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 principle laid down by the Cassis de Dijon judgment - according to which a non-discriminatory national measure avoids the prohibition where it meets mandatory requirements - has been extended by the European courts to the free movement of persons and services . Restrictions to the freedom of establishment and the freedom to provide services that the States impose irrespective of nationality ar …

Indistinctly applicable measures

The principle laid down by the Cassis de Dijon judgment - according to which a non-discriminatory national measure avoids the prohibition where it meets mandatory requirements - has been extended by the European courts to the free movement of persons and services . Restrictions to the freedom of establishment and the freedom to provide services that the States impose irrespective of nationality are therefore not necessarily contrary to the Treaty and must be assessed in the light of a rule of reason. To be accepted, “national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it” . 

Given that the justifications are put forward as part of a rule of reason, they must satisfy the conditions of causal link, necessity and proportionality inherent to that rule. Only “reasonable” derogations are tolerated. 

The measure must be objectively necessary. It must take into account the obligations to which the national is already subject in the Member State where he is established  and not duplicate controls which have already been carried out in the same State or in another Member State . A real need must be demonstrated . The fact that a Member State has chosen a protection system which is different from that adopted by another Member State has no impact on the assessment of the necessary and proportionate character of the provisions concerned, which must only be examined in view of the objectives pursued by the national authorities of the Member State in question and the level of protection they intend to ensure . National legislation which lays down, as an essential criterion for determining whether a need for the establishment of a new pharmacy exists, a rigid limit on the “people remaining to be served”, where the competent authorities cannot depart from that limit to take account of particular local geographical conditions violates Article 49 TFEU .

Only national measures appropriate for securing the attainment of the objective which they pursue may be justified . A causal link between the restrictive measure and the alleged overriding reason must therefore exist . This is the case for national legislation which:

- is intended to protect the recipients of legal services against the harm which they could suffer as a result of legal advice given to them by persons without the necessary professional and personal qualifications ;

- makes the issue of licences for new pharmacies in the same geographical area subject to the number of pharmacies per inhabitant  to ensure that the population as a whole has adequate access to pharmaceutical services and to improve the reliability and the quality of the provision of medicinal products; 

- imposes payment of a charge for vessel traffic service only to vessels who benefit from that service in order to maintain public security in the coastal waters as well as in ports ;

- fixes a minimum level of fees for lawyers in order to ensure a high qualitative standard of professional services, given the very large number of lawyers who are enrolled and practising, where price competition could deteriorate the quality of the services provided .

Lastly, even when objectively necessary, the measure must not be disproportionate in relation to the objective pursued. The proportionality criterion involves checking that the public interest could not have been protected by measures that are less restrictive of the freedom of establishment or the freedom to provide services. A national rule may thus prohibit an undertaking established in another Member State from engaging in a judicial recovery of debts owed to other persons because such an activity carried out professionally, is reserved for lawyers, even if less strict measures are adopted by other Member States  or for all lawyers providing services on its territory, applies maximum tariffs to their fees is lawful insofar as, by making it possible to go beyond them in numerous situations, it is characterized by a flexibility which gives lawyers of other Member States the opportunity of gaining access to the national market under conditions of normal and effective competition . The legislation of a Member State may also require real estate intermediation service providers, regardless of their place of establishment and the manner in which they mediate, for rentals of up to 30 days of real estate located in that Member State, to collect and then disclose to the national tax authorities data relating to rental contracts entered into as a result of their intermediation and, in the event of rent or consideration being received by these service providers or of their intervening in the collection thereof, to deduct at source the amount of tax due on these sums and remit it to the Treasury . An operator can be required to have both a license and a police authorization in order to access the betting and gaming market  insofar as this requirement is not in itself disproportionate in the light of the objective pursued, which is to combat criminality linked to that sector  or the controlled expansion of games of chance . A Member State having a federal structure may, by legislation common to the majority of the federal entities, in principle prohibit the organization and facilitation of games of chance via the internet, even if, for a limited period, a single federal entity has maintained in force more liberal legislation . By contrast, checking the background of a person or an undertaking may be made by a less restrictive measure than the obligation of residence . Likewise, the prohibition for credit institutions to remunerate sight accounts is disproportionate in relation to the objective of protection of consumers against an increase in the cost of basic banking services or a charge for cheques . The fight against criminality also does not justify reserving games of chance to operators having their head office on the national territory .  In a review of proportionality of restrictive legislation, the approach taken by the national court must be dynamic rather than static in the sense that it must take account of the way in which circumstances have developed following the adoption of the legislation concerned .

