of restrictions on the free movement of goods. That list is limitative and must be strictly interpreted. (51)
97. In parallel, through its case-law, the Court has defined ‘overriding public interest requirements’, which include concerns linked to the environment or consumer protection. (52) Thus, in the absence of Community harmonisation, a national measure adopted to protect the environment may constitute an ‘imperative requirement’ that is capable, within the meaning of the Cassis de Dijon judgment, of limiting the application of Article 28 EC.
98. The recognition by the legislature and the Community judicature of cases in which it may be legitimate to restrict the free movement of goods does not thereby give carte blanche to the Member States. Even if the measures adopted by them may be justified on public interest grounds, the measures must nevertheless be necessary and proportionate. (53)
99. Furthermore, this analytical approach enables the Court to ensure judicial review of all measures adopted by the Member States.
100. Such review is necessary. It is necessary to make certain that the Member States take account of the extent to which the rules adopted by them are liable to affect the free movement of goods and the enjoyment of freedoms of movement by operators in the market. It is also necessary to ensure that the national courts are not prompted to exclude too many measures from the prohibition laid down by that provision. The term ‘restriction’ should therefore be viewed in broad terms.
101. At the same time, that judicial review must remain limited, since the Court’s role is not systematically to challenge policing measures adopted by the Member States. It is thus the review of proportionality which enables the Court to weigh the interests associated with attainment of the internal market against those relating to the legitimate interests of the Member States. (54)
102. In view of the foregoing, I see 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.
103. Third, I consider that the Keck and Mithouard criteria cannot be extended either to rules prohibiting the use of a product or even to rules laying down arrangements for its use.
104. The rules at issue in this case, in so far as they prohibit the use of a product outright and thus render it entirely unusable, constitute, by their nature, an impediment to the free movement of goods. Even if those rules apply in the same way to domestic and imported products, they prevent the latter from gaining access to the market. That is clearly a restriction, and an examination based on the relationship between Articles 28 EC and 30 EC is called for.
105. That also applies, in my view, to measures which lay down the arrangements for a product’s use. Even if those measures do 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.
106. In the light of the foregoing, I am of the opinion that national provisions governing the use of a product must not be assessed by reference to the criteria laid down by the Court in Keck and Mithouard, but must be examined in the light of Article 28 EC.
107. The examination which the Community judicature must carry out should, in my view, be based on a criterion that has been developed in the light of the aim pursued by Article 28 EC and is common to all restrictions on freedom of movement, namely the criterion of access to the market. (55)
3. Judicial review based on the criterion of access to the market
108. It will be remembered that, under Article 28 EC, the Treaty prohibits ‘measures having equivalent effect’ between Member States. (56) In any judicial review of national rules, it would therefore be more consistent with the letter and spirit of the Treaty to assess specifically the effects of such rules on the market.
109. The criterion I propose would therefore be a general criterion, based on the effect of the measure on access to the market rather than on the object of the rules in question. That criterion would therefore apply to all types of rules, be they requirements relating to the characteristics of a product, selling arrangements or arrangements for use.
110. That criterion would be based on the extent to which national rules hinder trade between Member States. (57)
111. According to that criterion, 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.
112. On the basis of that criterion, the Member States would only have to provide justification for measures that impede intra-Community trade. That 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 States.
113. As regards the implementation of that criterion, I, like the Commission, consider that the Community judicature should take a case-by-case approach. In carrying out its review, the Court would specifically examine the extent of the obstacle to intra-Community trade caused by the measure limiting access to the market.
114. A review of the case-law of the Court gives us some guidance as to the application of such a criterion.
115. As regards, first, measures causing overt discrimination, the obstacle to intra-Community trade is clear. Such measures are prohibited as such by Article 28 EC.
116. As regards, next, the other categories of measures, it is necessary to examine their specific impact on patterns of trade, but the analysis to be carried out by the Court should not involve any complex economic assessment. Indeed, according to the Court, Article 28 EC does not draw, between measures that can be described as measures having an effect equivalent to a quantitative restriction, a distinction based on the magnitude of the effects they have on trade within the Community. (58)
117. The Court must nevertheless have sufficient information to enable it to establish that such measures are liable to prevent or hinder trade between Member States. It is thus apparent from the case-law of the Court that purely hypothetical effects (59) or totally uncertain and indirect effects (60) or again wholly insignificant effects (61) are not sufficient for the measures to be classified as measures having an effect equivalent to a quantitative restriction, contrary to Article 28 EC. That obstacle does not therefore need to be actual and significant, but must be at least possible. That, for example, would be the case of measures, applying without distinction, that laid down conditions concerning product characteristics.
