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On Discrimination and the Theory of Mandatory Requirements
Published online by Cambridge University Press: 27 October 2017
Extract
According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements.
This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.
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References
1 See notably Case 113/80 Commission v. Ireland (“Irish Souvenirs”) [1981] ECR 1625.
2 Most but not all: see for instance Case 207/83 Commission v. UK (“Origin marking”) [1985] ECR 1201.
3 The two terms will be used indistinctly.
4 As a matter of terminology the term “indistinctly applicable” rules will be used to indicate those rules which apply to both imported and domestic goods; “indirectly discriminatory” rules to indicate those indistinctly applicable rules which affect imported goods more than domestic ones; “non discriminatory” rules to indicate those indistinctly applicable rules which are not indirectly discriminatory. I will use the term “objective justifications” in a narrow way to indicate only justifications for indirectly discriminatory provisions.
5 See Oliver, P. “Some further reflections on the scope of Article 28-30 (ex 30-36) EC” 36 (1999) CMLRev 783 Google Scholar, at 804 et seq.; Barnard, C. “Fitting the remaining pieces into the goods and persons jigsaw” 26 (2001) ELRev 35 Google Scholar, at 54; and AG Jacobs’ Opinion in C-379/98 PreussenElektra AG v. Schleswag AG, opinion of 26/10/00, judgment of 13/3/01, nyr, para. 226.
6 C-120/95 N Decker v. Caisse de Maladie des Employés Privés [1998] ECR I-1831.
7 C-120/95 Decker above n 6.
8 Personal imports (or imports for personal use) fall within the scope of application of Art. 28. Consistent case law since Case 34/79 R v. Henn and Darby [1979] ECR 3795.
9 The outcome of the case is hardly surprising having regard to the fact that when asked by the Court what would be the cost to the balance of the insurance scheme if the authorisation requirement were to be disposed of, the Luxembourg Government recognised that the financial impact of such a change would be “insignificant”.
10 See, for instance, joined Cases C-321 to 324/94 Pistre and others [1997] ECR I-2343, para. 49.
11 See, for instance, Case 59/82 Schutzverband gegen Unwesen in der Wirtschaft v. Weinvertriebs-GmbH [1983] ECR 1217, and Case 72/83 Campus Oil Ltd v. Minister for Industry and Energy [1984] ECR 2727.
12 See Case C-21/88 Du Pont de Nemours italiana [1990] ECR I-889.
13 See Reports for the Hearing para. 32.
14 Case 18/84 Commission v. France [1985] ECR 1339.
15 C-118/96; Safir [1998] ECR I-1897. Also in this case the rule was found not to be justified; for another case which, had the concept of direct discrimination been given a wide interpretation, could have been seen as directly discriminatory, see Case C-55/93 Van Schaik [1994] ECR I–4837; and Case C-55/98 Skatteministeriet v. Bent Vestergaard [1999] ECR I-7641 in which a refutable presumption according to which when a professional course was offered in a tourist place abroad the expenses incurred for it could not be deductible for tax purposes, whilst the same presumption did not apply for courses which took place in Danish tourist places, was scrutinised according to the fiscal cohesion justification.
16 Case 205/84 Commission v. Germany (“insurance Case”) [1986] ECR 3755, para 52.
17 Case 33/74 Van Binsbergen [1974] ECR 1299; 205/84 Commission v. Germany, above n 16; C-204/90 Bachmann v. Belgium [1992] ECR I-249; there are however few notable exceptions see Case C-484/93 Svensson and Gustavsson [1995] ECR I-3955; Case C-224/97 Ciola v. Land Voralberg [1999] ECR I-2517.
18 C-389/96 Aher-Waggon GmbH v.Germany [1998] ECR I-4473.
19 C-2/90 Commission v. Belgium [1992] ECR I–4431. It is interesting to note that this case was not referred to by the Court in the following environmental protection/free movement cases. See Case C-389/96 Aher-Waggon above n 18, Case C-203/96 Chemische Afvalstoffen Dusseldorp and Others v. Minister van Volkshuisvesting, Ruimtelijke Ordering en Milieubeheer [1998] ECR I-4075, Case C-209/98 Entreprenørforeningens Affalds/Miljøsektion (FFAD) v. Københavns Kommune [2000] ECR I-3743, Case C-379/98 PreussenElektra AG v. Schleswag AG, above n 5, all discussed below Part III.
