European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The last line of Article 36 has enabled the courts to apply a proportionality test which can be compared to the test implemented in the context of competition law under Article 101(3) TFEU: in order to avoid the measure constituting a means of arbitrary discrimination, it must be directly related to the interest being protected, indispensable and not disproportionate. 
There must be a direct conne …

Proportionality test

The last line of Article 36 has enabled the courts to apply a proportionality test which can be compared to the test implemented in the context of competition law under Article 101(3) TFEU: in order to avoid the measure constituting a means of arbitrary discrimination, it must be directly related to the interest being protected, indispensable and not disproportionate. 

There must be a direct connection between the restrictive measure and the interest to be protected. The possibility of harm to the public interest must be established . Thus, the protection of public health cannot justify a measure which prohibits the importation and marketing of a product that contains no harmful substances and is normally consumed in other Member States . This is also true of national rules reserving the right to use the name “yoghurt” solely to fresh yoghurt when it does not prohibit the marketing of deep-frozen yoghurts  or those obliging importers to place a notification on a foodstuff where there is not sufficient informative value in including the notification number and the labelling of the product includes equally useful information in that respect .

The court must also ensure that the protection sought is essential and cannot be provided through any other means . Providing the consumer with information as to the quality of a product can be done less restrictively than by the prohibition of the selling of similar goods  or the use of a generic term , a name , or a traditional form of packaging , or by the obligation to use a particular form of packaging . Likewise, it is less restrictive to increase a tax than to fix minimum retail prices , or to monitor the number appearing on the packaging of medicinal products rather than to impose an obligation on importers and distributors permanently to retain marketing authorization documents , or even to set up a system of taxes based on the age of vehicles or the pollution produced by them, or incentives to scrap old vehicles, than to only make imported old cars subject to compliance with certain requirements relating to sound levels and exhaust emissions . A system of prior authorization is also not indispensable if the alternative of later testing guarantees a sufficiently effective protection of the public interest in question  or where cooperation between the authorities of the Member States makes it possible to facilitate and simplify frontier checks . The extension of the traffic ban in certain Euro classes or the introduction of a maximum speed limit of 100 km/h is less restrictive than a national measure which prohibits certain vehicles form using the roads by reason of the protection of health and the environment 

Lastly, even if the restrictive measure is admissible in principle, it must not exceed what is necessary to ensure the protection of the interests in question. Thus, European law will accept a national regulation that without prior authorization prohibits the marketing of foodstuffs to which vitamins have been added and that are lawfully marketed in another Member State, where the addition of vitamins meets a real need, especially a technical or nutritional one . National rules which make the marketing of certain goods subject to a prior authorization procedure on grounds of public interest must nevertheless meet certain cumulative conditions before they can be regarded as necessary . The authorization scheme must be based on objective, non-discriminatory criteria which are known in advance and must be indispensable and not duplicate controls which have already been carried out in the context of other procedures either in the same State or in another Member State , or, on account of its duration and the amount of costs to which it gives rise deter the operators concerned from pursuing their business plan.

Case 174/82 Sandoz [1983] ECR 2445, LawLex200900001604JBJ.

Case 193/80 Commission v Italy [1981] ECR 3019, LawLex200900001639JBJ: prohibition of the importation and marketing under the designation of "vinegar" of vinegar not based on wine but containing no harmful substances and normally consumed in other Member States.

Case C-216/98 Commission v Greece [2000] ECR I-8921, LawLex200700001610JBJ: domestic legislation determining the minimum retail selling price for manufactured tobacco on grounds of public health.

Case C-122/03 Commission v France [2003] ECR I-15093, LawLex200900000415JBJ.

Case C-524/07 Judgment of 11/12/2008 Commission v Austria, LawLex200800002184JBJ.

Case 104/75 Adriaan de Peijper [1976] ECR 613, LawLex200900001441JBJ: finding that a national provision which, for the purpose of control, presumes the non-conformity of an imported batch of medicines with the description of the medicinal preparation, is not justified where the effective protection of health and life of humans could be sufficiently ensured by laying down a presumption of conformity with the result that, in appropriate cases, it would be for the administration to rebut this presumption, taking into account all the possible ways of obtaining information; C-304/88 Commission v Belgium [1990] ECR I-2801, LawLex200900002343JBJ: domestic provisions under which the import of certain live animals, already accompanied by a health certificate drawn up by the authorities of the exporting Member State, is subject to prior authorization, whereas the obtaining of information by means of declarations signed by the importers is sufficient to ensure the protection of the health and life of animals.