118. The use of a single and simple criterion based on access to the market would make it possible to approximate the rules for monitoring restrictions on the various freedoms of movement. As I have stated, the criteria laid down in Keck and Mithouard have given rise to differentiation in the way in which restrictions on free movement of goods are assessed as compared with other freedoms. However, a common approach for the various freedoms is necessary, having regard, in particular, to the requirements relating to construction of the single European market and the emergence of European citizenship.
119. Clearly, the analogies between the freedoms of movement for goods, persons, services and capital are not perfect. Nevertheless, the approach to the assessment of such restrictions on those various freedoms displays the common feature of being based on the existence of an obstacle to access to the market.
120. In the sphere of free movement of persons, services and capital, the Court examines whether the contested measure prohibits, impedes or renders less attractive the exercise of the freedom in question and holds to be contrary to the Treaty any rules which affect, for example, access by a worker to the employment market or which prevent access of capital to a financial market.
121. The Court recently referred to that approach in its judgment in Government of the French Community and Walloon Government, in which it stated that ‘Articles 39 EC and 43 EC militate against any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Community nationals of the fundamental freedoms guaranteed by the Treaty’. (62)
122. Such measures include those which, although applicable without distinction, affect some aspect of the activity concerned and have the effect of depriving an economic operator of an effective way of competing in order to penetrate a market. (63)
123. Thus, in CaixaBank France, the Court considered that French legislation prohibiting remuneration of sight accounts was a restriction within the meaning of Article 43 EC, in that it constituted, for companies established in a Member State other than the French Republic, a ‘serious obstacle to the pursuit of their activities’, thereby affecting their access to the French market. (64)
124. As regards, next, the freedom to provide services, the Court also held in Fidium Finanz, (65) concerning German rules requiring prior approval in the Member State in which the service is provided, that the contested rules had the effect of impeding access to the German financial market for economic operators not having the qualities required by German law and in particular companies established in non-member countries. (66)
125. In that case, even though the aspect concerning the free movement of capital was regarded as ancillary, the Court observed that those rules meant that financial services offered by companies established outside the European Economic Area were rendered less accessible for clients established in Germany and as a result there was a decrease in cross-border financial traffic relating to such services. (67)
126. As regards, finally, the free movement of workers, the Court considered in Graf (68) that provisions which, even if they are applicable without distinction, preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an obstacle to that freedom. In that regard, the Court stated that ‘in order to be capable of constituting such an obstacle, [the measures in question] must affect access of workers to the labour market’. (69) That is what it had already held in Bosman, (70) in relation to rules governing the transfer of professional footballers from one club to another. (71)
127. Such rules constitute restrictions contrary to the Treaty to the extent to which, by impeding access to the market for new operators, they are objectively barriers to freedom of movement. Such measures freeze the market concerned in its present state and are therefore inherently contrary to the freedoms of movement and competition, on which the common market is in fact based. (72)
128. In the sphere of free movement of goods, the criterion of access to the market underlies the approach taken by the Court in its case-law.