20 According to consistent case law a rule does not cease to be directly discriminatory because of the fact that it entails also discrimination against some of the national producers. See Case C–21/88 Du Pont de Nemours Italiana above n 12, para. 12; Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior SA v. Departmento de Sanidad y Seguridad Social de la Generalität de Cataluña, Publivia SAE v. Departmentu de Sanidad y Seguridad Social de la Generalitat de Cataluna [1991] ECR I-4151, para. 24; Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni and Others [1993] ECR I-6621, para. 37; Case C-67/97 D Bluhme [1998] ECR I-8033, para. 20; Case C-254/98 Schutzverband gegen unlauteren Wettbewerb v. TK-Heimdiest Sass GmbH [2000] ECR I-2487, para. 27.
21 Para. 36 of the judgment. AG Jacobs in his first opinion (para. 20. p. I–4457) had no hesitation in classifying the rules as distinctly applicable: in his second opinion he confirms his previous finding although finds that a measure which would require waste to be disposed of within its locality of generation, and which would apply to exports and imports could be con sidered indistinctly applicable (para. 24, I–4467) and be justified according to mandatory requirements.
22 See Bernard, “Discrimination and Free Movement in EC Law” 45 (1996) ICLQ 85 CrossRefGoogle Scholar, at 94: and n 23 below.
23 This is fairly uncontested in the scholarship: see for instance Weatherill, S. and Beaumont, P. EU Law (London, Penguin, 1999, 3rd ed.), 591 Google Scholar; and Weatherill, S. “Recent case law concerning the free movement of goods: mapping the frontiers of market deregulation” 36 (1999) CMLRev 51 Google Scholar; Craig, P. and De Burca, G. EU Law 2nd edn. (Oxford, OUP, 1998), 604 Google Scholar; Arnull, A. The European Union and its Court of Justice (Oxford, OUP, 1999), 272 Google Scholar and 273. Arnull suggests that the Court could have used the public policy derogation instead: however, since public policy is translated in the other languages as public order (ordre public, ordine publico) this seems to be hermeneutically difficult, on this point see below.
24 C-389/96 Aher-Waggon above n 18.
25 See the discussion on Decker above Part II.A.
26 Para. 22 of the judgment.
27 Some authors have suggested that Case 207/83 Commission v UK (“origin marking”), above n 2, is authority to hold that indirectly discriminatory provisions may not be justified on mandatory requirements. However, as we will see below, that case may be explained having regard to the fact that at an early stage the mandatory requirements were a means to bring the measure outside the scope of application of Art. 28. As for considering indirect discrimination as not being justifiable according to mandatory requirements, it is a difficult position to hold since there is little doubt that most product requirements are indirectly discriminatory, and that indirectly discriminatory selling arrangements might be justified according to mandatory requirements. See C-34 etc/95 De Agostini [1997] ECR I-3843, paras. 44 and 45, and maybe C-254/98 Schutzverband gegen unlautereb Wettbewerb v. TK Heimdienst Sass GmbH above n 20, in which the Court found the rules at issue to be indirectly discriminatory not justified selling arrangements. There is only one other case to the author’s knowledge in which a selling arrangement was found to be indirectly discriminatory and thus needed to be justified: Case C—405/98 Konsumentombudsmannen v. Gourmet International Products AB, judgement of 8/3/01, nyr. In this case the Court referred to Art. 30 since the Swedish Government relied on public health.
28 C-203/96 Dusseldorp, above n 19.
29 Consistent case law; see Case 15/79 PB Groenveld BV v. Produktschap voor Vee en Vlees [1979] ECR 3409, Case 237/82; Kaas Bv at al. v. Dutch Government Central Organ Zuivelkontrole [1984] ECR 483; Case C-80/92 Commission v. Belgium (“radio-communication transmitters”) [1994] ECR I-1019, and more recently, Case C-388/95 Belgium v. Spain [2000] ECR I-3123.