Where they are discriminatory, only the exceptions in Articles 52 and 62 TFEU are applicable, Case 352/85 Commission v France [1988] ECR 2243, LawLex200500006886JBJ; Case C-288/89 Stichting Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, LawLex200900002067JBJ.

See, also Case C-288/89 Stichting Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, LawLex200900002067JBJ; C-19/92 Kraus v Land Baden-Württemberg [1993] ECR I-1663, LawLex200900000770JBJ; Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, LawLex200900001056JBJ; Case C-177/94 Criminal proceedings against Perfili [1996] ECR I-161, LawLex200900000734JBJ; Case C-67/98 Zenatti [1999] ECR I-7289, LawLex200500007632JBJ; Case C-424/97 Haim [2000] ECR I-5123, LawLex200700001648JBJ; Case C-244/04 Commission v Germany [2006] ECR I-885, LawLex200900000915JBJ.

Cases C-570/07 and  C-571/07 Blanco Pérez [2010] ECR I-4629, LawLex201100000287JBJ, provided that this quota does not prevent the establishment of a sufficient number of pharmacies to ensure adequate pharmaceutical services in any geographical area which has special demographic features.

Case C-430/99 Sea-Land Service and Nedlloyd Lijnen [2002] ECR I-5235, LawLex200900000792JBJ.

Case C-94/04 Cipolla [2006] ECR I-11421, LawLex200700000410JBJ.

Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, LawLex200900002151JBJ.

Case C-565/08 Commission v Italy [2011] ECR I-2101 LawLex201100000887JBJ.

Case C-83/21 Airbnb Ireland UC plc, Judgment of 22 December 2022, LawLex202300000345JBJ.

Case C-660/11 Biasci, Judgment of 12 September 2013, LawLex201300001284JBJ.

Case C-3/17 Sporting Odds Ltd, Judgment of 28 February 2018, LawLex201800000343JBJ.

Case C-156/13 Digibet Ltd, Judgment of 12 June 2014, LawLex201400002076JBJ.

Case C-355/98 Commission v Belgium [2000] ECR I-1221, LawLex200700001630JBJ. See, also, Case C-158/03 Commission v Spain (Unpublished).

Case C-355/98 Commission v Belgium [2000] ECR I-1221, LawLex200700001630JBJ.

Case C-442/02 CaixaBank France [2004] ECR I-8961, LawLex200900000834JBJ.

Case C-64/08 Engelmann [2010], ECR I-8219, LawLex201100000291JBJ; Case C-186/11 Stanleybet International Ltd and others, Judgment of 24 January 2013, LawLex201300000247JBJ.

Case C-685/15 Online Games Handels GmbH, Judgment of 14 June 2016, LawLex201700001047JBJ.

Case C-390/99 Canal Satélite Digital [2002] ECR I-607, LawLex200900000649JBJ.

Case C-205/99 Analir and others [2001] ECR I-1271, LawLex200900001110JBJ, for a public service.

Case C-67/98 Zenatti [1999] ECR I-7289, LawLex200500007632JBJ.

Case C-367/12 Sokoll-Seebacher, Judgment of 13 February 2014, LawLex201400000256JBJ.

Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, LawLex200900001056JBJ.

Case C-353/89 Commission v Netherlands [1991] ECR I-4069, LawLex200900000459JBJ, which underlines that to safeguard the freedom of expression of the various (in particular social, cultural, religious or philosophical) components, it is not necessary to require broadcasting bodies to have all or some of their programmes produced by a national undertaking; Case C-79/01 Payroll and others [2002] ECR I-8923, LawLex200900001177JBJ, which rejects the existence of a causal link between the protection of workers and a law which reserves the outside data-processing of pay slips for undertakings with less than 250 employees to data-processing centres exclusively staffed by persons registered in the associations of certain professions, where those administrative tasks do not require any specific qualification.

Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, LawLex200900001170JBJ.

European Business Law

99. Indistinctly applicable measures

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99. Indistinctly applicable measures

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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