Free movement of Goods, Motorcycle Trailers, Product Use and Road Safety: Case C-110/05

Here's a judgment that's important not for what it decides but for what it does not decide. It is the judgment of the Court of Justice in Case C-110/05 Commission v. Italy and concerns the free movement of goods.

The Commission brought Article 226 proceedings against Italy because that state introduced legislation that prohibited motorcycles and quadricycles from towing a trailer. The Commission claimed that that prohibition was a restriction on the free movement of goods contrary to Article 28 EC.

All rather reminiscent of Felini's La Strada, really. But that's a digression.

The case is remarkable because the idea cropped up, as such ideas tend to do, that the rule adumbrated in Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard that rules on selling arrangements were in principle outside the scope of the prohibition contained in Article 28 EC should be extended to rules on the use of products.

There were divergent opinions of Advocate generals on that point. In her opinion in Case C-142/05 Mickelsson and Roos Advocate General Kokott seemed to favor taking product use regulations outside the scope of Article 28 EC. Advocate General Poiares Maduro in his opinion in Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos was not in favor.

Thus, the Court of Justice reopened the procedure in this case after Advocate General Léger had handed down his opinion that the Italian regulations on the use of trailers was indeed contrary to Article 28 EC and suggested to the Court to find in favor of the Commission. The Court asked all the member States to take a position on whether product use rules should be taken beyond the reach of Article 28 EC. Funnily enough, many member States thought that would be a good idea. Then, Advocate General Bot, who replaced Advocate General Léger who had retired from the Court, handed down a second opinion, also against taking product use regulations outside the scope of Article 28 EC.

The Court of Justice for its part held that regulations on the use of products were within the scope of the prohibition contained in Article 28 EC.

The Court of Justice recalled that according to settled case-law, all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-EC trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville, paragraph 5). It added that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz, paragraph 26; Case 120/78 Rewe‑Zentral (‘Cassis de Dijon’), paragraphs 6, 14 and 15; and Keck and Mithouard, paragraphs 16 and 17).

As a consequence, the Court held that obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect to quantitative restrictions even if those rules apply to all products alike (see, ‘Cassis de Dijon’, paragraphs 6, 14 and 15; Case C‑368/95 Familiapress, paragraph 8; and Case C‑322/01 Deutscher Apothekerverband, paragraph 67).

In this particular case, the Court held that the restriction on the use of motorcycle trailers was contrary to Article 28 EC because consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer (see, by analogy, Case C‑265/06 Commission v Portugal, paragraph 33, concerning the affixing of tinted film to the windows of motor vehicles). But the restriction was justified on the grounds of - now get this - road safety. It thus dismissed the Commission's action.

Honestly, the idea that Italy does anything to promote road safety is bound to provoke laughter. What about enforcing the seat belt laws a bit ? Or informing motorists in Rome that those pretty red, yellow and green lights are not just decorative but seek to convey some driving instructions ?

UPDATE: The judgment in Case C-142/05 Mickelsson and Roos is now out and confirms this judgment. See our post here.

Comments

[Ralf Grahn]

Surely, there must have been tons of evidence and arguments in favour of road safety in order to reach such a decision ...

[Simon L]

Aside from the rather strange justification for the breach of Article 28 by the ECJ, this is a welcome judgment surely - the whole rules on use idea brought up by that nutcase Kokott was just going to open unnecessarily a large can of worms! Hopefully this will be the end of the matter then.

Thanks for reporting on this case, studied the AG's opinion last year and was interested to hear what ended up happening!

[Laurens A]

Thanks for the comment on the case. Do you expect anything significant from the ECJ in Mickelson and Roos now this judgement has been delivered?

[Bartolus]

On whether to expect anything significant from the ECJ in Mickelson and Roos now this judgment is out ?
No, because the Court took this as the leading case it seems, judging by the way it stopped the case, asked all the member States a question on the principle of product use rules and Keck.
It looks like this is the leading case and the others will follow. But that is just guessing, of course !

[tracy]

Hi, sir! thank you for comment on the case.
what do you mean in the last paragraph? the same function can be achieved in less restrictive way?

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It's always interesting to see the laws that pop up in the interest of "public safety" that are directly opposed to the idea of "public intelligence".

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I feel it’s quite a required decision as the bikes drawing to trailers are always risky and I have witnessed such an awkward accident once. Better judgement.

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I don't think that motorcycles and quadricycles from towing a trailer. It should be common sense. For the reason of road safety, I agree with this judgment.

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This is such great news. The more we have the free movement of goods the better.

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There are many evidence to justify the case but the main theme of this blog. It should be common sense. For the reason of road safety, I agree with this judgment.
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Here's a judgment that's important not for what it decides but for what it does not decide. It is the judgment of the Court of Justice in Case C-110/05 Commission v. Italy and concerns the free movement of goods.

The Commission brought Article 226 proceedings against Italy because that state introduced legislation that prohibited motorcycles and quadricycles from towing a trailer. The Commission claimed that that prohibition was a restriction on the free movement of goods contrary to Article 28 EC.

All rather reminiscent of Felini's La Strada, really. But that's a digression.

The case is remarkable because the idea cropped up, as such ideas tend to do, that the rule adumbrated in Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard that rules on selling arrangements were in principle outside the scope of the prohibition contained in Article 28 EC should be extended to rules on the use of products.

There were divergent opinions of Advocate generals on that point. In her opinion in Case C-142/05 Mickelsson and Roos Advocate General Kokott seemed to favor taking product use regulations outside the scope of Article 28 EC. Advocate General Poiares Maduro in his opinion in Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos was not in favor.

Thus, the Court of Justice reopened the procedure in this case after Advocate General Léger had handed down his opinion that the Italian regulations on the use of trailers was indeed contrary to Article 28 EC and suggested to the Court to find in favor of the Commission. The Court asked all the member States to take a position on whether product use rules should be taken beyond the reach of Article 28 EC. Funnily enough, many member States thought that would be a good idea. Then, Advocate General Bot, who replaced Advocate General Léger who had retired from the Court, handed down a second opinion, also against taking product use regulations outside the scope of Article 28 EC.

The Court of Justice for its part held that regulations on the use of products were within the scope of the prohibition contained in Article 28 EC.

The Court of Justice recalled that according to settled case-law, all trading rules enacted by member States which are capable of hindering, directly or indirectly, actually or potentially, intra-EC trade are to be considered as measures having an effect equivalent to quantitative restrictions and are, on that basis, prohibited by Article 28 EC (see, in particular, Case 8/74 Dassonville, paragraph 5). It added that Article 28 EC reflects the obligation to respect the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other member States, as well as the principle of ensuring free access of Community products to national markets (see, to that effect, Case 174/82 Sandoz, paragraph 26; Case 120/78 Rewe‑Zentral (‘Cassis de Dijon’), paragraphs 6, 14 and 15; and Keck and Mithouard, paragraphs 16 and 17).

As a consequence, the Court held that obstacles to the free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect to quantitative restrictions even if those rules apply to all products alike (see, ‘Cassis de Dijon’, paragraphs 6, 14 and 15; Case C‑368/95 Familiapress, paragraph 8; and Case C‑322/01 Deutscher Apothekerverband, paragraph 67).

In this particular case, the Court held that the restriction on the use of motorcycle trailers was contrary to Article 28 EC because consumers, knowing that they are not permitted to use their motorcycle with a trailer specially designed for it, have practically no interest in buying such a trailer (see, by analogy, Case C‑265/06 Commission v Portugal, paragraph 33, concerning the affixing of tinted film to the windows of motor vehicles). But the restriction was justified on the grounds of - now get this - road safety. It thus dismissed the Commission's action.

Honestly, the idea that Italy does anything to promote road safety is bound to provoke laughter. What about enforcing the seat belt laws a bit ? Or informing motorists in Rome that those pretty red, yellow and green lights are not just decorative but seek to convey some driving instructions ?

UPDATE: The judgment in Case C-142/05 Mickelsson and Roos is now out and confirms this judgment. See our post here.

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