Case 124/81 Commission v United Kingdom [1983] ECR 203, LawLex200900001518JBJ; Case C-114/04 Commission v Germany [2005] LawLex200600000143JBJ; Case C-170/07 Commission v Poland 2008 ECR I-87, Summ.pub, LawLex200800000852JBJ.

Case C-28/09 Commission v Austria, Judgment of 21 December 2011, LawLex201200000618JBJ.

For an authorization procedure for the protection of consumers, see Case C-390/99 Canal Satélite Digital v Adminstración General del Estado [2002] ECR I-607, LawLex200900000649JBJ.

See especially Case 27/80 Fietje [1980] ECR 3839, LawLex200900001798JBJ.

Case 298/87 Smanor [1988] ECR 4489, LawLex200900001810JBJ.

Case C-217/99 Commission v Belgium [2000] ECR I-10251, LawLex200700001611JBJ.

For examples where the condition is fulfilled, see: Case C-389/96 Aher-Waggon v Germany [1998], ECR I-4473, LawLex200900000637JBJ: domestic provision which makes the first registration in the national territory of aircraft previously registered in another Member State conditional upon compliance with stricter noise standards than those laid down by a harmonization directive held to be the most effective and convenient means of combating the noise pollution generated by aircraft; Case C-324/93 The Queen v Secretary of State for Home Department [1995] ECR I-563, LawLex200900000291JBJ: the refusal to grant a license for the import of drugs from another Member State in order to ensure the viability of a sole licensed manufacturer of those drugs in the Member State and the reliability of supply of diamorphine for medical purposes; Case C-33/97 Colim v Bigg's Continent Noord [1999] ECR I-3175, LawLex200700001819JBJ: National rules requiring that information on imported products be given in the language of the area in which the products are sold or in another language readily understood by consumers of that area are justified insofar as they are restricted to information which cannot be appropriately conveyed to consumers by means other than translation; C-388/95 Belgium v Spain [2000] ECR I-3123, LawLex200700001644JBJ: A national measure under which the use of a designation of origin is subject to the requirement that the wine be bottled in the region of production because informing consumers by means of appropriate labelling is not sufficient to offset the risk of harm to the quality and to the image of the bottled wine associated with its transport in bulk and with subsequent bottling operations and, more generally, the coexistence of two different bottling processes might reduce the degree of consumer confidence in the designation; Case 382/87 Buet v Ministère public [1989] ECR 1235, LawLex200300002841JBJ: domestic provision prohibiting canvassing for the purpose of selling educational material for learning a foreign language from another Member State out of a concern to protect consumers against the risk of ill-considered purchases insofar as the risk is particularly high where canvassing is for enrolment for a course of instruction or the sale of educational material; Case C-1/90 Aragonesa de Publicidad Exterior v Ministère de la santé de Catalogne [1991] ECR I-4151, LawLex200900000275JBJ: national measure that, rather than prohibiting all advertising of alcoholic beverages, only prohibits it in specified places, such as public highways and cinemas, that are particularly frequented by motorists and young persons, two categories of the population in regard to which the campaign against alcoholism is of quite special importance.

Case 407/85 Glocken v Centro-Sud [1988] ECR 4233, LawLex200900002319JBJ: general prohibition on the marketing of certain imported pasta products likely to contain chemical additives and colorants.

Case 193/80 Commission v Italy [1981] ECR 3019, LawLex200900001639JBJ: restricting a generic term to one national variety alone; Case 178/84 Commission v Federal Republic of Germany [1987] ECR 1227, LawLex200900001618JBJ: prohibition of the use of a generic designation for the marketing of products made in part from raw materials such as rice or maize, other than those whose use is prescribed in the national territory.

Case C-358/01 Commission v Spain [2003] ECR I-13145, LawLex200900000483JBJ: relative to the description "cleaner with bleach" refused for products with an active chlorine concentration of less than than 35 g/l; Case 182/84 Miro BV [1985] ECR 3731, LawLex200900001627JBJ: making use of a traditional appellation for a product subject to a minimum alcohol content; Case 298/87 Smanor [1988] ECR 4489, LawLex200900001810JBJ: reservation of the right to use the term "yoghurt" solely to fresh products.

Case 179/85 Commission v Germany [1986] ECR 3879, LawLex200900001620JBJ: use of traditional champagne-type bottles.

Case 261/81 Walter Rau Lebensmittelwerke v De Smedt [1982] ECR 3961, LawLex200900001788JBJ: retail sale of foodstuff.

European Business Law

47. Proportionality test

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Les décisions de justice citées dans ce paragraphe :

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47. Proportionality test

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise