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  • Subject area(s): Marketing
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  • Published on: 14th September 2019
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In Mickelsson v Roos , the European Court of Justice made a judgment built on previous case law, however, creating an implication for future cases. In particular, the point of conflict was whether such rules should be changed to “certain selling arrangements” in order to be caught by Article 34 TFEU only when it is discriminatory or preventing market access  or whether they should fall within the Dassonville formula so that each case should be assessed individually to determine whether or not they constitute an hindrance to intra-Community trade.

Firstly, Advocate General Kokott found that Directive 94/25 as amended by Directive 2003/44 in order to include personal watercraft, could not be applied at the time when the main proceedings occurred. Moreover, Article 2(2) of Directive 2003/44 specified that it did not preclude national provisions prohibiting the use of personal watercraft on certain waters if it could be justified by the protection of the environment, provided that they did not infringe the provisions of the Treaty. The national regulations at issue in the main proceedings fell within the category of national measures covered by Article 2(2). Those regulations included a general prohibition on the use of personal watercraft on waters other than general navigable waterways. Hence, under those regulations, the local authority could designate on which waters personal watercraft could be used other than general navigable waterways.

Therefore, the European Court of Justice went on to interpret whether Article 34 TFEU  precluded national regulations such as those in the main proceedings.

The Court's approach to Article 34 TFEU has been defined through a series of judgements. The first significant case in this area of law was Dassonville, which defined measures having equivalent effect to a quantitative restriction on imports as ‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.'  This definition does not discrimination of measures between domestic and imported goods. Instead, it will include anything that hinders the free movement of goods directly or indirectly. Therefore, Cassis de Dijon  confirmed that in the absence of harmonization of legislation, Article 34 TFEU would apply to national rules that did not discriminate against imported goods, but hindered trade because they were different from the trade rules applied in the country of origin. Advocate General Kokott , however, found the Dassonville judgement too broad and therefore raised the judgment in Keck, where the Court removed from the Dassonville formula a new category of non-discriminatory “selling arrangements.” The rules relating to “selling arrangements”, were not considered to fall within Article 34 TFEU, as long as national measures not prescribing the characteristics of products, applying to all traders on the national territory and affecting, in the same manner in law and fact, the marketing in that Member State of domestic and imported products, were present. It was against this background that the Court was requested to determine if, and under what conditions, national measures restricting the “use” of products on the national territory constituted MEQRs.

The European Court of Justice, re-affirmed the judgement of Commission v Italy , a case decided earlier, which affirmed that measures having equivalent effect refer not only to the discriminatory national rules and the rules that lay down requirements to be met by goods, even if applicable to all products alike, but also to \"any other measure which hinders access of products originating in other Member States to the market of a Member State.\"  The Court specified that it included measures relating to selling arrangements or the use of the product as long as access to the national market is hindered. Although the court has taken up a clearer “market access test” in respect of Article 34 TFEU in Mickelsson and Roos, it is considered to be radical as it completely ignored Keck. The Advocate General addressed what she perceived as the problem posed by “arrangements for use”, which she defined as “national rules governing how and where products may be used.”  She referred to two restrictions: a prohibition on driving cross-country vehicles “off-road” in forests and speed limits on motorways, which she suggested should not be caught under Article 34 TFEU on the basis that their “nature and the intensity of their effects on trade in goods” should be examined. The reason for this was because she believed “arrangements for use also affect the marketing of a product only indirectly through their effects on the purchasing behaviour of consumers.”  As stated in Commission v Italy, if consumers know that there are regulations permitting the use of products, it prevents demand from existing in the market and therefore hinders their importation. As a consequence, she suggested, “the restriction on use does not therefore require any modifications to the personal watercraft themselves.”  

According to Cassis de Dijon, the need to modify imports was the sign that a rule indistinctly applicable in law was in fact indirectly discriminatory. These conditions are also evident by the Advocate General, which is just a reiteration of Cassis, but with an additional category of “arrangement for use” in this case. Therefore, since the Swedish rules do not discriminate according to the origin of the product, they are applicable without distinction to domestic products and to products from other Member States. However, according to Keck, selling arrangements satisfying the criteria don't prevent their access to the market or impede access any more than they impede the access of domestic products. A situation such as this one, where only a marginal possibility for using personal watercraft remains because of a particularly restrictive rule on use, is to be regarded as preventing access to the market.

Moreover, as stated in Commission v Italy, “the national provision must be appropriate for securing the attainment of the objective pursued and not go beyond what is necessary to attain it.”  Also, in Commission v Austria  it was held that “measures in question are proportionate to the aim pursued.”  In this case, the national regulations are justified by the objective of environmental protection and by the objectives in Article 36 TFEU . Given the national regulations will designate some waterways where personal watercraft may be used, and the use of personal watercraft breaches Paragraph 3 of the national regulations, “a general prohibition on using such goods constitutes a measure going beyond what is necessary to achieve the aim of protection of the environment.”  As there was no deadline by which local authorities were to designate waterways, it was also incompatible with the principle of proportionality. Consequently, it was held that it is for the national courts to ascertain whether the conditions for the protection of the environment were satisfied.

Section 5

The outcome in Mickelsson and Roos is considered to be a judgment of paramount importance as it had an implication on later cases. This is because the Court “expressly adopted a market access test in the context of Article 34 TFEU, devoid of any reference to discrimination” , for the first time. It has been argued that the Court has viewed this case “as a golden opportunity to revisit some of the fundamentals in the context of Article 34 TFEU and provide a clarification as to the categories of measures that now fall within the scope of this provision” .

Academics have different ways of interpreting the current law and how it impacts previous law. The first view regards market access as an overarching principle.   It has been argued that Keck placed too much emphasis on factual and legal equality to the expense of market access. Advocate General Jacobs in Leclerc-Siplec  pointed this out where he held that advertising could be important in breaking down barriers to domestic trade, and should not always fall outside Article 34 TFEU.  It should be capturing national measures discriminating against imports, prescribing product characteristics and also other indistinctly applicable rules hindering market access for imports. Therefore, the introduction of a strict market access test in Mickelsson and Roos supports this judgement, as it will establish whether there is a substantial restriction on the access to the market and should be caught by Article 34 TFEU. Advocate General Maduro , Bot  and Trstenjak  have supported this approach on market access where the products concerned were questioned of impeding it. Weatherill  also argued that national measures applying equally in law and in fact to goods and services without reference to origin and imposed no direct or substantial hindrance to the access of imported goods to the market of that Member State, should not be caught by Article 34 TFEU. Barnard who added that if “the impediment is too uncertain and remote it does not breach the Treaty provision”  reinforced this. Consequently, it can be argued that the case of Mickelsson and Roos made the existing body of law more thorough by increasing the unity and consistency of its case law as it added a fundamental category to that could fall under Article 34 TFEU.

On the contrary, several academics believe that market access should not be regarded as an overarching principle and see it as a residual category.  According to Snell, “if the concern is in reality that imported goods are affected more than domestic products then we should simply speak in terms of factual, legal, or indirect discrimination, or differential impact, the conclusion being that the concept of market access adds little, if anything, to such analysis.”  This is reinforced by the view of Wenneras and Boe Moen, who believed that applying a market access test to non-discriminatory measures, which merely render a product's access to the market more difficult, would run the risk of broadening the scope of Article 34 TFEU excessively. Accordingly, the market access test should apply restrictively to allow national courts to apply it in a clear and systematic manner.  Therefore, if market access were viewed as a residual category in Mickelsson v Roos, as was the case in Commission v Italy, the European Court of Justice would have primarily analysed discrimination and product requirements, allowing market access to be used as a criterion to capture cases if they did not fall within these two categories.

Moreover, through its analysis of measures regulating product “use”, the Court has signalled a clear departure from its landmark ruling in Keck. The problem with this in Mickelsson and Roos is that is purports to define “arrangements for use” by rules requiring any modifications to the goods themselves. As the necessity to modify imports characterises “product requirements”, that still leaves it unclear whether and how rules concerning “arrangements for use” are legally different from those relating to “selling arrangements.”  In earlier cases such as Toolex Alpha , the European Court of Justice had found a national prohibition on the industrial use of a harmful substance a measure equivalent to quantitative restrictions and without a detailed analysis held that they were contrary to Article 34 TFEU. By contrast, the conclusions reached in recent case law, such as Commission v. Italy and Mickelsson and Roos, reflect how measures prohibiting or restricting product use may be compatible with Article 34 TFEU. It is now clear that for measures merely restricting and not prohibiting product use this new market access test is subject to a requirement that the restriction impedes access to the market for that product to a sufficient degree.  In this sense, the cases carry greater significance for the future of Article 34 TFEU and the effectiveness of European Union Law.

However, this depends essentially on how willing each national court is to cooperate. Market access prohibits two distinct categories of national measures. “First, it precludes all measures serving as obstacles to actual market entry for products lawfully circulating elsewhere within the Community. Secondly, it prohibits measures that distort the conditions of competition for imported products within that Member State, by interfering with the right of individuals and undertakings to compete equally for a share in a particular product market.”  Therefore, it is argued that it is not the undefined concept of market access that makes it difficult for the courts to use but these limitations. Throughout the case law, national courts have cooperated differently. In Commission v Greece , when a Greek law came into force, it reduced the volume of imports of the games and game machines involved from other Member States. This could be a determining factor as to why the measure fell within the scope of Article 34 TFEU. Similarly, Portuguese law prohibited the affixing of tinted films to the windows of motor vehicles . The Commission claimed that this prohibition was in breach of Article 34 TFEU and that potential customers would not buy such film since they knew that they could not affix it to the window of motor vehicles. Therefore, it can be concluded that the market access test was established as a means to apply to factual equality between domestic and imported goods. For non-discriminatory measures, the market access test would be applied only if the Keck conditions were not fulfilled.

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