30 Para. 44.
31 C-209/98 Entreprenørforeningens Affalds/Miljøsektion (FFAD) v. Københavns Kommune, above n 19.
32 Para. 48, emphasis added.
33 C-379/98 PreussenElektra, above n 5.
34 The Court referred to Cases 72/83 Campus Oil above n 11, and C-21/88 Du Pont de Nemours Italiana, above n 12: in both cases the measure, being discriminatory was assessed only having regard to Art. 30.
35 AG Jacob’s opinion paras. 197–238.
36 The Court does not use the language of justification; at para. 72 it says “in order to determine whether such a purchase obligation is nevertheless compatible with Article 30 [now 28] of the Treaty, account must be taken, first of the aim of the provision in question, and second, of the particular features of the electricity market”. This language is rather unusual, and it could be wondered whether the Court’s avoidance of a justificatory approach were not intentional. Also the lack of reference to some justification after having clearly stated that the measure constitutes a hindrance to intra-Community trade is conceptually unsatisfactory, and seems reminiscent of considering mandatory requirements as grounds which render Art. 28 not applicable by bringing the measure outside its scope of application (on this point see below). It is however totally unclear whether the Court is implying that some discriminatory measures may fall altogether outside the scope of application of Art. 28.
37 Para. 75, emphasis added.
38 See Krämer, L. “Environmental protection and Article 30 EEC Treaty” 30 (1993) CMLRev 111 Google Scholar, at 117.
39 See above n 5.
40 It is also not so obvious that such a development would be practically desirable having regard to the fact that it would probably have to be extended to Art. 29, and to the other free movement provisions.
41 Some authors do not distinguish between material and indirect discrimination: whilst in practice it is often difficult to distinguish the two concepts, a theoretical difference exists. In order to establish material discrimination the courts must assess whether the situations treated equally are in fact different: thus the assessment, as in the case of formal discrimination, is in terms of comparability. In the case of indirect discrimination the disparate effect of the measure triggers the Court’s assessment of the legitimacy of the interest pursued. See also Lenaerts, K. “L’égalité de traitement en droit communautaire” 26 (1991) CDE 3 Google Scholar.
42 Some authors talk about justified discrimination, but it seems more appropriate to say that in the case in which there is an objective justification there is no discrimination although there is a disparate effect. It should be noted that the European Court of Justice in sex discrimination cases talks most of the times of justified indirect discrimination. It is however submitted that the distinction is conceptually useful.
43 This is not to deny that the assessment of comparability may be very much guided by the aimed result. See for instance the Court’s reasoning in Case C-2/90 Commission v. Belgium (“Wallonian Waste”), above n 19, and Part II.B above; and H.M. Customs and Excise v. Schindlerand Schindler [1994] ECR I-1039, para. 51.
44 Ellis, E. “The Concept of Proportionality in European Community Sex Discrimination Law” in Ellis, (ed.) The Concept of Proportionality in the Laws of Europe (Oxford, Hart, 1999) 166 Google Scholar, notes that the concept of indirect discrimination is “a necessary part of the legal armoury if longstanding patterns of behaviour which damage particular groups are to be eliminated”. See also Byre, A. Indirect Discrimination, Report prepared for the Equal Opportunities Commission, 1 Google Scholar.
45 Marenco, G. “Pour une interprétation traditionnelle de la notion de mesure d’effet équivalent à une restriction quantitative” 19 (1984) CDE 291 Google Scholar.
46 The Court seems to refer to a traditional proportionality assessment in Case C-145/88 Torfaen Borough Council v. B & Q pic [1989] ECR 3851, operative part of the judgment,
“Article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind”.
47 Joined Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097.
48 See for instance Bernard, above n 22.
49 See also Bernard, above n 22, at 93.
50 However, in Case 72/83 Campus Oil Ltd above n 11, esp. para. 36, economic considerations ancillary to the purpose of the measure did not bring the measure outside the scope of application of Art. 30. The availability of resources, in a practical more than an economic meaning, is a relevant aspect of the public policy exception when relied upon in cases of threat of civil unrest; see Case 231/83 Cullet v. Leclerc [1985] ECR 305, and Case C-265/95 Commission v. France [1997] ECR I-6959.
51 See for instance Case C-69/88 H Krantz Gmbh & Co. v. Ontvanger der Directe Belastingen and Staat der Nederlanden [1990] ECR I-583; Case C-93/92 CMC Motorradcenter GmbH v. P Baskiciogullari [1993] ECR I-5009; Case C-372/92 Criminal proceedings against M Peralta [1994] ECR I-3453; Case C-44/98 BASF AG v. Präsident des Deutschen Patentamts [1999] ECR I-6269.
52 See Case C-267 and 268/91 Keck above n 47, para. 17, to which the Court is starting to expressly refer. See for instance Case C–405/98 KO v. Gourmet, above n 27, para. 18. As for measures which are not selling arrangements, total bans are considered quantitative restrictions regardless of discrimination; see Case 34/79 R v. Henn and Darby above n 8; but see Case 216/84 Commission v. France (milk substitutes) [1988] ECR 793 in which a ban on imports was assessed having regard also to the mandatory requirement of consumer protection, and maybe Case C-196/89 Nespoli and Crippa [1990] ECR I-3647. It should also be noted that in some cases the Court refused to apply mandatory requirements to indirectly discriminatory rules. If mandatory requirements were objective justifications this would not be explainable. See, for instance, Case 207/83 Commission v. UK (“origin marking”), above n 2.
53 In the immediate aftermath of Cassis the scholarship was divided as to the nature of mandatory requirements. For the view considering the mandatory requirements an extension of the Treaty derogations, see for instance Masclet, J. C. “Les articles 30, 36 et 100 du Traité CEE à la lumière de l’arrêt ‘Cassis de Dijon’” 16 (1980) RTDE 611 Google Scholar; Oliver, P. “Measures of Equivalent Effect: a Reapprisal” 19 (1982) CMLRev 217 Google Scholar. For the view that mandatory requirements would bring the measure outside the scope of Art. 28, see Dashwood, A. “Cassis de Dijon: the line of cases grows” 6 (1981) ELRev 287 Google Scholar; Barents, R. “New Developments in Measures Having Equivalent Effect” 18 (1981) CMLRev 271 Google Scholar; Daniele, L. “Le restrizioni quantitative e le misure di effetto equivalente nella giurisprudenza della Corte di giustizia” 24 (1984) Riv. Dir. Eur. 147 Google Scholar. For a more recent discussion of this issue see Weatherill and Beaumont, above n 23, at 575 and 576, and Arnull, above n 23, at 265–269.
54 See for instance Case 130/80 Kelderman [1980] ECR 527 para. 15 in which the Court states that it is apparent that the obstacle in question is not justified by public interest requirements and therefore the measure constitutes a MEE; Case 113/80 Commission v. Ireland (“Irish souvenirs”) above n 1, para. 9 in which the Court implies that if the measures could be justified according to the mandatory requirements they would not be measures having equivalent effect; Case 220/81 T F Robertson [1982] ECR 2349, in which the Court found that “The answer to the question could be given only on the basis of Art. 30 [now 28] of the Treaty” since none of the Art. 30 [ex 36] derogations applied; Case 72/83 Campus Oil above n 11, para. 17. “(…) the Treaty applies the principle of free movement to all goods, subject only to the exceptions expressly provided for in the Treaty itself” (emphasis added); Case C-210/89 Commission v. Italy (“cheese”) [1990] ECR I-3967, para. 16 in which the Court talks of measures which can be justified in the light of Art. 28; C-362/88 GB-Inno-BM v. Confederation du Commerce Luxembourgois [1990] ECR I-667 para. 18 “(…) Thus Art. 30 [now 28] cannot be interpreted as meaning that national legislation which denies the consumer access to certain kinds of information may be justified by mandatory requirements concerning consumer protection. 19. In consequence, obstacles to intra-Community trade resulting from national rules of the type at issue in the main proceedings may not be justified by reasons relating to consumer protection. They thus fall under the prohibition laid down in Art. 30 [now 28] of the Treaty. The exceptions to the application of that provision contained in Art. 36 [now 30] are not applicable”; Case C-239/90 SCP Boscher, Studer and Fromentin v. SA British Motors Wright and others [1991] ECR I-2023 in which the Court first assessed whether the measure satisfied mandatory requirements, and having found that it did not, and consequently was incompatible with Art. 28, went on to assess whether it could be justified according to Art. 30. This is also supported by the fact that in the operative part of the judgments the Court, when the measure was found to satisfy one of the mandatory requirements, would say that Art. 28 would not apply (or would not preclude) the rules at issue. To this effect see: Case 6/81 BV Industrie Diensten Groep v. JA Beele Handelmaatschappij BV [1982] ECR 707; 220/81 Robertson, above; Case 286/81 Oosthoeck’s Uitgeversmaatschappij BV [1982] ECR 4575; Case 60 and 61/84 Cinéthèque SA and others v. Federation Nationale des Cinéma Français [1985] ECR 2605; Case 382/87 R Buet and Educational Business Services v. Ministère public [1989] ECR 1235 [the application of the law is not incompatible with Art. 28]; C-145/88 Torfaen Borough Council v. B & Q plc above n 46; C-332/89 A. Marchandise et al. [1991] ECR I-1027.