129. In Dassonville, the Court defined a measure having equivalent effect as being, it will be remembered, ‘all trading rules enacted by Member States which are capable of hindering … intra-Community trade’. (73) Then, in Keck and Mithouard, the Court considered that national provisions which limit or prohibit certain selling arrangements fall outside the scope of Article 28 EC if they are not ‘such as to prevent [access to the market of products from another Member State] or impede access any more than [they impede] the access of domestic products’. (74) By distinguishing various categories of measures, the Court thus endeavoured to identify the conditions under which each of those categories may affect access to the market. (75)
130. There are numerous examples of case-law based on that criterion. In Gourmet International Products, (76) for example, the Court observed that rules which prohibit any advertising for alcoholic beverages addressed to consumers constitute an obstacle to intra-Community trade, falling within the scope of Article 28 EC, in so far as they are liable to impede access to the market for products from other Member States more than for domestic products. (77) Similarly, in its judgment in De Agostini andTV-Shop, concerning a total prohibition of television advertising addressed to children, the Court considered that national rules which deprive an advertiser of the only form of promotion enabling him to penetrate the relevant market may constitute a measure having an effect equivalent to a quantitative restriction. (78)
131. As Advocate General Tizzano observed in his Opinion in CaixaBank France, we thus see once more a test of the same tenor in the case-law relating to the free movement of goods as that applied in relation to other freedoms. (79)
132. The use of one and the same test for all freedoms of movement makes it possible to deal more easily with cases in which the measures being reviewed by the Court with regard to the free movement of goods may also be classified as restrictions on other freedoms of movement.
133. Although, in the majority of cases, the Court examines measures of this kind in the light of only one of the fundamental freedoms, (80) the Court has on occasion considered that the aspect of free movement of goods and that of freedom to provide services, for example, were intimately linked and therefore examined the restriction in question in the light of Articles 28 EC and 49 EC at the same time.
134. Thus, in Canal Satélite Digital, (81) the Court held that rules that subjected the marketing of certain equipment and the provision of services relating thereto to a prior authorisation procedure were contrary to the principles of free movement of goods and freedom to provide services, in that, as a result of the duration of the procedure and the costs consequently incurred, it was liable to dissuade the operators concerned from pursuing their business plan. (82)
135. Moreover, there are also cases in which the Court has, by analogy, applied the criteria set out in Keck and Mithouard to the sphere of other freedoms of movement. Thus, in the Alpine Investments judgment, (83) concerning freedom to provide services, the Court specifically emphasised the fact that, in contrast to Keck and Mithouard, the prohibition at issue in that case ‘directly [affected] access to the market in services in the other Member States [and was] thus capable of hindering intra-Community trade in services’. (84)
136. In the light of the foregoing, I am of the opinion that national rules are liable to constitute a measure having an effect equivalent to a quantitative restriction, contrary to the Treaty, if they impede access for a product to the market, regardless of the aim pursued by the measure in question.
137. Thus, to answer the question put by the Court in these proceedings, I consider that national provisions governing the conditions for the use of a product, which apply without distinction to domestic products and products imported from other Member States, constitute measures having an effect equivalent to quantitative restrictions on imports within the meaning of Article 28 EC if they impede access to the market for the product concerned.
138. It is on the basis of those factors that I shall examine the conformity of the measure in question with the principle of free movement of goods laid down by Article 28 EC.
V – The failure to fulfil Treaty obligations
139. The Commission’s application, it will be remembered, seeks a declaration by the Court that, by prohibiting the towing of a trailer by mopeds, motorcycles, tricycles and quadricycles, the Italian rules have created an obstacle to the free movement of goods contrary to the Treaty.
A – Principal arguments of the parties (85)
140. At the outset, the Commission states that, in the absence of Community harmonisation of rules on the type-approval, registration and use of trailers for mopeds, Articles 28 EC and 30 EC apply.
141. The Commission notes that the Italian rules preclude the use of trailers legally produced and marketed in other Member States, thereby, in its view, impeding their importation and sale in Italy. Such a prohibition could therefore be considered compatible with the Treaty only if it were justified by one of the grounds set out in Article 30 EC or by one of the overriding requirements laid down in the case-law of the Court.
142. In that connection, the Commission observes that the fact that the Italian Republic allows mopeds registered in other Member States to be used in its territory despite towing a trailer proves that the rules in question do not reflect any road-safety requirement.
143. Finally, the Commission draws attention to the fact that the recitals in the preambles to Directives 93/93 and 97/24, relied on by the Italian Republic in support of its rules, are not, by virtue of settled case-law, in any way binding and cannot have the aim or effect of rendering compatible with Community law national rules of the kind at issue in the present proceedings.
144. In response to those arguments, the Italian Republic retorts that the infringement imputed to it concerns a prohibition on mopeds registered in Italy from towing trailers and not the refusal to register mopeds or trailers manufactured in another Member State and intended to be marketed within Italian territory.