55 See for instance Case 207/83 Commission v. UK (“origin marking”), above n 2. For an example of a case in which a measure found to be measures having equivalent effect could not benefit from the mandatory requirements, see Case 229/83 Leclerc v. Au Blé Vert [1985] ECR 1. See also Case 231/83 Cullet v. Leclerc, above n 50. Similarly in the case of services a clearly protectionist measure is seen as being justifiable only according to the Treaty derogations; see Case C-17/92 Federación de distribuidores Cinematográficos (FEDICINE) v. Estado Español et Unión de Productores de Cine y Televisión [1993] ECR I-2239.
56 See for instance C-298/87 Smanor [1988] ECR 4489 para. 14 “National rules prohibiting the marketing, on national territory, under the name “deep-frozen yoghurt” of yoghurts which have undergone deep-freezing therefore constitute a measure having equivalent effect to a quantitative restriction within the meaning of Article 30 of the Treaty”; C–210/89 Commission v. Italy (cheese), above n 54 para. 11.
57 See for instance Case C-196/89 Nespoli and Crippa above n 52, para. 14 “Such rules are therefore permissible under the Treaty only if either, within the framework of Article 30, they are applicable to domestic and imported products alike and are intended to satisfy mandatory requirements relating, in particular, to consumer protection or fair trading, or they are justified on one of the grounds of general interest listed in Article 36 of the Treaty, such as the protection of public health.”
58 Joined Cases C-l/90 and 176/90 Aragonesa above n 20.
59 Joined Cases C-267 and 268/91 Keck above n 47.
60 See also Moore, S. “Revisiting the limits of Article 30 EEC” 19 (1994) ELRev 195 Google Scholar.
61 C-267 and 268/91 Keck above n 47, para. 15, emphasis added; the same formula has been used inter alia in Case C-315/92 Clinique [1994] ECR I-317, para. 13; C-317/92 Commission v. Germany [1994] ECR I-2039, para. 12; C-293/93 L Neeltje Barbara Houtwipper [1994] ECR I–4249, para. 11; Case C–470/93 Verein in Handel und Gewerbe Köln e. V. v. Mars GmbH [1995] ECR I-1923, para. 12; C–51/95 Commission v. Germany (“mayonnaise and biscuits”) [1995] ECR I-3599, para. 29; C–368/95 Vereinigte Familiapress Zeitungsverlags- und Vetriebs GmbH v. Heinrich Bauer Verlag [1997] ECR I-3689; C-217/99 Commission v. Belgium, judgment of 16/11/00, nyr. The traditional Cassis formulation has been used in Case C-448/98 Guimont, judgment of 5 December 2000, nyr.
62 See also Martin, D. “‘Discriminations’, ‘Entraves’ et ‘Raisons Impérieuses’ dans le Traité CE: Trois concepts en quête d’identité” 33 (1998) CDE 261 Google Scholar (Part I), and 561 (Part II), at 294.
63 So far there is no case law on selling arrangements preventing market access, thus it is not clear whether in this case a discrimination requirement would be necessary. Such a development cannot however be excluded.
64 See also Weatherill and Beaumont, above n 23, at 575.
65 Joined Cases 60 and 61/84 Cinéthèque, above n 54, para. 26. It is interesting to note that the Court does not, in this case as in all the Sunday trading cases, expressly refer to mandatory requirements.
66 C-368/95 Familiapress, above n 61, para. 24.
67 Arnull above n 23, at 269.
68 Case C-378/98 above n 5, and see text in n 36.
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