145. The Italian Republic also contends that the reservation appearing in the last recitals in the preambles to Directives 93/93 and 97/24 makes the contested measure permissible. In its view, such a reservation is accounted for by the differences of terrain between national territories. That reservation could only be set aside if the technical rules on type-approval, registration and use on the road of trailers towed by two-wheel or three-wheel motor vehicles were harmonised. (86) However, the Italian Republic states that the applicable Community law does not provide for any such harmonisation. Accordingly, mutual recognition of trailer requirements remains within the discretion of the Member States.
146. The Italian Republic emphasises, finally, that the technical characteristics of the vehicles are important from the road-safety point of view. The Italian authorities consider that, in the absence of type-approval rules for vehicles towing a trailer, the requisite safety requirements are not fulfilled.
B – Assessment
147. At the outset, it must be observed that Community law does not govern rules on the driving and use, in particular, of vehicles to which a trailer is attached.
148. In the absence of harmonising provisions at Community level, the Member States may therefore define the level of road-safety protection they consider appropriate within their territory and adopt measures designed to protect public safety. They may therefore impose restrictions regarding the use of trailers.
149. However, that power cannot be exercised in a wholly unfettered manner.
150. In the absence of common or harmonised rules, the Member States are required to respect the fundamental freedoms enshrined in the Treaty, which, it will be remembered, include the free movement of goods. (87) As I have indicated, that freedom upholds, by virtue of Article 28 EC, the prohibition as between Member States of quantitative restrictions on imports and all measures having equivalent effect.
151. The definition of a measure having equivalent effect given by the Court in Dassonville means that all national rules that impede access to the market for an imported product fall within the scope of Article 28 EC.
152. In the light of the analysis just made, the issue is therefore whether the Italian legislation is liable to impede intra-Community trade and, in particular, to prevent trailers legally produced and marketed in other Member States from reaching the Italian market.
153. In the present case, the rules at issue are a policing measure adopted by the Italian Government to ensure the safety of drivers and other road users. As such, it forms part of the Highway Code. The measure prohibits the users of trailers from attaching them to a moped, motorcycle, tricycle or even a quadricycle, anywhere within Italian territory. It does not appear that there is any exception to that general prohibition. In contrast to the rules at issue in Mickelsson and Roos, the measure here does not just limit the use of a product but prohibits its use outright.
154. In addition, the measure at issue does not draw any distinction based on whether the trailers are produced and marketed in Italy or are imported from other Member States. (88) The Italian Republic emphasises, in its rejoinder, that the prohibition measure concerns all trailers, regardless of where they are manufactured and marketed. (89)
155. As the Commission pointed out in its written observations, (90) the trailers covered by the rules at issue represent a special market. They have specific technical characteristics enabling them to be attached to motorcycles.
156. On the basis of that information, although I fully recognise the importance of road safety and the growing awareness of it in the Community and the Member States, I consider that the Italian rules impose severe restrictions on the producers and distributors of trailers established in the other Member States.
157. The prohibition in question makes it practically impossible to penetrate the Italian market.
158. The extent of the prohibition is such that it leaves no scope for anything other than purely marginal use of trailers. They are rendered entirely useless because they cannot be used for the normal purpose for which they are intended, namely to increase the luggage-carrying capacity of a motorcycle. The prohibition therefore dissuades distributors from importing them. It is rather pointless to import them if the retailer knows that they will not be sold or rented. (91) The prohibition will therefore have the effect of significantly reducing imports.
159. Consequently, I consider that the rules at issue, which prohibit outright the use of a product throughout national territory, give rise to a substantial, direct and immediate obstacle to intra-Community trade. Such rules therefore amount, in my view, to a measure having an effect equivalent to a quantitative restriction within the meaning of Article 28 EC.
160. Nevertheless, the measure is not necessarily contrary to Community law. As we have seen, freedoms of movement may be subject to restrictions imposed by the Member States if they are justified on legitimate grounds and are appropriate and proportionate.
161. As far as justification of the measure is concerned, it is clear from settled case-law that national rules which impede the free movement of goods may be justified by one of the grounds listed in Article 30 EC or by one of the overriding requirements identified in the case-law of the Court in cases where the national rules apply without distinction. (92)
162. In the present proceedings, the Italian Republic contends that the prohibition at issue was laid down with a view to ensuring road safety.
163. According to settled case-law, such an aim constitutes an overriding public interest ground which may justify a restriction on the free movement of goods. (93)
164. Nevertheless, the prohibition must be proportionate. Whilst it is for the Member States, in the absence of harmonised rules on the use of motorcycles towing trailers, to decide at what level they wish to ensure safety for drivers and in what manner that level should be attained, they may do so only within the limits defined by the Treaty and, in particular, in compliance with the principle of proportionality.
165. In assessing whether national rules conform to the principle of proportionality, it is important to establish, first, whether they are appropriate for protection of the interest pursued and, second, whether the means used do not go further than is necessary to attain that objective. (94)
166. It is clear that such legislation may be an effective means of protecting road users. As Advocate General Léger pointed out in the first Opinion given in this case, the attachment of a trailer to a motorcycle may, in certain circumstances, constitute a danger to traffic, in so far as such vehicles are slow and may encroach significantly upon the carriageway.
167. Nevertheless, I find it difficult to accept that the contested measure could meet the requirement of proportionality.
168. The Italian legislation does not confine itself to prohibiting the use of trailers attached to a motorcycle in specific localities or on particular itineraries, but applies throughout Italian territory, regardless of road infrastructure and traffic conditions.
169. The Italian authorities do not refer to any specific factor of such a kind as to demonstrate that those requirements are proportionate to the objective pursued. Moreover, the prohibition at issue concerns only motorcycles registered in Italy. (95) Vehicles registered in other Member States are therefore authorised to tow a trailer on Italian roads.
170. I also consider that the driver safety sought by the Italian legislation may be achieved by means that restrict freedom of trade to a much lesser extent. It would be appropriate, for example, to define which itineraries in Italy are 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. That alternative would reduce the risks arising from the use of trailers and would certainly be less restrictive of trade.
171. In any event, I consider that it was incumbent on the Italian authorities 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. However, it does not appear from the case-file that the national authorities carried out any such examination.
172. In view of the foregoing, I consider that, by adopting and maintaining in force rules prohibiting within its territory the use of trailers attached to a moped, motorcycle, tricycle or quadricycle, the Italian Republic has failed to fulfil its obligations under Article 28 EC.
173. As regards the argument put forward by the Italian Republic to the effect that the last recitals in the preambles to Directives 93/93 and 97/24 authorise the Member States to maintain such rules, I do not consider that it can justify the restriction imposed by the measure at issue.
174. Indeed, as pointed out by Advocate General Léger in his Opinion in this case, the preamble to a Community act does not, according to settled case-law, have any binding legal force and cannot be relied on either as a ground for derogating from the enacting terms of the measure in question or for interpreting those provisions in a manner clearly contrary to their wording. (96)
175. It is immediately clear from a reading of Directive 93/93 that neither of the recitals referred to by the Italian Republic is reiterated in the actual body of that directive. In that regard, as pointed out by Advocate General Léger in point 65 of his Opinion in this case, although the preamble to a directive may in principle give the Court information as to the legislature’s intention and the meaning to be given to the measure’s provisions, the fact remains that, where a concept set out in a recital is not given concrete expression in the actual body of the directive, it is the terms of the latter that must predominate. (97)
176. In any event, I should point out that it is clear from settled case-law that a provision of secondary law, in this case a directive, ‘cannot be interpreted as authorising the Member States to impose conditions contrary to the Treaty rules on the movement of goods’. (98)
177. In the light of the foregoing, I propose that the Court find that, by adopting and maintaining in force rules prohibiting the use of trailers attached to a moped, motorcycle, tricycle or quadricycle, the Italian Republic has failed to fulfil its obligations under Article 28 EC.
VI – Costs
178. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has asked for costs and the Italian Republic has essentially failed in its submissions, it should be ordered to pay the costs.
VII – Conclusion
179. In the light of the foregoing considerations, I suggest that the Court:
– find that, by adopting and maintaining in force rules prohibiting the use of trailers attached to a moped, motorcycle, tricycle or quadricycle, the Italian Republic has failed to fulfil its obligations under Article 28 EC;
– order the Italian Republic to pay the costs.